Civic v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 621

CITATION: Civic v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 621 PARTIES: Peter James Civic (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML010-14 MATTER TYPE: Childrens matters HEARING DATE: 21 November 2014 HEARD AT: Southport DECISION OF: Member Joachim DELIVERED ON: 28 November 2014 DELIVERED AT: Brisbane ORDERS MADE: The decision of the Public Safety Business Agency to issue a negative notice to Peter James Civic is confirmed. CATCHWORDS: BLUE CARD – EXCEPTIONAL CASE – where applicant has extensive criminal history – where none of offences were serious or disqualifying – where applicant refused positive notice by Commissioner for Children Young People and Child Guardian – where review sought so applicant can engage in child related employment – where risk factors outweigh protective factors – whether applicant’s case is exceptional Commission for Children and Young People and Child Guardian Act 2000 (Qld) s 199 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 -- 1 of 9 -- 2 APPEARANCES: APPLICANT: Peter Civic represented himself RESPONDENT: Public Safety Business Agency represented by Ms Natalie Taylor REASONS FOR DECISION [1] Peter James Civic was born on 4 March 1981. He lives on the Gold Coast. Life has not been particularly kind to Mr Civic. [2] He reports a disruptive upbringing characterised by sexual abuse by his older brother, commencing using marijuana at age 11, drinking and taking other drugs. He reported getting beaten up by other children at school and he has an extensive criminal history spanning from 1997 to 2012 from the age of 16 to the age of 31. [3] This extensive history includes offences in relation to drugs, assault, stealing and damage to property. His last offence occurred in 2011. [4] Mr Civic applied under s 199 of the Commission for Children and Young People and Child Guardian Act 2000 (‘CCYPCG Act ’) for a positive notice and blue card. Having reviewed Mr Civic’s criminal history, as well as his submissions and references, the Commissioner decided to issue Mr Civic with a negative notice in March 2014, having been satisfied on the material before him that an exceptional case exists in which it would not be in the best interests of children for a positive notice to be issued to the applicant. [5] Mr Civic seeks a review of that decision so he can pursue working with children and young people to assist them in avoiding the type of life he has had, in particular to assist young people not to become involved with drugs and a life of crime. [6] The Tribunal is conducting a review of the merits of the Commissioner’s decision by way of a fresh hearing. The Tribunal needs to apply the same law as the Commissioner. The Tribunal has to take into account s 226 of the relevant legislation, which is now the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). This outlines what I have to consider in deciding if an exceptional case exists. [7] The purpose of the review is to produce the correct and preferable decision. The Tribunal may: a) confirm or amend the Commissioner’s decision; b) set it aside and substitute its own decision; or -- 2 of 9 -- 3 c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration. [8] As none of his offences are serious offences under the legislation Mr Civic is entitled to receive a positive notice and blue card unless it is considered his is an exceptional case such that it would harm the best interests of children for him to have a positive notice. [9] Exceptional case is not defined in the Act. To be exceptional the case needs to be out of the ordinary, unusual or special. [10] I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances. [11] The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act. [12] Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount. [13] Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment. [14] On the dissolution of the CCYPCG Act the Public Safety Business Agency (‘PSBA’) assumed responsibility for screening of persons wishing to work or volunteer with children. [15] The relevant legislative provisions of the CCYPCG Act were transferred into the Working with Children Act. Decision of the Commissioner Summarised [16] The Commissioner decided Mr Civic’s case was exceptional after considering his lengthy criminal history, s 226 of the Working with Children Act, and s 221 of the Act. [17] The Commissioner in his statement of reasons noted an extensive criminal history with violent offences including stealing, drugs and mental health issues. The Commissioner had determined that Mr Civic had not expressed any insight into the effect of his offending behaviour on the complainants and those exposed to his offending. [18] In his reasons the acting Commissioner stated that the applicant had not identified any anger management programs, counselling or rehabilitation he might have participated in regarding his apparent propensity for violent behaviour. [19] The Commissioner noted the positive references given but considered these references had some limitations because of the extent of the referees knowledge of the applicant’s offending was unclear. The -- 3 of 9 -- 4 Commissioner also noted that the nature of Mr Civic’s offending involved drug related offending behaviour and violence, neither of which suggests he is an appropriate role model to children and young people. The Evidence of the Applicant and of his Witness [20] Mr Civic advised that he grew up in Wollongong and subsequently moved to Bundaberg. He advised the Tribunal that his older brother had sexually assaulted him. He has two other siblings, a brother and a sister. He rarely sees them. [21] He advised the Tribunal that his father is in goal for manslaughter and his mother lives in Queanbeyan. He has not seen her for six years. [22] He stated that he has poor short-term memory and this was evident during the hearing. He says he has a lot of children, but doesn’t know how many. Some live in Bundaberg, some live on the Gold Coast. [23] He has spent very little time parenting any of his children. He stated he has watched people go downhill as a result of drugs and that he has been off drugs since 2007/2008. He stated he used to take ecstasy, ice, marijuana, morphine and heroin. [24] He said that the drugs calmed him down and sedated him when he needed sleep and that ice gave him the ability to talk and get his point of view across. It had however destroyed his relationship and he would get angry without them. He noted that he did become disoriented when using drugs in Sydney. [25] He later stated that he has been off drugs since 2011. He smokes herbal cigarettes which he believes to be marijuana free although he is not sure. He expressed disappointment when reflecting on his criminal history. [26] He stated that he started to take action about his drug activities when he was accused of providing marijuana to a young neighbour. He advised that he has had nonstop problems in his life and he wants to help children not to smoke and not to do crime. He states he hates drugs although he does take prescribed medication and an occasional cigarette. [27] He stated that he stopped drug taking following a planned admission to a mental health unit and that he gets support from Ashmore Community Mental Health. [28] During his rehabilitation with the Alcohol, Tobacco and Other Drugs of Dependence Service which he attended daily, he said he had taken drugs from the centre without authorisation and commenced a process of weaning himself off the drug suboxone. [29] During this time he admitted that he recommenced taking drugs including very heavy doses of amphetamines. -- 4 of 9 -- 5 [30] He stated he had developed a method of writing using mathematics and that he does his reading by mathematics. He indicated that he had assisted a reforming drug user by the name of Isaac who had read his material. [31] He referred to having a diagnosis of schizophrenia and being on an involuntary treatment order in the past. [32] Mr Civic advised the Tribunal that he did not agree with the diagnosis of schizophrenia and that he does not have schizophrenia now. He takes certain medications which he says are for ADHD. [33] He subsequently admitted to being schizophrenic as a result of the drugs he had been taking. He was last in hospital somewhere between two to four years ago although he cannot remember. [34] He says he visits his social worker at the Ashmore Community Health Centre on a weekly basis and says he is not currently suffering any mental health issues but does take benzatropine and depot clopixal. These he says stops the pressure in his head which he explained to the Tribunal occurs when his thoughts become erratic and too fast. [35] He advised that he takes pain killers for headache, and he still had night terrors. He did admit however to sometimes seeing things that weren’t there. [36] In commenting on a report provided to the Tribunal by a psychiatrist Dr Alexander he noted that he had seen him approximately five times and that he had given him strategies to manage his behaviours which included taking time out, walking away from situations, listening to quiet music if driving, thinking before you say anything and calling a buddy. [37] He indicated that he had a few support people to assist him. He currently is not in a relationship. He provided the Tribunal with a two page write up of how he helps people give up drugs and described to the Tribunal how this should be read by reading letter by letter down the page instead of words across the page. [38] Mr Civic called one witness, Ron Nieminen. Mr Nieminen stated that he had known Mr Civic for approximately two to three years, that they met through mutual friends and he sees Mr Civic once to twice a fortnight at either his house or Mr Civic’s house. He stated that he had heard that Mr Civic had got into trouble when he was younger and that he did a social welfare course so that he would be able to work with children. [39] He has seen children in Mr Civic’s care briefly only. He is not aware of any drug use currently by Mr Civic and described his strengths as being good natured, helping friends and being very good at communication. He stated he has never seen him threaten or harm anybody. Mr Civic’s Submissions -- 5 of 9 -- 6 [40] Mr Civic submitted that there were approximately 350 children in his neighbourhood that don’t go to school who are on drugs or who steal things. He wants to assist these children. He said that his writing will help children do things legally and he wants to stop the children taking drugs and drinking. [41] Whilst acknowledging that he can’t help all of them he has he said helped three out of about 10 that he has had contact with. [42] He submitted that his ultimate goal was to be in either volunteering or paid employment with children and to help people with their mental health. He wants to be able to change them from negative to positive. [43] He admits his criminal activity but wants to make a difference. He submitted that his drug use is over, noting that if he goes back to drugs he will have a shorter life. [44] He argued that he was not a risk to children and that his past behaviour is in the past. [45] He advised that he has done voluntary work for the Salvation Army. [46] He submitted that his violence has always centred around his father and people who are associated with drugs. [47] He confirmed he is committed to treatment for his mental health and goes each week for his injection. [48] He says he is not going to blame anyone for his actions. He accepts blame for what he has done noting here there has been no offence in the past three to four years. [49] He stated that he felt sorry for the people against whom he had committed crimes. [50] Finally he submitted that he loves children and he does not wish to hurt them. The PSBA’s Submissions [51] Ms Taylor representing the PSBA submitted that the Tribunal must consider what is in the best interests of children and that children are entitled to be protected from harm. [52] Whilst noting that a period of time has elapsed since Mr Civic’s last offending behaviour, she noted that the passage of time is but one factor I need to take into account. [53] She identified that proper judgment is needed to protect children. She noted that Mr Civic’s non-offending period of a few years needed to be balanced against his 13 years of offending. -- 6 of 9 -- 7 [54] Whilst acknowledging that his offending was not child related she nevertheless submitted that his criminal behaviour did not make him a good role model for children. [55] She submitted that Mr Civic does not manage stress well and, that in the best interests of children, appropriate behaviour needed to be modelled with respect to how to deal with stress and anger. [56] She also noted that there had been a five year break between 2004 and 2009 in offending but following that there had been a significant offending. She asked the Tribunal to consider that past behaviour is an indicator of future behaviour. [57] She noted that Mr Civic had significant mental health struggles for the past two years and has been on an involuntary treatment order in the past. In her view the mental health issues are still a relevant factor in considering this review. [58] She acknowledged that Mr Civic had made significant progress but that he still has issues with his mental health and he is not necessarily cognisant of these. [59] The psychiatrist’s report which Mr Civic submitted, whilst outlining the nature of his mental health status and noting that Mr Civic can work if committed to his treatment and abstinence from illicit substances, doesn’t in her submissions, go far enough to suggest that Mr Civic is fit to engage with young people. [60] She submitted that as Dr Alexander was not available for cross- examination and didn’t say what testing he performed that I should give limited weight to his letter. [61] Ms Taylor submitted that Mr Civic has shown some remorse but has a tendency to blame others. By way of example she indicated that Mr Civic had stated that he was forced to do some crime, that his ex-girlfriend had been giving him drugs. Ms Taylor was concerned that this reflected on Mr Civic’s level of insight. [62] Ms Taylor submitted that the detriment or hardship suffered by Mr Civic by not obtaining a blue card and any benefit to children as a result of his gaining a blue card are an irrelevant consideration. She noted that blue cards are transferrable and that a person with a blue card is eligible for any child related employment. [63] She submitted that the evidence amounts to an exceptional case noting Mr Civic had a difficult start in life and a desire and commitment to avoid drugs and criminality. She suggested that insufficient time has passed for Mr Civic to address his triggers including his vulnerability to drug use and his mental health issues. -- 7 of 9 -- 8 [64] In Ms Taylor’s view Mr Civic has not demonstrated he has addressed these underlying issues. In this regard she noted that Mr Civic has never adopted a parenting role and questioned his capacity to act protectively when he hasn’t done so for his own children. [65] She questioned his ability to make right choices in an unsupervised environment. She noted his limited support network. The Tribunal’s View [66] I am required to take into account the factors listed in s 226 of the Act in determining if this is an exceptional case. I note the convictions for which the applicant has as a result of his criminal behaviour. These are considerable and do him no credit. He does express some remorse for his actions. [67] I note the offending behaviour did not include a serious or disqualifying offence and spanned a period from 1997 until 2011. These offences included violent assault, stealing, a range of drug offences, and property offences. The penalties imposed by the Court included periods of imprisonment. [68] I consider Mr Civic’s age and background to be mitigating factors in his offending whilst he was younger. In relation to offending through his 20s and into his 30s I am not so persuaded especially given the ongoing nature of his offending. [69] Of concern is Mr Civic’s attitude to his own children. In totality he has adopted few measures to act protectively, or to show concern for them. [70] I will take into account protective and risk factors following the example in the Maher1 Court of Appeal case of 2004. The protective factors are as follows:  Mr Civic has engaged in a number of training courses, the evidence of which he provided to the Tribunal and includes a Certificate III in Home and Community Care, the obtaining of a licence to operate a forklift truck and competency in first aid.  He sees his mental health case worker on a weekly basis and is compliant with his depo medication.  He has a commitment to abstinence and to improved mental health. [71] His risk factors include:  Long standing use of drugs especially cannabis;  A criminal history spanning at least 14 years; 1 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 8 of 9 -- 9  His ongoing mental health issues;  His lack of insight into his limitations;  A less than comprehensive support network;  A rather blasé attitude to his own children. [72] During the hearing it was apparent that Mr Civic has poor short-term memory. It was also clear to me that he found it difficult to stay on track when answering questions. His answers were particularly expansive and at times he was tangential in his replies. I did not find him a satisfactory witness because of these matters. These factors would be likely to impact on interaction with children in a negative way. [73] The material he handed to me to look at, which he claims is his way of helping people to deal with drug problems, was to be read letter by letter down the page made some sense reading from left to right but no sense reading it as he suggested. [74] I have come to the view that Mr Civic does not have an appropriate insight into his limitations. He considers himself capable of doing things which on any measure seem unrealistic. For instance he advised me that should he get his blue card he will be able to solve the problems of youth drug use on the Gold Coast. [75] I agree with the PSBA’s submission that Mr Civic remains a vulnerable individual and would not be a suitable role model at this point in time for children. I also agree with the PSBA submission that Mr Civic has a tendency to blame others for his misfortunes. [76] I totally disagree with Mr Nieminen’s evidence that Mr Civic is a good communicator. Both his written material handed up at the hearing and his verbal skills at the hearing did not engender any confidence in me that he could communicate adequately with children and young people. [77] I find that the risk factors outweigh the protective factors. Mr Civic needs to continue to engage with professional mental health workers and to remain compliant with treatment to gain insights into his strengths and limitations. [78] I am concerned also that Mr Civic has few protective factors in his favour. I therefore confirm the decision of the agency. -- 9 of 9 --