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- Unreported Judgment
Neilson v Chief Executive Officer, Public Safety Business Agency  QCAT 263
Graeme Charles Neilson
Chief Executive Officer, Public Safety Business Agency
16 June 2016
15 July 2016
a. the contents of any document produced to the Tribunal and contained in the Tribunal file; and
b. any information that may enable identification of the witnesses, other than the expert witness, in this matter.
CHILDREN – BLUE CARD - where teacher working in technical college – where that person had been convicted of an offence – where that offence was not categorised as a serious offence – where negative notice issued preventing that person from working with children
EXCEPTIONAL CASE – where evidence of risk factors and protective factors – whether not in the best interests of children for a positive notice to issue – whether an order can be made that a positive notice must issue
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226(2), 353, 354, 360
Commissioner for Children and Young People and Child Guardian v Maher  QCA 492
Graeme Charles Neilson
Chief Executive Officer, Public Safety Business Agency
represented by Mr Hatcher, solicitor of Woods Hatcher Solicitors
represented by Mr J. J. Thompson, an officer of the Public Safety Business Agency
REASONS FOR DECISION
- Mr Neilson currently works for a registered training organisation teaching carpentry. Since the decision to refuse his application for a blue card was made in January 2016 he has been restricted to teaching students over 18 years of age. However, some students are as young as 15 years and he needs to be able to conduct classes for all students. He would also love to return to his original profession as a teacher in schools.
- Applications for blue cards are made to the Chief Executive Officer, Public Safety Business Agency ('Chief Executive’), the organisation responsible for screening persons employed in child-related employment. On 7 January 2016, the Chief Executive issued Mr Neilson a negative notice, which means he is not eligible to obtain a blue card. He has asked this Tribunal to review that decision.
- The purpose of the review is to produce the correct and preferable decision and the Tribunal must hear and decide the review by way of a fresh hearing on the merits. The Tribunal is bound by the same legislation as the original decision-maker. Evidence obtained and events occurring after the original decision was made can be considered.
- The paramount consideration when making an employment related decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.
- The negative notice issued following consideration of Mr Neilson’s criminal history.
- In December 2010 he was convicted of knowingly participating in the provision of prostitution and procuring prostitution in the months of February to May 2008. No conviction was recorded and he was fined $2000. Arising from the same events he was convicted of using a telecommunications network to facilitate the commission of a serious offence. For this offence he was placed on a recognisance of $1000 and again no conviction was recorded.
- In November 2011 he was convicted and sentenced to 18 months imprisonment, suspended for 18 months for the offence of corruption of a witness. He was further convicted of attempts to procure the commission of criminal acts and sentenced to a period of 6 months imprisonment to be served by way of an intensive correction order. The events leading to these charges occurred in November 2008.
- These offences are not considered to be serious or disqualifying offences for the purpose of the Act. This means Mr Neilson must be issued a positive notice and blue card unless I am satisfied it is ‘an exceptional case’ in which it would not be in the best interests of children to issue a positive notice.
- With the exception of this period in 2008 Mr Neilson states he has never been in trouble with the law except for the odd speeding ticket. He had an unremarkable, but happy, childhood. He met and started dating his current wife in 1978 when he was 18. He started teaching in 1985. Apart from the period 1988-1990 when he was a carpenter, he continued as a teacher until the end of 2002. In 2003 he stopped teaching and assisted his wife run her business operations. At this time he removed himself from the Register of Teachers. He was readmitted to the Register in 2008.
- As a result of these charges disciplinary proceedings were brought before this Tribunal by the Queensland College of Teachers in 2012 and he was prohibited from applying to be re-registered as a teacher until November 2015.
- In his written and oral evidence Mr Neilson described the circumstances of his offending. He said in early 2008 he was experiencing marital difficulties and believed he was on the verge of separating from his wife. At that time he was working with his wife in her business as maintenance man and pay clerk but he was not drawing a wage. He was worried about his future after the separation. They were also worried about their teenage son.
- He met a person at the children’s football games and they decided to set up a business together. The business was a website which sex workers could use to advertise their services. It was intended to operate in a similar fashion to the Realestate.com. Income was to be generated by the advertisers paying for the advertisements. It was not intended for any employee of the business to have contact with any prospective clients.
- The business was set up in Queensland, which has different laws regarding prostitution to other states. It was intended the site could be developed to operate an escort agency in New South Wales at some time in the future.
- During the first week of its operation, a person working in the business took an ‘outcall’. This was an offence in Queensland because the business was not registered to run a legal brothel.
- The offence was discovered as a result of a covert police operation. The business started to unravel following the police investigation and it was closed down immediately. It operated for about a week.
- Mr Neilson said while the proposal looked good on paper he now knows it could be easily manipulated to engage in unlawful activity. He said he was not thinking rationally at the time and his whole life seemed to be falling apart.
- In November 2008 Mr Neilson and his business partner became aware a person had been called to give evidence to a Crime and Misconduct Commission hearing. There is some conflicting evidence over what actually happened during two meetings between Mr Neilson, his business partner and the witness, however that does not need to be resolved here. Mr Neilson agrees he encouraged the witness to give false evidence and to throw away the sim card from the mobile phone she used. This was the behaviour that resulted in the charges to which he pleaded guilty.
- Mr Neilson says that in November while things had improved with his wife his marital situation was still not good, he was now worried about different things, especially what people would think about him. He was financially stressed and still worried about his son. He panicked. He does not blame his business partner for his actions but it is relevant he engaged in this behaviour with another person.
- S 226 (2) of the Act sets out the matters that must be considered when deciding whether these circumstances raise an ‘exceptional case in which it would not be in the best interests of children to issue a positive notice.’
- In addition to the convictions already discussed, there were further charges that were withdrawn. Mr Neilson says these charges were a mistake and the Chief Executive made no submissions to the contrary. I have not given weight to the charges. The convictions were not serious or disqualifying offences for the purpose of the Act but they were offences of a very grave nature. The offences were committed in 2008. The offences related to an adult-only business and to that extent they did not directly involve children, however any offence relating to dishonesty must raise grave reservations about the offender’s ability to protect the wellbeing of children.
- A Magistrate dealt with the charges relating to prostitution by imposing a fine and no conviction was recorded. I have given little weight to these charges. A transcript of the remarks made by the Judge in the District Court when sentencing the corruption charges was provided. While emphasising the importance of deterring people from trying to mislead the justice system she considered the circumstances of the offence, the absence of previous convictions other than the prostitution offences, the mitigating material filed and the submissions of the prosecution when deciding on the penalty.
- The purpose of the Act is to protect children into the future. The offences must be considered to the extent they inform a decision about what is necessary to promote the welfare and best interests of children. The risk and protective factors of Mr Neilson’s present situation must also be explored.
- The Chief Executive has identified the risks factors as the gravity of the offences, the fact the stressors were not unusual, rather it was Mr Neilson’s response that was inappropriate and his continued limited insight and attempts to minimise his behaviours.
- In their decision to impose a three year non-registration period on Mr Neilson, the members of this Tribunal said the offences ‘reflect very poorly on Mr Neilson’s honesty, integrity and respect for the law’. I accept these charges raise serious concerns when deciding whether a person should be employed in a child related work environment. Mr Neilson acknowledges he was engaged in very serious activity. He says he has not sought to run away from that and accepted both his criminal sentence and period of non-registration without complaint.
- The stressors relied on are unfortunately not uncommon but rarely lead to criminal behaviour of this nature. A similar situation could arise in the future. Indeed it was clear that even these proceedings have placed Mr Neilson under stress. It is of great concern that once he was in trouble for the prostitution offences, rather than accepting the consequences, he tried to minimise those consequences by engaging in conduct that was far more serious than the original offences. He knew what he was doing was wrong but he chose to do it anyway.
- I do not accept Mr Neilson has limited insight about the seriousness of the offences he committed. He spoke of his embarrassment, remorse and changes he has made to his life and circle of acquaintances. However, I do accept that he has continued to minimise and explain away his behaviour. When speaking with his psychologist, Dr Bowden, he said the actions relating to prostitution would have been legal in New South Wales without referring to the more serious dishonesty charges. His evidence about events in this hearing was frequently at odds with versions contained in other court documents. When challenged he was prepared to concede ‘if two people said I said it I could have.’ In other situations he relied on a flawed memory, which is not unreasonable given the time that has passed, but it has to be applied equally to the evidence he gave with certainty.
- I formed the view Mr Neilson was more comfortable relying on his stressors to explain his behaviour than facing the alternative explanation, which was that when backed into a corner he was prepared to take whatever steps he deemed necessary to protect himself and his reputation. It is probable the truth lies somewhere between these two extremes.
- The identified protective factors include the lapse of time that has occurred since the offences, no suggestion there were children involved, that he is a mature man, considered to be of good character and these offences are out of character and the change in his marital and family circumstances.
- These offences occurred nearly eight years ago. Mr Neilson had no criminal behaviour before or after these offences, they are not part of an ongoing pattern of behaviour. The Chief Executive referred to a previous decision of this Tribunal to argue the passage of time by itself is not sufficient. That case involved behaviours against children over a period of time and therefore raised different issues when considering future risk. I have given weight to the lapse of time and the limited criminal history. It suggests there is limited likelihood of reoffending or an ongoing risk to children.
- The offences did not relate to children and in fact occurred in an adult-only industry. However, they did involve corruption and if there was an ongoing pattern of behaviour demonstrating a willingness to impede the justice system that could be evidence of a risk to children. In this instance, because it is an isolated event, it is unlikely that there is a risk to children in the future.
- Mr Neilson made available witnesses to attest to his character. Some were experienced members of the legal profession and therefore able to recognise the importance of the offences. They all stated that this behaviour was out of character for Mr Neilson and continued to attest to his good character and suitability to work with children. They referred to his active involvement in the community especially with junior football and swimming. One witness expressed surprise and disappointment when hearing of the offences but said while he did not condone the dishonest behaviour, it was not unusual for people under the pressure of prosecution to act in this way.
- Their evidence was persuasive and is consistent with the discreet period of Mr Neilson’s offending. They support the argument that there is little likelihood of further criminal activity.
- Mr Neilson says he has changed his life. He has attended a counsellor and has reconciled with his wife. He says they now support each other, although I did not have the opportunity to hear from Ms Neilson. He says he now understands he was a part of the problem because at that time his attitude was ‘It’s all about me’. They now rent rather than trying to meet an unmanageable mortgage and while they still have financial problems he says they have ‘brought life under control.’ He is prepared to seek outside help such as financial help.
- Friends have become more important and Mr Neilson says he is now much more open to discussing things than he was at the time of his offences. He sat down with his children and apologised to them for his offending and has spent the past eight years trying to prove he is a worthy person.
- It is the evidence of Dr Bowden, psychologist, that Mr Neilson shows no evidence of any psychological pathology. He said they spent more time exploring the pathways that led to the offending than the offending itself but he believes the behaviour resulted from stress and the industry he had moved into.
- Dr Bowden believes Mr Neilson has taken the best preventative strategy he could, namely ceasing to be part of the sex industry. He no longer conducts the business or mixes with the people he was involved with. Past behaviour is a good indicator of future behaviour and there was no criminal activity before this episode so he opines the likelihood of future criminal behaviour is low.
- Dr Bowden said Mr Neilson did not express remorse but he did not ask that question. On further questioning Dr Bowden said that different people show remorse in different ways and it is possible to be remorseful without verbalising. It is necessary to look for a demonstration of remorse by the actions taken.
- Mr Neilson must be given a positive notice unless I am satisfied it is ‘an exceptional case’ in which it would not be in the best interests of children to issue a positive notice. I am satisfied Mr Neilson’s criminal history, confined as it is to a short period eight years ago does not raise concerns about his future conduct. I accept the evidence of the witnesses and Dr Bowden that there is little likelihood of a reoccurrence of criminal behaviour because the circumstances leading to that behaviour are unlikely to be replicated. I accept Mr Neilson’s evidence that he now has strategies to deal with stress and, to a large extent has taken steps to reduce the stress in his life.
- Mr Neilson has been subjected to criminal proceedings, teacher’s registration proceedings and now this application. While I cannot take any hardship to Mr Neilson into account, I can form the view the serious consequences of his offences mean he is unlikely to reoffend. He knows he has a lot to lose.
- For these reasons I am satisfied this is not an ‘exceptional case’ which would warrant the issue of a negative notice.
- It is the submission of the Chief Executive that I am restricted to making a finding of whether an exceptional case exists and cannot order the issuance of a positive notice. Mr Neilson submitted I should order a positive notice and a blue card be issued in an attempt to avoid any further delay and hardship.
- S 354 of the Act provides that:
- (1)‘A person who is not a disqualified person may apply …. to QCAT for a review of a chapter 8 reviewable decision.’
- (3)To remove any doubt, it is declared that there is no review or appeal under this Act in relation to a decision of the chief executive to issue, or refuse to cancel a negative notice or negative exemption notice about a person other than because of a chapter 8 reviewable decision.
- A chapter 8 reviewable decision is defined in s 353, the relevant part of which states:
chapter 8 reviewable decision, about a person, means –
- (a)a decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive –
- issued a negative notice or negative notice exemption to the person;
- refused to cancel a negative notice or negative exemption notice issued to the person; or ……..
- The QCAT Act provides in s 19:
In exercising its review jurisdiction, the tribunal—
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for the reviewable decision being reviewed.
- It is clear that the only jurisdiction conferred on QCAT by the enabling Act is to determine the question of whether or not there is an exceptional case. This suggests it was the intention of parliament to grant a right of review over the discretionary component of the decision but not the operational components.
- By way of example, s 200 of the Act sets out the form of the application. If the Chief Executive decides the form has not been signed, or that it is not accompanied by the prescribed fee, this would be an operational decision. It is not a reviewable decision.
- I have formed the view I cannot use the powers under s 19(c) of the QCAT Act to order the Chief Executive to issue a positive notice because the power is restricted to the reviewable decision being reviewed and that is the question of whether or not there is an exceptional case. Once that question has been determined, the limit of the Tribunal’s jurisdiction has been reached. Section 19 of the QCAT Act cannot be used to enlarge the jurisdiction of the Tribunal to make orders about the consequence of the decision, or to exercise other operational functions of the decision maker, where that function did not form part of the original reviewable decision.
- It could be argued that s 114 of the QCAT Act gives the Tribunal the power to order the issuance of a positive notice. That section says the power to do something includes the power:
‘to make an ancillary order or direction the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.’
In other words the Tribunal can make orders to give efficacy to its decision or ensure its decision can be carried out.
- Section 221 of the Act provides that a positive notice must issue unless there is an exceptional case. Where a finding has been made there is no exceptional case an operational obligation is imposed on the Chief Executive to issue the positive notice if satisfied all other requirements have been met. In this circumstance there is no need for the Tribunal to make an order about what happens next to achieve the purpose of its decision because the legislation has already done that. In the alternative, the purpose of the primary power is limited to the determination of whether there is an exceptional case. That purpose has been achieved and is complete once the decision is made.
- I acknowledge Mr Neilson’s concerns that there may be a delay in issuing a positive notice. For him and many others the refusal of a positive notice and the lengthy process of review can involve a financial detriment and personal imposition. It is desirable this consequence be minimised where possible. However, for the reasons just given I cannot make orders about the operational functions of the Agency.
- To assist the Tribunal when making arrangements to give evidence witnesses gave personal contact details. They have asked these details remain confidential and both parties have submitted it is appropriate to do so.
- The evidence of witnesses is of great value in making a determination and they should not be discouraged from giving evidence by any unnecessary intrusion into their privacy or concerns for their safety.
- I consider it is necessary in the interests of justice to make the following non-publication orders pursuant to s 66(2)(e) of the QCAT Act:
- The publication is prohibited of:
- the contents of any document produced to the Tribunal and contained in the Tribunal file; and
- any information that may enable identification of the witnesses, other than the expert witness, in this matter.
- The previous order does not apply to the applicant, the respondent and their respective legal representatives.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) s 8.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT ACT’) s 20.
 The Act ss 6, 360.
 Ibid schs 2, 4.
 Ibid s 221.
 Queensland College of Teachers v Neilson  QCAT 693.
 Commissioner for Children and Young People and Child Guardian v Maher  QCA 492.
 Queensland College of Teachers v Neilson  QCAT 693 at .
 Volkers v Commission for Children and Young People and Child Guardian  QCAT 243.
 The Act s 221.
- Published Case Name:
Neilson v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
Neilson v Chief Executive Officer, Public Safety Business Agency
 QCAT 263
15 Jul 2016