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SSM v Chief Executive Officer, Public Safety Business Agency  QCAT 265
Chief Executive Officer, Public Safety Business Agency
20 May 2016
25 July 2016
CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Public Safety Business Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where the Applicant’s history includes a charge which is a serious offence. What constitutes an exceptional case?
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 261 and s266
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66
Chief Executive Officer, Public Safety Business Agency
Paula Hughes, Legal Officer
REASONS FOR DECISION
- The Applicant, SSM, lodged an application with the Public Safety Agency on 3 July 2015 to be issued with a positive notice and blue card.
- The Applicant was invited to make submissions in support of his eligibility to hold a positive notice and blue card. The Applicant subsequently provided supporting materials and these were considered by the Respondent.
- On 11 November 2015, the Applicant was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000. At that time, the Applicant was provided with a written notice outlining the decision, the reasons for the decision, and the relevant review information.
- On 16 December 2015, an application was lodged in the Queensland Civil and Administrative Tribunal for a review of the Respondent’s decision that the Applicant’s case was not an ‘exceptional case’ in which it would not harm the best interests of children for the Applicant to be issued with a positive notice and blue card.
- The matter proceeded to oral hearing Cairns on 20 May 2016, with the Applicant appearing by video conference from Thursday Island.
- The Tribunal has directed that the Respondent file and serve written submissions in this matter by 3 June 2016.
- The Tribunal has directed that the Applicant file and serve written submissions in this matter by 17 June 2016.
Relevant law to be applied by the Tribunal
- The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
- The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm promotes child well-being.
- The decision under review is whether the Applicant’s case is an ‘exceptional case’ such that the presumption prescribed by section 225 of the Act has been displaced. On the basis of the Applicant’s police information the statutory presumption is that a notice should not be issued to the Applicant.
- In order to issue a positive notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case” exists.
- Any hardship or prejudice suffered by the Applicant such a determination is irrelevant to this consideration.
- The Tribunal has decided in other cases that the passage of time alone is not determinative whether or not a case is an ‘exceptional case’ exists. Although allegations or convictions may relate to offences committed a number of years ago, passage time does not detract from their seriousness (see Volkers v Commission for Children and Young people and Child Guardian  QCAT 243).
- The Applicant stated that most of his charges had occurred 20 years ago. The major charge was rape conviction in 1997. The Applicant told the Tribunal that he had received an unfair decision in relation to the incident. He was charged with the offence of aiding and abetting. The Applicant told the Tribunal that he was asleep at the time of the offence and took no active matter in the offence. He appealed the decision but Supreme Court declined his appeal. The Applicant received a sentence of three years for the offence. He stated that at the time of the rape charge, he was immature and he has learned how to address issues arising for the conviction.
- The Applicant admits that his actions were wrong. In relation to the rape conviction, he should have stood up and dealt with the matter in a cultural way. The Applicant regrets that he did not do so. The Applicant has approached the family of the victim in a cultural way to address the fact that he was sorry for the incident occurring. The Applicant told the Tribunal that he had learned a lot from his mistakes.
- The Applicant stated that he had learned many things whilst in Lotus Glen Correctional Centre. He undertook courses and programs and that his life improved after he left jail. The Applicant stated that he had been helping people in his community by taking a leadership role.
- The Applicant stated that there were many things in his childhood, which had made him angry. These included the effects of colonialisation and anti-discrimination on Thursday Island. The Applicant told the Tribunal that: “I was a violent person”. His history includes drink driving, assaults and other criminal offences.
- The Applicant has: established a Men’s group; and was involved in the “White Ribbon Event” (against domestic violence) as a perpetrator arguing for a better way forward. The Applicant supports women’s rights and men’s rights. The Applicant educates the community about cultural matters. The Applicant educates his own children and grandchildren about aboriginal culture. The Applicant gave examples two youths who had benefited from his teaching of cultural ways and helped them to achieve success in their lives. The Applicant is involved in the justice group committee looking at young offenders. The group talk about community issues. The Applicant has been taking children on hiking to help with school attendance.
- The Applicant says that he always talks about his past. He wants to correct himself. The Applicant teaches people that they can learn from the past and pass on information to the future generations. The Applicant told the Tribunal that his job at the school was a better job for him than he had been undertaking. He described himself as a “pick and shovel person”. The job showed he could make a change in his life. Working at the school has inspired him to do good things including working with children and with their parents. This is his passion - to do good things. There are few who have his abilities to deliver this mentoring.
- The Applicant spoke to the Tribunal several times about the fact that he had made changes to his life and that he had learned from his past mistakes.
- The Applicant has a partner OL for the last 16 years. The Applicant has two children and a number of grandchildren.
- The Applicant studied music for three years in Adelaide and one of his assignments was to do research on musical history in his community. This led to him into looking at the history of the Kaurareg people and getting into politics.
- The Applicant does voluntary work for the Native Title Body Corporate and was elected Chairman of the Kaurareg Registered Native Aboriginal Corporation from 2007 to 2011. The Applicant charges a fee for “Welcome to country” matters. The Applicant was employed by the Tagai State College for several months to support student welfare and to assist a non-indigenous teacher as a cultural educator.
- The Applicant was sent to a high school in Brisbane. This was when he was first exposed to racism. The Applicant punched one class member for calling him names. The Applicant was for his actions expelled from school. The Applicant came back to Thursday Island and experienced what he described as “the same behaviour” from a teacher who he punched in the face. He was expelled from the school.
- The Applicant was placed under a Domestic Violence Order on 8 July 2013. The Applicant was unable to explain why he was under the Order. The Applicant did say that he and his partner sometimes had arguments. When it was put to him that his partner had to hide in a room he said “yes that had happened”.
- The Applicant was charged with contravention of the Domestic Violence Order on 1 January 2014. The Applicant admitted he was drunk at the time. The Police Service Court Brief outlines that the Applicant became agitated and had thrown stubbies smashing them on the floor and having smashed a table. The Applicant admitted that he did become angry when looking for cigarettes and a lighter. The Applicant said that his partner and two sisters were scared when he became angry and called the Police. The Police took him away and a Domestic Violence Order was made that he not return to the house. The Applicant’s partner contacted him and told him what he had done and after their discussions, she agreed to withdraw the complaint. The Applicant promised himself that he would never again drink to that extent.
- The Applicant was charged with Common Assault on 21 November 2013. The victim was a 23-year-old female on the boat ferry company. The Applicant refused to pay his fare, stating he would pay on the way back. The Police Court Brief stated that the Applicant became “aggressive, yelling in the victim’s face, ‘you are being disrespectful. You need to show me some respect. You are a small girl. You don’t own this land, so fuck off’… The Defendant used his left hand and shoved the victim on her left shoulder. The force of the shove caused victim’s body to get pushed around and turned to the side”.
- The Applicant told the Tribunal that: “the girl was showing a superior attitude”. The Applicant could not tolerate this behaviour. She should have shown respect to him. She was of Malaysian descent. She walked away causing him to argue. The Applicant agreed that he might have raised his voice and pointed his finger at the girl and that she might have been afraid of him. The Applicant conceded that he had not done things in a professional manner and that a lack of communication was to blame for the issues. He stated that he had been building a relationship with the complainant’s father.
- On 29 March 2008 from the Police Service Court Brief, the Police from Horn Island were performing a mobile patrol of the beach in front of Horn Island. Their attention was drawn to a small aluminium boat coming into the shore. Police called out for the Applicant to be breath tested. The Applicant has refused and become aggressive towards the Police. The Police again directed the Applicant to provide a specimen of his breath. The Applicant gave a specimen of his breath, which indicated that he was over the general alcohol limit. The Police asked the Applicant to enter the police vehicle and the Applicant has refused. The Applicant walked out into the deep water and took himself in the mangroves. The Applicant was charged with obstructing police. The Applicant denied the right of police to undertake this activity.
- On 9 October 2005, Police were called to a disturbance on Airport Road Horn Island. The Police Services Court Brief states that when the Police arrived there had been significant damage to the residence with nearly every front side window on the residence’s house was smashed. The Police also noticed that the main glass window had been smashed and that a large number of plants on the front veranda had been upturned and thrown about. Dirt all over the wall indicating that plants had been thrown against walls. An inspection inside the residence revealed a large quantity of dirt throughout the house, broken glass and blood. There were a number of holes in the fibro walls and a number of broken personal items such as photo frames and vases. The complainant stated that the Defendant SSM was “shouting obscenities and inviting people inside to come out and fight him”.
- The Applicant admitted to Police at the time that he had struck the complainant three times. The Applicant told the Tribunal that he did bang on the glass door and that it cracked.
- The Applicant said that he did not touch anyone and just talked to the 18-19 boys at the residence. The Applicant says that he had spoken to the young men’s mother and a mediation had been taken place. The Applicant acknowledged that his actions were “stupid and were culturally wrong”. The Applicant explained that his nephew had complained about these boys’ attitude. The way he chose to address this issue was wrong.
- The Applicant was charged with Common Assault in relation to an incident on 21 July 2005. The Police Services Court Brief states that the complainant and others were fishing on the Horn Island Wharf when the Defendant approached the complainant. After a short conversation, the Defendant has punched the complainant in the mouth twice with his fist. The Applicant told police that this was part of an ongoing dispute between families on the island.
- The Applicant told the Tribunal that this person was instigating young boys from Saibai Island to do violence to traditional owners. The Applicant fronted the complainant and asked him to fight him. The complainant refused and the Applicant hit him with his backhand twice. The Applicant stated that under cultural ways the complainant should have accepted the challenge. The complainant instead went to Police and the Applicant was charged. The Applicant told the Tribunal that he had learned important lessons from his past. The Applicant encourages children to do martial arts as this teaches the value of discipline.
- The Applicant was charged with Assault Occasioning Bodily Harm on 22 September 1999. The Police Services Court Brief states that the Defendant confronted the complainant’s niece about picking up another female. The complainant refused and the Defendant became enraged and started punching her. The complainant stated that she had received about eight blows on the back and on the front of the body. The complainant states that the Defendant picked up a shovel handle and struck her a further four times on the back and then twice across her back of the head. The Complainant states that the Defendant punched her a further two times on the right eye and the mouth.
- The Police interviewed the Defendant and he denied punching her and maintained he had struck her once across the back of her head with the rake handle. The Court Brief states that the claimant sought medical treatment the following morning and had her injuries listed as “a wound to the rear of the head, swelling to the right eye, abrasions to the inside of the top and bottom lip and bruising to the body. Complainant was also suffering from headaches…”
- The Applicant told the Tribunal that it was a stupid thing that he had done this. He described his actions as “immature, selfish, ignorant and arrogant”. The Applicant admitted using “a rake”. The next day he realised what he had done and apologised for his actions. The Applicant acknowledged that he was under the influence of alcohol and this was not an appropriate way for disciplining the complainant. The Applicant says that he was disciplined by being belted by his uncles. They “flogged me” when he did something wrong. The Applicant instead of disciplining children tells them cultural stories and take them on the journeys.
- On 24 October 1996, the Applicant attended the Wonga Hotel on Horn Island and was alleged to have demanded liquor at a discounted price. The Police Service Court Brief states that the Defendant who was intoxicated and became angry and abusive. The Defendant has grabbed complainant by the shoulders and head-butted her on the nose. The assault busted the complainant’s nose and caused a 4 cm cut across the bridge of her nose.
- The Applicant told the Tribunal that he did not recall this incident. He acknowledged that head butting the female complainant was wrong and only a person who was intoxicated would do that.
- The Applicant was charged with aiding the rape of the victim in relation to an incident on 23 March 1997. The Applicant stated he had been intoxicated on that day. The Applicant says that a group he was with drove to a park on the Island. Waiting for them was a person who was with a girl he knew. The Applicant stated that he walked over and growled at her and kicked her legs and told her to go away. The Applicant says that the girl got onto the truck and the Applicant says that he fell asleep. The Applicant denied raping the girl and does not recall the victim being raped by the other men with him. The Applicant says that he woke up when they arrived back at his house.
- The Applicant says that he does regret this offence culturally. Once he left Lotus Glen Correctional Centre, he met with the victim’s family having approached them culturally and said sorry for not standing up culturally around the incident. The Applicant says that he should have stopped the young men. The Applicant told the Tribunal that he was immature at the time and effected by alcohol. The Applicant stated that these things should not happen to anyone. The Applicant says that he now stands strongly for supporting women against domestic violence.
- The Applicant was charged with rape in 2005 whilst in Adelaide. The Applicant states that he was approached by the complainant to have sex with him. The Applicant drove the complainant to his place and they had consensual oral sex. The Applicant gave the complainant $20 for a cab fare. The Applicant went to sleep and was woken up by the Criminal Investigation Bureau who were undertaking an investigation. When he turned up for Court, his lawyer told him that the charge had been withdrawn. He found out that the complainant worked as a prostitute and had made similar complaints against other men.
- The Respondent asked the Applicant why there are concerns with him about having a blue card. The Applicant stated there were concerns and that he needed to prove that, he was a trustworthy person within this community.
- The Applicant acknowledged that he had been a troublemaker and some in the community try and calling him that. He stated that the Kaurareg community have a complex history and relationships with different groups. The Kaurareg people do not want to be subject to the British Crown. This all leads him to do something more to better the community. The Applicant acknowledged that not many think the same way as he does. He has explained his background why he “may be seen as a violent man”.
- The Applicant sees himself as a freedom fighter for his own people and dealing with their health and well-being. He has been involved in many different activities. He has worked on learning from his mistakes to move forward to a better future. He told the Tribunal that he loved children. The Applicant told the Tribunal that he had undertaken Alcohol Management, Anger Management and a number of other courses whilst at Lotus Glen Correctional Centre. The Applicant stated that he had changed his drinking habits. He would only have one or two beers and he will not go past a six-pack.
- Mr PC is the former Chair of the Aboriginal and Torres Strait Healing Foundation.
- SSM has shown people his leadership qualities. He is interested in the development of children. He is a positive role model for schoolchildren. He sees him as a positive role model in the community.
- Mr PC was not aware of his criminal history having only met him recently. He does however see him as a changed man. He has shown himself a strong person with the Kaurareg community.
- He told the Tribunal that the Applicant has searched for ways to change the negative structure between aboriginals and Torres Strait Islanders.
- He would trust the Applicant with his children.
- SG has known the Applicant for 15 years. He has been through his criminal history and notes that he was alleged to have a rape criminal charge for which he was convicted. He was a different type of person able to instil pride in young people’s lives. He places weight on cultural honour and dignity. He met SSM in Adelaide with his partner OL. He seemed to be a cultural person. He wanted to fight for the Kaurareg people and has initiated the healing forum and then negotiated the Healing Foundation. He made strategic plans for the Kaurareg people talking about values and visions. He has never seen the Applicant act aggressively towards anyone. He is a very humble, gentle man who applies honour in what he does and he is a very proud man. He explained around his offences that he did not understand the Western criminal system including language and lacked cultural support. He supported the Applicant receiving a blue card.
- HT the Head of Curriculum Land and Sea Tagai State College Secondary Campus.
- The Applicant did work early in the term for the school. The Applicant was a Kaurareg leader and worked well with the young people. He helped children to access country.
- HT was aware of the trouble that the Applicant had in obtaining a blue card but was not sure of the reasons. He would like the Applicant to continue working for the school and otherwise it would be a big loss. The Applicant helped a few children who were at risk and a few under Youth Justice Programs to enable to do adventure based training. His involvement in the school led to a drop in bad behaviour at the school by students at school. He was an invaluable member of the school team.
- PK has known the Applicant since early 2014. She saw him as a leader of the Kaurareg community. He has been open to her regarding his past. He uses his past to help the community. He is highly respected in the community and by Federal Members. He has led at a challenging time and shown absolute professionalism. His behaviour always remains calm and he thinks through the Kaurareg needs. She is aware from the Applicant that the Kaurareg are not treated fairly. There are issues around historical traditional owners. She was aware that he spent time in jail and had been convicted for rape and that he had been charged in relation to Domestic Violence Order charges. She believes that he has made positive changes in relation to children’s behaviour. She had read the reasons document provided by the Respondent.
- The Applicant explained to PK that there were problems about his charges with the language of the judicial systems, which was a barrier to justice and causes problems. He was encouraged by the lawyer who represented him to plead guilty and face less serious charges. This is not unique for aboriginal people she does not believe that he received a fair hearing 20 years ago.
- She believes that he is not a person who is a risk to children. She could not recall when he committed his last offence. The Applicant is well respected by the Kaurareg people. He is used by the Commonwealth Government for legal services and Centrelink matters. He has the trust to help these matters.
- PK supports the Applicant having a blue card.
- OL is the Applicant’s partner.
- She told the Tribunal that the Applicant looked after the high school students and that he was empowered by helping them. She was disappointed that this stopped. She has known him since 2001. She was aware that he wanted a blue card. She stated that he was a changed man. She explained that the Domestic Violence Order was a misunderstanding and that they had talked through the issues.
- She explained that there had been changes in the Applicant’s use of alcohol. He has tempered his use of alcohol. She stated that he was a very loving and caring grandfather. He was a traditional educator and loved fishing and outdoor activities. There has been a number of negatives in the Kaurareg community around its history, racism, and other issues. He started the healing process for the community. She supports him receiving his blue card.
- GO has known the Applicant for seven years. He has worked with him on a regular basis over that time and known him personally. He has no hesitation in saying that the Applicant is a man of outstanding character. The Applicant has a number of community roles including the following:
- He helped convene a “Healing Forum” over recent years. This national initiative has brought together indigenous and non-indigenous residents and stakeholders in the Torres Strait to discuss past conflicts and to reconcile. The program has been of enormous benefit to the people of the Torres Strait.
- He is the Chair of the Kaurareg Native Title Original Corporation, a registered native title corporate representing native title interests of all the Kaurareg people. It immensely shipped skills to help the organisation advancing the traditional interests of the Kaurareg people.
- Over more recent times, the Applicant has worked as a cultural and social instructor and mentor for primary school children on Thursday Island. He was chosen for this role on account of his social skills, cultural knowledge, leadership abilities and his good character.
- GO was not aware of the Applicant’s criminal history apart from an alleged assault aboard the ferry.
- The Applicant’s criminal history spans from 1983 to 2015. His criminal history, as well as the circumstances of the particular offences, are disclosed in various documents filed in these proceedings.
- Without restating the Applicant’s police information in detail, the Respondent notes the following issues, consideration and risk factors:
- The Applicant’s offending has spanned a period of approximately 33 years contains 65 convictions for various offences. For his offences, the Applicant has received a range of penalties, including 11 imprisonment orders.
- The Applicant has a conviction for rape, committed on 22 March 1997. At that time, the Applicant was aged 32 years and the complainant was a 19-year-old female. The Applicant was charged with three offenders in relation to a ‘gang rape’ of the complainant on a beach. Six charges of rape were laid against the Applicant, and he was convicted of one count, for being a party to the rape of the complainant. His conviction and sentence were appealed; however, the Applicant was unsuccessful in both respects.
- The Applicant’s criminal history includes a further charge for rape 2005. The charge was heard in the Adelaide Magistrates Court on 11 February 2005, where it was dismissed for want of prosecution.
- The Applicant’s criminal history also includes numerous offences pertaining to violent and aggressive offending behaviour. These include assault offences, breaches of domestic violence orders, weapons offences, and nuisance offences such as assault police. The Applicant’s violent offences spanned from 1982 to 2014.
- Other offences of the Applicant’s criminal history include drink-driving related offences, property offences, breaches of court orders, or counts of invasion of privacy.
- The Applicant gave extensive evidence about his involvement in the Thursday Island community, the leadership role he has taken in this respect, the work he has done to educate his community about the impact of colonialization. The Applicant’s oral and written evidence reflects that he is highly involved in the field of indigenous affairs.
- The Applicant gave evidence that the Respondent’s decision making made him feel like a paedophile and wanted a blue card so that pass on knowledge of culture, dreaming stories, and connection to land, to the next generation. He gave evidence that, until receiving a negative notice, he had been at the local high school approximately seven months as a student support officer, assisting teachers and acting as a cultural member to the students.
- In relation to his extensive criminal history, the Applicant provided evidence that he was the subject of racial discrimination during his life and this made him violent and angry. He provided evidence of a class system which developed on Thursday Island whereby his people were ‘treated like mud’, which taught them to be hurt and angry. He gave evidence that Australia is a racist country and there are inconsistencies between Western law and his cultural identity. He attributed the entirety of his violent offending to the impact of discrimination.
- The Respondent notes that the material before the Tribunal suggests following protective factors exist in relation to this case:
- The Respondent acknowledges the Applicant’s leadership role within his community. The Applicant appears to have strong ties to culture and community. He has made a number of significant commitments in the area of indigenous affairs. The Applicant’s witnesses attested to the contributions the Applicant has made to his community, corroborate his evidence regarding his strong cultural identity. The evidence of his witnesses show that the Applicant is held in high regard by his community and considered a cultural leader.
- The Respondent acknowledges the Applicant’s recent work in relation to indigenous youth in the local school on Thursday Island. The evidence, particularly the evidence of witness Tim Hillier, suggests that Applicant’s engagement at the school has had a positive impact on the students there. The Applicant also appears to be committed to sharing his knowledge with the next generation providing them with a positive role model.
- The Applicant has described the anger and hurt which he has experienced throughout his life and the role this played in his offending behaviour. It is therefore a protective factor that the Applicant has engaged in the process of healing, including through healing forums and as a former Chair of the Aboriginal and Torres Strait Islander Healing Foundation. At the oral hearing, the Applicant’s motivation was not to continue his offending and turn “negative into positive”.
- While the Respondent notes the above protective factors, the Respondent submits that the following risk factors arise from the material presently before the Tribunal:
- The Applicant’s police information raises serious concerns about his engagement in child-related employment. Of particular concern, he has a conviction for rape as well as six further finalised charges for rape, one of which arose from a completely separate allegation against him. Rape is categorised as a serious offence under the Act. Such is the concern that Parliament has in relation to this particular offence that the Act provides for a presumption that would harm the best interests of children for the Applicant to hold a positive notice blue card.
- The perpetration of sexual violence by the Applicant strongly suggests that he is not appropriate person to be entrusted with the care and protection of children. The Applicant’s rape offence in 1997 is aggravated by the disparity in the ages between himself and the complainant at the time, as well as the commission of the offence in the company of a number of co-accused. For this offence, the Applicant was sentenced to a term of three years imprisonment, a penalty that clearly reflects the gravity of his offending behaviour.
- Whilst this offence was committed many years ago, relevant Tribunals have indicated that the passage of time alone is not determinative whether or not a case an ‘exceptional case’ (see Grinrod’s case). Although charges or convictions may relate to offences committed a number of years ago, the passage of time does not detract from the seriousness (see Volker’s case). Given the concerning nature of the offence, and in light of numerous offences committed by the Applicant subsequently, the Respondent submits that the passage of time is not sufficient to outweigh the risk factors to rise from the Applicant’s serious offence.
- Reflecting on this offence, whilst Applicant has given evidence that he should have dealt with the incident differently, he has also stated that he received an unfair trial, that the witness statements were inaccurate, that he was asleep for much of the incident, that the complainant was known to be promiscuous. In relation to questions in relation to other offences on his history, the Applicant gave various accounts, which were contrary to his previous, and in several instances minimised or denied his culpability. As a whole, the evidence from the Applicant suggests that he accepts limited personal responsibility for his offences, which raises significant concerns about a lack of insight demonstrated by the Applicant with respect to his offending behaviour. This represents a significant risk factor in the Respondent’s submission. He is not sure whether the Applicant has appropriate insight into the consequences of his behaviour and this is a concern where a history of behaviour exits. In the published decision of Re TAA former Children’s Services Tribunal  QCST11 at paragraph 11 stated:
The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight to the harm that has been caused is a protective factor. A person aware of the circumstances of his actions on others is less likely to reoffend then a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions likely effect on children.
- The Respondent is mindful of the difficulties experienced in Aboriginal and Torres Strait Islander communities, which the Applicant has referred to in his evidence, in particular the impacts of colonialism on indigenous cultures. However, the Applicant appears to wholly attribute his ongoing violence to the impact of Western culture. In the Respondent’s submission, the Applicant’s criminal history raises concerns, which cannot be wholly explained or mitigated by this factor alone.
- The Respondent notes that, during his evidence, the Applicant cited immaturity as a factor in his offending, including his rape offence and a number of his violent offences. However, the Respondent submits that this evidence should afforded limited weight given many of the Applicant’s offences were committed at a mature age and continued well into adulthood. The Applicant was aged 32 years at the time his rape offence was committed. He was aged 49 years at the time of his most recent offence in 2014.
- The Respondent submits that, over the course of many years, the Applicant has demonstrated a persistent pattern of aggression and violence, often times seemingly unprovoked and gratuitous. Aggravating features of his violent offending have included the use of weapons and implements, the commission of offences in company, as well as significant injuries sustained by the complainants. On the whole, the Applicant’s history reflects a propensity for violent behaviour over the course of his adult life. In the Respondent’s submissions, this raises significant concerns about the Applicant’s ability to judge appropriate behaviour, safeguard the well-being of others, and provide a safe and protective environment for children and young people.
- The recency of the Applicant’s violence is particularly concerning. In fact, the Applicant had an outstanding charge at the time of lodging his blue card application with the Respondent. Whilst the Applicant describes his offending behaviour as being in the past, the Respondent submits that an insufficient period of time has passed to demonstrate that the Applicant has discontinued a persistent pattern of violence he has demonstrated over the course of the preceding decades. Whilst the Applicant has given evidence that he has previously received counselling in relation to drug and alcohol use and anger management, it would appear these courses were unsuccessful in addressing the Applicant’s continued offending behaviour. Given the recency of his offending and the 33 years over which it has spanned, the Respondent submits that there is a high risk of recidivism in the Applicant’s case.
- In total, the Applicant has been sentenced to 11 imprisonment orders, which clearly reflects the gravity with which his offences have been viewed by the Courts. It is highly concerning that despite repeated imprisonment orders, the Applicant continued to offend.
- The Applicant has provided limited evidence to the Tribunal outlining tangible strategies he has developed to prevent further offending behaviour. Whilst he states that he has cut back on alcohol recently, there is limited evidence that the triggers to the Applicant’s offending have been successfully identified and addressed. He appears to have received very little professional intervention in this respect. Particularly in light of the recency with which his offending has continued, the Respondent submits that there is insufficient evidence before the Tribunal to support a finding that the Applicant’s long-term offending behaviour has now been addressed.
- While the Respondent acknowledges the Applicant’s engagement with children and youth in his community, the fact that some benefits may flow to some children through continued contact with an Applicant does not overcome the presumption of a negative notice (see Grinrod’s case)... Further, in the Respondent’s submission, any benefit, which might be thought to flow to children from the Applicant’s engagement in regulated employment, does not to any extent mitigate the risk factors, which arise from his lengthy criminal history.
- In respect of the evidence of PC, GO, and HT, these witnesses were not aware of the Applicant’s history. Accordingly, in the Respondent’s submission their evidence carries limited weight, as they have not been fully informed of the matters before the Tribunal. It is not known whether their views would have changed if they were aware of the Applicant’s significant criminal history. PK also placed strong emphasis on the fact that Applicant had changed, but did not appear to be aware of his recent violent offences in 2013 and 2014.
- A number of witnesses were of the view that the Applicant was denied a fair trial respect of his rape offence. Further, SG attributed the Applicant’s persistent violent offending to the Applicant being unaware of his legal rights, and OL attributed his violence to racism and discrimination against the Applicant. The Respondent submits that this evidence is unable to be accepted by the Tribunal because it suggests that the Applicant should not be considered liable for offences of which he has been tried and convicted. The Applicant’s guilt has been established through the criminal process and the Tribunal is unable to go behind a finding of guilt of a criminal court (see Minister for Immigration and Ethnic Affairs v Gunor  FCA; 42 ALR 209 per Fox and 212 – 214). The Respondent also notes that the Applicant’s conviction for rape was upheld on appeal to the Court of Appeal.
- The Respondent submits that the evidence of OL should be tempered on account of her close personal relationship with the Applicant as his partner of many years, which may give rise to a lack of objectivity on her part.
- Regarding the written statement of SG, his evidence contains a number of errors, including that entirety of the Applicant’s history ought not to be considered in an assessment of the Applicant’s eligibility to hold a blue card. The witness has also cited the Criminal Law (Rehabilitation of Offenders) Act1968, which is specifically overridden by section 157 of the Act. The witness has also provided concerning statements, which seek to minimise the seriousness of the Applicant’s offences, including that the Applicant has made ‘silly mistakes’ and that the crimes committed between 1999 and 2009 are of a ‘less serious nature’. These crimes included assaults occasional bodily harm, three counts of common assault, and contravention of a domestic violence order. The Respondent submits that no weight placed on the assertion that these offences are of a “less serious nature”. Persistent violent offending by the Applicant raises significant concerns, as outlined in these submissions.
- In a recent decision by the Queensland Civil and Administrative Tribunal (see Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27). The Appeals Tribunal confirmed that the Act places a barrier to persons with a conviction for a serious offence from working with children, and the proper inference to draw must be that it would harm best interests of children for persons with convictions for a serious offence to work with children unless it is an exceptional case. It also confirmed that changes in a person’s circumstances simply amount to them living a law abiding manner as society expects functioning at a level of a person at their stage and age in a life, are generally considered to be the “ordinary course” and not exceptional. In the Respondent’s submission, despite the Applicant’s assertion that he is committed to changing “negative to positive” and his high level of involvement in his community, these considerations are not sufficient to demonstrate that the Applicant’s case is an exceptional one or to justify a departure from the presumption that a negative notice should issue.
- The Tribunal must consider the Applicant’s eligibility to work in any child -related employment or conduct a child -related business regulated by the Act, including foster and kinship care, irrespective of whether the Applicant intends to engage in such activities at this time.
- The Respondent in conclusion submits that the risk factors identified in the written material before the Tribunal raise significant concerns regarding Applicant’s ability to safeguard the safety and well-being of children placed in his care. The paramount consideration in making a decision as to a person’s eligibility for a blue card is the child’s entitlement to be cared for in a way that protects child from harm and promotes their well-being. The Applicant has a conviction for the serious offence of rape. He has demonstrated persistent violence and aggression over the course of his adult life.
- The Tribunal spoke to the Applicant about making submissions regarding the evidence that had been heard by the Tribunal and the legislation relating to his case. The Tribunal was of the view that there would be a benefit for the Applicant to see the Respondent’s written submissions before the Applicant needed to provide his written submissions. This would enable the Applicant to look at the submissions and get help with replying to the Respondent’s submissions. The Tribunal took this step because the Applicant made it clear during hearing that firstly English wasn’t his first language (although he spoke it well) and secondly he had problems about the language and processes of the civil court systems. The Applicant agreed to this process and was given the option to set how much time he needed. The Applicant elected to receive the same time as the Respondent received to provide written submissions namely a period of two weeks. The Tribunal accordingly made the following oral directions at the hearing:
The Tribunal directs that:
- The Respondent must file in the Tribunal two copies and serve on the Applicant one copy of their submissions by: 4.00 pm on 3 June 2016; and
- span style="">The Applicant must file in the Tribunal two copies serve on the Respondent one copy of his submission by: 4.00 pm on 17 June 2016
- The Tribunal subsequently sent out written directions to the parties, which were in the same terms as the oral directions, which had been made at the hearing.
- The Tribunal notes that the Applicant by providing written submissions is able to counter the submissions of the Respondent. This allows the Applicant to submit any mistakes that have been made by the Respondent, argue about the weight of evidence that needs to be given by the Tribunal about witnesses; look at the risks factors and positive factors; and set out how the Applicant sees the need of the matter looked by the Tribunal.
Discussion of the evidence
- The first point is that the Tribunal in relation to convictions follows the decision of Jackson v Commission for Children and Young People  QCAT188 which was noted:
The Tribunal in exercising its review function under the Queensland Civil and Administrative Tribunal Act 2009 cannot go behind the conviction.
As previously determined by the former Queensland Children’s Services Tribunal (‘QCST’) in Re FAA the Tribunal must accept the conviction as ‘conclusive’. In Re FAA, the former QCST considered an earlier Federal Court decision of Minister for Immigration and Ethnic Affairs v Gungor  42 ALR 209. The Federal Court determined that an administrative tribunal with ‘wide investigational powers’ that was not bound by the rules of evidence should review the conviction on its ‘essential factual basis’. The Federal Court [at page 212 per Fox J] determined:
While it stands, the conviction must be conclusive, so far at least has concerns a Tribunal reviewing a decision which takes the conviction and the Minister’s decision as a starting point. While I say conclusive, I mean conclusive as to the guilt of the accused in relation to the offence charged, and of the sentence imposed.
- The Tribunal is required by the legislation to look at the nature of the offence surrounding the conviction and punishment. This means that the Tribunal accepts the conviction and penalty and can look at the surrounding circumstances.
- The Tribunal accepts the Respondent’s submissions about risk factors contained in paragraph 65(i),(ii),(iv) and (v) of these reasons The Tribunal does not accept the risk factor at paragraph 65(iii) of these reasons. The evidence before the Tribunal was provided by the Applicant. This was that the Applicant entered into consensual oral sex and the charge was withdrawn. There is no evidence to the contrary to that given by the Applicant. The Tribunal does not accept this charge as a risk factor.
- The Tribunal accepts the Respondent’s submissions made in relation to protective factors contained in paragraph 69.
- The Tribunal accepts the Respondent’s submissions about risk factors contained in paragraph 70 i) except for the one charge which arose from a completely separate allegation for the reasons set out above.
- The Tribunal accepts the Respondent’s submissions in relation to paragraph 70 ii) that the rape offence is a serious offence and the passage of time does not detract from the gravity of that. The Tribunal is of the view that a long period of no criminal offences could be a positive protective factor even in a case with a serious offence. However because in this case the Applicant has an extensive criminal history over 33 years goes right up to 2014 it is not relevant.
- The Tribunal in relation to paragraph 70iv) makes the following points:
- In relation to paragraphs 35-37 of these reasons, regarding the conviction for Assault Occasioning Bodily Harm the Applicant stated that he had hit the complainant only once. The complainant’s account is of her being struck several times across a number of areas of her body. The injuries, which she sustained, show she had been hit many times and in different places. This was a serious assault of his niece whilst under the influence of alcohol. The Tribunal is of the view that the Applicant has clearly minimised his own actions in relation to this offence.
- The Tribunal is also concerned that it was not until the next day that the Applicant realised what he had done and apologised for his actions. This clearly indicates that his judgement at the time of the offence was clearly impaired by alcohol.
- The Tribunal notes in relation to the rape conviction that the Applicant had approached the victim’s family in a cultural way and apologised for his actions.
- The Tribunal also notes in relation to the conviction for Common Assault on 21 November 2013 that the Applicant states that he has approached the victim’s father to build a good relationship.
- The Tribunal also notes that he has supported women in relation to Domestic Violence but at the same time has a recent conviction for contravening a Domestic Violence Order.
- The Tribunal on the balance of probabilities accepts the submission of the Respondent that the Applicant has minimised or denied his culpability. In relation to his insight, it must be said at best that it is only partial. Whilst he states that he is attempting to act in a culturally appropriate way the offence against his niece and the offence that caused his wife and sisters to be in fear of him are not culturally acceptable. The Tribunal agrees with the Respondent that his partial insight represents a significant risk factor.
- The Tribunal accepts the Respondent’s submissions paragraph 70v) for the reasons set out above. The Tribunal accepts the Respondent’s submissions in relation to paragraph 70vii), viii), ix), and x).
- The Tribunal in relation to paragraph 70xi) notes that paragraph 33 of Grinrod’s case that the relevant Tribunal stated:
… any benefit might flow to children by having access to the applicant’s knowledge, experience or flair to children is of no relevance if there exists an unacceptable risk to children from future contact
- The Tribunal makes two points in relation to this case. The first is that the Tribunal has not accepted the “unacceptable risk” test since 2011 (see Commissioner for Children and Young People and Child Guardian v FGC  Q2CATA 291. The second point is that in Grinrod the Tribunal said that because it had determined that Mr Grinrod was an unacceptable risk the Tribunal could not take into account his positive work with children. The Tribunal is of the view in this case that Grinrod should be distinguished for this reason and the Applicant’s work with children should be seen as a significant positive protective factor in looking at whether an exceptional case exists.
- The Tribunal in relation to paragraph 70xii) agrees with the Respondent’s submissions that less weight should be given to these witnesses evidence because they were not aware of the Applicant’s criminal history.
- The Tribunal in relation to paragraph 70xiii) agrees with the Respondent’s submissions (see also paragraphs 76 – 77 of these reasons).
- The Tribunal in relation to paragraph 70xiv) and xv) agrees with the Respondent’s submissions.
- The Tribunal in relation to paragraph 70xvi) agrees with the Respondent’s submissions that the Act places a barrier to persons with a conviction for a serious offence from working with children. The Tribunal also agrees with the Respondent that changes to a person’s circumstances to a law abiding manner is to be considered in the “ordinary course” and not “exceptional”. What the Tribunal would say in relation to the Applicant is that the changes he has made as a leader of his community and all the work he has done for his community are beyond the “ordinary course”. This would constitute a significant positive protective factor. This could be the basis for an exceptional case if there were a cluster of other protective risk factors and few risk factors.
- The Tribunal in relation to paragraph 71 agrees with the Respondent’s submissions.
- The Tribunal would like to have seen evidence that the Applicant had sought out professional help to address the issues raised by his extensive criminal history and sort out the triggers for his behaviour and strategies to deal with those triggers. There was a big hole in the Applicant’s case because these issues had not been addressed in the material before the Tribunal.
- The Tribunal would also have liked to have seen a health professional report from a psychologist with a forensic background. The Tribunal agrees with the Applicant that his history shows numerous offences involving violence and aggression. A psychologist could have done a risk assessment. This would have been a valuable piece of independent professional evidence dealing with the risk factors. The Applicant’s evidence is that he is a changed man. A psychologist would be able to help him set out positive protective strategies he has adopted and would be able to confirm how his violent history had abated. There is a wealth of positive evidence from the witnesses supporting the Applicant’s case. These show his ability to support his own community and the benefits he has provided to children. A psychological report could have addressed these issues.
What is an “exceptional case”?
- The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
- The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
- The paramount consideration in an employment screening decision is a child entitlement to be cared for in a way that protects the child from harm and promotes child well-being.
- The decision under review was whether the case is an exceptional case such that the presumption prescribed by section 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should not be issued to Applicant.
- In order to issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of, that an ‘exceptional case’ does exist.
- The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
- The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an ‘exceptional case’ exists, ensure that the welfare and best interests of children is its “paramount consideration”.
- It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to “any general rule”. The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher  stated:
The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.
- The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, that there are exceptional circumstances that it would be in the best interests for children for a blue card to be.
- The Tribunal repeats its earlier comments that it was disappointed that the Applicant failed to provide written submissions in support of his case.
- The Tribunal saw the following as significant risk factors:
- the Applicant’s offending spanned a period of approximately 33 years and contained 65 offences for various offences, the Applicant receiving a range of penalties, including 11 imprisonment orders;
- the conviction for rape in 1997 is a serious offence under the Act;
- the Applicant’s criminal history includes numerous offences pertaining to violent and aggressive behaviour;
- the Applicant’s most recent offence was in 2014. This involved a contravention of a Domestic Violence Order where his actions put his wife and sisters in such fear that the police were called and he was arrested;
- there would appear given his extensive history to be a high risk of recidivism in the Applicant’s case.
- the Applicant has in the view of the Tribunal minimised his responsibility for his own actions in relation to his criminal offences;
- the Applicant has shown limited insight into the consequences of his actions on other parties; and
- the Applicant provided limited evidence to the Tribunal of tangible strategies he has developed to prevent further offending behaviour.
- The Tribunal in relation to the evidence of PC, GO, HT and KP is of the view that they did not have a good understanding of the Applicant’s criminal history and accordingly their evidence carries limited weight.
- The Tribunal sees the following factors as significant positive protective factors:
- the Applicant’s leadership role for his own community;
- the positive impact that the Applicant has had on young people;
- the Applicant’s involvement in the healing foundation;
- the Applicant’s positive contribution to his own community in relation to a range of different roles. The Applicant’s oral and written evidence reflects that he is highly involved in the field of indigenous affairs.
- In a recent decision by the Queensland Civil and Administrative Tribunal (see Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27). The Appeals Tribunal confirmed that the Act places a barrier to persons with a conviction for a serious offence from working with children, and the proper inference to draw must be that it would harm best interests of children for persons with convictions for a serious offence to work with children unless it is an exceptional case.
- The Tribunal is of the view that the risk factors raise serious concerns such that the positive protective factors do not on the balance of probabilities establish an “exceptional case” for reasons set out above.
- The Tribunal is of view that the evidence presented by the Applicant does not establish an exceptional case such that Tribunal should overturn a decision of Respondent.
- The Tribunal has commented on the gaps in the Applicant’s case and the further evidence that it would like to see in relation to any future application.
- The Tribunal is of the view that this decision should be published including the name of the Applicant in accordance with s66 of the Queensland Civil and Administrative Tribunal Act.
- The Tribunal confirms the decision of the Public Safety Business Agency on 11 November 2015 to issue a negative notice to SSM.
- Published Case Name:
SSM v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
SSM v Chief Executive Officer, Public Safety Business Agency
 QCAT 265
25 Jul 2016