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- Unreported Judgment
Sargent v Chief Executive Officer, Public Safety Business Agency  QCAT 333
Daryl Scott Sargent
Chief Executive Officer, Public Safety Business
13 September 2016
19 September 2016
BLUE CARD – EXCEPTIONAL CASE – where applicant has a criminal history – where none of the offences were serious or disqualifying – criminal history of drugs and disorderly conduct, but no direct impact upon children – where applicant’s positive notice was cancelled by the Public Safety Business Agency – where review sought so the applicant can continue in non-child related employment – where the protective factors outweigh the risk factors – whether the applicant’s case is exceptional
PUBLICATION ORDER – where it is not contrary to the public interest to identify the name of the applicant
Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 167, 221, 360
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 24, 66
Commissioner for Children and Young People and Child Guardian v. Maher & Anor  QCA 492
Volkers v Commission for Children and Young People and Child Guardian  QCAT 243
Commission for Young People v (2002) 56 NSWLR 476
Daryl Scott Sargent
John J. Thompson, counsel for the respondent
REASONS FOR DECISION
What is this application about?
- The applicant was born in 1971 and grew up in South Australia before moving to Queensland in his 20s. He has a number of criminal convictions that primarily relate to illicit substance use and public order matters. His criminal history is lengthy, spanning approximately 17 years until May 2012, but is punctuated by lengthy periods of time where he did not suffer convictions.
- Approximately 9 years ago, the applicant reskilled and began work as a disability support worker. He began work with a local support agency and in 2007, as a work requirement, he obtained a blue card. Given that his work did not actually require him to work with children, he did not renew it when it expired.
- Later, the applicant’s employer was effectively taken over by Endeavour Foundation. Endeavour Foundation adopted a policy requiring all staff to hold a blue card even though, as was the case with the applicant, his work was not child-related as such.
- That caused the applicant to apply for blue card status once again.
- On 8 April 2016, Chief Executive Officer, Public Safety Business Agency (Blue Card Services) advised the applicant that it had rejected his application for a blue card. PSBA rejected the application due to concerns relating to the applicant’s criminal history, particularly in the context of drug-related offences. The applicant requests this tribunal review the decision.
Basic principle – the best interests of children
- The tribunal must consider that the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing. The tribunal has regard to this principle in the context of reviewing child related employment decisions.
- A blue card authorises a person to work with children in any environment, whether supervised or not.
- The screening of persons employed in particular employment or carrying on particular businesses is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland.
The determinative framework contained within the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act)
- If Blue Card Services refuses to issue a blue card to a person, that person may apply to the tribunal for a review of the decision.
- The tribunal ‘steps into the shoes’ of Blue Card Services and makes a decision based on questions of law and questions of fact. The tribunal does not review the decision-making process of Blue Card Services but rather makes a fresh decision. In doing so, the tribunal hears matters in a relaxed and informal manner. The rules of evidence do not bind the tribunal.
- The tribunal applies the same law as Blue Card Services in considering an application for the issue of blue card to a person.
- In a proceeding for a review of a reviewable decision, the tribunal may—
- confirm or amend the decision; or
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
- The tribunal does not issue blue card notices, but if it does set aside the decision of the decision-maker and substitute its own decision, it can:
- direct Blue Card Services to
- issue a positive notice to an applicant (in which case an applicant will receive a blue card); or
- issue a negative notice to an applicant (in which case the applicant will not receive a blue card); or
- declare whether this is, or is not, an exceptional case.
- In my view, the better course of action is for the tribunal to declare whether this is or is not an exceptional case, rather than direct Blue Card Services to issue either form of notice.
- The tribunal must be satisfied it is in the best interest of children to declare that this is not an exceptional case.
- Often, as in this case, the tribunal must make a decision where the applicant has suffered a criminal conviction or convictions.
- In this case, the applicant has a number of convictions for non-serious offences. The default position is that Blue Card Services must issue a positive notice (that is, grant the applicant a blue card), unless the case is exceptional.
- However, in either instance, the decision maker must consider whether the case is exceptional. A finding that a case is exceptional will result in a reversal of the default position.
- The case is exceptional if the decision maker is of the view that it is not in the best interests of children to issue an applicant with a positive notice.
- In assessing whether the case is exceptional, the tribunal must consider the objects of the Act and the matters included in the Act – as well as anything else the tribunal regards as relevant to the decision.
- It follows that the tribunal may and should consider things other than convictions.
The position in this case within the determinative framework
- The tribunal must consider whether this is an exceptional case.
How does the tribunal determine whether this case is exceptional?
- Courts and tribunals have not established any general rules with respect to what is an exceptional case. Each case is determined on its merits. The tribunal should not take a prescriptive approach. In Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492 her Honour Justice Philippides described the correct approach as one where the decision-maker must consider an application in each particular case, unhampered by any special meaning or interpretation.
- Based on this approach, I must consider whether this case is out of the ordinary, unusual or special. Only if it is, could I appropriately regard the case as exceptional.
- The tribunal is not to determine the question predicated on the basis that there is to be no risk. That is not the appropriate test. The relevant function of the tribunal is to undertake an analysis and evaluation of risk. The weight the tribunal applies to each relevant factor is dependent upon the circumstances of the individual case and may vary accordingly.
- In the context of determining whether it is in the best interest of children to find this case exceptional, the tribunal should consider a number of factors. Of great importance are the protective factors that exist, relevant to the applicant. The tribunal must identify and balance protective factors against risk factors.
What protective factors exist in this case?
- The applicant’s protective factors are:
- he no longer is associated with illicit drugs
- he is no longer associated with people who themselves are associated with illicit drugs
- he has held down his position as a disability support worker for 9 years and is very well regarded
- he does not actually work with children
- The applicant called witnesses who gave glowing testimony to his abilities and character. His supervisor gave evidence to the effect that she was aware of the applicant’s criminal history, yet has no hesitation in continuing to offer employment to him. She gave testimony to the fact that she has never seen him under the influence of drugs or alcohol. She has never been concerned about his employment abilities. Within the disability community that they serve, the applicant is regarded as a giving and caring person. The people with whom he deals speak of him highly and he is well regarded by his employer.
- A glowing witness was the mother of a disabled son. She was a very impressive witness and passionate supporter of the applicant. She spoke of the applicant as a person who was open and honest about his charges. She has never seen him under the influence of drugs or alcohol. She would not tolerate any involvement with a carer who had adverse effects from the consumption of substances. She was confident that if the applicant did have an issue with the use of illicit substance, she would detect this fact. She spoke of the applicant as a good person, with a caring and empathetic personality. She gave evidence that the applicant understands the needs of disabled people and not everyone in his position has that ability. She acknowledged that good decision-making is important when dealing with vulnerable people and she believes that the applicant is a person who is able to make good decisions.
What risk factors exist in this case?
- In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.
- The risk factor in this case is that the applicant may revert to a life that involves substance abuse.
- Given that the employment of the applicant does not involve direct contact with children, there is less likelihood of materialisation of a risk event in this case.
The applicant’s criminal history
- When considering the effect of the applicant’s criminal history it is reasonable to consider the low penalty imposed by the courts with respect to the offending behaviour. That is a strong indication that the courts regarded the offending behaviour as of low-level criminality. It is also important that none of the offending behaviour involved children as victims and there is nothing in the evidence to suggest that children were adversely affected as a result of the offending behaviour.
What is the standard of proof?
- The tribunal is to determine the question on the balance of probabilities.
- The tribunal is mindful of the fact that a blue card is ‘fully transferable’. The holder of a blue card can undertake a wide range of child related activities. The blue card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children.
- The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child related activities.
- The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children.
- The tribunal does not consider this to be an exceptional case.
- The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice.
- The offending behaviour did not involve children. The tribunal determines that it is appropriate to publish this decision.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.
 The decision of the tribunal is said to be ‘the correct and preferable decision’ -Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.
 A ‘serious offence’ is defined in is 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).
 The Working with Children (Risk Management and Screening) Act 2000 (Qld) also provides for ‘disqualifying offences’ however a person who suffers a disqualifying offence conviction becomes a ‘disqualified person’ and may not make an application for a blue card. Accordingly, I have not considered that type of offending behaviour within the context of this summary of the determinative framework under the Act.
 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2).
 Commissioner for Children and Young People and Child Guardian v Maher and Anor  QCA 492.
 Volkers v Commission for Children and Young People and Child Guardian  QCAT 243, at paragraph 58.
 Commissioner for Children and Young People and Child Guardian v. Maher & Anor  QCA 492.
 Commission for Young People v (2002) 56 NSWLR 476.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2).
- Published Case Name:
Sargent v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
Sargent v Chief Executive Officer, Public Safety Business Agency
 QCAT 333
19 Sep 2016