NPJ v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 523
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- Unreported Judgment
- NPJ v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 523
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NPJ v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 523
NPJ v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 523
CITATION: | NPJ v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 523 |
PARTIES: | NPJ (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML118-15 |
MATTER TYPE: | Children’s matters |
HEARING DATE: | 27 October 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Quinlivan |
DELIVERED ON: | 21 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Recent disciplinary information, lack of criminal record, lack of insight, applicant former refugee, previous warning about responsibilities, cultural issues Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES:
APPLICANT: | NPJ |
RESPONDENT: | Public Safety Business Agency
|
REPRESENTATIVES:
APPLICANT: | Self |
RESPONDENT: | Natalie Taylor, In-house Counsel |
REASONS FOR DECISION
- [1]NPJ (the applicant) is a 43yo man from Burundi, East Africa. During his childhood his country was in civil war, so he migrated to Tanzania. At 22yrs he got married to his current wife, in a refugee camp. They have 5 children ranging in age from 20 – 4 years old.
- [2]The family migrated to Australia in 2007. Four of their children were born in the Refugee camp and the youngest child was born in Australia. They all attend church regularly and are part of the local Burundian Community Group.
- [3]Since coming to Australia the applicant has made efforts to improve himself by learning English, completing a construction course, undertaking a financial literacy program, an Industry Pathways program and a first aid course.
- [4]He has also completed a course in child services and fulfilled the requirements for a Diploma of Early Childhood and Care.
- [5]The Applicant has not been charged or convicted of any offence but does have disciplinary information.
- [6]The Applicant was issued with a positive notice and a Blue card on 4 July 2014. On 16 February 2015, Blue Card Services were advised by the Department of Education, Training and Employment that the Applicant was the subject of disciplinary information and had been issued with a prohibition notice.
- [7]On 13 March 2015 the Department provided the following information:
- On 20 January 2015 the Applicant was found to have left children who were in his care without adequate supervision in a public place without alerting an appropriate adult.
- The Applicant left the primary school aged children in a public library while he left the premises, returned after more than 40 minutes.
- He knowingly misled the Investigating Officers in his version of events, denied leaving the library premises at any time and attempted to minimise his unacceptable conduct.
- [8]Previously on 11 April 2014 the family day care service which engaged the applicant as an educator had informed him in writing of a first and final warning about leaving children unattended at the same library on 10 April 2014.
- [9]What is the legal position?
- [10]The issue to be determined is whether the applicant's case is an “exceptional” one in which it would not be in the best interests of children for him to be issued with a positive notice and a Blue card. Section 221 of the Working with Children (Risk Management and Screening) Act 2000 provides that the applicant’s positive notice must be continued unless the Tribunal is satisfied that it is an ‘exceptional’ case in which it would not be in the best interests of children to do so.
- [11]In deciding whether the case is an exceptional one, the Tribunal, must have regard to the matters set out in section 228(2) of the Act.
- [12]The section provides that if the Chief Executive is aware of disciplinary information then the Chief Executive must have regard to the following:
- .(a) the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order
- .(b) any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in paragraph (a), and the reasons for the decision or order
- .(c) the relevance of the disciplinary information to employment, or carrying on a business, that involves or may involve children
- .(d) anything else relating to the disciplinary information that the chief executive reasonably considers to be relevant to the assessment of the person.
- [13]The Tribunal was provided with a copy of the Prohibition Notice directed to the Applicant on dated 2 February 2015. The Notice sets out the findings and Reasons for Decision of the Acting Deputy Director General, Early Childhood Education and Care, Department of Education, Training and Employment.
- [14]The evidence consisted of interviews with the Applicant, CCTV footage and evidence from staff at the library. In particular the Department noted that documents inspected at Future Kids Family Day Care dated 10 April 2014 and 18 May 2012 demonstrate that the Applicant was aware that it was not acceptable to leave children unattended.
- [15]The Chief Executive points out that the disciplinary information from the Department contains allegations that the applicant held a position of trust, responsibility and authority in relation to children and his conduct leaving them unattended in a public library without adequate supervision constitutes a serious breach of the position he held.
- [16]Further the material indicates that the incident was not isolated as the applicant had previously received a written warning for leaving children unattended in the same library. The Chief Executive also submits that the applicant’s conduct demonstrates a complete disregard for the procedures and requirements designed to ensure the safety and well-being of children.
- [17]The Chief Executive contends that, as the holder of a Blue card and a positive notice, the applicant is expected to behave in a manner that protects a child from harm and promotes their well-being. Adults who provide services to children are expected to ensure that they act in the best interests of children at all times and ensure that they are not exposed to situations that may be harmful to their physical, emotional or mental well-being.
- [18]The Chief Executive submits that the Department’s decision to issue a prohibition notice to the applicant indicates that they considered that there may be an unacceptable risk of harm to a child or children.
- [19]After the hearing on 27 October 2015, the Applicant provided information from the Department of Education and Training confirming that the prohibition notice which caused the Respondent to cancel his positive notice and Blue card has been cancelled.
- [20]In support of his request to have his positive notice and Blue card reinstated, the Applicant provided a Statement of Attainment from ACE Community Colleges indicating that he had attained competency in 2 Units titled “Work legally and ethically” and “Ensure the health and safety of children”.
- [21]The Applicant also provided a copy of an enforceable undertaking as required under section 180 of Education and Care Services National Law (Queensland).
- [22]The Chief Executive acknowledged that the lifting of the prohibition notice was positive and a factor in the applicant’s favour but that it did not entirely mitigate the risks in this case. The Chief Executive emphasised that their position had not changed and confirmed their view that an exceptional case still exists in which it would not be in the best interests of children and young people for a positive notice and Blue card to issue.
What steps has the applicant taken to address the issues raised in the prohibition notice from the Department?
- [23]The Applicant provided a number of personal references from his supporters. His wife attended the hearing to give evidence on his behalf. The applicant also gave evidence. He presented as naïve and unsophisticated. At times he gave the impression that he was trying to be honest but that he was not sure what all the fuss was about.
- [24]He explained that in his culture and other countries 16yo women have babies and care for them. In spite of the courses he had undertaken, he appeared to have difficulty understanding why his daughter was not suitable to watch the children he was caring for in his absence.
- [25]In relation to the incident on 10 April 2014 the Applicant said that he attended the library with 3-4 children in his care. His wife was also at the library with 3-4 children in her care. The children were hungry and so he asked his wife who was also a support educator to watch the children in his care while he went to get them some food. He went to a nearby food shop and both he and his wife estimate that he was away about 10 minutes.
- [26]While he was away one of the children ran out of the library and had to be retrieved by a security guard. The library staff then notified his employer.
- [27]The next day the Applicant was asked to attend at his employer’s office. He explained what had happened the previous day and was handed a “First and Final Warning Letter”. He claims that the contents of the letter were not explained to him and that he did not understand what the extreme consequences referred to in the letter meant and what the penalty or consequences were if he left the children with someone who was not approved.
- [28]In his oral evidence the Applicant admitted the details regarding the incident in January 2015. He explained that at the time he was unwell but he still felt that he was able to care for the children. He didn’t feel he had done something wrong. Regarding leaving the children in the care of his daughter, he now understands that it was wrong because the “law doesn’t allow it”.
- [29]The Applicant stated that when he left the children in the library he thought it would be safe to do so. He admitted leaving the children for approximately 40 minutes. He stated that he was feeling unwell and that he needed to collect a script from the doctor.
- [30]The Applicant’s daughter provided a statement confirming that her father had asked her to keep an eye on the children. She further stated that she had been approached a library worker who asked her if she was supposed to be looking after the children but she denied that she was because she was scared and intimidated by the worker.
- [31]The Applicant submitted that because his daughter was looking after the children “there was no risk to the physical well being and safety of the children.” He acknowledged that he should never have left the children with an unqualified supervisor and said that it would not have occurred if he had not been sick. At the time the Applicant had been working in Child care for 3 years.
- [32]The Applicant said that in the future, his strategies would include taking appropriate steps to ensure the children were properly supervised including taking any child who was likely to run away with him, bringing food so that there would be no need to go to the shop and if he were sick he would call the parents first, call his co-ordinator and in an emergency find someone appropriate.
What is the Chief Executive’s position?
The Chief Executive provided the following submissions for not allowing the positive notice to continue
- The disciplinary notice relates to conduct that is relatively recent being January 2015.
- The applicant was a mature adult at the time that the incidents occurred.
- The applicant was an educator at a family day care service. He was responsible for the care and supervision of young children and his actions constituted a breach of trust, authority and responsibility for the position he held.
- The applicant left the children without proper supervision for more than 40 minutes. His actions exposed the children to potentially significant danger with a risk of a child leaving the library or being removed or harmed by a member of the public. This conduct showed a complete disregard for the safety and well-being of the children.
- The applicant’s behaviour is aggravated by the fact that he had previously been warned about another incident at the same library in April 2014. The Respondent argues that the Applicant should have been aware of his obligations to ensure that children he was responsible for should be supervised at all times.
- The applicant knowingly misled the authorised investigators and attempted to minimise his unacceptable conduct as set out in the Reasons for the Prohibition Notice.
- The applicant’s daughter was 16 to 17 at the time of the incidents. She admits to leaving the children unattended and it was submitted she was not sufficiently mature to be responsible for the care and control of the children and the applicant should have alerted an appropriate adult.
- The applicant demonstrated a lack of insight into his behaviour and an unwillingness to accept full responsibility for his actions.
- The applicant left children unattended when he should have known he would be away for an extended period of time.
- The applicant did not follow the rules and guidelines for a situation where he became sick and was unable to care for the children.
- While the applicant claimed he is remorseful, he had not specified any strategies he has implemented to prevent a recurrence of similar behaviour in the future.
- None of the applicant’s referees indicated any knowledge of his disciplinary information.
- The hardship the applicant and his family will suffer as a result of the loss of his Blue card is not a relevant factor.
- Overall the material reflects adversely on the applicant’s ability to promote and protect the best interests of children in his care and provide a safe environment for them.
- The effect of continuing the applicant’s Blue card is that he would be able to work in any child related employment or conduct any child related business regulated by the Act. Further there is no power to issue a conditional Blue card. A Blue card is fully transferable across all areas of regulated employment and business.
Applicant’s submissions
- [33]The Applicant expressed shock at the position taken by the Respondent. He questioned if his application had been a waste of time. He stated that he thought other people would be merciful if he told the truth. He claimed that he had admitted his mistake and asked for forgiveness. He said that he had complied with the Department’s direction and undertaken further education.
- [34]He acknowledged that “a big wrong” had been created and he accepted that he had made a mistake but he will not make the mistake again. He will also advise others in his community about what happened.
- [35]The Applicant said that he would follow the Australian law about Blue cards and will never leave children with anyone who is not a Blue card holder and he will always contact his manager or supervisor for clarification and support. The question remains at to whether the Applicant does understand the system.
Respondent’s submissions
- [36]The Respondents submits that in these matters the best interests of children is the paramount consideration. The law is not there to impose additional punishment but to protect children from harm.
- [37]The legislation is characterised as being ‘protective” which means that anyone entrusted with the care and protection of children must demonstrate proper judgement at all times.
- [38]The standard of proof upon which the Tribunal must be satisfied that an “exceptional case” exists is the balance of probabilities. Section 221 of the Act provides that the Applicant’s positive notice must be continued unless it is an exceptional case in which it would not be in the best interests of children to do so.
- [39]In Commissioner for Children and Young People and Child Guardian v Maher and Anor[1], the Queensland Court of Appeal, accepted that the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved. The Court of Appeal endorsed the approach taken by the former Children Services Tribunal of identifying and balancing potential risk factors and potential protective factors when considering circumstances amount to an exceptional case.
- [40]The Respondent contends that the protective factors for the applicant include:
- He has demonstrated remorse for leaving the children unattended;
- He has liaised with the Department and undertaken additional education to ensure that he has a full understanding of his responsibilities.
- He has completed 2 appropriate courses.
- When giving evidence, he was able to say what he would do if a similar situation arose in the future.
- He appeared to have engaged in some self-reflection and was able to identify some risks that might arise by leaving children unattended.
- He provided references as to his good character.
- There was evidence of his positive interactions with children, which was supported by his wife.
- [41]The Respondent also identified a number of risk factors as follows:
- The Applicant had left children in his care unattended for an extended period of time, in a situation where it was not appropriate for him to ask his 17yo daughter to take responsibility in view of the potentially serious consequences.
- It appeared from the Applicant’s oral evidence that while he recognised the risks, he did not accept that the children were at risk;
- The Applicant demonstrated, in his oral evidence, a tendency to play down his responsibility and minimise the potential consequences;
- The Applicant was not clear about any potential risks and his ability to recognise them;
- The applicant demonstrated poor decision making ability by asserting that children being hungry was an emergency situation and that leaving children with his daughter was reasonable in spite of recent training.
- The Prohibition notice that has now been lifted was issued because the Department considered the applicant to be “an unacceptable risk” to continue as an educator.
- The Applicant’s behaviour is recent and his training is recent.
- The Applicant was not open and honest in his dealings with the Department and he attempted to cover up his conduct leading to a concern that his conduct might continue if a similar situation arose.
What is the Outcome?
- [42]This is a matter where the applicant has no criminal history but he is the subject of disciplinary information as a result of the incident in January 2015. At the time the Applicant was an educator at a Family Day Care service. He is a mature adult with a wife, one adult child and 4 younger children.
- [43]The evidence indicates that he is a man who is highly respected in his community. In 2014 he received an Award for his Community Service contribution. At the hearing he conducted himself in a considered and appropriate manner.
- [44]At the time of the incident he was responsible for the care and supervision of children and it is alleged that he breached his position of trust and responsibility.
- [45]He left the primary school children in a public library for at least 40 minutes without proper care. As a result, it is submitted that he exposed the children to the risk of significant harm. Unfortunately, less than 12 months previously he was involved in a similar situation and received a first and final warning from his employer regarding his behaviour.
- [46]At the time of the original incident in April 2014, he was specifically advised that his actions were “totally unacceptable” and if a similar situation arose in the future there would be “extreme consequences”.
- [47]On 2 February 2015 the Department issued the applicant with a Prohibition notice that prevented the applicant from providing education to children for an Education and Care service; being engaged as a supervisor, educator, contractor or staff member of, or being a volunteer at, an Education and Care service; and carrying out any other activity relating to Education and Care services. That notice has now been cancelled.
- [48]I make the following findings:
- It is not an excuse for the Applicant to say that the letter was not explained to him. I accept that there are significant cultural issues present but the Applicant should have taken steps to confirm that he was aware of his obligations to ensure that the children in his care were properly supervised by an appropriate adult at all times.
- The Applicant has not demonstrated insight into his behaviour. He explained that he didn’t think anything bad would happen because there were other parents around and there was only one entrance and exit to the library. In the context of his duties and responsibilities, his explanation is not acceptable.
- It is not sufficient for the Applicant to say that he will not to do the same thing in the future because it is the law. He has not adequately demonstrated an understanding of the risks involved in leaving children not properly supervised.
- Given the scope of activities that the Applicant could engage in if granted a Blue card, the fact that he is remorseful for his actions is not sufficient without some clear indication of the steps he would take to ensure that a similar situation would not occur in the future.
- The Applicant has not shown the skills and knowledge necessary to ensure that his past mistakes will not be repeated and further that he fully comprehends his role and responsibilities in caring for children. I am not satisfied that he can make appropriate decisions at all times and that he will implement his new skills and strategies in the future.
- [49]I therefore find that this is an exceptional case in which it would not be in the best interests of children for the Applicant to be granted a positive notice and a Blue card.
Non-publication order
- [50]The Tribunal has the power under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 to prohibit the publication of information that might enable a person or people such as NPJ, his wife and children to be identified in circumstances where it would not be in the interests of justice to identify their names. The applicant has school age children and his wife still works in the Child Care field.
- [51]The interests of justice require the Tribunal to make a non-publication order in relation to NPJ, his wife and children. The Tribunal is satisfied that there is no public interest served by disclosing his name and his wife’s name in circumstances where disclosure of their names would identify their children.
Orders:
1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 24 April 2015 to issue a negative notice to NPJ is confirmed.
2. The Tribunal prohibits the publication of the name of the applicant and any details likely to identify his wife and his children.
Footnotes
[1] [2004] QCA 492