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Murray v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 552

Murray v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 552

CITATION:

Murray v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 552

PARTIES:

Daniel Shawn Murray

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML221-14

MATTER TYPE:

Childrens matters

HEARING DATE:

6 March 2015

HEARD AT:

Southport

DECISION OF:

Member Joachim

DELIVERED ON:

31 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Public Safety Business Agency to issue a negative notice to Daniel Shawn Murray is set aside and a positive notice is to be issued for him.

CATCHWORDS:

WORKING WITH CHILDREN – BLUE CARD – where applicant has a conviction for a serious offence – where applicant wishes to work with people with disability – whether case is exceptional

Child Protection Act 1999 (Qld), s 9

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 226, s 360

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027

Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289

APPEARANCES:

APPLICANT:

Daniel Shawn Murray

RESPONDENT:

Public Safety Business Agency represented by Peter Reid

REASONS FOR DECISION

  1. [1]
    Mr Daniel Murray is 35 years old and lives on the Gold Coast. He lives with his partner of four years.
  2. [2]
    In recent times his employment consisted of working with people with disability as a direct support worker in residential care.
  3. [3]
    The Public Safety Business Agency (‘PSBA’) issued him with a negative notice on 4 November 2014. This means he cannot hold a blue card to work with children.
  4. [4]
    Mr Murray seeks a review of this decision so he can work with children with disabilities.
  5. [5]
    Mr Murray has multiple entries on his criminal history but the one of concern in this matter involves a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’).
  6. [6]
    He was convicted on 24 April 2003 of two charges of sexual assault which occurred on 3 February 2002. He was 22 years old at the time. The victim was a 19 year old female. This constitutes a serious offence. He was also convicted that day of deprivation of liberty and dangerous operation of a motor vehicle.
  7. [7]
    As he has a conviction for a serious offence he must be issued with a negative notice unless his is an exceptional case such that it would not harm the best interests of children for him to have a positive notice and blue card.
  8. [8]
    The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.[1] The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act. This outlines what I have to consider in deciding if an exceptional case exists.
  9. [9]
    The purpose of the review is to produce the correct and preferable decision.[2] The Tribunal may:
    1. confirm or amend the Agency’s decision;
    2. set it aside and substitute its own decision; or
    3. set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.[3]
  10. [10]
    Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
  11. [11]
    I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
  12. [12]
    The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act.
  13. [13]
    Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
  14. [14]
    Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
  15. [15]
    Therefore in order to issue a positive notice to Mr Murray I need to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case exists.

Why the applicant say he should have a blue card

  1. [16]
    Mr Murray provided a life story to the Tribunal in which he outlines how his father introduced him to stealing from building sites. He also outlined his work history and it would appear that he has had employment virtually uninterrupted since leaving school.
  2. [17]
    He also noted that he was led astray whilst working at a job at Suncity.
  3. [18]
    He advised the Tribunal he does not interact with undesirables anymore.
  4. [19]
    In relation to the sexual assault he acknowledged that he did the wrong thing and is very remorseful. He disputes some parts of the police account on the basis that it sounded a lot worse than it seemed.
  5. [20]
    He acknowledged that he pushed things too far but he wanted the matter over in the Court and on legal advice decided to plead guilty and not challenge any of the facts.
  6. [21]
    He stated it was not a proud moment in his life and he regrets the incident deeply.
  7. [22]
    The incident involved Mr Murray making unwanted sexual advances to a girlfriend of one of his friends to whom he offered a lift.
  8. [23]
    He acknowledged that he touched her on the breasts and that he sucked her on the breast. He acknowledged that the young woman involved would have been terrified as his advances were totally unwarranted and that she pulled away from him when he touched her.
  9. [24]
    From March 2014 Mr Murray was involved in working with House with No Steps (HWNS) and Direct Care Resources (DCR) both disability service providers. He referred in particular to his work as providing support for people with an intellectual disability who have challenging behaviours.
  10. [25]
    He works shift work including sleep overs.
  11. [26]
    He is very committed to this work and intends to do disability studies.
  12. [27]
    He advised the Tribunal that he had not sought counselling in relation to the events of 2002 because he did not think he had an issue requiring rehabilitation.
  13. [28]
    He submitted that he had positive references and that since he has left DCR they have employed two people in his position both of whom have left because of the challenging nature of the work.
  14. [29]
    One referee, Yvon Joseph, a coordinator with HWNS described the applicant as having done a lot of positive work with the person he supported resulting in excellent outcomes. She also referred to his good judgment and a mature outlook. Another referee, his line manager, described Daniel’s work as sensational and described his work involving dealing with all types of behaviour ranging from physical aggression to mental illness. He also described Daniel as working very well with all our services users.
  15. [30]
    He indicated to the Tribunal that he had matured and that looking after people with disability is a big responsibility.
  16. [31]
    He indicated that the only stress in his life is financial but noted that he did not behave in an untoward manner when he lost his job when he was issued with a negative notice.
  17. [32]
    He indicates that he likes to go the gym, socialise with friends and go for runs on the beach.
  18. [33]
    He also indicated that whilst he does not do voluntary work he is continually helping out friends with various aspects of their lives.
  19. [34]
    He emphasised that he was not a threat to children and he had no offences against children.
  20. [35]
    He submitted a report from Rachel O'Connor a registered psychologist who was not available for cross-examination.
  21. [36]
    Ms O'Connor concluded that she did not believe he would be a risk if his blue card was approved. It does not appear as if Ms O'Connor conducted any psychometric testing but has relied on interview for her assessment.
  22. [37]
    Sergeant Neil Parker who is brother in law to the applicant indicated that he worked in a child abuse unit for over 10 years as a detective sergeant.
  23. [38]
    He reported that since the time he has known the applicant he has seen him grown and develop into a responsible and reliable member of society. 
  24. [39]
    He indicated his personal experience with the applicant’s work ethic from the time he was employed in a family business over an eight year period. He noted that the applicant is a trustworthy and honest person who is always willing to help people in need.
  25. [40]
    He was aware of the applicant’s criminal history.
  26. [41]
    Sergeant Parker indicated that he trusts the applicant with his four year old daughter.
  27. [42]
    Sergeant Parker indicated he was not always a fan of the applicant who appeared to have an issue with authority when he first met him. He considered that the way that Mr Murray has turned his life around is exceptional. He stated he has his full trust.
  28. [43]
    Sergeant Parker said that when Daniel was given responsibility in a family business he saw a change in Daniel’s attitude towards life and he has 100 per cent faith in him.
  29. [44]
    He considered himself to be a mentor for Mr Murray.
  30. [45]
    In his closing submissions Mr Murray stated that the PSBA’s assertions that he was not remorseful and did not feel for the young woman was not true. He does feel for her and he accepts full responsibility.
  31. [46]
    He noted that to be an exceptional case is a grey area. He said he has a mentor, he has made huge changes in his life and it is not just the passage of time upon which he relies.
  32. [47]
    He notes that he made some stupid decisions but he has now gained trust and respect from the people who surround him. He is committed to helping disadvantaged people including people with disability and young people.
  33. [48]
    He considered it exceptional that a police officer of such long standing would be supporting him unequivocally and allowing him to babysit his daughter unsupervised given his background.
  34. [49]
    He submitted this should hold considerable weight and as should his references who cast him in a very positive light.

The View of the Public Safety Business Agency

  1. [50]
    In the statement of reasons for refusing Mr Murray a blue card the PSBA’s Deputy Chief Executive Officer states that he was not satisfied that this was an exceptional case in which it would not harm the best interests of children for a positive notice to be issued as a result of the following:
  • The applicant demonstrated a complete disregard for the complainant’s emotional and physical wellbeing during the sexual assault and deprivation of liberty in 2002.
  • Whilst Mr Murray was a young man the offending may be mitigated to some extent by his youth or immaturity the serious nature of the offending reduces any mitigation.
  • In a recent decision by QCAT the Appeals Tribunal[4] confirmed that the Working with Children Act places a barrier to persons with a conviction for a serious offence from working with children. The Appeal Tribunal considered that the proper inference to draw must be that it would harm the 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 which simply amount to them living in a law abiding manner as society expects and functioning at a level expected of a person at their stage in life are generally considered to be the ordinary course and not exceptional.
  • In coming to his decision the Deputy Chief Executive Officer acknowledged the positive steps Mr Murray had taken towards professional and personal development including his demonstrating some remorse, his claiming to have removed himself from bad influences; his seeing a psychologist to develop conflict resolutions skills, his articulating strategies he would employ if he was in a difficult situation in future such as taking himself away from the situation, and his being heavily involved in disability services.
  1. [51]
    In oral submissions from the Agency, Mr Reid questioned whether the psychologist had considered all the material as she had not addressed risk. He also noted it was unknown if many referees were aware of the conviction therefore submitted that they should be given low weight. The Agency continued to be concerned that Mr Murray questioned the accuracy of the events portrayed.
  2. [52]
    The Agency was concerned that Mr Murray could not identify triggers and submitted that if triggers were hard to identify so would strategies.
  3. [53]
    The Agency notes that time alone is not sufficient to constitute an exceptional case and also noted that Mr Murray had received no psychological counselling.
  4. [54]
    Mr Reid indicated that harm to children included risk to children as well as not providing a safe environment and not providing an adequate role model to children. He submitted that there was nothing in this case to identify it as being exceptional.

The Tribunal’s View

  1. [55]
    What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the object and intention of the Act.
  • That is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing.
  1. [56]
    There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
  2. [57]
    Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon.
  3. [58]
    This is consistent with the Macquarie Dictionary definition of exceptional which is said to mean forming an exception or unusual instance, unusual, extraordinary.
  4. [59]
    In other words there needs to be a real difference from the usual type of cases. It cannot be one which is regularly encountered. Above all, however, the term exceptional case must be considered in the context of the legislation.
  5. [60]
    I accept the Agency’s view that ‘changes in a person’s circumstances that simply amount to them living in a law abiding manner as society expects and functioning at a level expected of person at their stage and age in life’ are not exceptional and are part of the ordinary course of life.
  6. [61]
    I do however also have to consider the exceptionality of this case in relation to harming the best interests of children. What does harming the best interests of children mean?
  7. [62]
    The Child Protection Act 1999 (Qld) can provide some guidance in this matter. The definition of harm in s 9 is as follows:

9 What is harm

  1. (1)
    Harm, to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.
  1. (2)
    It is immaterial how the harm is caused.
  1. (3)
    Harm can be caused by—
  1. (a)
    physical, psychological or emotional abuse or neglect; or
  1. (b)
    sexual abuse or exploitation.
  1. (4)
    Harm can be caused by—
  1. (a)
    a single act, omission or circumstance; or
  1. (b)
    a series or combination of acts, omissions or circumstances.
  1. [63]
    What does best interest mean? It is obvious that children’s best interests are met if they are not subject to any harm including physical, psychological or emotional harm. Their best interests are also served by them being in a safe environment and having appropriate role models.
  2. [64]
    Best interests of children are also served by them having access to age appropriate education, proper health care, not being subject to or witness to illegal activities including violence and the use of drugs. It also includes encouragement to develop positive relationships with others, assistance in developing a positive self-esteem, establishing positive attachment between a child and suitable adults.
  3. [65]
    For the most part Mr Murray’s life circumstances are not exceptional. He has deviated from previous criminal activity and is now leading an essentially normal law abiding life.
  4. [66]
    He is in a relationship of some four years and has not offended since 2005 where there was a breach of probation order and a breach of a community service order imposed in 2002.
  5. [67]
    Apart from this breach in 2005 he has not offended since the sexual assault in February 2002 which was dealt with in the Courts in April 2003.
  6. [68]
    I will have more to say about the exceptional case later.
  7. [69]
    I will now deal with the protective factors and risk factors as I see them.
  8. [70]
    In the Commissioner for Children and Young People and Child Guardian v Maher & Anor[5] the Court of Appeal endorsed the approach of identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case.
  9. [71]
    I will adopt in the main the protective factors in the submissions of the PSBA. As I see it the protective factors are:
  • With the exception of the breach of probation and breach of community service in 2005 the applicant has not committed any criminal offences since 2002.
  • In relation to the 2002 offences the applicant has demonstrated remorse and has acknowledged that he did the wrong thing.
  • He has claimed that he has removed himself from those who were a negative influence in his life.
  • He has undertaken some work with a psychologist as a condition of his probation order in an effort to improve his conflict resolution skills.
  • He says he is a changed man.
  • He has a solid work history and more recently has been employed in disability support work.
  • He has a mentor in his brother in law, a police sergeant of three decades to whom he goes to for advice.
  • He has positive references from a number of colleagues in the disability support area.
  1. [72]
    Risk factors:
  • The applicant’s conviction for a serious offence involving sexual assault in 2002 in which his behaviour demonstrated a complete disregard for the complainants’ emotional and physical wellbeing.
  • Limited counselling to identify triggers to the adult’s serious offending behaviour.
  1. [73]
    The Agency submits that:

The effect of issuing a positive notice and blue card is that the holder is eligible to work in any child related employment and conduct any child related business regulated by the Act. The broader issues regarding transferability and the unconditional nature of the blue card must be considered, specifically as a blue card will allow the applicant unsupervised and unfettered access to children and young people in a range of regulated activities.

  1. [74]
    The Agency submitted that a significant consideration for me in determining Mr Murray’s eligibility to hold a blue card is his ability to create a stable, supportive and safe environment for children, display appropriate behaviours and present as a positive role model.
  2. [75]
    I have taken all of the above into account in reaching my decision.
  3. [76]
    I have found that the protective factors in this case outweigh the risk factors. I also take into account but it is not determinative that there has been a lengthy period of time with no offending.
  4. [77]
    The Agency referred me to the case of Grindrod[6] from the Western Australian jurisdiction. The Agency submitted

Further any benefit to the children that may result from the applicant having access to children because of their ‘… knowledge, experience and flair in working with children …’ is not a relevant factor in decided if an exceptional case exists.

  1. [78]
    With respect, the Grindrod reasons do not refer to an exceptional case. The full wording of that section of the reasons state:

any benefit which might be thought to flow to children by having access to the applicant's knowledge, experience of flair in working with children is of no relevance if there exists an unacceptable risk to children from future contact. If an unacceptable risk exists, a negative notice should be issued. The fact that some benefits may flow to some children through continued contact with an applicant does not militate against the issue of a negative notice, if an unacceptable risk from future contacts exists.[7]

  1. [79]
    The Tribunal in Grindrod refers to an unacceptable risk to children, not whether an exceptional case exists.
  2. [80]
    With respect to the Agency’s submissions, the test I have to apply is whether this is an exceptional case. I consider that if I determine that Mr Murray is not a risk to children, I am entitled to consider any special skills he may have in deciding if an exceptional case exists.
  3. [81]
    The QCAT Appeals Tribunal in the matter of Commissioner for Children and Young People and Child Guardian v FGC[8] did not accept the proposition that the term exceptional case was to be given any special or unusual meaning such as an unacceptable risk to children.
  4. [82]
    I also take into account, although again it is not determinative, that Mr Murray does not pose a risk to the safety of children. There is no evidence before me in that regard.
  5. [83]
    I particularly note the highly positive evidence of Sergeant Parker. Whilst it is not without precedent in this Tribunal, it is very rare indeed that a police officer of Sergeant Parker’s experience would give such supportive and unqualified evidence in an applicant’s favour. Sergeant Parker was a credible witness who has known the applicant for a long time and who has no reservations about the applicant spending time with his young child. He considered the turn around in the applicant’s life as exceptional.
  6. [84]
    I have also taken into account s 226 of the Working with Children Act. I note his criminal history which includes offences as well as the serious offence. It does him no credit. I accept the nature of the offence involved a young vulnerable woman and does not constitute behaviour of an appropriate role model for children. I note the penalties.
  7. [85]
    There is evidence before me that Mr Murray works in a very difficult area of employment. That is working with young people and adults who have seriously disruptive and challenging behaviours. It is non-controversial that his area of work is very different and requires special skills.
  8. [86]
    Whilst I accept that there are thousands of people who work daily with people with disabilities there is a much smaller number who work successfully with people with intellectual disabilities with challenging behaviours. These people with disabilities are considerably more vulnerable than the general public.
  9. [87]
    Often in this area of employment, a worker will be faced with supporting a client or clients who display aggressive behaviours towards others including hitting, biting, throwing objects as well as self harming behaviours such as head banging. To work in this area successfully requires patience, skills in defusing situations, good team work and establishing rapport under difficult circumstances. His referees have attested that the applicant works very successfully in this area.
  10. [88]
    In my view, considering the protective and risk factors, and the positive evidence from Sergeant Parker, this ability and skill tips Mr Murray’s case into an exceptional one.
  11. [89]
    The decision of the Agency to issue a negative notice is set aside.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), s 20.

[2]Ibid.

[3]QCAT Act, s 24.

[4]Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027.

[5][2004] QCA 492.

[6]Grindrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.

[7]Ibid, [33].

[8][2011] QCATA 291.

Close

Editorial Notes

  • Published Case Name:

    Daniel Shawn Murray v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Murray v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2015] QCAT 552

  • Court:

    QCAT

  • Judge(s):

    Member Joachim

  • Date:

    31 Mar 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
2 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Grindrod v Chief Executive Officer [2008] WASAT 289
3 citations
Jump To
Cite 1 - [2008] WASAT 289
Cite 2 - [2008] WASAT 289
Cite 3 - [2008] WASAT 289

Cases Citing

Case NameFull CitationFrequency
Brown v Director-General, Department of Justice and Attorney-General [2018] QCAT 2232 citations
Commens v Director General, Department of Justice and Attorney-General [2017] QCAT 22 citations
1

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