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Jenkin v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 166

Jenkin v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 166

CITATION:

Jenkin v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 166

PARTIES:

Fabian John Jenkin

(Applicant)

v

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML 257-15

MATTER TYPE:

Childrens Matters

HEARING DATE:

8 February 2016

HEARD AT:

Brisbane

DECISION OF:

Member Traves

DELIVERED ON:

2 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Chief Executive Officer, Public Safety Business Agency made on 3 June 2015 to issue a negative notice and refuse the Blue Card application by Fabian Jenkin is set aside.
  2. A positive notice is to be issued.

CATCHWORDS:

REVIEW JURISDICTION – BLUE CARD – conviction of offence of dangerous operation of a vehicle and adversely affected by intoxicating substance - whether an “exceptional case” warranting departure from the general rule that a positive notice must be issued – application of factors in s 226 of the  Working with Children (Risk Management and Screening) Act 2000 (Qld).

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 162, 167,169, 221, 222, 223, 225, 226, 260, 353, 354, 358, 360

AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248

Baker v The Queen (2004) 223 CLR 513

Chief Executive Officer, Department for Child Protection v Grindrod (No 2) [2008] WASCA 28

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

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171

D and Department for Community Development [2007] WASAT 154

Hardingham and Chief Executive Officer, Department for Child Protection [2012] WASAT 153

Kent v Wilson [2000] VSC 98

Lu v Chief Executive Officer, Department for Child Protection [2013] WASAT 69

R v GAW [2015] QCA 166

APPEARANCES:

APPLICANT:

Mr Fabian Jenkin appeared for himself

RESPONDENT:

Ms Natalie Taylor represented the Chief Executive Officer of the Public Safety Business Agency

REASONS FOR DECISION

Introduction

  1. [1]
    This is an application for review of a decision by the Chief Executive Officer, Public Safety Business Agency (‘PSBA’) to issue a negative notice in respect of the application by Mr Fabian Jenkin for a Blue Card.
  2. [2]
    Mr Jenkin was convicted of ‘dangerous operation of a vehicle and adversely affected by an intoxicating substance’ on 28 May 2015. The incident occurred on 12 January 2015, late at night, when Mr Jenkin reached “breaking point” and decided he wanted to end it all.
  3. [3]
    At the time of the incident, Mr Jenkin was working as a full time, live in carer for his former 71 year old employer, JH. JH required a full time carer after having a stroke. JH was in a coma for a month following the stroke. As Mr Jenkin had been close to JH, having worked for him for over 15 years, and as he was one of the few people JH responded to when he came out of the coma, Mr Jenkin took on the role of carer.
  4. [4]
    On the night of the offence, Mr Jenkin and JH had gone to “The Beat” nightclub where they had had a heated disagreement. Mr Jenkin wanted to stay out after taking JH home but JH wanted him to stay home with him. They argued. Mr Jenkin was very upset, consumed a few drinks and then, on a wet night, formed the intention to kill himself in a motor vehicle accident. He drove at high speed, ran into the back of another vehicle and rolled his car a number of times. Fortunately no one was seriously injured.
  5. [5]
    Mr Jenkin has since enrolled in a Diploma of Nursing. His goal is to become a registered nurse.  To complete the Diploma, which may involve working with children, Mr Jenkin needs a Blue Card. His application for a positive notice and Blue Card was refused on 4 September 2015.
  6. [6]
    In short, where a person has been convicted of an offence other than a serious offence, the PSBA must issue a positive notice unless the PSBA is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.[1]
  7. [7]
    In this case, the PSBA was satisfied that the case was exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act).  The issue is whether on the basis of the circumstances and nature of the offence and in light of the factors in s 226(2) of the Act this case is exceptional such that it would not be in the best interests of children for Mr Jenkin to be given a positive notice and Blue Card. 

The background to the application for review

  1. [8]
    Employment screening for child-related employment is dealt with in Chapter 8 of the Act. Mr Jenkin made a prescribed notice application under the Act with a view to obtaining a Blue Card which he needs to complete the practical component of a Diploma of Nursing he is undertaking at Healthskills Australia.  
  2. [9]
    A trainee student who has been placed by an education provider to carry out work, whether paid or unpaid, is deemed to be employed by the entity to which the student has been placed.[2] As the placement by Healthskills Australia may involve working with children and Mr Jenkin is deemed to be employed by the entity to which he is placed, a Blue Card is required.
  3. [10]
    The PSBA refused Mr Jenkin’s application by issuing a negative notice on 4 September 2015. Mr Jenkin has applied to the Tribunal for a review of that decision. A person who is not a disqualified person[3] is entitled to apply for review of a “Chapter 8 reviewable decision” within 28 days.[4] This includes a decision as to whether or not there is an exceptional case if, because of the decision, a negative notice was issued.[5] 
  4. [11]
    The Tribunal is to decide the review in accordance with the Act and the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act). The Tribunal has all the functions of the decision-maker for the decision being reviewed.[6] 
  5. [12]
    The purpose of the review is to produce the correct and preferable decision. In meeting that purpose the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[7]
  6. [13]
    Mr Jenkin is not a disqualified person and applied for review within the prescribed period.

The “Blue Card” legislative framework

  1. [14]
    The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[8] It is protective legislation and has been described as “precautionary” in its approach.
  2. [15]
    A child related employment decision[9] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[10] The overriding concern is the potential for future harm to children.
  3. [16]
    The Act deals with “Blue Card” applications in two broad categories:
    1. (a)
      Where a blue card must be issued unless the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued;[11] and
    2. (b)
      Where a blue card must not be issued unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children for a blue card to be issued.[12]
  4. [17]
    The first category applies here. The relevant test is set out in ss 221(1)(c) and 221(2) of the Act.
  5. [18]
    Section 221 of the Act provides, relevantly:

(1) Subject to subsection (2), the chief executive must issue a positive notice to the person if —

(a) 

(b) …; or

(c) the chief executive is aware of a conviction of the person for an offence other than a serious offence.

(2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person. [Emphasis added].

  1. [19]
    A negative notice was issued on the basis that, although Mr Jenkin had been convicted of an offence other than a serious offence, the PSBA was satisfied that his was an exceptional case within the meaning of s 221(2) of the Act.

What are the requirements for an exceptional case in which it would not be in the best interests of children for a positive notice to be issued

  1. [20]
    There is no legislative guarantee that a person convicted of an offence, other than a serious offence, will be given a Blue Card.  Although that is the default position, the PSBA has the power to depart from the general rule where the PSBA is satisfied an “exceptional case” exists in which it would not be in the best interests of children for this to happen.
  2. [21]
    This necessarily requires an evaluation of the risk or degree of risk that the applicant would harm the best interests of children in the course of carrying out child-related work. If the Tribunal is satisfied that the case is an exceptional one in which it would not be in the best interests of children for a positive notice to be issued, the Tribunal must give a negative notice to the applicant.[13]

What does “exceptional case” mean?

  1. [22]
    Exceptional case is defined in Schedule 7 to mean “exceptional case as mentioned in section 221(2), 222(2), 223(4) or 225(2)”.[14]
  2. [23]
    Whether a case is exceptional is a matter of discretion and there is a reluctance to lay down any general rule as to what is an exceptional case.[15] In applying the discretion, the factors in s 226 (2) of the Act must be considered.
  3. [24]
    What constitutes an exceptional case or, in the context of equivalent legislation in other States, exceptional circumstances, has been considered by the Courts and Tribunals on numerous occasions.  
  4. [25]
    The Oxford English Dictionary[16] defines exceptional as ‘of the nature of or forming an exception; out of the ordinary course, unusual, special.'
  5. [26]
    The expression “exceptional case” must be read in its statutory context.  The purpose of the legislation is to protect children by preventing people from working with children where this would not be in their best interests.
  6. [27]
    The intent of the specific provision is to make it the usual case that someone who commits an offence that is not a serious offence will be issued with a Blue Card.[17]  It is only where the case is exceptional where this would not be in the best interests of children that a Blue Card will be refused.

The mandatory factors

  1. [28]
    In deciding whether it is an exceptional case in circumstances where the applicant has been convicted of or charged with an offence, the Tribunal is obliged to consider the factors in s 226(2) of the Act. These factors are not exhaustive[18] and will not necessarily be given equal weight in the evaluative exercise to be undertaken. What weight is accorded to each factor will depend upon the facts and circumstances of the particular case. 
  2. [29]
    The mandatory factors do not qualify the principle that the welfare and best interests of a child are paramount.[19]  This does not mean that the factors are excluded by this overriding principle, merely that they are subordinated to it. “Paramount” is not equivalent to sole.[20]  
  3. [30]
    The factors which must be considered are:
    1. (a)
      In relation to the relevant offence:
      1. Whether it is a conviction or a charge
      2. Whether the offence is a serious offence and if it is, whether it is a disqualifying offence; and
      3. When the offence was committed; and
      4. The nature of the offence and its relevance to employment, or carrying on a business that involves or may involve children; and
      5. In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order or not to make a disqualification order under s 357, the court’s reasons for its decision.
    2. (b)
      Any information about the person given under s 318 (DPP) or s 319 (Corrective Services);
    3. (c)
      Any report about the person’s mental health given under s 335;
    4. (d)
      Any information given under s 337 (Mental Health Court) or 338 (Mental Health Review Tribunal)
    5. (e)
      Anything else relating to the commission of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.

The applicant’s evidence and submissions

  1. [31]
    The applicant, Mr Jenkin, is 38 years of age with no other criminal record.
  2. [32]
    Mr Jenkin outlined the events leading up to the offence. In his submission, the events of that night were the result of the environment he had been living in for the past two years, as the full time, live in carer for his former employer, JH.
  3. [33]
    JH was 71 years old at the time and, according to the applicant, a man of some wealth and influence. Mr Jenkin described how he worked for long periods without a break (he had had 10 days break in two years), was constantly at JH’s “beck and call”, was often belittled and felt overwhelmed, controlled and socially isolated.
  4. [34]
    Mr Jenkin said that although the environment was “toxic”, he felt trapped and morally compelled to stay. JH did not have family members willing or available to care for him and only wanted the applicant to care for him.  On the few occasions Mr Jenkin went out, he was always instantly contactable, having programmed JH’s telephone so that he need only press a button to contact him. Mr Jenkin said however, that even then he rarely left the house because JH never wanted him to leave and made it clear that he did not wish to be cared for by anyone else.
  5. [35]
    The applicant’s evidence in this respect was supported by Ms Annette Grace, Mr James Franks and by his psychologist, Ms Michelle Kearnes. He also relied on references given by Mrs Lisa O'Sullivan, RN and educator and Kerrie Chandler, RN, Senior educator.
  6. [36]
    Ms Grace impressed me as an honest, intelligent witness.  She is a long-term friend and work colleague of Mr Jenkin. Ms Grace was studying counselling at the time of Mr Jenkin’s offence, which she believed gave her added insight into the applicant’s mental health issues at the time.
  7. [37]
    Ms Grace described the time immediately following the accident when Mr Jenkin was in hospital waiting to see a psychiatrist, as a “huge wake-up call”.  She said that Mr Jenkin was very remorseful and that the last thing he would have wanted was to hurt someone else. Ms Grace described a six-month process of gently guiding Mr Jenkin back to a position of strength and resilience.  Ms Grace was confident Mr Jenkin had achieved a full recovery.
  8. [38]
    Ms Grace also acknowledged that Mr Jenkin was no longer drinking alcohol and that his partner, James Franks was a very positive influence in his life. She described James Franks as supportive, sensible and grounded. 
  9. [39]
    In summary, Ms Grace held no reservations about Mr Jenkin and his ability to work with children, and was confident he was now equipped with the skills to deal with stressful situations and to act in a more considered, deliberate way.
  10. [40]
    Ms Michelle Kearnes is a clinical psychologist and saw Mr Jenkin following the accident for eight one-hour sessions. Ms Kearnes stated that Mr Jenkin attended on a voluntary basis and was committed to developing self-awareness and self-management strategies to modify his emotional and behavioural responses to distressing situations.[21]
  11. [41]
    Her last consultation with Mr Jenkin was in September 2015.  Importantly, in her professional opinion, the accident and associated mental health issues were “situationally driven”.  While acknowledging the applicant’s vulnerability which she said stemmed from a deep sense of loyalty and guilt, the triggers which led to the incident, in her view, were entirely environmental.
  12. [42]
    In assisting Mr Jenkin with his recovery, Ms Kearnes practised cognitive behaviour intervention therapy and acceptance commitment therapy. She said that through this process Mr Jenkin had learned to recognise the “warning signs” and to self-manage in order to eliminate risks. She said when she first saw him he was under significant psychiatric distress but that upon removal of the stressor, which she identified as his employment as carer, the symptoms he was experiencing were eliminated within six months.
  13. [43]
    Ms Kearnes also commented that Mr Jenkin had a “better insight and understanding than most people walking around earth” as to how to manage their mental health. He was also, in her view, due to his present awareness and coping strategies, not like those who repeat patterns of behaviour.
  14. [44]
    Further, in a written report Ms Kearnes states:

I do not believe that Mr Jenkin could be described as experiencing “…poor mental health and suicidal tendencies…” Mr Jenkin does not fulfil the diagnostic criteria for a mental disorder under the Diagnostic and Statistical manual for Mental Disorders – 5th ed (DSM-V). I do not believe therefore that there is any risk of self-harm behaviour or other impulsive behaviour that would impact on his capacity to provide a secure and protective environment and would place himself or others at risk.[22]

  1. [45]
    Mr Jenkin advised that he was no longer taking any medication and that his General Practitioner, Dr Jo Costello, had ceased to prescribe any medication within 3 months of the incident.
  2. [46]
    James Franks is the applicant’s partner. He provided a reference due to his inability to attend the hearing. Mr Franks is a Cabin Manager for a long haul international airline. His managerial duties included observing and providing feedback regarding the behaviours of staff. The implication was that this experience gave Mr Franks enhanced ability and added insight in analysing Mr Jenkin’s behaviour.
  3. [47]
    Mr Franks observed a transformation in the applicant from someone who felt manipulated to a person who was able to turn his “considerable energies and generous spirit” to studying nursing.  Mr Franks described how Mr Jenkin had been driven to a “place of frustration, helplessness and desperation” and that this had resulted in the car accident in January 2015.  Since then, Mr Franks said that Mr Jenkin had learned to say “no”; understood the importance of moderation and of managing his emotions;  had surrounded himself with a new group of friends; commenced full time employment and was genuinely driven and committed to fulfilling his goal of becoming a nurse.

The respondent’s evidence and submissions

  1. [48]
    In assessing whether there is a risk of harm, the respondent applied the evaluative approach endorsed by the Queensland Court of Appeal in The Commissioner for Children and Young People and Child Guardian v Maher[23] which involves identifying and balancing “risk” factors with “protective” factors arising from the circumstances of the particular case.  
  2. [49]
    In applying that approach, the respondent identified factors which included, relevantly:

Protective factors

  1. (1)
    The applicant had expressed remorse and insight into the underlying causes of his offending behaviour.
  2. (2)
    There had been a number of positive changes to the applicant’s life including an improvement to his mental health, a stronger support network, has a new steady and positive relationship and he had removed himself from the environment which had a negative influence on him.
  3. (3)
    That he is doing well in his nursing studies and expresses a desire to benefit the community through this work.
  4. (4)
    That he sought professional assistance from Michelle Kearnes, Clinical Psychologist and that she is supportive of the applicant working with children.
  5. (5)
    Witness statements speak positively of the applicant’s character, work ethic and the positive changes he has implemented in his life since January 2015.

Risk factors

  1. (6)
    The offence was committed recently and indicated an inability to safeguard the physical safety and wellbeing of others.  Poor mental health and suicidal tendencies are likely to affect the applicant’s ability to prioritise the needs of children, make sound decisions and exercise appropriate judgment and reflects adversely on his ability to provide a safe and secure environment for children in his care.
  2. (7)
    A person was injured as a result of the offence and required medical treatment.
  3. (8)
    The applicant was sentenced to a suspended term of imprisonment which reflects the gravity with which the court viewed the applicant’s offending. He was also disqualified from driving until May 2016.
  4. (9)
    His reflections on his decision making on the night indicates a preparedness to risk the safety of others.
  5. (10)
    The failure to properly recognise warning signs in the lead up to the incident and the omission to seek help. 

The respondent submitted that overall the risk factors outweighed the protective factors and that, given the paramountcy of the best interests of children, that this was an exceptional case. 

Is this an exceptional case?

  1. [50]
    The factors in s 226(2) of the Act are factors which must be considered in making a decision about whether it is an exceptional case.
  2. [51]
    In terms of the level of satisfaction required, it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[24]
  3. [52]
    Looking at the factors which must be considered, I make the following observations: there was a conviction; it was a conviction for an offence but not a disqualifying offence. The offence was “Dangerous operation of a vehicle and adversely affected by an intoxicating substance”[25] and was committed on 12 January 2015, just over a year ago. There is concern that there has been insufficient time for the applicant to recover completely from the mental state that led to the offence.  
  4. [53]
    The offence did not occur in the course of child-related work and did not involve children.  It involved the dangerous operation of a motor vehicle and being adversely affected by an intoxicating substance.  There was a risk however that people, including children, could have been seriously injured or killed by the applicant’s conduct.
  5. [54]
    A nine month sentence was imposed, to be suspended for 18 months and he was disqualified from driving for 12 months.
  6. [55]
    The factors in s 226(2)(b)(c)(d) of the Act do not apply.
  7. [56]
    The offence viewed in context was an isolated event which resulted from a stressor which the applicant was, at the time, unable to recognise and deal with. The offence stemmed from a peculiar set of circumstances in which Mr Jenkin had developed an unusually close relationship with his employer of over 15 years to the point where he found himself his only support and, in effect, trapped by that dependence.
  8. [57]
    I accept the evidence of Ms Grace and Mr Franks, to the effect that the applicant is a person who puts the interests of others before his own. This trait meant that Mr Jenkin was vulnerable to manipulation. I find that Mr Jenkin felt he had been manipulated to the point where he had lost his identity and ability to self-manage self-worth but was unable to see a way out. I find that his conduct on the night of the incident was an isolated act of desperation and helplessness and, ultimately a call for help.
  9. [58]
    The immediate cause of the incident was a heated argument between Mr Jenkin and his former employer, JH. It was one that Mr Jenkin found extremely distressing. Despite this, Mr Jenkin arranged for a driver to take them both home.  It was not until JH was safely in bed at home that Mr Jenkin went out. 
  10. [59]
    There is no doubt that Mr Jenkin’s actions in getting into his car and driving the way that he did were reckless and dangerous. However, the conduct occurred in very particular circumstances. Mr Jenkin found himself in a desperate situation he felt unable to manage. This was the consequence of a long history between the applicant and JH which had resulted in the unusual carer/patient relationship to which I’ve referred above. More immediately, it was due to the heated, emotionally charged argument that he had had with JH on the night of the incident.
  11. [60]
    I reiterate that Mr Jenkin had a previously unblemished record. Further, there is no evidence of any like conduct either before or since this particular incident. Nothing in the medical evidence suggests that such conduct will occur again.  I am satisfied on the evidence before me that it was abnormal behaviour caused by an unusual situation, which was the culmination of a long course of circumstances unlikely to be repeated. Importantly, the carer/patient relationship between the applicant and JH has ended.
  12. [61]
    In view of all of the above, I am not satisfied that this presents as an exceptional case within the meaning of s 221(2) of the Act.  

 Conclusion

  1. [62]
    The applicant is entitled to a Blue Card unless the decision-maker is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
  2. [63]
    I am not satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. 
  3. [64]
    Accordingly, I order that the application for review be upheld and that a positive notice and Blue Card be issued. 

Footnotes

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) s 221(2).

[2] Ibid s 162(2).

[3] Ibid s 169.

[4] Ibid s 354(1).

[5] The Act s 353(a)(i).

[6] QCAT Act s 19.

[7] Ibid s 20.

[8] The Act s 5.

[9] Child related employment decision is defined to include a chapter 8 reviewable decision:   the Act s 358.

[10] The Act s 360; see also s 6.

[11] Ibid s 221.

[12] Ibid s 225.

[13] The Act s 221(2).

[14] Ibid s 3.

[15] Maher at [34] citing Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.

[16] John Simpson and Edmund Weiner (eds), The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989).

[17] See further Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [46] where it was held: “The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case.”

[18] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [42] although concerned with an earlier version of the Act; Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [23]. This is contrary to the position under the Working with Children (Criminal Record Checking) Act 2004 (WA), s 12(8) which exhaustively lists the considerations to be applied: Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171 at [16].

[19] The Act s 360.

[20] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171.

[21] Letter from Ms Michelle Kearnes dated 17 April 2015.

[22] Letter from Ms Michelle Kearnes dated 14 September 2015.

[23] [2004] QCA 492.

[24] Maher at [30].

[25] Criminal Code Act 1899 (Qld) ss 328A(1), (2)(a).

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Editorial Notes

  • Published Case Name:

    Jenkin v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Jenkin v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 166

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    02 Mar 2016

Appeal Status

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

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