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- Unreported Judgment
PWJ v Public Safety business Agency QCAT 179
PWJ v Public Safety business Agency  QCAT 179
Chief Executive Officer, Public Safety Business Agency
2 March 2016
15 June 2016
History of violence, insight into behaviours and impact on children, exceptional case
APPEARANCES and REPRESENTATION (if any):
PWJ represented by Ms Lily Marinovic of ATSILS
Chief Executive Officer, Public Safety Business Agency represented by Ms Paula Hughes
REASONS FOR DECISION
- PWJ is a 42-year-old indigenous man who lives with his partner and two small children in a regional community. His partner is a registered nurse. PWJ has a number of children with previous partners.
- He is a qualified carpenter, having completed his apprenticeship around 1995. In 2008 he completed a certificate IV in Sports and Recreation through North Queensland TAFE. Since that time he has been employed as a Sports and Recreation Officer with the local Shire Council.
- His position involves working with troubled indigenous youth in partnership with the Youth and Community Combined Action Association Inc. (YACCA). He says that he is a mentor and role model for young people and in his view his past has put him in a better position to advise these young boys and girls about what not to do.
- He is also actively involved in a local Rugby League football club where he helps coach and train the A grade group as well as assisting with the junior league.
- He is a member of the Suicide Prevention Action Group and counsel’s members of the group in relation to depression, post-vent grieving and whatever they need at the time. He points out that “indigenous people often have to learn lessons the hard way with the hope of one day breaking the cycle of hopelessness and futility.”
- On 15 December 2014, PWJ applied to the Chief Executive Officer Public Safety Business Agency for a renewal of his positive notice and Blue card. On 11 August 2015, he was advised by the Deputy Chief Executive Officer that he would get a negative notice.
- On 8 September 2015, PWJ applied to the Queensland Civil and Administrative Tribunal for a review of that decision. He claimed that the decision was wrong because “insufficient regard (was) taken to my otherwise good record while previously holding a Blue card” and “insufficient regard (was) taken to the minor nature of my 2014 offence of ‘possess liquor’.”
- PWJ now seeks that a positive notice be issued or that the matter be referred back to Blue card services to reconsider their decision to issue a negative notice.
What is the relevant law?
- The relevant legislation is the Working with Children (Risk management and Screening) Act 2000. Section 6 of the Act provides that the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects them from harm and promotes their well-being. Section 360 of the Act confirms that principle for the purposes of reviewing a child-related employment decision.
- Section 221 of the Act provides that where a person has been convicted of an offence other than a serious or a disqualifying offence as defined in the Act then a positive notice must be issued unless it is an “exceptional case” where it would not be in the best interests of children for the applicant to be issued with a positive notice.
- The meaning of “exceptional case” is not defined in the Act but the decision in Maher’s case provides that whether a case is exceptional is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act. What constitutes an exceptional case is a question of fact and degree.
- I am required to consider the circumstances within the legislative framework to determine whether an exceptional case exists. Section 226 of the Act sets out the factors that I must take into account but I am not limited to a consideration of those matters only.
- The purpose of the review is to reach the correct and preferable decision. The Act requires that this be done by way of a fresh hearing on the merits.
- Any hardship or prejudice suffered by the applicant as a result of a refusal to issue a positive notice is irrelevant to a determination of the issue.
- PWJ has not been convicted of a serious or disqualifying offence. Therefore, he must be issued with a positive notice unless this is an exceptional case.
What is the applicant’s story?
- PWJ has lived in the same community for most of his life except for brief periods away such as a year on Palm Island. He points out that he is currently in a stable relationship and a proud father of two children. He says that he is an active member of the local Christian Church which has been the cornerstone for him to turn his life around.
- He has 10 children ranging in age from 21 years to 1 year. Three of the children live with him and his partner on a full or part-time basis.
- He reached grade 11 in secondary school at Murgon State School and subsequently undertook an apprenticeship in carpentry.
- He has worked in various building jobs such as as head carpenter on Palm Island for a year in about 2000 and as a builder in his community for about two years from 2008 to 2010.
- He has admitted that the documented offences contained in police reports and court transcripts does not appear flattering to his request for a Blue card. He said that having read the transcripts, he was not proud of what he had done and he sincerely regretted that he had committed the offences. He says that he can’t change his past but that he has changed his future.
- He submits that most of his offences occurred between 1997 and 2006. At that time, he was in his early to mid 20s. He is now 42 years of age. He argued that the Prohibited Liquor offence that occurred in 2014 was a regulatory offence as Cherbourg comes under the Alcohol Management Plan enacted by the state government. He claimed that he possessed only a small amount of alcohol at the time.
- in relation to his earlier offending he claimed that like many young people, he was generally reckless and irresponsible. He said he was going through lots of problems which he dealt with through abusing alcohol, which was the trigger for most of his antisocial behaviour. He said that he was unable to justify or come up with any explanation apart from the fact that he was immature and dealt with what life dealt out, through aggression.
- PWJ said that his youth was very transient, growing up in several aboriginal communities that did not provide him with a stable home environment. He grew up witnessing violence which appeared to be the only way that community members could solve their problems.
- He did not have positive role models in his life. His father was an abusive alcoholic who resorted to violence against his mother who was a pint sized delicate young woman.
- He claimed that his growing up was dysfunctional and influenced his behaviour in his youth. As a young man, violence was a natural and normal part of his life. However, he feels that his past has also taught him lessons that he can now impart to other young people who are going through what he went through as a young person.
- He believes that he is blessed to be given a second chance. He claims to have been proactive in trying to turn his life around. He says that he has obtained help through counselling for alcohol abuse and anger management.
- He initially claimed that he no longer consumes alcohol and had abstained for slightly over 10 years now. He clarified that comment in subsequent correspondence dated 8 September 2015 by saying that what he meant was that he has not in that time consumed alcohol to an excessive or dangerous level.
- In his oral evidence, PWJ was asked about a domestic violence incident on 19 June 2014. It was alleged that he had attended a property and assaulted his former partner’s mother in front of the children and his partner’s grandmother.
- He was escorted from the property and subsequently served with a Domestic Violence Application. PWJ denied that the incident occurred. He admitted that there had been an argument but he said that he never received anything such as a domestic violence order.
- In relation to an alleged incident in November 2013, PWJ admitted to “flogging” his 13yo son with a belt by whacking him on the bottom but denied punching him in the stomach, chest or wrist.
- In relation to his 2 most recent convictions, PWJ explained that on 19 June 2014, he was in the back of his car when it was pulled over by the police and he was asked to undertake a breath test. In his words “I had to be a big mouth, I shouldn’t have been a big mouth. I didn’t even know it was a rule.”
- As a result of what occurred PWJ was convicted of Assault or obstruct police. He was convicted and fined $250.
- On 24 October 2014, PWJ was charged with possession of 1 can of Bundaberg rum and 2 cans of Jim Beam within the Cherbourg precinct. PWJ was convicted and fined $75. PWJ acknowledged that the incident was contrary to the restrictions placed on the community with respect to the use of alcohol. He said that he understands it but doesn’t like it. He claimed that the ban isn’t stopping anything. He admitted that he doesn’t agree with it but that it is the law.
- Throughout his evidence and particularly his questioning by the representative of the Public Sector Business Agency PWJ was unresponsive and vague. He appeared to resent many of the questions put to him and became frustrated and aggressive on occasion. He challenged some questions and appeared impatient with what was happening.
- PWJ says that as an indigenous person he often has had to learn lessons the hard way with the hope of one day breaking the cycle of hopelessness and futility.
- He says that all he can ask for now is for empathy when considering his application for a Blue card which he believes is very relevant to his working with young people. He asserts that he is trying to make a difference and be a good role model for the next generation.
Who supports PWJ's case ?
- UR is the Senior Social Worker at the local Health Service. On 8 January 2016 UR wrote to the Chief Executive Officer Public Safety Business Agency to support PWJ. He also attended the hearing on 2 March 2016 and gave oral evidence to support him.
- UR has known PWJ for over three years and says that he holds him in high esteem and has every confidence that he can provide safe and wholesome programs to persons of all ages. He says that PWJ is a highly respected member of the Community with a genuine yearning for the well-being of the members of the community.
- He claims that PWJ’s home is recognised as a safe haven for children. He says large numbers of children frequently go there. He points out that PWJ and his partner go out of their way to accommodate and entertain children from the community. It is generally recognised within the community that it is safe for children to go to their house. It is understood that PWJ and his partner will look after children who are there and will often engage them in quality outdoor activities.
- UR claims that PWJ willingly acknowledges his past misdemeanours that have led to police charges. He contends that PWJ has reflected on these matters and has made substantial changes to his life’s direction. He submits that PWJ has accomplished this to the point now where he is widely looked upon as a mentor to children and young folk within the community.
- He says that PWJ is genuine and passionate about achieving positive change within the community and that he cares deeply for the local people.
- With respect to Mr PWJ's most recent charges of assault or obstruct police officer on 19 June 2014 and possession of liquor in a restricted area on 24 October 2014 UR says that PWJ readily takes responsibility for his actions that led to the charges. He says that PWJ is remorseful and acknowledges that he has let himself and others down. He has now had the benefit of the consequences of the charges and during counselling has identified how he could have responded in a far more constructive and cooperative manner.
- PWJ has put in place a network of contacts who are there to ensure that he does not re-offend and so that he can address the grief and loss issues facing men within the community. He also accesses counselling in a bid to better manage his life stressors and stresses that are particular to life in the Cherbourg aboriginal community.
- UR claims that PWJ is not known as a heavy drinker but he does acknowledge that occasionally he consumes alcoholic beverages that are allowed under the alcohol management plan. He says there have been no similar instances since 2014 where PWJ has acted in a manner that has attracted police attention. On the contrary PWJ frequently works alongside the police to develop community programs with a view to enhancing opportunities for the young people. In his view, the risk of PWJ re-offending is minimal.
- UR says that PWJ acknowledges his responsibility as a role model for many of the community’s young people and that this sense of responsibility serves in many ways as a protective factor with regard to the applicant upholding the law and advocating that others do the same.
- In summary, UR says that PWJ presents as a mature and respectful man with a genuine love for and commitment to the community. He says there is no one in the community that does not like and respect him. In his opinion, this view is also widely held by agencies and professionals who work within the community including those who work within the Queensland Health Service, Education Queensland and the Queensland Police Service.
- He says that PWJ has excellent communication and interpersonal skills that well equip him to work with and lead young people. He has no hesitation in recommending that PWJ’s application for renewal of his Blue card be approved.
- PWJ also provided references from the following persons who did not attend the hearing or give oral evidence:
- CB, JP Magistrate, who said that he was aware of the applicant’s criminal history eg. obstructing police. However, he supports all of the applicant’s endeavours.
- ZC, Corporate Services Manager, who provided a personal reference with no mention of the applicant’s criminal history.
- FS, acting Principal, local State School who provided a personal reference with no mention of the applicant’s criminal history.
- LW, Chief Executive Officer, local Aboriginal Shire Council, who provided a personal/work reference but made no mention of the applicant’s criminal history.
- BK, Mayor, local Aboriginal Shire Council who provided a personal/work reference but did not mention the applicant’s criminal history.
- All of the applicant’s referees spoke about the applicant’s qualities and commitment to the community and the contribution that he makes. What is not clear to the Tribunal is whether these people apart from CB would maintain the same high regard for the applicant if they were aware of his criminal history.
What is the extent of the applicant’s criminal history?
- PWJ has an extensive criminal history with charges and convictions starting from 1994 when he was 20yo to 2014. The convictions include assaults occasioning bodily harm, common assaults and an assault or obstruct police officer in June 2014. He also has at least 5 convictions for breaches of domestic violence orders.
- The Chief Executive Officer has summarised PWJ’s convictions as follows:
- Assault occasioning bodily harm x 4;
- Common assault x 2;
- Assault or obstruct police officer;
- Breach of domestic violence order x 5;
- Steal from person;
- Unauthorised dealing with shop goods;
- Wilful damage;
- Prohibition of possession of liquor in restricted area;
- Commit public nuisance;
- Behave in disorderly manner;
- Contravene direction or requirement;
- Breach of bail undertaking x 3;
- Breach of suspended sentence x 6;
- Breach of probation order x 2; and
- Breach of Bail Act (contempt).
- PWJ has previous charges for assaults occasioning bodily harm (x2) and commit public nuisance.
What is PWJ’s history with the Department of Communities, Child Safety and Disability Services?
- On 29 January 2016 The Tribunal received information from the Department covering a number of alleged incidents during the period from August 2001 up to July 2014.
- The material indicates that as at 19 June 2014, there had been no Child Protection history regarding PWJ and his current family since 2010. It is reported that there were 2 Child Concern Reports and 2 notifications that relate to his children from a previous relationship. There was no evidence that PWJ was responsible for these incidents.
- A domestic violence incident relating to PWJ and a previous partner was recorded in September 2006 that noted a current “DVO with no contact conditions”. It was also recorded that there had been 2 previous DV events within the previous 2 months. In relation to one of these occasions it was stated that children were present and their demonstrated protective behaviour was to go to their grandmother’s place a street away. Apparently the children did not demonstrate any stress.
- In November 2010 it was reported that PWJ’s current family had a Child Protection history dating from 2003 including 5 Child Concern Reports relating to domestic violence and unsupervised children. There were also 2 unsubstantiated investigations in 2003 relating to the mother using excessive discipline and in 2008 regarding children left in the care of a child sex offender. PWJ denies all knowledge of that situation.
- PWJ’s submissions
- Ms Marinovic reminded the Tribunal that, pursuant to section 221 of the Act, PWJ must be granted a positive notice and a Blue card unless this is an exceptional case.
- She submitted that the positive factors include:
- The previous vetting that occurred at the time of PWJ's initial application for a Blue card which would have considered a lot of the matters presently before the Tribunal;
- PWJ has expressed regret and some insight into the child protection issues;
- His own life experiences and their effect on him demonstrate a level of insight;
- Although the applicant is still using alcohol there was evidence regarding his reduction in his consumption and Ms Marinovic submits that he should be commended for the improvements he has made;
- The applicant is capable of modifying his behaviour. He has insight into his problems from the past and woke up to himself while in jail;
- His role in the men's group demonstrates his leadership ability;
- There is evidence of his experience with children as a role model;
- The evidence from UR demonstrates that PWJ is settled and highly regarded in a community
- He has demonstrated his self-control with respect to his drinking and by his ability to remove himself from a situation when he becomes frustrated;
- While he has not provided a Life History there are snapshots of a sad and difficult life experience as a child, that he has learnt from;
- He has provided a reasonable explanation for his recent behaviour involving the police. He has apologised to them and is currently working with the police.
The CEO’s submissions
- Ms Hughes submitted on behalf of the CEO that the primary consideration in this matter is the best interests of children. The role of the Tribunal is not to impose additional punishment but rather it is a matter of putting appropriate safeguards around child related employment.
- While PWJ has attended alcohol anger management courses he does not agree with the alcohol laws as applied in his community. He does accept that it is the law.
- Ms Hughes suggested that the relevant protective factors include:
- PWJ has shown regret for his offending behaviour;
- He has acknowledged the wrongfulness of his actions;
- He has matured which is demonstrated by his involvement with the Men's group;
- He has presented a number of examples of positive interventions he has made;
- He has had no offending since 2014;
- On the other hand, Ms Hughes submits that there are also some risk factors:
- PWJ has an extensive criminal history dating from 1994 to 2014 and there are significant concerns regarding his history of domestic violence;
- He has recent offences as a 40-year-old and his previous convictions and penalties do not appear to have acted as a deterrent;
- There is evidence from Child Protection authorities that he has been the perpetrator of violence in the presence of children;
- The evidence demonstrates that PWJ still exhibits a lack of self-control and continues to drink alcohol;
- In spite of being given numerous opportunities, he has not demonstrated insight into the triggers for and factors leading to his offending. There is no independent expert evidence to demonstrate how PWJ currently deals with the triggers to his behaviour and offending;
- While PWJ presented numerous references, none were present to support his application and only one indicated that they had knowledge of his previous criminal behaviour;
- His key witness UR has not undertaken any testing with PWJ. He admitted that he supported the applicant in both a personal and professional role when giving evidence.
- He indicated that he was not aware of PWJ’s child protection history and as a result, his evident should be weighted accordingly;
- Ms Hughes submits that PWJ’s child protection history raises serious concerns about domestic violence being an ongoing issue, which undermines his protective factors;
- Ms Hughes points out that if PWJ were to be granted a positive notice and a Blue card then he would have unfettered access to children in many different roles and consequently on this occasion the risk factors outweigh the protective factors.
Considerations and decision
- In the relation to the factors section set out in section 226(2) of the Act I note that the applicant has a criminal history spanning approximately 20 years. In particular, he has convictions for violent offences and domestic violence.
- I accept the CEOs submission that children have a right to be protected from exposure to alcohol misuse and to be cared for by persons who are not consuming excessive quantities of alcohol which could impair their ability to care for care for children and to be a good role model for them.
- The applicant’s criminal history contains a range of penalties from substantial monetary amounts to multiple periods of imprisonment. I am satisfied that the imposition of custodial sentences indicates the seriousness with which the Court considered his offending.
- In relation to the other factors set out in section 226(2) there was no information provided other than outlined in these reasons.
- I have taken into account all of these matters and I find that PWJ has the following protective factors:
- He has a sincere commitment to his community and to helping the members of the community;
- He has taken some steps to address his alcohol use. I am concerned that PWJ still drinks alcohol even though he says that it is not to “an excessive or dangerous level”. His evidence in this regard was not consistent.
- He has shown some awareness and understanding of the impact of his behaviour and some remorse for his actions;
- He has put in place a support network involving many members of his local community;
- He has taken active steps to develop anger management strategies that allow him to deal with his anger and frustration without resorting to further anger and abuse
- However, I also find that there are still a number of risk factors that have not been adequately addressed.
- PWJ has a history involving domestic violence and physical and verbal violence and abuse. While not all of the identified incidents have resulted in criminal charges, the child protection material indicates that it is likely that PWJ has used physical and verbal violence in the presence of children and on at least one occasion directed at children.
- He has had extended periods without offending in the past but unfortunately he has then committed further offences. He has two recent convictions of assault/obstruct police officer on 19 June 2014 and prohibition of possession of alcohol in restricted area on 24 October 2014.
- I am mindful that it was submitted on behalf of PWJ that his recent offences were relatively minor in nature. Regarding the offence of prohibition of possession of liquor in a restricted area I note that in the matter of Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury  QCA 37, the Queensland Court of Appeal discussed the policy objectives and legislative intent behind placing alcohol restrictions imposed by the aforementioned statutes on Queensland Indigenous communities.
- The President, her Honour Justice McMurdo noted at page 11: “It is clear… that the legislature intended the impugned provisions to reduce “alcohol-related violence, and thereby improve the health and well-being of all [Indigenous] community members, especially children”, by imposing alcohol restrictions which did not exist in the broader Queensland community.”
- Considerable emphasis has been placed by PWJ on his desire to be a good role model. However, being a good role model is not a requirement under the Act and in my view his behaviour does not support his claims.
- I find that PWJ has attempted to minimise his actions on this occasion and has not demonstrated any insight into the purpose of the legislation and its relevance to the welfare of children.
- I am not satisfied that he has made any effort to address the impact that his previous behaviour may have had on children. He has continually asserted that he is a good man but has not addressed the fundamental issues regarding his violent behaviour.
- I note that the Tribunal recommended that PWJ provide an independent report from a suitable practitioner regarding his suitability for child related employment. UR speaks highly regarding PWJ but does not address issues that would normally be contained in an expert Report. The applicant has undertaken some counselling regarding his actions and UR asserts that the applicant’s home is a haven for children in the community.
- However, he has not provided the Tribunal with any independent professional evidence regarding any risk that he may pose to the welfare of any children in his care. UR says that “It is his view that the risk of PWJ re-offending is minimal”.
- I am conscious that I must consider the best interests of children and not any detriment or benefit to PWJ that may arise if he were not to get a Blue card. I accept that that a failure to get a Blue card may have a significant impact on the applicant and his family.
- PWJ is aware that he should be issued with a positive notice and a Blue card unless this is an exceptional case. He demonstrated a strong sense of entitlement. However, I have formed the view that he showed a clear unwillingness to reflect on his actions. He continued to rationalise and justify his position in a very assertive manner.
- Overall, I found PWJ to be unresponsive and eventually disengaged from this process. He couldn't remember the details of criminal offences in his past and was unable to relate his versions of alleged domestic violent incidents or other events including his recent charges without minimising his own responsibility.
- PWJ may have improved his case by adopting a more open and conciliatory manner. This may have demonstrated that he had learned from his previous experiences. I accept PWJ’s evidence that it is very difficult for an indigenous man to respond effectively in such an environment and I have taken that into account.
- I find that there is a considerable tension in this case because there are aspects of the applicant's case, which suggest that he is a good person who has made some mistakes but is endeavouring to do something about them. He has apparently demonstrated unique and valuable skills in working with people who are troubled across a broad cross-section of his community.
- However, in doing so he has not shown he has insight into how his past violence and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable children.
- I have come to the view that this is an exceptional case where on the balance of probabilities it would not be in the best interests of children for a positive notice to issue to the applicant at this point in time.
- The Tribunal orders that the CEO’s decision to refuse the applicant a positive notice and a Blue card is confirmed.
- Both parties have requested that a non-publication order be made. I consider that it is in PWJ’s children’s best interests and in the interests of justice that a confidentiality order be made so that the children are not able to be identified in any way.
- Pursuant to section 66 of the QCAT Act, the Tribunal prohibits the publication of the names of PWJ and the name of his witness. The Reasons will be published in a de-identified format.
- The Orders of the Tribunal are:
- The decision of the Chief Executive Officer, Public Safety Business Agency to issue PWJ a negative notice is confirmed.
- The Tribunal prohibits the publication of the names of the applicant and his children and witnesses.
- Published Case Name:
PWJ v Public Safety business Agency
- Shortened Case Name:
PWJ v Public Safety business Agency
 QCAT 179
15 Jun 2016