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PT v Chief Executive Officer Public Safety Business Agency[2016] QCAT 297

PT v Chief Executive Officer Public Safety Business Agency[2016] QCAT 297

CITATION:

PT v Chief Executive Officer Public Safety Business Agency [2016] QCAT 297

PARTIES:

PT

Applicant

v

Chief Executive Officer Public Safety Business Agency

Respondent

APPLICATION NUMBER:

CML035-16

MATTER TYPE:

Childrens matters

HEARING DATE:

11 July 2016

HEARD AT:

Cairns

DECISION OF:

Member Johnston

DELIVERED ON:

23 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The decision of the Public Safety Business Agency dated 11 January 2016 to issue a negative notice to PT is set aside. 

CATCHWORDS:

CHILDRENS MATTER  – BLUE CARD – REVIEW – where applicant seeks a review of the Agency’s decision to cancel a blue card and issue a negative notice – whether exceptional case exists – whether not in the best interests of children to issue a positive notice – where there is a change of charges in her police history

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 261 and s 266

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

APPEARANCES:

APPLICANT:

PT

RESPONDENT:

Chief Executive Officer, Public Safety Business Agency 

REPRESENTATIVES:

APPLICANT:

Self-represented

RESPONDENT:

Mr Thompson, Legal Officer

REASONS FOR DECISION

Background

  1. [1]
    The Applicant PT was issued with a positive notice and blue card 10 June 2004, 10 July 2006, 17 June 2008, 15 July 2010, and 16 May 2013.
  2. [2]
    The Respondent was subsequently notified by the Queensland Police Service that the Applicant’s Police information had changed. Accordingly, the Applicant’s eligibility has been re-assessed.
  3. [3]
    On 11 January 2016, the Applicant was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000. At that time, the Applicant was provided with a written notice outlining the decision, the reasons for the decision, and the relevant review information.
  4. [4]
    On 8 February 2016, an application was lodged in the Queensland Civil and Administrative Tribunal for a review of the Respondent’s decision that the Applicant’s case was not an ‘exceptional case’ in which it would not harm the best interests of children for the Applicant to be issued with a positive notice and blue card.
  5. [5]
    The matter proceeded to oral hearing Cairns on 11 July 2016.

Relevant law to be applied by the Tribunal

  1. [6]
    The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
  2. [7]
    The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
  3. [8]
    The decision under review is whether the Applicant’s case is an ‘exceptional case’ inasmuch as the presumption prescribed by section 225 of the Act has been displaced. Because of the Applicant’s Police information the statutory presumption is that a notice should be issued to the Applicant.
  4. [9]
    In order to issue a negative notice to the Applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ exists.
  5. [10]
    Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
  6. [11]
    The Tribunal has decided in other cases that the passage of time alone is not determinative as to whether or not an ‘exceptional case’ exists.

PT

  1. [12]
    On 23 May 2015 the Applicant was having drinks with friends when the Mareeba Police executed a search warrant for the premises. The Police found marijuana, a bong and a marijuana plant growing in the yard.
  2. [13]
    Whilst interviewing the parties present at the house the Applicant told the Police that she was responsible for the marijuana that had been seized, the bong that had been found and the one marijuana plant growing in the yard. The Applicant was charged with: possessing utensils or pipes that had been used by marijuana; permitting the use of the place for drugs: and producing a dangerous drug.
  3. [14]
    The Applicant pleaded guilty to the three offences and the result was: No Convictions recorded; recognisance of $1000; and a good behaviour bond for 12 months.
  4. [15]
    The Applicant told the Tribunal that the youngest person at the premises was her 15-year-old son. The other young people were 18 and above.
  5. [16]
    The Applicant told the Tribunal that she did not smoke marijuana and was opposed to young people using the drug.
  6. [17]
    When Police attended a small amount of marijuana was being used by the young people at her house. The Applicant took responsibility for the drug offences so that the young people using the drug would not get into trouble.
  7. [18]
    These were the Applicant’s first convictions as she has never been in trouble with the law previously.
  8. [19]
    The Applicant conceded that marijuana was being used at the premises. The Applicant conceded that a home-made bong or utensil was found on the premises. The Applicant conceded that there was a marijuana plant growing in her yard.
  9. [20]
    The Applicant stated that she knew that young men were smoking on the premises. The Applicant conceded that this was not the first occasion that this had happened. The young people smoking marijuana were all over 18 years of age. Her 15-year-old son K was not involved.
  10. [21]
    The Applicant told the Tribunal that she would not let anyone under 18 smoke marijuana in her home.
  11. [22]
    The Applicant told the Tribunal that she did not support the young people smoking marijuana. The Applicant has sat down with her own children and other young people and tried to convince them to stop smoking marijuana. She has spoken to them on numerous occasions and offered to take them to ATODs (the Alcohol and Drugs agency in Mareeba). 
  12. [23]
    The Applicant stated that she had become a single parent five years ago. She worked two jobs working Monday to Friday 8 to 5 at St Johns looking after the elderly and she worked in hospitality nights and weekends.
  13. [24]
    The Applicant has done a lot of work for the Mareeba Junior Rugby League and always has a house full of children. She denied drug use would be usual at her household.
  14. [25]
    The Applicant told the Tribunal that it was difficult to get children (specifically teenagers) to listen to what their parents say. She had told them on numerous occasions that they were making the wrong decision by smoking marijuana. She stated that she had a good relationship with her children and that they would come to her with their problems.

BT

  1. [26]
    Ms BT has known the Applicant in a variety of roles over the last 20 years. This has included work, teams and personnel. In her role in Aged Care she :

was a caring and supportive person

showed patience and a high level of professionalism

had good communication skills

was committed to the rights of elderly people 

  1. [27]
    She stepped into Junior Rugby League - first as secretary then first aid and demonstrated excellent relationships with children including aboriginal children.
  2. [28]
    The Applicant opens her house to many teenagers and does not talk to them like a parent. She does not judge them. She does not condone drugs and drinking.
  3. [29]
    Ms BT was at the house when the Police raid took place. It was chaotic and messy. She was surprised when the drugs were found. The Applicant took responsibility for what had happened. She knew that the young people would otherwise get in trouble. She does not believe that the marijuana was for her.
  4. [30]
    The Applicant has told her children that they should not smoke marijuana. They respond; “Ha whatever”; “mind your own business”; or “shut up”. They have to learn their own lessons. The Applicant does not condone drugs. She knows from speaking with her that the Applicant has tried to stop teenagers using drugs. The teenagers do it anyway and if not at their place, where do they do it? Are they safe where they did smoke marijuana?

MB

  1. [31]
    Mr MB is a son of the Applicant.
  2. [32]
    His mother has never condoned or supported him or his friends’ choice to use marijuana.
  3. [33]
    The Police came with a warrant for a meth lab at the back of the house. There was no such lab and there had never been such a lab. He and his teenage friends were using a little marijuana and using a bong to smoke it.
  4. [34]
    His mother had nothing to do with the charges. She had told him on previous occasions to stop smoking marijuana and he had told her that he was an adult and would make his own this choices.
  5. [35]
    Mr MB acknowledged that he had dabbled with marijuana before he turned 18 but that was in secret and his mother did not know. When he started openly smoking marijuana that caused arguments. He knew that she would not kick him out so he continued with this behaviour. He now recognises that it was his actions were stupid and had put her in trouble.

HL

  1. [36]
    Mr HL is a friend of MB.
  2. [37]
    Mr HL stated that the Applicant is one of those mums who does everything – work, struggle, volunteer, cook, taxi and lend a listening ear. She has always made everyone welcome. She has never condoned drugs. She would give us advice on the negatives of taking drugs and say that we should not take drugs.
  3. [38]
    He can remember her sitting down with him and others talking about the effect on their finances and how it would affect them getting a job. She told them where they could get help for drug addiction.
  4. [39]
    He accepts that his choice to smoke marijuana was not good but never did he think that his actions would affect anyone else.

JG

  1. [40]
    Mr JG is a friend of MB.
  2. [41]
    He told the Tribunal that he was 23 years of age. He walked into the residence when the police raid was taking place.
  3. [42]
    He stated that the Applicant was a loving, caring, and supportive mother who never condoned bad behaviour or drugs - who always did her best to be an excellent role model.
  4. [43]
    The Applicant told him and others about the negatives of smoking marijuana, that it was illegal, and gave us good reasons why not to smoke marijuana. However we made our own minds up.
  5. [44]
    He was surprised that she took responsibility for the offences because he knew her attitude to drugs.
  6. [45]
    Her children knew that they could smoke drugs because they would not be kicked out.
  7. [46]
    He told the Tribunal that his group would have a few beers at the end of the week and smoke a couple joints of marijuana. He stated that drugs could always be found at parties.
  8. [47]
    On the night the Police came, they found 10 mates gathered round the fire sharing a small amount of marijuana. All those there were over the age of 18. The only child of residence was the Applicant’s son K who was 15 years of age. He was inside the house and not involved at all with the group smoking marijuana.

Public Safety Business Agency

  1. [48]
    Mr Thompson referred the Tribunal to the Statement of Reasons provided with the decision of 11 January 2016.
  2. [49]
    The reassessment of the Applicant’s blue card came about because of a change to the Applicant’s police information.
  3. [50]
    The Tribunal must make the correct and preferable decision. There are no serious charges so a blue card should be issued unless an exceptional case occurs where such a route would not promote the welfare and best interests of children.
  4. [51]
    Mr Thompson told the Tribunal that s 226(2) of the Act indicates some of the factors that are relevant. These include Applicant’s criminal convictions (see the Statement of Reasons at paragraph 5.4). The evidence of hearing has illuminated the picture.
  5. [52]
    The Applicant pleaded guilty to three charges and was convicted of those charges. These were not serious offences, however the offences are recent having occurred one year ago. They are drug-related.
  6. [53]
    The Tribunal cannot go behind the convictions and is unable to give any weight to the evidence inconsistent with the finding of guilt or the elements of the offence.
  7. [54]
    Section 57C of the Drugs Misuse Act deems the person who owns the property to have the possession of the drugs and premises. The two other charges do not contain deeming offenses.
  8. [55]
    The Statement of Reasons paragraph 5.4 states that the Applicant “openly supports the use of drugs by children as young as 15 years old on her property”. The evidence given during the hearing does not support this contention. There was no evidence given during the hearing that supports this contention. There is no evidence that the Applicant supports drug use. The only person under 18 was her son K and he was not involved with the group smoking marijuana.
  9. [56]
    The Statement of Reasons at paragraph 5.4 states that the Applicant “normalises the use of illegal drugs “.The evidence at the hearing was that drug taking was not something she supported. She has counselled the children (teenagers) about the use of drugs. She has talked about the financial impact, the employment problems and the help that can be obtained from ATODs.
  10. [57]
    The Applicant has always been telling young people not to use marijuana. Other witnesses support this evidence. She has been unable to get the teenagers to listen to her.
  11. [58]
    MB told the Tribunal that the Applicant had told him to stop using drugs. HL described the Applicant as accepting and not judgemental. He heard discussions when she actively did not support drug taking. JG gave similar evidence i.e. she had discussed with them not using marijuana. BT is in a similar position to the Applicant. She says that the Applicant is doing her best but not getting full help from the teenage children.
  12. [59]
    There is no evidence that the Applicant sought to normalise drug taking.
  13. [60]
    The Applicant was convicted by the Magistrate who decided in the circumstances not to record the convictions.
  14. [61]
    The case of Grinrod is relevant in that any particular ability to support children is not relevant. There is a need to look at the Applicant’s character.
  15. [62]
    The decision of Maher v Commissioner for Children and Young People established that the Tribunal could look at positive protective factors and risk factors.
  16. [63]
    The Respondent submits the following risk factors:

the principal risk factor is the existence of the convictions

the Applicant was ultimately responsible for the drug use at her home

the Applicant permitted the use of drugs at her residence on an ongoing basis

  1. [64]
    The Respondent submits the following protective factors :

evidence that the Applicant was a caring parent actively involved with children and their parents

the offending took place at a time when the Applicant was under particular pressure. The Applicant had been working two jobs seven days a week. She had personal issues with the breakdown of the relationship with her former partner.

evidence of her being a respectful person. Her references speak highly of her character

evidence of a constant person who is responsible and caring

no conviction recorded for the offences and the penalty being a good behaviour bond for 12 months

the Applicant has an absence of criminal history other than the current convictions and has a clear run of appropriate behaviour

the Applicant is not a drug user herself

the Applicant having found employment with a different Age Carer placement

  1. [65]
    The Respondent submits that the loss of her position is not relevant (as per Grinrod’s case).
  2. [66]
    The Respondent conceded that his only concern is the impact of behaviour of people children under 18. The evidence is that K the only child under 18 was on his own and ignored what was going on.

Applicant’s submissions

  1. [67]
    The Applicant declined the opportunity to make final submissions.

What is an “exceptional case”?

  1. [68]
    The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).
  2. [69]
    The QCAT Act governs the processes and procedures to be adopted by the Tribunal with the decision-making process being governed by the Act to make the correct and preferable decision.
  3. [70]
    The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
  4. [71]
    The decision under review was whether the case is an exceptional case such that the presumption prescribed by section 221 of the Act has been displaced. Based on the Applicant’s police information the statutory presumption is that a positive notice should be issued to Applicant.
  5. [72]
    In order to not issue a positive notice to the Applicant the Tribunal must be satisfied, on balance of probabilities and bearing in mind the gravity of the consequences of, that an ‘exceptional case’ does exist.
  6. [73]
    The Act does not define the meaning of an “exceptional case”. Section 226 of the Act refers to certain factors that the Respondent must have regard to in determining whether this is an ‘exceptional case’, including, amongst others, when the offence was committed, the nature of the offending behaviour and anything that the Respondent reasonably considers relevant to the assessment of the person.
  7. [74]
    The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009, in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its “paramount consideration”.[1]
  8. [75]
    It has been previously determined by the Appeal Tribunal that the meaning of an ‘exceptional case’ is a matter of discretion and should not be confined to “any general rule”.[2] The Appeal Tribunal in considering the decision in the Commissioner for Children and Young People and Child Guardian v Maher [3] stated:

The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]

  1. [76]
    The Tribunal in determining whether an exceptional case exists must be satisfied that in considering all of the circumstances including the nature of the offending behaviour, there are exceptional circumstances which dictate that it would not be in the best interests for children for a blue card to be re-issued.
  2. [77]
    The purpose of employment screening is to assess the risk to children involved from anything disclosed by such check. The focus on convictions is not a mere theoretical or possible risk arising from the fact of the previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential for harm.
  3. [78]
    The Tribunal must be satisfied that she is an exceptional case of harm to children. The onus is on the Brigginshaw standard (on the balance of probabilities) to show that the there is such exceptional case of relating to harm to children.
  4. [79]
    The Tribunal in relation to paragraph 66 the Respondent made a submission about Grinrod’s case, in which the relevant Western Australia Tribunal stated:

… any benefit might flow to children by having access to the applicant’s knowledge, experience or flair to children is of no relevance if there exists an unacceptable risk to children from future contact

  1. [80]
    The Tribunal makes two points in relation to this case. The first is that the Tribunal has not accepted the “unacceptable risk” test since 2011 (see Commissioner for Children and Young People and Child Guardian v FGC [2011] Q2CATA 291. The second point is that in Grinrod the Tribunal said that because it had determined that Mr Grinrod was an unacceptable risk the Tribunal could not take into account his positive work with children. The Tribunal is of the view in this case that Grinrod should be distinguished for this reason and the Applicant’s work with children should be seen as a significant positive protective factor in looking at whether an exceptional case exists.
  2. [81]
    Paragraph 5.4 of the Respondent’s Statement of Reasons stated in subparagraph 1 that “the Applicant’s offending involved her openly supporting and facilitating the use of drugs by children as young as 15 years old on her property”. The Tribunal notes that the Respondent in submissions conceded that there was no evidence to support this claim. The evidence presented was that the Applicant had counselled the young people on a number of occasions about not using drugs.
  3. [82]
    The Respondent told the Tribunal that if all the young people involved were over 18 the Respondent did not see this as a risk to children. The evidence presented was that the young people smoking marijuana were all over 18 years of age. The only child in the household was the Applicant’s son K who was 15 years of age. The evidence is that K was not involved with this activity.
  4. [83]
    The Respondent in the Statement of Reasons in paragraph 5.4 at subparagraph 2 stated, “that the evidence suggests the applicant sought to normalise the use of illegal drugs by her children and friends and openly exposed them to drugs and drug culture including through her own production of illegal drugs on the premises”. The Respondent conceded that the evidence did not support this contention. The evidence of the Applicant was that she was opposed to drug taking and had counselled her children and the young people about drug use. This was supported by the evidence of the young people who gave evidence at the hearing.
  5. [84]
    Whilst this was not the first time that this had happened at the residence, the evidence of the Applicant which is accepted by the Tribunal was that this was a rare time this happened. The Tribunal also notes the evidence that when this did happen this involved young people over the age of 18 years.
  6. [85]
    Whilst the Applicant had admitted that she had watered a marijuana plant, the evidence was that she was did not support its use.
  7. [86]
    In relation to paragraph 5.4 subparagraph 3 of the Statement of Reasons the Respondent stated, “the Applicant’s drug offending is directly child-related and strongly suggests she lacks the ability to safeguard the well-being and best interests of children and young people.” The Respondent conceded that all the children/young people were over 18 years of age and that the use of marijuana was not a risk to children or young people. The evidence was that:

the young people were over 18 years of age;

the Applicant counselled the young people about the use of marijuana;

the Applicant’s 15-year-old son was not involved;

the Applicant would not have allowed her 15-year-old son to use marijuana as a minor.

  1. [87]
    The effect of the Respondent’s concessions address nearly all the concerns set out in paragraph 5.4 of the Statement of Reasons and undermines the basis of the decision to cancel the blue card. The Respondent to be fair conceded that the evidence painted a different picture to the written evidence available to the Respondent.
  2. [88]
    The Tribunal in considering whether an exceptional case exists notes that:

the issues around the nature of the offences outlined in paragraph 5.4 the Statement of Reasons have been dealt with above;

while the Applicant has three recent convictions; she has no prior convictions; the penalty namely “No Conviction Recorded with a good behaviour bond of $1000 for 12 months” is at the lower end of the scale for similar offences ;

the Applicant is not a drug user and has actively counselled children and young people against using drugs;

the evidence is that the Applicant is of good character;

the evidence is that the Applicant’s engagement with young people has been helpful for them.

  1. [89]
    The Tribunal agrees with the Respondent’s contentions about the risk factors in paragraph 63 of these Reasons subject to the comments made above which affect the weight that should be given in relation to these submissions.
  2. [90]
    The Tribunal agrees with the Respondent’s contentions about the positive protective factors outlined in paragraph 64 of these Reasons.
  3. [91]
    The Tribunal accepts the Respondent’s submission in relation to paragraph 65 of these Reasons that the Applicant’s loss of her position is not a relevant factor.
  4. [92]
    The Tribunal was impressed by the character evidence that was given on behalf of the Applicant. The Tribunal places weight on this evidence.
  5. [93]
    There is ample evidence of the positive way the Applicant interacts with children. The Tribunal sets this as an important factor.
  6. [94]
    The Tribunal is satisfied undertaking this weighting exercise that it has been established on the balance of probabilities that the Applicant is not an exceptional case against the harm and welfare of children and young people.
  7. [95]
    The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:

her criminal history as a whole; and

the balance between risk and protective factors

  1. [96]
    The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
  2. [97]
    The Respondent was probably right to refuse the Applicant at first instance based on the information that was before the Respondent.  The Tribunal has had the advantage of much more evidence than was before the Respondent and is of the view that the Applicant’s circumstances are such that the Tribunal is satisfied that this is not an exceptional case.

Orders

  1. [98]
    The decision of the Public Safety Business Agency dated 11 January 2016 to issue a negative notice to PT is set aside.

Footnotes

[1]Working with Children Risk Management and Screening Act 2000  s 8.

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

[3][2004] QCA 492 at [28].

[4]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33].

Close

Editorial Notes

  • Published Case Name:

    PT v Chief Executive Officer Public Safety Business Agency

  • Shortened Case Name:

    PT v Chief Executive Officer Public Safety Business Agency

  • MNC:

    [2016] QCAT 297

  • Court:

    QCAT

  • Judge(s):

    Member Johnston

  • Date:

    23 Aug 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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