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Oxlee v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 318

Oxlee v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 318

CITATION:

Oxlee v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 318

PARTIES:

Russell James Oxlee

(Applicant)

 

v

 

Chief Executive Officer, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

CML092-16

MATTER TYPE:

Children matters

HEARING DATE:

30 August 2016

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

1 September 2016

DELIVERED AT:

Townsville

DECISION MADE:

The decision of the Chief Executive Officer, Public Safety Business Agency dated 15 March 2016 to issue a negative notice to the Applicant is set aside.

CATCHWORDS:

CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice and cancel a blue card – whether or not it is in the best interests of children to issue a positive notice – change in criminal history – whether exceptional circumstances exist.

NON PUBLICATION – identity of applicant – identity of witnesses – confidential information – whether in the interests of justice – discretion to be exercised when making a non-publication order – open justice principle – fair and accurate reporting of what takes place in the tribunal – onus is on the Applicant to show special circumstances.

 

Working with Children (Risk Management and Screening) Act 2000 – s 6, s 8, s 226(1) and s 360

Queensland Civil and Administrative Tribunal Act 2009, s 20, s 24, s 28 and s 66

Criminal Code Act, s 398

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

Perry and Browns Patents (1930) 48 RPC 200

Kent v Wilson [2000] VSC 98

Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1

Russell v Russell (1976) 134 CLR 495

Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89

Re Oxlee [2013] QMHC 22

APPEARANCES and REPRESENTATIONS:

 

APPLICANT:

Self Represented

RESPONDENT:

Mr J J Thompson, Counsel for the Public Safety Business Agency

REASONS FOR DECISION

 

Introduction

  1. [1]
    The Applicant is a 56-year-old married man who operates his own business.  His wife operates a Family Day Care Centre from their home.  He seeks a review of the decision of the Respondent to issue him with a negative notice and deny him a Blue Card. 
  1. [2]
    The Respondent is the Chief Executive Officer, Public Safety Business Agency.  The Respondent’s main functions are to administer the scheme under the Working with Children (Risk Management and Screening) Act 2000 (“Working with Children Act”) for the screening of people employed, or proposed to be employed in certain child related employment; and people carrying on, or proposing to carry on certain child related businesses.
  1. [3]
    The central focus of the Working with Children Act is the protection of children.  It is not intended that this focus would impose additional punishment on someone who has police or disciplinary information, but rather, is intended to put gates around employment to protect children from harm.[1]
  1. [4]
    The overriding principle is that the welfare and best interests of a child are paramount.  Every child is entitled to be cared for in a way that protects that child from harm and promotes that child’s wellbeing.[2] 

Review Jurisdiction

  1. [5]
    A person affected by a decision of the Respondent may apply to the Queensland Civil and Administrative Tribunal (the Tribunal) for a review of that decision.  The Tribunal must then hear and decide the review by way of a fresh hearing on the merits of the application.  The purpose of the review hearing is to produce the correct and preferable decision.[3]  In carrying out its functions to produce that correct and preferable decision, the tribunal may either –
  1. (a)
    confirm or amend the decision; or
  2. (b)
    set aside the decision and substitute its own decision; or
  3. (c)
    set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.[4] 

The Application

  1. [6]
    On 26 April 2012 the Applicant was issued with a positive notice and a Blue Card.  He made an application to renew that Blue Card on 22 June 2015.  When the initial Blue Card was issued to the Applicant in 2012, a number of factors were apparent, such as –
  1. (a)
    The Applicant’s wife[5] had already established her Family Day Care business; 
  2. (b)
    The Applicant was on bail awaiting sentence in the District Court for the offence of stealing as a servant;  
  3. (c)
    The Applicant’s criminal matter had been referred to the Mental Health Court;
  4. (d)
    The prosecution case against the Applicant was strong.  Incriminating evidence had been located on his work computer, the stolen money had been transferred into the Applicant’s bank account and he had made full admissions to the offence.
  1. [7]
    All of those factors above should have been known to the Respondent at the time of the Applicant’s initial application, or at the very least were discoverable.  It was when the Applicant made an application to renew his Blue Card that the Respondent made enquiries with the Queensland Police Service so far as any recorded criminal history. 
  1. [8]
    At the time when the initial Blue Card was issued to the Applicant in 2012, he did not have a recorded criminal history.  Notwithstanding that, his criminal behaviour would have been documented because he had been charged with an offence.  The Working with Children Act provides that a person being charged with an offence is a factor which is relevant in deciding whether or not there is an exceptional case.[6]
  1. [9]
    It was because of the Applicant’s subsequent conviction for that offence that the Respondent and issued him with a negative notice.  In giving reasons for that decision, the Respondent determined that the Applicant’s case is an exceptional one. 

The Applicant

  1. [10]
    The Applicant was born in Lilydale Victoria.  His childhood was unremarkable with no illnesses or emotional issues.  He studied for a commerce degree with the Royal Melbourne Institute of Technology (RMIT) but stopped studying to start his working life off as a cost clerk with the Ford Motor Company.  He later returned to the RMIT and completed his studies, graduating with a commerce degree.  With the assistance of the Ford Motor Company, he continued his studies at the RMIT and completed a Masters in Business Administration (MBA).   
  1. [11]
    He remained in the employment of the Ford Motor Company for about 20 years.  By that time, he had worked his way into the role of a senior financial manager.  After leaving the Ford Motor Company he worked for a number of companies including Huntsman Chemicals, George Weston Foods, CSR Sugar and then Blue Care. Those companies were large corporates, all with demanding cultures.  He also worked for Woolworths in a night fill role for about six years as a second job.   
  1. [12]
    Gambling became a significant issue for the Applicant, and most certainly had a catastrophic impact upon his life.  Although he had grown up to view horse racing from a recreational perspective, it never became an issue for him until he was in his mid-30s.  His earliest recollection of gambling was its use as a means to escape from work related stress.  
  1. [13]
    In 2008 the Applicant went through periods of mood fluctuations, he went from being depressed to periods of hyper activity and feeling like ‘superman’.  His behaviour was later diagnosed as classic rapid cycling bipolar.  He acknowledges that at that time he had very little insight into himself. 
  1. [14]
    His gambling increased.  To fund his addiction, he started embezzling funds from his employer.  It was not until the extent of his criminality was discovered that he sought assistance for his mental condition.  After his arrest he was admitted to the Royal Brisbane Hospital mental health unit where he was diagnosed with Bipolar Affective Disorder. 
  1. [15]
    He was placed on mood stabilising medication and he began counselling services at the hospital with both a psychiatrist and a psychologist.  He also attended specific gambling counselling sessions.  Although his parents and his siblings supported him at this time, his marriage broke down and he lost the support of his wife and children.

The Applicant’s criminal history

  1. [16]
    The Applicant was convicted for stealing $149,600 from his employer during the period of 29 October 2008 to 14 January 2010.  He had established a system of producing false invoices, which he would the approved the payments of those invoices.  Those payments were deposited into a bank account.  It was not a terribly well thought out arrangement as the bank account was identified as Applicant’s family partnership which he had established and was a signatory. 
  1. [17]
    When arrested he made full disclosures to the police of his involvement in the offence.  He was charged with the offence of stealing as a servant.[7]  Because of the diagnosis relating to his mental health, there was a difference of psychiatric opinion as to whether he suffered from a mental illness sufficient to deprive him of one of the relevant capabilities at the time of his offence.  His matter was referred to the Mental Health Court for determination.  The Mental Health Court determined that he was not of unsound mind at the time of the offence.[8]    
  1. [18]
    On 8 May 2014 he pleaded guilty to the offence in the District Court at Townsville.  He was sentenced to a four-year term of imprisonment, suspended after he had served 14 months in custody.  He was released from prison in July 2015.
  1. [19]
    Since his release from prison in July 2015 he has established a lawn, landscaping and cleaning business.  His personal circumstances have also changed.  At the time of his criminal offending he was married to his first wife.  When he was charged she left him.  They divorced in 2011.  He has since remarried.  His current wife is aware of his background, and is particularly aware of his former addiction to gambling and the reasons why he spent time in prison. 

Reasons for a Blue Card

  1. [20]
    The Applicant’s wife operates a Family Day Care from their home.  She has over 23 years experience in the child care industry and has operated her business for the past four years.  Whilst the Applicant doesn’t actively involve himself in his wife’s day care business on a daily basis, there is the opportunity for him from time to time to assist her with the care of the children on excursion activities.    
  1. [21]
    The Applicant says that the Respondent should hold no concerns of him returning to his prior addiction to gambling.  He now deploys a number of coping strategies to overcome any suggestion that he may return to that old habit.  Those strategies consist of him understanding that he will be on mood stabilising medication for the rest of his life and being monitored by his doctor through blood testing. 
  1. [22]
    The Applicant’s working life has completely changed.  He now operates his own business far away from the stresses of large corporations.  He enjoys the love and support of his wife who understands where he came from, so far as his psychological illness and his gambling.  She helps him manage his health and his finances and he no longer gambles. 

Supporting Evidence

  1. [23]
    The Applicant called two witnesses to support his application.  They were Pam Oxlee[9] and Lorna Murphy.  Each gave similar evidence in that they had witnessed the Applicant’s interaction with children. 
  1. [24]
    The observations by the witnesses of the Applicant’s interactions indicated that he has always had a positive effect upon children.  The Tribunal accepts that these witnesses were genuine in their comments about the him. 

Other evidence

  1. [25]
    The Applicant relied upon a copy of a letter under the hand of Dr Jonathan Rainbow.  This letter was unchallenged by the Respondent.  The Tribunal exercised its discretion and accepted the contents of that as the contents are considered appropriate and relevant to the Applicant’s application.[10]   
  1. [26]
    In his letter to the Tribunal, Dr Rainbow confirmed that he has been the Applicant’s GP since 9 August 2011.  Inclusive of saying that the Applicant’s bipolar affective disorder did not adversely affect his suitability for child related employment, Dr Rainbow wrote that the Applicant –
  1. (a)
    Regularly consults with Dr Rainbow for a review of his condition and medication;
  2. (b)
    Is currently treated with the mood stabiliser, Lithium and his bipolar affective disorder is stable on his current treatment;
  3. (c)
    Has insight in both the risk factors and the triggers for bipolar, along with the detrimental behaviour that resulted from his past criminal offending and the impact it had on others;
  4. (d)
    Has made significant lifestyle changes in order to better manage his bipolar;
  5. (e)
    Has a supportive and vigilant wife who monitors his condition and who is in a position to act promptly is there are any changes in his moods;
  6. (f)
    Has changed his work lifestyle.  He is now self-employed and now works in a less stressful working environment.  

The Respondent’s position

  1. [27]
    In issuing a negative notice to the Applicant, the Respondent said that it would not be in the best interests of children for a positive notice to be issued.  In issuing that negative notice, the Respondent relied upon following factors.[11] 
  1. (a)
    The Applicant's offending behaviour occurred over a significant period and only ceased when his criminal behaviour was detected by his employers.  Because of what he did, his actions – 
  1. (i)
    Caused significant detriment to the not-for-profit organisation which provides care to vulnerable members of the community. 
  1. (ii)
    Reflected adversely on his ability to act in the best interest of vulnerable people.
  2. (iii)
    Displayed very poor role modelling.
  1. (b)
    The Applicant remains the subject of a suspended term of imprisonment until May 2018.  If not for that suspended sentence, the risk is that the Applicant would reoffend. 
  2. (c)
    The Applicant showed no insight into what impact his offending had on the vulnerable people who he effectively defrauded.
  3. (d)
    The identification by the Applicant of the cause of his offending and his subsequent completion of a counselling program with Relationships Australia as well as his ongoing treatment with a medial practitioner. 
  4. (e)
    The Applicant’s undiagnosed mental health condition at the time of his criminal offending.
  5. (f)
    The Applicant being hospitalised on two occasions for his mental health condition. 
  1. (g)
    Despite that initial treatment he has now receives treatment, is now medicated, he sees his general practitioner every two months to monitor his medication and health and he is now considered stable.  Despite those disclosures, the Applicant has not provided evidence to corroborate the extent of his rehabilitation.
  2. (h)
    The references he provided to support his application did not identify if those people were aware of his offending.
  1. [28]
    The Respondent relies upon those factors to substantiate an argument that the Applicant’s circumstances make it an exceptional case.  Despite the Respondent saying that there is an exceptional case, there is an acknowledgment of a number of protective factors in favour of the Applicant.  They include the Applicant –
  1. (a)
    Taking steps to remove the influence of habitual gambling from his life, including attending counselling and seeking professional psychiatric treatment;
  2. (b)
    Now being in a stable relationship with family support;
  3. (c)
    Continuing to engage with medical and psychiatric treatment;
  4. (d)
    Moving to a new city, and thereby to some extent, removing himself from former habits and influences;
  5. (e)
    Developing a range of strategies to avoid circumstances similar to those involved in his offending;
  6. (f)
    Being extremely remorseful for his offending.

What is an “exceptional case”?

  1. [29]
    The term “exceptional case” is not defined in the Working with Children Act.  However, it has been the subject of prior discussion in the Tribunal’s Appeal jurisdiction.  The term “exceptional case” was said to be a question of fact and degree to be decided in each individual case.  Regard must be had to the context of the legislation, along with the intent, purpose and design of that legislation for the protection of children.[12] 
  1. [30]
    The most frequently cited definition of "exceptional case” is taken from the judgment of Luxmoore J in Re Perry and Brown's Patents (1930) 48 RPC 200.  Particular attention should be drawn to his warning that it would be most unwise to lay down any general rule with regard to what is an exceptional case.  These types of matters are matters of discretion and each case is to be considered on its own facts.[13]
  1. [31]
    In making a determination and deciding whether there is an exceptional case for the Applicant, consideration must be given to all of the circumstances, and regard must be taken of when the offence was committed, the nature of the Applicant’s offending behaviour, its relevance to his employment, if the offence involved children; and anything else reasonably considered relevant to the assessment of his eligibility. 

Conclusion

  1. [32]
    The Tribunal must be satisfied whether the nature of the Applicant’s offending behaviour, which came to light some six years ago, is such that there are exceptional circumstances to justify reaching a decision that it would not be in the best interests of children or young people if a positive notice and a blue card was issued to him.
  1. [33]
    The offence for which the Applicant was convicted of is not deemed a “serious offence” or a “disqualifying offence” within the provisions of the Working with Children Act.  The Tribunal notes that the circumstances of the Applicant’s offending involved a serious breach of his employer’s trust.  Notwithstanding that, it would seem that there were mitigating circumstances involved.  Until that time, he had an unblemished record and has since remained offence free.  It seems that the offence was out of character for the Applicant, and one which was motivated by a gambling addiction and his motives affected by his psychological condition.  The circumstances are in no way related to the nature of why he seeks a Blue Card.
  1. [34]
    The circumstances of the Applicant’s rehabilitation with the assistance with his medical regime, the monitoring by his medical practitioner and the vigilance of his wife are comforting features of the Applicant’s case.  There is a reasonable anticipation or expectation that his remorsefulness and determination to improve his past behaviours is a significant protective factor.         
  1. [35]
    The Tribunal is satisfied that there are no circumstances or factors which render the Applicant’s case as an exceptional one.  The Tribunal is also satisfied that there are a number of significant protective factors which would not harm the best interest of children for a positive notice and a Blue Card to be issued to the Applicant.  The Tribunal is satisfied that the correct and preferable decision in this matter is to set aside the Respondent’s decision.

Non-Publication Order

  1. [36]
    The Queensland Civil and Administrative Tribunal Act provides the Tribunal with the discretionary power to make a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.[14] 
  1. [37]
    The Tribunal may make a non-publication order on its own initiative, or on the application of a party.[15]  In his oral submissions at the end of the hearing the Applicant asked the Tribunal to initiate a non-publication order saying that it was not in interests of justice to identify his mental health condition.
  1. [38]
    The phrase “in the interests of justice” and the exercise of the Tribunal’s discretion to make a non-publication order was discussed by Wilson J[16] in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [7] to [10] (Cutbush).  Although reference was made a number of times to the term “courts”, there can be no reason why that same principle cannot be applied to Tribunals. 
  1. [39]
    In Cutbush, the Tribunal Appeals jurisdiction determined that although the phrase “in the interests of justice” itself is not defined in the Queensland Civil and Administrative Tribunal Act, it generally confers a broad discretionary power on the decision-maker.  However, that discretion is not to be exercised lightly, and should only be exercised if the Tribunal considers the order is necessary.[17]
  1. [40]
    That discretion is reinforced by the principle of open justice which aims to ensure that not only are Tribunal proceedings fully exposed to public scrutiny and criticism, but the confidence in the integrity and independence of the Tribunal should be maintained.[18]
  1. [41]
    Open justice is a principle characterised by openness and transparency.  For open justice to prevail, there must be fair and accurate reporting of what takes place in the Tribunal.  This should be encouraged, subject of course to whether the particular matter is one which allows for the identification of the parties.  A non-publication order should only be made by the Tribunal if there is some material before it to show that it is reasonably necessary to prohibit the publication. 
  1. [42]
    The onus rests with the Applicant to show that special circumstances exist justifying the making of a non-publication order.  The Applicant has not discharged that onus and his application is dismissed.

Decision

  1. [43]
    The decision of the Tribunal is that –  

The decision of the Chief Executive Officer, Public Safety Business Agency dated 15 March 2016 to issue a negative notice to the Applicant is set aside.

Footnotes

[1] Second reading speech Commission for Children and Young People Bill – p. 4391.

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6 and 360.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.

[5] Pam Oxlee.

[6] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226(1).

[7] Criminal Code, s 398. 

[8] Re Oxlee [2013] QMHC 22.

[9] The Applicant’s wife.

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28.

[11] Respondent’s Reasons for the decision to issue a negative notice.

[12] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at 31 (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22]).

[13] Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 per Fullager J.

[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(1).

[15] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(3).

[16] The then President of the Queensland Civil and Administrative Tribunal.

[17] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2).

[18] Russell v Russell (1976) 134 CLR 495 at 520 per Gibbs J and cited in Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89 at [8].

Close

Editorial Notes

  • Published Case Name:

    Oxlee v Chief Executive Officer, Public Safety Business Agency

  • Shortened Case Name:

    Oxlee v Chief Executive Officer, Public Safety Business Agency

  • MNC:

    [2016] QCAT 318

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    01 Sep 2016

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
Cutbush v Team Maree Property Service (No 3) [2010] QCATA 89
3 citations
Jump To
Cite 1 - [2010] QCATA 89
Cite 2 - [2010] QCATA 89
Cite 3 - [2010] QCATA 89
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
Perry and Browns Patents (1930) 48 RPC 200
2 citations
Jump To
Cite 1 - (1930) 48 RPC 200
Cite 2 - (1930) 48 RPC 200
Re Imperial Chemical Industries Ltd's Patent Extension Petitions [1983] 1 VR 1
2 citations
Jump To
Cite 1 - [1983] 1 VR 1
Cite 2 - [1983] 1 VR 1
Re Oxlee [2013] QMHC 22
2 citations
Jump To
Cite 1 - [2013] QMHC 22
Cite 2 - [2013] QMHC 22
Russell -v- Russell (1976) 134 CLR 495
2 citations
Jump To
Cite 1 - (1976) 134 CLR 495
Cite 2 - (1976) 134 CLR 495

Cases Citing

Case NameFull CitationFrequency
Corps v Director-General, Department of Justice and Attorney-General [2017] QCAT 2192 citations
1

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