ML v Public Safety Business Agency
[2016] QCAT 388
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- Unreported Judgment
- ML v Public Safety Business Agency[2016] QCAT 388
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ML v Public Safety Business Agency[2016] QCAT 388
ML v Public Safety Business Agency[2016] QCAT 388
CITATION: | ML v Public Safety Business Agency [2016] QCAT 388 |
PARTIES: | ML (Applicant) | |
v | ||
Public Safety Business Agency (Respondent) | ||
APPLICATION NUMBER: | CML136 – 16 | |
MATTER TYPE: | Children's matters |
HEARING DATE: | 9 September 2016 |
HEARD AT: | Cairns |
DECISION OF: | Member Johnston (Presiding) Dr Stepniak |
DELIVERED ON: | 12 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Public Safety Business Agency dated 3 May 2016 to issue a negative notice to ML is set aside. |
CATCHWORDS: | CHILDREN'S 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 his police history Working with Children (Risk Management and Screening) Act 2000 (Qld) s 261 and s 266 Queensland Civil and Administrative Tribunal 2009 (Qld) s 66 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 |
APPEARANCES:
APPLICANT: | ML |
RESPONDENT: | Chief Executive Officer, Public Safety Business Agency |
REPRESENTATIVES:
APPLICANT: | Ms Stephanie Williams of Counsel instructed by John Magoffin The Law Office |
RESPONDENT: | Mr Thompson, Legal Officer |
REASONS FOR DECISION
Background
- [1]The Applicant ML was issued with a positive notice and blue card on 16 January 2015.
- [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]On 3 May 2016, the Applicant was issued with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). 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]On 20 May 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]The matter proceeded to oral hearing Cairns on 9 September 2016.
Relevant law to be applied by the Tribunal
- [6]The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
- [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.
- [8]The decision under review is whether the Applicant’s case is an ‘exceptional case’ in as much as the presumption prescribed by section 225 of the Act has been displaced. The nature of the Applicant’s Police information is such that the statutory presumption is that a notice should be issued to the Applicant.
- [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.
- [10]Any hardship or prejudice suffered by the Applicant due to such a determination is irrelevant to this consideration.
- [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.
AA
- [12]AA told the Tribunal that ML had been caring for her special needs child for the past 4 ½ years. She needed someone who was reliable with the child and who could deal with his behaviour and other issues. ML was such a person. He was able to deal with the child when he was frightened and stressed. He was able to ensure the child’s safety. She had seen ML handle difficult situations, which he did very well. He speaks to her son calmly and quietly and explains things to him in ways that he could understand. She has never seen him become physical with her son or lose his temper. She was aware of his charges and had no concerns about ML looking after her child.
- [13]AA told the Tribunal that it had taken her a long time to find the right carer. ML built up such a level of trust and he helped in so many amazing ways for both herself and her son.
- [14]AA stated that she had never seen ML intoxicated. She saw him as a reliable person dedicated to those with disabilities. She saw him as having special abilities to help her child. She was of the view that his offences were out of character. She has known him for thousands of hours without any issues whatsoever. She sees ML as an advocate for disabled children who do not have the capacity themselves.
ML
- [15]ML described the events as being out of character. He told the Tribunal that he was a normally a calm person. He had entered into an abusive relationship that went on for five years and the charges related to things that happened at the end of that relationship. He described how he and his partner went to the Cairns Festival with work colleagues and was having a good time when his partner became jealous. His partner left and he became intoxicated.
- [16]When he arrived home, his car had been keyed, his clothes had been thrown around, he was ambushed by his ex-partner, and an altercation had taken place. When he went upstairs and a punch up happened. After he and his partner had calmed down a second incident occurred when he was pushed into the fridge and fell on a pedestal fan. He denied kicking his ex-partner but admitted to punching him. He denied trying to bite his ex-partner but alleged that his ex-partner had tried to bite him. He referred to an incident six months earlier when his ex-partner had bitten off part of his nose. He admitted that he was angry and was not going to let his ex-partner get the better of him. He denied doing more than defending himself. He admitted to being intoxicated but said that this was uncharacteristic of his drinking habits. The Police had photographs of both parties, which showed they both had been injured by the altercation.
- [17]ML took exception to the allegation that he acted violently without restraint. He told the Tribunal that he had been in no trouble with the law before. He had acted as a carer for 4 ½ years without issue. He admitted that he was drunk and that the decision to return was a poor one. His problem was that he had a dog with epilepsy and he needed to return to get the dog. On the night in question, he was trying to get his keys and effects so that he could move out. He had been trying to leave for some time. He did not want to antagonise his ex-partner.
- [18]ML denied that the incident was triggered by his alcohol consumption. He told the Tribunal that he would have acted similarly in the circumstances if he had been sober. In hindsight, he should have got his dad to grab the dog and his personal effects. He claimed to be of sober habits generally and only drank socially. His alcohol consumption did not affect his work at all. He acknowledged that it was not in the best interests of children to see violent, threatening behaviour.
- [19]The Police were called and he became angry with the Police because they appeared to be siding with his ex-partner and had no interest about his concerns about his dog. He admitted that he had subsequently telephoned the Police and made threats against them. He was charged with domestic violence charges and with threatening police. ML told the Tribunal that he had apologised to the Police Service for his actions.
- [20]ML told the Tribunal that he had ended his relationship and never wanted anything more to do with his ex-partner. He approached the Cairns Domestic Violence Service for strategies to get out of the cycle of violence. He had put in place strategies to stop things escalating. He had put in place boundaries. He for example refused to engage with his ex-partner who came around to his parents residences over the next month. He would call the Police who would attend his residence and register the complaint.
- [21]ML stated that he had moved back in with his parents so that he could receive their support for a new start. When they went away, he cared for his grandmother who had Alzheimer’s dementia. He had also cared for his other grandmother who had suffered a stroke. ML gave an example of a difficult situation that he managed with a child. One of the children in his care had witnessed an altercation between other children. This would normally be a trigger for behavioural changes. He was able to speak to the child about the incident and help him form a better response to the situation. This stopped an escalation in the child’s behaviour. He has dealt with many difficult situations over his 4 ½ years as a carer.
- [22]ML described the role he played as a carer for intellectually impaired children. He was looking after three people: two from ARC and a third person who was a 24-year-old with an intellectual disability.
- [23]He has complied with the orders of Magistrate Bentley. He described domestic violence as being traumatic and that he had found it difficult to end his relationship. He told the Tribunal that he did not answer private numbers, did not answer the door and avoided shopping centres. He acknowledged that in hindsight it would be better to have gone to his parents and had his father pick up his things and the dog the following day. He acknowledged that his consumption of alcohol had impaired his judgement and that he would not have spoken to Police that way if he had been sober. He indicated to the Tribunal that he had experienced remorse for his actions and had apologised to the Police Service. He repeated that his was a poor decision.
- [24]When he left school, he worked in hospitality, worked for Coles, worked at a drive-through bottle shop and finally found a job with ARC a disability service provider. He has enjoyed working as a carer for people with disabilities. He has over the last 4 ½ years done his best to care for those, he has worked with. AA has given evidence of his work with her child over that period.
- [25]When he works, he tries to establish a rapport and trust with the child and parent. He has a clean record with his work. He is a good influence over the children provides care for. He has made good decisions in relation to the safety of the children in his care. He views himself as a reliable trustworthy and skilful person with children with disabilities.
MK
- [26]MK is ML’s mother. She told the Tribunal that since her son had been undertaking counselling he was much more open with her about his personal matters. She was not surprised by the nature of the abusive relationship between her son and his ex-partner. She was contacted by the police whilst in Western Australia and told about what has happened. She was quite surprised by her son’s actions and described them as being out of character that he had reacted when pushed. She described him as a kind, caring and gentle person, and a happy-go-lucky person. He talks about his work with disabled children and adults in a positive way that clearly indicates that he is enjoying the work. She is not aware of him ever being involved in a physical altercation nor has she seen him having difficulties with his alcohol consumption or any other issues of concern.
Ms Stephanie Williams’ submissions
- [27]Ms Stephanie Williams told the Tribunal that there were the following positive protective factors:
AA’s evidence was that she had known ML for over 1000 hours and could trust him as a reliable person. Her evidence was that he had built up a good relationship with her son and kept his personal and private lives separate;
There were no children involved in relation to the charges and no evidence that there was any harm to children;
ML’s evidence was that he kept his private life very separate from his role as a carer for children;
AA’s evidence was that he was a calm person who would de-escalate her son when he became emotional;
ML gave examples of how he dealt with difficult situations when acting as a carer;
ML had shown insight into situations that were dynamic and stressful;
ML has the support of his family;
ML has undergone counselling with a domestic violence service;
ML has developed strong skills to manage similar situations;
ML does not answer private calls; does not answer the door; and calls Police if his ex-partner appears;
ML has shown increasing maturity from past behaviour;
ML has significant skills for dealing with the children in his care. This involves looking after children with intellectual impairments and young adults with intellectual impairments;
ML has shown remorse for his actions demonstrating increased maturity;...
- [28]Ms Williams stated that the question for the Tribunal was whether it was in the best interests of children for ML to have a blue card. She submitted that this was a case, based on AA’s evidence, where it was in the best interests of children, namely for disabled children, to have access to his significant skills as a carer. The practical effect of the cancellation of his blue card was a significant negative impact on AA’s child and AA herself. The evidence is that AA relied heavily on ML’s abilities as a carer. The child relied on the male carer for private needs such as hygiene, shaving and toileting. AA’s evidence was that finding an appropriate carer with the necessary skills for her son had been very difficult. AA’s evidence was that it was not in her son’s best interests not to have ML as his carer.
- [29]Ms Williams noted that the relationship from where charges had arisen had ended. This was a distinct period of ML’s life which was now over. During this time, he kept his private life separate and maintained his professional life as a carer. Ms Williams conceded that alcohol was a factor in what had happened and this affected his ability to make good decisions. There is no evidence to suggest that alcohol has otherwise affected his judgement. He has no history of becoming involved in fights. There is no suggestion that he has turned up intoxicated at work and that is a protective factor.
- [30]Ms Williams in relation to the penalties noted that they were of the lowest order, which was a reflection on the unique nature of these offences and the seriousness of the offences. ML made a mistake, which was out of character at a distressful period of his life.
- [31]Ms Williams submitted that this was not an exceptional case under section 221 of the Act and that the positive protective factors outweighed the risk factors.
Public Safety Business Agency
- [32]Mr Thompson conceded that Ms Williams had identified the correct test in section 221 of the Act and that ML was entitled to a blue card unless the Tribunal was satisfied that this was an exceptional case.
- [33]Mr Thompson noted that ML had applied for a blue card on 19 December 2014 and had received a blue card on 16 January 2015.
- [34]Mr Thompson stated that a change in Police information was received in September 2015 and that on 3 May 2016 the Public Safety Business Agency had cancelled ML’s blue card.
- [35]Mr Thompson referred the Tribunal to the Statement of Reasons provided with the decision.
- [36]Mr Thompson noted that the object of the Act was to promote and protect the best interests of children.
- [37]Mr Thompson submitted that the Western Australian decision of Grinrod seems to suggest that a particular flair or ability with children is not relevant.
- [38]Mr Thompson submitted that the Western Australian decision of Scott No 2 [2008] WACA 171 provided that the negative impact on an applicant that was not a factor to be taken into account.
- [39]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 wherein such a decision would not promote the welfare and best interests of children.
- [40]Mr Thompson told the Tribunal that s 226 (2) of the Act indicates some of the factors that are relevant. These include the Applicant’s criminal convictions (see the Statement of Reasons at paragraph 5.4):
The Applicant was charged with four charges namely Wilful damage; assault occasioning bodily harm; contravention of a domestic violence order; and Using a carriage service to menace, harass or cause offence. These all occurred on 30 August 2015. There was no evidence offered in relation to the first two charges. He pleaded guilty to two charges and was convicted of those charges. The sentencing Magistrate ordered “No conviction” and required a recognisance of $1000 and a good behaviour order for 12 and for 6 months respectively. These were not serious offences; however, the offences are recent having occurred one year ago. They are domestic violence related.
- [41]Mr Thompson noted that because none of the charges were serious offences that presumption was that a positive notice should be issued.
- [42]Mr Thompson conceded that there was no behaviour that had affected children in any way in this matter.
- [43]Mr Thompson submitted that the ML’s conduct arose out of a difficult relationship coupled with the consumption of alcohol that led to domestic violence. He stated that it was not in the best interests of children to have a carer who shows that loss of control.
- [44]Mr Thompson conceded that the scheme of the legislation is imperfect and tries to judge the future based on past conduct. He submitted that the behaviour of 30 August 2015 suggests a propensity to act inappropriately when placed under significant stress.
- [45]Mr Thompson submitted that the only risk factor is the offending itself. The offending suggests a transitory loss of control.
- [46]Mr Thompson in relation to positive protective factors noted the following:
the offending was isolated and closely defined in time with no other charges or convictions on his criminal history;
the offending relationship which had broken down is now behind him;
ML has shown remorse;
ML has a significant and appropriate level of insight;
ML is engaged with appropriate counselling and that continues;
ML has expressed a wish to avoid similar situation, which goes some way to reassuring the Tribunal that this is isolated incident in his life;...
- [47]Mr Thompson referred to the transferability of the blue card.
- [48]Mr Thompson submitted that the decision of the Chief Executive should be confirmed.
- [49]Mr Thompson conceded when questioned by the Tribunal that he accepted the Tribunal’s decision in two recent cases to distinguish Grinrod’s case in Queensland.
What is an “exceptional case”?
- [50]The relevant law to be applied is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).
- [51]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.
- [52]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.
- [53]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.
- [54]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 such, that an ‘exceptional case’ does exist.
- [55]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.
- [56]The Tribunal must, in exercising its review function under the Queensland Civil and Administrative Act 2009 (Qld), in determining whether an ‘exceptional case’ exists, ensure that the harm and welfare and best interests of children is its “paramount consideration”.[1]
- [57]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]
- [58]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.
- [59]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.
- [60]The Tribunal must be satisfied that he 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.
- [61]The Tribunal notes that Mr Thompson 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.
- [62]The Tribunal does not accept that this decision applies in Queensland. The Tribunal has not accepted the “unacceptable risk” test since 2011 see Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. The Tribunal further notes that in Grinrod the Tribunal said that because it had been determined that Mr Grinrod was an unacceptable risk the Tribunal could not take into account his positive work with children. This Tribunal is of the view that Grinrod should be distinguished for this reason and the Applicant’s work with children in this case should be seen as a significant positive protective factor in looking at whether an exceptional case exists. The Tribunal notes that Mr Thompson conceded that the Tribunal had distinguished the case.
- [63]The Tribunal notes the Respondent’s submission paragraph [46] 1) that the offending was isolated and closely defined in time with no other charges or convictions. The Tribunal notes that the Respondent in submissions at [46] 1) iv) conceded that ML had shown significant and appropriate insight into what had happened. The Tribunal notes that ML had sought counselling assisting for domestic violence services. He had adopted strategies to prevent further domestic violence. He had taken steps to break the cycle of violence. ML has expressed remorse to Police and has apologised for his actions. ML has expressed the wish to avoid similar situations in the future. The sentencing Magistrate clearly accepted that this was an exceptional case and out of character for ML when imposing “No conviction” as part of her sentence. The Tribunal is satisfied that ML has matured because of his experiences. The Tribunal notes that none of his offences have affected children. The evidence is that in his professional life ML is a skilled carer. He looks after some of the most vulnerable children in our community.
- [64]The Tribunal when looking at ML’s history notes that aside from these events on 30 August 2015 he has no criminal history. The evidence of his mother is that he is a gentle person who has not been involved in fights and altercations. The Tribunal accepts that ML’s behaviour on 30 August 2015 was out of character. He has acknowledged that his decision-making on the day was poor. He has shown remorse for his actions and demonstrated insight into the issues and strategies to prevent this happening again. Mr Thompson accepts as a protective factor in paragraph 46 iv) that ML has expressed a wish to avoid similar situation goes some way to reassuring the Tribunal that this is isolated incident in his life.
- [65]The Tribunal also notes on balance that there is no evidence to suggest that ML has a problem around alcohol intoxication. ML’s evidence is that he drinks socially occasionally. There is no evidence to suggest that this has affected upon his working life at all.
- [66]The Tribunal in the circumstances does not accept the Respondent’s position as set out in paragraph 5.4 of the Reasons document.
- [67]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 ML has two recent convictions, he 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 only risk issue relates to behaviour surrounding the charges;
the evidence is that the ML is of good character;
the evidence is that the ML’s engagement with young people has been helpful for them.
- [68]The Tribunal agrees with the Respondent’s contentions about the risk factors in paragraph 45 of these Reasons subject to the comments made above which affect the weight that should be given in relation to these submissions.
- [69]The Tribunal agrees with the Respondent’s contentions about the positive protective factors outlined in paragraph 46 of these Reasons.
- [70]The Tribunal accepts the Respondent’s submission that the Applicant’s loss of his position is not a relevant factor.
- [71]The Tribunal agrees with the Applicant’s contentions about the positive protective factors outlined in paragraph 27 of these Reasons.
- [72]The Tribunal was impressed by the character evidence that was given on behalf of the Applicant, specifically by AA and his mother MK. The Tribunal places weight on this evidence.
- [73]There is ample evidence of the positive way the Applicant interacts with children. The Tribunal sets this as an important protective factor.
- [74]The Tribunal is satisfied in undertaking this weighting exercise that it has been established on the balance of probabilities that the case against the Applicant is not an ‘exceptional case’, which would harm the welfare of children and young people.
- [75]The Tribunal takes the view that the Applicant’s convictions must be taken into the context of:
his criminal history as a whole; and
the balance between risk and protective factors.
- [76]The Tribunal is of the view that the cluster of protective factors outweighs the risk factors.
- [77]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.’
- [78]The Tribunal notes the decision of his Honour Justice Carmody in RPG v Public Safety Business Agency [2016] QCAT 331 where he finds that the Tribunal can only in these circumstances set aside the decision of the Respondent and remit that back to the Respondent. The practice of the Respondent is to then take into account the reasons and decision of the Tribunal.
Orders
- [79]The decision of the Public Safety Business Agency dated 3 May 2016 to issue a negative notice to ML is set aside.