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Commens v Director General, Department of Justice and Attorney-General QCAT 2
Commens v Director General, Department of Justice and Attorney-General  QCAT 2
Director General, Department of Justice and Attorney-General
25 November 2016
3 January 2017
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – where application has conviction for a serious offence – where applicant had an unremarkable childhood – where applicant had a range of protective factors – where adult leading a law abiding life - whether his case is exceptional
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 226, s 360
Commissioner for Children and Young People and Child Guardian v Maher & Ors  QCA 492
Commissioner for Children and Young People and Child Guardian v Ram  QCATA 27
Franklin-Bull v Commission for Children and Young People and Child Guardian  QCAT 632
Humphreys v Chief Executive Officer, Public Safety Business Agency  QCAT 342
Idzikowski v Chief Executive Officer, Public Safety Business Agency  QCAT 487
Murray v Chief Executive Officer, Public Safety Business Agency  QCAT 552
R v GAW  QCA 166
Reardon v Chief Executive Officer, Public Safety Business Agency  QCAT 061
Mark Commens represented by Mr M Gatenby
Public Safety Business Agency represented by Mr J Thompson
REASONS FOR DECISION
- Mr Mark Commens is 36 years of age and lives on the Gold Coast where he has lived for most of his life. He lives with his partner of 10 years and their young son.
- Mr Commens sought a blue card so that he could be involved with children and young people in the surf lifesaving movement. The then Public Safety Business Agency (PSBA) issued him with a negative notice on 9 June 2016. That means he cannot hold a blue card to work with children. Mr Commens is seeking a review of that decision in the Queensland Civil Administrative Tribunal’s (QCAT) review jurisdiction.
- Mr Commens has multiple entries on his criminal history but the one of most concern in this matter involves a serious offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Working with Children Act).
- On the 18 January 2008 Mr Commens was convicted of having carried on a business of unlawfully trafficking in a dangerous drug (Methandienone). He was sentenced to a period of imprisonment of 2 years suspended after 3 months and to be of good behaviour for 3 years. On that same day a conviction was recorded in respect of a number of other drug and weapons offences. He was also convicted in 2000 of common assault which occurred in 1999.
- The charge of unlawfully trafficking in a dangerous drug is a serious offence under the Working with Children Act.
- As he has a conviction for a serious offence, the presumption under the Working with Children Act, is that he must be issued with a negative notice, unless his is an exceptional case such that it would not harm the best interests of children for him to have a positive notice and a blue card.
- The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing. The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children Act. This outlines what I have to consider in deciding if an exceptional case exists.
- “Exceptional case” is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
- I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
- The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard to s 5, s 6 and s 360 of the Working with Children Act.
- Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
- Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child-related employment, whether supervised or not.
- Therefore in order to issue a positive notice to Mr Commens I need to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that an exceptional case exists.
The view of the Public Safety Business Agency
- In its statement of reasons for refusing Mr Commens a positive notice the Acting Executive Director of the Public Safety Business Agency states that he is not satisfied that Mark Commens’ case is an exceptional one such that it would not harm the best interests of children for him to be issued with a positive notice. His criminal history is outlined in some detail in the reasons.
- The Agency’s view is that the applicant’s offending raised serious concerns regarding his involvement in and carrying on a business of trafficking dangerous drugs. The conduct for which the applicant was convicted adds to the proliferation of dangerous drugs in the community which potentially would have had a direct impact on those who intended to use the drugs as well as an indirect impact on those around the users including children.
- The Agency considered that the Applicant’s use of methamphetamine and engaging in the business of trafficking dangerous drugs demonstrates a disregard for the welfare of others in the community directly or indirectly on those affected by the distribution of these dangerous drugs and suggests that the applicant is a poor role model to children.
- The Agency noted the decision of Commissioner for Children and Young People and Child Guardian v Ram, in which the Appeals Tribunal confirmed that the Working with Children Act places a barrier to persons with a conviction for a serious offence from working with children and the proper inference to draw must be that it would harm the best interests of children for persons with convictions through serious offences to work with children unless it is an exceptional case.
- The Appeals Tribunal also confirmed that changes in a person’s circumstances simply amounting to a person living in a law abiding manner as society expects, and functioning at a level expected of a person at this stage and age in life, are generally considered to be the ordinary course and not exceptional.
- In the absence of submissions from the applicant, the Agency concluded that it was not satisfied Mr Commens accepts responsibility for his offending behaviour, acknowledges and understands the seriousness of his offending behaviour and its relevance to holding a blue card. The Agency concluded that he does not have sufficient insight into his offending behaviour to prevent reoccurrence of similar conduct.
- The Agency also noted that any ongoing drug offending by the applicant would detract from his ability to provide a protective environment for children placed in his care and to safeguard their best interests.
Why the Applicant says he should have a blue card
- The Applicant provided a detailed statement to the Tribunal dated 6 October 2016. In that statement he outlined that he had a reasonably normal upbringing, with supportive parents and always reasonably happy. He stated he always felt emotionally supported and encouraged. During his childhood he played rugby league and also participated in the Tugun Surf Lifesaving Club. He described himself as an average student at school who tried hard. He described his high school years as being very sports focused and he had no particular medical or behavioural issues. He described a close relationship with his parents. Mr Commens described how he commenced an apprenticeship immediately after school in the automotive industry working as a boiler maker/welder at Tweed Heads.
- He subsequently set up his own business in and around Mackay. He is now employed on a full-time basis in an engineering company on the Gold Coast and has been in this employment for the past 2 years.
- He described a stable and emotionally supportive relationship with his partner Zoe with whom he has had a child in 2014. This, he said, has changed his life. He notes every significant decision he is required to make in life commences from the standpoint of how it is likely to affect his son.
- He also described having very supportive friends in whom he can confide. He is a member of the Currumbin Beach Viking Surf Lifesaving Club and has become an avid surf boat rider training regularly. He describes a very trusting group of people with whom he trains.
- Mr Commens described his criminal history. He advised that he had not breached his Good Behaviour Order which was in place for 3 years. He pleads ignorance and stupidity in relation to his criminal history. He considered himself considerably naïve and too concerned with attempting to please or prove himself to others. He considered his motivation in respect of the trafficking was simply that he had been asked to assist a friend and he thought it would be impressive if he did so. He indicated that when the Australian Federal Police had traced the packages to his parents’ home, he saw a look of utter shock and bitter disappointment on his parents’ faces. He stated that he co-operated with the police. He now recognizes that these drugs were dangerous and can cause irreparable health issues in anyone who uses them including young people. The drugs that he trafficked were anabolic steroids.
- As part of the search undertaken by the police at the family home, he advised that they found some unregistered rifles and some shotgun shells which were not stored correctly. He puts his weapons offences down to laziness.
- He stated after being charged he sold all the guns recognizing that holding and storing the guns and ammunition in the way he did, was potentially a very dangerous thing to do. He stated that whilst there were no children living at the parents’ house at the time, this offers little excuse for his lax attitude.
- Mr Commens was also charged with possessing various other weaponry. They reflected his interest in martial arts and the training that he did with them. He stated that he never had them for any sinister purpose and never committed any offence with them.
- He noted that at the time of his offences he was an occasional user of amphetamines but he no longer uses drugs of any kind.
- Mr Commens advised, that whilst his partner supported him through his period of incarceration, she made it clear that unless he made better choices she would not continue that support.
- He states that he accepts full responsibility for his criminal history and the behaviour that led to it noting that the offences were serious and could have led to harm to others, particularly in relation to the distribution of the steroids. He states that peer pressure led to his inappropriate behaviour and he has cut himself off from his former associates.
- He stated that he received no money from the trafficking, although it had occurred to him that the activities were illegal.
- He stated that he does not attempt to excuse or otherwise diminish his behaviour. He feels that he has grown hugely as a person during the more than 8 years since his imprisonment. He has recognized that children are vulnerable and need a safe and healthy environment within which to develop and shine.
- Mr Commens indicated he resumed work immediately on release from prison, being taken back by his former employer followed by work in the mines where he was regularly drug tested.
- With his involvement in surf lifesaving he sees a way to be able to give something back to the community and is confident that whatever contact he has with children and young people it will be both a positive and supporting influence. He hopes to be able to use the insights he has gained from his own mistakes to assist him to be the best role model he can be for others. He has been involved with boat rowing and beach patrols for around two years.
- He suggested that as he has not had any charges in the last 10 years this is evidence of his growth as a person over the past decade and how he has demonstrated his ongoing commitment to leading a better lifestyle making better lifestyle choices and decisions. He stated he did not want to go back to prison.
- In terms of supports, Mr Commens advised he sees his parents and sister regularly and would seek advice from one of his mates if he got into difficulties.
Evidence from witnesses
- Mr Commens had two witnesses to give evidence on his behalf. Mr Clinton Jones, whom he had known in his teens through football and with whom he is involved now in the surf lifesaving movement, and Mr Joseph Fraser who is the captain of the Currumbin surf club, who has known Mr Commens since high school.
- Both witnesses advised that they were surprised about Mr Commens’ trafficking charges. Mr Jones reported that he lived, for a time, with Mr Commens, and during the period in question nothing was too much for Mr Commens to assist others. He would always give 100% at training. At the surf lifesaving club, he indicated that Mr Commens is very willing to help, was always punctual and he has no concerns regarding the safety of children at the club. In his opinion, Mr Commens has done everything to build his life up. He stated he sees Mr Commens on a weekly basis.
- Mr Jones says he has not discussed Mr Commens offending behaviour with him, but was aware that Mr Commens was receiving packages and that Mr Jones was suspicious about this. He said he has never known Mr Commens to use drugs. He stated that he has seen Mr Commens interacting positively with friend’s children. Mr Commens acts appropriately and children enjoy his company.
- Mr Fraser also noted that Mr Commens was always willing to help out within the surf club and likewise had no concerns regarding children’s safety. He finds Mr Commens to be cooperative and helpful at the club. He noted that through the surf boat racing, random drug testing is conducted and that it would severely jeopardise sponsorship arrangements if someone tested positive. He stated that he would not support Mr Commens if he was concerned about drug usage, and that he has never seen Mr Commens use drugs.
- Mr Fraser considers Mr Commens more mature now and he regarded him as very hard working, always willing to go out of his way to assist others and always finds time for training.
Submissions made by Mr Commens’ legal representative
- Mr Gatenby submitted that the legal framework is such that I need to be satisfied that Mr Commens’ case is an exceptional such that it would not harm the best interests of children for him to have a blue card. He submitted that Mr Commens does not have to be an exceptional person. He referred me to Commissioner for Children and Young People and Child Guardian v Ram. In this matter, the QCAT Appeal Tribunal reiterated that the proper approach in considering whether the evidence establishes an exceptional case is to consider each application on its merits, unhampered by any special meaning or interpretation, and without laying down a rule or test to determine whether a case is exceptional.
- Mr Gatenby submitted that I need to consider the individual merits of this particular matter, taking into account that it would not harm the best interests of children for Mr Commens to have a blue card if I considered his case to be exceptional.
- Mr Gatenby submitted that for a case to be exceptional there could be a collection of circumstances which might lead to a conclusion that a case is exceptional. He referred to Commissioner for Children and Young People and Child Guardian v Maher & Anor, in which it was stated that for a matter to be exceptional it had to be unusual, extraordinary or departing from the normal rule, noting that the protective factors in Maher moved it out of the norm. He submitted that the protective factors in this matter are similar to the protective factors in Maher.
- Mr Gatenby drew my attention to certain comments of Her Honour Judge Dick when sentencing Mr Commens for the drug trafficking offence. He submitted that Her Honour found Mr Commens to be remorseful having made full and frank admissions. He also submitted that Mr Commens made admissions beyond what was known to the authorities. He noted that Her Honour had characterised Mr Commens as ‘naïve’.
- Mr Gatenby submitted that Mr Commens had contacted the supplier in Thailand and had asked him to cease sending further packages to him. He submitted that Mr Commens had brought this to an end and this was a relevant factor regarding his insight. He submitted that Mr Commens was not told about the operation and was unaware of how many drugs were coming in.
- He referred me again to the Ram case in which it was noted that rehabilitation from previous engagement in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case. He also noted that the Ram decision discussed objective changes in lifestyle.
- Mr Gatenby submitted that there were a number of exceptional matters in Mr Commens case, referring to drug testing at work being beyond the norm of what normally happens, his non-offending for many years, his not wanting to lose his job because of the impact on his fiancé, his house and his child and Mr Commens being drug tested at his sport which forms an important part of his lifestyle. Mr Gatenby noted that if Mr Commens were to test positive, this would bring the surf club into disrepute and affect sponsorship. He also noted that a further protective factor is that his relationship with his fiancé, Zoe, as she has said she would leave if he was involved with drugs any further.
- Mr Gatenby submitted that the referees Mr Jones and Mr Fraser discussed Mr Commens voluntary work and that this was exceptional as he gives up his time and goes above and beyond.
- Mr Gatenby submitted that Mr Commens risk of reoffending is low and indicated that there was a series of matters which should lead me to consider that Mr Commens case is an exceptional one. He submitted that in this regard I should take account of Mr Commens’ stable relationship, the range of protective factors, his maturity, the narrow period of offending, his not placing blame on others, his demonstration of remorse and insight, his acknowledgement that he was responsible for his actions, and his parental role.
The Submissions of the Director General
- Mr Thompson also referred me to the Ram case, noting that it must have been the intention of parliament for a person with a serious offence to receive a negative notice. In Ram at paragraph  it is stated that the ‘proper inference to draw from the Commission Act must be that it would harm the best interests of children for person with convictions for that offence to work with children unless it is an exceptional case’.
- Mr Thompson submitted that Mr Commens’ case is not an exceptional one. He referred me to the various matters in s 226 of the Act, noting that Mr Commens had a conviction for a serious offence, that this took place in 2006 when Mr Commens was 25 years of age, that he had been trafficking over a six month period in commercial supply of dangerous drugs, that he readily involved himself in behaviour likely to be criminal, and was wilfully negligent.
- Mr Thompson acknowledged that there had been no offending since 2006. He also submitted that children were not harmed directly or indirectly from Mr Commens’ actions.
- Mr Thompson submitted that the risk factors in this case were that Mr Commens had committed a serious offence and had a past history of personal drug use of a minor nature.
- As to the protective factors, Mr Thompson noted the following:
- There were indications of remorse in that Mr Commens appears to be sorry he acted as he did;
- He appears to have good insight into the harm caused by his actions and the potential effect on others;
- A significant time has passed and there has been no further alleged offending;
- His family appears supportive;
- He has a range of social contacts;
- He has a lot to lose if he reoffends, although it was noted that fear of the consequences of offending does not render a case exceptional.
- There appears to be no further drug use, given a presence of drug testing in his work and sporting life; and
- He has made positive changes in his life and he has broken with former associates.
- Mr Thompson submitted that as had been described in Ram the changes made in his life amount to his living his life in a law abiding manner as society expects. He concluded by submitting that Mr Commens’ case is not exceptional and the decision of the Agency should be affirmed.
The Tribunal’s View
- What constitutes an exceptional case is a matter of discretion. In exercising my discretion I need to take into account all the information before the Tribunal and consider the merits of the case subject to the object and intention of the Act - that is, to protect the rights, interests and wellbeing of children in Queensland, taking into account the paramount consideration of welfare and best interests, as well as the entitlement for a child to be cared for in a way that protects him or her from harm and promotes the child’s wellbeing.
- There are now a range of authorities which supports the view that what constitutes an exceptional case is a matter of discretion and that it would be unwise to attempt to define in the abstract what the relevant factors are.
- Having said that it is reasonable to describe an exceptional case as one which is out of the ordinary course of events unusual, special or uncommon.
- This is consistent with the Macquarie Dictionary definition of “exceptional” which is said to mean ‘forming an exception or unusual instance, unusual, extraordinary’. In other words, there needs to be a real difference from the usual type of cases. It cannot be one which is regularly encountered. Above all, however, the term “exceptional case” must be considered in the context of the legislation.
- I accept the Agency’s view that ‘changes in a person’s circumstances that simply amount to them living in a law abiding manner as society expects and functioning at a level expected of a person at their stage and age in life’ are not exceptional and are part of the ordinary course of life.
- I do however also have to consider the exceptionality of this case in relation to harming the best interests of children.
- For the most part Mr Commens’ life circumstances are not exceptional. He has deviated from his previous criminal history and is now leading an essentially normal law abiding life. He has not offended for over 10 years, is in a long term relationship and has a young child which he says has changed his life.
- In the Commissioner for Children and Young People and Child Guardian v Maher & Ors the approach of examining relevant risk and protective factors was endorsed. The protective factors as I see them in this matter are that Mr Commens has not offended for over 10 years. He has demonstrated some insight into his behaviour and expressed some remorse. He is in a long term relationship. He is in stable employment and accommodation. He wishes to give back to the community and has participated in volunteering activities in the surf lifesaving movement. I agree with Mr Thompson’s list of other protective factors. He does not appear to pose a risk of harm to children.
- The risk factors as I see them include Mr Commens’ criminal history which involves the possession of dangerous drugs, trafficking in dangerous drugs, common assault, the holding in his possession unlicensed firearms and other weapons, and his past naivety.
- I have also taken into account s 226 of the Working with Children Act. I note his criminal history which includes offences as well as serious offences. It does him no credit. I accept the nature of the offences does not constitute behaviour of an appropriate role model for children. I also take into account his upbringing. He describes that in positive terms. It is not as if he has come from a deprived abusive background where he has had to make some significant adjustments in his life to overcome barriers or the effects of trauma.
- I refer now to the submissions of Mr Gatenby on behalf of the applicant.
- I accept that I need to consider the individual circumstances of this case and that these could be a collection of circumstances that could lead to a case being considered exceptional. In this regard, I note R v GAW in the Queensland Court of Appeal. Mr Gatenby submitted that the protective factors in Maher are similar to those in this matter. I accept there are some similarities. I note however, some significant differences with Maher, including for example, the demands of Maher’s work environment, positive assessments by health professionals, a strong association with the church and his effective management of stress. None of these factors have emerged in the current matter before me.
- I accept that Mr Commens has shown some remorse for his actions and has demonstrated some insight. I do not accept the submissions that making full and frank admissions readily equates to having insight into ones criminal behaviour. I also do not accept that his bringing an end to the sending of the packages is particularly relevant to his insight. The evidence before me was that Mr Commens brought an end to the packages coming as they were accumulating and he was running out of space. Had the packages been turned over more quickly, he may not have brought an end to their receipt. This is unknown. His discontinuation with his former associates shows some insight as does his acceptance that what he did was morally wrong.
- I accept the submissions that there has been a number of changes in Mr Commens’ lifestyle, including his being regularly drug tests, and his motivation in not losing his job.
- Mr Commens regularly helps others and his surf club. Many people help their friends and their clubs. This is not exceptional, although it is a protective factor. I consider the risk of reoffending is low. I also accept that Mr Commens is in a stable relationship and there are a number of protective factors in Mr Commens’ favour, including his maturity, remorse, some insight and not blaming others. As to the submissions about the narrow period of offending, I note a criminal history spanning convictions from 2000 to 2008 with the serious offence occurring over a period of about six months. This submission has limited merit.
- I have reviewed a number of QCAT cases where a person has a conviction for a serious offence. In Humphreys v Chief Executive Officer, Public Safety Business Agency, the Tribunal confirmed the decision of the chief executive to issue a negative notice, finding his was not an exceptional case. Mr Humphreys had a conviction for drug trafficking between 17 July 2009 and 25 September 2010, was sentenced to three years imprisonment and released on parole immediately. He had other convictions. He undertook drug rehabilitation and had a significant number of protective factors including studying, a supportive partner, and a strong social network.
- Similarly to Mr Commens he gained no financial benefit, was immature and thought his activities would make him popular. Mr Humphreys’ window of offending was larger and arguably involved more transactions. Unlike Mr Commens, Mr Humphreys had a disruptive childhood. Mr Humphreys was using cannabis in the months prior to the hearing, unlike Mr Commens.
- In Franklin-Bull v Commissioner for Children and Young People and Child Guardian, the Tribunal found an exceptional case did exist. Mr Franklin-Bull had drug trafficking offences, and a criminal history of 13 years duration. He had not offended for 14 years and had undertaken a range of rehabilitation programs and counselling. He had many protective factors and a Judge had considered his rehabilitation exceptional.
- In Reardon v Chief Executive Officer, Public Safety Business Agency, the Tribunal confirmed the decision of the Agency that an exceptional case did not exist. In this matter, Ms Reardon had supplied drugs to a person in a correctional facility. She had a very disruptive childhood. She had other offences including property and drug related matters for a 10 year period. The Tribunal noted profound remorse, insight into her behaviours, extensive rehabilitation and a commitment to change. She had many protective factors but her case was not considered exceptional because of only a short period of having a functional lifestyle and having only had a two year period since her last relapse.
- In Idzikowski v Chief Executive Officer, Public Safety Business Agency, the Tribunal found an exceptional case did exist. Mr Idzikowski committed a serious offence when 15 years of age, over 20 years ago. He had undertaken a series of programs to address his drug use and his behaviour. He had been abstinent from drugs for two years, had many protective factors, a strong support network, no history of violence as an adult and was regarded as unlikely to reoffend. Unlike this matter, the applicant was an adult when he offended.
- In Murray v Chief Executive Officer, Public Safety Business Agency, I found Mr Murray’s case was exceptional principally because of the special skills he had in working with people with disabilities, his protective factors and the evidence of a former police officer.
- There are a range of other QCAT matters where a serious offence had been committed and significant protective factors were said to exist, but which have not been regarded as exceptional. I refer to:
- Khattab v Chief Executive Officer, Public Safety Business Agency  QCAT 274;
- Kutekute v Commission for Children and Young People and Child Guardian  QCAT 355; and
- Waldon v Commission for Children and Young People and Child Guardian  QCAT 291.
- The test that I have to apply is whether this is an exceptional case, such that it would not harm the best interests of children for him to have a blue card.
- Whilst there are a number of protective factors in this case I cannot be satisfied that Mr Commens’ case is an exceptional one in which it would not harm the best interest of children for a positive notice to be issued.
- Mr Commens does not have any particularly exceptional skills. Unlike other cases, he has not engaged in any professional counselling or rehabilitation. He had an unremarkable childhood, unlike others.
- Mr Commens, to his credit, is now living a life absent of crime and offending behaviour. He is leading a normal family life and wanting to participate in regular activities. There is nothing exceptional about this. As a result I find that his case is not an exceptional one and will confirm the decision of the Agency to issue him with a negative notice.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.
QCAT Act, s 24.
 QCATA 27.
 QCAT 27.
 QCA 492.
 QCA 492.
 QCA 166, at .
 QCAT 342.
 QCAT 632.
 QCAT 061.
 QCAT 487.
 QCAT 552.
- Published Case Name:
Mark Commens v Director General, Department of Justice and Attorney-General
- Shortened Case Name:
Commens v Director General, Department of Justice and Attorney-General
 QCAT 2
03 Jan 2017