TSP v Director-General, Department of Justice and Attorney-General
[2018] QCAT 33
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- TSP v Director-General, Department of Justice and Attorney-General[2018] QCAT 33
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TSP v Director-General, Department of Justice and Attorney-General[2018] QCAT 33
TSP v Director-General, Department of Justice and Attorney-General[2018] QCAT 33
CITATION: | TSP v Director-General, Department of Justice and Attorney-General [2018] QCAT 33 |
PARTIES: | TSP (Applicant) v Director-General, Department of Justice and Attorney-General (Respondent) |
APPLICATION NUMBER: | CML021-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 8 December 2017 |
HEARD AT: | Bundaberg |
DECISION OF: | Member Milburn |
DELIVERED ON: | 12 February 2018 |
DELIVERED AT: | Hervey Bay |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld); where the applicant has been convicted of serious offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether the applicant’s case is an ‘exceptional case’, warranting departure from the general rule that a negative notice must be issued – application of factors in s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) NON-PUBLICATION ORDER – where the tribunal prohibits the publication of the names of the applicant and any witnesses appearing at the application – where to publish would be contrary to the public interest Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 225(2), 226, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(3), 20(1), 20(2), 24(1), 66(2) Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 TAA, Re [2006] QCST 11 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 Commission for Young People v V (2002) 56 NSWLR 476 |
APPEARANCES: | |
APPLICANT: | Self represented |
RESPONDENT: | Mr I McCowie, Government Legal Officer for the Director-General, Department of Justice and Attorney-General |
REASONS FOR DECISION
Background
- [1]The applicant is a mature man (45 years), who works as a consultant for an employment agency. In his application, he identified that he is at risk of losing his employment if he suffered a refusal of his blue card application.
- [2]The applicant applied to the respondent for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) (the application).
- [3]On 18 September 2016, the respondent rejected the application and issued a negative notice under the WWC Act. The applicant requested this tribunal review that decision.
The tribunal conducts a merits review
- [4]The tribunal must hear and decide a review of a decision by way of a fresh hearing on the merits (the review).[1] The purpose of the review is to reconsider the application and produce the correct and preferable decision.[2] The tribunal has all the functions of the decision-maker for the reviewable decision.[3] The tribunal conducts the review within the same legislative framework as the primary decision-maker and has the power to confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker.[4]
- [5]In conducting the review, the tribunal does so by administering the principles contained in the WWC Act. The tribunal administers the WWC Act under the following principles-
- the welfare and best interests of a child are paramount;
- every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[5]
- [6]The tribunal must have regard to these principles in the context of reviewing child related employment decisions.[6]
The relevant law
- [7]A blue card authorises a person to work with children in any environment, whether supervised or not. The WWC Act provides that screening of persons in employment, or carrying on businesses, is required to promote and protect the rights, interests and wellbeing of children and young people in Queensland.[7]
Common ground
- [8]At the hearing, it was common ground that the basis upon which the respondent denied the applicant a blue card were his criminal convictions and the applicant’s substance abuse and propensity to commit violent acts.
Exceptional case
- [9]The tribunal must have regard to the considerations prescribed by section 226 of the WWC Act in determining whether an exceptional case exists. The considerations listed in section 226 are not an exhaustive list.[8] Courts and tribunals have not established any general rules with respect to what is an exceptional case.[9] Each case is determined on its merits, and the tribunal should not take a prescriptive approach.[10]
Risk factors and protective factors
- [10]The tribunal must consider protective factors and risk factors in deciding whether a case is exceptional.[11] The appropriate test it is not whether there is no risk. The tribunal is to undertake an analysis and evaluation of risk.[12] The weight the tribunal applies to each relevant factor depends upon the circumstances of the individual case and may vary accordingly.
Childhood
- [11]The applicant gave evidence at the hearing. He had a troubled childhood, where he grew up in a low socio-economic area. He suffered as a victim of domestic violence, as did his siblings, at the hands of his father. He suffered even more physical abuse at the hands of his step-father. He responded by fleeing at a young age to live on the streets. He discontinued his contact with his family. He lived a life where he became addicted to heroin and he was both the perpetrator and the victim of criminal assault. When he was young, he would readily judge others, but would not tolerate others judging him.
Criminal History
- [12]The applicant has a lengthy criminal history which commenced when he was 13 years of age and continued well into his adult life, with the most recent offending occurring in April 2012. The applicant’s history includes multiple property and antisocial offences as well as convictions for more serious offences such as armed robbery, serious offences of violence such as maliciously inflicting grievous bodily harm, and offences relating to antisocial behaviour and drug and alcohol-fuelled offending. Given the convictions for serious offences, the default position is that the tribunal must issue a negative notice, unless this is an exceptional case.[13]
- [13]The applicant was 13 years of age (1986) when convicted of two counts of ‘armed assault and robbery’. In company, he used a knife to rob two paperboys. The learned presiding magistrate ordered the applicant to undertake probation for a period of 12 months and placed him on a good behaviour bond, with conditions of supervision and support and the requirement that he ‘attend school regularly’.
- [14]Beyond that, the applicant has many offences, primarily committed through the period of 1987 until 2001. The applicant has many offences relating to violence.
- [15]In a matter in 1991, a magistrate convicted the applicant (aged 18 years) of an indictable assault and placed him on a bond. The assault arose in a fight. Though criminally liable, the applicant himself suffered injury and was hospitalised. The process of rehabilitation was slow and painful. He was taking heroin, and on release from hospital he returned to his lifestyle of crime and drugs. The applicant said he loved heroin, because it provided him with ‘clarity’ and a temporary release from his tough street lifestyle.
- [16]The applicant told the tribunal that he found the drug lifestyle very difficult. He had multiple admissions to rehabilitation facilities and ultimately joined the methadone program at the age of 23 years. That program allowed him to overcome his addiction to heroin. He moved away from where he was residing at the time and eventually, by the age of 26 years, he weaned himself off the methadone program. He was very sick for many months. He was seeing psychiatrists for 4.5 years during his involvement in the program. However, not long after he moved away from the drug lifestyle, he relapsed after he reunited with long term friends. The applicant told the tribunal that his friends were members of an outlaw motorcycle club. They led him towards another drug; methylamphetamines. The applicant said that peer pressure was a factor in his drug lifestyle. During that time, he was associated with kick-boxing, worked as a bouncer and he did not have contact with his family.
- [17]The applicant continued to offend. He was convicted of ‘maliciously inflict grievous bodily harm’, ‘assault occasioning bodily harm’ (two charges) and ‘contravention of an apprehended domestic violence order’. On 5 July 2001 in an appeal hearing,[14] the District Court in Sydney imposed periods of imprisonment for 15 months and 9 months respectively for the assault matters. The court suspended the periods of imprisonment on condition that the applicant enter into a good behaviour bond, subject to supervision from the New South Wales Probation Service, with directions to attend drug and alcohol counselling and treatment for psychiatric and psychological counselling. The offending was serious. The applicant (aged 27 years) committed acts of severe violence at his home against his former partner, which he sustained over a period of days in 2000. In the house was an 18-month-old baby. The applicant was taking, and was affected by, methylamphetamines. The police report refers to the violence against the victim as significant, and included slapping, punching, kicking and kneeing her to various parts of her body. He also burnt her, grabbed her around the throat and lifted her from the ground, threatened her life and threatened to hurt her children and refused to take her to receive medical treatment for nine hours.[15] However, prior to sentencing and to secure bail, he told the court he would live with his aunt on the Central Coast. He did that, even though she had not given prior consent. On bail, the applicant took the opportunity to contact third parties, who provided a positive influence. They included a mental health nurse, narcotics anonymous and the Salvation Army. The applicant still attends at narcotics anonymous. The court provided leniency by allowing the applicant bail for ten months.
- [18]The applicant met another woman in 2011, who in 2012 became the victim at his hands whilst they holidayed. Affected by alcohol, the applicant (aged 39 years) grabbed his fiancée by the throat, such that she was unable to breathe freely and forced her to the ground. His fiancée slapped the applicant during their argument. Because of the disturbance, the police arrived. The applicant told the tribunal that when the police arrived, noting his criminal history, he was immediately ‘at fault’. The applicant told the tribunal that he interrupted police whilst they investigated ‘to tell his side of the story’. But, later while in custody, the applicant declined the invitation to engage in an electronic record of interview. The applicant told the tribunal that fearing the worst, prior to sentencing the applicant was able to transfer the proceedings away from the court where he first appeared. He said he did so based on the comments of the initial presiding magistrate to the effect that a custodial sentence would be warranted. The sentencing magistrate convicted the applicant of assault occasioning bodily harm and sentenced him to an 18-month good behaviour bond with a fine of $300 for property damage. The applicant told the tribunal that he entered a plea of guilty because he did not want to ‘drag the matter out’. He wanted to contest the matter but thought the exercise ‘futile’ because he thought the court would reason that ‘he is guilty because of his criminal history’. The applicant did have a lawyer representing him in his defence. The applicant says he no longer thinks about the matter. The applicant told the tribunal that in 2012, he ‘acted out’ through intoxication. The applicant said that the assault in 2000 was very serious, but the assault in 2012 was not serious.
Alcohol
- [19]The applicant says that he has reduced his consumption of alcohol. But, he has not taken any positive steps to deal with alcohol. The applicant says that he acknowledges that to avoid relapse successfully, he must not take any ‘mind altering’ substances. Yet, the applicant still consumes alcohol. He acknowledges that there are risks, but he says he is taking positive steps by not taking drugs and attending Narcotics Anonymous. He says he does not take drugs like Panadol, because they ‘may be a trigger’. The applicant did not acknowledge that alcohol may be a trigger.
Written material provided by the applicant
- [20]The applicant provided written material from SKT, DH, EN and WQ.
- [21]The statement of SKT is aged and carries little weight.
The witnesses for the applicant
- [22]The applicant called evidence from DH, EN and WQ.
DH
- [23]The witness says that she and her daughters regard the applicant as a ‘member of the family’. She is aware of his past but said he has changed his life. He can speak with young ones with similar backgrounds. The applicant is becoming more patient with the younger ones. He does not want them to ‘go down the same track’. The applicant spoke to her of the alcohol-fuelled events of 2012. He was very disappointed in himself. After the event, the applicant moved on and adopted a positive outlook. He vowed not to drink again, and now only drinks moderately. He is very good with children.
EN
- [24]The witness said that in his capacity as state manger he visits Bundaberg up to six times per year. When he does, he will stay for two or three days. In general, the nature of the job requires staff to deal with people with disabilities and conditions. That requires staff to work with disadvantaged people and be prepared to deal with stressful circumstances. The applicant does have the right qualities to fulfil his role. He has developed very good strategies to deal with employees and employers. The applicant works well with staff. He receives positive feedback form his managers.
- [25]The witness said that the applicant spoke about the circumstances surrounding the refusal of the blue card arising about events many years ago. The witness made no mention of the events involving the applicant in 2012.
WQ
- [26]The witness is the adult’s partner. She said that the applicant is a good and kind person, with a very peaceful and calm demeanour. She has never seen him angry or upset. He treats her and her 16-year-old daughter well. She says he likes children and treats children well. During the last five years, she has seen him become a calmer person. He does not demonstrate anger. The applicant is a social drinker and does not have a problem with alcohol.
- [27]She spoke little of the applicant’s past, as disclosed to her by the applicant. But she spoke of his past as ’10 or 12 years ago’. The witness made no mention of the events involving the applicant in 2012.
What risk factors exist in this case?
- [28]In coming to its decision, the tribunal must consider any potential risks to children and determine the likelihood of materialisation of a risk event.[16]
- [29]The applicant has convictions for serious offences and convictions for many offences over a long period. The applicant has demonstrated an inability to appropriately manage conflict and control his behaviour and has resorted to physical violence towards others on numerous occasions. The domestic violence perpetrated in offences in 2000 and 2012 were serious, in a domestic situation and (for the 2000 matter) in the presence of a young child. The events in 2000 involved sustained violence over a period of days where the applicant caused serious harm. The applicant has minimised his involvement in the matter in 2012. The tribunal does note that the penalty imposed by the learned presiding magistrate for the assault in 2012 was not substantial. The events of 2012 demonstrate that the actions taken by the applicant after his offending behaviour in 2000 have failed to secure long-term sustained change. The applicant was unable to use his training and his skills. The applicant minimised his offending behaviour and lack of insight into the harm his offending has caused to the victim of his offending or the broader community.
- [30]Although the applicant has disassociated with the use of illicit drugs, and continues to engage with Narcotics Anonymous, his abuse of alcohol in 2012 and continued use of alcohol suggests a risk of using substances as a form of self-medication.
What protective factors exist in this case?
- [31]The applicant demonstrated insight by telling the tribunal that when drugs affect him, he is irrational and very selfish. The applicant identified other protective factors in that he has a partner, a job, a business and dogs. He plays sport regularly. The applicant says that he now has a full and productive life and his focus is on others. The applicant is helping his cousin through narcotics anonymous. He sponsors a few people through the program. He encourages people to take control of their situation. His role as a mentor is a protective factor. The applicant identified the effect of illicit drug use on the community (including the cost of law enforcement), the dangers of the use of drugs and the mindset change upon users of illicit drugs.
- [32]The applicant acknowledges that in the past he has resorted to violence. At one stage, that was the only way he resolved issues. He acknowledges that when affected by drugs or alcohol, that ‘reasoning goes out the window’. To deal with stress, the applicant says he has some strategies in place. He acknowledged that change is a lifelong task. He reads. He copes well at his employment, where he deals with unemployed people. There is a lot of conflict, but he manages the conflict. His counselling and anger management strategies help. When faced with conflict, he reduces his tone and speed of speech. He understands that he cannot meet conflict with conflict. He expressed remorse and regret. He shared his feelings with the tribunal freely and openly.
- [33]He has family who have moved to this area. He is part of a social club. He is likely the youngest member of the social club. He likes the area and has no intention to move. His partner does not drink heavily. For the last five years, the applicant has reduced his alcohol consumption.
- [34]The applicant said he does not work with children, but his employer wants him to have a blue card.
- [35]The applicant has some protective factors. The applicant has a strong support network. His partner, his work, his family, his friends, his activities (volleyball and social club), his dogs and his home are all protective factors. The applicant is engaged with narcotics anonymous and assists others to cease using drugs. The applicant has no convictions for any illicit drug-related offending since 2001. The applicant has relocated and is happy and stable where he lives. The applicant has adopted a healthier lifestyle. The applicant has stable work in the community sector as a welfare support officer. His job that requires him to assist disadvantaged members of the community, demonstrates a concern for the welfare of others. The tribunal accepts the applicant’s evidence that he has disassociated from persons who have contributed to his previous offending. The fact that the applicant is in a stable relationship and has permanent stable employment are strong protective factors.
Insight
- [36]Good insight into the harm that an applicant has caused is a protective factor. In TAA, Re,[17] the former Children Services Tribunal stated:
A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.
- [37]By minimising the incident that occurred in 2012, whilst adversely affected by alcohol, the applicant has not demonstrated strong insight into the harm he caused.
Conclusion
- [38]The tribunal is mindful of the fact that a blue card is ‘fully transferable’. The holder of a blue card can undertake a wide range of child related activities. The blue card is unconditional in its effect, allowing the holder to undertake things such as homestays involving children. The tribunal must make its determination by reference to what activities the holder of a blue card could conceivably undertake and not what activities the holder of the blue card intends to undertake in relation to child related activities.
- [39]The tribunal is not to consider the impact of its decision upon the applicant. The sole focus must be upon children.
- [40]The tribunal is to determine the question on the balance of probabilities.
- [41]The tribunal considers the risk factors outweigh the protective factors in this case. This is not an exceptional case. It would not be in the best interests of children for the tribunal to overturn the decision of respondent.
Non-publication order
- [42]In this case, the publication of the name of the applicant or any witnesses would be contrary to the public interest and contrary to the interests of justice.[18] This case involves matters of domestic violence and the criminal history of a child (the applicant).
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2)
[2]Ibid s 20(1)
[3]Ibid s 19(3)
[4]Ibid s 24(1)
[5]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6
[6]Ibid s 360
[7]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5
[8]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 per Philippides J
[9]Ibid
[10]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
[11]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
[12]Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243, at paragraph 58
[13]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 225(2)
[14]A magistrate originally sentenced the applicant.
[15]Source BCS 13-17
[16]Commission for Young People v V (2002) 56 NSWLR 476
[17]TAA, Re [2006] QCST 11 at paragraph 97
[18]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66(2)