BD v Department of Communities, Child Safety and Disability Services - [2014] QCAT 687

CITATION:

BD v Department of Communities, Child Safety and Disability Services [2014] QCAT 687

PARTIES:	BD (Applicant)
v
Department of Communities, Child Safety and Disability Services (Respondent)

APPLICATION NUMBER:

GAR140-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

25 September 2014

HEARD AT:

Cairns

DECISION OF:

Member Quinlivan

DELIVERED ON:

18 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Department of Communities, Child Safety and Disability Services dated 20 March 2014 to issue BD with a negative notice is confirmed;

2. The Tribunal prohibits the publication of the name of the applicant and the names of the witnesses and organisations referred to in this decision.

CATCHWORDS:

Yellow card – serious criminal history – “exceptional case”

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

RESPONDENT:

Mr Dan Kelly of Counsel
Ms Katherine Mahoney, Department of Communities, Child Safety and Disability Services
Ms Jennifer Hamilton Assistant Crown Solicitor for Crown Law

REASONS FOR DECISION

BD is a 38-year-old man who lives at Trinity Beach in Queensland. He is the father of a 4-year-old child who lives with her mother in Cairns.
In September 2013 BD commenced employment with a community care agency as a support worker on a casual basis. At around that time he made an application (yellow card application) to the Department of Communities, Child Safety and Disability Services (the Department) for a prescribed notice.
On 20 March 2014 the Department issued BD with a negative notice. The following day the agency terminated his employment as a support worker because he was unable to obtain a yellow card.
On 16 April 2014 BD applied to the Queensland Civil and Administrative Tribunal (QCAT) seeking a review of the negative notice decision, an order setting aside the Department's decision and an order that a positive notice the issued to him.
The applicant submitted that pursuant to section 85(11) of the Disability Services Act 2006 an “exceptional case” exists such that it would not harm the best interests of people with a disability for the Department to issue him with a positive notice.
In support of his application he says:
·       Some of the information relied on in the Reasons given by the Department for the negative notice is not accurate;
·       His prior criminal history is related to his previous drug history;
·       He has not been charged with an offence since 2010;
·       He has not used drugs for a period of more than 3½ years;
·       He has undertaken counselling and completed numerous programs;
·       He has rehabilitated and redressed his past actions;
·       He has demonstrated insight into his past actions;
·       He has undertaken voluntary work in the community;
·       He has gained employment in his chosen field;
·       He has been working for the community care agency for 6 months and has worked with people with extreme behavioural issues in a residential setting as well as in the community;
·       He has the support of numerous members of the community.

Background

The applicant provided the Tribunal with a comprehensive life story. He describes a difficult upbringing involving domestic violence, alcohol abuse by his father and a number of family moves in New South Wales and Queensland.
He says that in about 1990, as a 14-year-old, he became involved in substance abuse. By the time he was 16-year-old he was known to police and had been arrested and incarcerated. In his words ‘whilst imprisoned I was indoctrinated with the rules and codes that were to influence my world view for some time’.
At the age of 17 he was charged with his first robbery and imprisoned for a period of four years. He was released at the age of 20 by which time he says he was firmly entrenched in the drug culture.
In 1996 his sister died and he became emotionally distraught and vulnerable and started using amphetamines. In 2000 he was again imprisoned and introduced to heroin.
He says that he was released from prison but quickly returned. On this occasion while in the custodial environment he was able to establish some kind of boundaries and developed a certain amount of self-control in regards to his substance abuse. He says that he undertook any available courses and was able to understand all the concepts that were presented. He claims that he started to see the possibility of living life without the endless cycle of failure, which attributed to his poor thinking styles and was magnified by his substance abuse.
In 2005 he was released on parole but quickly returned to custody and ‘externalized all fault and blame on other people for (his) inability to remain in the community’.
He claims that he again reflected on his experiences and developed strategies and accomplished goals that he had set himself. He says his confidence and self-esteem grew as did his belief in his ability to succeed. He says that his resolve was strengthened by his partner who supported him throughout this period.
In 2007 he was released from custody and moved in with his partner. He admits that during this period he was still smoking marijuana and had not cut all ties with his criminal associates.
During the period 2008 to 2010 he continued using drugs and relocated to the Gold Coast where he established a business and deferred his studies. In 2010 he started using amphetamines again.
He moved to Cairns at this time, where he was admitted to the Cairns Base Hospital under the care of the mental health team. He says that his recovery was assisted with medication, a therapeutic environment and regular visits with ATODS.
In August 2010 his daughter was born and moved to Cairns with her mother. He claims that he has always been very involved in his daughter's life taking his responsibility as her father very seriously. He says he always puts her needs before his own. He believes he has developed a loving relationship with his daughter and that she trusts him explicitly.
He says that it was over this time that he was able to make considerable steps in his recovery from drug addiction. He says that the added responsibility of being a father and being aware of the adverse consequences for his daughter, if he were to relapse into drug use instilled in him a resolve not to take any shortcuts.
He asserts that over the last four years he has developed a sense of humility that has allowed him to receive input from other people whether it be critical or positive. He believes he now has a solid moral and ethical principles base.
He says that his journey at this time has released a lot of latent unforgiveness, bitterness and other emotions that had bound in him.
He says that other areas of his life have started to grow. In August 2012 he began volunteering at voluntary ministry, which introduced him to the community service sector in a voluntary capacity. He has also worked with the agency with people with disabilities.
In 2013 he completed a Certificate in Community Services and gained employment with the agency. He was employed for 6 months until late March 2014 as a support worker.
BD says that the 2 driving forces in his life are his love for his daughter and the support of his mother. He says that his mother’s support has made it possible for him to be alive today.
In conclusion his life has been marked with periods of disappointment, feelings of abandonment and drug addiction. Over recent years he has received counselling and education and support that has helped facilitate his rebuild. He wants to put his past behind him. He wants to contribute to the community. He says he has a real belief that he has the skills and empathy necessary to help others who are suffering as he has suffered.

What the law says

The Disability Services Act 2006 (the Act) was renumbered and reprinted on 1 July 2014. The sections of the Act that I will refer to in these Reasons are those contained in that reprint.
Section 41 of the Act provides that the paramount consideration in making a decision about a yellow card application is the right of people with a disability to live lives free from abuse, neglect or exploitation.
The Department points out that the Human Rights principle[1] is also embodied in the Act and provides that people with a disability have the same rights as other members of society and have the right to respect for their human worth and dignity as individuals and to live lives free from abuse, neglect or exploitation.
[1]Disability Services Act 2014 ss 17, 18.
Section 54(10) of the Act provides that the chief executive must issue a negative notice to an engaged person if the chief executive is aware that the person has been convicted of a serious offence. A “serious offence” is defined in section 47 of the Act.
Section 54(11) of the Act says that the chief executive must issue a negative notice to an engaged person unless the chief executive is satisfied it is an “exceptional case” in which it would not harm the best interests of people with a disability for the chief executive to issue a positive notice.
When determining if this is an exceptional case I must have regard to the matters set out in section 55(2) of the Act namely:
(a)in relation to the commission, or alleged commission, of an offence by the person—
(i)whether it is a conviction or a charge; and
(ii)whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)when the offence was committed or is alleged to have been committed; and
(iv)the nature of the offence and its relevance to engagement that involves people with a disability; and
(v)in the case of a conviction—the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 137, the court’s reasons for its decision
(b)any information about the person given to the chief executive under section 118 or 119;
(c)a report, if any, about the person’s mental health given to the chief executive under section 126;
(d)any information about the person given to the chief executive under section 128 or 129;
(e)anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the engaged person.

The Department’s perspective

The Department points out that the applicant’s criminal history ‘demonstrates a significant ongoing pattern of offending behaviour’. His criminal record consists of 23 entries for robbery, illegal weapons use and drug related offences committed over an 18-year period from November 1991 to April 2010.
In particular the Department submits that the applicant has been convicted of several offences that are considered serious in nature. They point out that the applicant committed an offence in June 1993 of “steal with actual violence while armed with a dangerous and offensive weapon, while in company”. This offence involved the applicant and another person entering a food plaza with a rifle and a hunting knife. They threatened the attendant of the store with their weapons and demanded money. The applicant was sentenced to four years imprisonment for this offence, which in the Department's submission highlights the gravity of the behaviour.
In October 2002 the applicant was convicted of “robbery with actual violence whilst armed with a dangerous weapon” in relation to an incident on 8 April 2001. He was involved in breaking into a pharmacy and stealing large amounts of pharmaceuticals and money. When he was apprehended by police he raised a firearm and threatened to “shoot and kill” them. On this occasion he was sentenced to six years imprisonment again demonstrating the seriousness of the offending behaviour.
On 12 April 2001 the applicant was involved in another incident that led to him being charged and convicted of “serious assault” and “unlawful use of a motor vehicle” offences. The evidence was that the applicant approached the victim's vehicle and pointed the muzzle of a pistol at the victim's chest. The applicant then demanded that the victim, who was physically impaired, get out of the vehicle. The victim informed the applicant that he had a disability and needed sticks to walk. The applicant then dragged him out of the vehicle and drove off. The victim informed police that he was in fear of his life. The applicant was sentenced to 12 and 6 months imprisonment for these offences that were to be served concurrently with previous offences.
In summary, the Department says that the applicant has also been convicted of numerous property, drug, theft and illegal use of weapons offences as well as convictions for breaching various probation and fine orders imposed by the Courts.
The Courts have imposed a range of penalties including supervision, various monetary fines and a period of community service. In addition the applicant has been sentenced to seven further periods of imprisonment.

The evidence

The applicant relied primarily on his affidavit dated for August 2014. As part of his material he provided a personal history/life story, copies of a large number of certificates that he considered relevant to these proceedings, his resume, and a copy of his criminal history, various letters of support and other supportive reports.
In particular there was a report from RI, Forensic Psychologist dated June 2014 who had prepared a psychological assessment pursuant to the recommendations of the Tribunal.
The respondent relied on an affidavit by BJA dated 15 August 2014. The respondent also provided the following documents:
·       An application for criminal history screening – prescribed notice (yellow card) received 18 October 2013;
·       Letter to Applicant seeking a written submissions dated 6 December 2013;
·       A Memorandum for Approval dated 20 March 2014 with attachments.
The applicant’s mother BK gave evidence that her son had the skills, empathy, intelligence and understanding to hold a yellow card. She said that he had difficulties growing up and had made poor choices. She claimed that the changes in him have been different this time from the normal pattern that he has followed in the past.
BK said that her son wants to be a good role model for his daughter. She said that she does not think that it would be necessary for her son to see a psychologist or psychiatrist on a regular basis.
In a letter dated 22 December 2013 BK says that she is now confident he will capably and competently assume a responsible role of care and support for people with a disability.
At the hearing, RI's report was supplemented by material supplied by him in response to directions and a notice to produce issued by the Tribunal. The information consisted of a copy of all tests administered by RI to the applicant and the results of those tests plus some handwritten notes of his meetings with the applicant.
The applicant objected strenuously to the introduction of this new material claiming that the Department's behaviour was not acceptable. However, he insisted that the hearing should proceed.
RI said in his report that BD took issue with some of the statements regarding his offending behaviour made by the Department in their reasons for issuing him a negative notice. He said that BD claimed that the details were not always accurately reflective of the events, highlighting that he'd been acquitted of some of the offences and that some of the offences were on the lower end of the scale. Further BD ascribed ‘all of my past offending behaviour’ to his substance abuse.
RI reported that
BD had responded positively to mental health treatment and had managed to turn his life around with the support of mental health carers, religious organisations, and through his then partner's ongoing support. He was currently providing part-time care to his daughter and was working as well as engaging in a reasonably stable pro social life.
BD also said that the birth of his daughter caused a ‘realisation how my behaviour would affect and influence her life’. He described how his personal insight had developed, enabling him to move past offending behaviour and towards acting pro-socially in his life.
RI said that he assessed BD as being a low risk for committing further violent and/or criminal acts given these protective factors. He said that this risk would be further lowered if BD attended upon an experienced practitioner to further explore the impact of his previous criminal behaviour on the community. He said that he considered that BD was suitable for employment with people with disabilities.
With respect to the issue of whether the applicant has insight into the impact of his behaviour on vulnerable persons, RI said that he considered that the applicant had begun developing insight into the impact of his behaviour on others through his work with less fortunate people and offenders at the ministry. His insight had developed further through his employment at the agency but he conceded that BD could further develop his insight through attendance upon an experienced practitioner regarding this issue.
RI said that BD had no continuing risk factors. There were several protective factors including:
·       BD caring for his daughter;
·       BD leading a quiet prosocial life;
·       BD continuing to abstain from drugs and alcohol;
·       BD had engaged in voluntary and then paid employment.
With regard to preventative strategies RI said that the applicant did not engage in illicit substance abuse or drinking. He avoided situations and people who could influence him to fall back into his old ways. He had renounced his former criminal attitudes and lifestyle. He maintained a quiet prosocial lifestyle and considered his daughter's needs ahead of his own. He praised the mental health system for the assistance he had received and would seek further assistance if under pressure or feeling his mental health was again being compromised.
RI gave evidence at the hearing on 25 September. 2014. He presented as a credible witness who was able to address complex issues regarding various matters raised in cross-examination. He said that the applicant had a tendency to minimize his problems and needs to elevate his awareness of this issue and further develop his insight in this area.
He said that the applicant is attempting to put his best foot forward everywhere and is applying his energy to managing his anger. He admitted that he could never say that someone in the applicant's position is not a risk and that it depends on how he conducts himself. A lot will depend on the applicant's ability to regulate his emotions. He maintained that the applicant poses a low risk.
BD gave oral evidence at the hearing. In response to questioning from Counsel he admitted that he had never done anything to help anyone. He accepted that a number of people have made criminal claims against him. He attempted to justify his failure to provide accurate details regarding his convictions in his yellow card application by saying that he didn't intentionally leave anything out of his application.
Counsel conducted a very thorough review of the applicant’s material and drew the applicant’s attention to a list of other alleged discrepancies in the material. It became apparent to the Tribunal that in a number of areas the applicant had been selective in the material he had submitted and was minimizing his behaviour and the impact that it had. He attempted to apologise for unintentionally leaving matters out.

Should the applicant be granted a yellow card?

The applicant presented as a highly intelligent, articulate man who was well prepared for the hearing. The material that he presented was coherent and comprehensive. However the gaps identified by the Department were concerning.
In his final submissions the applicant said, ‘you have heard it all’. He said that he has been totally selfish and that he regrets his past behaviour. He expressed concern for the future of his daughter. He said it shouldn't have happened and he regrets the distress he has caused.

He submitted that RI was unequivocal in his support and that he was no appreciable risk of reoffending.
Counsel for the Department submitted that the time since the applicant stopped offending is relatively short. He drew the Tribunal's attention to the evidence by RI that the applicant still lacks insight and that he needs more counselling to assist him. He submitted that BD does not see this need.
Counsel emphasized the vulnerability of the persons the applicant proposes to work with and pointed out that BD has a previous offence for assaulting a disabled person with a gun. He submitted that there is no evidence to demonstrate the applicant's remorse or that he has sought to make restitution in relation to his many criminal offences.
Counsel contended that there was an ongoing concern about the applicant working one on one with a disabled person and argued that he was not as candid as he could have been in his evidence, which was characterized by justification and minimisation.
The issue for determination in this case is whether an “exceptional case” exists such that it would not harm the best interests of people with a disability for the Department to issue the applicant with a positive notice.
What constitutes an exceptional case has been the subject of consideration by the Tribunal on many occasions. In the appeal decision of FGC[2], the Tribunal noted the comments of Philippides J in the Queensland Supreme Court that ‘it would be most unwise to lay down any general rule with regard to what is an “exceptional case”… all these matters are matters of discretion’.[3]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.
[3]Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 at [34].
The Appeal Tribunal accepted that the phrase is to be read in the particular context of the legislation in which it occurs… The proper approach is that adopted by Philippides J: to consider its application in each particular case unhampered by any special meeting or interpretation.
The applicant contends that the findings of the Tribunal in the matters of MS v Department of Communities (Disability Services) [2011] QCAT 709 and SJ v Department of Communities (Disability Services) [2010] QCAT 685 are analogous to his circumstances. In his submissions Mr Kelly distinguished the second case based on the differences taken to establish an exceptional case. I have taken both of these cases into account in reaching my decision.
BD’s criminal history continued over 20 years with a period from 1993 to 2000 where he only came to the attention of police on 2 occasions. Over the last 3½ years BD has taken steps to become a normal law-abiding person living in the community.
BD has made changes in his life but changes that amount to him leading his life in a law-abiding manner as would be expected. I find that his evidence can be put no higher than he is now functioning in the community at the level expected of a person of his stage and age in life. These changes do not take BD’s circumstances outside of what is otherwise the “ordinary course”[4]. His case is not exceptional.
[4]Kent v Wilson (2000) VSC 98 at [22].
The Tribunal's focus in this jurisdiction is the protection of people with a disability. In this case I am required to refuse the application unless I am satisfied, with this consideration in mind, that the case is an exceptional one.
The aim of the legislation is to ensure the rights of people with a disability to live lives free from abuse, neglect or exploitation. I am satisfied that BD has made changes to his life. I accept that he is devoted to his daughter and wants to provide a good life for her and be a role model for her.
However I am not satisfied that BD has shown insight into how his past behaviour might affect his dealings with others, particularly people with a disability. Counsel for the Department submitted that the Department doesn't say that BD couldn't get there. I am not satisfied that BD has demonstrated that this is an exceptional case.

Should there be a non-publication order?

During the course of the hearing BD requested that a non-publication order be made. The Department indicated that they had no objection to a non-publication order and noted that the Tribunal has a discretion not to publish in “the interests of justice”.
I am mindful from the evidence presented at the hearing that BD has a young child who may subsequently be affected by any publication of these reasons. Neither party sought to make further submissions in their summing up.
However I am satisfied that there will be circumstances where publication of personal information will deter persons such as the applicant from pursuing their legitimate right to have a decision reviewed for fear of publication. I have considered the material presented in this case and I have determined that, in the interests of justice, a non-publication order should be granted.
I have decided that despite making an order for non-publication the principles of openness and accountability can still be achieved and maintained. The public interest can be served by permitting the public access to the decision and the reasons behind it.
Therefore I make the following orders:
1. The decision of the Department of Communities, Child Safety and Disability Services dated 20 March 2014 to issue BD with a negative notice is confirmed;
2. The Tribunal prohibits the publication of the name of the applicant and the names of the witnesses and organisations referred to in this decision.