Hamilton v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 92
•30 March 2015
| CITATION: | Hamilton v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 92 |
| PARTIES: | Hamish Hamilton (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML235-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 13 March 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Hanly |
| DELIVERED ON: | 30 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive to cancel a positive notice and blue card and issue a negative notice to Hamish Hamilton is set aside. 2. The Chief Executive is to issue a positive notice and blue card to Hamish Hamilton. 3. The Tribunal directs that within one month of the completion of and graduation from his Bachelor of Health Science in Acupuncture Hamish Hamilton apply to the Chief Executive to cancel his blue card under s 244 of the Working with Children (Risk Management and Screening) Act 2000. |
| CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD – Where positive notice and blue card cancelled – Where negative notice issued – whether exceptional case – where blue card required to complete tertiary studies – cancellation of card following graduation from tertiary studies |
APPEARANCES:
| APPLICANT: | Hamish Hamilton appeared in person and was unrepresented |
| RESPONDENT: | The Chief Executive was represented by Ms Louisa Keown |
REASONS FOR DECISION
Hamish Hamilton requires a blue card to complete a Bachelor of Health Science in Acupuncture. He commenced that course in 2008. He has completed all but nine hours of student clinical work in this course.
Mr Hamilton was issued with a positive notice and blue card on 6 March 2013. On 1 August 2013 the Queensland Police Service notified the Commissioner that Mr Hamilton’s police information had changed.
Accordingly, the Commissioner reassessed his eligibility to hold a blue card, and on 25 October 2013 Mr Hamilton’s positive notice and blue card was cancelled and he was issued with a negative notice.
The Tribunal must consider the matter afresh and make the correct and preferable decision based on all the evidence before it.[1] The Tribunal must apply the same legislation as that applied by the Commissioner.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 20(1).
[2]Ibid s 19.
Mr Hamilton has convictions for the following offences:
· Breach domestic violence order (3 charges);
· Supplying dangerous drugs;
· Assault occasioning bodily harm whilst armed (2 charges);
· Possessing dangerous drugs; and
· Possession of second schedule drug.
Mr Hamilton has also been charged for the following offences:
· Attempted robbery – actual violence whilst armed and in company (2 charges);
· Deprivation of liberty – unlawfully detain/confine;
· Assaults occasioning bodily harm and is or pretends to be armed with any dangerous or offensive weapon or instrument and is in company (2 charges);
· Assault occasioning bodily harm whilst armed (2 charges);
· Assaults occasioning bodily harm; and
· Possession of dangerous drugs (current charge).
None of the current charges recorded on Mr Hamilton’s criminal history is defined as a serious or disqualifying offence under the Act.
Accordingly, Mr Hamilton must be issued with a positive notice unless the Tribunal is satisfied that his is an exceptional case in which it would not be in the best interests of children to grant his application.
There are three issues that the Tribunal must determine: what is an ‘exceptional case’?; what are the risk and protective factors applicable to Mr Hamilton?; does an ‘exceptional case’ exist in Mr Hamilton’s circumstances?
To be able to address these issues, it is first necessary to understand a little more about Mr Hamilton.
Mr Hamilton’s background
Mr Hamilton’s childhood was traumatic. He had an abusive alcoholic father, who subjected his mother in particular to repeated violence.
Mr Hamilton’s parents separated when he was 14 and then his mother struggled financially to keep her children fed, clothed and housed. In doing so, she was rarely home, having to work long hours. Mr Hamilton was left to fend for himself, and to look after his two younger sisters.
Mr Hamilton felt anger towards his mother for what he described as abandonment. He has had a fractious relationship with his mother until recently, but now has mended bridges.
In spite of this, Mr Hamilton was a state athlete at school, a district representative in soccer and, whilst at university, a national level power lifter. He completed a Bachelor of Science degree in 1996. Prior to completing that degree, he began his own business as a strength and conditioning coach.
Following his graduation in 1996, Mr Hamilton suffered a series of setbacks which started his life on a severe downward trajectory. He had a failed relationship; he began to have self-doubt and felt dissatisfied with his career path as a sports coach.
Originally, Mr Hamilton had wanted to study medicine, but his results were not sufficient to be accepted into that faculty. He was also suffering extreme fatigue, and began to think that he had chronic fatigue syndrome.
Some of Mr Hamilton’s friends then introduced him to amphetamines. What followed was a very dark period in Mr Hamilton’s life.
He became addicted to amphetamines and was convicted of several criminal offences, the most serious of which related to a home invasion, during which a young woman was injured. He was sentenced to 18 months imprisonment, suspended after serving four months for two years.
Following his release from prison, Mr Hamilton resolved to turn his life around. He stopped taking amphetamines because he realised that it had a bad effect on his life, which in turn had serious implications for others. He was remorseful for those events, in particular the injuries sustained by the young woman during the home invasion.
Mr Hamilton commenced the Bachelor of Health Science in Acupuncture course in 2008. He attributes the change in his attitude to life to the knowledge gained in his course, and to his involvement in martial arts training. The latter he describes as having taught him discipline and self-control.
Mr Hamilton has had three further convictions for drug offences. These all relate to marijuana and none involved charges of violence. The most recent conviction was in 2013, which lead to the cancellation in October 2013 of his blue card.
What is an exceptional case?
The Act does not define the term ‘exceptional case’. However, the term has been considered in many cases, and the Tribunal gains guidance about the meaning of the term from the comments made by Judges in those cases. What constitutes an exceptional case is a question of fact and degree. It must be such as to ‘take it out and beyond the ordinary circumstances expected to occur’[3] or be ‘of the nature of or forming an exception; out of the enduring cause, unusual, special’[4].
[3]In the Marriage of Sandrk (1991) 104 FLR 394 at 399 – 400.
[4]Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287 – 288.
At the hearing, Mr Hamilton explained that the recent charge in relation to possession of marijuana related to a small amount of marijuana which a friend had given to him. He said he was saving it to use after his graduation from his current course.
Mr Hamilton stated that he still uses marijuana very occasionally. He considers that it is not a need nor is it a habit and it simply gives him short-term pleasure. He says it is so infrequent that he wonders why he bothers at all.
He did however assert that he would never use marijuana if he were going to drive, and it would always be afterhours in private settings.
Mr Hamilton expressed the view that anyone under 25 should not use marijuana as he considers that it impairs brain function. He stated that as a health practitioner he recognises the negative aspects of drugs, including alcohol and cigarettes.
He further stated that he has never used marijuana in the presence of young people and would actively discourage them from using any form of drugs if a young person were to ask him about drug use.
Mr Hamilton said that his core group of friends do not smoke marijuana, so he is not tempted in his social circle. He also has a supportive family, and his intentions moving forward are to derive greater benefit from books and yoga for his relaxation.
In relation to his support networks, Mr Hamilton stated that he has a girlfriend but is not in a long-term relationship; he has friends in his jujitsu club and friends in his surfing world as well as a good friend who is in the army.
He considers that he is now a good role model because he has changed and turned his life around.
Mr Hamilton has plans for his future business life in which he would establish a multimodality clinic, incorporating his own practice as an acupuncturist with other health professionals. He does not intend to treat children in his own practice, as he explained that it is necessary to set up the practice in a completely different way in order to accommodate the treatment of children.
Supporting evidence
Mr Hamilton called several witnesses.
The first was his sister Caroline Britton. She had provided a statement dated 10 October 2013[5]. Ms Britton referred to the relationship between Mr Hamilton and her two children aged 5 and 2. She stated that her children adore their uncle and they regularly go on family outings together, during which time they engage in many and varied activities. Mr Hamilton demonstrates a great deal of care for her children during these outings and always shows concern for everybody’s safety. Ms Britton considers herself fortunate to have Mr Hamilton as a brother and an uncle whom her children love and trust.
[5]Exhibit 2.
Mr Britton noted that during their childhood Mr Hamilton provided security and support for her and for their younger sister because their father was not interested in them and their mother had to work long hours to support them.
Ms Britton stated that the path that her brother went down when he was younger did him no favours but that his achievements since his time in jail reveal how hard he has worked to put his past behind him and that those achievements are deserving of recognition.
Ms Britton stated that Mr Hamilton’s love, strength and positivity are all attributes that she would love to see in her own children.
In her oral evidence, Ms Britton stated that she had never witnessed Mr Hamilton using drugs and that to her knowledge any such use of drugs by him had always been in a private context.
Ms Britton further stated that she believed that in life, one has to be in control of oneself, and that Mr Hamilton instilled that belief in her children. He also encouraged them to understand that they should not be influenced by anything or anyone.
Ms Britton concluded her evidence by stating that she did not think that Mr Hamilton would ever adversely influence anyone.
Ms Kerry Smith provided a statement dated 14 November 2013[6]. She stated that she had known Mr Hamilton for close to 10 years, during which time they were in a relationship for approximately five years. They continue to have a very good relationship as close friends. She is fully aware of his criminal history.
[6]Exhibit 3.
Ms Smith described Mr Hamilton as reliable, hardworking, generous, capable of achieving greatness and exceeding people’s expectations of him, due, in her view to his past. Ms Smith considered Mr Hamilton to be a willing and helpful friend.
Ms Smith expressed no reservations about having Mr Hamilton around children. She stated that they have a number of mutual friends with children and that Mr Hamilton had assisted with babysitting duties when required.
In her oral evidence, Ms Smith stated that Mr Hamilton had never used marijuana in the presence of young people. It is her view that Mr Hamilton had grown into a responsible adult, whom she described as having a caring nature, and who will always make himself available to friends in need.
The next witness, Ms Savitri Wiednya, provided a statement dated 4 November 2013[7] in which she stated that she had known Mr Hamilton for the past six years as both a fellow student and as a close friend of herself and her family. She was fully aware of Mr Hamilton’s criminal history.
[7]Exhibit 4.
Ms Wiednya believed that the insights gained by Mr Hamilton from his experiences in the criminal justice system had allowed him to develop into a person who behaved with honesty, kindness and integrity.
Ms Wiednya expressed the view that Mr Hamilton posed no danger to any person and she had no issues with his being around her two children, both of whom like Mr Hamilton very much.
Ms Wiednya stated that she would trust Mr Hamilton without question to care for her children if necessary.
In her oral evidence, Ms Wiednya confirmed that she had regular contact with Mr Hamilton throughout their course when she saw him at least three to four times per week. Over the time that she had known Mr Hamilton, she considered that he had become more sensitive, more willing to listen and more compassionate.
She further expressed the view that in learning how to listen, Mr Hamilton was better able to assist people after having listened to their issues.
Ms Wiednya explained that their course helped people to realise how they must relate to and care for anyone who might seek their professional assistance.
Ms Wiednya stated that there is a very large network of professional engagement, that there is ongoing professional development within the network and that they have both made friends within that network. In Ms Wiednya’s view, there is significant capacity for personal growth within the profession.
The final witness was Mr Paul Hartman who provided a statement dated 31 October 2013[8]. Mr Hartman stated that he had known Mr Hamilton for almost nine years. He had maintained a close personal relationship with Mr Hamilton throughout that time. He stated that he was fully aware of Mr Hamilton’s criminal history, and noted that over the years Mr Hamilton had expressed his regret and embarrassment over his convictions.
[8]Exhibit 5.
Mr Hartman stated that on many occasions, his two young daughters have been in the care of Mr Hamilton and Mr Hartman has observed him to be extremely caring and protective of them.
Mr Hartman stated that Mr Hamilton was well known and well liked in his local community. Mr Hartman had always found him to be helpful, honest and respectful to all people around him.
In his oral evidence, Mr Hartman stated that he considered one of Mr Hamilton’s major strengths to be that he can manage confrontation very well. When Mr Hartman first met Mr Hamilton, he considered that Mr Hamilton was quite feisty. Mr Hartman had observed the change in Mr Hamilton over the years and considered that undertaking his course of study had assisted in the observed changes. He noted that Mr Hamilton was focused on his career. Mr Hartman believed that the course had been very beneficial for him.
Is this an exceptional case?
In closing submissions, Ms Keown noted that Mr Hamilton does not have a conviction for a serious offence and that therefore the Tribunal must issue him with a positive notice unless it is satisfied that an exceptional case exists in which it would not be in the best interests of children for him to hold a blue card.
Ms Keown further referred to the paramount principle in relation to the welfare and best interests of children.
Ms Keown noted that Mr Hamilton had admitted his previous addiction to amphetamines, although he had ceased any use of these. In relation to his marijuana usage, she noted that he had previously had heavy consumption on a daily basis but that this reduced to intermittent use. She further noted that he had acknowledged use of marijuana on social occasions, that he does not seek out marijuana, and that he would describe his use as ‘sporadic’. Ms Keown further referred to Mr Hamilton’s description of himself as being not drawn to nor seeking out the use of marijuana.
Ms Keown expressed concern in respect of recidivism and noted that Mr Hamilton has a relaxed view in relation to marijuana use which is concerning, particularly as the use of marijuana in Queensland is illegal.
Ms Keown also referred to Mr Hamilton’s credibility when his statements at the time of receiving the blue card in March 2013 were to the effect that he no longer used marijuana, whereas subsequently he was found in possession of marijuana, which he admitted he intended to use after his graduation, by way of a celebration.
Ms Keown submitted that Mr Hamilton would be unable to address the triggers which lead him to the use of marijuana, however sporadically, if he cannot identify those triggers.
Ms Keown acknowledged that Mr Hamilton had reduced his offending, that he can now deal with conflict and that he thinks about others.
In relation to Mr Hamilton’s witnesses, Ms Keown acknowledged their support of Mr Hamilton and their general belief that he was a decent person for whom they had significant regard.
Ms Keown pointed out that a blue card cannot be granted with conditions. She stated that it is irrelevant that Mr Hamilton only needs the blue card to complete his course.
It is Ms Keown’s submission that this is an exceptional case in which it would harm the interests of children if Mr Hamilton were to be granted a blue card.
In his submission, Mr Hamilton stated that he was once a lost and misguided person but that he has now found his true essence again. He has travelled some very bad roads in his past and that is no longer a part of him.
He noted that children are vulnerable and that it is incumbent upon all to be aware of their needs. He believes that he should be granted a blue card, and that it would not harm the interests of children if he were to be given one. He particularly noted that he does not intend to work with children, and that he only requires his blue card to complete the 9-hour practicum, which will enable him to graduate from his 6 year course. If granted a blue card he is happy to apply for it to be cancelled after he has graduated.
What are the risk and protective factors?
Mr Hamilton has convictions for drug offences, the earlier of which involved the use of amphetamines and was also associated with violence. However it is over 13 years since Mr Hamilton was convicted of offences of this nature. Mr Hamilton acknowledged his earlier addiction to amphetamines, but has not used such drugs for many years. He admitted sporadic and minimal use of marijuana on an on-going basis.
The Tribunal considers that Mr Hamilton has a very relaxed view of marijuana use. This view cannot be, nor is it, condoned by the Tribunal.
Nonetheless, the Tribunal accepts his evidence, and that of his sister and Ms Smith, that Mr Hamilton has not, and would not, use marijuana in front of children or young people, and that he would not encourage its use by such persons.
The Tribunal further accepts Mr Hamilton’s evidence that his use of marijuana in recent times has been sporadic in frequency and minimal in quantity.
The Tribunal accepts that Mr Hamilton has made significant changes in his life. He has expressed remorse for the harm that he has caused others because of his criminal offending. He has demonstrated insight into the impact of his previous behaviours on others. This was also recognised in 2001 in the sentencing remarks of His Honour Judge Pack, who noted that Mr Hamilton had shown compassion to the female victim injured in the home invasion[9].
[9]Transcript of Proceedings 19 February 2001 page 3 line 30.
Mr Hamilton has applied himself to the requirements of his current course such that he now has only a nine-hour practicum to complete before he can graduate from that course, which he has completed over a 6 year period.
Mr Hamilton does not wish to work with children in the future not because of any stated aversion to children but rather because setting up a practice which caters for children entails a practical framework that Mr Hamilton does not wish to include in the design of his business.
The Tribunal accepts the evidence of Mr Hamilton and his witnesses that he enjoys good relationships with his niece and nephew and the children of friends and that he has always behaved appropriately and protectively in relation to those children.
The Tribunal notes that Mr Hamilton, if granted a positive notice and blue card, is only desirous of holding that blue card for as long as it takes to complete his practicum and graduate from his course.
Mr Hamilton’s college has confirmed that he only has to complete his nine-hour practicum before being able to graduate, and that it is a requirement of the college that he hold a blue card for this purpose.
After graduating, Mr Hamilton would not need to hold a blue card to obtain registration as an acupuncturist. He would be subject to the requirements of the professional body regulating his registration and those requirements include a form of criminal history screening. That, however, is not a matter with which this Tribunal need be concerned in relation to its consideration of whether Mr Hamilton should receive a blue card. That professional organisations requirements and deliberations are entirely a matter for it.
The Tribunal must simply consider the evidence in respect of Mr Hamilton and, having regard to the paramount principle, and other legislative requirements, determine whether an exceptional case exists.
In weighing up the risk and protective factors in this matter, the Tribunal is satisfied that there are considerable protective factors present in Mr Hamilton’s life. He has a supportive family, a circle of friends of many years standing gained through normal social channels and through his course of study. There is a strong professional network amongst practitioners of Chinese medicine. Mr Hamilton has also immersed himself in yoga and martial arts as a means of self-discipline and relaxation. He attributes many of the changes which he has been able to bring about in his life to the discipline of his studies and his recreational pursuits.
Whilst Mr Hamilton’s criminal history is concerning, he has to his credit not engaged in criminal activity involving violence for well over a decade. There is the minimal, sporadic on-going use of marijuana in private settings, and after hours, which is in any event unlawful. The Tribunal considers this an ongoing risk.
Weighing up all of the factors, the Tribunal is satisfied that the protective factors in Mr Hamilton’s life outweigh the risk factors. Furthermore, Mr Hamilton requires his blue card for an extremely limited time. He has advised the Tribunal that he is willing to relinquish his blue card following his graduation.
The Tribunal is therefore satisfied that Mr Hamilton’s case is not an exceptional one in which it would harm the best interests of children if he were to be issued with a blue card.
The Tribunal therefore sets aside the decision which cancelled Mr Hamilton’s blue card and positive notice and directs that a positive notice be issued to Mr Hamilton.
The Tribunal further directs that within one month of his graduation, and in accordance with his stated intention to do so, Mr Hamilton apply to the Agency for a cancellation of his blue card under s 244 of the Working with Children (Risk Management and Screening) Act 2000.
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