Livingstone v Commissioner for Children and Young People and Child Guardian
[2014] QCAT 644
•30 November 2014
| CITATION: | Livingstone v Commissioner for Children and Young People and Child Guardian [2014] QCAT 644 |
| PARTIES: | Gary Ian Livingstone (Applicant) |
| v | |
| Commissioner for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML014-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 18 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 30 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is dismissed; 2. The decision of the Chief Executive, Public Safety Business Agency (previously known as the Commissioner for Children and Young People and Child Guardian) to issue a negative notice to Gary Ian Livingstone is confirmed. |
| CATCHWORDS: | Childrens matters - “serious offence” - suitability to hold a Blue card - offending subsequent to hearing - whether case is “exceptional case - where applicant has no desire or interest to work with children |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Gary Livingstone |
| RESPONDENT: | Ms Louisa Keown representing Chief Executive, Public Safety Business Agency |
This matter was heard on 18 June 2014 and subsequently determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Gary Livingstone is a 51-year-old man who at the time of the hearing was living with his adult son in Greenslopes, Queensland.
On 30 August 2013 Mr Livingstone applied to the Commissioner for Children and Young People and Child Guardian (now known as Chief Executive, Public Safety Business Agency) (the respondent) for a Blue card to allow him to work as a volunteer working with the aged in health counselling and support services (including disability services).
On 24 December 2013 the Commissioner advised Mr Livingstone, after considering submissions from him, that he would be issued with a negative notice.
On 24 January 2014 Mr Livingstone made an application to the Queensland Civil and Administrative Tribunal (the Tribunal) seeking a review of the Commissioner’s decision.
Mr Livingstone stated in his application that the Commissioner appeared to have incorrectly relied upon section 221 in issuing the negative notice and that he didn't get an opportunity to make submissions as would have been the case if the consideration relied upon section 225 instead. This issue was not raised at the hearing.
Secondly Mr Livingstone contended that the negative notice was issued on the basis that he was convicted of a serious offence. However he asserted that he had never been convicted of a serious offence and when he was charged with a serious offence (grievous bodily harm), it was discontinued by the police as set out in his criminal history.
Thirdly he claimed that the Commissioner relied upon his entire criminal history in circumstances where he has never been convicted of a serious offence and the spent convictions legislation means that a large proportion of it should be disregarded.
Mr Livingstone said that he has been working with a support worker from Aftercare since 19 December 2011. They meet on a weekly basis. During this time he has definitely come to understand the seriousness of his offending behaviour and he is now able to judge and implement appropriate behaviour. He says they have talked extensively about his past alcohol misuse and he has identified and addressed the offending triggers particularly his past alcohol misuse and offending behaviour. He says he is deeply sorry and regrets his past offences and the harm they have caused. He sought to assure the Tribunal that he is doing everything he can to ensure that this behaviour never happens again.
He says that he would like the Commissioner's decision overturned so he can find work and use his extensive experience and skills in aged care. He would like to be able to volunteer and help people who are experiencing some of the difficulties that he has experienced.
Mr Livingstone has an extensive criminal history commencing in Victoria as a young adult that continued into New South Wales until 1997 when he was living in Queensland. Since that time, there have been a large number of other additions to his history. At the date of the hearing on 18 June 2014 he still had an outstanding drug related charge that was subsequently dealt with on 3 July 2014 resulting in a fine and conviction being recorded.
On 24 June 2014 the Tribunal was notified by a representative of the respondent that the applicant had been charged with another offence of assault/obstruct police officer arising from an incident on 21 June 2014. It was alleged that the applicant spat in a police officer’s face while he was performing his duties.
This charge and the other matter were also dealt with on 3 July 2014. In relation to the charges of “commit public nuisance” and two charges of “assault or obstruct police officer”. The applicant was convicted and sentenced to concurrent terms of imprisonment with a parole release date of October 2014.
What is the relevant law?
In his application Mr Livingstone denied that he had been convicted of a “serious offence”. A “serious offence” is defined in section 167 of the Working with Children Act 2014 (the Act). Schedule 2 of the Act provides that an offence against section 419 of the Queensland Criminal Code, particularly subsection 419(3)(b)(i) or (ii), is a serious offence.
Mr Livingstone's criminal history reveals that on 24 May 2006 he was charged with offences of “Acts intended to maim/disfigure” and “enter dwelling with intent by break at night uses/threatens violence”. In relation to the first matter in the Brisbane District Court on 18 October 2007 the prosecution entered a nolle prosequi and the applicant was discharged. In relation to the second matter, the applicant was convicted and imprisoned for four years.
Both of these charges are regarded as “serious offences” under the legislation.
Section 225 of the Act provides that where a person has been convicted of a serious offence the Chief Executive and as a consequence the Tribunal when conducting a review, must issue a negative notice to the applicant unless it is satisfied that the applicant's case is an “exceptional case” in which it would not harm the best interests of children to issue a positive notice.
Section 226 of the Act outlines the various factors that the Tribunal must take into account in deciding if the applicant's case is an “exceptional case”. In the decision of Eales[1], the Appeal Tribunal confirmed that the phrase “exceptional case” must be considered “in the context of the legislation which contains that phrase, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect”. Further the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.
[1]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCAT.
The Act provides that the Tribunal has jurisdiction to conduct a review of the Chief Executive's decision. The Tribunal can confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return it to the decision-maker for reconsideration with or without directions.
The focus of the Act is the protection of children. It is based on the principle that the welfare and best interests of children are paramount. It is intended to put boundaries around employment or volunteering to protect children from harm. The standard of proof to which the Tribunal must be satisfied is the balance of probabilities.
What is the applicant's case ?
The applicant relied on the following material in support of his application:
·His application dated 23 January 2014;
·A personal history dated 11 March 2014;
·A report from an Art therapist, Ms S Jemison dated 11 March 2014 and a statement dated 13 June 2014;
·A letter from Mr Geoff Larcombe of Aftercare dated 20 January 2014;
·A number of other letters and certificates of support;
·A memorandum from Mr Greg Howden, General Manager, Woodford Correctional Centre dated 20 June 2008;
·A letter from Mr Lawrence Popata dated 10 June 2014;
·A letter from the applicant dated 13 June 2014; and
·A letter from Ms Jan Dunbar dated 13 June 2014.
In his evidence to the Tribunal, the applicant made it clear that his background is in aged care and palliative care. He claims that none of his past behaviours have involved his work. He says that his private life has been where he has had problems. He says he is a caring person who enjoys working in aged care. He would also like to work in the mental health area because he can talk to people who are on the path that he was on.
The applicant stated that he didn’t really want to work with children. In his final submissions he emphasized that he doesn't want to work with children. He has no interest in anything to do with kids and said that his own children give him enough grief.
Overall, I formed the view that the applicant's evidence had a tendency to minimize his previous poor behaviour and demonstrated a lack of insight into the impact of his actions on his victims.
Mr Larcombe from Aftercare pointed out that the applicant would like to give back to the community through his volunteer work using the skills and experience he gained during his time in aged care. He sees this as a stepping-stone towards gaining financial independence, so he will no longer be dependent on government assistance and once again be a contributing member of society.
Mr Larcombe says that the aged care positions that the applicant is seeking do not require exposure to children, however the Blue card is a requirement of employment, without which he will not be able to work in his area of passion.
Mr Larcombe believes that the applicant is worthy of a second chance and would be very appreciative if (the Tribunal) would provide the applicant with an opportunity to rehabilitate himself through gainful employment so he can prove to the world that he is capable of positive change.
Should the applicant be granted a Blue card ?
The Chief Executive submitted that the applicant has a conviction for a serious offence. As a result, the Tribunal must issue a negative notice to the applicant unless it is satisfied that it is an exceptional case in which it would not harm the best interests of children to issue a positive notice.
I have considered the applicant's lengthy criminal history, which includes offences for violence and drug related matters. I accept the Chief Executive’s submission that the violent offences demonstrate a propensity on the part of the applicant to resolve conflict and respond to stresses with violence, intimidation and aggression. This is further confirmed by his behaviour subsequent to the hearing of his application
The serious offence for which the applicant was charged, involved his former partner. At the time, the applicant was the respondent to a domestic violence protection order. In summary, it was alleged that he attended at the complainant’s dwelling, kicked down the front door and entered. It was alleged that the applicant poured petrol over the complainant and around the dwelling, to the extent that the complainant was in grave fear for her life because she believed that the applicant was going to set her alight. As outlined above, for this particular offence the applicant was convicted and sentenced to imprisonment for four years.
The question in this case is not whether Mr Livingstone should be allowed to follow his dream of working in aged care. The question is whether this is an exceptional case where it would not harm the best interests of children to issue a positive notice.
It has placed a barrier around persons with a conviction for a serious offence with respect to their ability to work with children. The offence of “enter dwelling with intent by break at night uses/threatens violence” is a serious offence even though it does not involve any action against children.
I accept that the applicant’s submission that he does not wish to work with children or for that matter have anything to do with children. However it is a requirement for him to hold a Blue card should he wish to work in aged care.
I am satisfied that the inference I can draw from the fact that the offence has been categorized as a serious offence is that it would harm the best interests of children for persons with a conviction for that offence to work with children unless it is exceptional case.
In the light of his subsequent behaviour I can find nothing in the applicant's case to indicate that he has gained any insight into the impact of his offences on his victims. If anything he sought to minimize his behaviour and possibly portray himself as a victim. He appears to continue to be unwilling to accept responsibility for his actions.
I am particularly concerned that the effect of issuing a Blue card is that the applicant would be able to engage in any child related work or employment or conduct any child related business that might be regulated by the Act. I am not able to issue a conditional Blue card so that the applicant could work solely in aged care.
I accept the respondent’s submission that it is irrelevant that the applicant may never intend to work in any child related activity. If I issue him with a Blue card he will have unlimited access to children in any category of regulated employment or business.
Decision
I have given serious consideration to the applicant’s circumstances. It may be the applicant has made changes in his life but even in that regard he continues to offend. The applicant has not demonstrated that he has done anything to take his circumstances outside of what might be regarded as the ‘ordinary course”[2]. I am not satisfied that this is exceptional case.
[2]Kent v Wilson (2000) VSC 98 at [22].
I therefore order that the application is dismissed and the decision of the Chief Executive, Public Safety Business Agency (previously known as the Commissioner for Children and Young People and Child Guardian) to issue a negative notice to Gary Ian Livingstone is confirmed.
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