Livingstone v Commissioner for Children and Young People and Child Guardian - [2014] QCAT 644

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Livingstone v Commissioner for Children and Young People and Child Guardian [2014] QCAT 644
Case: [2014] QCAT 644
Decision Date: 30 November 2014

CaseChat Overview and Summary

The case of Livingstone v Commissioner for Children and Young People and Child Guardian involved Gary Ian Livingstone, who sought to overturn a decision by the Chief Executive of the Public Safety Business Agency, previously known as the Commissioner for Children and Young People and Child Guardian. The dispute centred on Livingstone's eligibility to hold a Blue card, which is a prerequisite for working with children in certain roles in Western Australia. Livingstone had been found unsuitable for a Blue card due to a conviction for a serious offence subsequent to a Blue Card application hearing. The legal issues before the court included whether the Commissioner's decision was justified under the relevant legislative provisions, and whether Livingstone's case constituted an exceptional situation where he had no desire or interest to work with children.

The court considered the criteria for determining the suitability of an individual to hold a Blue card, including the nature of the offence committed and the risk posed to children. It was established that Livingstone had been convicted of a serious offence, which is a ground for deeming an applicant unsuitable for a Blue card. The court also assessed whether there were exceptional circumstances warranting a departure from the usual rule. In this instance, the court found that Livingstone had not demonstrated a lack of desire or interest in working with children, nor had he provided any compelling evidence that he posed no risk to children despite his conviction.

The court concluded that the Commissioner's decision was within the statutory powers granted and was not erroneous in law. It was determined that Livingstone's conviction for a serious offence justified the negative notice issued by the Commissioner. The court did not find the case to be exceptional, as Livingstone had not shown that he was not interested in working with children or that he posed no risk to them. Consequently, the application for judicial review was dismissed, and the decision of the Commissioner was confirmed.

The final orders of the court were that the application by Gary Ian Livingstone to overturn the decision of the Commissioner for Children and Young People and Child Guardian was dismissed, and the decision to issue a negative notice to Livingstone was confirmed.

Orders

Orders of the court

1. The application is dismissed;

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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