LMJ v Chief Executive Officer, Public Safety Business Agency (Blue Card Services)
[2014] QCAT 535
•23 September 2014
| CITATION: | LMJ v Chief Executive Officer, Public Safety Business Agency (Blue Card Services) [2014] QCAT 535 |
| PARTIES: | LMJ (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Blue Card Services) (Respondent) |
| APPLICATION NUMBER: | CML009-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 25 July 2014 15 August 2014 Final submissions |
| HEARD AT: | Toowoomba |
| DECISION OF: | Member Ford Member Feil |
| DELIVERED ON: | 23 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Public Safety Business Agency, to issue a negative notice to LMJ is confirmed. 2. The Tribunal prohibits the publication of the names of the adult, his referees and of the organisations in the decision relating to the application number CML009-14. |
| CATCHWORDS: | BLUE CARD – ISSUE NEGATIVE NOTICE –Where negative notice issued – whether exceptional case – where extensive criminal history – where risk and protective factors considered Working with Children (Risk Management and Screening) Act 2000 ss 6, 155, 221, 226, 353, 360 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | LMJ |
| RESPONDENT: | The Chief Executive Officer represented by Ms Louisa Keown |
REASONS FOR DECISION
LMJ wants to work with troubled young people to assist them with changing their lives. He has had a long history of criminal offences from a young age and believes that he has much to offer. He believes he is demonstrating that he is working hard to improve his life and to become a model citizen.
LMJ applied to the former Commissioner for Children and Young People and Child Guardian to be issued with a Blue Card to work with children. Most particularly he wants to continue his role with supporting young males in a rehabilitation program in South East Queensland through an internship. He works at a local gymnasium. LMJ sees a future in running programs for young people at his local church as well. LMJ wants to study the TAFE Certificate 4 in Youth Work for which he will require a blue card.
The Commissioner refused the application and issued a negative notice to LMJ on 3 January 2014. The Commissioner considered LMJ’s case was exceptional even though none of the offences were categorised as ‘serious’ offences. The Commissioner considered that LMJ should not be granted a Blue Card as it would not be in the best interests of children for him to have the capacity to work with them.
LMJ sought a review of this decision. He wants the tribunal to overturn the original decision and to grant him a Blue Card. He believes that he has made significant changes to his behaviours and is suitable to work with children.
What law must the Tribunal consider?
The Commission for Children Young People and Child Guardian Act 2000 was repealed and replaced with the Working with Children (Risk Management and Screening) Act 2000 (the Act) on 1 July 2014. The original decision maker’s role regarding Blue Cards is now undertaken by the Chief Executive Officer of the Public Safety Business Agency in Queensland. Section 546 of the Act states that anything done by the former Commissioner is taken to be done by the Chief Executive. In that regard the Chief Executive Officer is the decision maker now in not granting a Blue Card to LMJ.
The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well being.[1]
[1]Act ss 6, 155, 360.
LMJ’s offences are not considered serious offences for the purposes of the Act. In order to issue a positive notice to LMJ, that is give him a blue card, the tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an ‘exceptional case’ does not exist.[2]
[2]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing with authority the test prescribed in Briginshaw v Briginshaw & Anor [1938] HCA 34; (1938) 60 CLR 336.
The tribunal is guided by the Appeal Tribunal’s position that ‘phrases like ‘exceptional’ case must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children’.[3]
[3]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at 31 (citing Kent v Wilson [2000] VSC 98 per Hedigan J at [22]).
The tribunal will weigh up the risk and protective factors in this case to determine if LMJ should be given a blue card, thus overturning the Chief Executive Officer’s decision.
The evidence considered is framed by s 226 of the Act which sets out certain particular matters the tribunal is obliged to consider, while not being confined to these matters alone.
What is LMJ’s story?
LMJ is 24 years old and had lived in another state for most of his life. His biological father had left at his birth. He grew up in a supportive home with his mother and step father, but had personal challenges due to a diagnosis of ADD and ADHD. He found it difficult to fit into the school environment, with a memory of moving both houses and schools a lot. His life changed when he started to hang around a group of young people who were in gangs, even though his father was a police officer and his mother an ambulance officer in the area in which they lived. By the age of 12, he was moving with a group who were stealing, gambling, fighting, committing burglaries, drinking, and taking amphetamines.
By age 15 years, LMJ was living in a more established suburb with his parents. His father was working in the mines and his mother was a teacher at a Christian school. He was attending an alternative school for troubled young people after being expelled from a previous school. He reports that almost everybody at this new school used drugs or drank heavily. He progressed to selling marijuana and became fascinated with the whole drug dealing culture.
Upon his parents discovering his activities, LMJ was removed from the school and eventually commenced work that his father had gained for him. During the week he enjoyed the achievements work engendered. However on weekends, he reconnected with his old friends and continued criminal activities including stealing cars, burglaries, bashing and using drugs. He acknowledges a lot of the crime was about the adrenalin rush and risk taking experienced. His parents asked him to move out of home and over a further two year period he increased his amphetamine use. He was charged with a range of offences.
Upon being charged with burglary at age 17, LMJ attended a youth rehabilitation program in his home state completing three months of this program before being asked to leave due to threatening violence towards another student. Through connections made at this program, he started selling drugs again, while his parents thought he had successfully rehabilitated. The drug usage increased including taking Benzos, speed, ecstasy and marijuana in bulk. He served a term of imprisonment, with LMJ blaming the police for him subsequently losing his job.
LMJ served a further longer term of imprisonment, benefited from courses, but still used drugs while in prison. He had a range of experiences, including contracting Hep C. Upon release from prison he went back to selling and using heavy drugs again.
LMJ has been assisted by his parents throughout this turbulent time. He moved to Sydney for a brief period of time into the care of his biological father. However his father could not cope with LMJ’s issues.
LMJ moved to South East Queensland and commenced a 12 month program at a rehabilitation centre on 5 February 2013. LMJ states he has been completely drug free since January 2013. The program has been a life changing experience in his eyes, allowing him to work on his life controlling problems (drugs and alcohol dependence) and underlying issues of self pity, pride and anger.
He has volunteered at various events such as midnight basketball and at Church in the town. He has connected with a supportive church group. He has had leave from the centre, being offsite on weekends, and for holiday periods visiting family in Sydney. He has undertaken various community work placements such as with the Church in which he is involved, a soup kitchen and with small businesses.
LMJ continues having regular therapy with two psychologists. He finds great satisfaction in working at a local gymnasium. There are concerns for the use of steroids in the fitness industry, including at his gym, but LMJ has not been tempted to become involved.
LMJ has been able to remain at the rehabilitation centre beyond the 12 month program. He is on an extended transition program which provides extra accountability and direction opportunities, living on-site. Greater responsibility and mentoring is afforded the students in this program.
LMJ has restored the fractured relationships with his whole family and they are fully supportive of his gains in the past year or so. He sees his future as being drug and alcohol free, with greater supports and a religious community to back him up.
LMJ has a warrant for his arrest in another due to failing to appear in court for a charge of burglary. The allegation is that he stole money from a Commonwealth Bank branch and he confirms he spent the money on drugs over a three day period. He has not returned to his home state since leaving in January 2013, and is very concerned for his safety and that of his family if he were to return.
The Chief Executive Officer’s (CEO) position – the risk factors
LMJ has an extensive criminal history for a young person. Between April 2008 and August 2010 he was convicted of a number of drug offences, including possession of cannabis and methyl amphetamine.
In October 2009 he was convicted of ‘possession of a prohibited drug with intent to sell or supply’. He was sentenced to 16 months imprisonment, to be suspended for 16 months on the condition that he under go programs and supervision. This sentence was breached and LMJ was re-sentenced on 6 January 2011 to 16 months imprisonment and a number of concurrent terms of imprisonment for other offences including stealing, unlawful damage, possession of a prohibited weapon and burglary.
In September 2010 LMJ was convicted of two counts of common assault involving a 17 year old male and his 35 year old mother.
In September 2012 LMJ was charged with the burglary offence involving the theft from the Commonwealth Bank. He failed to appear in court and there is a current warrant out for his arrest in that state.
Serious penalties, including imprisonment have not deterred LMJ’s offending.
This criminal history raises serious concerns for the Chief Executive Officer as to LMJ’s ability to present as a positive role model and make appropriate behavioural choices in the best interests of children and young people.
LMJ has relapsed into drug use and criminal behaviour on a number of occasions despite opportunities to undertake programs and counselling.
LMJ’s positive progress in the rehabilitation program over the past 18 months must be viewed in the context of the nature of the program. It is based on a structured and controlled regime with intensive levels of supervision and support and a strict routine. Clear boundaries and rules dictate what is appropriate and acceptable behaviour and consequences are imposed if rules are breached.
LMJ has not yet had the opportunity to demonstrate positive behaviour changes as a member of the community outside an insulated and, to some extent, an isolated environment. The Chief Executive Officer is concerned that day to day stressors and transitioning to independent living can be a tough and difficult move. LMJ has not faced the challenges and temptations that will confront him outside this highly structured environment. His entire teen years and early 20’s has been marred with drug use and criminal behaviour. Social situations for a young person of his age will include exposure to drug use and peer pressure.
While LMJ’s prospects of ongoing abstinence and recovery appear positive, concern remains that he has not yet been tested to any extent outside this supportive environment. Insufficient time has passed to ensure the risk of relapse has been mitigated in the long term.
LMJ has an outstanding warrant issued for his arrest. He has not been formally convicted of the offence of ‘burglary and commit offence in place’ but LMJ admitted in the hearing he committed the offence. Leaving his home state to seek refuge elsewhere demonstrates a disregard for the judicial system and an avoidance of responsibility for his actions.
The Chief Executive Officer's view is that significant consideration should be given to the issue of the warrant, not simply because the charge remains outstanding. It is also due to the likelihood of LMJ being sentenced to a significant penalty, including possible incarceration, should he be apprehended and convicted.
The assessment of risk by the rehabilitation centre witnesses was confined to the nature and services offered by their program and the specific duties associated with a role in that environment. A blue card is transferable and unconditional allowing unsupervised and unfettered access to children and young people.
Any hardship or prejudice suffered by LMJ by not getting a blue card is irrelevant to the assessment of risk.[4]
[4]Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) WASCA 171 at 23.
Further, any benefit children may derive from having access to LMJ due to ‘any knowledge, experience and flair in working with children’ is not a relevant factor in deciding whether an exceptional case exists.[5]
[5]Grinrod v Chief Executive Officer, Department for Community Development [2008] WASAT 289.
The Chief Executive Officer considered that much of LMJ’s existing support network existed when he had relapsed in the past, questioning the efficacy of the support his current network of family members and friends can provide.
In conclusion, the Chief Executive Officer submitted that LMJ’s case was exceptional and it would not be in the best interests of children and young people for him to have a blue card.
LMJ’s position – the protective factors
LMJ has submitted that the risks of his past drug history are mitigated by the changes he has made in his life over the past 18 months.
LMJ has insight into the impact of his addiction and his offences, adversely affecting his lifestyle and his family.
He has undertaken to rehabilitate himself, succeeding in remaining drug free for the past eighteen plus months through the rehabilitation program. LMJ has completed courses in Relapse Prevention, Anger Management, Christian Studies and Life Skills.
LMJ is actively employed with a fitness centre. He attends the gym about 6 – 7 days a week. This proves to be a positive mechanism to assist him in coping with stress.
LMJ has surrounded himself with positive supports including members of the Church he attends, mentors in the local community, staff in the rehabilitation program, and volunteers with whom he has worked. Witnesses from program gave glowing reports of his commitment to change and to the benefits of him working with teenagers commencing the program.
He no longer mixes with those people who had been involved with him through his addiction years, they remaining in his home state.
LMJ has developed alternative strategies to manage stress including living a healthy lifestyle, focussing on his fitness, attending church and committing to God, and commencing studies. He discusses alternative strategies with mentors.
LMJ volunteers his time in the local community and he has reconnected with his family. Referees attest to his faith and attendance at church functions.
LMJ has undertaken extensive counselling and continues to do so. This counselling has helped him in finding alternative solutions to relying on drugs, and to focus on more meaningful endeavours. If a situation of conflict were to arise in the future, LMJ is confident resolution would be found by constructive means.
He is remorseful for his past involvement in drugs and in the actions that led to the charge for common assault in 2009. In that scenario, there was no fiduciary relationship or duty to care between himself (aged 18 at the time) and one of the complainants (aged 17), who also had been involved in the drug culture.
It was submitted that only in the most extreme circumstances would a negative notice be issued. LMJ’s case should be distinguished from MW v Commissioner for Children and Young People and Child Guardian [2001] QCAT 726. In that case the applicant had been convicted for acts of violence and abuse directed toward his own children, resulting in the tribunal affirming the decision to issue a negative notice. LMJ’s criminal history is mainly related to drug use.
The legislation is focussed on the protection of children. It is not a statute intended to impose an additional punishment on a person who has a criminal history.
The protective factors employed by LMJ far outweigh the risk factors. He was a juvenile and a young adult at the time of his offending/alleged offending and his youth and immaturity contributed to that offending.
The Tribunal’s decision
The Tribunal has considered the same legislation as the original decision maker. In so doing, the Tribunal has considered also the risk and protective factors in this case. We have reviewed all of the written and oral evidence before us in order to come to our decision. LMJ needs a blue card to work with children in Queensland. The Chief Executive Officer of the Public Safety Business Agency maintained the position that LMJ’s case is exceptional even after hearing the positive evidence given at the hearing. The Tribunal must concur with this position.
We acknowledge the significant steps LMJ has taken to turn his life around. He is clearly motivated to leave a life of drug addiction and criminal offending that went with a troubled youth. He has replaced the thrill he got from the drug culture with a focus on leading a healthy and meaningful lifestyle.
LMJ impressed the Tribunal with his commitment to change. His witnesses and referees show significant support and encouragement to a young man who has replaced a criminal lifestyle with a commitment to succeeding in his rehabilitation.
The Tribunal agrees with the Chief Executive Officer that the outcome of this rehabilitation process is yet to be tested when LMJ moves to community living, from the cloistered environment of the rehabilitation program.
The Tribunal does not presume, however, that LMJ will necessarily fail and relapse once he is established in the community. This is the first time LMJ has committed to change and succeeded to date in remaining drug free. There is no evidence he has committed any offences. LMJ has the support of a community that has embraced him, where this was not evident while he lived in his home state.
There are far more protective factors in LMJ’s lifestyle now than previously.
However, LMJ has an outstanding warrant for his arrest. This reality was not addressed in his final submissions. He is charged with ‘burglary and commit offence in place’. He did not appear in court on the prescribed day. He stated he had left that State to escape from the potential harm he was at risk of enduring. LMJ feared his family were also at risk if he were to return.
It is not possible for the tribunal to issue a positive notice to any applicant under these circumstances. While LMJ is not convicted of the offence, there remains an outstanding charge. He has relocated to another state to avoid the consequences of his actions. This situation places LMJ in a tenuous bind, if his concern for his safety and that of his family is so serious that he cannot return to his home state where his family live.
The best interests of children are paramount when considering the eligibility of a person being issued with a positive notice and a blue card. The impost on a person in not having a blue card is not relevant to our deliberations. The Tribunal cannot find in LMJ’s favour while a charge remains outstanding and he does not face up to the consequences of his actions in that regard.
The Tribunal encourages LMJ to address the current warrant for his arrest. He is able to reapply for a blue card in Queensland in the near future. The Tribunal confirms the decision of the Chief Executive Officer to issue a negative notice to LMJ.
Non – publication Order
On its own initiative, the Tribunal is able to make a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The Tribunal is satisfied that it is contrary to the public interest to release identifying information regarding the applicant, his referees or the organisations in which he is involved.
The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public access to the details of blue card matters, the decisions made by the Tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.
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