Loogatha v Commission for Children and Young People and Child Guardian
[2011] QCAT 729
•19 December 2011
| CITATION: | Loogatha v Commission for Children and Young People and Child Guardian [2011] QCAT 729 |
| PARTIES: | Gerald Loogatha |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML073-11 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 23 November 2011 |
| HEARD AT: | Brisbane via video link |
| DECISION OF: | Ron Joachim, Presiding Member Tammy Williams, Member |
| DELIVERED ON: | 19 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Commissioner to issue Gerald Loogatha with a negative notice is confirmed. |
| CATCHWORDS: | Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – where extensive criminal history of assault and domestic violence exists – whether applicant represents an unacceptable risk of harm to children – whether case is exceptional Child Protection Act1999 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Gerald Loogatha represented himself |
| RESPONDENT: | Commissioner for Children and Young People and Child Guardian represented by Craig Capper |
REASONS FOR DECISION
Background
Mr Gerald Loogatha is the applicant in these proceedings. He was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) by letter dated 17 March 2011. This meant he was unable to work with children.
The Commissioner issued reasons for her decision dated 16 March 2011.
Mr Loogatha seeks a review of this decision and applied to the Tribunal on 15 April 2011.
The application was heard on 10 November 2011 in Brisbane via video link to Mr Loogatha on Mornington Island.
The relevant law
The CCYPCG Act gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) outlines the options available to the Tribunal. These options are that the Tribunal may:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the CCYPCG Act. Section 19 of the QCAT Act provides:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal—(a)must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b)may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c)has all the functions of the decision-maker for the reviewable decision being reviewed.
None of the offences for which he was convicted is considered a serious offence under the CCYPCG Act. As a result section 221 applies. The relevant provisions are outlined below:
Section 221 Issuing prescribed notice to person with no conviction etc. or conviction for offence other than serious offence
(1)Subject to subsection (2), the commissioner must issue a positive notice to the person if—
(a)the commissioner is not aware of any police information or disciplinary information about the person; or
(b)the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i) investigative information;
(ii) disciplinary information;
(iii) a charge for an offence other than a disqualifying offence;
(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
(c)the commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2)If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person.
It is this that the Tribunal must consider.
Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if Mr Loogatha’s is an exceptional case.
The CCYPCG Act does not define what is an exceptional case. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated:
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”
The focus of the CCYPCG Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999.
The Act in section 6 outlines principles for administering the CCYPCG Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that the Tribunal must apply. Section 155 further provides that:
“the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”
and the Tribunal must also take this into account in determining this application.
The standard of proof to which the Tribunal must be satisfied is upon the balance of probabilities.
The undisputed relevant facts
Mr Loogatha has been working as a teacher’s aide at the local school for approximately 3 years.
He has a lengthy criminal history from 1976 when he was 17 years of age until December 2008 when he was 50 years of age.
This history includes offences relating to:
a. Domestic violence;
b. Breaches of domestic violence orders;
c. Possessing home made alcohol;
d. Assaults causing bodily harm;
e. Stealing;
f. Aggravated assaults on a female;
g. Behaving in an unruly manner.
There have been no serious offences as defined in the Act.
Mr Loogatha underwent periods of rehabilitation in 2006 and 2008.
Other evidence
Mr Loogatha gave evidence to the Tribunal.
He advised that he was born on Mornington Island and has 1 brother and 2 sisters living. He attended school to year 8. He advised he was not a nice person when he had alcohol in his system. He stated he went for rehabilitation to Mt Isa in 2006 and then to Cairns in 2008.
He further advised he worked as a teacher’s aide helping boys with their culture and helping teachers.
He noted he liked fishing and hunting and had been assisting in a men’s community group for about 2 months. He has 3 children, the youngest being 13 and the eldest 22. They all live together along with his 2 grandchildren.
He advised he sees young people drink like he used to and does not approve. He stated he stopped drinking when the pub closed down in 2008 and that drinking is all behind him now as well as domestic violence.
He stated he never used house brews and later stated he couldn’t remember if he had.
He advised he wants to work at the school and the teachers really wanted him there. He is not in paid employment currently. He acknowledged that he drank after rehabilitation and there was a lot of violence in his criminal history.
He advised he has undertaken some anger management courses in the past but is not involved in any counselling or courses now.
Mr John Bosward
The principal of the school at which Mr Loogatha had worked advised the Tribunal that Mr Loogatha worked in conjunction with teachers providing emotional support to the children and assisting on excursions.
Mr Bosward advised that Mr Loogatha was very reliable, has a calm manner and was an asset to the school. He advised that he has trouble finding suitable role models for the students and has been unable to replace Mr Loogatha. Mr Bosward further advised he was aware of Mr Loogatha’s criminal history but accepted that a person would not be a good role model if engaged in domestic violence and introducing alcohol into the community.
Mr Bosward advised Mr Loogatha’s role includes:
a. Going on home visits with teachers.
b. Talking to boys who are fighting to teach them non violent strategies.
He further advised he has never seen Mr Loogatha intoxicated.
Mr Charlie Anderson
Mr Charlie Anderson who is a coordinator of the Mornington Island Men’s group gave evidence. He has a 20 year association with the Island and knows Mr Loogatha’s family. He was also the President of the School Parents and Citizens Association.
He advised the Tribunal that he hasn’t seen anything that would make Mr Loogatha unsuitable to have a blue card and that Mr Loogatha had not been in trouble for a number of years.
He stated he knew Mr Loogatha was known as a drinker but was not aware of him being a fighter.
He opined that alcohol is detrimental to the health and culture of indigenous people and that home brew is a big issue. He noted that alcohol and violence is still an issue and he is trying to deviate young people away from alcohol.
Mr Anderson agreed that using alcohol and being violent does not set a good example and diminishes elder’s respect in the community.
He opined that Mr Loogatha has respect from his tribe and is regarded as a leader.
He advised that he was aware of some issues with Mr Loogatha’s wife but hadn’t heard anything of a serious nature.
Mr Anderson advised that the history of Mornington Island is one of alcohol and alcohol related violence and that Mr Loogatha’s past should be viewed in that context.
Submissions of the Commission
The Commissioner submitted as follows:
a. Mr Loogatha’s history of 34 convictions is of concern despite some gaps in his criminal history.
b. There is a long history of domestic violence breaches where children were in the home.
c. Mr Loogatha has used weapons and has participated in ongoing sustained attacks.
d. Alcohol has been a factor in his offences but not always.
e. Mr Loogatha has not offended for 3 years and this coincides with the closing of the hotel.
f. Whilst alcohol is still available Mr Loogatha has not appeared to use it.
g. Mr Loogatha continued to offend after his periods of rehabilitation indicating that the interventions were not successful.
h. Other factors to be considered are Mr Loogatha’s employment history, the island being dry and his turning his life around.
The Tribunal needs to consider if:
a. there is an unacceptable risk of harm to children.
b. is Mr Loogatha having a blue card in the best interests of children.
c. there is a risk of relapse.
d. Mr Loogatha is an appropriate role model as he exposed his own children to domestic violence.
Insufficient time has elapsed for Mr Loogatha to have exhibited a decrease in the likely risk of harm, which can be both physical and emotional.
There is insufficient evidence before the Tribunal to warrant the Tribunal setting aside the Commissioner’s decision.
Submissions of Mr Loogatha
Mr Loogatha wants a blue card for employment at the school as Centrelink benefit does not provide sufficient income.
He submitted he was finished with drinking and would not go back to drinking.
He further submitted that:
a. there needs to be someone between the teachers and the community and he assists to bridge that gap.
b. he wants to try to help young people.
c. he wasn’t reoffending and is looking forward, not back.
d. he gets along very well with his wife.
The Tribunal’s view
The Tribunal is troubled by the lengthy criminal history of Mr Loogatha involving as it does serious alcohol related violence and being involved with home brew illegally. Also troubling is Mr Loogatha’s periods of offending involving alcohol after undergoing rehabilitation.
This does Mr Loogatha no credit.
The Tribunal accepts he is not now drinking and has been employed in a positive manner at the local school for approximately 3 years. He is, according to Mr Anderson, regarded as a leader in his community.
The Principal spoke positively about Mr Loogatha’s role at the school. These factors are to Mr Loogatha’s credit and are positive to his application.
The Tribunal accepts Mr Anderson’s comment about a culture of drinking and alcohol being embedded in the Island and that there remains a problem with home brew.
The Tribunal also accepts that Mr Loogatha is not currently using alcohol to excess, if at all, and that he is committed how to a life of non violence.
In considering whether he constitutes as an unacceptable risk of harm to children the Tribunal has identified potential risk factors and potential protective factors following the example in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492.
The Tribunal considers the following are protective factors:
a. Mr Loogatha has a job to go to at the local school.
b. He has sworn himself off alcohol.
c. He is involved to a limited extent with Mr Anderson’s Men’s group.
d. He lives with his family.
e. He is regarded as a community leader.
f. He shows some remorse for his past.
The Tribunal considers the following are risk factors:
a. Mr Loogatha has an extensive criminal history involving serious violence, breaches of domestic violence orders and offences relating to homemade alcohol.
b. His offending behaviour continued after his periods of rehabilitation.
c. He is not undertaking any training or counselling.
d. Home made alcohol continues to be a social problem on Mornington Island.
As an aggravating feature of the applicant’s criminal history, the Tribunal notes five out of seven of Mr Loogatha’s most recent convictions relate to offences prohibited by either the Aboriginal and Torres Strait Islander Communities (Justice, Land and Other Matters) Act 1984 or Liquor Act 1992.
In the matter of Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37 the Queensland Court of Appeal discussed the policy objectives and legislative intent behind placing alcohol restrictions imposed by the aforementioned statutes on Queensland Indigenous communities, including Mornington Island.
The President, her Honour Justice McMurdo noted at page 11:
“It is clear from these extracts that the legislature intended the impugned provisions to reduce “alcohol-related violence, and thereby improve the health and well-being of all [Indigenous] community members, especially children”[1], by imposing alcohol restrictions which did not exist in the broader Queensland community.”
[1] Explanatory notes, 3.
To appreciate the legislative intent her Honour had regard to the explanatory notes which cite and rely upon the 1999 Aboriginal and Torres Strait Islander Force on Violence[2] and the 2001 Cape York Justice Study[3]. The latter study reached the following and relevant conclusions as to the ramifications of substance abuse including “Aboriginal children are over-represented in child protection cases. Child abuse, including sexual abuse and neglect is linked to heavy drinking“[4] and further impacted on the “right of families to food and shelter, the right of children to nutrition, sleep, education and innocence and the right of a community to peach and order.”[5]
[2]Aboriginal and Torres Strait Islander Women’s Task Force on Violence & Queensland Department of Aboriginal and Torres Strait Islander Policy and Development, 2000, The Aboriginal and Torres Strait Islander Women’s Task Force on Violence Report.
[3]Queensland Department of the Premier and Cabinet & Tony Fitzgerald, 2001, Cape York Justice Study.
[4] Cape York Justice Study at 50-51.
[5] Cape York Justice Study at 53.
Given that Mr Loogatha continued to reoffend after his rehabilitation, the Tribunal is not satisfied that sufficient period of time has elapsed such that he should have a blue card. The Tribunal found that in Mr Loogatha’s case the risk factors outweigh the protective factors.
The Tribunal has found that Mr Loogatha’s case is not an exceptional one such that it would not harm the best interests of children for him to have a blue card. The Tribunal finds that because of his history he poses an unacceptable risk to children who would be looking to him as a role model. In the circumstances of his previous offending behaviour and its recency, coupled with Mornington Island’s recent history, the Tribunal finds he would be undesirable to have as a role model.
The Tribunal confirms the decision of the Commissioner.
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