Masri v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 448
•13 November 2015
| CITATION: | Masri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 448 |
| PARTIES: | Kahlan Masri (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML214-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 26 October 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Goodman |
| DELIVERED ON: | 13 November 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent’s decision to issue a | ||
| CATCHWORDS: | Blue Card – where applicant did not comply with directions and did not attend the hearing – where little information available – where insufficient evidence to establish that this is an exceptional case in which it is not in the best interests of children to issue a positive notice – where positive notice issued Working with Children (Risk Management and Screening) Act 2000 | ||
APPEARANCES:
| APPLICANT: | Mr Masri did not attend the hearing |
| RESPONDENT: | The respondent was represented by Ms Kylie Heath |
REASONS FOR DECISION
Mr Masri previously held a Blue Card. It was cancelled by the PSBA after receiving information from the Queensland Police Service. The PSBA issued reasons for their decision on 29 June 2015. Mr Masri applied to QCAT for a review of that decision.
Mr Masri did not attend the hearing. He has been notified in writing of the hearing date and time by a letter sent by QCAT on 15 October 2015. In addition, QCAT staff attempted to telephone Mr Masri on several occasions during October (including on the day of the hearing), leaving a message on his mobile telephone. An attempt was made to contact Mr Masri by email. In the circumstances, I am satisfied that Mr Masri has been given sufficient notice of the hearing and will proceed to hear and decide the matter in his absence.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 93.
Because Mr Masri has not been convicted of what is termed a “serious offence”, he must be issued with a Blue Card unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card.[2] Neither party bears the onus of proof, and I make my decision on the balance of probabilities.
[2]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
In determining whether this is such an exceptional case, I have had regard to the evidence available to me, and the considerations contained in the legislation.[3]
[3]Working with Children Act s 226.
The paramount consideration is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[4]
[4]Working with Children Act ss6 and 360.
On 2 September 2015 QCAT made directions that Mr Masri file material by particular dates. He did not file any material in compliance with those directions.
A compulsory conference was held on 23 September 2015. Following the compulsory conference directions were issued that Mr Masri must file any statements of evidence, medical reports or other documents “that he intends to rely on at the hearing together with a signed and dated brief personal history/life story as required by the previous directions…” A further direction was made that Mr Masri advise the names of the persons he intended to call as witnesses. No documents have been received from Mr Masri, except for his original application (and an application for extension of time, which was granted)
The respondent submits that the application should be dismissed as it is lacking in substance.[5]
[5]QCAT Act s 47.
The respondent points out that Mr Masri was aware of the hearing date and time and has failed to file material to assist the Tribunal. It is submitted that it is unclear why Mr Masri has failed to avail himself of the opportunity to provide information but his failure to provide the material means that his application lacks substance.
I do not accept that submission. Mr Masri’s failure to comply with the directions means that I must proceed to make a decision based on the very sparse information available to me. I have the information contained in Mr Masri’s application and the material provided by the respondent. On that material Mr Masri’s application is arguable. I will proceed to make a decision based on the information available.
I have been provided with Mr Masri’s criminal history. He was convicted of being drunk in a public place and assault or obstruct a police officer in relation to events which occurred on 31 July 2014. The Police Brief prepared for the Magistrate Court details that Mr Masri approached Police Officers who were conducting foot patrols, it appears in the vicinity of his University. Mr Masri was heavily intoxicated. He refused to comply with Police directions to return to his home and was arrested. When Police took hold of his arms to walk him to the Police vehicle, Mr Masri “resisted violently and started thrashing his arms around and clenching his fist…when putting him in the vehicle he kicked out at Police numerous times and continued kicked the door once it was closed.” At the watchhouse Mr Masri is said to have been abusive towards Police and showed a “poor attitude”.
Mr Masri was also convicted of 2 charges of possessing dangerous drugs in relation to an incident in the early hours of 1 January 2015. Mr Masri was a patron at a festival when he was found in possession of cannabis and a lolly which has been laced with LSD. Mr Masri admitted that he had consumed cannabis during that evening.
I must determine whether this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. In doing so, I have identified possible risk and protective factors.
Risk factors:
a) Mr Masri has a criminal history involving being heavily intoxicated by alcohol and drugs. The incident in July 2014 involved aggression.
b) His drug convictions include a conviction for possession of LSD, a Schedule 1 drug in the Drug Misuse Regulations 1987 (Qld). The LSD was contained in a lolly.
c) The convictions were only 5 months apart and fairly recent.
Protective factors:
a) Outside of the above incidents, there is no evidence of an ongoing issue with illegal and / or antisocial behaviour on the part of Mr Masri.
b) There is no evidence of any such behaviour since 1 January 2015 – over 10 months.
The legislation provides that Mr Masri should receive a Blue Card unless this is an exceptional case in which it would not be in the best interests of children to issue him with a Blue Card. Mr Masri’s criminal behaviour has been dealt with by the Magistrates Court. It is not my role to further punish Mr Masri for his actions – I must issue a Blue Card unless an “exceptional case” is established on the evidence.
I am not satisfied that this is an exceptional case. It is concerning that a young man would engage in illegal activity but that in itself is not sufficient to warrant the refusal of a Blue Card when his offences were not “serious” (as that term is used in the legislation).
The risk factors in this case are insufficient to establish an exceptional case. I am not satisfied that the risk factors outweigh the protective factors. The decision under review will be set aside.
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