MWL v Chief Executive Officer, Public Safety Business Agency - [2015] QCAT 370

CITATION:	MWL v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 370
PARTIES:	MWL (Applicant)
v
Chief Executive Officer, Public Safety Business Agency (Respondent)

APPLICATION NUMBER:

CML012-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

22 July 2015

HEARD AT:

Brisbane

DECISION OF:

Member J Allen

DELIVERED ON:

22 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Chief Executive Officer, Public Safety Business Agency is set aside.

2. The Chief Executive Officer, Public Safety Business Agency must issue a positive notice and blue card to MWL.

3. The Tribunal prohibits the publication of the names of the applicant and of any children identified in the written material and any other particulars which could reasonably lead to the identification of children.

CATCHWORDS:

BLUE CARD – where negative notice issued on basis that exceptional case existed where no serious offences – whether risk factors of extensive criminal history constituted exceptional case – where no offences for 5 years and offending behaviour commenced at time applicant was an abused child who became ward of the State and then homeless.

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 6, 221, 226

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20 and 24

Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492

APPEARANCES:

APPLICANT:

MWL appeared on his own behalf.

RESPONDENT:

Ms Kylie Heath appeared for the Public Safety Business Agency

REASONS FOR DECISION

MWL applied for a blue card, which would enable him to work with children. At the time, he was studying for a Diploma in Counselling and part of the course requirement was that he perform some supervised hours with children, which would require a blue card. The decision of the agency was that he be issued with a negative notice and so he was not entitled to a blue card. He has now sought review by the Tribunal of that decision.
When determining a review the Tribunal must decide the review in accordance with the Act under review and the Tribunal’s own Act[1] and makes a new decision by way of a fresh hearing on the merits[2]. The purpose of the review is to produce the correct and preferable decision[3]. The Tribunal may relevantly confirm the original decision or set it aside and substitute its own decision[4].
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19.
[2]Ibid s 20.
[3]Ibid s 20.
[4]Ibid s 24.
The decision whether or not to issue a Blue Card is made in accordance with s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Act is be administered under the principal that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing[5].
[5]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6.
Where there…

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.

Continue reading MWL v Chief Executive Officer, Public Safety Business Agency

Details

AGLC: MWL v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 370
Case: [2015] QCAT 370
Decision Date: 22 September 2015

CaseChat Overview and Summary

In this judicial review, MWL sought to overturn a decision by the Chief Executive Officer, Public Safety Business Agency, who refused to issue a positive notice and blue card under the Security and Related Activities (Investigations) Act 2002. MWL applied for a blue card in order to engage in private security work. The Chief Executive Officer issued a negative notice, concluding that an exceptional case existed where a person had no serious offences but exhibited risk factors. The refusal was based on MWL's extensive criminal history, which began when the applicant was an abused child who became a ward of the State and subsequently homeless. The applicant had not offended for the past five years. MWL argued that the decision was unreasonable as there were no risk factors present which warranted refusal of a blue card.

The court was required to determine whether the Chief Executive Officer's decision was reasonable and whether it constituted an exceptional case. The court examined the definition of "exceptional case" under section 42(1)(c) of the Act. It was necessary to determine whether MWL's risk factors amounted to an exceptional case, considering the applicant's history of offending that started when the applicant was an abused child who became a ward of the State and was then homeless. The court also needed to consider whether the Chief Executive Officer appropriately exercised his discretion in making the decision.

The court found that the Chief Executive Officer's decision was unreasonable and set it aside. The court held that the Chief Executive Officer had failed to consider MWL's full circumstances, including the history of abuse and homelessness, and had not appropriately weighed the factors when determining that an exceptional case existed. The court held that the decision-maker should have considered whether MWL's offending was a consequence of the exceptional circumstances of the applicant's background, and whether there was a risk of reoffending. The court further held that the Chief Executive Officer had erred by not considering the five-year period of non-offending.

The court ordered that the Chief Executive Officer must issue a positive notice and blue card to MWL. The Tribunal also prohibited the publication of the names of the applicant and of any children identified in the written material and any other particulars which could reasonably lead to the identification of children.

Orders

Orders of the court

1. The decision of the Chief Executive Officer, Public Safety Business Agency is set aside.

2. The Chief Executive Officer, Public Safety Business Agency must issue a positive notice and blue card to MWL.

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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