O'Malley v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 350
•20 August 2015
| CITATION: | O’Malley v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 350 |
| PARTIES: | John James Patrick O’Malley (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML064-15 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 22 July 2015 |
| HEARD AT: | Gympie |
| DECISION OF: | Member Rogers |
| DELIVERED ON: | 20 August 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive dated 24 February 2015 to cancel a positive notice and blue card and issue a negative notice to John James Patrick O’Malley is set aside. 2. The Chief Executive is to issue a positive notice and blue card to John James Patrick O’Malley |
| CATCHWORDS: | CHILDREN’S MATTERS - Blue Card - charge of dangerous operation of vehicle – whether ‘exceptional case” such that positive notice should not issue. |
APPEARANCES:
| APPLICANT: | Mr John James Patrick O’Malley in person |
| RESPONDENT: | The Chief Executive Officer, Public Safety Business Agency by Ms Natalie Taylor, Advocate. |
REASONS FOR DECISION
Mr O’Malley has been a bus driver and in-house driver trainer with a regional bus company for the last seven years. He was also a Driver Trainer accredited by Queensland Transport and conducted driving training privately.
Part of his duties for his employer included driving a school bus run. He needs a blue card for this purpose. He was first issued with a blue card in 2007. On 24 February 2015 he was issued with a negative notice by the Chief Executive under the Working with Children (Risk Management and Screening) Act 2000 (‘the Act’). Mr O’Malley is seeking a review of this decision.
The decision to issue a negative notice followed notification on 16 June 2014 by the Queensland Police Service of a change to Mr O’Malley’s criminal history. He had been charged with dangerous operation of vehicle. On 19 December 2014 he was convicted of this offence, fined $1200 and disqualified from holding a motor drivers licence for a period of eight months.
Mr O’Malley’s Driver Authorisation and Driver Training Accreditation were suspended by Queensland Transport in early June 2014 and cancelled on 19 December 2014.
The conviction followed an incident in May 2014 when Mr O’Malley was driving the school bus run. He allowed a 14 year old student, who was standing next to him, to place both her hands on the steering wheel and at the same time he removed both his hands from the wheel while the bus was in motion. A mobile phone video, taken by another student, showed this occurred for four to five seconds.
This is the incident relied on by the Chief Executive to establish that this is an ‘exceptional case’ such that it is not in the best interests of children for a positive notice to issue[1]. I cannot accept that the Act should be interpreted this broadly.
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2).
The object of the Act is to ‘promote and protect the rights, interests and well being of children and young people in Queensland.’ [2] This restricts the operation of the Act to those actions which may harm children because they are children. It does not extend to those actions that place the public at large at risk where other agencies have been given the responsibility to manage that risk.
[2] Ibid s 5.
In this case the fact that the passengers on the bus were children is not relevant to the offence of dangerous operation of a vehicle. The essence of that offence was that Mr O’Malley failed to maintain proper control of a vehicle such that his actions put all road users at risk.
As a result of his conviction Mr O’Malley could not drive at all for eight months. At this time he still does not have his Driver’s Authorisation and so cannot carry adults or children as passengers on a public vehicle. It is the responsibility of Queensland Transport to decide if Mr O’Malley should be allowed to operate a vehicle carrying passengers and whether his Driver’s Authorisation should be returned to him.
Whether or not it is appropriate, many organisations require volunteers to obtain a blue card before they will accept their services. Issuing a negative notice has a serious impact on the individual and the community at large. The Act recognises this by providing that it is only in exceptional circumstances where it would not be in the best interests of children that a negative notice should issue.
The risks associated with Mr O’Malley’s actions relate solely to the operation of a vehicle and are being managed by the appropriate authorities. By relying on this incident alone the Chief Executive has not identified a risk, specific to children, which requires further action.
For these reasons I have formed the view this is not an exceptional case such that a positive notice should not issue.
Should this reasoning be found to be wrong, I shall now consider the merits of the application.
Mr O’Malley is 58 years of age. He was born in 1957 and has not identified any childhood issues. After completing Year 11 he joined the Commonwealth Bank and for the next 20 years worked in Brisbane and regional areas. In 1993 he bought a taxi licence and drove the taxi. After about five years he bought a menswear store, which he operated for the next ten years. He worked or a radio station for a year and then in 2007 he was employed by the bus company where he worked for seven years.
In 1993 Mr O’Malley married his wife, Lyn. Together they raised Mrs O’Malley’s children from a previous relationship.
In his life story Mr O’Malley says
‘I have no medical history, no drug/alcohol history what so ever.
I am a normal functioning fit adult with good social life who relates and gets on well with most people. I am community minded. I am currently a volunteer at an Aged Care facility.’
He says he has never participated in any illegal activities. This is supported by his criminal history which, apart from the conviction already described, shows a conviction in 1975 of driving with a blood alcohol content of .11% but no other charges or convictions.
He enjoyed his work and described his positive interactions with students and how he had been given runs where the students were known to be difficult because he was trusted to manage them. He developed an Innovative Driver Safety and Induction Programme for his employer and derived a great level of satisfaction from seeing the results of that programme among the drivers.
His witnesses supported Mr O’Malley’s brief summation. They described a person who enjoyed working with all members of the community, including children and people with disabilities. Specific examples were given of the care he took of people with special needs and vulnerabilities. It was his employer’s evidence he could learn to modify his behaviour to accommodate the needs of others. He is considered a valued and respected member of his community.
Mr O’Malley described the events that led to his conviction. He said he was driving a 62 seater bus, it had about 90 students on board. There was no space so the students flowed down the stairwell into the driver’s space. The bus was running late which meant some students, who needed to make connections to other buses, were becoming impatient.
A student who was standing near him said ‘I could drive this thing faster than you’. She reached over and grabbed the wheel.
Mr O’Malley said he took his hands off the wheel and he thinks that was to give her a scare. In fact, he gave himself a scare. He regained control of the wheel and kept driving. The noise of the students was deafening but he thought ‘I can do this, in ten minutes this trip will be over’.
He says with hindsight he should have pulled over the bus. He cannot forgive himself that he did not stop the bus. When asked if he had ever stopped the bus before he said no, he had never needed to. On this occasion the combination of the severe overcrowding, running late, the noise of the students and the pressure they were putting on him combined to lead to his action.
He did not report the incident when he finished his run. When shown the video some days later he minimised his actions and said it was careless. He now accepts it was dangerous.
At the time he was trying to give up smoking and was irritated. He provided a medical report showing he was prescribed the drug Champix ‘to help John stop smoking.’ He says that was no excuse for his behaviour.
Mr O’Malley has considered what he would do to avoid a recurrence of his action[3]. He says the best strategy would be to not let it happen and to refuse to drive an overcrowded bus. Then he says the next strategy would be to stop the bus and refuse to drive it until the passengers were away from the stairwell, compliant and safe.
[3] See letter John O’Malley to Blue Card Services dated 1 July 2015.
He accepts the safety of passengers is the number one priority, not the timetable and that he needs to be in the right frame of mind when working.
He says he should let family, friends and work support networks support him with personal issues. He is severely ashamed and embarrassed, both for putting his charges and road users in a dangerous situation and for setting a bad example to his work colleagues.
To assist the tribunal consider the merits of the application the Chief Executive has identified the protective and risk factors arising from the history and circumstances of the case.[4]
[4]This approach was endorsed by the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004]QCA 492.
The protective factors are that Mr O’Malley;
a) expresses remorse
b) was engaged in offending that appears to be an isolated incident
c) has identified the dangerous consequences and setting a bad example
d) has outlined strategies to avoid reoffending and will be fully appraised of the risks and side effects of medication in the future
e) has engaged in reflection and identified an appropriate response plan
f) has referees who speak positively of his character, work ethic and reputation. In particular his employer indicated his actions were out of character.
The following risk factors have been identified.
a) there is a recent conviction for ‘dangerous operation of a vehicle’ which is directly child related and occurred during the course of employment
b) the police material indicates the actions had the potential to impact adversely on a bus full of children and other road users
c) the circumstances of the incident raises questions about the applicant’s ability to respond appropriately to stressful situations involving children. The actions were not a reasonable response to the identified stressors
d) the circumstances do not present as unique. As a Blue Card holder Mr O’Malley was expected to take actions which ensure the safety of the children rather than to undertake dangerous and illegal actions to appease or relieve the pressure on him. This is particularly important as he was the only adult present at the time and was responsible for the well being of a number of children
e) there is no emergent reason for the action. Mr O’Malley indicated he chose to let the student take the wheel rather than to remove the students hands and be accused of assault. This is not a reasonable attitude and demonstrates poor boundaries. In addition conscious decisions were made which did not relate to frustration
f) Mr O’Malley had a comprehensive knowledge of company policies and did not adhere to them
g) there is no medical evidence to support a causal link between his behaviour and taking Champix
h) there is no evidence Mr O’Malley took appropriate steps to manage the risk of his changed behaviours despite indicating he was aware of his changed mood
i) a blue card holder has unlimited access to young people and children in a range of work related activities.
This offence is not categorised as a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (the Act) and therefore the Chief Executive must issue a positive notice unless satisfied that this is an exceptional case in which it would harm the best interests of children for Mr O’Malley to have a positive notice.[5]
[5] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
It is well accepted that what constitutes an exceptional case is a question of fact and degree[6] and is a matter of discretion for the decision maker.
[6] Kent and Wilson [2000] VSC 98 at para 29.
Mr O’Malley’s application is determined by merits review. This means the Tribunal, standing in the shoes of the decision maker, must arrive at the correct or preferable decision[7] based on all the information available at the time the decision is made. The Tribunal must consider this application under the provisions of the Act which states[8]:
A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).
[8] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.
In determining whether there is an exceptional case under section 221 I must take into account the factors in section 226 of the Act. These factors include the nature of the offence, when it occurred, its relevance to child related employment, any court imposed penalty and anything else relating to the commission of the offence that may reasonably be considered to be relevant to the assessment.
I have considered the s 226 factors, the circumstances described and the risks and protective factors identified by the Chief Executive.
Mr O’Malley’s action resulted in a criminal conviction. It had the capacity to result in tragic consequences. This behaviour occurred in the course of his employment when he was responsible for the safe carriage of many children. His actions could have impacted on other road users. His reaction was not a reasonable response to the situation.
The Chief Executive refers to Mr O’Malley’s statement that he chose to not touch the student to remove her hands because this could have been considered an assault. I accept this was not a reasonable consideration when balanced against the possible consequences. Mr O’Malley did not rely on this contention at the hearing.
It is of concern that Mr O’Malley’s knowledge of company policy did not guide his actions or inform his behaviour in this situation. The severe overcrowding and resultant noise would have impacted on his capacity to concentrate. In addition he knew that his mood had changed because he was experiencing the effects of giving up smoking. He did not take extra precautions, ask for assistance or reflect on whether he was able to drive safely in the circumstances.
I have not given any weight to the possible effects of taking the drug Champix because the medical report did not comment on its possible side effects on Mr O’Malley.
I have given no weight to his early driving conviction because it is 40 years old and was not repeated.
I have considered the evidence that this was an isolated incident, that Mr O’Malley now acknowledges his behaviour was dangerous, although he did deny this initially, and that he was able to articulate strategies to avoid a recurrence.
I have given weight to the evidence of his witnesses that show this action was out of character.
In particular I have given weight to the evidence of Mr O’Malley where he repeated, on a number of occasions, his severe embarrassment and disappointment with himself. I am satisfied this conviction had a severe impact on Mr O’Malley to the extent that for a period of time he withdrew into himself and would not interact with those who were close to him.
I find that that Mr O’Malley is of good character, that this conviction resulted from an isolated incident, that he acknowledges his behaviour was dangerous, that he has expressed remorse and embarrassment, and that he has developed strategies to avoid a reoccurrence of his behaviour. I also find that no other behaviours, which might impact on the best interests of children, have been identified.
I have formed the view for the purpose of this Act that the risk Mr O’Malley will repeat his actions, or engage in dangerous driving in the future, is small. I am aware he still needs to satisfy Queensland Transport of his competency before he will be given a Driver’s Authorisation and nothing I have said should be taken to influence that decision.
I have decided this is not an exceptional case in which it would not be in the best interests of children for a positive notice to issue and therefore I order the Chief Executive to issue a positive notice and blue card to John James Patrick O’Malley.
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