Paterson v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 75
•2 March 2015
| CITATION: | Paterson v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 75 |
| PARTIES: | Anthony Gordon Paterson (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML180-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 9 February 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Joachim |
| DELIVERED ON: | 2 March 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Public Safety Business Agency to issue the applicant with a negative notice is confirmed. |
| CATCHWORDS: | Blue Card – Exceptional Case – where applicant previously held a blue card – where applicant has extensive criminal history – where applicant has relatively recent drug offences – where applicant refused a positive notice by Public Safety Business Agency – where review sought so applicant can engage in child related employment – where risk factors outweigh protective factors – whether applicant’s case is exceptional Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES:
| APPLICANT: | Mr Anthony Paterson |
| RESPONDENT: | Public Safety Business Agency |
REPRESENTATIVES:
| APPLICANT: | Self |
| RESPONDENT: | Mr P Reid |
REASONS FOR DECISION
Mr Anthony Paterson is 43 years of age. He lives in Goondiwindi and because of health problems is currently not working. He wishes to obtain a positive notice and blue card to resume coaching and assisting with training at the Goondiwindi Junior Football Club.
He first received a positive notice and blue card in 2010. This expired in September 2012.
On 21 August 2014, following a new application for a positive notice and blue card the Public Safety Business Agency which now has responsibility for the issuing of positive notices, issued him with a negative notice.
Mr Paterson seeks a review of that decision so he can pursue working with children and young people.
Mr Paterson has a criminal history spanning from May 1989 until September 2013. This history includes offences from grievous bodily harm, disorderly behaviour, breaking and entering, public nuisance, and drug related matters.
Apart from a custodial sentence in 1998 for grievous bodily harm, he received fines for the other matters. There was a gap in his offending from 2005 to 2013. The last charges in 2013 relate to his drug activities earlier that year involving ‘ICE’. He failed to properly dispose of a needle and syringe and possessed items for drug usage.
As none of his offences are serious offences under the legislation, Mr Paterson is entitled to receive a positive notice and blue card unless it is considered his is an exceptional case such that it would harm the best interests of children for him to have a positive notice.[1]
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing.[2] The Tribunal needs to apply the same law as the Agency. The Tribunal has to take into account s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’). This outlines what I have to consider in deciding if an exceptional case exists.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
The purpose of the review is to produce the correct and preferable decision.[3] The Tribunal may:
a) confirm or amend the Agency’s decision;
b) set it aside and substitute its own decision; or
c) set it aside and return it to the Chief Executive of the Public Safety Business Agency for reconsideration.[4]
[3]Ibid.
[4]Ibid s 24.
Exceptional case is not defined in the Working with Children Act. To be exceptional the case needs to be out of the ordinary, unusual or special.
I need to consider the individual circumstances to determine if an exceptional case exists. I have discretion in this regard taking into account the legislation and the circumstances.
The Act’s objects include promoting and protecting the rights, interests and wellbeing of children in Queensland. I also have regard for s 5, s 6 and s 360 of the Working with Children Act.
Notably, a child related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.
Blue cards are given without condition so the applicant, if successful in this review, could work in any area of child related employment, whether supervised or not.
The case put by Mr Paterson as to why his case is not exceptional
Mr Paterson stated that when he got his blue card in 2010, his past criminal activity was not an issue at that time.
He said he went down the ICE path in 2012 and because he was charged in 2013, the past now became an issue. He argued that he has not had a drug problem for years saying that the issue with ICE occurred three years ago.
He stated he felt comfortable talking to doctors and counsellors and although he has good and bad days since, he has not reverted to ICE and doubts if he will ever use it again.
He advised the Tribunal that he started using ICE in 2011 after he became ill. He said it helped him, initially but it soon had a bad affect and he subsequently spent $160,000 of his company’s money, lost his business, some friends and some family.
After consulting his doctor, he went cold turkey but subsequently relapsed several months later in April/May 2013 for about two weeks.
He said the police raided his home some months later and found a needle and syringe and other drug related material, all of which he had forgotten he had placed in a cupboard.
His doctor has referred him to a psychiatrist to deal with depression, which he says is caused by his inability to work because of chronic neck pain despite an operation in 2014. He had two sessions and now has a new referral.
He advised how he had voluntarily stood down from coaching at the Junior Football Club in 2012, as he did not want the children to see him as he was.
He stated he loved his football, the children look up to him and it helps him with his depression.
When he had overcome the ICE problem, he volunteered again to the club and advised them of his criminal past in 2014.
Despite his disappointment at not getting a blue card to coach, he did other voluntary work at the club, including canteen and line marking.
He indicated he knows drug dealers in the town but had not and will not accept any drugs from them. He said he does not go to pubs to avoid situations of potential confrontation.
He noted a good relationship with his partner who is very supportive. He also spoke positively about his relationship with his stepson.
Mr Paterson’s four witnesses were all associated with the Junior Football Club either as committee members or coaches.
They all spoke in very positive terms about his involvement with the young players. They all agreed he was a good role model, the boys looked up to Mr Paterson and he had the respect of parents.
All were aware of his criminal history but not all were aware of the details of his offending. They all knew about the most recent drug charges.
None of the witnesses expressed any concern for the safety of children in the company of Mr Paterson.
He was described as a willing helper who went the ‘extra mile’ to help the boys and the club including paying fees for some children and driving them to matches.
Some witnesses noted a positive change in Mr Paterson’s presentation.
None were aware of any rehabilitation undertaken apart from being under the care of a general practitioner. None had seen him affected by drugs.
The Public Safety Business Agency’s View
In issuing a negative notice the Agency considered Mr Paterson’s case was exceptional such that it would harm the best interests of children for him to have a positive notice. The Agency considered his criminal history in making its determination, in particular that it included an act of significant violence whilst intoxicated as well as several drug offences.
Whilst previously aware of this, the Agency noted that the applicant had since been convicted of offences, suggesting his misuse of drugs had escalated. He ought to have been aware of the wrongfulness of his behaviour.
Despite an invitation, the Agency noted the applicant provided no submissions to demonstrate any steps taken to address this matter.
The Agency also noted that the referees in their statements, whilst supporting the applicant, may not be aware of the details of the applicant’s offending.
Following the oral evidence, the Agency’s views remained essentially the same.
The Agency argued that Mr Paterson was not a suitable role model for children.
The Agency raised concerns that Mr Paterson had not undertaken rehabilitative counselling, and that the challenges facing him in relation to his neck pain, depression and future bankruptcy posed possible future risks that could lead to a relapse.
The Agency, noting the positive comments from the witnesses, considered the risks posed outweighed those positives.
It was argued that it is too early for the Tribunal to be satisfied that the risks were mitigated. The Agency argued that Mr Paterson had not addressed the drug offending and violent behaviour.
The Agency argued that any benefit to children in Mr Paterson having a blue card was irrelevant as it is the best interests of children that I have to consider.
The View of the Tribunal
I agree substantially with the submissions of the Agency.
It should be noted that whilst I may regard the risk to children from Mr Paterson is relatively low, that is not the test I have to apply. Whilst it is a factor it is only one part of my considerations. I accept the boys look up to him and that he has the respect of parents.
I am required to consider whether Mr Paterson’s case is an exceptional one such that it would not be in the best interests of children for him to have a positive notice.
In other words is his case out of the ordinary, unusual or special, such that he should not have a positive notice.
In the Commissioner for Children and Young People and Child Guardian v Maher & Anor,[5] the Court of Appeal endorsed the approach of identifying and balancing risk and protective factors.
[5][2004] QCA 492.
Mr Paterson’s protective factors are:
· His supportive partner.
· A network of support from the football club.
· The positive comments made by his referees.
· The positive relationships he is able to build with young footballers and their families.
The risk factors in this case are:
· The lengthy criminal history of Mr Paterson. It does him no credit.
· His recent history of drug use in 2013 following a relapse back to his 2011 – 2012 drug habits.
· His non-engagement with rehabilitation and psychological support for depression on any consistent basis to date.
· His facing the possibility of bankruptcy in due course.
· His depression regarding his inability to work associated with pain issues.
I consider the risk factors outweigh the protective factors. His relapse in 2013 is concerning as is his lack of commitment to rehabilitation and therapy.
In determining this matter I also have to take into account s 226 of the Working with Children Act.
In this regard, I note the offending of the applicant, from 1989 to 2013, his convictions and the type of offending behaviour. None of his offences were regarded as serious offences under the Working with Children Act.
His offending includes dangerous drug offences and indicates prolonged drug use, for which he admitted at the hearing.
The Courts imposed mainly fines apart from imprisonment for his grievous bodily harm offences. He was usually convicted for his offences.
The use of dangerous drugs is directly relevant to whether he should have a blue card. I agree with the Agency when it says
Children have a right to be protected from exposure to drug misuse and to be cared for by persons who are not using drugs that may impair their ability to promote and protect the best interests of children.
I have also taken into account his voluntarily stepping down from coaching in 2012.
I am satisfied, however, on the balance of probabilities and bearing in mind the consequences involved that an exceptional case exists. This means I will confirm the Agency’s decision to refuse Mr Paterson a positive notice and blue card.
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