PKD v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 47
•21 March 2016
| CITATION: | PKD v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 47 | ||
| PARTIES: | PKD | ||
| v | |||
| Chief Executive Officer, Public Safety Business Agency | |||
| APPLICATION NUMBER: | CML184-15 | ||
| MATTER TYPE: | Children Matters | ||
| HEARING DATE: | 4 December 2015 | ||
| HEARD AT: | Townsville | ||
| DECISION OF: | W Pennell, Member | ||
| DELIVERED ON: | 21 March 2016 | ||
| DELIVERED AT: | Townsville | ||
| DECISION MADE: | 1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 26 June 2015 to issue a negative notice to PKD is set aside. 2. The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue PKD a positive notice and a Blue Card. 3. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and the locality of the applicant. | ||
| CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice – review of a decision to cancel a blue card – change in applicant’s criminal history – whether or not it is in the best interests of children to issue a positive notice – whether exceptional circumstances exist NON PUBLICATION – protection of the applicant’s identity – identification of witnesses – confidential information – discretion to make a non-publication order | |||
| Working with Children (Risk Management and Screening) Act 2000 – s 5, s 6, s 8, and s 221 Queensland Civil and Administrative Tribunal Act 2009, s 20, s 24 and s 66 Criminal Code Act 1899, s 1, s 339 and s 552H Penalties and Sentences Act 1992, s 143 and s 144 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 TAA [2006] QCST 11 Kent v Wilson [2000] VSC 98 | |||
| APPEARANCES and REPRESENTATIONS: | |||
| APPLICANT: | Self Represented | ||
| RESPONDENT: | Ms Natalie Taylor for the Public Safety Business Agency | ||
REASONS FOR DECISION | |||
Introduction
PKD (the Applicant) is aged 41. He is married and has two young children. He is involved in the building and construction industry and operates his own tiling business.
The Applicant’s oldest child plays junior soccer. He made an application for a Blue card to engage in regulated child-related activities, that is, he wanted to be able to coach his son’s soccer team.
On 26 May 2015, the Respondent wrote to the Applicant telling him that because information had been received that there had been a change in his criminal history, this raised a concern about his eligibility to hold a blue card. An invitation was then extended to the Applicant to provide submissions as to his eligibility, which he subsequently did.
After considering the Applicant’s submissions about his eligibility, the Respondent made a decision on 26 June 2015 to reject the Applicant’s application for a blue card citing that it was not in the best interests of children and young people at that time. The Applicant now seeks a review of that decision.
Review Jurisdiction
The Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) allows a person affected by a reviewable decision to review that decision.[1] The Tribunal must conduct a review of the merits of the decision by way of a fresh hearing.[2] The purpose of the review is to produce the correct and preferable decision[3] by either confirming or amending the decision, or setting aside the decision and substituting it for its own decision or setting aside the decision and returning the matter to the original decision maker for reconsideration.
[1] As provided under the QCAT Act
[2] Queensland Civil and Administrative Tribunal Act 2009, s. 20
[3] Queensland Civil and Administrative Tribunal Act 2009, s. 24
The Applicant’s criminal history
The Applicant has come to the attention of the police on two occasions. The first occasion arose out of an incident in 2003 (“the 2003 incident”) when he and his friends were celebrating at a hotel after a game of football.[4] Their celebrations went well into the night.
[4] See Hearing Transcript at pp. 11 – 12
At about 3:00am the Applicant was in the gaming area of the hotel with his friends. He was intoxicated. The hotel’s security officer approached the Applicant and escorted him from the premises. Whilst the Applicant was waiting for a taxi outside the hotel, words were exchanged between the Applicant and the security officer. The Applicant and the security officer then engaged in an altercation, during which the Applicant head-butted the security officer. The security officer suffered an injury to his mouth and teeth.
The Applicant was charged with the offence of recklessly causing an injury. On 30 June 2003, he appeared in the Magistrates Court. He was represented by a legal practitioner and he pleaded guilty. He was fined $1,000 and no conviction was recorded.[5]
[5] See Respondent’s material at p. 022
The second occasion occurred in 2013 (“the 2013 incident”). On this occasion, the Applicant was working on a construction area.
The Applicant was living in shared accommodation complex with other tradesmen who were at that construction area undertaking work. The victim involved in this incident was also tradesman sharing that same accommodation complex.
The victim had fallen asleep on the lounge chair. The Applicant arrived back at the accommodation complex just after midnight after being out. He was intoxicated. In the time that both the Applicant and the victim had been working at that location, there had been some ill feeling between them. When the Applicant saw the victim on the lounge chair, the Applicant called the victim a homosexual and a paedophile.
The Applicant then walked off towards his room. The victim followed, seeking an explanation for those comments. Both men engaged in a physical altercation with each other. The victim managed to get the better of the Applicant and they ended up on the floor with the victim on top of the Applicant. It was then that the Applicant spat twice into the victim’s face.
The Applicant was later charged with assaulting the victim and causing him bodily harm (“AOBH”).[6] He pleaded guilty to that offence in the Magistrates Court.[7] He was sentenced to six months imprisonment, wholly suspended for an operational period of 12 months. A conviction was recorded.[8]
[6] Criminal Code Act 1899, ss. 1 and 339
[7] Court date was 12 November 2013
[8] The Court is obliged to automatically record a conviction for a suspended sentence: See the Penalties and Sentences Act 1992, s. 143
The Applicant told the Respondent that at the time of the 2013 incident he was intoxicated. He felt that he was defending himself after being assaulted by the victim. He acknowledged that it was a poor decision to spit at the victim. Notwithstanding that, he said that because he had made a bad decision to return punches at the victim, his actions impacted upon his employment. He lost his job because of what happened. He regretted the incident, and asked the Respondent to accept that he was remorseful and ashamed for his behaviour.
There are three distinct points argued by the Applicant about both assault incidents that require some comment. Firstly, the Applicant contends that the Respondent placed undue weight upon the court result of the 2003 incident when suggesting that the Applicant had been convicted of the offence. Although the Tribunal was not completely appraised by the overall findings of the court on that occasion, it is clear from the Respondent’s material[9] that the Magistrates Court recorded no conviction.
[9] See Respondent’s material at p. 022
The Tribunal is of the view that the consideration given by the Respondent to that result was justifiable. When all is considered, it is immaterial as to whether there was a recording or not a recording of a conviction, the undisputed fact is the Applicant pleaded guilty to assaulting a hotel security officer and causing him an injury.
Secondly, the Applicant suggests that the Respondent made its decision based on a version of events from the 2013 assault which were not accepted as correct by the Magistrates Court. He argued that the Respondent made him out to be the perpetrator of the assault, rather than the victim. The Applicant’s position on this point is somewhat perplexing given that it was the Applicant who was charged with, and pleaded guilty to the offence of AOBH.
Thirdly, the Applicant suggests that the penalty of six months imprisonment, wholly suspended for an operation period of 12 months imposed by the Court for the 2013 incident offence was the minimum under the law.
The Applicant said that the view taken by the court was in fact reflective of the lowest severity level of the offence.[10] However, there is an absence of the sentencing remarks for this matter to support this assertion.
[10] The AOBH charge was an indictable offence dealt with summarily by the Magistrate. The maximum penalty available to the Magistrate was three (3) years imprisonment: See s 552H(1)(a) of the Criminal Code Act 1899. A sentence of imprisonment may be suspended for a maximum operational period of not less than the term of imprisonment imposed and not more than 5 years: See s. 144(6) of the Penalties and Sentences Act 1992
The Applicant’s case
The Applicant called four witnesses to support his application. They were PT,[11] BR, SR and DJ.[12]
[11] The Applicant’s wife
[12] The Applicant’s sister-in-law
PT
She is the Applicant’s wife. They met when the Applicant was in the midst of a family law dispute with his former spouse over a child from that relationship. She and the Applicant have a son of their own, now aged 4. It is not surprising that the Applicant’s wife had nothing but positive things to say about him. Notwithstanding that, she was able to adequately convey to the Tribunal a positive assurance that she was always a mum first and a wife second, and if there were any concerns with the children, her marriage with the Applicant would have ended.[13] The Tribunal accepts that she was not only genuine in her support of her husband, but she is also vigilant.
[13] Transcript at p.39, lines 36 – 40
BR
The Tribunal was impressed by the evidence of BR. He had a distinguished 41 years career as a police officer and was the foundation member of the Dog Squad. He spent the last 33 years of his career in that specialist role, in both training and working with police dog squads. He is the recipient of the Australian Police Medal (APM)[14] for distinguished service to policing. He is now retired.
[14] An Australia Day Honours Award
BR has known the Applicant for 14 years. They were neighbours, and have maintained regular contact since the Applicant moved to Queensland. His evidence to the Tribunal was that from what he knows of the Applicant, his behaviour in the 2013 incident was totally out of character and wholly contradictory to his reputation.
BR had spoken to the Applicant about the 2013 incident and knows that the Applicant is remorseful for what had taken place. It was BR’s opinion that the Applicant was of suitable character to be the holder of a blue card.
SR
SR’s evidence was that she knows the Applicant from his association with the junior soccer club. She is the Team Manager of the Under 7 junior team. She spoke of the positive influence the Applicant had with the children and the disappointment the children felt when the Applicant was unable to continue in a coaching role.
DJ
DJ has over 15 years’ experience as an early childhood educator and kindergarten teacher. The Applicant is married to her sister and she has known him since 2008. Although there is no criticism of her evidence, very little weight is placed upon much of what she said because of their close relationship.
Discussion
The Respondent is the Chief Executive Officer, Public Safety Business Agency (the Respondent). The Respondent’s functions are varied and include a responsibility to administer the screening of people employed, or proposed to be employed in certain related employment; and people carrying on, or proposing to carry on certain related businesses; and to audit or monitor compliance with the Working with Children (Risk Management and Screening) Act2000 (“Working with Children Act”).[15] The Respondent’s central focus is the protection of children.
[15] Working with Children (Risk Management and Screening) Act 2000, s 8
Paramount consideration
All people who are holders of a blue card occupy a very special position of trust and authority in relation to the children in their care. The welfare of the children depends on those holding a blue card to exercise proper judgment and restraint, and to protect children from harm.
The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children in Queensland.[16] The paramount consideration in a screening decision is the welfare and best interests of children. A very important principle is that every child is entitled to be cared for in a way that protects that child from harm and promotes the child's wellbeing.[17]
[16] Working with Children (Risk Management and Screening) Act 2000, s 5
[17] Working with Children (Risk Management and Screening) Act 2000, s 6
The central focus of the Working with Children Act is the protection of children. It is not intended to impose additional punishment on someone who has police or disciplinary information, but rather, it is intended to put gates around employment to protect children from harm.[18]
[18] Second reading speech, Commissioner for Children and Young People Bill, p. 4391
Test to be applied
The Applicant has been convicted of offences other than a serious offence as defined in the Act. Accordingly, a positive notice must be issued unless it is an exceptional case and it would not be in the best interests of children for the Applicant to be issued with a positive notice.[19] It is a matter of discretion whether a case is exceptional, and that is to be determined by looking at the circumstances of each individual case. What constitutes an exceptional case is a question of fact and degree.[20]
[19] Working with Children (Risk Management and Screening) Act 2000, s. 221
[20] Commissioner for Children and Young People and Child Guardian v Maher & Anon [2004] QCA 492
The facts must be examined in the light of the intention of the Working with Children Act. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what the relevant factors are.[21]
[21] Kent v Wilson[2000] VSC 98 at [22]
Other considerations
The Applicant is engaged in steady, gainful employment and is running his own business. He is part of a stable, long-term relationship with his wife, and the evidence suggests that they utilise open lines of communication to problem solve.
The Applicant has expressed regret for his offending behaviour and is able to identify the negative consequences that have resulted for him and his family. He has expressed a desire to live in a law-abiding manner in the future. He has a commitment to personal development, having participated in anger management courses, parenting courses and sought professional treatment and assistance from a psychologist on an ongoing basis.
The evidence of the witnesses who gave evidence for the Applicant attest to his good character, his positive interactions with children and his positive parenting skills that he has displayed. BR and the Applicant's wife are very genuine in their affection and respect for him and consider his actions in 2013 incident to be out of character for him.
The Applicant acknowledges that he was intoxicated on both occasions in the 2003 and 2013 incidents and this impacted upon his ability to respond rationally.
The Respondent suggests that the Applicant’s consumption of alcohol remains a risk factor which is not mitigated by the evidence before the tribunal. Having regard to that suggestion, it is notable that there is no suggestion that there is any evidence of the consumption of alcohol by the Applicant at the junior soccer games where he engages with children.
The Respondent’s position is that children are entitled to be cared for by adults who do not engage in violent behaviour. The community is entitled to expect that blue card holders, who are caring for their children, will do so in a calm and predictable manner, with the ability to effectively and non-violently resolve conflict which may occur.
The Respondent also contends that children are particularly impressionable and look to the adults around them to model appropriate ways to behave, ways to respond to situations and ways to treat others. Whilst all of that cannot be denied, the evidence in this matter does in no way suggest that either of the two concerning incidents were child related, or that children were the victim, or that children were present, or that the incidents occurred at a time and place whereby children could reasonably be expected to present. The Respondent acknowledged this.[22]
[22] Transcript, p. 66
In the Commissioner for Children and Young People and Child Guardian against Maher and Another [2004] QCA 492, the Court of Appeal identified the correct the approach of identifying and balancing the relevant risk and protective factors arising from the circumstances of a particular case.
The Respondent says that the risk factors are the Applicant two convictions for violent offending, with those convictions being 10 years apart. The penalties imposed were a substantial fine and no conviction being recorded for the 2003 incident and a wholly suspended term of imprisonment for the 2013 incident. The Respondent submitted that the 2013 penalty is reflective of the Court's view of the gravity of the offending behaviour.
The Respondent accepts that the Applicant expressed his regret for the offending; however, the Respondent submitted that the remorse that the Applicant displayed appeared confined to the impacts on himself and his family rather than the impacts on the complainants and this reflects adversely on the Applicant’s level of insight.
Insight into the harm caused in these incidents is a critical matter for consideration by the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor.
A person aware of the consequences of their actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others.[23] However, insight can be displayed in a number of ways, and regard has to be taken of a number of factors relating to each particular case.
[23] TAA [2006] QCST 11
The correct approach to be adopted is to identify the relevant risks and balance those against any protective factors arising from the circumstances.[24]
[24] Commissioner for Children and Young People and Child Guardian v Maher & Anon [2004] QCA 492
The Respondent conceded that the Applicant does not have any convictions for serious or disqualifying offences and the test outlined by section 221 of the Working with Children Act is that a positive notice must be issued unless an exceptional case exists.
The Respondent argued that an exceptional case did exist, and there were a number of serious risk factors which are not mitigated by the evidence and that it would not be in the best interests of children for a positive notice and blue card to be issued to the Applicant.
Conclusion
The correct approach is to identify and balancing the relevant risk and protective factors arising from the circumstances of a particular case.[25]
[25] Commissioner for Children and Young People and Child Guardian v Maher & Anon [2004] QCA 492
The Applicant has been convicted of offences of assault. Neither the 2003 offence nor the 2013 offence is deemed to be “serious offences” or “disqualifying offences” within the provisions of the Working with Children (Risk Management and Screening) Act 2000 (“Working with Children Act”).
The facts of those offences do not show that the incidents involved offences against children, and nor is there any allegation raised that children were present when the incidents took place, or that the offences occurred at a time and place where children could reasonably be expected to frequent. Had there been evidence of any of those circumstances, then some serious concerns could justifiably have been raised about the Applicant’s suitability.
The Applicant expressed remorse for his offending, and through his remorse he projects an approach that he possesses insight into the impact that his actions had, not only upon himself, but also upon others, including the children of the junior soccer team. His comment to the Tribunal was that he does not want his children growing up mirroring his actions. That comment in itself displays insight.
The Tribunal is satisfied that the existing circumstances of this matter do not render the Applicant’s case as an exceptional one. There are a number of significant protective factors which would not harm the best interest of children for a positive notice and a blue card to be issued to the Applicant.
The Tribunal is also satisfied that the correct and preferable decision in this matter is to set aside the Respondent’s decision and direct that a positive notice and blue card be issued to the Applicant.
Non-Publication Order
The QCAT Act provides the Tribunal with discretionary power to make a non-publication order prohibiting the publication of the contents of any document or thing produced, or evidence given, or information that might enable a person who appeared before the Tribunal to be identified.[26] The making of such an Order can be on the Tribunal’s own initiative.
[26] QCAT Act, s 66
The Tribunal is satisfied that a non-publication order is necessary to avoid the publication of confidential information.
Decision
The decision of the Tribunal is that:–
1.The decision of the Chief Executive Officer, Public Safety Business Agency dated 26 June 2015 to issue a negative notice to PKD is set aside.
2.The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue PKD a positive notice and a blue card.
3.Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the Applicant, any witnesses appearing for the Applicant and the locality of the Applicant.
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