Ryan v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 5
•7 January 2015
| CITATION: | Ryan v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 5 |
| PARTIES: | Terrence Joseph Ryan (Applicant) |
| v | |
| Chief Executive Officer, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML158-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 11 December 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Joachim |
| DELIVERED ON: | 7 January 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The decision of the Chief Executive Officer of the Public Safety Business Agency to cancel Terrence Joseph Ryan’s positive notice and blue card and issue a negative notice is set aside and a positive notice and blue card is to be issued to him. |
| CATCHWORDS: | BLUE CARD – EXCEPTIONAL CASE – where applicant has lengthy criminal history – where none of offences were serious or disqualifying – where applicant’s positive notice was cancelled by the Public Safety Business Agency – where review sought so applicant can engage in child related employment – where protective factors outweigh risk factors – whether applicant’s case is exceptional Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 226, s 360 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 |
APPEARANCES:
| APPLICANT: | Terrence Joseph Ryan represented himself |
| RESPONDENT: | Public Safety Business Agency represented by Ms Natalie Taylor |
REASONS FOR DECISION
Terrence Joseph Ryan is 46 years old. He lives in Brisbane and works as a gardener at the Mater Hospital. He was born in New Zealand, had a stable upbringing and in 1986 he moved to Sydney and worked variously as a truck driver, salesman and a labourer.
He had multiple driving offences in New South Wales including driving while disqualified; driving whilst having his licenced suspended; and using an unregistered vehicle.
In Queensland, he has two drug offences, which were committed in February 2014. The offences relate to possessing dangerous drugs and failing to properly dispose of a needle and a syringe.
In June 2013 he was granted a positive notice and blue card by the then Commissioner for Children Young People and Child Guardian. Following his drug convictions in 2014, the Public Safety Business Agency reviewed Mr Ryan’s criminal history as well as various submissions and references provided by him.
The agency decided to issue Mr Ryan with a negative notice in July 2014 having been satisfied on the material before it that an exceptional case exists in which it would not be in the best interests of children for Mr Ryan to have a positive notice.
Mr Ryan seeks a review of that decision so he can continue working at the Mater Hospital as a gardener, which requires him from time to time to do gardening work at two childcare centres at the hospital.
The Tribunal is conducting a review of the merits of the Agency’s decision by way of a fresh hearing. 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.
The purpose of the review is to produce the correct and preferable decision. 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.
As none of his offences are serious offences under the legislation, Mr Ryan 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.
Exceptional case is not defined in the 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.
Decision of the Agency summarised
The Agency decided Mr Ryan’s case was exceptional after considering his lengthy criminal history, s 226 of the Working with Children Act, s 221 of the Act and the principles and objects of the Act.
The Agency in its statement of reasons noted a lengthy criminal history particularly in New South Wales between 1998 and 2009 where by Mr Ryan had numerous convictions in relation to driving offences. These offences included driving while disqualified from holding a licence; driving while licence was suspended; and using uninsured motor vehicle.
After a further period of five years, Mr Ryan was charged and convicted with possessing dangerous drugs and failing to dispose of a needle and syringe in the Brisbane Magistrates Court on 14 March 2014.
The Agency considered Mr Ryan’s was an exceptional case and in summary noted that insufficient time had lapsed for the Agency to be satisfied the applicant has fully rehabilitated, that he failed to identify the underlying triggers of his offending as well as failing to identify any protective factors he may have in place to prevent a reoccurrence.
The Chief Executive was also unable to gain any insight into Mr Ryan’s interaction with children in recent times, which could be relied upon to mitigate the risk factors raised by his police information. The Agency also noted that the applicant would be able to work in any child related employment or conduct any child related business and would not be necessarily subject to any supervision as the blue card was fully transferrable to any area of child related employment.
The Agency further reasoned that Mr Ryan would not be an appropriate role model for children.
The Agency considered the recency of Mr Ryan’s offending a significant risk factor.
The evidence of the applicant and his witnesses
Mr Ryan freely admitted all of his criminal activity. He put his driving offences down to difficulties with finances and he needed to get work.
He described the 2014 drug charges as follows.
He got drunk on the day with an acquaintance from Sydney who had purchased some drugs for which Mr Ryan had given some money. He acknowledges he made a mistake and shot up in the toilet at the pub using some of the drugs.
He said he had six to seven schooners and described his judgment as being affected and made a spur of the moment decision. He admitted that he had previously used drugs but had given up around 1998/99. He described having used various drugs in his late 20s about four to five times per year, mainly in socialising.
He advised the Tribunal that in 2004 he used heroin two to three times for a couple of weeks. He said he had not used any drugs between 2004 and 2014.
He drinks occasionally beer at a pub. He also drinks a six-pack at home on the weekend.
As to the impact of drugs on his life, he states there has been none. He advised that his family was very surprised about his drug use. He recognises that drugs are very dangerous and can be very addictive.
He stated that the 2014 drug use was out of character, as he had not used drugs for 10 years.
He describes himself as being ‘in a good position’. He is happy living in Brisbane and generally is not stressed. He described being good friends with an older woman with whom he had been in a relationship.
He advised the Tribunal that dollars used to purchase drugs end up in the pockets of ‘scumbags’ and that financing them is not good for the community.
On the impacts of drugs on the community he advised the Tribunal that:
a) this causes an increase in crime, as crime is done by people to pay for drugs;
b) it ties up police resources and affects people’s health; that children are not looked after by their mothers if the mothers use drugs; and that younger teenagers are susceptible to schizophrenia.
He also advised the Tribunal that he has not used drugs around children.
In relation to the strategies to abstain from using drugs he noted that he reflects on what drugs do for you, that drug use is dumb, that he no longer associates with drug users, that he is not interested in drugs and that they do nothing for him. He also said that he has seen people addicted who spend all their money and waste all their time.
In relation to his personal supports, he notes that he receives good support from his parents and his siblings, his work friends and a group of men at the Boundary Hotel.
He also advised that he has involvement with children in the family and his former partner’s children, in relation to fishing and various get togethers.
He currently has no involvement in any community groups and does no voluntary work.
His goal is to have delivery run with his own truck.
Vivien Ryan is the applicant’s sister. She works as a childcare worker. She advised that her brother has babysat her children who love him. She noted that Mr Ryan is very kind to children and he is an asset to have around children.
She said she has never seen him drunk and has never seen him unfit to be around children as a result of drinking. She said he was very surprised and saddened when told of her brother’s heroin use this year. Ms Ryan says she sees her brother weekly usually at their parents and at family get togethers and that the family is very close.
She described her brother as having wide interests and being a compassionate caring person who can be confided in. She said he was honest and truthful.
In referring to the drug incident she advised the Tribunal that Mr Ryan had told her that he was stupid.
Mr Ryan’s mother Shirley Ryan gave evidence saying she was surprised by her son’s heroin use and it came as a big shock. She stated that Mr Ryan had lived with her in recent times for the past five years and has never seen him affected by drugs.
She stated that Mr Ryan has spent a lot of time with his nephews and nieces and gets on well with them describing him as a great reader who is able to hold discussions with the young people and talk about a wide range of interests.
She described him as being a good role model in that respect but not very ambitious.
She stated she was not aware of any previous drug use. She described his strengths as being a kind man, helpful in the house and not putting others down. She described his weaknesses as being someone who changes his mind and is a bit lazy.
The PSBA submission
Mr Taylor representing the PSBA submitted that the Tribunal must consider what is in the best interests of children and that children are entitled to be protected from harm.
She noted that the legislation is not intended to give additional punishment but is protective and that the granting of a blue card puts trust in an adult to use proper judgment and to exercise proper authority around children.
She noted that there were a number of protective factors in relation to Mr Ryan. These included that:
· he was cognisant of the effects of drugs and of their broader affects;
· he has shown some insight into the problems that drugs can cause;
· he has positive interactions with children;
· there is no pattern of drug use;
· he has stable employment;
· he has support of family; and
· he Is able to form long-term relationships.
Ms Taylor also referred to risk factors, which include Mr Ryan’s criminal history containing a recent conviction resulting from his possession and intravenous use of heroin in 2014. She also referred to his long history of traffic offending for which he was sentenced to imprisonment reflecting poor role modelling and disregard for the law.
Further Ms Taylor noted that the applicant has not undertaken any professional treatment/rehabilitation. He is reluctant to engage or seek support from family only having recently confided with them in relation to his 2014 offences but not other information about drug use. He has significant vulnerabilities towards alcohol and drugs and continues to be vulnerable. She submitted that his criminal history raises concerns about his ability to provide a protective environment for children and to be an appropriate role model to them.
Ms Taylor submitted that whilst Mr Ryan’s sister and mother made positive comments in their evidence about Mr Ryan’s good character and his positive interaction with children they had little knowledge of the offences and she submitted their evidence was not objective. She further commented that whilst the written referees refer to Mr Ryan’s good work ethic, they were not available for oral evidence.
She submitted there was no independent evidence from a counsellor or a psychologist regarding Mr Ryan’s suitability to work for children.
She noted that any benefit to children as a result of Mr Ryan having a blue card is irrelevant as was any prejudice to him for not having a blue card.
Ms Taylor advised the Tribunal that a person who has a blue card is eligible for all child related employment including foster care and day care.
She further submitted that Mr Ryan’s drug use was highly relevant and weight should be given to its recency.
She suggested the applicant’s behaviour was not normal and that his case falls into the category of being exceptional such that it would not be in the best interests of children and young people for him to be issued with a positive notice and blue card.
The applicant’s submission
The applicant noted that I have a discretion in determining whether his is an exceptional case. He submitted he is not a risk to children and he is not a drug taker.
He submitted that whilst he admitted to drug use in the past it has never become a problem for him and the drug offence in 2014 was his first offence.
He submitted that there were no children present when he used the heroin in 2014 as this occurred in the hotel toilet. He submitted that he would never use drugs at work.
He further submitted that he does not think he has a problem with drugs and therefore therapy would be of no use. Because his use has been so infrequent, he submitted he did not know how therapy could help.
He stated he does not associate with people who use drugs. He submitted that he is an honest person who believes in fair play and he would always have children’s best interests at heart. He said there has never been any sign that he does not have children’s best interests at heart.
He stated that whilst he was charged with not disposing properly of a needle and syringe he had in fact not disposed of the needle as he still had it in his bag.
The Tribunal’s view
I am required to take into account the factors listed in s 226 of the Act in determining if this is an exceptional case. I note the convictions for which the applicant has a result of his criminal behaviour. These are considerable and do him no credit. He does express some remorse for his actions.
I note the offending behaviour did not include a serious or disqualifying offence. These offences included driving a motor vehicle whilst suspended; driving whilst disqualified from holding a licence and using an uninsured motor vehicle. There were multiple charges in New South Wales from 1998 to 2009 for this type of offence. The penalties imposed by the Court included a period of imprisonment.
I will take into account protective and risk factors following an example in the Commissioner for Children and Young People and Child Guardian v Maher & Anor.[1]
[1][2004] QCA 492.
The protective factors are these:
· The applicant has insight into the effect of drugs on individuals including himself and society in general.
· He has shown remorse for his criminal activity.
· He has the support of his family.
· He has stable and ongoing employment.
· There has been considerable time between offending.
· The applicant relates well to children and has no pattern of regular drug use.
The risk factors are these:
· Conviction for two drug offences in February 2014.
· Repeated driving offences from 1998 until 2009 indicating disregard for the law.
· He was a mature adult when the offences occurred.
· He admits to previous recreational drug use and he has no particular strategies in place to avoid drug use.
There has been no material from any employer or from Mr Ryan’s family that there have been indications of ongoing drug use. Mr Ryan impressed me as an honest man who was very open about his use of drugs in the past. I am satisfied that he is not a regular drug user and that his explanation for why he has not sought assistance with drug taking is reasonable. He does not see that he has a problem. He has not used drugs for over 10 years.
Mr Ryan showed a high level of insight into the effects of drugs on individuals and the community. He displays remorse for his actions. I note that none of his offending has involved children although I do acknowledge the potential impact of people buying drugs on the general availability of drugs within the community.
Whilst he has no children of his own he has had interaction with his siblings’ children and a partners’ children over a number of years. These were reported to have been satisfactory. There is no evidence before me that Mr Ryan poses a risk to children in his interactions with them.
I am required to make a finding about whether Mr Ryan’s is an exceptional case on the balance of probabilities, the civil test, and taking into account the objects and the paramount principle of the Act as well as the weight of evidence.
I find that it is more likely than not that the protective factors outweigh the risk factors. I am also satisfied that Mr Ryan’s case is not exceptional such that it would harm the best interests of children should he have a positive notice and blue card.
I will therefore set aside the Agency’s decision and substitute my own decision that Mr Ryan be issued with a positive notice and blue card.
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