SJ v Department of Communities (Disability Services)
[2010] QCAT 685
•21 December 2010
| CITATION: | SJ v Department of Communities (Disability Services) [2010] QCAT 685 |
| PARTIES: | Mr SJ |
| V | |
| Department of Communities (Disability Services) |
| APPLICATION NUMBER: | GAR133-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 16 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Julie Ford, Presiding Member Ron Joachim, Member |
| DELIVERED ON: | 21 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision made on 8 April 2010 to issue a negative notice to Mr SJ is set aside and a positive notice is to be issued forthwith to Mr SJ. The tribunal prohibits the publication of the name of the applicant and the names of the witnesses and referees and of the organisations in the decision relating to application number GAR133-10. |
| CATCHWORDS : | Employment screening; criminal history; negative notice; exceptional case; best interests of people with a disability Disability Services Act 2006 s 19, s 76, s 85(9), s 85(11). Queensland Civil and Administrative Tribunal Act 2009 s 66; non publication order; public interest; exposure of vulnerable people. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr SJ represented by Ms Rachel Mausen, barrister |
| RESPONDENT: | Department of Communitites (Disability Services) represented by Mr Gavin Handran counsel; instructed by Mr Robert March |
REASONS FOR DECISION
HISTORY TO THE APPLICATION
Mr SJ is thirty four years old and was working for a youth and family service as a support worker when an application was made to the Department of Communities for a prescribed notice in October 2009.
Mr SJ required a positive notice (a yellow card) to be engaged by a funded non government service to work with people with a disability.
The Department was advised by the Queensland Police Service Information Centre in December 2009 that Mr SJ had a number of offences committed over the period 1993 to 2005.
On 8 April 2010 Ms Brooke Kruger, Assistant Manager (delegated authority) of the Criminal History Screening Unit issued a negative notice under section 85 of the Disability Services Act 2006. A negative notice is a notice declaring the application for the prescribed notice is refused.
Ms Kruger was not satisfied that Mr SJ’s case is an exceptional case in which it would not harm the best interests of people with a disability for a positive notice to be issued.
On 5 May 2010 the Queensland Civil and Administrative Tribunal received an application to review this decision from Mr SJ.
A tribunal directions hearing was conducted on 16 June 2010 whereby both parties were granted leave to be legally represented.
A compulsory conference was conducted on 5 August 2010.
As there was no resolution to the dispute the matter proceeded to a full hearing before the tribunal on 16 August 2010.
THE LAW TO BE APPLIED
[10] This review application proceeds under the review jurisdiction in Chapter 2 Part 1 Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) and is by way of a fresh hearing on the evidence before the tribunal.
[11] Section 76 of the Disability Services Act 2006 (the Act) provides that the paramount consideration in making employment screening decisions is the right of people with a disability to live lives free from abuse, neglect and exploitation.
[12] The tribunal is directed by the principles of the Act to acknowledge the rights of people with a disability and to ensure that disability services respond to the needs of people with a disability.
[13] Under section 11 of the Act people with a disability include persons with intellectual, psychiatric, cognitive, neurological, sensory or physical attributes, or a combination of those attributes that result in a substantial reduction in the individual’s capacity to communicate, socially interact, learn, be mobile, self care or manage their affairs, and the person needs support.
[14] The Act provides a charter of rights for people with a disability. They relevantly include the right to live their lives free from abuse, neglect or exploitation (section 19(2)) and to receive services safely (section 19(3)).
[15] The central focus of the Act is the protection of people with a disability. It is not a statute intended to impose additional punishment on a person who has a criminal history. Rather it is intended to put gates around employment to protect people with a disability from harm.
[16] Section 85(9) of the Act states that a negative notice must be issued under section 85(11) if an applicant has been convicted for a serious offence, unless the Director-General is satisfied that there is an exceptional case in which it would not harm the best interests of people with a disability for the Director-General to issue a positive notice. Mr SJ had been convicted of a serious offence, as defined in section 79 of the Act, for which he served a term of imprisonment. He also has a number of offences and convictions spanning 1993 to 2005 involving dishonesty and stealing.
[17] The decision-making process of the Department, and now the tribunal, is guided by the High Court decision of M v M (1988) 82 ALR 577, that is, the purpose of employment screening is not to retry the applicant’s case. We are not a court exercising criminal jurisdiction.
[18] The central focus of the Act is on the protection of people with a disability. In Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, Mc Pherson JA confirmed the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”. This judgement also endorsed an approach which balanced protective and risk factors to determine whether an exceptional case existed. In Maher’s case the tribunal undertook an exercise of identifying risk factors and protective factors in assessing the risk of harm to children. As risk of harm to the best interests of people with a disability is central to Mr SJ’s review application, this approach similarly applies.
[19] Risk factors may vary from the perspective of the assessor, but more particularly will vary according to the known facts. On one view of it, the existence of previous convictions means there will always remain the possibility of a risk to the safety of the community. Risk in the context of the tribunal is not concerned with what may be mere possibilities, but rather will require some foundation in fact. The tribunal is looking at whether, in all circumstances, there is real and appreciable risk. It does this as part of its consideration of whether an exceptional case exists.
[20] The tribunal is guided by the judgement of Young CJ in Eq in Commission for Young People v V (2002) NSWSC 949 in paragraph 42 of his judgement where he refers to the necessity to find “a real and appreciable risk”, in that case, to the safety of children.
[21] The test in Briginshaw v Briginshaw (1938) 60 CLR 336 is applicable. In assessing whether or not an exceptional case exists, in the Maher case, the Queensland Court of Appeal held that “… the tribunal [is] required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.”
[22] The Act does not define what constitutes an exceptional case. The law is well established that it is a matter of discretion depending on the individual circumstances pertaining to the case (Re Imperial Chemical Industries Ltd Patent Extinction Petitions [1983] VR 1, Fullagar J).
[23] In Kent and Wilson [2000] VSC 98 (24 March 2000), Hedigan J cautioned against any attempts to define exceptional circumstances but concluded that behaviour that was ‘not typical’ of the applicant did not mean that exceptional circumstances had been established.
[24] In the marriage of Sandrik [1991] 104 FLR 394 at 399-400 “exceptional” was described as to “take it out of and beyond the ordinary circumstances reasonably expected to occur”.
[25] In determining whether there is an exceptional case as mentioned in section 85(5) of the Act the Director-General (and the tribunal at review) is obliged by section 86(2) to have regard to the following:-
(a)in relation to the commission, or alleged commission, of an offence by the person –
(i) whether it is a conviction or a charge; and
(ii) whether the offence is a serious offence and, if it is, whether it is an excluding offence; and
(iii) when the offence was committed or alleged to have been committed; and
(iv) the nature of the offence and its relevance to engagement that involves people with a disability; and
(v) in the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 122, the court’s reasons for its decision.
(b)any information about the person given to the chief executive under section 114A or 114B;
(c)a report, if any, about the person’s mental health given to the chief executive under section 114I;
(d)any information about the person given to the chief executive under section 114K or 114L’
(e)anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers being relevant to the assessment of the engaged person.
[26] The tribunal concurs with the Department’s submission that a decision-maker may consider any other matters within the subject matter, scope and purpose of the Act (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 16 CLR 24 at 36-40 per Mason J).
[27] One such consideration is that of Mr SJ’s insight into the consequences of his actions. The issue of insight has been highlighted in TAA Re [2006] QCST 11 (26 June 2006) in which the tribunal commented as follows:
“A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the affect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely affect on children”.
[28] People with a disability are similarly a group of vulnerable people who can be highly dependent on others.
[29] Counsel for the Department argued that Mr SJ bears the onus of demonstrating that his is an exceptional case and that although, in the normal course, he is not entitled to a yellow card, he has to demonstrate it should now be issued. The tribunal is guided by the decision of the Full Court of the Federal Court of Australia in McDonald v Director General of Social Security (1984) 1 FCR 354 at page 357 which is considered to be a leading authority in regards to the imposition of an onus on ‘parties’ in administrative review proceedings. In that decision it was observed that:
“The tribunal is not bound by the rules of evidence. It has before it all the material that was before the person who made the decision under the Act and which is the subject of the review before the AAT. Additional material may be placed before the AAT. As a matter of convenience, the Director normally appears to assist the Tribunal, but the Director General is not to be treated in the same way as a party to proceedings before a Court. In Sordini v Wilcox (1982) 42 ALR 245, a review under the Administrative Decisions (Judicial Review) Act 1977, the administrative body whose decision was being reviewed appeared before the Court. At p.255 Northcorp J said:
“It is equally important that in reviews by the AAT of decisions by administrative bodies such as the Director-General, or his delegate, in which there were no adversary parties, the AAT receive the assistance of persons acting on behalf of the administrative body. Likewise, in appeals of this Court from the AAT on questions of law, it is important that the Court receive the assistance of counsel appearing for the administrative body. This practice, however, which gives the outward appearance of an adversary system, should not be allowed to obscure the true position, and in particular to justify the introduction of concepts of onus of proof into the determination of claims under the legislation where no onus of proof in the legal sense arises. This view, quite correctly, has been acted upon by the AAT in the past”.”
[30] Further Supreme Court and Federal Court decisions have addressed the imposition of an onus on a party. In Re Jeganathan Nagalingam v Minister of Immigration, Local Government and Ethnic Affairs and Noel Barnsley [1992] FCA 470, Olney J stated relevantly:
“It is now well established that it is rarely appropriate to speak in terms of onus of proof in relation to administrative decision-making (see McDonald v Director-General of Social Security (1984) 1 FCR 354 at p357; Swan Television and Radio Broadcasters Ltd v Australian Broadcastings Tribunal (1985) 61 ALR 319 at p324)”.
[31] The tribunal’s role is to stand in the shoes of the Department, and for the parties to place before the tribunal relevant information. The tribunal is able to inform itself as it sees fit. Neither of the parties, nor the tribunal, bears any onus of proof.
[32] Counsel for the Department argued as well that, even if the tribunal were to find that Mr SJ is an exceptional case in which it would not harm the best interests of people with a disability to issue a positive notice, the tribunal retains a residual discretion not to exercise the power and issue a positive notice. He stated “nothing in subsection 11 (of section 85 of the Act) mandates, upon the state of satisfaction, the issuing of a positive notice (cf (8) (9) and (10)). Rather the state of satisfaction is merely a statutory condition precedent to the availability of the power”.
[33] However, section 85(12) of the Act provides that “if the chief executive is satisfied under subsection (11) that it is an exceptional case, the chief executive must issue a positive notice”. The tribunal, at review, stands in the shoes of the chief executive. The tribunal does not agree that it has a residual discretion, as section 85(12) is clear in its intent. That is, a positive notice (a notice declaring the application for the prescribed notice is approved) must be issued if it were satisfied this is an exceptional case.
[34] After reviewing the decision of the Department, the tribunal may confirm or amend the decision; set aside and substitute its own decision; or set aside the decision and return it to the original decision-maker (section 24 QCAT Act).
[35] Both oral and written evidence was provided to the tribunal and has been considered in the tribunal’s deliberations. The tribunal must consider the intention of the legislation, the emphasis on the discretionary rather than the prescriptive approach to the concept of exceptional case and the factors in combination that may constitute exceptional case.
The evidence before the Tribunal
Mr SJ
[36] Mr SJ grew up in a family where his mother and step father were addicted to illicit drugs. His younger sister was placed into foster care. He alleges he and his brother remained out of the foster care system but suffered extreme levels of sexual, emotional and physical abuse within the home. There was a long history of domestic violence. He became a daily drug user at the age of 13 years old and the family unit broke up when he was 14 years of age.
[37] Mr SJ made contact with his birth father who lived an itinerant lifestyle moving between caravan parks around Australia. His father was an alcoholic and thus not the role model Mr SJ had hoped. By 15 years of age Mr SJ was an intravenous drug user. He stated that, due to his previous life of drug abuse, the crimes he has committed have been directly related to feeding the drug habit he had. Custodial sentences became a part of his life towards the end of his addiction history.
[38] Mr SJ submits that he had multiple overdoses and, with mounting legal issues, sought treatment in 2002 at a Drug and Alcohol Rehabilitation Centre through a detoxification centre. As part of this program he participated in group and individual therapy and learnt skills of conflict resolution, assertion and anger management. He stated he worked on a comprehensive relapse prevention plan with his caseworker and implemented the strategies for effective daily recovery.
[39] Mr SJ submits that all of his criminal history is a direct result of his drug dependence and all charges are drug related.
[40] Mr SJ acknowledges he has a drug history spanning from 1993 to 2005 across both Queensland and New South Wales. However, he asserts that his offending behaviour ceased before the last matters were dealt with before the court. He has spent the last 5 years dedicated to his recovery and rehabilitation from being a drug addict and offender. He understood that, while it may not be hard to get clean, it is hard to stay clean. To do so not only requires an emotional balance but a moral balance.
[41] Mr SJ has re-established family contact, most particularly with his brother from whom he had stolen in the past. His sister, who is now a mother of 5 children, has supported Mr SJ throughout the years. He is now connected with his grandmother again. He has regained his interest in music, having been taught by his Aunt in his teenage years. He plays a number of musical instruments and had performed at a resort in 2009. As he is no longer on drugs he believes that his family support is growing.
[42] He has created an extended family of support people around him from his rehabilitation centre connections. He has a daily regime of protective measures in place to stay clean. He has counselling, meets regularly with ex-users, attends the gym and has been in a relationship for the past five months, with which he is pacing slowly. He stated he used to be dependent in his relationships previously. He is no longer in co-dependent drug-related relationships. Mr SJ stated it had been hard to validate himself as a decent person, but the more he has been supported the better he has felt. Thus the more capable he has become to look after himself and to remain drug free, the more he feels good about himself.
[43] He asserted that he had not stolen for over five years as he was no longer on drugs. This was a demonstration that he was no longer a risk of financial abuse to others.
[44] Mr SJ has a ‘sponsor’, Mr M, who himself has been 17 years clean. They have met once per month over the last three years. The focus is on life skills now and not on the drug addiction. He is now at the point where he wants to give back what has been given to him, that is to support others, be in a sponsorship role and a carer role.
[45] The welfare industry has become Mr SJ’s chosen area of work and his focus is on building a career supporting people. His aim is to guide others and to use his experiences for others to benefit from the mistakes he has made. Mr SJ tells his story, as a speaker, in hospitals and at rehabilitation sites through Narcotics Anonymous on average every two months. He has worked with a peak body for people with mental illness, an aftercare personal helpers program and a further care organisation for children. He also works on weekends with this third organisation supervising child protection access by parents who are clients of Department of Communities, for which he has had a blue card since 25 June 2008.
[46] Mr SJ submitted he understood the concerns of the Department in regards to the nature and scope of his crimes. He is fully aware of the severity of his criminal history over an extensive period of his life. Since embarking on his journey of recovery he had shared his story to help those suffering from addiction and mental health issues as a way to give back to society.
Witnesses in support of Mr SJ
Ms BC
[47] Ms BC is the Chief Executive Officer of a youth and family service. The service is a non government organisation providing a range of services to a large suburban community. She has been the Chief Executive Officer since 2002 and prior to that was the Disability Co-ordinator since 1996 within the same organisation. The service runs programs providing services to people with a disability and mental health issues, in housing and those suffering domestic violence.
[48] Ms BC knows of Mr SJ’s criminal history and he currently works in the housing team that supports homeless people. She stated that the Department had been informed of this situation and that no concerns had been raised in that regard. She supports his review application to secure a yellow card to work within her service.
[49] Ms BC considers Mr SJ can work in any area of her programs. In her view he is reflective, disciplined, he has reformed and has overcome adversity. He is respectful, calm and patient with the client group. There have been no performance issues regarding working with people with a disability. He has, in the past, complied with the mandatory requirement to report in the Drug Court’s accommodation program.
[50] In Ms BC’s view, Mr SJ’s case is exceptional in that he is a powerful role model and has demonstrated a capacity to be rehabilitated and to change his ways. As a manager she is prepared to do all she can to see that these changes are recognised. She was aware that there had been relapses in his rehabilitation in the early stages and the circumstances surrounding them. Mr SJ was open to raise any issues and to accept feedback. She considered he had remarkable strength of character.
[51] Ms BC stated there were protective factors in place within her service to ensure people with a disability were safeguarded. In his personal life, Mr SJ had strong mentors, a counsellor and would not hesitate to ask for help. She considered Mr SJ to be a much focussed person and self disciplined.
[52] Ms BC gave evidence that Mr SJ continues to work within the organisation while the review process is in progress. He has an approved Blue Card. The service will be reviewing their police checking processes based on the size and diversity of the organisation and the number of outlets that it has. Mr SJ was not working in the disability section of the service.
Ms A
[53] As Executive Director of an organisation that works with people with drug issues Ms A knew of Mr SJ’s criminal history and supported his work as a volunteer working sleepover shifts within its therapeutic community. She considers him a pleasant, punctual, respectful young man, who displays empathy and reliability with clients.
Ms CA
[54] Ms CA has known Mr SJ since 2005 when he volunteered at the rehabilitation centre’s facility. Ms CA is a psychologist and the Clinical Manager of the facility at that time. She is aware of his criminal history and she supports his application for a yellow card. She has found him to build rapport and relationships with people easily, has a great sense of humour, and is committed to working within the welfare and community services' sector.
Mr RR
[55] Mr RR is currently a Relationship Manager for a service that works with the mining sector. He is currently a consultant servicing the mining and resources sector. Previously he was the Programs Co-ordinator at a regional city’s drug service. He worked in drug and alcohol rehabilitation between 1987 and 2006. Mr RR stated that during the early stage of Mr SJ’s rehabilitation he faced the consequences of his past behaviours which strengthened his resolve. Mr SJ has remained focussed on his rehabilitation and Mr RR has witnessed him studying and attempting to improve himself. Mr SJ has developed as a professional and generous volunteer in helping others. He considered that Mr SJ’s academic knowledge together with his personal experiences makes him a unique and skilful helping professional.
Mr BD
[56] Mr BD is a psychologist and mental health specialist. He has known Mr SJ for some years and over two years in the role of volunteer and worker. Mr SJ assisted him in running programs in the after hours in the rehabilitation treatment centre. He knew of Mr SJ’s criminal and drug history.
[57] He considered Mr SJ to be one of the most trusted people to deal with client conflicts, that he was an exceptional worker and that he built rapport effectively with others. Mr BD stated Mr SJ has a daily program to adhere to in order to prevent a relapse, including surrounding himself with others in recovery, focussing on positive activities on a daily basis and having no contact with people from his criminal past. He knew Mr SJ at the time of his relapse and stated that is not uncommon to fail. Mr SJ is now in a steady maintenance period. He acknowledged that the risks for ex-addicts could include that they became complacent or if there was significant trauma, however the protective factors were well established for Mr SJ.
[58] Mr SJ had a strong support network who challenge him and encourage him. His daily recovery program incorporated meditation, friendships, safety network, keeping journals and nurturing oneself. If Mr SJ was not granted a yellow card, while he would be upset, Mr BD believed that he would bounce back. It would be a lose/lose situation as he was a great worker and it would be a loss to the sector. Mr BD had seen his previous relationship break ups and considered that Mr SJ had matured, was more open and no longer co-dependent.
Mr SM
[59] Mr SM is the Therapeutic Community Co-ordinator for a regional city’s service and he has known Mr SJ since 2003. He has worked in this field since 1995. He was Mr SJ’s case manager in the drug and alcohol treatment centre, and observed him when he was a volunteer of the centre. He is fully aware of Mr SJ’s criminal history. He supports Mr SJ in any employment he chose to pursue. He considers Mr SJ to have great empathy for others, to function well, be reliable and take on responsibility for the welfare of others in a conscientious and honest way.
[60] Mr SM’s opinion was that, on entry to the service, Mr SJ was a disturbed and abused young person. Mr SJ now knows him to be somebody who functions well in relationships with others, has an ability to support himself in normal everyday life, participates in a practical career pathway and seeks education and guidance in his field. He considers the most important aspect is that Mr SJ has a true empathy for others and knows the importance of consistency in relationships.
[61] He considers that Mr SJ’s case is exceptional in that he had suffered such a depth of abuse and then became a productive member of society. Through having something to offer now, Mr SJ has life purpose and identity. He considered Mr SJ could take on the responsibility of working with people who were vulnerable and supported this career path.
[62] Regarding Mr SJ’s relapses, Mr Sutton stated that they are important to growth and not at all uncommon in the rehabilitation process. Mr SJ has made that shift, now knows the dangers and he is sure Mr SJ’s record is now impeccable.
The Department’s position
[63] The decision-maker did not consider that Mr SJ was an exceptional case and thus issued him with a negative notice. Relevantly it is articulated that different offences can have different implications and different considerations when looking at the vulnerabilities of people with a disability.
[64] Ms Betty Kill, Associate Director-General of the Department raised concerns that “roles involving the support and care of people with a disability generally involve access to funds as people with a disability are reliant on their carers to make decisions about their financial wellbeing”. She wrote further that “there is a high probability of a carer being exposed to challenging behaviours when caring for a person with a disability”.
[65] Mr Greg Murphy, Regional Director for the Brisbane Region, asserts that “the key types of offences that might be relevant, particularly to the vulnerabilities of disabled people, are dishonesty offences, such as stealing or fraud, and sexual offences”. He states further that “where an applicant for a yellow card has been convicted of offences that have a basis of dishonesty or otherwise demonstrate an intention to exploit, then these types of offences should be approached with extreme caution. That is not to say that such persons may never be deemed suitable or as presenting with an unacceptable risk, but that their case must be, as the legislation calls for, truly exceptional before a yellow card is issued”.
[66] Mr Murphy asserts as well that “violent offences are also a reason for concern, given that most people with disabilities are not able to protect themselves and may be less likely to report physical abuse if they are completely dependent on a carer. It may also be that the person with a disability may not have a capacity to communicate that they are being badly treated or abused”.
[67] The Department argued that the structure and supervision of service at Mr SJ’s current employment is of limited utility because the yellow card is not restricted to that employment. It is transferable.
[68] Ms Brook Kruger is the delegated officer to make the original decision and Assistant Manager, Criminal History Screening Unit of the Department. She file noted a conversation with Ms BC (15/4/10) relating to Mr SJ’s ongoing employment without a yellow card. In that file note she wrote “I said that the DSA says you must hold a positive notice if you are working with people with disability at a service outlet and if he is not doing that then they can still engage him”.
[69] In final submissions to the tribunal counsel for the Department, Mr Handran raised concerns that two key people were not called to give evidence, that is, Mr MM who is Mr SJ’s counsellor and Mr M, his sponsor. In the prolonged history of offending were dishonesty offences. Such offences were a risk factor as people with a disability were particularly vulnerable regarding their assets. Mr S had breached parole and he had minimised the number of times he had lapsed back to drug use and criminality. The risk remains that he could lapse again and his past actions showed that he lost all control in the event that he did relapse.
[70] Counsel submitted that Mr SJ had shown a lack of candour and insight into the offences when he had first submitted to the Department that he “had one lapse lasting a month since 2002”. In fact there had been offences on 30 March 2003 and 31 March 2003 (entering dwelling), 5 June and 6 June 2003 (entering dwelling and stealing) and 15 April and 20 April 2004 (enter dwelling and possession tainted property). Failing to fully disclose this history reflected badly on Mr SJ’s character. Of further concern was that Mr SJ had recanted his confession made regarding the armed robbery in September 2001 denying any involvement by claiming he was under duress.
Discussion of the Evidence
[71] In determining whether there is an exceptional case as mentioned in section 85(5) of the Act the Director-General (and the tribunal at review) is obliged by section 86(2) to have regard to the following relevant matters.
Whether it is a conviction or a charge
[72] Mr SJ has offences as follows: produce dangerous drug (2 October 1993), stealing (on 24 July 2000, 28 November 2001 and 7 September 2001), fraud – dishonestly obtains property from others (21 September 2001) and possession of a knife in a public place (26 September 2001).
[73] Mr SJ has past convictions that involve stealing and dishonesty and violence. This is of significance to the critical issue of the vulnerabilities of people with a disability as articulated by Mr Greg Murphy. The tribunal concurs that such offences demonstrate an intention to exploit. It is with extreme caution that the tribunal considers the circumstances in which Mr SJ undertook these criminal acts.
Whether the offence is a serious offence and when the offence was committed
[74] Of relevance to this review is that Mr SJ was convicted of a serious offence, as defined in section 79 of the Act for which he served a term of imprisonment. On 12 September 2005 he was sentenced to imprisonment for 18 months for armed robbery with an offensive weapon whilst in company. The crime occurred on 2 September 2001 and Mr SJ stated he was under the influence of heroin and amphetamines at the time which impaired his judgement.
The nature of the offence and its relevance to engagement that involves people with a disability
[75] Regarding the serious offence, Mr SJ and another person threatened the console operator at a service station. Mr SJ admitted to the police that it was his idea to do the robbery and he was the one who threatened the operator with a serrated knife. Mr SJ has also stolen from others and undertaken break and enters. Rightfully, the Department expresses grave concerns if such actions were perpetrated on people with a disability who can be physically and intellectually vulnerable. People with a disability have the right to live lives free from abuse and exploitation.
[76] Regarding past actions, the evidence speaks for itself. Mr SJ did not demonstrate a care or concern for the rights of others. However, his witnesses have articulated that Mr SJ has made sustainable gains in redressing his past. He gave evidence that he has now been working to assist past addicts in recovery, and those vulnerable in the community, in a number of highly regarded organisations as a volunteer, and now as a paid worker. This progress has been confirmed by Ms BC, CEO of a youth and family service, a significant community services organisation in the suburban area. These actions were further endorsed by other witnesses who have significant years of expertise regarding drug rehabilitation.
[77] Mr SJ has continued to work for the service without the yellow card, with this being known by the Department for some months. There is no evidence to suggest that the Department itself considered Mr SJ posing a real and appreciable risk within that organisation while he was working in another program and not the disability program. It would be hard to imagine that contact with some people with a disability was not possible in the numbers of people that would access the overall organisation’s services.
In the case of a conviction – the penalty imposed
[78] Between 1993 and November 2002 Mr SJ appeared in court for a large number of minor offences for which he received penalties of monetary fines, probation orders, community service orders and the payment of restitution.
[79] The Court imposed a 9 months imprisonment suspended for two years for enter of a dwelling offences on 23 September 2003. Due to this conviction he had breached probation orders imposed on 18 November 2002 and 13 March 2003. Further court appearances involving the hearing of the breach of probation orders led to further conditional probation orders.
[80] On 12 September 2005 Mr SJ was convicted for entering a dwelling on 14 April 2005 and possess tainted property committed on 20 April 2005. The court imposed 12 months imprisonment with the parole date fixed at 13 July 2007.
Anything else related to the commission, or the alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the engaged person.
Negative factors not in contention
[81] Both parties acknowledge that Mr SJ has an extensive criminal history spanning from 1993 to 2005 in Queensland and NSW. Running parallel to his criminality is a long history of drug addiction. He has a conviction for a serious offence for which he served a term in imprisonment until 2007.
[82] Mr SJ had relapsed more than once after 2002, with evidence he was still influenced by drugs in 2004.
Protective factors not in contention
[83] The Department submits the following as positive factors in Mr SJ’s favour:
§His referees reflect positively on him;
§He has not committed any offences since April 2005;
§He has managed to stay drug free for 5 years during which time he has undertaken rehabilitation courses;
§He has undertaken voluntary community work and appears to have managed to hold down employment;
§He also holds or held a blue card. The Children’s Commissioner would have had access to Mr SJ’s criminal history.
Other Factors considered by the tribunal
[84] The tribunal considered further protective factors to those articulated by the Department above.
[85] Mr SM’s evidence that relapses in the early stages of the rehabilitation process were not uncommon was relevant to the Department’s contention that Mr SJ had not been candid in disclosing the number of relapses he had had. Mr BD supported Mr SM’s view that relapses are the norm, but that Mr SJ was now in the maintenance stage of rehabilitation, having moved successfully from the early stages of rehabilitation where relapses occur. The tribunal is mindful that the opinions of experienced professionals is critical if it is to form the view that Mr SJ has successfully rehabilitated. The evidence that Mr SJ is in the final maintenance stage of rehabilitation is a protective factor in considering real and appreciable risk.
[86] It was confirmed by these professionals that Mr SJ continues counselling and meetings with his sponsor and counsellor. While Mr MM and Mr M did not give evidence, the professional witnesses confirmed that this was an essential part of maintenance and that Mr SJ was committed to continue all elements of the process. Mr SJ’s insight into the need for such a commitment and his ongoing attendance can be perceived as a further protective factor.
[87] The tribunal is particularly mindful of the Department’s emphasis on the particular vulnerabilities faced by people with a disability where there is a history of violence and dishonesty offences existing. The evidence presented is that Mr SJ’s actions were directly related to his drug addiction over numerous years. In the past five years there is no evidence of theft or violent behaviour in Mr SJ’s rehabilitation or current working or personal lifestyle. Witnesses present a man who is empathetic, patient and caring. The absence of Mr SJ’s addiction and subsequent negative offending lifestyle warrants a fresh view of Mr SJ’s character and likelihood of causing harm to people with a disability.
Findings
[88] The tribunal has proceeded with this review on the basis that an assumed risk is present on the current facts. However, in weighing up the risk and protective factors it also looks to the balance of probabilities as to whether Mr SJ might cause harm to the best interests of people with a disability in the future. Relevantly, in our deliberations, is his case exceptional? The tribunal must be satisfied that there is not a real and appreciable risk to people with a disability.
[89] Mr SJ came from an abusive disadvantaged background with limited positive role models in his childhood and adolescence. He was introduced at an early age to illicit drugs against this background. He became estranged from his family and set out on a life of crime.
[90] Mr SJ’s history of offences, convictions and terms of imprisonment is not in contention. The offences involved violence and dishonesty. It is accepted however by the Department that he has managed to remain drug free for the last 5 years, during which time he has undertaken rehabilitation courses. The tribunal accepts Mr SJ’s relapses and re-offending went hand in hand. The tribunal is guided by the High Court decision of M v M (1988) 82 ALR 577 in that Mr SJ’s guilt or innocence is a secondary consideration to the determination of what is, in this case, in the best interests of people with a disability.
[91] In the past five years he has worked towards making amends to society. He has gained employment in the welfare sector helping at risk people and those in recovery.
[92] Mr SJ has a number of employers and colleagues in the therapeutic community and sector supporting vulnerable people, who support his review application. These witnesses and referees, including current managers, are aware of his criminal history. They have no qualms to support a firm belief that he has successfully rehabilitated and continues to take actions to remain on track. The tribunal is satisfied that management witnesses, with extensive experience in the disability sector and of vulnerable people, did not consider Mr SJ as a risk of harm to the best interests of people with a disability. Conversely his rehabilitated character and his personal experiences were considered an asset to the work undertaken within the current organisation. The tribunal is satisfied on their evidence that the transportability of the yellow card would not place people with a disability at risk.
[93] The tribunal does not place great weight on the Department’s contention that the lack of two potential witnesses giving evidence, Mr MM and Mr Mo, were of concern. This issue of concern was only raised in final submissions by counsel for the Department and at no time before or during the hearing process. The Department itself did not call for Mr MM or Mr M to give evidence. Their absence from the review process does not suggest of itself they would have something adverse to say regarding Mr SJ. It follows therefore, that it should not be assumed by implication that their absence suggests Mr SJ is in some way a risk. There is no evidence to suggest this to be the case.
[94] On the strength of the high regard in which Mr SJ is held by his current employer, Mr SJ has continued to work for the service, albeit in another program and not in the disability program. The tribunal finds that the Department did not pursue this issue as one of concern with Ms BC, who had informed a Departmental management employee of the service’s position and practice in April 2010. The Department itself was content with the ongoing proximity, if not direct contact to the program, of Mr SJ to people with a disability accessing the service.
[95] Mr SJ’s actions and offences over several years were at a time that he was influenced adversely by heroin and other illicit drug use. Mr SJ was a drug addict. Addiction implies that a person is no longer functioning as a normal human being because he or she is dependent upon heroin or other drugs to live. Mr SJ used drugs and lived a life of criminality in order to feed his addiction. The tribunal is satisfied that Mr SJ now has the capacity to make prudent decisions and choices and not be overborne by the addiction.
Conclusion
[96] The tribunal must ensure that people with a disability are best served in the decisions it makes on review. The tribunal has weighed up the evidence and applied the law to the findings of fact. In this case the tribunal has the capacity to consider factors beyond the criminal history evident in Mr SJ’s case and has done so. In all of its deliberations, the tribunal has focussed on the substantive question … would it harm the best interests of people with a disability for Mr SJ to be issued with a positive notice? The preface to that question is whether his case is an exceptional case.
[97] It may be argued that living an ordinary life, following a period of what could be considered ‘abnormal’ by experiencing an abusive childhood then committing criminal offences and being a drug addict , is not considered exceptional. In this case the tribunal does not consider this to be so.
[98] Mr SJ has successfully rehabilitated from a criminal and dangerous life as a drug addict and offender. He is currently in the ‘maintenance’ period of rehabilitation and this is confirmed by all of his referees from this therapeutic sector. Australia has in place a national drug strategy to support illicit drug users to become rehabilitated and to become positive citizens. That is, to come to live ordinary lives. There is a commitment within government, and the community, to provide resources to support and encourage drug users to come clean, to improve their lives and to contribute as productive citizens. Mr SJ has availed himself of these resources and the professionals within the services to curb his destructive lifestyle.
[99] Mr SJ wants to continue to work with and for people who have lived (or live) lives similar to his previous life. He is paving a career path as a carer and mentor. He has been doing so within a therapeutic environment with considerable support from management, colleagues and counsellors. His experiences, and his subsequent rehabilitation, are seen as an asset to the work he undertakes by employers who must analyse, interpret and finally decide if he is suitable to do the work he does. Vulnerable people, in this case people with a disability, receive services from these professionals. Their professional views are an essential protective factor in this case. Mr SJ’s regular commitments as a volunteer to speaking of his experiences to inspire others is supported and endorsed by reputable organisations within Queensland. They too are required to ensure vulnerable people are protected.
The tribunal accepts that Mr SJ’s addictions drove his actions in the past. The tribunal is satisfied that Mr SJ has overcome these addictions and that there are significant protective factors in place. Mr SJ has demonstrated insight into the impact of his actions on vulnerable people through a concerted rehabilitation effort, commenced in early 2000 with relapses acknowledged. Since 2005 Mr SJ has been on a path of recovery with considerable encouragement from people who have known him for several years.
[101]Mr SJ has demonstrated he has the capacity now to make prudent choices as he is no longer overborne by an addiction. Mr SJ is in a position to now provide assistance to people who are vulnerable, including people with a disability, and has set out on such a career path with full support of mentors, colleagues and a strong therapeutic community. The tribunal is satisfied at this juncture, on balance that Mr SJ presents as an exceptional case in which it would not harm the best interests of people with a disability for him to be issued with a positive notice.
[102]The Tribunal orders that the decision made on 8 April 2010 to issue a negative notice to Mr SJ is set aside and a positive notice is to be issued forthwith to Mr SJ.
[103]Reasons for non-publication order
[104]The tribunal is satisfied that the publication of the name of the applicant, the names of the witnesses and referees and the names of the organisations in this decision should be prohibited, pursuant to section 66 of the QCAT Act.
[105]The tribunal is able to act under subsection (1) on the application of a party to the proceeding or on its own initiative. In this case the tribunal proceeded on its own initiative. The Department did not oppose this decision when discussed in the hearing.
[106]The Department was in agreement that a non-publication order be made. While Mr SJ has been convicted of a serious offence and it could be argued that it is in the public interest for him to be identified, in this case he is supported and works within a confidential environment. The therapeutic community and the support it provides to numerous vulnerable people, including people with a disability, people with mental health issues and the homeless, deserves protection from imprudent exposure. People with a disability themselves access these services on an understanding that their identities remain a private part of the service agreement.
[107]The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of yellow card matters, the decisions made by the tribunal and the reasons behind the decisions. The publication of this decision and the reasons will occur, albeit de-identified.
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