Ward v Chief Executive, Public Safety Business Agency
[2014] QCAT 399
| CITATION: | Ward v Chief Executive, Public Safety Business Agency [2014] QCAT 399 |
| PARTIES: | Nicholas John Ward (Applicant) |
| v | |
| Chief Executive, Public Safety Business Agency (Respondent) |
| APPLICATION NUMBER: | CML030-14 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 15 July 2014 |
| HEARD AT: | Ayr |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 5 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) made on 29 January 2014 to issue a negative notice to Nicholas Ward is set aside and the Chief Executive is to issue a positive notice to Nicholas Ward. |
| CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW – where applicant seeks a review of the Chief Executive’s decision to issue a negative notice – where evidence of criminal history – whether an exceptional case exists Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 24 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Nicholas Ward, self represented |
| RESPONDENT: | Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) represented by Mr Craig Capper, Senior Legal Officer (in-house) |
REASONS FOR DECISION
Mr Ward requires a blue card to enable him to work as a volunteer at his local surf life saving club and the rugby union club.
Mr Ward works as a volunteer parent at the local surf life saving club and would like to work as a manager for the club. Mr Ward also has many years experience as a rugby player and would like to coach and mentor young people who also play rugby.
Mr Ward made an application to the Chief Executive (formerly the Commissioner for Children and Young People and Child Guardian) for a blue card on 26 September 2013.
The relevant legislation Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act),[1] requires any person employed or carrying on a particular business, as prescribed under the Act, to ‘undergo screening’. This may include the Chief Executive obtaining information from the Queensland Police Service (QPS) about a person applying for a blue card including any history of criminal offending.
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) commenced on 1 July 2014 and replaces the Commission for Children and Young People and Child Guardian Act 2000 (Qld).
The Chief Executive received information from the QPS that included information about a history of criminal offences concerning offending behaviour in New South Wales (NSW) from the years 2003 to 2011, inclusive. Mr Ward moved from NSW to live in North Queensland in January 2013.
The offending behaviour includes offences of wilful and obscene exposure in or near a public place or school in the year 2003 and 2011. Mr Ward pleaded guilty to both offences on 17 April 2003 and 2 December 2011, respectively. No convictions were recorded in relation to both offences and fines were imposed for both offences.
Mr Ward also has a criminal offence for drink driving in 2006 for which he received a period of community service and disqualification (from driving) for 3 years. There is a further offence related to driving whilst disqualified from holding a licence on 6 July 2009 resulting in a period of good behaviour (bond) for 12 months.
On 19 June 2006, Mr Ward was convicted for the offence of common assault. Mr Ward was fined $600.00 and a conviction was recorded.
Mr Ward was given an opportunity to respond to the material obtained by the Chief Executive in relation to the offending behaviour. The Chief Executive, after considering the material provided by Mr Ward, determined that Mr Ward’s application for a blue card be refused and issued a negative notice accordingly.
Mr Ward seeks a review of the decision made by the Chief Executive. He relies on written statements and a life story prepared by him. Mr Ward also relies on statements prepared by witnesses including friends and other members of his local community who attest to his good character since the offending behaviour and his voluntary work with the local surf life saving club and the rugby union club. Mr Ward’s witnesses, James Morison, Glen Neill, Gildo Dalle Cort, Brendan Casey and Terry Lund gave evidence by telephone at the hearing.
Mr Ward conceded at the hearing that he did not provide sufficient material to the Chief Executive relevant to the circumstances of his offending behaviour and his application for a blue card. Mr Ward was given an opportunity to answer questions at the hearing about his application including his history of offending behaviour.
What is an “exceptional case”?
The offending behaviour relevant to the issuing of a negative notice by the Chief Executive was not a serious offence for the purposes of section 221 of the Working with Children Act. The Chief Executive must therefore issue a positive notice to Mr Ward unless satisfied that this is an “exceptional case” in that it would not be in the best interests of children for Mr Ward to hold a blue card.
The Working with Children Act does not define the meaning of an “exceptional case” but does refer to relevant factors that the Tribunal, standing in the shoes of the Chief Executive decision maker, must consider in determining whether Mr Ward’s application for a blue card is an exceptional case. Some of the factors include when the offence was committed or is alleged to have been committed; the nature of the offence and is relevance to employment or carrying on a business that involves or may involve children; and anything else relating to the commission of the offence that the Chief Executive or Tribunal on review reasonably consider to be relevant.[2]
[2]Working with Children Act s 226.
The Tribunal on review must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.[3]
[3]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [29].
The Tribunal must consider the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children in Queensland’.[4]
[4]Working with Children Act s 5.
Relevant factors in considering whether this is an exceptional case
The Tribunal has identified the following factors as being relevant to the exercise of discretion under the Working with Children Act to determine whether this is an exceptional case.
a) Nature of the offending behaviour
The NSW police material reports information relevant to Mr Ward’s offending behaviour on 24 December 2002 that took place at approximately 1:30 am. Mr Ward is reported to have removed his shoes, shirt and shorts revealing his nakedness towards three to four women who were walking diagonally across the road some 10 metres away. The area is reported to have been well lit and there were other retail shops in the area. Mr Ward is reported to have told police that he was ‘only having fun’ and was at the time he was charged by police ‘moderately affected by intoxicating liquor’.[5]
[5]Material filed by the Chief Executive in accordance with s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), p CCYPCG – 12.
In giving his evidence at the hearing, Mr Ward stated that the offending behaviour was significantly impacted by the use of alcohol and he stated that without alcohol it would not have happened. Mr Ward stated that he did not know what he was thinking at the time of the offending behaviour stating that he was ‘an idiot’ and it was ‘childish behaviour’. Mr Ward also stated that he engaged in the behaviour with his ‘mates’ and that it was a ‘dare’.
In relation to the offending behaviour on 13 March 2011 Mr Ward stated, in giving his evidence at the hearing, that he was affected by alcohol. The NSW police information refers to Mr Ward drinking with friends at the Tottenham show ground and at approximately 11:20pm a female complainant approached police stating that Mr Ward was ‘flashing his penis out at the public and that it was disgusting and she was offended by his behaviour’.[6] Mr Ward was seen by police to have his penis and testicles outside of his pants and in plain view of other people at the races. The NSW police information reports that at the time of the offending behaviour Mr Ward was reported by police to be ‘clearly well affected by alcohol’.
[6]Ibid, CCYPCG – 007.
Mr Ward in giving his evidence at the hearing acknowledges that his actions at the Tottenham showground were not appropriate. Mr Ward stated that he does not do anything like that anymore. Mr Ward stated that what he did was ‘stupid’ and that ‘no one gets any benefit out of it”.
Mr Ward also gave evidence that since the most recent offending behaviour in 2011 he has grown up as a person and in particular he has taken on a role in his daughter’s life and does not want his daughter to see something ‘stupid’.
Mr Ward also stated in giving his evidence at the hearing that every time he has done something referred to him as ‘silly’ he has had ‘a few beers’.
The offence of common assault took place on 5 January 2006 at approximately 8:45 pm and involved an incident between Mr Ward and his stepmother. The NSW police information refers to Mr Ward spitting on the back of the complainant’s (his stepmother) hair and in the same incident a short time later Mr Ward has thrown beer down the front of the complainant’s blouse prior to throwing the empty glass at her. The Police information reports:
The victim further alleges that [Mr Ward] has at that moment has [sic] thrown beer down the front of her blouse prior to throwing the empty glass at her. The glass has stuck the victim in the top left shoulder leaving evidence of slight red marks.[7]
[7]Section 21 material, CCYPCG – 010.
At the hearing Mr Ward gave evidence that he did not intentionally spit at the complainant (his stepmother) stating that after an exchange of some words referred to in the NSW police information as ‘derogatory’ and ‘inappropriate remarks’ (made by Mr Ward), Mr Ward’s stepmother walked passed him as he spat outside in the smoking area. Mr Ward also denies that he poured beer down his stepmother’s blouse and that he threw a glass at her. Mr Ward in giving his evidence at the hearing accepts that the incident happened during a time when he had been drinking; and in relation to the relationship with his stepmother, Mr Ward refers (in his life story) to a history of ‘emotional trauma’ between him and his father and stepmother.[8] Mr Ward states in his written material:
I admitted that I spat in [the complainant’s] general direction, with no intention of it landing on her, I did respond by trying to wipe the spit out of her hair, which was not reciprocated well. I was charged with common assault, however, in my defence, I was young and upset at how she had treated my siblings and was speaking about by daughter.[9]
[8]Exhibit marked “1”.
[9]Exhibit marked “1”.
The Tribunal accepts the NSW police information that reports the particulars of the offending behaviour for which Mr Ward was convicted. The police information reports and the Tribunal accepts that as a result of the offending behaviour the complainant (Mr Ward’s stepmother) had an injury described as a ‘slight’ red mark to her shoulder.
Are there exceptional circumstances before the Tribunal and therefore an “exceptional case” exists?
Mr Ward has a history of offending behaviour relating to incidents that took place in 2002, 2006 and 2011 and in relation to the offences of wilful and obscene exposure in a public place, common assault and driving with ‘high range PCA (prescribed concentration of alcohol)’, Mr Ward was affected by alcohol at the time of the offending behaviour.
The Tribunal is satisfied that Mr Ward is remorseful for his actions giving rise to the offending behaviour and has demonstrated insight into his offending behaviour. Mr Ward acknowledges that the behaviour relating to wilful and obscene exposure in a public place was ‘stupid’ and that his behaviour took place during a time when he had been drinking with his ‘mates’. Mr Ward gave evidence at the hearing that he no longer drinks excessive amounts of alcohol and has changed his life since moving from NSW to live in North Queensland.
The Tribunal accepts Mr Ward’s evidence that he has changed his priorities in relation to spending time with his daughter since moving to North Queensland. Mr Ward has a daughter from a previous relationship who lives in NSW and Mr Ward gave evidence at the hearing that he saves his money to visit his daughter in NSW and also spends time with his young daughter in North Queensland. Mr Ward and the mother of his young daughter living in North Queensland ceased their relationship approximately one year after moving to North Queensland in January 2013.
Mr Ward’s application for a blue card is supported by his witnesses who attest to his good character and his positive relationships with both of his daughters. Mr Morison is a friend and former employer and has known Mr Ward for approximately 15 years. Mr Morison gave evidence at the hearing about Mr Ward’s positive interactions with his children stating that he has a ‘very caring nature’.
Mr Neil is a friend and former employer who has known Mr Ward for approximately 2 to 3 years. Mr Neil stated at the hearing that Mr Ward has ‘matured’ in the last couple of years. Mr Neil also gave evidence about Mr Ward’s positive interactions with his children and Mr Neil’s own children. Mr Neil also stated that after the offending behaviour in 2011 he noticed a change in Mr Ward stating that there was (in Mr Ward): ‘maturity as well as taking life seriously’.
Mr Ward gave evidence in relation to stressors in his life since moving to North Queensland that he says have not resulted in him reoffending or using alcohol in an excessive manner. For example, Mr Ward broke his leg in about April 2013 and during this time was unable to play rugby at the local rugby union club. Mr Ward’s relationship with his former partner and mother of his young daughter also broke down in February 2014.
The Tribunal accepts Mr Ward’s evidence that since moving to North Queensland he has engaged in activities as a volunteer within the local community including his daughter’s school, the local surf life saving club and the rugby union club.
Mr Lund is the President of the Ayr Surf Life Saving Club and has known Mr Ward for approximately two years. Mr Lund gave evidence at the hearing about Mr Ward’s work as a volunteer parent and stated that he is a dedicated member and volunteer of the club. Mr Lund stated that Mr Ward recently completed his bronze medallion and practices what life saving promotes. In relation to Mr Ward reoffending, Mr Lund stated that if something happened within the local community he would hear about it. Mr Lund stated that he had never heard or seen Mr Ward intoxicated or acting ‘out of sorts’.
The Tribunal also heard evidence from Mr Casey who has known Mr Ward for approximately two years through their rugby union club. When referred to the history of offending behaviour at the hearing, Mr Casey stated that having heard the history of behaviour involving alcohol this was not the same Mr Ward that he knows today. Mr Casey stated that the Mr Ward he knows has not ‘shown any of those attributes’ stating that he has seen him at the rugby union club and the life saving club and would fully trust him with his children, particularly his youngest son. Mr Casey also corroborates Mr Ward’s evidence that he no longer drinks excessively. Mr Casey referred to a fundraising event in July 2013 where Mr Ward was drinking. Mr Casey stated that Mr Ward was not loud or aggressive and Mr Casey drove Mr Ward home as he had had too many drinks. Mr Casey stated that Mr Ward thanked him for dropping him home and was grateful to have a night like that at the club given that he was a new member.
Mr Casey stated at the hearing that Ayr is a small community and if anything in relation to violent or aggressive behaviour took place involving Mr Ward he would know about it. Mr Casey also gave evidence in relation to Mr Ward’s interactions with children stating that Mr Ward has the attributes that enable him to interact with younger children and he would be valuable to the local rugby union club. Mr Casey has also seen Mr Ward interact with his daughter and has also seen him in situations where alcohol was available at the club and Mr Ward did not drink.
Mr Dalle Cort also corroborates Mr Ward’s evidence that he no longer drinks alcohol and engages in ‘stupid’ activities. Mr Dalle Cort has known Mr Ward for approximately 2 years and gave evidence at the hearing that he has seen Mr Ward on numerous occasions enjoy alcohol and not engage in activities such as his previous offending behaviour of wilful and obscene exposure and common assault. Mr Dalle Cort also stated that having heard the history of Mr Ward’s offending behaviour in his opinion this is not consistent with the man (Mr Ward) he has come to know. Mr Dalle Cort also gave evidence in relation to his observations of Mr Ward at the local rugby club and the local surf life saving club. Mr Dalle Cort stated that Mr Ward is well skilled and his nature with people is ‘fantastic’.
The Tribunal accepts Mr Ward’s evidence that he has changed his life since moving to North Queensland and that he no longer drinks excessive amounts of alcohol as he has done previously in relation to his offending behaviour. The Tribunal satisfied that the risk of Mr Ward reoffending is low and accepts Mr Ward’s evidence that since moving to North Queensland in January 2013 he has had stressors in his life and he has not resorted to drinking alcohol excessively and reoffending in the context of engaging in activities such as wilfully exposing himself in public or engaging in aggressive behaviour.
In relation to the criminal offence of common assault, the Tribunal accepts Mr Ward’s evidence that the offending behaviour took place in the context of family disharmony and that Mr Ward had been drinking at the time of the incident.
The Tribunal found Mr Ward to be honest and truthful in giving his evidence at the hearing. The Tribunal is satisfied that Mr Ward has the support of various members of the local community that he has met since moving to North Queensland through the local surf life saving club and the rugby union club.
The Tribunal is not satisfied having considered all of the evidence and relevant factors including the concerns and risks identified by the Chief Executive that this is an exceptional case and that it would not be in the best interests of children for the Chief Executive to issue a positive notice. The appropriate order is that the decision made by the Chief Executive to issue a negative notice be set aside and a positive notice issued to Mr Ward.
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