WCK v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 21
•25 January 2016
| CITATION: | WCK v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 21 | ||
| PARTIES: | WCK | ||
| v | |||
| Chief Executive Officer, Public Safety Business Agency | |||
| APPLICATION NUMBER: | CML202-15 | ||
| MATTER TYPE: | Children Matters | ||
| HEARING DATE: | 3 December 2015 | ||
| HEARD AT: | Townsville | ||
| DECISION OF: | W Pennell, Member | ||
| DELIVERED ON: | 25 January 2016 | ||
| DELIVERED AT: | Townsville | ||
| ORDERS MADE: | 1. The decision of the Chief Executive Officer, Public Safety Business Agency dated 23 July 2015 to issue a negative notice to WCK is set aside. 2. The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue WCK 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. | ||
| CATCHWORDS: | 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 (Qld) – s 5, s 6, s 8, s 266 and s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Kent v Wilson [2000] VSC 98 | |||
| APPEARANCES and REPRESENTATIONS: | |||
| APPLICANT: | Self Represented | ||
| RESPONDENT: | Ms Natalie Taylor, in-house Counsel for the Public Safety Business Agency | ||
REASONS FOR DECISION | |||
Introduction
The Applicant (WCK) is a 34 year old married man who lives with his wife and four children. Throughout his adult life, he has maintained steady employment. At the time of the hearing, he was employed in a full time capacity. Until his blue card was cancelled, he was actively involved as a coach with a local junior rugby league club.
The Respondent is the Chief Executive Officer, Public Safety Business Agency (the Agency). The Agency’s functions are to administer the scheme for the screening of people employed, or proposed to be employed in certain child related employment; and people carrying on, or proposing to carry on certain child related businesses; and to audit or monitor compliance with the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’))[1].
[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’), s 8.
The central focus of the Agency is the protection of children pursuant to the Working with Children Act. That focus is not intended to impose additional punishment on someone who has police or disciplinary information, but rather, to protect children and young people from harm[2].
[2]Second reading speech Commission for Children and Young People Bill 2000 (Qld) – p. 4391
The objects and principles of administrating the Working with Children Act are to promote and protect the rights, interests and wellbeing of children and young people[3]. Their welfare and best interests is paramount[4].
[3] Working with Children Act, s 5.
[4] Ibid, ss 6 and 360.
Review Jurisdiction
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’) allows a person affected by a reviewable decision to review that decision[5]. The review must be heard and decided by way of a fresh hearing, with the purpose of producing a correct and preferable decision based on the merits of the application[6].
[5]As provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’)
[6] QCAT Act, s 20.
In producing the correct and preferable decision, the Tribunal has the discretion to either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker, with the directions the Tribunal considers appropriate[7].
[7] Ibid, s 24.
The Application
WCK had earlier been issued with a positive notice and blue card[8]. He had a coaching role at a local junior rugby league club. On 23 March 2015, he appeared in the Magistrates Court and pleaded guilty to three drug related offences. Police had located a cannabis plant growing at his home, along with a small amount of cannabis secreted inside a room within his residence, and some utensils used to smoke cannabis.
[8] Blue card issued on 22 May 2013.
The Agency subsequently received notification from the police relating to the change in WCK’s criminal history. The Agency then issued a negative notice[9] to him on 21 April 2015. He was invited to make submissions to support his eligibility to hold a blue card. He made those submissions which were rejected by the Agency and his blue card was cancelled[10]. The Agency also provided him with reasons for that decision[11].
[9] Agency’s document number 6 at pages 038 – 042.
[10] On 23rd July 2015.
[11] Agency’s document number 5 at pages 033 – 037.
WCK’s position
Evidence at the hearing
WCK migrated to Australia at a young age with his family. His childhood was uneventful and he lived with his parents and his two brothers in a loving and stable family environment.
Growing up, his leisurely pursuits were playing rugby league and fishing. After he finished school, he started work as a tyre fitter for a year before starting his apprenticeship as a formwork carpenter. He told the Tribunal that he has always been a non-smoker, he worked hard during the week, but on the weekends he sometimes enjoyed drinking alcohol with his mates and occasionally he would smoke cannabis.
When he was aged about 20, he secured employment in a gold mine. He then remained working in the mining industry for the next 10 years, working at a various locations on a fly in – fly out (FIFO) basis. In that time, he did not use cannabis or any other illicit substances. The mining industries have a strict anti-drug and alcohol employment condition and he was subjected to regular testing at work, always returning negative results.
He met his wife about 10 years ago; they married and now have four children. When their fourth child was born in 2012, he made a decision for the benefit of his family that he would stop being a FIFO worker and gain employment locally.
In his material filed in the Tribunal, WCK discussed his current criminal history, and disclosed additional matters that he had appeared in court for. He said that when he was 18 he appeared in court for drink driving and on another occasion, he was in possession of an illegal fishing net. Neither of those matters appear to be have been referred to by the Agency, or at least they did not form part of the Agency’s determination.
In discussing his court conviction for the drug offences, he told the Tribunal that prior to that court appearance he had been under financial pressure for some time. To relieve his day-to-day stressors, he sometimes smoked a small amount of cannabis. He and his wife grow their own vegetables and it was out of his interest in gardening that he decided to experiment in the growing of a cannabis plant, but this was simply out of curiosity.
WCK said that since his court appearance for the drug offences, he has not used cannabis. To support this, he relied upon a drug screen result and a letter from his local doctor which showed that he returned a negative urine sample.
WCK told the Tribunal that he is heavily involved in his local junior rugby league club, his two sons play in junior teams and he coaches those teams. Not only does he coach for the benefit of his own children, it is his passion.
WCK called two witnesses to support his application. They were his wife and MR. Unsurprisingly, his wife had nothing but positive things to say about him. Notwithstanding that, it is accepted that she was genuine in her support of her husband. There is no criticism of her evidence, but very little weight is placed on what she said because of the obvious close relationship she has with him.
MR is a Registered Psychologist. WCK consulted with her. In outlining her qualifications, she said that she was experienced in writing reports for matters involving children issues, sexual offending behaviours, risks associated with substances abuse, offending behaviour programs and matters associated with offenders being released on bail or parole. MR provided a report of the findings arising from the consultation with WCK.
MR told the Tribunal that the consultation with WCK took place during a one hour session. In addition to the consultation, WCK provided MR with the police court brief (QP9) and the Agency’s report (Reasons for Decision) to assist in compiling a report.
MR’s report outlined that WCK has appropriate strategies to manage general life stressors. The report also says that he is able to implement boundaries between work and family life which enables him to successfully live a balanced lifestyle. WCK is reported to have the ability to self-reflect on his previous behaviour and now recognises the severity and intensity of the consequences of his offending behaviour, on not only himself, but also on his family and his role as a coach.
MR also assessed WCK as a low risk in relation to his drug taking behaviour. She added that the risk posed to children by WCK was minimal when he would be coaching considering a safe and supportive environment that is in place at the junior rugby league club.
When cross-examined at the hearing, MR told the Tribunal that in her opinion, WCK showed no impulsivity to engage in alcohol or drug use.
Other evidence
When conducting proceedings, the Tribunal has the discretion to inform itself in any way it considers appropriate[12]. WCK provided a copy of a letter under the hand of the President of the junior rugby league club of which he is involved with. A copy of that letter had earlier been forwarded to the Agency.
[12] QCAT Act, s 28.
The letter is in response to the Agency advising the junior rugby league club that WCK’s blue card had been cancelled[13]. The letter speaks in glowing terms of the involvement and commitment of WCK to the children of that club. The letter goes onto say that he is a valued member of that club. This is not disputed by the Agency and the Tribunal accepts the comments contained within the letter.
[13] Agency’s document number 7 at pages 043 – 044.
The Agency’s position
The Agency concedes that WCK demonstrates a number of protective factors. Those include his employment; his steady long term relationship with his wife, he being cognisant of the potential risk drug taking has to his role as a coach, and his regret that he let down the children he coached.
Although acknowledging the positive aspects associated with WCK, the Agency also had concerns. Those concerns surrounded WCK having cannabis within his house where children lived; along with WCK’s comments in his submission to the Agency about what he considered doing with the cannabis.
WCK had told the Agency that his wife’s mother was terminally ill with multiple myeloma cancer. He also said that he intended to convert the cannabis to hash oil, and then give this to his mother-in-law as a form of pain relief. WCK told the Tribunal that he never went ahead with this idea. No other evidence was produced at the Tribunal to suggest otherwise.
The Agency said that very little weight should be placed upon MR’s evidence and report because she had very limited time to accurately assess WCK’s risk potential and cannot assist the Tribunal with his progress. The Agency also submitted that the Tribunal should reject the drug screen result and the letter from WCK’s local doctor as it was inconclusive without clarification from the doctor.
The Tribunal accepts the Agency’s position with respect to the drug screen result, as it does not assist the Tribunal in reaching any decision of a positive or negative nature about WCK. However, MR’s experience and expertise allows her to arrive at the determination she did and that evidence is accepted.
What is an “exceptional case”?
There is nothing in the Working with Children Act which gives apparent support to the special meaning or construction of the definition of ‘exceptional circumstances’. However, guidance was given for an interpretation of the definition by Philippides J in Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [34][14] where he said ‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case …. All these matters are matters of discretion’.
[14] Adopting the approach of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200.
This interpretation has been adopted by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33] where it was accepted that the phrase is to be read in the particular context of the legislation in which it occurs.
In Kent v Wilson [2000] VSC 98, Hedigan J considered the term ‘exceptional circumstances’ in the context of a breach of community correction orders, and whether the Magistrate was able to conclude that the circumstances before him were “exceptional” and acknowledged that although that case related to a different statutory framework than which applied in Kent v Wilson, his comments provide useful guidance on what is “exceptional” as compared with what is not.
His Honour also commented that exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm. The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. 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[15].
[15] Kent v Wilson[2000] VSC 98 at [22].
Conclusion
Because WCK has been charged with and convicted of drug offences, there are considerations which must be applied when determining whether an exceptional case exists[16].
[16] Working with Children Act, s 226.
In reaching a determination and deciding whether there is an exceptional case for WCK, the Tribunal must also consider all of the circumstances. Regard must be had to, amongst other things, when the offences were committed, the nature of the offending behaviour, its relevance to WCK’s role as a coach, if the offence involved children; and anything else that the Tribunal reasonably considers relevant to the assessment of WCK’s eligibility.
In consideration of all those factors, the Tribunal must be satisfied whether the nature of WCK’s offending behaviour is such that there are exceptional circumstances to justify that it would not be in the best interests of children or young people if he was issued with a positive notice and a blue card.
None of WCK’s offences is deemed “serious offences” or “disqualifying offences” within the provisions of the Working with Children Act. The circumstances of the offences which were particularised to the Magistrates Court were in no way related to the nature of him coaching children at the local junior rugby league. Some serious concerns could have correctly been raised about his suitability had the evidence shown that WCK was a habitual user of drugs, or that his behaviour had a direct impact or involvement with children or young people.
The Tribunal accepts WCK has made positive progress, and that he has demonstrated regret for his actions and he has sought professional assistance to put in place some necessary changes in his life. This is a display of WCK’s ability to improve himself.
The Tribunal is satisfied that the existing circumstances of this matter do not render WCK’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 WCK.
The Tribunal is satisfied that the correct and preferable decision in this matter is to set aside the Agency’s decision and direct that a positive notice and blue card be issued to WCK.
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[17]. The making of such an Order can be on the Tribunal’s own initiative.
[17] 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:–
The decision of the Chief Executive Officer, Public Safety Business Agency dated 23 July 2015 to issue a negative notice to WCK is set aside.
The Tribunal directs that the Chief Executive Officer, Public Safety Business Agency issue WCK a positive notice and a blue card.
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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