WNC v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 430
•24 September 2015
| CITATION: | WNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 430 | ||
| PARTIES: | WNC (Applicant) | ||
| v | |||
| Chief Executive Officer, Public Safety Business Agency | |||
| APPLICATION NUMBER: | CML115-15 | ||
| MATTER TYPE: | Childrens matters | ||
| HEARING DATES: | 18 September 2015 | ||
| HEARD AT: | Townsville | ||
| DECISION OF: | Member Pennell | ||
| DELIVERED ON: | 24 September 2015 | ||
| DELIVERED AT: | Townsville | ||
| DECISION MADE: | 1. The decision of the Public Safety Business Agency dated 21 April 2015 to issue a negative notice to WNC is set aside and the Tribunal directs that a positive notice and a blue card be issued to WNC. 2. Pursuant to Section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal prohibits the publication of the names of the applicant, any witnesses appearing for the applicant and the locality of the applicant. | ||
| CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice and cancel a blue card – whether or not it is in the best interests of children to issue a positive notice – change in criminal history – whether exceptional circumstances exist. NON-PUBLICATION – identity of applicant – identity 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 and s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, 24 and 66 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Perry and Browns Patents (1930) 48 RPC 200 Kent v Wilson [2000] VSC 98 JAA, Re [2006] QCST 19 | |||
| APPEARANCES and REPRESENTATIONS: | |||
| APPLICANT: | Self Represented | ||
| RESPONDENT: | Ms Kylie Heath, in-house Counsel for the Public Safety Business Agency | ||
REASONS FOR DECISION | |||
Introduction
The Applicant (WNC) is a 20 year old unemployed child-care worker. She has been unemployed since the Respondent made a decision to issue a negative notice and cancel her blue card.
The Respondent is the Chief Executive Officer (CEO), Public Safety Business Agency (the Agency). The main functions of the CEO are to administer the scheme under chapter 8 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“Working with Children Act”) for screening of persons employed, or proposed to be employed in certain child related employment; and persons carrying on, or proposing to carry on certain child related businesses; and to audit or monitor compliance with that chapter.[1]
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 8.
The protection of children is the central focus of the Working with Children Act. The focus is not intended to impose additional punishment on someone who has police or disciplinary information, but rather, is intended to put gates around employment to protect children from harm.[2]
[2] Second reading speech Commission for Children and Young People Bill – p. 4391.
The object of the Working with Children Act is to promote and protect the rights, interests and wellbeing of children and young people[3] through a scheme requiring the development and implementation of risk management strategies; and the screening of persons employed in particular employment or carrying on particular businesses.
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.
The principles for the administration of the Working with Children Act are that the welfare and best interests of a child are paramount; and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[4]
[4] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6 and 360.
Review Jurisdiction
A person affected by a reviewable decision of the Agency may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), to the Tribunal for a review of that decision. The Tribunal must hear and decide the review by way of a fresh hearing on the merits of the application and the purpose of the review is to produce the correct and preferable decision.[5]
[5] QCAT Act s 20.
In carrying out its functions to produce the correct and preferable decision, the Tribunal may 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 for the decision, with the directions the Tribunal considers appropriate.[6]
[6] QCAT Act s 24.
The Application
WNC was initially issued with a positive notice and blue card on 8 June 2012, with a renewal on 28 February 2014.
On 2 October 2014 the Agency was advised by the Queensland Police Service of a change to WNC’s criminal history. WNC was invited by the Agency to make submissions to support her eligibility to hold a positive notice and blue card, which she did.
On 21 April 2015 the Agency issued a negative notice to WNC. The Agency also provided her with a written notice outlining its decision, the reasons for the decision and the relevant review information. WNC seeks a review the Agency’s decision.
WNC
In the initial part of her life, WNC lived at various locations with her mother including the Northern Territory. Sometime in 2000 WNC’s family arrived in Townsville. This was not an easy time for her, as at times circumstances meant that the Department of Child Safety became involved with her family. WNC’s mother then started a new relationship and moved the family to Western Australia with her partner. WNC was exposed to domestic violence between her mother and her partner, and she and her siblings were also subjected to acts of domestic violence.
In 2010 at the age of 15, WNC left home and moved back to Townsville where she lived with her grandmother (RW). She enrolled in school and it was there that she started a relationship with a fellow student.
WNC fell pregnant and at the young age of 16 she gave birth to her son. To her credit, she later returned to school and finished years 11 and 12. Her career ambitions were to become a nurse or be a childcare worker, but her real passion lay with the latter. After leaving school she obtained a Certificate in Child Care and started working in childcare centre. Despite her young age, she was committed to supporting her son, herself and her household through her work.
In early 2013 WNC arrived home to find one of her work colleagues with her partner and she discovered for the first time that her partner and her work colleague were having an affair, and their affair had been ongoing for some time. WNC became upset, many heated words were exchanged, and this led to a physical altercation from which police became involved. The allegations against WNC at the time was that she had used a pair of pliers to assault both her partner and her work colleague. Police charged WNC with two counts of Assault Occasioning Bodily Harm (AOBH).
WNC successfully defended the assault allegations relating to her partner and that charge was dismissed. She did not contest the assault charge of assaulting her work colleague, and was convicted of that offence. No conviction was recorded and she was fined and ordered to pay a small amount of compensation to her work colleague.
Prior to this incident, WNC had not suffered any mental health or stress related illnesses. Following her arrest, she sought professional assistance and consulted a doctor. She was diagnosed with depression and prescribed anti-depressant medication. Her condition improved over time and after about 12 months she weaned herself off the medication.
After the assault incident the Applicant returned to living with RW. Although the actual circumstances are unclear, there appears to have been an application made for a Domestic Violence Order (DVO) where RW is the nominated aggrieved and WNC is the nominated respondent. In the initial period of those proceedings, a Temporary Protection Order (TPO) was made by the court. One of the conditions of the TPO was that WNC was not to return to RW’s house to collect her belongings without a police officer being present.
On 30 September 2014, WNC returned to RW’s house. By doing this she contravened the TPO because she did not have a police officer accompany her. WNC’s belongings, including her bed had been placed out in the front yard of RW’s place. It was WNC’s concern that if her property went uncollected, her bed would have been left exposed to the weather. She said her intentions were only to collect her belongings. She later appeared in Court for contravening the TPO and received a fine. No conviction was recorded.
WNC is now in a relationship with her new partner. She says that enjoys the support from not only him, but also his family to get her life back on track after the separation from the father of her child.
Evidence
WNC called two witnesses to support her application. They were RW and SK.
RW is WNC’s grandmother. RW confirmed that she was the aggrieved person in the DVO which nominates WNC as the respondent. She also confirmed that there had been verbal arguments between her and WNC which prompted her to make and application for a DVO.
RW told the Tribunal that she did not enjoy the best of health and she had spent a significant portion of 2015 in hospital. She said that she had noticed a positive change in WNC since the making of the DVO and there is now far better rapport between WNC and her family. WNC is now more likely to seek out her family for support than she did previously.
RW said that that she was devastated to know that the DVO cost WNC her job. She went on to say that it is now her intention to make an application to the court for the revocation of the DVO, but had not yet done so because of her ill health.
SK’s son is presently in a relationship with WNC. SK’s evidence impressed the Tribunal. SK told the tribunal that during the time that she has known WNC, she has seen an improvement in her maturity, her insight and her methods in dealing with conflict. She added that WNC has managed to do this through the benefits she gained from consulting a doctor soon after being charged with assault.
SK went onto say that WNC’s strengths are that she is a helpful, caring and enthusiastic person and she has shown maturity and improved her coping skills when dealing with conflict or stressful situations.
The Agency’s position
The Agency concedes that WNC has demonstrated a number of protective factors[7] including three professional references which commented on her work in the childcare sector. The references spoke highly of her care and concern for the children in her care, and her professionalism.
[7] Agency’s Outline of Submissions at pp. 8 – 9.
The Agency acknowledged that WNC appears to have developed some insight into her offending behaviour and that insight was provided in WNC’s submissions to the Tribunal dated 9 July 2015, where she indicated that since the offences occurred, she:-
(a)has learnt quite valuable life lessons and have taken very positive steps to ensure that she is moving forward with her life and career;
(b)recently took on the position of Lead Educator in the toddler room and had enrolled to study for a Diploma of Children's Services;
(c)took on an equal shared cared arrangement for the care of her son on a week about basis and had proven to be a very efficient and caring mother;
(d)works on a permanent part-time basis (37.5 hours per week) in the toddler room and had developed very strong and nurturing relationships with the children in her care as well as their family members;
(e)acknowledged that she has made some mistakes in the past, but is dedicated to moving forward in a positive way; and
(f)sought assistance from her general practitioner following the assault incident, who developed a mental health plan for her.
Notwithstanding the points that are in favour of WNC, the Agency has concerns of her involvement in incidents of assaults and domestic violence, of which each incident arose out of the home environment.
Although the Agency may have concerns about those issues, it seems that this concern was not heightened until the Agency became aware of the contravention of the TPO. The following chronology explains this.
(a)On 8 June 2012 WNC was issued with her initial positive notice and a blue card.
(b)On 11 February 2013 WNC was charged with AOBH on her ex-partner and her former work colleague.
(c)On 20 December 2013 the charge against WNC for causing AOBH to her ex-partner is dismissed by the Court.
(d)On 28 February 2014 WNC was issued with a positive notice and a blue card.
(e)On 10 June 2014 WNC pleaded guilty to causing AOBH to her work colleague. She received a fine and no conviction was recorded.
(f)On 30 September 2014 WNC contravened a TPO.
(g)On 2 October 2014 the Agency was advised by the Queensland Police Service of a change to WNC's criminal history.
(h)On 21 October 2014 WNC pleaded guilty to contravening a TPO. She received a fine and no conviction was recorded.
(i)On 21 April 2015 the Agency makes a decision to issue a positive notice to WNC and cancel her blue card.
The Agency acknowledged[8] that there was the medical report of Dr Aziz dated 30 June 2015 which supported WNC’s evidence that she sought assistance for her mental health the day after the assault incident and she had been counselled extensively over the following 12 months, and prescribed antidepressants and anti-anxiety medication.
[8] Agency’s Outline of Submissions at pp. 11 – 12.
The Doctor’s report also indicated that WNC had showed "a huge improvement" since the assault incident.
The Agency also noted that Dr Aziz’s latest report dated 30 June 2015 indicated that WNC is now equipped with better coping mechanisms to help deal with such a situation as well as resources such as Dr Aziz, and access to other mental healthcare professionals, should the need arise.
The Agency commented that a history of anxiety or depression, of itself, in no way precludes a person being eligible to hold a blue card, and WNC is to be commended for seeking treatment following the February 2013 incident. However, the Agency went on to say that the nature of her coping mechanisms and the practical, tangible strategies she has developed since that time to cope when faced with situations of conflict or stress are critical[9] and that the evidence before the Tribunal is unclear as to the nature, frequency and duration of the counselling sessions undertaken and what coping mechanisms WNC may have since developed to deal with a similar situation in the future.
[9] Agency’s Outline of Submissions at p.12.
The Agency’s ultimate position seems to be that the risk factors identified in the evidence raises concerns regarding WNC’s ability to make appropriate behavioural decisions and demonstrate stable and appropriate role modelling to children at this time, and on that basis it says that WNC’s case is an exceptional one such that it would not be in the best interests of children and young people for her to be issued with a positive notice and a blue card.
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 Maher’s case[10] 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”.
[10]Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [34] 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 FGC’s case[11] where it was accepted that the phrase is to be read in the particular context of the legislation in which it occurs.
[11]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [33].
The Appeal Tribunal was not persuaded that the legislature intended to give it any special or unusual meaning, it was merely a term of common use in everyday language. Any consideration to be given to it, and its application in any particular case should be unhampered by any special meaning or interpretation.
In Kent v Wilson,[12] 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.” Hedigan J acknowledged that although that case related to a different statutory framework than which applied in Kent v Wilson (supra), his comments provide useful guidance on what is “exceptional” as compared with what is not. His Honour’s comments also assist in providing guidance on how to assess the facts of a matter in the context of the legislative and policy framework within which an Act is enacted and operates when examining the issue of whether or not a case is “exceptional”.[13]
[12] [2000] VSC 98.
[13] JAA, Re [2006] QCST 19 at [23].
Hedigan J 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. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. 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 are the relevant factors.[14]
[14] Kent v Wilson[2000] VSC 98 at [22].
In making a determination and deciding whether there is an exceptional case for WNC, the Agency must consider all of the circumstances, and had regard to, amongst other things, when the offences were committed, the nature of the offending behaviour, its relevance to WNC’s employment, if the offence involved children; and anything else that the Agency reasonably considers relevant to the assessment of WNC’s eligibility.
Conclusion
The Tribunal must be satisfied whether the nature of WNC’s offending behaviour is such that there are exceptional circumstances to justify reaching a decision that it would not be in the best interests of children or young people if a positive notice and a blue card was issued to her.
None of WNC’s offences are deemed “serious offences” or “disqualifying offences” within the provisions of the Working with Children Act. The circumstances of the offences outlined earlier involve adults, and which the circumstances were particularised and are in no way related to the nature of her employment.
In reaching its determination that WNC’s case was an exceptional one, the Agency considered all of the material, had regard to the entries on her criminal history and said that her offending raised concerns as to her ability to manage conflict in an appropriate way which indicated that she may not present as an appropriate role model to children at this time.[15] The context of the use of the words ‘may not’ and ‘at this time’ suggests that the circumstances of WNC’s case are not considered by the Agency to be so disqualifying that she is not a person suitable to be issued with a positive notice or a blue card.
[15] Agency’s Reasons for its decision at p. 6.
It is as Hedigan J commented in Kent v Wilson (supra), that in WNC’s case, the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. The circumstances of WNC’s rehabilitation with the assistance with her medical practitioner is a reasonable anticipation or expectation or a person is remorseful and determined to improve her past behaviours.
Notwithstanding that, NDC’s most recent offence[16] was of a concern to the Tribunal in that she disobeyed a Court Order. Although this offence cannot be disregarded when reaching any determination of the matter, the Tribunal does consider that the nature of the allegations arising out of the offence are at the lower end of the scale for such offences. It seems that the Court also considered the contravention of the TPO to be a minor matter and this is reflected by its decision to order: No conviction recorded and fined $300.
[16] Breaching a TPO made in the Magistrates Court.
The Tribunal accepts the evidence of RW and SK that WNC has made positive progress and changes in her life. WNC has displayed an ability to improve herself, she has engaged in a rehabilitation process and has insight into the stressors in her life. She has also displayed knowledge of how to deal with stress related situations should such a situation arise.
The Agency commented that a history of anxiety or depression, of itself, in no way precludes a person being eligible to hold a blue card, and WNC is to be commended for seeking treatment following the February 2013 assault incident. However, the Agency went on to say that the nature of her coping mechanisms and the practical, tangible strategies she has developed since that time to cope when faced with situations of conflict or stress are critical[17] and that the evidence before the Tribunal is unclear as to the nature, frequency and duration of the counselling sessions undertaken and what coping mechanisms WNC may have since developed to deal with a similar situation in the future.
[17] Agency’s Outline of Submissions at p.12.
The oral evidence of WNC, RW and SK to the Tribunal suggests that WNC had attended upon her doctor, been prescribed medication and has shown insight into her actions and behaviour and is now better equipped to deal with stressful situations or ones which may invoke anxiety. None of those points were refuted during the hearing.
The Tribunal is satisfied that there is no presence of exceptional circumstances which necessarily render WNC’s case as an exceptional one. The Tribunal also is satisfied that 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 WNC.
The Tribunal is satisfied that the correct and preferable decision in this matter is to set aside the Agency’s decision to cancel WNC’s positive notice and blue card and issue a negative notice.
Non-Publication Order
The QCAT Act provides the Tribunal with power to make non-publication orders.[18] The Tribunal may make an Order prohibiting the publication of the contents of any document or thing produced to the Tribunal, or evidence given before the Tribunal, and/or information that might enable a person who appeared before the Tribunal to be identified.
[18] QCAT Act s 66.
The making of such an Order by the Tribunal may be upon the application of a party to the proceeding, or on the Tribunal’s own initiative. In this case the Agency has asked the Tribunal to make a non-publication Order.[19]
[19] Agency’s Outline of Submissions at pp. 13 – 14.
The Tribunal can only make the Order if the Tribunal considers that the making of the Order is necessary to avoid:–
(a) interfering with the proper administration of justice; or
(b) endangering the physical or mental health or safety of a person; or
(c) offending public decency or morality; or
(d) publishing confidential information; or
(e) publishing information that would be contrary to public interest; or
(f) For any other reason in the interests of justice.
The Tribunal is satisfied that that a non-publication Order is necessary to avoid the publication of confidential information.
Decision
The decision of the Tribunal is that –
1. The decision of the Public Safety Business Agency dated 21 April 2015 to issue a negative notice to WNC is set aside and the Tribunal directs that a positive notice and a blue card be issued to WNC.
2. 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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