CITATION:	TN v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 164	

PARTIES:	TN
(Applicant)	
	v	
	Chief Executive Officer, Public Safety Business Agency
(Respondent)	

APPLICATION NUMBER:	CML232-15	

MATTER TYPE:	Children’s matters 

HEARING DATE:	5 February 2016	

HEARD AT:	Maroochydore	

DECISION OF:	Member Quinlivan	

DELIVERED ON:	16 February 2016	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The decision of the Chief Executive Officer, Public Safety Business Agency to issue a negative notice to the applicant dated 19 June 2015 is set aside and a positive notice is to be issued to the applicant forthwith.
2.	The Tribunal prohibits the publication of the parties’ names and the names of the children, witnesses and organizations involved in this decision.	

CATCHWORDS:	Recent drug related offending – lack of serious or disqualifying offences – insight.

Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226, 360
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 66

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
Kent v Wilson [2000] VSC 98
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

APPEARANCES and REPRESENTATION:

APPLICANT:	TN
 	
RESPONDENT:	Kylie Heath representing Chief Executive Officer, Public Sector Business Agency

REASONS FOR DECISION

Background
[1]	TN is a 39 year old man who grew up in a fairly rural area in south east Queensland. He was the oldest child with younger brothers. His parents split up when he was 5 years old and he remembers spending regular time with both parents.
[2]	He has had 3 significant relationships in the last 20 years and he is the father of 2 boys currently aged 18 years and 13 years. Both boys live with their mothers but he has regular contact with them.
[3]	The applicant has been with his current partner for over 10 years. He says that during that time they have experienced various household scenarios, such as time apart working away, no kids, kids on weekends and kids living with them. He says that this has definitely strengthened their relationship knowing that together they can handle the challenges that having kids can throw at you.
[4]	He believes he has grown significantly as a person, a partner, a father and as a protector during this time and attributes his improvement to his partner for the confidence she instils in him.
[5]	The applicant was issued a positive notice and a Blue Card on 28 March 2012. On 2 March 2015 the Chief Executive received police information concerning the applicant. After receiving submissions from the applicant, on 19 June 2015 the respondent issued a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act).
[6]	On 21 August 2015, the applicant sought a review of that decision. He explained that in the last two years he had taken on a kinship role and had received excellent feedback from authorities, parents, friends and the children involved.
[7]	He outlined that his kinship caring role relates to his partner’s nephew and nieces. He says that they were having the children stay over for weekends and holidays and also they visited them in their own home.
[8]	In particular, he said that he was under the impression his partner could still provide the required respite care to her nephew and nieces if he wasn’t present during the respite. He had formed this view due to his partner and him applying for and receiving their Blue Cards at different times. He now understands that because they were assessed together, his partner cannot provide the respite care that is needed. This is regarded as the best option for all parties involved.
What does the law say?
[9]	The paramount consideration in an employment screening decision is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s well-being.
[10]	Section 221 of the Act provides that the Chief Executive must issue a positive notice to a person if the Chief Executive is aware of a conviction of the person for an offence other than a serious offence. If the Chief Executive is satisfied that it is an ‘exceptional case’ in which it would not be in the best interests of children to issue a positive notice, then the Chief Executive must issue a negative notice to the person.
[11]	The respondent submits that in order to issue a positive notice to the applicant the Tribunal must be satisfied, on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case does not exist.
[12]	The respondent points out that neither party bears an onus to prove that an exceptional case exists. The expression “exceptional case” is not defined in the Act and is a matter of discretion considering the merits of the case. What constitutes an exceptional case is a question of fact and degree.
[13]	The respondent referred to the Appeal Tribunal decision in Commissioner for Children and Young People and Child Guardian v FGC that states that “phrases like “exceptional case” must be considered in the context of the legislation which contains them, the intent and purpose of the legislation, and the interests of the persons whom it is… designed to protect: children”. The Appeal Tribunal also observed that “the proper approach to it is that… adopted by Philippides J. to consider its application in each particular case, unhampered by any special meaning or interpretation”.
[14]	The respondent notes that any hardship or prejudice suffered by the applicant is not a relevant consideration and the passage of time alone is not a determining factor in whether a case is exceptional.
[15]	Section 226 of the Act outlines the considerations that the Tribunal must have regard to in determining whether an exceptional case exists. In the Reasons document, the respondent outlines that the applicant has convictions for some concerning offences namely: produce dangerous drug, supply dangerous drug and possess dangerous drug.
[16]	None of the offences are defined as serious offences or disqualifying offences under the Act. These offences took place in 1993, 2000 and 2015. The respondent argues that the applicant’s recent offending constitutes a significant risk factor.
[17]	In February 2015 the applicant was convicted of possessing cocaine. The respondent argues that children have the right to be protected from exposure to drug involvement and to be cared for by persons who are not using drugs that may impair their ability to protect and promote children’s best interests. Continued drug use by the applicant would be likely to detract from his ability to provide a protective environment for children in his care and to allow him be an appropriate role model for them.
[18]	The circumstances of the applicant’s offending were that he was apprehended at a music festival at the RNA showgrounds with a small quantity of cocaine in his possession. He subsequently pleaded guilty and was placed on a four-month recognisance. No conviction was recorded and he was ordered to attend drug diversion.
[19]	The respondent notes that the applicant’s criminal history includes 8 convictions. He also breached a fine option order. The offences were committed from 1993 to 2015. The applicant was aged between 17 and 38 years during this time.
What is the Applicant’s position?
[20]	The Applicant appeared to be a personable, well presented man. He explained that he works in the construction industry. He said that in the last 10 years he has only worked for two employers for 5 years in each job. His current position is ongoing and he has attained the position of a supervisor where he is being encouraged to look at long term goals and responsibilities.
[21]	He readily admitted to regularly using drugs in his late teens and early 20s but claimed that once his children were born it became a very rare occurrence, maybe once or twice a year at a music festival or similar gathering.
[22]	He said that this was a combination of parental responsibility and financial reasons as he could never let himself or others be affected by anything while he was caring for children. He said that he never smokes cigarettes and along with his partner enforces a smoke-free household at all times. He believes in a healthy lifestyle including balanced diets, ample outdoor activities and alcohol in responsible moderation.
[23]	With respect to the recent offence in February 2015 he says that it has brought home to him that however rare these times are and even though children are not involved, families can still be affected. He says that since then he has regularly been going through times of guilt and shame because he has made it harder for his extended family to share the load and spend time together due to his loss of his Blue Card. He has sworn to himself to fix this by doing whatever is necessary to address the problem. 
[24]	He says that he has removed himself from possible trigger situations like music festivals and other gatherings where people are using substances. He completed the Court ordered drug diversion course which highlighted these triggers for him. He claimed that he has followed these principles since April 2015 because he would choose his family and their well-being over any social indulgence on his part. He is very happy with the direction he is heading for himself and his family.
[25]	The applicant gave evidence that prior to February 2015 his drug use had become very rare and unlikely to be more than once or twice a year. Since March 2015 he has avoided the triggers and has not attended a music festival or met up with people he knows to be using drugs.
[26]	He also emphasised that even when we was intending to use drugs previously, he would always ensure that it was on occasions when he was not responsible for the care of his own children or any other children. With respect to his role as a foster carer, he said that he understood that the Department was awaiting the outcome of his application implying that they were willing to allow him to resume his role as a kinship carer.
[27]	The applicant called one witness in support of his application who is the mother of his partner. While her knowledge of the applicant’s drug use was limited, she indicated that she has another daughter who has a drug addiction and she would know if the applicant was under the influence of drugs. She spoke glowingly of the applicant and highlighted the changes that have occurred. She described him as the son she didn’t have and that he is a hard-working responsible person who provides no end of help to the family. In particular, she referred to her grandson who has developed a worthwhile relationship with the applicant.
[28]	She described how the applicant has a great sense of discipline and can assist children by doing it the right way and giving good reasons for any action that he takes. She says that he doesn’t differentiate between children and treats all kids with respect.
[29]	The applicant also provided a psychology report from MA. MA was not able to give evidence due to work commitments and consequently the report can only be given limited weight. The respondent pointed out that the report appears to be a repeat of what the applicant has told her.
[30]	Similarly the applicant provided a reference from WM who could not give evidence for the same reasons. Again the respondent pointed out that WM makes positive observations but her objectivity could be limited because of her friendship with the applicant.
What are the relevant risk and protective factors?
[31]	In Maher’s case the Court of Appeal endorsed the approach in matters such as this, of identifying and balancing the relevant risk and protective factors in the case. 
[32]	The respondent submits that the following risk factors exist:
•	The presence of recent offences despite a gap in the applicant’s criminal history. Prior to February 2015 his last known offence was in November 2008, a gap about six years. It is concerning that the applicant has committed drug offences even earlier in his criminal history in 1993 and 2000.
•	The fact that the applicant has re-offended as recently as 2015 suggests he has not completely resolved all of the issues that lead to his involvement in drug related activities.
•	Despite having been dealt with by the Court for drug offences in 1993 and 2000, the applicant has not been deterred from committing further offences.
•	The 2015 offence involves a serious schedule 1 drug, cocaine.
•	The applicant was a father at the time of the recent offences, although the respondent acknowledges that there is no evidence to suggest that children were present at the time of the offences.
•	The recent offending suggests the applicant has not developed appropriate strategies to deal with the triggers for his offending or to support his long-term drug rehabilitation.
•	While the applicant asserts that he has been subject to random drug and alcohol testing he has not produced any evidence in the form of reports or results of any testing to support his claims.
•	The applicant admits that he continued to engage in recreational use of drugs until at least February 2015
•	There is inconsistency in the applicant’s evidence regarding his admitted use of drugs at music festivals and similar gatherings and his description to Blue Card Services of the 2015 drug offence as a “minor aberration”.
•	The applicant appears to reduce the seriousness of his offending based on the fact that children were not under his care at the time of the offences.
•	In terms of recidivism the report from the applicant’s psychologist does not sufficiently address the triggers to the applicant’s drug use or the practical tangible strategies he has in place to prevent a re-occurrence of the offending behaviour.
[33]	 The respondent also identified the following protective factors:
•	The applicant has been in a stable relationship with his partner for more than 10 years. He has two sons staged 18 and 13 from previous relationships. He has regular visits and phone contact with both.
•	For the past couple of years, the applicant and his partner have provided respite care for his partners 2 nieces and nephew on weekends and school holidays.
•	The applicant acknowledges in his Life Story that the incident in February 2015 and the consequences arising from it has brought home to him that even though children were not involved, families can still be affected by his behaviour.
•	It appears the applicant’s home life is of assistance in him maintaining a stable lifestyle.
•	The applicant has a history of stable employment. He has been a supervisor with his current employer for the last two years. An undated reference by his employer refers to his skills, leadership qualities and the respect he receives from his peers and other employees.
•	A requirement to remain drug-free in order to maintain his employment is a deterrent to the applicant engaging in regular drug use. However, there is still an issue regarding his, at least, occasional recreational drug use.
[34]	The applicant in his final submissions emphasized that in bringing his application he attempted at all times to be honest. He acknowledged that there are still opportunities available for him to use drugs but he hasn’t taken those opportunities up. He has refrained from going to music festivals and the like since February 2015.
[35]	He asserts that people he knows are aware that he is no longer using drugs and they accept it.
[36]	However, the overarching protective factors that the applicant identifies are his stable employment and the incentive he has to look after not only his own children but the children of his extended family.
[37]	He claims that he is trying to build a positive role model for his sons and a stable home life which he regards as very important. He says it has been a big shock to see how his behaviour has affected everyone around him and acknowledges that it probably should have occurred 20 years ago.
[38]	The applicant accepts that a Blue Card cannot be conditional but indicates that he is committed to providing a positive environment for all children that he comes in contact with.
Should the applicant be granted a Blue Card?
[39]	The applicant admits that he did a lot of wrong things when he was young. He submits that he now appreciates how his self indulgent behaviour can have far reaching consequences. He says that he now leads a very healthy life and he really wants to do the right thing.
[40]	The applicant is particularly proud of his achievements and the successes he has achieved in the construction industry. When commenting on the issue of transferability of a Blue Card he made it quite clear that he sees his future as being in the construction industry.
[41]	His motivation to obtain a Blue Card arises out of his desire to support his partner’s nephew and nieces in a kinship role. In that respect the Applicant demonstrated a clear understanding and insight into the importance of having the screening process and the inherent risks of providing a positive notice to persons with a history of drug use.
[42]	It is clear to the Tribunal that at the time of the decision by the Chief Executive to refuse to issue him a positive notice, the applicant reached a fork in the road. He could have abandoned his application and most likely lost all that he was seeking to achieve or he could have taken steps to continue in the direction he has chosen. 
[43]	The applicant’s immediate goals are to protect the safety and well-being of the children he is responsible for and to be a role model for children generally. 
[44]	The applicant's partner did not give evidence but supported the applicant throughout the first half of the hearing. They have been in a stable relationship for 10years.
[45]	The object of the legislation is to promote and protect the rights, interests and well-being of children in Queensland. In Commissioner for Children and Young People and Child Guardian v Maher & Anor it was confirmed that this is the paramount consideration to which all others must yield.
[46]	In this case I'm required to issue the applicant with a positive notice unless I'm satisfied that, with this consideration in mind and on the balance of probabilities, the case is an exceptional case. The central focus of the legislation is the protection of children. It is not a statute intended to impose additional punishment on a person who has a criminal history. Rather it is intended to protect children from harm.
[47]	I have had the benefit of hearing from and observing the applicant in person and also from observing his partner and her mother. I am satisfied that the applicant is conscious of the seriousness of his past offending. I have considered the various protective and risk factors, which have been identified in the course of the evidence.
[48]	I am satisfied that the applicant has demonstrated genuine insight into his offending and has set out on a course of action to address his behaviour. He appeared to me to have a sincere and mature attitude to his situation. 
[49]	I am concerned about the recent incident where the applicant again stepped over the line but I am satisfied that he is now even more conscious of the importance of containing his behaviour.
[50]	I'm satisfied that the applicant has developed strategies for dealing with situations that trigger a desire to engage in illegal drug taking and has demonstrated an appropriate commitment to supporting his partner’s nieces and nephew.
[51]	I am conscious that the effect of issuing the applicant with a Blue Card is that he is able to go out into the community and work in any child related employment or conduct any child related business as regulated by the Act.
[52]	I have come to the conclusion that this is not an exceptional case in which it would not be in the best interests of children to issue a positive notice to the Applicant. Therefore, I must issue a positive notice to the applicant.
[53]	The representative of the Chief Executive Officer submitted that this was a suitable matter in which to make a non-publication order, particularly since it makes reference to children in care.
[54]	I have considered the provisions of section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and I'm satisfied that it is in the interest of justice that the names of the parties, the children and the witnesses and the organizations involved this matter should be de-identified. 
[55]	The principles of openness and accountability can still be achieved by permitting the public to access details of this matter, the decision made by the Tribunal and the reasons behind the decision. The publication of this decision and the reasons will occur in a de-identified format.
[56]	The orders which I make are as follows:
i)	The decision of the Chief Executive Officer of the Public Safety Business Agency to issue a negative notice to the applicant dated 19 June 2015 is set aside and a positive notice is to be issued to the applicant forthwith.
ii)	The Tribunal prohibits the publication of the parties’ names and the names of the children, witnesses and organizations involved in this decision.