Director-General, Department of Justice and Attorney-General v GV [2024] QCATA 3

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director-General, Department of Justice and Attorney- General v GV [2024] QCATA 3 PARTIES: DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (Applicant/Appellant) v GV (Respondent) APPLICATION NO/S: APL046-23 ORIGINATING APPLICATION NO/S: CML510-20 MATTER TYPE: Appeals DELIVERED ON: 30 October 2023 (orders) 29 January 2024 (reasons) HEARING DATE: 13 October 2023 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: The appeal is allowed and the Order of the Tribunal is set aside and remitted to the Queensland Civil and Administrative Tribunal for re-hearing before a different Member. The Appellant’s application to admit additional material is allowed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY TRIBUNALS – PROCEDURAL ASPECTS OF EVIDENCE – SUBPOENAS AND NOTICE TO PRODUCE AT HEARING – OTHER MATTERS – where the appellant appeals the decision of the Tribunal at first instance determining the respondent’s case as not an exceptional case in which the best interests of children would be harmed if a positive notice (blue card) were issued to him – where the ground of appeal was that the Tribunal failed to adjourn and issue notices of production with respect to a potential sexual allegation against the respondent – where the respondent argued that there was no evidence to support an adjournment – whether by the contended failure the Tribunal had not properly considered the mandatory factors at s 228 of the Working with Children (Risk Management and Screening Act 2000 (Qld) or placed -- 1 of 9 -- 2 sufficient weight on the paramountcy of the welfare and best interests of children under s 6 of the Act – whether the purported failure amounted to a denial of procedural fairness Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 228 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Director-General, Department of Justice and Attorney- General v PML [2021] QCATA 51 SWJ v Department of Justice and Attorney-General [2022] QCATA 119 APPEARANCES & REPRESENTATION: Applicant: S Francis, Principal Lawyer of Crown Law, and E Berg, Legal Officer of the Department of Justice and Attorney- General Respondent: Self-represented REASONS FOR DECISION Background [1] On 16 November 2020, a negative notice was issued to the Respondent pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the WWC Act’). The Respondent made application to QCAT, which reviewed the decision to issue a negative notice. [2] The application was heard by a member of QCAT on the 7th and 20th of September 2022. On 24 January 2023, the Member delivered her decision that: Weighing all of these matters, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that GV’s case, is not an exceptional case in which the best interests of children would be harmed if a positive notice was issued. [3] The Appellant appeals this decision. Appeal [4] The Appellant appeals to the Appeal Tribunal pursuant to s 142(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Leave is not required as the proceeding is not for a minor civil dispute. [5] The Appellant notes in her submission that she accepts the findings made by the learned Member about material filed in the hearing and the evidence given by witnesses. She further notes, “it is accepted that apart from the failure to take into account the relevant consideration the Learned Member’s reasoning was reasonably open and within her discretion.” -- 2 of 9 -- 3 [6] There is only one ground of appeal, i.e.: … that the Learned Member erred by failing to take into account a relevant consideration and in doing so failed to ensure all available material about that relevant consideration was before the Tribunal prior to making her decision. The relevant consideration being, evidence given in the course of day one of the hearing, of a potential allegation of sexual misconduct against a child having been made recently against the Respondent. The Appellant was only made aware of this information in the course of evidence given on day one. [7] In the course of the hearing, a witness, Mr T, a psychologist called by the Respondent, was asked by the Appellant “are you aware of any other allegations that have been made about [GV]?” His reply: “I think there was some sort of mention just recently of – of some sort of not – not a formal allegation but a foreshadowing of an allegation of some sexual abuse, but I don't know the details of it.” The witness was then asked “is this something that [GV] has reported to you?” To which the witness replied “Yes. Yes. He told me about that, yes.” [8] The Respondent was questioned about this as follows: “could you please clarify what you understood [Mr T] was talking about in relation to the foreshadowing of the sexual abuse allegations?”, to which the Respondent replied: I can tell you what that's about, but I'm going to – with the member’s permission, I would like to discuss that when Bishop [R] is called because he knows about that. It – it's an allegation – it is an allegation, but he knows about that, so I would rather keep it till then with your permission, Member.1 [9] The Respondent confirmed in response to a question from the learned Member that this was a recent allegation within the last six weeks and was not contained in the material filed to be relied on at the hearing.2 [10] The Respondent said he was aware that the insurance company for the church was alerted to a possible sexual allegation of a previous student against him in response to a question by the learned Member, and the Respondent confirmed that he had not been approached by police and was not aware of any ongoing police investigation.3 The Respondent further said “and I even – the other thing I can mention is that I wrote to the lawyers for this young man and said what is the allegation, and that was a month ago and I haven't heard from them.”4 [11] After some discussion about the issue, the learned Member said: I was going to proceed with it, but I don't think that, considering the privilege against self-incrimination, that it's appropriate to consider that at – that particular aspect today until [GV]’s had an opportunity to get some legal advice in relation to that and possibly the respondent to making the inquiries. It is the case, I understand, that the respondent can obtain information about investigations with no charges being laid, is that correct?5 [12] On the second hearing date after the matter was adjourned, the Appellant said: 1 Transcript of day one, page 83, lines 28–33. 2 Transcript day one, page 84, lines 11–13. 3 Transcript day one, page 85, lines 23–29. 4 Transcript day one, page 86, lines 7–9. 5 Transcript day one, page 95, lines 5–10. -- 3 of 9 -- 4 … on the first day of the hearing an allegation – or it was referred to as a foreshadowed allegation – came to light from the oral testimony of [GV]'s psychologist, Mr [T], regarding alleged child sexual abuse by [GV]. Police investigative information is narrowly defined in the Working with Children Act under section 305 and the respondent has the power to obtain investigative information from the Queensland Police. Inquiries have been made by the respondent with a Queensland Police contact – indicate that information from New South Wales about this issue cannot be obtained by the respondent from Queensland Police and inquiries would need to be made directly with New South Wales Police.6 [13] The Respondent submitted that the foreshadowed allegation would fall within ss 221(3)(f) and 228 of the WWC Act relating to other information about GV being reasonably relevant.7 [14] The Respondent told the Member: In response to the last one about the allegation, on your advice, Member, I got legal advice, and, in fact, I was able to contact the church’s solicitors here in Queensland, and they confirmed there is no allegation. So I would like to suggest that that's removed from the record, that what the psychologist said was an inaccurate portrayal of what we spoke about, and, in fact, upon further inquiries, there is no allegation.8 [15] The Member dealt with the issue as follows: The position of the tribunal is that we need to make a decision based on the evidence before us and there is no evidence about that proposed allegation, foreshadowing of an allegation that the tribunal can make a decision upon. If the tribunal was minded to make a decision which overturned the finding that it's an exceptional case and I'm not saying whether I plan to do that or not, then it would be open to the department to take whatever necessary steps were considered appropriate were they to come into possession of additional material. So I don’t propose to explore that aspect of it at this time as you have procedures available to you should you disagree with the tribunal’s decision when it eventually is available.9 Appellant’s submissions [16] In the outline of submission, the Appellant summarised her case as follows: (a) the Member at first instance erred at law as she failed to take into account all relevant considerations by failing to properly consider a potential historical allegation about GV (the Respondent) having sexually abused a child, and by failing to adjourn and direct the production of further material and ensuring that all relevant material was before the Tribunal before proceeding to the review decision; and (b) the existence of a potential historical allegation of sexual misconduct against the child first arose during evidence given on day one of the hearing, at that time the Member having become aware of other information about the Respondent within the meaning of s 228 of the WWC Act, she failed to ensure all relevant 6 Transcript day two, page 7, lines 34–43. 7 Transcript day two, page 7, lines 45–47. 8 Transcript day two, page 9, lines 38–43. 9 Transcript day two, page 70, lines 5–15. -- 4 of 9 -- 5 material was before the Tribunal in accordance with s 28(3)(e) of the QCAT Act, and failed to have regard to the mandatory factors as set out in ss 228(2)(d), (e), (f) and (g). [17] The Appellant submits that the Appeal Tribunal in recognising the error would set aside the Member’s decision and remit the matter back to the Tribunal differently constituted for consideration. [18] She further submits that the ultimate issue in the appeal is not the veracity of additional evidence, but rather whether the learned Member’s approach of failing to adjourn the hearing for the issuing of notices to produce to ensure the availability of all information about the foreshadowed allegation was an error of law. In not doing so, the Appellant contends that the Tribunal failed to have regard to a relevant consideration, did not have all available information to arrive at the correct and preferable decision,10 and failed to consider the welfare and best interests of the children as paramount.11 [19] It was submitted by the Appellant that the test to be applied is: was the Tribunal made aware of “other relevant information” and was there a proper consideration of the mandatory principles outlined in s 228 of the WWC Act? The Respondent submits that: It bears repeating that acting solely on the respondent's evidence and/or submissions as to the existence or availability of any other relevant information about the foreshadowed allegation was improper, unsatisfactory, and not consistent with the protective legislative regime. [20] The Appellant concludes that whether the issuing of a negative notice may have an adverse impact on an applicant is not a factor which the Tribunal is entitled to take into account12 as the welfare and best interests of children is the paramount principle “to which all others yield”.13 [21] As above, the appellant submitted that the appeal should be allowed on the grounds that there was an error of law and the appropriate course is remitting the matter back to the Tribunal for re-hearing.14 Respondent’s submissions [22] The Respondent submitted that the learned Member did not fall into error by not adjourning the hearing so that the Appellant could obtain further evidence, as there was no evidence to support an adjournment. He submits that the “new evidence”: … is an insurance claim with allegations and does not address the issue of protecting children. It is a potential claim for money, not a claim for restitution for past wrongs or for ensuring no other children become victims. [23] The Respondent submits that in all of the information provided by character witnesses as well as years of psychological assessment, several investigations into his life and 10 QCAT Act s 20. 11 WWC Act s 6. 12 Chief Executive Officer, Department for Child Protection v Scott (No 2) (2008) 38 WAR 125; [2008] WASCA 171 at [109]. 13 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [3] citing McKee v McKee [1951] AC 352, 365. 14 Director General, Department of Justice and Attorney General v CMH [2021] QCATA 6 at [40]. -- 5 of 9 -- 6 work as the principal of school G, including numerous interviews with students, staff, and parents and the substantial volume of material provided in the course of the hearing, “there has never been a single hint, or rumour of the respondent having committed or being capable of the kind of abuse outlined in the ‘new evidence’.” [24] The Respondent submitted that he has a human right to work in his chosen field. It was further submitted that, as noted in the decision of the Tribunal of 24 January 2023, “the human rights of the Applicant are to be balanced with the human rights of the children.”15 [25] Whilst accepting that the rights of the children must take precedent over rights of the individual to work in their chosen field, the Respondent asks, at what point can he return to work given the many years that have passed, particularly, he says, “when there is no police investigation, no criminal charges, no credible, tested evidence against him holding a Blue Card and returning to his work?” [26] It is submitted that the human rights of those in the community he serves as their pastor since 2017 are also denied. [27] The Respondent submits that the appeal should not be allowed given: … the whole process has already been extended beyond what can be considered a responsible time because of Blue Card’s apparent obsession with finding some reason to justify the original Negative Blue Card decision. Applicable law [28] In this case the WWC Act is relevant, in particular, ss 6 and 228. In addition s 28 of the QCAT Act is relevant. [29] Section 6 of the WWC Act sets out the guiding principles as follows: 6 Principles for administering this Act This Act is to be administered under the following principles— (a) the welfare and best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. [30] Section 228 sets out matters the chief executive must take into account when determining an application for a Blue Card: 228 Deciding exceptional case if other relevant information exists (1) This section applies if the chief executive— (a) is deciding whether or not there is an exceptional case for the person; and (b) is aware of— (i) domestic violence information about the person; or (ii) disciplinary information about the person; or 15 GV v Director General, Department of Justice and Attorney General [2023] QCAT 30 at [146]. -- 6 of 9 -- 7 (iii) adverse interstate WWC information about the person; or (iv) other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person. (2) The chief executive must have regard to the following matters in relation to the information— (a) if the chief executive is aware of domestic violence information about the person—the circumstances of a domestic violence order or police protection notice mentioned in the information, including the conditions imposed on the person by the order or notice; (b) if the chief executive is aware of disciplinary information about the person— (i) the decision or order of the decision-maker relating to the disciplinary information and the reasons for the decision or order; and (ii) any decision or order of an entity hearing and deciding a review of, or appeal against, a decision or order mentioned in subparagraph (i), and the reasons for the decision or order; (c) if the chief executive is aware of adverse interstate WWC information about the person—each adverse interstate WWC decision or decision to issue the conditional interstate WWC authority mentioned in the information, and the reasons for the decision; (d) if the chief executive is aware of other information about the person mentioned in subsection (1)—the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information; (e) the length of time that has passed since the event or conduct the subject of the information occurred; (f) the relevance of the information to employment, or carrying on a business, that involves or may involve children; (g) anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person. [31] Section 28 of the QCAT Act requires the Tribunal to observe the rules of natural justice when conducting a hearing: 28 Conducting proceedings generally (1) The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules. -- 7 of 9 -- 8 (2) In all proceedings, the tribunal must act fairly and according to the substantial merits of the case. (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. (4) Without limiting subsection (3)(b), the tribunal may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it. [32] Although the Respondent opposes the production of the two letters from the church’s solicitors, I am satisfied that their relevance to the appeal requires them to be admitted as fresh evidence. [33] The letters are from New Path Legal to school G, New South Wales. One is dated 9 June 2022 and the other 28 March 2023. Although the names of the alleged victims are redacted, it appears there are two allegations. One is for a person born in 1996 and one is for a person born 1997. Both allege very serious sexual abuse. Both name the Respondent as the alleged perpetrator. [34] As at the date of the hearing of the appeal, no proceedings in respect of the allegations had been commenced. Discussion and decision [35] There is some significant force behind the Respondent’s submissions. It appears until the allegations were made, leading the Appellant to deny the Respondent a Blue Card, he had what can only be described as a long and successful career as a teacher leading to his appointment as principal. He has now been out of work for a substantial period of time. All of the known allegations made against him were dealt with by the learned Member, who decided in his favour. [36] It may in time prove to be fortunate or regrettable that the evidence of the psychologist about the allegations of sexual conduct was given at the hearing. If indeed it eventuates that there is no substance to the allegations, as the Respondent submits, then it will indeed be regrettable. In any event, the evidence having been given, it was in my view incumbent on the Tribunal to allow the Appellant the opportunity to investigate. -- 8 of 9 -- 9 [37] I accept the submission of the Appellant that the Tribunal must observe the rules of natural justice. Failure of the Tribunal to grant an adjournment and grant notices to produce, as requested by the Appellant, amounted to a denial of procedural fairness. The Tribunal must also ensure, as far as practicable, all relevant material is disclosed to the Tribunal to enable it to decide the proceeding having regard to all relevant facts.16 Failure to do so amounts to an error of law.17 The appeal must be granted. [38] I accept the submission of the Appellant that the learned Member was required to have regard to factors identified in s 228 of the WWC Act. Failure to take into account mandatory requirements is an error of law.18 [39] I am satisfied that the failure of the learned Member to take into account relevant information has led the learned Member to disregard the protective nature of the regime in her failure to attribute proper weight to the ‘paramount principle’. It appears the learned Member favoured the Respondent’s desire to return to work as soon as possible and thereby failed to give proper consideration to the paramount principle of the welfare and best interests of children. [40] In the circumstances, the appeal must be allowed on the ground of error of law and the matter remitted for re-hearing. 16 QCAT Act, s 28. 17 Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51 at [51]. 18 SWJ v Department of Justice and Attorney-General [2022] QCATA 119 at [28]. -- 9 of 9 --