CSK v Director-General, Department of Justice and Attorney-General [2021] QCATA 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CSK v Director-General, Department of Justice and Attorney-General [2021] QCATA 153 PARTIES: CSK (applicant/appellant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: APL088-20 ORIGINATING APPLICATION NO/S: CML320-18 MATTER TYPE: Appeals DELIVERED ON: 10 September 2021 HEARING DATE: 30 November 2020 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson, Presiding Member Browne ORDERS: The application for leave to appeal or appeal filed 27 March 2020 is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERALLY – where Tribunal confirmed the decision and found there was an ‘exceptional case’ – where allegation of bias – whether failure to take account of relevant considerations – whether compliance with requirements of the legislation Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 19, s 28, s 19, s 146 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, Schedule 7 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61 Dearman v Dearman (1908) 7 CLR 549 Director-General, Department of Justice and Attorney- General v FRW [2020] QCATA 13 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR -- 1 of 9 -- 2 337 Fox v Percy (2003) 214 CLR 118 Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2011] QCATA 115 Re JRL; Ex parte CJL (1986) 161 CLR 342 WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 YJP v Director-General, Department of Justice and Attorney-General [2020] QCAT 87 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: D Taylor, Government Legal Officer, Department of Justice and Attorney-General REASONS FOR DECISION [1] This is an appeal from a decision of the Tribunal at first instance,1 upholding a decision of the respondent to refuse the applicant’s working with children application and the consequent decision to issue a negative notice. [2] The Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) provides a legislative regime for the issuing of positive and negative notices to working with children applicants. If a positive notice and blue card is issued, the person may work with children and young people in Queensland without restriction. [3] The Act mandates that the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.2 The objects of the Act are to promote and protect the rights, interests and wellbeing of children and young people through a scheme.3 The Act empowers the Chief Executive to screen a person seeking to hold a blue card and may, among other things, obtain the person’s recent criminal history from the Queensland Police Service. [4] CSK, a former registered teacher in Queensland, held a positive notice and blue card at various times from 2005 until the respondent suspended it on 26 September 2014. On 5 November 2018, the respondent determined that CSK’s case is an exceptional case within the meaning of s 221(2) of the Act and issued a negative notice. Relevantly, under s 221(2) of the Act, if the Chief Executive or the Tribunal on review is satisfied that the person’s case is an exceptional case in which it would not be in the best interests of children for the Chief Executive to issue a positive notice, a negative notice must issue. 1 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61. 2 The Act, s 6. 3 Ibid, s 5. -- 2 of 9 -- 3 [5] Of the 8 initial grounds of appeal, grounds 5 and 7 were withdrawn prior to the hearing of the appeal.4 The remaining grounds are as follows: (1) The Tribunal in its original jurisdiction has produced a judgment which a fair- minded lay observer might reasonably apprehend not to have been impartial in resolving the matter before the Tribunal. (2) The Tribunal in its original jurisdiction misdirected itself as to the appropriate test for an exceptional case by failing to: (a) Take into account appropriate, relevant consideration. (b) Disregard inappropriate and irrelevant considerations. (3) The Tribunal in its original jurisdiction has, in finding that this is an exceptional case, failed to provide adequate consideration to support such a finding. (4) The Tribunal in its original jurisdiction in making its decision states that no regard was given to information of which the respondent was aware as at 23 January 2012. However, by continually referencing this material in the reasons for its decision, the Tribunal demonstrates significant reliance on the information of which the respondent was aware as at 23 January 2012. (6) The Tribunal in its original jurisdiction has failed to correctly conduct proceedings as required under s 19(a) of the QCAT Act (8) The Tribunal in its original jurisdiction has misdirected itself in relation to the rules of evidence as legislated by s 28 of the QCAT Act. [6] The grounds of appeal raise questions of law. It is said that there was demonstrated bias (grounds 1 and 4);5 the Tribunal took into account irrelevant considerations or failed to take account of relevant considerations (grounds 2 and 3);6 and the Tribunal misdirected itself as to the applicable law (grounds 6 and 8). Accordingly, s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) applies. Grounds 1 and 4 [7] In essence, it is said that apprehended bias is demonstrated by:7 (a) devoting 28 paragraphs, almost 20%, of the reasons, to discussion of the applicant’s alleged conduct while a teacher in the Northern Territory; and 4 Submissions of the applicant/appellant, [13]. 5 In both the written and oral submissions, the applicant grouped grounds 1 and 4 together as signifying bias: see Submissions of the applicant/appellant, [14]-[25]. 6 In both the written and oral submissions, the applicant grouped grounds 2 and 3 together as indicating a failure of the Tribunal to take into account material evidence or a failure to consider relevant matters: see Submissions of the applicant/appellant, [26]-[45]. 7 See Submissions of the applicant/appellant, [18], [23]. At the oral hearing before the Appeal Tribunal, the applicant accepted that the respondent had properly articulated grounds 1 and 4 of the appeal at paragraph [48] of the respondent’s outline of submissions, which, in substance, are reproduced at [7], above. -- 3 of 9 -- 4 (b) making a ‘negative and incorrect statement regarding the Applicant’s evidence at paragraph 59 of the Tribunal’s decision’, which is said to conflict with the recorded evidence. [8] The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that is to be decided.8 The rule applies to any decision which is subject to the principles of procedural fairness.9 It involves a two-step process: first, identification of what is said that might lead the decision-maker to decide the case, other than on its legal and factual merits. Second, articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.10 A finding of apprehended bias is not to be reached lightly.11 [9] In relation to submission (a) at paragraph 7, above, if anything the approach taken by the Tribunal at first instance was of assistance to the applicant, rather than being reflective of bias. While the Tribunal did spend some time discussing the alleged Northern Territory conduct, ultimately it determined not to take that conduct into account,12 even though it was entitled to do so. That is because the charges relating to that conduct were charges for a ‘disqualifying offence’ within the meaning of the Act.13 By s 221(b)(iv) of the Act, a positive notice need not be issued where the chief executive is aware of a charge for a disqualifying offence ‘that has been dealt with other than by conviction’. By Schedule 7 of the Act, the definition of ‘dealt with’ includes where, as in the present case, the charge has been withdrawn or dismissed. In those circumstances, by s 221(2) of the Act, if the chief executive, or the Tribunal, 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, a negative notice must be issued. The Tribunal at first instance recognised that it could take that information into account, but chose not to.14 It was considered that the disciplinary information alone was sufficient to determine the review.15 [10] Submission (b) at paragraph 7 relates to observations made by the Tribunal at first instance with regard to earlier disciplinary proceedings. In the relevant passage of the reasons it is stated: In arriving at the Sanction Decision the Tribunal had the benefit of joint submissions from the parties. In the present proceedings CSK was critical of that Tribunal for failing to simply adopt those submissions and apply the agreed sanction, demonstrating a misunderstanding of the role and responsibility of the Tribunal. 8 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]. 9 CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, [55], per Nettle and Gordon JJ. 10 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]. 11 Re JRL; Ex parte CJL (1986) 161 CLR 342, 371; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, [56], per Nettle and Gordon JJ. 12 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [115]. 13 As to the charges, see Ibid, [10], [34]. 14 Ibid, [114]. 15 Ibid, [115]. -- 4 of 9 -- 5 [11] The applicant submits that this was incorrect and that, consequently, the ‘decision is troubling’. Reference is made to a passage in the transcript where he is recorded as saying that he did not consider that the sanction imposed by the disciplinary Tribunal was unfair.16 On the other hand, the respondent points to other parts of the transcript where the applicant stated that he disputed certain findings of the disciplinary Tribunal.17 When asked whether he accepted that the imposition of a sanction greater than that advocated in the joint submissions indicated the seriousness with which the disciplinary Tribunal viewed the relevant conduct, the applicant responded: ‘That was the member’s view, yes’.18 [12] In any event, it is not said how the passage at paragraph 59 of the reasons, even if it were inaccurate, demonstrated bias. On its face, it does not indicate bias. Grounds 1 and 4 of the appeal are without merit. Grounds 2 and 3 [13] In relation to the grounds 2 and 3, the submissions of the applicant focused on what was said to be a failure to take account of relevant considerations, rather than on taking account of irrelevant considerations.19 The applicant submits that the Tribunal at first instance failed to take into account CSK’s evidence relevant to insight and remorse. Reference is made to passages in the transcript where the applicant acknowledged previous poor judgment, a psychological report, and to the statements made and evidence given by witnesses. It is said that there was significant evidence of the applicant’s ‘ethical professional conduct with children across a range of settings’ provided by witnesses and that this ‘plethora of evidence’ was afforded only one sentence in the Tribunal’s reasons, as follows:20 ‘These witnesses spoke of positive interactions with children including students and children of family and friends’.21 [14] However, these matters were considered at length in the reasons of the Tribunal at first instance, including the applicant’s acknowledgment of previous ‘serious errors of judgment’ and that he ‘had made poor decisions in the past’.22 While several references were made in the reasons to the psychological report,23 it was noted that the report was dated 27 August 2017 and that no updated report had been provided.24 Also, the report writer, LAV, was not available for cross-examination at the hearing.25 In relation to the applicant’s witnesses, the evidence of each of them is summarised and considered in turn.26 Each statement provided in support of the applicant was also considered.27 [15] Having considered that material, the Tribunal at first instance stated: 16 Submissions of the applicant/appellant, [22]. 17 Submissions of the respondent, [61]. 18 Submissions of the respondent, [61]. 19 Submissions of the applicant/appellant, [26]-[45]. 20 Ibid, [38]-[39]; appellant’s submissions in reply, [46]-[52]. 21 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [139]. 22 Ibid, [75], [131]. 23 Ibid, [85]-[86], [129], [132], [134]-[136], [138]. 24 Ibid, [132]. 25 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [85]. 26 Ibid, [87]-[93]. 27 Ibid, [94]-[97]. -- 5 of 9 -- 6 [129] In the Tribunal’s view, CSK’s claims to LAV that his behaviour was altruistic and motivated by empathy demonstrate a degree of minimisation of his behaviour and a lack of insight into its impact on students at the time of the consultation for the report. There is no medical evidence before the Tribunal regarding the development of CSK’s insight since the August 2017 report. [130] NTT said he did not consider that the conduct leading to the termination of CSK’s teacher’s registration by Education Queensland should preclude CSK from obtaining a blue card. The evidence of NTT, BAP and CSK’s brother do not address the applicant’s insight or remorse in relation to CSK’s behaviour in the period 2010-2012. Accordingly, there is limited independent evidence to support a finding that the applicant has developed insight into his conduct. … [138] CSK reported to LAV that ‘he had reflected on the importance of ‘professional boundaries’ between teaching staff and students.’ CSK could not articulate for this Tribunal the lessons he had learnt in his counselling sessions concerning the setting of professional boundaries. BAP expressed the opinion that CSK always maintained ethical and professional boundaries with students and the broader community, which is contrary to the findings of the Disciplinary Tribunal. [139] CSK has a strong and supportive network of friends and colleagues by whom he is highly regarded and who gave evidence before the Tribunal. This network is a protective factor. These witnesses spoke of his positive interactions with children including students and children of family and friends. This evidence of CSK’s positive interactions with children is not sufficient to overcome the Tribunal’s significant reservations about CSK’s ability to establish and maintain appropriate professional boundaries. To the extent those witnesses were aware of the reasons for the termination of CSK’s teacher’s registration they did not consider those reasons sufficient to warrant refusal of the applicant’s blue card. (footnotes omitted) [16] The Tribunal at first instance carefully considered all relevant evidence and material in making its findings, which were open on that evidence and material. The Appeal Tribunal will not usually disturb findings made by the Tribunal at first instance, where the findings made are capable of supporting its conclusions and where ‘there is evidence capable of supporting any inferences underlining it’.28 Grounds 2 and 3 of the appeal also are without merit. Ground 6 [17] Ground 6 of the appeal is that the Tribunal failed to correctly conduct proceedings as required under s 19(a) of the QCAT Act.29 It is submitted that the Tribunal at first instance admitted into evidence summaries of statutory declarations relating to the 28 Mayastor Pty Ltd v HA Bachrach (Nom.) Pty Ltd [2011] QCATA 115, citing Dearman v Dearman (1908) 7 CLR 549, 561 and Fox v Percy (2003) 214 CLR 118, 125-127. 29 Section 19(a) provides: In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made. -- 6 of 9 -- 7 applicant’s alleged conduct whilst a teacher in the Northern Territory and that the makers of those statements were not available to give evidence.30 Consequently, it is said that the Tribunal failed to follow the requirements of the Evidence Act 1977 (Qld) and common law principles.31 While the applicant acknowledged that the Tribunal is not bound by the rules of evidence,32 it is submitted that it must observe the rules of natural justice and that the applicant was disadvantaged as the makers of the statements were not available for cross-examination.33 It is further submitted that once the Tribunal viewed these statements the decision was tainted by apprehended bias. [18] However, as noted above in relation to grounds 1 and 4 of the appal, the Tribunal made it clear that it had no regard to the Northern Territory information, noting that ‘the disciplinary information alone is sufficient for the Tribunal to determine the review’.34 Also, the applicant had the opportunity to respond to the allegations made and produced evidence in that regard. The question of bias is addressed in relation to grounds 1 and 4 of the appeal. Ground 6 of the appeal is without merit. Ground 8 [19] Ground 8 of the appeal is that the Tribunal misdirected itself in relation to the rules of evidence as legislated by s 28 of the QCAT Act. In his written submissions in relation to this ground, the applicant refers to s 3(c) of the QCAT Act, which lists as one of the objects of the Act: ‘to promote the quality and consistency of tribunal decisions’. Reference is also made to s 4(d) of the QCAT Act, which provides that the tribunal must: ‘ensure like cases are treated alike’. It is submitted that the Tribunal at first instance has failed to observe these provisions.35 [20] Reference is made to three other blue card decisions of the Tribunal, which, it is said, can be contrasted with the present case where little or no weight was given to the evidence of the applicant’s witnesses, ‘despite the depth of knowledge these witnesses possess regarding the Applicant’s relationships and interactions with children’.36 It is submitted that the failure to give this evidence appropriate weight has resulted in the Tribunal ‘failing to enact the legislative provisions of the Act and a failure to afford natural justice to the Applicant’.37 [21] However, all cases are determined on the basis of their own facts and the evidence and material before the Tribunal. In relation to the first case referred to by the applicant,38 account was taken of two medical reports even though the makers of the reports were not made available for cross-examination. However, in relation to both reports, the report writers had consulted the applicant over a number of years, had read the respondent’s reasons and, it seems, the reports were prepared for the 30 Submissions of the applicant/appellant, [47]-[51]. 31 Ibid, [52]. 32 See QCAT Act, s 28(3)(b). 33 QCAT Act, s 28(3)(a); submissions of the applicant/appellant, [53]. 34 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [115]. 35 Submissions of the applicant/appellant, [56]-[59]. 36 Ibid, [69]-[70]. 37 Ibid, [70]. 38 YJP v Director-General, Department of Justice and Attorney-General [2000] QCAT 87. -- 7 of 9 -- 8 purposes of the hearing.39 On the other hand, in the present matter the report (by LAV) was prepared some 2 years before the hearing,40 had not been updated for the present proceeding,41 evidently the applicant had consulted the report writer only once,42 and while the applicant indicated that he continued to receive treatment for his mental health, there was no independent evidence of any such treatment.43 Also, the Tribunal at first instance found that the applicant’s claim to LAV that his behaviour was altruistic and motivated by empathy ‘demonstrates a degree of minimisation of his behaviour and a lack of insight into its impact on students at the time of the consultation for the reports’.44 [22] In relation to the second case referred to by the applicant,45 the concerns as to the applicant’s fitness to hold a blue care were ‘founded on a single incident … in which a 12- year-old girl sustained a minor injury’. The Tribunal at first instance was concerned that no expert report had been provided to the Tribunal other than a medical report of almost three years earlier. However, in circumstances where ‘the uncontradicted evidence shows a steady improvement and absence of any recurrent problem after that time’, it was considered that the failure to produce any further report should not be held against the applicant.46 [23] In the third case referred to by the applicant,47 it is submitted that the Appeal Tribunal ‘upheld the actions of the Tribunal in its original jurisdiction in giving evidentiary weight to witnesses whose knowledge of events was unclear to the Tribunal’.48 In fact, that is not an accurate representation of the given passage.49 The Appeal Tribunal was referring to an observation made by the Tribunal at first instance concerning referees as to the applicant’s character, where it was stated:50 While it is not clear if all of those referees had full knowledge of the allegations made against him, those who provided oral evidence during the hearing stated full knowledge, maintained their skepticism of the allegations, and stated their willingness to support him in times of need. [24] Also, that reference was made in the context of a ground of appeal as to whether, in exercising the discretion, the Tribunal had misapprehended the protective nature of the statutory regime. The reference was made in the course of a broad discussion as to whether the Tribunal at first instance had considered matters relevant to whether there was an exceptional case. There was nothing in the reasons to suggest that the Appeal Tribunal supported ‘giving evidentiary weight to witnesses whose knowledge of events was unclear’.51 39 Ibid, [42]-[43]. 40 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [129], [132]. 41 Ibid, [85], [132]. 42 Ibid, [134]. 43 Ibid, [135]. 44 CSK v Director-General, Department of Justice and Attorney-General [2020] QCAT 61, [129]. 45 WJ v Chief Executive, Public Safety Business Agency [2015] QCATA 190. 46 Ibid, [101]. 47 Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13. 48 Ibid, [65]. 49 Submissions of the applicant/appellant, [67]. 50 Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13, [65]. 51 Submissions of the applicant/appellant, [67]. -- 8 of 9 -- 9 [25] This ground of appeal is also without merit. Conclusion [26] For the reasons outlined above, all of the grounds of appeal are without merit. The appeal is dismissed and we order accordingly. -- 9 of 9 --