Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6 PARTIES: DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (appellant) v CMH (respondent) APPLICATION NO/S: APL049-20 ORIGINATING APPLICATION NO/S: CML106-18 MATTER TYPE: Appeals DELIVERED ON: 14 January 2021 HEARING DATE: 5 November 2020 HEARD AT: Brisbane DECISION OF: Senior Member Aughterson Member Kanowski ORDERS: 1 The appeal is allowed. 2 Order number 1 made by the Tribunal on 23 January 2020 is set aside. 3 The proceedings are remitted for rehearing by a differently constituted Tribunal at a date and time to be fixed. 4 Publication is prohibited of any information that may identify the respondent, any member of his family, any witness, or any person named in the evidence. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – QUESTIONS OF LAW – WHAT IS – GENERALLY – where a person who has been charged with disqualifying offences sought a blue card – whether an incorrect standard of proof applied – whether incorrect application of Briginshaw principle – whether failure to -- 1 of 16 -- 2 take account of certain provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) - whether Tribunal at first instance erred in determining that no exceptional case existed – whether Tribunal at first instance erred in relation to question of proof - whether proper account taken of charges that were dismissed Commissioner for Children and Young People Bill 2000 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s3(b), s19(a), s19(c), s20(1), s20(2), 21(1), s28(1), s28(3)(b), s66(1)(c), s146, s146(b) Working with Children (Criminal Record Checking) Act 2004 (WA), s3, s 12(8)(a) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a), s221, s221(2), s221(1)(b)(iii), s221(1)(b)(iv), s226, s 226(2), s226(2)(e), s227, 228 s360, Schedule 7 Briginshaw v Briginshaw (1938) 60 CLR 336 Chief Executive Officer, Department of Child Protection v Scott (No 2) (2008) 38 WAR 125 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Enmore v Smoothe [2014] FCAFC 131 Ericson v Queensland Building Services Authority [2013] QCA 391 FTZK v Minister for Immigration and Border Protection (2014) 88 ALJR 754 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 M v M (1988) 166 CLR 69 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 McDonald v Director-General of Social Security (1984) 1 FCR 354 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Queensland College of Teachers v Teacher EDC [2019] QCAT 144 Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289 Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 Sun v Minister for Immigration and Border Protection (2016) 243 FCR 220 -- 2 of 16 -- 3 APPEARANCES & REPRESENTATION: Applicant: Mr Peter O’Connor, Crown Law Respondent: Self-represented REASONS FOR DECISION Background This is an appeal from a decision of the Tribunal at first instance,1 setting aside a decision of the appellant that the case of the present respondent (‘the respondent’) is ‘exceptional’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) and substituting a decision that there is no exceptional case. Section 221 provided:2 (1) Subject to subsection (2), the chief executive must issue a positive notice to the person if— (a) the chief executive is not aware of any police information or disciplinary information about the person; or (b) the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person— (i) investigative information; (ii) disciplinary information; (iii) a charge for an offence other than a disqualifying offence; (iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or Note for subparagraph (iv)— For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices). chapter 7, part 4, division 4 and sections 199, 295(1) and 296. (c) the chief executive is aware of a conviction of the person for an offence other than a serious offence. (2) If subsection (1)(b) or (c) applies to the person and the chief executive is satisfied it 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, the chief executive must issue a negative notice to the person. 1 CMH v Director General, Department of Justice and Attorney General [2020] QCAT 15. 2 Compare the present wording of s 221(2), where reference is made to ‘a working with children clearance’, rather than ‘a positive notice’. -- 3 of 16 -- 4 In the present case, in issuing a negative notice, reference was made to the following police information: (a) A 1991 conviction for unlawfully entering a dwelling house. The complainant was the respondent’s girlfriend, with whom he had ‘an on-again, off-again relationship’.3 He pleaded guilty and was placed on a good behaviour bond. (b) Charges in 1991 for assault of his girlfriend and unlawful entry of her residence. The charges were dismissed by the court. (c) Eight charges made in 2013 in relation to conduct said to have occurred 26 years earlier. Counts 1 to 4 charged indecent treatment of a child under 16, while counts 5 to 8 charged indecent assault on a female. All of these charges involved a female member of a sporting team coached by the respondent.4 At his trial the respondent was convicted on counts 3, 4 and 6 and acquitted of the other charges. He was sentenced to imprisonment for 12 months, with the sentence being wholly suspended for 18 months. On an appeal against the convictions, the Court of Appeal set aside the convictions and ordered a retrial in relation to counts 3, 4 and 6. Subsequently, the DPP entered a nolle prosequi, following advice that the complainant did not wish to present evidence at any retrial.5 In relation to the eight 2013 charges, counts 1 to 4 involved charges for a ‘disqualifying offence’ within the meaning of s 221(1)(b)(iv) of the WWC Act: see s 168 and Schedule 4 of the Act.6 By that subsection, where aware that there is a charge for a disqualifying offence in relation to the person that has been dealt with other than by conviction, the chief executive must issue a positive notice, unless, by s 221(2), satisfied that it is an ‘exceptional case in which it would not be in the best interests of children … to issue a positive notice’. The scope of s 221 of the WWC Act is further discussed below. As is noted above, the decision by the chief executive that it was an ‘exceptional case’ was set aside by the Tribunal at first instance. Grounds of Appeal There are nine grounds of appeal. They are that the Tribunal at first instance: (1) erred by misapprehending the fundamental protective nature of the WWC Act and its findings were adversely affected; (2) misdirected itself as to the appropriate test in determining an exceptional case under s 221; (3) misdirected itself as to the standard of proof; (4) misapplied the Briginshaw test;7 (5) mischaracterised the information available to the Tribunal and applied the wrong test; 3 [2020] QCAT 15, [4]. 4 For further detail as to the charges, see [2020] QCAT 15, [6]-[14]. 5 Ibid, [15]-[18]. 6 See also submissions of appellant, [55.2]. 7 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 4 of 16 -- 5 (6) erred by taking the view that ‘caution’ ought to be exercised so as not to offend the outcome of the criminal proceedings; (7) erred by implementing a ‘fit and proper person’ test; (8) erred by failing to take into account relevant police information; and (9) erred in determining whether there is an exceptional case pursuant to s 221(2) of the WWC Act, by failing to address each of the mandatory considerations set out in s 226(2) of the WWC Act. The appellant acknowledges that the grounds of appeal ‘overlap in many respects’,8 and for the purposes of its written submissions grouped together grounds (1) to (4) and grounds (5) to (9). In essence, the first four grounds rest on the submissions that the correct standard of proof and the principle in Briginshaw were not applied,9 while the final five grounds rest on a claimed failure to take proper account of several of the charges in accordance with the WWC Act, a failure to take account of certain provisions of the Act, and a wrongful importation of a ‘fit and proper person’ test. The grounds of appeal raise questions of law, so that the appeal should be dealt with in accordance with s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). Grounds 1 to 4 In relation to Grounds 2 and 3, it is argued that the Tribunal at first instance applied an incorrect standard of proof.10 In the reasons at first instance it is stated:11 Although the tribunal has all the functions of the original decision maker,12 their roles do differ in one aspect. In reaching the decision to assess the Applicant’s case as being exceptional, the Respondent needed only to apply the provision of the enabling Act.13 In reaching the correct and preferable decision, the tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and the Working with Children Act.14 Because of this, a higher standard or a higher test should be applied to the tribunal’s assessment than required of the Respondent. The appellant submits that there is no authority for the proposition that a higher standard of proof applies where a decision of the appellant is being reviewed by the Tribunal and that ‘at QCAT the standard of proof in respect of factual matter is on the balance of probabilities’.15 Reference is made to Commissioner for Children and Young People and Child Guardian v Maher & Anor.16 While the Tribunal at first instance did not 8 Submissions of the appellant, [10]. 9 Briginshaw v Briginshaw (1938) 60 CLR 336. 10 Submissions of the appellant, [11]-[29]. 11 [2020] QCAT 15, [21]. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c). 13 Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221, 226, 227. 14 QCAT Act, s 19(a). 15 Submissions of the appellant, [13]. 16 [2004] QCA 492. -- 5 of 16 -- 6 demarcate the ‘higher standard’ or the ‘higher test’ that was said to be applicable, reference was made to Maher. In that case, Philippides J stated:17 It was accepted by both parties that the test in Briginshaw v Briginshaw (1938) 60 CLR 336 was applicable in respect of the level of satisfaction needed for the purposes of s 102(4); that is, that the Tribunal was required to be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued. It is submitted by the appellant that the Tribunal at first instance erred in its ‘application of the Briginshaw test within the context of the WWC Act and in applying a higher standard of proof, due to a misapprehension of the operation of the QCAT Act’.18 On the other hand, the respondent submits that the correct approach was taken at first instance and that the ‘consequences’ referred to in Maher include the consequences for children ‘in not being able to enjoy the benefit of the Respondent’s experience in promoting the well-being of children’.19 In our view, in adopting the approach it did in relation to proof, the Tribunal at first instance fell into error. By s 20(2) of the QCAT Act, the Tribunal must hear and decide a review by way of a fresh hearing on the merits and, by s 19(c), has all the functions of the decision-maker for the reviewable decision. In relation to the present matter, by s 221(2) of the WWC Act, the question is whether ‘the chief executive is satisfied it 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’. If so satisfied, the chief executive must issue a negative notice. A primary question is whether ‘satisfaction’, that an exceptional case arises, should be determined from the viewpoint of an onus or standard of proof. Those concepts emerged in an adversarial setting and are creatures of the common law rules of evidence. The Tribunal is not bound by the rules of evidence,20 and the present proceedings are for review of an administrative decision, whereby, in effect, the Tribunal stands in the shoes of the original decision-maker. The role of the present appellant is to assist the Tribunal in reaching the correct and preferable decision.21 They are not adversarial proceedings. With reference to the decision in Maher, noted at [8] above, the observations made by her Honour were prefaced by the words ‘it was accepted by both parties that’ (the decision in Briginshaw applied). On that basis, they reflect a concession by counsel. As noted by Hayne J in FTZK v Minister for Immigration and Border Protection,22 in the context of a decision by a Tribunal as to whether there were ‘serious reasons for considering’ that a crime had been committed outside the country of refuge, to describe 17 Ibid, [30]. McPherson and Jarred JA agreed with her Honour’s reasons. 18 Submissions of the appellant, [29]. 19 Submissions of the respondent, [5]. 20 QCAT Act, s 28(3)(b). 21 Ibid, ss 20(1), 21(1). 22 (2014) 88 ALJR 754, [34]. -- 6 of 16 -- 7 ‘serious reasons for considering’ as providing a ‘standard of proof’ is apt to mislead.23 Hayne J added: … the relevant decision is to be made, in the first instance, by an administrative decision maker, not a court. It is, therefore, a decision which is to be made outside the adversarial processes of a court, in which issue is joined between parties. For a common lawyer, the notion of a “standard of proof” marches hand in hand with onus of proof. Neither notion finds ready accommodation in administrative decision making, where no issue is joined between parties. In Sullivan v Civil Aviation Safety Authority,24 a helicopter licence was cancelled in circumstances where the Civil Aviation Safety Authority could cancel a licence ‘if satisfied’ that the holder of the licence, among other things ‘is not a fit and proper person’ to hold a licence. Review was sought in the Administrative Appeals Tribunal, from which decision there was an appeal to the Federal Court. It was submitted that findings of dishonesty were made without satisfying the standard of proof in Briginshaw; namely, that a matter must be proven on the balance of probabilities, taking into account the considerations in Briginshaw. In the Full court of the Federal Court, Flick and Perry JJ noted that ‘curial proceedings are inherently different to the tasks entrusted to administrative tribunals’;25 in particular, noting that the task of the Tribunal (in that case, the AAT) is to produce the ‘correct or preferable decision’, proceed with relative informality, and deal with matters in a way that is fair, just, economical, informal and quick.26 Then, with reference to the submission as to the standard of proof, their Honours stated:27 Such a submission, with respect, fails to recognise that: • the rule in Briginshaw is a rule of evidence derived from curial proceedings; • the Tribunal is not ‘bound by the rules of evidence’; and • a party to proceedings before the Tribunal has no ‘onus of proof’, let alone an ‘onus’ to establish facts to any particular or pre-determined standard. Moreover, the submissions fails to also recognise the fact that the procedure of the Tribunal is within its own discretion.28 In Sun v Minister for Immigration and Border Protection, 29 Flick and Rangiah JJ, with whom Logan J agreed,30 stated: 23 Ibid, [33]. See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 282-283 per Brennan CJ and Toohey, McHugh and Gummow JJ. 24 (2014) 226 FCR 555 25 Ibid, [114]-[115]. 26 For equivalent provisions under the QCAT Act, see ss 3(b), 20(1), 28(3)(d). 27 Ibid, [115], per Flick and Perry JJ. See also at [82]ff. In relation to equivalent provisions under the QCAT Act, see ss 3, 4, 20, 28. Logan J approached the issue from the perspective of reasonableness, in the sense considered in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (see at [13]ff), though noted that while a court is constrained to act on admissible evidence, an administrative decision maker is not so constrained: at [16]. 28 In relation to the QCAT Act, see s 28(1). 29 (2016) 243 FCR 220, [63]-[64]. 30 Ibid, [1]. -- 7 of 16 -- 8 The concept of ‘onus or burden of proof’ is a concept buried in common law rules of evidence and the practice and procedure of superior courts of law entrusted with resolving disputes between parties to litigation. As a general proposition, administrative decision-making and decision-making by administrative tribunals is not adversarial and past attempts to blur the distinction between adversarial and administrative decision-making have vigorously been rejected. Their Honours also referred to an observation of Northrop J in Saunders v Federal Commissioner of Taxation:31 Provision is made for there to be ‘parties’ to the proceedings (s 30) but in a reference such as this the parties are not adversaries in the strict sense, and any argument they present constitutes material which assists the Tribunal in deciding what decision should be made. The decision of the Tribunal is not in the nature of a judgment for or against a particular party. … The Tribunal is in the shoes of the Commissioner and may use any material put before it in reaching its decision … Further, the relevant question in the present case is whether the Tribunal, standing in the shoes of the Chief Executive, is satisfied that it is an ‘exceptional case’. If the chief executive is so satisfied, then a negative notice must be issued to the person.32 To the extent that it is necessary to make findings in relation to past conduct, the Tribunal might consider evidential principles and take into account the considerations outlined in Briginshaw.33 However, the ultimate question of what is in the best interests of children does not lend itself to exact proof. It involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and of potential future risks to children. In Malec v JC Hutton Pty Ltd,34 a case relating to the assessment of damages in torts for future loss, it was noted by Brennan and Dawson JJ that past events are a matter of history and should be proved on the balance of possibilities, whereas ascertaining future lost earning capacity involves an evaluation of possibilities and to make a finding on the balance of probabilities is to ‘misconceive the process of evaluation’.35 Deane, 31 Ibid, [64], citing Saunders v Federal Commissioner of Taxation (1988) 19 ATR 1289, 1296. 32 WWC Act, s 221(2). 33 In that context, see the observation of French CJ in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, [15]-[17]. Also, as noted by Flick and Perry JJ in Sullivan: ‘The procedural flexibility afforded to an administrative tribunal freed from the rules of evidence does not absolve it from the obligations to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide’: (2014) 226 FCR 555, [97]. Also, as noted in McDonald v Director-General of Social Security (1984) 1 FCR 354, 356, with reference to the AAT: Such a tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in considerations of natural justice or common sense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent. 34 (1990) 169 CLR 638. Referred to in Queensland College of Teachers v Teacher EDC [2019] QCAT 144, [13]. 35 (1990) 169 CLR 638, 639-640. -- 8 of 16 -- 9 Gaudron and McHugh JJ observed that a ‘common law court determines on the balance of probabilities whether an event has occurred’, and added:36 But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But question as to the future or hypothetical effect of physical injury or degradation are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. In the context of being satisfied one way or the other as to whether it is an ‘exceptional case' in which it would ‘not be in the best interests of children’ to issue a positive notice, to the extent that this can be quantified, and depending on the nature of any risk to children, it may be that an exceptional case will be found even where the risk of any reoffending is significantly less than an even chance.37 In M v M,38 in the context of family law proceedings involving the issue of a father’s access to his child, the High Court held that an ‘unacceptable risk’ to the child could arise where the court was not satisfied one way or the other as to whether, relevant to that case, the allegations of past abuse had been made out. That is because the primary question is one of whether the possibility of abuse gave rise to an ‘unacceptable risk’ should access be allowed, rather than being a question of whether conclusive findings could be made in relation to the underlying factual issues.39 In relation to the present matter, ultimately it is an evaluative judgment as to whether it is not in the best interest of children to issue a positive notice; a judgment which is made in the context of the objectives of the Act.40 On that basis, in relation to appeal grounds 2 and 3, in our view the Tribunal at first instance fell into error in taking the approach that it did in relation to the question of proof and this may well have impacted the decision made. A determination under s 221(2) of the WWC Act is, ultimately, an evaluative exercise rather than a fact-finding exercise. Further, to the extent that tests or standards apply in informing that evaluation, the tests and standards to be applied by the Tribunal are not different to, or higher than, those to be applied by the original decision-maker. Grounds 1 and 4 focus on the reference in Briginshaw to the civil standard of proof and the need to bear in mind the ‘gravity of the consequences’ involved. In light of the protective nature of the statutory scheme in the WWC Act, it is submitted that the relevant consequences ‘must be the consequences to any children that may flow from issuing a positive notice’.41 On the other hand, it is submitted that the Tribunal at first 36 Ibid, 643. 37 See observations made in Queensland College of Teachers v Teacher EDC [2019] QCAT 144, [14]. 38 (1988) 166 CLR 69. See also Queensland College of Teachers v Teacher EDC [2019] QCAT 144, [15]. 39 (1988) 166 CLR 69, 74-77. See also Enmore v Smoothe [2014] FCAFC 131 at [37]-[38], where a distinction was drawn between the making of a positive finding of fact as opposed to a finding of unacceptable risk. 40 In particular, the principle that the welfare and best interests of a child is paramount: WWC Act, s 360. 41 Submissions of the appellant, [18]. -- 9 of 16 -- 10 instance ‘appears to have applied the Briginshaw test to the severity of the consequences that would flow to the Respondent’; that is, his ability to work in child-related employment’.42 While in the reasons of the Tribunal at first instance reference is made to the legislative objective ‘to promote and protect the rights, interests and wellbeing of children’ and to the need to ‘take into account the principle that the welfare and best interests of children is paramount’,43 it is evident that some emphasis was also placed on the impact on the respondent. After referring to the 2013 charges and the discontinuance of the prosecution, it is stated:44 Being armed with the information just discussed, a discretion exists as to whether the tribunal should accept the uncorroborated and untested version of ACV. Caution should always be exercised if any uncorroborated and untested version is to be accepted. After all, although ACV’s evidence has already been tested in court, that evidence has been the subject of the Applicant’s successful appeal to the Court of Appeal. The discretion to apply the general fairness principle should be a consideration and regard must be had to the Briginshaw test that the greater the consequences flowing from a particular finding, the higher the test that should be applied. … Overall, having regards to this matter and applying the Briginshaw test, the issue of the Applicant’s case being an exceptional case has not been proved to the reasonable satisfaction of the tribunal. The correct approach is to apply the general fairness discretion and not place any weight upon (what) is now the untested and uncorroborated allegations contained within ACV’s complaint. While, as is noted above, in our view it is not productive to approach the question of whether the Tribunal is ‘satisfied’ from the viewpoint of an onus or standard of proof, it remains that the Act is protective in nature and, by s 5, its object is ‘to promote and protect the rights, interests and wellbeing of children and young people’. Also, by ss 6(a) and 360, ‘the welfare and best interests of a child are paramount’, while s 221(2) itself expressly requires a determination as to what is in the best interests of children. In Chief Executive Officer, Department of Child Protection v Scott (No 2),45 the Western Australian Court of Appeal considered analogous legislation, under which the best interests of children was also paramount.46 The relevant provision of that Act provided that if the CEO is aware of an offence (other than a class 1 or 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice ‘unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant’. McLure JA held that a negative notice must be issued if the CEO were satisfied that an assessment notice would not be in the best interests of children and, in relation to that question, ‘the prejudice to an applicant is not a relevant consideration’.47 Buss JA, with whom Newnes AJA agreed, was of the same view, 42 Ibid. 43 [2020] QCAT 15, [35], [83]. 44 Ibid, [81], [84]. 45 (2008) 38 WAR 125. 46 Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 12(8)(a). See also Scott (No 2), [67]. 47 See Scott (No 2), [17], [23]. See also at [87(b)], [106]. -- 10 of 16 -- 11 stating that the ‘evident legislative purpose is to protect children’ and adding: ‘That the issuing of a negative notice may have an adverse impact on the applicant is not … a factor which the CEO is obliged or entitled to take into account’.48 In the Tribunal at first instance, with reference to the second reading speech to the Bill,49 it was also stated: ‘Although the focus in blue card matters is on the protection of children from future harm within places of employment, the intention of the legislation is not to place additional punishment upon an applicant, thereby punishing them twice if they have acquired a police or disciplinary record’.50 However, as noted in Scott (No 2), with reference to the Western Australian Act: The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. By the terms of the WWC Act, an exceptional case can be found where a person has been ‘dealt with’ for a disqualifying offence.51 By Schedule 7 of the WWC Act, the term ‘dealt with’ includes where the person is acquitted of the charge or a nolle prosequi has been presented. Accordingly, the legislation itself contemplates the potential adverse impact on a person arising from a finding of an exceptional case, despite the absence of any conviction. In our view, in relation to appeal grounds 1 and 4, the Tribunal at first instance fell into error in placing emphasis on the impact of any decision on the respondent. That is not to say that the nature of the charges and the outcome of any hearing are irrelevant to a determination of whether or not an exceptional case arises. That much is contemplated by the terms of s 226 of the WWC Act, which deals with the matters that the chief executive must consider in deciding whether an exceptional case arises. Grounds 5 to 9 As noted above, the written submissions of the appellant address these grounds collectively. While certain submissions are framed differently from and overlap the grounds of appeal, other than submission (f), they are within the purview of those grounds. The submissions are as follows: (a) No account was taken of the 1991 charges of assault and unlawful entry, which were dismissed by the court: see paragraph 2(b) above. It was submitted that they remained relevant to any determination as to an exceptional case.52 48 Ibid, [109]. 49 Commissioner for Children and Young People Bill 2000 (Qld), second reading speech, Queensland Parliament Hansard, 14 November 2000, p 4391. 50 [2000] QCAT 15, [35]. 51 See WWC Act s 221(1)(b)(iv) and 221(2). 52 Submissions of the appellant, [30]-[32], [45], [53]. -- 11 of 16 -- 12 (b) In relation to the charges relating to the sexual offences, the fact of acquittal and the nolle prosequi were elevated to be corroborative of the respondent’s innocence.53 (c) The charges relating to the sexual offences were misclassified as ‘investigative information’ and ‘uncorroborated allegations’.54 (d) The Tribunal erred in adopting a ‘fit and proper person’ test.55 (e) The Tribunal erred by failing to consider each of the mandatory considerations set out in s 226(2) of the WWC Act.56 (f) The Tribunal erred in restricting questions of the respondent in relation to the charges concerning the sexual offences.57 Submission (a): in relation to submission (a), the Tribunal at first instance noted that the charges were dismissed and stated that ‘no assessment of the allegations of that matter is necessary’.58 It is submitted that the fact of dismissal has no bearing on the ability of the decision maker to have regard to them, as the criminal history relevant to the WWC Act includes ‘every charge’ made, regardless of the outcome.59 The 1991 charges were not for disqualifying offences. In our view, it is evident that a ‘charge’ for the purposes of s 221(1)(b)(iii) of the WWC Act refers to a charge that is extant. The term ‘charge’ is defined in the WWC Act in terms of the form that the charge might take and does not assist in determining whether or not it is intended to be confined to an extant charge.60 However, the legislative context suggests that it is so intended. Section 221(1)(b)(iii) deals with a charge for an offence ‘other than a disqualifying offence’. The latter is dealt with separately in s 221(1)(b)(iv). That subsection arises for consideration where the chief executive is aware that, in relation to the person, there has been a charge for a ‘disqualifying offence’ that has been dealt with other than by conviction.61 The term ‘dealt with’ is defined in Schedule 7 of the WWC Act and includes circumstances where a charge has been dismissed or there has been an acquittal. The fact that the meaning of the term ‘charge’ for the relevantly more serious disqualifying offences is expressly extended to include circumstances where the charge has been dismissed or there has been an acquittal, but is not so extended for other offences, suggests an intention to limit charges for the purposes of s 221(1)(b)(iii) to extant charges.62 53 Ibid, [32]-[33], [47]-[53]. 54 Ibid, [34]-[35], [44]-[49], [53]. 55 Ibid, [36]-[40], [53]. 56 Ibid, [39], [53]. 57 Ibid, [41]-[42]. 58 [2020] QCAT 15, [28]. 59 Submission of the appellant, [32], [45]. 60 WWC Act, Schedule 7. 61 ‘Conviction’ means a finding of guilt, or acceptance of a plea of guilty, whether or not a conviction is recorded: WWC Act, Schedule 7. 62 It is evident that the requirement in s 226(2)(e) for the chief executive to ‘consider anything else’ relating to the commission or alleged commission of the offence, does not expand upon the offences that are to be considered under s 221 of the WWC Act. As is evident from the terms of the Act and the Explanatory Note (see paragraph 29 above), it seems that it was intended that only the specified charges should be considered. -- 12 of 16 -- 13 That view is supported by the Explanatory Note to the Bill, which states:63 These provisions are intended to provide the commission with access to all information considered necessary in assessing a person’s suitability for child related employment. There are a number of circumstances where the presence of certain charges in a person’s criminal history, even without the presence of convictions, would be relevant in making decision about a person’s suitability to work with children. For example, in cases involving sexual offences against children, convictions may be difficult to obtain because of the need to rely on child witnesses. There are instances where the court may decide that a child witness is too young to give evidence or withstand the experience of an adversarial court proceeding. (emphasis added) On that basis, it is evident that the intention was that charges that have, for example, been dismissed should not be taken into account, unless they relate to disqualifying offences. Accordingly, the submission that no proper account was taken of the 1991 charges that were dismissed by the court is not upheld. Submission (b): in relation to submission (b), it is said that in relation to the sexual offence charges the fact of acquittal and the nolle prosequi were elevated to be corroborative of the respondent’s innocence. As noted at paragraph 3, above, counts 1 to 4 of the eight counts were for disqualifying offences and, despite the entering of a nolle prosequi, they came within the purview of s 221(1)(b)(iv) of the WWC Act.64 Accordingly, in relation to those counts, the chief executive, and hence the Tribunal, was entitled to take them into account despite the entering of a nolle prosequi. On the other hand, in the Tribunal at first instance it is evident that primacy was given to the fact of the nolle being entered, such that little or no consideration was given to those charges. In the reasons for the decision it is stated:65 It seems that because of the decision of the DPP to enter a nolle prosequi and discontinue the prosecution of ACV’s allegations, the Applicant is no longer the subject to any charge or indictment. When a careful analysis is made of the chronology of this matter, and notwithstanding that there has already been a trial in regard to ACV’s allegations, all that now remains are uncorroborated investigative information relating to three specific incidents dating back to events which occurred over three decades ago. Also, with reference to the findings of the Court of Appeal, the Tribunal at first instance stated:66 Although actual findings of guilt or innocence were not reached in deciding that appeal, the court was clearly concerned that after being misdirected by the trial judge, the jury reached its verdict on ACV’s uncorroborated testimony. When such a position is adopted by the Court of Appeal, caution should be exercised that any decision Compare the discussion in Maher in relation to earlier provisions: [2004] QCA 492, [39]-[42]. In that case it was accepted that other matters could be considered. See also Chief Executive Officer, Department of Child Protection (No 2) (2008) 38 WAR 125, [16], [104], [122]. 63 Explanatory Note, Commission for Children and Young People Bill 2000 (Qld), p 11. 64 See the definition of ‘dealt with’ in Schedule 7 of the WWC Act. 65 [2000] QCAT 15, [31]. 66 Ibid, [79]. -- 13 of 16 -- 14 reached does not offend the jury acquittal verdicts and the Court of Appeal’s decision to set aside the convictions. And, further:67 The correct approach is to apply the general fairness discretion and not place any weight upon (what) is now the untested and uncorroborated allegations contained within ACV’s complaint. These and related passages in the Tribunal’s reasons suggest that proper consideration was not given to the fact of these charges, particularly in the context of the obligations arising by virtue of s 226(2) of the WWC Act to give them appropriate consideration. That is especially evident from the related discussion regarding what was said to be the ‘general fairness discretion’, referred to at paragraphs [20]-[25], above. In our view, the Tribunal at first instance fell into error by not taking proper account of considerations relevant to the charges for the disqualifying offences. Of course, any such consideration is limited by the material that is before the Tribunal. Submission (c): it is submitted that the charges relating to the sexual offences were misclassified as ‘investigative information’ and ‘uncorroborated allegations’. The reference to ‘uncorroborated allegations’ is incorporated within the discussion in relation to submission (b), above. It is submitted that the reference to ‘investigative information’ is important because under the WWC Act the chief executive must have regard to different considerations, depending on whether the information is a conviction or charge, investigative information or disciplinary information.68 On the other hand, in the Tribunal’s reasons reference is made to the formal investigations in relation to the allegations and the subsequent charges.69 ‘Investigative information’ was perhaps not the best choice of words, as the term has a particular meaning under s 305 of the WWC Act. However, it is apparent that the Tribunal at first instance applied the correct provisions in relation to charges. Submission (d): it is submitted that the Tribunal erred in adopting a ‘fit and proper person’ test. Allied to this, is the submission that ‘disproportionate weight’ has been given to matters personal to the respondent.70 Effectively, this traverses the same issues raised in grounds 1 to 4, which are discussed at paragraphs [20]-[25], above. It remains that the character of a person, whether using the terminology of a ‘fit and proper’ person or otherwise, is relevant to the question of what is in the best interests of children. Submission (e): it is submitted that the Tribunal erred by failing to consider each of the mandatory considerations set out in s 226(2) of the WWC Act. In the submissions, reference is made to the first four sub-sections of s 226(2) of the WWC Act, as to the matters to which the chief executive must have regard: (a) in relation to the commission, or alleged commission, of an offence by the person— (i) whether it is a conviction or a charge; and (ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and 67 Ibid, [84]. 68 See WWC act, ss 226, 227 and 228, respectively. 69 [2000] QCAT 15, [8]. 70 Submissions of the appellant, [39]. -- 14 of 16 -- 15 (iii) when the offence was committed or is alleged to have been committed; and (iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; In fact, reference was made in the Tribunal’s reasons to s 226(2) of the WWC Act,71 and, in the course of the reasons, to the matters listed above. The submissions on this issue are entwined with submission (d), which, in turn, traverses the same issues raised in relation to grounds 1 to 4 and submission (b); that is, a failure to give primacy to what is in the best interests of children, the undue focus on the impact of the decision on the respondent, and the failure to give proper consideration to the charges relating to the disqualifying offences. Those issues have been addressed above. Submission (f): it is submitted that the Tribunal erred in restricting questions of the respondent in relation to the charges concerning the sexual offences. It is not made clear how this relates to the grounds of appeal and it was not canvassed in the oral submissions. In any event, the first of the two passages from the transcript of the hearing at first instance, referred to by the appellant,72 merely involves the issue of the appropriate advice to be given to the witness in relation to the privilege against self- incrimination,73 while the second involves the question of what use can be made of the allegations relating to the 2013 charges. The latter is dealt with, above, in relation to submission (b). Conclusion In relation to grounds of appeal 1 to 4, the appeal is upheld. Grounds 5 to 9 overlap and are upheld to the extent that they encapsulate the argument at submission (b), above, but are otherwise dismissed. By s 146(b) of the QCAT Act, in deciding an appeal on a question of law only, the Appeal Tribunal may ‘set aside the decision and substitute its own decision’. However, in Ericson v Queensland Building Services Authority,74 Holmes JA. with whom Fraser JA and Applegarth J agreed, stated: As has already been pointed out, the appeal tribunal purported to proceed with the appeal as one limited to questions of law, so that its powers were those conferred by s 146 of the Queensland Civil and Administrative Tribunal Act. That provision enables the appeal tribunal, if setting aside a decision, either to substitute its own decision or to remit the matter to the tribunal which made the appealed decision for further consideration. Plainly, it is only if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour that the appeal tribunal will be in a position to substitute its own decision. Section 146, as already noted, does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence. 71 [2020] QCAT 15, fn. 10, 24, 31, 50, 51 and related text. 72 Submissions of the appellant, [41]. 73 It is noted that the procedure of the Tribunal is within its own discretion: see QCAT Act, s 28(1) and (2). 74 [2013] QCA 391, [25]. -- 15 of 16 -- 16 Given our decision and reasons in the present case, and to remove any perception of pre-judgment, the matter should be remitted to a differently constituted Tribunal to be determined according to law.75 Non-publication order Pursuant to s 66(1)(c) of the QCAT Act, the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may do so on the application of a party or on its own initiative. 5 A non-publication order was made by the Tribunal at first instance and its continuation is supported by both parties to the appeal.76 We make orders pursuant to s 66 of the QCAT Act prohibiting publication of any information that may identify the respondent, any member of his family, any witness, or any person named in the evidence. 75 The appellant submitted that, if remitted, it should be before a differently constituted Tribunal, ‘to avoid any perception of a carry-over from a previous matter’: Transcript, 1-32. The respondent stated that he didn’t ‘have any problem’ with it being remitted to the same Tribunal member: Transcript, 1-37 76 Transcript 1-39, 1-40. -- 16 of 16 --