DBC v Director-General, Department of Justice and Attorney-General [2020] QCAT 418

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DBC v Director-General, Department of Justice and Attorney-General [2020] QCAT 418 PARTIES: DBC (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML228-19 MATTER TYPE: Childrens matters DELIVERED ON: 3 November 2020 HEARING DATE: 30 September 2020 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that DBC’s case is an exceptional case within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal prohibits the publication of the names of the Applicant, any complainants, any witnesses appearing for the applicant and any relevant child. DBC will file in the Tribunal one (1) copy and give to the Director-General, Department of Justice and Attorney-General one (1) copy of his written submissions on costs, by 4:00pm on 2 October 2020. The Director-General, Department of Justice and Attorney-General will file in the Tribunal one (1) copy and give to DBC one (1) copy of its written submissions in reply, by 4:00pm on 9 October 2020. The decision on costs shall be made on the papers, by written submissions from the parties, not before 9 October 2020. -- 1 of 8 -- 2 CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – review of negative notice – where the applicant had no criminal convictions - where the matter was set down for hearing in the Tribunal – where the respondent purported to set aside its earlier decision the subject of review five days before hearing – whether the respondent had power to review its decision – whether the review jurisdiction of the Tribunal ended in consequence of the respondent’s decision to set aside its earlier decision Acts Interpretation Act 1954 (Qld) s 24AA Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, s 18, s 19, s 20, s 21, s 23 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2), s 304M, s 354 Lieberman v Morris [1944] HCA 13 RPG v Public Safety Business Agency [2016] QCAT 331 Till v Logan City Council (No 2) [2020] QCATA 11 APPEARANCES & REPRESENTATION: Applicant: D Keane of counsel instructed by Derwent Perez Lawyers Respondent: Self-represented by in-house legal officer D Taylor REASONS FOR DECISION [1] The applicant DBC applied for a blue card. [2] On 20 May 2019 his application was refused on the basis that an exceptional case existed whereby it would not be in the best interests of children for a positive notice to be issued to him. Had an exceptional case not been found to exist, the Department would have been obliged to issue a positive notice. [3] DBC applied to the Tribunal to review that decision on 18 June 2019. The matter was listed for hearing on Wednesday 30 September 2020. Statements of evidence had been filed. Counsel had been engaged by DBC. [4] On Friday, 25 September 2020 the Tribunal was advised by email from the Department as follows: Having regard to the further material which has been filed in these proceedings, I have reconsidered this decision. I have written to DBC’s legal representative and advised him of the decision. I have further advised him how the matter may be withdrawn. The hearing of this matter presently scheduled for Wednesday 30 September 2020 will now no longer be required and can be vacated. [5] On the afternoon of 25 September 2020 DBC’s legal representative advised the Tribunal that they had received the email from the Department advising the hearing on 30 September 2020 “was no longer required”. The legal representative went on to say DBC had not been asked by the Department to consent to any such proposal to -- 2 of 8 -- 3 the Tribunal and there had been no attempt by the Department to obtain the consent of DBC. [6] The applicant’s legal representative took issue with the notice. By later email to the Tribunal on 25 September 2020 DBC’s representative advised: We received an email this morning from the respondent advising that the respondent has advised the Tribunal that the hearing on 30 September 2020 “was no longer required”. We have not been asked by the respondent to consent to any such “advice” to the Tribunal and the respondent did not make any attempt to obtain our client’s consent. To the contrary, the respondent has advised it will cancel the respondent’s negative finding against our client and require our client to subject himself again to the same application process through which he had already gone and was the very subject of the application to the Tribunal. We have written to the respondent advising that our client cannot overlook the purported action, which could be considered oppressive, and have asked the respondent to consent to the orders requested in our client’s application. Until such time as the respondent responds to the application appropriately, and within its powers and in accordance with the QCAT Act, or confers with our client for orders to be made by consent, our client does not withdraw his application and asks that the matter proceed in accordance with the orders made by the Tribunal. [7] A review before the Tribunal entails exercise of a discretion by the Tribunal. Once seized of that jurisdiction, it is not for the parties to agree to consent orders. That would constitute abnegation of exercise of discretion by the Tribunal: The Act invests the court with a discretionary jurisdiction, and it is clear that no agreement inter partes can divest it of that jurisdiction.1 [8] I made that point clear to the parties on the morning of hearing. [9] The legal representative for the Department reiterated that the Department had reconsidered its decision and had cancelled the negative notice previously issued. [10] Whilst I was not prepared to entertain a consent order to dispose of the matter, I had considered the evidence filed and I voiced my view that the evidence did not justify a finding that in DBC’s situation an exceptional case was made out to disqualify him from a positive notice. I was prepared to make orders accordingly given the position adopted by the Department on the evidence filed. [11] The Department however challenged the standing of the Tribunal to make findings or in fact to be able to further deal with the application. [12] The Department claimed that the Department had made a decision under s 304M of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) to cancel the negative notice it had issued (the subject of the review) and substitute a working with children authority (positive notice). Section 304M allows a decision maker to reverse its decision if the Department becomes aware of information previously unknown. According to the Department, its decision made five days before 1 Lieberman v Morris [1944] HCA 13 (Rich J). -- 3 of 8 -- 4 hearing, setting aside the decision under review, meant that there was no longer a reviewable decision before the Tribunal. [13] The Department continued that what DBC was obliged to do in such circumstances was make another application to the Department and the Department would reconsider it. The Department assured the Tribunal (and DBC) that the reconsideration would probably be mostly of a procedural nature as was required even if the Tribunal had made a formal finding after hearing that his case was not an exceptional one within the meaning of s 221(2) of the WWC Act. [14] I disagreed with the submission that a decision made by the respondent Department under s 304M, could suddenly, unilaterally, disarm the Tribunal of review jurisdiction. [15] Whilst DBC’s legal representative did not take issue with the claim by the Department that it had made a decision under s 304M which operated to end the review before the Tribunal, he did take issue that exercise of the s 304M power did not automatically entitle DBC to a working with children authority. That was not conceded by the Department. [16] I indicated that I intended to proceed with the hearing, that I determined that DBC’s case was not an exceptional case and I invited the legal representatives to word an appropriate order. I agreed with the Department’s legal representative that the Tribunal was not able to go further and direct the issue of a positive notice for the reasons explained in RPG v Public Safety Business Agency.2 [17] Noting the Department’s objection to the authority of the Tribunal to make orders concerning DBC’s application for review, both legal representatives suggested an order in the terms suggested by RPG v Public Safety Business Agency, and I ordered accordingly. [18] The Department has requested reasons for my decision. I understand that my reasons are sought principally in respect of my rejection of their submission that their decision purportedly made on or about 25 September 2020 to cancel the negative notice ended the Tribunal’s jurisdiction to proceed further with the application for review filed by DBC on 18 June 2019. Whether an exceptional case existed [19] For the sake of completeness I first briefly address the issue as to whether DBC’s case was an exceptional one. [20] DBC is a 54 year old man who currently lectures at a university in Queensland. He is interested in cricket and coaching cricket. He previously lived in Western Australia and coached junior cricket there for quite a few years. He moved to Queensland in about 2017 and took up coaching senior cricket. He then applied for a blue card to allow him to coach junior cricket as well. He was a volunteer. [21] His application was refused by the Department and a negative notice issued because the Department found he had been charged with offences. He suffered no conviction, however the Department decided his was an exceptional case. It is not clear from the reasons for decision how the matters of alleged commission of offences took on weight over the positive material he presented. 2 [2016] QCAT 331, [27]. -- 4 of 8 -- 5 [22] The charges brought against him were made quite some time ago, in 2015. They all concerned complaints made against him by his second wife after their very short marriage failed. According to DBC, the couple were married in about March 2015 and separated in November 2015. [23] The accusations were of domestic violence directed towards the wife by DBC. The complaints were made after separation. [24] The alleged offences did not occur in the course of employment nor were children present when the claimed incidents of domestic violence occurred. [25] Though complaints were made by the wife to police in three States none resulted in conviction and there are no matters of complaint extant. All were either dismissed by a court or withdrawn by police. An interim Family Violence Order was made against him in Victoria but it was subsequently struck out by a Magistrate at hearing. The Victoria Police advised him there was insufficient evidence to pursue the complaints made there. [26] The incidents the subject of complaint supposedly occurred on 25 or 26 January 2015, 27 October 2015 and 30 October 2015. [27] DBC has denied all the accusations levelled against him by his former wife. He claims his ex-wife threatened him not to leave her when he proposed to do so and she said if he did, she would ruin his reputation and career. He maintains the accusations of domestic violence against him are fabrications designed to do just that. [28] In proceedings against him in the Magistrates Court of Western Australia, which went to trial, the Magistrate said with respect to one claimed incident of biting, that there was no evidence to support the claim to injuries. People who should have been able to give evidence about that did not at hearing. The Magistrate concluded the wife exaggerated events. He found DBC not guilty on the two charges brought against him in that jurisdiction. [29] DBC provides a number of references. The referees state they are aware of accusations and charges of domestic violence made against him. Despite that they support him as a person of excellent character. They referred to his involvement in cricket in Western Australia. They supported his application for a Blue Card in Queensland to enable him to coach junior cricket in Queensland. [30] Of no mean significance, his first wife also gave him a reference. She said she had known him for almost 35 years as at the date of the reference and he had never physically threatened, abused or harmed her in any way. She described him as a kind, loving and nurturing father to their children. She referred to his commitment to coaching cricket. She said his commitment had never been questioned by participants or parents of juniors. She was aware of the charges brought against him. [31] A matter of some additional note is that, according to DBC, and his statement is not challenged, in the proceedings in the Magistrates Court of Western Australia the State was ordered to pay his costs. [32] Costs orders in police prosecution matters are not common, at least not in Queensland, and might reasonably be taken to reflect a conclusion by a court that a prosecution should not have been brought on the evidence relied on. [33] I noted the Department has resiled from its view that the circumstances made DBC’s case exceptional, and I also took that into account. -- 5 of 8 -- 6 [34] I concluded his was not an exceptional case to warrant issue of a negative notice in all the circumstances. Review jurisdiction The Tribunal review scheme [35] I am not aware of an authority directly relevant to the jurisdictional point taken here. I note in Till v Logan City Council (No 2),3 a decision on costs following exercise of review jurisdiction, the Appeal Tribunal cited s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in reliance on the assertion: Once the review jurisdiction was enlivened, only the Tribunal (and later the Appeal Tribunal) could determine the matter or invite the Council to re-consider the matter.4 [36] By s 17 of the QCAT Act the Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made by another entity under that Act. That decision is called the reviewable decision. [37] By s 18 the Tribunal may exercise its review jurisdiction if a person applies to the Tribunal to exercise its review jurisdiction for a reviewable decision. [38] By s 19(c) the Tribunal has all the functions of the decision maker for the reviewable decision being reviewed. [39] By s 20 the purpose of review of a reviewable decision is to produce the correct and preferable decision, and in exercising its review jurisdiction the Tribunal must hear and decide a review by way of fresh hearing on the merits. [40] By s 21 the decision maker must help the Tribunal so that the Tribunal can make its decision on review. [41] There is scope for further involvement by the original decision maker in revisiting the reviewable decision, but only on invitation by the Tribunal. By s 23 of the QCAT Act the Tribunal may invite the decision maker to reconsider its decision. If so invited, the decision maker has 28 days to reconsider its original decision. One course possible in such circumstances is that, pursuant to s 23(2)(b)(iii), the decision maker sets aside the decision and substitutes a new decision. If that happens, significantly, the new decision becomes the reviewable decision but the review still continues. [42] There was no invitation made to the decision maker here by the Tribunal to reconsider its decision. [43] If the Tribunal decides to confirm or set aside the reviewable decision the Tribunal’s decision is taken to be a decision of the decision maker and has effect from when the reviewable decision took effect.5 3 [2020] QCATA 11. 4 Ibid, [19]. 5 QCAT Act, s 24(2). -- 6 of 8 -- 7 The WWC Act legislative scheme [44] The WWC Act provides for review of a Chapter 8 reviewable decision to the Tribunal.6 A decision whether or not an exceptional case exists for a person to be given a negative notice is a Chapter 8 reviewable decision.7 [45] There is nothing novel or controversial about the power granted the Department under s 304M to cancel a negative notice because new information comes to hand not known when the decision was made. Decision makers have had a general authority to amend or repeal their decision for some time by virtue of s 24AA of the Acts Interpretation Act 1954 (Qld) which provides: 24AA Power to make instrument or decision includes power to amend or repeal If an Act authorises or requires the making of an instrument or decision— (a) the power includes power to amend or repeal the instrument or decision; and (b) the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision. [46] It would however be novel and controversial if that power was able to be used to prevent or stymie an independent external merits review clearly intended to make a new decision and in doing that operate independently of the original decision maker. [47] There is potential for abuse if that was not the case, where, such as in the matter at hand, the Department attempts to set aside a decision being reviewed shortly before the review is heard by the Tribunal and then requires the applicant to make a fresh application. If the applicant is forced to that course he or she may find themselves again refused a positive notice, and thus a potential round-robin of fresh proceedings for review in the Tribunal arises. That cannot have been the intention of the WWC Act in providing the Department with the s 304M power. [48] Indeed this was the very objection taken by DBC’s legal representatives when first informed by the Department that there would not be a hearing because the Department had made another decision cancelling its earlier decision that his matter involved an exceptional case. [49] I conclude that once an applicant seeks review of a reviewable decision in the Tribunal the only circumstance where reconsideration of the reviewable decision is permitted the decision maker is the limited invitational basis provided by s 23 of the QCAT Act. Even in those limited circumstances any such subsequent amended decision does not proceed without supervision of the Tribunal but continues life as the reviewable decision before the Tribunal for the Tribunal’s assessment as to whether it is, in fact, the correct and preferable decision. [50] Once seized of review jurisdiction, the Tribunal stands in the shoes of the decision maker8 and the original decision maker is without power to reconsider, set aside or confirm the review decision save as provided for in the QCAT Act. The Tribunal steps 6 Section 354. 7 Section 353 (definition of ‘chapter 8 reviewable decision’ para (a)). 8 Section 19(c) QCAT Act: “the Tribunal … has all the functions of the decision-maker for the reviewable decision being reviewed”. -- 7 of 8 -- 8 into the shoes of the original decision maker. It is the Tribunal that is required to conduct a fresh hearing on the merits and reach its own correct and preferable decision. [51] The purported exercise of a power of review under s 304M so as to preclude the review process before the Tribunal might appropriately be described as an “…attempt to oust or fetter the discretion of the court entrusted with the application of the section”, where section may be understood as the review jurisdiction of the Tribunal.9 [52] Present form s 304M was introduced by the Working with Children (Risk Management and Screening) and Other legislation Act 2019 (Qld). According to the Act’s Explanatory Notes it is nothing more than a reframing and restatement of former provisions s 238(1)(c) and s 296(1)(c). [53] Section 304M is to be found in Division 6 of Chapter 8 of Part 5A of the WWC Act. Part 5A is headed “Suspension or cancellation of working with children authority”. [54] Division 2 of Part 5A is entitled “Suspension of working with children authority”. Division 3 concerns cancelling working with children authority without suspension. Division 4 concerns cancelling working with children authority on the holder’s request. Division 5, cancelling negative notice on holder’s request, is followed by Division 6, other cancellation of negative notice. Section 304M is to be found in this last general catchall. [55] By contrast, s 354 which makes provision for application to the Tribunal for review of Chapter 8 reviewable decisions, is to be found in Division 3 of Part 7 of the WWC Act, entitled “Review and appeal”. [56] Section 304M has no logical connection with the review and appeal provisions of Part 7 of the WWC Act. It sits appropriately with other matters of direct first instance departmental decision making found in Part 5A. [57] The opportunity for the original decision maker to reconsider an earlier challenged decision must be strictly controlled where legislation creates provision for independent external review. [58] Once review proceedings are instituted the relevant decision maker for the reviewable decision is no longer the chief executive but the Tribunal, and in exercising QCAT’s review jurisdiction the review proceeds in accordance with the QCAT Act unless the enabling Act provides otherwise. Section 304M does not constitute a provision providing to the contrary. [59] DBC has asked for costs and I have made directions for submissions to be made about that. 9 Lieberman v Morris [1944] HCA 13 (Williams J). -- 8 of 8 --