FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381

CITATION: FMA v Chief Executive Officer, Public Safety Business Agency (No 2) [2016] QCAT 381 PARTIES: FMA (Applicant) v Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML103-16 MATTER TYPE: Childrens matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Howard DELIVERED ON: 27 October 2016 DELIVERED AT: ORDERS MADE: Brisbane 1. The reasons for decision dated 27 October 2016 may be published in de- identified format only. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case STATUTES – ACTS OF PARLIAMENT - INTERPRETATION – substance of review – orders that may be made by Tribunal – whether orders may be made about the issue of a positive notice and/or blue card Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 24 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 220, s 221, s 239, s 225, s 353, s 354 FMA v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 210 RPG v Public Safety Business Agency [2016] -- 1 of 7 -- 2 QCAT 331 APPEARANCES and REPRESENTATIVES (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] FMA made application to the Chief Executive, Public Safety Business Agency (‘PSBA’ or ‘the Chief Executive’) for a positive notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’). PSBA records that the positive notice (and the blue card it entitled him to) was renewed on 6 May 2015, following an application made by FMA in March 2015. However, on 16 October 2015, PSBA was notified by the Queensland Police Service (‘QPS’) that his police information had changed and his eligibility was reassessed. Following that reassessment, a negative notice issued to FMA on 8 April 2016. [2] FMA applied to the Tribunal for a review of the decision to issue a negative notice to him. [3] I heard the review on 24 June 2016. On 15 July 2016, I made orders setting aside the decision of PSBA and declaring that FMA’s case is not an exceptional case under s 221(2) of the WWC Act. Further, I made non- publication orders. My reasons for decision are contained in FMA v Chief Executive Officer, Public Safety Business Agency.1 [4] However, I left open the question whether I should make any other orders, pending further submissions from the parties. In particular, the outstanding issue was whether the Tribunal, if it set aside PSBA’s decision, could also make orders that a positive notice issue. It is an issue of statutory interpretation. [5] PSBA submits that the Tribunal has no jurisdiction to make any further orders. It submits that once a decision is made about whether the case is exceptional, the Tribunal has no further jurisdiction to make directions for the issuing of notices by PSBA. It submits that no further orders are appropriate in this proceeding. [6] FMA’s further submission explained that following the Tribunal’s decision, he had been notified by PSBA that his application had been approved and that he would receive his positive notice and blue card by mail. [7] In light of FMA’s submissions, I do not need to make any further orders: the orders made on 15 July 2016 have resulted in the finalisation of his application. Therefore, I do not need to decide whether the Tribunal has jurisdiction to make orders that a positive notice issue. 1 [2016] QCAT 210. -- 2 of 7 -- 3 [8] However, it is appropriate to make some observations. Observations [9] Since my reasons for decision of 15 July 2016, the question of the orders that can be made on a review in this context has been considered in a number of tribunal decisions,2 including a decision made by a Judicial Member of the Tribunal in RPG v Public Safety Business Agency (‘RPG’).3 [10] In RPG, the Tribunal determined a contempt application against the Chief Executive. The contempt application arose out of orders made in determination of a review proceeding. Those earlier orders set aside a negative notice issued by PSBA and issued a positive notice. PSBA had required that the successful review applicant lodge an updated application for its consideration, in line with internal policy guidelines. In RPG,4 an updated application was said to be necessary to ensure that the person concerned still proposed to engage in regulated child-related employment or business activities.5 The contempt application alleged that the Chief Executive had deliberately defied the order. [11] PSBA argued that the Tribunal’s order was ultra vires and that all the Tribunal could do was substitute its review findings for the reviewable decision, leaving it for the Chief Executive to implement the decision according to law. [12] Although it did not engage in a detailed consideration of the WWC Act, the Tribunal held that on review the tribunal had power to set aside PSBA’s decision that it is an ‘exceptional case’ within the meaning of s 221(2) of the WWC Act and replace it with the Tribunal’s decision that there is no exceptional case. It further held that the Tribunal had no power to order that a positive notice or blue card be issued, suggesting that the Chief Executive was obliged to issue a positive notice within a reasonable time of the Tribunal’s decision. The Tribunal observed that failure to do so may render the Chief Executive liable for criminal prosecution. [13] The relevant provisions of the WWC Act are arguably clumsily drafted. Unfortunately, it does not appear from the reasons for decision in RPG that the Tribunal was provided with detailed submissions about the construction of the relevant provisions of the WWC Act, and the QCAT Act, which have arisen in recent months in light of PSBA’s submissions. As a result, and with respect, there may be unresolved issues outstanding despite the construction adopted in RPG. 2 For example, see Neilson v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 263; Sargent v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 333. 3 [2016] QCAT 331. 4 In other cases, the requirement for an updated application has been suggested as serving a broader purpose, see FMA v Chief Executive, PSBA [2016] QCAT 210, [13] and [113]. 5 RPG [2016] QCAT 331, [5]-[6]. -- 3 of 7 -- 4 [14] Therefore, I make the following further observations. I do not set out again here the issues canvassed in my earlier reasons for decision,6 but those reasons should be read with these observations. [15] Under s 354(1), a relevant person may apply to QCAT for review of a chapter 8 reviewable decision.7 There is no review against a decision of the PSBA ‘…to issue…. a negative notice’, ‘other than because of a chapter 8 reviewable decision’: WWC Act, s 354(3). Chapter 8 of the WWC Act is entitled ‘Screening for regulated employment and regulated businesses’. It encompasses a myriad of Parts and Divisions concerning various aspects of the screening process. A ‘chapter 8 reviewable decision’ is relevantly defined in s 353 as a decision of PSBA as to whether or not there is an exceptional case if because of the decision, a negative notice was issued by the chief executive. Put another way, a chapter 8 reviewable decision is arguably a review of a negative notice that issued because PSBA decided that there was an exceptional case. The limitation is significant, as there are other circumstances in which a negative notice may issue under the WWC Act: when the holder of a positive notice becomes a relevant disqualified person, PSBA must issue a negative notice.8 There is no review to QCAT in those circumstances. [16] PSBA effectively submits that s 354(3) cannot extend the jurisdiction of the Tribunal beyond the definition in s 353. It submits that under the definition, the issue of a negative notice is a precondition to the existence of a chapter 8 reviewable decision. However, the definition of chapter 8 reviewable decision in s 353 and the plain words of s 354 arguably sit more harmoniously if constructed as I suggest is possible, such that, the decision reviewed is the decision to issue a negative notice where it results from a finding that it is an exceptional case. [17] This construction may also, arguably, sit better with the broader legislative scheme under the WWC Act and the relevant provisions of the QCAT Act. [18] Under s 221 of the WWC Act, a positive notice must issue unless PSBA is satisfied it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue, in which case a negative notice must issue. Conversely, if s 225 applies to an applicant, a negative notice must issue unless PSBA is satisfied it is an exceptional case in which it would not harm the best interests of children for a positive notice to issue, then PSBA must issue a positive notice. [19] In conducting its review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal has all of the functions of the decision-maker (in this case, the PSBA) for the review of the reviewable decision.9 The purpose of the review is to produce the ‘correct and preferable decision’.10 The Tribunal must hear and decide the 6 FMA v Chief Executive, PSBA [2016] QCAT 210. 7 WWC Act s 354(1). 8 WWC Act s 239. 9 QCAT Act s 19(c). 10 Ibid, s 20(1). -- 4 of 7 -- 5 review by way of a fresh hearing on the merits of the application.11 Accordingly, it is a hearing de novo, and the Tribunal effectively stands in the shoes of the original decision-maker for the review and makes its own decision, based on the evidence before it and the applicable law. [20] In a review proceeding, the tribunal may (under s 24(1)(a) of the QCAT Act) confirm or amend the decision; (under s 24(1)(b) of the QCAT Act) set aside the decision and substitute its own decision; or set it aside and return the matter to the (original) decision-maker with any directions it considers appropriate. Section 24(2) of the QCAT Act provides: (2) The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision— (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect. 12 [21] Accordingly, under the WWC Act and the QCAT Act, QCAT then stands in the shoes of PSBA in deciding afresh whether it is an exceptional case. In deciding whether there is an exceptional case, the PSBA, (and on review, arguably, the Tribunal) must decide the application by issuing a positive notice or confirming the negative notice.13 As I explained in my previous reasons for decision,14 except for the decision about whether there is an exceptional case (under s 221 or s 225), the PSBA makes no other decision. The outcome is provided for by the legislation in s 221 and s 225. Yet, the WWC Act provides in s 220 that the decision of PSBA on the application must be made by issuing a positive or negative notice. [22] If the construction in RPG is correct, then logically, in making a finding about whether it is an exceptional case or not, the Tribunal has no power to set aside a negative notice. It could do no more than set aside the finding of PSBA about whether there is an exceptional case and nothing more, leaving in place, inconsistently with the Tribunal’s finding on review (and therefore arguably inappropriately having regard to s24(2)(a) and (b) of the QCAT Act, a negative notice. Indeed, PSBA’s submissions do not appear to contend that the tribunal cannot set aside a negative notice. Rather, it appears PSBA is concerned only with whether the tribunal has power to decide to issue a positive notice. In the recent cases of Neilson v Chief Executive Officer, Public Safety Business Agency, 15 and Sargent v Chief Executive Officer, Public Safety Business Agency 16 after hearing PSBA’s arguments about these matters, the Tribunals concerned both made orders setting aside the negative notice issued by PSBA and then made orders to the effect that the case was not an exceptional one, leaving what was 11 Ibid, s 20(2). 12 Emphasis added. 13 WWC Act s 220, s 221 and s 225. 14 FMA v Chief Executive, PSBA [2016] QCAT 210. 15 [2016] QCAT 263 16 [2016] QCAT 333. -- 5 of 7 -- 6 described by one Tribunal as the ‘operational components’ of ‘the decision’ to PSBA.17 (In that case, the Tribunal also considered it arguable that the Tribunal had power to make an order about the issue of a positive notice on the basis that such an order was ancillary to the decision or finding about whether it is an exceptional case under s114 of the QCAT Act, but appears to conclude that it did not).18 [23] It seems unlikely that Parliament intended either of these outcomes, that is, inconsistently leaving a negative notice in place in circumstances when the tribunal has found it is, or is not, as the case may be, an exceptional case, or setting aside a negative notice and leaving no decision in place, although the Tribunal has found that it is or is not an exceptional case, in circumstances when the legislation requires the decision-maker must decide to issue a positive notice. Although the reviewable decision/s for which Parliament has given review jurisdiction to QCAT is/are, of course, a matter of statutory construction in each case, the broader legislative scheme anticipates that decisions, not findings, are reviewable. [24] Under the legislative scheme, a decision of the Tribunal on the review that is inconsistent with the PSBA’s decision about whether the case is exceptional, results in the setting aside of the negative notice and issuing of a positive notice. It is important to note, that a positive notice is not a blue card, to which a positive notice entitles the holder: a blue card is separately issued.19 If there is an operational component incidental to either a finding about whether it is an exceptional case or the issue of the positive notice, it may arguably be the issue of a blue card. [25] If a negative notice was issued by PSBA and the Tribunal finds on review that a particular case is exceptional, or not, (depending on whether s221 or s225 is invoked), under the statutory scheme it must (standing in the shoes of the chief executive) arguably decide, either, to confirm the decision to issue a negative notice or to set aside that decision and issue a positive notice pursuant to s221 and s220, or s225 and 220, respectively. [26] Further, while acknowledging that under the WWC Act that the best interests of children are paramount, I observe that the requirement for a successful review applicant to make a fresh application before the Tribunal’s decision is implemented by PSBA based on internal policy rather than a legislative requirement appears problematic for the reasons articulated in my earlier decision. Additionally, it inconsistent with s24(2)(b) of the QCAT Act which provides that, unless the tribunal otherwise orders, the tribunal’s decision to confirm, or set aside and substitute its own decision, takes effect from when the reviewable decision takes effect. There is no power to delay its implementation on the basis of internal policy, although, in the rare circumstances where new information has come to hand which is of concern, PSBA could of course immediately cancel the 17 Neilson v PSBA [2016] QCAT 263, [45-49]. 18 Ibid, [48-49]. 19 See WWC Act Schedule 7, ‘positive notice blue card’. -- 6 of 7 -- 7 positive notice on the basis of the new information received after the Tribunal hearing. [27] If PSBA’s construction of the provisions of the WWC Act is as Parliament intended, some legislative amendment to clarify any intended modification of the usual provisions of the QCAT Act may be helpful. Non-publication order [28] A non-publication order is in place, as made at the time of my earlier decision. Other than to the parties, these reasons may be published in de- identified format only. -- 7 of 7 --