Chief Executive Officer, Public Safety Business Agency v Hamilton [2016] QCATA 106

CITATION: Chief Executive Officer, Public Safety Business Agency v Hamilton [2016] QCATA 106 PARTIES: Chief Executive Officer, Public Safety Business Agency (Appellant) v Hamish Hamilton (Respondent) APPLICATION NUMBER: APL177-15 MATTER TYPE: Appeals HEARING DATE: 5 April 2016 HEARD AT: Brisbane DECISION OF: Senior Member Endicott Member Joachim DELIVERED ON: 28 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside and returned to the Tribunal Member who determined the review with the following directions: (i) The application for review is to be decided by determining whether Mr Hamilton’s case is an exceptional one such that it would harm the best interests of children for him to have a positive notice without any considerations of the completion of his acupuncture training and without any considerations for the primary reason he requires a positive notice. (ii) Should it be determined that Mr Hamilton’s is not an exceptional case no conditions regarding his requesting a cancellation of his positive notice are to be imposed. CATCHWORDS: APPEAL – BLUE CARD – where decision made that positive notice should issue – where -- 1 of 7 -- 2 condition imposed that applicant must apply to revoke the positive notice after graduation from a specified course – whether condition could be imposed – whether error of law had occurred Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17, 19, 24, 142, 146 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, 231, 244, 353 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027 House v R [1936] HCA 40 JQB v Commissioner for Children and Young People and Child Guardian [2014] QCAT 354 LGT v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 692 W v Commission for Children and Young People and Child Guardian [2011] QCAT 431 Wailu v Commissioner for Children and Young People and Child Guardian [2014] QCAT 323 APPEARANCES: APPLICANT: Ms L Keown represented the Public Safety Business Agency RESPONDENT: Mr Hamilton represented himself REASONS FOR DECISION [1] In order to be engaged in child related employment activities including volunteering with children in Queensland, a person needs to be issued with a positive notice and blue card by the Public Safety Business Agency (PSBA). Previously, the Government Agency concerned was the Commissioner for Children and Young People and Child Guardian. [2] Mr Hamish Hamilton was issued with a positive notice and blue card on 6 March 2013. On 1 August 2013, the Queensland Police Service notified the then Commissioner for Children and Young People and Child Guardian that Mr Hamilton’s police information had changed. The Commissioner subsequently reassessed Mr Hamilton’s eligibility to hold a blue card, and on 25 October 2013 Mr Hamilton’s positive notice and blue card was cancelled and he was issued with a negative notice. -- 2 of 7 -- 3 [3] Mr Hamilton sought a review of this decision in the Queensland Civil and Administrative Tribunal review jurisdiction, and the matter was heard on 13 March 2014, with the decision being delivered in his favour on 30 March 2015. This decision set aside the decision of the Chief Executive to cancel a positive notice and blue card, and the Tribunal directed that Mr Hamilton be issued with a positive notice and blue card. The Tribunal further ordered that within a month of the completion of and graduation from his Bachelor of Health Science and Acupuncture that Mr Hamilton apply to the Chief Executive to have his blue card cancelled. [4] Mr Hamilton needs a blue card to complete a Bachelor of Health Science and Acupuncture. He commenced that course in 2008 and has completed all but nine hours of student clinical work in this course. He is required to do these nine hours with children. The PSBA subsequently appealed to the Appeal Tribunal at QCAT. The PSBA have appealed on a question of law. Subsequently, there is no requirement for the Appeal Tribunal to grant leave. There are two grounds of appeal: 1) The Tribunal misdirected itself and/or erred at law as to the scope of its jurisdiction by directing that Mr Hamilton may apply for the cancellation of his blue card under s 244 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’) within one month of the completion of and graduation from his Bachelor of Health Science and Acupuncture; and 2) The Tribunal exercised its discretion based upon wrong principle, or was guided by irrelevant or extraneous considerations, namely the proposed employment activities of Mr Hamilton and his willingness to relinquish his blue card following graduation. [5] When the Tribunal decides an appeal on a question of law only, the Appeal Tribunal may:1 146 Deciding appeal on question of law only In deciding an appeal against a decision on a question of law only, the appeal tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration— (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii) with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraph (a), (b) or (c). 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 146. -- 3 of 7 -- 4 [6] In determining this matter the Tribunal will be guided by the principles outlined in House v R.2 In that matter their Honours state: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. [7] The Appeal Tribunal now turns its attention to the grounds of appeal. Ground 1 - the Tribunal misdirected itself and/or erred at law as to the scope of its jurisdiction by directing that Mr Hamilton apply for the cancellation of his blue card under s 244 of the Act within one month of the completion of, and graduation from, his Bachelor of Health Science and Acupuncture [8] The PSBA submitted that during evidence at the review hearing, Mr Hamilton stated that he was a student undertaking a Bachelor of Health Science and Acupuncture and that the sole purpose for requiring a blue card was to enable him to complete the nine hours of clinical placement. [9] The PSBA has submitted that the only decision of the Chief Executive, and accordingly the only relevant reviewable decision available to the Tribunal under the Act, is whether or not there is an exceptional case as prescribed by s 353(a) of the Act. When satisfied as to whether or not an exceptional case exists, the decision-maker has no discretion to make any other decision. The consequential effects, it is argued, of that decision, are only those prescribed by s 221(2) of the Act, namely that a positive notice or negative notice be issued. [10] The PSBA submitted that the Tribunal is limited to deciding whether or not Mr Hamilton’s case is an exceptional one, and that the decision cannot be supplemented by additional conditions regarding the use or longevity of the card. A positive notice remains in place for three years unless it is cancelled pursuant to Division 11 of the Act and, it is argued by the PSBA, that the Tribunal has no discretion to vary the period of the notice prescribed by that section. [11] The Agency also argued that there is no provision under the Act to issue a blue card for a limited period of time, or to place restrictions or conditions around the use of the blue card. Once issued, it is argued, a blue card is 2 [1936] HCA 40. -- 4 of 7 -- 5 fully transferrable across all areas of child related employment. Section 244 of the Act, the PSBA notes, does allow a person to request that their positive notice be cancelled, but there is no power under the Act, or the Tribunal on review to compel a person to do so. The PSBA submitted that the review Tribunal acted outside of ss 17, 19 and 24 of the QCAT Act which refer to the Tribunal’s review jurisdiction and its functions. [12] The PSBA submits that the imposition of a condition compelling Mr Hamilton to surrender the positive notice and blue card after a prescribed period of time is ultra vires and an error of law. The PSBA submitted there are no provisions in the Act to impose conditions upon the issuance of a positive notice, or any general application which allows a positive notice to remain current other than as prescribed in s 231 of the Act. The PSBA further submitted that there is no scope within the blue card regime for monitoring, there is no power given under the Act to follow up, and no requirement under the Act for the PSBA to monitor the use of a blue card. [13] The PSBA submits that had the Tribunal been satisfied upon consideration of all the evidence that the protective factors outweighed the risk factors, then the decision that Mr Hamilton be issued with a blue card would not have included the additional direction regarding cancellation of such card following completion of his practicum. The PSBA argues that the Tribunal must have held some degree of reservation regarding Mr Hamilton’s eligibility. The Agency submitted that the Tribunal has erred in law as to the scope of its jurisdiction in making the decision to set aside the Chief Executive’s decision and directing Mr Hamilton to apply for a cancellation of his blue card after completion of his course. [14] Mr Hamilton made written submissions to the Appeal Tribunal. None of his written submissions made any reference to the substantive matters or the relevant legislation which the Appeal Tribunal needed to consider. He contended however, that he should be given a blue card and this matter should be put to rest so he can finalise his studies. He submitted that he would be no risk to children. He made oral submissions at the appeal hearing that he does not want to work with children, and that he is willing to hand in his blue card. He submitted that he had a blue card, notwithstanding a previous lengthy criminal history, and this was only revoked by the PSBA following a minor marijuana charge. [15] The Appeal Tribunal agrees with the PSBA that the Tribunal went beyond its powers and has no authority to require a blue card holder to surrender his or her blue card at any time. The only circumstances under which a blue card can be surrendered by a blue card holder, is if the individual decides to ask the PSBA to cancel the positive notice. Of course, the other circumstance where a positive notice is cancelled is where the PSBA conducts a reassessment of a person’s eligibility to hold a blue card. This is done in limited circumstances, generally related to the receipt of new information about the person’s criminal history or disciplinary history. [16] The Appeal Tribunal accepts that there is no power to issue a blue card for less than three years, and Mr Hamilton’s rights under the Act to hold a blue -- 5 of 7 -- 6 card for three years should only be subject to cancellation in circumstances specified in the Act. The surrender condition is an error of law. It is unclear from the Learned Member’s reasons as to why she decided to place the condition on Mr Hamilton to request to have his blue card cancelled after completion of his practicum following his graduation. It does appear that perhaps she made this decision because he volunteered to ask for it to be cancelled. [17] Ground 1 of the grounds of appeal is made out. Ground 2 – The Tribunal exercised its discretion based on wrong principle or was guided by an irrelevant or extraneous consideration, namely the proposed employment activities of Mr Hamilton and his willingness to relinquish the card following his graduation [18] The PSBA submitted that once issued, a blue card is fully transferrable across all areas of child related employment, including in environments where a person exercises a position of trust, or has unsupervised or unfettered access to children and young people. The PSBA cites a number of cases in which the transferability of blue cards have been considered by both the review Tribunal and the Appeal Tribunal.3 [19] In Ram, the Appeal Tribunal noted that while the Act does not mandate that the Tribunal on review must consider the transferability of a blue card as being a relevant factor when determining whether an exceptional case exists, that factor is relevant to consideration of whether it would be in the best interests of children for a blue card to be issued. [20] The PSBA submits that the Tribunal’s: ...clear consideration of a reliance on the sole purpose for which the Respondent required a positive notice and blue card in this matter, namely to complete the final practicum of his studies is an irrelevant or extraneous consideration given the transferability of the blue card. [21] The PSBA argues that the review Tribunal was clearly persuaded by the fact that Mr Hamilton had only a limited number of hours of practicum to complete before being able to graduate from his course. The PSBA argues that ‘directing that the Respondent cancel his blue card after completion of and graduation from his course suggests that the Tribunal contemplated him using the blue card for no other purpose than the completion of his course’. The PSBA submits that the paramount consideration in determining eligibility to hold a blue card is that the best interests of children is paramount and any hardship or prejudice suffered by an applicant is an 3 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 027 (‘Ram’); JQB v Commissioner for Children and Young People and Child Guardian [2014] QCAT 354; LGT v Chief Executive Officer, Public Safety Business Agency [2014] QCAT 692; Wailu v Commissioner for Children and Young People and Child Guardian [2014] QCAT 323; W v Commission for Children and Young People and Child Guardian [2011] QCAT 431. -- 6 of 7 -- 7 irrelevant consideration, and one which must yield to the protection, welfare, and best interests of children.4 [22] The PSBA has argued that the Member’s reasoning is exemplified clearly in paragraphs [86] and [87] of her reasons when she comes to the view that Mr Hamilton’s case is not an exceptional one after weighing up all the factors, including the protective factors and the risk factors, but also considering that Mr Hamilton requires his blue card for an extremely limited time and that he has advised the Tribunal that he is willing to relinquish his blue card following his graduation. [23] The Appeal Tribunal agrees with the PSBA that these two factors are not a relevant consideration in determining whether or not Mr Hamilton’s case is an exceptional one. The Appeal Tribunal finds as a result that the Learned Member has made an error of law by taking these irrelevant factors into account. [24] Ground 2 is also made out. [25] The Appeal Tribunal considers that this is a case where the matter should be remitted to the Learned Member with directions. Those directions will be that she consider whether an exceptional case exists without taking into account the purpose for which Mr Hamilton requires his blue card, and the period of time left for him to complete his acupuncture training. Finally, there will be a direction that no direction be issued to Mr Hamilton to ask for his blue card to be cancelled in the event that the Member decides that his is not an exceptional case. [26] In this case, the Appeal Tribunal has decided that the condition imposed by the Member was not one allowed by the relevant legislation. The Appeal Tribunal, however, does not necessarily accept that conditions could never be placed around the granting of a blue card. 4 Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171 at [23]. -- 7 of 7 --