Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86

CITATION: Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86 PARTIES: Chief Executive Officer, Public Safety Business Agency (Appellant) v Kahlan Masri (Respondent) APPLICATION NUMBER: APL535-15 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM Member Guthrie DELIVERED ON: 1 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is allowed. 2. The decision of the Tribunal is set aside and the matter is returned to the Tribunal for rehearing. 3. The Appeal Tribunal makes the following directions: i) The Chief Executive Officer, Public Safety Business Agency serve a copy of the QPS Court brief on Mr Masri by no later than 4:00pm on 17 June 2016. ii) The Chief Executive Officer file in the Tribunal two (2) copies and serve on Kahlan Masri one (1) copy of any written submissions the Chief Executive Officer wishes to make upon rehearing by no later than 4:00pm on 17 June 2016. iii) Kahlan Masri file in the Tribunal two (2) copies and serve on the Chief Executive Officer, Public Safety Business Agency one (1) copy of any of any material in response to the -- 1 of 17 -- 2 QPS Court brief and any written submission Kahlan Masri wishes to make at the rehearing by no later than 4:00pm on 1 July 2016. iv) If Mr Masri does not file any material, the application will be listed for a decision on the papers not before 1 July 201. v) If Mr Masri does file material, the application will be listed for a rehearing on a date to be advised. CATCHWORDS: APPEAL – CHILDRENS MATTERS – BLUE CARD – ‘EXCEPTIONAL CASE’ – where respondent sought a review of the decision of the Chief Executive Officer, Public Safety Business Agency – where the respondent did not attend the Tribunal hearing - where the Tribunal found that no exceptional case exists and set aside the Chief Executive Officer’s decision and directed that a positive notice issue – where the Chief Executive Officer appealed on questions of law – whether grounds for appeal APPEAL – CHILDRENS MATTERS – BLUE CARD – where Appeal Tribunal set aside the Tribunal’s decision – where Appeal Tribunal returned the matter to the Tribunal - where the Appeal Tribunal made directions Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 3, 47, 93, 95, 146 Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 167, 222, 226, 360 Asiamet (No.1) Resources Pty Ltd v Commissioner of Taxation (2003) 196 ALR 692 Baldwin v Von Knorring [2015] QCATA 107 Briginshaw v Briginshaw (1938) 60 CLR 336 Commission for Children and Young People and Child Guardian v BWA [2011] QCATA 362 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Young People and Child Guardian v Grose [2013] QCATA 348 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 -- 2 of 17 -- 3 Re Carmel Elizabeth McDonald v Director- General of Social Security [1984] FCA 59 Ericson v Queensland Building Services Authority [2013] QCA 391 APPEARANCES: 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] Kahlan Masri held a positive notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act), commonly referred to as a Blue Card, when, following receipt of information from the Queensland Police Service (the QPS), the Chief Executive Officer decided to cancel the positive notice and issue a negative notice. Prior to making that decision, Mr Masri was invited to provide material to the Chief Executive Officer but he did not do so. [2] Mr Masri applied to the Tribunal for review of the Chief Executive Officer’s decision. Mr Masri did not comply with any of the Tribunal’s directions for the filing of material prior to the hearing. Despite being given notice of the date, time and location of the hearing, he did not attend. At the hearing, the Chief Executive Officer was represented by an advocate. Despite Mr Masri’s non-attendance, the hearing proceeded. The Tribunal decided to set aside the reviewable decision and directed the Chief Executive Officer to issue a positive notice, and a Blue Card, to Mr Masri. [3] The Chief Executive Officer appeals that decision on questions of law only.1 While the Tribunal also decided not to dismiss the application under s 47 of the QCAT Act,2 the Chief Executive Officer does not challenge that determination. [4] The grounds of appeal are:  Ground 1 – The Tribunal erred at law by failing to afford the Chief Executive Officer procedural fairness.  Ground 2 – The Tribunal erred at law by reaching conclusions lacking in substantive evidence to support them.  Ground 3 – The Tribunal erred at law by failing to inform itself of relevant facts before overturning the decision of the Chief Executive Officer. 1 QCAT Act s 146. 2 S 47: dismissing a proceeding that is frivolous, vexations or misconceived or lacking in substance or otherwise an abuse of process; Masri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 448 at [6]-[10] (‘Masri v Chief Executive Officer, PSBA’). -- 3 of 17 -- 4 [5] Mr Masri has not filed any submissions in reply to the Chief Executive Officer’s submissions in the appeal. Ground 1: failure to afford procedural fairness [6] The Chief Executive Officer submits that the Tribunal conducted the proceeding in such a way that he was unable to properly present his case, including being deprived of an opportunity to test the evidence upon which the Tribunal ultimately relied. None of the evidence was tested by cross- examination. [7] The Chief Executive Officer submits that, given the lack of any substantive evidence provided by Mr Masri in support of his application, coupled with his failure to attend the hearing, the Tribunal could not reasonably have formed the view that there was sufficient evidence before it and that the evidence it did have was sufficiently tested. [8] Section 93 of the QCAT Act gives the Tribunal a discretion to hear and decide a matter in the absence of a person provided certain criteria are met. The Chief Executive Officer does not assert that the discretion in s 93 of the QCAT Act was not enlivened. In the weeks leading up to the hearing, registry staff were unsuccessful in their attempts to contact Mr Masri. Notice of the hearing was sent to Mr Masri. On the day of the hearing, the Tribunal tried unsuccessfully to contact him. Those facts are referred to in the learned Member’s reasons.3 It was open for the learned Member to exercise the discretion to proceed with the hearing. [9] The Chief Executive Officer says that the Tribunal must comply with s 95 of the QCAT Act. Section 95 of the QCAT Act provides that the Tribunal must allow a party to a proceeding a reasonable opportunity to: a) call or give evidence; b) examine, cross-examine and re-examine witnesses; and c) make submissions to the Tribunal. [10] The Chief Executive Officer also relies on Practice Direction 3 of 2013, which relevantly states: ‘the decision maker must properly test the evidence relied upon by the Applicant to perform its function of assisting the Tribunal’.4 [11] As Mr Masri did not attend the hearing and no other person attended seeking to give evidence on his behalf, there was no one for the Chief Executive Officer to cross-examine. Indeed, Mr Masri did not file in the tribunal any statements of evidence or other material on which he wished to rely.5 3 Masri v Chief Executive Officer, PSBA [2]. 4 Ibid at [3]. 5 Other than Mr Masri’s Application for review filed in the Magistrates Court at Maroochydore on 11 August 2015 and received by the Tribunal on 13 August 2015. -- 4 of 17 -- 5 [12] The Chief Executive Officer does not argue that he was prevented from calling any witnesses or giving any evidence. The Tribunal had before it and considered the documents lodged by the Chief Executive Officer in compliance with s 21(2) of the QCAT Act. The learned Member states in her reasons that she also considered Mr Masri’s application for review to the Tribunal.6 [13] The representative of the Chief Executive Officer was familiar with the material before the Tribunal and was given the opportunity to make submissions. [14] Section 95 of the QCAT Act refers to a party being given a ‘reasonable opportunity’ to cross-examine witnesses. This presupposes that a witness gives evidence or is at least available to give evidence at the hearing. The Practice Direction refers to the testing of evidence relied upon by the applicant. In this case, the applicant did not file any material or seek to rely on any evidence that was not contained within the s 21(2) documents. The learned Member says she considered his application for review but she does not specifically refer to the contents of it as forming the basis of any findings made by her. [15] We do not consider that the Chief Executive Officer’s inability to cross- examine Mr Masri was a denial of procedural fairness in the circumstances of this case. This is not a case where the Tribunal heard evidence from one party, did not allow cross-examination by the other party, and then went on to make findings favourable to the first party’s case based on that party’s untested evidence. That would be a clear case of a failure to accord procedural fairness. [16] The Chief Executive Officer submits that the transcript of the hearing reveals that the learned Member had prejudged the matter and some of the learned Member’s comments at the hearing were off-putting to the Chief Executive Officer’s representative, the Practice Direction having created an expectation as to how the hearing would be conducted. The Chief Executive Officer relies on the reasoning of the Appeal Tribunal in Baldwin v Von Knorring7 and the following parts of the transcript: Let me tell you the issue I have with looking at this. This is not – he’s not been convicted of any serious offences…8 Now my question and what I’m going to ask you to make submissions on…is how this is an exceptional case…9 … that doesn’t, it seems to me, amount to an exceptional case10 6 Masri v Chief Executive Officer, PSBA [10]. 7 [2015] QCATA 107. 8 Transcript of Proceedings, Kahlan Masri v Chief Executive Officer, Public Safety Business Agency (Queensland Civil and Administrative Tribunal, CML214-15, member Goodman, 26 October 2015) (‘Transcript of Proceedings’) pages 1-3, line 3. 9 Ibid at pages 1-3 line 14. 10 Ibid at line 34. -- 5 of 17 -- 6 We have no idea what’s going on. So it’s very difficult to be satisfied, I would think that this is an exceptional case because all we have is the bare convictions…I will need some convincing that this is an exceptional case.11 [17] In Baldwin v Von Knorring, the Appeal Tribunal found that it was open to both parties to conclude that the learned Member had made a decision before the evidence was tested and before the submissions were made because she in fact said so.12 In reaching that conclusion, the Appeal Tribunal referred to parts of the transcript. The learned Member is recorded as having said at the outset of the hearing and before the evidence was heard, ‘Now you’re not going to be happy with any decision I make, neither of you. Both of you will lose….Neither of you will like what the outcome is…. I have warned you that neither of you will be happy with the outcome today. You understand that…’13 The reasons also reflect that the learned Member, in an effort to encourage the parties to resolve the dispute themselves, restated her view that neither party would be happy with the outcome of the hearing. The Appeal Tribunal considered it inappropriate for the Tribunal at a hearing to engage in settlement negotiations during the evidence and considered that the self-represented parties in that case were, in all likelihood, confused by the process which meant that they were not given a satisfactory opportunity to present their case.14 [18] Bias is clear when a Tribunal expresses a concluded view before all the evidence is heard.15 However, the position is different if the Tribunal indicates a provisional view subject to further evidence or argument in an effort to assist the parties or enlighten itself.16 [19] In this case, the learned Member did not hear any oral evidence but had read all of the material before her when she addressed the Chief Executive Officer’s representative. As there was no oral evidence to be heard, that left the learned Member, once she had decided to proceed, to hear the Chief Executive Officer’s submissions as to how she should find based on the material before her. [20] The s 21(2) QCAT Act documents included the QPS court briefs relating to Mr Masri’s criminal convictions. Mr Masri was convicted in the Magistrates Court on 19 August 2014 of the following offences:  being drunk in a public place on 31 July 2014; and  assault or obstruct police officer on that same date. 11 Transcript of Proceedings pages 1-4 line 1. 12 Baldwin v Von Knorring [2015] QCATA 107 at [35]. 13 Ibid at [25]. 14 Ibid at [42]. 15 JRF Forbes, Justice in Tribunals (The Federation Press, 2nd Edition, 2006) at 301 citing Rasayanakam v Thillainadesan (1996) FLC 92-696; Damjanovic v Sharpe Hume and Co [2001] NSWCA 407. 16 Ibid citing Re Lusink and Shaw; Ex parte Shaw (1980) 55 ALJR 12. -- 6 of 17 -- 7 [21] Mr Masri was fined $400 and no conviction was recorded. [22] The QPS brief records the following about the incident that led to those convictions. Mr Masri approached the police in an intoxicated state. When questioned by police, he was adamant he was going to get on the free bus to go to licenced premises as part of university night. He refused numerous times to comply with the police requests that he return to his unit. When it was apparent he would not comply, he was arrested, with police officers taking hold of his arms to walk him to the police vehicle. When police did this, Mr Masri resisted violently and started thrashing his arms around and clenching his fist. It took three officers to get him under control and into the rear of the police vehicle. When he was being put into the vehicle, Mr Masri kicked out at police numerous times and continued to kick the door once it was closed. Mr Masri was then transported to the watchhouse and charged. It is also recorded in the police brief that Mr Masri was abusive towards police and showed a poor attitude. [23] Mr Masri was convicted in the Magistrates Court on 28 January 2015 of two counts of possessing dangerous drugs on 1 January 2015. The QPS brief states that Mr Masri was in possession of one LSD tablet and 0.5 grams of cannabis sativa leaf. Relevantly to this appeal, the court brief indicates that the LSD tablet was in the form of a LSD laced ‘fruit tingle’ (lolly). It is also recorded that while he declined to be interviewed at the time of his arrest, he stated that the ‘nominated property was his’. He also admitted to consuming cannabis during the evening in question. [24] The Magistrate ordered recognisance of $300.00, a three month good behaviour period and drug diversion. No conviction was recorded. [25] Mr Masri’s application for review states that he holds “no prior or subsequent convictions of the like” and no conviction was recorded in relation to relevant convictions. He also states that, if he had sufficient funds at the relevant time, he would have defended the charges and believes he would have been found not guilty. He states that he requires the Blue Card to attend his first practical placement for his university course. [26] It is clear from the transcript that the Chief Executive Officer’s representative was given a short time to consider and prepare her submissions to the Tribunal.17 The representative placed on the record, the Chief Executive Officer’s concerns regarding:  the nature of the offences;  the recency of the convictions;  that the two incidents of offending behaviour occurred only five months apart; 17 Transcript of Proceedings pages 1-4 lines 1-5. -- 7 of 17 -- 8  that the charges involved different types of substances; alcohol and two different illicit substances;  the fact that one of the drugs involved is a schedule 1 drug;  that the schedule 1 drug was disguised as a lolly;  Mr Masri was aggressive at the time of the first offence;  the combination of all of the above factors;  Mr Masri failed to provide any background information as to the events leading to his convictions; and  the lack of information from Mr Masri about his circumstances generally.18 [27] The representative also submitted that the risk factors outweighed the protective factors.19 We accept that the Chief Executive Officer’s representative’s submissions may not have been as well-structured as they might have been if Mr Masri had attended the hearing and given evidence. We also accept that the representative may have found it difficult to persuade the learned Member to the Chief Executive officer’s view of the evidence given the learned Member’s approach to considering the material before her, which we have dealt with in our consideration of ground 2. However, we do not consider that the representative was prevented from properly presenting the Chief Executive Officer’s case. [28] The learned Member did not give oral reasons at the hearing but reserved the decision for her consideration. We do not consider that the learned Member closed her mind such that she did not remain open to persuasion.20 If the learned Member had remained silent about her provisional view, the Chief Executive Officer may well have had a compelling argument that there had been a denial of natural justice in not being given an opportunity to present a counter argument.21 For all of those reasons Baldwin v Von Knorring is distinguishable on its facts. [29] The Chief Executive Officer says that, despite the learned Member acknowledging that ‘there’s no onus’ on either party to prove an exceptional case, she went on to state ‘but you’re the only one here’ and advised the representative: ‘…I’m going to ask you to make submissions on – you can 18 Transcript of Proceedings pages 1-9 lines 15-47; pages 1-10 lines 1-12, pages 1-12 lines 24-46, pages 1-13 lines 1-15, pages 1-15 lines 1-15, pages 1-7 lines 30-45, pages 1-13 lines 25-47, pages 1-14 lines 1-5, pages 1-15. 19 Ibid at pages 1-15. 20 Asiamet (No.1) Resources Pty Ltd v Commissioner of Taxation [2003] FCA 35 at [88]; (2003) 196 ALR 692. 21 JRF Forbes, Justice in Tribunals (The Federation Press, 2nd Edition, 2006) at 301 [15.57] citing Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 at 319. -- 8 of 17 -- 9 have a couple of minutes to think about it if you like – is how this is an exceptional case…’22 [30] While this argument is made under ground 1, we consider that it raises the issue of whether the learned Member approached the issues for determination on the basis that the Chief Executive Officer had the onus of establishing that there was an exceptional case for Mr Masri. We have dealt with that argument in our consideration of ground 2. [31] Ground 1 is not established, as far as the Chief Executive is concerned. [32] However, we note that, at the hearing, the Chief Executive handed up a copy of the QPS Court brief concerning Mr Masri’s alcohol related conviction. Mr Masri did not have an opportunity to see that material, or to comment upon it. That is a failure to provide Mr Masri with procedural fairness. Ground 2 – Reaching conclusions in the absence of substantive and supportive evidence [33] The Chief Executive Officer submits that the learned Member’s decision that the Mr Masri’s case was not an exceptional case lacked an evidentiary basis, particularly given that the brief written evidence before the Tribunal was not tested and Mr Masri had not filed any material in support of his application for review. [34] The Chief Executive Officer submits that during the hearing the learned Member acknowledged that there was no evidence about Mr Masri’s behaviour outside the events linked to the convictions so that “it may be that he’s drunk every single weekend and that he is habitually using drugs”.23 The learned Member also said, in reference to the quantity of drugs in Mr Masri’s possession, “…maybe someone popped it in his pocket. Maybe he was carrying around 50 of them and gave out 49 and only had one left. I have no idea so…”24 The Chief Executive Officer says that, despite acknowledging the lack of evidence, the learned Member concluded that Mr Masri does not have any ongoing issues with illegal and/or anti-social behaviour. The Chief Executive Officer submits that the absence of criminal convictions after his last conviction is not evidence on which such a finding could properly be made. [35] We have considered the learned Member’s reasons. After identifying Mr Masri’s criminal history, the learned Member went on: [13] I must determine whether this is an exceptional case in which it would not be in the best interests of children to issue a Blue Card. In doing so, I have identified possible risk and protective factors. [14] Risk factors: 22 Transcript of Proceedings pages 1-3 line 14. 23 Ibid pages 1-3 lines 40-42. 24 Ibid pages 1-7 line 12. -- 9 of 17 -- 10 a) Mr Masri has a criminal history involving being heavily intoxicated by alcohol and drugs. The incident in July 2014 involved aggression. b) His drug convictions include a conviction for possession of LSD, a Schedule 1 drug in the Drug Misuse regulations 1987 (Qld). The LSD was contained in a lolly. c) The convictions were only 5 months apart and fairly recent. [15] Protective factors: a) Outside of the above incidents, there is no evidence of an ongoing issue with illegal and/or antisocial behaviour on the part of Mr Masri. b) There is no evidence of any such behaviour since 1 January 2015 – over 10 months. … [17] I am not satisfied that this is an exceptional case. It is concerning that a young man would engage in illegal activity but that in itself is not sufficient to warrant the refusal of a Blue Card when his offences were not “serious” (as that term is used in the legislation). [18] The risk factors in this case are insufficient to establish an exceptional case. I am not satisfied that the risk factors outweigh the protective factors. … [36] The protective factors articulated by the learned Member are not protective factors but rather statements about the lack of evidence. By listing those statements as protective factors and finding, at paragraph 18, that she was not satisfied that the risk factors outweighed the protective factors, the learned Member has essentially found, or drawn an inference, that Mr Masri has not continued to engage in illegal or anti-social behaviour. Before an inference about an ultimate fact can be drawn convincingly, the circumstantial facts on which it is based should be clearly and rationally determined and the process of drawing the inference adequately described.25 The reasons should reflect proper and genuine consideration of competing views. [37] In this case, the Chief Executive Officer submitted at the hearing, that there was no background information about what led to the offending behaviour or Mr Masri’s circumstances generally.26 The absence of criminal convictions for such behaviour is not probative evidence that Mr Masri does not engage in such behaviour only that he has not been caught doing so by police or that the QPS has not notified the Chief Executive Officer of any other charges or convictions. The learned Member’s reasons do not reflect that she considered the Chief Executive Officer’s view of the lack of evidence. [38] In Briginshaw v Briginshaw27 the High court of Australia said: 25 JRF Forbes, Justice in Tribunals (The Federation Press, 2nd Edition, 2006) at 242 citing Metropolitan Properties Co (FGC) Ltd v Lanson [1969] 1 QB 577 at 599. 26 Transcript of Proceedings pages 1-7 lines 1-13, pages 1-10 lines 1-12. 27 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 10 of 17 -- 11 The truth is that, when the law requires proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.28 [39] There was no probative evidence before the learned Member as to Mr Masri’s behaviour since the offences were committed. The learned Member has reached conclusions for which there was a lack of proof. That is an error of law. [40] The learned Member correctly stated that, as Mr Masri had not been convicted of a “serious offence” under the Act,29 a positive notice must be issued to him unless she was satisfied there was an exceptional case for Mr Masri in which it would not be in the best interests of children for him to be issued a positive notice.30 [41] In Commissioner for Children and Young People and Child Guardian v Eales,31 the Appeal Tribunal considered the Court of Appeal’s reasoning in Commissioner for Children and Young People and Child Guardian v Maher.32 We agree with the Appeal Tribunal’s interpretation of the Court of Appeal’s reasons:33 The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. … At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional 28 Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362. 29 The Act s 167: what is a serious offence. 30 The Act s 222. 31 [2013] QCATA 303. 32 [2004] QCA 492. 33 Ibid at [6], [7]. -- 11 of 17 -- 12 case exists such that it would not harm the best interest of children for a Blue Card to be issued to a person….What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criteria specified by the Act. [42] “Exceptional case” is not defined in the Act. Section 226 of the Act sets out the criteria that the Chief Executive must have regard to in deciding whether or not there is an exceptional case for the person. Section 226 provides: 226 Deciding exceptional case if conviction or charge (1) This section applies if the chief executive— (a) is deciding whether or not there is an exceptional case for the person; and (b) is aware that the person has been convicted of, or charged with, an offence. (2) The chief executive must have regard to the following— (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 (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; and (v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision; (b) any information about the person given to the chief executive under section 318 or 319; (c) any report about the person’s mental health given to the chief executive under section 335; (d) any information about the person given to the chief executive under section 337 or 338; (e) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person. [43] As the Appeal Tribunal said of the factors in s 226(2) of the Act in Commission for Children and Young People and Child Guardian v BWA:34 Subparagraph (a) of that subsections sets out matters that one would naturally expect to need consideration whenever the commission of an offence was involved; sub paragraphs (b) to (d) provide a useful checklist 34 [2011] QCATA 362. -- 12 of 17 -- 13 of information sources…, and requires such information to be taken into account; and subparagraph (e) opens up anything that may reasonably be considered to be “relevant”. The section lists information and factors to which the Commissioner must have regard, but, this apart, it leaves open an unfettered discretion to determine whether a case is exceptional.35 [44] Further, the Appeal Tribunal in Commissioner for Young People and Child Guardian v Grose36 considered the meaning and scope of the term “the best interests of children” within the context of the Act and said: The Appeal Tribunal accepts the proposition that there will be considerations not specified in s 226 which must be addressed to ensure the best interests of children are protected when determining whether there is an exceptional case justifying a negative notice…37 [45] The learned Member referred to s 226 of the Act at paragraph 4 of her reasons. However, the learned Member’s reasons do not reflect that she had regard to all of the matters in s 226. In particular, she did not properly have regard to s 226(2)(a)(iv) of the Act ‘the nature of the offence and its relevance to employment or carrying on a business that involves or may involve children’. The learned Member set out some of the details of the court briefs and noted the fact of the convictions.38 The nature of the offences appears to be considered by reference to the risk factors set out at paragraph 14 a) and b) of the reasons as set out above. However, the reasons do not reflect a consideration of the relevance to employment or carrying on a business that involves or may involve children of the nature of the offences. [46] Further, the learned Member did not have regard to s 226(2)(a)(v) of the Act ‘the penalty imposed by the court’. The learned Member does not mention the court’s orders at all, one of which was a referral to drug diversion. [47] It is unclear from the reasons, whether the learned Member had full regard to s 226(2)(e) of the Act. [48] It is not clear from the reasons that the learned Member properly considered the submissions made by the Chief Executive Officer’s representative, as some of the concerns raised are not referred to in the reasons such as, the combination of the concerns raised by the Chief Executive Officer in relation to the offending behaviour. [49] We find that the learned Member has failed to take into account relevant considerations. That is an error of law. 35 Commission for Children and Young People and Child Guardian v BWA [2011] QCATA 362 at [31]. 36 [2013] QCATA 348. 37 Ibid at [15]. 38 Masri v Chief Executive Officer, PSBA [11], [12]. -- 13 of 17 -- 14 [50] Apart from the matters listed in s 226(2) of the Act which the learned Member was required to consider, she had an unfettered discretion to determine whether there was an exceptional case for Mr Masri. [51] The learned Member’s reasons reflect that she approached the consideration of whether or not there was an exceptional case for Mr Masri this way. She found that, as Mr Masri had not committed a serious offence he must be issued with a Blue Card unless the Chief Executive Officer convinced her or could point to some convincing, positive evidence that it was an exceptional case. [52] Neither party bears the onus of proof. The learned Member correctly stated that in her reasons.39 It was for the learned Member to reason her way through the matters in s 226(2) of the Act and weigh the evidence before her to determine whether or not there is an exceptional case for Mr Masri. The learned Member did not do so. [53] In Re Carmel Elizabeth McDonald v Direction-General of Social Security (Re McDonald),40 the Federal Court of Australia considered the issue of onus of proof in an appeal from a decision of the Administrative Appeals Tribunal. Woodward J said: There is certainly no legal onus of proof arising from the fact that this is an “appeals” Tribunal because the AAT is required…to put itself in the position of the administrator in carrying out its review and, in the light of the material before the AAT, not the material before the administrator,… make its own decision in place of the administrator’s. … In my view, the answer is the same when the AAT seeks to put itself in the position of the Director-General. It must act on the material which is before it but, as I have already point out is it is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate. It is true that facts may be peculiarly within the knowledge of a party to an issue, and a failure by that party to produce evidence as to those facts may lead to an unfavourable inference between drawn – but it is not helpful to categorise this common sense approach to evidence as an example of an evidential onus of proof. The same may be said of a case where a good deal of evidence pointing in one direction is before the Tribunal, and any intelligent observer could see that unless contrary material comes to light that is the way the decision is likely to go. Putting such cases to one side there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it… If the AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing, If, for example, it is a decision whether or not to cancel a pension in the light of changed circumstances, then it has failed to 39 Masri v Chief Executive Officer, PSBA [3]. 40 [1984] FCA 59. -- 14 of 17 -- 15 achieve the statutory requirement of reaching a state of mind that the pension should be cancelled. If, on the other hand, it is a decision, to be made in the light of fresh evidence whether or not the pension should ever have been granted in the first place, then it has failed to be satisfied that the person ever was permanently incapacitated for work.41 [54] In this case, there are facts known only to Mr Masri relevant to a consideration of the matters in s 226(2) of the Act and whether it would not be in the best interests of children for a positive notice to be issued.42 Mr Masri did not attend the hearing and filed no material in support of his application for review. In those circumstances, it is not appropriate to draw a favourable inference or make a favourable finding of fact where there is no proof upon which the inference can be drawn or the fact found. Based on the reasoning in Briginshaw v Briginshaw, in making any findings of fact, the learned Member was required to be reasonably satisfied of the facts based on the proof before her and bearing in mind the nature of the reviewable decision.43 [55] The learned Member’s reasons do not reflect that she relied on anything contained in Mr Masri’s application for review to draw the inference or make findings of fact. The Appeal Tribunal observes that the statements made in the application for review are not contained in a statement of evidence and were not tested at the hearing. Accordingly, the weight, if any, that could be given to them is very limited. [56] Further, it is arguable that Mr Masri’s failure to file evidence in support of his case and in compliance with the Tribunal’s directions and his failure to attend the hearing and argue his case are matters relevant to an assessment of Mr Masri. [57] Ground 2 is established. It is an error of law. Ground 3 – the Tribunal erred at law by failing to inform itself of relevant facts before overturning the decision of the Chief Executive Officer [58] The Chief Executive Officer submits that while the learned Member turned her mind to the possibility that there may be adverse information relevant to Mr Masri that might influence the decision about whether or not there was an exceptional case for him, ultimately that possibility was disregarded and was not explored further by the learned Member. [59] The Chief Executive Officer submits that, by directing Mr Masri to provide particular information, the Tribunal must have been satisfied that such additional information was relevant and was required to be available to the Tribunal and the Chief Executive Officer before the Tribunal would be in a position to make an informed decision about the matter. The Chief Executive Officer submits that the fact that no information was provided by 41 Re McDonald at 9. 42 The Act s 221(2). 43 The Act ss 5, 6, 360 (s 360 states: A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount). -- 15 of 17 -- 16 Mr Masri necessarily leads to a conclusion that there was insufficient information or material before the Tribunal to make a properly informed decision and that, before the reviewable decision could be overturned, that information would have to be provided. [60] We are not persuaded that the fact the Tribunal directs a party to provide certain information necessarily means that, without that information, the Tribunal cannot find in that party’s favour. The Tribunal cannot force a party to comply with directions nor can it force a party to attend a hearing. It is a matter for the Tribunal to consider and weigh the evidence before it, make relevant findings of fact and apply the relevant law to the facts as found to arrive at a decision. [61] To the extent that ground 3 does not overlap with ground 2, it is not established. Conclusion [62] The appeal is allowed as ground 2 is established. As the appeal is allowed due to an error of law, s 146 of the QCAT Act applies. Pursuant to s 146 of the QCAT Act, in deciding an appeal against a decision on a question of law only, the Appeal Tribunal may set aside the decision and substitute its own decision or set aside the decision and return the matter to the Tribunal who made the decision for reconsideration. The Appeal Tribunal’s ability to substitute its own decision is limited: 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.44 [63] The Chief Executive Officer seeks an order that the decision be set aside and the negative notice previously issued to Mr Masri be confirmed. The decision of the Tribunal required an exercise of discretion. While the decision must be set aside, we cannot substitute our own decision as the learned Member failed to properly consider the matters in s 226(2) of the QCAT Act and made findings or drew inferences for which there was a lack of proof. We cannot rely on her findings. [64] We have not found bias on the part of the learned Member. We set aside the decision and return it to the learned Member for reconsideration without the hearing of additional evidence. Mr Masri was given ample opportunity to provide any evidence to the Tribunal on which he wished to rely and did not do so. [65] We also make the following directions to assist the parties and the learned Member: 44 Ericson v Queensland Building Services Authority [2013] QCA 391 at [25]. -- 16 of 17 -- 17 a) The Chief Executive Officer serve a copy of the QPS Court brief on Mr Masri by no later than 4:00 pm on 17 June 2016. b) The Chief Executive Officer file in the Tribunal two (2) copies and serve on Kahlan Masri one (1) copy of any written submissions the Chief Executive Officer wishes to make at the rehearing by no later than 4:00pm on 17 June 2016. c) Kahlan Masri file in the Tribunal two (2) copies and serve on the Chief Executive Officer one (1) copy of any material in response to the QPS Court brief and any written submission Kahlan Masri wishes to make at the rehearing by no later than 4:00pm on 1 July 2016. d) If Mr Masri does not file any material, the application will be listed for a decision on the papers not before 1 July 2016. e) If Mr Masri does file material, the application will be listed for a rehearing on a date to be advised. -- 17 of 17 --