Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22

CITATION: Commissioner for Children and Young People and Child Guardian v Lister [2011] QCATA 22 PARTIES: Commissioner for Children and Young People and Child Guardian (Applicant) v Ms Susan Beryl Lister (Respondent) APPLICATION NUMBER: APL258-10 MATTER TYPE: Appeals HEARING DATE: 1 December 2010 HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham (Deputy President) Ms Gwenn Murray (Member) Dr Nigel Collings (Member) DELIVERED ON: 1 March 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Appeal is allowed. CATCHWORDS : APPEAL – BLUE CARD – whether wrong law applied – whether failed to take into account or gave too little or too much weight to relevant considerations – whether inadequate reasons for decision – whether error in factual finding – whether Tribunal failed to properly inform itself – whether error of law Commission for Children and Young People Act 2000 (Qld) ss 226(2), 318, 319, 492(2), Schs 1, 2, 4 Guardianship and Administration Act 2000 ss 185,188(3), (c)-(d) Queensland Civil and Administrative -- 1 of 12 -- Tribunal Act 2009 (Qld) ss 142, 271(2)(a)– (b) Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA followed Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 applied Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187 applied Hill v Repatriation Commission (2005) 85 ALD 1 applied House v R (1936) 55 CLR 499 applied Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 applied Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 applied Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 applied Re Walterscheid Australia P/L v Collector of Customs (1988) FCA 20 applied R v Haselich [1967] Qd R 183 applied R v Lister [2009] QCA 368 applied Sullivan v Department of Transport (1978) 20 ALR 323 applied APPEARANCES and REPRESENTATION (if any): APPLICANT: Commissioner for Children and Young People and Child Guardian appearing by Craig Capper, Senior Legal Officer RESPONDENT: Ms Susan Lister appearing on her own behalf REASONS FOR DECISION [1] This case concerns whether Ms Lister should be issued with what is widely referred to as a blue card. The blue card is an approval - or positive notice as it is described in the Commission for Children and Young People Act 2000 (CCYPCG Act) - which authorises a person to work in child related employment1. [2] Between 2000 and 2003, Ms Lister worked for Care Independent Living which operated a facility at Bribie Island for adults and children with 1 Described as regulated employment in the Commission for Children and Young People Act 2000. The full description is set out in Schedule 1 to that Act. -- 2 of 12 -- impaired capacity. After an investigation into complaints about the conduct of carers at the facility, Ms Lister was charged with a large number of criminal offences, some of which involved children. The Director of Public Prosecutions decided not to proceed with many of the charges. There is no evidence to explain that decision. Of the charges which went to trial, Ms Lister was acquitted of some and convicted of others. The convictions were for 1 count of unlawful deprivation of personal liberty and 2 counts of common assault. The victims of all 3 offences were children. The convictions were recorded and Ms Lister has completed the 150 hours of community service she was required to perform. [3] The criminal history of an applicant for a blue card is relevant in deciding whether to issue a blue card. The CCYPCG Act classifies criminal offences as serious, disqualifying and other offences. There are different consequences for an application for a blue card, depending on the classification of the offence. Serious offences2 can be described loosely as sexual offences against children, offences involving child pornography and certain offences of violence or involving drugs. Disqualifying offences are a subset of serious offences. They are confined to sexual offences against children and offences involving child pornography3. [4] The consequences for those convicted of disqualifying or serious offences are significant. Depending on circumstances it is not necessary to canvass in these reasons, the applicant is either not eligible to apply for a blue card or can only receive a blue card if the Commissioner is satisfied it is an exceptional case in which it is in the best interests of children to issue the approval. The presumptive position, then, is that a blue card will not issue. [5] That is not the case for offences other than serious offences. For these, the presumptive position is that the blue card must be issued to the applicant unless the Commissioner is satisfied it is an exceptional case in which it is not in the best interests of children to give that approval. [6] The offences for which Ms Lister was convicted are concerning; she was convicted of one count of deprivation of liberty and two of common assault. The children were young and particularly vulnerable. Ms Lister’s actions either caused or had the potential to cause harm. One child, aged between 6 and 9 during the charged period, was severely autistic. Ms Lister was convicted of restraining him on a toilet by binding him to the bowl and railings with sheets. She was also convicted of hitting him with a fly swatter. The other child, who was older, was also autistic. Ms Lister was convicted of holding him while another person rubbed chilli in his mouth. [7] Nevertheless, the offences do not qualify as serious as that term is used in the CCYPCG Act. They fall under the category of offences other than serious offences. Therefore, the Commissioner was required to issue a 2 Set out in Schedule 2 of the Commission for Children and Young People Act 2000. 3 Set out in Schedule 4 of the Commission for Children and Young People Act 2000. -- 3 of 12 -- blue card to Ms Lister unless satisfied that hers was an exceptional case in which it was not in the best interests of children to issue a blue card. The Commissioner decided Ms Lister’s case was an exceptional case and refused her application. [8] Upon review by the Tribunal, the Commissioner’s decision was set aside and the Commissioner was ordered to issue a blue card to Ms Lister. The Commissioner appealed the Tribunal’s decision. For reasons previously published, the appeal Tribunal stayed the order to issue the blue card, pending the outcome of the appeal. The effect of the stay is that until the appeal is determined, Ms Lister does not hold a blue card and cannot work in child related employment. [9] The Commissioner’s appeal raises questions of law only. This means the appeal can proceed without the Commissioner first obtaining the appeal Tribunal’s leave4. If the appeal is upheld, there are a number of options open to the appeal Tribunal about how the matter might then proceed. For reasons which follow, the appeal Tribunal has determined to allow the appeal. At the appeal hearing, Ms Lister requested that, if the appeal is allowed, the matter is reheard by a different panel so that she might lead further evidence. The appeal Tribunal stated that was its intention, given Ms Lister’s request. Having now carefully considered the material, the appeal Tribunal invites further submissions from the parties about whether the appeal Tribunal should substitute its own decision on Ms Lister’s application to review the Commissioner’s decision (which it is in a position to do so quickly) or whether the application should be considered by a differently constituted panel. Submissions on that issue will be heard at the hearing scheduled for 8 March. Ground 1 - wrong law applied [10] The first ground of appeal is that the Tribunal failed to consider s 492 of the CCYPCG Act which has the effect of applying the current version of that Act to the application. The substance of the complaint is that the Tribunal applied the Act as it stood in 2006. Section 492(2) of the CCYPCG Act (as amended by the Criminal History Screening Legislation Amendment Act 2010) provided that, if a person applied for a review prior to commencement of the amendments made by that Act and the review had not been decided by the time those amendments commenced, the Tribunal must apply the amended CCYPCG Act in relation to the matter subject of review. Contrary to that requirement, the Tribunal applied the 2006, not the 2010 version of the Act. The Commissioner concedes nothing turns on the error. Apart from renumbering the provisions, there was no material change to the law applied to this review. [11] In submissions at the appeal hearing, the Commissioner’s representative sought to broaden the scope of this ground to encompass an error in applying the Children Services Tribunal Act 2000 (then repealed) rather than the Queensland Civil and Administrative Tribunal Act 2009 (QCAT 4 Queensland Civil and Administrative Tribunal Act 2009 s 142. -- 4 of 12 -- Act). Assuming the Commissioner might be allowed to amend the ground of appeal to raise the point, it is without merit. It misinterprets what was said by the Member at the hearing. There, the Member paraphrased the substance of transitional provisions of the QCAT Act, the effect of which are that the final decision of QCAT must be the decision the former Tribunal could have made under the repealed Act.5 While there was some looseness in the language used by the Member, these were oral reasons given at the end of a brief hearing. It is clear enough from what the Member said that he correctly understood that the QCAT Act governed the process but that QCAT’s function and the decision it could make was confined by the repealed Act. [12] An error that has no material effect on the decision will not necessarily lead to the decision being set aside.6 Were this the only ground of appeal, the Tribunal’s decision would not be set aside. Grounds 2, 3 and 6 – failure to take into account or giving too little or too much weight to relevant considerations; inadequate reasons for the decision [13] The Commissioner complained the Tribunal misdirected itself as to the appropriate test for exceptional case by: (a) Either failing to take into account or failing to give appropriate (that is, adequate) weight to specified relevant considerations; and (b) Giving inappropriate (that is, too much weight) to other relevant considerations. [14] The matters which the Commissioner says the Member failed to take into account or gave too little weight to are: (a) The paramountcy of the principle of the welfare and best interests of the child; (b) The nature and the seriousness of the conduct resulting in the Respondent’s convictions; (c) That the Respondent’s conduct amounted to a significant breach of trust by her in her treatment of vulnerable members of the community that were in her care; (d) The likely impact of the Respondent’s behaviour upon the children subject to the abuse; (e) The Respondent had failed to demonstrate any genuine remorse; (f) The Respondent had failed to demonstrate any relevant insight into the offending behaviour and the impact upon the child; (g) The finding by the Court of Appeal on sentence that the Respondent “failed to exhibit the strength of character which 5 Queensland Civil and Administrative Tribunal Act 2009 ss 271(2)(a)-(b). 6 Re Walterscheid Australia P/L v Collector of Customs (1988) FCA 20 per Davies J. -- 5 of 12 -- her occupation required” and resist management’s wishes to undertake the abusive conduct; (h) In the absence of genuine remorse, demonstrated insight and strength of character, the increased likelihood of a materialisation of risk to children in the Respondent’s care. [15] The matters which the Commissioner says the Member gave too much weight to are: (a) That as a result of the abusive behaviour the children acquiesced and became compliant with the Respondent’s wishes; (b) The passage of time that had elapsed since the offences occurred; (c) The support provided by the referees for the Respondent, particularly given their stated belief that she was not guilty of the offences; (d) The Respondent’s ability to care for children and adults with a disability and her wish to continue doing so. [16] Underlying these two grounds of appeal is the argument that, if the Tribunal had given proper consideration to those matters, it would not have made the decision it did. Ms Lister did not dispute those considerations are relevant to determining whether hers was an exceptional case. She submitted the Member had taken them into account appropriately in arriving at his decision. [17] The Commissioner’s case that no regard, or too much or too little weight was given to the specified considerations, is, to a large extent, surmise, deconstructed from the conclusion reached by the Tribunal. The grounds of appeal state as relevant considerations some things that are, in truth, conclusions the Commissioner evidently considers the Tribunal should have reached on the evidence before it. Ignoring the form in which this is presented the Commissioner has raised matters she says the Tribunal should have addressed. [18] In the absence of reasons which clearly state how these considerations were regarded, the Commissioner asked the Tribunal to draw the adverse conclusions about the weight given to those considerations. Grounds 2 and 3 are, therefore, linked with ground 6. By that ground, the Commissioner argued the Tribunal failed to give adequate reasons for its decision, including the finding that the Respondent did not pose a risk to the welfare and best interests of children in Queensland. [19] It is an error of law to fail to consider a relevant factor in arriving at a decision.7 It is also an error of law to fail to reveal the reasoning for a decision.8 It is not necessarily an error of law to attach inadequate or 7 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; House v R (1936) 55 CLR 499 at 504, 505. 8 Cypressvale P/L & Anor v Retail Shop Leases Tribunal [1995] QCA 187. -- 6 of 12 -- inappropriate weight to a particular consideration.9 The distinction between an error of law and one of fact or mixed fact and law can be elusive.10 In this case the distinction is an important one to draw because the Commissioner has proceeded only on an error of law. [20] At the appeal hearing, the Commissioner’s representative was unable to articulate how the assertions regarding too little or too much weight having been given to certain matters by the Tribunal could amount to an error of law. To the extent the appeal relies on inadequate or excessive weight being given to relevant considerations, it must fail. The Commissioner could have sought leave to appeal on such grounds but did not do so. [21] The failure to discuss a point may be taken as a sign that relevant evidence was ignored.11 In this case that conclusion seems almost unavoidable given the large volume of material to which no reference was made. [22] At first instance, the Tribunal had before it the Queensland Police Service brief of evidence. This included information regarding conduct that included but also went well beyond the convictions. On the information before the appeal Tribunal, it is a reasonable assumption that the material formed the foundation for the other charges Ms Lister faced. The Member made no mention at all of that material. His only reference was, in brief terms, to the convictions. One conclusion open is that he failed to pay it any regard. Alternatively, he failed to give reasons adequate to explain how the totality of Ms Lister’s conduct was regarded on her application for review. In either case, if the material is relevant, he has erred at law. [23] There can be no doubt the material was relevant evidence. In deciding whether or not there is an exceptional case the Commissioner (and therefore the Tribunal) must have regard to certain matters12. These include: “226(2) … (b) any information about the person given to the commissioner under section 318 or 319; … (e) anything else relating to the commission, or alleged commission, of the offence that the commissioner reasonably considers to be relevant to the assessment of the person.” [24] The brief of evidence would appear to fall within s 318 which facilitates provision of information to the Commissioner by the Director of Public Prosecutions. In any case the material relates to the commission of the offences of which Ms Lister was convicted and the alleged commission of other charged conduct which, reasonably, must be considered relevant to the assessment of the person. 9 Hill v Repatriation Commission (2005) 85 ALD 1. 10 Minister for Immigration and Multicultural Affairs v Hu (1997) 79 FCR 309 at 324. 11 Sullivan v Department of Transport (1978) 20 ALR 323 at 348-9. 12 Commission for Children and Young People Act 2000 s 226(2). -- 7 of 12 -- [25] The brief includes statements from several witnesses who alleged that Ms Lister locked residents in a time out room and committed numerous acts of physical punishment to modify behaviour, including: • Pushing a resident’s arm up his back while kneeing him in the back; • Subjecting residents to cold showers as a form of punishment; • Hitting residents, whether with a closed fist, a flyswatter or a broom; • Slapping residents’ faces; • Pulling residents by their hair or ears; • Restraining residents by tying them to a structure – one to a toilet (the conduct charged as deprivation of liberty) and another to a kitchen chair; • Removing a resident’s prosthetic limb and crutches as punishment for wearing a female resident’s swimming togs; and • Applying chilli to the lips of residents as a form of punishment and refusing to provide pain relief. [26] The material before the Member also included a record of Ms Lister’s interview by an officer of the Adult Guardian13 during which she admitted behaviour that clearly contravenes standards of care that would then have been expected (and are now mandated) for those caring for children and persons with impaired capacity. The admitted conduct included: • Using slap stick humour, such as tricking residents into thinking they were drinking alcohol (p 25); • Substituting bread and butter for meals as a form of punishment (p 30); • Taking a resident’s prosthetic leg away from him and placing it outside his reach in order to modify his behaviour (p 31); • Hitting a resident with a fly swatter in order to change his behaviour (p 37); • Giving a resident a warm shower after he had punched her in the eye three times (p 39); • Washing out a resident’s mouth with soap (on two occasions) (pp 40 – 42); • Slapping a resident’s face (p 43); • Pulling the hair of two female residents who had been fighting (p 43); • Hitting a resident (p 44); • Tying a resident to a chair (p 45); • Humiliating a resident who had worn an item of girl’s clothing (although Ms Lister said she thought no one could overhear her) (pp 50 – 51); • Using fly spray to treat a resident with head lice (p 53); • Instructing another staff member to threaten to withhold a resident’s pension in order to modify his behaviour (p 54). [27] During the interview, although Ms Lister stated she then understood she could not behave in this way, she also expressed views which suggest she lacked insight into why that conduct was unacceptable. Importantly, when 13 That was conducted pursuant to the Guardianship and Administration Act 2000. -- 8 of 12 -- pressed she could not articulate how she would behave differently if faced again with similar situations as those in which this conduct occurred. [28] Although this point was not raised at either the initial or appeal hearing, the appeal Tribunal is now aware that Ms Lister’s admissions were made after claiming privilege against self incrimination. Ms Lister was aware the interview was before the Tribunal and the Commissioner relied upon it but did not object to the appeal Tribunal considering her admissions. As a self represented party she may not have turned her mind to whether she could object to its being received. The Tribunal must act fairly and according to the substantial merits of the case.14 It must act with as little formality and technicality as the proper consideration of the matter allows.15 The issue is one that will have significant consequences for the outcome of the review. Fairness dictates that the Tribunal resolve its position regardless of the parties’ stance on it. [29] The officer of the Adult Guardian conducted the interview pursuant to the Guardianship and Administration Act 2000 (s 185). Self incrimination does not afford an excuse for failing to answer questions during such an interview. However, the answers given may not be used in a criminal or civil proceeding except of a type specified in s 188(3). Accepting for these purposes that an application to review the Commissioner’s decision is a civil proceeding, the appeal Tribunal has determined that, properly applied, s 188(3)(c) permits use of the evidence in these proceedings. [30] Section 188(3)(c) provides the answers may be used: (c) if the answer or production is relevant to the person’s professional registration or licence—a proceeding about the registration, licence or approval; (emphasis added) [31] It might have been argued the subsection does not apply to these proceedings because they do not relate to Ms Lister’s professional registration or licence. Rather, they relate to her ability to be work in child related employment. That would more aptly be described as an approval than a licence. However, the provision must be read in the context of the section in its entirety. When this is done it plainly enough expresses an intention to allow the answers to be used in proceedings relating to a person’s suitability to work in certain occupations or capacities. [32] The blue card is an approval necessary for Ms Lister’s employment with children. One of the reasons Ms Lister seeks a blue card is so she may rely upon it in securing an exemption from holding a yellow card under the Disability Services Act 200616. The yellow card is an equivalent employment screening approval for persons to work with persons with impaired capacity. Possession of a blue card qualifies the holder for an exemption from holding a yellow card. 14 Queensland Civil and Administrative Tribunal Act 2009 s 28(2). 15 Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(d). 16 Disability Services Act 2006 ss 82B, 89C. -- 9 of 12 -- [33] The matter would be beyond argument if the phrase “registration, licence or approval” appeared instead of the words “registration or licence” in the first part of s 188(3)(c). That phrase is used in the second part of (c) and also appears twice in s 188(3)(d): (d) if the answer or production is relevant to the person’s registration, licence or approval as proprietor or operator of a service or facility involved in the care of adults with impaired capacity for a matter—a proceeding about the registration, licence or approval. (emphasis added) [34] Read in its context, the omission of the word “approval” the first time the phrase is used in s 188(3)(c) presents as a drafting error. The intention of the legislature is sufficiently evident that it is permissible to depart from the literal meaning of the words and to read the section in order to give effect to its intention17. Applied in that way, s 188(3)(c) allows reference in these proceedings to all the material provided by the Queensland Police Service, including Ms Lister’s interview with an officer of the Adult Guardian. [35] Regrettably, the Member did not refer to any aspect of the Queensland Police Service brief. It is impossible to glean from his reasons whether he took any of the material into account and, if so, what view he took of it in concluding that Ms Lister did not present an unacceptable risk to children. [36] The review proceedings are not criminal proceedings. The Tribunal was not charged with determining whether Ms Lister was guilty of any of the offences with which she was charged. However, as Ms Lister was charged with criminal offences, the Tribunal was required to consider whether hers was an exceptional case in which it was not in the best interests of children to issue a blue card. [37] The Member correctly identified this required consideration of whether Ms Lister presented an unacceptable risk to children if a blue card were issued. He also rightly stated the risk must have a foundation in the evidence. Necessarily the Member was required to consider the substantial evidence about past unacceptable conduct and to reveal what view he took of it in determining this was not an exceptional case. He stood in the shoes of the Commissioner and it was incumbent upon him to disclose his process of reasoning in reaching the conclusion that Ms Lister should receive a blue card. [38] There was other evidence before the Tribunal that the Member might have been expected to have referred to also, including the report of a psychologist on the results of some personality tests Ms Lister undertook. While not an independent opinion, it was a proper matter to advert to in analysing the risk Ms Lister might pose to children in her care. 17 Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at [9]. -- 10 of 12 -- [39] The Member erred in failing to refer to relevant evidence and in failing to reveal his process of reasoning. These are errors of law sufficient to allow the appeal. Although it is strictly unnecessary to do so, the remaining grounds of appeal will be briefly canvassed. Grounds 4 & 5 – error of law in factual finding or failure for Tribunal to properly to inform itself [40] The remaining grounds, argued in the alternative, centre on the Member’s statement that he was not necessarily satisfied that Ms Lister had taken a photograph of a child she had restrained on a toilet seat.18 Simply stated the Commissioner argued the Tribunal was either bound by the conviction to act on the basis that the photograph was taken or was required to obtain further evidence about the issue before concluding otherwise. [41] The Commissioner argued that it is in an error of law for the Tribunal to proceed to its conclusion on the basis of facts inconsistent with the conviction. [42] In sentencing an offender, a trial judge must form his or her own view of the facts but may not form a view which conflicts with the verdict of the jury.19 Necessarily there is some imprecision about the findings essential to a finding of guilt by a jury. [43] Although not referred to in the trial judge’s sentencing remarks, on appeal it was accepted that a photograph had been taken.20 It is not clear on the material before the appeal Tribunal that this was a particular of the charge relied upon by the Crown. [44] It is not at all clear that the Member did make a firm finding or that his reservation about the photograph had any bearing on the decision he made. Of course that lack of clarity itself indicates a failure to disclose his reasoning. [45] Given the findings on other grounds it is not necessary to decide that the Member erred in this case. Suffice it to say that the appeal Tribunal accepts that, were it proved that the taking of the photograph was a particular of the charge as presented by the prosecution at trial, the Member would have been in error to proceed on the basis that the photograph had not been taken. That would be inconsistent with the jury’s verdict.21 [46] As to the alternative ground of appeal, the appeal Tribunal rejects the submission that the Member was required to undertake appropriate inquiries to elicit evidence about whether the photograph was taken. In a 18 Lister v Commissioner for Children and Young People and Child Guardian [2010] QCAT 473 at 4. 19 R v Haselich [1967] Qd R 183 at 185. 20 R v Lister [2009] QCA 368 at [8]. 21 Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209 per Fox J at 212-214. -- 11 of 12 -- recent appeal decision in another blue card case,22 the relevant provisions and the considerations which this argument invokes were subject to careful analysis by the Tribunal. Adopting the reasoning expressed in that case, the appeal Tribunal rejects the Member was obliged, in this case, to obtain further evidence on the issue. [47] The appeal is allowed. The appeal Tribunal will hear submissions from the parties about: (a) whether it should substitute its own decision or refer the matter for rehearing; and (b) If the latter, whether additional evidence should be heard or other directions made. 22 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA. -- 12 of 12 --