Commissioner for Children and Young People and Child Guardian v Ross & Anor [2008] QDC 82

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner for Children and Young People and Child Guardian v Ross & Anor [2008] QDC 82 PARTIES: COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE AND CHILD GUARDIAN (appellant) v ANTHONY JAMES ROSS AND (first respondent) CHILDREN SERVICES TRIBUNAL (second respondent) FILE NO/S: BD1732/07 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Children Services Tribunal DELIVERED ON: 14 April 2008 DELIVERED AT: Brisbane HEARING DATE: 10 March 2008 JUDGE: Tutt DCJ ORDER: 1. The appeal is allowed. 2. The decision of the Children Services Tribunal dated 23 May 2007 is set aside. 3. The decision of the Commission of Children and Young People and Child Guardian made on 3 April 2006 to issue a negative notice to the first respondent Anthony James Ross is reinstated. 4. No order as to costs. CATCHWORDS: APPEAL – where “negative notice” issued to first respondent by Commissioner – where Tribunal set aside Commissioner’s decision and issued a “positive notice” – whether “error of law” in Tribunal issuing a “positive notice” to first respondent – where first respondent convicted of indecent dealing with a child and some years later convicted of aggravated assault – where Commissioner considered first respondent unsuitable for child-related employment – where -- 1 of 14 -- 2 Tribunal found there was an “exceptional case” which would not harm the best interests of children – whether Tribunal misdirected itself and/or “erred in law” in applying appropriate test – whether “paramountcy principle” was properly considered. Children Services Tribunal Act 2000 (Qld), s 38, 130, 133 Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 6, 95, 96, 99, 100, 102 Brigginshaw v Brigginshaw (1938) 60 CLR 336 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 Perry and Browns Patents (1930) 48 RPC 200 Queensland Childrens Services Tribunal decision of OAA, Re [2006] QCST 14 (20 July 2006) Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1 COUNSEL: Ms K A McMillan SC for the appellant No appearance for the first respondent No appearance for the second respondent SOLICITORS: Counsel for Appellant instructed by Commission for Children and Young People and Child Guardian Introduction [1] This is an appeal pursuant to Part 7 of the Children Services Tribunal Act 2000 (Qld) (“the CST Act”) from the decision of the Children Services Tribunal (“the tribunal”) dated 23 May 2007, which set aside the decision of the Commissioner for Children and Young People and Child Guardian (“the appellant”) of 3 April 2006 whereby the appellant issued “a negative notice” to Anthony James Ross (“the first -- 2 of 14 -- 3 respondent”) pursuant to s 102(7) of the Commission for Children and Young People and Child Guardian Act 2000 (Qld) (“the Act”) as the Commissioner was not satisfied that it is “…an exceptional case in which it would not harm the best interests of children for me (the Commissioner) to issue a positive notice”1 within the terms of that subsection. As a consequence, the tribunal issued the first respondent with “a positive notice” on the basis that it was “… satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued to Anthony Ross”2 . Tribunal’s decision [2] The tribunal concluded that it “…is satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued to Anthony Ross”. 3 Background [3] The first respondent was born on 7 October 1969 and is presently 38 years of age. [4] On 18 February 2005 the appellant received an application on behalf of the first respondent pursuant to s 100 of the Act from the Northern Suburbs Junior Rugby League Football Club for the issue to him of a “blue card”, which enables the recipient to engage in “regulated employment” as defined in the schedule to the 1 Affidavit of Karen Alton filed 6 March 2008, Exhibit “A9” – Commisioner’s Reasons at [10] ‘Decision’. 2 Tribunal’s Reasons dated 23 May 2007 at [72]. 3 Ibid. -- 3 of 14 -- 4 Act,4 the purpose of which was to enable the first respondent to be engaged as a children’s football coach. [5] In the course of the appellant’s investigation into the application it was revealed that the first respondent had a criminal history which is summarised in the following terms: 5 “(a) On 6 October 1987, he was convicted of indecent dealing with a girl under 14 years (on 19 July 1987) and was sentenced to 3 years probation and 50 hours of community service (“indecent dealing offence”); and (b) On 29 March 1993, he was convicted of an aggravated assault on a female (on 11 November 1992) and received a sentence of a recognisance of $200.00 and to be of good behaviour for 6 months (“aggravated assault offence”).” [6] After a consideration of the application the appellant issued “a negative notice” under s 102(7) of the Act. [7] The first respondent then applied to have the appellant’s decision reviewed by the tribunal which upheld the review and issued the first respondent with “a positive notice” on the basis of its decision of 23 May 2007 referred to in paragraph [1] above. It is from that decision that the appellant now appeals to this court. Grounds of Appeal [8] The appellant’s basic ground of appeal is that the tribunal “misdirected itself and/or erred in law as to the appropriate test for an ‘exceptional case’”6 by failing “… to 4 Section 97 (1)(a) of the Act. 5 Affidavit of Karyn Alton filed 6 March 2008, Exhibit “A2”; Appellant’s written outline of submissions filed 1 August 2007 at [5]. 6 Notice of Appeal filed 20 June 2007. -- 4 of 14 -- 5 take into account and/or give adequate weight to the following relevant considerations: (a) the paramountcy of the principle of the welfare and best interests of a child; (b) the nature and seriousness of the first respondent’s convictions; (c) the first respondent was “sexually excited” by the victim child during the commission of one of the offences; (d) there had been no relevant psychiatric treatment undertaken by the first respondent subsequent to the offences.” 7 The law [9] Section 130 of the CST Act provides: “A party to a review may appeal to the District Court against the tribunal’s decision on the review under section 38(1),8 but only on a question of law” [10] Section 133 of the CST Act provides: “In deciding the appeal, the court may— (a) confirm, set aside or vary the tribunal’s decision; or (b) set aside the decision and return it to the tribunal for reconsideration in accordance with directions given by the court; or (c) make orders, and give directions, the court considers appropriate.” [11] It is well established law that for an appellant to succeed on “error of law” the grounds thereof must be stated with precision and the aggrieved party must point to 7 Ibid. -- 5 of 14 -- 6 some act or omission on the part of the judicial tribunal from which the decision is appealed which demonstrates a failure by it to apply proper legal principles in reaching its decision, or that it received or excluded relevant evidence which denied the appellant the opportunity to receive a fair consideration of the issues involved.9 [12] It must also be noted that the tribunal’s decision, the subject of this appeal, arises from the tribunal having reviewed the appellant’s decision under s 38 of the CST Act which relevantly provides that:10 “(2)… the tribunal— (a) has all the functions and powers of the decision maker; and (b) must have regard to the matters the decision maker was required to have regard to under the Act under which the decision was made.” [13] The review process therefore is effectively a rehearing of the original application and in the instant case involved the tribunal conducting a “Preliminary Conference” on 31 May 2006 11 and a “Hearing” on 27 April 200712 when evidence was received from the first respondent and two other witnesses, at the conclusion of which oral submissions were made by the appellant’s representative and the tribunal duly delivered its decision on 23 May 2007. [14] As was stated by Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied v AIRC: 13 “Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process.14 And unless the 8 Section 38 (Powers of tribunal on review). 9 Cf Order 53 r3(2) of Federal Court Rules 1979 (Cth); see also Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232. 10 Section 38 (2)(a) & (b) of the CST Act. 11 Affidavit of Karen Alton filed 6 March 2008, Exhibit “A16”. 12 Ibid Exhibit “A17”. 13 Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] 203 CLR 194 at [21]. 14 See Norbis v Norbis (1986) 161 CLR 513 at [518]-[519], per Mason and Deane JJ. -- 6 of 14 -- 7 relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretion, in House v The King in these terms: ‘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.’15 ” [15] Part 6 of the Act sets out the legislative provisions dealing with “Screening for regulated employment and regulated businesses”. Section 95 provides that: “The main purpose of this part is to ensure that persons employed in particular employment, or carrying on particular businesses, as prescribed under this Act undergo screening under this part”. Further, s 96 provides that: “Without limiting section 6, 16 the paramount consideration in making a decision under this part is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.” [16] Section 102(6), (7) and (8) of the Act relevantly provide: “(6) Subject to subsection (7), the commissioner must issue a negative notice to the relevant person if the commissioner is aware of— (a) a conviction of the relevant person for an excluding offence for which the court that convicted the relevant person imposed an imprisonment order for the offence or made a disqualification order under section 126C; or (b) a conviction of the relevant person for a serious offence, other than an excluding offence dealt with in a way mentioned in paragraph (a). (7) The commissioner is required to issue a negative notice under subsection (6)(b) unless the commissioner is satisfied it is an exceptional case in which it would not harm the best interests of children for the commissioner to issue a positive notice. 15 House (1936) 55 CLR 499 at [505], per Dixon, Evatt and McTiernan JJ. 16 Section 6 (Principles for administering this Act). -- 7 of 14 -- 8 (8) If the commissioner is satisfied under subsection (7) that it is an exceptional case, the commissioner must issue a positive notice.” [17] As was stated in OAA Re (2006) QCST 14 17 “the term ‘exceptional case’ as used in s 102 of the Act has not been defined in the Act or by judicial authority. What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.” [18] This interpretation was adopted by Philippides J in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 (Maher’s case) where Her Honour stated at paragraph [34]: “I would endorse the approach of Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1, in adopting the warning of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200, that ‘it would be most unwise to lay down any general rule with regard to what is an exceptional case (…) All these matters are matters of discretion.’” [19] Further relevant dicta on point is also to be found in OAA Re (2006) QCST 14 at paragraphs [27]-[30] where the term “exceptional circumstances” is discussed and wherein reference is also made to Maher’s case in which McPherson JA reaffirmed the principle that the welfare and best interests of a child was the paramount consideration “to which all others yield”. Appellant’s submissions [20] The appellant’s submissions may be summarised in the following terms: 17 Queensland Childrens Services Tribunal decision of OAA, Re [2006] QCST 14 (20 July 2006) at [25]. -- 8 of 14 -- 9 (a) The central focus of the Act is the protection of children and “… that the welfare and best interests of a child are paramount”.18 This principle is reinforced by s 96 of the Act. (b) “The tribunal misdirected itself and/or erred in law as to the appropriate test for an ‘exceptional case’” in its application of s 102(7) of the Act to the facts of this case having regard to the first respondent’s “criminal history” and the tribunal’s “findings and conclusion” set out in paragraph 71 of its reasons.19 Further “the tribunal failed to take into account any evidence about the applicant’s (first respondent) likelihood of re-offending”.20 (c) In summary, the appellant submits that the tribunal erred in law by failing to apply properly the “paramountcy principle” in considering “the welfare and best interests of a child” in granting the first respondent a “blue card” under the Act and failed “… to give adequate reasons for its decision that an ‘exceptional case’ existed in favour of Mr Ross (first respondent) …”. 21 First Respondent’s submissions [21] The respondent did not appear nor was he represented at the hearing of the appeal but advised the court by correspondence dated 13 August 2007, filed 16 August 2007 that he “… will not be contesting the hearing and will allow the courts to decide on the outcome of the blue card”.22 Tribunal’s findings 18 Appellant’s written outline of submissions filed 1 August 2007 at [11]; see also s 6(1) of the Act. 19 Ibid at [19]-[20]. 20 Ibid at [32]. 21 Ibid at [49] and following. 22 The full text of the respondent’s correspondence appears at page 25 line 47-54 of the Appeal transcript record. -- 9 of 14 -- 10 [22] The tribunal delivered its “reasons for decision” on 23 May 2007 in which it: • Set out the “Background to the Proceedings”;23 • Identified “The Law to be Applied” in reviewing the appellant’s decision;24 • Set out the “two convictions”25 against the first respondent, the first of which falls under the category of “a serious child-related sexual offence”;26 • Identified the law to be applied by the appellant in reaching her decision;27 • Set out the case law relevant to the term “exceptional case”;28 • Summarised the evidence before it at the hearing in respect of the first defendant’s two criminal offences and his personal history since that time together with the evidence of witnesses called who provided character evidence in support of the first respondent’s application.29 • Considered the submissions of the appellant which included reference to “…clinical notes from the psychiatric or psychological counselling received by the applicant while on probation between 1987 and 1990… (which) do not suggest that the intervention was targeted towards reducing the risk of re- offending……(and) The applicant has not received any other treatment”.30 23 Tribunal’s Reasons dated 23 May 2007 at [1]-[5]. 24 Ibid at [6]-[22]. 25 Ibid at [24]. 26 Serious child-related sexual offence – section 99D of the Act; excluding offence – section 99E of the Act. 27 Tribunal’s Reasons dated 23 May 2007 at [13]. 28 Ibid at [15 ]-[22]. 29 Ibid at [27]-[71]. 30 Ibid at [52]; Clinical notes are contained in the Affidavit of Karen Alton filed 6 March 2008, Exhibit “A6”. -- 10 of 14 -- 11 • Considered the first respondent’s past and current personal “Relationships”,31 ultimately concluding that it “… is satisfied that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued to Anthony Ross”. 32 Discussion [23] By reference to Maher’s case above, the tribunal’s decision (and indeed the appellant’s earlier decision) involved an exercise of discretion as to whether it was “satisfied” that an “exceptional case” had been established in the terms of s 102(7) of the Act. The “satisfaction” test to be applied, being that established by Brigginshaw v Brigginshaw (1938) 60 CLR 336. 33 As was also reaffirmed in Maher’s case, it is not appropriate for this court as the appellate tribunal “… to conduct a merits review of the tribunal’s decision”,34 but as also stated in the Coal and Allied Operations case referred to in paragraph [14] above “… it is only if there is error in (the decision-making process) that a discretionary decision can be set aside by an appellate tribunal”. [24] It cannot be challenged that the criminal offence which the first respondent committed on 19 July 1987 when he was 17 years nine months of age, to which he pleaded guilty and was duly convicted, was a very serious offence now constituting the offence of rape under our criminal code.35 Therefore it was incumbent upon the tribunal in considering the “paramountcy principle” set out under the Act and the 31 Ibid at [63]. 32 Ibid at [72]. 33 See Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30], as per Philippedis J. 34 Ibid at [35]. 35 Section 349 of the Criminal Code Act 1899 (Qld). -- 11 of 14 -- 12 level of satisfaction needed for the purposes of s 102(7)36 to have before it all available evidence relevant to “risk” factors vis-à-vis the first respondent and children, before issuing a positive notice. Particularly is this so as the “blue card” does not have any limitations on conditions on the extent to which a recipient thereof may be involved with children, be it paid employment or voluntary work.37 [25] There was no medical or psychiatric evidence before the tribunal which could have assisted it, in its consideration of this important issue, particularly when the issue was raised at the “preliminary conference” before the tribunal on 31 May 2006.38 It is noted that this issue was further raised at the tribunal hearing on 27 April 2007 when it was revealed that the first respondent had consulted a “Pychiatrist, I think” 39 and the evidence was that the first respondent was not satisfied with the psychiatrist’s attitude in that the first respondent stated that the psychiatrist had said to him that “‘If you come back, we can do some more reports,’ he said, ‘But I won’t write a report out, because you’re – I won’t give it – the report would be bad.’”40 [26] The tribunal elected to continue with the hearing and decided the matter on the evidence then before it. Findings [27] On a consideration of all of the above, I find that the tribunal has erred in law in reaching its decision of 23 May 2007 in that: 36 Compare s 102(4) of the Act before amendment (Reprint No.3), applicable at the time of Maher’s case. 37 Affidavit of Karen Alton filed 6 March 2008, Exhibit “A9” – Commisioner’s Reasons [9.6] ‘Transferability of blue card’. 38 Ibid Exhibit “A16” – ‘Preliminary Conference’ transcript page 7 line 47-48; page 8 line 1-25. 39 Ibid Exhibit “A17” – ‘Hearing Transcript’ page 38 line 1. 40 Ibid page 37 line 38-41. -- 12 of 14 -- 13 (a) In view of the seriousness of the offence committed by the first respondent, (particularly where the complainant child was his first cousin and the offence occurred in a domestic environment) it should have required that there was evidence before it from a specialist psychiatrist specifically addressing the first respondent’s “risk” factor of re-offending before it could be “satisfied” to the standard required by law that the first respondent was in the “exceptional case” category within the terms of s 102(7) of the Act; (b) More so was this further evidence required when the tribunal had notice through the evidence of the first respondent himself referred to in paragraph [25] above that he had sought a specialist report from an undisclosed psychiatrist who stated, according to the first respondent’s evidence, that “the report would be bad”; (c) Although the tribunal addressed a number of relevant factors within the terms of s 102(7) of the Act, in view of the fact that there is a high onus on an applicant to establish that his/her circumstances satisfy the “exceptional case” category, I am of the view that it was incumbent upon the tribunal to have available to it, all relevant evidence on point before concluding that an “exceptional case” has been established to enable “a positive notice” to be issued. (my emphasis). [28] It follows therefore that the appeal must be allowed. [29] My orders will be as follows: 1. The appeal is allowed. -- 13 of 14 -- 14 2. The decision of the Children Services Tribunal dated 23 May 2007 is set aside. 3. The decision of the Commission of Children and Young People and Child Guardian made on 3 April 2006 to issue a negative notice to the first respondent Anthony James Ross is reinstated. 4. No order as to costs. -- 14 of 14 --