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SLH v Director-General, Department of Justice[2025] QCAT 13

SLH v Director-General, Department of Justice[2025] QCAT 13

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SLH v Director-General, Department of Justice [2025] QCAT 13

PARTIES:

slh

(applicant)

v

director-general, department of justice

(respondent)

APPLICATION NO:

CML113-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 January 2025

HEARING DATE:

6 January 2025

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Kanowski

DIRECTIONS:

  1. Director-General, Department of Justice is not required to produce, and the tribunal declines to order the attendance of, the four persons whom SLH has indicated he wishes to cross-examine.
  2. SLH must file in the tribunal, and send to Director-General, Department of Justice a copy of, submissions on what decision the tribunal should reach in the review, by 4:00pm on 24 January 2025.
  3. Director-General, Department of Justice must file in the tribunal, and send to SLH a copy of, submissions on what decision the tribunal should reach in the review, by 4:00pm on 7 February 2025.
  4. SLH must file in the tribunal, and send to Director-General, Department of Justice a copy of, submissions in reply, by 4:00pm on 14 February 2025.
  5. The tribunal will then make its decision on the review.

CATCHWORDS:

EVIDENCE – ADDUCING EVIDENCE – CROSS-EXAMINATION – WHO MAY BE CROSS-EXAMINED – where party has tendered witness statements prepared for other proceedings – whether other party has right to cross-examine authors of the statements

Domestic and Family Violence Protection Act 2012 (Qld), s 159(1)

Human Rights Act 2019 (Qld), s 31(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 28, s 95(1), s 97, s 226(3)

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226, s 228

Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 98

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

A L Raeburn instructed by Lee, Turnbull and Co, solicitors

Respondent:

K Malouf, advocacy officer, Blue Card Services

REASONS FOR DECISION

Introduction

  1. [1]
    The present directions are made in the course of a part-heard review proceeding. SLH[1] has sought review of a decision made by the respondent (referred to here, for convenience, as ‘Blue Card Services’) to refuse to cancel a negative notice. A negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’) prevents a person from holding a ‘blue card’ for working with children.
  2. [2]
    The review hearing commenced on 7 November 2024. Various documents were admitted as evidence at the hearing. They included:
    1. a bundle of documents page-numbered BCS 1-126, marked Exhibit 4; and
    2. a bundle of documents page-numbered NTP 1-283, marked Exhibit 5.
  3. [3]
    The Exhibit 4 bundle consists of various documents provided by Blue Card Services in compliance with its obligation, as the original decision-maker, under section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to provide a statement of reasons and documents in its possession or control ‘that may be relevant to the tribunal’s review of the decision’.
  4. [4]
    The Exhibit 5 bundle was also provided by Blue Card Services. It consists of various documents that had been produced to the tribunal in response to orders for production issued by the tribunal to third parties – the Magistrates Court, the Queensland Police Service, and the Department of Child Safety, Seniors and Disability Services – under section 63 of the QCAT Act. Those orders were made following applications by Blue Card Services for the issuing of such orders. (These orders were referred to in pre-hearing directions as notices to produce. This description explains the page-numbering prefix for Exhibit 5). 
  5. [5]
    Oral evidence was given on 7 November 2024 by SLH and a psychologist who had assessed him. Apart from introductory matters or corrections, this evidence consisted of cross-examination by Blue Card Services and re-examination by SLH’s counsel, as SLH and the psychologist had already provided their evidence-in-chief in written form.
  6. [6]
    A procedural issue arose at the hearing as to whether Blue Card Services is required to produce four persons for cross-examination by SLH’s counsel Mr Raeburn. Mr Raeburn wishes to cross-examine the following persons:
    1. ‘Partner A’, who was SLH’s domestic partner for a period including September 2018;
    2. ‘Partner B’, who was SLH’s former domestic partner;
    3. Judy Bailey, Acting Director, Blue Card Services, who wrote a statement of reasons dated 9 March 2023 for the decision that the tribunal is reviewing; and
    4. Michelle Miller, Director, Blue Card Services, who wrote a statement of reasons dated 29 October 2018 for an earlier decision to issue the negative notice.
  7. [7]
    Copies of affidavits by Partner A and Partner B which were filed in Magistrates Court proceedings are within Exhibit 5.[2] The names of the deponents are redacted in Exhibit 5 but from other material it is apparent who the deponents are.
  8. [8]
    The affidavit by Partner A was filed in a proceeding under the Domestic and Family Violence Protection Act 2012 (Qld) (‘Domestic Violence Act’). The affidavit contains a detailed description of events on a particular day in September 2018 which Partner A says included SLH strangling her and repeatedly assaulting her in other ways. The affidavit also discusses other ‘violence during the relationship’ under headings such as ‘emotional and psychological abuse’ and ‘using coercion and threats’.[3]
  9. [9]
    The affidavit by Partner B was also prepared for a proceeding under the Domestic Violence Act. It describes events during their relationship, involving what is referred to by Partner B as SLH’s ‘manipulative and demeaning behaviour’.[4]
  10. [10]
    The statements of reasons by Ms Bailey and Ms Miller are within Exhibit 4.[5] The statements quote a variety of source documents such as police summaries of alleged facts relevant to criminal charges against SLH, psychological reports, and character references, as well as setting out the reasons for the decision in question.
  11. [11]
    At the hearing on 7 November 2024, there was disagreement between the parties about whether Blue Card Services was required to make Partners A and B, Ms Bailey and Ms Miller available for cross-examination. Blue Card Services advised that these persons were not available for cross-examination that day, and its position is that it is not obliged to make them available for cross-examination.
  12. [12]
    Mr Raeburn also submitted at the hearing that Blue Card Services should produce, or obtain and produce, some additional documents.
  13. [13]
    I indicated on 7 November 2024 that the hearing would be adjourned part-heard and that parties would be required to provide written submissions on the procedural matters that had arisen. I made written directions on 8 November 2024 requiring written submissions addressing whether Blue Card Services ‘should be required to provide additional documents for the review and whether it should be required to make any persons available for cross-examination’.
  14. [14]
    Mr Raeburn has provided submissions dated 25 November 2024, and Blue Card Services has provided submissions dated 13 December 2024. Mr Raeburn’s submissions address only the argument that the four persons should be made available for cross-examination, so I assume that SLH no longer seeks the production of further documents.

Statutory framework

  1. [15]
    Section 21(1) of the QCAT Act requires the decision-maker for the reviewable decision – in this case Blue Card Services – to ‘use its best endeavours to help the tribunal so it can make its decision on the review.’
  2. [16]
    Section 28 of the QCAT Act says:
  1. 28
    Conducting proceedings generally
  1. (1)
    The procedure for a proceeding is at the discretion of the tribunal, subject to this Act, an enabling Act and the rules.
  1. (2)
    In all proceedings, the tribunal must act fairly and according to the substantial merits of the case.
  1. (3)
    In conducting a proceeding, the tribunal—
  1. (a)
    must observe the rules of natural justice; and
  1. (b)
    is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and
  1. (c)
    may inform itself in any way it considers appropriate; and
  1. (d)
    must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit;
  1. (e)
    must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
  1. …
  1. [17]
    Section 31(1) of the Human Rights Act 2019 (Qld) says, relevantly, that a party to a civil proceeding has a right to a fair hearing.
  2. [18]
    Section 95(1) of the QCAT Act says (emphasis added):
  1. 95
    Evidence
  1. (1)
    The tribunal must allow a party to a proceeding a reasonable opportunity to—
  1. (a)
    call or give evidence; and
  1. (b)
    examine, cross-examine and re-examine witnesses; and
  1. (c)
    make submissions to the tribunal.
  1. [19]
    Section 95 recognises practices designed to ensure a fair hearing. Cross-examination is undoubtedly a significant tool for testing evidence provided by an opposing party.

Is Blue Card Services required to make the four persons available for cross-examination? If not, should the tribunal require their attendance?

  1. [20]
    It is convenient to deal separately with Partners A and B on the one hand, and Ms Bailey and Ms Miller on the other.
  2. [21]
    The affidavits of Partners A and B contain information adverse to SLH’s case. It is apparent from his material that he denies most if not all of the alleged bad conduct. Doubtless, the contents of the affidavits are relied on by Blue Card Services as relevant to whether SLH should be subject to a negative notice. Blue Card Services has tendered the affidavits on the basis that they are relevant. It quoted from the affidavits in its Outline of Submissions dated 11 April 2024.[6] The Blue Card Services representative on 7 November 2024 quoted passages from the affidavits when cross-examining SLH.
  3. [22]
    As noted earlier, the affidavits were prepared for domestic violence proceedings in the Magistrates Court. Blue Card Services has not suggested that it has attempted to take statements from Partners A and B for the tribunal proceedings. Those persons could, though, be regarded as witnesses for Blue Card Services, in the sense that Blue Card Services is asking the tribunal to take into account what they have said in the affidavits.
  4. [23]
    Are partners A and B, however, witnesses in the sense contemplated by section 95, such that SLH must be allowed an opportunity to cross-examine them? On balance, I think not.
  5. [24]
    As noted earlier, the tribunal can inform itself in any way it considers appropriate, and it is not bound by the rules of evidence. However, the right under section 95(1) to cross-examine would prevail over those general terms of section 28, as is apparent from section 28(1).
  6. [25]
    The tribunal must have regard to a wide range of information when deciding a blue card case. This is mandated by sections 226 and 228 of the Working with Children Act. References in those sections to the chief executive should be read, for present purposes, as if they were references to the tribunal, as the tribunal stands in the place of the chief executive when conducting a review. Section 226 applies when the person has a conviction or has been charged with an offence. It is an applicable provision in the present case because SLH has some convictions and because some of the alleged conduct against Partner A was the subject of criminal charges which were ultimately discontinued. Under section 226, the tribunal must have regard to various matters including ‘anything else relating to the commission, or the alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person’.[7] Section 228, which relates to domestic violence information amongst other matters, is also applicable. Under that section, the tribunal must have regard to ‘anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person’.[8]
  7. [26]
    These provisions will often require the tribunal to have regard not only to police summaries of facts but also to statements (whether in affidavit or other form) prepared for criminal proceedings or for applications for protection orders under the Domestic Violence Act. I do not consider that Parliament could have intended that the persons signing those statements would become witnesses for Blue Card Services for the purposes of section 95 of the QCAT Act. Partly this is because of practical issues: Blue Card Services would not necessarily have had any contact with those persons, so it could not easily produce them for cross-examination. More fundamentally, though, such statements were produced for other proceedings. The authors were witnesses in those proceedings. The documents are relevant in the blue card proceeding but the authors are not witnesses in the blue card proceeding. They have exercised no choice to play a role in the blue card proceeding. Nor, presumably, have they even been informed that their statements are being used in the blue card proceeding.
  8. [27]
    Accordingly, I do not consider that Partners A and B are ‘witnesses’ for Blue Card Services whom SLH has a right to cross-examine under section 95, regardless of how much reliance Blue Card Services might invite the tribunal to place on the contents of the affidavits.
  9. [28]
    For a different reason, I also do not consider that Ms Bailey or Ms Miller are witnesses for the purposes of section 95. Their statements of reasons do recite a good deal of evidence but in doing so the authors are merely quoting evidence contained elsewhere in Exhibit 4. To the extent that their statements articulate their reasons for decision, that merely records the reasoning process of the decision-makers. That information is not evidence of any fact relevant to the tribunal’s decision about SLH’s eligibility to have the negative notice cancelled. The tribunal must conduct the review by way of a ‘fresh hearing on the merits’.[9] The reasoning of the previous decision-maker/s is merely background, and is in the nature of submissions rather than evidence.
  10. [29]
    In summary, and speaking in general terms, I consider that section 95 gives party A the right to cross-examine a person from whom party B has obtained a statement of evidence for the current proceeding, or whom party B has arranged to give oral evidence (for example where the person is unwilling to give a written statement but has been served with a notice to attend). It does not give a broader right to cross-examine a person who has given a statement of evidence in another proceeding notwithstanding that party B has arranged for that statement to be placed before the tribunal. Also, it does not give a right to cross-examine a person who has provided a statement of reasons as distinct from a statement of evidence.
  11. [30]
    Mr Raeburn draws attention to passages in QCAT Practice Direction No 3 of 2013 Hearings in Administrative Review Proceedings including paragraph 5(d):

The decision-maker’s witnesses will confirm their previously filed written witness statements under oath or affirmation and will then be made available for cross-examination by the applicant (Note: because the Tribunal’s role in merits review is to make the decision afresh, the decision-maker shall not give evidence or be cross-examined about why it made the decision. However, depending on the nature of the particular review, the decision-maker may have other evidence to present. For example, in a review of a decision by the Queensland Building and Construction Commission, a building inspector or engineer’s evidence which was relied upon in making the decision; in a review of a Child Safety decision about contact with children, departmental officers may give evidence about interactions between a parent and themselves; in a review of a decision by a local Council about a dangerous dog declaration, the Council may present evidence from witnesses to an incident involving the dog.)

  1. [31]
    Mr Raeburn also draws attention to a passage in QCAT Practice Direction 5 of 2022 Applications for review of decisions made about Blue Cards, at [52]: ‘it is generally expected that any witness whose evidence is intended to be relied upon by a party can be cross-examined by the other party’.             
  2. [32]
    I note that the Practice Directions do not define ‘witness’. The quoted passages are not inconsistent with the interpretation of ‘witness’ I have made for section 95. They would require a person who had given a statement of evidence for the review proceeding to be made available for cross-examination. Also, if the original decision-maker has given a statement of evidence, and not merely a statement of reasons, the applicant would have a right under section 95 to cross-examine that person.
  3. [33]
    However, even if the Practice Directions are read as contemplating that the original decision-maker and the author of any statement filed in another proceeding must be available for cross-examination regardless, that does not affect the interpretation of section 95. As was noted by the QCAT Appeal Tribunal: ‘in general a statute should not be interpreted by reference to subordinate legislation’.[10] This principle would also apply with even greater force to a Practice Direction, which is, expressly, ‘not subordinate legislation’.[11]
  4. [34]
    There are some review proceedings in which the original decision-maker will have obtained statements of evidence to assist it in making the original decision. For example, a local council might do so before deciding whether to declare a dog dangerous. Such a statement would inevitably form part of the section 21(2) material. However, the statement would have been given before there was any review proceeding, and before it was known whether there would ever be such a proceeding. It is not necessary for me to decide in this case whether an applicant for review would have a right to cross-examine the author of such a statement. That question may turn upon whether the statement was given in contemplation that it might also be used in any review proceeding.
  5. [35]
    Mr Raeburn submits that the failure of Blue Card Services to make the four persons available for cross-examination ‘amounts to egregious denial of natural justice and procedural fairness’.[12] He also notes that the tribunal has power under section 97 of the QCAT Act, on the application of a party or on its own initiative, to require a person to attend a hearing to give evidence. Mr Raeburn’s written submissions contend, in effect as I understand them, that the tribunal should, on its own initiative, compel the four witnesses to attend for cross-examination if Blue Card Services is not to be compelled to ensure their attendance.
  6. [36]
    However, I am not persuaded that this would be appropriate in light of how, in my view, section 95 operates. Doing so would effectively confer a right to cross-examine where section 95 does not. The proper approach, rather, is to treat the lack of opportunity for cross-examination as going to the weight – that is, tending to detract from the weight – that should be attached to the evidence of persons such as Partners A and B.
  7. [37]
    A similar observation was made by the QCAT Appeal Tribunal in a blue card case involving statements given to police in the course of a criminal investigation:

The fact that the authors of the statements have not been cross-examined will affect what weight should be placed on them, but does not render them irrelevant. Even untested allegations made in sworn statements to the police bear on the question whether this is an exceptional case.[13]

  1. [38]
    Mr Raeburn submits:

The contents of Michelle Miller’s statements filed in the District Court proceedings may bear upon the [prosecution’s] decision to discontinue to [prosecute] the Applicant.

The decisions of Michelle Miller and [Judy] Bailey to not disclose any material relating to the District Court proceedings, save for the QP 9, requires further investigation under cross-examination.[14]

  1. [39]
    For context, I note that there is evidence in SLH’s material that Ms Miller had provided statements to police for a District Court criminal proceeding against SLH relating to alleged offences against Partner A.
  2. [40]
    I would have thought that copies of statements filed in the criminal proceeding would be available to SLH, and he could have filed them in the tribunal proceeding if he considered them relevant. However, it may be that he does not have copies of all such statements.
  3. [41]
    In any event, however, as discussed, no right to cross-examine arises in respect of persons who are not ‘witnesses’ in the current proceeding.
  4. [42]
    If it is contended that Blue Card Services has failed to file in the tribunal proceeding relevant documents within its possession or control, that is something that would be considered if the tribunal was being asked to issue a notice to Blue Card Services under section 21(3) of the QCAT Act. That provision allows the tribunal to require the original decision-maker to provide documents if the tribunal considers there are additional documents in the decision-maker’s possession or control that may be relevant to the review. However, Mr Raeburn’s written submissions do not call for a tribunal order, notice or direction that additional documents be provided. 

Conclusion and next steps

  1. [43]
    Accordingly, I have directed that Blue Card Services is not required to produce the four persons for cross-examination, and that the tribunal does not intend to compel their attendance.
  2. [44]
    The parties advised at the hearing that the only persons required for cross-examination were the two persons who were cross-examined on 7 November 2024, namely SLH and the psychologist, and the four who Mr Raeburn wished to cross-examine. As Mr Raeburn’s request to cross-examine those persons has been denied, that means the oral evidence is now complete. The next step will be submissions on what decision the tribunal should reach in the review. That can be done most conveniently by way of written submissions. Accordingly, I have set a timetable for submissions, after which the tribunal will make its decision in the review.

Footnotes

[1]  The applicant and his former domestic partners are not named in these reasons, in order to not infringe section 159(1) of the Domestic and Family Violence Protection Act 2012 (Qld) which prohibits identification of parties to proceedings under that Act.

[2]  At NTP 129ff and NTP 49ff respectively.

[3]  Ibid, at NTP 137, NTP 138 and NTP 141 respectively.

[4]  Ibid, NTP 54, [32].

[5]  At BCS 10ff and BCS 1ff respectively.

[6]  At [63](a) and (b).

[7]  Working with Children Act, s 226(2)(f).

[8]  Ibid, s 228(2)(g).

[9]  QCAT Act, s 20(2).

[10] Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 98, [69](j).

[11]  QCAT Act, s 226(3).

[12]  Submissions on behalf of SLH dated 25 November 2024, [4].

[13] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [32].

[14]  Submissions on behalf of SLH dated 25 November 2024, [28]-[29].

Close

Editorial Notes

  • Published Case Name:

    SLH v Director-General, Department of Justice

  • Shortened Case Name:

    SLH v Director-General, Department of Justice

  • MNC:

    [2025] QCAT 13

  • Court:

    QCAT

  • Judge(s):

    Acting Senior Member Kanowski

  • Date:

    06 Jan 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beyond Reserve Pty Ltd v Kagawa [2024] QCATA 98
2 citations
Jump To
Cite 1 - [2024] QCATA 98
Cite 2 - [2024] QCATA 98
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87

Cases Citing

Case NameFull CitationFrequency
SLH V Director-General, Department of Justice (No 2) [2025] QCAT 1482 citations
1

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