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NTB v Chief Executive, Public Safety Business Agency[2016] QCATA 154

NTB v Chief Executive, Public Safety Business Agency[2016] QCATA 154

CITATION:

NTB v Chief Executive, Public Safety Business Agency [2016] QCATA 154

PARTIES:

NTB

(Appellant)

v

Chief Executive, Public Safety Business Agency

(Respondent)

APPLICATION NUMBER:

APL522-15

MATTER TYPE:

Appeals

HEARING DATE:

7 September 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

Member Browne

DELIVERED ON:

18 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal on ground 1 is allowed and the decision of the Tribunal made on 15 November 2015 is set aside.
  1. The application to review the decision of the Chief Executive, Public Safety Business Agency made on 27 April 2015 to issue a negative notice to NTB is returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons.
  1. Any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2 of this Order, must be filed in the Appeal Tribunal and given to the other party by:

4:00 pm on 14 November 2016

  1. Any written submissions in response to any application to rely on additional evidence at the fresh hearing must be filed in the Appeal Tribunal and given to the other party by:

4:00 pm on 5 December 2016

  1. Unless otherwise ordered by the Appeal Tribunal and in the absence of a request for an oral hearing, any application for leave to rely on additional evidence at the fresh hearing of the application referred to in paragraph 2 of this Order will be determined by the Appeal Tribunal on the papers and without an oral hearing on a date not before 6 December 2016.

CATCHWORDS:

APPEAL – GENERAL ADMINISTRATIVE REVIEW – whether an exceptional case –  where tribunal considered on review decision to issue negative notice – where Tribunal found an exceptional case – whether Tribunal identified correct test to be applied – whether Tribunal properly exercised discretion

APPEAL – where tribunal did not identify and apply the correct legal test ­– where tribunal made findings about other matters

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 61, s 146

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221, s 226, s 227

House v The King (1936) 55 CLR 499, cited

Lovell v Lovell (1950) 81 CLR 513, cited

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2014] QCA 492, cited

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, cited

REPRESENTATIVES:

APPLICANT:

NTB represented by Mr R Bakker, Solicitor, RB Lawyers

RESPONDENT:

Chief Executive, Public Safety Business Agency represented by Mr J Thompson, Government Legal Officer

REASONS FOR DECISION

  1. [1]
    NTB (the appellant) wants a blue card so that she can continue working in her profession of teaching and coaching.  She was the holder of a blue card until the Chief Executive, Public Safety Business Agency (the respondent) made a decision to issue a ‘negative exemption notice’[1].
  2. [2]
    The respondent made the decision to issue a negative exemption notice because information was received from the Queensland Police Service that included a change to the appellant’s criminal history.
  3. [3]
    The appellant sought a review of the respondent’s decision and a hearing proceeded before the Tribunal on 21 August 2015.  The Tribunal on review confirmed the respondent’s decision.
  4. [4]
    The appellant wants to appeal the Tribunal’s decision.  Although the application for leave to appeal or appeal identifies five grounds of appeal that requires leave because each ground raises a question of mixed fact and law, there is now only one ground of appeal. That is, the Tribunal erred in a matter of law by failing to identify the test of whether this is an exceptional case. NTB also argues that the Tribunal failed to properly apply or exercise the discretion as to whether this is an exceptional case in reviewing the decision.
  5. [5]
    The respondent addressed the only ground of appeal raised at the oral hearing. The respondent submits that the learned Member’s reasons do identify the test and the application of the test. The respondent submits that the reasons are appropriate and sufficient and do not establish grounds of appeal.  The respondent contends that the appellant has received a hearing and there has been a careful consideration and determination of that matter.
  6. [6]
    It is common ground that if we find there is an error of law in the learned Member’s failure to identify the correct test and a failure to apply the test, that any findings made by the Tribunal are flawed by reason of the error.

Ground 1 - Failure to identify and apply the correct legal test

  1. [7]
    In addressing the grounds of appeal, the appellant says that the learned Member has failed to exercise the discretion properly or at all and that was necessary to determine the review.  The appellant says that the learned Member did not identify the test and simply makes a finding that this is ‘an exceptional case’.[2]
  2. [8]
    The ground of appeal raises a question of law about the exercise of a discretion, for which leave is not required.  The Appeal Tribunal will not interfere with the learned Member’s exercise of discretion unless it can be shown that the learned Member acted upon a wrong principle, or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[3]  Just because the Appeal Tribunal might have exercised the discretion differently, that is not a basis for changing the decision.  It must be shown that the decision is plainly unjust or unreasonable and involved a clear misapplication of the discretion.[4]
  3. [9]
    In this matter the Tribunal on review was required to exercise a discretion as to whether the appellant’s case was ‘an exceptional case’ in which it would not be in the best interests of children for the chief executive or Tribunal on review to issue a positive notice.[5]
  4. [10]
    The offending behaviour giving rise to the reassessment of the appellant’s eligibility to hold a positive notice (or blue card) concerns charges that for the purposes of Division 9 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act) are not serious or disqualifying offences.[6]
  5. [11]
    The Tribunal on review must therefore be satisfied that the appellant’s case is ‘an exceptional case’ otherwise a positive notice must be issued to the appellant.[7] This is because the Working with Children Act requires the chief executive to issue a positive notice unless there are offences that are categorised as ‘disqualifying offences’ under the Act. 
  6. [12]
    The Working with Children Act does not define the meaning of ‘exceptional case’. There are certain matters that the chief executive or Tribunal on review must take into consideration as prescribed under s 226 of the Act. These include, amongst others, whether it is a conviction or charge, whether the offence is a serious offence, when the offence was committed, the nature of the offending behaviour, the penalty imposed and anything else that the chief executive or the Tribunal on review reasonably considers relevant to the assessment of the person.[8]
  7. [13]
    In determining whether the appellant’s case is ‘an exceptional case’, the Tribunal on review must be satisfied that there are exceptional circumstances before it ‘that takes the case outside the normal rule and thus makes it an exceptional case’.[9]
  8. [14]
    In Commissioner and Children and Young People and Child Guardian v FGC[10] the Appeal Tribunal said that the meaning of an exceptional case is a matter of discretion and should not be confined to ‘any general rule’.[11] The Appeal Tribunal considered the Court of Appeal decision in the Commissioner for Children and Young People and Child Guardian v Maher & Anor[12] and said that each case should be considered ‘unhampered by any special meaning or interpretation’.[13]  The Appeal Tribunal said:

The proper approach to it is that, with respect, adopted by Philippides J [in Maher’s case]: to consider its application in each particular case, unhampered by any special meaning or interpretation[14]

  1. [15]
    The Tribunal must also consider the objects of the Working with Children Act to ‘promote and protect, the rights, interests, and wellbeing of children in Queensland’.[15]  The Tribunal must also ensure that the safety and wellbeing of children is its ‘paramount consideration’.[16]
  2. [16]
    We accept the respondent’s submission in responding to the appeal that the learned Member in this matter correctly identified the decision being reviewed that is the decision to issue a negative notice made on 27 April 2015.[17]
  3. [17]
    We also accept the respondent’s submission that the learned Member has correctly identified the relevant legislation, the Working with Children Act.[18] In the reasons the learned Member has also identified that the Working with Children Act requires the chief executive decision maker to issue a positive notice unless ‘the case is exceptional’.[19].
  4. [18]
    We do not respectfully accept the respondent’s submission that the learned Member has properly identified the test and applied the test in reviewing the decision.
  5. [19]
    The learned Member did not identify the relevant sections of the Working with Children Act and did not identify how he applied the test that is a matter of discretion to determine whether there is ‘an exceptional case’.  The reasons do not identify the relevant matters that the chief executive and Tribunal on review must have regard to as prescribed under s 226 of the Working with Children Act in determining whether or not there is an exceptional case for the person.
  6. [20]
    At the oral hearing, the respondent referred the Appeal Tribunal to the ultimate findings made by the learned Member that this is an exceptional case.  The respondent also referred to the Tribunal’s ultimate findings that the protective factors do not outweigh the negative factors in this case. The learned Member found:

I find that this is an exceptional case. The proactive factors do not outweigh the negative factors in this case. It would not be in the best interest of children for a positive notice to issue.[20]

  1. [21]
    The respondent submits that the reasons do support the ultimate finding made by the learned Member that this is ‘an exceptional case’.
  2. [22]
    We do not respectfully accept the respondent’s submission. It is clear from the Tribunal’s reasons that the learned Member did not identify the correct legal test and did not identify how he applied the test.
  3. [23]
    The reasons show that the learned member identified other matters as being relevant to the review. The other matters were not relevant matters for the purposes of s 226 of the Act in determining whether this is an exceptional case. The learned Member has made findings about the other matters in determining that this is an exceptional case.
  4. [24]
    The learned Member found that he was not satisfied that the appellant is a person who should be the holder of a blue card.  The learned Member also found that to allow the appellant to have the benefit of a fully transferable blue card to enable her to work in a private setting does not sit comfortably with an existing order made by the court.  The relevant extracts form the reasons are as follow:

I am not satisfied that the Applicant is a person who should be the holder of a Blue Card, at least at this time….

To my mind an order allowing the Applicant to have the benefit of a fully transferable Blue Card which will enable her, amongst other things, to work with children in a private setting, does not sit comfortably with the fact that there is an existing order made by the Court specifically designed to protect the Applicant’s own child.

I am not satisfied that the Applicant has appropriately identified long-term and short-term risk factors involving the children.  I am concerned that her past behaviours may continue.

I find that this is an exceptional case.  The protective factors do not outweigh the negative factors in this case.  It would not be in the best interest of children for a positive notice to issue.[21]

  1. [25]
    As we have said, the relevant test to be applied in this case is whether the appellant’s case is ‘an exceptional case’ in which it would not be in the best interests of children for the chief executive or Tribunal on review to issue a positive notice.[22]  The meaning of an exceptional case is a matter of discretion.  In exercising the discretion there are certain matters that the Tribunal on review must have regard to as prescribed under s 226 of the Working with Children Act.  In exercising the discretion the Tribunal on review must also have regard to the objects of the Working with Children Act to ‘promote and protect the rights, interests and wellbeing of children and young people in Queensland’.[23] 
  2. [26]
    The learned Member has failed to identify in his reasons the correct legal test and how he applied the legal test of whether this is an exceptional case. This is an error of law.  The appeal on ground 1 is allowed.

Conclusion

  1. [27]
    We have found that there is an error in the learned Member’s decision because he did not identify the correct legal test and did not identify how he applied the test. The appeal is allowed and the decision of the Tribunal made on 15 November 2015 is set aside.
  2. [28]
    In finding that the Tribunal’s decision is set aside the application to review the respondent’s decision to issue a negative notice made on 27 April 2015 is to be sent back to the Tribunal for reconsideration.  Because this involved a failure to identify and apply the correct legal test, we accept the appellant’s submission that the Tribunal should be reconstituted for the rehearing.  We also accept the appellant’s submission that the rehearing should proceed in Brisbane because a hearing in Brisbane is convenient for both parties as the applicant has moved to Brisbane to live.
  3. [29]
    The rehearing of the application to review may involve further evidence and submissions because there has been a passage of time since the hearing at first instance.  The respondent indicated at the oral hearing that any application for leave to rely on new evidence at the rehearing would not be opposed.  The respondent also acknowledged at the oral hearing that to restrict the appellant to a rehearing on the evidence available as at 21 August 2015 would not accord procedural fairness to the appellant because there may be further matters relevant to the application that require a proper consideration by the tribunal.
  4. [30]
    Both parties should be given an opportunity to address the Appeal Tribunal in relation to whether the rehearing should proceed with additional evidence and we will make those directions accordingly.  In the absence of any application for leave to rely on fresh evidence at the rehearing of the application to review the chief executive’s decision, the rehearing of the application is to proceed before the tribunal based on the evidence at first instance now contained in the transcript.  Both parties should be given an opportunity at the rehearing before the tribunal to make any further written and/or oral submissions.  The rehearing is to proceed before a reconstituted tribunal in Brisbane.

Footnotes

[1]  Material filed pursuant to s 21 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), p 68.

[2] Reasons, [27].

[3]House v King (1936) 55 CLR 499 at 504.

[4]Lovell v Lovell (1958) 81 CLR 513.

[5]Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Working with Children Act) s 221.

[6] Ibid, s 221, s 237

[7] Ibid, s 221.

[8]  Ibid, s 226.

[9]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2014] QCA492, [29].

[10]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291.

[11] Ibid [32].

[12] [2014] QCA 492.

[13]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [33].

[14] Ibid.

[15] Working with Children Act s 5.

[16] Ibid, s (6)(a).

[17] Reasons, [7].

[18] Ibid, [4].

[19] Ibid, [4].

[20] Reasons, [27].

[21] Ibid, [24] to [27].

[22] Working with Children Act s 221.

[23] Working with Children Act s 5.

Close

Editorial Notes

  • Published Case Name:

    NTB v Chief Executive, Public Safety Business Agency

  • Shortened Case Name:

    NTB v Chief Executive, Public Safety Business Agency

  • MNC:

    [2016] QCATA 154

  • Court:

    QCATA

  • Judge(s):

    Senior Member Endicott, Member Browne

  • Date:

    18 Oct 2016

Appeal Status

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

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