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- Unreported Judgment
NPJ v Chief Executive Officer, Public Safety Business Agency QCATA 161
NPJ v Chief Executive Officer, Public Safety Business Agency  QCATA 161
Chief Executive Officer, Public Safety Business Agency
18 August 2016
18 August 2016 (delivered ex tempore)
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – OTHER MATTERS – where the applicant was considered unsuitable for child – related employment and issued with a negative notice – where the tribunal considered that there was an exceptional case in which it would not be in the best interests of children for the applicant to be granted a positive notice and a blue card – whether the tribunal failed to take into account relevant considerations in issuing the negative notice
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 146, 147
Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221
TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal  28 ALD 829
House v The King (1936) 55 CLR 499
APPEARANCES and REPRESENTATION (if any):
Ms FY Lubett of Counsel instructed by HopgoodGanim for the applicant.
Mr JJ Thompson, In-House Legal Officer for the Public Safety Business Agency.
REASONS FOR DECISION
- This is an appeal against the decision of a review tribunal confirming the order of the respondent to issue a negative notice to the applicant.
- There are six grounds of appeal, which amount to five complaints, with ground 6 really being a sub-ground of ground 5.
- Ground 1 is a failure to consider or relevancy complaint. It raises a question of law, as does ground 3. The proceeding therefore is an appeal, in respect of those two grounds, on a question of law to be decided under the principles and procedures in s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- At this point, the others – because they require leave – are only proposed appeals. If leave was granted, they would be decided, because they raise non-legal questions, by way of rehearing with or without additional evidence.
- We think this matter can properly be disposed of by considering the appeal and the questions of law first and then proceeding to the leave question if the questions of law (and the answers to them) do not dispose of the proceeding altogether.
- Under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act), a positive notice must be issued by the state agency – and, in this case on review, the tribunal – unless the facts of the case give rise to an “exceptional case” in which it would not be in the best interests of children for a positive notice to be in place, in which case a negative notice must issue.
- It is well-established that the exceptional case must be considered in the context of the Act, its protective intent and purpose, and the overall interests of affected persons, particularly children, who the Act is designed to safeguard against unacceptable risks.
- In this case, between the issuing of the negative notice – that is, the reviewable decision – and the review, the Department of Education lifted the prohibition notice against the applicant, which gave rise to the reviewable decision. That meant that it was “disciplinary information” to which the tribunal – and therefore the reviewer – must have regard in deciding whether or not there was an exceptional case for the applicant.
- What had to be considered was the fact of the cancellation of the prohibition notice and the reasons for it. Both of these were mentioned by the review tribunal in its reasons, but the applicant asserts that the ultimate decision and order are affected by legal error because the cancellation of the prohibition notice was not fully investigated or given the degree of consideration that the reviewer was required to do to properly perform the review function.
- Ground 1 raises a complaint, often made in reviewing discretionary decisions, of failure to consider, which is really a relevancy complaint and is closely linked to the concept of rationality. Rational decisions are those that take into account all relevant factors to the extent of their significance – of their assessed significance and ignore irrelevancies.
- Paraphrasing what French J said when he was a member of the Federal Court Bench, in TCN Channel Nine Pty Ltd v Australian Broadcasting Tribunal, rationality is a pervasive requirement for exercising statutory power and making administrative decisions based on findings of fact and applying legal rules, discretions and principles to those facts. Rationality goes to the legality of a decision and is therefore a question of law. A failure to consider significant, logically relevant factors, especially those mandated by legislation, goes to the rationality of a tribunal’s decision and in Australia is equated with Wednesbury unreasonableness.
- It also overlaps with the much older common law principles for evaluating the merits of a claim of discretionary error recognised in House v The King. A rational choice between oft-imperfect alternatives involves identifying what the possible answers to the question to be decided are and picking the one that best achieves the policy goal with the least-worst adverse consequences.
- In the unruly realm of child safety, the question of what best interests are is a probable fact or opinion based on the best – but not necessarily all – available information. It is a risk-based conclusion or prediction about the likely future based on a body of evidence open to more than one interpretation. Thus, equally informed minds can reasonably differ, even strongly, about what the best thing is to do in the circumstances – without either being demonstrably right or manifestly wrong. Thus, rationality in this context is not correctness but legality within the limits of human capacity. The duty of a statutory tribunal to act rationally and reasonably excludes the right to act arbitrarily, capriciously, on preconception, suspicion or prejudice. It requires that regard be had to material considerations.
- What this means here is that the decision maker should have adequately explained his reasoning process in reaching the ultimate inference and disclosed clearly what he did and did not take into account, including the disciplinary information, and how much weight the intervening disciplinary information had in the case. The nature of the inquiry he was conducting, its purpose and the tribunal’s power of review called out for a more detailed, considered assessment. In our opinion, in deciding whether there was an exceptional case for the applicant, the reviewer should have inquired more deeply into the reasons why the department no longer considered the applicant posed an unacceptable risk of harm to children and took the action of setting aside its own protective order.
- The department is primarily responsible for protecting children against risks. The fact that the agency bearing that responsibility saw that its responsibility was being adequately discharged in this case by an enforceable undertaking, in effect, was clearly not decisive but of significant importance. If a reviewer was going to take a different position based on the same information in reaching his own independent conclusion, he should have clearly explained why, so the applicant and the department would know for sure rather than have to guess.
- The department told the tribunal that what it once regarded as an unacceptable risk, for the reasons given – including, no doubt, the disciplining effect of the enforceable undertaking – had been reduced to the point of acceptability from its point of view. That action and its consequences and reasons deserved more attention in the review, the purpose of which was to reach the correct and preferable decision at the time it was conducted. What difference (if any) the cancellation made should have been more fully investigated and given a reasoned treatment in the reviewer’s written decision.
- It is dangerous, we think – even though convenient – to draw favourable inferences in areas dealing with children, but also where at stake is a person’s entitlement under the legislation to a positive notice where there is no exceptional case. These are important matters for all the parties involved. Obviously, the protective principle overrides any of the applicant’s private interests or rights, but his should not be ignored or overlooked. In this case, it seems his application and his status as a suitable, ‘safe enough’ risk to work with children required more than it was given on the review.
- In those circumstances, ground 1 is allowed, the appeal is allowed.
- Because this is a matter requiring the assessment of an applicant – which can best be done at first instance because it involves impression and matters of degree and reasonable satisfaction – the matter will be remitted back to the tribunal for reconsideration with any additional evidence that may be necessary to properly investigate the issues generally and, in particular, the overall significance of the disciplinary information and the disciplinary information. The applicant’s suitability is to be assessed as at the new review date.
- The appeal is allowed on grounds 1 and 3.
- The reviewable decision of the tribunal in CML118-15 dated 21 December 2015 is set aside.
- The matter is remitted back to the tribunal for reconsideration according to law in light of these reasons and by reference to any additional evidence of any relevant change in circumstances and/or further submissions that might be necessary; in particular, as to the significance of the cancellation of the Prohibition Notice at the reconsideration date.
- The application for leave to appeal on grounds 2, 4, 5 and 6 is refused.
- The Public Safety Business Agency is invited to reconsider its decision to issue a negative notice to NPJ.
- Published Case Name:
NPJ v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
NPJ v Chief Executive Officer, Public Safety Business Agency
 QCATA 161
Carmody J, Member Gardiner
18 Aug 2016