QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	SWJ v Department of Justice and Attorney-General  [2022] QCATA 119	
PARTIES:	SWJ	

(applicant/appellant)	

	v	
	Director-General, Department of Justice and Attorney-General	

(respondent)	

APPLICATION NO/S:	APL167-21	
ORIGINATING APPLICATION NO/S:	CML342-19	
MATTER TYPE:	Appeals	
DELIVERED ON:	25 August 2022	
HEARING DATE:	11 August 2022	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member D J McGill SC	
ORDERS:	1.	Appeal allowed.
2.	Decision of the Tribunal of 4 May 2021 is set aside.
3.	The review is returned to the Tribunal for re-hearing before a different Member, with evidence of the matters referred to in the Act s 226(2)(a)(v) and such further evidence as the parties put before it.  
4.	There be no order as to costs.  	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – MANDATORY CONSIDERATIONS – decision to refuse application to revoke negative notice – whether decision maker required to have regard to certain reasons for decision of a sentencing court – whether obligation mandatory requirement – practice not generally to obtain and consider court reasons – whether decision according to law  

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2), s 226 
Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Pivovarova v Michelsen (2019) 2 QR 508  
Powell v Queensland University of Technology [2018] 2 Qd R 234
R v LAL [2018] QCA 179  	
APPEARANCES & REPRESENTATION:	

Applicant:	
Self-represented	

Respondent:	
J Caper from the Department of Justice and Attorney-General	

REASONS FOR DECISION
[1]	This is an appeal and application for leave to appeal from the decision of a Member of the Tribunal on 4 May 2021 to confirm the decision of the respondent that the appellant’s case is exceptional for the purposes of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“the Act”) s 221(2).  The Tribunal also made a non-publication order.  
[2]	The appellant is entitled to appeal from the decision of the Tribunal on a question of law, but requires the leave of the Appeal Tribunal to appeal on a question of fact, or on a question of mixed fact and law.  The appellant has sought leave to appeal, although one of the matters raised by him raises a question of law.  Leave to appeal is generally granted only when there is a reasonable basis to conclude that the Tribunal may have erred, and that as a result the appellant has suffered an injustice, or that the matter raises an issue of importance extending beyond the parties to the current dispute.  
Background
[3]	The Act regulates the ability for people to engage in a range of activities, including in employment, by a process involving the issue to the person of a blue card.  The appellant was issued with a blue card in 2001 and in various subsequent years.  Following the receipt of additional information from the police service, the appellant’s position was reassessed, and on 28 April 2017 he was issued with a negative notice, and his blue card was cancelled.  He applied to have the negative notice cancelled, but on 2 January 2019 that application was rejected. 
[4]	The appellant applied to the Tribunal to review that decision.  That application was heard by a Member on 11 May 2020, 21 July 2020 and 23 September 2020, with oral submissions heard on the third day.  Unfortunately that Member became ill, and as a result the President of the Tribunal directed that the matter be heard on the papers, including the transcript of the oral hearings, by a different Member.  It was the decision which resulted from that process from which the appeal and application for leave to appeal was brought.  
Grounds of appeal
[5]	The ground of appeal relied on by the appellant in the application for leave to appeal was that the facts as found did fall within the meaning of “exceptional case” as defined by the Act.  In the attachment to the application, and in written submissions, the appellant developed a submission that the Tribunal (and the respondent) had erred by failing to take into account one of the matters which under the Act s 226(2)(a)(v) had to be considered, namely the reasons for the decisions of the courts which had sentenced him for offences not to impose an imprisonment order, and not to make a disqualification order under the Act s 357.  
[6]	The appellant submitted that the respondent had not had such material at the time of the decision not to cancel the negative notice, and that as a result that decision had not been made according to law.  As well, the Tribunal had not had this material, and had therefore necessarily not taken it into account, which had led to an erroneous finding.  The appellant in submissions also raised another issue, that some material before the Tribunal from the Department of Child Safety had been misunderstood by the Tribunal, and that the Tribunal had failed to distinguish between established facts and mere allegations in taking into account that material.  It is convenient to deal first with the ground raised in the application.  
Legislation
[7]	So far as I can see, the Act does not use the term “blue card”.  The term used seems to be a working with children card, which is issued if the respondent issues a working with children clearance – the Act s 232A – or a working with children exemption: the Act s 290A.  By s 304A if a person has been issued with a working with children authority, and the respondent becomes aware of certain further information, the respondent may decide to cancel the authority and issue a negative notice to the person.  The decision must be made as provided by Part 4 Division 9.   
[8]	If a negative notice has been issued to a person who is not a relevant disqualified person (which the appellant is not), the person may apply to have the negative notice cancelled: s 304G.  The Chief Executive must decide the matter as if it were a decision about a working with children check application, and for that purpose Part 4 Division 9 applies, as if a reference to issuing a working with children clearance were deciding to cancel a person’s negative notice, and a reference to issuing a negative notice were a reference to deciding not to cancel a person’s negative notice: the Act s 294.  By the Act s 220, an application under Division 9 must result in a working with children clearance or a negative notice.  
[9]	By the Act s 221, the respondent must issue a negative notice if aware of a charge for an offence other than a disqualifying offence, or aware of a conviction of an offence other than a serious offence, and if “satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.”   In the present case the appellant had convictions for three minor offences in 1993 which the respondent and the Tribunal appear to have essentially disregarded, and four offences of contravention of a domestic violence order committed between 24 April 2016 and 4 September 2016.  These offences were dealt with by a Magistrates Court on 6 December 2016.  There were also four charges of contravening a domestic violence order, alleged to have been committed between 2 May 2016 and 9 September 2016, on which no evidence was offered.  
[10]	Section 226, also in that Division, provides:
(1)	This section applies if the chief executive—
(a)	is deciding whether or not there is an exceptional case for the person; and
(b)	is aware that the person has been convicted of, or charged with, an offence.
(2)	The chief executive must have regard to the following—
(a)	in relation to the commission, or alleged commission, of an offence by the person—
(i)	whether it is a conviction or a charge; and
(ii)	whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
(iii)	when the offence was committed or is alleged to have been committed; and
(iv)	the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)	in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under s 357, the court’s reasons for its decision.  
(b)	any information about the person given to the chief executive under s 318 or s 319;
(c)	any report about the person’s mental health given to the chief executive under s 335; 
(d)	any information about the person given to the chief executive under s 337 or s 338; 
(e)	information about the person given to the chief executive under the Disability Services Act 2006 s 138ZG;
(f)	anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.  
[11]	The information provided under s 317 or s 318 is information from the police or the Director of Public Prosecutions relevant to a change in the person’s criminal history or information from an investigation.  It is not necessary to identify the other information specified in this section.  The Act s 357 permits a court, when sentencing an offender for a disqualifying offence or another serious offence involving a child, to disqualify the person from holding a blue card, or making a working with children check application, for a specified period, or for ever.  
[12]	For the purposes of the Act there are disqualifying offences, serious offences and “offences”.  Conviction (whether or not the conviction is recorded) of a disqualifying offence prevents a person from even applying for a blue card, unless the person first obtains a declaration of eligibility from the Chief Executive.  There is a long list of offences in Schedule 4, and a shorter list of former offences in Schedule 5, which are disqualifying offences, but the appellant has not been convicted of any of them.   There is a longer list of offences in Schedule 2 and a list of former offences in Schedule 3, which are serious offences, but again the appellant has not been convicted of any of them.  The term “offence” is not defined.  Presumably it means any criminal offence.  
[13]	The Act s 226(2)(a)(v) does not refer to the reasons for the sentence imposed as a result of the conviction, but specifically to the penalty imposed and, if it was not an imprisonment order, the court’s reasons for the decision, presumably the decision to impose another penalty.  As well, if there is a decision not to make a disqualification order under s 357, the reasons for that decision.  I expect that in the overwhelming majority of cases when a person is being sentenced for an offence the issue of making an order under s 357 just does not arise.  It could not have arisen in the present case, because the offence of which the appellant was convicted was not a serious offence, so the section did not apply.  There could not have been such a decision, so there was no occasion to give such reasons, and no need to have regard to them.   
[14]	On the other hand, in every case where a sentence of imprisonment is a possible penalty and one is not imposed, one would expect that the sentencing remarks would through some light on the reasons for the sentence imposed, and hence on why no sentence of imprisonment was imposed.  I expect that in the vast majority of cases all that will be said is that “I consider that the appropriate penalty is X”, where X is not a sentence of imprisonment, but strictly speaking even that shows the reason for the decision not to impose an imprisonment order.  There may well have been no record of sentencing remarks from a Children’s Court or a Magistrates Court from the early nineteen-nineties, but I am prepared to take notice of the fact that by 2016 Magistrates Court sentencing remarks were being routinely recorded.  
[15]	There is no evidence that such sentencing remarks for the appellant’s matter in 2016 are in fact not available.  The legal officer for the respondent admitted that the practice was not to obtain such remarks in most cases, apparently on the basis that, given the number of matters to be processed, it was too much of a burden to do so.  It is impossible to disagree with that proposition, particularly because it may well be that in any particular case the sentencing remarks will say nothing about the decision not to impose an imprisonment order which would throw any light on the decision which the respondent has to make.  
[16]	The difficulty however is that s 226(2) uses the word “must”, or at least did so at the time of the decision of the Tribunal.  That indicated that the provision is mandatory, so that the decision maker was required by the Act to have regard to the relevant reasons.  The reasons of the respondent’s delegate recognised as much at paragraph 5 on p 10, but at paragraph 5.5 there was a statement indicating that the sentencing remarks had not been obtained and consulted.  It necessarily follows that regard was not had to them.  
[17]	No doubt if the Act requires the decision maker to take some information into account and it does not exist or cannot be obtained by the decision maker, there is no error in failing to take into account that information.  But sentencing remarks from 2016 are in principle available to the respondent; indeed, subject to any relevant restriction they are available to anyone.  It is quite possible that such remarks are within the records of the respondent department, but if not, they are in the possession of the department’s contractor, and hence available to the department.  On the face of it, the respondent failed to take into account information which by the Act the respondent was bound to take into account.  That means that the decision was not made according to law.  
[18]	In the same way, the obligation was on the Tribunal to have regard to the information in conducting its review.  The respondent submitted that the appellant could have put the sentencing remarks before the Tribunal, but did not do so.  But in circumstances where the information is in the possession of the Department or its contractor, it was the responsibility of the respondent to place it before the Tribunal, under the QCAT Act s 21(2)(b).  The respondent cannot divert responsibility to the appellant.  
[19]	I accept that this requirement may be inconvenient, and that the sentencing remarks may in many cases be of no practical use to the decision maker.  But if so, the remedy lies with the legislature.  The Act is notable for being prescriptive, perhaps too prescriptive, as well as being difficult to understand.  It is not for the Tribunal to repair any deficiencies in the Act.  
[20]	An earlier version of the Act was considered by the Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492.  The Commissioner had refused a blue card to a person who had been convicted of a serious offence, and charged with other offences, but on merits review by a tribunal that decision was reversed. At the time the Act provided relevantly that:
If the commissioner is aware of a conviction of the person for a serious offence, the commissioner must issue a negative notice 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.
[21]	The tribunal found that it was an exceptional case.  The Commissioner appealed to the District Court and to the Court of Appeal, in each case on a question of law only, and each appeal was dismissed.  There was some discussion about what was involved in the concept of an “exceptional case”, which seems to me to have come down to a case where it was appropriate to make an exception to the general rule that a negative notice would issue.  Philippides J, with whose judgment the other members of the Court agreed, at [34] endorsed a proposition that what is an exceptional case is a matter of discretion, and it would be unwise to lay down any general rule.  At the time the relevant provision corresponding to the current s 226(2) was s 102(5), which provided:
If the commissioner is aware of a conviction or charge of the person for an offence, the commissioner must decide the application having regard to the following matters relating to the commission, or alleged commission, of the offence by the person – 
(a) whether it is a conviction or a charge; 
(b) whether the offence is a serious offence; 
(c) when the offence was committed or is alleged to have been committed; 
(d) the nature of the offence and its relevance to child related employment; 
(e) anything else the commissioner reasonably considers to be relevant to the assessment of the person.  
[22]	McPherson JA, with whom Jerrard JA agreed, said of this provision at [4] and [5]:
An exceptional case in this context is one that does not conform to the general rule, which is that a negative notice must issue refusing a “blue card”. The application “must” then be decided “having regard to” the matter specified in paras (a) to (e) of s 102(5), of which the last in para (e) is “anything else the Commissioner reasonably considers to be relevant to the person” in respect of whom the application is made.  The Tribunal, as it was bound to do, considered each and all of these matters.  
[23]	The proposition that the tribunal was bound to consider each of the matters in s 102(5) was not central to the decision of the Court, but this statement is certainly persuasive authority that, when a provision of the Act says that regard must be had to certain matters, a decision maker is bound to have regard to them.  This is not a particularly novel or startling proposition: Acts Interpretation Act 1954 (Qld) s 32CA.  The term “must” has been used in Queensland statutes for a long time to indicate a mandatory provision.  
[24]	The respondent submitted that the Tribunal had evidence of the sentencing remarks during the oral evidence of the appellant, who had referred to what the Magistrate had said.  That is not how sentencing remarks should be put before the Tribunal, but in any case I have read the transcript of the hearing and can see nothing where the appellant gave evidence of some things the sentencing Magistrate had said.  Even had he done so, that may not have been a comprehensive statement of the sentencing remarks.  I consider the respondent’s submission lacks factual support.  
[25]	When the matter was before the Tribunal, the Member in a heading before [62] recognised that the factors in s 226(2) of the Act were factors that must be considered in deciding whether it is an exceptional case.  The wording of s 226(2)(a)(v) was however paraphrased as “the penalty imposed and the court’s reasons for its decision.  The Member spoke at [71] of receiving police information and information from a particular Magistrates Court, and that the penalties were summarised in the respondent’s submissions.  The police material appears to be that included in the Appellant’s Appeal book; it contains no sentencing remarks.  
[26]	There was a direction on 9 January 2020 by a Senior Member for the Magistrates Court to produce copies of any domestic violence orders, and applications and supporting material for those orders.  It would not have produced any sentencing remarks, and the covering letter from the Court of 5 February 2020 suggests that it did not.  The respondent’s written submissions at first instance did not refer to any sentencing remarks at [48], dealing with the Act s 226(2)(a)(v).  I can find no copy of any sentencing remarks on the Tribunal file.  I consider that it follows that the reasons for the decision not to imprison the appellant were not before the Tribunal.  It follows that that decision was also not made according to law.  
[27]	The respondent submitted that the Tribunal in its reasons had addressed the mandatory considerations, identifying paragraphs [10], [11], [23], [30], [32], 37 and [62] to [79].  But if the Tribunal did not have the sentencing remarks of the Magistrate in 2016, it necessary did not have regard to them.  Talking about the penalty imposed, and speculating about the reasons for it, is no substitute.  The respondent also cited examples of other occasions when the Tribunal has dealt with such reviews without access to sentencing remarks.  I assume the point was not taken in those matters; it may be that those Tribunals should have insisted on having the sentencing remarks.  It is not for the Tribunal to obtain the relevant material, but the respondent cannot rely on a failure to comply with the QCAT Act s 21(2)(b) to justify a failure of the Tribunal to comply with the Act s 226(2)(a)(v).   
[28]	A failure to take into account a consideration which the Tribunal was bound to take into account will be grounds for setting aside the decision for error of law, unless the matter not taken into account was so insignificant that the failure to take it into account could not have materially affected the decision:  Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [15], [23].  I think it is fair to regard any sentencing remarks from the earlier offending as being so insignificant, but the remarks relating to the sole recent offending do not fall into this category.  This is because, first, these remarks relate to the only convictions for breach of a domestic violence order, and the only modern convictions.  Second, so much reliance has been placed by the respondent on the matters alleged in proceedings under the Domestic and Family Violence Protection Act 2012 (Qld) that it would be useful to know the approach to the sentence of that Magistrate, the basis on which the sentence was passed, and the reasons for the imposition of the probation order, rather than an order for imprisonment.  Third, I do not know what the reasons say, so cannot know that they could have had no material effect on the decision.
[29]	This is not a matter where it is possible to say that as a matter of law only one outcome was open on the review on the facts found by the Tribunal.  It follows that the matter must be returned to the Tribunal for re-hearing.  This issue has been resolved solely as a question of law, and it follows that no leave to appeal is required for this conclusion.  In those circumstances, I do not need to consider otherwise the appellant’s application for leave to appeal.  I should however say three more things about this matter.  
[30]	First, I should address the other matter raised by the appellant in submissions, that some of the material provided by the Department of Child Safety was misinterpreted by the Tribunal.  Any such complaint will be cured on a rehearing before a different Member, but the appellant faced difficulties in relation to this argument, because it depended on his giving fresh evidence on the appeal, as to the meaning of some such document.  Contrary to a direction made on 1 July 2021, the appellant has not filed an application for leave to rely on fresh evidence, and this evidence relates to a finding of fact by the Tribunal, so the appellant requires leave to raise it on appeal.  
[31]	This complaint however draws attention to a deficiency in the conduct of the proceeding at first instance, in that matters of this nature were not properly raised at the hearing in cross-examination, so that the appellant had a proper opportunity to respond to them.  There was some cross-examination about material obtained from that Department, but it did not give the appellant any proper opportunity to respond to such matters, because the questions largely assumed that matters stated as allegations in the material were correct, and asked questions framed on that basis.  The cross-examiner should first have asked whether the allegation was correct.  If it was disputed, questions based on the correctness of the allegations are of less use.  I appreciate that the Tribunal can take into account allegations, but it is necessary to distinguish between allegations and admitted or established facts.  
[32]	It is also less useful to ask an expert witness, such as the psychologist who gave evidence at the hearing, in effect to opine on the assumption that certain facts are true, when those are no more than disputed allegations.  The Member commented at [53] on the fact that the psychologist was not aware of the reasons for the respondent’s decision not to issue a positive notice, but those reasons would be of no relevance to the matters within the expertise of the psychologist.  If there were aspects of the appellant’s history which were relevant to the psychologist’s opinions, they could have been put to her, but it remained necessary to distinguish between facts and allegations, as that would affect the value of any opinions expressed by the psychologist based on them.  
[33]	Third, it is necessary to bear in mind that the appellant in the proceeding had two roles, as witness and as advocate.  If as advocate he makes the legitimate submission that the breaches of the protection order the subject of the offences and charges were not violent, or relatively serious, examples of such breaches, that should not be characterised as his minimising the seriousness of his offending.  
[34]	In circumstances where the matter has to go back for rehearing, it is not appropriate for me to say any more about these matters.  The decision of the Appeal Tribunal is as follows:
1.	Appeal allowed.
2.	Decision of the Tribunal of 4 May 2021 is set aside.
3.	The review is returned to the Tribunal for re-hearing before a different Member, with evidence of the matters referred to in the Act s 226(2)(a)(v), and such further evidence as the parties put before it.  
4.	There be no order as to costs.