Chief Executive Officer, Department for Child Protection v Hardingham - [2011] WASCA 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- HARDINGHAM [2011] WASCA 262

CORAM: MARTIN CJ
MURPHY JA
ALLANSON J

HEARD: 10 NOVEMBER 2011

DELIVERED : 10 NOVEMBER 2011

PUBLISHED : 29 NOVEMBER 2011

FILE NO/S: CACV 77 of 2011

BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Appellant
AND
ALLAN WILLIAM HARDINGHAM
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :CHANEY J (PRESIDENT)
File No  :VR 7 of 2009

Catchwords:

Administrative law - Application for leave to appeal - Working with Children (Criminal Record Checking) Act 2004 (WA) - Construction of s 12 - Particular circumstances of the case - Matters to which decisionmaker is to have regard

Legislation:

State Administrative Tribunal Act 2004 (WA)
Working with Children (Criminal Record Checking) Act 2004 (WA)

Result:

Leave to appeal granted on each ground
Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Ms C J Thatcher
Respondent: Mr R E Lindsay

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: iLaw

Case(s) referred to in judgment(s):

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
Chin v Legal Practice Board Western Australia [2009] WASCA 117
Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Mustac v Medical Board of Western Australia [2007] WASCA 128
Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72

JUDGMENT OF THE COURT: At the conclusion of the hearing on 10 November 2011, the court made orders granting leave and allowing the appeal, and announced that reasons would be published in due course. These are the reasons of the court.

Introduction

This appeal arises from proceedings in the State Administrative Tribunal, on a review under the Working with Children (Criminal Record Checking) Act 2004 (WA) (Working with Children Act). In that review, the appellant wishes to adduce evidence which it says is relevant to whether there is a risk that the respondent might, in the future, cause harm to children in carrying out child‑related employment.
The evidence in question does not identify any conduct of a criminal nature, and does not relate to the circumstances of any offence that the respondent has been charged with. The question on appeal is whether, properly construed, the Working with Children Act permits the tribunal to have regard to evidence of this kind. In our opinion, it does. It will be for the tribunal to decide whether particular parts of the material may be irrelevant or otherwise objectionable, and what procedures are required to ensure the respondent has a fair opportunity to respond to it. But those are different issues. This appeal is concerned only with the question of construction.

Background

The relevant parts of the Working with Children Act came into operation in 2006. Under that Act, the CEO of the Department for Child Protection (the appellant in this matter) may issue to a person an assessment notice or a negative notice. A person must not be employed in child‑related employment (subject to limited exceptions) if that person does not have a current assessment notice or if a negative notice has been issued and is current: s 23, s 24. The respondent is a school teacher. To work as a teacher, he must have an assessment notice.
The respondent was first employed as a teacher in 1983. In 1992 he was charged with two offences of indecent dealing, alleged to have been committed in 1990. He was convicted after trial in November 1993, but in March 1994 the convictions were quashed on appeal and judgments of acquittal were entered. The respondent was then reinstated as a teacher, and continued to work as one until 2008.
On 4 April 2008, the respondent was charged with an offence of indecent dealing with a 14‑year‑old boy. The offence was alleged to have occurred in about February or March 2007.
On 7 April 2008, the Commissioner of Police gave notice to the appellant under s 17 (1) of the Working with Children Act that the respondent had been charged.
On 9 April 2008 the appellant sent a notice to the respondent under s 17(3) of the Working with Children Act requiring him to apply for an assessment notice under the Act.
By 24 April 2008, the respondent had not applied for an assessment notice, and the appellant issued a negative notice to the respondent under the Act.
On 5 May 2008, the respondent was dismissed from his employment.
The respondent says (and it was not disputed) that he did not receive the notice requiring him to apply for an assessment notice until 29 May 2008, and the negative notice only came to his attention in early June 2008.
Before the charge against the respondent had proceeded to the committal stage, the prosecution announced that it would not proceed further. The charge was dismissed on 23 July 2008 under s 25 of the Criminal Procedure Act 2004 (WA). Dismissal under s 25 does not operate as an acquittal: Criminal Procedure Act s 79(2).
On 24 July 2008, the respondent applied to the appellant under s 19 of the Working with Children Act to cancel the negative notice. On 19 December 2008, the appellant refused that application.
In January 2009, the respondent applied to the State Administrative Tribunal under s 26(2)(b) of the Working with Children Act to review the appellant's decision. The application was heard in June 2009. In a decision delivered on 4 August 2010, the tribunal dismissed the application and affirmed the appellant's decision.
The respondent appealed. In March 2011, Heenan J allowed the appeal and set aside the Tribunal's decision: Hardingham v Chief Executive Officer, Department for Child Protection [2011] WASC 86. His Honour remitted the matter to the Tribunal for further consideration of whether an assessment notice should issue to the respondent
without regard to any adverse inferences or suspicions which may be thought to arise from the decision of the Court of Criminal Appeal in 1994 quashing [the respondent's] convictions for alleged offences in 1990 or to any suspicion or inference that the [respondent] may have committed the offence with which he was charged in 2008.
Heenan J ordered that the further consideration of the review be by members other than those who heard the original review.
At a hearing in the tribunal on 30 June 2011, the President was called upon to rule whether the appellant could adduce evidence from five witnesses whose evidence had not previously been relied upon by the appellant. His Honour ruled that the witness statements of four of those witnesses should not be admitted. He gave oral reasons the day following the hearing of the application. The appellant seeks leave to appeal from that decision, but with regard to the evidence of two only of those witnesses.

The evidence in dispute

We shall refer to the witnesses as AB and CD (his mother).
AB is now 19. In his statement he refers to events that occurred over about three or four years, beginning in 2004 when he was 12. AB had been a pupil at the primary school where the respondent was deputy principal, but did not meet the respondent outside school until the end of his final year in primary school.
AB says in his statement that, after that first meeting, he had regular contact with the respondent. This included fishing and frequent attendance at the respondent's house and a 'shack' kept by the respondent in Dunsborough. A friend of AB was also often there. AB says that, in the years of his contact with the respondent, he stayed overnight at the respondent's house or the shack 20 or 30 times. During that time he says that the respondent had no inappropriate contact with him.
The appellant does not allege that there was any unlawful sexual contact or like behaviour between the respondent and AB. The appellant submits that the witness statements demonstrate that the respondent showed 'excessive interest' in AB, and relies on evidence that:
1.AB's parents had separated and his father was not in the home;
2.AB and his friend would go to the respondent's home to watch Foxtel, play X‑Box games, and use his weight training equipment;
3.the respondent photographed both boys with their shirts off, and encouraged them not to wear shirts;
4.the respondent offered AB money as an incentive to train on the weight equipment, and also paid for his mobile phone. He bought him a fish tackle box as a present, and would pay for take away food when on outings with AB and his friend;
5.on occasion the respondent offered alcohol to AB;
6.the respondent befriended AB's mother, CD, but failed to respect her authority as a parent.
In general terms, the appellant says the evidence is relevant to the risk of harm if the respondent were to be engaged in child‑related employment. The appellant characterises the evidence as probative of 'the possibility that [the respondent] may have been grooming selected pubescent boys' as a precursor to committing an offence.

The legislative background

The scheme of the Working with Children Act has been discussed in detail in two earlier decisions of this court: Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 and Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125. We will not repeat that discussion, but focus on the provisions under which this matter came before the Tribunal.
There is a preliminary question regarding the appropriate version of the Act. The Working with Children Act was amended in 2010. The amendments affect the detail but not the substance of the Act. The changes which have been made do not affect the result of this appeal. Which version applies does, however, affect references to the Act and in particular to the numbering of sub-sections in s 12. Some of the provisions relating to processes which were followed in 2008 have also been modified.
In our opinion (although we recognise that the question was not fully argued) the State Administrative Tribunal Act 2004 (WA) requires the application to be determined under the Act as it is now. In particular, under s 27 of that Act, the review is to be by way of rehearing de novo. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
In the reasons which follow we will, where necessary, identify whether references are to the Working With Children Act in its current form, or before amendment.
When the respondent was charged with indecent dealing in April 2008, the Commissioner of Police gave notice to the appellant under s 17. Indecent dealing is a Class 2 offence under the Working With Children Act. In 2008, s 17 provided in its relevant parts:
(1)If the Commissioner reasonably believes that a person charged with or convicted of a … Class 2 offence is ‑
(a)…; or
(b)a person who carries out child‑related work,
the Commissioner may give the CEO notice of ‑
(c)the person's name and address;
(d)the person's date of birth;
(e)the offence with which the person has been charged or of which the person has been convicted;
(f)the details of the offence; and
(g)the date of the charge or conviction.
(2)…
(3)If the CEO is satisfied that there are reasonable grounds for believing that a person in respect of whom the CEO has been given notice under subsection (1) or information under section 34 ‑
(a)carries out child‑related work; and
(b)has been charged with or convicted of a Class 1 offence or a Class 2 offence, being a charge or conviction of which the CEO was not previously aware,
the CEO may give the person a written notice requiring the person to apply, within 10 days after the date of the notice, for an assessment notice.
The appellant issued a notice under s 17(3). The respondent did not apply for an assessment notice within 10 days after the date of the notice under s 17(3), and the appellant issued a negative notice under s 18. A person to whom a negative notice had been issued could apply for it to be cancelled: s 19. After the charge against him was dismissed, the respondent applied under s 19.
By s 19 (7) and (8):
(7)The person may, in the application, state any information or make any submission that relates to ‑
(a)the person's suitability to carry out child‑related work; or
(b)any change in the person's circumstances,
unless the person has previously stated that information or made that submission in or in respect of an application under this Act.
(8)Section 12(2) to (8) apply to the application as if ‑
(a)the application were an application for an assessment notice;
(b)a reference in those provisions to issuing an assessment notice were a reference to granting the application; and
(c)a reference in those provisions to issuing a negative notice were a reference to refusing the application.
Section 12 provides in detail for the decision on an application for an assessment notice. Under s 12(2), the appellant was required to make a criminal record check in respect of the respondent. As the respondent had been charged with, but not convicted of, a Class 2 offence, the appellant was to issue an assessment notice to the respondent unless satisfied that 'because of the particular circumstances of the case, a negative notice should be issued': s 12(5) (previously s 12(4)). Had the respondent been convicted, the appellant would have been required to issue a negative notice unless satisfied that 'because of the exceptional circumstances of the case, an assessment notice should be issued': s 12(6) (previously s 12(5)).
Section 12(8) now states:
(8)If subsection (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to ‑
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child‑related work;
(e)the effect of future conduct by the applicant in relation to a child if that future conduct were the same or similar to conduct the subject of ‑
(i)any offence committed by the applicant; or
(ii)any charge against the applicant;
(f)any information given by the applicant in, or in relation to, the application;
(g)anything else that the CEO reasonably considers relevant to the decision.
Paragraph (e) was introduced in 2010. Otherwise s 12(8) is unchanged save for the references to numbers of other subsections.
Under s 13:
(1)If the CEO proposes or is required to decide an application under section 12 by issuing a negative notice to the applicant ‑
(a)the CEO is to give the applicant a written notice that ‑
(i)informs the applicant of the proposal or requirement; and
(ii)states the information about the applicant's criminal record of which the CEO is aware; and
(iii)invites the applicant to make a submission to the CEO, in writing or in another form approved by the CEO, within a specified time about the information and about the applicant's suitability to be issued with an assessment notice.
Section 26 provides for review of a decision of the CEO by the State Administrative Tribunal. As the matter is in the tribunal's review jurisdiction, the tribunal is not limited to the material that was before the appellant but may consider new material 'whether or not it existed at the time the decision was made'. It must make the correct and preferable decision at the time of the decision upon the review: State Administrative Tribunal Act s 27. The two witness statements that are the subject of this appeal were not in existence at the time of the appellant's decision, and that material had not been relied on in any earlier decision.

The decision of the tribunal

The respondent submitted in the tribunal that the evidence of AB and CD should be excluded because
the relevant considerations under s 12(5) of the [Act] are limited to those which arise in connection with the non‑conviction charges upon which the power to issue a negative notice arises and the matters covered in the proposed witness statements go beyond those matters.
The tribunal accepted that submission. In short oral reasons, the President held:
1.that the application was to be determined by reference to s 12(5) ‑ that is, the appellant is to issue an assessment notice to the applicant unless it is satisfied that because of 'the particular circumstances of the case' a negative notice should be issued;
2.the 'particular circumstances of the case' in s 12(5) and (8) is a reference to the circumstances 'surrounding and relevant to the non‑conviction charge'.
The President referred to the reasons of Buss JA in the leading judgment in Grindrod. He commented that Buss JA had focussed on an examination of the facts and circumstances surrounding the non‑conviction charges, and whether the applicant had previously caused sexual physical harm to or engaged in misconduct in relation to a child or children. Further, the President said that this focus was consistent with the scheme of the Act where convictions or non‑conviction charges are 'a basis for the decision' whether or not to grant an assessment notice or a negative notice. His Honour continued:
To embark upon an analysis of events which are unrelated to the events surrounding the non‑conviction charges is to go outside the considerations to which the CEO is directed to have regard. That is especially so where the material, which is sought to be relied upon, does not identify conduct of a criminal nature but rather conduct to be said to be inappropriate and said to give rise to inferences as to the applicant's propensities.
Given the focus of the legislation on convictions or at least charges leading to non‑conviction reliance upon conduct said to be merely inappropriate is unjustified especially given the very serious consequences of a negative notice.
His Honour ruled that the evidence should not be permitted.
The respondent also sought to have the conduct excluded on two further bases. First, that its reception would be inconsistent with the decision of Heenan J. The respondent submitted that his Honour 'had in mind' that the Tribunal would only give fresh consideration to the material already before it. Second, that receiving the additional material was inconsistent with the tribunal's statutory objective to achieve resolution of questions fairly and according to the substantial merits of the case, and to minimise delay in costs.
The tribunal did not accept either of those submissions.

The appeal

The applicant applies for leave to appeal on two grounds:
1.The learned President erred in law in ordering that the witness statements of [the two witnesses] not be admitted at the hearing of this matter in the State Administrative Tribunal (and be removed from the file and returned to the appellant) in that he erred in concluding that:
(a)the phrase 'the particular circumstances of the case' in s 12(5) of the Working with Children (Criminal Record Checking) Act 2004 (WA) (the 'Act') is a reference to, and is therefore confined to, the circumstances surrounding and relevant to the non‑conviction charge(s);
(b)the factors to be considered in s 12(8) of the Act are directed to a consideration of the particular circumstances of the case (that is, the circumstances surrounding and relevant to the non‑conviction charge(s));
2.The learned President erred in law by ruling that the evidence contained in the witness statements was inadmissible because it went beyond the particular circumstances of the case surrounding the non‑conviction charges.

The application is brought under s 105 of the State Administrative Tribunal Act. The Working with Children Act is not a 'relevant Act' (see s 105(13) and (14)), and an appeal is permitted only 'on a question of law': s 105(2). It is not in contention that the appeal on these grounds is an appeal on a question of law.
Although s 105 describes the proceedings as an appeal, proceedings confined to a question of law by virtue of s 105(2) are properly understood as in the nature of judicial review: Osland v Secretary to the Department of Justice [No 2] [2010] HCA 24; (2010) 241 CLR 320, 331 - 332 [18]; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15].
The principles to be applied in determining an application for leave are settled: see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [18]; Chin v Legal Practice Board Western Australia [2009] WASCA 117 [12]. In submitting that leave should not be granted, the respondent referred to the principles developed in the cases regarding interlocutory appeals on questions of practice and procedure. In Mustac v Medical Board of Western Australia[2007] WASCA 128 [63], however, this court doubted that the question of leave should be determined by reference to those principles. It had regard to the effect that the decision, if not corrected, would have upon the subsequent proceedings in the tribunal. The approach in Mustac is consistent with the nature of these proceedings as judicial review for error of law, and is the appropriate approach to the present application for leave.
The decision under appeal is not simply a ruling on admissibility, but raises an important question of law regarding the construction of s 12 of the Working with Children Act and the material to which a decision‑maker should have regard in deciding an application under that section. In our opinion, the President erred in his construction of s 12. That error should be corrected before the tribunal proceeds further. The appellant also put evidence before the court that the question of construction is of significance to several other pending matters. Leave should be granted.
The appellant did not oppose an order that leave be conditional on the appellant paying the respondent's costs of the appeal: see State Administrative Tribunal Act s 105(12). This is an appropriate case for an order under s 105(12).

Consideration of the appeal

The appellant accepts that AB and CD do not give evidence of criminal conduct, but submits that it is conduct which is similar to that engaged in by the appellant in relation to the non‑conviction charges. The appellant submits that the reference in s 12(5) and (8) of the Working with Children Act to 'the particular circumstances of the case' does not confine the decision‑maker to the circumstances surrounding the non‑conviction charges, but encompasses all of the matters properly before the decision‑maker in considering whether he or she is satisfied that there is an unacceptable risk that the respondent might cause sexual or physical harm to children in the course of carrying out child‑related employment. The appellant says that, on that basis, the witness statements are reasonably relevant to whether the tribunal should be satisfied that a negative notice should be issued.
In our opinion, the appellant's case is consistent with the authorities and should be accepted. In Grindrod, Buss JA (Wheeler JA agreeing) said:
In my opinion, if s 12(4) applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) ‑ (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.
…
Although s 12(8) specifies the factors which the CEO is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(4), that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO must make in order to reach that satisfaction. What finding then, if any, must the CEO make in order to attain the requisite satisfaction? [73] ‑ [74]
At [81], his Honour answered the question posed at [74]. The relevant finding for the purposes of s 12(4) (now s 12(5)), is whether on all of the information and other material properly before the decision‑maker, there is an unacceptable risk that the applicant for an assessment notice might in the future cause sexual or physical harm to children in the course of carrying out child‑related employment. The function of the decision‑maker is not to decide whether the applicant for an assessment notice is, or is not, guilty of the non‑conviction charge, but is an assessment of risk with the aim of preventing harm in the future.
The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. (Grindrod [85])
The concept of 'unacceptable risk' is not expressed anywhere in the Act, but is implicit in s 12, and reflects the evident policy of the Act: Grindrod [81], [82]. In Scott, both Buss JA and Newnes JA saw no material difference, and no error, in the Tribunal's expression of the test of appreciable risk: [137], [138] (Buss JA), [160] (Newnes JA).
The decision of the President would limit the material to which the decision‑maker may have regard under s 12(8) to the events surrounding the non‑conviction charges.
That construction does not arise out of the text of s 12. Where s 12(5) applies, the decision‑maker must decide whether he or she is satisfied, because of the particular circumstances of the case, that a negative notice should be issued. The phrase 'in the particular circumstances of the case' most naturally refers to the circumstances of the application being determined. The words, in their natural meaning, do not confine the decision‑maker to the circumstances of the charge, nor do they confine consideration to the details of the criminal record.
The decision‑maker is to decide the question under s 12(5) having regard to the matters listed in s 12(8)(a) to (g). These include the best interests of children and anything else that he or she reasonably considers relevant to the decision. The factors are widely expressed, and are inconsistent with such a restricted reading.
There is no doubt that criminal records are central to the operation of the Act, and the power to issue a negative assessment does not arise unless the CEO is aware that a person has been convicted or charged with some offence. In the present case, the CEO was only empowered to issue a notice to the respondent under s 17 because the Commissioner of Police gave notice that the respondent had been charged with a Class 2 offence. But when the power arises, it is s 12 that governs its exercise. Once it is accepted, as it must be following Grindrod, that the task under s 12 is the assessment of risk, s 12(8) must be given its intended effect. In our opinion, that requires consideration of all matters that go to assessing the relevant risk and cannot be confined to the circumstances of an applicant's criminal record.
Further, s 12(8)(g) requires the decision‑maker to have regard to any information given by the applicant in, or in relation to, the application. This should be read with s 19(7) and s 13(1)(a)(iii) under which an applicant may make a submission about his or her suitability to carry out child‑related work and to be issued with an assessment notice. Neither section confines the applicant to a submission on matters related to an offence or charge.
In Scott, McLure JA (at [16]) expressed the caveat that s 12(8)(g) does not make information relevant, in the sense that weight must be given to it, simply because it is provided by the applicant. With that reservation, the legislation contemplates an applicant putting forward information tending to show there is no unacceptable risk, even where an applicant has been convicted of a Class 2 offence: see s 12(6). That information is not confined to the circumstances of the applicant's criminal record.
The facts in Scott provide a ready example. There the tribunal found that the applicant had worked with children without causing harm over a period of many years since his conviction. On appeal, the court upheld the decision, based on this finding, that an assessment notice should issue.
In the present case, the respondent has filed a witness statement in the tribunal in which he sets out details of his contact with various teenage boys, including AB, who have stayed at his house or cabin since 2006. That evidence is properly part of the material to be considered by the tribunal, because it is relevant to the question of risk. The evidence in dispute is relevant in the same way.
This conclusion is consistent with the decision of Heenan J in remitting the matter to the tribunal (Hardingham v Chief Executive Officer, Department for Child Protection). At [123] ‑ [127] his Honour expressly upheld the correctness of the tribunal taking into account 'disreputable conduct not amounting to a conviction for a class 1 or class 2 offence or the subject of any such non-conviction charge' including conduct which does not disclose the commission of an offence.
If it constitutes some kind of deplorable conduct which either alone or in combination with other proved or alleged conduct may give rise to reasonable grounds for suspicion that the applicant may constitute an unacceptable risk of harm to children, then it must be taken into account [127].
It is true, as the respondent argued on appeal, that his Honour was concerned with conduct in relation to the same boy who was the subject of the 2008 charge. But Heenan J did not confine his remarks to that conduct, evidence of which was included in the police brief. It is the relevance of the conduct to the question posed by s 12, and not the accident of it being included in the brief, that determines whether it may be taken into account.
In seeking to uphold the decision of the tribunal, the respondent did not appear to question whether the evidence of his behaviour towards AB is relevant to the issue of risk. Counsel argued that the conduct is not within the circumstances of the case ‑ the case being confined to matters related to the non‑conviction charge ‑ and that determines whether regard may be had to it. This is essentially the argument which found favour in the tribunal, and which we have considered above.
The respondent also raised the issue of natural justice. It is a fundamental rule of the common law doctrine of natural justice that where an administrative decision may deprive a person of some right relating to his livelihood, he is entitled to know the case sought to be made against him and to be given an opportunity to reply to it: see, for example, Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 587 (Mason J), 628 (Brennan J). Counsel for the respondent pointed out that s 13 requires a decision‑maker to give notice to an applicant of information about the applicant's criminal record, but there is no statutory requirement to give notice of other matters. We do not, however, regard this as a reason to read down the Act. The rules of natural justice apply in the absence of a clear contrary legislative intent. The Working With Children Act manifests no intention to exclude natural justice, and the common law will supplement what the Act expressly requires. A decision‑maker who intends to rely on information of the kind in issue in this case must adopt procedures to ensure that there is no breach of natural justice.
Counsel also submitted that that the construction adopted by the tribunal should be accepted as the legislation should not be construed so as to permit a trawl through an applicant's life. The power to issue a negative notice only arises where a person has been convicted or charged with an offence. Once that power is enlivened, regard can be had to material which is reasonably relevant to whether a person should, or should not, be issued the relevant notice. The power in question is confined according to its terms, and the operation of the Act, properly understood, does not justify reading s 12 in the restricted way advanced by the respondent.

The notice of contention

The respondent raised two matters in a notice of contention.
The respondent argued that to admit the material would be inconsistent with the restricted nature on which Heenan J remitted the matter to the tribunal. The respondent submits that Heenan J remitted the matter for the determination of unresolved issues, and thus limited the matters which the tribunal can deal with. We do not accept this argument.
First, his Honour remitted the matter to be determined by a tribunal differently constituted. He did not direct that the matter was to be reconsidered without the hearing of further evidence. The tribunal conducting the review afresh will necessarily have to find all facts required for a decision on review.
Second, it is by no means clear that Heenan J intended to impose the restriction the respondent now asserts. Heenan J said that because there were unresolved issues, 'it is not possible finally to resolve the question of whether or not an assessment notice should issue in the ordinary course under s 12(4): [176]. After referring to particular matters, which he found had been wrongly dealt with, his Honour said:
A decision as to the significance of the other matters, putting aside those which were erroneously taken into account and the failure by the SAT properly to address considerations essential to the determination of its task under s 12(4), requires an evaluation of those other circumstances to be undertaken without regard to the potential adverse significance of any of the non‑conviction charges but, as part of all the circumstances which the decision‑maker should take into account under s 12(8)(e) and (f) of the WWC Act [174].
We are not satisfied that his Honour did restrict the tribunal on review. On the contrary, he recognised that to determine whether an assessment notice should issue, the tribunal will have to have regard to all of the circumstances that it should take into account under s 12(8).
The second matter raised in the notice of contention is that the statements of AB and CD were not included in the material before the original decision maker. This submission cannot be accepted in the face of s 27 of the State Administrative Tribunal Act under which the review is to be by way of a hearing de novo, and is not confined to matters that were before the decision‑maker 'but may involve the consideration of new material whether or not it existed at the time the decision was made'.

Conclusion

For these reasons, the court allowed the appeal and made orders that:
1.The appellant's application for leave to appeal be allowed on each ground, on the condition that the costs of the respondent be met by the appellant, such costs to be taxed if not agreed.
2.The appeal be allowed.
3.The order of the President of the State Administrative Tribunal made on 1 July 2011 that the witness statements the subject of this appeal not be admitted at the hearing of this matter be set aside.
4.The matter be remitted back to the State Administrative Tribunal to be dealt with according to law.