IGR v Chief Executive Officer Department of Communities - [2020] WASC 371

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   IGR -v- CHIEF EXECUTIVE OFFICER DEPARTMENT OF COMMUNITIES [2020] WASC 371
CORAM:   ALLANSON J
HEARD:   3 APRIL 2020
DELIVERED          :   16 OCTOBER 2020
FILE NO/S:   GDA 14 of 2019
BETWEEN:   IGR
Appellant
AND
CHIEF EXECUTIVE OFFICER DEPARTMENT OF COMMUNITIES
Respondent

ON APPEAL FROM:
For File No:   GDA 14 of 2019
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   L EDDY, SENIOR MEMBER
File Number            :   VR 169 of 2016

Catchwords:

Appeals - Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for an assessment notice - Where negative notice issued - Where Tribunal confirmed negative notice on review - Whether Tribunal failed to properly undertake required statutory task in evaluating whether 'unacceptable risk' of future sexual or physical harm to children - Whether Tribunal gave adequate reasons - Turns on own facts

Legislation:

Criminal Code (WA), s 329
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 105
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 7, s 12, s 23, s 24, s 26, sch 1, sch 2

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC
Respondent	:	C J Thatcher SC

Solicitors:

Appellant	:	Bowen Buchbinder Vilensky
Respondent	:	State Solicitor for Western Australia

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

Bondelmonte v Bondelmonte [2017] HCA 8; (2016) 259 CLR 662
Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79
Chief Executive Officer, Dept for Child Protection and Family Support v IGR [2019] WASCA 20; (2019) 54 WAR 222
Chief Executive Officer, Dept for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39
Chief Executive Officer, Dept for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466
G and Dept for Child Protection and Family Support [2019] WASAT 93
King v Commissioner for Consumer Protection [2018] WASCA 194
Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553
Osland v Secretary, 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

ALLANSON J:

A person who does not have a current assessment notice under the Working with Children (Criminal Record Checking) Act 2004 (WA)[1] must not be employed in child-related employment, or carry on a child‑related business.
[1] All references to legislation in these reasons are to the Working with Children (Criminal Record Checking) Act unless otherwise stated.
In 2015 the appellant applied for an assessment notice, but was issued with a negative notice by the Chief Executive Officer, Department for Child Protection and Family Support (CEO). The appellant is prohibited from engaging in child-related work.[2]
[2] Section 23.
The appellant applied to the State Administrative Tribunal to review the decision of the CEO. He was initially successful, but the decision of the Tribunal was overturned on appeal, and the matter remitted to the Tribunal, differently constituted.[3]
[3] Chief Executive Officer, Dept for Child Protection and Family Supportv IGR [2019] WASCA 20; (2019) 54 WAR 222 (IGR).
On 21 October 2019, the Tribunal affirmed the decision of the CEO to issue the appellant with a negative notice. The appellant seeks leave to appeal against that decision.
There are two grounds of appeal:
1.The State Administrative Tribunal erred in law in finding that there was an unacceptable risk that the appellant may cause sexual harm to children in the course of carrying out child related work in that it failed to analyse and evaluate:
a.the degree of any future risk to children if the appellant was issued an assessment notice; and
b.the likelihood of any such future risk materialising.
2.Alternatively, the State Administrative Tribunal erred in law by not providing adequate reasons in that the reasons did not disclose how the Tribunal had analysed and evaluated:
a.the degree of any future risk to children if the appellant was issued an assessment notice; and
b.the likelihood of any such future risk materialising, in reaching its finding that there was an unacceptable risk that the appellant may cause sexual harm to children in the course of carrying out child related work.
The grounds, in substance, reproduce the grounds relied on in the earlier appeal by the CEO.

The review in the State Administrative Tribunal

By s 26 of the Act, a person may apply to the Tribunal for review of a decision by the CEO to issue a negative notice.
The review in the Tribunal is a hearing de novo where the Tribunal exercises the original jurisdiction of the decision-maker (in this case the CEO), and hears the matter afresh, and decides on the material presented at the hearing.[4] In exercising the review jurisdiction, the Tribunal has the functions and discretions corresponding to those exercisable by the decision-maker.[5] 'The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review'.[6]
[4] State Administrative Tribunal Act 2004 (WA) s 27.
[5] State Administrative Tribunal Act s 29(1).
[6] State Administrative Tribunal Act s 27(2).

The provisions governing an appeal

The jurisdiction which this court exercises under s 105 of the State Administrative Tribunal Act 2004 (WA) is well settled.
Although s 105 uses the word 'appeal', the court is exercising original jurisdiction. The proceedings are not a rehearing: the essential character of s 105 is that it provides for proceedings in which the legal correctness of what the Tribunal has done can be challenged.[7] The subject matter of the appeal is the question of law, which is both a qualifying condition to the invoking of the court's jurisdiction under s 105 and the subject matter of the 'appeal' itself.[8]
[7] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18]. And see City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 [37] ‑ [39]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361.
[8] City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [39].
Section 105 also requires that the appellant obtain leave to appeal. There are no rigid or exhaustive guidelines governing the grant of leave. Generally leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[9]
[9] King v Commissioner for Consumer Protection [2018] WASCA 194 [166].

The application of the legislative scheme

The appellant was charged in 2004 with offences contrary to s 329(2) and s 329(4) of the Criminal Code (WA). All of the charges related to the same complainant (C) who was under the age of 13 at the time of each alleged offence. An offence under s 329(2) is a Class 1 offence;[10] and an offence under s 329(4) is a Class 2 offence under the Act.[11]
[10] Section 7(1) and sch 1.
[11] Section 7(2) and sch 2.
All Class 1 offences have an element of sexual misconduct in relation to a child under the age of 13. Class 2 offences have a greater range, and are not all sexual offences. The Class 2 offence with which the appellant was charged was a sexual offence.
In 2006, after a trial by jury, the appellant was acquitted of all charges. Those charges are 'non-conviction charges', as defined in s 4.
The CEO (and the Tribunal on review) must decide an application for an assessment notice in accordance with s 12. The appellant's application was to be decided in accordance with s 12(5), because he has a 'non-conviction charge' in respect of a Class 1 offence or a Class 2 offence. By s 12(5), the CEO was to issue an assessment notice to the applicant unless the CEO was satisfied that, because of the particular circumstances of the case, a negative notice should be issued.
Section 12(8) provides:
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.

The findings in the State Administrative Tribunal

The Tribunal found that it could not be satisfied that the alleged conduct did occur.[12]
[12] G and Dept for Child Protection and Family Support [2019] WASAT 93 (G) [158].
The Tribunal stated, correctly, that as the appellant has non‑conviction charges for Class 1 and Class 2 offences, pursuant to s 12(5), an assessment notice is to be issued unless the Tribunal is satisfied that, because of the particular circumstances of the case, a negative notice should be issued.[13]
[13] G [159].
The Tribunal dealt with the factors in s 12(8)(b) to (f) in turn, before turning to the paramount consideration in s 3 and s 12(8)(a).
First, the Tribunal stated that the offences were alleged to have been committed in 2002 and/or 2003 and there had been no allegations, charges or convictions against the applicant since that time.[14] The Tribunal further accepted that the appellant's wife (C's mother), C's half-sister, the appellant's two daughters and his ex‑wife all say that they never saw or heard him behave inappropriately or offensively towards any child.[15]
[14] G [164].
[15] G [165].
The Tribunal apparently 'tempered' that evidence by the reference to the respondent's submission that only a small proportion of child sexual abuse comes to the attention of authorities and evidence that 'under‑detection, under-reporting, delayed reporting and non-disclosure of child sexual abuse is widely acknowledged in the literature'.[16] It was not, as I understand the evidence, suggested that any material was before the Tribunal to support even a reasonable suspicion of unreported or undisclosed abuse by the appellant. The evidence of under-reporting could not be regarded as a circumstance, particular to the appellant's case, and relevant to whether a negative notice should issue.
[16] G [163], [166].
The Tribunal said that some weight should be given to the length of time since the alleged conduct is said to have occurred but that it was 'not as significant as submitted by the [appellant]'.[17]
[17] G [169].
The Tribunal considered the age of the appellant at the time of the alleged offending to not be of any particular significance.[18]
[18] G [172].
The Tribunal stated that the alleged offences were highly relevant to child-related work, being allegations of indecent dealing and sexual penetration of a child of 12 or 13 years by a person in a position of trust.[19] The Tribunal further accepted, as conceded by the appellant, that the effect of any similar conduct as alleged, being a Class 1 or Class 2 offence involving a child, were it to occur in the future, would be significant.[20]
[19] G [177].
[20] G [179].
Section 12(8)(f) required the Tribunal to have regard to any information given by the appellant in, or in relation to, the application. The Tribunal made a number of findings or observations:
(1)it was not persuaded that it was 'necessarily the case' that C had a motive to fabricate the allegations;
(2)C had told some lies but the matters relied on did not show 'a long history of disobedience or dishonesty' or to be not normal behaviour for a child;
(3)the Tribunal was not satisfied that C's history of telling some lies 'necessarily means that she lied about the alleged conduct of [the appellant]';
(4)the Tribunal did not accept that there was objective evidence that the incidents giving rise to the charges could not have occurred;
(5)the Tribunal referred to character evidence, including the evidence that the appellant had not been observed to have behaved inappropriately, but again apparently discounted that evidence on the basis that 'perceived good character does not preclude or limit the potential for a person to expose a child to harm'.[21]
[21] G [182] - [193].
In considering any other relevant matters, the Tribunal referred to evidence of possible grooming behaviour, but was not positively persuaded that the alleged conduct did or did not occur.[22]
[22] G [197].
The Tribunal then turned to the 'paramount consideration', stating that it could not make a positive finding that the alleged conduct, the subject of the non-conviction charges, did not occur. The Tribunal stated:
If 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 work, the best interests of children weights significantly towards the issue of a negative notice.[23]
[23] G [201].
The Tribunal's conclusion, in full, was as follows:
Weighing all of the factors, and taking into account all of the information before the Tribunal, the Tribunal finds that there is an unacceptable risk in the particular circumstances that the applicant may, in the future, cause sexual harm to children in the course of carrying out child-related work. Those circumstances include all of the evidence and findings summarised in the reasons above. In particular, the Tribunal is not persuaded that C was necessarily lying about [the appellant's] alleged conduct. The Tribunal accepts that there are inconsistencies in C's evidence, however the central parts of her allegations remained reasonably consistent with each telling. The Tribunal is not persuaded that there is an established reason why C would make up allegations about [the appellant]. The Tribunal is satisfied that C might have been telling the truth. The Tribunal is not persuaded that the so-called objective evidence that proves the alleged conduct could not have happened in fact establishes anything. Much of that 'objective' evidence relies on [the appellant's] uncorroborated testimony. The Tribunal finds that [the appellant] did 'rough house' or play-fight with C and [C's younger sister] in 2002 and 2003. Given C's age at this time, [the appellant's] age and the fact that he is unrelated to C, that behaviour could potentially be consistent with grooming behaviour, although it also may not have been. [The appellant's older daughter] describes [the appellant's] relationship with C and [C's younger sister] as being different to his relationship with his daughters. [C's half-sister's] reaction to C's disclosures was never explained, and based on [C's mother's] and [the appellant's] descriptions, it was quite a strong reaction. Professor Lipton thought that worth mentioning, however he was not able to interview [C's half-sister], so was not able to be satisfied as to why she had that reaction. Professor Lipton could not exclude the possibility that C was telling the truth. Ms Cant's evidence[24] was to the effect that there is nothing about C's evidence or behaviour that is inconsistent with her being truthful about the allegations. When considering all these things, while the Tribunal does have evidence that none of [C's mother, C's half-sister or the appellant's daughters] ever saw [the appellant] behave inappropriately towards anyone, the Tribunal is nonetheless persuaded that C's allegations might be true. On this basis, there is an unacceptable risk that [the appellant] may cause sexual harm to children in the course of carrying out child related work.[25]
[24] Ms Lilian Cant gave an expert statement. Her field of expertise was not stated in the Tribunal's reasons, although I infer it was psychology.
[25] G [202] (emphasis added).

The appeal

The appellant submitted that the Tribunal's conclusion, when read in the context of the whole of the reasons for decision, reveals that the Tribunal either did not carry out its statutory function of analysing and evaluating risk, or it has provided inadequate reasons for reaching the conclusion that there was a relevant unacceptable risk.

Ground 1

Counsel for the appellant submitted that, having found that it could not make a positive finding that the alleged conduct had or had not occurred, it was a necessary part of the Tribunals' review function to conduct an analysis and evaluation of the relevant risk having regard to the factors in s 12(8). Counsel submitted that the Tribunal reasoned directly from a conclusion that C's allegations might be true to a finding of unacceptable risk, and did not engage in the necessary task of analysing and evaluating the actual degree of any future risk to children if the appellant was issued an assessment notice, and the actual likelihood of any such future risk materialising. Counsel submitted that there is nothing in any of the findings made by the Tribunal to show that those findings were themselves the basis of any analysis or evaluation of risk.
Counsel for the respondent submitted that the legislation adopts a precautionary approach. Counsel further submitted that the process is predictive, requiring the decision maker to have regard to the nature of the risk (including the degree of harm if the risk materialises) and the likelihood of the risk materialising.
All of that may be accepted. But nowhere in the reasons of the Tribunal is there such an assessment of the nature of the risk ‑ beyond the general findings that the alleged offences were highly relevant to child-related work, and that the effect of any similar conduct as alleged, were it to occur in the future, would be significant.
The finding that C's allegations 'might' be true - is not a finding that the alleged conduct did or did not occur. Nor did the Tribunal express its finding as it having a reasonable suspicion that the allegations might be true.
Such a finding is the beginning and not the end of the analysis. To proceed, as the Tribunal did, on the basis of a finding that the allegations might be true to a finding that there is an unacceptable risk is a failure to carry out the task mandated by s 12.
As the Court of Appeal stated in IGR, it is in those cases where the decision maker concludes that it is not able to, or it is not appropriate to, make a positive finding whether the alleged conduct did or did not occur that the decision-maker must proceed to analyse and evaluate whether the relevant unacceptable risk has been established. It does so by reference to those factors which bear upon the risk, and which, in the particular circumstances of the case, must be taken into account under s 12(8).[26]
[26] IGR [124] – [125].
The operation of s 12 was described in detail in the decision of the Court of Appeal in IGR,[27] and in earlier decisions in Chief Executive Officer, Department for Child Protection v Grindrod [No 2];[28] and Chief Executive Officer, Department for Child Protection v Scott [No 2].[29] Relevantly:
1.Section 12(5) imposes on the CEO an obligation to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice.
2.The requisite state of satisfaction must be attained because of the particular circumstances of the application by reference to the criteria in pars (a) ‑ (f) of s 12(8), which constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction.
3.Each criterion is not of equal significance in the evaluative exercise. It follows from s 3 that the CEO must regard the criterion in par (a), the best interests of children, as the paramount consideration. If, and to the extent that, in any case, a criterion in pars (b) - (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) - (f) must yield.
4.The question for the CEO in every case is whether, on the information and other material properly before them, and having regard to the criteria in pars (a) ‑ (f) of s 12(8), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction, a negative notice must be issued. Otherwise, the CEO must issue an assessment notice.
5.Section 12 does not expressly state what finding, if any, the CEO must make in order to reach the relevant satisfaction. But it is:
implicit in s 12(4) and (8), in the context of s 3 of [the Act] as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after 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), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child-related employment.[30]
[27] IGR [13] - [17].
[28] Chief Executive Officer, Dept for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 [59] – [87] (Grindrod [No 2]).
[29] Chief Executive Officer, Dept for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125 (Scott [No 2]).
[30] Grindrod [No 2] [81].

The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm. In Grindrod [No 2], Buss JA said:
It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.[31]
[31] Grindrod [No 2] [87].
The specification of the best interests of children as paramount, in s 3 of the Act, does not exclude the other factors in s 12(8). In Scott [No 2], Buss JA said:
The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (b) - (f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case. In a particular case, for example, some of the criteria in pars (b) - (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children. But it should be emphasised that the criteria in pars (b) - (f) are never excluded by the criterion in par (a). They are merely subordinated. 'Paramount' is not equivalent to 'sole'.[32]
[32] Scott [No 2].
Regarding the best interests of the children as paramount may, for example, affect the decision making process by allowing greater weight to be given to the risk of harm than whether a child has in fact been abused.[33] But a decision by reference to a paramount consideration of such a general kind 'involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant'.[34]
[33] See Northern Territory of Australia v GPAO [1999] HCA 8; (1999) 196 CLR 553 [143] (Gaudron J).
[34] Bondelmonte v Bondelmonte [2017] HCA 8; (2016) 259 CLR 662 [32] (emphasis added).
It is not sufficient to refer to the paramount consideration without analysing why, in the particular circumstances of the case, all of the considerations to which the decision-maker must have regard led to the conclusion that the issue of a negative notice is in the best interests of children.
Ground 1 has been made out.

Ground 2

Ground 2 was relied on as an alternative to ground 1.
The principles relating to adequacy of reasons were summarised by the Court of Appeal in IGR:
Principles relevant to an evaluation of the adequacy of reasons include the following:
(1)Reasons for decision need not be lengthy or elaborate.
(2)Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.
(3)It is not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails.
(4)In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's or tribunal's consideration.[35]
[35] IGR [112] (citations of authority omitted). See also Centrex Australasia Pty Ltd v Commissioner for Consumer Protection [2017] WASCA 79 [102] ‑ [105].
The appellant submitted that the reasons of the Tribunal set out in detail the reasoning to the conclusion that it was not positively persuaded that the alleged conduct did not occur, and that it was not positively persuaded that the conduct did occur. But, the appellant submitted, the reasons do not disclose that the Tribunal then evaluated the evidence to determine whether there was an unacceptable risk that the appellant might, in the future, cause physical or sexual harm to a child in the course of carrying out child-related employment.
The statement that the Tribunal reached its finding of unacceptable risk after 'weighing all of the factors, and taking into account all of the information before the Tribunal' is not sufficient to disclose the process that led to the decision.
The reasons of the Tribunal do enable the court to discern the reasoning process that led to the decision. It may be readily inferred from the Tribunals reasons that it found that the allegations made by C might be true was not only necessary, but a sufficient basis for the conclusion that there was the relevant unacceptable risk.
Ground 2 is not made out.

Conclusion

The appellant should have leave to appeal and the appeal should be allowed on ground 1. The matter should be sent back to the Tribunal for reconsideration by a Tribunal differently constituted.
Whether the Tribunal should hear further evidence, or how it should proceed, is a matter for the Tribunal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
Associate to the Honourable Justice Allanson
16 OCTOBER 2020