LD v Commissioner for Children and Young People and Child Guardian
[2012] QCAT 373
•20 August 2012
| CITATION: | LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373 |
| PARTIES: | LD[*] Applicant |
| v | |
| Commissioner for Children and Young People and Child Guardian Respondent |
| APPLICATION NUMBER: | CML122-12 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, senior member |
| DELIVERED ON: | 20 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application to review the decision contained in a letter from the respondent dated 3 November 2011 is dismissed |
| CATCHWORDS: | CHILD PROTECTION – where positive notice cancelled and negative notice issued – where applicant convicted of an offence other than a serious offence – where request to review negative notice made more than 28 days after decision received – whether an extension of time should be granted to commence a review Commission for Children and Young People and Child Guardian Act 2000 – section 354 Queensland Civil and Administrative Tribunal Act 2009 – sections 33(3), 47 and 61 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Prior to events that occurred on 23 January 2011, LD looked forward to completing university study and embarking on a professional career of his choice. On 23 January 2011 he committed three criminal offences for which he pleaded guilty on 15 July 2011. Subsequently the Commissioner for Children and Young Children and Child Guardian cancelled the positive notice[1] he had held under the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) and issued him with a negative notice. Notice of this decision was sent to LD in a letter dated 3 November 2011.
[1] Commonly referred to as a blue card
LD does not dispute that he received the decision and that he had been informed by the decision letter that he had 28 days only to apply to QCAT to review that decision.[2] He chose not to take any action about the decision until he considered that a sufficient time had passed since the offending and since the making of the probation and community service order by the court on 15 July 2011.
[2] Paragraph 16 of the affidavit of LD sworn 20 July 2012
Under section 33(3) of the QCAT Act, an application to review a reviewable decision must be filed within 28 days of receipt of the decision by the applicant. The decision to issue a negative notice is a reviewable decision under section 354 of the CCYPCG Act. A review application should have been filed on or about 5 December 2011. LD filed his application for review on 20 July 2012 over seven months out of time. He applied for an extension of time in which to commence the review.
The Commissioner has objected to any extension of time being granted. QCAT has a very wide discretion to extend time limits in section 61 of the QCAT Act. [3]
[3] King v TIC Realty (no. 3) [2010] QCATA 104.
QCAT exercises the discretion to extend time in accordance with principles developed by the courts in similar situations.[4] Those principles have been summarised in QCAT previously as follows:
a. Whether a satisfactory explanation or good reason is shown to account for the delay.
b. The strength of the case the Applicant wishes to bring (assuming it is possible for some view on this to be formed on the preliminary material).
c. Prejudice to adverse parties.
d. Length of the delay, noting that a short delay is usually easier to excuse than a lengthy one.
e. Overall, whether it is in the interests of justice to grant the extension. [5]
[4] CMC v Chapman & Anor [2011] QCAT 229 at paragraphs 8.
[5] See paragraph 9 in CMC v Chapman above.
After considering the submissions of the parties about the request for an extension of time, I have decided for the reasons set out in the following paragraphs to refuse to grant an extension of time for LD to commence a review of the decision made by the Commissioner and as a consequence the application to review that decision is dismissed.
Explanation for delay
The explanation for the delay is based on a decision made by LD to gain time to improve his prospects of success in the review. He wanted to put time between his offending and the review taking place. His decision was predicated on what he considered to be the optimum timing in which to commence that review.
I do not consider that such an explanation is a satisfactory explanation for his delay. Quite frankly, the choice of timing is not LD’s to make. The legislature has made the determination that in the interests of justice reviews of reviewable decisions should be commenced within 28 days. People who deliberately ignore that statutory time period do so at their peril.
What is the strength of the case for review?
Submissions filed on behalf of LD contend that the Commissioner failed to properly exercise her discretion when issuing the negative notice. It was contended that the Commissioner did not demonstrate in her reasons that there was a real and appreciable risk to children if LD had a positive notice. All of the submissions focussed on the reasoning of the Commissioner and on her alleged failure to properly apply the law.
The submissions are misguided. A review by QCAT is a merits review. QCAT stands in the shoes of the primary decision maker and makes the correct and preferable decision by way of a fresh hearing on the merits of the evidence presented.[6] Such a review would not focus on any errors made by the primary decision maker but rather on the cogency of the case presented by LD to be entitled to hold a positive notice.
[6] Section 20 of the QCAT Act.
There has been little evidence presented by LD since September 2011 to counter the position that as a result of his convictions, his case is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued. The tribunal has no basis on which to estimate the strength of his case as there is no evidence from his treating psychiatrist as to the existence of any risks that he poses to children, no report from his probation officer as to the outcomes of his probation and no report from an independent psychiatrist or psychologist with a forensic analysis of the risks he poses to children.
In the absence of this type of evidence at this preliminary stage, I am not persuaded that a review is likely to have reasonable prospects of success.
Prejudice to the Commissioner
The Commissioner does not contend that she has suffered any prejudice as a result of the delay in LD commencing a review. She has contended that the certainty arising from her decisions would be placed in jeopardy should an applicant be able to ignore the relevant statutory time limits and in effect self select the timing in which to commence a review.
I agree that it is in the interests of the community as a whole that people can rely on administrative decisions made under statute to provide certainty to parties to those decisions. It is not in the public interest to permit a party to a decision to have in effect an unlimited time in which to seek a review.
The Commissioner must be able to carry out her statutory duty of promoting and protecting the rights, interests and wellbeing of children in Queensland within the context of the statutory system provided for that purpose. It is in the public interest that her functions, while subject to review by this Tribunal, are not unnecessarily impeded in ways that would tend to undermine the integrity of the employment screening scheme set up by the CCYPCG Act for the protection of children.
I consider that it would be an unnecessary impediment to the scheme in Chapter 8 of the CCYPCG Act to permit LD to commence a review at a time of his choice in the circumstances he relies on.
Length of delay
LD was over seven months out of time in seeking to commence the review. Nothing in section 61 of the QCAT Act places a limit on the out of time element of a request for an extension of time.
If all the other factors considered for this request came out in favour of an extension being granted, the period of seven months would not in my view disentitle LD from having the benefit of an extension of time. However the other factors which I have already discussed have not come out in his favour.
Whether the interests of justice require an extension
LD committed three criminal offences for which he was convicted in July 2011 although no conviction was recorded by order of the magistrate. He was placed under a probation order for three years and directed to complete 120 hours of community service. He was still under treatment for a mental illness as at 20 July 2012.
It was submitted by him that he should have a positive notice so he can continue with Christian Ministry to children and so he can continue with his university studies. He produced evidence that he would be required to hold a blue card prior to enrolling in certain subjects which may be part of his current course.
I accept that the issuing of a negative notice following his convictions for criminal offences will prevent LD from working with children. It is the purpose of the employment screening scheme in Chapter 8 of the CCYPCG Act to prevent persons working with children when it is not in the best interests of children for a positive notice to be issued.
The fact that it is in the interests of LD that he can finish his university course before 2014 is not sufficiently a cogent reason to find that the respective interests of children and of LD should balance out in his favour. The interests of justice in my view would tend to uphold the desirability of the statutory merits review system being conducted in a timely and proper manner.
LD has not satisfied me that it is in the interests of justice that a review should be commenced out of time in this case.
Early end to proceedings
Section 47 of the QCAT Act provides power for the tribunal to bring an early end to a proceeding if the tribunal considers the proceeding is lacking in substance or is otherwise an abuse of process. The review application has been commenced out of time. QCAT cannot proceed to determine the review application as it has not been validly made.
The application for review must be dismissed.
[*] Party de-identified pursuant to non-publication order.
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