Lu v CEO, Department for Child Protection
[2013] WASC 385
•24 OCTOBER 2013
LU -v- CEO, DEPARTMENT FOR CHILD PROTECTION [2013] WASC 385
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 385 | |
| Case No: | GDA:6/2013 | 17 OCTOBER 2013 | |
| Coram: | BEECH J | 24/10/13 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BOHUA LU CEO, DEPARTMENT FOR CHILD PROTECTION |
Catchwords: | Appeal Administrative tribunal Appeal only on question of law Working with Children (Criminal Record Checking) Act 2004 (WA) Negative notice issued Where appellant convicted of an offence under provision later repealed Whether exceptional circumstances existed Whether error of law shown |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 105 Working with Children (Criminal Record Checking) Act 2004 (WA), s 12 |
Case References: | BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246 D v CEO, Department for Child Protection [2009] WASAT 166 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 Vella v Bowden (No 2) [2012] WASCA 271 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CEO, DEPARTMENT FOR CHILD PROTECTION
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR M ALLEN (SENIOR MEMBER)
File No : VR 177 of 2011
Catchwords:
Appeal - Administrative tribunal - Appeal only on question of law - Working with Children (Criminal Record Checking) Act 2004 (WA) - Negative notice issued - Where appellant convicted of an offence under provision later repealed - Whether exceptional circumstances existed - Whether error of law shown
Legislation:
State Administrative Tribunal Act 2004 (WA), s 105
Working with Children (Criminal Record Checking) Act 2004 (WA), s 12
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr D E Leigh
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246
D v CEO, Department for Child Protection [2009] WASAT 166
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361
Vella v Bowden (No 2) [2012] WASCA 271
- BEECH J:
Introduction
1 Mr Lu seeks leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) under the Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act).
2 In March 2011, Mr Lu applied to the respondent for an assessment notice under the WWC Act to enable him to carry out child related work as a high school teacher. Consequently, the respondent conducted a criminal record check and became aware that the appellant had been convicted of two offences. Only one of those offences remains relevant. The offence was committed on 16 December 1998. It was a conviction of indecent dealing with a juvenile male between the age of 16 and 21 years, contrary to s 322A(3) of the Criminal Code 1913 (WA).
3 By 2011, the appellant's conviction was a spent conviction. Nevertheless, under the WWC Act, a reference to a conviction includes a reference to a conviction that is a spent conviction (WWC Act, s 8(2)).
4 The respondent reviewed relevant material and submissions from Mr Lu and, on 7 September 2011, determined the application by issuing a negative notice.
5 Mr Lu applied for review of that decision in the Tribunal. The Tribunal affirmed the decision to issue the negative notice.
6 For the reasons that follow, I would refuse to grant leave to appeal. In essence, that is because Mr Lu has not demonstrated that the Tribunal made any material error of law in its decision.
7 I will set out the section under which the Tribunal acted, and outline the Tribunal's decision, before turning to Mr Lu's grounds of appeal.
The legislation
8 Section 12 of the WWC Act provides as follows:
12. Deciding applications for assessment notice
(1) The CEO is to decide an application under section 9 or 10 in accordance with this section -
(a) by issuing an assessment notice to the applicant; or
(b) by issuing a negative notice to the applicant.
(2) The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3) If one or more conditions specified in the Table apply in relation to an applicant, the CEO is to decide the application in accordance with -
(a) if any one condition applies, the applicable provision opposite that condition; or
(b) if more than one condition applies, the applicable provision opposite the condition that has the higher or highest item number in the Table.
Item | Condition | Applicable provision |
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(a) any offence of which the applicant has been convicted; or (b) any charge of an offence against the applicant |
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(a) is aware of a Class 3 offence of which the applicant has been convicted; and (b) reasonably believes that in the course of committing the offence the applicant performed an indecent act |
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(4) If this subsection applies, the CEO is to issue an assessment notice to the applicant.
(5) If this subsection applies, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6) If this subsection applies, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7) If this subsection applies, the CEO is to issue a negative notice to the applicant.
(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.
The Tribunal's decision
10 The Tribunal began by determining which subsection of s 12 applied.
11 The facts of the 1998 offence of indecent dealing were summarised as follows:1
On 16 December 1998 the complainant (who was 16 at the time) attended [a metropolitan suburban swimming complex]. The complainant was in the hydro pool when he noticed the accused staring at him. The complainant then left the hydro pool and entered the steam room. The accused followed the complainant into the steam room and began a conversation during which the complainant told the accused that he was 16. The complainant then went into the sauna and was again followed by the accused. The accused asked the complainant if he was a virgin and whether he wanted to come back to the accused's home. The accused then touched the complainant on the leg, moving his hand towards the complainant's groin. The complainant said 'no', pushed the accused away and left the sauna.
12 The Tribunal accurately summarised the effect of s 12(4), (5), (6) and (7).2 The Tribunal determined that item 7 in the table under s 12(3) applied. In summary, that was because:
(a) the indecent dealing offence was a class 3 offence, in that it was not a class 1 offence or a class 2 offence (see s 4 of the WWC Act); and
(b) the Tribunal reasonably believed that, in the course of committing that offence, Mr Lu performed an indecent act.3
13 The Tribunal then directed its attention, in accordance with s 12(6), to whether there were exceptional circumstances to warrant issuing an assessment notice, failing which a negative notice must be issued.4
14 In accordance with s 12(8), the Tribunal undertook an assessment of each of the factors set out in s 12(8) as they related to the circumstances of the case. In summary, the Tribunal found that:
(1) the passage of a lengthy period of time since the offence was committed, without further offending, was a factor that was significant and favourable to Mr Lu, but did not in itself constitute an exceptional circumstance as justifying the issue of an assessment notice;5
(2) Mr Lu's age, 38, at the time of the offence, 22 years older than the complainant who was then at school, was a factor counting against the applicant and did not give rise to any exceptional circumstance justifying the granting of an assessment notice;6
(3) Mr Lu's offence involved a conscious touching of a youth of school age with the intention of having him accompany Mr Lu to his house for sex. That was relevant to child related work and to the consideration of future risk to children, notwithstanding that the particular offence had since been repealed and that the physical contact was relatively minor;7
(4) the impact of unwanted sexual interest from an adult on a boy in his teens should not be underestimated. The harm caused by the conduct was serious and would be equally serious if it occurred against a child today;8
(5) Mr Lu submitted to the Tribunal that the 1998 offence provision had now been repealed, so that he would not be charged with any offence for the same conduct today. The Tribunal rejected this, stating that given the absence of the complainant's consent, which seemed to the Tribunal quite apparent, an indecent assault charge would be available;9
(6) the Tribunal also took into account that Mr Lu had been able to work with children as a teacher for some periods without incident, and with good references, and that his inability to work as a teacher would result in hardship to him;10 and
(7) the best interests of children is the paramount consideration. The Tribunal concluded that Mr Lu represents an unacceptable risk of harm to children, and there were no significant exceptional circumstances that would justify issuing an assessment notice to him. The Tribunal's reasons for that were as follows:11
a) Despite the passage of time since the 1998 offence, and despite the apparent adverse effect that conviction has had on Mr Lu's ability to work in his field as a teacher, Mr Lu was quite unconvincing in his efforts to explain his current attitude to the behaviour that led to his conviction and why such behaviour should be seen as inappropriate. He continues to maintain that he should never have been charged, and was wrongly convicted. He maintained at the hearing, after some inconsistency about who started the conversation - him or the complainant - that it was the complainant who first spoke to him and that, in fact, the complainant first approached him and gave him 'the look' or 'gave him the eye'. These phrases were used by Mr Lu to assert that the complainant was, in fact, interested in him and that he recognised the complainant as being homosexual at the time, and that this was confirmed several years later by Mr Lu claiming to have seen the complainant at a particular place. I do not accept Mr Lu's evidence in this regard - but even if it were true, it would not alter the nature of his indecent touching of the complainant.
b) Mr Lu had great difficulty in explaining whether, and why, his actions towards the complainant were inappropriate then, and would be inappropriate now. He said that he accepted that touching another person would be inappropriate if the other person objected, but he claimed that the complainant did not object (until after some considerable time) and had no reason to object. Mr Lu indicated that he continues to expect rejection of unwanted advances and appeared not to have any grasp of the notion that a young person may not be able to object to advances from an older person for all sorts of reasons, including distress or confusion. Despite his experience of working with children, his presentation at the hearing suggested that he failed to appreciate the lesser cognitive and emotional development of young people that may prevent them from responding to unwanted attention in a way that a mature adult may.
(c) In the light of all the evidence presented at the trial against Mr Lu, the very best that can be said is that he completely misunderstood or misread the situation involving the complainant. It is the fact, however, that as a mature adult, he touched a young person in a suggestive way, with the intention of inducing that person to accompany him to his house for sex, and that he persisted in his attentions to the complainant for some time in that attempt, and in so doing, caused considerable distress. It might be a quite different matter now if Mr Lu could frankly acknowledge the inappropriateness of that conduct and argue that he would not repeat it. Instead, his priority in these proceedings was to assert that his conduct was not wrong at the time, that the complainant had no good grounds to be afraid of him and, in fact, had, at least to some extent, initiated the contact, and that the complainant and others involved in the case had lied about the events.
d) By attempting to divert responsibility for the conviction to others, Mr Lu demonstrates, in my opinion, that he lacks any real degree of insight into the nature of the offending behaviour and his responsibility for it, nor does he appreciate the harm that behaviour of that kind can do, and obviously did, to the complainant.
e) The precautionary approach adopted by the WWC Act does not involve a balancing of the risk of harm to young people against the civil and economic rights of an adult, nor is there any punitive or disciplinary purpose involved. The benefit to young people comes from protecting them from potential harm. In my view, by demonstrating clearly his lack of insight into the harm that may be caused by actions such as these, and by his actions to deflect responsibility on to others, Mr Lu continues to represent a potential harm to young people.
16 Mr Lu applied to the Tribunal for an order that his name not be published. The Tribunal declined to do so. That is the subject of ground 2, and I will say more about it when I deal with that ground.
The nature of appeals against a decision of the Tribunal
17 An appeal from a decision of the Tribunal is available only to the extent provided in s 105 of the State Administrative Tribunal Act 2004 (WA). That section provides, relevantly, as follows:
105 Appeal from Tribunal's decision
(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
(2) The appeal can only be brought on a question of law.
18 Section 105 confers and constrains the right to appeal from a decision of the Tribunal. That right is of limited scope. An appeal lies only on a question of law. That is narrower than an appeal that 'involves' a question of law.12 Of course, a right to appeal only on a question of law is much narrower than an appeal on questions of law and fact.
19 A question of law is not raised by an assertion that a decision is against the evidence, or against the weight of the evidence. An incorrect finding of fact does not give rise to or reveal an error of law.13
20 Only an error of law that affects the Tribunal's decision can be the subject of an appeal on a question of law. An immaterial error of law will not suffice.14
21 Thus, it can be seen that s 105 significantly circumscribes what is a permissible ground of appeal against a decision of the Tribunal.
22 Understandably, given that Mr Lu is self-represented, Mr Lu's grounds of appeal and submissions are not framed with these constraints in mind.
Grounds of appeal
23 The grounds of appeal read as follows:
1. Not only failed to recognise section 41, Part & The Criminal Code, Acts Amendment (Lesbian and Gay Law Reform) Bill 2001 and failed to execute in accordance with s 71(1) and s 7(2) Working with Children (Criminal Record Checking) Act 2004, which specifically lists what the criminal codes impeded people to work with children, but also contradicted to the his (Murray Allen) earlier statement while he made at the Ombudsman of WA;
2. Incorrectly stated to the Court of Criminal Appeal in regard to CCA 59 of 2001 on the suppression of my name in paragraph 55 on page 20 in [2013] WASAT 69; and
3. Failed to identify the exceptional circumstances such as I was working with children from time to time even after I was convicted; where the incident took place and under what the circumstances the incident took place; and the interstates criminal law reforms at that time the incident took place.
24 In written submissions, the respondent attempted, successfully in my view, to distil the essence of Mr Lu's complaints in his grounds of appeal, and summarised them as follows:
(1) as the offence with which he was convicted is an offence that no longer exists at law, that offence should not have provided a foundation for the issue of a negative notice;
(2) there is an error in the reasons for decision in relation to his application for a suppression order; and
(3) the Tribunal should have been satisfied that there were exceptional circumstances to warrant Mr Lu being issued with an assessment notice under the Act.
25 I proceed to deal with the grounds in turn.
Ground 1 - the repeal of the provision under which Mr Lu was convicted
26 The fact that, by 2011, the provision under which Mr Lu had been convicted had been repealed did not alter the character of the conviction as a conviction for the purposes of s 12 of the WWC Act. There is nothing in the language or purpose of s 12 and s 8 to sustain a construction of 'conviction' as requiring the offence in respect of which the conviction occurred to remain an offence as at the time of the application for an assessment notice.
27 The fact that the section under which Mr Lu was convicted had been repealed was relevant to whether there existed exceptional circumstances warranting the issuing of an assessment notice under s 12(6). The Tribunal did not overlook this. To the contrary, in its assessment of whether exceptional circumstances existed, the Tribunal expressly took into account the repeal.15 It was a matter for the Tribunal what weight should be accorded to that consideration, in all of the circumstances of the case. In making that assessment, the Tribunal took into account, as it was entitled to do, the nature and character of the conduct in which Mr Lu had engaged.
28 It is not for this court, in an appeal under s 105 of the State Administrative Tribunal Act, to make its own assessment of the weight to be given to the fact that the provision under which Mr Lu is convicted had been repealed. Questions of weight are for the Tribunal. Whether, in all the circumstances of the case, there are exceptional circumstances within the meaning of s 12(6) was an evaluative judgment for the Tribunal. This court does not stand in the shoes of the Tribunal and make its own assessment. As I have explained, the court's function is more limited.
29 In his written submissions in support of ground 1, Mr Lu makes some other complaints which, notwithstanding that they do not seem to me to fall within the ground of appeal, I will deal with.
30 Mr Lu complains that the Tribunal erred in overcharging him for the application, for which he was subsequently refunded.16 Any error in that respect is immaterial to the Tribunal's decision that is sought to be appealed.
31 Mr Lu submits that the Tribunal confused indecent dealing and indecent assault. The Tribunal's reasons reveal no such confusion.17
32 Mr Lu asserts that a decision made by Mr Allen, who constituted the Tribunal, some 12 years earlier as Ombudsman contradicts the Tribunal's decision in this case. There is no substance in that complaint. The letter written in 2001 explained the reasons why the Ombudsman considered he was unable to pursue a complaint by Mr Lu in relation to the police investigation leading to his conviction. That is in no way inconsistent with anything in the decision of the Tribunal. The subject matter of the letter in 2001 and the decision of the Tribunal in 2013 are entirely distinct.
33 For these reasons, ground 1 does not reveal any arguable error of law. I would refuse leave to appeal on ground 1.
Ground 2
34 Ground 2 complains of the Tribunal's refusal to make an order that Mr Lu's name not be published.
35 The Tribunal found, in summary, that there was no sufficient reason in the material available to justify departing from the general principle of open justice.
36 In the course of its reasons on this point, the Tribunal stated that Mr Lu had acknowledged that there had been no suppression of his name in the District Court trial or in the later appeal to the Court of Criminal Appeal.18
37 Mr Lu complains that he had not so acknowledged. That is not a permissible ground of appeal in that it does not raise any question of law; it simply asserts an error of fact by the Tribunal.
38 Consequently, there is no merit in ground 2 and I would refuse leave to appeal in respect of it.
Ground 3
39 Ground 3 complains, in substance, of the conclusion by the Tribunal that exceptional circumstances had not been demonstrated.
40 In his written and oral submissions in support of this ground, Mr Lu invites the court's attention to various witness statements taken as part of the police investigation, prior to his conviction. He also sought to give his version of the incident.
41 In oral submissions before me, Mr Lu agreed that his purpose in doing so was to persuade the court that the indecent dealing did not happen.19 He submitted that the case was 'based on fabrication'.20
42 Mr Lu's submissions overlook the limited nature of an appeal on a question of law under s 105 of the State Administrative Tribunal Act. On such an appeal, it is not open to the court to review the evidentiary material and make its own findings of fact. The court's assessment of the evidentiary material must be directed only to the identification of an error of law.
43 On the face of it, there would be an additional obstacle to an invitation to find that the indecent dealing did not happen. That invitation would appear to involve an impermissible collateral attack on the conviction.21 However, given the point made in the previous paragraph, it is unnecessary to say more about that.
44 Consequently, the applicant's assertions, in his submissions, about inconsistencies in the complainant's version of events, or other allegedly unsatisfactory aspects of the complainant's evidence, go nowhere on an appeal under s 105. They do not give rise to or reveal any question of law on which the Tribunal has erred. As I said earlier,22 a finding of fact that is against the evidence or allegedly incorrect does not give rise to or reveal an error of law.
45 In support of his contention that there were exceptional circumstances, Mr Lu points to the fact that he had taught at various schools, and had been registered with the Western Australian College of Teaching from 2011, after having made it aware of his conviction. The Tribunal took those matters into account.23 The weight to be given to those circumstances was a matter for the Tribunal.
46 Mr Lu has not identified any consideration that the Tribunal overlooked in assessing the exceptional circumstances question. Rather, he complains of the result - the failure of the Tribunal to find that the matters on which he relied were exceptional circumstances. No error of law is revealed by the Tribunal's decision in that respect.
47 Mr Lu points to the result in the decision of the Tribunal in D v CEO, Department for Child Protection24 in which the Tribunal determined that an assessment notice should be issued. That case does not assist Mr Lu's application for leave to appeal. Each case depends upon all of its circumstances. By definition, the circumstances of two cases are not identical. In such a context, the fact that a different result occurred in one case will rarely if ever reveal an error of law in another case.
48 The circumstances, and consequently the relevant sub-section of s 12, in that case were different from Mr Lu's case. In D v CEO, Department for Child Protection, the applicant had been charged but not convicted of a relevant offence. By the time of the Tribunal decision, the charge had been discontinued. The Tribunal considered that the applicable sub-section of s 12 meant that an assessment notice had to be issued, unless the Tribunal was satisfied that a negative notice should be issued because of the particular circumstances of the case.25 As is clear from what I have already said, in this case, the framework was quite different. Section 12(6) applied, with the result that a negative notice had to be issued unless the Tribunal was satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued. Thus, the result in that case does not assist in determining whether there was any error of law in the present case.
49 For these reasons, ground 3 does not reveal any arguable error of law on the part of the Tribunal.
Conclusion
50 For the reasons I have given, Mr Lu has not established any arguable error of law on the part of the Tribunal. Consequently, leave to appeal must be refused.
1 Tribunal Reasons [19].
2 [8].
3 [24] - [28].
4 [29].
5 [37].
6 [38] - [40].
7 [45].
8 [48].
9 [49].
10 [49].
11 [53].
12Paridis v Settlement Agents Supervisory Board (2007) 33 WAR 361 [53].
13Paridis [54] - [55].
14BTR plc v Westinghouse Brake and Signal Co (Aust) Ltd (1992) 34 FCR 246, 253 - 254.
15 See, for example, [45], [49].
16 Appellant's written submissions [1].
17 See Tribunal Reasons [23], [48], [49].
18 Tribunal Reasons [55].
19 ts 4.
20 ts 5.
21 See, for example Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Vella v Bowden (No 2) [2012] WASCA 271.
22 [19].
23 Tribunal Reasons [49].
24D v CEO, Department for Child Protection [2009] WASAT 166.
25D v CEO, Department for Child Protection [23].
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