Nicholls v Director-General, Department of Justice and Attorney-General
[2017] QCAT 396
•22 November 2017
CITATION: | Nicholls v Director-General, Department of Justice and Attorney-General [2017] QCAT 396 |
PARTIES: | Kirsty-Ann Nicholls |
| v | |
| Director-General, Department of Justice and Attorney-General (Respondent) | |
APPLICATION NUMBER: | CML195-17 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | A/Senior Member Browne |
DELIVERED ON: | 22 November 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to review the decision made on 21 July 2017 and filed in the Tribunal on 8 August 2017 is dismissed because it is not a reviewable decision as provided in section 353 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to review FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where application for review filed under the Working with Children (Risk Management and Screening) Act 2000 – whether the Tribunal has jurisdiction to review – whether the decision made is a reviewable decision – where the application was dismissed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 47 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Kirsty-Ann Nicholls wants a blue card so that she can work with children. Ms Nicholls made an application to Blue Card Services, Department of Justice and Attorney-General for a positive notice (a blue card).
The Department of Justice and Attorney-General wrote to Ms Nicholls on 4 July 2017 requesting that she respond to certain information by 18 July 2017, being the due date provided in the correspondence. The relevant extract from the correspondence appears as follows:
The due date to provide me with submissions is Tuesday, 18 July 2017.
…
If you wish to provide submissions, you must provide them by the above date otherwise I may continue to assess your application or withdraw it. If I continue to assess your application and issue you with a negative notice, or if I withdraw your application, you will be prohibited from working in employment which requires you to hold a blue card.
On 21 July 2017, the Department of Justice and Attorney-General wrote to Ms Nicholls notifying her that her application has been withdrawn because she did not provide the submissions which were requested. The relevant extract from the correspondence appears as follows:
I am writing to inform you that your application has been withdrawn because you have not provided the submissions which were requested to assist in the assessment of your application.
Ms Nicholls filed an application for review in the Tribunal. In the application Ms Nicholls sets out the following under Part C of the application requesting the applicant to ‘[b]riefly describe what you want to happen’:
My blue card to be approved on the grounds that I have no conviction recorded.
On 5 September 2017, I dismissed Ms Nicholls application to review filed in the Tribunal on 8 August 2017 on the basis that it is not a reviewable decision as provided in the section 353 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Working with Children Act’).
Ms Nichols has requested reasons for my decision that are now set out below.
What is the Tribunal’s power to review a decision made under the Working with Children Act?
The Tribunal only has the power to review a decision under the QCAT Act where the enabling Act, in this case, the Working with Children Act, confers jurisdiction on the Tribunal to review the decision.[1]
[1]QCAT Act, s 17.
The Tribunal may exercise its review jurisdiction if a person has applied to the Tribunal ‘to exercise its review jurisdiction for a reviewable decision’.[2]
[2]QCAT Act, s 18.
Under the Working with Children Act, a person who is not a disqualified person may apply to the Tribunal within the prescribed period for a review of a ‘chapter 8 reviewable decision’, as provided.[3]
[3]Working with Children Act, s 354.
Under s 353 of the Working with Children Act, a ‘chapter 8 reviewable decision’ about a person means a decision as to whether or not there is an exceptional case for the person if, because of the decision, the Director-General, Department of Justice and Attorney-General (as the chief executive), amongst other things:
(i)Issued a negative notice or negative exemption notice to the person; or
(ii)Refused to cancel a negative notice or negative exemption notice issued to the person
Section 216 of the Working with Children Act provides, inter alia, that where a blue card applicant has been given a written notice asking for submissions and they fail to comply with the request, the Department may give them a notice that their application is taken to have been withdrawn. The written notice asking for submissions must include a warning that ‘if the person does not comply with the notice, the person’s application may be taken to have been withdrawn’.[4]
[4]Working with Children Act, s 216(b).
In this case, the Department of Justice and Attorney-General requested that Ms Nicholls provide a submission by a certain date. The correspondence sent to Ms Nicholls dated 4 July 2017 clearly states that the Department may ‘assess’ the application (for a blue card) or ‘withdraw it’. Further correspondence was sent to Ms Nicholls on 21 July 2017 stating that her ‘application has been withdrawn’.
Although the letter of 4 July 2017 does not explicitly state that non-compliance with the invitation or request to provide submissions will result in the withdrawal of the application, the letter does state that the application may be assessed or withdrawn. I am satisfied having considered the relevant sections of the Working with Children Act and the correspondence dated 4 and 21 July 2017 that the decision-maker has given Ms Nicholls a notice of ‘deemed withdrawal’.[5]
[5]For the purposes of s 216 of the Working with Children Act.
The Director-General, Department of Justice and Attorney-General has not made a decision that is for the purposes of s 354 of the Working with Children Act, a ‘chapter 8 reviewable decision’. Because there is no ‘chapter 8 reviewable decision’, the Tribunal does not have any power to exercise its review jurisdiction for the purposes of s 17 of the QCAT Act.
The Tribunal has the power under s 47 of the QCAT Act to dismiss an application filed that is, amongst other things, ‘misconceived’ or is ‘lacking in substance’. The Tribunal may act under this section on the application of a party or on its own initiative. For the reasons given, there is no reviewable decision for the purposes of s 17 of the Act and the application is therefore dismissed.
Ms Nicholls may, of course, in some future time seek to make a fresh application for a blue card to the Department of Justice and Attorney-General. If a decision is made about Ms Nicholl’s blue card application that is a ‘chapter 8 reviewable decision’, then it would be open to Ms Nicholls to file a new application to review that decision in the Tribunal.
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