[2002] NSWSC 949
CVE v Children's Guardian [2017] NSWCATAD 197
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
[1986] HCA 40
Tural v Potter
BAH v Magistrates' Court of Victoria (2000) 110 A Crim R 475
Source
Original judgment source is linked above.
Catchwords
[2002] NSWSC 949
CVE v Children's Guardian [2017] NSWCATAD 197
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24[1986] HCA 40
Tural v PotterBAH v Magistrates' Court of Victoria (2000) 110 A Crim R 475
The plaintiff, the Children's Guardian ("the Guardian"), has by an amended summons filed in Court on 15 September 2017 appealed the decision of the Civil and Administrative Tribunal ("the Tribunal") published on 20 June 2017: CVE v Children's Guardian [2017] NSWCATAD 197 ("CVE No 1").
The proceedings before the Tribunal concerned an application by the defendant, CVE, for review of the decision of the Guardian dated 21 October 2016 to refuse her a clearance to work with children pursuant to s 27 of the Child Protection (Working with Children) Act 2012 (NSW) ("the Act").
The Tribunal was required to exercise the functions of the Guardian and proceed de novo to what it considered to be the "correct and preferable" decision in light of the applicable law and any relevant factual material: Administrative Decisions Review Act 1997 (NSW), s 63. The Tribunal decided to set aside the decision of the Guardian and substitute a "decision" that the defendant be granted a working with children check clearance (CVE No 1 at [85]).
Clause 17(1) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) enables the Guardian to appeal to this Court on a question of law. The Guardian appealed on two grounds, but now only presses the first of them. That is because the defendant conceded the appeal on that ground. The remaining ground of appeal was that "[t]he Tribunal erred at law by failing to address, or make any determination under, sub-s 30(1A) of the Act". Upon that ground the parties proposed consent orders as follows:
1. Appeal allowed.
2. The decision of the New South Wales Civil and Administrative Tribunal recorded in CVE v Children's Guardian [2017] NSWCAT 197 is set aside.
3. The proceedings are remitted to the said Tribunal to be determined according to law.
Upon the hearing of the matter on 15 September 2017, the Court made those orders. No orders were made as to costs. The Court gave short reasons as follows:
Upon the basis of the written submissions of the parties today and with the helpful assistance by way of further oral submissions and having considered the full text and terms of the Tribunal's decision, I consider that the consent orders as proposed in Tab 3 of the Court Book should be made. I make orders in those terms.
The Court indicated that further reasons would be given within a short time frame. These are those reasons.
[3]
The Issues on the Appeal
There is no dispute the Tribunal considered in its decision the matters prescribed by s 30(1) of the Act and expressed its satisfaction that the defendant did not pose a risk to the safety of children (see s 18(2) of the Act and Commission for Children and Young People v V (2002) 56 NSWLR 476; [2002] NSWSC 949 at [42] (per Young CJ in Eq)). That position is plainly correct as the decision of the Tribunal is replete with reference to those factors and their application in the present proceedings. The issue on appeal was whether the Tribunal erred in law by failing to make reference to or make a determination under s 30(1A) of the Act. I now turn to the submissions of the parties, with respect to those matters.
[4]
Submissions for the Guardian
It was submitted by the Guardian that, notwithstanding both parties making submissions to the Tribunal on the application of s 30(1A) in the proceedings below, the Tribunal's reasons make no mention whatsoever as to those submissions or the provisions of s 30(1A). Nor was there any ruling as to the issues raised by the parties with respect to that provision.
It was in that light that the Guardian submitted that it may be inferred that the Tribunal failed to take into account the provisions of or make any determination under s 30(1A)(a) and (b).
It was acknowledged that the Tribunal stated, at [70] of its decision: "[t]he Tribunal has carefully considered all the evidence and submissions given and filed by the parties even if they are not specifically referred to in these reasons". However it was contended that this statement was insufficient to address the requirements of s 30(1A) of the Act.
The Guardian contended that the power to make a determination under Pt 4 of the Act (upon an application under s 27(1)) enabling a person to work with children required the Tribunal to reach a state of satisfaction as to the matters referred to in s 30(1A). The Tribunal was not bound by any agreement as to the proper application of that provision in a particular case and must independently form its own satisfaction. However, the Tribunal may have regard to any agreement between the parties including factual matters.
It was also contended that, where the parties had expressly referred to matters identified in s 30(1A)(a) and (b), and adopted different positions in relation to those issues, it was an error of law for the Tribunal to not determine those issues, and in doing so, state why it had or had not reached the requisite state of satisfaction under s 30(1A) and the reasons for the same.
[5]
Submissions for the Defendant
The defendant did not oppose the appeal on the basis that the Tribunal failed to explicitly address s 30(1A) of the Act. It was accepted that it was mandatory for the Tribunal to address the same in the exercise of its discretion. It was, however, submitted that, despite that error, the Guardian was required to demonstrate that had the Tribunal considered s 30(1A) of the Act, it would have materially affected the decision. It was necessary to demonstrate that a failure to consider a matter was material to the decision being challenged: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at 40 (per Mason J).
The defendant also made reference to the judgment of Button J in Children's Guardian v CHN [2017] NSWSC 1228 ("CHN") where the appeal was brought on the basis that the Tribunal explicitly failed to consider the matter referred to in s 30(1)(i) of the Act.
I pause to note that CHN has little relevance in the present matter. His Honour found that the Tribunal did not avert to a mandatory consideration under s 30(1) and, in that sense, erred in law, but that the failure had no practical significance for the reason that the failure related to the assessment of the impact of an event with respect of which the Tribunal had found there was no risk of it actually occurring. As I will discuss, different circumstances arise here.
In oral submissions the defendant submitted that there was only one relevant test and that was whether or not the CVE posed a risk of safety to children.
It was further submitted that, notwithstanding the error of law, the Court may find the appeal futile if it came to the view that the Tribunal had, in considering the factors under s 30(1), in fact, traversed the factors required to be considered under s 30(1A) in such a way that the Court could be satisfied that there would be, at the end of the day, no different outcome if the matters under s 30(1A) were properly taken into account. Reference was made, in that respect to the Guardian's reliance upon the defendant's sudden outburst of impulsive, and indiscriminate behaviour and the consideration of that issue at [79]-[81] of the Tribunal's decision.
The Guardian had submitted, before the Tribunal, that the defendant had the propensity to engage in sudden outbursts of impulsive and indiscriminate violence and, accordingly, the Tribunal should find that, pursuant to s 30(1A)(a), no reasonable person would allow his or her child to be in his direct unsupervised contact. That contention was strenuously resisted by the defendant.
A further issue as to the "public interest" was raised by the Guardian under s 30(1A)(b). This contention was also disputed by the defendant.
[6]
Consideration
For the purposes of determining the appeal reference should be made to the following provisions of the Act:
1. By s 18(2), the Act provides that the Guardian, and thus also the Tribunal, must grant a clearance unless satisfied that CVE "poses a risk to the safety of children".
2. By s 30(1), the Act provides that the Tribunal "must consider" the factors there listed.
3. By s 30(1A), the Act provides as follows:
The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b) it is in the public interest to make the order.
It was properly conceded in this appeal that the Tribunal had not expressly addressed the competing contentions of the parties below as to the proper application of s 30(1A) of the Act to the facts and circumstances of the case before the Tribunal. It was also correctly accepted that the Tribunal had not expressed in its decision that it was or was not satisfied of the matters referred to in s 30(1A).
It was implicit in that concurrence that the broad statement by the Tribunal (at [70]) that it had "carefully considered all the evidence and the submissions given and filed by the parties even if they are not specifically referred to in their reasons" was not sufficient to overcome that deficit. That position, such as it is, must be correct as nothing in that statement by the Tribunal advised that it had resolved the differing contentions of the parties as to s 30(1A), let alone how it had done so.
Given the limited submissions received by the Court as to nature and scope of s 30(1A), this it is not the occasion for a more detailed examination of the operation that provision. It is sufficient to observe:
1. The Tribunal may not make an order having the effect of enabling a person to work with children unless it has reached the requisite satisfaction as to the matters referred to in sub-s (1A)(a) and (b). The state of satisfaction is a prerequisite to the exercise of the power.
2. The notion of being "satisfied" required the Tribunal, at minimum, to "[make] up its mind", that is come to a conclusion on the evidence: see Blyth v Blyth [1966] 1 All ER 524 at 541 (per Lord Pearson) (see also Belcar Pty Ltd v Premier Automotive Group Australia Pty Ltd (2007) 249 LSJS 403; [2007] SASC 240 at [7] (Burley J) and Tural v Potter; BAH v Magistrates' Court of Victoria (2000) 110 A Crim R 475; [2000] VSC 80 at [80] (Eames J)).
3. The state of mind that is to be attained must be directed to the matters in s 30(1A)(a) and (b).
It is clear that the decision below the Tribunal did none of those things. There was no expression as to the Tribunal's satisfaction as to the matters referred to in s 30(1A)(a) and (b). There was, therefore, an error of law. Whilst I do not rule on the question, it may well be concluded that there was, therefore, no power to make orders exacting the defendant to work with children.
I do not consider the discussion by the Tribunal as to the defendant's significant criminal history, even traversing, as it did, the physical assaults or impulsive violence engaged by the applicant discharged the statutory duty falling upon the Tribunal under s 30(1A). Nor do I consider the discussion by the Tribunal at [81] of the decision, as to whether the applicant proved a real and appreciable risk to children in the context of a history of physical violence in the context of alcohol and/or interpersonal disputes, satisfied the requirements of s 30(1A); even if some of the factual circumstances, taken into account, in those respects, overlapped with those which may be considered under s 30(1A).
That is so because those aspects of the decision below do not specifically address the matters to which the legislation directs attention in s 30(1A)(a) and (b). That provision required particular attention to be given, broadly speaking, to whether a proposed order would be contrary to the public interest (sub-s (1A)(b)) or offend common standards, as defined in sub-s (1A)(a).
The Court confirms the orders made on 15 September 2017.
[7]
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Decision last updated: 04 October 2017