BVT v Office of the Children’s Guardian

By summons filed on 10 February 2016, the plaintiff, BVT, appealed on a question of law from the decision of the New South Wales Civil and Administrative Tribunal (the Tribunal) to dismiss his application for an enabling order which would entitle him to work with children. The plaintiff filed an amended summons in Court on 12 February 2016 without objection.

The plaintiff sought orders that the appeal be allowed; that the Tribunal’s decision be set aside; and, either that the plaintiff’s application be granted by this Court (if the unreasonableness ground is upheld); or that it be remitted to the Tribunal for determination according to law.

The grounds of appeal are as follows:

Section 3 of the Child Protection (Working with Children) Act 2012 (NSW) (the Child Protection Act) identifies the objects of the Act as follows:

Section 4 of the Child Protection Act provides that:

The Child Protection Act relevantly prohibits a person from engaging in “child-related work” unless the person holds a working with children check clearance (Clearance) of a class applicable to the work: s 8(1). Section 13 of the Child Protection Act makes provision for applications for Clearances to be made to the Children’s Guardian, which is a statutory office held pursuant to an appointment under s 178 of the Children and Young Persons (Care and Protection) Act 1998 (NSW): see the definition in s 5 of the Child Protection Act.

Section 18 of the Child Protection Act prohibits the Children’s Guardian from granting a Clearance to persons who have been convicted of certain offences if committed as adults. Such persons are referred to as “disqualified persons”: s 18(1). Schedule 2 relevantly specifies an offence under s 61K of the Crimes Act 1900 (NSW) (assault with intent to have sexual intercourse) as a disqualifying offence: cl 1(1)(e). Section 28 of the Child Protection Act provides that a person, who has been refused a Clearance because the person is disqualified, may apply to the Tribunal for an “enabling order” declaring that the person is not to be treated as a disqualified person for the purposes of the Child Protection Act in respect of an offence to be specified in the order.

The Children’s Guardian is to be a party to any proceedings for an enabling order and may make submissions in opposition to or in support of the making of the order: s 28(4) of the Child Protection Act. In any such proceedings in the Tribunal it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. If the Tribunal makes an enabling order, it may order the Children’s Guardian to grant the person a Clearance: s 28(6) of the Child Protection Act.

Section 30(1) of the Child Protection Act provides:

Section 31 empowers the Children’s Guardian to obtain relevant documents from government agencies “relevant to an assessment of whether a person poses a risk to the safety of children”.

Division 2 of Sch 3 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides for a right of appeal to this Court in the following terms:

Section 38 of the NCAT Act entitles the Tribunal to determine its own procedure in relation to any matter for which the Act or rules do not make provision. Section 38(2) provides that the Tribunal is not bound by the rules of evidence and may inquire into any matter or inform itself as it thinks fit, subject to the requirements of natural justice. The Tribunal is to act with as little formality as the circumstances of the case permit without regard to technicalities or legal forms: s 38(4).

Section 62 of the NCAT Act obliges the Tribunal to provide written reasons on request. Section 62(3) provides:

Section 65 of the Crimes Act 1900 (NSW), which created the offence of assault with intent to rape, was repealed by Crimes (Sexual Assault) Amendment Act 1981 (NSW), No. 42, Sch 1(7) and replaced by s 61C (sexual assault category 2 – inflicting actual bodily harm, &c., with intent to have sexual intercourse). Clause 4(2) of Sch 1 to the Crimes (Sexual Assault) Amendment Act 1981 provided that a reference to an offence under s 65 of the Crimes Act should be read and construed as a reference to the offence of attempting to commit an offence under, relevantly, s 61C. Section 61C was repealed by the Crimes (Amendment) Act 1989 (NSW), No. 198, Sch 1(3) and replaced by s 61K (assault with intent to have sexual intercourse). Schedule 1(14) of the Crimes (Amendment) Act 1989 provided that a reference to s 61C was to be taken to be a reference to s 61K. Accordingly, the reference to offences under s 61K of the Crimes Act in Sch 2 of the Child Protection Act includes a reference to offences under (the now repealed) s 65 of the Crimes Act.

Following his plea of guilty, the plaintiff was convicted on 8 June 1973 of an offence under s 65 of the Crimes Act of “assault with intent to rape”. The offence was committed on 16 March 1973 when the plaintiff was 18 and the female victim was 19. The plaintiff was sentenced to a term of imprisonment of 5 years with a non-parole period of 18 months.

The plaintiff worked as a labourer and on farms for most of his life until his retirement at the age of 55. He drank alcohol heavily on a daily basis from the age of 15 until about 2005, except for periods spent in prison. He did not seek professional help for alcohol abuse but stopped drinking in 2005 when his general practitioner advised him that it would otherwise affect his life expectancy.

The plaintiff was married aged 21 and divorced aged 26. Subsequently, he met his current partner, D, with whom he has now been in a relationship for 26 years. The plaintiff helped to raise three of D’s children.

D’s granddaughter, C, who was born in 2009, was placed under the parental responsibility of the Minister. The plaintiff and his partner did not find out about C (who was the daughter of D’s son) until she was two years old. They sought to have her placed in their care. As part of their application, in June 2012, Alison Kearns of Assessments Australia conducted an assessment and recommended that they be considered as authorised carers. However, it was decided that C ought remain with her existing carer, with whom she had been living since she was nine months old and to whom she had formed an attachment. From January 2013 the plaintiff and D provided respite care for C, including overnight contact.

On 15 April 2013 Family and Community Services received a report that the plaintiff had hit C. C was interviewed and stated that the plaintiff hit her with a spoon on more than one occasion. However, Family and Community Services did not consider there to have been a sufficiently clear version given by C. There were no apparent injuries and no further action appears to have been taken. The material also contains an allegation that “Nan” (the plaintiff’s partner, D) hit C over the head. D also reported that C told her that her mother hit her with a spoon.

In about October 2014 the plaintiff was informed by Family and Community Services that they would no longer be managing C and that she would be managed by the Tamworth Armidale Aboriginal Children’s Service. The transfer of responsibilities appears to have occurred in December 2014. When the plaintiff went to the usual changeover location to meet C just after Christmas 2014, C was not there. The plaintiff later discovered that the Tamworth Armidale Aboriginal Children’s Service had decided that he would no longer be permitted to have unsupervised contact with C unless he could obtain a Clearance.

The plaintiff applied to the Children’s Guardian for a Clearance under s 13(1) of the Child Protection Act. As he was a disqualified person because he had been convicted in 1973 of assault with intent to rape (an offence specified under Sch 2 of the Child Protection Act), the Children’s Guardian was obliged to refuse the Clearance. Overnight contact between C and D and the plaintiff continued until 1 January 2015, including after the Children’s Guardian refused the plaintiff a Clearance. Since January 2015 then the plaintiff has seen C on a supervised basis.

On 17 April 2015 the plaintiff applied to the Tribunal for an enabling order pursuant to s 28(1) of the Child Protection Act. The Tribunal extended time for such an application to be made.

The Children’s Guardian obtained relevant documents pursuant to s 31 of the Child Protection Act from NSW Corrective Services; Juvenile Justice; NSW Police Sex Crimes Squad; and Family and Community Services which were tendered in the proceedings before the Tribunal. Subsequently it obtained documents from the District Court, which related to the offence the plaintiff had committed in 1973. It also obtained a copy of the plaintiff’s criminal history.

The documents produced by the District Court appear to have come from the “Clerk of the Peace”, which was the predecessor to the Director of Public Prosecutions (DPP), although they were obtained from the District Court, which was the successor to the Court of Quarter Sessions. The documents relate, at least in part, to the committal proceedings in the Court of Petty Sessions (which became the Local Court) of the charge of assault with intent to rape.

Among the documents produced was a record of interview which was signed by the plaintiff and apparently read out to him (it being accepted that he could not read). According to this document, the plaintiff admitted that he was “mad with the grog. I just wanted to frighten her so that I could root her”. He also admitted that he used a pocket knife with the medium blade open to threaten the victim. The documents produced also included statements of the victim, her boyfriend and another witness dated 17 March 1973; and the police facts.

The police facts recorded the following:

A document signed by the Clerk of Petty Sessions recorded that the date of the plaintiff’s committal was 29 March 1973. At the committal hearing, the plaintiff was present but not legally represented. The record, which appears to have been prepared by the police, noted the following:

The plaintiff was committed to the Court of Quarter Sessions on 2 April 1973 for sentence. The record noted that no witnesses were “bound over” (required) to give evidence by reason of the plea of guilty.

Included among the documents was a report from Dr Robbie dated 5 June 1973 who apparently interviewed the plaintiff on 31 May 1973 for the purposes of the sentence. Dr Robbie recorded:

The only record of what occurred in the Court of Quarter Sessions appears to be a file note of the Crown Prosecutor who noted that the accused, represented by R. Blanch, pleaded guilty before Special Magistrate Goldrick at Newtown Court of Petty Sessions on 29 March 1973 and “adheres to plea, facts and antecedents given”. The sentence recorded was:

Neither the transcript of the proceedings on sentence, nor the reasons for sentence, was produced to the Children’s Guardian by the District Court. Accordingly it was not possible to determine the facts on the basis of which the plaintiff was sentenced; or the reasons of the sentencing judge.

The plaintiff, in his affidavit in support of his application, deposed that he and his partner, D, were assessed by Family and Community Services in June 2012 as carers for C, P’s step grand-daughter. The assessment, which was annexed to his affidavit, noted the attachment between C and the plaintiff and that she appeared to be secure and safe with the plaintiff and D. The plaintiff disclosed his criminal history to the assessor. The assessor identified six concerns, including clarification of the plaintiff’s criminal record. The assessor made the following recommendation:

The principal basis of the decision for the child, C, to remain with her foster carer was that C had formed an attachment to the foster carer, and that it would not be in her interests to disrupt that attachment.

The plaintiff also relied on a report by Ms Caroline Hare, a forensic psychologist who had interviewed him on 24 August 2015 for the purpose of preparing a report to be tendered before the Tribunal. Ms Hare described his presentation at interview as follows:

Ms Hare recorded that the plaintiff was regularly detained in institutions between the ages of 14 and 27 but completed his last period in custody in March 1981 (when he was 26). She recorded that the plaintiff was unable to work due to his physical health problems but noted that the plaintiff said that he and his partner are financially stable and that his partner manages the finances for both of them. The plaintiff told Ms Hare that he met his current partner about 26 years ago and described a “good level of emotional and physical intimacy” although he had not told her of his past criminality until he was refused a Clearance.

Ms Hare took a history of the plaintiff’s alcohol consumption and noted that he said that he had not had an alcoholic drink for nine years. He described the index offence to Ms Hare in broad terms. He told her that he had been drinking at the Newtown RSL and noticed the victim, whom he found attractive. When she left the RSL, he followed her and grabbed her in the doorway of her home. She screamed and the police arrived. Ms Hare also noted:

Ms Hare conducted an assessment for the plaintiff’s risk of sexual reoffending. She listed the risk factors which she considered would have operated in the past and considered that his employment instability was the only factor which is “definitively present” but noted his report of financial stability. She listed a number of protective factors, including: his healthy sexual interests with an age appropriate woman; his capacity for emotional intimacy and his “enduring relationship with his current partner”; the “absence of antisocial attitudes or behaviours in the last 24 years”; resilient mental health; and sobriety. Ms Hare concluded that the level of dynamic risk of sexual violence was low.

Ms Hare contrasted the plaintiff’s circumstances at the time of the index offence (unhappy, not involved in an intimate relationship, lack of stable support structures, youth, effect of alcohol as disinhibitor) with the present circumstances (stable relationship, level of happiness, maturity, improved stability and contentment. She noted that he had taken an active role in raising three of his stepchildren and concluded that:

Ms Hare said that she was unable to generate any realistic scenario that would genuinely heighten the risk of the plaintiff engaging in sexual offending towards a child in the future. She considered:

At the time Ms Hare prepared her first report she did not have access to the material regarding the index offence (referred to above) and relied only on the history which the plaintiff had given to her. The additional factors, of which she was made aware for the purposes of her second report on 8 December 2015, were that the plaintiff put his hands around the victim’s throat and threatened her with a knife. Ms Hare said:

She expressed her conclusion in the following terms:

In the Tribunal, Mr Harris, who appeared on behalf of the Children’s Guardian, indicated that the Children’s Guardian had been obliged by statute to refuse the Clearance and neither consented to, nor opposed the enabling order but was prepared to act as a contradictor in the proceedings for the purpose of assisting the Tribunal. Mr Harris described the position of the Children’s Guardian as “essentially neutral”. The material referred to above was tendered: namely, the affidavit of the plaintiff and Ms Hare’s reports, on behalf of the plaintiff; and the documents obtained from various public agencies, on behalf of the defendant.

The plaintiff’s affidavit was read before the Tribunal. He was cross-examined by Mr Harris. He admitted that he could not remember much about the offence in 1973 because he was “drunk all the time”. The documents which the Children’s Guardian had obtained from the District Court were put to him and he was asked whether it assisted his recollection, to which he responded “Not really because I was – as I said to you before, I was drunk.” He confirmed that he had given up alcohol in 2005 and that he did not miss it. He denied that he had ever hit C with a spoon and said that if she was disobedient he gave her “time out”.

At the conclusion of the cross-examination, Senior Member Anderson questioned the plaintiff about the documents that had been provided by the District Court. The following exchange took place:

D gave evidence and confirmed that the plaintiff had never hit C. Ms Hare was also called to give evidence and was cross-examined by Mr Harris on behalf of the Children’s Guardian. Mr Harris asked Ms Hare about the plaintiff’s memory in the following exchanges:

After Mr Harris completed his cross-examination of Ms Hare, Senior Member Anderson asked her further questions over eight pages of transcript, which largely covered matters which were additional to those raised by Mr Harris. Senior Member Anderson questioned Ms Hare about Dr Robbie’s report, and in particular the passage set out above about the plaintiff’s apparent lack of concern (“impression of unconcern”). Senior Member Anderson put to Ms Hare that this appeared to be “more of a position consistent with anti-social or narcissistic traits”. Ms Hare, in her answer, said that she interpreted Dr Robbie’s comment “in a different way” (from the interpretation placed on it by Senior Member Anderson). She said in response to what Senior Member Anderson put to her:

Both counsel relied on both oral and written submissions. Ms Andelman made the following submission about the plaintiff’s memory and the personality traits that had been identified by the Tribunal and put to Ms Hare:

Senior Member Anderson put to Ms Andelman the proposition that the plaintiff had narcissistic personality traits. The following exchange ensued:

Mr Harris addressed the Tribunal on behalf of the Children’s Guardian. He referred to the passage of time since the offence occurred in the following terms:

The Tribunal refused the plaintiff’s application for an enabling order and published its reasons on 13 January 2016: BVT v Children’s Guardian [2016] NSWCATAD 12. The Tribunal set out the relevant legislation and principles in a manner not the subject of complaint. It proceeded to address the matters referred to in s 30 of the Child Protection Act.

The Tribunal addressed the circumstances of the offence, and the plaintiff’s evidence relating to the offence in the following terms:

The Tribunal narrated the evidence given by Ms Hare and also referred to the report of Dr Robbie in 1973. At [83] the Tribunal said:

In the final part of the reasons, headed “Consideration and determination”, the Tribunal said, at [90]ff:

As referred to above, the Tribunal considered that the effects of the plaintiff’s plea of guilty were that: first, the police facts were thereby considered to be the proven factual circumstances surrounding the offence ([38] of the reasons); and, secondly, that the other witness statements (that of the victim and her boyfriend) were accepted by the Court and apparently by the plaintiff with the benefit of legal advice ([42] of the reasons).

I accept the plaintiff’s submission that these two findings reflected a misapprehension of the effect of the plaintiff’s plea of guilty. A plea of guilty constitutes an admission of only those facts which are essential to the charge: R v O’Neill [1979] 2 NSWLR 582 at 588. The police facts, as set out above, contained a narrative of the facts on which the prosecution relied, many of which were not essential to the charge. Accordingly, the plaintiff’s plea of guilty to the charge does not amount to an admission as to the facts in the police facts. Nor do the witness statements fall within the purview of the effect of the admission constituted by the plea of guilty. In GAS v The Queen [2004] HCA 22; 217 CLR 198, the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) said at [30]:

The material produced by the District Court and tendered by the Children’s Guardian in the hearing in the Tribunal did not contain any indication either of the findings of the sentencing judge or any statement of agreed facts. In these circumstances, it is not possible to discern the facts that were found or the extent of any agreement as to the facts. All that can be known as to the extent of the plaintiff’s admission from what was produced is that he admitted the elements of the offence of assault with intent to rape.

The defendant in the proceedings before me relied on the plaintiff’s “admission” made in response to the proposition put to him by the Tribunal (extracted above) that he had pleaded guilty on the basis of “what was said in the police material”. I do not consider that, fairly read, the plaintiff’s affirmative response to what was put to him, ought be regarded as an admission, particularly in circumstances where what was put to him was not borne out by the material at all, since there was an obvious gap in the evidence which could not be filled by such an “admission”. I reject the defendant’s submission that: “It is a reasonable, indeed compelling, inference from the documents that the plaintiff was sentenced upon the facts that were handed up.” In my view, the words “adheres to plea, facts and antecedents given” is wholly insufficient to establish that the police facts in the charge sheet were the facts agreed to by the plaintiff and on the basis of which he was to be sentenced.

The Tribunal was not bound by the laws of evidence: s 38 of the NCAT Act. It was therefore entitled to take into account the contents of the documents produced by the District Court, including: the plaintiff’s record of interview; the witness statements; and the police facts, although the witness statements and police facts would not have been admissible as evidence under the Evidence Act 1995 (NSW). If that is what the Tribunal had done in the present case, there could have been no proper grounds for complaint. However, by elevating the matters in these documents to the status of findings by the sentencing judge and admissions made by the plaintiff, the Tribunal misapprehended the legal effect of the plaintiff’s plea.

The legal effect of a plea of guilty is a question of law. The first ground has been made out.

The second ground overlaps with the first and has also been made out. For the reasons given above, there is no evidence of the actual facts which were found by the sentencing judge. It was therefore not possible for the Tribunal to make the comparison which it purported to make between the plaintiff’s evidence in the Tribunal and his admissions in the Court of Quarter Sessions. This matter, too, involved a question of law because of the misapprehension as to the effect of a plea of guilty.

The findings referred to in Ground 3 are in [99]-[100] (see above). In reaching these conclusions the Tribunal found that the plaintiff had not been able to show that he has the capacity to prevent repetition of threats to vulnerable people ([90]); and that there was a lack of evidence of mitigating factors such as examination of reasons for the offending behaviour or the development of insight into his behaviour ([92]).

The Tribunal found that until there was an acknowledgement of the extent of past abusive behaviour and sustained positive effort to address that behaviour, the likelihood of repetition of that behaviour remained significant ([83]). The Tribunal referred to three cases in support of that proposition.

In the first, T v H [1985] NSWSC, Unreported 19/12/1985, a child aged approximately six months was admitted to Hornsby Hospital having apparently been mistreated by his parents and was subsequently placed into foster care. The Court was satisfied that the injuries to the child were the result of ill-treatment by the parents and that the child should remain in foster care, notwithstanding that the parents had sought medical assistance and were otherwise persons of good character. The facts of T v H are so removed from the present circumstances as not to be helpful.

The second case referred to by the Tribunal was SS v Department of Human Services (NSW) [2010] NSWDC 279, a decision in the care jurisdiction. Two boys, JS and J, were removed from the care of SS and CS, the plaintiffs. One was diagnosed with severe brain damage, said by the defendant to have been caused by “shaken baby syndrome”. At [111]-[113], Johnstone DCJ said:

This, too, appears to be far removed from the present case where the plaintiff’s inability to remember the details of the offence was explained by his intoxication. Moreover, the plaintiff in the present case admitted the commission of the offence, as is evident from his plea of guilty. In the present case, there was no relevant, or similar, re-offending.

The third case referred to by the Tribunal, BHY v Children’s Guardian [2015] NSWCATAD 91 was a decision of Senior Member Anderson (who presided in the present case). The applicant, BHY, had not been convicted of any offence. However, there was evidence of several incidents involving boys and young men in which the complainants said that the applicant had engaged in sexual activity, including sexual abuse (in relation to the younger complainants). A diagnosis which included Paedophilia, same sex attraction, non-exclusive type, was made. Senior Member Anderson said at [163]:

Although the wording of [163] of BHY v Children’s Guardian is similar to the wording of [83] in the reasons in the present case (with the addition of BHY v Children’s Guardian), the circumstances are very different. The plaintiff in the present case has acknowledged his wrongdoing by pleading guilty to a serious offence. There has been no repetition of the conduct. His inability to be precise about various aspects of the offence derives from his intoxication at the time, as well as the fact that it occurred 42 years prior to the hearing in the Tribunal.

The plaintiff’s last offence was a high range PCA [exceed prescribed concentration of alcohol] offence in 1990. The offence prior to that was committed in 1980. The plaintiff’s criminal history from 1969 to October 1980 manifested a disordered life with several convictions and periods in custody. At the time of this period of offending the plaintiff drank alcohol regularly to excess and had an alcohol dependency.

The Tribunal’s reasons do not address why the absence of anti-social conduct in the thirty five years since 1980 was insufficient to prove that he is not a risk to children and his conduct is not a risk to children (who may observe it), particularly in circumstances where his uncontroverted evidence was that he had stopped drinking alcohol in 2005.

The Tribunal appears to have been influenced by Dr Robbie’s report of 5 June 1973 in which Dr Robbie considered the possibility that the plaintiff had a severe personality disorder that did not make any finding that he had such a disorder. Ms Hare did not consider the plaintiff to exhibit those personality traits to a sufficient extent to indicate a personality disorder.

At [98] of its reasons the Tribunal referred to the risk ensuing if the unacceptable behaviour were repeated in the presence of children, or was directed to them. The plaintiff argued that the reference to “unacceptable behaviour” must be a reference to the index offence since there was no evidence of the facts of the other offending conduct revealed by the plaintiff’s criminal history. There was no evidence to suggest that children were present when the index offence, or any other offence, was committed.

Whether the reasons of the Tribunal are adequate depends on the circumstances of the individual case: Mifsud v Campbell (1990) 21 NSWLR 725 at 728. Although the Tribunal’s reasons are detailed and address each of the relevant statutory factors, they do not, in my view, explain why the considerable length of time since the index offending; his youth and intoxication at the time; his extended period of non-offending; and his prolonged sobriety, were insufficient to discharge the onus. The cumulative effect of these matters was such as to lead to an inference of successful rehabilitation as well as a distinction between youthful conduct characterised by crime and intemperance, on the one hand, and more recent adult conduct characterised by emotional stability, temperance and a positive contribution to the caring of children (through his assisting in the raising of his partner’s own children and, more recently, her grandchildren), on the other.

The past is likely to be the most reliable guide to the future: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575. In failing to address this matter squarely, the Tribunal did not explain why the pattern of recent decades was insufficient to overcome youthful offending.

This is not to say that the Tribunal was bound to come to a particular result (the grant of an enabling order) by reason of these matters, though they were apparently powerful considerations. However, the Tribunal was, as part of its obligation to give reasons, obliged to explain to the plaintiff why his conduct over the last 35 years, as well as his sobriety over the past ten years, was insufficient to discharge the onus under the Child Protection Act of establishing that he did not pose a risk to the safety of children. This was particularly the case in circumstances where the Children’s Guardian, who was the relevant repository of the public interest sought to be protected by the Child Protection Act, adopted a neutral position in that she neither consented to nor opposed the plaintiff’s application for Clearance. The Children’s Guardian acted as a contradictor solely to provide assistance to the Tribunal. Moreover, the submissions of Mr Harris indicated that the Children’s Guardian considered the plaintiff’s life and conduct in recent decades to be a powerful factor in his favour.

In my view, the Tribunal failed to give sufficient reasons to explain why these matters were not enough to discharge the onus that fell on the plaintiff. Accordingly, its reasons were such as to lead to “a sense of injustice” (Beale v GIO of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA) and promote a “sense of grievance” (Mifsud v Campbell at 728 per Samuels JA).

I am persuaded that ground 3 has been made out.

The plaintiff submitted that the decision to refuse the enabling order was legally unreasonable having regard to the absence of evidence that the plaintiff had ever harmed a child; the absence of evidence of any anti-social behaviour since 1990; and the absence of evidence that any child had witnessed his offending conduct.

The plaintiff relied on the decision of the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 in which the plurality (Hayne, Kiefel and Bell JJ) determined that the legal standard of unreasonableness was not limited to a decision so unreasonable that no reasonable person could have arrived at it, a formulation derived from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 and known as “Wednesbury” unreasonableness. The plurality in Minister for Immigration and Citizenship v Li formulated the question as being whether the statutory power, on its true construction, had been abused. They found that where a decision lacks evident and intelligible justification, the conclusion that the statutory power has been abused can be drawn and the decision set aside on the basis of unreasonableness.

The plaintiff relied on the analogy drawn between the assessment whether a discretion had miscarried and the determination of legal unreasonableness and referred to [75]-[76] in Minister for Immigration and Citizenship v Li, in which Hayne, Kiefel and Bell JJ said:

Although the case for the plaintiff in the Tribunal might be thought to have been a powerful one, the decision whether he ought be granted an enabling order was one which Parliament decided was to be made by the Tribunal and not by this Court: see Attorney-General for the State of New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 37-38. To uphold the unreasonableness ground in the present case would be tantamount to saying that the Tribunal was obliged, in the circumstances of the present case, to make an enabling order in respect of the plaintiff.

The present is a very different case from Minister for Immigration and Citizenship v Li in which the decision said to be unreasonable was the determination of an application for an adjournment, which was, in substance, a procedural decision. In the present case, the merits of the plaintiff’s application for an enabling order are the matters in issue. Moreover, the Tribunal had the benefit of seeing and hearing the plaintiff and Ms Hare give evidence and of questioning both of them about matters of concern to the Tribunal.

I am not satisfied that the plaintiff has established that the decision was legally unreasonable. In so far as it might appear to be so, this may be a product either of the errors I have identified with respect to the first two grounds; or of the inadequacy of the reasons to explain why, notwithstanding the events of recent decades, the plaintiff had not discharged the onus imposed on him.

I am not satisfied that ground 4 has been made out.

For the reasons given above, grounds 1, 2 and 3 have been made out. The Tribunal’s assessment of the plaintiff’s credibility and acknowledgment of guilt of the offence in 1973 appears to have been substantially influenced by the error made which is identified in grounds 1 and 2. Accordingly, the decision must be set aside in order that the plaintiff can have his application for an enabling order determined according to law.

For the reasons set out above, I make the following orders: