The DES: corruption, natural justice and getting a 'fair go'
Earlier this week, the DES Director for Southern Wildlife, Mr Geoff Lundie-Jenkins, advised that a comprehensive internal review of our complaint had been undertaken and it was decided that they had managed our matter appropriately and in accordance with the relevant legislation and policies.
The letter written by Mr Lundie-Jenkins stated that, if unsatisfied with their decision, we were able to raise our matter with the Queensland Ombudsman. Fantastic! But wait a minute?!? There seemed to be something missing from this letter: we were not advised of our legal right to apply to QCAT for an external review of the decision. I immediately called QCAT to enquire about this and an officer advised that in order for the matter to be considered by QCAT, the letter provided by the DES must specifically state that option.
There are two pieces of relevant legislation here:
1. Nature Conservation (Administration) Regulation 2017 (Division 3), which states “a person who is given, or is entitled to be given, a notice about a decision may apply, as provided under the QCAT Act, to QCAT for an external review of the decision”.
2. Queensland Civil and Administrative Tribunal Act 2009, S.157(2), which states "the notice (in this instance, the one provided by the DES) must state (c) the person has a right to have the decision reviewed by the tribunal.
Stay with me here because here is where it gets REALLY interesting...
At this point, I contacted Mr Lundie-Jenkins to bring the above to his attention and this was his response...
"your matter has been dealt with as a complaint and not as a formal internal review as prescribed in Section 166.. on the basis that it does not involve a 'reviewable decision' as defined under the Nature Conservation (Administration) Regulation 2017"
What does that mean??? Good question!!
What it boils down to is this: because my wife and I surrendered Annie to the DES (remember, this was under extreme duress and with the looming threat of significant fines and prosecution) the DES approached this as a complaint, not an internal review. And because it was not considered or approached as an internal review, we do not have the ability or opportunity to have our matter heard by QCAT.
Allow me provide you an analogy here...
Let's say the police 'bring in' someone suspected of committing a crime for questioning. They put a document in front of that person and demand for it to be signed. Under extreme duress and without explaining to that person what their rights are or what signing that document will mean for their ability to have their matter challenged or get a fair hearing, the accused signs the document. If brought before a judge or magistrate, do you think that signature would be valid? I would hesitate to say 'no' here. This is essentially what has happened in our situation and the DES really want this to go away and are trying everything possible in their 'bag of tricks', which includes the repeated assertion that my wife and I voluntarily surrendered Annie.
Procedural Fairness and Natural Justice
The Queensland Ombudsman’s website says "procedural fairness or natural justice is about providing a person who might be adversely affected by a decision a ‘fair hearing’. I'm not quite sure how what I've outlined above equates to a fair hearing or even the opportunity to be afforded a fair hearing. That's probably because it doesn't.
Hooray for the accused!! They get to be the judge, jury and executioner in their own matter. How great is that!?
So, that's the lay of the land here in Queensland folks. The person or government department accused of wrong-doing in Queensland get to decide who and who doesn't take them to QCAT. If you think that sounds 'off' or corrupt in any way, shape or form, you're 100% correct. And... just for a minute, try to imagine a society where people or organisations accused of breaching legislation or committing crimes have the final say in terms of whether or not their matter can be heard by a court or tribunal and can essentially walk free into the 'sunset' without having their matter go to court. Is that the kind of society you want to live in? I didn't think so.