APT v Department of Justice - Blue Card Services [2025] QCAT 383

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

DVL v Director-General, Department of Justice and Attorney-General [2023] QCATA 52

Johnston v Carroll [2024] QSC 2

Oliver v Queensland Racing Integrity Commission [2017] QCAT 50

C Davis Legal Officer Department of Justice - Blue Card Services (in person)

• [1] The Applicant ('Applicant') was issued with a working with children clearance, also referred to as a blue card, in December 2013 and again in October 2014 and October 2020. A blue card is issued under the Working with Children (Risk Management and Screening) Act 2000 (Qld) ('WWC Act').[1]
• [2] In March 2021 the Applicant applied for the issue to her of another blue card. The Respondent considered this application. As part of the consideration process the Respondent sought and received information about the Applicant including police information and correspondence from the Department of Children, Youth Justice and Multicultural Affairs. This information was forwarded to the Applicant[2] with an invitation to make submissions about the information. The Applicant availed herself of that opportunity. After considering the Applicant's submissions the Respondent issued her with a negative notice under the WWC Act ('Negative Notice Decision').
• [3] The Applicant was notified of the Negative Notice Decision by a letter dated 5 May 2023 and the basis for it was set out in a document entitled the 'Reasons' document also dated 5 May 2023.[3] In summary, the decision maker, after reviewing the available material, concluded that the Applicant's case was 'exceptional' and for her to hold a blue card would not be in the best interests of children and young people.
• [4] The Applicant was dissatisfied by this decision. By an application received by the Tribunal on 2 June 2023, the Applicant sought a review of the Negative Notice Decision.
• [5] The principal legislative enactments relevant to a review, by this Tribunal, of the Negative Notice Decision are the WWC Act - under which a blue card is issued and under which the Negative Notice Decision was made - and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') which governs the Tribunal's exercise of its review jurisdiction. Also relevant to the Tribunal's consideration is the Human Rights Act 2019 (Qld) ('HRA').
• [6] Before evaluating the evidence before the Tribunal at the hearing of this matter, some context is appropriate beyond the bare identification of the principal statutes that govern this proceeding. This context is supplied by firstly identifying the fundamental issue that this Tribunal must address. Secondly, by setting out, in detail, the framework that governs the Tribunal in this review and thirdly by identifying the evidence before the Tribunal that must be considered in coming to a decision on the Applicant's application.

• [7] As part of the assessment process the Applicant was informed by the Respondent that she must be issued with a blue card 'unless we believe that your case is an exceptional case in which it would not be in the best interests of children to give' her a blue card.[4] In short, whether the Applicant's case is 'exceptional' was the issue that was before the primary decision maker. As this is a review application, that issue is also the issue before this Tribunal.
• [8] Although the issue remains the same as the one that was addressed by the primary decision maker, the context is now different. This Tribunal addresses the issue by having regard to the evidence that was presented at the Tribunal hearing. As expanded on below, the evidence before the Tribunal was not the same as the material that was before the decision maker. It was augmented by new material brought before the Tribunal by both parties. Importantly, at the Tribunal hearing, the Applicant had the opportunity to articulate her case and respond to the new material brought before the Tribunal at the instigation of the Respondent.

• [9] The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons who work with children and young people.[5]
• [10] The Negative Notice Decision is a 'chapter 8 reviewable decision' as that phrase is defined in s 353 of the WWC Act.
• [11] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[6] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[7] That is to say, this Tribunal must come to a decision on the evidence before it.
• [12] It is not necessary for the Applicant to establish that the primary decision maker fell into error in either the process or the reasoning that gave rise to the decision. Further, there is no presumption that the decision under review was correct.[8]
• [13] In deciding this matter, this Tribunal has all the functions and responsibilities of the primary decision maker. Relevantly, in coming to a decision, this Tribunal is also guided by the principles set out in the WWC Act.
• [14] Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing.[9]
• [15] The WWC Act provided, as a starting point in this matter, that a person in the position of the Applicant should be allowed to hold a blue card unless that person's situation is an 'exceptional case'. An exceptional case is one where the Tribunal is satisfied that it would not be in the best interests of children for the Applicant to be issued with a working with children clearance.[10]
• [16] As to what constitutes an exceptional case is not defined in the WWC Act. It is a question of fact and degree having regard to the intent and purpose of the legislation.
• [17] Further, it is a term of common use in everyday language and the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.[11]
• [18] In determining whether the Applicant's circumstances constitute an exceptional case, an appropriate framework for consideration of the material before the Tribunal is to consider:

(a) The matters that the WWC Act mandates must be considered.[12]

(b) Any other matters that are relevant to the decision.[13]

This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [14] above, and any human rights relevant to the Tribunal's determination.

• [19] With respect to human rights relevant to the decision, the Tribunal is a 'public entity' and is therefore also required to comply with s 58 of the HRA. Subject to some presently irrelevant exceptions, that section imposes two obligations on the Tribunal. They are the substantive obligation[14] not to decide this application in a way that is incompatible with human rights and the procedural obligation[15] to consider relevant human rights in making a decision.[16]
• [20] The human rights that are relevant include the Applicant's right to privacy and reputation[17] and the right to a fair hearing.[18] The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to 'the protection that is needed by the child, and is in the child's best interests, because of being a child.'[19]

• [21] As mentioned, a determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[20] In this regard it is important to emphasise that a determination under s 221(2) of the WWC Act is an evaluative exercise rather than a fact-finding exercise.[21]
• [22] In evaluating the evidence, the question of what is in the best interests of children 'involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children'.[22]
• [23] Whilst there can never be absolute certainty as to future events, speculation as to what might happen is, under the WWC Act, conditioned by having regard to past events. So, by mandating consideration of 'relevant information',[23] the WWC Act makes clear that past events provide guidance for speculating as to what might happen and potential future risks to children.
• [24] Further, in assessing the evidence before the Tribunal "it is not productive to approach the question of whether the Tribunal is 'satisfied' from the viewpoint of an onus or standard of proof".[24]
• [25] With this as background, what evidence was before the Tribunal? The Respondent put before the Tribunal two bundles of documents. Firstly, documents that were related to the Negative Notice Decision.[25] This bundle included the 'Reasons' document, a National Police Check Results Report, a domestic violence ('DV') History Report,[26] court briefs prepared by the Queensland Police Service and transcripts of proceedings before the Magistrates Court that involved the Applicant in May 2009 and August 2023.
• [26] The second bundle of documents that were put into evidence by the Respondent[27] consisted of documents that were produced to the Tribunal as a result of three Notices to Produce ('NTPs') issued by the Tribunal in November 2023.[28] The documents produced pursuant to the NTPs ('NTP documents') consisted of material supplied to the Tribunal by the Registrars of the Holland Park and Cleveland Magistrates Court and the Director General, Department of Child Safety, Seniors and Disability Services ('Child Safety').
• [27] The NTP documents are extensive - they run to 863 pages. The documents produced by Child Safety include notifications and child concern reports, file notes made by Child Safety staff records of interview and risk assessment reports. The documents that were provided by the Magistrates Courts in response to the NTPs are documents in relation to DV applications. The NTP documents were not before the original decision maker at the time of the Negative Notice Decision.
• [28] The documents that the Applicant put before the Tribunal consisted of three documents produced by medical practitioners.[29] Two of these documents,[30] are described as 'Final Report' and are dated July 2023 and January 2024. They are under the hand of a Neurologist. The Applicant did not call this person as a witness.
• [29] The other document put into evidence by the Applicant is an unsigned document by a general practitioner headed 'To whom it May Concern'. Although it touches on medical matters, it is essentially a character reference. This document is dated in May 2023. It seems to have been prepared for the purposes of this application - it refers on page two to 'denying her a blue card'. Again, this person was not called to give evidence before the Tribunal.
• [30] A statutory declaration (or statement) by the Applicant's stepfather[31] was also put into evidence by the Applicant. This gentleman also gave oral evidence at the hearing.
• [31] The only other person who gave oral evidence at the hearing was the Applicant.

• [32] Many of the matters that 'must'[32] be considered in evaluating the issue of whether the Applicant's case is exceptional are apparent from two documents - the National Police Check Results Report[33] and the Applicant's DV History Report.[34]
• [33] As to the Applicant's criminal history, the National Police Check Results Report shows that she was charged with two drug offences heard in the Brisbane Magistrates Court in 1997. The Applicant was convicted and fined a total of $500 in respect of these offences. The Magistrate ordered that no conviction be recorded. In an evaluation of whether the Applicant's case is exceptional, I place little weight on these convictions given their age and the lack of a recorded conviction.
• [34] Before setting out the Applicant's other charges and convictions, some context is necessary. The Applicant's 2009 and 2023 charges and convictions, referred to below, have their origins in an intimate personal relationship between the Applicant and a person that she referred to, in her evidence, as 'the father of my child'. That relationship, at least from the point of view of the father of the Applicant's child, commenced in October 2005 and terminated in July 2007. [35] At this temporal distance the precise dates are not that important. What is relevant for present purposes is that the relationship ended quite some time ago but not before it resulted in the birth of a child in or about September 2006.
• [35] The negative consequences of this relationship have reverberated down the years since it ended. Not only have there have been multiple DV orders but also court proceedings over custody and parenting matters regarding the child of the relationship.[36]
• [36] The Applicant's DV History Report[37] printed in July 2023, runs to some six pages. The first DV order recorded was in 2007, the most recent DV protection order in evidence is a protection order made on 19 June 2019 in which the Applicant was the respondent.[38]
• [37] This DV information provides the background to the charges against the Applicant that I must have regard to in deciding this matter. In May 2009 the Applicant appeared in the Holland Park Magistrates Court charged with breach of a DV order. The Applicant pleaded guilty[39] but no conviction was recorded, and she was discharged absolutely on all charges. No evidence was offered by the prosecution in respect of several other charges. In isolation this matter alone would not, in my view, render the Applicant's case exceptional. However, it needs to be considered in the context of other information that was in evidence.
• [38] In 2022 and 2023 the Applicant was again before the Magistrates Court. A charge against the Applicant of contravention of a DV order in 2022 and a plea of not guilty resulted in a trial in 2023 in the Ipswich Magistrates Court. This charge had its genesis in the DV order of 19 June 2019 which had an expiry date of June 2024. The date of the conduct that gave rise to the charge was 8 June 2022. Significantly, the Court Brief[40] states that two days before, on 6 June 2022, an order was made in the Federal Circuit and Family Court, which, amongst other orders, said 'The father (aggrieved) shall have sole parental responsibility for the child [redacted] born on 19 September 2006.'
• [39] At the trial the Applicant was found guilty of the charge of contravening the DV protection order of 19 June 2019. In sentencing the Magistrate noted the previous convictions for the DV offences but considered the conviction on the charge before the court was sufficient punishment and ordered no further punishment.[41] No conviction was recorded.
• [40] None of the charges and convictions set out above were for serious or disqualifying offences.
• [41] Many of the matters that are required to be considered under ss 226 and 228 of the WWC Act, such as when the offences occurred, the nature of the offences and the penalties imposed, and, with respect to the DV information, some circumstances of the DV orders, are set out above. What can be said is that the criminal charges, convictions, and DV information do collectively raise significant concerns regarding the Applicant's conduct.
• [42] Does the Applicant's evidence assuage these concerns?
• [43] The Applicant's evidence, taken as a whole, raises several matters of concern. The first of these concerns is the conduct of the Applicant at the hearing. In her oral evidence the Applicant was both argumentative and querulous. Many of the answers that she gave to questions were nonresponsive and combative.
• [44] Whilst it is no doubt the case that giving oral evidence can be a stressful event it is of note the Applicant's demeanour, in her oral evidence, was strikingly similar to conduct described in the Queensland Police Service ('QPS') court brief compiled in 2022 for the charge of contravention of a DV order.[42] Namely that on a telephone call with an officer of the QPS the Applicant 'became irate and argumentative on the phone, speaking over the officer while speaking about family law court and other past matters.'
• [45] The Applicant's conduct in giving oral evidence gave support to the proposition that she reacts badly to stressful events. It can be observed that interaction with children will often involve stressful events which is a matter that is relevant to the assessment of the Applicant.
• [46] The Applicant's pugnacious conduct was also reflected in her post hearing written submissions. These submissions mainly consisted of handwritten annotations to the Respondent's post hearing submissions. For example, in response to what I considered was a factually based submission by the Respondent that the Applicant was unwilling to answer questions about her support network or the contact that she had with her son, she inscribed the words 'None of your business.'
• [47] The Applicant's written post hearing submissions also contained several digressive statements such as 'I don't open my legs to get places but you allow such people amongst children daily' and 'Overall Brisbane is a tiny spec of fly shit on the world stage & none of this will matter in the bigger picture'.
• [48] In the Applicant's handwritten conclusion in her post hearing submissions - in an apparent response to the Respondent's submission that the correct and preferrable decision of the Tribunal should be to confirm the decision of the original decision maker - she wrote the following:

You too, will be judged. I'm meant to be grateful that you have consumed more of my life for your "professional" entertainment. Says much more about your psychiatric dispossessions than mine. I'm immune to all of it - your "fanciful" fantasies. How utterly pathetic all of you associated people are. You will NEVER be forgiven for using my son in this way.

• [49] These responses, which are in line with the Applicant's failure in oral evidence to respond to questions in a composed and measured manner, reinforce my concern that the Applicant failed to engage with the review process in a way that assists in achieving the purpose of the review.
• [50] The sole witness who gave oral character evidence in relation to the Applicant was her stepfather. Although I accept that this person was a credible witness his knowledge of some relevant matters was slight, and it is some years since he has had frequent contact with the Applicant.
• [51] A consequence of this is that if, indeed, the Applicant now has a support network or protective factors that could assist her in responding to stressful events, these matters could not be explored at the hearing.
• [52] In the absence of evidence that goes to these very relevant matters, it is difficult to come to any conclusion other than that the Applicant's case is exceptional.
• [53] I am reinforced in this view by the medical evidence that the Applicant put before the Tribunal. Neither the Neurologist who authored two reports[43] nor the general practitioner who provided an unsigned reference gave oral evidence. They were therefore not able to provide information about the Applicant's situation at the time of the hearing. Nor were they able to address relevant matters that could have been fruitfully explored in oral evidence.
• [54] As an example, the Neurologist's July 2023 report stated that the Applicant 'has suffered from dissociative events for many years' and 'has experienced episodes of transient abnormal sensation and visions with periods of blanking out and absences.' These statements, on their face, raise matters of concern when it comes to caring for children. Oral evidence, by a medical expert, may have assuaged those concerns. There was no such evidence.
• [55] As to the unsigned reference of the general practitioner,[44] it contained some extraordinary contentions that seem to go well beyond the doctor's knowledge. Tendentious contentions such as 'All of (the Applicant's) alleged criminal history has resulted in Qld from an ex system worker who is manipulated by the social hierarchy and who knows how to play the system with associated vindictive parties ...' and 'The allegations against (the Applicant) are fabricated and untrue.' Without being tested under oath I can afford no weight at all to this reference.
• [56] The reference to an 'ex system worker who is manipulated by the social hierarchy' was a concept that echoed some of the Applicant's answers to questions by the Respondent's representative.
• [57] The phrases 'system worker', 'systemic abuse' and 'defamation' or variations thereof were liberally employed by the Applicant in her evidence as complete responses to questions to which she took exception. Those phrases also made their way into the Applicant's written final submissions.[45]
• [58] An unwillingness by the Applicant to engage in any meaningful way with many relevant questions asked of her deprived the Tribunal of the ability to properly assess her insight into her past conduct and any protective factors that she now may have. The concerns raised by the Applicant's criminal charges, convictions, DV information and other conduct of concern raised by the material was not displaced by sufficient evidence.
• [59] For the reasons set out above, I confirm the decision of the Respondent.
• [60] In coming to this decision, I have had regard to the competing human rights of both the Applicant and of any children. I have concluded that any compromise of the Applicant's human rights will be justified by the factors set out in s 13 of the HRA. In this regard, I consider that any limitation justification is based on the purpose of the WWC Act which provides that the welfare and best interests of children are paramount.

• [61] The Tribunal, under section 66 of the QCAT Act, may make an order prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. Having regard to the evidence in this matter, I consider it appropriate to make a non-publication order. To not do so could lead to, amongst other matters, the identification of the Applicant's son. As a result, the names of persons have been de-identified in these reasons.

[1] A reference to specific sections of the WWC Act is a reference to the Act as it stood at the time of the hearing of this application (WWC Act s 625).

[2] Exhibit 1, BCS-78 to 86, BCS-87 to 88 and BCS89-90.

[3] The Reasons document forms part of exhibit 1 (at pages BCS 1-15).

[8] Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11].

[11] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]-[35].

[13] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [42].

[16] Johnston v Carroll [2024] QSC 2, [65]-[77].

[20] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19].

[21] Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [19].

[24] Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [21].

[25] Exhibit 1 (also referred to as the BCS documents).

[28] The NTPs were issued pursuant to s 63 of the QCAT Act.

[36] See, for example, the orders of the Federal Circuit of Australia reproduced at exhibit 2 NTP-64 to 67, NTP-200 to 204 NTP-205 to 206 and NTP-273 to 274.

[39] Exhibit 1 BCS-170 transcript of proceedings.

[41] Exhibit 1 BCS-175 transcript of proceedings.

[43] In July 2023 (exhibit 3) and January 2024 (exhibit 4).

[45] See, for example, the Applicant's handwritten responses to paragraphs 31, 33 and 36 of the Respondent's written submissions where she uses the words or phrases 'systemic abuse', 'system workers', 'police and systemic workers' and 'the system'.