JNP v Director-General, Department of Justice [2025] QCAT 370

Human Rights Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

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

Chief Executive Officer, Department for Child Protection v Scott (No 2) [2008] WASCA 171

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 v CMH [2021] QCATA 6

DVL v Director-General, Department Of Justice [2023] QCATA 52

Johnston v Carroll [2024] QSC 2

Oliver v Queensland Racing Integrity Commission [2017] QCAT 50

P McNeil Legal Officer Department of Justice (by phone)

• [1] The Applicant ('JNP' or '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').
• [2] In May 2021 the Respondent ('Respondent')[1] was notified by the Queensland Police Service that JNP's police information had changed. Namely, that JNP been charged with two counts of 'contravention of a police protection notice.'
• [3] The May notification was closely followed, in July 2021, by a further notification from the Queensland Police that JNP's police information had again changed. This time the notification was that JNP had been charged with one count of 'contravention of domestic violence order.'
• [4] Upon receipt of these notifications the Respondent proposed to cancel JNP's blue card and issue him with a negative notice. As a result, the Respondent invited JNP to make submissions as to whether his case was exceptional.
• [5] After considering JNP's submissions the Respondent, in August 2023, cancelled JNP's blue card and issued him with a negative notice under the WWC Act ('Negative Notice Decision').
• [6] JNP was notified of the Negative Notice Decision and the basis for it in a document entitled the 'Reasons' document dated 3 August 2023.[2] In summary, the decision maker, after reviewing the available material, concluded that JNP's case was 'exceptional' and for him to continue to hold a blue card would not be in the best interests of children and young people.
• [7] In early September 2023 JNP sought a review of the Negative Notice Decision by this Tribunal. In his application to review the Negative Notice Decision,[3] JNP articulated three principal reasons why he considered the Negative Notice Decision was wrong. In summary, JNP firstly contended there was no proper basis on which the decision maker could be satisfied that it was appropriate to issue him with a negative notice. Secondly, he contended that the decision maker applied the wrong test and thirdly, JNP questioned whether the decision maker was the person who had the statutory power to cancel his blue card.
• [8] 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').
• [9] 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 JNP's application.

• [10] The invitation by the decision maker to JNP to make submissions about whether his case was 'exceptional' highlights the ultimate issue that was before the decision maker, and which is now before this Tribunal. That issue, phrased in the form of a question, is as follows - is JNP's case exceptional so that it would not be in the best interests of children and young people for him to hold a blue card?
• [11] Although the ultimate issue remains the same as the one that was addressed by the 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.

• [12] 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.[4]
• [13] The Negative Notice Decision is a 'chapter 8 reviewable decision' as that phrase is defined in s 353 of the WWC Act.
• [14] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.[5] In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.[6] That is to say, this Tribunal must come to a decision on the evidence before it.
• [15] It is not necessary for JNP to establish that the 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.[7]
• [16] In deciding this matter, this Tribunal has all the functions and responsibilities of the Decision Maker. Relevantly, in coming to a decision, this Tribunal is also guided by the principles set out in the WWC Act.
• [17] 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.[8]
• [18] The WWC Act provides, as a starting point in this matter, that a person in the position of JNP, 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.[9]
• [19] The term exceptional case is not defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation.
• [20] 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.[10]
• [21] In determining whether JNP'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.[11]

(b) Any other matters that are relevant to the decision.[12]

This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [17] above, and any human rights relevant to the Tribunal's determination.

• [22] 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[13] not to decide this application in a way that is incompatible with human rights and the procedural obligation[14] to consider relevant human rights in making a decision.[15]
• [23] The human rights that are relevant include JNP's right to privacy and reputation[16] and the right to a fair hearing.[17] 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.'[18]

• [24] As mentioned, a determination of whether an exceptional case exists can only be made after evaluating all the available evidence.[19] 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.[20]
• [25] In evaluating the evidence, the 'ultimate 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'.[21]
• [26] 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',[22] the WWC Act makes clear that past events provide guidance for speculating as to what might happen and potential future risks to children.
• [27] 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".[23]
• [28] 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.[24] This bundle included the document entitled the 'Reasons' document.
• [29] Also in this bundle were a National Police Check Results Report which set out court outcomes in respect of charges faced by JNP, information from the Victorian Police, court briefs prepared by the Queensland Police Service, a detailed summary of oral submissions made by JNP during the review process that gave rise to the Negative Notice Decision, a summary of domestic violence ('DV') Orders and Conditions made in relation to JNP and several character references supplied by JNP.
• [30] The second bundle of documents that were put into evidence by the Respondent[25] consisted of documents that were produced to the Tribunal as a result of two Notices to Produce ('NTPs') issued by the Tribunal in February 2024.[26] The documents produced pursuant to the NTPs ('NTP documents') consisted of material supplied to the Tribunal by the Registrar of the Holland Park Magistrates Court and the Director General of the Department of Transport and Main Roads
• [31] The NTP documents only run to six pages and consist of JNP's traffic history and copies of a DV Temporary Protection Order made by the Holland Park Magistrates Court in May 2021 and a DV Protection Order made by the same court in June 2021. The NTP documents were not before the Decision Maker at the time of the Negative Notice Decision.
• [32] JNP gave oral evidence in support of his application. No other witnesses were called by JNP nor were any statements of other witnesses or experts reports filed.[27] Thus, JNP's evidence did not include a health report prepared for the hearing of this application.[28] As a result, the Tribunal did not have the benefit of an independent psychological or psychiatric assessment of JNP.
• [33] However, although JNP did not file a statement as required by Tribunal Directions made on 28 November 2023, he did file with his application to the Tribunal[29] a document headed 'Why do you think the decision is wrong'. This document covers a range of matters that could be expected to be addressed in a statement. Furthermore, as JNP's application is signed by him under the words 'the information in this application is true to the best of my knowledge' I consider that it is appropriate that I consider this document as being in the nature of a statement and have considered it in conjunction with his oral evidence.
• [34] From the evidence before the Tribunal, it is apparent that a number of matters, relevant to addressing whether JNP's case is exceptional,[30] are either agreed between the parties or are apparent from uncontested evidence.

Agreed or uncontested matters arising from the evidence

• [35] JNP's National Police Check Results Report[31] contains charges and convictions in two phases. Firstly, in the period 2006-08 when it appears that JNP was resident in Victoria. In April 2006 JNP faced the Melbourne Magistrates Court on a charge of 'wilfully damage property'. The recorded result is noted as 'without conviction, fined $200 pay compensation $200'. I take this to mean that the charge was proved, pecuniary penalties were imposed but no conviction was recorded. Just over a year later in April 2007 JNP was again before the Melbourne Magistrates Court on two charges. The first of these was a charge of 'intentionally threaten serious injury'. In respect of this charge the result is recorded as: 'Without conviction, adjourned to 28/04/2008. To pay $200.00 to the court fund.' The National Police Check Results Report discloses that on adjourned date this charge was discharged as a result of JNP's compliance with the undertaking.
• [36] The second phase of JNP's charges and convictions were much more recent - in 2021. The charges were under Queensland legislation - the Domestic and Family Violence Protection Act 2012 (Qld).
• [37] In August 2021 JNP faced the Holland Park Magistrates Court on two charges of 'contravention of a police protection notice'. The Court Brief prepared by the Queensland Police Service[32] records the dates of these offences as being in May 2021. JNP pleaded guilty to these charges. In his sentencing remarks the Magistrate viewed the two DV offences as a continuing course of conduct that showed 'a very self-indulgent and wilful disregard of an order.' Nonetheless, the Magistrate regarded the offences as at the less serious end of the offending range of behaviours and considered that a fine of $600 was sufficient and ordered that no criminal conviction be recorded.[33]
• [38] In October 2021, about two months later, JNP was back before the Court. On this occasion it was the Brisbane Magistrates Court. Once again it was a DV related offence. The charges were 'contravention of a domestic violence order.' The Queensland Police Service Court Brief[34] states that the offence date was in July 2021. JNP pleaded guilty. In sentencing remarks,[35] the Deputy Chief Magistrate noted that this charge related to contact by email with an aggrieved under a DV Protection Order and observed that there were no latent or overt threats.
• [39] In addition to the above charges and convictions, which are required to be considered by virtue of s 226 of the WWC Act, there is further DV information as that phrase is used in s 228. The NTP documents[36] reveal that JNP was the respondent to a DV Temporary Protection Order made in May 2021 and a subsequent DV Protection Order made in June 2021. This latter order, the breach of which gave rise to the October 2021 conviction mentioned above, continues in force until June 2026 - unless otherwise ordered.
• [40] Other matters that are either agreed between the parties or are apparent from uncontested evidence are that JNP has an extensive record of traffic infringements. The Department of Transport and Main Roads certificate[37] discloses a 2021 public nuisance - disorderly behaviour offence. In addition, for the period from August 2007 to February 2023 there are some 21 infringements including multiple speeding, and failure to stop at red-light infringements together with two 'drive while relevant drug is present' infringements.[38]
• [41] Prior to an evaluation of the evidence before the Tribunal two matters raised by JNP in his application need to be addressed.
• [42] The first of those matters is the contention that the Decision Maker applied a test relevant to deciding whether to grant a working with children authority rather than the test for deciding whether to cancel a working with children authority. This contention is misconceived.
• [43] The WWC Act provides[39] that the relevant test to be applied by the Decision Maker in deciding whether to cancel a person's working with children authority and issue a negative notice,[40] is that the matter must be decided as if it were a decision about a working with children check application. This means that the WWC Act part 4, division 9 applies. That is the process that the decision maker undertook. It is also the process which must be adopted by this Tribunal in deciding JNP's application.
• [44] The second contention is that the Decision Maker was not the chief executive - the person that JNP contends had the power to make the decision to cancel a blue card under the WWC Act. JNP did not press this contention in the hearing. However, for the sake of completeness it is a contention that fails to take account of the power of delegation given to the chief executive.[41] The Respondent submitted, and I accept, that the Decision Maker had a delegation from the chief executive to exercise the functions of the chief executive under the WWC Act.

• [45] Many of the matters that I 'must'[42] consider in evaluating the ultimate issue - whether JNP's case is exceptional - are not in issue. For example, JNP's convictions and charges and DV information are set out above[43] as are when the offences were committed, the nature of the offences and the penalties imposed.
• [46] The evaluative exercise is to consider the information that must be considered and anything else reasonably relevant to an assessment of JNP's suitability to hold a blue card. In this evaluation the relevance of this information to employment in or the carrying on of a business that involves or may involve children must be kept in mind.
• [47] At the conclusion of the evidence JNP's position remained that his case was not exceptional. In support of this position JNP, amongst other matters, pointed to his academic attainments in the mental health and community services field, his work history in mental health and disability services, that the Victorian offending in 2006-08 was a long time ago and that he now undertakes a holistic self-care regime. Further, JNP's oral evidence was that he has ceased using cannabis.
• [48] JNP also contended that, when properly examined, the more recent (July 2021) offending and related DV information was the result of a 'technical error' that occurred whilst he was setting up a new computer. Further, in respect of the earlier (May 2021) breach of the Police Protection Notice ('PPN'), JNP recognises that it was wrong of him to attempt to contact the aggrieved under the PPN but that he was upset when his relationship with the aggrieved, a former intimate partner, ended suddenly. To this I will add the observation of the Magistrate when dealing with the charge in August 2021 that there was no 'act or threat of violence involved'.[44]
• [49] On the other hand, the Respondent contended that the evidence raises questions about JNP's ability to exercise restraint, respond to stressors in a rational and lawful way and engage in appropriate conflict resolution. The Respondent also contended that JNP's responses when giving oral evidence showed that he lacked insight into his conduct and highlighted that a blue card was unconditional and fully transferable.
• [50] Having evaluated the evidence in this matter, I have concluded that JNP's case is exceptional. This conclusion is based on several factors.
• [51] Of primary importance in my evaluation are the DV related charges and convictions in 2021. Although there was no actual violence involved, I endorse the comments of the Deputy Chief Magistrate[45] that 'Domestic violence is a public concern, and it has ramifications that is often wider than those who perpetrate the offences understand.'
• [52] The temporal proximity of JNP's three, relatively recent, offences together with the existence of an extant DV protection order, weigh heavily in my evaluation of this matter.
• [53] In addition, there are other matters of relevance. Firstly, as mentioned, JNP did not adduce any health reports. Thus, there was no independent evaluation by a suitably qualified expert, such as a psychologist or psychiatrist, who may have been able to give evidence into JNP's insight into the triggers that gave rise to his criminal and DV conduct and who may have been able to support JNP's evidence that his self-care regime was bearing fruit. On JNP's evidence alone I was unable to conclude that he is now better equipped to address stressful events in his life than he was in 2021.
• [54] Secondly, although JNP gave evidence of his academic and work achievements there was, again, an absence of independent evidence as to these matters.
• [55] Thirdly, the absence of evidence from independent witnesses left me unable to conclude that JNP had a support network that he could rely on to assist him in times of stress and disappointment.
• [56] The absence of independent evidence in the areas of mental health, academic and employment achievements and support networks was particularly problematic in view of a lack of candour by JNP. This lack of candour is apparent from his dealings with the State of Queensland. On 24 June 2021, JNP filled out a form for the Queensland Disability Worker Screening Unit.[46] In that form, he was asked the question - have you ever been charged or convicted or found guilty of a criminal offence in Australia? JNP answered that question in the negative. The difficulty with this answer is that it was not 'true and correct'.[47] The answer failed to mention the charges and convictions in Victoria in 2006-08. When this was put to JNP in the hearing his response was that his omission was an 'oversight.'
• [57] Perhaps of even greater concern is that his answer to the question failed to mention that on 24 May 2021 - only one month before his signing of the Queensland Disability Worker Screening Unit form - JNP had, as recorded in the Queensland Police Service Court Brief, attended at the Carina Police Station, where he was questioned about his contravention of a PPN, and, after a police interview in which he made a full admission, was arrested and transported to the Brisbane City Watch House to be charged.[48] I do not accept that JNP's failure to mention the May 2021 charges in the Disability Worker Screening Unit form can be characterised as an oversight.
• [58] Many circumstances can be envisaged where candour is an essential element in interacting with children and young people. A lack of candour by JNP, when combined with the lack of independent evidence as to matters that address the concerns raised by JNP's charges, convictions and DV information, lead me to the conclusion that JNP's case is exceptional.
• [59] In coming to this decision, I have had regard to the competing human rights of both JNP and of any children. I have concluded that any compromise of JNP'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.

• [60] 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 'aggrieved' under the DV Protection Order which remains in force until June 2026. As a result, the names of persons have been de-identified in these reasons.

[1] A reference to the Respondent is a reference, where necessary, to the Respondent's delegate.

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

[3] JNP's application to the Tribunal is exhibit 3.

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

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

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

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

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

[20] Director-General, Department Of Justice v CMH [2021] QCATA 6, [19].

[23] Director-General, Department Of Justice v CMH [2021] QCATA 6, [21].

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

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

[27] As required by the Tribunal Directions of 28 November 2023.

[28] This was despite a Tribunal direction made on 28 November 2023 requiring JNP to file 'any health reports, including any reports by a psychologist or psychiatrist.'

[30] The WWC Act in ss 226 and 228 mandates that certain matters must be considered in the determination of whether or not there is an exceptional case.

[43] In this context it is not contended that none of the offences that JNP has been charged with are serious of disqualifying offences.

[47] JNP signed under a declaration by him (exhibit 1 at BCS-67) that the answers provided by him on the form were 'true and correct' and that he understood that it was an offence to provide false and misleading information.