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[2020] QCAT 150
respondent. The respondent’s decision was confirmed, publication of the applicant’s and witnesses’ names was prohibited, and the decision was to be delivered to the parties by email.
QCAT reviewed the refusal to give LT a blue card. Her convictions were not serious or disqualifying under the Act, which favoured treating the case as non-exceptional. But the Tribunal assessed the whole record and the evidence about children’s safety, not just the categories of convictions. It found the risk evidence outweighed the protective factors and confirmed the refusal. The Tribunal also ordered that the applicant’s and witnesses’ names not be published.
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2,051 words · generated 01/10/2026
LT applied for a positive notice and blue card under Queensland’s Working with Children (Risk Management and Screening) Act 2000 (Qld). Blue Card Services, acting for the Director-General, refused the application by issuing a negative notice on 19 May 2019. LT sought review in QCAT. The Tribunal described its review task as producing the “correct and preferable decision” under the applicable review legislation ([2]–[3]).
2 cited instruments linked from this judgment.
LT wanted to continue work with Indigenous children. The record before the Tribunal included her convictions and charges, police and child-protection material, her own evidence, and supporting material from people familiar with her work and community role ([5], [14]–[16], [35]–[38]). The Tribunal considered conduct extending from 1993 to December 2018. The history included drug-related matters, weapons offences, domestic violence order matters, anti-social behaviour, and allegations of violence, including allegations involving children ([19]).
The respondent conceded that LT’s convictions did not constitute a “serious offence” under the Act ([9]). That mattered because the statutory scheme, as described in the reasons, presumed that the application was not exceptional in the absence of serious or disqualifying offences. The decision-maker nevertheless had to issue a positive notice unless satisfied that the case was exceptional and that issuing one would not be in children’s best interests ([9], [44]).
The Tribunal found the case exceptional. It confirmed the negative notice and made a non-publication order for the names of LT and witnesses ([45], [55], [62]–[63]). The non-publication order was connected to the risk that identifying LT could also identify children associated with the proceedings ([61]).
QCAT did not treat the matter as punishment for past offending. It said its focus was the possible effect on children if LT received a blue card, and it considered her history, insight, triggers, lifestyle and support network in that context ([43]–[44]). The reasons describe the assessment as a discretionary, individualised weighing of relevant risk and protective factors. The Tribunal said the statutory list was not exhaustive and that it had to consider whether the circumstances disclosed a risk to children ([11], [23]–[25], [47]).
A major concern was the duration and recency of the behaviour. The Tribunal characterised the offending as “persistent, long-term and recent” and said that, in many instances, it appeared related to substance abuse, including cannabis and alcohol ([51]). Although it accepted that LT had not had an association with ongoing illicit drug use, it considered her evidence to minimise her drug use and emphasise cannabis’s medicinal effects. It also considered the New Year’s Eve 2018 conduct, which involved alcohol, police and damage to police property. The Tribunal noted that the offences were not legally classified as serious, but described the matters themselves as serious ([52]).
The domestic violence-related history was also important. The Tribunal accepted that LT had been disadvantaged during the period in question and had taken some steps to protect herself and her biological children. It nevertheless concluded that she had not acted protectively enough to satisfy it about her insight and capacity to respond appropriately in emotionally charged situations ([53]). The reasons therefore show that context was considered, but did not resolve the risk assessment in LT’s favour.
The allegations of violence involving children were treated as relevant evidence, even though they had not resulted in convictions. The Tribunal was concerned about the allegations and held that there was enough evidence before it to take them into account in assessing risk ([50]). It separately stated that it was not satisfied there was sufficient evidence to categorise the assault charges as vexatious and malicious ([54]). This is a finding about what the Tribunal considered in this review, not a criminal finding of guilt on those charges.
The Tribunal also acknowledged substantial protective factors. It recognised LT’s move to her traditional homelands, her Indigenous work, and the people around her who cared for her and whom she cared for ([56]). It nevertheless found that she had not yet developed appropriate insight or adopted sufficient protective mechanisms to ensure children’s safety ([49]). The decisive assessment was that the circumstances, considered together, identified sufficient risk to make this an exceptional case ([55]).
Finally, transferability mattered to the scope of the decision. The Tribunal noted that a blue card could be used across regulated child-related employment and business, rather than only for the particular role LT wanted ([13], [48]). The question was therefore not confined to whether she had performed well in one program.
The judgment does not announce a new general rule for all blue-card reviews. It states that it would be unwise to lay down a general rule about what is an exceptional case, and that each case must be considered on its own facts ([17]–[18]). The reasons instead apply the statutory framework to LT’s particular record.
As the Tribunal described the law, the absence of a serious or disqualifying conviction creates a presumption that the case is not exceptional, but does not end the inquiry. The decision-maker must issue a positive notice unless satisfied both that the case is exceptional and that issuing a positive notice would not be in children’s best interests ([9], [44]). The Tribunal treated the statutory factors as mandatory matters within a broader, non-exhaustive assessment ([11], [47]).
The judgment also explains that risk and protective factors must be balanced, with attention to whether past conduct remains a risk to children at the time of decision and whether behaviour has changed ([23]–[25]). The Tribunal adopted a precautionary approach in reaching its decision ([46]). Its reasons do not set out a formula for that approach or define a threshold applicable to other cases.
The decision confirms the practical significance of considering charges that did not result in convictions. The Tribunal considered the allegations because it found enough evidence to take them into account in its assessment of risk ([50]). That is not the same as treating an allegation as a conviction or deciding criminal responsibility. The reasons reflect an administrative risk assessment based on the evidence before QCAT.
The judgment cites earlier authorities, including Maher on the non-exhaustive nature of statutory considerations, and Re Imperial Chemical Industries Ltd's Patent Extension Petitions on the danger of laying down a general rule for exceptional cases ([11], [17]). It also refers to Re TAA in the respondent’s submissions concerning insight as a protective factor ([40]). The reasons provided here do not establish how later courts or tribunals have treated this decision. That question requires later authorities not included in the judgment text.
At [18], the Tribunal says: “Each case is to be considered on its own facts.” In plain English, the decision does not make a checklist that automatically determines every blue-card case. The circumstances and evidence must be assessed in the individual matter.
At [23]–[25], the Tribunal explains that it must weigh risk and protective factors and consider whether the applicant’s past should still be regarded as a risk to children. In plain English, past conduct matters, but the assessment also asks whether circumstances or behaviour have changed in a way that affects current risk.
At [44], the Tribunal explains that the proceedings were not intended to reward rehabilitation or punish offending. It also notes the statutory presumption arising because LT’s convictions were not serious or disqualifying. In plain English, the purpose was to assess children’s interests, while still applying the statutory starting point.
At [49], the Tribunal says it was not satisfied that LT had developed appropriate insight or adopted sufficient protective mechanisms. In plain English, the Tribunal regarded understanding the behaviour and having ways to prevent harm as important to its assessment.
At [50], the Tribunal says it had enough evidence to consider certain allegations despite the absence of convictions. In plain English, the Tribunal could consider relevant evidence in an administrative risk review, while the allegations remained allegations and were not convictions.
At [55]–[56], the Tribunal states its conclusion and acknowledges the protective factors. In plain English, it accepted the positive aspects of LT’s circumstances but decided that they did not overcome the risks it identified.
This decision is most directly relevant to a Queensland blue-card review involving the statutory exceptional-case test, particularly where the relevant convictions do not fall within the Act’s serious or disqualifying categories ([9], [44]). It illustrates that the statutory presumption does not prevent a decision-maker from considering the broader evidence and reaching an exceptional-case finding.
The reasoning may be relevant where the evidence includes a prolonged or recent pattern of conduct, alleged or established behaviour involving children, substance-related concerns, or questions about whether an applicant has developed insight and protective strategies. In LT’s case, the Tribunal considered each of those matters as part of its assessment ([43], [49]–[54]).
The decision may also be relevant where an applicant relies on contextual factors, such as domestic violence, difficult personal circumstances, rehabilitation, community support or a record of positive work with children. The Tribunal considered such matters, including LT’s disadvantaged situation and protective steps, but assessed them alongside the other evidence ([53], [56]).
It also illustrates the significance of the scope of a blue card. The Tribunal noted that a positive notice would be transferable, rather than limited to the particular role for which LT applied ([13], [48]). The judgment does not establish that any particular combination of these facts will always amount to an exceptional case. Its stated approach is fact-specific ([17]–[18]).
The supplied judgment does not discuss any later judicial or tribunal treatment of LT v Director-General. It was delivered on 14 April 2020 and contains no citations to later decisions applying, distinguishing or reconsidering it. No conclusion about subsequent treatment can therefore be drawn from this source alone.
Within its own reasons, the Tribunal relies on or refers to several earlier authorities. It cites Commissioner for Children and Young People and Child Guardian v Maher & Anor in connection with the non-exhaustive nature of statutory considerations and the balancing of factors ([11], [23]). It cites Re Imperial Chemical Industries Ltd's Patent Extension Petitions for the caution against formulating a general rule about exceptional cases ([17]). The respondent’s submissions refer to Re TAA on insight as a protective factor ([40]).
The judgment also mentions JA v Chief Executive Officer, Public Safety Business Agency and RPG v Chief Executive Officer, Public Safety Business Agency in the respondent’s submissions concerning transferability and the absence of conditional blue cards ([40]). The reasons supplied do not set out enough detail to assess how those authorities relate to the Tribunal’s own reasoning beyond those references.
The judgment does not define a general evidentiary threshold for considering charges that did not result in convictions. It says that the evidence in this case was sufficient for the Tribunal to take particular allegations into account in assessing risk ([50]). How that reasoning applies where the evidence is different, disputed or less substantial is not determined in the reasons.
The Tribunal states that it adopted a precautionary approach, but does not set out a detailed test for that approach ([46]). The judgment also does not specify a fixed method or weighting system for balancing risk against protective factors. It instead describes the assessment as individual and discretionary ([17]–[18], [23]–[25]).
The decision does not resolve how cultural or traditional health practices should be assessed against requests for medical evidence in other cases. LT gave evidence about traditional practices and her reluctance to rely on a brief Western medical assessment, while the respondent raised concerns about the absence of a health report ([21]–[22], [34], [39]–[40]). The Tribunal’s final reasons do not establish a general rule on that issue.
The decision also leaves open how much weight should be given in another case to an applicant’s positive work history, community standing, support network, rehabilitation or difficult personal circumstances. It accepted several of those matters as protective factors but reached its decision on the combined evidence before it ([53], [56]). Further, the judgment itself provides no account of later authorities that may have clarified or limited its reasoning.
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[20] The Applicant also addressed her offending, and alleged offending, in written submissions.[27] In the course of doing so, the Applicant presented arguments as to why the Tribunal should not find that the circumstances of the Applicant are sufficient to warrant a finding that this is an exceptional case. The relevant sections of the submissions are as follows (adopting the numbering from the original document):
- Having regards to the Applicant's drug charges pursuant to ss226(2)(a), it is the Applicant's submission that two charges in 1993, one charge in 1995, two charges in 2000 and five contemporaneous charges in 2003 do not indicate an ongoing use of illicit drug use, but rather an occasional recreational use of cannabis. It is for this reason that the Applicant does not have ongoing offences recorded on an annual basis and has no charges at all since 2003; some sixteen years. Which, the Applicant further submits; is a period of time that far exceeds the period of time in which she would occasionally use cannabis recreationally on her own time and never during the course of her employment or business.
- The Applicant gave evidence that whilst she appreciates the illicit drug use is illegal and that she would only again use cannabis if prescribed it by a doctor; it is her submission that weight must be given to the fact that all of her illicit drug use is restricted to cannabis and needs to be considered in light of her upbringing where her mother gave her camomile tea mixed with cannabis from the age of five to calm her diagnosed hyperactivity. The Applicant further submits that she is not seeking to minimise her drug use and takes responsibility for breaking the law; but also submits that it is of equal importance that of her ten drug charges; one was dismissed and of the remaining nine, three resulted in no convictions being recorded and all resulted in the penalty of fines only.
- Most importantly with regards to her drug offences, the Applicant submits that none of them are serious or disqualifying offences under the Act.
- As to the Applicant's domestic violence charges pursuant to ss226(2)(a); the Applicant continues to submit that these were situational and environmental as a result of her relationship with [RM] and being unable to leave Darwin for medical and financial reasons.
- The Applicant has no history of any kind of domestic violence offence prior to relocating to the Northern Territory to reside with [RM]; nor has she been named as a Respondent in an Application for a Protection Order in Queensland (or the relevant state/territory equivalent) or charged with breaching a domestic violence order (or the relevant state/territory equivalent) since she relocated to Queensland and escaped the horrific domestic violence that [RM] continued to perpetrate against her.
- The Applicant was very frank both in her written and oral evidence that on occasion she did act in self defence against [RM], which resulted in her acting out in a verbal and physical manner against him. However, she denies the extent to which this took place in front of her children and [RM]'s older children, as alleged by the Respondent. The Applicant submits that whilst any act of domestic violence is inappropriate, that weight must be given to her evidence that she was acting in self-defence on all occasions and that she never instigated the violence.
[21] The Respondent submitted that the Tribunal must consider the stability of the applicant's mental health in determining whether this is an exceptional case. The Respondent provided written submissions[29] and identified offending and alleged offending as relevant to the Tribunal's determination. The relevant sections of the submissions are as follows (adopting the numbering from the original document):
- This material highlights concerns about the Applicant's history of engaging in domestic violence and of exposing children in her care to that behaviour. It further indicates the Applicant continued to engage in such behaviour, despite the imposition of orders prohibiting her from doing so. The material also suggests the Applicant may suffer mental health issues. The material raises additional concerns about the Applicant's eligibility to engage with children and young people in an appropriate and protective manner.
[22] The Applicant strongly opposed the suggestion of the Respondent that the Applicant may have mental health issues. In supplementary written submissions, dated 19 November 2019, the Applicant raised the following concern:
Referring to paragraphs 10 and 21(n) of the Respondent's submissions, the Applicant has not been diagnosed with any mental health issues and there is no evidence before the Tribunal to confirm the same. It is the Applicant's submission that these submissions by Respondent are inflammatory at best and that no weight should be given to them. This is especially given the Respondent's failure to refer to and acknowledge the traditional Aboriginal medical treatments that the Applicant prefers to rely upon for her health over the more mainstream Western medical treatments, which will be further detailed below.[32]
[23] The Tribunal must balance relevant risk and protective factors in each case and, where there are multiple factors in a case, the Tribunal must apply weight to the relevant factors.[33] That requires the Tribunal to undertake a careful analysis of the circumstances in the case, which involves the application of a discretion.
[24] The Tribunal must consider the actions of the Applicant, but seek to determine the extent to which the Applicant has modified her behaviour and to what extent her past should be regarded a risk to children at this time. These are key issues for the determination of the Tribunal.
[25] The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it is not in the best interests of children for a positive notice to be issued. Each case must be dealt with on its own facts. The issue for the Tribunal is one that must be considered within the context of the individual circumstances of the Applicant and the circumstances of the offending behaviour, and is ultimately one that requires the Tribunal to exercise a discretion, bearing in mind the requirement to determine whether there is a real and appreciable risk to the safety of children as a result of its decision.
[26] The Respondent urges the Tribunal to find that the charges, and the convictions, are serious matters, even though the Applicant's history does not disclose a 'serious offence'. The Respondent also acknowledged a degree of remorse by the Applicant but suggested that she lacked insight into her offending behaviour.
[27] The Applicant produced statements in support. While the Respondent conceded that the referees provide evidence of protective factors, they are not such as to mitigate the risk factors. The Respondent urged the Tribunal to find that the Applicant has not yet developed appropriate insight, has not addressed triggers that may cause her to re-engage in offending behaviours and that ultimately allowing the Applicant to have a blue card would have a negative impact on children.
[28] The Applicant urged the Tribunal to find that she does have insight, that she has made substantial changes to his lifestyle and that her personal circumstances have changed.
[29] The Applicant provided a version of her life story ('the Applicant's Personal History'), dated 17 August 2018, to the Tribunal. In it, the Applicant said:
- (a) She had a fairly traumatic childhood.
- (b) She had no early contact with her father [MB].
- (c) She was diagnosed as hyperactive during infancy.
- (d) Her stepfather sexually abused her from an extremely early age.
- (e) She attended a good school and received a good education.
- (f) She has been racially vilified throughout most of her life.
- (g) Her mother left her stepfather when she was eight years old and they moved between Canberra and Nimbin.
- (h) At a very young age, she attempted suicide as a result of the sexual abuse she had suffered, and she was hospitalised.
- (i) She disclosed the sexual abuse to her mother.
- (j) Her mother could not cope with this information and she sent her (the Applicant) to a boarding school.
- (k) Growing up in Nimbin, she was surrounded by drugs. Her mother smoked cannabis, as did all her friends, and her stepfather took heavier drugs.
- (l) When she was about five years old, her mother commenced infusing marijuana into tea to be consumed by the Applicant as 'medication for hyperactivity'.[34]
- (m) She smoked marijuana from the age of 13 and smoked heavily throughout her teens.
- (n) She was a representative sportsperson, regularly playing in the New South Wales State titles and played soccer in the under 18s side for the state.
- (o) She continues to play soccer in the Masters Games most years and it has kept her fit and healthy for many years.
- (p) She stopped smoking marijuana at the age of 19 years, when she fell pregnant with her eldest daughter.
- (q) The father of her child did not stay in the relationship.
- (r) Later she met [GW] and they moved to Byron Bay.
- (s) She established a relationship with her father in her late teens.
- (t) Her father is a highly respected senior Butchulla elder and over a period of years her father and others provided education about her indigenous heritage.
The evidence of the Applicant, by affidavit and at the Tribunal hearing
[30] The Applicant gave evidence by affidavit and orally at the Tribunal hearing.
[31] The Applicant stated that in her view she was denied a blue card because of a one-off situational event. In her affidavit, the Applicant explained using these terms:[41]
It devastates me to think that because of the criminal charges that occurred as a one off situational event during a very dark and hopeless period in my life that I will not be able to continue with my work at the [Name withheld] Academy and with the current and future generations of Butchulla children.
[32] However, she had previously described her multiple breaches of domestic violence, in the following terms:[42]
I agree that I did breach the domestic violence order that was made against me for [RW's] protection a number of times and regardless of his provocation, I was verbally and physically abusive to him on a number of occasions.
[33] In her affidavit, the applicant did comment upon changes to improve her situation.
[34] The Applicant was cross-examined at the Tribunal hearing, and during her evidence the Applicant said:
- (a) She was working for Role Models and Leaders (RML) when she received the negative notice from Blue Card Services.
- (b) RML is part of the [Name withheld] High School teaching program.
- (c) The program is available to all Aboriginal and Torres Strait Islander girls enrolled in the school. She had an enrolment of 45 girls which represented an increase in attendance rates from 52% to 98%, for overall attendance.
- (d) She conducted classes of girls in two groups.
- (e) Teenage girls can be particularly difficult and on one occasion there was a physical altercation between the girls where she and a co-worker (GG) intervened.
- (f) She was careful not to place her hands on either of the girls and dealt with the problem by putting her body between the two fighting children.
- (g) The work was particularly rewarding, and she undertook intensive work with the girls who attended the classes.
- (h) As a result of the denial of the blue card, she no longer works at RML. But when she was there, she received no complaints. Her advice was valued, and the principal of the school still asks for her advice. RML did not want her to leave and her termination was only as a result of her failure to hold a blue card. The regional manager at RML requested that she train others.
- (i) She has diverse skills in music, art, culture and linguistic issues and has been engaged as a reconciliation expert. She never received any complaints from children or parents or staff.
- (j) She has worked in many locations throughout Australia including in a kindergarten. She has never encountered any issues about her ability to interact with children. On the Fraser Coast, she worked for free for the special school on NAIDOC Days as a volunteer.
- (k) She is comfortable with singing Butchulla songs and is recognised as a 'song woman'. This is not just a form of entertainment; it is a form of storytelling and it deals with the history of her people.
- (l) She was the victim of racism as a child and she discovered storytelling, which is an opportunity to advance her culture and combat racism.
...domestic violence incident that saw mother verbally and physically abuse father. Father caused injury to the mother whilst defending himself. Mother was arrested for being intoxicated and breaching the peace. Father believes mother leaves child with strangers. Mother's drinking is escalating, and behaviour is becoming increasingly erratic.[48]
The report went on to note that 'Mother said she really [sic] drinks and is not a heavy drinker however the strain of her relationship, her full-time studies and her isolation from family had led her to drinking heavily onto recent occasions that resulted in her being arrested and placed in the watch house'.[49] The conclusions were that intervention was needed.
[35] JS provided an affidavit of support for the Applicant dated 29 November 2018. She is a senior elder and is referred to as 'aunty' because of her seniority. JS included the following statement, at paragraph 9 of her affidavit:
It may not seem like a big thing to a non-Indigenous person, but the knowledge that [LT] has to teach the current and future Butchulla children dance, song and language has a huge cultural impact on keeping these traditions alive. There are a couple of other people that teach children dance now, but they cannot teach song and language the way [LT] does and are not as good at teaching as she is. [LT] is a proper song woman and her university qualifications in linguistics mean that she is best person for keeping the Butchulla language alive.
[36] JS went on to state, at paragraph 11 of her affidavit, that:
[LT] needs to be given a Blue Card so that she can keep the Butchulla cultural elements of dance, song and language alive. To not give her a Blue Card would be devastating and destructive for Butchulla culture.
[37] JS did not give evidence at the Tribunal hearing.
[38] GG provided an affidavit in support for the Applicant dated 28 November 2018, where she spoke of the Applicant in favourable terms. In relation to the Applicant's interaction with children, the witness said that the applicant would not yell and scream at the children. She would act calmly if the children were inattentive. Most parents commented on how amazing she is at her job and she has a very good way with children and a rare ability to command respect while also being inspiring and nurturing. She said that she has never seen the Applicant under the influence of drugs or using drugs. She did see the Applicant drink alcohol on one occasion.
[39] The Applicant provided written submissions to the Tribunal dated 16 October 2019. The applicant submitted that there is no exceptional case in the circumstances that would warrant the issuing of the negative notice by the Respondent (or this Tribunal). The relevant sections of the submissions are as follows (adopting the numbering from the original document):
- The factors in ss226(2) the Act are not exhaustive however. Dealing with the then Commission for Children and Young People and Child Guardian Act 2000 (Qld), Philippides J held in Maher:
"I do not consider that s 102(5) of the Act is to be construed as prescribing the only matters to be considered by the Commissioner in determining an application under s 102(4). Section 102(5) does not expressly or impliedly confine the Commissioner to considering only the matters specified therein and there is no basis for construing the provision in such a restrictive manner. In my view, s 102(5) merely specifies certain particular matters which the Commissioner is obliged to consider in deciding the application.'"
[40] The Respondent provided written submissions to the Tribunal dated 6 November 2019. The relevant sections of the submissions are as follows (adopting the numbering from the original document):
Interactions with children and young people
Violence and verbal abuse towards and in the presence of children
"The issue of insight into the harm caused in these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children."; and
[41] The Respondent submitted that as a protective measure for children, and not as a way of punishing the Applicant, the Tribunal should find that this is an exceptional case, such that it would not be in the best interests of children to issue a positive notice to the Applicant.
[42] The Respondent conceded that there are protective factors but that the risk factors outweigh those protective factors.
[43] In determining the application, the Tribunal maintains its focus on the best interest of children. This is not a case which involves imposing further punishment upon the Applicant nor is it a case where the Tribunal considers any detriment to the applicant as a result of determining that the case is exceptional. The Tribunal is concerned about the effect on children as a result of the Applicant potentially having a blue card. The Tribunal does consider the Applicant's criminal history and the offending behaviour. The Tribunal must consider whether it raises issues of long-term concern and lack of empathy. The Tribunal must consider whether the Applicant has gained insight, particularly into those triggers that may cause a lack of judgement, which may have a potentially adverse effect on children. The Tribunal considers whether the Applicant has addressed the triggers and has gained skills to avoid issues arising in the future. The Tribunal considers the risk factors and the protective factors. The Tribunal considers the Applicant's lifestyle and support network.
[44] The decision of the Tribunal is not intended to reward the Applicant for her rehabilitation, in the same way that it is not intended to punish the Applicant for her crimes. The decision of the Tribunal is centred on the interests of children. In making its decision, the Tribunal does consider the WWC Act and, in that regard, notes that Parliament has seen fit to legislate that the offences for which the Applicant has been convicted are not serious or disqualifying offences. Therefore the presumption is to find that the application is not exceptional. No party has the onus of proving whether the case is exceptional.
[45] Having carefully considered the evidence, the Tribunal is of the view that this is an exceptional case.
[46] In coming to its conclusion, the Tribunal does so by adopting a precautionary approach to decision-making on blue card matters.
[47] In determining that this is an exceptional case, the Tribunal does take account of the considerations prescribed by section 226 of the WWC Act and other matters as identified in this decision. The Tribunal considers its decision from the perspective that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing. In making decisions of this type, the Tribunal does consider the risk to children.
[57] The Tribunal may make an order prohibiting the publication of the following (other than in the way and to the persons stated in the order):
(a) the contents of a document or other thing produced to the Tribunal;
(b) evidence given before the Tribunal;
(c) information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified.[93]
[58] The Tribunal may make such an order only if the Tribunal considers the order is necessary:
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for any other reason in the interests of justice.[94]
[59] The presumption is that the identity of the Applicant and witnesses is available in the public sphere.
[60] The Tribunal often makes a non-publication order in circumstances where it would not be in the interests of justice to identify the names of affected children.
[61] Alleged offending behaviour took place in the presence of children. The Tribunal is satisfied that there is no public interest served by disclosing the Applicant's name in circumstances where disclosure of would identify children.
[62] The Tribunal therefore prohibits the publication of the names of the Applicant and any witnesses appearing at the application.
[63] The orders are as follows:
- The decision of the Respondent that the Applicant's case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
- Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal prohibits the publication of the names of the Applicant and any witnesses appearing at the application.
- The decision of the Tribunal is to be delivered to the parties by email.
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 354.
[4] Working with Children (Risk Management and Screening Act) 2000 (Qld), s 5 ('WWC Act').
[5] WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190, [17].
[6] Oral evidence of the Applicant at the Tribunal hearing.
[10] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[12] Applicant's submissions dated 16 October 2019, 1.
[13] [1983] VicRp 1; [1983] 1 VR 1, [10].
[14] Respondent's written submission, dated 6 November 2019.
[15] Police briefs of facts - various assault and domestic violence related offences (on 10/02/2014, 23/02/2012, 24/09/2010 & 25/09/2010), at BCS-19 to BCS-23; police briefs of facts - various drug and weapon related offending (on 11/01/1993, 04/05/2000, 10/10/2003), at BCS-46 to BCS-58; and police briefs of facts - various offences (on 31/12/2018), at BCS-62 to BCS-68).
[16] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various drug related offending (on 11/01/1993, 04/05/2000, 10/10/2003), at BCS-46 to BCS-55.
[17] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - weapons related offending (on 10/10/2003), at BCS-56 to BCS-58.
[18] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various assault and domestic violence related offences (on 10/02/2014, 23/02/2012, 24/09/2010 & 25/09/2010), at BCS-19 to BCS-23.
[19] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various offences (on 31/12/2018), at BCS-62 to BCS-68.
[20] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various assault and domestic violence related offences (on 10/02/2014, 23/02/2012, 24/09/2010 & 25/09/2010), at BCS-19 to BCS-23 and police briefs of facts - assault police officer (on 31/12/2018), at BCS-62 to BCS-68.
[21] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various assault and domestic violence related offences (on 10/02/2014, 23/02/2012, 24/09/2010 & 25/09/2010), at BCS-19 to BCS-23.
[22] Police briefs of facts - engage in conduct that contravenes DVO (two counts) and assault a person under 16 years by adult (on 10/02/2014), at BCS-19 to BCS-21.
[23] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various drug related offending (on 11/01/1993, 04/05/2000, 10/10/2003), at BCS-46 to BCS-55.
[24] Police briefs of facts - various drug related offending (on 04/05/2000 and 10/10/2003), at BCS-49 to BCS-55.
[26] Police briefs of facts - various offences (on 31/12/2018), at BCS-62 to BCS-68.
[27] Applicant's written submissions dated 16 October 2019.
[28] JS and GG both provided evidence for the Applicant, as outlined below.
[30] Personal history of Applicant dated 17 August 2018, paragraphs 6 and 7.
[31] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-196 and NTP-700.
[33] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
[34] Applicant's Personal History, paragraph 10.
[35] Applicant's Personal History, paragraph 51.
[41] Affidavit of the Applicant dated 30 November 2018, at paragraph 44.
[43] Oral evidence presented by the Applicant at the Tribunal hearing.
[47] Oral evidence of the Applicant at the Tribunal hearing.
[50] Applicant's Personal History dated 17 August 2018, paragraph 62.
[57] Affidavit of GG dated 28 November 2018; Affidavit of JS dated 29 November 2018.
[58] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61.
[59] Applicant's written submissions dated 16 October 2019, paragraph 63.
[61] Police brief of facts - various offences (on 31/12/2018), at BCS-63.
[63] Police briefs of facts - various assault and domestic violence related offences (on 10/02/2014, 23/02/2012, 24/09/2010 & 25/09/2010), at BCS-19 to BCS-23; Material produced by Northern Territory Police, Fire and Emergency Services pursuant to a Notice to Produce, NTP-13 and NTP-21 to NTP-24; Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-125 to NTP-126, NTP-576 to NTP-584, NTP-179 to NTP-187 and NTP-689 to NTP-690.
[64] Applicant's written submissions dated 16 October 2019, paragraphs 40 to 43.
[65] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-609 and NTP-611.
[66] Police briefs of facts - various assault and domestic violence related offences (on 10/02/2014), at BCS-19 to BCS-21.
[67] Personal history of Applicant dated 17 August 2018, paragraphs 59, 60 and 75.
[68] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-218 and NTP-700.
[69] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-582 to NTP-583 and NTP-688 to NTP-690.
[70] Ibid, NTP-125 to NTP-126, NTP-182.
[71] Applicant's criminal history dated 8 July 2019, at BCS-59 to BCS-61; police briefs of facts - various drug related offending (on 11/01/1993, 04/05/2000, 10/10/2003), at BCS-46 to BCS-55.
[72] Police briefs of facts - various drug related offending (on 10/10/2003), at BCS-51 to BCS-55.
[73] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-122.
[74] Police briefs of facts - various drug related offending (on 10/10/2003), at BCS-51 to BCS-55.
[75] Personal history of Applicant dated 17 August 2018, paragraph 37.
[76] Applicant's criminal history dated 8 July 2019, BCS-59 to BCS-61; police briefs of facts - various drug related offending (on 11/01/1993, 04/05/2000, 10/10/2003), at BCS-46 to BCS-55.
[77] Personal history of Applicant dated 17 August 2018, paragraphs 37 and 76.
[79] Material produced by Northern Territory Police, Fire and Emergency Service pursuant to a Notice to Produce, NTP-41; Material produced by Department of Child Safety, Youth and Women pursuant to a Notice to Produce, NTP-6; Police briefs of facts - various offences (on 31/12/2018), at BCS-62 to BCS-68.
[80] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-122.
[81] Personal history of Applicant dated 17 August 2018, paragraph 76; Affidavit of Applicant dated 30 November 2018, paragraph 36.
[82] Personal history of Applicant dated 17 August 2018, paragraphs 6 and 7.
[83] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-196 and NTP-700.
[84] Personal history of Applicant dated 17 August 2018, paragraphs 70 to 75, Affidavit of Applicant dated 30 November 2018, paragraphs 30 and 45.
[85] Personal history of Applicant dated 17 August 2018, paragraphs 37, 76, 59, 60, 75; Affidavit of Applicant dated 30 November 2018, paragraphs 25 to 26, 42.
[86] Personal history of Applicant dated 17 August 2018, paragraphs 59 to 61, 70 to 75, Affidavit of Applicant dated 30 November 2018, paragraphs 24 to 25 and 45.
[87] Personal history of Applicant dated 17 August 2018, paragraph 75; Affidavit of Applicant dated 30 November 2018, paragraphs 25, 29, 42 and 45.
[88] Material produced by the Department of Children and Families pursuant to a Notice to Produce, NTP-122.
[91] JA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251, [4].
[92] RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331, [27].
LT
Director-General, Department of Justice and Attorney-General [2020] QCAT 150
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
JA v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 251
Re TAA [2006] QCST 11
RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331
WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190
The respondent’s decision was confirmed, publication of the applicant’s and witnesses’ names was prohibited, and the decision was to be delivered to the parties by email.
[48] The Tribunal acknowledges that a blue card is fully transferable.
[49] The Tribunal has formed the view that the Applicant has not yet developed appropriate insight or adopted sufficient protective mechanisms to ensure the safety of children.
[50] The Tribunal notes that the penalties imposed for those matters that did result in the conviction were not substantial, but the number and extent of convictions is of concern. The Tribunal does consider those matters where the Applicant was charged but not convicted. The Tribunal is particularly concerned about the allegations in relation to assaulting children. Despite the strong denials of the Applicant in relation to the offending behaviour, coupled with the fact that the charges did not result in a conviction, the Tribunal is nevertheless satisfied that there is enough evidence before it to take these matters into account in assessing the issue of risk to children.
[51] The offending behaviour has been persistent, long-term and recent. In many instances the offending behaviour appears to the Tribunal to be related to issues around substance abuse, both in relation to illicit drugs and alcohol consumption.
[52] The Tribunal accepts that the Applicant has not had an association with the ongoing use of illicit drugs, however her evidence is such as to minimise her drug use and to place emphasis on the medicinal effects of cannabis. The Tribunal has formed the view that the Applicant's offending behaviour on New Year's Eve 2018 occurred in the context of the consumption of alcohol and disrespect to police officers and police property. These are not serious offences, as defined, but they are serious matters.
[53] The Tribunal has concerns about the Applicant's involvement in committing domestic violence offences. The Tribunal is specifically concerned about offending behaviour between 2010 and 2015 that resulted in the Applicant being charged with 14 domestic violence offences. While the Tribunal does accept that the Applicant was in a disadvantaged situation during that time and that she undertook some protective measures to protect herself and her biological children, the Tribunal is of the view that she did not sufficiently act in a protective manner to be satisfied about her insight and capacity to act appropriately during emotionally charged events and circumstances. The Tribunal does consider these matters as highly relevant.
[54] The Tribunal notes that the Applicant was charged with assaulting a person and aggravated assault in 2012 and assaulting a person under the age of 16 in 2014. While these are not serious charges by reference to the legislation, the matters are regarded by the Tribunal as serious. The Tribunal is not satisfied that there is sufficient evidence before it to categorise the charges as vexatious and malicious.
[55] The Tribunal has determined that the Applicant's circumstances are such as to identify a risk sufficient to warrant being satisfied that this is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.
[56] The Applicant has made positive changes in her life. Her move to her traditional homelands and engaging in indigenous work are protective factors. The Applicant is surrounded by people who care for her and for whom she cares. That is a protective factor and the Tribunal has carefully considered those aspects of the Application in weighing the protective factors against the risk factors.