SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392

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

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

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, followed

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

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

Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27, followed

CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219

REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312, cited

Re TAA [2006] QCST 11, cited

TAW v Director-General, Department of Justice and Attorney-General [2021] QCAT 166, cited

• [1] On 9 February 2021, the Tribunal gave a direction pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of inter-alia the applicant or any family member of the applicant. Accordingly, these reasons and the Orders are published in a de-identified format.

• [2] The applicant is a man in his fifties who is employed full time as a truck driver. He also undertakes voluntary work with his local Queensland Fire Emergency Service - Rural Fire Service. For this reason, he requires a working with children card issued under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA).[1]
• [3] He accordingly applied for a blue card[2] under the WWCA for child related employment, wherein the QFES - Rural Fire Service marked the relevant child-related activity as 'health, counselling and support services'.[3]
• [4] On 23 March 2020 the respondent, via its Director, Blue Card Services (Screening Services), made the decision to issue the applicant a negative notice, such being on the basis that it was not an exceptional case in which it would not harm the best interests of children for a working with children clearance to be issued (the Decision).[4]
• [5] By application filed 22 April 2020, the applicant applied to this Tribunal for a review of the Decision.[5]

• [6] This proceeding is not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on the other. The respondent is not participating in an adversarial role advocating for the correctness of its decision. Its role is to use its best endeavours to help me, in my capacity as constituting this Tribunal, in making my decision on the review.[6] But at the same time, it is not an inquisitorial process. My decision turns on the material before me at the hearing, both documentary and oral.
• [7] As it was required to do,[7] the respondent provided relevant material to this Tribunal, namely its Reasons for the Decision and other documents in its possession considered relevant. These appear in the Tribunal's record as document BCS-1 to BCS-49.[8] In satisfaction of interlocutory decisions made in this proceeding, the Victorian Police Prosecutions, the Department of Children Youth Justice and Multicultural Affairs, and the Registrar of the Cairns Magistrates Court, were all required to produce certain documents pertaining to the applicant. That which was produced was contained in the respondent's material before me as document NTP-1 to NTP-30.[9]
• [8] During the course of the hearing the applicant confirmed he had received copies of this documentation, however he did not have a copy of it with him at the hearing. To assist him, and to ensure the proper conduct of this proceeding, a short adjournment was taken during which a copy of it was made and given him for his reference to during the hearing.
• [9] Save only for the provision of a written Outline Submissions,[10] the respondent did not seek leave to produce any further material at the hearing, nor did it call any witnesses.
• [10] The applicant relied on two documents as his material, namely the details he wrote in Part C of his originating application,[11] and his 'Life Story'.[12] These documents together became his own evidence-in-chief.[13]
• [11] He called three witnesses, each of them swearing to the correctness of statements previously given. They were respectively, a friend of his for approximately 33 years (W1), a doctor (W2), and his wife (W3). He also sought to rely on a written reference by a person identified as a member of the local Rural Fire Brigade with whom the applicant volunteers (W4). Notwithstanding directions to the contrary,[14] the applicant did not separately file any statements by these witnesses, but rather sought to rely on statements/references given by them as attachments to his original application filed in this proceeding. No objection was taken by the respondent to a reliance on these documents as statements of evidence. Each of the witnesses W1 to W3 gave oral evidence via telephone during the hearing, swearing to the correctness of those statements. These documents became the witnesses' respective evidence-in-chief.[15]
• [12] Again notwithstanding a direction to the contrary,[16] the witness W4 was not presented for cross-examination, however the respondent did not object to that witness's statement being received into evidence.[17]
• [13] The applicant and each of his witnesses W1 to W3 was cross-examined by the respondent's advocate.
• [14] At the conclusion of the evidence, the respondent provided a written 'Outline of Submissions'[18] which it subsequently addressed further in oral closing. The applicant was given a copy of this Outline at the start of the lunchtime recess and afforded the opportunity to read and consider it before he was called upon to make his closing. He was also given a further opportunity after the conclusion of the respondent's oral closing to consider the written material, and afforded the opportunity to take time, if needed either by way of a short adjournment that afternoon, or alternatively an adjournment of the proceeding for that day to allow him the opportunity to consider the material at length including the several references to caselaw in the respondent's outline and for him to then provide a fulsome written closing submission. He did not take up either of these opportunities and elected to proceed during the hearing and give his closing submissions. Those submissions were entirely oral.
• [15] My consideration of the issues in this proceeding thus proceeded on all of this documentary material and the oral evidence I heard during the hearing.

• [16] This Tribunal's jurisdiction to review the Decision arises under the WWCA s 354 and its Chapter 9, and the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both pieces of legislation and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[19]
• [17] The purpose of this review is to produce the correct and preferable decision, and I must hear and decide the matter by way of a fresh hearing on the merits.[20] It is not necessary for me to consider whether the decision-maker made an error in making the Decision. At the conclusion of the review, I may confirm or amend the Decision, set aside the Decision and substitute my own decision, or set aside the Decision and return the matter for reconsideration to the decision-maker with directions I consider to be appropriate.[21]

• [18] The applicant has been convicted of a serious offence as that term is used in the WWCA, namely indecent assault in Victoria in November 2004.[22]
• [19] The applicant has also been convicted of a number of other offences in the 20 years between 1986 and 2006, namely theft; assault on police or persons assisting police; burglary; handling/receiving and retention of stolen goods; possession of a controlled weapon without excuse; obtaining financial advantage (social security fraud).[23] Whilst not serious offences or disqualifying offences under the WWCA, such were factors considered by the decision maker in reaching the Decision.
• [20] There is also the issue of a domestic violence order that the applicant was subject to.[24]
• [21] That being so, given that the applicant had been convicted of a serious offence as defined in the WWCA, a negative notice must be issued unless an exceptional case exists in which it would not harm the best interests of children for a working with children clearance to be issued.[25]
• [22] The issue in this proceeding is therefore whether an exceptional case exists. This is to be determined by reference to the circumstances of the applicant's history of offending and his present day circumstances. The applicant's case before me was that it was such a case and accordingly a negative notice should not have been issued.
• [23] In considering this issue, the following must not be overlooked:

(a) The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;[26]

(b) The paramount consideration must be the welfare and best interests of a child, 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;[27] and

(c) If the applicant was issued with a blue card, it would entitle him to work in any regulated employment that could affect the welfare and best interests of a child, and not just be limited to the present circumstances of his work in which a blue card is required.

The Applicant's Case / The Evidence in this Hearing

• [24] The applicant stated his 'position' in the following manner in his written statement of evidence.

I would like the Tribunal to reverse the negative (sic) decision as I think it is unfair and needs to be reviewed as I have made positive steps in my life and I am very high community based person who is aware of my mistakes in my life, and to have this negative (sic) notice will destroy my career and my work I love doing for the commity (sic) and helping people. I think the decision is wrong and needs to be reviewed.

I understand the indecent assault was a terrible thing and I am extremely remorseful for it. At the time it was never my intention at all to assault anyone. It was a terrible miss understanding (sic) as stated in my subbmission (sic). ...

At the time of the incedent (sic) it was never a forceful matter. But (sic) was advised by (sic) solicitor it would be very hard case to win and I should get on with my life and I did not have the money to fight the case so I excepted (sic) it and got on with my life, not thinking 20 years later it would ruin my life. ...

I would love for the decision to be positive as I believe I am of no danger to anyone at all. I realise it was a very long time ago and I have made positive steps in my life to ensure this never happens again. ....[28]

• [25] As to the 'submission' to which he refers therein, as I understand it that is the written submission he made to the respondent's decision-maker in response to a request for same as part of the respondent's consideration of his application for a blue card.[29] That submission appears in the respondent's material.[30] It is also extracted in part within the respondent's Reasons for the Decision[31], the relevant part of which I extract here:

As for the indecent assault on the 4.10.2002. (sic) Before the 17.8.2002 we were friends and worked together. Myself, my brother and female friends would go to her house drinking on weekends. We would play adult games and cards which involved sexual behaviour. On the night of the 4.10.2002 she rang me to ask if she could borrow the car to go to work. I said yes she could use my car as she had no car and [her] housemate was out. When I got there she was on the couch. I had a few beers. Whilst I was there she told me she was having problems with her housemate as they were in a sexual relationship and he would not leave his girlfriend. She asked me to cuddle here and grabbed my hand and put it on her breasts. We continued talking. She laid back on the couch and pulled me in for a cuddle so I thought at no stage did she say stop or make any intention to until her friend arrived. I was informed by my solicitor it was a hard case to win and expensive. I was not in a position to go through a long legal battle. So I accepted it and moved on in life.

• [26] As to that occurrence, the applicant also addressed it in his Life Story,[32] making this statement:

I would drink with friends and at hotels, which lead to the indecent assault charge (sic) we were drinking and had an adult party before, but the person included was trying to get a relationship with her house mate, but he was with someone else so I was used as an escape. I was advised by my solicitor that it would be easier to except (sic) it as it was a difficult case. If I had known that years later that it would affect what I love doing, than (sic) I would have fought the case.

• [27] He also makes these statements in that Life Story:

I know that I have a difficult past and all that I ask it (sic) that you see it is the past. ...

I totally understand that I have not had a very positive upbringing and a history of activity that is not acceptable in the community and delinquent behaviour, but I am aware of my past and I am very remorseful of my past actions. I am making a mends (sic) to this past mistakes by serving my community today, and having a positive outlook on life.

I need to have my blue care as soon as possible as we are predicting another horrible fire season.

• [28] That was the essence of the applicant's evidence in chief as I saw it relevant to the decision to be made in this proceeding.
• [29] As I noted earlier, the applicant was cross-examined. He was asked about the incident described in paragraph [25], particularly in respect of how it happened. After again saying that he "accepted it on the chin at the time and plead guilty" he responded with words to the following effect:

I realised it was wrong.

I feel remorseful it happened. No-one should be put in that position.

I should not have put myself in the position to be used by others.

If I had not been drinking I would not have been there.

• [30] He was also asked whether he agreed with the 'seriousness of the offence'. His response to that was words to the following effect:

If it affected her the way she said it should not have happened. I know what it is like to be assaulted.

It should not have happened.

• [31] The applicant was then asked what he was remorseful for. His responses were in words to the following effect:

It should not have happened.

I should not have been there.

I should not have put her in that position.

I know she was trying to get her housemate jealous.

• [32] The respondent's advocate then moved her line of questioning to the circumstances of the domestic violence order which was issued in the Cairns Magistrates Court on 8 April 2010, and which expired on 8 April 2012.[33] The applicant confirmed under cross-examination that this concerned his ex-wife.
• [33] I need not go into the detail of the circumstance of that DVO, it is simply sufficient to note that the applicant did not agree that the incident in question occurred the way in which it was described in the application for the DVO.[34] Whilst his direct evidence on the issue did not enlighten me in any meaningful way, there were two oral submissions on this issue attributed to the applicant in the respondent's material that in my opinion cannot be overlooked. In each instance the applicant confirmed under cross-examination that he had said that which was attributed to him, being that his ex-wife had got a restraining order against him because "she's a psychopath", and that his ex-wife "was being a turd."[35]
• [34] As I have already noted it, the Applicant also adduced evidence of four witnesses, namely a long term friend (W1), a doctor (W2), his wife (W3), and a member of the QFES Rural Fire Service (W4). Their evidence in chief was of no assistance to me. I gave it all zero weight. In essence it was nothing more than 'character references'. Whilst their statements appeared to be an attempt to show me that the applicant's circumstances had changed dramatically from that which they were in the past, and that he was presently a person of good character, there was a telling absence of evidence from them that assisted me in being able to identify the extent to which the applicant had insight into his past deeds, and the manner in which those past deeds may be objectively viewed in terms of a person who sought to be granted an approval to work with children.
• [35] However, importantly and in my opinion critically, as it became clear under cross-examination of each of these witnesses, there was either an entire absence of knowledge of the applicant's criminal history, or at least very limited knowledge of it, such being only general knowledge of the existence of some of the convictions but not the detail of them.
• [36] This was the entirety of the applicant's evidence. Save only for the doctor (W2), he did not provide any separate evidence from, nor call as witnesses, any health professionals. But more critically, there was no evidence of a health professional addressing the following issues:

(a) The extent to which the applicant had insight into his offending behaviours and its impact on society and the victims;

(b) What risk factors, or triggers, of any, continue to be present which could contribute to a risk of further offending behaviour;

(c) What protective factors, if any, are present to reduce the risk of further offending behaviours; and

(d) What preventative strategies, if any, does the applicant use to reduce his risk of further offending.

• [37] As to the evidence of W2, the doctor, it was not an effective health report of the kind contemplated by the Directions given to the applicant on 19 November 2020 by which the applicant was informed of the need for these issues to be addressed should his material include a health report.

• [38] As the respondent's advocate has appropriately and properly submitted, the WWCA is to be administered under the principle that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing, and that any decision regarding employment concerning children must be reviewed under the principle that welfare and best interests of the child are paramount.[36]
• [39] As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWCA, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld):

Expression in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 356, Viscount Simmonds said it was the paramount consideration "to which all others yield."[37]

• [40] As I have noted it in the opening paragraphs of these reasons, the Decision the applicant seeks a review of is that made on 23 March 2020 to issue him a negative notice.[38]
• [41] The starting position is that, given the applicant's conviction for a serious offence, a negative notice must be issued unless an exceptional case exists in which it would not harm the best interests of children for a working with children clearance to be issued.[39] If that starting point stood without exception, then it would be in order for me to affirm the Decision. However, it is subject to the exception that if I am satisfied that it is an exceptional case in which it would not harm the best interests of children for the applicant to be issued with such a clearance, then a positive notice should be issued and so it would be in order for me to set aside the Decision deciding that an exceptional case did exist.
• [42] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a negative notice must issue thereby refusing a blue card.[40]
• [43] The WWCA does not define an exceptional case. It has been held that it is a matter of fact and degree to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291:

It is to be accepted that phrases like 'exceptional case' must be considered in the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: (sic) children.

There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that:

'... it would be most unwise to lay down any general rule with regard to what is an exceptional case ... All these matters are matters of discretion'.

We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation.[41]

• [44] Neither party bears an onus in determining whether an 'exceptional case' exists.[42] It is a matter of discretion. I must decide the question of whether an exceptional case exists on the balance of probabilities, bearing in mind the gravity of the consequences involved.[43] Moreover, any consequence in terms of prejudice or hardship to the applicant are not relevant.[44]
• [45] Notwithstanding that there has been reference to both 'risk factors' and 'positive factors' in the Directions given by this Tribunal as I have noted them in paragraph [36] herein, it is not a matter for this Tribunal to balance risk factors against protective factors in determining whether the applicant's case is an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303:

The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal's explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: "...if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case." With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision.

The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case.

At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher's case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher's case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act.

The Court of Appeal found that the exceptional circumstances identified in Maher's case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher Case.

In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase "exceptional case" in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning.

The Appeal Tribunal accepted that the phrase "exceptional case" must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation.

It can seen (sic) from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined.

What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher's case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act.[45]

• [46] In determining whether there is an exceptional case to be found from the applicant's circumstances, I must have regard to the matters set out in s 226(2) of the WWCA. However, the matters listed in s 226 are not exhaustive and that section merely specifies particular matters which I must consider in deciding the application,[46] and I note once again that at all times any issue must yield to the paramount principle of 'the welfare and best interests of a child'. The respondent's advocate has helpfully addressed each of these factors in her closing Outline of Submissions.[47]

Whether the Offence is a conviction or a charge [48]

• [47] Whilst there was some attention given in the respondent's material to a charge for indecent assault that was withdrawn,[49] in my opinion I need not have considered that fact given the remainder of the applicant's recorded criminal history. As I have noted it more than once, the applicant has been convicted of a serious offence. There was also a significant number of convictions on his criminal history that I noted in paragraph [18] earlier in these reasons, such being sufficient for me to reach a conclusion on the issues in this proceeding.
• [48] The respondent's advocate summed all of this up with the following submission:

... given the totality of evidence in this case, the circumstances raise the possibility of a risk to children such that it would not be in the best interests of children for the Applicant to be issued with a blue card.[50]

• [49] Given that which I say later in these reasons in terms of the extent of 'insight' demonstrated by the applicant is his evidence and submissions before me, in my opinion there is much force in that submission.

Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence [51]

• [50] Once again, the applicant was convicted of a serious offence. As to the other offences, whilst they are neither serious offences nor disqualifying offences, as the respondent has submitted, and I accept as being a correct submission, Parliament intended that all offences on a person's criminal history are to be considered in determining their eligibility to work with children in regulated employment.[52]
• [51] In my opinion, the extent and nature of the applicant's past offending cannot be overlooked. It raises the question as to whether the applicant possesses insight into this past offending sufficient to show his present understanding of its impact on society and the victims such that he demonstrates the qualities necessary to be found in a person who is entitled to work with children. It also raises the need to be satisfied that there is not a risk of further offending behaviour.
• [52] In this regard I note again that which I observed in paragraph [36] as to an absence of evidence from the applicant addressing these points.

• [53] It cannot be overlooked that the applicant's offending occurred many years ago, such being between 1985 and 2006, with the domestic violence issue arising in 2010. That is, there has not been anything adverse for the past 11 years. As I understand the applicant's case before me, this is all in the past and he is now a very different person.
• [54] Whilst that may be so, as the respondent has submitted, correctly in my opinion:

... the passage of time without further offending, of itself, is not conclusive evidence that the risk of harm to children is reduced.[54]

• [55] Put simply, the applicant failed to provide any evidence to show me that, since the commission of these offences, he has taken any real steps to address his behaviour in a manner that shows me he has developed insight into that offending behaviour. That being so, notwithstanding the passage of time, in my opinion the commission of the offence, remains a relevant consideration.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children [55]

• [56] In my opinion a similar statement can be readily made under this heading. The nature of the offences are not that they may readily be dismissed as being the consequence of youthful exuberance or stupidity, something the applicant apparently sought to do at various times in his evidence and submissions before me. Assault, theft, burglary, possession of weapons, indecent assault, social security fraud, and domestic violence, all engaged in over a period of years, suggests to me that it is something much worse. It leaves me thinking that any person who has engaged in such conduct for a period traversing almost 25 years lacked at the time an understanding and appreciation of society values, and cause me to look for an expression by the applicant of insight into his past behaviour and offending such that the requisite understanding and appreciation has been found.
• [57] In my opinion, it is this understanding that is critical in terms of any employment or the carrying on of a business that involves or may involve children. Regrettably, that expression was simply not found.
• [58] The respondent's closing submission under this heading is apposite, and I respectfully adopt it verbatim in these reasons.[56]

The Applicant's sexual offending ... raises concerns about his ability to judge appropriate behaviour and respect the personal boundaries of others. Such skills are particularly important when working in areas of regulated employment and business as they contribute to the creation of a safe and protective environment for children and young people. The Applicant's behaviour ... suggest(s) he would not be an appropriate person to safeguard the best interests of children and young people whom (sic) may be placed in his care.

The extent of the Applicant's criminal history also raises questions about his ability to serve as an appropriate role model to children. Children rely upon adults to be positive role models, and has been recognised by the Tribunal:

It can be harmful for children to become aware people they respect don't obey the law because it can create confusion for them as they try to develop a sense of right and wrong.

The penalty imposed by the court, and if the court decided not to impose any imprisonment order for the offence ... the court's reasons for its decision [57]

• [59] From the National Police Check Results Report contained within the respondent's material[58] I note that there was a range of penalties imposed on the applicant during the 20+ years of his offending. This included fines ranging from $100 to $2000, a good behaviour bond, incarceration albeit suspended, and in terms of the indecent assault conviction being directed to undergo a forensic procedure for the taking of an intimate sample from any part of his body. In terms of the last of these, the Report includes the following note as reasons for it:

The seriousness of the circumstances of the offending warrant the order. The prior convictions of the respondent are such as to warrant the making of the order. The order is not opposed. The granting of the order is in the public interest.

• [60] Save only for this notation and some relatively short sentencing remarks in terms of the offence of social security fraud, notwithstanding the express provisions of s 226(2)(v) of the WWCA, the various court's reasons for its decisions to impose fines or other orders are not before me. Accordingly there is little to which I can have regard on this aspect of the provisions for consideration and accordingly I am unable to find that anything turns on it.

Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant [59]

• [61] This is a broad area of general discretion for me to consider other aspects arising on the material or oral evidence before me that I consider relevant. There are a number of aspects in the evidence that is of concern to me, and that in my opinion is properly dealt with under this heading. The respondent addressed much of this and more in its closing submissions.[60] In my opinion I need not discuss all of that here. It seems to me that the decision I must make in this proceeding, and it thus follows that the decision I have made, turned ultimately on the issue of 'insight' which I have already touched on earlier in these reasons on a few occasions.
• [62] That being said, there are a few threshold issues that seems to me important to be understood by the applicant. It is not the intention of the WWCA to impose additional punishment on the applicant as a result of his criminal history. It is about putting gates around employment to protect children. It is not about punishing people twice. It is about protecting children from future abuse.[61] Speaking in terms of the West Australian legislation equivalent to the WWCA, the following observation was made in the Court of Appeal in that State by Buss JA, with whom Newnes AJA agreed, McLure JA dissenting:

... The evident legislative purpose is to protect children who may suffer harm as a result of contact with people engaged in child-related work who pose or may pose a potential threat. The Act is only intended to benefit children insofar as it is intended to protect them. It is not otherwise concerned with actively advancing the interests of children. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with, for example, non-conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity. That the issuing of a negative notice may have an adverse impact on the applicant is not, however, a factor which the CEO is obliged or entitled to take into account. [62]

• [63] I respectfully adopt that observation. Any detriment to the applicant is not relevant to the granting of a positive notice.[63] If he sees that as a further punishment that is not what it is. The relevant issue is the applicant possesses the requisite degree of insight into the circumstances he finds himself in, and that he has taken steps to deal with it in a manner such that would ensure the welfare and best interests of a child would be protected should he be in the position of carer of children as a holder of a blue card.
• [64] As the respondent has appropriately noted it in its submissions, the applicant's possession of genuine insight is an important factor in the process of considering his application to obtain a blue card. As it was put by the former Children's Services Tribunal in Re TAA:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. ... A person aware of the consequences of his actions or other harm is less likely to reoffend 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 on the adults around them having insight into their actions and the likely effect on the children.[64]

• [65] The applicant's argument in this proceeding, and the basis upon which he seeks to have the Decision set aside, appears to be premised entirely on the effect it will have on him and the detriment he says he will be exposed to if he is denied a blue card. As I have already observed, detriment to him is irrelevant. Moreover, he does not present to me in any way that shows me he possesses an understanding of the effect his past actions could have on children for which he would be entitled to have care if he held a blue card, and that which he has done to satisfy me that there would not be an adverse effect.
• [66] To the contrary, the manner in which he has presented himself to me it to seemingly shift blame from himself to others. He left me with the impression he lacks the requisite degree of insight into his past actions, and so left me in doubt as to the manner in which he might deal with difficult circumstances in the future that may involve children in his care should he receive a blue card. Some examples of this are as I have observed them earlier in these reasons at paragraphs [24] to [31] wherein I noted some of his evidence.
• [67] As he stated at various times "I was used as an escape" "I should not have put myself in the position to be used by others", and "I should not have been there". These were directed to the indecent assault conviction and strongly suggest to me that his focus is on himself only. His comments concerning the victim of that assault are also concerning where he stated "If it affected her the way she said it should not have happened" seemingly suggesting he does not accept that what she said about the affect it had on her was true. He also stated "I know she was trying to get her housemate jealous", seemingly suggesting that it was intentional conduct on the victim's behalf.
• [68] Notwithstanding that this all occurred now many years ago, in the circumstance of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable. When I questioned him about this during his effective re-examination, he said he was extremely remorseful about his conduct, and whilst I do not doubt that is true, it was by no means clear as to what he is remorseful for. In my opinion the respondent put it aptly in its closing outline with this submission:

The Respondent is of the view that the Applicant's submissions as to his remorse appear to relate to the current difficulties he is experiencing due to the conviction, rather than a genuine concern for the complainant.[65]

• [69] As the respondent also puts it, it is of concern that despite approximately 19 years passing since the indecent assault, the applicant's insight remains limited.[66] I agree with that submission.
• [70] In a similar vein there is the issue of the domestic violence concerning his ex-wife. Once again the applicant fails to exhibit a satisfactory level of understanding and insight into his conduct. He asserts that his ex-wife's conduct in making the DVO application was because she was a 'psychopath' and was 'being a turd'. Once again the respondent has put it aptly in its closing outline with this submission which I accept:

... the Applicant's statements in relation to his ex-wife and the domestic violence order suggest that the Applicant:

(a) does not appear to take responsibility for his own violent behaviour, despite being named as the respondent on the domestic violence order;

(b) lacks insight and remorse in relation to the domestic violence which occurred in his past relationship; and

(c) fails to understand the serious impacts of domestic violence.[67]

• [71] Whilst much of that which the applicant said before me, or expressed in his written material, suggests some degree of insight into the effect of such conduct on his own future, it was not apparent to me that this insight extended to the impact of such conduct on the victims of his offending or the manner in which it may be considered in society. Overall, I am simply unable to be persuaded that the applicant possesses the requisite degree of insight into the effects and appropriateness of his behaviour.[68]

• [72] The applicant's case before me seemed premised on his community service work, and the absence of any reoffending in the past decade, as reparation for his past offending conduct. Whilst it is admirable that he has taken steps to improve himself in this regard, it of itself is simply not enough.
• [73] There cannot be any doubt that the applicant has made changes in his life. His own evidence and that of his witnesses attests to that. However, in my opinion those changes are such that merely amounts to him living his life in a law abiding manner as society expects. He has not shown to me that he has insight into how his past conduct and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable people including children. His evidence is put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life. These changes do not take the applicant's circumstances outside of what is otherwise the ordinary course. His case is not exceptional.[69]

Human Rights Act 2019 (Qld)

• [74] Whilst the applicant did not seek to invoke the Human Rights Act 2019 (Qld) (HRA) in his arguments before me, the respondent has properly addressed it in its closing submissions. It is necessary for me to also do so to the extent it is relevant in the administrative decision making process of this Tribunal.
• [75] The main objectives of the HRA are to protect and promote fundamental human rights, however the rights listed in the HRA are not exclusive, nor are the rights protected under the HRA absolute. They may be limited but only so far as is reasonable and justifiable.[70] That being said, all statutory provisions, so far as is possible consistent with their purposes must be interpreted in a way that is compatible, or most compatible, with human rights.[71]
• [76] As is expressly provided for in the HRA, a right may be subject under law only to reasonable limits, and in deciding whether a limit is reasonable and justifiable, factors which may be relevant include inter-alia the nature of the right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[72]
• [77] Whilst the applicant's rights cannot be overlooked, there is a competing right that must be accounted for, such being permissibly considered in limiting the applicant's rights. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child's best interests, because of being a child.[73] In that regard, the respondent appropriately and correctly made this submission which I respectfully adopt given its succinctness and clarity.

... a decision that the Applicant's case is not an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on the Applicant's human rights, the decision will be justified by the factors outlined under section 13 of the HRA ... because it will have the proper purpose of promoting and protecting the right, interests and wellbeing of children and young people which is itself a human right.

Furthermore, any limitation on the Applicant's human rights is consistent with the object, purpose and paramount principle of the WWC Act that is, the welfare and best interests of children are paramount.[74]

• [78] All that being said, it must be recalled that the welfare and best interests of a child are paramount, such being a consideration to which all other factors must yield. Thus, to the extent the applicant is afforded rights, in making the correct and preferable decision by application of the WWCA in conjunction with the HRA such rights must yield to the rights of a child and so be limited in a manner permissible under the WWCA. That includes the making of a finding that the circumstance the applicant finds himself in is not an exceptional case such that it would be in the best interests of children such as to entitle the applicant to a working with children clearance under the WWCA. Such is not inconsistent with s 13 of the HRA.

• [79] From my review of the evidence, I have found that the Applicant has failed to show he possesses an understanding of his extensive past criminal conduct as it relates to being entitled to work with children as the holder of a working with children clearance. In my opinion the applicant's circumstance is not an exceptional case in which it would not harm the best interests of children for the applicant to be issued with a working with children clearance.
• [80] It therefore follows that the Decision to issue the application with a negative notice, as it is expressed in the respondent's letter of 23 March 2020 to the applicant,[75] is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct.

[1] As I understand the applicant's circumstances, he is engaged in 'regulated employment' as that term is defined in s.156 of the WWCA because of the provisions of Schedule 1, s.6(1)(c) and s.12 of the Act that provide for employment being regulated employment if the usual functions of the employment include or a likely to include, respectively, a counselling services to a child, and undertaking the role of an adult member in the cadet program management by the department responsible for emergency services.

[2] Now referred to as a 'working with children card' - see WWCA s.568A & Schedule 7, such issuing upon the receipt of a 'positive notice', now known as a 'working with children clearance' - see WWCA s.220(2).

[3] That application was made 5 November 2019. A copy of it appears in the respondent's material at BCS-10 which is part of Exhibit 6 in this proceeding.

[4] A copy of the Decision appears at BCS-30 within Ex.6.

[5] WWCA s.354 entitles the applicant to make this application. After the application was filed, the WWCA was amended, such amendments commencing on 31 August 2020. Given that the application was undecided before commencement, this review must be determined applying the amended Act.

[13] See also the Direction issued by this Tribunal dated 22 April 2021 which considered the extent of the applicant's own material given.

[14] Directions given 19 November 2020.

[15] W1 - Exhibit 1; W2 - Exhibits 2 and 3; W3 - Exhibit 8.

[22] The equivalent offence in Queensland is sexual assault under s.352 of the Criminal Code (Qld) which is listed in Schedule 2 s.4 of the WWCA as a serious offence under s.15 of the Act. The offence was not committed against a child and accordingly it does not amount to a disqualifying offence under Schedule 4 of the WWCA.

[23] These appears in the 'National Police Check Results Report' current as at 15 October 2021, a copy of which appears at BCS-047 in Ex. 6. The reference to 'social security fraud' appears in the sentencing remarks of the Southport Magistrate on 11 October 2006, a copy of which is at Ex. 6 BCS 41-43.

[24] The reference to this is at BCS-40 within Ex. 6. The relevant details of that DVO appears at NTP-11 to 25 within Ex. 7.

[29] That request was made on 16 January 2020. A copy of the request appears at BCS-17 in Ex.6

[33] The reference to this is at BCS-40 within Ex. 6. The relevant details of that DVO appears at NTP-11 to 25 within Ex. 7. Those details record that the applicant was taken into custody at 3:00 am on 4 April 2010.

[34] This detail is at question 19 of the 'Protection Order Application', the detail of which appears at NTP-19 within Ex. 7.

[35] These oral submissions are recorded at BCS-46 within Ex. 6.

[37] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [3].

[38] That of itself is not the effective reviewable decision, it more properly being the decision made by the respondent's decision-maker that there was not an exceptional case in which it would not harm the best interests of children for a positive notice to be issued to the applicant. See Reasons for Decision para 6 at Ex. 6 BCS-7. See also WWCA s.353(a).

[40] Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4].

[41] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [33]. Footnotes and citations omitted. The reference to 'OAA' is a reference to a decision of the Queensland Children's Services Tribunal in OAA, Re [2006] QCST 14. The reference to the 'Commission Act' being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWCA.

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

[43] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492,[30], [34].

[44] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109].

[45] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5] to [12]. Footnotes omitted.

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

[49] As I understand it this was a second charge concerning the same complainant in the matter of the indecent assault that resulted in conviction. Reference to this appears at BCS-049 in Ex. 6.

[52] Ex. 10 - para 48, referring to the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWCA in its original name.

[56] Ex. 10 para's 55 and 56 referring to CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].

[59] WWCA s.226(2)(f). I need not have regard to ss.226(2)(b) to (e) as they are not relevant to this proceeding.

[61] Queensland Legislative Assembly 2000, Parliamentary Debates, 14 November, 4391 (The Hon Anna Bligh - Minister for Families, Youth and Community Care and Minister for Disability Services) speaking relevant to the Commission for Children and Young People Bill, in terms of predecessor legislation to the WWCA.

[62] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109]. Emphasis added.

[63] See also REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312, [33] and the earlier QCAT decision cited therein.

[64] Re TAA [2006] QCST 11, [97] recently cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128].

[68] See TAW v Director-General, Department of Justice and Attorney-General [2021] QCAT 166,[59].

[69] See Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27,[47].

[70] HRA - s.13(1). The factors for determining what is reasonable and justifiable are set out in s.13(2).