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YM v Director-General, Department of Justice and Attorney-General[2021] QCAT 224

YM v Director-General, Department of Justice and Attorney-General[2021] QCAT 224

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

YM v Director-General, Department of Justice and Attorney-General [2021] QCAT 224

PARTIES:

YM

(applicant)

v

Director-general, department of justice and attorney-general

(respondent)

APPLICATION NO/S:

CML291-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

22 June 2021

HEARING DATE:

9 June 2021

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General dated 3 June 2020 to cancel YM’s positive notice and issue a negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to cancel a positive notice and issue a negative notice following a conviction for possession of a dangerous drug – where there is no serious or disqualifying offence – where the applicant’s employment does not require the care of or working with children, but it involves working within locations where children are being cared for – whether an exceptional case exists.

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 156, s 221, s 226, s 294, s 304A, s 354, s 360

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66

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

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C. Davis – Advocacy Officer

REASONS FOR DECISION

  1. [1]
    On 24 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.

Background

  1. [2]
    The applicant is a young man now employed as an air-conditioning refrigeration tradesman by a company that undertakes work in schools and hospitals. For that reason, he requires a working with children card as issued under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA).[1]
  2. [3]
    In December 2018 he was issued with a positive notice,[2] and Blue Card[3] under the WWCA. At that time, he was an apprentice with the same company with whom he is now employed as a tradesman.
  3. [4]
    In February 2019, the applicant was found by the Queensland Police to be in possession of 47 capsules of MDMA whilst on a night out in Cairns (the Offence). At the time he was 20 years of age. He was subsequently convicted in October 2019 of the offence of possessing a dangerous drug.[4] He was placed on probation for 12 months with no conviction recorded (the Conviction).
  4. [5]
    As a result, the respondent as ‘Blue Card Services’ was notified by the Queensland Police Service that the applicant’s police information had changed.[5]
  5. [6]
    This resulted in the applicant’s eligibility to hold his Blue Card being re-assessed by the respondent. That re-assessment was done, and on 3 June 2020 the respondent, via its Director, Blue Card Services (Screening Services), made the decision to cancel the applicant’s positive notice and blue card and issue a negative notice (the Decision).
  6. [7]
    By application filed 23 June 2020, the applicant applied to this Tribunal for a review of the Decision.[6]

The Nature of this Review Proceeding

  1. [8]
    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 the QCAT Act and the WWCA, and in doing so I have all the functions of the decision-maker in terms of the decision to be made.[7] 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.[8] 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.[9]

The Issue in this Proceeding

  1. [9]
    The Decision was one open to be made by the decision-maker under the WWCA s. 304A providing that, upon consideration of the relevant further information,[10] it was satisfied that it was appropriate to issue a negative notice.
  2. [10]
    WWCA s. 294 sets out that which the decision-maker is required to decide in determining whether it was appropriate to issue a negative notice. Under s. 294(2), the decision-maker must decide the matter as if it were a decision about a working with children application, such to be decided under Part 4 Division 9 of the WWCA.
  3. [11]
    Whilst no conviction was recorded in terms of the applicant’s offence, for the purposes of the WWCA it is a ‘conviction’.[11] But, given the nature of the offence is not a ‘serious offence’ under the WWCA,[12] the relevant provision of that Part and Division is s. 221(1)(c). That requires the respondent to issue a working with children clearance notwithstanding being aware of the conviction unless the circumstances are an exceptional case in which it would not be in the best interests of children for it to issue a working with children clearance, and in that instance the respondent must issue a negative notice.[13]
  4. [12]
    The issue therefore is whether the circumstance, being the applicant’s offending on 17 February 2019 and subsequent conviction on 9 October 2020, was an ‘exceptional case’ such as to deny the applicant his Blue Card. The applicant argued that it was not.
  5. [13]
    In considering this issue, the following must not be overlooked:
    1. (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;[14]
    2. (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;[15] and
    3. (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 his current employment or the trade in which he presently works.

The Material before this Tribunal

  1. [14]
    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 making my decision on the review.[16] 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.
  2. [15]
    As it was required to do,[17] 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-79.[18] At the commencement of the hearing, the applicant confirmed he had received copies of this documentation and that he had it with him at the hearing.
  3. [16]
    Save only for the provision of written Outline Submissions, the respondent did not seek leave to produce any further material at the hearing. Nor did it call any witnesses.
  4. [17]
    The applicant provided two documents as his material, namely his ‘Statement of Evidence’[19] and his ‘Life Story’[20]. These documents together was his own evidence-in-chief.
  5. [18]
    He called four witnesses, each of them swearing to the correctness of statements previously given. They were respectively his work supervisor (W1), his workplace’s health and safety officer (W2), his mother (W3), and his uncle (W4). Notwithstanding directions to the contrary,[21] the applicant did not separately file any statements by these witnesses, but rather sought to rely on statements/references given by W1, W2 and W3 in the Court proceeding from which the Conviction emanated, and for W4 as an ‘annexure’ to the applicant’s own statement of evidence. No objection was taken by the respondent to a reliance on these documents as statements of evidence. Each of these witnesses gave oral evidence during the hearing, swearing to the correctness of those statements. These documents became the witnesses’ respective evidence in chief.[22]
  6. [19]
    The applicant and each of his witnesses was cross-examined by the Respondent’s advocate.
  7. [20]
    At the conclusion of the evidence, the Respondent provided a written ‘Outline of Submissions’[23] which it subsequently addressed further in oral closing. The applicant was given a copy of this Outline during 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, and took up, a further opportunity after the conclusion of the Respondent’s oral closing to consider the written material. Having done so, the applicant then gave an oral closing. He did not provide, nor seek additional time to provide, a written closing submission.
  8. [21]
    My consideration of the issue in this proceeding thus proceeded on all of this material and the oral evidence I heard during the hearing.

The Applicant’s Case / The Evidence in this Hearing

  1. [22]
    The applicant stated his ‘position’ in the following manner in his written statement of evidence.

I submit that the evidence before the Tribunal supports a finding that this is not an “exceptional case” as per section 221(2) of the Act and as such the negative notice dated 3 September 2020 should be set aside.[24]

  1. [23]
    Notwithstanding that statement, the applicant does not express in any way in his written statement, nor did he otherwise explain, the ‘evidence’ to which he refers. As I understood it from the manner in which he sought to present his case in the hearing, it was the submissions he made to the decision-maker and which are said by the decision-maker to have been considered in reaching the Decision, together with the other evidence he subsequently presented during the hearing.
  2. [24]
    Those submissions are set out in the Reasons for Decision. Whilst the Reasons are extensive,[25] given that I must make my decision in this proceeding on the evidence that is before me, and not on the evidence that was before the decision-maker, I need not address the Reasons in their entirety. But given that which I have just said as to the applicant’s case effectively mirroring his earlier submissions, it seems convenient to refer to that part of the Reasons to the extent I see it relevant to this review.
  3. [25]
    The applicant made these submissions in response to an invitation for same made by the decision-maker after the Offence.

… I had MDMA on myself when arrested by the police. … In my eyes this is an offence that I believe has a big impact on my life, however, does not impact my working career. I have never turned up to work under the influence of alcohol or any prohibited drugs ever and do not put my life or others in jeopardy when at work. …

The reason why I need my blue card:

  • Working as an air-con refrigeration apprentice all over Cairns and the Far North, I install and provide maintenance on air-con units within aged care facilities, hospitals, schools and various other buildings that involve a blue card whilst working therein. My blue card is vital for my career within the trade’s field.
  • Almost in my final year of my apprenticeship I start to work alone on worksite, at major health, childcare and schooling facilities installing, maintaining and general activities that will need a valid blue card to conduct these types of work.

Overall, it is vital that I obtain a blue card for my career. Predominantly all my work of recent [times] (sic) has been within large facilities that require a blue card to work on, and many jobs to come will require it also. I hope that I have emphasised the importance of my blue card with my trade and that this first time offense (sic) does not impact my working with children privilege and I am able to continue to work in the industry I love.[26]

  1. [26]
    That was followed up by a further submission made after the Conviction.

… Other than this charge, I have never had any previous convictions or criminal history. It was a poor decision on my part for getting involved with drugs and it was due to a low self-esteem period I was going through.

Since then I have engaged with my GP who completed a Mental Health Care plan and I have had some psychologist sessions, along with attending ATODS. Both these parties have written a supporting letter to the Magistrate for my court hearing back in October.

I am in my last year of an air-conditioning and refrigeration apprenticeship and I am required to hold a positive notice blue card for my employment. … If I was not to hold a positive blue card this could result in me loosing (sic) my job.

My judgement for my charges resulted in a probation order for 12 months with no conviction. I have attended probation and I am only required to present every 3 months as I am considered low risk.[27]

  1. [27]
    Some comment was then made in terms of ‘References’ given by three persons whom the applicant also called as witnesses in the hearing before me, namely W1, W2 and W3 as I noted earlier in these reasons. I will briefly comment later in these reasons on the information that each of them provided given that the same was their respective evidence in chief in this hearing.
  2. [28]
    This was followed by a reference by the decision-maker to ‘Other Material’ in which she noted two letters. As I understand it, these are the letters to which the Applicant referred in his submission I extracted at paragraph [26] above.

The first was from a Psychologist of the Alcohol, Tobacco and other Drugs Service (ATODS) which was addressed to the presiding Magistrate which I infer was tendered as part of the sentencing issues in the Court proceeding. The reasons record the following as being expressed therein.

[YM] contacted … ATODS on [date] for an initial intake. He subsequently underwent a comprehensive biopsychosocial assessment in relation to his history of drugs and alcohol use and attended individual counselling sessions at ATODS.

[YM] has attended all scheduled appointments and presents with good insights into the factors that contributed to his previous use of drugs and alcohol. [YM] has gained insight into his past use of MDMA to ‘fit in’ within his peer group and has significantly strengthened his personal resilience; he no longer feels the need to use drugs. …[28]

  1. [29]
    The second is an undated document said to have been authored by a Registered Psychologist. The following comments appeared therein.

… [YM] presented as honest and open. He was cooperative and readily disclosed his regret for ever having had anything to do with drugs. …

[YM] was provided with psychological education and he displayed genuine interest and a willingness to change.

[YM] attended a follow up appointment on [date] and his mood had much improved. [YM] was proud when he related that he had stayed away from drug circles and he was able to go out and mingle with friends without having felt the need for drugs. [YM] is much more aware of his behaviour and the consequences it could bring. …[29]

  1. [30]
    In terms of other factors to be considered, the Reasons then record the following:
    1. (a)
      The recency of the Offence;
    2. (b)
      The Conviction was because of the possession of 47 MDMA capsules;
    3. (c)
      The amount of capsules located in his possession; and
    4. (d)
      Noting the probation period of 12 months had not at that time ended, the applicant had not yet had the opportunity to demonstrate he has addressed his offending triggers without the beneficial deterrence of community based supervision.[30]
  2. [31]
    In his statement of evidence in this proceeding, the applicant responded to these as “the risk factors identified by the Respondent”, giving the following evidence:
    1. (a)
      In terms of the recency of the offence:

There is a clear link between my offence and my mental health state at the time. [31]

In the substantial time since my offence occurred, I have taken numerous steps to address the behaviours that led to my offending.[32]

  1. (b)
    In terms of the penalty imposed:

By completing my probation, I have demonstrated that I have been able to address my offending triggers without any further community-based supervision.[33]

  1. (c)
    In terms of his use of dangerous drugs and his ability to care for children, and in terms of the quantity of capsules in his possession at the time:

…the drugs which were on my person the night of [date] were for my personal use only.[34]

Most importantly, my occupation does not require me to care for children. ... My Blue Card was only ever required for work purposes. Issuing a negative notice could have an adverse effect on my basic human rights – the choice to work.[35]

  1. [32]
    Immediately following this in his written statement, the Applicant stated the following under the heading ‘Protective factors’.

I am deeply regretful that the offence occurred but have sought assistance from my friends, family and medical professionals to ensure that I do not fall into the behaviours which caused it. As noted in paragraphs 1.(a)(v) and 1.(d)(iii), I have taken numerous steps to manage the triggers which caused my previous offence.[36]

  1. [33]
    The references therein to ‘steps to manage triggers’ is a reference to his attendance at ATODS to which I referred in paragraph [28] earlier in these reasons, and also to that which he states as being advice from his ‘psychologist/ GP/ family / support networks’ that he acts on “when I experience periods of stress” as to “strategies to assist me to manage that stress”.[37]
  2. [34]
    The applicant included with his statement of evidence, as an Annexure, that which was said to be a follow up statement by his psychologist to which I referred earlier in paragraph [29] of these reasons. I note the following is stated therein:

[YM] approached me with the request for an update. This is rather difficult for me to do, because I did not see [YM] since 2019. This was not [YM]’s fault. After I had seen [YM] twice, it was clear from a psychological perspective, that it would be very unlikely for [YM] to reoffend.

There were several reasons for my assessment at the time. The first and most obvious was the immense remorse and regret [YM] harboured. Two other dominant factors were, that [YM] had no addiction, and that he had direction in life in the form of an apprenticeship.

…

I deliberately did not see [YM] on more then (sic) two occasions because [YM] did not need further counselling. What [YM] was in need of then, was the opportunity for him to move on with his life and redeem himself.[38]

  1. [35]
    The applicant’s ‘Life Story’[39] is relatively long and there is only one passage therein I consider to be relevant. It is as follows and appears immediately after the heading ‘Drug History’.

I liked partying as a young teen and did like the party drugs. I used to get on MDMA for a night out and party the whole night. I did this quite a bit and then tolerated it so I could enhance a fairly significant amount of it. This led me to have around 5 in a night to keep me energetic and wake (sic). When breaking up with my girlfriend all I wanted to do was party therefore, got (sic) a significantly high amounts (sic) of MDMA and that is when I got caught with 47 on me in town. … I had purchased bulk amount as it was cheaper. …

  1. [36]
    That was the essence of the applicant’s evidence in chief. The following evidence is as drawn from him in cross-examination by the respondent’s advocate.
  2. [37]
    The applicant’s current circle of friends are some of his workmates, some with whom he trains at the gym, and his brother. This is essentially a different circle of friends from that with whom he engaged at the time of the Offence. That earlier circle was a group of school mates with whom he kept in contact since completing school, but whom he has since recognised as not being a good influence on him and so ceased to engage with them regularly, although there are a few with whom he still catches up on occasion for breakfast.
  3. [38]
    As to his purchase of the MDMA capsules, he stated that he purchased them on the ‘Dark Web’, the existence of which he learned from somebody not now in his life, arranging for them to be delivered to a PO Box from which he collected them approximately four or five days after the order was placed.
  4. [39]
    As to his drug taking prior to the occasion of the Offence, he stated that his reference to when he was a ‘young teen’ in his Life Story was when he was 17 or 18 and then on and off after he turned 18. He said he would take about five capsules on weekends, being three on a Friday night and two on a Saturday, so as to get the effect of the drugs such being the ‘enhancement’ he spoke of in his Life Story.
  5. [40]
    When questioned as to what he knew of other persons’ knowledge of this drug taking, he said that his parents knew of only some of it, specifically stating that they knew he was taking it on and off at events, being birthday parties and music festivals. In terms of the medical professionals from whom letters had been given in his support as I noted them above, and the other witnesses he was calling in the hearing before me, he said that they did not know about this earlier drug taking and only knew about the Conviction but not the detail of it. He sought to explain the absence of that knowledge on the basis that he had not told them about it because he was ashamed of his conduct in using drugs.
  6. [41]
    Noting that his assertion was the drug possession that was the Offence was occasioned by what was said to be a break-up with his girlfriend approximately two weeks prior, when asked what it was that caused him to partake in the earlier drug taking since 17 or 18 years of age, he said it was simply to have a good night out.
  7. [42]
    The applicant was then asked if it would be correct to say that his witnesses in this hearing could not give evidence that he has abstained from taking drugs since the Offence / Conviction. His response was ‘Yes’, also saying that they were not the type of witnesses who could give that evidence.
  8. [43]
    The respondent’s advocate also asked the applicant whether he had engaged in the use of drugs other than MDMA. His response was that he had used cannabis around five to six times but did not like it because it put him to sleep, and that he had also tried cocaine once.
  9. [44]
    During this line of questioning, the applicant was asked by the advocate as to what he now thinks about that past drug taking. His response was simply to say that it could have got worse, and he could have overdosed.
  10. [45]
    He was also asked as to how he now reflects on those times. His response was that they were bad decisions at bad times, explaining those bad times as being ‘personal issues’ and ‘breakups’. However, when it was then pointed out to him that he stated in his Life Story that he liked partying as a young teen and did like the party drugs, and that he used to get on MDMA for a night out and party the whole night, the Applicant quickly recanted on his evidence of bad decisions at bad times then admitting that the earlier drug use was not occasioned by bad times.
  11. [46]
    The applicant was then asked about his attendance at ATODS and his private psychologist. He confirmed that he had only attended at ATODS on two to three occasions before the Court date that brought about the Conviction, and the psychologist on three occasions, twice before the Court date and once since then.
  12. [47]
    The line of questioning also involved the respondent’s advocate referring the applicant to a communication with this Tribunal shown to have been authored by a person other than himself, but written in the first person as if it was the applicant writing it.[40]
  13. [48]
    That communication was an e-mail of 14 September 2020. It is convenient to set out herein the entirety of that communication as it is short in its content.

After going over all the documentation from Blue card (sic) they have failed to supply my response to Part C on the Form 23 that was submitted on 23/06/2020/ I then submitted similar response to C2 on the Form 40 on 5/8/2020 and this too has not been included in all the correspondence. Please refer to pages 2, 3, & 21 of the attached document for my responses that I believe are relevant to my case and they were not provided by BlueCard as part of the Directions.[41]

  1. [49]
    That e-mail is expressed as being authored by the person presented as W3 in this proceeding, being his mother. The applicant confirmed it was written by her, but said that it was done on his behalf.
  2. [50]
    The ‘responses’ to which reference is made appear as part of the applicant’s applications to the Tribunal, the first being his Application to Review a Decision, the second being an Application for Miscellaneous Matters. That response appeared under the heading ‘State briefly why you think the decision is wrong or not properly made’, wherein the following statements appear.

I respectfully believe the decision to cancel my positive notice and blue card to be unjust because it has imposed additional punishment on me in not being able to attend work where I am needed. … The legislation is in place to protect children and not impose additional punishment on a person. This is in breach of the act as I am not associated directly with any children whatsoever and I have received additional punishment.

The act stipulates that the offence is neither a ‘serious offence’ or a ‘disqualifying offence’ yet I believe that I have been further punished by cancelling my positive notice and blue card.

The decision maker speculates on issues with comments like “ability to effectively care for children if he is under the influence of such substance” and “the applicant may have intended on selling the capsules to others.” “if” and “may” is pure speculation and grossly unfair. Again, there is no care for children required of me.

…

A significant risk factor in the assessment was the amount in possession. There is no real justification here except to say that it was a matter of discounted buying. Similar in principle to buying a 30 pack carton of beer instead of a six pack. I have already acknowledged my poor decision in this regard.

…. [42]

  1. [51]
    The respondent’s advocate also cross-examined the applicant on the facts as they are expressed in the Queensland Police Service QP 009 Court Brief.[43] Whilst the applicant challenged the correctness of some of these facts, I do not see the need to note those challenges here, however he did admit the following during that examination:
    1. (a)
      He avoided eye-contact with the police at the time of being questioned regarding the Offence, agreeing with the advocate that was because he did not want the police officers to see his dilated pupils;
    2. (b)
      He collected the drugs from the Post Office Box on a day late in the week prior to the weekend on which the Offence occurred; and
    3. (c)
      In response to the question put to him as to why he had the quantity of drugs on him as found, he had that quantity with him because it was a birthday weekend, that his other mates had all chipped in to purchase them, and he was simply holding them for all of them to use, but that he would not give them out and that his mates would simply get them for themselves when they needed them.
  2. [52]
    As I have already noted it, the Applicant also adduced evidence of four witnesses, namely his work supervisor (W1), his workplace’s health and safety officer (W2), his mother (W3), and his uncle (W4). Their evidence in chief was of very little assistance to me. In essence they were nothing more than ‘character references’. None of these witnesses gave any evidence to show me that the applicant’s circumstances had changed in such a way from that which they were when the Offence occurred such as to indicate the absence of any continued drug use or the chance of such still occurring.
  3. [53]
    However, importantly and in my opinion critically, as it became clear under cross-examination of each of these witnesses, save only for the applicant’s mother, none of them had knowledge of the applicant’s drug use other than the occasion which gave rise to the Conviction, and in that regard general knowledge only of the charge but not the detail.
  4. [54]
    As to the applicant’s mother’s evidence, it was that the only knowledge she had of her son’s drug use other than the Offence was when she found two capsules in his bedroom one day whilst cleaning, such having occurred either in November 2018 or just after New Year’s Eve in 2018, such not being long before the occurrence of the Offence. When pressed, it became clear that his mother did not have any knowledge of his earlier drug use as a ‘young teen’ since the age of 17/18.
  5. [55]
    This was the entirety of the applicant’s evidence. He did not provide any separate evidence from, nor call as witnesses, any health professionals to attest to his circumstances since the Offence and the Conviction save only for the further report of his psychologist which was appended to the applicant’s statement. This was so notwithstanding the directions given by this Tribunal on 26 November 2020 as to the need for any health reports, and that which any such report should consider. That further report did not address the issues required by those directions.
  6. [56]
    Nor did he call any witnesses to attest to his current circle of friends or the manner in which he conducted himself at the present time, such as to show some change from his conduct at the time of the Offence and/or prior to it.

Consideration & Discussion of the Evidence

  1. [57]
    As the respondent has appropriately and properly submitted, the WWCA is to be administered under the principle that “the welfare and best interests of a child are paramount”, such being a consideration to which all others must yield.[44] It is that principle that I must apply in this review.
  2. [58]
    The starting position is that notwithstanding the Conviction, given that it is for an offence other than a serious offence, the applicant is entitled to be issued with a working with children clearance.[45] If that starting point stood without exception, then it would be in order for me to set aside the Decision. However, this is subject to the exception that if I am satisfied that it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with such a clearance, then a negative notice must be issued and so it would be in order for me to confirm the Decision.[46] That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing the applicant to maintain his Blue Card.[47]
  3. [59]
    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.[48]

  1. [60]
    Neither party bears an onus in determining whether an ‘exceptional case’ exists.[49] 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, that there was an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[50]
  2. [61]
    As I have noted it, the applicant has presented his evidence in part by addressing ‘risk factors’ and ‘positive factors’, presumably in response to the manner in which the Reasons for Decision were expressed. However, 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.[51]

  1. [62]
    In determining whether there is an exceptional case to be found from the circumstances in which the applicant found himself, 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,[52] 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’.

Whether the Offence is a conviction or a charge[53]

  1. [63]
    The Offence has given rise to the Conviction. It has gone beyond being merely a charge.

Whether the Offence is a serious offence, and if it is whether it is a disqualifying offence[54]

  1. [64]
    It is correct, as the applicant has sought to highlight in his material, the Offence is neither a serious offence nor a disqualifying offence as those terms are used in the WWCA. Thus, the question that arises is the extent to which it is relevant if at all.
  2. [65]
    The respondent submits that whilst it is neither a serious offence nor a disqualifying offence, it is clear that 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.[55] However, such is a mere bare submission devoid of any detail as to the basis upon which that is so. In my opinion it is not so clear that such a submission can be accepted as being correct.
  3. [66]
    As I noted it in paragraph [50] herein, the applicant appeared to attempt to make something of this fact in his argument in what appears to be a point designed, as I read it, to belittle the circumstances of the Offence relative to the WWCA and to argue that because of it, the Decision amounts to nothing more than additional punishment of him. I will have regard to this submission again shortly, but suffice it to say for present purposes on this point, notwithstanding that it is neither a serious offence nor disqualifying offence under the WWCA it does not follow that any consideration given to the existence of the Conviction is such that it amounts to a ‘punishment’ of the Applicant. I do not attribute any weight to the applicant’s argument in that regard.
  4. [67]
    In my opinion there is nothing under this heading that I need to consider in determining the question of whether an exceptional case exists.

When the Offence was committed[56]

  1. [68]
    As I have noted it in paragraph [31](a) herein, the applicant seeks to make two arguments on this point.
  2. [69]
    Firstly, he says that there is a “clear link between the Offence and [his] mental state at the time”. I do not accept that argument. Other than his assertion of him breaking up with his girlfriend at that time, and thus the apparent reason he resorted to the use of MDMA at that time, there is no evidence of the purported mental state, whatever that is said to have been at that time, nor any evidence of a ‘clear link’.
  3. [70]
    Moreover, in my opinion the evidence is to the contrary. As the applicant explained it whilst being cross-examined, his possession and use of the MDMA on that weekend arose out of him having purchased the capsules in bulk via the ‘Dark Web’ in conjunction with his mates and then the collection and carrying of same by him during a ‘birthday weekend’. There is no evidence before me to show, nor even suggest, that the use and possession of the MDMA on that weekend was somehow predicated on the asserted break up with his girlfriend and his purported mental state.
  4. [71]
    Secondly, he argues that substantial time has passed since the Offence occurred and that he has taken numerous steps to address the behaviours that led to his offending. He describes these steps as being attending two sessions at ATODS in September and October 2019, attending three sessions with his private psychologist, having ceased going to night clubs and associating with the wrong crowd, and feeling more confident in discussing issues rather than bottling it up.[57]
  5. [72]
    I do not accept these arguments.
  6. [73]
    The Offence occurred in February 2019 and in my opinion that must be considered as being ‘relatively recently’. Moreover, notwithstanding the assertion by the Applicant as to steps taken since then, he has not given any evidence to support it. It is a bare assertion. At its highest he seeks to rely on material given to the Court as I refer to them in paragraphs [26], [28] and [29] in these reasons, and a follow up letter from his private psychologist that is annexed to his statement of evidence.[58] As I read this material, it is nothing more than efforts taken by the applicant to deal with the Offence in the Court. I do not consider it to have been any effort taken by him to deal with his evident history of drug taking since he was 17 years of age. Such is a history related to the Offence. That history cannot be viewed in isolation from the facts of the Offence.
  7. [74]
    I also note the applicant’s reliance on what is said to have been a ‘third visit’ to his psychologist for the purposes of addressing his behaviour. As I noted in it in paragraph [46] herein, the applicant’s evidence is that he attended at his psychologist on only three occasions. Whilst I accept that the third visit occurred, I do not accept that the third visit was for the purpose the applicant asserts. As I have noted it in paragraph [34] herein, it was nothing more than for the purposes of the applicant seeking a ‘follow up statement’ from the psychologist. I infer from its content and the date of that document relative to the date the applicant made his Application for Review in this Tribunal which gave rise to this proceeding,[59] that the visit was solely for the purposes of obtaining something from the psychologist for this proceeding. That something is the letter which is Annexure 2 to the applicant’s statement of evidence.
  8. [75]
    Put simply, the applicant failed to provide any evidence to show me that, since the commission of the Offence, he has taken any real steps to address his behaviour other than necessary for the conduct of the matter in Court. As he admitted under cross-examination, none of the witnesses he called could attest to the change in his behaviour he asserts has occurred, nor the absence of any continuation of association with the same persons, nor a cessation of his prior drug-taking activities that he also asserts. That being so, in my opinion the relative recency of 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[60]

  1. [76]
    In its submissions on this point, the respondent sought to emphasise certain facts that are said to have occurred on the occasion for which the applicant was charged for the Offence.[61] This was the subject of a number of questions of the applicant by the Respondent’s advocate during cross-examination. Whilst the applicant sought to challenge elements of the facts upon which the charge of the Offence was premised as they were expressed in the QP 009 document, and thus apparently dispute their accuracy, this Tribunal cannot go beyond the charge and must accept it as it is.[62] Thus, I do not give any weight to the challenge the applicant sought to make in his answers during cross-examination. However, notwithstanding the absence of weight to be attributed to what he had to say, whilst the respondent sought to raise these facts as being relevant, I do not see them as being facts which influence my decision save only those to which I will shortly refer.
  2. [77]
    In my opinion, that which is more relevant is the applicant’s apparent attempt to argue that the nature of the Offence is somehow irrelevant because he does not work directly with children, that he is not required to care for them in his employment, and that he requires his Blue Card only because he undertakes work as an air-conditioning mechanic in schools and hospitals where children are being cared for by others. There is also his argument, as I have noted it in paragraph [25] herein, that whilst he says the Offence has a big impact on his life, it does not have any impact on his working career.
  3. [78]
    If I have correctly understood the applicant’s argument, it cannot be accepted as being correct. This is because it entirely ignores the fundamental protective mechanisms of the WWCA and the fact that any person who holds a Blue Card is entitled to work in employment caring for children. It is not an issue of some sort of restricted or conditioned approval that only applies to his working in his current employment.
  4. [79]
    The respondent’s closing submission on this issue is apposite, and I respectfully adopt it verbatim in these reasons.[63]

The Applicant’s drug-related offending raises concerns about his ability to judge appropriate behaviour and present as a positive role model. Children rely upon adults to be positive role models, and it has been stated by the Queensland Civil and Administrative Tribunal that:

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

  1. [80]
    The penalty for the Offence was a probation for a 12 month period. As I have noted it in paragraphs [26] and [31](b) herein, the applicant argues that he was considered low risk given that he was only required to present every three months, and that by completing his probation he has demonstrated that he has been able to address his offending triggers without any further community-based supervision.[64]
  2. [81]
    The latter part of that argument appears to be related to his argument as to the steps he has taken since the Offence to deal with his offending behaviour, but because he raises it in addressing the terms of the penalty, I will deal with it under this heading.
  3. [82]
    The respondent submits that the penalty indicates that the Court considered the applicant’s offending warranted a significant period of community-based supervision. However, as the respondent also submits, the Court’s reasons for imposing the penalty are not known.[65]
  4. [83]
    Whilst the parties have made these respective arguments/submissions, notwithstanding the express provisions of s. 226(2)(v) of the WWCA the Court’s reasons for its decision are not before me as part of the Reasons for Decision nor otherwise in evidence from the respondent, nor as part of the applicant’s evidence.[66] This is despite a Direction being given in this proceeding on 30 July 2020 that either party may apply for a Notice to Produce any document which could include a notice to produce a court’s reasons for its decision as referred to in s 226(2)(v) of the WWCA.
  5. [84]
    Whilst the respondent could have provided it, so could the applicant particularly in the circumstance that the applicant sought to persuade this Tribunal as to his argument of the Court considering him low risk. However, in the absence of any sentencing remarks from the Court I am left to consider this issue solely on that which is before me, such being a bare assertion from the applicant that he was ‘low-risk’ as well as his argument that the completion of his probation somehow suggests he has demonstrated he has addressed his offending triggers without community-based supervision.
  6. [85]
    I do not accept his argument that the Court considered him to be low-risk. There is no evidence to support it. As to his argument of having demonstrated his addressing of his offending triggers, I also do not accept it. It is misconceived. The probation is the community-based supervision. Whilst one might accept that the completion of the probation without any adverse report indicates he has addressed the purported triggers during that period, the mere completion under such circumstances does not in any way demonstrate that he can do so without that imposed supervision. Notwithstanding it is expressed at a time before the probation period ended, the decision-maker’s comment as I have noted it in paragraph [30](d) herein more properly reflects the circumstance.
  7. [86]
    Moreover, there is the fact that he has not demonstrated to me in any way that he has addressed the offending triggers. In that regard I note again that which I have already discussed earlier regarding the period of time since the Offence and the steps he purports to have taken since then. There is also that which I discuss in the following paragraphs particularly in terms of the inconsistency in his evidence and the history of his drug use.

Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant[67]

  1. [87]
    Whilst this issue is expressed as being relative to the commission of the Offence, in my opinion that which is relative is not just the facts of the Offence, but encompasses earlier conduct that can be seen to be part of the applicant’s conduct and behaviour of which the Offence is an apparent culmination at that time. As I read the applicant’s material that he has filed in this proceeding, that is precisely what he also seeks to have me consider. He has raised the earlier circumstance of his drug use.
  2. [88]
    There are a number of aspects of the evidence before me 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.[68] Some of that I have addressed earlier in these reasons. I need not repeat that here nor address in its entirety the remainder. In the following paragraphs I note that which I consider relevant in reaching the decision I am required to make in this proceeding.
  3. [89]
    Firstly, the applicant’s evidence of his possession of the 47 capsules at the relevant time is inconsistent.
  4. [90]
    As I have noted it in paragraph [26] herein, he says that it was a poor decision on his part to get involved with drugs, and that it was due to a low-self-esteem period he was going through. He also stated in his written statement of evidence that the drugs in his possession on the night were for his personal use only.[69] He appears to explain this circumstance some more by reference to having experienced periods of stress and the steps he has taken to manage that stress as I have discussed it in paragraphs [32] and [33] herein.
  5. [91]
    However, such must be read and considered in light of that which he states in his Life Story as I have noted it in paragraph [35] herein. That is, he liked partying as a young teen and liked the party drugs, that he used to get on MDMA for a night out and party the whole night which he did quite a bit, and his explanation of how he built up a tolerance to it so as he needed more to enhance the effect of the drug. He then asserts that he purchased a bulk amount of the MDMA when breaking up with his girlfriend because all he wanted to do was party.
  6. [92]
    But his evidence given under cross-examination indicated something different. I have noted this at some length from paragraph [38] onwards in these reasons. As I understood that evidence, his purchase of the bulk volume of MDMA capsules was not a random act but one organised in conjunction with his mates. He likens the purchase to buying a 30 pack carton of beer instead of a six pack. In my opinion such a description demonstrates a total lack of appreciation for the seriousness of the act of going about purchasing a bulk quantity of MDMA capsules via the Dark Web.
  7. [93]
    Of greater concern however is the fact that, notwithstanding his statement that the capsules in his possession on the night were for his personal use, he gave evidence under cross-examination that he had purchased this bulk quantity together with his mates having chipped in to purchase them, and then was carrying that volume of drugs for a birthday weekend to be shared with his mates as they needed them. It can readily be discerned that the applicant’s evidence is entirely contradictory, and in my opinion, it is indicative of a person who has failed to own up to the true and real consequences of his actions because of a failure to properly understand what they are.
  8. [94]
    There is also his evidence of other drug taking activities prior to the Offence, namely cannabis and cocaine, none of which is addressed in any way in the psychologist’s reports, being either the one from ATODS or his private psychologist.
  9. [95]
    Related to this is his evidence that his earlier drug taking was occasioned by ‘bad times’ but then the quick recanting of such evidence when challenged with the fact that he had given evidence in his Life Story as to drug taking as a young teen and the extent to which he got on the MDMA for a night out and would party the whole night.
  10. [96]
    Moreover, there is also the evidence of an absence of knowledge being held by his mother and his other witnesses he called as to the entirety of his drug taking activities. I am left with the impression that he consciously withheld that information from them. Whilst he stated under cross-examination that he was ashamed of it, a fact which I neither accept nor reject, once again the absence of his having owned up to this behaviour by way of complete disclosure is indicative of a person who has failed to own up to the consequences of his actions because of a failure to understand what those consequences are.
  11. [97]
    He seeks to suggest, as I have noted it in paragraph [32], that he has sought assistance from friends, family, and medical professionals to ensure that he does not fall back into the behaviours that caused the Offence. The difficulty I have with such a statement is that if his family and medical professionals did not know of the earlier behaviour of drug use, on what basis can it be said they have assisted him in not falling back into that behaviour.
  12. [98]
    Additionally, there is the entire absence of any evidence from his circle of friends to attest to any substantial change in his behaviour, or as to any fact to support his bare assertion as to him having ceased drug use, or to a change in the circle of friends.
  13. [99]
    Finally, I also take note of his evidence under cross-examination that he intentionally avoided eye contact with the police officers at the time he was being questioned on the relevant evening, so as they would not notice his dilated pupils. From that evidence I infer that the applicant was well aware of the effect of the use of MDMA and in doing so was attempting to conceal it from the police to that extent. This also suggests to me something more than merely a bad decision arising out of a bad time. It is consistent with the history of use of MDMA as a party-drug, a fact the applicant has admitted he engaged in.
  14. [100]
    When considered in its entirety, in my opinion this evidence portrays a person who simply lacks any insight into the seriousness of his drug possession and drug use in the past, seeking somehow to diminish it by explaining it away as either ‘partying’ or as a consequence of ‘bad times’ but in an entirely inconsistent manner.
  15. [101]
    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 retain his 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.[70]

  1. [102]
    The applicant’s arguments 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. He does not present his case in any way dealing with the effect his 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 this Tribunal that there would not be an adverse effect.
  2. [103]
    It is not the intention of the WWCA to impose additional punishment on the applicant as a result of his conviction. 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.[71] 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. [72]

  1. [104]
    During his time for closing submissions, I drew the applicant’s attention to this passage of Buss JA’s reasoning and sought his submission in light of his argument as to being punished twice. He was not able to offer any meaningful comment on it.
  2. [105]
    I respectfully adopt it, thus any detriment to the applicant is not relevant to the granting of a positive notice.[73] What is relevant however is the absence of evidence that shows me the applicant possesses the requisite degree of insight to 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 the applicant find himself in a position as a carer of children as a holder of a Blue Card.

Human Rights Act 2019 (Qld)

  1. [106]
    Related to his argument of detriment is one more point the applicant sought to make. As I have noted it in para [31](c) herein, the applicant asserts he is entitled to a ‘basic human right – the choice to work’, and seemingly suggests that his denial of a Blue Card denies him that right. Whilst not expressed as such, it might be said that the applicant is seeking to invoke his rights under the Human Rights Act 2019 (Qld) (HRA). If that is correct, it is thus convenient, in addressing this argument, that I deal with the HRA here to the extent it is relevant in the administrative decision making process of this Tribunal. For the reasons that follow I do not accept his argument.
  2. [107]
    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.[74] 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.[75]
  3. [108]
    The respondent has properly and appropriately acknowledged in its closing submissions that there are a number of competing human rights relevant in this proceeding. These include the applicant’s right to privacy and reputation[76] which the decision-maker noted in the Reasons for Decision might be said to encompass a right to work, although as she correctly noted the right to work is not an express right appearing in the HRA.[77]
  4. [109]
    But there is a competing right that cannot be overlooked, and one that permissibly is considered in limiting the applicant’s right, if one exists, to the extent he makes the submission as to a detriment to his ‘choice to work’ as he expresses it. 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.[78] 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 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 …

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.[79]

  1. [110]
    As is expressly provided for in the HRA, a human 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 human 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 human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points.[80]
  2. [111]
    That being so, it must be recalled as I noted it in the opening of my Consideration at paragraph [57] herein, 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 a right, in making the correct and preferable decision in this proceeding by application of the WWCA in conjunction with the HRA, such right 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 an exceptional case such as to deny him an entitlement to a working with children clearance under the WWCA. Such is not inconsistent with s. 13 of the HRA. In my opinion there is no less restrictive way that the requisite purpose can be achieved other than by cancelling the applicant’s Blue Card and issuing a negative notice, thus justified the HRA.[81]

Conclusions

  1. [112]
    From my review of the evidence, I have found the following:
    1. (a)
      There is a complete absence of any evidence to establish that the Applicant has taken steps since the Offence or the Conviction to deal with his history of drug-taking and possession, or his association with those persons with whom he did associate at that time, such as to satisfy me that it has ceased.
    2. (b)
      The Applicant has failed to show he possesses an understanding of his conduct, both that giving rise to the Offence and his history of drug use prior to the Offence, as it relates to being entitled to work with children as the holder of a working with children clearance.
  2. [113]
    Whilst expressing it at some length in terms of the broader material being considered, the decision-maker expressed these views when finding that an ‘exceptional case’ exists. I have extracted that here because in my opinion it properly sums up the circumstances of this matter.

The applicant submitted that at the time of the incident he was going through a relationship breakdown and was not in a clear headspace. I have concerns that the applicant’s submissions somewhat attempt to minimise his offending behaviour, which raises some concerns about his risk of recidivism. The applicant submitted that he has never attended work under the influence of alcohol or drugs. This justification raises concerns that the applicant lacks insight into the potential negative of his drug use on those directly associated with him and the broader community. Further, the applicant has failed to provide any information or discussion on why he was in possession of such a large amount of dangerous drugs, and this is a significant factor in my assessment.

… I note that the applicant has recently attended counselling and sought assistance through ATODS to address his alcohol and drug use. Whilst these are protective factors, I find there is insufficient information to be satisfied that the applicant has successfully identified or addressed his offending triggers due to the recent and serious nature of his offending. I am further not satisfied that the applicant has appropriate measures in place that would reduce the risk of recidivism in the future.

…

The effect of continuing the applicant’s blue card is that the applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act, not just the purpose for which the applicant has sought the card. Further, there is no power to issue a conditional blue card, for example requiring the applicant to be supervised. Once issued, the blue card is fully transferable across all areas of regulated employment and business.

On the information before me, I am satisfied that continuing the applicant’s blue card is not in the best interest of children and young people at this time.[82]

  1. [114]
    The evidence that is before me does not lead me to a different conclusion. Put simply, the applicant has failed to satisfy me that there is no risk of recidivism, or at the very least there is only minimal risk but with support measures in place to deal with it. It is on this premise and that which I have noted in the preceding two paragraphs that I reach the conclusion an exceptional case can be found.
  2. [115]
    In my opinion the applicant’s circumstance is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a working with children clearance. Accordingly, his circumstance does not conform to the general rule such that a working with children clearance must issue.
  3. [116]
    It therefore follows that the Decision to cancel the applicant’s positive notice and issue him with a negative notice, as it is expressed in the respondent’s letter of 3 June 2020 to the applicant,[83] is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct.

Footnotes

[1] The applicant is engaged in ‘regulated employment’ as that term is defined in s. 156 of the WWCA because of the provisions of Schedule 1, s. 4(1)(b) of the Act that provide for employment being regulated employment if any of the usual functions of the employment are carried out, or are likely to be carried out, at education and care service premises while children are being educated and cared for.

[2] Now known as a ‘working with children clearance’ - WWCA s. 220(2).

[3] Now referred to as a ‘working with children card’ – see WWCA s. 568A & Schedule 7.

[4] Drugs Misuse Regulation 1987 (Qld) - Schedule 1 drug, quantity of or exceeding Schedule 3 but less than Schedule 4.

[5] Such is as provided for under s. 317.

[6] 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.

[7] QCAT Act s. 19.

[8] QCAT Act s. 20.

[9] QCAT Act. s. 24.

[10] The ‘further information’ is as defined in s. 304A. Relevantly for the present matter it is as described in subsection 1(c) therein, namely “a decision about the person made by a court or tribunal after the authority was issued, including the reasons for the decision.”

[11] WWCA Schedule 7 – Definition of ‘conviction’ means a finding of guilt by a court, or the acceptance of a plea of guilty by a court, whether or not a conviction was recorded.

[12] WWCA s. 15 defines a ‘serious offence’.

[13] WWCA s. 221(2).

[14] WWCA s. 5.

[15] WWCA s. 6.

[16] QCAT Act s. 21(1).

[17] See QCAT Act s. 21(2).

[18] Filed 7 September 2020. By an oversight during the hearing these documents were not given an Exhibit Number. Thus, where material is relevant to the decision made herein, it will be referred to in these reasons by reference to the BCS page number. In satisfaction of an interlocutory decision made in this proceeding, the Commissioner, Queensland Corrective Services produced certain documents pertaining to the applicant and the Conviction. These appear in the material before me as document NTP-1 to NTP-22. That decision was given 10 December 2020 and the material filed 22 January 2021. As required by the decision, all parties and QCAT Registry must destroy this material at the end of this proceeding. For that reason, it was not given an Exhibit number. Whilst the Respondent’s advocate referred to it during the hearing, taking the Applicant to certain parts of it during cross-examination of him, none of it was germane to the decision that I ultimately reached in this review. Accordingly, none of it has been referred to in these reasons.

[19] Exhibit 1.

[20] Exhibit 2.

[21] Directions given 26 November 2020.

[22] W1 – Exhibit 3; W2 – Exhibit 4; W3 – Ex 5; W4 – Exhibit 6.

[23] Exhibit 7.

[24] Ex.1 – para 2.

[25] BCS - 1 to 9.

[26] See BCS - 2 & 3. A copy of the entire written submission appears at BCS – 25.

[27] See BCS – 3. A copy of the entire written submission appears at BCS - 27.

[28] See BCS – 5. A copy of the letter appears at BCS – 32.

[29] See BCS – 6. The [date] referred to therein pre-dated the Conviction. A copy of the letter appears at BCS – 33. It is simply addressed “To whom it may concern”.

[30] BCS – 6 & 7.

[31] Ex 1 – para 3(a)(iii).

[32] Ex. 1 – para 3(a)(iv).

[33] Ex. 1 – para 3(b)(ii).

[34] Ex. 1 – para 3(c)(i).

[35] Ex. 1 – para 3(c)(iv).

[36] Ex. 1 – para 4. The references to paras 1(a)(v) and 1(d)(iii) are clearly in error as there is no such subparagraphs to paragraph 1. As I read his statement of evidence, they are a reference to paras 3(a)(v) and 3(d)(iii).

[37] Ex. 1 – para 3(d)(iii).

[38] Ex. 1 – Annexure 2.

[39] Ex. 2. This was as directed by the Tribunal on 30 July 2020.

[40] BCS- 47 to 72.

[41] See BCS-47.

[42] This appears at BCS-50 and again at BCS-68.

[43] This appears at BCS-44 to 46.

[44] Ex. 7 – paras 23 & 24. See Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [3] wherein McPherson JA concurring with the reasons of Philippides J and with whom Jerrard JA agreed cited Viscount Simonds in McKee v McKee [1951] AC 352, 365.

[45] WWCA s. 221(1)(c).

[46] WWCA s. 221(2).

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

[48] 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.

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

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

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

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

[53] WWCA s. 226(2)(a)(i).

[54] WWCA s. 226(2)(a)(ii).

[55] Ex. 7 – para 41.

[56] WWCA s. 226(2)(a)(iii).

[57] Ex. 1 – para 3(a)(v).

[58] Ex.1 – Annexure 2.

[59] The document is dated 22 December 2020. The Application to Review a Decision was filed 23 June 2020.

[60] WWCA s. 226(2)(a)(iv).

[61] Ex. 7 – para 45.

[62] Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293, [9], cited with approval in Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25, [36] and REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312, [14].

[63] Ex. 7 para 49 referring to CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219, [67].

[64] Ex. 1 – para 3(b)(iii).

[65] Ex. 7 – para 51.

[66] Ibid.

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

[68] Ex. 7 – paras 54 to 80.

[69] Ex. 1 – para 3(c)(i).

[70] 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].

[71] 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.

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

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

[74] HRA – s. 13(1). The factors for determining what is reasonable and justifiable are set out in s. 13(2) of the Act.

[75] Ibid – s. 48(1)-(2).

[76] Ibid – s. 25. I pause here to note that this Right is protected by the de-identification of these reasons.

[77] See the last page of the Reasons at BCS-9.

[78] HRA – s. 26(2).

[79] Ex. 7 – paras 88 and 89.

[80] HRA – s. 13.

[81] Ibid – s. 13(2)(d).

[82] BCS – 8 & 9. My emphasis.

[83] BCS - 35.

Close

Editorial Notes

  • Published Case Name:

    YM v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    YM v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2021] QCAT 224

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    22 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
1 citation
Jump To
Cite 1 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
3 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Cite 3 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
3 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Cite 3 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
5 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Cite 4 - [2004] QCA 492
Cite 5 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
CW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
1 citation
Jump To
Cite 1 - [2015] QCAT 219
Drinkwater v Commission for Children and Young People and Child Guardian [2010] QCAT 293
1 citation
Jump To
Cite 1 - [2010] QCAT 293
McKee -v- McKee (1951) AC 352
1 citation
Jump To
Cite 1 - (1951) AC 352
Pritchard v Chief Executive Officer, Public Service Business Agency [2015] QCAT 25
1 citation
Jump To
Cite 1 - [2015] QCAT 25
Re OAA (2006) QCST 14
1 citation
Jump To
Cite 1 - (2006) QCST 14
Re TAA (2006) QCST 11
1 citation
Jump To
Cite 1 - (2006) QCST 11
REB v Director-General, Department of Justice and Attorney-General [2020] QCAT 312
2 citations
Jump To
Cite 1 - [2020] QCAT 312
Cite 2 - [2020] QCAT 312
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
1 citation
Jump To
Cite 1 - [2021] QCAT 121

Cases Citing

Case NameFull CitationFrequency
AMP v Director-General, Department of Justice and Attorney-General [2024] QCAT 823 citations
1

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