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CITE

Unreported Judgment

NP v Director-General, Department of Justice and Attorney-General[2023] QCAT 285Member Taylor
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NP v Director-General, Department of Justice and Attorney-General[2023] QCAT 285

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:	NP v Director-General, Department of Justice and Attorney-General [2023] QCAT 285
PARTIES:	NP (applicant) V Director-general, department of justice and attorney-general (respondent)
APPLICATION NO/S:	CML 032-21
MATTER TYPE:	Childrens matters
DELIVERED ON:	24 July 2023
HEARING DATE:	26 September 2022 6 December 2022 Written Submissions 2 and 19 January 2023
HEARD AT:	Cairns via MS Teams
DECISION OF:	Member Taylor
ORDERS:	The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of 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 the applicant seeks to review a decision to issue her a negative notice – where the applicant has an extensive criminal history – where the applicant previously held a blue card notwithstanding that extensive criminal history – where the applicant contends her criminal history is irrelevant given its age – where the applicant sought to explain her criminal activity as a result of conduct by others – where the applicant demonstrated during the hearing an inability to handle stressful circumstances Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 354 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 15, s 21, s 23, s 25, s 26 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33 IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206 KAP v Director General, Department of Justice and Attorney General [2020] QCAT 457 LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373 Re TAA [2006] QCST 11 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 SWJ v Department of Justice and Attorney-General [2021] QCAT 165 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented - 26 September 2022 M.J. Henry of Counsel – 6 December 2022
Respondent:	C. Davis – Legal Officer for Blue Card Services

REASONS FOR DECISION

[1]
On 18 October 2021, this 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, any family member of the applicant, any child, or any non-party to the proceeding. Accordingly, these reasons are published in a de-identified format.

Overview

[2]
In 2019 the applicant applied to the respondent for a working with children clearance under the Working with Children (Risk Management and Screening Act) 2000 (Qld) (WWCA). Such is generally referred to as a ‘Blue Card’.^[1]
[3]
The respondent refused the application on the basis of the applicant’s criminal history, issuing a negative notice under the WWCA (the Decision).
[4]
The applicant applied to this Tribunal for a review of the Decision. As discussed in these reasons, the applicant fails in that application. As I understood the manner in which the applicant’s case was presented to this Tribunal, it was to diminish the weight to be attributed to the criminal history given its age, effectively arguing it was irrelevant and to present the applicant as a person entirely competent and suitable to be approved to work with children. I did not agree.
[5]
Listening to and observing the applicant during the hearing and considering the arguments being made, it seemed to me that she did not possess insight into the nature and effect of her offending behaviour. This was so notwithstanding the length of time which had passed since it occurred. Whilst such offending was not against children, in my opinion she was simply unable to discern when certain conduct is not appropriate in society, thus adversely affecting her suitability as a role model for children. I also formed the view from that which I observed of her conduct in the hearing that she was a person unable to handle situations of stress, thus adversely affecting her suitability as a person left to be in control and supervision of children in an employment or business scenario.
[6]
As such, I formed the view it would not be in the best interests of children for the applicant to be issued a Blue Card. I was therefore satisfied that the applicant’s case is ‘exceptional’ within the meaning of s 221 of the WWCA. Accordingly the Decision is confirmed.

The Nature of this Review Proceeding

[7]
This Tribunal’s jurisdiction to review the Decision arises under the WWCA Chapter 9, more particularly s 354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I must exercise this jurisdiction in accordance with both those pieces of legislation, and the Human Rights Act 2019 (Qld) (the HRA), and in doing so I have all the functions of the decision-maker in terms of the decision to be made.^[2]
[8]
The purpose of this review is to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.^[3] It is not necessary for me to consider whether the decision-maker made an error in making the Decision, rather the focus is on the cogency of the case as presented in this hearing, such as relevant being the applicant’s case for being permitted to hold a Blue Card.^[4]
[9]
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.^[5]

Background

[10]
The applicant has an extensive criminal history with convictions, including imprisonment, traversing the period 26 May 1992 to 24 March 2009. There are also additional charges in January 2010 although recorded as being not proven and so dismissed. Such include theft, use of a false document to prejudice other, attempt to obtain property by deception, burglary, forgery, uttering, dishonestly obtaining a financial advantage, computer related fraud, stealing, and stealing (by agent).^[6]
[11]
Notwithstanding that history the applicant had previously held a Blue Card in 2016. As I understood the relevant circumstances, that earlier Blue Card had simply expired and the applicant sought a renewal of it. As a result, the applicant asserted that the history, being the same at the time of the application for renewal as it was when the earlier Blue Card had been issued, was in effect irrelevant.^[7]
[12]
On 25 January 2021, the applicant applied to this Tribunal for a review of the Decision. Directions then followed for the provision of relevant material from the parties leading ultimately to the hearing before me initially in September 2022, and later in December 2022. As to at least one reason why it took such a substantial period of time for the matter to be heard, it appears that the applicant was dilatory in the provision of requisite material to the Tribunal. On my reading of the Directions as they were issued, I can see the applicant failed to satisfy directions given 13 May 2021 with such failure continuing up to and beyond 9 November 2021 when the applicant was put on notice of a possible dismissal of the application should the failure to comply continue. I should also observe that it cannot be overlooked that this duration fell in parallel with the Covid 19 pandemic and the resultant lock-downs and the closure of the Courts and this Tribunal to the conduct of in-person hearings which accompanied it.
[13]
The first hearing on 26 September 2022 was adjourned part way through when the applicant, having confirmed the extent of the respondent’s material to be relied on and that she held copies of same, and her having tendered evidence to be relied upon, the applicant seemingly chose to not want to continue and seeming wanting to abandon the application altogether. But then, after having a short time to consider it during the lunch break, she informed me she wanted to continue but only with legal representation. The applicant also then informed me that the hearing could not continue that day because she had made a medical appointment during the lunch break to see a doctor given the stress and anxiety arising from the conduct of the hearing, in particular the cross-examination, and the effect it was having on her mental health.
[14]
As it was quite obvious to me the applicant could not readily continue with the hearing, I gave orders adjourning the hearing to a date to be fixed, and granting the applicant leave to be represented.
[15]
The matter then returned for hearing before me on 6 December 2022 at which time the applicant was represented by Counsel on a pro-bono basis. That hearing occupied an entire day of hearing time. On the second occasion the applicant’s evidence as tendered at the first hearing was confirmed, and although I had given the applicant an opportunity when I adjourned the hearing on the first occasion to provide any further evidence the applicant sought to rely on no further material was tendered save only for a document entitled ‘Statement of Facts Issues and Contentions’ which traversed 184 paragraphs over 18 pages. As I read and considered this document, it was something more akin to opening written submissions rather than merely that which it was described as.
[16]
Given the applicant was represented on the second occasion, to the extent cross examination of the applicant had been conducted in part on the first occasion, I directed that the cross-examination commence afresh. Of note, during the course of that hearing, I again observed the applicant experiencing difficulties with what appeared to me to be anxiety and stress, on one occasion rapidly leaving the hearing suffering from what I was later informed by her Counsel to be nausea brought on by that cross-examination.
[17]
Regrettably, due to a number of issues arising unexpectedly before me since then, my consideration of this matter was substantially delayed such that it has taken until now to reach a decision and provide these reasons. To some degree this has been a result of dealing with a backlog for me that arose from the Covid pandemic.

The Issues

[18]
The primary issue is whether the applicant’s conduct is such as to fall within the category of an ‘exceptional case’ so as to deny the applicant a Blue Card. The applicant’s Counsel argued that it was not. The respondent’s representative submitted it was.
[19]
In order to resolve that contest, consideration of WWCA s 226(2) is necessary. It sets out that which must be considered in deciding whether it was appropriate to issue a negative notice. In doing so, 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;^[8]
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;^[9] and
3. (c)
  The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,^[10] such being a principle that I must apply in this review.
[20]
The applicant’s Counsel argued that I should not focus on the “historic and spent convictions relating to offences of dishonesty”, but rather should examine the applicant’s present attributes and suitability to work with children, and that the discretion to consider the entirety of the applicant’s criminal history should not be exercised in the absence of any clear link or rationally discernible connection between the applicant’s criminal history and the protective purposes of the WWCA.^[11]
[21]
As I will explain later in these reasons, I do not agree with that position. In my opinion, contrary to that argument, the outcome of this proceeding turns on two issues, namely:
1. (a)
  the applicant’s insight, or more accurately absence of insight, into her extensive criminal history; and
2. (b)
  the applicant’s demonstrated inability to manage stressful situations;

and their relationship with the protective purposes of the WWCA, both of which arise out of the detailed consideration and discussion of those historical and spent convictions as it occurred during the hearing.

The Relevant Law

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

[22]
As is relevant in this proceeding, the pathway through the WWCA is found in Chapter 8 Part 4 Division 9, starting at s 221 which sets out that which the decision-maker is required to consider in determining the application for a Blue Card. In the circumstances of a conviction or charge being part of an applicant’s history it requires a consideration of that contained in s 226(2) to which I have just referred.
[23]
Given that the applicant has been convicted, but not of a serious offence, under WWCA s 221(1)(b) the starting position is that the applicant is entitled to be issued with a working with children clearance unless it is an exceptional case.^[12] If that starting position stood without exception, then it would be in order for me to set aside the Decision. However, it is that exception which looms large in this proceeding. It is that the starting position is subject to the exception, that exception being 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.^[13]
[24]
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 be issued with a Blue Card.^[14]
[25]
But the WWCA does not define an exceptional case, thus creating a degree of complexities in matters such as these. In order to deal with that complexity, it requires consideration of fact and degree with such 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 in reference to the predecessor legislation to the WWCA:

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.^[15]

[26]
Neither party bears an onus in determining whether an ‘exceptional case’ exists.^[16] It is a matter of discretion ultimately afforded me as the effective decision maker, such that I am required to decide the question of whether an exceptional case exists on the balance of probabilities.^[17] But in saying that, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether the applicant’s case was 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.^[18]

[27]
The criterion to which the Appeal Tribunal was referring is that now set out in s 226(2) of the WWCA. However, the matters listed therein are not exhaustive, it merely specifying particular matters which I must consider in deciding the application.^[19] Accordingly what follows later in these reasons is my consideration of each of those particular criteria.

Human Rights Act 2019 (Qld)

[28]
There is also the application of the Human Rights Act 2019 (Qld) (HRA) that must be considered.^[20] The main objective of the HRA is 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.^[21] 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.^[22] Such includes the WWCA.
[29]
In my opinion there are a number of human rights relevant in this proceeding, such which include the applicant’s right to recognition and equality before the law, the right to freedom of expression, the right to take part in public life, and the right to privacy and reputation.^[23]
[30]
But there is a competing right that cannot be overlooked in a proceeding such as this, and one that permissibly is considered in limiting the applicant’s rights in the circumstances of her seeking to be the holder of a Blue Card. 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.^[24] In that regard, in my opinion a decision that the applicant’s case is an exceptional case, such which might be said to infringe the applicant’s rights to which I have just referred, will nevertheless be 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, inter alia 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 remain consistent with the object, purpose and paramount principle of the WWC Act, being that the welfare and best interests of children are paramount.^[25]
[31]
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 relevant factors 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.^[26]
[32]
That being so, 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 a right pursuant to the HRA, 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 would include the making of a finding that the circumstance the applicant finds herself in is an exceptional case such as to deny her an entitlement to a Blue Card under the WWCA. Such is not inconsistent with s 13 of the HRA.

The Evidence & Submissions

[33]
This proceeding was not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented before me at the hearing, both documentary and oral, and the closing submissions which followed.
[34]
The respondent was not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role was to use its best endeavours to help me in making my decision on the review.^[27] As it was required to do,^[28] the respondent provided relevant material to this Tribunal, namely its Reasons for the Decision and other documents considered relevant.^[29] As I noted it earlier in these reasons, at the commencement of the hearing on the first occasion, the applicant confirmed receipt of this documentation. Save only for the provision of its written closing submissions the respondent did not seek leave to produce any further material at the hearing, nor did it call any witnesses.
[35]
There was however one other document provided by the respondent to which I must refer. During the course of the hearing on the first occasion the respondent’s representative provide me with an initial version of what was entitled ‘Respondent’s Outline of Submissions’, the same title being given to the respondent’s written closing submissions to which I have just referred. The earlier version is dated 26 September 2022 whereas the later version is dated 19 January 2023. At the conclusion of the hearing on the second occasion it was my understanding that the earlier version was to have been incorporated into the later version to be provided in accordance with my directions for the provision of same. But, it was not, rather it was referred to therein as “the Respondent’s pre-hearing written submissions (filed 6 December 2022)”.
[36]
No such document was received as an Exbibit in either the first or the second occasion of the hearing, and my record of the hearing informs me that the 26 September 2022 document was not to be used. The applicant’s Counsel does not make any reference to this earlier document in his written closing submissions thus it is unclear to me as to whether he had a copy of it or was otherwise aware of its content. For that reason I did not have any regard to what is said to be the ‘pre-hearing written submissions’ or any reference to the document in the respondent’s written closing submissions. In my opinion if I were to have done so it would be to have denied the applicant the requisite degree of procedural fairness.
[37]
The applicant provided a written statement of evidence and a document I shall refer to as a ‘Life Story’, affirming it as her evidence in chief.^[30] At the start of the second day of the hearing the applicant’s Counsel tendered a ‘Statement of Facts Issues and Contentions’ sought to be relied on as part of the applicant’s case.^[31] She was cross-examined on this material by the respondent’s representative. The applicant did not call any other witnesses, nor seek to tender any statements of other persons.
[38]
After the close of the evidence directions were given for the provision of writing closing submissions, such being received albeit with a slight delay to the timetable set.^[32]
[39]
In my opinion it is not necessary for me to set out the evidence or the submissions in detail in these reasons, it being sufficient to address the relevant parts thereof later herein where I discuss it together with the application of the relevant law. But, before doing so, there are some fundamental aspects of it which I consider appropriate to set out here, such in effect setting the tone of the submissions made.
[40]
The applicant’s Counsel made these submissions:^[33]
1. (a)
  The applicant has been a registered nurse for about 28 years, working at different hospitals in Victoria and Tasmania before moving to Queensland to rebuild her life after encountering a number of serious personal and professional setbacks in Tasmania.
2. (b)
  Those setbacks culminated in convictions in circumstances as detailed in her Statement of Facts, Issues and Contentions.
3. (c)
  She has undergone a considerable period of rehabilitation (clinical and personal) having worked in a number of paid and unpaid roles requiring her to have a background check and a Blue Card;
4. (d)
  She was issued with a Blue Card in 2016 and worked without incident for Queensland Health as a registered nurse, having continued to work with children until her previous Blue Card expired; and
5. (e)
  No offending has occurred for almost 16 years and no risk of any harm to any child has ever been reported or observed during her career as a registered nurse, with a current specialisation in premature and the neo-natal care of infants.
[41]
Whilst the applicant’s Counsel submitted that his client had shown remorse and insight into the extensive criminal offending, he also sought to draw my attention to facts and circumstances that seemingly surrounded this offending. As he put it, it was against a background of sexual activity concerning young children said to have been engaged in by persons who were victims of her offending, and that there was a souring of the relationship between the applicant and at least one of those victims, such arising: ^[34]

…in the context of her desire to protect her own children from being groomed by him for sexual purposes.

[42]
The applicant’s Counsel also argues that there is: ^[35]

… uncontested evidence before the Tribunal … that the Applicant has successfully rehabilitated herself and has not been charged with any new offence since the … charges were finalised almost 17 years ago.

and then makes this submission:^[36]

While the Respondent relied upon the Applicant’s provision of context to make overstated claims about a “lack of remorse”, the cross examination she faced was traumatising, largely unnecessary and borderline unethical in circumstances where there was a great deal of other probative evidence of the Applicant’s current personal situation and attributes that the Respondent did not bother to inquire into.

The reality is that the Applicant has received treatment, and that this treatment has coincided with a complete cessation of offending behaviour. Furthermore, the Applicant has made a substantial contribution to the care and wellbeing of children in Queensland including in paid and unpaid professional capacities. The Applicant has worked for several years without incident. Indeed, during … cross-examination, it would seem that at least on a micro level that staff shortages at the Queensland Children’s Hospital have been aggravated by the Respondent’s refusal to issue the Applicant with a positive information notice and a Blue Card.

This is the very best evidence before the Tribunal.

[43]
The applicant’s Counsel, also made these submissions:
1. (a)
  The respondent has the onus of demonstrating that an exceptional case exists to the Briginshaw standard of proof.^[37]
2. (b)
  The cross-examination of the applicant was inappropriate, that it created no forensic advantage for the respondent, and that many of the issues raised by the respondent had not been tested during cross-examination, such which would be preferable “in an adversarial system.”^[38]
[44]
As to the extent of the cross-examination of the applicant conducted, the applicant’s Counsel made these submissions:^[39]

It is of significance that the Applicant was asked no questions at all about anything relating to her experience working with children in Queensland.

She was also asked no questions at all that would tend to support the Respondent’s reasoning that the Applicant might influence the values of children in her care, and that she may be a negative “role model” for these children because of her past convictions for offences of dishonesty.

…

It is extremely difficult to conceive how the Tribunal would affirm the Respondent’s conclusions on the evidence before the Tribunal where the Applicant has not been given the opportunity to debunk the bulk of the Respondent’s case.

…

It is conceded that there were attempts to question the Applicant about her alleged lack of insight into her offending behaviour, but these questions were put in such a way that very little evidence elicited by the Respondent was useful or probative of the determinative questions before the Tribunal.

[45]
For the respondent:
1. (a)
  The applicant’s offending still continues to raise questions about her empathy, regard for the psychological and emotional wellbeing of others, respect for lawful boundaries, and her ability to present as a positive role model, in turn raising questions about whether it is in the best interests of children for the applicant to be issued with a Blue Card;^[40]
2. (b)
  The applicant’s evidence at the hearing did not support a finding that she had sufficient insight into the offending behaviour;^[41]
[46]
My consideration of the issue in this proceeding thus proceeded on that premise of those competing positions.

Discussion on the Evidence, Submissions, and the Relevant Law

The conduct of the applicant’s case

[47]
The manner in which the applicant’s case was conducted did not assist me. Whilst I respected the fact that the applicant’s Counsel had a job to do advocating for his client, in my opinion he was unnecessarily argumentative consistently interrupting with objections that need not have been taken. That caused considerable difficulty in the efficient conduct of the hearing and my ability to comprehend the evidence as it was being traversed in cross-examination.
[48]
His conduct and presentation of his client’s case was akin to an adversarial process seeking to cast an onus on the respondent to prove its case for a negative notice. Such was the subject of written submissions to that effect as I have noted them in paragraph [39] herein. It also seems to me that the applicant’s Counsel sought to present his client’s case in a way more akin more to judicial review than merits review, having asserted that the respondent must still be able to have justified the Decision by reference to orthodox administrative law principles.^[42]
[49]
Respectfully, it seemed to me that the applicant, either in person or via Counsel, failed to properly and fully comprehend the relevant aspects of that which this Tribunal was charged with determining. The submissions made about an adversarial case, the assertion that an onus is cast upon the respondent to prove its case, and the apparent likening of this proceeding to one of judicial review, shows that lack of understanding. Earlier in these reasons, at paragraphs [7] and [8] I explained the nature of this review proceeding, at paragraph [26] I explained that neither party beach an onus in this proceeding, and at paragraphs [33] and [34] I explained that this was not an adversarial process and that the respondent’s role was to assist me in making my decision on the review. I need repeat the detail of that here.
[50]
Relative to the issue of an onus being cast upon the respondent there is however one observation I consider necessary to make concerning the applicant’s written submissions on that issue which in my opinion also demonstrates that lack of understanding. In his written submissions the applicant’s Counsel refers me to s 5 of the WWCA and the decision of WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 at [17] in support of the submission to that effect.^[43] Neither that provision of the Act or that decision provides any such support. The paragraph in the decision to which he refers does nothing more than effectively paraphrasing the objects of the WWCA as set out in its s 5. There is no mention therein of anything in terms of an onus. Citing a case as an authority for a proposition it does not support is not helpful and wastes this Tribunal’s time.
[51]
In my opinion these issues are critical and should have been readily apparent and understood by the applicant on the second occasion of the hearing having been legally represented. That being said, it seemed to me that a substantially large portion of the applicant’s ‘Statement of Facts Issues and Contentions’ as well as the applicant’s written closing submissions, was entirely unnecessary. The prolixity of its content was a distraction that could and should have been avoided. It was of no assistance. Moreover, as should be understood upon reading of the balance of these reasons, in my opinion the presentation of the applicant’s case entirely overlooked the question of insight.

The applicant’s evidence in chief

[52]
Nor was the applicant’s evidence in chief of any assistance. Her ‘Life Story’ did not enable me to gain an understanding of insight she held in terms of the historical criminal activity she engaged it, nor did her statement of evidence. Whilst she gave evidence, and it was raised on several occasions in the written material, as to possessing remorse for the criminal activity, in my opinion it did not demonstrate the requisite degree of insight.
[53]
Overall, on my reading the applicant’s evidence in chief, listening to the applicant’s evidence given under cross-examination and then re-examination, and reading the applicant written submissions including that contained in the ‘Statement of Facts Issues and Contentions’, I was left with the impression that she was, at all times, endeavouring to deflect the issues away from the historical criminal offending behaviour as being entirely irrelevant, or at the very least to suggest that there was reason for it. As the applicant’s Counsel put it in the Statement of Facts Issues and Contentions:^[44]

The Applicant has sought to place her offending in context.

There is a degree of subtlety and nuance to the Applicant’s most serious convictions and a great deal of context to them that would mitigate her overall criminality.

[54]
In effect, as I understood what seemingly the applicant was wanting me to do was to go behind the convictions and find a reason why the offending behaviour occurred that in some way excused it. If that understanding is correct, with the greatest of respect to the applicant’s Counsel, whom I understood was the author of that submission, it is without merit. In that regard the decision of this Tribunal in IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206 is apposite. As the learned Member expressed the circumstances of the evidence before her in that matter, speaking in terms of the applicant then before the Tribunal:^[45]

She appeared to be lacking in a true appreciation of the seriousness of her offending in particular on her version of events. On this version she lied to the police and by entering a plea of guilty she also lied to the Magistrates Court. She appeared to exhibit either ignorance or at worst wilful disregard for the justice system.

[55]
The learned Member therein later also made this observation, which I respectfully adopt:^[46]

The Tribunal is not an appellate body for any of the sentencing courts that have dealt with the applicant. It is not appropriate for me to go behind those convictions and I accept on the balance of probabilities that the events of criminal offending that the applicant pleaded guilty to or was found guilty of are as they were described in either the police’s or court’s material.

[56]
In my opinion, whatever context the applicant seeks to put on her offending behaviour is entirely irrelevant. The fact and nature of the conviction is the relevant material, considered in conjunction with the applicant’s demonstration of insight into it.

Criticism of the cross-examination

[57]
In my opinion, the applicant’s Counsel was unnecessarily critical of the cross-examination of his client by the respondent’s representative. As I understood that criticism, it was directed to efforts made in diminishing the weight that could be attributed to the evidence obtained on cross-examination. The applicant’s Counsel made these submissions about it:

… the cross examination was handled in a way that created no forensic advantage for the Respondent and caused significant distress to the Applicant.^[47]

… the way that the hearing was conducted by the Respondent gives rise to reasonable concerns about potentially unethical and irresponsible abuse of Tribunal processes relating to cross-examination.^[48]

[58]
I disagree. In my opinion such submissions are of no substance and are ones that should not have been made.
[59]
The applicant’s Counsel also made these submissions concerning the cross examination:^[49]

While the Respondent relies upon the Applicant’s provision of context to make overstated claims about a “lack of remorse”, the cross examination [the applicant] faced was traumatising, largely unnecessary and borderline unethical in circumstances where there was a great deal of other probative evidence of the Applicant’s current person situation and attributes that the Respondent did not bother to inquire into.

…

It is respectfully submitted that [the] Applicant’s credibility and reliability were not impugned during cross examination.

It is true that [the applicant] became unwell and was distressed at times but that was because of the nature of the Respondent’s cross examination.

It is of significance that the Applicant was asked no questions at all about anything relating to her experience working with children in Queensland.

She was also asked no questions at all that would tend to support the Respondent’s reasoning that the Applicant might influence the value of children in her care, and that the she might be a negative “role model” for these children because of her past convictions for offences of dishonesty.

[60]
Again, I do not agree with these submissions. Whilst I accept that much of the cross-examination was directed to the historical events, such was in part necessary for the purposes of addressing the relevant criteria to which I turn to shortly. However, as I followed that cross-examination it was also directed to identifying the extent to which the applicant held the requisite degree of insight, or at the very least that was what I was looking for within it. Yet, as I discuss it further later in these reasons, I was not able to find it. In that regard the cross-examination was entirely appropriate.

The Relevant Criteria

[61]
In terms of the evidence and submissions before me, it is necessary for me to discuss the relevant criteria under s 226 of the WWCA. I now do so, but pause here to make these two short observations:
1. (a)
  The applicant’s Counsel did not make any submissions to me in his written closing material, or in his Statement of Facts Issues and Contentions, specifically addressing these criteria;
2. (b)
  Whilst the respondent’s representative did present detailed submissions on this criteria within her first version of Outline of Submissions, such which I have already mentioned earlier in these reasons I expected to have been contained in her written closing submissions but which were not, as I also noted earlier I have not had regard to this first version and accordingly I do not refer to the submissions contained therein on these criteria in these reasons.

Whether the Offence is a conviction or a charge^[50]

[62]
There are a number of offences recorded in the applicant’s criminal history, the record of which appears in the respondent’s material filed.^[51] As I have noted earlier it traverses the period May 1992 to January 2010, with convictions being recorded from May 1992 to May 2009. Many of the charges however were withdrawn, struck out, or dismissed. Of particular relevance, given the manner in which the evidence before me unfolded, was the conviction in February 2001 for use of a false document to prejudice other, attempt to obtain property by deception, and theft, such involving the theft of a blank but signed cheque from a neighbour’s house then presenting it at a bank branch seeking to cash it.^[52] It is referred to in the applicant’s Statement of Facts Issues and Contention as the ‘Ringwood Matter’.^[53]

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

[63]
The Ringwood Matter is neither a serious or a disqualifying offence under the WWCA, nor are any of the other offences for which the applicant was charged or convicted. Notwithstanding that, in my opinion it is relevant to consider all offences on a person’s criminal history in determining their eligibility to work with children in regulated employment.^[55] I have done so.

When the Offence was committed^[56]

[64]
It cannot be overlooked that the Ringwood Matter, and all other offences, are of an historical age, which on the applicant’s case means they are irrelevant. However, given the responses from the applicant in cross-examination about the circumstances of this conviction, as I discuss them later in these reasons at paragraph [83] when I discuss the degree of demonstration of insight into it, in my opinion it remains entirely relevant. This is because, despite the passage of time and notwithstanding the applicant’s assertions of remorse and acknowledgement that at the very least taking the cheque was wrong, in my opinion as I discuss it in paragraph [84] herein it was abundantly clear that the applicant’s insight into the unacceptable nature of this offending behaviour has not developed since then. Her position was then, as she stated it remains now, that there was a valid justification for the conduct. As she stated, her own needs went beyond those of the victim. From that discussion with the applicant under cross-examination I was left with the very clear impression that she considered her conduct to be entirely appropriate and acceptable. Thus, the fact that it occurred around 23 years ago makes no difference. Her readily apparent lack of understanding of the unacceptable circumstances would be the same as if she had committed the offence only recently.
[65]
As to the other offences, in my opinion I need say no more than I do later in these reasons at paragraph [85].

The nature of the Offence and its relevance to employment, or carrying on a business, that involves or may involve children^[57]

[66]
Whilst not expressed in his submissions directly in reference to this criteria, as I understood the applicant’s Counsel’s written submissions and his Statement of Facts Issues and Contentions, this criteria is the thrust of the argument being pressed in the applicant’s case.
[67]
Whilst the nature of the applicant’s offending is disclosed in the various documents that have been filed in this proceeding, the respondent’s closing submissions did not, in my opinion, expand on the fact of this offending in a way that was focussed on this criterion. But that does not mean there was insufficient material before me to assist me in reaching the correct and preferable decision. In my opinion the fact of this extensive offending and the current expression of insight, or more importantly as I discuss it later in these reasons there being a lack thereof, asserted to be held by the applicant raises concerns about her ability to judge positive behaviour and present as a positive role model. This is because the applicant’s conduct to which reference has been made, and the manner in which she sought to distance herself from it or otherwise make it now irrelevant, in my opinion raised concerns about her ability to respect personal boundaries and another person’s right to feel safe and free from the fear of being violated against their will, and her view, as it appeared to me to be held at the time of the hearing, that such conduct was acceptable at least in terms of the Ringwood Matter. As to the other offences, once again I need say no more than I do later in these reasons at paragraph [85]. In all respects it seemed to me that the applicant was wanting me to go behind the convictions, such which I have already explained earlier herein is not a process to be engaged in.
[68]
All that being said, in my opinion there was sufficient material before me to raise questions as to whether, in an employment or business situation, the applicant could act properly in the best interests of children.

In the case of a conviction – the penalty imposed by the court, and if the court decided not to impose an imprisonment order for the offence … the court’s reasons for its decision.^[58]

[69]
In terms of the Ringwood Matter the outcome was a conviction and a community based order for 6 months. There are however no sentencing remarks before me to enable me to know why this was so.
[70]
There is however sentencing remarks concerning the charges of ‘Computer related fraud (28 counts)’, ‘Dishonestly obtaining a financial advantage (3 counts)’, ‘Stealing (5 counts)’, ‘Forgery (6 counts)’ and ‘Attempt to acquire a financial advantage’, all which resulted in a conviction with 15 months imprisonment.^[59] (the Tasmanian Convictions). These charges and ultimate convictions arose out of a complaint made against the applicant by a convicted paedophile for whom she was looking after his affairs after he had been imprisoned, but allegedly without proper authorisation. In my opinion it is relevant to set out part of the sentencing remarks of the Supreme Court Justice who passed sentence:^[60]

[NP] has been convicted of 49 counts of the crimes of computer-related fraud, stealing, dishonestly acquiring a financial advantage, forgery, uttering and attempting to dishonestly acquire a financial advantage …

The crimes, committed between December 2004 and 24 June 2005, resulted in the loss to the complainant of approximately $40,000 and his eventual bankruptcy. They were a flagrant breach of trust and betrayal of a manner placed in a vulnerable position.

The complainant had been charged with a crime and, with good reason, anticipated eventual imprisonment. He confided in, and received emotional support from [NP]. She agreed to manage his financial affairs, pay his debts and attend to the care and removal of personal property from his home during his imprisonment. She had access to his bankcard, details of his accounts, and obtained control of a separate credit account. The complainant, who suffered from psychological depression and distress, made worse by the knowledge of impending imprisonment, initially retreated from any interest or involvement in his affairs.

[NP] began to defraud the man even before he was imprisoned. She used his bankcard to withdraw money from his bank, even before the commencement of imprisonment, a course she continued with until the account had been emptied. Whilst he was imprisoned, she obtained access to a line of credit which she used to the limit, sold his personal items at a garage sale, and other items at second hand shops. She sold some items as authorised, and others which the complainant has specifically identified as items he wished to keep. No money was returned to the complainant.

The complainant had decided not to continue living in his community and authorised the offender to arrange for the sale of his home. She exceeded that authority, forging his signature on the transfer, and retaining the purchase money. She forged other document, using them in an attempt to obtain more money from the complainant’s family in New Zealand, claiming the money was needed to pay his debts. The offender continued with her course of criminal conduct for a short period after the complainant’s release from prison. When asked to account for any of the money, she prevaricated and lied.

…

The nature of the crimes and their duration and the betrayal of trust and the lack of remorse or acceptance of responsibility warrants a term of actual imprisonment.

[71]
Whilst those comments were made now more than 14 years before the hearing before me, in my opinion they resound just as correct today as they were then. Despite the passage of time, the applicant’s perception today of her conduct, as it was sought to be explained in her statement to the respondent in support of her application for a blue card, and the manner in which her case was presented before me, in all respects left with the impression that she has not taken ownership of her criminal activity.
[72]
It showed me that she lacked the requisite degree of insight into her offending conduct, such as being necessary in order to hold a Blue Card.

Anything else relating to the commission of the Offence I reasonably consider to be relevant to the assessment of the Applicant^[61]

The issue of ‘Insight’

[73]
It is within this criterion that the issue of insight more fully falls, and ultimately as I have already indicated the outcome of this proceeding turns in one respect.
[74]
The applicant’s possession of genuine insight is an important factor in the process of considering her application to once again obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA [2006] QCST 11:

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.^[62]

[75]
There are however other cases which highlight the importance of insight in assessing whether the risks associated with an applicant’s past conduct have been reduced.
[76]
The first is found in the matter of Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 wherein the Appeal Tribunal considered the issue and expressed this observation:

Having considered Ms Lister‘s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister‘s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister‘s current attitude to her offences ….

Ms Lister continues to minimize and justify her conduct …

These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced.^[63]

[77]
I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by the applicant. Therein I made this observation:

Notwithstanding that this all occurred now many years ago, in the circumstances 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.^[64]

[78]
These comments are equally applicable to the circumstances of the applicant now before me. Her arguments in this proceeding, and the basis upon which she seeks to have the Decision set aside, appears to me premised entirely on arguments that suggest she considers her past actions, at least in respect of the Ringwood Matter and the Tasmanian Convictions, to be appropriate in the circumstances she found herself in at the time. She did not present her case in any way dealing with the effect her actions had on others or to show her possession of that requisite degree of genuine insight. Concerningly, after more than 20 years, it seemed to be that she still considered her conduct acceptable, or at the very least excusable.
[79]
As to the meaning to be attributed to ‘insight’ in this context, the applicant was asked by Counsel in re-examination as to what insight meant when it was raised by Ms Davis for the respondent in cross-examination. The applicant’s answer was simply:

An opinion as to what sort of person I am.

[80]
Whilst in my opinion the applicant’s expressed understanding of the term is close to its true meaning,^[65] it seems to me more appropriate to refer to in terms of the meaning given it in psychotherapy, such being an awareness of underlying sources of emotional, cognitive, or behavioural responses and difficulties in oneself or another. But even if the more limited meaning as given it by the applicant is that which is applied here, the applicant has not demonstrated it in the evidence and submissions presented before me in a positive manner. To the contrary, on the basis of the material was before me, there is an absence of insight in terms of what is to be expected of a person being screened for the purposes of being employed or carrying on a business where the interests and wellbeing of children and young people are to be protected.^[66]
[81]
I do not agree with the applicant’s Counsel’s submission that the relevant criminal history is entirely irrelevant absent any clear link or rationally discernible connection to what is in the best interests of children, it being the primary protective purpose, his submission being that I should focus on his client’s present attributes. One of, if not the most relevant, present attribute which this Tribunal is concerned with in a proceeding such as this is that of insight held by an applicant. It requires something more than merely remorse for the past offending behaviour.
[82]
In my opinion the respondent has correctly expressed it in its written closing submissions which I extract here and adopt:^[67]

Remorse, insight, and acceptance of responsibility are distinct concepts. Remorse, alone, does not equate to insight.

The Applicant’s acceptance and responsibility for her actions, and appreciation of the consequences of those actions on others, is or more relevance to the Tribunal’s consideration, that the Applicant’s remorse alone.

The questions going to insight that the Applicant was asked at the hearing related primarily to her appreciation of the consequences of her actions and her acceptance of responsibility for same. The Applicant was only asked about what she was remorseful for because she repeatedly, unnecessarily, and without prompting, stated she was remorseful for her actions. When asked what she was remorseful for, her evidence suggested that she did not accept responsibility for her actions.

[83]
One particular aspect of the cross-examination was in my opinion relevant and telling in terms of the extent of that insight, or more importantly the lack thereof. It concerned the Ringwood Matter. That which I consider relevant to the determination of the extent to which the applicant had insight into this offending behaviour is found in the following line of question and answer during cross examination:^[68]

Ms Davis	This incident involved your neighbour
Applicant	Yes
Ms Davis	You attempted to present a cheque for $3,600
Applicant	Yes
Ms Davis	Do you accept your actions were deceptive
Applicant	Yes, that is why I pleaded guilty.
Ms Davis	Why do you say it was wrong.
Applicant	What I did was to assist my [partner] in getting paid. I did get a cheque from the house and fill it out. I should not have gone into my neighbour’s house to get the cheque. It was wrong.
Ms Davis	Do you accept this would have had an adverse negative impact on your neighbour.
Applicant	The impact was on my [partner] and me because it was payment for material.
Ms Davis	If you had presented the cheque successfully and got paid then this would have negatively impacted a neighbour.
Applicant	I disagree. My [partner] had bought the material to put up a fence.
Ms Davis	Do you accept you prioritized yourself over your neighbour.
Applicant	Yes. My needs went beyond theirs. It was to get paid, but I should not have gone to get the cheque.

[84]
In my opinion this relevant short exchange clearly shows that, notwithstanding the passage of time since this event, it being some 22 years, the applicant still seemingly believes it was justifiable conduct in terms of meeting her own needs at the expense of others. In my opinion that demonstrates a lack of insight and understanding of what proper conduct is, particularly that expected of a person employed in circumstances where the person is expected to protect and promote the rights, interests, and wellbeing, of children and young people.
[85]
The remainder of the applicant’s evidence and submissions was of a similar ilk. In my opinion it is not necessary to go into the detail of it in these reasons, it being sufficient to note that the general thrust of it was to show, or at the very least suggest, that the cause of it was somebody else’s doing, This was particular so concerning the Tasmanian Convictions. In her submissions to the respondent in support of her application for a Blue Card, the applicant made this statement in regard thereto:^[69]

In short I use to be a very vulnerable and gullable (sic) person, who more often than not was taken advantage off (sic) by a few ex acquaintances. In all situations relating to charges, unbeknown to me I was actually used as a scape goat, basically thinking I was helping others out in, what i (sic) was made to believe was a time of need, when in fact when I was asked to look after there (sic) financially (sic) affairs on there (sic) behalf as there were unable to do so themselves, i (sic) thought I was helping them, only to find out that there were IN (sic) fact not nice people, and after I confronted them about this, things turned nasty. I ended contact with these people and a few months later I have all these allegations of theft and deception. Long story short as I nothing Legally (sic) stating authority to act on other persons (sic) behalf, it became and are (sic) of he said, she said, and I found myself having to plead guilty to something I didn’t do wrong, or at least certainly didn’t have the intent to do wrong, to take a lesser punishment and also have some of the alleged offences withdrawn.

[86]
Curiously, notwithstanding this statement, at the conclusion of the hearing before me the extensive submissions made for the applicant in terms of this conviction state she pleaded not-guilty, and her Counsel seemingly sought to diminish the severity of the circumstances of this conviction by explaining the conduct of the victim who was the person charged and imprisoned as a paedophile.^[70]
[87]
Once again, in my opinion the manner in which the applicant’s case was conducted showed a failure of the applicant to have understood and accepted the actual circumstances and fact of the offending behaviour and the impact on her victims in contrast to her own position. It seems to me that yet again she was prioritizing herself over her victims.

The applicant’s demonstrated inability to handle a stressful situation

[88]
The other issue I considered relevant and on which ultimately my decision turned was the applicant’s demonstrated inability to manage stressful situations. It is as occurred in the hearing on the two occasions the applicant appeared before me, as I describe it in paragraphs [13] and [16] herein. On those two occasions the applicant’s behaviour caused me considerable concern leaving me questioning whether she could, if faced with a stressful situation when in the care of children, deal with it, or would she react in the same manner as I observed the reaction during the hearings. Accordingly at the end of re-examination of his client by the applicant’s Counsel I asked the applicant about the mental health conditions the applicant had raised in the material filed, and the extent to which she could handle situations of distress when caring for children. The applicant’s response was vague, merely stating:

You cannot teach empathy. I have stood beside parents saying goodbye to a child, but in control.

[89]
When then asked by her Counsel, in further re-examination arising out of that questioning, for her to describe her present mental health, the answer was:

In control – not on antidepressants other than for this hearing.

[90]
These answers did not in any way leave me satisfied that the applicant had effective coping mechanisms in place or was otherwise able to handle a stressful situation, such which may readily arise when in the care of children in an employment or business scenario. Nor did it advance the evidence as it appears in the applicant’s Statement of Evidence wherein the following sentences appears:^[71]

At the time of my offending I did not have appropriate coping strategies in place to treat my mental illness. I now have appropriate coping strategies in place and know how to seek help when I need it. …

[91]
That statement is bare in its detail, devoid of any evidence of what those coping strategies are. On the evidence that was before me in the hearings, relevantly that being as I observed the applicant’s conduct in the hearing on both days, it was to become not only defensive but also to simply ‘up and leave’ when she was seemingly unable to cope with the pressure of the circumstances. In my opinion the manner in which the respondent’s representative expressed the position in her written closing submissions is apt. I extract that here and respectfully adopt:^[72]

… the Applicant’s conduct at the adjourned hearing on 26 September 2022, and at the hearing on 6 December 2022, raised questions about the efficacy of her “coping strategies”, the extent to which her mental health is being effectively managed, and the extent to which it is likely to remain so in the future.

The Respondent notes the following:

(a)
The Applicant’s evidence at the hearing was to the effect that she accepted that her mental health had contributed to her offending but that she now has appropriate “coping strategies” in place to manage her mental health. … Her evidence was further to the effect that she had engaged in various counselling to manage her health.
(b)
While the Applicant’s evidence is noted, the Tribunal has previously held that it is not sufficient for an applicant to rely solely on attending counselling. Rather, an applicant must “show [they have] acquired the necessary ability or skills to copy with stressful situations”.^[73]
(c)
The Respondent consequently submits there should be evidence to support the Applicant’s claim that she has acquired the necessary ability or skills to manage her mental health and copy with stressful situations before the Tribunal can be satisfied it is in the best interests of children/young people for her to hold a blue card.
(d)
In the Respondent’s view, however, the Applicant’s conduct on 26 September 2022 and 6 December 2022 did not demonstrate that she has effective coping strategies in place to manage stress, stressful situations, and/or her mental health. Rather, her behaviour suggests she may need to leave a situation if she becomes stressed/distressed.
(e)
As recently highlighted by the Tribunal in SWJ, if a person (such as the Applicant) has children / young people in their care:^[74]

…that person is not in a position to be able to disconnect themselves, remove themselves from the situation or to wait for a support person to become available …

(f)
In the absence of probative evidence that the Applicant has effective coping strategies in place and does not need to leave a situation if she becomes stressed or distressed, the Respondent submits it will not [be] in the best interests of children and young people for her to be issued a blue card.

[92]
Whilst only briefly referred to by Ms Davis in her closing submissions, in my opinion it is apposite to return to the decision in SWJ and extract the entire paragraph to which part reference was made, it being in my opinion directly relevant and apposite to the present circumstances. I do so here: ^[75]

The tribunal needed to consider what would occur if a positive notice was granted to the applicant. This could lead to a Blue Card being issued to him and as these are fully transferrable it could be used to enable the applicant to work with children. If a person in charge of children or who is caring for children or working with children, then that person is not in a position to be able to disconnect themselves, remove themselves from the situation or to wait for a support person to become available. Children are entitled to the protection of the adult that is caring for them and has them under their protection. It appears that is necessary for the applicant to pursue a longer period of time to develop his own strategies beyond requiring what essentially is time out and a discussion with another person. Without further strategies it would not be appropriate for the tribunal or another decision maker should grant him a positive notice.

[93]
The applicant had the opportunity to provide relevant evidence to this Tribunal, but none was provided. Whilst she explained in her statement that she was unable to obtain a statement from her psychologist, that person having retired and unable to be contacted,^[76] that does not negate the fact that all the applicant provided to this Tribunal was bare assertions of counselling and possessing the requisite coping strategies. Her conduct as I observed it was contrary to that asserted possession. In the absence of any other evidence I am left to reach a conclusion solely on that observation, such which left me with the impression that the applicant did not possess the requisite degree of coping strategies. It was for the applicant to have taken steps to obtain the relevant supporting evidence from a health practitioner if she wished to press the point and have this Tribunal consider it otherwise.

Conclusion

[94]
What is relevant here is the absence of evidence that shows me the applicant possesses the requisite degree of insight as to her offending behaviour, and the evident absence of her ability to manage stressful circumstances.
[95]
Such left me with the conclusion that the applicant would simply be unsuitable as a holder of a Blue Card, such being a person who must be entrusted to ensure the welfare and best interests of a child would be protected should the applicant find herself in a position of caring for children in an employment of business setting. In the absence any proper demonstration of the requisite degree of insight, I am left with the conclusion that the applicant might allow a child to engage in conduct which is anti-social without the applicant knowing it not to be so. In the absence of the proper demonstration of an ability to manage a stressful situation, I am left with the conclusion that the applicant may readily be unable to provide for proper and effective safety of children left in her care. Until such time as the applicant can demonstrate the requisite degree of genuine insight as to the difference, in my opinion it is entirely inappropriate for her to hold a Blue Card.
[96]
Having considered the evidence, the submissions, and the relevant law, overall the material that was before me shows the absence of the applicant’s lack of acceptance of responsibility for her offending and thus a lack of insight which reflects adversely on her ability to judge appropriate behaviour, and present as a positive role model for children. It also demonstrates to me that the applicant is presently not able to cope with stressful circumstances, such which may readily arise when charged with the care and supervision of children and young people in an employment or business situation.
[97]
Accordingly, I found the applicant’s case to be an exceptional case such that it would not be in the best interests of children and young people for the applicant to be issued with a blue card.
[98]
In my opinion the applicant’s circumstance does not conform to the general rule such that a working with children clearance must issue. It therefore follows that the Decision is an appropriate one. There is no basis to set aside the Decision. I confirm it as being correct. There will be an order to that effect.

Footnotes

[1]The previously used terminology of ‘Blue Card’ has survived given its well-known reference, although now it is referred to in the WWCA as ‘working with children card’.

[2]QCAT Act s 19.

[3]QCAT Act s 20.

[4]LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373,[10]; see also DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33;[31],[32].

[5]QCAT Act s 24.

[6]Ex 1 – BCS 2.

[7]Applicant’s ‘Application to review a decision’ filed in this Tribunal 25 January 2021 – Part C in answer to the section “State briefly why you think the decision is wrong or not properly made” and “Briefly describe what you want to happen.”

[8]WWCA s 5.

[9]WWCA s 6.

[10]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.”

[11]Applicant’s Closing Submissions - para’s 17 to 23.

[12]See WWCA s 221(2) and s 221(3)(a)(iii). Serious offences for the purposes of WWCA are as described in Schedule 2 to the Act.

[13]WWCA s 221(2).

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

[15]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.

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

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

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

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

[20]I pause here to observe that the decision maker properly considered the HRA in reaching the Decision (see Ex 1 BCS 15) but that the applicant’s Counsel did not raise any issue in his closing submissions or at any other time during the hearing as to the applicant’s human rights or the application of the HRA.

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

[22]Ibid s 48(1) & (2).

[23]Ibid s 15, s 21, s 23, and s 25. I pause here to note that the right to privacy is protected by the de-identification of these reasons.

[24]Ibid s 26.

[25]Respondent’s closing submissions para’s 73 and 74.

[26]HRA – s 13.

[27]QCAT Act s 21(1).

[28]QCAT Act s 21(2).

[29]Ex 1 – Respondent’s Statement of Reasons BCS-1 to BCS-58; Ex 2 – Respondent’s Notice to Produce Documents NTP 001 to NTP 062.

[30]Ex 3 – Applicant’s Life Story; Ex 4 – Applicant’s Statement of Evidence.

[31]Ex 5.

[32]Applicant’s Outline of Submissions filed by e-mail 2 January 2023 (ACS); Respondent’s Outline of Submissions filed by e-mail 19 January 2023 (RCS). Notwithstanding the applicant was afforded the opportunity to provide a reply on matters of law arising from the respondent’s submissions, no such reply was filed.

[33]ACS para’s 6 to 13.

[34]ACS para’s 31 to 42

[35]ACS para 49.

[36]ACS para’s 53, 56 and 57.

[37]ACS para 25.

[38]ACS para’s 71 and 74.

[39]ACS – para’s 60, 61, 64, and 66.

[40]RCS – para 12.

[41]RCS – para 14.

[42]Ex 5 para 102.

[43]ACS Footnote 6.

[44]Ex 5 para’s 11 and 12.

[45]IHI v Director-General, Department of Justice and Attorney-General [2021] QCAT 206,[64].

[46]Ibid, [72]. Emphasis added.

[47]ACS para 71.

[48]ACS para 92.

[49]ACS para’s 53 and 58 to 61.

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

[51]Ex 1 – BCS 20

[52]See Ex 1 – BCS 24.

[53]Ex 5 para’s 27 to 45.

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

[55]Consider 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]WWCA s 226(2)(a)(iii).

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

[58]WWCA s 226(2)(a)(v).

[59]See Ex 1 BCS 21.

[60]Ex 1 BCS 29 & 30. The name of the Justice is redacted in the document before me.

[61]WWCA s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant.

[62]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].

[63]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87,[53] to [55].

[64]SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392,[68].

[65]Consider dictionary definitions of ‘insight’ being “the capacity for understanding hidden truths etc”- See Australian Oxford Mini Dictionary – 4th Ed – Oxford University Press 2010; or “the ability to perceive clearly or deeply the inner nature of things ; a penetrating understanding as of a complex situation or problem.” – Collins Pocket Dictionary of the English Language – Williams Collins Sons & Co Ltd – London - 1989.

[66]In this regard it is apposite to note the ‘Object’ of the WWCA as it is set out in s 5 therein.

[67]RCS para’s 28(n)(i) to (iii).

[68]This is not taken from a Transcript but rather it is as noted by me during the course of the hearing. Thus the words must be read, not as verbatim, but words to the effect of that which was said.

[69]Ex 1 BCS 41.

[70]ACS para’s 50 to 77.

[71]Ex 4 pg 4 in para 2 under the heading ‘Protective Factors’.

[72]RCS para’s 18 and 19. Footnotes omitted. The footnotes in this extract are mine, such being the citations given in the written submissions by way of Footnotes.

[73]KAP v Director General, Department of Justice and Attorney General [2020] QCAT 457,[63].

[74]SWJ v Director-General, Department of Justice and Attorney-General [2021] QCAT 165,[24].

[75]Ibid.

[76]Ex 4 pg 4.

Editorial Notes

Published Case Name:
NP v Director-General, Department of Justice and Attorney-General
Shortened Case Name:
NP v Director-General, Department of Justice and Attorney-General
MNC:
[2023] QCAT 285
Court:
QCAT
Judge(s):
Member Taylor
Date:
24 Jul 2023

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
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 Lister (No 2)	[2011] QCATA 87	3 citations Jump To Cite 1 - [2011] QCATA 87 Cite 2 - [2011] QCATA 87 Cite 3 - [2011] QCATA 87
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
DVL v Director General, Department of Justice and Attorney General	[2022] QCAT 33	2 citations Jump To Cite 1 - [2022] QCAT 33 Cite 2 - [2022] QCAT 33
IHI v Director-General, Department of Justice and Attorney-General	[2021] QCAT 206	3 citations Jump To Cite 1 - [2021] QCAT 206 Cite 2 - [2021] QCAT 206 Cite 3 - [2021] QCAT 206
KAP v Director General, Department of Justice and Attorney General	[2020] QCAT 457	2 citations Jump To Cite 1 - [2020] QCAT 457 Cite 2 - [2020] QCAT 457
LD v Commissioner for Children and Young People and Child Guardian	[2012] QCAT 373	2 citations Jump To Cite 1 - [2012] QCAT 373 Cite 2 - [2012] QCAT 373
McKee -v- McKee	View on:ICLRUK(1951) AC 352	1 citation Jump To Cite 1 - (1951) AC 352
Re OAA	(2006) QCST 14	1 citation Jump To Cite 1 - (2006) QCST 14
Re TAA	(2006) QCST 11	3 citations Jump To Cite 1 - (2006) QCST 11 Cite 2 - (2006) QCST 11 Cite 3 - (2006) QCST 11
SS v Director-General, Department of Justice and Attorney-General	[2021] QCAT 392	3 citations Jump To Cite 1 - [2021] QCAT 392 Cite 2 - [2021] QCAT 392 Cite 3 - [2021] QCAT 392
SWJ v Director-General, Department of Justice and Attorney-General	[2021] QCAT 165	2 citations Jump To Cite 1 - [2021] QCAT 165 Cite 2 - [2021] QCAT 165
TWE v Director-General, Department of Justice and Attorney-General	[2021] QCAT 121	2 citations Jump To Cite 1 - [2021] QCAT 121 Cite 2 - [2021] QCAT 121
WJ v Chief Executive Officer, Public Safety Business Agency	[2015] QCATA 190	1 citation Jump To Cite 1 - [2015] QCATA 190

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NP v Director-General, Department of Justice and Attorney-General[2023] QCAT 285