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MSF v Director-General, Department of Justice and Attorney-General[2024] QCAT 343

MSF v Director-General, Department of Justice and Attorney-General[2024] QCAT 343

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MSF v Director-General, Department of Justice and Attorney-General [2024] QCAT 343

PARTIES:

msf

(applicant)

v

director-general, department of justice and attorney-general

(respondent)

APPLICATION NO:

CML333-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

29 July 2024

HEARING DATE:

7 November 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. The publication of information that may enable the applicant, members of her family, and others affected by this proceeding to be identified is prohibited.
  1. The decision of the respondent the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  1. The application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where negative notice issued – application for review – where applicant has a history of offending and domestic violence – where offending includes possession of prohibited drugs, resisting a police officer in the execution of duty, assaulting a police officer in the execution of duty, assault occasioning actual bodily harm, charges of dishonesty, and contravene of a prohibition/restriction in an apprehended domestic violence order – where an apprehended domestic violence order has been made against the applicant – whether an ‘exceptional case’

Disability Services Act 2006 (Qld), s 138ZG

Human Rights Act 2019 (Qld), s 13, s 26, s 48, s 58

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 16, s 221, s 226, s 228, s 318, s 319, s 320, s 321, s 322, s 323, s 324, s 325, s 326, s 327, s 328, s 329, s 330, s 331, s 332, s 323, s 324, s 335, s 326, s 337, s 338, s 353, s 354, schedule 7

AD v Director-General, Blue Card Services, Justice Services, Department of Justice and Attorney-General [2017] QCAT 99

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CA v Director-General, Department of Justice and Attorney-General [2022] QCAT 305

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

Guardian v Maher & Anor [2004] QCA 492

KAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 457

Kent v Wilson [2000] VSC 98

KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 271

Owen v Stevens (unreported, 3 May 1991)

Re TAA [2006] QCST 11

TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489

Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142

APPEARANCES & REPRESENTATION:

Applicant:

Mr Jessop

Respondent:

Mr McNeill

REASONS FOR DECISION

Introduction

  1. [1]
    On 6 June 2020 the applicant applied to the respondent for a working with children clearance (otherwise known as a ‘blue card’) under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) (application for a blue card).
  2. [2]
    On 3 September 2020 the respondent sent to the applicant a letter enclosing what is described as “… concerning information about your background or police history …” and inviting her “… to tell us more about this information so that we can consider this before we make a final decision about your application …” (respondent’s 3 September 2020 letter). The applicant responded to the invitation on 10 September 2020 (applicant’s 10 September 2020 response).
  3. [3]
    On 16 August 2021 the respondent issued to the applicant a written notice that states the application is refused (negative notice).
  4. [4]
    On 1 October 2021 the applicant made application to the Tribunal to review the decision.

Non-publication order

  1. [5]
    The Tribunal, under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), may make an order prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. It is the practice of the Tribunal to make a non-publication order in proceedings such as that now before it to avoid endangering the physical or mental health or safety of a person.
  2. [6]
    The Tribunal may make a non-publication order on the application of a party to the proceeding or on its own initiative. Here, neither party applied for an order. Notwithstanding, I am satisfied it is appropriate to make the order to protect the identity of the applicant, the applicant’s family, and others.
  3. [7]
    To the extent appropriate and necessary, the names of persons have been de-identified in these reasons for decision.

Reasons for the decision to issue a negative notice

  1. [8]
    The reasons for the decision to issue a negative notice are dated 16 August 2021 (reasons for decision to issue a negative notice). They refer to the applicant’s criminal history provided by the Queensland Police Service and interstate services.
  2. [9]
    The history is summarised below:

Date

Court

Charge

Finding and penalty

08/07/2011

Waverley Local Court

Common assault – T2.

Destroy or damage property.

No evidence offered.

No evidence offered.

12/12/2013

Newtown Local Court

Possess prohibited drug.

Shoplifting value <=$2,000.00 – T2.

Bond s 10: 9 months supervision NSW probation service. Obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation and to continue counselling through [HS]. Drug to be destroyed.

Bond s 10: 9 months supervision NSW probation service. Obey all reasonable directions for counselling, education development or drug and alcohol rehabilitation and to continue counselling through [HS].

06/02/2014

Downing Centre Local Court

Shoplifting value <=$2,000.00 – T2.

Possess prohibited drug.

Shoplifting value <=$2,000.00 – T2.

Fine $100.00

s 10A conviction with no other penalty

Fine $400.00. Bond s 9: 9 months supervision NSW probation service. Obey all reasonable directions for counselling, education development, or drug and alcohol rehabilitation.

12/06/2014

Mt Druitt Local Court

Steal property in dwelling-house >$2,000.00 & <=$5,000.00 – T2.

Convicted. Warrant to issue.

20/11/2014

Downing Centre Local Court

Shoplifting value <=$2,000.00 – T2.

Possess prohibited drug.

Steal property in dwelling-house >$2,000.00 & <=$5,000.00 – T2.

Bond s 9: 6 months.

No action on breach.

Bond s 9: 2 years to continue current residential rehabilitation for any alcohol use with [NB] and therefore participate and complete “commitment” and “transition” phase. Compensation $3,050.00.

29/11/2016

Downing Centre Local Court

Goods in personal custody suspected being stolen (not motor vehicle).

Possess prohibited drug.

Fine $500.00.

Fine $100.00.

21/12/2016

Central Local Court

Resist officer in execution of duty.

Assault officer in execution of duty.

Custody of knife in public place - first offence.

Possess prohibited drug.

Imprisonment: 5 months commencing 21/12/2016 concluding 20/05/2017 suspended on entering bond s 12: 5 months. To reside at [an address]. To enter into rehabilitation if directed by city community corrections district office. Supervision NSW probation service.

Imprisonment: 5 months commencing 21/12/2016 concluding 20/05/2017 suspended on entering bond s 12: 5 months. To reside at [an address]. To enter into rehabilitation if directed by city community corrections district office. Supervision NSW probation service.

s 10A conviction with no other penalty

Imprisonment: 5 months commencing 21/12/2016 concluding 20/05/2017 suspended on entering bond s 12: 5 months, to reside at [an address]. To enter into rehabilitation if directed by city community corrections district office. Supervision NSW probation service.

15/02/2017

Waverley Local Court

Not give particulars to police.

s 10A conviction with no other penalty.

22/02/2017

Central Local Court

Assault occasioning actual bodily harm (domestic violence).

Resist officer in execution of duty.

Resist officer in execution of duty.

Possess prohibited drug.

Assault officer in execution of duty.

Goods in personal custody suspected being stolen (not motor vehicle).

Possess prohibited drug.

Shoplifting value <=$2000-T2.

Goods in personal custody suspected of being stolen (not motor vehicle).

Enter dwelling with intent (steal) and break out-T1.

Goods in personal custody suspected being stolen (not motor vehicle).

Goods in personal custody suspected being stolen (not motor vehicle).

Goods in personal custody suspected being stolen (not motor vehicle).

Goods in personal custody suspected being stolen (not motor vehicle).

Goods in personal custody suspected being stolen (not motor vehicle).

Contravene prohibition/restriction in apprehended violence order (domestic).

Imprisonment: 3 months commencing 06/01/2017 concluding 05/04/2017.

Imprisonment: 3 months commencing 06/01/2017 concluding 05/04/2017.

Imprisonment: 5 months commencing 06/01/2017 concluding 05/06/2017.

Imprisonment: 5 months commencing 06/01/2017 concluding 05/06/2017.

Imprisonment: 5 months commencing 06/01/2017 concluding 05/06/2017.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty.

s 10A conviction with no other penalty.

s 10A conviction with no other penalty. Property to owner.

Imprisonment: 12 months commencing 06/01/2017 concluding 05/01/2018. Non parole period with conditions: 8 months commencing 06/01/2017 concluding 05/09/2017. Release subject to supervision.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty. Property to owner.

s 10A conviction with no other penalty.

  1. [10]
    The applicant admits the criminal history.
  2. [11]
    The facts and circumstances surrounding the criminal history are set out in paragraph 3.1 of the reasons for decision to issue a negative notice. The relevant parts of the facts and circumstances are extracted below:

Assault occasioning actual bodily harm (domestic violence)

Resist officer in execution of duty

Date of offence: 1 November 2016

Summary of relevant facts

  • The complainant in this matter was the applicant’s mother. They resided together at the time of the offence with the complainant’s husband, the applicant’s stepfather.
  • The applicant had been living at the address for the previous four months.
  • At approximately 10:45pm on 1 November 2016 the complainant and her husband spoke with the applicant regarding her recent lifestyle choices which were affecting the complainant and her husband.
  • The discussion became heated, and the applicant retreated upstairs.
  • The complainant informed the applicant she was no longer welcome to live at the residence and the applicant began to throw her personal items around the room and stairwell.

Charge one

  • Both the complainant and her husband went into the applicant’s room to continue speaking with her.
  • The applicant grabbed a set of car keys from a table and, because the complainant did not want her driving in her current state, both the complainant and her husband attempted to calm her down.
  • The applicant became further agitated and she punched the complainant to the bridge of her nose with a closed fist. This caused the complainant immediate pain and for blood to pour from her nose.
  • The complainant stepped away and brought the injury to the attention of her husband. They exited the applicant’s room and returned to the bottom floor of the house while the applicant continued to pack her belongings.
  • The complainant contacted police who arrived a short time later. The complainant met police outside where she provided them with a brief version of events before they entered the house and spoke with the complainant around the dining room table. The complainant told police the applicant had punched her in the nose.
  • Police walked upstairs and observed property scattered across the floor on the landing which led to the applicant’s bedroom. They were informed the applicant was inside the room. Police listened through the door and heard what appeared to be the applicant talking to herself.
  • Police knocked on the door and announced their presence. The door to the applicant’s room was locked and she refused to unlock it. The complainant’s husband advised they had a key for the door which he retrieved for police to gain entry to the room.

Charge two

  • Police opened the door to the applicant’s room and were greeted by the applicant who began rambling and refused to listen to police.
  • Although police were only seeking to speak with the applicant, because of her refusal to assist them in their duties, the visible injuries incurred by the complainant and the complainant’s version of events, police informed the applicant she was under arrest for assault.
  • The applicant immediately began to back away from police towards an open doorway which led to a small balcony. As a precaution, police took hold of the applicant’s arm and continued to inform her she was under arrest and to comply with directions.
  • The applicant refused to walk with police and began pulling both arms away and knocking items over. The applicant dropped her body weight before attempting to break free from police.
  • Police used wrist locks and attempted to control the applicant. The applicant wedged herself beside the bed and police used reasonable force to move her.
  • The applicant continued to lash out at police and police placed her in handcuffs for their safety. Despite this, the applicant continued to argue with police and refused to assist them by not walking.
  • Police took the applicant by both arms and carried her down the stairwell and out the front door where she was placed in the cage of the police vehicle before being transported to the police station.
  • Police remained at the residence and obtained evidence from the complainant and her husband.
  • Police also obtained images of the complainant's injuries and of the bedroom where the incidents occurred.
  • At the police station, the applicant was offered the opportunity to participate in. an interview but she responded, “I have nothing to say”.
  • Police applied for an apprehended domestic violence order on behalf of the complainant.

Contravene prohibition/restriction in apprehended domestic violence order

Date of offence: 2 November 2016

Summary of relevant facts

  • The complainant in this matter was the applicant’s mother with whom she resided until the imposition of an apprehended domestic violence order (ADVO) which prohibited the applicant from living at the address as of 1 November 2016. The applicant was prohibited from assaulting, molesting, harassing, threatening or interfering with the complainant or a person with whom the complainant had a domestic relationship, engaging in any other conduct that intimidated the complainant or a person with whom the complainant had a domestic relationship, stalking the complainant or a person with whom the complainant had a domestic relationship, approaching within 100 metres of the premises at which the complainant resided or worked and approaching the complainant or any premises or place at which the complainant resided or worked within 12 hours of consuming alcohol or illicit drugs.
  • The order was set to expire on 30 November 2016.
  • At 7:00am on 2 November 2016 the applicant attended the address to collect her vehicle which was parked in the garage. The garage was accessible by walking through the path at the front of the address.
  • The applicant rang the buzzer to enter the property which was answered by the complainant’s husband. The applicant requested to enter for the purpose of collecting her vehicle which was initially refused.
  • Eventually, the complainant’s husband allowed the applicant to enter the address and she walked within three metres of the front door where the complainant was standing.
  • As the applicant was within 100 metres of the complainant, she breached the ADVO,
  • At approximately 11:45am on 2 November 2016 police contacted the applicant and requested she attend the police station to be interviewed regarding the breach.
  • The applicant refused to disclose where she was and was uncooperative with police by terminating the call. Police could not locate the applicant because she had no fixed residence.

Possess prohibited drug

Custody of knife in public place - first offence

Assault officer in execution of duty

Resist officer in execution of duty

Driver not wearing seatbelt properly adjusted/fastened

Not obey direction of police/authorised person

Date of offence: 12 November 2016

Summary of relevant facts

  • At approximately 9:30pm on 12 November 2016 police were driving in a fully marked police vehicle. The applicant was driving a vehicle of which she was the sole occupant.
  • Police observed the applicant was not wearing her seatbelt, so they followed the applicant to a dead-end street and activated their warning lights to request her to stop her vehicle.
  • The applicant stopped her vehicle and police pulled up next to the applicant. After a few seconds, the applicant reversed her vehicle behind the police vehicle.
  • At this time, a police officer in full uniform exited the police vehicle and ran after the applicant yelling, “police, stop!”. The applicant made eye contact with the officer before she drove her vehicle away.
  • Police broadcasted a description of the applicant over the police radio.
  • The applicant drove her vehicle to another dead-end street and parked her vehicle.
  • Several police officers searched for the applicant and her motor vehicle and, shortly before 10:00pm, police in full uniform observed her standing next to her vehicle.
  • When she saw police, she started to run away and police yelled, “stop, police!”. Police ran after the applicant and tackled her to the ground. She started resisting by kicking, waving and pulling her arms with force and shaking her body.
  • Three officers were necessary to control the applicant and to place her in handcuffs.
  • While the applicant resisted arrest, she bit an officer near his right elbow and another officer sustained grazes on both knees.
  • Before they searched the applicant’s vehicle, the applicant informed them they would find cannabis inside. During their search, police located a small bowl containing green vegetable matter on the front passenger seat (alleged to be cannabis), a sandwich bag also containing green vegetable matter inside the glove box (alleged to be cannabis) and a small metallic white box containing green vegetable matter next to the sandwich bag (alleged to be cannabis).
  • Police also located a small Swiss army knife in the applicant’s pocket. When police located the knife, the applicant said, “I am allowed to have this, you can buy it everywhere”.
  • When dealing with police, the applicant was very argumentative, her pupils were dilated, her mouth was dry, and her speech was slurred. Based on these indicia and the cannabis located in her car, police believed she was affected by drugs.
  • Police conducted a breath test on the applicant with a negative result. She was conveyed to another location for a blood and urine test.
  • The applicant was conveyed to the police station where she declined to participate in an electronic record of interview.
  • The drug located weighed 3.97 grams.

Shoplifting value <= $2,000.00

Enter dwelling with intent (steal) and break out

Goods in personal custody suspected being stolen (not motor vehicle) (seven charges)

Possess prohibited drug

Date of offence: 4 January 2017 to 6 January 2017

Summary of relevant facts

Charge one

  • At approximately 1:00pm on 4 January 2017, the applicant entered a supermarket and walked around the store selecting various items and concealing them within a cooler bag she had also taken from a shelf inside the store. The total value of the items the applicant selected amounted to $51.10.
  • The applicant exited the store and made no attempt to pay for the items. A witness attempted to stop the applicant, but she ignored him, handed him the cooler bag and ran from the location.
  • The incident was captured on CCTV.

Charge two

  • At approximately 3:30pm on 4 January 2017 the complainant left her unit. The front door was locked but a rear window was ajar by approximately 10 centimetres.
  • Between this time and 1:00pm on 5 January 2017, the applicant entered the unit by unknown means.
  • At approximately 1:00pm on 5 January 2017 the complainant returned to her unit at which time the front door was still locked. The complainant could hear music playing from within the unit and observed several clothes items scattered throughout the hallway which were not there when she left.
  • The complainant walked into her bedroom and observed the applicant standing at the foot of her bed wearing her bra and a pair of black shorts. She had the complainant’s shirt in her hand and was reaching into a drawer for further clothing items.
  • The victim asked, “Who are you, what are you doing here?” to which the applicant responded, “I thought it was abandoned”. The complainant said, “It looks pretty lived in to me” and the applicant said, “Don't worry about it”.
  • The complainant grabbed her shirt from the applicant who walked around the complainant into the bathroom.
  • The complainant looked around the room and observed cigarette butts in a container next to her bed, cigarette ash on her bed and the bed sheets had been disturbed as though the applicant had slept in the bed. A bottle of wine which was a Christmas present had been opened and partially consumed, candles had been lit and the complainant’s items had been scattered over the floor.
  • The complainant noticed a black bag on the floor which belonged to her and found items inside belonging to the applicant. The complainant located a wallet and took photographs of the driver’s licence.
  • The applicant re-entered the room and saw the complainant taking the photographs. She quickly left the apartment with two large beach bags.
  • The complainant took the property left by the applicant to the police station and reported the matter.

Charges three to eight

  • At approximately 12:10pm on 6 January 2017 the applicant was observed to pick up a surfboard and bags off the beach. The witness approached the applicant, took the surfboard off her and returned it to the owner before following the applicant to the bathroom and contacting police.
  • Police attended a short time later and approached the applicant who was inside the bathroom. Police noticed the applicant had several bags in her possession and they questioned her as to whether she had stolen any of the items.
  • The applicant responded she had not stolen any items and the bags belonged to her. She complied with a police search which located a handbag valued at $289.00, an Apple TV set valued at $299.00, an Apple iPhone valued at $1,000.00, a shirt valued at $90.00, two soaps valued at $15.00 each, one hard drive valued at $100.00 and two face and body washes valued at $15.00 each.
  • The applicant was placed under arrest and initially provided an incorrect name and date of birth. She was conveyed to the police station where enquiries were made to establish her identity.
  • Charge nine
  • Whilst in custody, the applicant was subjected to a strip search during which two grams of cannabis was in her bra.
  • Police located a black notebook in the applicant’s possession within which the following was written:

Do you remember the time I got kicked out of a backpacker’s lodge at Bondi Beach and snuck into some girl’s apartment, slept in her bed and played dress up in her clothes until she came home and kicked me out?”; and

“Went into somebody's backyard and stole their join bumpers and then went next door and stole an iPhone.

  • The applicant was offered the opportunity to participate in an electronic record of interview which she declined.
  • Police obtained the applicant’s DNA by way of a buccal swap.
  • The complainant was seeking compensation in relation to the bra valued at $70.00 and the wine the applicant consumed valued at $20.00.
  1. [12]
    The facts and circumstances are not disputed by the applicant.
  2. [13]
    The applicant provided the applicant’s 10 September 2020 response in response to the respondent’s 3 September 2020 letter inviting her “… to tell us more about this information so that we can consider this before we make a final decision about your application …” She asserts:
  1. she chose a path of drugs and alcohol at a young age which affected her judgement;
  2. by the age of twenty-four years, she was homeless, addicted to drugs and alcohol and “... lived a life that was extremely far from my morals and values ...”;
  3. in 2017 she was imprisoned for 10 months during which time she “... completely detoxed and rehabilitated ...”;
  4. on being released from prison, she travelled to Queensland to start a new life gaining employment with a local telemarketing company and completing a Bachelor of Communications degree at Griffith University and a Pilates Instructor course; and
  5. she has been offered a position as a yoga teacher at a local children’s gym.
  1. [14]
    In deciding to issue a negative notice, the respondent makes specific reference to the police information, the applicant’s submissions and references, and the transferability of a blue card.

Written material

Parties

  1. [15]
    The parties filed voluminous written material. It includes:
  1. further documents filed by the applicant on 22 November 2021. The documents include:
  1. the negative notice and reasons for the decision to issue a negative notice;
  2. the applicant’s brief history;
  3. nine references;
  4. certificates and records of results;
  1. documents provided to the Tribunal by the respondent under section 21(2) of the QCAT Act filed 4 January 2022 (documents BCS-1 – BCS-52). The documents include:
  1. the reasons for the decision to issue a negative notice;
  1. the application for a blue card;
  2. national police check results reports for the applicant as at 15 July 2020 and 22 November 2021;
  3. the respondent’s 3 September 2020 letter;
  4. the applicant’s 10 September 2020 response; and
  5. the negative notice;
  1. respondent’s further documents filed 14 December 2022 (documents NTP001 – NTP272);
  2. applicant’s personal statement filed 24 May 2023, together with four references and a toxicology report;
  3. submissions on behalf of the applicant filed 24 October 2023. The documents accompanying the submissions include two references; and
  4. respondent’s outline of submissions filed 24 October 2023.

Documents produced in response to notices to produce

  1. [16]
    Documents produced to the Tribunal in response to notices to produce include:
  1. Local Courts Services, New South Wales Department of Communities and Justice: The documents include a provisional apprehended domestic violence order made by the Local Court of New South Wales against the applicant on 2 November 2016, an interim apprehended domestic violence order made by the Court against the applicant on 3 November 2016, and a final apprehended domestic violence order made by the Court on 22 February 2017.
  1. New South Wales Department of Communities and Justice: The documents include reports on convictions of the applicant and inmate documents prepared by New South Wales Corrective Services and others whilst the applicant was incarcerated.

The documents produced by Local Courts Services, New South Wales Department of Communities and Justice

  1. [17]
    The incident giving rise to the orders made by the Local Court of New South Wales on 2 and 3 November 2016 and 22 February 2017 is described in the following terms:

The accused in matter [redacted]. The victim is [redacted]

The victim is the mother of the accused. They currently reside together at [redacted]. The accused has been living there for the past 4 months.

About 10:45pm on Tuesday 1 November 2016, the victim spoke with the accused regarding her recent lifestyle choices that were affecting both the victim [redacted]. The discussion became heated before the accused retreated upstairs of the the (sic.) town house. The victim informed the accused that she was no longer welcome to live with them at this house. The accused began to throw her personal items around her room and the stairwell.

Sequence 1:

Both the victim and [redacted] went into her room in order to continue speaking with the accused. The accused grabbed a set of car keys from a table. The victim did not wish for the accused to be driving in the state she was in. Both [redacted] and the victim took attempted (sic.) to calm the accused down. In doing so the accused became even further agitated and with a closed right fist punched the victim on the bridge of her nose. This caused immediate pain and blood to pour from the victim’s nose.

The victim stepped away and brought the injury to the attention of [redacted]. Both the victim and [redacted] retreated out her room and returned to the bottom floor of the house. The accused continued to attempt to pack her belongings.

The victim contacted police. A short time later police arrived on scene. They were greeted by [redacted] on the street who provided police with a brief version. Police entered the house and spoke with the victim around the dining room table. The victim provided a version in which she stated the accused punched her in the nose.

Police walked upstairs and observed property to (sic.) scattered across the floor on the landing which lead to the door. [Redacted] pointed to the door and explained that the accused was inside. Police listened through the door which revealed the accused to be talking to herself. Police knocked the door announcing their presence. The accused had the door locked and refused to open. After some discussion the accused continued to refuse to open the door. [Redacted] told police that he had a key and retrieved the key in order for police to gain entry.

Sequence 2:

Police gained entry into the room using the key and were greeted by the accused. The accused began rambling and refused to listen to police. At this point police were only looking to speak with the accused. As a result of the accused refusing to assist police the visible injuries to the victim and version provided. Police informed the accused that she was currently under arrest for assault. The accused immediately began to back away from police towards and open doorway which lead straight off a very small balcony. As a precaution police took hold of the accused arm and continued to inform the accused that she was under arrest and to comply with the direction.

The accused refuse to walk with police and began pulling both arms away from police and knocking items over the accused dropped all her body weight before attempting to break free from police. Police used approved wrist locks and attempted to control the accused. As the accused was wedging herself in side of the bed police used reasonable force in an attempt to move the accused. The accused continued to lash out at police and as a result police made the decision to place the accused in handcuffs to the rear.

The accused continued to argue with police and not assist police in walking. Police took the accused by both arms and carried her down the stairwell and out the front door. The accused was placed in the rear of a police cage vehicle before being conveyed back to Maroubra Police Station.:

Applicant’s personal statement

  1. [18]
    In her personal statement, the applicant summarises her background, education, and work history. Her parents separated and she experienced feelings of neglect. She describes her introduction to drugs in the following terms:

My brother began experimenting with illicit substances, and shortly after I followed a similar path. These poor choices paved the start of a difficult early adulthood.

  1. [19]
    By the age of 14 years, the applicant states, she was smoking cannabis. She was smoking ice (crystal methamphetamine) at 18 years of age and “... struggling with drug dependency ...”
  2. [20]
    The applicant accepts she has a criminal history. She attributes some of her decision making to her drug dependency. “I acted on impulse and had no consideration for the consequences.” She asserts she is no longer a violent person or a drug user and is “completely sober”.
  3. [21]
    She believes she can impart knowledge to children and teenagers about the importance of mind, body and soul and the impact poor decisions can have, and is “... eager and desperate to have the opportunity to use my past experiences and turn them into something positive and help young people make healthy choices.”

References

  1. [22]
    The references submitted with the applicant’s personal statement are referred to later in these reasons for decision.[1]

Submissions on behalf of the applicant

  1. [23]
    The applicant, it is said in the submissions on her behalf, wants to engage with community volunteer work with the Pyjama Foundation (an organisation said to work to disrupt the system of disadvantage and positively impact the inequitable life trajectories evidenced for children and young people from an out-of-home care background). The applicant also wants to work as a children’s yoga instructor at the local kids’ gym and offer fitness classes for parents and children.
  2. [24]
    The applicant relies on the following material:
  1. her personal statement;
  1. annexures MF-1 to MF-5 (four references and a toxicology report); and
  2. a further two references.
  1. [25]
    The applicant submits the most serious offence occurred about seven years ago in circumstances where the applicant was “... heavily impaired by drugs ...” She served 10 months in custody. She has taken steps to rehabilitate herself to ensure this type of offending does not occur again.
  2. [26]
    There can be no doubt, it is asserted, the applicant’s genuine insight is an important factor in the process of considering her application to obtain a blue card. Reference is made to the decision of the former Children’s Services Tribunal in Re TAA[2]. There, at [97], the Tribunal held that a person who is aware of the consequences of their actions upon others is less likely to re-offend than a person devoid of insight into the effect of their actions. Insight is particularly important with children because they are wholly dependent on adults around them having insight into their actions and the likely effect upon children.
  3. [27]
    In conclusion, it is submitted the applicant’s case is not exceptional for the following reasons:
  1. the offending is dated;
  1. the applicant has taken significant steps and made genuine efforts to rehabilitate herself;
  2. the applicant is no longer a drug user;
  3. the offending did not occur in the presence of children, or a time proximate to when the applicant had children in her care;
  4. there have been no recent charges, convictions, or other police information relevant to the applicant or drug, violence, or dishonesty related offences;
  5. the applicant has demonstrated insight and remorse into her offending; and
  6. the applicant has no desire to take drugs or engage in any form of illegal activity.
  1. [28]
    The correct and preferable decision, it is submitted, is that a positive notice and blue card be issued to the applicant.

Respondent’s outline of submissions

  1. [29]
    The respondent filed an outline of submissions. In addition to the submissions, it relies on the following documents:
  1. a bundle of documents filed in the Tribunal marked BCS1 – 52, containing:
  1. the reasons for the decision to issue a negative notice;
  1. the applicant’s criminal history;
  2. police reports on the applicant’s offending; and
  1. a bundle of documents filed in the Tribunal marked NTP1 – 272, containing material produced to the Tribunal by New South Wales Corrective Services and New South Wales Central Local Court.
  1. [30]
    The respondent submits the applicant’s criminal history depicts repeated incidents of threatening, aggressive, and antisocial behaviour, and, notwithstanding intervention by the police and courts, she was not deterred from this conduct. The applicant’s offending has attracted a range of penalties, including, in 2013 and 2014, periods of probation with the applicant being ordered to attend drug counselling, imprisonment in 2016 and 2017, and fines.
  2. [31]
    As a result of the offences, on 1 November 2016 the New South Wales Police issued the applicant with a provisional apprehended domestic violence order. She is named as the respondent to an interim order on 3 November 2016 and, on 22 February 2017, a final order issued for 12 months. Police recorded concerns about the applicant’s mental health, observing she was self-medicating with illicit drugs.
  3. [32]
    The respondent asserts there is insufficient evidence to suggest the applicant has acquired the necessary skills and abilities to address the significant traumas and triggers that ultimately led to her offending and drug misuse. Reference is made to the decision of the Tribunal in KAP v Director-General, Department of Justice and Attorney-General[3]. There, the applicant had a history of mental illness associated with concerning past behaviour. The Tribunal, at [63], relevantly observed:

... it is not sufficient for [the applicant] to rely solely upon him attending counselling. He must show he has acquired the necessary ability or skills to cope with stressful situations. That is, there must be evidence to support the hypothesis the counselling he received greatly reduces the risk of his susceptibility to self harming in stressful situations.

  1. [33]
    The respondent holds concerns about one of the persons the applicant relies on as a member of her support network, her mother, is the person said to have exposed her to violence and drugs as a child. The Tribunal, in CA v Director-General, Department of Justice and Attorney-General[4], considered the adequacy of the applicant’s support network and its ability to serve as a protective factor in the future. It concluded:

... the Tribunal is not satisfied of the significance and effectiveness of the applicant’s support network as a protective factor in the future. The applicant and the psychologist identified the applicant’s mother and brother as a support network and protective factor. The applicant’s mother and brother did not appear in person before the Tribunal. The Tribunal notes that they did not serve as a protective factor at the time of the offending and the applicant’s brother was her co-accused in the offending...

  1. [34]
    The respondent submits the effect of issuing a blue card to the applicant is she can work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the WWC Act, not just for the purpose for which the Applicant has sought the card. She could work with children of any age, gender or vulnerability. The submission continues:

The Tribunal has no power to issue a conditional blue card and once issued, a blue card is unconditional and fully transferable across all areas of regulated employment and business. The holder of a blue card is allowed unsupervised and unfettered access to children in a range of regulated activities.

(Citation omitted)

  1. [35]
    The submissions conclude by asserting that, overall, the material reflects adversely on the applicant’s eligibility to hold a blue card and raises questions about her management of the triggers to her offending, including her mental health and drug use.

Legislative framework

Object and principles of the WWC Act

  1. [36]
    The object of the WWC Act is found in section 5. It is “... to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring:

(a) the development and implementation of risk management strategies; and

(b) the screening of persons employed in particular employment or carrying on particular businesses.”

  1. [37]
    Section 6 contains the principles for administering the Act. It provides:

This Act is to be administered under the following principles:

  1. the welfare and best interests of a child are paramount;
  1. every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.

(Emphasis added)

Application for a blue card

  1. [38]
    The respondent must issue a blue card to an applicant if the respondent is not aware of any relevant information about the person or is not required to issue a negative notice to the person under section 221(2) of the WWC Act.[5] However, the respondent must issue a negative notice to the applicant if the respondent is aware of relevant information about the person and is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a blue card to the person.[6]
  2. [39]
    The term relevant information is defined in section 221(3) of the Act. It is:
  1. information that the person has:
  1. a charge for an offence other than a disqualifying offence; or
  1. a charge for a disqualifying offence that has been dealt with other than by a conviction; or
  2. a conviction for an offence other than a serious offence;
  1. investigative information;
  2. domestic violence information;
  3. disciplinary information;
  4. adverse interstate WWC information;
  5. other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a blue card to the person.

Exceptional circumstances

  1. [40]
    The term ‘exceptional circumstances’ is not defined in the WWC Act. In Kent v Wilson[7], Hedigan J, at [22], repeated what he said in Owen v Stevens[8]:

The use of the phrase ‘exceptional circumstance’ is not unknown in the legal lexicon. Section 13 of the Bail Act is a well-known example.

Exceptional is defined, contextually, in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.

The facts must be examined in the light of the Act, the legislative intention, the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.

Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.

  1. [41]
    Wilson J, then President of the Tribunal, and Member Ford, in Commissioner for Children and Young People and Child Guardian v FGC[9], citing Kent v Wilson, said in relation to the term:

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: children.[10]

Matters to which the respondent must have regard

  1. [42]
    If the respondent is aware an applicant for a blue card has been convicted of, or charged with, an offence, in deciding whether there is an exceptional case for the applicant, it must have regard to the matters set out in section 226(2) of the WWC Act. Those matters are:
  1. in relation to the commission, or alleged commission, of an offence by the person:
  1. whether it is a conviction or a charge; and
  1. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
  2. when the offence was committed or is alleged to have been committed; and
  3. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
  4. 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 or not to make a disqualification order under section 357, the court’s reasons for its decision;
  1. any information about the person given to the chief executive under section 318 (by the Director of Public Prosecutions) or 319 (by the Chief Executive, Corrective Services);
  2. any report about the person’s mental health given to the chief executive under section 335 (by a registered practitioner);
  3. any information about the person given to the chief executive under section 337 (by a Metal Health Court) or 338 (by a Metal Health Review Tribunal);
  4. information about the person given to the chief executive under section 138ZG of the Disability Services Act 2006 (Qld);
  5. anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.
  1. [43]
    If the respondent is aware of domestic violence information about an applicant for a blue card, it must have regard to the matters in section 228(2) of the WWC Act. Those matters include the circumstances of a domestic violence order or police protection order mentioned in the information, including the conditions imposed on the applicant by the order or notice.

Review

  1. [44]
    A decision of the respondent on whether there is an exceptional case for an applicant for a blue card is a chapter 8 reviewable decision about the applicant if, because of the decision, the respondent issued to the applicant a negative notice.[11] The applicant may apply, within the prescribed time (28 days after the applicant is given the decision)[12] and as otherwise provided under the QCAT Act, to the Tribunal for a review of the decision.[13]
  2. [45]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[14] The Tribunal must hear and decide a review by way of a fresh hearing on the merits.[15]

Oral evidence

Applicant

  1. [46]
    The applicant, in cross-examination, was asked to reflect on her criminal history and whether her drug use was a significant factor. She responded there were several factors, including thrill-seeking behaviour that turned into antisocial behaviour.
  2. [47]
    Her past insight into her offending, the applicant agreed, was limited.
  3. [48]
    She first used an illicit drug, the applicant stated, when around 14 years of age. The drug was cannabis. She last used cannabis in January 2017.
  4. [49]
    She first used methylamphetamine when 15 or 16 years of age. It became daily, the applicant stated. She last used the drug seven years ago.
  5. [50]
    The triggers were other people around her.
  6. [51]
    The applicant was asked whether she engaged with any medical professionals about her drug use; a psychologists or counsellor, those kinds of people. She responded she consulted a psychologist three or four times in 2021 and 2022. She did not consult a medical professional.
  7. [52]
    Her strategies for treating anger, upset, resentment, human feelings and behaviours are going to the gym, going for a run, swimming, and drawing and painting.
  8. [53]
    The applicant conceded she has experienced mental health issues in the past because of her drug use, and periods of psychosis. She conceded she suffered trauma growing up but has not sought assistance for the trauma.
  9. [54]
    In re-examination, the applicant was asked whether she has a strong support network on the Gold Coast. She responded, “I do.” The applicant expanded on her affirmative response in the following terms:

So I would say in terms of support networks, I would say I have a close-knit group of friends. I have – would say that I’m friends with the people that I work with. And I would say that my support network is – it’s actually a number of groups that I have either joined or networked with, and I’ve – and over the years, that has become my support network. So it’s a – they’re from different groups, and altogether it has made a – yeah.

  1. [55]
    In re-examination, the applicant was asked to how she wanted to use what was described as ‘an unpleasant and unfavourable criminal history’ for the good of children. She responded:

My belief is that we are all – we’re all – we’re all born as babies. A lot of the – the habits were learned behaviours. Something that, at an early age, if I had maybe met someone like me, who had been through – maybe yes, maybe no. I don’t know. But someone who had lived the life that I’ve lived. If they shared insight as to what that life might be and how uncool it is and how unattractive and how – how sad that life really is, I could – I could hope – even if it was just one person that you could get through to, that maybe you could save a life. Maybe. I don’t know. But even just one person.

Ms LM

  1. [56]
    Ms LM is the applicant’s mother. She is an information technology consultant and is aware of the applicant’s criminal history.
  2. [57]
    Ms Jessop asked Ms LM whether the applicant has expressed remorse to her and has insight into her offending. She responded, “Yes. She has and she has apologised.”
  3. [58]
    Later, when asked by the Tribunal whether she might assist it in deciding whether to approve her daughter’s application for a blue card, Ms LM responded:

… I am not an expert on addiction, but what I could see was that once someone becomes an addict, their personality changes, and the only thing they think about is the next hit …

… But I believe it was because she was an addict, and all I can say is that it’s been six or seven years. She has lived a healthy lifestyle. She doesn’t – she hardly drink[sic.]. She eats only healthy food. Everything she does is – is positive, and I don’t see that person anymore. That person has gone. So I – all I can do is judge it from the last six years. Her behaviour has completely changed.

So I feel confident – in fact, I would say she would be good to be around young people, because someone who has walked down the wrong path can maybe pick up when someone is struggling, and she is very empathetic and very good at talking to people…

Mr TMF

  1. [59]
    Mr TMF is the applicant’s father. He is retired.
  2. [60]
    He was asked in re-examination whether the applicant provided his grandchildren with a safe and protective environment when with them. He responded:

Absolutely. Yeah. She – she – [the applicant’s] like a kid again. But – you know – we – you know – she likes to play with them and she makes sure they’re safe. She – she makes sure there’s no – no – no dangerous games and she’s very protective…

  1. [61]
    He was also asked whether the applicant would be a good mentor for young people and responded in the affirmative.

Ms AAD

  1. [62]
    Ms AAD is employed in administration for a psychology practice. She first met the applicant in kindergarten.
  2. [63]
    She described the applicant as quite lost in her life. “She became very distant as a friend but she’s very different now and that’s the complete opposite now.”
  3. [64]
    She later added:

… she’s a lot more focused on her life and her goals and she – we contact each other almost on a weekly basis multiple times throughout the week. She’s healthy physically and mentally which my family and I are over the moon about because we were really worried about her during that time.

Ms SF

  1. [65]
    Ms SF is a senior manager employed by Commonwealth Bank of Australia in digital content, and is married to the applicant’s first cousin, Mr JF. She has known the applicant since 2012.
  2. [66]
    In cross-examination, Ms SF stated she contacts the applicant by means of social media and messaging a couple of times a year. She has a positive relationship with her.

Ms DMF

  1. [67]
    Ms DMF is a radiographer employed by BreastScreen New South Wales. The applicant is her niece.
  2. [68]
    She stated in evidence that she and the applicant communicate by text messaging, “... probably 20 times a year …” She described her relationship with the applicant as very loving.

Ms BMP

  1. [69]
    Ms BMP is a primary school teacher employed by the Department of Education. She has known the applicant for 26 years. They went to school together.
  2. [70]
    Ms BMP described her relationship with the applicant as a positive friendship.
  3. [71]
    In cross-examination, Ms BMP stated that she has seen the applicant interact with children. She described the interaction as definitely positive, “... I think she’s really engaging with them … she listens to them …”
  4. [72]
    She would not be concerned about the applicant working with children in the future, despite her background.

Consideration

Introduction

  1. [73]
    The applicant has been convicted of, or charged with, the offences set out in paragraph [8] of these reasons for decision. It follows regard must be had to the matters set out in section 226(2) of the WWC Act.

Conviction or charge (section 226(2)(a)(i) of the WWC Act)

  1. [74]
    Several of the charges laid against the applicant did not result in a conviction. But that is not to say they should not be considered.
  2. [75]
    In TNC v Chief Executive Officer, Public Safety Business Agency[16], Member Rogers observed:

A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because Parliament recognises this distinction and the difficulties in obtaining a conviction.

  1. [76]
    The learned Member then commented on the perceived unfairness to the applicant, and continued:

[85] Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10:

The infringements [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being

[86] I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances.

  1. [77]
    I agree with Member Rogers.
  2. [78]
    As I have said, the criminal history is admitted by the applicant, as are the circumstances.

Whether the offences are serious or disqualifying offences (section 226(2)(a)(ii) of the WWC Act)

  1. [79]
    Serious offence is defined in section 15 of the WWC Act. It includes an offence against a provision of an Act mentioned in schedule two or three, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  2. [80]
    Disqualifying offence is defined in section 16 of the Act. It includes an offence against a provision of an Act mentioned in schedule 4 or 5, column 1, subject to any qualifications relating to the provision mentioned opposite in column 3.
  3. [81]
    The offences charged are neither serious nor disqualifying offences.

When the offences were committed or alleged to have been committed (section 226(2)(a)(iii) of the WWC Act)

  1. [82]
    The dates of the offences are set out in the table in paragraph [9] of these reasons for decision. They occurred over a period of about six years, between seven and thirteen years ago.

Nature of offences (section 226(2)(a)(iv) of the WWC Act)

  1. [83]
    The circumstances surrounding the charges, set out in the material filed in the Tribunal, are summarised in paragraph [11] of these reasons for decision.

Penalties imposed (section 226(2)(a)(v) of the WWC Act)

  1. [84]
    A range of penalties were imposed by the courts, including terms of imprisonment. They are found in column 4 of the table in paragraph [9].

Comments and findings on convictions and charges

  1. [85]
    The applicant was charged with thirty-four offences over about six years. Several of the charges are of particular concern. They include seven charges of possession of a prohibited drug.
  2. [86]
    The more recent charges of concern include the following:
  1. on 21 December 2016 the applicant was convicted of resisting an officer in the execution of duty. She was sentenced to be imprisoned for five months, suspended on the applicant entering a bond;
  1. she was also convicted of assaulting an officer in the execution of duty. She was sentenced to be imprisoned for five months, again suspended on the applicant entering a bond;
  2. on 15 February 2017 the applicant was convicted of not giving particulars to police. She was convicted with no other penally.
  3. On 22 February 2017 the applicant was convicted of sixteen offences. The offences of concern included:
  1. one charge of assault occasioning actual bodily harm. She was imprisoned for three months;
  1. two charges of resisting an officer in the execution of duty. She was imprisoned for three months;
  2. one charge of assaulting an officer in the execution of duty. She was imprisoned for five months; and
  3. several charges of dishonesty; and
  4. one charge of contravening a prohibition/restriction in an apprehended violence order. She was convicted with no other penalty.

Information about the applicant under sections 318-338 of the WWC Act (sections 226(2)(b)-(f) of the WWC Act)

  1. [87]
    The Tribunal has not been given any information about the applicant under sections 318-338 of the WWC Act.

Domestic violence information (section 228(2)(a) of the WWC Act)

  1. [88]
    Domestic violence information, about a person, means information about the history of domestic violence orders made, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012 (Qld).[17]
  2. [89]
    The definition of domestic violence order in schedule 7 to the WWC Act takes you to section 23(2) of the Domestic and Family Violence Protection Act 2012 (Qld) (DFVP Act). There, the term is defined as:
  1. a protection order; or
  1. a temporary protection order.
  1. [90]
    A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved.[18]
  2. [91]
    A provisional apprehended domestic violence order was made by a police officer against the applicant on 2 November 2016. On 3 November 2016 an interim apprehended domestic violence order was made by the Local Court of New South Wales against the applicant. A final order was made by the Court against the applicant on 22 February 2017. It remained in force for twelve months.
  3. [92]
    The aggrieved named in each of the orders is the applicant’s mother.
  4. [93]
    The facts and circumstances surrounding the incident giving rise to the orders are set out in paragraph [17] of these reasons for decision. Briefly, the applicant punched her mother in the nose with a closed fist causing bleeding and pain.
  5. [94]
    It is well established domestic violence can have a profound and lasting effect on children, both psychologically and emotionally. The ways in which it may impact on children include emotional distress, behavioural problems, academic and social difficulties, and physical health problems.
  6. [95]
    In Vaeau v Director-General, Department of Justice and Attorney-General[19], Senior Member Howard and Member Fitzpatrick (as she then was) said the following about the effect of domestic violence on children:

Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm ...[20]

  1. [96]
    It is submitted by the applicant there was a nexus between her drug use and violent home environment, which hampered her ability during that time to deal appropriately with challenging situations. I accept the applicant was under stress. Her reacting in the way she did, however, punching her mother in the nose with a closed fist, causing injury, is a matter of significant concern in the context of the application before the Tribunal and the object of, and principles for administering, the WWC Act.
  2. [97]
    I have taken the incident into consideration.

Other information (section 228(2)(g) of the WWC Act)

  1. [98]
    The other information made available to the Tribunal is addressed in the following paragraphs on these reasons for decision.

References

  1. [99]
    Ms SF dated 15 April 2023: Ms SF was called to give evidence on behalf of the applicant.[21] In her reference, she states she has full knowledge of the applicant’s history. She has known her for more than 11 years.
  2. [100]
    She believes the applicant has taken full responsibility for, and moved on from, her “indiscretions”.
  3. [101]
    Ms SF describes the applicant as “confident, intelligent and an outgoing young woman that has an excellent rapport with people of all ages, inspiring them to get healthy and out [sic.] their best foot forward in life.”
  4. [102]
    Ms DMF dated 17 April 2023: Ms DMF was called to give evidence on behalf of the applicant.[22]
  5. [103]
    The applicant lived with Ms DMF’s family for months at a time.
  6. [104]
    Ms DMF mentions the applicant’s relocation to Queensland. She continues:

[The applicant] has concentrated on her mind, body and soul by using relaxation techniques, Krav Maga (a personal defence course) Pilates and various fitness regimes. This also includes a consistently healthy eating regime.

  1. [105]
    She later adds:

[The applicant] enjoys reading, she draws with an amazing artistic flare and writes beautiful renditions of meaningful times growing up, this is most apparent in her letters to her Nonna. She maintains regular contact with her immediate and extended family, and has discovered a new love in her life with her 2 year old niece Natalia.

  1. [106]
    Ms AAD dated 1 May 2023: Ms AAD gave evidence on behalf of the applicant.[23] She states she has known the applicant for 27 years.
  2. [107]
    In her reference, she describes the applicant as a happy and enthusiastic person, incredibly kind-hearted, funny, talented and will help anyone in need. The applicant, she believes, with the progress she has made, will be a fantastic influence for others, including the younger generation.
  3. [108]
    Mr TMF dated 16 May 2023: Mr TMF was called to give evidence on behalf of the applicant.[24] He describes the applicant as an intelligent, caring individual who thrives on sharing her enthusiasm for health and fitness. She is “honest, hardworking and trustworthy and she maintains a mature attitude to her health and her future.”
  4. [109]
    He believes she would be an excellent mentor for young children as she has a very caring and positive attitude.
  5. [110]
    Ms LM dated 19 May 2023: Ms LM is the applicant’s mother. She was called to give evidence on behalf of the applicant.[25]
  6. [111]
    She states the applicant has “… stopped all forms of drugs as soon as she was released [from prison], and drinks alcohol rarely - only on social occasions …”
  7. [112]
    She later continues:

[The applicant] has high emotional intelligence and is a good communicator and listener. And she is committed to wellness - both in healthy eating, healthy lifestyle and fitness. I believe those skills would make her a wonderful coach for young people.

  1. [113]
    Ms BMP dated 23 May 2023: Ms BMP gave evidence on behalf of the applicant.[26] She states she has known the applicant for 26 years. She describes the applicant as “... one of the most dedicated, driven, and hardworking people that I’ve had the pleasure of knowing.”
  2. [114]
    In her opinion, the applicant should have the ability to work with children.

She is honest, attentive and always strives to do her best, this is apparent in her personal and professional life. As some children are not always fortunate enough to have positive role models who exhibit traits such as compassion, empathy and support, it is important for them to find these attributes in other places.

Transferability of blue card

  1. [115]
    The respondent draws attention to what is described as the “transferability” of a blue card. Once issued, it is said, the applicant can work in any child-related employment or conduct any child-related business, supervised or unsupervised, regulated by the Act, not just for the purpose for which the applicant has sought the card. If issued with a blue card, the applicant could work with children of any age, gender, or vulnerability.
  2. [116]
    I agree with what is said. However, as I said in KLT v Director-General, Department of Justice and Attorney-General[27], the purpose for which an applicant has applied for a blue card, in my opinion, is largely irrelevant. The scheme of the legislation focusses on the welfare and best interests of children no matter their age, gender, or vulnerability. The focus does not change no matter how the card is to be used or the possibility of the card being used for a purpose other than that specified by the applicant.

Human rights

  1. [117]
    The respondent concedes the application calls into consideration several human rights but submits a decision of the Tribunal the applicant’s case is an exceptional case will be compatible with those rights. I agree.
  2. [118]
    In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the Human Rights Act 2019 (Qld) (HR Act) and therefore the Act applies to the Tribunal.
  3. [119]
    The Tribunal is required to interpret statutory provisions, to the extent possible, consistent with their purpose, in a way compatible with human rights or, if not possible, to interpret them in a way most compatible with human rights.[28] It is unlawful for a public entity to act or make decisions in a way not compatible with human rights, or in making a decision, to fail to consider a human right relevant to the decision.[29] The Tribunal must identify the human right that may be affected by the decision, and consider whether the decision would be compatible with the human right.
  4. [120]
    A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality, and freedom.[30] In deciding whether a limit on a human right is reasonable and justifiable, the factors in section 13(2) of the HR Act may be relevant.
  5. [121]
    A decision the applicant’s case is an ‘exceptional case’ is, in the circumstances here, compatible with human rights notwithstanding any limit it places on the applicant’s human rights. The decision is reasonable and justified by factors in section 13(2) of the HR Act. It is consistent with the object of the WWC Act to promote and protect the rights, interests and wellbeing of children and young people in Queensland and the principles for administering the Act, the welfare and best interests of a child are paramount, and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
  6. [122]
    Further, the decision is justified in that it promotes the protection needed by a child and is in the child’s best interests because of being a child, the right of every child recognised by section 26(2) of the HR Act.

Conclusion

  1. [123]
    The applicant has a history of offending and domestic violence. The offending includes assaulting and resisting a police officer in the execution of duty, assault occasioning actual bodily harm, charges of dishonesty, and contravention of a prohibition/restriction in an apprehended domestic violence order. The offending involves aggressive and threatening conduct. It continued over an extended period despite the intervention of police and courts.
  2. [124]
    While certainty is not required, the Tribunal, for the purposes of section 221(2) of the WWC Act, must be satisfied on the balance of probabilities, and bearing in mind the gravity of the consequences, there is an exceptional case in which it would not be in the best interests of children to issue a blue card.[31]
  3. [125]
    I accept the applicant has made significant changes to her life as a form of self-improvement. And I accept the applicant has sought and received counselling and other advice and assistance, and counselling to address the trauma and triggers for her offending and drug use. However, the evidence is lacking in the sense it does not show she has acquired the necessary ability or skills to appropriately respond to stress or support the hypothesis the counselling and other advice and assistance has greatly reduced the risk to children.[32]
  4. [126]
    The applicant’s family lives in New South Wales. She stated in evidence she has a support network where she lives on the Gold Coast, a close-knit group of friends. The evidence, however, was insufficient to satisfy the Tribunal the close-knit group of friends constituted an effective and sufficient support network as a protective factor in the future.[33]
  5. [127]
    Having regard to the evidence, I am satisfied, to the requisite standard, it would not be in the best interests of children to issue a blue card to the applicant. It follows the Tribunal is satisfied the applicant’s case is exceptional.

Orders

  1. [128]
    The orders of the Tribunal are:
  1. The publication of information that may enable the applicant, members of her family, and others affected by this proceeding to be identified is prohibited.
  2. The decision of the respondent the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  3. The application is dismissed.

Footnotes

[1] Paragraphs [94]-[99].

[2] [2006] QCST 11.

[3] [2020] QCAT 457.

[4] [2022] QCAT 305.

[5] WWC Act, s 221(1).

[6] WWC Act, s 221(2).

[7] [2000] VSC 98 (Kent v Wilson).

[8] Unreported, 3 May 1991.

[9] [2011] QCATA 291.

[10] Ibid, at [31].

[11] WWC Act, s 353.

[12] The definition of prescribed period in section 353 of the WWC Act.

[13] WWC Act, s 354(1).

[14] QCAT Act, s 20(1).

[15] QCAT Act, s 20(2).

[16] [2015] QCAT 489, at [83].

[17] Schedule 7 to the WWC Act.

[18] DFVP Act, s 23(3).

[19] [2021] QCATA 142.

[20] Ibid, at [52]. Adopted in Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34, at [47].

[21] Paragraphs [59] and [60].

[22] Paragraphs [61] and [62].

[23] Paragraphs [56]-[58].

[24] Paragraphs [53]-[55].

[25] Paragraphs [50]-[52].

[26] Paragraphs [63]-[66].

[27] [2024] QCAT 271, at [152]-[153].

[28] HR Act, s 48.

[29] HR Act, s 58.

[30] HR Act, s 13(1).

[31]Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, per Philippides J at [30]. See also AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General [2017] QCAT 99, per Member Traves (as she then was) at [49].

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

[33]CA v Director-General, Department of Justice and Attorney-General [2022] QCAT 305, at [159].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2024] QCAT 343

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    29 Jul 2024

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
AD v Director-General, Blue Card Services, Justices Services, Department of Justice and Attorney-General [2017] QCAT 99
2 citations
Jump To
Cite 1 - [2017] QCAT 99
Cite 2 - [2017] QCAT 99
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305
3 citations
Jump To
Cite 1 - [2022] QCAT 305
Cite 2 - [2022] QCAT 305
Cite 3 - [2022] QCAT 305
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34
1 citation
Jump To
Cite 1 - [2022] QCATA 34
KAP v Director General, Department of Justice and Attorney General [2020] QCAT 457
3 citations
Jump To
Cite 1 - [2020] QCAT 457
Cite 2 - [2020] QCAT 457
Cite 3 - [2020] QCAT 457
Kent v Wilson (2000) VSC 98
2 citations
Jump To
Cite 1 - (2000) VSC 98
Cite 2 - (2000) VSC 98
KLT v Director-General, Department of Justice and Attorney-General [2024] QCAT 271
2 citations
Jump To
Cite 1 - [2024] QCAT 271
Cite 2 - [2024] QCAT 271
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489
2 citations
Jump To
Cite 1 - [2015] QCAT 489
Cite 2 - [2015] QCAT 489
Vaeau v Director-General, Department of Justice and Attorney-General [2021] QCATA 142
2 citations
Jump To
Cite 1 - [2021] QCATA 142
Cite 2 - [2021] QCATA 142

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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