CXC v Department of Justice – Blue Card Services
[2025] QCAT 185
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- Unreported Judgment
- CXC v Department of Justice – Blue Card Services[2025] QCAT 185
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CXC v Department of Justice – Blue Card Services[2025] QCAT 185
CXC v Department of Justice – Blue Card Services[2025] QCAT 185
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | CXC v Department of Justice – Blue Card Services [2025] QCAT 185 |
PARTIES: | CXC (applicant) v department of justice – Blue card services (respondent) |
APPLICATION NO/S: | CML250-23 |
MATTER TYPE: | Childrens matters |
DELIVERED ON: | 8 May 2025 |
HEARING DATE: | 17 July 2024 18 July 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: | The decision of the Department of Justice – Blue Card Services that the applicant’s case is not “exceptional” within the meaning of section 223 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that it is an “exceptional case”. |
CATCHWORDS: | FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – administrative review – blue card – where negative notice previously cancelled – where further negative notice issued – whether an exceptional case Human Rights Act 2019 (Qld), s 8, s 13, s 9, s 22, s 23, s 25, s 26, s 27, s 29, s 31, s 34, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 223, s 225, s 226, s 228, s 358, s 360 AA v Director-General, Department of Justice and Attorney-General [2022] QCAT 443 AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 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 Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 39 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | K Malouf, in-house lawyer |
REASONS FOR DECISION
- [1]Non-publication orders were made in this matter.[1] These reasons are only given in a de-identified format.
- [2]CXC was issued with a working with children clearance (blue card) for child-related employment on 17 July 2012, which was cancelled, and a negative notice issued on 10 July 2013. CXC successfully applied to have the negative notice cancelled.[2] Subsequently, CXC applied to be issued with a further blue card which was refused, and a negative notice issued (‘the Decision’). The evidence is that CXC applied for the blue card so that CXC could take on an office bearer role with CXC’s children’s school “P&C”. I accept that a positive notice once obtained entitles the holder to work in any child related employment.
- [3]By Application to review a decision filed 25 July 2023, CXC sought review of Blue Card Services’ decision to issue a negative notice made on 18 July 2023, received 21 July 2023.[3] A negative notice remains valid unless it is cancelled.
- [4]The final oral hearing was conducted on 17 and 18 July 2024. Directions were given for the filing of written submissions. Submissions have been received.[4] I now proceed to determine this review application. The delay in finalising the proceedings since receipt of the submissions is extremely regrettable and relates to resourcing issues.
- [5]On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[5] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[6] There is no presumption that the decision under review is correct.[7]
- [6]The object of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) is to promote and protect the rights, interests and wellbeing of children and young people in Queensland through risk management strategies and screening persons employed in particular employment.[8]
- [7]The WWC Act is to be administered having regard to the principles that the welfare and best interests of a child are paramount 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]
- [8]Blue Card Services, for the Respondent, says that it became aware of further offences or new assessable information[10] since the negative notice was cancelled the first time so that s 223 of the WWC Act applies. Blue Card Services’ submissions[11] outline the legislative provisions in force at the time CXC’s negative notice was cancelled on 27 November 2014, those in force at the time it issued a negative notice to CXC on 18 July 2023 and those in force at the time of the final hearing. Having regard to those provisions, which are in the same or substantially the same terms at each of those times, I accept that a negative notice must issue unless the Chief Executive or the Tribunal in her place is satisfied that it is an exceptional case in which it would not harm the best interests of children to issue a working with children clearance.[12]
- [9]
- [10]The WWC Act does not define what is an ‘exceptional case’. The Court of Appeal provided some guidance in Commissioner for Children and Young People and Child Guardian v Maher & Anor[15] and found that it would be unwise to lay down any general rule, as each case is to be determined on its own facts and circumstances.
- [11]The Appeal Tribunal in Director-General, Department of Justice and Attorney-General v MAP[16] stated:
It is settled law that the determination of whether there is an ‘exceptional case’ involves the exercise of a broad discretion that should be ‘unhampered by any general rule and is to be construed in the particular context of the legislation’.
- [12]The Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v Eales[17] has also provided some guidance. In exercising the discretion as to whether there is an exceptional case the Tribunal undertakes a risk assessment. This usually involves identifying and considering risk factors and mitigants[18] in the context of the WWC Act.
- [13]Blue Card Services submits that the relevant test is essentially the same as the test applied under s 225 of the WWC Act. It points to previous Tribunal decisions in relation to the exercise of the discretion under s 225 of the WWC Act, where the learned Members expressed views that:
- making changes to an applicant’s life which merely amount to them living in a law-abiding manner as society expects is insufficient to amount to an exceptional case.[19] I note that in SS the learned Member was not satisfied on other important considerations such as relevant insight.[20]
- to be an exceptional case it requires evidence of much more than living a mature, stable and law-abiding life[21]and an absence of bad-influence friends.[22] I note that in AA the learned Member was not satisfied on other important considerations such lack of truthfulness in submissions and admissions and lack of insight.[23]
- [14]I accept that these decisions may provide some guidance. However, as the Court of Appeal and the Appeal Tribunal have noted, the exercise of the discretion in each matter is to be determined on its own facts.
- [15]Section 226 of the WWC Act sets out mandatory considerations to which regard is to be had, when deciding whether there is an exceptional case, where the person has been convicted of or charged with an offence. Section 228 of the WWC Act sets out mandatory considerations, when deciding whether there is an exceptional case, where there is information that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for a working with children clearance to be issued. I address the considerations below.
- [16]CXC’s police information is before me. It contains evidence of various convictions mostly relating to drugs between February 2013 and April 2017. In February 2013 CXC was 18 years old. The evidence is, and I accept, that CXC experienced a number of traumatic events as a child and growing up CXC’s relationship with CXC’s father, who took drugs, was a difficult and abusive one. CXC’s evidence is, and I accept, that CXC had been in an abusive domestic relationship shortly before the time of the most recent offending in 2017.
- [17]At the time of the hearing CXC was approximately 30 years old, in a stable and caring domestic relationship, employed, more than 10 years ‘sober’ from “Ice”, had not used or possessed cannabis for many years and had obtained a domestic violence order against CXC’s father to remove his negative influence from CXC’s life.
- [18]CXC’s offending resulted in fines, a probation order, drug diversion and on occasions a conviction being recorded and not being recorded on others. The sentences imposed were not severe. Sentencing remarks are before me. They record CXC’s co-operation and pleas of guilt.
- [19]CXC was not convicted of a serious offence as defined in the WWC Act.
- [20]CXC’s traffic history is also before me. It evidences no infringements since April 2019.
- [21]Blue Card Services submit, and I accept, that:
- the mere passage of time without further conviction is not determinative that the risk of harm to children is reduced;
- CXC’s offending raises a concern that CXC may not be able to exercise appropriate judgement and be a positive role model to children; and
- CXC’s offending raises a concern regarding CXC’s respect for the law and lawful behaviour.
- [22]There is a considerable body of evidence before me that since 2017 CXC has taken many positive steps, for which CXC is to be commended, and which I accept reduce the likelihood of re-offending and which demonstrates that CXC is, and has been for a significant number of years, a positive role model to children and law-abiding.
- [23]None of CXC’s offending directly related to employment or carrying on a business that involves or may involve children nor did the offending directly involve children. The 2017 offending did occur in the home at which CXC and CXC’s child resided and the 2013 offending involved supplying dangerous drugs, which I accept may indirectly have affected children.
- [24]The evidence is, and I accept, that CXC left the share house in which CXC had been residing the day after the Police raid, which lead to the most recent charges, essentially out of a concern for both CXC and CXC’s child.
- [25]Blue Card Services contend that CXC has been less than forthright, in particular about CXC’s drug use history. It relies on documents filed in the proceedings, the authors of some of which were not called to confirm the evidence contained in those documents. In the absence of the authors being called I am not persuaded that I should draw an adverse inference about CXC’s evidence, which contradicts that written evidence. There are other instances relied upon by Blue Card Services which more likely than not are the result of CXC misunderstanding what was said many years ago or CXC’s then drug use.
- [26]Blue Card Services submits, and I accept, that an applicant’s understanding of the triggers that lead them to their offending conduct and strategies to manage such triggers is a relevant consideration to the risk of re-offending and whether their case is an exceptional case.
- [27]As referred to earlier in these reasons, there is a considerable body of evidence before me that since 2017 CXC has taken many positive steps to address the triggers. CXC’s evidence is that CXC recognised that CXC needed to change the people with whom CXC was associating and undertook counselling. The evidence is that CXC’s life is, and has been for many years, considerably different to the life CXC had while offending. Although there is some evidence that CXC now associates with some people who use or have used drugs, CXC’s evidence is, and I accept, that CXC employs strategies and imposes boundaries, which assist to mitigate the risk posed.
- [28]Blue Card Services submits, and I accept, that an applicant’s insight into and understanding of the concerning nature of their offending conduct is a relevant consideration to the risk of re-offending and whether their case is an exceptional case. Accepting responsibility and having insight has been recognised as an important mitigant to re-offending.[24]
- [29]CXC gave evidence, and I accept, that CXC’s recognises:
- that drugs are extremely harmful to many aspects of life and relationships;
- the importance of being a good role model and how one’s actions can affect other people; and
- that in the past CXC has made poor choices.
- [30]CXC submits that CXC needs the negative notice cancelled as it is affecting the way CXC is able to participate in CXC’s children’s school and extra-curricular activities and it will or may affect the way CXC is able to participate in CXC’s half-sister’s life. The evidence is that CXC’s half-sister has significant health challenges and vulnerabilities and will almost certainly require the appointment of an adult guardian. Blue Card Services submits, and I accept, that such detriments to CXC are not relevant.[25]
- [31]Quite a lot of witnesses gave evidence in support of CXC’s application, and most were available to confirm their evidence and be questioned by Blue Card Services and by me.[26] The witnesses included CXC’s mother, brother and domestic partner as well as CXC’s long term though not current doctor, friends and former colleague. Many had not read Blue Card Service’s statement of reasons for the Decision. I accept that their evidence, if given with the benefit of doing so, would have been more persuasive.
- [32]They gave evidence of CXC’s disclosure of CXC’s drug use and criminal history, their observations of CXC in different contexts and in particular CXC’s interactions with CXC’s children, their school and other pupils, CXC’s children’s extra-curricular activities and the support CXC has given other parents and their children. Their evidence overwhelmingly supports a conclusion that CXC has been for many years, until the negative notice issued, an outstanding contributor to CXC’s community, including actively participating in the school ‘P&C’.
- [33]Their evidence also demonstrates that CXC has a wide network of support in the community. This a factor which mitigates the potential risk of CXC re-offending and forms part of CXC’s strategies to deal with life stressors.
- [34]One of the witnesses, a teenager, gave evidence, and I accept, that:
- he considers CXC is and has been a good role model for him;
- CXC is inspiring because of how CXC has changed CXC’s life and has ‘come out as an amazing person’; and
- prior to him attending ‘schoolies’ CXC advised him not to do drugs and how to stay safe in such an environment.
- [35]In relation to CXC’s risk of reoffending/drug use, CXC’s long term doctor gave evidence to the effect, and I accept, that CXC now had better tools and a strong respect for being a good parent so that being in contact with drug users was not likely to trigger a relapse.
- [36]Of significance is the evidence in relation to CXC’s contribution to CXC’s half-sister’s life. Many witnesses gave evidence of their observations of CXC’s interactions and support of CXC’s half-sister. A child safety officer and a disability support co-ordinator gave evidence of CXC’s advocacy on behalf of and contribution to the safety and well-being of CXC’s half-sister. They both gave evidence that CXC’s engagement and contribution was considerably greater than the usual engagement and contribution of parents or other family members of other clients in similar circumstances. This evidence supports a conclusion that CXC has been for many years an outstanding contributor to CXC’s half-sister’s life.
- [37]I am satisfied that the evidence of CXC, and of CXC’s witnesses, support a finding that CXC does have sufficient insight into the impact of CXC’s offending on the community to reduce the likelihood of re-offending. I am also satisfied, having regard to the evidence of the risks and the mitigants, that the risk of CXC re-offending is low. CXC has developed strategies to minimise the likelihood of re-offending. CXC has demonstrated by caring for CXC’s half-sister and CXC’s children, in particular since 2017, that CXC is able to care for children.
- [38]Having regard to the paramount principle of the WWC Act, and considering the totality of the evidence, I am satisfied, on the balance of probability and bearing in mind the gravity of the consequences involved, that this is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. The Decision should be set aside, and my decision substituted.
Human Rights
- [39]The Human Rights Act 2019 (Qld) (‘HR Act’) commenced on 1 January 2020. Blue Card Services made submissions in relation to relevant competing human rights under the HR Act. CXC also made submissions about the application of the HR Act.
- [40]In deciding this Application, I am acting as a public entity in an administrative capacity.[27] I accept that this proceeding and a decision under the WWC Act potentially impact CXC’s human rights[28] and the right of every child to protection.[29] I have considered CXC’s human rights and am satisfied that I afforded a fair hearing by considering the oral and written evidence and submissions made by each party, that I have interpreted statutory provisions to the extent possible in a way that is compatible with human rights and that the decision is compatible with human rights as the limitations on those rights are reasonable and justifiable.[30]
Footnotes
[1] Decisions dated 5 March 2024 and 18 July 2024.
[2] 16 July 2015.
[3] Exhibit 1.
[4] Director-General’s submissions filed 9 August 2024; CXC’s submissions filed 27 August 2024.
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 24.
[6] Ibid s 20.
[7] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 [9].
[8] WWC Act s 5.
[9] Ibid s 6.
[10] Ibid s 223(5).
[11] Filed 9 August 2024.
[12] Ibid s 223(1)(3)(4).
[13] Ibid s 358.
[14] Ibid s 360.
[15] [2004] QCA 492.
[16] [2022] QCATA 39 [19] (references omitted).
[17] [2013] QCATA 303.
[18] Often referred to as protective factors.
[19] SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 [73] (‘SS’).
[20] Ibid.
[21] AA v Director-General, Department of Justice and Attorney-General [2022] QCAT 443 [270] (‘AA’).
[22] Ibid [275].
[23] Ibid [272]–[273].
[24] Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 [51]–[55].
[25] AX v Commissioner for Children and Young People and Child Guardian (No 2) [2012] QCATA 248 [22].
[26] In addition to CXC, seventeen witnesses gave oral evidence.
[27] HR Act s 9, s 58.
[28] Ibid s 22, s 23, s 25, s 27, s 29, s 31, s 34.
[29] Ibid s 26(2).
[30] Ibid s 8, s 13, s 26(2), s 31, s 34, s 48, s 58.