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FLB v Director-General, Department of Justice and Attorney-General[2025] QCAT 36

FLB v Director-General, Department of Justice and Attorney-General[2025] QCAT 36

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

FLB v Director-General, Department of Justice and Attorney-General [2025] QCAT 36

PARTIES:

FLB

(applicant)

v

Director-General, Department of Justice and Attorney-general

(respondent)

APPLICATION NO/S:

CML055-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 January 2025

HEARING DATE:

4 November 2024

HEARD AT:

Richlands

DECISION OF:

Member Hemingway

ORDERS:

  1. 1. The decision of the Director-General, Department of Justice and Attorney-General that FLB’s case is exceptional within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. 2. Publication of the name or identifying information of the Applicant or any person associated with him, other than to the parties of the proceedings, is prohibited pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – negative notice – where applicant charged but not convicted of the possession of child pornography in  2005 and a charge of unlawful possession of a weapon – whether an exceptional case exists

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226

Human Rights Act 2019 (Qld), s 8, s 58, s 31

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

Re TAA [2006] QCST 11

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

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

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

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 Ram [2014] QCATA 27

APPEARANCES & REPRESENTATION

Applicant:

Self-represented

Respondent:

Director-General, Department of Justice and Attorney-General represented by Ms C Davis

REASONS FOR DECISION

Background

  1. [1]
    The Applicant is aged 60 and has a career, initially in sign writing and then in information technology. He was employed by the federal government in connection with duties requiring a security clearance. He states that he has been a competitive shooter for 40 years as well as a firearms safety officer and senior range officer at his local gun range. Born in Sydney,  he moved to Canberra then Queensland. In 2020 he held the office of Vice-President and senior range officer of a shooters club in 2023.
  2. [2]
    Prior to coming to Queensland, FLB’s Canberra  home was searched, and he and his partner were interviewed. FLB was charged with Possessing Child Pornography (under 16) film/tape on 7 October 2004 in Canberra. FLB was later charged with possession of a magazine for category H weapons on 11 April 2017.
  3. [3]
    FLB applied for a blue card and was issued with a negative notice on 21 September 2020. Reasons for the decision were provided with this correspondence.
  4. [4]
    FLB applied to have the negative notice cancelled on 5 August 2022. On 20 December 2022, the Department requested submissions regarding his application.
  5. [5]
    FLB provided further submissions dated 30 June 2019. FLB provided references from  A dated 9 January 2023, from B dated 12 January 2023, and from C dated 17 January 2023. FLB has provided a copy of a letter sent to his local member of parliament dated 6 February 2023. Regarding the initial negative notice, FLB provided undated submissions together with a reference from A dated 30 June 2020.
  6. [6]
    On the 10 February 2023, the respondent Director-General, Department of Justice and Attorney-General, pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’), refused his request for the cancellation of his negative notice. Reasons and relevant review information for the decision were provided with this correspondence.
  7. [7]
    The Applicant applied to the Queensland Civil and Administrative Tribunal for a review of this reviewable decision on the 10 February 2023.
  8. [8]
    The issue for this Tribunal is whether his case is an exceptional case within the meaning of section 221(2) of the WWC Act.

Legislative Framework

  1. [9]
    The Queensland Civil and Administrative Tribunal reviews the decisions of the Respondent in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
  2. [10]
    The purpose of the review is to consider whether the Applicant’s history and current circumstances constitute an exceptional case and to produce the correct and preferable decision with respect to the issue of a negative notice.[1] The review is made by way of a fresh hearing on the merits of the case.
  3. [11]
    In undertaking the review, the Tribunal considers the object of the WWC Act which is to promote and protect the rights, interests, and well-being of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas concerning children, or who operate relevant child related businesses.[2]
  4. [12]
    The chief consideration in this review is that the welfare and best interests of children is the paramount consideration.[3] The Tribunal must apply the paramount principle in its review of the decision to issue a negative notice.
  5. [13]
    Section 221 of the WWC Act provides for the issue of a positive notice except where the chief executive finds an exceptional case applies. The decision under review is whether an exceptional case exists such that the presumption under section 221 is rebutted.
  6. [14]
    The legislation does not define ‘exceptional case’. It is a matter which should be determined on an individual case basis not hampered by a general rule.[4] The Tribunal must find an exceptional case exists if, based upon all considerations, it would harm the best interests of children to issue a positive notice, allowing the holder an unfettered right to work with children in any capacity.
  7. [15]
    Therefore, because the FLB has not been convicted of a serious offence or disqualifying offence, the Respondent must issue the FLB a positive notice unless the Respondent is satisfied that this is an exceptional case.
  8. [16]
    The standard of proof required by the Tribunal is that it must be satisfied on the balance of probabilities. Neither party bears the onus of proof.[5] The Tribunal is not bound by the rules of evidence but must observe the rules of natural justice in conducting the review.[6]
  9. [17]
    In reaching a decision, the Tribunal must consider the mandatory considerations under section 226 of the WWC Act in addition to the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors.
  10. [18]
    It has been established that any hardship or prejudice suffered by the Applicant due to the Tribunal’s decision is not relevant to the finding of an exceptional case.[7] This is based upon the paramount principle which is that the best interests of children must prevail over all other considerations.

Documents relied upon by Respondent

  1. Reasons for decision to cancel negative notice dated 10 February 2023.
  2. Reasons for decision to issue a negative notice dated 21 September 2020.
  3. Application to cancel a negative notice 5 August 2022.
  4. Relevant information documents of various dates.
  5. Letter requesting submissions.
  6. Submissions received enclosing references and other supporting material.
  7. Negative notice.
  8. Transcript of proceedings in Magistrates Court dated 8 May 2017.
  9. Federal Police Material referred to as NTP 1-219.
  1. [19]
    In addition, the Respondent relied upon its submissions made in the course of the hearing.

Documents relied upon by Applicant 

  1. Undated submissions.
  2. Reference from A dated 30 June 2020.
  3. Submissions dated 19 January 2023.
  4. Reference from A dated 9 January 2023.
  5. Reference from B dated 12 January 2023.
  6. Reference from C dated 17 January 2023.
  7. Copy of a letter sent by FLB to his  parliamentary member dated 6 February 2023. 
  1. [20]
    In determining whether there is an exceptional case when a person has been convicted of, or charged with, an offence, the Tribunal must have regard to the matters set out in s 226(2) of the WWC Act, as follows:
    1. whether it is a conviction or a charge; and
    2. whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and
    3. when the offence was committed or is alleged to have been committed; and
    4. the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
    5. 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; and
    6. any information about the person given to the chief executive under section 318 or 319; and
    7. any report about the person’s mental health given to the chief executive under section 335; and
    8. any information about the person given to the chief executive under section 337 or 338; and
    9. 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.
  2. [21]
    These criteria are considered below.

Whether it is a conviction or a charge

  1. [22]
    FLB was charged but not convicted of the offence of possessing child pornography  (under 16 ) film / tape. The charge was dismissed  with a notation of NETO, being no evidence to offer. However, the charge is both a serious and disqualifying offence  under the WWC Act in Queensland.[8]
  2. [23]
    FLB was also charged regarding weapons offences being Possession of a Particular magazine for category H weapons and Unlawful possession of weapons category D/H/R  both on 11 April 2017. FLB was fined $1000, and no conviction was recorded.[9]

Whether the offence is serious and whether it is a disqualifying offence

  1. [24]
    The Applicant has been charged with serious or disqualifying offences, but not convicted of any.

When the offence was committed or alleged to have been committed

  1. [25]
    The offence of possessing of child pornography was alleged to have been committed in 2004. The weapons-related offences were committed in 2017.

The nature of the offence and its relevance to employment, or carrying on a business, that involves children

  1. [26]
    The respondent correctly submits that the possession of child pornography material  implicitly involves the element of child exploitation which is permanent and results in irrevocable trauma to the victims. In this regard, such a charge is highly relevant to the Tribunal’s consideration of whether  a person can be issued with a blue card. The 2017 offending by FLB is also of concern as it is relatively recent and in light of current events, presents a concerning aspect of FLB’s attitude to the strict legal requirements for the possession of weapons and ammunition. These restrictions are in place for the protection of the community and are in accordance with community expectations.

In the case of a conviction – the penalty imposed by the court and if it decided not to impose an imprisonment order for the offence or decided not to make a disqualification order under section 357, the court’s reason for its decision.

  1. [27]
    FLB was not convicted of the offence of possessing child pornography. The charge was dismissed with a notation of NETO, being no evidence to offer. In regard to the two weapons offence charges, FLB was fined $1000, and no conviction was recorded.
  2. [28]
    The reasons for decision in respect of the weapons charges are contained in the remarks of Magistrate Morgan made on 8 May 2017 in the course of sentencing FLB.
  3. [29]
    His Honour stated that:

I have a high degree of scepticism about the explanations you have given for the possession of this material. If you have reached the stage of being sufficiently attentive to detail that you have got  a top-secret security clearance from the Department of Defence and you do not pay sufficient attention to the regulations under which you might obtain weapons, it seems that there is a significant gap in logic. I do however need to be satisfied to a reasonable standard before I can act on the basis of scepticism. …I am left with a high degree of scepticism about the explanation you have given.[10]

Any information about the person given under sections 226(e), 318, 319, 335, 337, or 338 of the WWCAct and under section 138ZG of the Disability Service Act (Qld) 2006

  1. [30]
    There are no reports or information available to the Tribunal under these provisions.

Any other relevant information

  1. [31]
    All aspects the respective submissions are considered in the following analysis of relevant factors.

Respondent’s case

  1. [32]
    The Respondent contends that FLB was charged, but not convicted of the possession of child pornography. The respondent submits that FLB told police that he had possessed and viewed compact discs on which the images were located.[11]
  2. [33]
    The Respondent gives considerable weight to the current concerns about child exploitation material and quotes from a report regarding the possession of such material as follows.

Child pornography is a permanent record of the actual abuse of children and its distribution represents the ongoing victimisation and exploitation of children. It is a also of concern because it is used as part of the ‘grooming process to desensitize children to offending behaviour and by child sex offenders to validate his offending behaviour by finding a community sharing similar interests.[12]

  1. [34]
    The Respondent does not assert that the offending occurred. However, it contends that the Applicant’s alleged offending, together with his admissions in the police record of interview, show a lack of regard for the safety and well-being of children.
  2. [35]
    The Respondent states that the record of interview records FLB’s responses to police questions as being that his flatmate had introduced the images to FLB’s computer and that he had viewed them accidentally during July, August and September of 2004. The respondent holds reservations about this explanation.[13]
  3. [36]
    The respondent cites FLB’s explanation that a police forensic examination of the images was unable to determine if the images were of young girls aged under 16. However, FLB states in another part of the interview that he did know the images depicted underage girls. The respondent cites this as evidence that FLB knew the girls were underage because he admitted this to police. FLB further agreed that he had accessed the images on several occasions. FLB admitted he knew the images showed underage girls. The respondent states this to be in conflict with FLB’s later statement that the age of the girls was not established by a forensic examination of the images. 
  4. [37]
    The respondent states that FLB claimed the weapons charges resulted from a misunderstanding. The respondent takes the view that FLB’s explanation was improbable. FLB claims he has 40 years of experience as a competitive shooter and he is an instructor. The respondent maintains that FLB was more likely than not to be aware of import regulations, or that he was able to find  this information due to his  asserted long-term experience with weapons. 
  5. [38]
    The respondent cites FLB’s claim that his former flatmate was responsible for the introduction of the images onto his computer.[14] He states that his weapons charges were not something for which he was responsible as it was a misunderstanding.[15]  Both claims are examples of FLB deflecting blame onto unnamed others. This demonstrates a lack of insight into the offending and deliberate attempts to minimise his offending.
  6. [39]
    The Respondent has concerns about this absence of insight and argues that allegations and findings are relevant to and reflect adversely upon an evaluation of the Applicant’s eligibility to work with children and young people given the transferability of the blue card, once issued.  

Applicant’s case

  1. [40]
    FLB states that he is a victim and that he suffered considerable hardship as a result of the police search of his home, the investigation and the court process. He states that he fully cooperated. He states that he has been a firearms safety officer at local gun range. He states that he has been a range officer for five years and a competition shooter for 40 years. He acts as a volunteer at the gun range.
  2. [41]
    FLB refers to an unidentified friend as being the perpetrator of the child pornography offences. Because he does not provide an identity, for convenience, the Tribunal refers to the unidentified friend as GH.
  3. [42]
    FLB states that in relation to the charges regarding possession of child pornography that GH, who was a long-term family friend, moved to Canberra and he followed, living with GH for around six months. FLB moved to his own accommodation. FLB states that GH’s girlfriend evicted him and sought a protection order against him. He states GH’s accounts were locked and so he moved in with FLB. He asserts that they were both heavily into Harley David motorcycles. FLB states that he permitted GH to use FLB’s credit card and that GH would reimburse him for expenditure. FLB states GH moved out and was lent $20,000 by FLB. In 2004, GH moved to the USA. GH ceased communication with FLB and the loan remains unpaid.
  4. [43]
    FLB agrees his credit card was used to purchase the pornography and that the disc was in the rubbish heap at FLB’s property after GH left. He claims GH, not he, accessed the pornographic sites and also purchased access using FLB’s credit card.
  5. [44]
    FLB states that he does not believe the police claim that they searched for GH in the USA. He states that he does not believe this and that he (FLB) was the patsy.[16]
  6. [45]
    FLB states in relation to the weapons offences i.e. possession of the rifle magazine that he purchased it for a friend. The friend is not identified. FLB describes himself as being too naïve and trusting.
  7. [46]
    FLB provided four personal references from friends. Each has some knowledge of the charges giving rise to the issue of the negative notice. 

Referee A

  1. [47]
    Referee A provided two references dated 30 June 2020 and 9 January 2023. The referee has known FLB through the Sporting Shooters Association for a period of seven years as at 2023. In the 2020 reference, he states an awareness of FLB’s criminal history but concurs with FLB’s view that it was a friend taking advantage of FLB’s kindness and that the firearms offences were a misunderstanding. This referee considers FLB to be safe with children and to be  popular and trustworthy with his grandchildren. He states FLB is helpful and  renders care and assistance to junior club members.

Referee B

  1. [48]
    This referee considers FLB to be a vital part of the organisation having known him  since 2015. FLB’s role as vice-president requires him to run events and organise courses and generally keep the place running. FLB is on the Board and is a Senior Range Officer. This Referee has spoken with FLB and considers that FLB was turned “inside out for a crime he did not commit”. He states that he agrees with FLB’s view that a thorough investigation of all FLB’s computers and storage devices including a forensic examination of the images failed to provide evidence sufficient for a successful prosecution. This proves FLB’s innocence. 

Referee C

  1. [49]
    This  referee has known FLB for 20 years. He is aware of FLB’s past criminal charges  and shares FLB’s view that adequate police evidence could not be provided. He states his belief that in all likelihood, police believe GH was responsible for the child pornography offences. He states a belief that FLB holds a security clearance and is employed in the delivery of sensitive Commonwealth Government Services. He states that FLB has a strong commitment to community and strong values.

Consideration of the Evidence

  1. [50]
    FLB asserts in various submissions to the Tribunal that, because he was not found guilty of the serious charge of possession of child pornography that he should be issued with a blue card. This position is supported by his referees who state he is a person with good organisational skills who was taken advantage of. The Tribunal must consider this argument in the context of the paramount principle[17] and not on the basis of criminal liability where the standard of proof is beyond a reasonable doubt.
  2. [51]
    The Tribunal has considered the relevance of charges against an applicant which did not result in conviction. In the decision in Volkers v Commissioner for Children and Young People and Child Guardian,[18] the Tribunal stated:

The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the Applicant may have committed previously, but with the prevention of future potential harm.

  1. [52]
    In this case FLB has not assisted the Tribunal with candid information. It was only in cross examination that he disclosed his role at the Commonwealth government.  Though explicitly directed to do so, he did not comply with Tribunal directions to file submissions within given time frames. In the Respondent’s correspondence, he was informed of the nature of the Blue Card Services assessment and asked to include any relevant steps taken to address his offending behaviour.[19] FLB apparently ignored this information because he does not appear to accept that his criminal history would be examined as part of the application process.
  2. [53]
    The issue of the blue card entitles the holder to work with, or volunteer in regard to children in an unsupervised capacity. The blue card is fully transferable.
  3. [54]
    In the course of the hearing, FLB became quite animated on this point, claiming he had no intention to interact with children, apart from wanting to continue in the sporting shooters’ roles. The Tribunal assessed this reaction as indicating that FLB had not grasped the aspect of the transferability of the blue card once issued and that the blue card is not issued subject to conditions.
  4. [55]
    Also relevant to FLB’s argument is the issue of the distinction between a charge and an allegation.
  5. [56]
    The WWC Act allows charges to be considered by the Tribunal. In TNC’s case[20] the Tribunal stated that:

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.

  1. [57]
    The effect of this decision is to elevate charges to a level where the Tribunal is required to consider matters which did not result in a conviction, because of the importance of the interests, rights and well-being of children. Queensland legislation consistently and deliberately prioritises the interests of children over adults.[21] FLB does not make any reference to the relevance of this principle in his material.
  2. [58]
    The Tribunal is not required to make findings of fact regarding all untested allegations and uncontested evidence. But the review tribunal must accord them appropriate weight in a consideration of whether the presumption in section 221 of the WWC Act is rebutted and the circumstances give rise to an exceptional case.[22]
  3. [59]
    In terms of the level of satisfaction required to meet section 221(2) of the WWC Act, it has been accepted that while certainty is not required, the Tribunal must be satisfied on the balance of probabilities, 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. Each case is considered on its merits as to whether it represents an exceptional case.
  4. [60]
    Together with his contention that he was exonerated from blame for the possession of child pornography is FLB’s contention that his unidentified friend was responsible for the use of FLB’s credit card to access the child pornography, and the accessing of the child pornography found on FLB’s computer. FLB’s deflection of blame and denials of all allegations undermine the credibility of his evidence in light of his actual admissions to investigating federal police of the fact that he had viewed the child pornography, albeit accidentally.
  5. [61]
    The Tribunal accepts that FLB believes he does not present a risk to children. He states that the reason for his request for the blue card is to enable him to volunteer at a rifle range when children participate. But nowhere in his submissions does he express any understanding or acceptance of the  legislative principles involved in keeping children safe. He is focussed entirely on his interests and the fact is that he considers himself to be discriminated against, rather than the appropriate focus of inquiry. 
  6. [62]
    Whilst FLB does not bear the burden of proof, he did not call any witnesses in support of his submissions. He did not require his referees to attend for cross examination. The weight given to their remarks is reduced accordingly. His referees are all from  the sporting shooter organisation. No referees state that they have seen the reasons for the negative notice. FLB called no family or work colleagues and claimed he had security clearance, but gave no evidence of this. FLB asks the Tribunal to take him at his word. He has not sought any formal professional assistance for the obvious distress caused him by the events as exemplified in his submissions and stated in the hearing where he described his life being impacted by being labelled as a paedophile.
  7. [63]
    FLB does not express any remorse for his actions, apart from how they have affected him. He has not explained any change in his views which would help the Tribunal to see that he has developed insight into the events and how to correct issues of concern. Of relevance here are the contents of his letter to his local member dated 6 February 2023. He states that:

…over 20 years ago when living in a share house where all the bills were in my name, a fellow resident decided to visit an internet web site that he really shouldn’t have. There is no evidence he did anything but there was a visit.[23]

  1. [64]
    The contents of the letter show a current and continuing view held by FLB that the viewing of a child pornography site was inconsequential, as all he or GH did was visit the site. The letter to his local member fails to mention that the site was a child pornography site. His description of GH’s visit was that he (GH) did not do anything. This remark and categorisation of the actions of GH and FLB shows the true attitude of FLB to child pornography and is an example of extreme minimisation of truly horrific conduct. The Tribunal bears in mind that FLB viewed the material on three occasions being July, August and September 2004.[24]
  2. [65]
    FLB’s letter failed to explain that the harm to children is in the visiting of such sites which enable them to exist and cause irreparable and permanent harm to children. This letter reflects a callous and remorseless attitude held by FLB, who believes he  has escaped the consequences of his actions.
  3. [66]
    The Tribunal notes the following remarks in the decision cited by the Respondent of Re TAA[25] which describes the value of insight into the harm caused by the offending as being evidence of a protective factor, as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [67]
    FLB has no insight into the impact of  the possession and promulgation of child pornography and its effect upon its victims. He minimises his offending and is completely self-focussed. FLB does not accept any responsibility for either set of circumstances leading to the charges brought against him and has not expressed any remorse, consistently maintaining that the full blame lies elsewhere.
  2. [68]
    His Honour, Magistrate Morgan, expressed doubt about the veracity of FLB’s claims in the hearing regarding the weapons charges.[26] The standard of proof in these proceedings is not the same as that which constrained Magistrate Morgan as this Tribunal is not concerned with giving FLB the benefit of the doubt in preference to  the protection of the rights, interests and wellbeing of children.
  3. [69]
    FLB does not demonstrate even a basic understanding of the issues involved in this case. He has not sought any assistance and calls no witnesses. He remains stuck in the belief that his circumstances are unjustified and that he is the victim despite his admissions to police about viewing the prohibited material. His minimisation of the events in his letter to his local member referred to above shows his lack of understanding. His position of minimisation and deflection is his current view.
  4. [70]
    The Tribunal accepts the view that it is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established.[27] The Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[28]
  5. [71]
    The Tribunal must produce the correct and preferable decision in this review based upon the totality of evidence. The standard of proof required is that the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party.
  6. [72]
    The Tribunal accepts its role to focus on the best interests of children. This is not a case which involves imposing punishment upon the Applicant. The Tribunal is concerned about the effect on children if the Applicant is issued with a blue card. In making its decision, the Tribunal considers all relevant provisions of the WWC Act and, in that regard, notes that the presumption is to find that the case is not exceptional. No party has the onus of proving whether the case is exceptional.
  7. [73]
    The Tribunal is persuaded by the submissions of the Respondent contained in the reasons document when the Respondent identifies that FLB’s submissions attempt to shift responsibility to external factors which suggests a lack of insight and an attempt to minimise his own actions.  
  8. [74]
    The Tribunal has weighed the risks and protective factors in reaching its decision. The protective factors include the absence of any criminal charges since 2004, apart from  the one weapons offence. Further, the age of the Applicant, being a mature person with  a history of employment in a trusted position, and the length of time since the offences, are also protective. FLB is a valued member of the shooters association.
  9. [75]
    The risk factors include extreme minimisation of his offending and denial of any culpability despite admissions. FLB shows no reflection or remorse and does not  have the appropriate ability to prioritise the interests of children over his own interests. He has no support network which can assist to ameliorate his rigid view of himself as the victim. There is a clear pattern in the interviews with police and in the submissions made in the proceedings of the deflection of blame and responsibility and denial of the rights and interest and well-being of any children in his care.
  10. [76]
    Further the weapons offences charges and describing the circumstances as a misunderstanding show a propensity in FLB to disobey the law. FLB states that he does not believe the police in regard to their inquires as to the whereabouts of GH. He gives no reason as to why the police would do this, other than to readjust the focus to himself as victim, describing himself as a patsy.[29]
  11. [77]
    It is difficult to align FLB’s claims regarding his lifetime hobby of competitive shooting and of his being a security clearance holder with the federal government with his simultaneous claim of being too naïve and trusting, and being a person who gives his credit card to another person. Magistrate Morgan’s remark regarding an absence of logic is pertinent in this respect.[30]

Human Rights Act 2019 (Qld)

  1. [78]
    The Tribunal, as a public entity, is obliged to interpret relevant legislation in a way that that is compatible with human rights.[31]
  2. [79]
    In the event that the Tribunal makes a decision that is not compatible with human rights which are set out in the Act,[32] then the Tribunal must demonstrate that it has considered the issues outlined in section 13(2) of the Act.
  3. [80]
    FLB’s human rights are to be balanced with the human rights of children. Children’s rights are referred to in section 26(2) of the Act.[33]
  4. [81]
    The focus in section 26(2) is on the child’s interests because they are a child. Children are a more vulnerable section of the community. Taken with section 6 of the WWC Act, the rights of the child remain the paramount consideration and must outweigh any limitation on the human rights of FLB, such as a right to obtain certain employment or an entitlement to hold a particular office.  
  5. [82]
    The Tribunal has turned its mind to these rights which may be abrogated in a decision to deny FLB a blue card. The Tribunal finds that the balance is in favour of the rights of the child because of the paramount principle and the Human Rights Act 2019 (Qld) and the fact that the finding must be in favour of the human rights of the child over the adult Applicant’s right to work in chosen employment or to engage in certain social enterprises.   
  6. [83]
    Maher’s case[34] was determinative of the concept of the method for determination of whether a case is exceptional. The case is authority for the proposition that exceptional case should be  determined, ‘unhampered by any general rule and is to be construed in the particular context of the legislation.’ This is reiterated by the Queensland Civil and Administrative Appeal Tribunal in the case of MAP.[35]
  7. [84]
    The Tribunal makes the following findings:
    1. FLB has not developed insight or accepted any responsibility for the events leading to his criminal history, continuing to maintain that unidentified others are responsible;
    2. FLB has not expressed any remorse for any harm he has caused; the opposite is the case. He continues to hold the belief that visiting a child pornography site was harmless;
    3. FLB has not undertaken any strategies to gain insight into the concerns raised by the respondent, but has retold his version of events to his supporters;
    4. FLB has not addressed the areas of concern with any professional assistance which would assist him to address these matters.
  8. [85]
    There is no power to issue a conditional blue card and once issued, it is fully transferable across all areas of regulated employment and business. The Applicant could seek and be employed to care for children in regulated employment irrespective of his initial stated intention.[36]
  9. [86]
    The totality of evidence in this case leads to a conclusion that the circumstances raise the possibility of risk to children, such that it would not be in the best interests of children for the Applicant to be issued with a positive notice and a blue card.
  10. [87]
    Weighing the totality of the evidence, on balance, and having regard to the paramount consideration under the WWC Act, I am satisfied that the Applicant’s case is an exceptional case in which the best interests of children would be harmed if a positive notice was issued. The decision of the Director-General, Department of Justice and Attorney-General is confirmed.

Footnotes

[1] QCAT Act, s 20(2).

[2] WWC Act, s 5.

[3] Ibid, s 6(a).

[4] Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28].

[5] Briginshaw v Briginshaw (1938) 60 CLR 336.

[6] QCAT Act, s 28(3)(b).

[7] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).

 

[8] WWC Act, schedule 2.

[9] Criminal History FLB 23 September 2022.

[10] Magistrate Morgan sentencing remarks, 8 May 2017.

[11] AFP statement of facts, transcript NTP 50.

[12] Queensland Crime Commission, Project AXIS – Child Sexual Abuse in Queensland: The Nature and Extent (Report, June 2000).

[13] AFP statement of facts, transcript NTP 50.

[14] AFP statement of facts, transcript NTP 51.

[15] Submission of FLB undated received 19 January 2023.

[16] Submission of FLB undated BCS 39-40.

[17] WWC Act, s 6.

[18] [2010] QCAT 243.

[19] Blue Card Services Letter, dated 20 December 2022, attachment A.

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

[21] Explanatory notes accompanying the Commission for Children and Young People Bill 2000, page 10.

[22] Commissioner for Children and Young People and Child Guardian v Lister [No 2] [2011] QCATA 87.

[23] Attachment to submissions of FLB letter dated 6 February 2023.

[24] AFP Statement of Facts NTP 51.

[25] [2006] QCST 11, [97].

[26] Sentencing remarks, 8 May 2017.

[27] Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[7].

[28] Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171, [109] (Buss J).

[29] Submission FLB, undated, BCS 40.

[30] Sentencing remarks Magistrate Morgan, 8 May 2017.

[31] Human Rights Act 2019 (Qld), s 48(2).

[32] Human Rights Act 2019 (Qld), s 13.

[33] Human Rights Act 2019 (Qld), s 26(2).

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

[35] Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 9.

[36] Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2025] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    14 Jan 2025

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
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
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
3 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Cite 3 - (2008) WASCA 171
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
2 citations
Jump To
Cite 1 - [2013] QCATA 303
Cite 2 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
2 citations
Jump To
Cite 1 - [2011] QCATA 87
Cite 2 - [2011] QCATA 87
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
3 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Cite 3 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27
2 citations
Jump To
Cite 1 - [2014] QCATA 27
Cite 2 - [2014] QCATA 27
Leach v Island Curtains `N Verticals Pty Ltd [2022] QCATA 9
1 citation
Jump To
Cite 1 - [2022] QCATA 9
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
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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