DVL v Department of Justice and Attorney-General - [2023] QCATA 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DVL v Department of Justice and Attorney-General [2023] QCATA 52

PARTIES:

DVL

(applicant/appellant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

APL042-22

ORIGINATING APPLICATION NO/S:

CML336-20

MATTER TYPE:

Appeals

DELIVERED ON:

19 May 2023

HEARING DATE:

24 April 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     The appeal is allowed.

2.     The decision of the Tribunal of 17 January 2022 is set aside.

3.     The decision of the respondent to issue a negative notice to the appellant is set aside.

4.     In lieu thereof, there be a decision to issue a working with children clearance to the appellant.

5.     The decision of the Appeal Tribunal takes effect from the day on which it was delivered.

6.     Any submissions on behalf of the appellant seeking an order for costs be provided by email to the associate to the Deputy President of the Tribunal, and to the respondent, within 21 days from the date of the decision.

7.     If such submissions are provided, the respondent may provide submissions in relation to costs by email to the associate to the Deputy President of the Tribunal, and to the solicitors for the appellant, within 21 days from the date the appellant’s submissions are provided.

8.     If such submissions are provided, the appellant may provide submissions in reply, in the same way, within seven days of the provision of the respondent’s submissions.

9.     Any issue as to costs will be decided by the Appeal Tribunal, on the papers, after 49 days from the date of this decision.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – MANDATORY CONSIDERATIONS – where the appellant was found not-guilty of criminal offences on the ground of mental impairment but refused a blue card on the basis that the conduct had occurred and concerns about his ability to exercise restraint and judgment – whether the respondent was mandated to issue a blue card under s 221 of the Working with Children (Risk Management and Screening) Act 2000 – whether the respondent was aware of a “charge” against the appellant – whether “charge” in the context of the section excluded acquitted charges

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

Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87
Department of Justice v CMH [2021] QCATA 6
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250
NTT v Department of Justice [2023] QCAT 120

APPEARANCES & REPRESENTATION:

Applicant:

S Wills of the Aboriginal and Torres Strait Islander Legal Service

Respondent:

K McMillan KC, instructed by the respondent

REASONS FOR DECISION

This is an appeal from the decision of a Member who, on 17 January 2022, confirmed the decision of the respondent not to issue the appellant with a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“the Act”).
Although on the application form the appellant sought leave to appeal, it seems to me that the grounds of appeal identified in the attachment are all questions of law. Accordingly, the appellant has a right to appeal on those grounds,[1] and does not require leave. An appeal on questions of law only is an appeal in the strict sense.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142.
[2]Albrecht v Ainsworth [2015] QCA 220 at [94].

Background

On or about 2 October 2019 the appellant applied for a blue card in connection with his position as a student with a particular training organisation, where he was training as a disability support worker. As a result enquiries were made which revealed that in 2014 he had been charged with criminal offences in Melbourne, and that on 7 December 2015 in the Magistrates Court he was found not-guilty on the ground of mental impairment. In connection with this hearing he was assessed by a forensic psychiatrist, and he subsequently attended a mental health service as an outpatient for a number of years.
The circumstances of the charges arose from conduct when he was twenty-one, and had attended a hospital as a voluntary patient because of a psychotic episode. While awaiting admission he left and attempted to enter another part of the hospital, and when he was refused entry, kicked a glass door a number of times, causing it to shatter. At some point in this process he assaulted an elderly emergency service worker. When police arrived he was aggressive, and was also charged with assaulting one of them.
The application was rejected by the respondent, essentially on the basis that the conduct alleged had occurred, and that it raised concerns about the appellant’s ability to exercise restraint and judgment, to manage his anger and to respond appropriately to situations of stress or conflict.
The appellant applied for review of that decision by the Tribunal, and submitted that, as a result of a decision of the Appeal Tribunal,[3] the respondent had erred in taking into account the charges in Victoria, on the basis that they were completed and that decision interpreted “charges” as applying to uncompleted charges. The Member did not reject the applicability of that decisions in relation to the charges, but essentially held that on the material available the appellant had not shown that there was no real risk of future psychotic episodes occurring in circumstances which put children at risk. On this basis, the decision of the respondent was confirmed.
[3]Department of Justice v CMH [2021] QCATA 6.

Appellant’s submissions

The appellant advanced four grounds of appeal, alleging that the learned Member erred in four ways, as follows:
(a)Determining there is an exceptional case pursuant to s 221(2) of the Act because an exceptional case cannot be found if s 221(1)(a) applies.
(b)Determining whether there is an exceptional case pursuant to s 221(2) of the Act by failing to have regard to ss 226, 227 or 228 of the Act.
(c)Misinterpreting the appellant’s argument as to whether an exceptional case existed.
(d)Impliedly placing an onus of proof on the appellant.
As to the first ground, the submission was that it was not appropriate to proceed to s 221(2) in circumstances where s 221(1)(a) applied, since subsection (2) was applicable under paragraphs (1)(b) and (1)(c). As a result, the member had disregarded the structure of the Act, and had simply sought to decide the matter as if there was a general and unrestricted discretion to reject an application, having regard only to the object and overriding purpose of the Act, and the facts before the Tribunal.
The Tribunal’s obligation on a review was to make the correct and preferable decision, which involved making a decision in accordance with the same legal framework as the decision maker, in the process correcting any errors of law made by the decision maker in applying that framework. It did not extend to making a decision which was outside that framework. As well, it was open for the Tribunal to have made a declaration under the QCAT Act s 60, even though neither party sought such a declaration, which would have been helpful to the appellant.
As to the second ground, the Tribunal had failed to comply with the mandatory requirements of these sections, which if complied with would have meant that the appellant’s application would have succeeded. The requirement was to consider s 226 as specified in Public Safety Business Agency v Masri [2016] QCATA 86 at [42], [52]. The same applied to the other sections. As to the third ground, that the Tribunal had treated the appellant as running a judicial review application, whereas the appellant was seeking a review, but was relying, as he was entitled to, on the proposition that, if the review was conducted in accordance with the Act, the appellant was entitled to receive a blue card without further consideration of the merits.
As to the fourth ground, the reasons of the Tribunal pointed out at some length the limited amount of information which was available about the appellant, and complained that he had failed to put before the Tribunal evidence to show that the concerns raised by the respondent in relation to the original decision could be allayed. The practical effect of this was that the appellant was put in the position of having to prove that he was not a threat to the wellbeing of children because of his mental health issues in 2014. That it was submitted had the effect of putting an onus on the appellant.

Respondent’s submissions

In written submissions the respondent said that the absence of a finding that the Act s 221(1)(a) applied was fatal to an argument that s 221(2) did not apply. It was clear from the transcript that the Tribunal was well aware of the case that the appellant was advancing, but was conducting a review of the decision of the respondent, and in those circumstances was required to conduct a full review of the decision in accordance with the QCAT Act. Reliance was placed on the decision of Horneman-Wren DCJ, former Deputy President of the Tribunal, in J M Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 at [64], [65]. The Member was correct not to focus on any errors by the respondent, but to make up his own mind on the merits of the application under the Act: LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373. As to whether the appellant had no “criminal history”, the respondent relied on submissions in writing made at first instance.[4]
[4]The substance of these is set out under Consideration.
As to the second ground, the respondent accepted that the Member was required to have regard to the Act s 226, but submitted that it was clear from the transcript that this had been averted to during the hearing, and accepted by the Member: p 1-45. The Member in fact dealt with the matters covered by s 226(2)(a)(i) – (iii) and (f) in his reasons, and there was nothing to consider under s 226(2)(a)(iv), (b), (c), (d) or (e). Nor was there any investigative information or disciplinary information available. Neither party contended that the provision of s 228 dealing with other relevant information, introduced by amendment after the respondent’s decision and after the appellant made his application for review by the Tribunal, but before the hearing,[5] were applicable.
[5]Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld), No 39 of 2020, commencing 1 February 2021. There were no transitional provisions dealing with application to undecided reviews.
As to the third ground, it was submitted that the Member was well aware of the approach of the appellant, and the case he was making, but had rejected that approach. The Member felt he was in a difficult position in deciding a review and whether it was an exceptional case, in circumstances where the appellant had chosen to provide no information to the Tribunal about matters raised in the material, such as the state of the appellant’s mental health. It was in this context that the Member, at reasons [77], characterised the approach of the appellant as mounting a judicial review argument in what was a merits review.
As to the fourth ground, the respondent accepted that neither party bore an onus in relation to whether an exceptional case existed. That was also recognised by the Member, at [39]. The Member’s comments about a lack of material reflected the fact that the appellant chose to run a case which did not involve providing any material to the Tribunal, or giving oral evidence. If a matter is peculiarly within the knowledge of an applicant for review, a failure to produce evidence of that matter may result in an inference being drawn against that applicant, but this is a matter of common sense, not a matter of imposing an onus or evidential onus.[6]
[6]McDonald v Director-General of Social Security (1984) 1 FCR 354; 6 ALD 6.

Consideration

The relevant version of the Act for my purposes is that in force at the date of the respondent’s decision, 26 August 2020.[7] As at that date, the Act provided in s 221 as follows:
[7]Section 221 was amended between then and the date of the decision of the Tribunal, but only by changing “positive notice” to “working with children clearance”, by referring to different sections in the Note, and by adding a paragraph (d) as a further alternative.
(1) Subject to subsection (2), the chief executive must issue a positive notice to the person if—
(a)       the chief executive is not aware of any police information or disciplinary information about the person; or
(b)       the chief executive is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i)                   investigative information;
(ii)                  disciplinary information;
(iii)      a charge for an offence other than a disqualifying offence;
(iv)      a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
(c)       the chief executive is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the chief executive 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 positive notice, the chief executive must issue a negative notice to the person.
Council for the respondent conceded that the respondent had no disciplinary information about the appellant. The term “police information” was defined in Schedule 7, but the only applicable part was that it included the appellant’s “criminal history”. That term was also defined in Schedule 7, as every conviction of the person, and “every charge made against the person for an offence, in Queensland or elsewhere, and whether before or after the commencement of this Act.” The appellant had no convictions, and the existence of police information depended on the proposition that “charge” included the charges brought against the appellant in Victoria, of which he was acquitted.
If the decision in Department of Justice v CMH [2021] QCATA 6 was correct, at the time of the application and the decision the appellant also had no “police information”. It followed that paragraph (a) of s 221(1) was satisfied, so that the respondent was obliged to issue a blue card (by whatever name) to the appellant. The section used the term “must”, and the paragraphs were separated by the disjunctive “or”, so that it was sufficient if one of them were satisfied to activate the mandatory requirement that a blue card be issued.
This is not the way in which the matter was approached by the Member, although it was the way it had been run by the appellant at the hearing. The Member referred to the decision in CMH, but did not say what its effect was in this matter. He even ignored detailed submissions from the respondent as to why the decision in CMH should not be followed. Instead he embarked on an evaluation of what he referred to as “the merits”, which consisted in practice of an assessment of whether such information as was available about the mental health problems experienced by the appellant in 2014 potentially posed a continuing risk to welfare of children in the future.
That in my opinion involved an error of law on the part of the Member. Applications under the Act have to be dealt with, and decided, in accordance with the provisions of the Act,[8] and necessarily the first issue is whether the Act requires a blue card to be issued. It is only if one gets to a position of deciding whether or not this is an exceptional case that it becomes relevant to consider the factual background, and even then, there are provisions in the Act which identify particular matters which must be considered. For example, there are provisions in the Act which deal with a situation where the respondent can obtain and take into account a report on the mental health of an applicant for a blue card, but senior counsel for the respondent conceded that they did not apply in the present case. This was a matter which was not mentioned by the Member, and I suspect not considered, in the assessment of the significance of the appellant’s mental health history.

Was CMH not correct

[8]Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250, at [14], [41], [51].

I consider that, as a matter of comity, I should follow the decision in CMH unless satisfied that it was not correct. The submissions of the respondent relied on the history of the legislation, and the changing terms of s 221 or its equivalent, which it was submitted showed that the meaning of the word “charges” was not so confined, on the fact that the passage in an Explanatory Note relied on in CMH came from the Note for a bill for an earlier version of the Act, at a time when the Act made no reference to disqualifying offences and so did not treat charges of them differently, and that there were other decisions of the Tribunal, including an earlier decision of the Appeal Tribunal, which were inconsistent with CMH.
I will deal with these points in the reverse order, because I want to look in some detail at the legislation. Two decisions of the Tribunal were referred to. The earlier decision of the Appeal Tribunal was Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. The Appeal Tribunal had set aside a decision of the Tribunal, and then conducted itself a rehearing of the review. In that matter the Tribunal did seem to look at the circumstances of charges which had concluded other than by a conviction in the course of considering the review. It appears to have taken into account statements gathered by the police relevant to charges on which the respondent was acquitted, or which the prosecution dropped, but at times in the decision spoke of the conduct of the respondent “admitted or proved”.[9] There was no discussion of the scope of the term “charges” and it appears that the present point was not raised at that hearing, or considered in those reasons. In those circumstances, it is not a decision to the contrary.
[9]Reasons [41], [65]. There had been an interview in relation to her application to the Commissioner in which various conduct was admitted, said by the Tribunal to be generally similar to the conduct alleged in the statements: reasons [39].
It was submitted that the Tribunal had recently decided not to follow CMH, in NTT v Department of Justice [2023] QCAT 120. In that matter a number of traffic offences, mainly speeding offences, were relied on as justifying a refusal to issue a blue card, and on the review, the applicant relied on decisions including CMH as showing that these should not be regarded as convictions or charges, apparently on the ground that fines had been paid on receipt of infringement notices. The Member in that matter distinguished the decision in CMH, on the basis that the traffic infringement notices had been paid, whereas in CMH the charges were dismissed: [40]. Although the Member spoke of the infringement notice being treated as a charge, which is consistent with the definition of “charge” in the Act, the point of the decision was that a notice where the fine was paid was treated as a conviction. The decision in CMH was distinguished, rather than being not followed.

As to the Explanatory Note extract relied on,[10] this came from the Bill for the 2000 Act, and at that stage the Bill (and in due course the Act) did not provide for separate treatment for disqualifying offences, so it was submitted that it could not have reflected an intention to treat differently charges for disqualifying offences, as suggested in the reasons at [30]. That is so, although it does not detract from the fact that the Explanatory Note in the passage quoted did refer only to “certain charges” being relevant to making decisions as to suitability. The equivalent provision in the original version of the Act,[11] s 102, did not contain the distinction drawn in the relevant version of s 221(1)(b)(iii) and (iv), although in s 102(5) there was a distinction drawn between conviction and charge:
If the commissioner is aware of a conviction or charge of the person for an offence, the commissioner must decide the application having regard to the following matters relating to the commission, or alleged commission, of the offence by the person—
(a) whether it is a conviction or a charge;
(b) whether the offence is a serious offence;
(c) when the offence was committed or is alleged to have been committed;
(d) the nature of the offence and its relevance to child-related employment;
(e) anything else the commissioner reasonably considers to be relevant to the assessment of the person.
[10]CMH (supra) at [29].
[11]Then called the Commission for Children and Young People Act 2000 (Qld), No 60 of 2000.
The significant point here is that in paragraph (c) a conviction is described in the past tense, whereas a charge is described in the present tense, as if something which currently exists is being spoken about. A conviction is an event which is necessarily in the past. Although it would otherwise be possible for the term “charge” in s 102 to refer to charges which had concluded other than in a conviction, there is equally nothing in the section which is inconsistent with its meaning a current charge.
Apart from that section, the word “charge” or a derivative in the relevant sense[12] appeared in seven places in the Act, including a definition in what was then Schedule 4 which just included different ways in which a criminal proceeding could be commenced. Section 122, authorising the commissioner to obtain information from the police, makes sense either way. Section 134, dealing with information about potential member of the commission’s staff, uses the term, and contains in s 134(2)(b) an analogue to s 102(5)(c), but omitting the word “is”. That could be explained by an intention, in this context, to cast the net wider and include charges not current. Section 137, concerning the information the prosecuting authority must provide to the commissioner if a staff member is charged with an indictable offence, requires information to be supplied if the person is committed for trial, if the person is convicted, and if the “prosecution process” comes to an end without the person being convicted, but uses the word “charged” only in subsection (1), dealing with the application of the section. The remaining provisions, s 146, s 147 and s 151, are machinery provisions dealing with prosecutions of offences under the Act, and will necessarily only apply to current charges.
[12]It also appeared in the expression of a person “in charge of” something.
On the face of it, therefore, it is possible that in s 102 of the Act in its original form, the term “charges” did mean only current charges, that is, charges where the prosecution process had not ended, and there is one textual indication that that was the intended meaning. Section 102 was amended in 2004,[13] so as to accommodate the concept of the excluding offence, which came with that amending Act. That produced, in s 102(3)(b), a structure very like that in the relevant version, since paragraph (b) included:
(iii) a charge for an offence other than an excluding offence;
(iv)a charge for an excluding offence that has been dealt with other than by a conviction;
[13]By the Commission for Children and Young People and Child Guardian Amendment Act 2004 (Qld), Act 49 of 2004.
It is immediately apparent that, regardless of whether the term “charge” here refers only to one that is current or extends to one that is completed, paragraph (iv) did not cover a charge which has not yet been dealt with. However, a note to paragraph (iv) said: “See sections 119C and 123(3B) in relation to charges for excluding offences that have not been dealt with.”[14] So in the case of an excluding offence, a charge is covered whatever the situation. If it has resulted in a conviction, it will be covered by the reference in the Act to convictions, in which case there will be no need for it to be dealt with also in the capacity of a charge. If it has been dealt with other than by a conviction, it will be covered by paragraph (iv), and if it has not been dealt with, it will be covered by the other sections mentioned in the note.
[14]I have looked at these sections, and there is nothing in them inconsistent with “charge” referring to a current charge. Section 119D(3)(a) is consistent with s 102(3)(b)(iv).
If the respondent’s submission as to the interpretation of the section is correct, it is immediately apparent that the words “other than an excluding offence” in paragraph (iii), the whole of paragraph (iv) and the other provisions which cover the gap in s 102 for charges for excluding offences which have not been dealt with, are all unnecessary, because all of these would be covered anyway if paragraph (iii) simply referred to “a charge for an offence”. On that interpretation, a charge for an offence other than an excluding offence is covered in exactly the same way as a charge for an excluding offence. The fact that all these provisions were included showed, in my opinion, that the legislature intended that, under s 102, a charge for an excluding offence was to be dealt with differently from a charge other than for an excluding offence. The fact that paragraph (iv) extends expressly to a charge “dealt with other than by a conviction” indicates that the difference from paragraph (iii) was that a charge in that paragraph did not extend to one that had been dealt with other than by conviction. That leaves only a charge which has not yet been dealt with, and shows that that was the meaning intended by the legislature for that term in paragraph (iii).
The explanation for this separate treatment was not that the charges in paragraph (iv) were treated differently under the section from the charges in paragraph (iii). Everything falling within paragraph (b) was treated the same way. What was treated differently was convictions for excluding offences, convictions for serious offences and convictions for other offences: see s 102(3)(c), (6), (7) and (8).
I should add that after this amending Act the provision noted in the original Act, in s 102(5)(c), which distinguished between the past tense for a conviction and the present tense for a charge, was still present, in s 102A(2)(a)(iii). I have looked at the other provisions of the Act in its form after these amendments, which are more numerous than before, and the relevant use of the term “charge” does not indicate one way or the other whether it referred generally to a current charge.[15]
[15]Again, in some cases the reference is necessarily to a current charge, under the Act.
It is an established principle of statutory construction that if possible meaning should be given to all words, and hence all phrases, sentences and paragraphs of the provision being construed. Another principle is that a word is used in the same sense throughout a section, at least in the absence of a clear indication of a change, such as that provided by the expression in paragraph (iv). I consider that following this amendment s 102 still spoke of charges as pending charges, charges not dealt with, except where s 102(3)(b)(iv) expressly gave a different meaning. Hence “police information” in s 102(3)(a) extended to charges which had been dealt with other than by a conviction only in the case of an excluding offence.
The definitions of “charge” and “police information” are not in themselves inconsistent with this interpretation. The former merely deals with the manner of commencement of a proceeding, not whether it has been dealt with, while the latter simply refers to “charges”, and is neutral. A charge is in essence an allegation that an offence has been committed, and once the proceeding has been dealt with, there is no longer such an allegation in existence, so there is no longer a charge. I do not regard this as a matter of great significance, the textual indicia are what really matter.
In 2008 the Act was amended again,[16] but for s 102(3) the only change was that the term “excluding offence” was changed to “disqualifying offence”. I was not referred to any provision of the Act as amended in 2008 which changed the other provisions referring to “charge” so that they ceased to be neutral. In 2010 there was a further amendment act[17] which made substantial changes to the structure of the Act, under which the relevant provision became s 221, as it is now. That section covered the former s 102(3) and (4). Section 221(1)(b) was in essentially the same terms as the former s 102(3)(b), and significantly paragraphs (iii) and (iv) were in the same terms, except that the note to the latter referred to more other sections. That was the version of the Act in force at the time of the respondent’s decision.
[16]By the Commission for Children and Young People and Child Guardian and Another Act Amendment Act 2008 (Qld), No 18 of 2008.
[17]Criminal History Screening Legislation Amendment Act 2010 (Qld), No 5 of 2010.
There have been further amendments in 2020, and in 2022, but these do not change the section in a way that detracts from the validity of the analysis above. I should add that the distinction between the past tense for conviction and the present tense for charge, in the Act as passed s 102(5)(c), now appears in s 226(2)(a)(iii), retaining that distinction.[18]
[18]In the version of the Act in force at the date of the respondent’s decision, s 241(9)(a) and s 299(9)(a) spoke of a “charge … pending;”.
The result of my consideration of the terms of the Act, and of its history, does not suggest to me that the decision in CMH was wrong. On the contrary, it leads me to conclude that it was correct, and “charge” means the basis of a criminal proceeding which has not concluded, except where the context indicates to the contrary. I should therefore follow CMH, and decide the appeal on the basis that there was no charge in the appellant’s criminal history. In view of the analysis earlier, s 226(1)(a) applies to the appellant, and the respondent must issue him with a blue card. It follows that there is no reason to consider the question of whether this is an exceptional case, for the purposes of s 226(2).

Other grounds

In the circumstances I can deal with the other grounds quickly. I need say nothing about the QCAT Act s 60. Ground 2 was really applicable only if Ground 1 failed. Since it has succeeded, it need not be considered further, although I would comment that it would have been helpful if the reasons had shown that the matters required to be taken into account had all been considered, even if that just meant saying that they did not apply in this case. Ground 3 has in substance already been dealt with, since it appears that the Member took the view that, as it was a review on the merits, the basis advanced by the appellant, which could have been advanced on a judicial review application, could be disregarded. As I have said, that was the wrong approach.
As for Ground 4, the position here is more complicated. Although there is no onus of proof in the technical sense in administrative decision making, where the obligation on the Tribunal is to arrive at the correct and preferable decision, if a situation arises where a decision maker has some information which gives rise to some concern about an applicant, it is legitimate to take into account whether the applicant was in a position to put forward material which would or may have dispelled that concern, at least if that material is available to the applicant. In the present case however the “missing” material was up to date expert information about the mental health of the appellant, and if the appellant has not felt the need for medical attention to his mental health recently, he may well not have such information, at least unless he goes to the trouble and expense to get some to provide to the respondent.
I was told the Act provides that, in certain circumstances, the respondent can itself obtain an expert report on the mental health of an applicant, but senior counsel for the respondent conceded that that did not apply in the present case, because the offences charged were not serious enough. That suggests that the legislature was not so concerned about the mental health consequences of a defence to such charges on mental health grounds. There is also the consideration that the test, under s 221(2), is whether “the commissioner is satisfied that it is an exceptional case in which it would not be in the best interests of children” to issue a blue card. It does not say that it “may be an exceptional case in which it may not be …”. The test strikes me as difficult to satisfy where there is a lack of material suggesting any current risk to the best interests of children. It is not enough to be suspicious. However, in circumstances where, on my interpretation of the Act, the application of s 221(2) did not arise, this is not a point which requires consideration.

Conclusion

As the appeal has succeeded on a question of law, it is not necessary to grant leave to appeal, although I would have given leave in the circumstances had that been necessary. The appeal is allowed, the decision of the Tribunal of 17 January 2022 is set aside, the decision of the respondent to issue a negative notice to the appellant is set aside, and in lieu thereof, there be a decision to issue a positive notice to the appellant. Prima facie that should take effect from the date of the decision of the respondent,[19] but so much time has now passed since that decision that any positive notice issued then would have almost expired by now. In view of that, it is appropriate to order that this decision take effect from the date on which it is made. I will give directions as to any application for costs.
[19]The QCAT Act s 24(2)(b).