LM v Director-General, Department of Justice and Attorney-General - [2022] QCAT 333

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333

PARTIES:

Lm

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-gENERAL

(respondent)

APPLICATION NO:

CML484-20

MATTER TYPE:

Children’s matters

DELIVERED ON:

5 September 2022

HEARING DATE:

6 and 7 December 2021

HEARD AT:

Cairns

DECISION OF:

Member Stepniak

ORDERS:
The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.

CATCHWORDS:

KEY LEGISLATION:

KEY CASES:

CHILDREN’S MATTER – BLUE CARD – where convicted of offence – where offence neither serious nor disqualifying – where issued a negative notice – where application to remove negative notice refused – where applied for review of decision – whether an ‘exceptional case’

HUMAN RIGHTS ACT – BLUE CARD SCREENING – where welfare and best interests of children are paramount consideration – where decision will cause hardship and limit applicant’s human rights –– whether any limitation of applicant’s rights is compatible with human rights –– whether the case is an ‘exceptional case’

International Covenant on Economic, Social and Cultural Rights Articles 4, 6.

Child Protection Act 1999 (Qld) s 122.
Criminal Code Act 1899 (Qld) ss 280, 335, 339.
Evidence Act 1977 (Qld) s 93A.
Human Rights Act 2019 (Qld) ss 4, 8, 13, 23, 25, 26, 28, 31, 36, 48, 58.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 19, 20, 21, 24, 28, 66, 90.

Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 15, 16, 220, 221, 226, 318, 319, 335, 337, 338, 353, 354, 360, 361; Chapter 8, Part 4, Division 9; Chapter 9 Part 1, Schedule 1, s 11.; Schedule 2; Schedule 4; Schedule 7.

Briginshaw v Briginshaw & Anor [1938] HCA 34

Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171
Commissioner for Children and Young People and Child

Guardian v Eales [2013] QCATA 303

Commissioner for Children and Young People and Child
Guardian v FGC [2011] QCATA 291
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 CMH [2021] QCATA 6
Director-General Department of Justice and Attorney General v MAP [2022] QCATA
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

Director-General, Department of Justice and Attorney-General v PML [2021] QCATA 51
HF [2020] QCAT 482
JF [2020] QCAT 419
Kent v Wilson [2000] VSC 98.
LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244
Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302
McKee v McKee [1951] AC 352
PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327
RA and RJ [2018] QCAT 95
Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1.
Re TAA [2006] QCST 11
RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331
TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489

APPEARANCES & REPRESENTATION:

Applicant:

Mr D McKinstry, WGC Lawyers.

Respondent: Ms C Davis, representing the Director-General, Department of Justice and Attorney-General

REASONS FOR DECISION

Background

LM (“the Applicant”) is a 48-year-old woman who identifies as an Aboriginal and Torres Strait Islander. In the course of her 13-years of employment in the health sector the Applicant devoted herself to Indigenous health care issues in roles such as Advanced Indigenous Health Worker with the Queensland Health and the Torres and Cape Hospital and Health Service.
When her blue card was suspended in 2018, she was moved to an administrative position. In November 2021 Queensland Health terminated her employment ostensibly on the grounds that even her employment in an administrative position was not viable without a blue card.[1]
[1]Letter from the Torres and Cape Hospital and Health Service dated 19 November 2021. Received at hearing on 6 December 2021 as Exhibit 2.
The Applicant has also been a foster carer. She and her partner, DR, became approved foster carers in October 2011[2] and cared for ‘many foster children over a period of 8 years, caring for up to eight children at one time.’[3] The Applicant’s most recent 2-year approval as a foster parent was on 16 February 2018.[4]
[2]Certificate of Approval dated 18 October 2011, Documents produced on 30 July 2021 by the Department of Children, Youth Justice and Multicultural Affairs in response to the Tribunal’s notice to produce dated 5 July 2021, ICMS10 page 8.
[3]The Applicant’s ‘Life Story’, at para 27, and Applicant’s Submissions, dated 6 December 2021, at para 13.
[4]Exhibit to Applicant’s affidavit dated 17 November 2021, LM-03, at p 21.
At the time of the hearing the Applicant had almost completed her first year of a Bachelor of Nursing degree, but advised that she was unable to continue her studies as a blue card is required to undertake the clinical placement requirement of each year’s study.[5]
[5]Applicant’s affidavit dated 17 November 2021 paras 18-21.
The Applicant had been issued a blue card for her child related employment in 2004, 2009, 2011 and 2014, as required by the Working with Children Act 2000 (Qld) (“WWC Act”). Her last working with children clearance, positive notice and blue card were issued by Blue Card Services on 29 January 2016.[6]
[6]Respondent’s Outline of Submissions, 6 December 2021, at para 1.
In 2018, the Queensland Police Service (“QPS”) notified Blue Card Services that the applicant’s police information had changed in that her criminal history disclosed that she had been charged with assault occasioning bodily harm on 17 July 2018.[7] The Applicant was invited to make submissions as to why a negative notice should not be issued.
[7]BCS-2, (BCS materials produced by Blue Card Services in accordance with Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(2), and the Tribunal’s directions dated 1 February 2021.)
On 13 November 2018, having considered all the evidence including the Applicant’s submissions, her positive notice and blue card were cancelled, and she was issued a negative notice. Blue Card Services provided reasons for the decision to issue the negative notice.[8]
[8]BCS–1-14.
On 11 December 2019, the Applicant lodged an application to cancel the negative notice.[9]
[9]BCS–36-37.
On 22 April 2020 BCS wrote to the Applicant advising that her updated police information raised concerns about her eligibility to hold a blue card.[10] A national police check disclosed that on 5 December 2019 the Applicant had been convicted of Common Assault committed on 17 July 2018.
[10]BCS–48.
The Applicant was provided an opportunity to make submissions about why her application to cancel the negative notice should not be refused.
The application to cancel the negative notice was refused on 20 October 2020.[11] Accompanying the notice of outcome were reasons for refusing to cancel the negative notice.[12]
[11]BCS–97.
[12]BCS–15-35.
On 18 November 2020, the Applicant applied to have the Respondent’s decision that the Applicant’s case was an ‘exceptional case’ in which it would not be in the best interests of children for the Applicant to be issued a working with children clearance and blue card, reviewed by the Queensland Civil and Administrative Tribunal. (‘the Tribunal’).
The review application was heard by the Tribunal on 6 and 7 December 2021.
The Respondent and Applicant filed written submissions on 6 December 2021 and as directed, the Applicant filed final/supplementary submission by 31 January 2022. The Respondent had been directed to file final submissions by 14 February 2022. However, the effect of extreme weather conditions led the Tribunal to agree to extend this due date. The Respondent’s final submissions were filed on 10 March 2022.

Relevant Law

The Tribunal’s review of this ‘reviewable decision’ is governed by not only the WWC Act under which the decision under review was made but also by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) and the Human Rights Act 2019 (Qld) (“the HR Act”)

The Tribunal’s Power to Review Decision

The WWC Act, under which the Respondent’s decision was made, empowers the Tribunal to review the Act’s ‘reviewable decisions.’[13]
[13]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17.
Section 353 of the WWC Act lists the Act’s reviewable decisions. The list includes—
(a) a decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive— ….
(ii) refused to cancel a negative notice issued to the person.’[14]
[14]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 353(a)(ii).
This was precisely the reason the Respondent gave for refusing to cancel the negative notice issued to the Applicant.[15]
[15]Reasons for Refusing to Cancel a Negative Notice, 20 October 2020, para 8, BCS–31.
As outlined below, the WWC Act provides that in a case such as the Applicant’s, where the decision maker is aware of a conviction for an offence that for the purposes of the WWC Act constitutes neither a serious or disqualifying offence,[16] the decision maker, ‘must issue a working with children clearance.’[17]
[16]Serious Offences are defined in Working with Children (Risk Management and Screening) Act 2000 (Qld), s 15; and listed in Schedule 2. Disqualifying offences are defined in Working with Children (Risk Management and Screening) Act 2000 (Qld), s 16 and listed in schedule 4.
[17]Ibid, s 221 (1).
However, if the decision-maker is, ‘satisfied that the case is an exceptional case in which it would not harm the best interest of children for the respondent to issue a working with children clearance,’ the Respondent, or on review the Tribunal, ‘must issue a negative notice.’[18]
[18]Ibid, s 221(2).
As the Respondent was satisfied that the case was an exceptional case, the WWC Act required the Respondent to issue a negative notice to the Applicant.[19]
[19]Ibid, s 221(1).
The Tribunal’s role in this review is to determine whether, it is ‘satisfied that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance.’[20]
[20]Ibid, s 221(2).
The Principles Governing the Review

The principles under which the WWC Act is to be administered, as set out in section 6 of the WWC Act, state that –
(a) the welfare and best interests of a child are paramount;
(b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
In addition, and specifically directed at, ‘QCAT proceedings about child-related employment review,’[21] the WWC Act states that, ‘A child-related employment decision is to be reviewed under the principle that the welfare and best interests of a child are paramount.’[22]

[21]Working with Children (Risk Management and Screening) Act 2000, Chapter 9, Part 1.

[22]Ibid, s 360.

The Nature of the Review

The QCAT Act provides that in this review the Tribunal has ‘all the functions of the decision maker for the decision being reviewed’[23] and ‘undertakes a fresh hearing on the merits.’[24] Consequently, this review is not an appeal against the Respondent’s decision but rather a review of the earlier decision by way of a fresh hearing.
[23]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c).
[24]Ibid, s 20(2).
One significance of this review being a ‘fresh hearing on the merits’ is that the Tribunal considers not only the evidence that was before the decision maker when the original decision was made, but also any additional or more recent evidence relevant to the Tribunal’s review.[25]
[25]Ibid, s 21(3).
Underlining the relationship between this review and the Respondent’s decision, the QCAT Act requires the Respondent as, ‘the decision-maker for the reviewable decision’ to, ‘help the tribunal so that it can make its decision on the review,’[26] and states that the purpose of this review is to ‘produce the correct and preferable decisions.’[27]
[26]Ibid, s 21(1).
[27]Ibid, s 20(1).
Just as sections 220 and 221 of the WWC Act restricted the original decision maker’s decision options,[28] so they limit the decisions the Tribunal is able to make. Consequently, the Tribunal lacks the jurisdiction to issue a conditional blue card,[29] or amend the Respondent’s decision. What the Tribunal can do is, to confirm the Respondent’s decision that the case is an exceptional case (obliging the chief executive under the Act to issue a negative notice), or set aside the Respondent’s decision and substitute its own decision that the case is not an exceptional case, [30] in which case the Act would require the chief executive to issue the Applicant with a working with children clearance.
[28]Working with Children (Risk Management and Screening) Act 2000, s 220.
[29]RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331, [27].
[30]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).
The Tribunal also recognises that pursuant to section 24(1)(c) of the QCAT Act, on rare occasions, it is also able to, ‘set aside the decision to issue a negative notice and send the matter back to the Director-General to reconsider the decision, together with any directions QCAT considers appropriate.’ [31] However, even then, the restrictions imposed by the WWC Act would still require the Applicant to issued either an unqualified working with children clearance or a negative notice.

[31]QCAT Practice Direction No 5 of 2022, para 4.

The Onus and Standard of Proof

As it is for the Tribunal to determine whether the case is an exceptional case, neither party bears the onus of proof of establishing whether the case is an exceptional case.[32]
[32]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
The Tribunal determines whether the case is exceptional by considering all available evidence and reaches a decision ‘on the balance of probabilities,’ while bearing in mind the gravity of the consequences involved,’[33]or ‘the nature of the reviewable decision.’[34]
[33]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] citing as authority the test in Briginshaw v Briginshaw & Anor [1938] HCA 34.
[34]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86.
While not bound by rules of evidence,[35] the Tribunal must observe the rules of natural justice.[36] Nevertheless, the Tribunal is required to provide reasons for its decision that are evidence and consequently must give varying and appropriate weight to the evidence before it.

[35]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[36]Ibid, s 28(3)(a).

The Focus of the Review

The Tribunal’s review is focused not on the Applicant’s criminal guilt or innocence, or other liability, but rather on whether the issuing of a blue card to the Applicant would be in the best interests of children.
The Tribunal is careful not to draw inferences from the findings of earlier proceedings against the Applicant. The outcome of criminal proceedings, may for example be attributable to evidence that would be admissible and relevant to tribunal reviews but excluded from criminal proceedings. Outcomes may also reflect the more onerous level of proof in criminal proceedings, or to the dropping or reduction in charges in recognition of pleas of guilty.
The sole question for the Tribunal is whether the Applicant’s case is an exceptional case in that it would not be in the best interests of children for her to be issued a blue card. For that reason, the Tribunal does not determine the existence of an exceptional case by weighing up the benefits against the risks of the Applicant being permitted to work with children.[37] The identification of a risk such as would make an Applicant’s employment with children to not be in their best interests renders any benefits to children of that applicant working with them irrelevant to the question at hand.[38] The question is not whether on balance the Applicant is a person who deserves to be permitted to work with children.

[37]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [7].

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

Human Rights Act

The HR Act is applicable to the Tribunal’s review of this case, because in this review the Tribunal is considered to be a ‘public entity’ for the purposes of the HR Act.[39]
[39]See: PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at [123]; HF [2020] QCAT 482, and JF [20220] QCAT 419.
Section 58 of the HR Act states—
(1) It is unlawful for a public entity—
(a)to act or make a decision in a way that is not compatible with human rights; or
(b)in making a decision, to fail to give proper consideration to a human right relevant to the decision.
The HR Act also requires the Tribunal to interpret legislation, ‘in a way compatible with human rights.’[40]
[40]Human Rights Act 2019 (Qld), s 4(f).
To give proper consideration to human rights obliges the Tribunal to ‘[identify] the human rights that may be affected by the decision; and ‘[to consider] whether the decision would be compatible with human rights.’[41]
[41]Ibid, s 58(5).
For a decision to be compatible with human rights it must either not limit human rights, or if it does, then no more that is reasonable and justifiable.[42]

[42]Ibid, s 8, s 13.

What Makes a Case ‘Exceptional’?

In determining whether the case is ‘exceptional’, it is important to determine what the legislature intended this term to mean in this context.
As the WWC Act does not define the meaning of ‘exceptional case’, what constitutes an exceptional case must be determined by giving the term its ordinary meaning in the context of the Act, or more specifically in the context of ‘the intent and purpose of the legislation and the interests of the people whom it is designed to protect: children’[43]
[43]Kent v Wilson [2000] VSC 98 at [22] per Hedigan J, cited with approval in Commissioner for Children and Young People v FGC [2011] QCATA 291 at [31].
The stated object of the WWC Act is,
to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring—
(b)the screening of persons employed in particular employment or carrying on particular businesses.[44]
[44]Working with Children (Risk Management and Screening) Act 2000, s 5(b).
The principles under which the Act is to be administered, are –
(a) the welfare and best interests of a child are paramount;
(b)every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[45]
[45]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6.

The ordinary meaning of paramount is ‘above others in rank or authority superior in power or jurisdiction, chief in importance or preeminent.’[46] Accordingly, courts have held the welfare and best interests of a child to be ‘the paramount consideration ‘to which all others yield.’[47]
[46]Macquarie Dictionary (8^th ed).
[47]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 per McPherson JA citing Viscount Simonds in McKee v McKee [1951] AC 352, 365.
What constitutes an exceptional case clearly needs to be determined on the unique facts of each case, or as a ‘question of fact and degree in the whole of the circumstances of each particular case.’[48] It must also be considered in, ‘the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously designed to protect: children.’[49]
[48]LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244, citing Re TAA [2006] QCST 11 at [22].
[49]Kent v Wilson [2000] VSC 98 at [22] per Hedigan J, cited with approval in Commissioner for Children and Young People v FGC [2011] QCATA 291 at [31].
Ultimately, whether the Applicant’s case is an ‘exceptional case’ is for the Tribunal to determine, weighing the evidence presented by the parties, and reaching a decision on the balance of probability, while bearing in mind the gravity of the consequences involved.[50]
[50]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30] citing as authority the test in Briginshaw v Briginshaw & Anor [1938] HCA 34.
While such determinations have also been described as ‘matters of discretion,^’[51] the decision maker’s discretion is not unfettered. Apart from being expected to review the decision ‘under the principle that the welfare and best interest of a child are paramount,’[52] the legislation requires the Tribunal to determine whether the Applicant’s case is an ‘exceptional case’, by—
(a)Having regard to the factors listed in section 226(2) WWC Act.
(b)Giving proper consideration to human rights relevant to the decision;[53] including whether the decision would be compatible with human rights. [54]
[51]Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. See also: Commissionerfor Children and Young People and Child Guardian v FGC [2011] QCATA 291, per President at [33].
[52]Working with Children (Risk Management and Screening) Act 2000, s 360.
[53]Human Rights Act 2019 (Qld), s 58(1)(b).
[54]Ibid, s 58(1)(a).
It is also appropriate for the Tribunal to consider factors that are not specifically required to be considered by legislation but which are relevant to the decision.[55]
[55]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 at [33]; Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492 at [40].
I turn to consider the factors that the WWC Act lists as mandatory considerations in accord with which to determine whether a particular case is exceptional.

Mandatory Considerations

As the Tribunal is, ‘aware that the [Applicant] has been convicted of, [and] charged with, an offence’ it is required to have regard to the factors listed in section 226(2) of the WWC Act, which I propose to address in turn.

First: Whether the offence was a conviction or a charge.[56]

[56]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(i).

On 5 December 2019, in the local Magistrates Court, the Applicant pleaded guilty to having committed ‘common assault’ on 17 July 2018. The Magistrate placed the Applicant on a recognisance of $500 to be of good behaviour for six months, and directed that no conviction be recorded.[57]
[57]Ibid.
For the purposes of the WWC Act, a ‘conviction means a finding of guilt by a court or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.’[58] Consequently, for the purposes of the WWC Act, the Applicant’s offence is a conviction even though the Applicant pleaded guilty and the Magistrate exercised his discretion to order that no conviction be recorded.[59]
[58]Working with Children (Risk Management and Screening) Act 2000, Schedule 7.
[59]Transcript of proceedings, BCS–103 at 33.
In addition to being convicted for common assault, the Applicant was initially charged with another offence. On 24 July 2018, she was charged with “assault occasioning actual bodily harm.”[60]
[60]Criminal Code Act 1899 (Qld), s 339(1); BCS-41.
While it is the Applicant’s conviction for common assault that is the ‘offence’ that is central to this review, that she was also charged with assault occasioning bodily harm is also to be considered. However, in being required to have regard to whether an offence is a conviction or a charge, the Tribunal is conscious of the need to take into account evidentiary and other distinctions between a conviction and a charge.
Nevertheless, a consideration of the charge that was later withdrawn serves to highlight the distinctions and similarities between the two offences and why the Applicant’s initial charge was not dealt with by the court.
The earlier charge took into account the injuries to D’s leg and alleged them to have been caused the by Applicant striking D with a wooden spoon and an electrical cord. Both D and R were consistently clear about D using both the spoon and cord. The evidence of other children who alleged being physically disciplined by the Applicant was that the Applicant had either used a hand or a wooden spoon. One child stated that any marks left would disappear by the following morning. The Applicant has consistently confessed to using the spoon to punish D, while denying to having used a cord.
The Applicant suggested that there was an alternative explanation for the marks on D’s leg, namely that on the day following the assault by the Applicant D was involved in a fight with another child who had been bullying her at school. Evidence as to whether this occurred is limited, and in my view insufficient to on balance establish a viable alternative explanation.
The evidence clearly leaves a doubt as to whether the Applicant struck D with both a wooden spoon and an electrical cord, and whether the injuries to D’s leg were caused by the Applicant’s disciplining of D.
It is perhaps not surprising that the charge was reduced to one that did not require proof beyond reasonable doubt that the Applicant’s assault caused actual bodily harm. However, when the evidence is assessed on the balance of probabilities, I am satisfied that the injuries noted on the day following the assault were caused by the Applicant and in view of them being found to be consistent with having been caused by a cord.
My conclusion, while relevant to the severity of the assault, is not essential to establishing what the Applicant has conceded, that she struck D a number of times with a wooden spoon.

Second: Whether the offence is a ‘serious offence, and if it is, whether it is a disqualifying offence’.[61]

[61]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii).

In classifying offences as ‘disqualifying’, ‘serious’, ‘other offences’ and ‘alleged offences,’ the WWC Act specifies how the Tribunal is to regard offences falling into a particular category, when determining whether it would be in the best interests of children for a working with children clearance to be issued.[62]
[62]Ibid, Chapter 8 Part 4, Division 9 in general.
The Applicant’s offence of Common Assault[63] does not constitute a ‘serious offence’[64] or a ‘disqualifying offence’[65] for the purposes of the WWC Act. The Applicant’s charge of assault occasioning bodily harm,[66] while carrying a significantly higher penalty,[67] is also not classified as either a serious or disqualifying offence.
[63]Criminal Code Act 1899 (Qld), s 335.
[64] Working with Children (Risk Management and Screening) Act 2000, s 15; schedule 2.
[65] Ibid, s 16; schedule 4.
[66]Criminal Code Act 1899 (Qld), s 339(1).
[67]Compare Criminal Code Act 1899 (Qld), s 335 and s 339(1).
Consequently, for the purposes of determining whether the Applicant’s case is exceptional, the Applicant falls into the category of cases where, ‘the chief executive is aware of a conviction of the person for an offence other than a serious offence.’[68]
[68]Ibid, s 221(1)(c).
Falling into this category of offences means that, ‘the chief executive must issue a working with children clearance to [the Applicant]’[69]…[unless] ‘the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children’[70] for the working with children clearance to be issued.

Third: When the offence was committed.[71]

[69]Ibid, s 221(1).

[70]Ibid, s 221(2).

[71]Ibid, s 226(2)(a)(iii).

The Applicant pleaded guilty to a common assault committed on 17 July 2018.
A consideration of when an offence is committed has a distinct and significant role to play in determining whether a case is an exceptional case. Having regard to, ‘when the offence was committed or is alleged to have been committed’[72] may permit a decision maker to draw inferences as to the relevance and significance of the other prescribed statutory considerations. It may, for example, reveal a pattern of behaviour, unique circumstances, yet unresolved issues or other factors relevant to the determination of whether the case is an exceptional case. In tandem with other considerations the Tribunal may determine that a past offence is highly significant or alternatively of little, if any, significance.
[72]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iii).
However, each offender and the nature and circumstances of their offence must be assessed individually to determine the specific relevance of the timing of their offences.

Recency

In the written reasons for refusing to cancel the negative notice, the Respondent described the Applicant’s offence as occurring ‘recently’ and stated that, ‘The recency of the applicant’s violent offending constitutes a risk factor in my assessment.’[73]
[73]Respondent’s Reasons for Refusing to Cancel a Negative Notice, 20 October 2020, para 6.3 BCS–30.
This view was reiterated in the Respondent’s submissions dated 6 December 2021–
the recency of the Applicant’s offending supports a finding that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for her to be issued with a blue card.[74]
[74]Respondent’s Outline of Submissions 6 December 2021, para 39.
The Applicant was charged with “assault occasioning bodily harm” and pleaded guilty to the lesser charge of “common assault”. Particularly as the victim was an 8-year-old child in her foster care, the Applicant’s continued engagement in child related employment could not at the time be considered to be in the best interest of children and consequently the Respondent found the Applicant’s case to be an exceptional case.
Consequently, there is a need to ascertain whether in the period since her offending on 17 July 2017 the Applicant has had time to distance herself from the offence and from any other factors that caused her behaviour at the time of the offence to be assessed being not in the best interests of children. Whether the Applicant has so distanced herself, I consider to be a decisive issue.
Evidence of the Applicant’s current understanding and insight into her offending and related behaviours and the detrimental impact of her assault and other actions on the welfare of children must be examined in order for the Tribunal to determine whether in the course of the four years that have elapsed since the offending, the Applicant has attained sufficient departure from views and behaviours that were found to constitute a risk to the welfare of children at the time of the offence.

Insight and Understanding

Whether or not the Applicant has acquired insight into the harm caused by her action and in particular their likely effect on children is particularly significant as it has been suggested that ‘A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others’[75]
[75]Re TAA [2006] QCST 11 at para [97].
Determining any continuing or remaining relevance of the Applicant’s July 2018 offence, calls specifically for an examination of her current attitudes towards and resort to physical punishment, as well as her insight and understanding of the impact of her actions on children, what caused her to commit the offence and what she needs to do to avoid committing similar offences.
The Applicant’s oral and written statements reveal some remorse, regret and insight into her actions and the impact of her actions on others. However, the significance of such statements appears to be largely undermined by most of the Applicant’s evidence, which defends her actions, denies any adverse impact on children and regrets the impact of the assault on her life. The evidence also discloses her lack of understanding or unwillingness to accept standards of care applicable to those working with children and in particular regarding appropriate disciplining of children in foster care.
It would appear that the Applicant’s acquisition of required insight and understanding continues to be hindered by her preoccupation with minimising her responsibility and culpability. When questioned about her actions, and even when admitting fault, the Applicant has been observed to almost invariably qualify her role by also attributing or deflecting responsibility to, for example, inadequate training or support by the Department.[76] This includes the Applicant’s inclination to raise and emphasise 8-year-old D’s challenging behaviour[77] as an explanation for the assault.
[76]Materials produced by Blue Card Services BCS–92.
[77]Ibid.
The Applicant also appears to still not understand why her assault conviction and related evidence led to her loss of blue card. She has trivialised the actions that constituted her offence,[78] and challenged any suggestions that her resort to physical discipline had any significant impact on the wellbeing of the children.[79] At most, she has acknowledged that smacking children ‘may have had a negative impact on the children.’[80] However, even this concession appears to relate to those who use excessive force.
[78]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS06 page 40 (reference to ‘This one mistake’) and page 44 (reference to ‘just one stupid thing’)
[79]BCS–94 reference to ‘one second smack’.
[80]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS06 page 86.
The Applicant continues to question her conviction by minimising her actions.[81] She does so by emphasising that the court found her actions to be a one off and out of character, and by asserting that she was ‘charged but not convicted of the assault.[82] While she pleaded guilty to common assault, she disputes some of the facts set out in the police court brief[83] and sentencing schedule,[84] such as her assault leaving any visible marks
[81]Ibid.
[82]BCS-93
[83]Materials produced by the Queensland Police Service, 1–3 to 1–5.
[84]Ibid, 1–7 to 1–8.
The Applicant’s insistence that her offence was a one off out of character incident and that its relevance to her suitability for child related employment was exaggerated, appears to have left her unmotivated to distance herself from factors that led to her loss of blue card and foster carer approval.
I agree with the Respondent’s submissions that the Applicant’s attempt to downplay her offence is inconsistent with accepting responsibility for those actions and with insight into the gravity of her behaviour.[85]
[85]Applicant’s Submissions, dated 6 December 2021, page 19.
Despite the time that has passed since her offending, the Applicant’s focus appears to remain fixed largely on the impact of her actions on herself. However, this review is not about whether the Applicant is a good person, was rightfully convicted of a crime, should be an approved carer, should be permitted to complete her studies or whether she is a valued member of the community. Instead, it is solely about whether this is an exceptional case, in that it would not be in the best interests of children for the Applicant to be issued a blue card.

One-off and Out of Character

In her references to the offence the Applicant continues to maintain that her actions were a one-off and an out of character aberration. She does so in spite of evidence to the contrary including her own admissions. Even though she has admitted to striking children in her care with an open hand,[86] she continues to maintain that the offence was her only resort to physical disciplining. When asked to explain her admissions, the Applicant says that she is unable to recall why she made such statements.
[86]Applicant’s letter dated 26 July 2018, ICMS09 page 3.
On several occasions during her years as a foster carer, officers of the Department of Child Safety found the Applicant responsible for substantiated hurt to children,[87] yet she remains adamant that she caused no physical or emotional harm to ‘any other children’ in her care.[88] I find that the evidence of a number of foster care children and Child Safety officers outweighs the inconsistent denials of the Applicant.
[87]BCS–46-47.
[88]Applicant’s affidavit dated 17 November 2021 para 52.
When her written and oral statements are viewed together, the Applicant’s views and admissions appear to disclose that she considers corporal punishment of children to be appropriate as long as the children are not injured and only an open hand is used. It also appears that the Applicant considers it appropriate for children as young as 6 and 8 to be intimidated, demeaned and threatened by being referred to in derogatory terms, by deriding their family members, and by being reminded that their disciplining could be worse and they could be hit with a chord such as the one she shows them.[89]
[89]Ibid, para 38, ‘What led up to Incident’, BCS–59.
The Applicant qualifies her actions by emphasising the excessive stress she was under at the time of the offence and the particularly trying behaviour of the eight-year-old D. While these circumstances could, as the Applicant contends, provide an explanation of why the assault occurred, they also serve to highlight that the Applicant’s employment in stress prone child related employment may not be in the best interests of children. As a Child Safety Officer points out, stress is never an excuse[90]
[90]ICMS06 at page 84.
The Applicant acknowledges that she cannot care for foster children while dealing with significant outside stresses at the same time. For that reason, she has advised the Tribunal that she recognises that she should not resume foster caring and only seeks to regain her blue card so that she can complete her studies and pursue a career in nursing.[91]
[91]Applicant’s Affidavit 17 November 2021 at para 36 (j) and (k); Applicant’s Submissions, dated 6 December 2021, at para 33.6.

Passage of time

The Applicant’s submissions, emphasise the length of time that had elapsed since the offence, observing that, ‘The Offence occurred approximately 3 years and 5 months ago, and the Applicant has not been charged with or convicted of any other offence.’[92]
[92]Applicant’s Submissions, dated 6 December 2021, at para 27(c).

However, as the Respondent points out,[93] the age of an offence does not necessarily diminish its significance. As the Appeal Tribunal in Lister,[94] stated, ‘the passage of time without further offending, of itself, is not conclusive that the risk of harm to children is reduced.’[95] I would add that this is particularly so in this case, as the Applicant has not during this period been permitted to undertake work with and therefore potentially offend against children.
[93]Respondent’s Outline of Submissions dated 6 December 2021, page 20 para 60(c).
[94]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55].
[95]Respondent’s Outline of Submissions, 2 September 2021 at 40.
The Applicant offers a number of factors demonstrating that the Applicant does not pose a risk or a risk that she will reoffend.[96]
[96]Applicant’s Submissions, dated 6 December 2021, at para 27(d) p 8.
The factors include her taking what are described as positive ‘steps to address her behaviour.’[97] This is said to be evidenced by her certificate of completion for stress management and anger management courses. I note that the certificate of completion for the stress management course acknowledges completion of, ‘1 total hour of Stress Management: 40+ easy ways to deal with stress online course.’ Similarly, the anger management course is a three-hour online course. While the Applicant states that she has found these courses very helpful I find the completion of these courses some 3 years after the offence and not before the commencement of Tribunal proceedings, to fall significantly short of establishing that stress and anger are no longer triggers for her offending behaviour as the Applicant submits. [98]
[97]Ibid, at para 27 (d)(v) p 8.
[98]Materials produced by Blue Card Services, BCS–92, and Applicant’s Affidavit 17 November 2021 para 36(d).
Addressing ‘behaviours’ and in particular anger management would be significantly more meaningful if the Applicant was willing to assume responsibility for her behaviours, and took meaningful steps to address them. I note that while she says she has taken some steps to address her behaviour’ through the stress management and anger management courses,[99] she continues to deny that anger was a factor that she needed or still needs to address.
[99]Applicant’s Submissions, dated 6 December 2021, at para 28.2 (g)(ii), page 11.

Stress

As already noted, the Applicant has consistently referred to the stresses she was under at the time of the offence. In the absence of professional counselling addressing the Applicant’s specific issues, and the filing of reports outlining what was addressed in the sessions and what the Applicant has gained from the counselling, I have no basis on which to conclude that the Applicant would deal with stress in future child-related employment whether it be in nursing or elsewhere, any differently to how she dealt with it at the time of the offence.
What submissions on behalf of the Applicant refer to as remorse and insight into her behaviour, [100] in my view, consist in large measure of explanations of what occurred and regret at the impact it has had on the Applicant’s life. A glaring absence in what is put forward as insight, is convincing insight into the effect of excessive corporal punishment and verbal threats to children, rather than one or two passing references.
[100]Materials produced by Blue Card Services BCS–93, para 13. para 27 (d)(iv).

Discipline and the Best Interests of Children

What the Applicant appears to consider is in the best interests of children, appears to be at odds with applicable statutory standards that will be used to assess her suitability to engage in child related employment.
Equally of concern, the Applicant does not acknowledge that the express or at best implied threats made to D regarding the use of the electrical cord are in themselves harmful.
I stress the significance of evidence regarding the Applicant’s compliance with statutory standards governing different areas of child related employment and care. The object of the WWC Act is–
5 To promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring —
(b) the screening of persons employed in particular employment or carrying on particular businesses.
In screening applicants for child related employment, a willingness and capacity to abide by applicable standards of conduct is crucial.

Compliance with Standards of Behaviour

The Respondent submits that ‘the Applicant appears not to accept responsibility for her decision to use physical discipline on children in her care. The Child Protection Act 1999 governing her work as a foster carer sets out clear standards with respect to disciplining of children in foster care.
A child placed in care is expected to be cared for in a way that meets the standards set out in the Child Protection Act 1999 ‘statement of standards.’[101] What is expected with respect to the handling of inappropriate behaviour is specifically addressed in the section 122 Statement of Standards, which states –
(1)(g) the child will receive positive guidance when necessary to help him or her to change inappropriate behaviour…
(2) For subsection (1)(g), techniques for managing the child’s behaviour must not include corporal punishment or punishment that humiliates, frightens or threatens the child in a way that is likely to cause emotional harm.
[101]Child Protection Act 1999, s 122.
The Applicant continues to maintain that she had not been made aware that foster parents were not to administer physical discipline. Submissions on her behalf, even suggest that it was reasonable for her to assume that corporal punishment of children in foster care was appropriate.[102]
[102]Applicant’s Submissions, 6 December 2021 at 33.3(h).
However, the evidence that the Applicant was aware and had been provided with information advising her that physical disciplining was not permitted, is overwhelming. I note that the 25 October 2011 letter from the Department of Communities stating that the Applicant and DR had been approved as Foster Carers lists a number of enclosures including the fact sheets and relevant sections of the Child Protection Act 1999 and specifically mentions the Statement of Standards Child Protection Act 1999, Section 122).[103]
[103]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS10 at page 9.
The recommendation form for the Applicant’s and DR’s most recent Renewal of Foster Carer Approval[104] refers to accusations made by children who had left their care in 2016, and notes that, ‘They both can quote the subsection on corporal punishment.’[105]
[104]Exhibit to Applicant’s affidavit dated 17 November 2021 LM-02 page 5.
[105]Ibid at 13.
In his statement, Senior Team Leader CSO who examined D’s leg on the day she was taken to the police station, states –
Approved foster carers are provided guidance and information pertaining to appropriate discipline of children in care which clearly directs that at no time is discipline in care to be administered by any physical contact or action.[106]
[106]QPS 4–1 at para 7.
As discussed further below, in her police interview regarding the assault, the Applicant acknowledged that she had breached the standards by resorting to physical disciplining.[107]
[107]Materials provided by Queensland Police Service, Disk 1 at 19 minutes, 50 seconds; also recorded in Court Brief, BCS–43.
I do not accept, as the Applicant asserts, that she and her partner had not been told and therefore were not aware that it was inappropriate to use corporal punishment.
However, as the Respondent submits, even in the unlikely event that the Applicant had not been aware that physical punishment was prohibited –
it was her responsibility as a foster carer in a position of trust to appraise herself of her obligations and the standard of care she was required to meet. In the Respondent’s view, her failure to do so, together with her failure to acknowledge and accept responsibility for that failure, reflects poorly on her insight, as well as an evaluation of whether she has the necessary insight required to ensure her past failures will not be repeated.[108]
[108]Applicant’s Submissions, 6 December 2021, Resp Dec p 20 para 60(d).
Being aware that the children in her care had previously been abused and traumatised, should have been sufficient for the Applicant for the Applicant to realise that resort to physical discipline would not be in the children’s best interests. Consequently, the Department of Child Protection noted –
There appears to be little understanding or compassion for the fact that the children have already suffered trauma, and require a more empathetic approach to behaviour management.[109]
[109]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS06 page 86.
That the Applicant fails to take into account the specific needs of children in foster care is evident in a submission on behalf of the Applicant suggesting that it was reasonable of her to discipline D by striking her with a wooden spoon.
The Applicant believed that she was disciplining Child D in accordance with statutory function of section 280 of the Criminal Code Act 1899 (Qld) where it is “lawful for a parent or a person in the place of a parent…to use, by way of correction, discipline, management or control towards a child or pupil, under the person’s care such force as is reasonable under the circumstances.”[110]
[110]Criminal Code Act 1899 (Qld) s 280.
It is further submitted on the Applicant’s behalf that she, ‘acted in a way that reflects the knowledge and experience she had at the time of the offence, from any training she received and her own personal experiences from watching other family members raise their children.’[111]
[111]Applicant’s supplementary submissions 6 December 2021 p 15.
I agree with this submission to the extent that the evidence supports the submission that the Applicant’s actions reflected what she saw as the norm in homes with which she was familiar. That this led to complaints being lodged with the Department and concerns to be expressed and children to complain is also documented.[112]
[112]See: Documents produced by the Department of Children, Youth Justice and Multicultural Affairs,
In my opinion, the evidence clearly suggests that the Applicant was aware, and had been advised and provided with the information setting out her obligations and expectations regarding the disciplining of children in foster care. Similarly, the evidence establishes that at the very least, regular visits from the Department provided opportunities to seek clarification as to what was allowed.
The Applicant denied and continues to deny having resorted to physical punishment other that on the one occasion of the assault. However, I prefer the evidence of the Applicant as contained in her statement and record of conversations in which she distinguished her physical disciplining from that which she considered not to be in the children’s best interests.[113]
[113]For example, ICMS09 at page 3.
The evidence does not leave me confident that the Applicant’s view on physical discipline has changed significantly, even if she may be more mindful of the repercussions to herself of reoffending.

Triggers No longer Present?

Considering when the offence occurred may also serve to highlight unique or no longer present circumstances. The Applicant notes that she is no longer dealing with acute distressing circumstances or looking after several children known to have behavioural issues.[114]
[114]Applicant’s Affidavit at para 36(d).
Undoubtedly, the Applicant committed her offence during a particularly difficult period in her life. However, materials obtained from the Department of Child Safety presents the Applicant’s time as foster carer as a time punctuated by great stress, complaints and inability to cope.[115] However I reject the Applicant’s implied submission that stress is unlikely to be a factor in the future because she is unlikely to find herself in circumstances similar to those at the time of the offence.
[115]Outlined below.
The Applicant submits that she will avoid finding herself in a similar situation by avoiding stress and taking on more than she can handle.
I note that while her application appeared to be in part, or even largely, motivated by a desire to resume her role as foster carer,[116] the Applicant now states that she will no longer seek to resume such work with children. This may suggest that she has come to realise that the offence reveals that she is not suited to a home carer role.
[116]Application to review a decision – children’s matters, BCS-71.
Such a statement of intention, appears to be odds with earlier statements such as her description of what she wanted to happen in filing her application to the Tribunal to review the Respondent’s decision – ‘We would like [D and [R] be returned to our case as soon as possible.’[117] Even if not at odds with the Applicant’s earlier statements and the understanding of her witnesses it is of little reassurance as the key elements surrounding this offence cannot be excluded from other child related employment including the Applicant’s chosen career in nursing.
[117]Application received by the Tribunal on 31 March 2021 page 4, BCS–74.
Elements of concern to other forms of child related employment include the Applicant’s lack of compassion for traumatised children in need of levels of care that other children may not require, her belief that a normal upbringing means strict discipline, confrontation and her unwillingness to abide by required standards of care.
In any event, the Applicant’s stated intention to not return foster parenting is not relevant as she cannot be issued a blue card that would permit her to work in particular categories of regulated employment. For that reason, whether this is an exceptional case must be determined on the basis of the best interests of any children with whom the Applicant as a holder of a working with children clearance would be entitled to work.
The Applicant’s understanding of what caused her to offend, why it was not in the children’s best interests and how she would avoid similar actions in the future is at best unclear. In focusing on minimising her culpability she appears not to have focused on addressing aspects of her work with children that had previously been brought to her attention and that were relevant to the offence.

Fourth: The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children. [118]

[118]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv).

Evidence Regarding the Offence

At the time of the offence D, an eight old indigenous girl and her 6-year-old younger sister R had been living with the Applicant, and her partner, DR, in a foster care placement for two years.
After school on 18 July 2018 two Child Safety officers collected D and R to drive them to a scheduled home visit with their family members. During the trip D told them that her foster mother had hit her with a wooden spoon and an electrical cord the previous evening.[119]
[119]Statement of Witness dated 5 December 2018 QPS 3–1. (QPS - Documents Produced by Commissioner of the Queensland Police Service on 30 July 2021 in response to the Tribunals notice to produce dated 5 July 2021).
The car was stopped and D showed her left leg to the CSOs. According to one of the CSOs what was visible were ‘red swollen marks on the outside of the upper calf of her left leg.’[120]
[120]CSO’s witness statement 5 December 2018, QPS 4–1.
As a result of this revelation the CSOs drove the girls to the Department of Child Safety Office where a Senior Team Leader Child Safety officer spoke with D and examined her left leg observing raised welt marks on her upper calf of her left leg.[121]
[121]Statement 5 Dec 2018, QPS 3-2 at para 14.
The CSOs then drove D to a police station where they and D spoke with Detective Sergeant JS from the Criminal Investigation Branch. The police officer who interviewed D, R and the Applicant in July 2018. In his statement JS states that D had three raised red welts on her leg, indicating ‘separate incidents of stinging force contact…by an instrument’[122]
[122]Statement of Witness JS, QPS 1–9.
In the Solicitors Office Report Details,[123] JS recorded that he suspected the child victim had been struck with an unknown item possibly an electrical cord to her left leg. He described the Applicant’s reported behaviour towards D as angry commands, actions forced on the victim. In another entry on the same day JS described the incident as, the Applicant verbally chastising the children and striking D with an electrical cord to leg.[124]
[123]‘Solicitors Office Report Details’ entry dated 18 July 2018, QPS 4–5
[124]Ibid, QPS 4–6.
JS also took photographs of D’s injury[125] and requested the CSOs to immediately transport D to a Medical Centre to have her leg examined and the injury documented by a medical practitioner.[126]
[125]Ibid, QPS 4–10 to 4–15.
[126]Detective Sergeant JS, Statement of Witness, QPS 1-9.
D was examined by Dr BL who noted three ‘erythematous lesions round end/curved implement impact site’ and an otherwise normal examination with no compression tenderness to D’s body including her back.’ The Doctor also recorded that D told him that ‘mum, flogged me…with a wooden spoon – hit me three times on the leg’.[127]
[127]Progress note, Dr William Liley 18 July 2018, QPS 1–14, see also Exhibit to Applicant’s affidavit dated 17 November 2021, LM-07, page 28.
Following the medical examination, D and R were transported to alternative care accommodation for the night and brought to the police station the following day, where they were interviewed individually by JS.

The Children’s Evidence

D

In a recorded section 93 A statement on 19 July 2018[128] D told police that on 17 July 2018 the Applicant gave her a ‘big hiding’ or flogging.[129] She explained that she was in the bathroom of the Applicant’s and DR’s home. She said that the Applicant was unhappy with her for making a mess in the bathroom. Consequently, the Applicant fetched a wooden spoon and an electrical appliance cord from the kitchen and came into the bathroom and struck D’s left leg once with the ‘frying pan cord’ and twice with a wooden spoon and ‘palmed’ her forehead.[130]
[128]Evidence Act 1977, s 93A.
[129]Documents Produced by Queensland Police Service, Disk 3, at 16 mins 50 secs to 17 minutes 30 seconds.
[130]Ibid, 18 minutes 50 seconds.
D said that when the Applicant hit her, DR was away picking up the evening meal. However, she said that R saw the Applicant hit her, as R had come down stairs and was ‘peeking’ at her and sticking her tongue out.[131] After DR returned, D said she could hear DR and the Applicant talking about discipline.
[131]Ibid, 22 mins 20 sec to 23 minutes 30 seconds
D told police that this was the first time the Applicant had disciplined her using an object although on other occasions the Applicant had smacked her using her hand.[132]
[132]Ibid 21 mins 50 sec 28 mins 40 secs.
According to police, during the interview D presented as bright, alert and articulate and gave consistent accounts of the alleged assault by the Applicant on 17 July 2018.
R
Six-year-old R also made a section 93A statement,[133] She told police that she saw the Applicant hit D once with a power cord and twice with a wooden spoon. [134] She also said that she saw the red marks on D’s leg made by the cord and wooden spoon.[135] R added that she also cried when D started to cry.[136]
[133]Disc 2.
[134]Disk 2 at 13 minutes 50 sec and 14 minutes 50 seconds
[135]Ibid, at 24 mins 40 secs. Disk 2
[136]Ibid, at 23 minutes disk 2.

R also described the incident as a ‘flogging’, which she said was what happens when she or D are naughty.[137] R said that while she sometimes gets a flogging when she’s naughty, D gets a lot of floggings.[138] R explained that the Applicant usually flogs them with a spoon[139] but sometimes she had been ‘flogged’ with bare hands. [140]
[137]Ibid, at 15 mins.
[138]Ibid, at 19 mins,
[139]Ibid, at 18 mins.
[140]Ibid, at 20 minutes to 20 mins 30 secs.
R’s statement was deemed consistent with that provided by D.[141]
[141]BCS-43.
D and R were removed and placed in alternative care[142]
[142]Materials produced by Blue Card Services, BCS–43-43
The Applicant’s Version of Events
The events constituting the offence were in part disputed by the Applicant, when accompanied by her mother, she attended the police station on 24 July 2018 and participated in a formal recorded interview.[143]
[143]Documents Produced by Commissioner of the Queensland Police Service, Disk 1.
In the course of the interview, the Applicant admitted striking D once with a wooden spoon to the left leg, but denied striking her with an electrical cord.[144] She explained that while she did not hit D with a cord, she had held it to tell D that she could have been hit with the cord just as when she was naughty she would ‘get the spoon.’[145]
[144]BCS–43; Disk 1 at 8 mins 10 secs to 8 mins 45 secs.
[145]Sentencing Schedule QPS 1–8.
She explained her behaviour, by telling police about the stress she had been under due to illness and death in her family.[146] She also told police about D having been defiant for some time, and not responsive to discipline and guidance. An example of this behaviour was the mess D made in the bathroom on the day of the offence.[147] The Applicant suggested that D’s misbehaviour may have been linked to being bullied at school.[148]
[146]BCS–43.
[147]Disk 1 at 13 mins and 13 mins 50 secs. Disk 1
[148]Disk 1 at 13 mins 50 secs and 20 mins 30 secs.
The Applicant’s account of the incident also different form that given by D and R in that the Applicant stated that R did not see her strike D.
The Applicant argues that this question of fact was never determined by police or a court of law.[149] The Applicant’s view is supported by WA a foster carer who briefly looked after D and R after removed from Applicant’s care WA wrote in her affidavit[150] that the Applicant had smacked D and that she knew this because D had told her.
[149]BCS–93,
[150]17 Nov 2021 at para 45.
The Applicant also told police that D did not cry when she struck her with the spoon but rather reacted in shock.[151]
[151]Disk 1 at 8 mins 45 secs and 17 mins 50 secs.
She also said that she didn’t bother’ telling her partner that she had struck D with a spoon.[152]
[152]Disk 1 at 8 mins.
The recording of the interview reveals that despite her denials she knew that physical discipline was inappropriate discipline and that only non-physical discipline was permitted in parental guidance by foster carers.[153]
[153]Disk 1 at 19 minutes 50 secs.
Police assessment of the Applicant’s demeanour was that she appeared ‘genuinely remorseful and upset at her actions.’[154]
[154]Court Brief, BCS–43.
Bullying
In her Statement, D also told JS that three days earlier, on 16 July 2018 she was involved in a fight with another child who she said had pulled her hair, kicked her and hit her on her back.[155]
[155]Material produced to the Tribunal by the Queensland Police Service, disk 3, 8 min and 13 minutes 10 sec.
Subsequently, JS visited D’s school to speak to the school principal regarding the alleged bullying incident.[156] The principal advised that D was a bright and alert student with good school attendance and reported positive engagements by the Applicant in D’s school life. He advised that he had not received any notifications of concern for the D’s welfare or safety due to parental issues.[157]
[156]QPS 1–10.
[157]Ibid.
On 27 August 2018 a relief teacher who taught on the 18 July 2018 reported an incident involving D being bullied and having her hair pulled by another child. However, when the Primary Deputy Principal spoke to the alleged bully, the child could not remember the incident.[158]
[158]ICMS06 page 70.
While the Applicant had made staff aware of incidents of D being bullied in April and June, staff were reported to ‘have been unaware of any major concerns.’[159]
Police Records
[159]Ibid.
JS
The officer in charge wrote that he deliberated on all evidence including, all disclosures by claimant and witnesses, the medical evidence, evidence from DOCS and the favourable comments by the principal about the applicant’s known good care of foster children was considered.
Despite allegations by both girls that the Applicant had struck them on other occasions, police did not lay further charges against the Applicant. Police referred to D’s ‘vague disclosures describing rare incidents when she and sister had been disciplined by smack using bare hand,’ and deemed the vagueness of these allegations as ‘insufficient to substantiate further charges.’[160]
[160]QPS-9, BCS-42 para [12].
As noted in the Submission on behalf of the Applicant[161] the antecedents recorded in the police brief indicate that police recognised that the assault on D using an instrument was ‘likely a one-off incident due to contributing circumstances of family stress and the child’s non-response to non-physical guidance.’[162]
[161]6 December 2022 (at para 6(k), page 40 quoting antecedent in police court brief BCS–43.
[162]Court Brief, QPS 1–4.
Police also noted that due to the assault D and R were placed in alternative care accommodation, ‘severing two years of attachment to the applicant and foster father who have provided a loving and safe home to the complainant child and her sibling.’[163]
[163]Ibid.

Relevance of Offending to Working with Children

As the Applicant pleaded guilty to physically assaulting an 8-year-old child in her foster care, her offence is of direct relevance to a determination of whether it is in children’s best interests for the Applicant to be eligible to work in employment or businesses regulated by the WWC Act.’[164]
[164]Respondent’s Submissions 6 December 2021 at para 41.
The Applicant struck the child with a wooden spoon and allegedly also with a cord causing raised red welts still visible to Department of Child Safety Officers, Police Officers and a Medical Practitioner.[165]
[165]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS06 page 85.
As the Respondent submits, ‘The Applicant’s actions could reasonably have been expected to have caused both the young children to experience fear, alarm, and emotional distress’[166] The victim’s six-year-old sister told police she cried when she saw D cry.
[166]Respondent’s Outline of Submissions 6 December 2021 at para 41.
Respondent submits that the Applicant’s offending –
raises questions about whether she possesses the necessary abilities to work in child-regulated employment. In particular, her offending raises questions about her ability to act in a controlled and rational manner when interacting with children, provide a safe and protective environment for children and comprehend the impact of her behaviour upon the emotional and psychological development of children. Her offending raises further questions about her ability to respond appropriately to conflict.[167]
[167]Ibid at para 42.
A submission on behalf of the Applicant alleges that the Applicant’s offending is not Directly relevant to question of protection of children and their best interest. It is no longer relevant because, she is ‘no longer under the same stressors that she was at the time.’ In addition, it is submitted that even though there is no legal obligation on blue card holders to possess skills of conflict resolution, anger management and the ability to respond to appropriately to conflict, the Applicant has undertaken stress management and anger management courses ‘to further educate herself in relation to these matters, to assist her in circumstances that are stressful in the future para.’[168]
[168]Applicant’s Submissions 6 December 2021 at page 11, para 28.2(g).
With respect to these submissions, I accept that the Applicant is no longer under the same stress. However, this submission may also be seen as a concession that she may act similarly if she were to unforeseeably find herself under similar stress.
I also note that the Applicant a young child entrusted to her care who she knew had already been traumatised. The Respondent submits that –
The Applicant’s offending is aggravated by the fact that it occurred in the course of her child-related employment as a foster carer and at a time she had a blue card. …[in addition] the children in the Applicant’s care were particularly vulnerable. They were foster children who had already had trauma in their life[169] and may well have been particularly sensitive to such behaviour.[170]
[169]ICMS06, page 84
[170]Respondent’s Outline of Submissions 6 December 2021 at para 43.
The Respondent cites the Tribunal decision in RA and RJ[171] which underlines that the community places its trust in foster carers to require the high level of care in response to the abuse and trauma they have experienced. Therefore, the Tribunal observes, the standards set out in s 122 of the Child Protection Act 1999 are to ensure that a child placed in care is cared for in way that meets the following standards. The implications are that in recognition of their vulnerability, ‘Children need to feel safe, protected, that they belong to family and community and that they are loved.’’
[171]RA and RJ [2018] QCAT 95 at para [98].
Consequently, the Applicant’s resort to physical punishment to manage an eight-year old’s behaviour may be said to ‘reflect poorly on her.’ Such a decision is contrary to the prohibition on using such behavioural management techniques in the Child Protection Act s 122(1)(g) and (2) and demonstrates disregard for the emotional impact children are likely to suffer should they be removed from the home due to the standards of care not being met.[172]
[172]Documents produced by the Department of Children, Youth Justice and Multicultural Affairs, ICMS06, page 86.
The full relevance of the Applicant’s offence only becomes apparent when considered in the light of other related factors at the time of the offence as well as the Applicant’s current views on matters pertinent to the review. However, in itself, the offence is directly relevant to the screening of person wishing to work with children and contrary to the governing legislation’s object of protecting the rights, interests and wellbeing of children and young people. Consequently, any evidence indicating a risk that the Applicant may reoffend would suggest that it would not be in the best interests of children for the Applicant to be issued a working with children clearance.

Fifth, the penalty imposed by the court and the court’s reasons for not imposing an imprisonment order or a disqualification order and the court’s reasons for its decision.[173]

[173]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(1)(v).

On 5 December 2019, in the local Magistrates Court, the Applicant pleaded guilty to having committed ‘common assault’ on 17 July 2018. The Magistrate placed the Applicant on a recognisance of $500 to be of good behaviour for six months, and directed that no conviction be recorded.[174]
[174]Ibid.

Sentencing Remarks

In sentencing the Applicant, His Honour observed that the Applicant had pleaded guilty to common assault.
The Magistrate also noted the presence of ‘a number of stressors influencing behaviour on this day, including the child’s challenging behaviour,[175] and stated, ‘I have no hesitation in accepting that you must have been stressed to the point where you behaved in a way which was completely out of character.’[176] His Honour emphasised this finding by observing, ‘I cannot see a more striking example of [someone doing something out of character] than in this case.
[175]Materials produced by Blue Card Services, BCS–103.
[176]Ibid.
The Magistrate also noted that, ‘there is no doubt from the materials I have read that the people who know you well and speak very highly of you and in some detail about the qualities and attributes that you have as a person, as a foster carer, as a partner.[177]
[177]Ibid.
Reinforcing his finding of an out of character offence, His Honour also stated that having regard to sentencing principles ‘there is no need to discourage you from any sort of behaviour in the future, deterrence – there is no rehabilitation that is required.’[178] In addition, the Magistrate deemed the offence to be a low-level offence and concluded that there was little to no risk in the Applicant offending.
[178]Ibid
Noting that, ‘a conviction is not recorded’, His Honour observed that he had,
taken into account that you have probably experienced a more serious consequence than the Court could possibly impose, which was to lose the opportunity to care for, it seems two young children that you obviously loved and were looking forward to seeing develop in your care. So, I have also, I think, most importantly taken into consideration as a consequence of what has happened.

Relevance to this Review

The Applicant relies on these sentencing remarks,[179] and in presenting them as encapsulating all established facts she struggles to understand why she has not been successful in having her blue card reissued to her.
[179]Applicant’s Submissions 6 December 2021, pages 11-12, para 29.
The sentencing remarks that may appear to be of greatest relevance include the Magistrate’s finding that a number of stressors had caused her to act in a manner that was completely out of character.
In view of this review’s focus on likely future risks to children, it also appears to be relevant that the Magistrate found that there was no need to discourage the Applicant from any sort of behaviour in the future and that no rehabilitation was required. In sharp contrast, the reasons given by the Respondent for refusing to issue her a blue card were based on contrary findings.
The Magistrate also observed that those who know her spoke highly of her and her qualities and attributes as a foster carer. This has also been reflected in the written and oral evidence presented by witnesses called by the Applicant in this review. Yet, as outlined below, materials produced by the Department of Child Safety appear to present the Applicant and her partner as struggling and occasionally failing to provide children in their care with appropriate love, care and discipline.
Finally, the Applicant relies on the Magistrate’s finding that there was no risk of the Applicant reoffending, as evidence that the Applicant will not pose a risk to children in the future. In the absence of foreseeable risk, the Applicant submits her case cannot be said to be ‘exceptional’.
Great care needs to be taken in drawing inferences and implications of the favourable sentencing remarks regarding the Applicant’s culpability in a criminal trial to this review of a decision that the Applicant’s case is an exceptional case in that it would not be in the children’s best interests for the Applicant to be issued a blue card.
Significant differences between criminal proceedings and this review must be taken into account.
Unlike the Court in the Applicant’s criminal proceedings, the Tribunal may consider any evidence relevant to a determination of whether it would be in the best interests of children for the Applicant to be issued a blue card. The Tribunal may obtain information on its own initiative and is not bound by rules of evidence other than those required by the rules of nature justice and specific provisions of the QCAT Act.[180]
[180]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3).
Needing to establish guilt beyond reasonable doubt, means that charges may be reduced in return for pleas of guilty, and evidence that is unable to be conclusively proven may not be presented.
In criminal trials, evidence presented is confined to that complying with the rules of evidence and that is directly relevant to the accused’s criminal liability. Importantly, the prosecution bears the onus of proof and the defendant is not obliged to confess to anything that the prosecution has not proven. In sharp contrast, neither party bears the onus of establishing the presence of an ‘exceptional case’. Consequently, an Applicant who denies or does not disclose relevant facts until confronted by evidence, is not exercising a right but rather may be seen as concealing information relevant to an assessment of their suitability to take on child related employment.
Unlike the presumption of innocence in criminal law, any presumption that a working with children clearance must be issued to an applicant convicted of an offence other than a serious offence,[181] is expressly qualified as dependant on the chief executive not being satisfied that the case is an exceptional case.[182]
[181]Working with Children (Risk Management and Screening) Act 2000221(1)(c).
[182]Ibid, s 221(2).
Most importantly, while the sentencing remarks reflect the Court’s findings as to the Applicant’s criminal liability, this review focuses on the best interests of children, encompassing evidence ranging well beyond the Applicant’s criminal liability for an offence.

Sixth, Information about the person given to the chief executive.[183]

[183]Ibid, s 226(2)(b), (c) and (d).

No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by Corrective Services under section 318 or 319 of the WWC Act.[184] No report about the Applicant’s mental health was given to the Chief Executive under section 335 of the WWC Act.[185] And, no information about the Applicant was given to the chief executive under sections 337 or 338 of the WWC Act by the Mental Health Court or the Mental Health Review Tribunal.[186]

Lastly, ‘Anything else relating to the commission of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.[187]

[184]Ibid, s 226(2)(b).

[185]Ibid, s 226(2)(c).

[186]Ibid, s 226(2)(d).

[187]Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d).

Written and oral evidence presented by the Applicant and her witnesses also relates to the offence and is relevant to her assessment.
Over the two days of hearing, the Applicant and a number of her witnesses gave oral evidence and were cross examined by the Respondent.
The Applicant
The Applicant had lodged a number of written statements, including ‘Personal History of the Applicant’ dated 18 February 2021 and most recently an Affidavit dated 17 November 2021.
Regarding the facts of the offence as alleged by the police, the Applicant denied hitting D with an electrical cord. Instead, she said she held the cord to indicate what would have happened when she was a child.
The Applicant referred to ‘stressful things’ happening at the time of the offence, including illness and death in the family. She also mentioned D’s misbehaviour when not given the attention she sought. The Applicant said, ‘It all got to me’.
Asked about R’s involvement in the events surrounding the offence, the Applicant stated that R had passed her the spoon and had gone upstairs.
She said that she was upset when told she would lose the kids, and described being told she would lose the kids as having her life torn apart.
She also observed that the relationship she and her partner DR had with D and R had become close and the girls had called them Mum and Dad.

While it has not been mentioned in submissions, it could be posited that the protection of families as a human right may be applicable to foster carers, as foster care is regarded as a form of family-based care. In section 26 the HR Act states, ‘Families are the fundamental group unit of society and are entitled to be protected by society and the State.’ I do not see that the entitlement of bonds between parents and children to be protected need be dependent on whether the parents are biological parents, adoptive parents or (especially long term) foster parents. Dr DH and some other witnesses made reference to the need to take into account the effect of a blue card decision on foster care children.[286]
[286]Oral evidence given by Dr DH is discussed above.
To the extent that the decision may defend or limit the rights of parents and children as a family like unit, such rights need to be considered.

Right to Vocational Education and Training

The Applicant lists education as one of the Applicant’s human rights that are limited by a negative notice. The HR Act states that ‘Every person has the right to have access, based on the person’s abilities to further vocational education and training that is equally accessible to all.’[287]
[287]Human Rights Act 2019 (Qld), s 36(2).
The Applicant has highlighted how the refusal to issue her a working with children clearance effectively prevents her from completing education required for her to pursue a career in nursing, her chosen career.

The Right to Work

Similarly, the Applicant’s right to work appears to have been limited by both the decision to issue a negative notice and by the lengthy review process.
While the HR Act does specifically list the right to work amongst its 23 fundamental human rights, arguably this right may fall under one or more of related rights listed in the HR Act, rights such as the right to take part in public life,[288] or the right to further vocational education and training.[289]
[288]Ibid, s 23.
[289]Ibid, s 36(2).
The right is recognised in international human rights covenants. For example, Article 6(1) of the International Covenant on Economic, Social and Cultural Rights’ (ICESCR) recognises,
the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
However, the right to work enshrined in Article 6 of the ICESCR is also expressly qualified by article 4 which provides that –
the State, may subject such rights only to such limitations as are determined by law, only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.
It could be argued that the qualification of the right is similar to the reasonable and justifiable limit of the HR Act.
The right to work is undoubtedly qualified by the requirement that a person possesses the appropriate skills and qualifications to undertake particular work. On that basis it could be said that a negative assessment of a person’s suitability to undertake particular work is not necessarily a breach or limitation of that right but rather an assessment of their suitability to undertake the work.
However, the Applicant argues that the effect of issuing a negative notice is to bar her from a large part of the workforce. Such a limitation the Applicant argues is ‘incompatible with the relationship between the limitation and its purpose.’

Hardship

Citing Justice Buss in Scott (No 2) the Respondent submits that ‘any consequences in terms of prejudice or hardship to the Applicant are not relevant in child-related employment decisions.’[290]
[290] Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 at [109].
However, the Human Rights Act appears to alter this approach by stating that it would be ‘unlawful’ for this Tribunal to ‘fail to give proper consideration to a human right relevant to the decision.’[291] As already noted, the Act goes on to state that ‘giving proper consideration to a human right in making a decision requires the Tribunal to identifying any human right that may be affected by the Tribunal’s decision. [292] Consequently, the Tribunal is required to consider whether any hardships caused by its decision also affect human rights.’

[291]Human Rights Act 2019 (Qld), s 58(1)(b).

[292]Human Rights Act 2019 (Qld) s 58(5)(a).

The Rights of Children

The WWC Act specifies that the Act is to be administered and specifically that child-related employment decisions are to be reviewed under the principle that ‘the welfare and best interests of a child are paramount.’[293] Similarly, the Act also requires that it be administered under the principle that ‘every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.’[294]
[293]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a) and s 360, respectively.
[294]Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(b).
Consequently, the most directly relevant and applicable human right would appear to be that set out in section 26(2) of the HR Act, ‘Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.’
That the protection of the rights of children in legislation concerning child related employment would have an unintended punitive effect on others was recognised by legislators, who stressed that the intention of legislation regulating child related employment was not about punishing others but, ‘putting gates around employment to protect children...[and] protecting children from future abuse.’ [295]
[295]Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391, Ms. Bligh, cited by Member McConnell in Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302 at [9].
As a paramount consideration, the rights of children are clearly to be given priority over other rights. However, in requiring the Tribunal’s decisions to be compatible with human rights relevant to the decision, the HR Act requires any limitation of a right to be reasonable and justifiable. The implication for this review is that in protecting the rights of children under the WWC Act the Tribunal must do so, to the extent possible that is consistent with the statutory provisions of the WWC Act, in a manner that does not impinge on other human rights beyond what is reasonable and justifiable.
That the decision options are limited and that the blue card is transferrable and unable to be issued with conditions may in some cases make compatibility with this HR Act requirement problematic.
That this may be the case is recognised by the HR Act. In section 48 the Act provides that–
(1) All statutory provisions must, to the extent possible that is consistent with their purpose, be interpreted in a way that is compatible with human rights.
(2) If a statutory provision can not be interpreted in a way that is compatible with human rights, the provision must, to the extent possible that is consistent with its purpose, be interpreted in a way that is most compatible with human rights.
In my opinion an interpretation of the relevant WWC Act provisions in a way that is (most) compatible with human rights requires the Tribunal identify human rights that may be affected by its acts or decisions and interpret statutory provisions in accord with section 48 of the HR Act.
The Tribunal’s decision in reviewing child-related employment decision under the WWC Act must reflect the Act’s object ‘to promote and protect the rights interests and well being of children and young people’ and undertaken under the principle that the welfare and best interests of a child are paramount.’ On this basis the rights of others may be limited where the rights of children and the implementation of the Act’s purpose require.
However, the HR Act’s requirement that decisions be compatible with human rights requires the Tribunal to ensure that the rights of others are not affected any more than is justifiable and reasonable, while keeping in mind the paramount consideration of the WWC Act when considering the factors that the HR Act lists as relevant to the determination of whether a limit on a human right is reasonable and justifiable.
In outlining some of the Applicant’s human rights likely to be affected by the Tribunal’s decision, I noted that some of the limitations, particularly on work and study appear to affect rights to a larger extent than is arguably necessary. As the Applicant has submitted is it necessary to prevent the Applicant from completing her heath studies or undertaking a wide range of employment in order to protect the interest of children?
The Tribunal’s options are to find that the case is an exceptional case and confirm the decision of the Respondent or find that the case is not an exceptional case and set aside the Respondent’s decision and replace it with the Tribunal’s finding that the case is not exceptional.
I am satisfied that presently it would not be in the best interest of children with whom the Applicant may work in employment or business regulated under the WWC Act.
However, even if I am wrong in finding that the effect of the decision on the Applicant’s human rights is compatible with human rights, the provision of the HR Act declaring it unlawful ‘to make a decision in a way that is not compatible with human rights’ would be unlikely to apply to the Tribunal because the Tribunal could not have made a different decision because of the statutory provisions of the WWC Act.
In section 58(2) the HR Act notes that the Act’s provision making it unlawful to ‘act or make a decision in a way that is not compatible with human rights or in making a decision to fail to give proper consideration to a human right relevant to the decision’[296]does not apply…if the [Tribunal] could not reasonably have acted differently or made a different decision because of a statutory provision…’[297]

[296]Human Rights Act 2019 (Qld), s 58(1).

[297]Ibid, s 58(2).

Requirement to Act in a way that is compatible with Human Rights

The Tribunal is also required to act in a way that is compatible with human rights.[298] In this respect I note the human rights likely to be limited by the process of this review and the making of the decision, namely, the right to a fair hearing encompassing the right to be accorded natural justice, and a fair and public hearing.[299]
[298]Ibid, s 58(1)(a).
[299]Ibid, s 31.

The Right to be Accorded a Fair Hearing and Natural Justice

The HR Act lists the right to a fair hearing as a human right. Section 31 provides that—
(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice.
(3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available.
The QCAT Act requires the Tribunal to act ‘fairly and according to the substantial merits of the case,’[300] and states that the Tribunal ‘must observe the rules of natural justice.’[301]
[300]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).
[301]Ibid, s 28(3)(a).
Natural justice includes the right to be treated fairly and applies to a wide range of judicial, quasi judicial and administrative decision-making processes.
At its core, natural justice refers to the right to a fair hearing. A fair hearing generally entails appropriate notice of a hearing, a right to present one’s case, and a decision maker who is impartial, competent and unbiased. It also recognises that a party to proceedings has the right to present their own case, and be provided with a logically probative decision based on all the evidence presented.
Some concerns were expressed on behalf of the Applicant, regarding the timing of materials produced in response to the Tribunal’s issuing notices to produce. The desirability of the Tribunal being able to ‘decide the proceedings with all the relevant facts’[302] is ensured by authorising the Tribunal to ‘admit into evidence the contents of any documents despite the noncompliance with any limit or other requirement under the Act, an enabling Act or the rules relating to the document or the service of it. The Tribunal provided the Applicant with time agreed as sufficient to respond to the materials and an opportunity for the Applicant to call further witnesses. In so doing, the Tribunal ensured that it acted fairly and the Applicant was afforded key elements of natural justice.
[302]Ibid, s 28(3)(e).
The Applicant also voiced concerns relating to reliance on evidence not tested or proven in court. The Tribunal ‘must act fairly and according to the substantial merits of the case.’[303] It conducting proceedings the Tribunal does not rely on and confine its considerations to evidence presented by parties but rather is entitled to ‘inform itself in any way it considers appropriate.’[304]
[303]Ibid, s 28(2).
[304]Ibid, s 28(3)(c).
As the Tribunal is not bound by the rules of evidence,[305] uncorroborated, hearsay and contested evidence is not excluded but rather is accorded appropriate evidentiary weight.
[305]Ibid, s 28(3)(b).
The nature of Tribunal proceedings in a review is not intended to be adversarial, and proceedings are to be conducted with minimal formality and technicality.[306] However, Tribunal practices and procedures ensure that the Tribunal acts ‘fairly and according to the substantial merits of the case.’[307]
[306]Ibid, s 28(3)(d).
[307]Ibid, s 28(2).
I find no evidence suggesting that the Tribunal has not observed the rules of natural justice. The concerns raised appear to relate to practices and procedures of the Tribunal that distinguish it from courts of law.[308]
[308]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3).

a) Right to a Public Hearing

As part of the right to a fair hearing, the HR Act clearly states that a party to civil proceedings has a right to have their proceeding decided ‘after a fair and public hearing’.[309]
[309]Human Rights Act 2019, s 31(1).
Legislative provisions governing the conduct of this review provide exceptions to these rights, which acknowledge that in some circumstances the protection of other rights should take precedence.
Section 90(1) of the QCAT Act states that, ‘Unless an enabling Act…provides otherwise, a hearing of a proceeding must be held in public’. However, the enabling Act in this case is the WWC Act, states in s 361(1) that, ‘A hearing of a proceeding for a QCAT child-related employment review must be held in private.’
The QCAT Act also provides that –
The tribunal may direct a hearing to be closed if the tribunal ‘considers it is necessary—
(a)    to avoid interfering with the proper administration of justice; or
(b)   to avoid endangering the physical or mental health or safety of a
person; or
(c)    to avoid offending public decency or morality; or
(d)to avoid the publication of confidential information or information     whose publication would be contrary to the public interest; or
(e)    for another reason, in the interests of justice.[310]
[310]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 90 (2).
Section 31(2) of the HR Act, lists an exception to the holding of a public hearing. It states that—
a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice.
I find the exclusion of the media and public from hearings in this review, required under the provisions of the QCAT Act and the WWC Act, to be compatible with human rights as set out in section 31(1) and qualified in section 31(2) of the HR Act.

b) Decisions to be Publicly available

Section 31(3) of the HR Act requires all tribunal decisions to be, ‘publicly available’. However, s 66(1)(c) of the QCAT Act permits the Tribunal to make a non publication order,
(1) prohibiting the publication of…
(c) information that may enable a person who has appeared before the
Tribunal, or is affected by a proceeding, to be identified.
The Tribunal may only make such an order if it considers it necessary for a number of specific reasons[311] including, ‘to avoid the publication of confidential information or information whose publication would be contrary to the public interest’[312], and ‘for any other reason in the interests of justice’.[313] Such an order was made at an earlier stage of this review.[314] It prohibits –
the publication of
(i)      the content of a document or thing filed in or produced to the Tribunal,
(ii)      evidence given before the Tribunal, and
(iii)     any order made or reasons given by the Tribunal
…to that extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.’
[311]Ibid, s 66(2).
[312]Ibid, s 66(2)(d).
[313]Ibid, s 66(e).
[314]24 August 2021.

c) Privacy and Reputation

Public hearings, published decisions, the identification of parties and disclosure of personal information may also infringe on the Applicant’s and others’ right to privacy and not to have their reputation unlawfully attacked[315]and arbitrarily interfered with.[316]
[315]Human Rights Act 2019 (Qld), s 25 (b).
[316]Ibid, s 25 (a).
Both Section 66(1)(c) of the QCAT Act, permitting non publication orders, and the any directions regarding non publication, clearly limit the Applicant’s right to a fair hearing, enshrined in s 31(3) of the HR Act.
However, I also find that the limits imposed are reasonable and justifiable for the purposes of s 13 of the HR Act, and are therefore compatible to the rights of persons whose right may be limited.
In accordance with factors listed in s 13(2) of the Act I note ‘the importance of the purpose of the limitation’,[317] ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’,[318] ‘the balance between the [last two factors]’[319] and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.[320]
[317] Human Rights Act 2019 (Qld), s 13(2)(e).
[318]Ibid, s 13(2)(f).
[319]Ibid, s 13(2)(g).
[320]Ibid, s 13(2)(d).

Conclusion regarding Human Rights

I am satisfied that in accordance with the HR Act, the Tribunal has –
(a)acted and made this decision in a way compatible with human rights.
Where as discussed above, the Applicant’s human rights including her right to privacy and reputation, cultural rights, protection of the family unit, right to vocational education and training, right to work are limited by this decision or actions of this Tribunal, I am satisfied that the limits and associated hardships are reasonable and justifiable in accordance with section 13(2) of the HR Act.
If I am wrong in finding that the limits on the Applicants, particularly with respect to her right to study and work are reasonable and justifiable, I am satisfied that, as provided by section 58(2) of the HR Act, I could not have reasonably made a different decision in giving effect to the statutory provisions of the WWC Act and consequently am not required to make a decision compatible with human rights.
(b)interpreted statutory provisions in a way compatible with human rights in accordance with section 13 HR Act; and
(c)in making this decision has given proper consideration to a human right relevant to the decision by –
(i) identifying human rights that may be affected by the decision; and
(ii) considering whether the decision would be affected by the decision
Conclusion

In determining whether the Applicant’s case is an exceptional case in which it would not be in the best interest of children for the Applicant to be issued a working with children clearance, I have—
(a)Considered all the evidence;
(b)Undertaken the review ‘under the principle that the welfare and best interest of a child are paramount;’[321]
(c)Had regard to the factors listed in section 226(2) of the WWC Act;
(d)Considered other factors relevant to the decision;
(e)Given proper consideration to human rights relevant to the decision;[322]and
(f)Acted and made a decision that is compatible with human rights;[323]
[321]Working with Children (Risk Management and Screening) Act 2000, s 360.
[322]Human Rights Act 2019 (Qld), s 58(1)(b).
[323]Ibid, s 58(1)(a).
On the basis of these considerations, and bearing in mind the gravity of the consequences involved, I am satisfied on the balance of probabilities that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for the Applicant to be issued a working with children clearance.

Order

The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.