Opo v Director-General, Department of Justice and Attorney-General - [2021] QCAT 207

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

OPO v Director-General, Department of Justice and Attorney-General [2021] QCAT 207

PARTIES: OPO

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML009-19

MATTER TYPE:

Childrens matters

DELIVERED ON:

4 June 2021

HEARING DATE:

6 November 2020

HEARD AT:

Cairns

DECISION OF:

Member Kent

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

2. The Tribunal prohibits the publication of the names of the Applicant, any non-expert witnesses and the names of any victims, alleged victims, children or third parties referred to in the file material and at the hearings.

CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – blue card – where applicant issued with negative notice – whether exceptional case

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

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 3, s 5, s 6, s 221, s 226, s 358

Domestic and Family Violence Protection Act 2012 (Qld) s 37

Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492
Re FAA [2006] QCST 15
GM v Director-General, Department of Justice and Attorney-General [2020] QCAT 113

Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86

Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms G Yates

REASONS FOR DECISION

The proceedings initially commenced on 9 April 2020. Due to an unforeseen issue the then presiding member was unable to continue with the matter and the hearing was re-listed before another member on 6 November 2020.
Subsequently this application was determined by me as directed by the President of the Queensland Civil and Administrative Tribunal pursuant to s 168(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’). I have had regard to the filed material, the transcript, and the record of proceedings of the Tribunal as previously constituted.
This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (hereafter ‘Blue Card’), dated 3 December 2018, to cancel the applicant’s positive notice and replace it with a negative notice. The Act governing the granting of Blue Cards is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’ or ‘Working with Children Act’).
OPO had applied for a Blue Card based on it being a requirement for employment.
The Queensland Police Service (Police) advised Blue Card that there had been a change in OPO’s police information:
Charge
(a)Townsville District Court – Possessing dangerous drugs Schedule 2. Drug quantity of or exceeding Schedule 3 (on 16 November 2017) - a nolle prosequi was entered on 11 October 2019.
Domestic Violence
(b)The applicant was named as the respondent in a Protection Order in Townsville Magistrates Court on 30 October 2015.
Ultimately it was the decision of the Director of Blue Card Services that the best interests of children would not be served if the applicant was granted a Blue Card at the time the decision was made. It was stated that Blue Card’s role was not to impose additional punishment upon the applicant but to focus on the best interests of children.
The ‘Blue Card’ legislative framework
Employment screening for child-related employment is dealt with in chapter 8 of the Act. The object of the Act is to promote and protect the rights, interests and wellbeing of children by, in effect, screening persons engaged in employment or businesses that may involve working with children.[1] It is protective legislation and has been described as ‘precautionary’ in its approach.
[1]Working with Children Act, s 5.
A child-related employment decision[2] is to be reviewed in accordance with the principle that the welfare and best interests of a child are paramount.[3] The overriding concern is the potential for future harm to children.
[2]‘Child-related employment decision’ is defined to include a chapter 8 reviewable decision: Working with Children Act, s 358.
[3]Working with Children Act, s 360. See also s 6.
As applicable to this case, the Act requires that a Blue Card must be issued unless the Chief Executive is satisfied it is an exceptional case in which it would not be in the best interests of children for a blue card to be issued.[4]
[4]Working with Children Act, s 221.
What is meant by ‘exceptional case’?
What constitutes an ‘exceptional case’ is a matter of fact and degree in the whole of the circumstances of each particular case.[5]
[5]Re FAA [2006] QCST 15, [22].
Section 226(2) of the Act sets out a non-exhaustive list of matters which must be considered in deciding whether an exceptional case exists in circumstances of a conviction or charge for an offence. Relevantly, consideration must be given to:[6]
(a)Whether it is a conviction or charge;
(b)Whether the offence is a serious offence, and if it is whether it is a disqualifying offence;
(c)When the offence was committed;
(d)The nature of the offence and its relevance to employment that may involve children; and
(e)In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision.
[6]Working with Children Act, s 226(2)(a).
Further, consideration must be given to anything else relating to the commission of the offence that is reasonably relevant to the assessment.[7]
[7]Working with Children Act, s 226(2)(f).
The application of the Act is intended to put boundaries around employment to protect children from harm rather than impose an additional punishment on a person with a criminal history.[8]
[8]Re FAA [2006] QCST 15, [29], citing the second reading speech of the Commissioner for Young Children and Young People Bill, p 4391.
The applicant’s evidence and submissions

The applicant's submission to the tribunal was that the decision to issue a negative notice should be set aside and substituted in its place a decision that a positive notice be issued to OPO.
The applicant filed a Life Story and provided statements from DDJ. The applicant sought to call his father as a witness at the hearing, however as he had not provided a statement from him the then presiding member refused this application. OPO filed a statement from BBB, however he did not call this witness to give evidence at the hearing.
Applicant’s oral evidence
OPO provided oral evidence and was cross examined.
The applicant was asked about his drug charge. He said it was just the case of being in the wrong place at the wrong time. He was with a friend and the police had been undertaking surveillance of the friend. It was OPO’s evidence that he was sitting on the passenger side of the car and there was an esky at his feet. Under cross examination the applicant admitted that he had changed his story to the police, in other words, he told them one thing and then changed his story. Initially he told the Tribunal that he was unaware of any cash in the car and later under cross examination he agreed with the police facts that he had handled the cash. The then presiding member pointed out to the applicant that he had told the Tribunal something different and then changed it. He had also done the same with the police. OPO agreed with the police statement and admitted he told the police one thing and then changed his story. The then presiding member said that the problem was how could he accept OPO’s evidence when he was telling the Tribunal one thing and then another. He described the applicant as having destroyed his credit as to what was happening. The applicant then said he was just a bit confused about the wording, that is all, and was given a five-minute break.[9]
[9]Transcript page 20 lines 26 to 39.
Domestic Violence
OPO was named as a respondent to a protection order pursuant to s 37 of the Domestic and Family Violence Protection Act 2012 (Qld). The respondent briefly summarised the events that led to the order. The applicant went to the home of his then partner at 4:00 in the morning; he banged on her door and called out to her. She was very fearful and called the police. OPO smashed the sliding door then entered the premises. He pushed past the aggrieved and went to the bedroom. There he confronted a male and said who the fuck are you? The applicant then returned to the aggrieved in the kitchen. She was cowering on the floor and he grabbed her by the hair and threw her on to the tiled kitchen floor. In doing this he tore hair from her scalp. The male witness then pushed OPO away from the aggrieved. OPO then threw punches at the witness.
The applicant described his version of the events to the Tribunal. He said that the domestic violence was caused by him returning from work early to surprise his then partner. He said he found out there was “another gentleman in my house styling up in my parcel”. “So, I was there, you know disappointed and frustrated and angry [too] as you can just imagine”. He denied that he had pulled his ex-partner’s hair out of her scalp, saying that the hair in the kitchen was hair extensions. This is not the version that the police put to the Magistrates Court when the order was made. The applicant also denied that his ex-partner had told police that there had been other incidents of domestic violence, but she had not reported them. OPO said that he had not been physically violent nor had he been verbally violent with his ex-partner at any time. The applicant accepted that during the domestic violence incident order he yelled out “I'm your man cunt”. He accepted this version of events as put to the Magistrates Court by the police.
Under cross examination it was put to OPO that he had agreed with the police facts as read out to him by the respondent’s representative which included that the aggrieved suffered assaults from him throughout the course of their relationship but they were never reported. He agreed with this proposition. It was also put to him that he had given evidence to the Tribunal that he had argued with the aggrieved throughout the course of their relationship but was never physically or verbally abusive. He was asked to clarify whether he agreed that he had arguments with the aggrieved throughout the course of his relationship and they never amounted to assault or assaultive language. He said that was correct. It was then put to him that he was in fact denying the police facts as stated in the last paragraph of the Police application for the protection order. His reply was “…of course I do”. The then presiding member again told the applicant that he was saying one thing and then saying another thing, and then one thing and another thing. OPO agreed with this statement.
OPO was cross examined on when he had heard that his then partner may have formed another relationship (he had told the Tribunal he was surprised by finding someone with his then partner). OPO said this was only hearsay and he had heard about it when he was at the mines. He was asked about his being the perpetrator of violence in that relationship, both verbal and physical. He agreed that he verbally assaulted the aggrieved at the time of the incident at the house. He said there were minor disagreements during the relationship, but he would not call them abuse. When asked about what harm he would have caused the aggrieved he said, “I think it would have been she would have been a bit upset and afraid”.
OPO was asked about other entries on his non-criminal history. These were included in a national police check report. These offences included a conviction for public nuisance, disorderly behaviour in or near licensed premises on 21 February 2015, fined $693.00 on 20 April 2015. OPO said this was when he had a bit too much to drink on a night out with the boys. He could not remember any other details as he was highly intoxicated.
OPO had a conviction for failing to produce his provisional driver’s licence as required on 7 May 2015, fined $227.00 on 4 July 2015. The applicant said that this conviction was his own fault because he left his ID and wallet at home and he was unable to produce his licence when asked to do so.
He was also charged with public nuisance, violent behaviour in or near licensed premises on 26 November 2016, convicted and ordered to pay $731 on 23 January 2017. He agreed that this was correct. He again said it was just seeing his mates and having a big night out. He said that the men he was with got into a fight and he said that it was his role of just breaking up the fight.
Drug Use
The applicant said that he had used cannabis regularly from the time he was 16 to 17 and he said mainly on weekends or socially. It would have been about once a month. He used cannabis in times of stress, particularly when he was worked as a manual labourer and he wished to relax his muscles. OPO’s evidence was that he was drug tested when working in the mines in 2015 therefore he only used a little bit of cannabis at that time. OPO said that he gave up cannabis in 2017. This was due to his father’s programme starting and that he and his father thought it was better if he stopped using cannabis. He said that he did not use it at all now. He said he had had culturally appropriate assistance through a yarning circle with two of the traditional owners. He had been seeing one of these elders approximately once a fortnight from 2012 and he was continuing to see him.
Regarding alcohol the applicant said he had used alcohol quite a bit and he was previously a binge drinker. Now he drank much less, maybe a six pack per month depending on the occasion e.g. per month he consumed a six pack or a 12 pack, but it would only be mid strength beers. He reduced his alcohol consumption at the start of 2018 in order to be a role model for young men in his father’s programme. He had had a chat with the elder in the yarning circle and he did not seek any other kind of counselling as it was not culturally appropriate for him.
Work in Father’s programme
OPO described the work that he did with the young people in his father's programme. He told the young people that he strongly recommended not taking drugs. He asked them about triggers and told them to build a control around it to hopefully stop them from doing drugs or reduce it. His network was his father and the elder at the yarning circle. He worked out a lot and it helped him stay focused and build better resilience. When he was angry now, he took it out in his boxing and weight training and that relieved a lot of his stress. He also spoke to the elder or to his father or one of his mates or “a caseworker around town”.
DDD
This witness told the tribunal that he knew the applicant from a programme connected with the applicant’s father. The witness also had previously held a position of authority in a government department. He said the applicant did an outstanding job and had a Blue Card when he started working with that organisation. DDD subsequently learned of the applicant’s issues with drugs after his drug offence charges. It was DDD’s evidence that having worked in the justice system for 30 years he believed that police alleged things all the time and that the prosecution had felt the applicant’s charge did not warrant any consideration of conviction because there was no evidence that the applicant knew about those matters in the car. He had never witnessed the applicant using drugs and he had known him for five or six years. He said the applicant worked with young people and tried to help get them away from drugs. He had not known the applicant to have been violent towards a child except to help out and pacify children who are a high risk and some of them dangerous in themselves.
He said it was amazing that “a young indigenous man who tried really hard to work through his life, at school and got extra qualifications. DDD also expressed the view that the drug charge was not significant And then for a matter which…has subsequently not been taken , there was no conviction, or the matter wasn’t bought (sic) n… because of a lack of evidence, is a consideration in the matter of his Blue Card”.[10] Under cross examination this witness said he had not been provided with a copy of the reasons prepared by Blue Card Services. He said he considered the applicant to be a tireless worker. He referenced his own high-level employment and said that he considered the applicant and his father to be exactly the right people to be working with young indigenous people.
[10]Transcript 6 November 2020 page 28 lines 41 to 46.
The applicant was granted the opportunity to file further written submissions at the end of the hearing and he failed to comply with this direction. In March 2021 OPO was offered a further opportunity to file submissions when he was notified of the Tribunal’s reconstitution. He did not file any further submissions.
The respondent’s submissions
The respondent made submissions on the legal framework and relevant issues including that the Tribunal must be guided by the principle under which the Act must be administered i.e. that every child is entitled to be cared for in a way that protects the child from harm and promotes the child's wellbeing (original footnotes from submissions omitted).
It was submitted that the term 'exceptional case' is not defined in the Act. What is an 'exceptional case' is a question of fact and degree to be decided in each individual case, having regard to ‘... 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.’[11]
[11]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] (citing Kent v Wilson [2000] VSC 98, [22]) (emphasis added).
Further reference was made to section 226 of the Act in the context of a charge or a conviction as has occurred in this matter. This section does not present an exhaustive list of considerations. The respondent submitted that the paramount principle should be used by the Tribunal to inform the standard of proof required in decisions under the Act.
The respondent submitted that given the paramount principle and the nature of decisions under the Act, the gravity of the consequences for children is what is the important consideration i.e. that is, if a working with children clearance were to issue what would be the potential consequences for children. Any consequences, in terms of prejudice or hardship to the applicant, are not relevant in child-related employment decisions. The potential consequences for children, however, of issuing a working with children clearance are significant and, as such, the Tribunal ought to require cogent evidence to establish, on the balance of probabilities, any facts asserted in favour of the Applicant. This approach is consistent with the reasons outlined by the Appeal Tribunal in Masri.[12] In that case the QCAT Appeal Tribunal referenced the paramount principle in holding that this approach is consistent with the Briginshaw test and ought to be employed "bearing in mind the nature of the reviewable decision".[13]
[12]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].
[13]Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86, [54].

The respondent made further submissions citing the decision of Maher.[14]
[14]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.
It was submitted that looking at each of the relevant considerations, the Tribunal can be satisfied, on the balance of probabilities and bearing in mind the gravity of consequences involved, that the applicant's case is an exceptional case in which it would not be in children’s best interests for the applicant to be issued with a working with children clearance and Blue Card.
The respondent submitted that the applicant had two convictions for public nuisance and being either drunk and or violent near licensed premises. It also noted that the applicant changed his story in relation to the drug charge, first to the police but also at the Tribunal hearing. The concerns this raised were pointed out to OPO by the then presiding tribunal member at the hearing.
The applicant also provided a number of different versions of what occurred on 25 October 2015 (the date of the incident relating to the domestic violence protection order). OPO spoke of the incident in crude terms that perhaps indicated a view of ownership of his ex-partner e.g.“ there was another gentleman inside my house styling up my parcel”.[15] According to the police facts OPO pulled the hair from the aggrieved’s scalp. During evidence the applicant contradicted himself about the accuracy of the police facts. This inconsistency and what it could mean for his creditworthiness as a witness were pointed out to him by the then presiding member.
[15]Transcript 6 November 2020 page 7 lines 1 to 2.
It was noted that the applicant had protective factors of a solid employment history including having a mechanical apprenticeship, a traineeship and working in the mining system. He also worked in a programme where he supported indigenous youth. The applicant said he no longer used cannabis or associated with the people who influenced him at the time of his charges.
OPO provide two supporting references; one was from a child safety support officer who witnessed him working as an indigenous youth mentor. That reference did not indicate an awareness of the respondent’s reasons for issuing the negative notice. The other was from the witness who was called at the tribunal hearing. That witness said that the applicant’s work with indigenous youth and offenders was good and he spoke positively of OPO. The witness’s evidence was that he was aware of some of the applicant’s criminal history, but it was unclear whether he was aware of the respondent’s reasons for issuing the negative notice.
The applicant also said he had addressed his drug use and the triggers and developed strategies to reduce relapse regarding risk factors. The respondent submitted that the risk factors were that the applicant had a criminal history and two fairly recent convictions for incidents of anti-social behaviour and a finalised charge for drug possession. He also had a traffic history. All these factors combined were stated to raise concerns about his overall ability to act as an appropriate role model for children. The applicant had admitted to using cannabis over a number of years and had been charged with possessing a substantial amount of cannabis with these charges having been dismissed. The applicant denied the circumstances of his alleged offending but it was stated by the respondent that it was of concern that the applicant may have been involved in the distribution of drugs. It was submitted that the circumstances of his drug use and surrounding conduct raise serious concerns about whether he was an appropriate person to work with children.
Also, of concern were the allegations regarding his history of perpetrating ongoing domestic violence against his ex-partner. In the respondent’s submission OPO was the perpetrator of alleged violent and uncontrolled behaviour and it raised serious questions about his ability to provide a safe and protective environment for children. The applicant provided little evidence of the steps he had taken to address his anger issues or manage his drug and alcohol misuse. He had not provided independent evidence which supported the steps that he had taken. The applicant’s referees talked about the applicant’s strong skills in dealing with indigenous youth. OPO claimed that he had made the application for a Blue Card to help him make a difference with troubled youth. The respondent submitted that the applicant’s skills in his areas of employment, such as working with troubled youth, and any hardship or prejudice suffered by him as a result of not obtaining a Blue Card are of no relevance to the issue that must be decided by the Tribunal.
Transferability
Submissions under the heading of transferability centred on the fact that once granted a Blue Card an applicant is able to work in any child related employment or conduct a child related business supervised or unsupervised as regulated by the Act and not just for the purpose for which the applicant sought the card. The Tribunal has no power to ensure a Blue Card is conditional. Once a Blue Card is issued it is fully transferable across all areas of regulated employment. It was submitted that the Tribunal’s decision is not whether the applicant should be employed in his chosen job. The Tribunal’s decision is whether having regard to the paramount principle under the Act the applicant's case is an exceptional case in which it would not be in the best interests of children for him to be issued with a positive notice.
Conclusion to respondent’s submissions
It was submitted that the Tribunal’s decision is whether, having regard to the paramount principle under the Act, 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 with a working with children clearance. The respondent submitted that the Tribunal should take a precautionary approach to decision making in child-related employment matters.
Findings
The Human Rights Act 2019 (Qld) (HRA)
The commencement date of the HRA was 1 January 2020 and as OPO’s review was commenced in 2019, the legislation has no applicability to this case. However, if I am wrong about that issue, I accept the view that the decision that the applicant's case is an exceptional case is compatible with human rights. This is because despite any limitation the decision places on the applicant’s human rights, the decision will be justified by the factors outlined in section 13 of the HRA. The decision will be justified on the basis it will have a proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which of itself is a human right.
Considerations concerning risk factors
In considering the decision of Maher I also had recourse to the decision of Eales.[16] In that case the Appeal Tribunal considered the decision in Maher and determined that:
The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise ...
At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person.
... No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording "unacceptable level of risk" was made by the Court of Appeal in the Maher case.
[16]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]-[8].
In considering the relevant factors I took a qualitative approach. It was not simply a calculation of risk factors versus protective factors.
The applicant’s evidence at the Tribunal, both in chief and under cross examination, included several inconsistent versions of both his criminal charges and of the domestic violence order. This evidence impacted on the applicant’s credibility. I find that this caused me to not be able to give his version of events the same weight as I may have been able to without those inconsistencies. It was very difficult to discern from OPO’s inconsistent evidence exactly what he thought the true facts were about these events.
The applicant’s witness who gave evidence, whilst obviously employed at a high level in his previous employment, was not aware of the reasons Blue Card had relied upon when a positive notice was refused, and a negative notice issued. His evidence, in part, was that OPO should be congratulated or rewarded for his hard work given his circumstances as an indigenous man. I certainly accept the evidence that the applicant did good work when he worked in his father's programme. This is when the witness interacted with him and their interactions were professional. I do not diminish the importance of the effort that would have gone into the applicant’s work history and qualifications. However, I accept the respondent’s submissions that these are irrelevant considerations regarding the decision of whether this is an exceptional case. The issuing of a positive notice under the Blue Card regime is not a reward to a person for their qualifications or working life nor is it relevant for me to take into account the impact the lack of a Blue Card would have on their employment. These are quite simply not considerations within the legislative regime.
The applicant’s evidence to the Tribunal was lacking in detail, evasive and at times contradictory. Little weight could be placed on the applicant's view of his changed circumstances when he did not support what he alleged to be his changes to his lifestyle with evidence of any type apart from his own statements. As previously noted, the applicant did not reveal himself to be a witness of credit by telling the Tribunal one thing and then changing his story and then reverting. This continued despite the then presiding member pointing out to the applicant, twice, the problem he was creating for himself by continuing to contradict himself.
The applicant appeared to have little insight into the circumstances of the domestic violence incident. His own evidence indicated that he felt that he was the aggrieved in the situation as he returned home to find someone as he so crudely put it “styling up his parcel”.[17] I find on the balance of probabilities that the facts as put before the court by the police in relation to this order are most likely to be the correct version of events. I found the evidence that the hair found in the kitchen was in fact hair extensions to be improbable. I do not speculate on whether this is the case that he pulled out hair extensions or the aggrieved’s hair; presumably both were attached to her head in some fashion.
[17]Transcript page 7 lines 1 to 2.
The Tribunal is not an appellate body for any of the sentencing courts that have dealt with the applicant. It is not appropriate for me to go behind the protection order.
Regarding the drug charge I note that a nolle prosequi was entered. The charge is not a disqualifying offence. In the decision of Director-General, Department of Justice and Attorney-General v CMH[18] (footnotes omitted), the following was stated:
In our view, it is evident that a ‘charge’ for the purposes of s 221(1)(b)(iii) of the WWC Act refers to a charge that is extant. The term ‘charge’ is defined in the WWC Act in terms of the form that the charge might take and does not assist in determining whether or not it is intended to be confined to an extant charge. However, the legislative context suggests that it is so intended. Section 221(1)(b)(iii) deals with a charge for an offence ‘other than a disqualifying offence’. The latter is dealt with separately in s 221(1)(b)(iv). That subsection arises for consideration where the chief executive is aware that, in relation to the person, there has been a charge for a ‘disqualifying offence’ that has been dealt with other than by conviction. The term ‘dealt with’ is defined in Schedule 7 of the WWC Act and includes circumstances where a charge has been dismissed or there has been an acquittal. The fact that the meaning of the term ‘charge’ for the relevantly more serious disqualifying offences is expressly extended to include circumstances where the charge has been dismissed or there has been an acquittal, but is not so extended for other offences, suggests an intention to limit charges for the purposes of s 221(1)(b)(iii) to extant charges.
[18][2021] QCATA 6, [28].
I accept the view propounded by the Appeal Tribunal and find that the charge is not a relevant consideration for me. Its only relevance is that it was one of the topics discussed in evidence by the applicant where he displayed evasiveness and a tendency to contradict himself. This goes to the credit of the applicant due to his behaviour at the Tribunal as opposed to the actual charge itself.
Of much greater significance is the applicant's information or contradictory information relating to his domestic violence protection order. The applicant tended to paint himself to be the victim in that circumstance. He was inconsistent about whether he accepted the police version of events or not. He described the event and the applicant’s behaviour as justifying his behaviour and violence. From the terms he used OPO can only be described as exhibiting a lack of insight into his behaviour and a lack of respect for the aggrieved.
The applicant gave evidence that his days of heavy drinking and cannabis use are now behind him. The applicant did not support this information with anything other than his own statement about what he considered to be the culturally appropriate steps he had taken to assist him to moderate his lifestyle. He said speaking to an elder was the step he had taken to assist with his substances and alcohol use. It was his evidence that he spoke to this elder almost fortnightly since 2012. I considered the robustness of this plan because throughout the duration of these discussions with an elder the applicant was still engaging in behaviour that attracted the law including with domestic violence and other public nuisance charges. This behaviour continued up until 2017, some five years after he first sought the counsel of the elder. He did not indicate to the Tribunal why his fortnightly yarning with the elder had not assisted him to give up heavy drinking and cannabis use at an earlier stage. He did not elaborate on why it was only in the last few years that this yarning had been able to turn around his behaviour when in the past it had not moderated his behaviour.
The applicant's witness focused on OPO’s success in his workplace and the witness’s own views about the issuing of a Blue Card. I accept the witness’s views that the applicant was good at his job of dealing with indigenous youth. However, I also accept this is an irrelevancy in dealing with the review. I considered that witness not appearing to have full knowledge of the applicant’s history including the domestic violence order, nor had he seen the reasons for the refusal by Blue Card to issue a positive notice to the applicant.
The factors in s 226(2) of the Act are factors that must be considered in deciding about whether it is an exceptional case.
I accept that in terms of the level of satisfaction required to meet section 221(2) of the Act, while certainty is not required, the Tribunal must be satisfied on a balance of probabilities, bearing in mind the gravity of the consequences involved, that this is an exceptional case, in which it would not harm the best interests of children for a positive notice to be issued.[19] I am aware that there is no power under the legislation for the Tribunal to issue a positive notice with conditions.
[19] [2004] QCA 492, [30].
I refer to the following factors in my consideration of whether this is an exceptional case: factors which must be considered and factors I consider relevant. I make the following observations:
Whether the offence is a conviction or a charge
Charge
As already noted, I am not giving weight to the non-extant charge.
The applicant’s version of events that led to his charge and protection order at times contradicted the material provided by both police and the relevant Court. His evidence was at times inconsistent on these points and certainly under cross examination by the respondent the applicant indicated either confusion or deceit about the version of these matters. The applicant blamed much of his criminal history on others e.g. his friends. Domestic Violence Order
Regarding the domestic violence order, I accept that the breakup of relationships may be difficult, however this does not change the fact that the applicant was the respondent in a protection order. The applicant sought to place the blame on his ex- partner for her having entered another relationship while they were ostensibly still partners. The police version of events was that the applicant’s ex-partner had said that the relationship had been domestically violent, however she had not reported these events prior to the last one. The applicant agreed and disagreed about whether this was the truth. He ultimately settled on saying that he had never been physically violent and had only been verbally violent at the time of the incident that led to the protection order. This is in direct contradiction to the information provided by the police to the Magistrate who made the protection order.
Whether the offence is a serious offence and, if it is, whether it is a disqualifying offence
The drug offence is not a serious or disqualifying offence and the charge itself has had a nolle prosequi entered.
When the offence was committed or is alleged to have been committed
The protection order was issued in 2017 and the date of the applicant’s drug charge is not relevant for the reasons already outlined.
The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children.
The applicant has been the respondent in a domestic violence protection order and has been convicted of two public nuisance incidents that involved him being, in his own words, heavily intoxicated. The applicant gave evidence that he had been a cannabis user from his teenage years until 2018.
The applicant says he has taken steps to rehabilitate himself but only provided evidence that said he had been successful in his work in his father’s programme and that he had removed himself from people who were bad influences. He said he used a yarning circle and talking to an elder to help him stop using cannabis and drinking to excess. He said that he had been undertaking this method since 2012 and it was only since 2018 that he had said he'd been able to turn his life around. There was no further evidence relating to this cultural counselling or yarning circle. He said that his protective factors were talking to his father and this elder.
The applicant’s evidence demonstrated very little information to support the belief that it would be appropriate for him to have children in his care while holding a Blue Card. Even if the applicant is not intending to be employed working with children a Blue Card is fully transferable and therefore I must approach this on the basis as though at sometimes he may well have contact with children through his employment and that it is on that basis that a blue card is required.
In the case of a conviction, the penalty imposed by the Court and the Court’s reasons for its decision

There was no conviction.
Other relevant circumstances
I have considered the evidence, statements and submissions filed in this matter in coming to a decision about whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a positive notice. I considered the nature of the domestic violence related protection order. The applicant's evidence was ccontradictory and he appeared to believe that he had a justification for his behaviour during the domestic violence incident. His description of the facts surrounding that were both contradictory and improbable. His own admission was that his drug use continued from his teenage years until at least 2018. It is not for the Tribunal to go behind the version of facts accepted by a court nor is it its role to accept a different version of events based on the applicant’s evidence.
Based on the applicant’s evidence to the Tribunal I cannot be comfortable accepting that OPO demonstrates full range of insight into the impact of his behaviour upon others. The applicant says he acknowledges his own behaviour; however, he appears to have been unable to move past minimalization and contradiction. It is not clear to the Tribunal that the applicant has developed genuine insight into the harm caused by his behaviour.
The applicant has not provided the Tribunal with evidence which would allow it to reach a finding that he has insight into the impact that his behaviour would have had on vulnerable persons such as children. The applicant’s evidence and that of his witness, at its highest, addressed the applicant’s work history and his success in working with indigenous youth. All these things are highly commendable; however, they are not relevant to the decision I must make.
I accept the respondent’s submissions concerning the object of the Act and the principle that the welfare and best interests of the child are paramount. I accept that this supports a precautionary approach to decision making regarding child related employment.
In considering whether this is an exceptional case I must determine the correct or preferable decision in the context of the paramountcy of the welfare and the best interests of children. I accept the transferable nature of a Blue Card once it is issued. There is evidence that the applicant has made steps forward in that he has not been engaged with the police for a few years.
The overall evidence indicates that contrary to what OPO says about the circumstances of the domestic violence incident a protection order was made due to his violent behaviour against an ex-partner. I accept that some of this behaviour occurred in the context of relationship issues. However, in the absence of further supporting evidence regarding the steps he has undertaken to address his risk related behaviour I cannot be satisfied that his violent and alcohol related behaviours (public nuisance x 2) are no longer a significant risk factor.
It is my view that OPO minimised his conduct and having regard to the risk and protective factors I am satisfied that this is an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued.
Non -publication order
The Tribunal may make such an order on its own initiative if satisfied that it is necessary for any of the reasons specified in the QCAT Act s 66(2). The question for determination is whether the publication would be contrary to the public interest or contrary to the interests of justice. A non-publication order should be made in this instance to protect the identity of the applicant, his family, any children and/or third parties named in the proceedings. The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.
Orders
1. The decision of the Director-General, Department of Justice and Attorney-General that OPO’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
2. The Tribunal prohibits the publication of the names of the Applicant, the names of any victim/alleged victim, children, third parties and any non-expert witnesses.