WKU v Director-General, Department of Justice and Attorney-General - [2024] QCAT 404

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

WKU v Director-General, Department of Justice and Attorney-General [2024] QCAT 404

PARTIES:

WKU

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML099-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

6 September 2024

HEARING DATE:

8 October 2021

HEARD AT:

Rockhampton

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that WKU’s case is “exceptional” within the meaning of the Working with Children (Risk Management and Screening) Act2000 (Qld) is confirmed.

2. Publication of the name or any identifying information of WKU or any person associated with her other than to the parties to the proceeding is prohibited pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act2009 (Qld). Accordingly, the reasons for decision will be published in a de-identified format.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY LEGISLATION – OTHER MATTERS – blue card – where applicant seeks review of a decision to issue a negative notice – where applicant has long criminal history in regard to property, fraud, violence and drug offences – where applicant subject of referrals to Child Safety and substantiated harm to her children – whether it is an exceptional case in which it would not be in the best interest of children to issue a positive notice to the applicant.

Human Rights Act2019 (Qld), s 13, s 21, s 23, s 36, s 48, s 58

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 18, s 20, s 21, s 24, s 66

Working with Children (Risk Management and Screening) Act2000 (Qld), s 5, s 6, s 221, s 226, s 360

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer Department of Child Protection v Scott[No. 2] [2008] WASCA 171
Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86
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 Maher [2004] QCA 492
Commissioner for Children and Young People v Storrs [2011] QCATA 28
GW v Chief Executive, Public Safety Business Agency [2015] QCAT 219
McKee v McKee [1951] AC 352
RPG v Chief Executive Officer, Public safety Business Agency [2016] QCAT 331
Re TAA [2008] QCST 11

TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

APPEARANCES & REPRESENTATION:

Applicant:

WKU – self-represented

Respondent:

Ms Capper – in-house lawyer, for the Department

REASONS FOR DECISION

INTRODUCTION

WKU made application to enable her to obtain authority to work with children, known as a blue card under the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). She received a negative notice and statement of reasons dated 28 February 2020 which meant that she was not eligible to work with children in Queensland. She has made application to the Tribunal to review that decision.
THE LEGISLATION
The purpose of the WWC Act is to ensure that those who wish to work with children do not pose a risk of harm to the children they may come in contact with during the performance of their duties. An application is made to the Department of Justice and Attorney-General (‘the Department’) by a potential employer where they or their employee’s duties involve regulated employment, which is working with children, for a prescribed notice. The Department gathers information from various sources including the person’s criminal history, which is both charges and convictions. There are two possible outcomes to any application: a positive notice which means the person may work with children, and a negative notice which means they must not work with children. The Department issues the notice with a statement of reasons.
Applications for prescribed notices are determined in accordance with s 221 of the WWC Act where the person has no conviction or a conviction for offences other than serious offences. Where the Department is aware of relevant information as is the case here the Department must issue a negative notice if the Department is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the person.[1] The decision under review is then whether WKU’s case is an exceptional case.
[1]WWC Act, s 221(2).
The Department noted in its submissions that the term “exceptional case” is not defined in the WWC Act. that 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”.[2] I note that the Tribunal in Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 further stated that “it is a term of common use in everyday language” and held that:
The proper approach to it is that, with respect, adopted by Philippides J: [in Commissioner for Children and Young People and Child Guardian v Maher and Anor[3] (‘Maher’)] to consider its application in each particular case, unhampered by any special meaning or interpretation.[4]
[2]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] (‘FGC’).
[3][2004] QCA 492.
[4]FGC at [33].
Where a person has been charged with or convicted of an offence, the Tribunal must have regard to the considerations prescribed in s 226 of the WWC Act in determining whether an exceptional case exists. Section 226 is not an exhaustive list of considerations and does “not expressly or impliedly confine the Tribunal to considering only the matters specified therein”, rather they are “merely certain particular matters which the [Tribunal] is obliged to consider in deciding the application.”[5]
[5]Maher at [42] per Phillipides J.
The Tribunal when reviewing a blue card decision stands in the shoes of the decision maker and must make the correct and preferable decision[6] based on a fresh hearing on the merits.[7] The Tribunal has all of the powers of the original decision maker and must make its decision in accordance with the legislation under which the original decision was made, the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).[8] The decision maker must assist the Tribunal to make its decision by providing a written statement of reasons with all of the material considered relevant to the Tribunal’s review of the decision.[9] The Tribunal may determine the application by confirming or amending the original decision; setting aside the original decision and substituting its own decision; setting aside the original decisions or returning them to the decision maker with or without directions for reconsideration.[10] There is no onus of proof which must be discharged by either party in regard to the application[11] and the Tribunal must make its decision based on the balance of probabilities in accordance with the decision in Briginshaw v Briginshaw.[12]
[6]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20(1) (‘QCAT Act’).
[7]Ibid, s 20(2).
[8]Ibid, s 19(a).
[9]Ibid, s 21.
[10]Ibid, s 24.
[11]Commissioner for Young People and Children v Storrs [2011] QCATA 28.
[12]Maher, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 (‘Briginshaw’).
The WWC Act is to be administered under the following principles - the welfare and best interests of a child are paramount and every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[13] When exercising its powers under the WWC Act the Tribunal must act under the principle that the welfare and best interests of a child are paramount.[14]
[13]WWC Act, s 6.
[14]Ibid, s 360.
The Department submits, as relevant, the Oxford dictionary definition of paramount to mean “more than anything else; having supreme power”. It submits that in Maher,[15] McPherson JA acknowledged the importance of the paramount principle stating that:
Expressions in that form have long been a feature of the law governing the affairs of children. Referring to that principle in McKee v McKee [1951] AC 352, 365, Viscount Simonds said that it was the paramount consideration “to which all others yield”.
[15]Maher, at [3].
The Department further submitted that the paramount principle ought to inform the standard of proof required in decisions under the WWC Act, and that in Maher, it was accepted that the test in Briginshaw applied to child-related employment decisions. As Phillipides J noted it was accepted that the Tribunal was required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case.[16] The Department submitted that given the paramount principle and the nature of the decisions under the WWC Act, the “gravity of consequences involved” should be taken to mean the gravity of consequences for children if a blue card were to issue. Any consequences, in terms of prejudice or hardship to WKU, are not relevant in child-related employment decisions.[17] However, the potential consequences for children of issuing a blue card are significant. This approach is also said to be consistent with the approach of the Appeals Tribunal in Chief Executive Officer, Public Safety Business Agency v Masri.[18] There the appeals Tribunal references the paramount principle in holding that the Briginshaw test ought to be employed “bearing in mind the nature of the reviewable decision.
[16]Maher, at [30].
[17]Chief Executive Officer Department of Child Protection v Scott(No 2) [2008] WASCA 171, Buss J at 109.
[18][2016] QCATA 86.
Having regard to the requirements of s 360 of the WWC Act and the precedent submitted I am satisfied that this is not to be a balancing of the interests of children against those of WKU but a consideration as to whether the requirements of s 221 of the WWC Act are met and there 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.
The Department noted that the decision in Maher is often cited for the proposition that the Tribunal is required to balance risk factors against protective factors in determining whether an applicant’s case is an exceptional case. The Department submitted that this interpretation is not correct. In Commissioner for Children and Young People and Child Guardian v Eales,[19] the appeals 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 to find whether an exceptional case existed…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 interests 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 word “unacceptable level of risk” was made by the Court of Appeal in the Maher Case.[20]
[19][2013] QCATA 303.
[20]Ibid, at [6]-[8].
The Department further submitted that adopting a “balancing” approach risks the Tribunal being led into error. The concept of “balancing” implies a weighing up of two countervailing sets of factors. It connotes an equal distribution of weight between factors for, and against, WKU’s case. The Department submitted that when considering the factors, the Tribunal should take a qualitative rather than a quantitative approach, and applying equal weight to both sets of factors creates a risk that the Tribunal will be led into error by failing to apply the paramount principle. I am of the view that, clearly, it is not simply a numerical exercise once factors are identified as being either risk or protective factors in regard to children; the extent to which they embody those factors must be considered so that the overall decision is based on whether or not all of the factors when taken together satisfy the Tribunal that there is an exceptional risk to children. I therefore accept the Department’s submissions in regard to risk and protective factors.
In exercising its review jurisdiction, the Tribunal is acting as a public entity for the purposes of the Human Rights Act2019 (Qld) (‘HR Act’) and therefore the HR Act applies to the Tribunal. The Tribunal is required to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights, or if it is not possible to interpret them in a way that is most compatible with human rights, in accordance with s 48 of the HR Act. Under s 58 of the HR Act it is unlawful for a public entity to act or make decisions 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. This requires that the Tribunal identify the human rights that may be affected by the decision and consider whether the decision would be compatible with human rights. A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom in accordance with s 13(1) of the HR Act. In deciding whether a limit on a human right is reasonable and justifiable the factors set out in s 13(2) of the HR Act may be relevant. The relevant human rights[21] here include WKU’s right to a fair hearing, privacy and reputation. The right of every child to “the protection that is needed by the child, and in the child’s best interest, because of being a child” is relevant in respect of children generally.

Application of the law to WKU’s case

[21]HR Act, ss 15-37.

The Paramount Principle

WKU in her application submitted that if she does not have a blue card her contracts for cleaning services to the local school which are outside of school hours and for which she has no contact with students will be affected as she will be unable to check the quality of work of her staff. She says this will put both her staff and her financial wellbeing at risk. The Department submitted that such considerations are not relevant in determining whether her case is an exceptional case. Given the paramount principle, such considerations must “yield” to the consideration of whether WKU having a blue card is consistent with the welfare and best interests of children. This is a protective jurisdiction. Any hardship or prejudice suffered by WKU or her staff as a result of not obtaining a blue card is of no relevance. Similarly, any benefit to children from having WKU’s business performing cleaning work is not relevant if it is not in the best interests of children for her to be issued with a blue card. Having regard to the discussion of the paramount principle above I accept the submissions of the Department and so I will not take into account the impact on WKU of her not obtaining a blue card nor the potential benefits to children of her obtaining one if it is not in the best interests of children in my considerations under the WWC Act.
Consideration of s 226 of the WWC Act
To determine if there is an exceptional case the Tribunal must have regard to the requirements of s 226 of the WWC Act. This requires a consideration of the details regarding the offences which WKU has been charged with or convicted of over the years. These will be dealt with in accordance with the criteria set out in s 226(2)(a):
Whether it is a conviction or charge
(a)WKU has an extensive criminal history. She was born in 1969 and her offending started when she was 13 years old, including approximately 90 offences across Queensland, New South Wales and Victoria. There were a series of property and housebreaking offences from 1983 to 2008. These included theft, burglary, unlawful possession, possession of property stolen outside NSW, goods in custody stealing, unauthorized dealing with shop goods, attempted stealing, goods in personal custody reasonably suspected of being stolen, larceny value <$2,000, unlawful possession of suspected stolen property, receiving stolen property (or property fraudulently obtained) proceeds of a crime, and unauthorized dealing with shop goods (maximum $150). The last property offences were in 2012 and they were withdrawn. There were also a series of fraud and unlawful statement offences between 1991 and 2007. These included making false statements, obtaining Commonwealth benefit/money-false pretences, obtaining financial advantage by deception, attempting to obtain property by deception, opening an account in a false name, attempting to obtain benefit by deception, fraud – dishonestly obtaining property from another, and forgery. There were a series of assault offences and offences relating to conduct while dealing with the police. These included resisting police or a person assisting police, obstructing a police officer, contravening a direction or requirement, serious assault, and assaulting a police officer. There were a series of drug offences between 1991 and 2009. These included self-administering a prohibited drug (cannabis), possessing equipment, possession of a prohibited drug (Cannabis), possessing a drug of dependence (not named), using another drug of dependence, cultivating a prohibited drug, possessing cannabis, possession of a dangerous drug, possessing property suspected of having been used in connection with the commission of a drug offence, failure to properly dispose of needle and syringe, unlawful possession of restricted drugs, and possessing utensils or pipes etc. that had been used. There were also breaches of bail and sentencing orders between 1991 and 2007. This included failure to answer bail, breaching a community service order, breaching a probation order, breaching a bail undertaking, failure to appear in accordance with bail undertaking (conviction), breaching of suspended sentence. There was a weapons offence in 1990 of possessing a pistol or imitation without licence. There were several personal offences in 2007. These were being drunk or disorderly in premises to which a permit/licence relates and failure to leave licenced premises. There were a series of driving offences between 1991 and 2002. These included Mid PCA (driving with a blood alcohol level between .08 and .14), being an unlicensed driver, an unregistered motor vehicle, uninsured motor vehicle, driving in a dangerous manner, being a disqualified driver, driving an unregistered vehicle, using an unregistered vehicle, and dangerous operation of a vehicle.
Whether the offence is a serious offence and, if it is, whether is a disqualifying offences
(b)None of the offences of which WKU has been convicted or charged are serious or disqualifying offences.
When the offence was committed or alleged to have been committed
(c)The Department noted that the WWC Act enables convictions or charges to be taken into account regardless of when they occurred. As mentioned above WKU’s criminal history commenced when she was 13 years old and spanned to 2009 being the last conviction, a period of approximately 26 years. Although a period of 12 years has elapsed since these offences of concern, the clear intention of the legislation is that they remain significant in an assessment of WKU’s eligibility to hold a blue card.
The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children
(d)The Department provided details in regard to some of the offences committed by WKU as follows:
(i)      2002 - possessing dangerous drugs, possessing property having been used in connection with the commission of a drug offence. In summary a warrant was executed at premises occupied by WKU and drugs and drug utensils were found. WKU and the other occupants of the premises denied knowledge and ownership of the drugs and utensils. WKU was asked at the hearing if her children were with her at the time of these offences. She stated that her first two children had been removed from her at that time because she had spent time in jail and they were put in foster care.
(ii)      2002 - dangerous operation of a motor vehicle offence. In summary WKU was reported to have entered a shopping centre car park at 5:40pm and driving her vehicle at excess speed and dangerously with pedestrians having to avid her and her narrowly missing other vehicles and eventually colliding with one. WKU was located by police and arrested. WKU was asked about this offence at the hearing. She stated that she was in a relationship with someone she could not get away from and she wanted to get away from them. She wanted to get away from the drugs.
(iii)     2003 - failure to properly dispose of needle and syringe and possessing dangerous drug offences. In summary WKU was located in a vehicle which police had been alerted was carrying amphetamines. A needle was located in the car boot with remnants of blood. It was noted that there was a Sharps container in the boot. A needle was located in the car’s centre console with a clear substance which upon analysis was found to be oxycodone. WKU confirmed that she had been the person in charge of the vehicle but refused to answer police questions.
(iv)     2005 - Assaulting a police officer. In summary a male person was at hospital in police custody. WKU attempted to remove the male person from the hospital and leave in a taxi. The male person was directed to leave the taxi and WKU held onto him so he could not leave. She was told to let go or she would be under arrest and she refused. WKU was arrested and restrained. She swore at police and attempted to punch them with some contact by her with a police officer’s head. WKU stated at the hearing that she had a vague recollection of this offence and it was not the same partner as involved in the 2002 offences. She said she did not believe her children were in her care at the time.
(v)      2006 - offences of serious assault – committing crime/resist/prevent arrest/detention. In summary police had entered a dwelling occupied by WKU in regard to child welfare issues late at night. She was asleep at the time. She later exited the dwelling with two brooms swearing at police. She was told to put down the brooms and dropped one. She continued advancing towards police with the other and was told to drop it or she would be capsicum sprayed. She refused and kept advancing on police. She was sprayed and wrestled to the ground. WKU stated at the hearing that she had a vague recollection of the offence and that the child welfare issues were related to her children being exposed to drugs in her care.
(vi)     2007 – offences of assaulting a police officer, two charges, and obstructing a police officer. In summary WKU was arrested for disorderly conduct, failing to leave licensed premises and obstructing police. While in a police vehicle WKU violently kicked out at police with two police officers being kicked in the upper body. She also verbally abused police.
(vii)   2007 - offences of failure to properly dispose of needle and syringe and unlawful possession of restricted drugs. In summary WKU was located by police on patrol after trying to avoid them and when her bag was searched she was found to have a used syringe and 7 Xanax tablets. She stated to police that the syringe was from someone else and she had agreed to dispose of it but had not yet. She said the tablets belonged to another person. WKU stated at the hearing she had a vague recollection of the offences. She confirmed that her and her partner were using drugs and alcohol at the time.
(viii)     At the hearing the Department noted that WKU was pregnant at the time of these offences. She stated the Xanax was her partner’s medication and that she did not know why she was convicted said “it was near me”. She did not recall where the needle came from.
(ix)     2009 - offences of possessing dangerous drugs and possessing utensils or pipes etc, that had been used.
A.WKU was found in possession of 0.4 grams of cannabis sativa and a drug utensil.
B.WKU could not recall details of this offence at the hearing but stated she was not using cannabis at the time, though it may have been in her possession in her car or home. She confirmed the children were not back in her care at the time and that did not occur until 2011. When asked if she was living with her previous partner she said “her ex had never stopped using drugs”.
(x)      The Department also submitted WKU’s Queensland traffic history between the years of 2002 and 2019 which listed a total of 47 infringements, mostly related to excess speed, disqualified driving and driving under the influence of liquor. WKU also has infringements for learner failure to display L plates and learner driving vehicle without a person with an open licence seated beside driver (on 12/01/2010), which the Department noted raised concerns that WKU was exposing children to dangerous and unlawful behaviours from a young age. WKU has been subject to monetary penalties for driving offences as well as imprisonment. When asked about her driving history at the hearing WKU stated that “I still have my licence and have slowed down and have more control”. In regard to her driving under the influence charge in 2012 she said she was not asked to do a course but she does not drink anymore.
Relevance of offending to working with children
(e)The Department submitted that WKU’s criminal history reflects multiple instances of violent and antisocial behaviour, including convictions for dangerous operation of a motor vehicle and serious assault, and multiple convictions for assaulting a police officer. The police information indicates several of these offences occurred in public places, such as shopping centre car parks and a hospital, and outside WKU’s address where police were conducting child welfare checks. The Department submitted this strongly suggests that children, including WKU’s children, may have been present and exposed to her concerning behaviours. WKU’s violent and antisocial offending raises concerns about her ability to deal effectively with conflict and stress. Effective stress management and conflict resolution skills are critical when dealing with children and young people, and as a holder of a blue card, WKU is expected to behave in a manner that protects and promotes a child’s safety and physical and psychological wellbeing. Children are entitled to be cared for by adults who do not engage in violent or antisocial behaviour.
(f)WKU’s criminal history also reveals a consistent engagement in drug offending over an approximately 18-year period, relating to cannabis, opiates and restricted drugs, and on multiple occasions driving whilst effected by alcohol between 1991 and 2012. The Department submitted that children have a right to be protected from exposure to drug involvement and are entitled to be cared for by persons who are not engaged in drug related activities or using alcohol to an extent which may impair their ability to promote and protect the best interests of children.
(g)The Department noted that in addition to WKU’s offending relating to violence, anti-social behaviour and drugs, WKU also has convictions relating to stealing, fraud and dishonesty, which in the Department’s submission suggests a general disregard for authority and a tendency towards criminality. Further, it submits that children observe and model behaviours of adults around them, and as such, her persistent offending raises concerns about her ability to judge appropriate behaviour and present as a positive role model. Children rely on adults to be positive role models, and it has been stated by the Tribunal that:[22]
[22]CW v Chief Executive, Public Safety and Business Agency [2015] QCAT 219 at [67].
it can be harmful for children to become aware people they respect don’t obey the law because it can create confusion for them as they try to develop a sense of right and wrong.

In the case of a conviction - the penalty imposed by the Court and if it decided not to impose an imprisonment order for the offence or decided not to make a disqualification order under s 367, the Court’s reasons for the decision

(h)WKU’s offending has attracted penalties ranging from fines, probation orders and multiple terms of imprisonment. More often than not convictions have been recorded. Having regard to the sentences that WKU has been subject to, the Department submitted that a sentence of imprisonment, which WKU was frequently subjected to, reflects the gravity with which the Court viewed her offending.

Any information about WKU provided under sections 318, 319, 335, 337 or 338 of the WWC Act

(i)No information was requested or received pursuant to these sections of the WWC Act.

Anything else relating to the commission, or alleged commission of the offences that is reasonably considered to be relevant
(j)The Department submitted WKU’s traffic history which is discussed above.

Consideration of s 228 of the WWC Act

In deciding whether there is an exceptional case and the Tribunal is aware of domestic violence information about the person the Tribunal must have regard to the matters set out in s 228(2)(b).
The circumstances of a domestic violence order or police protection notice mentioned in the information, including the conditions imposed on the person by the order or notice.
(a)The Department noted that WKU’s criminal history, together with material produced, indicates WKU has a tendency to react violently to situations of conflict and stress, and that this has frequently occurred in the presence of children in her care.
(b)In July 2002 police advised the Department of Child Safety, Youth and Women (‘Child Safety’) WKU’s two children had witnessed a domestic violence incident between her and her partner, following which her partner removed one of the children from her care. Police further advised Child Safety of a “long history of domestic violence” between WKU and her partner, and that it was not the first time police had been involved with the family. Child Safety considered the children were at high risk of harm and that their immediate needs for safe living conditions were not being met.
(c)In April 2006, police advised Child Safety they had attended WKU and her partner’s address where they located and removed her partner’s children as they were not supposed to be in his care. Child Safety were also advised one of the children described being woken up by WKU and her partner fighting and witnessing her hitting her partner in the face and in the leg with a chair, Child Safety also noted the domestic violence appeared to be increasing in severity.
(d)A protection order application was made by WKU’s partner on 24 July 2006 as a result of an incident where neighbours had called the police in relation to a disturbance at WKU’s house when they heard yelling and believed WKU and her partner were fighting inside the house. It was alleged that WKU had stabbed the aggrieved twice in the stomach area with a kitchen carving knife and WKU had received cuts and bruising to the back of her head by unknown means. The aggrieved stepped outside and lay on the ground after this. Witnesses checked he was alright before police arrival. WKU followed the aggrieved outside. Upon arrival she admitted to police to stabbing the aggrieved. However, the aggrieved refused to make a complaint against her. WKU was arrested and taken to the watchhouse. There were two previous incidents where the aggrieved and WKU were fighting but these were said to be verbal arguments only. A temporary domestic violence order was made with WKU as the respondent on 24 July 2006. WKU was required under the order to be of good behaviour towards the aggrieved and not commit domestic violence; prohibited from following, approaching, or going within 50 metres of the aggrieved when at any place; prohibited from having or attempting to have any contact with the aggrieved by any means whatsoever (including by mail, telephone, mobile phone, facsimile, internet); prohibited from going to, going within 50 meters of, entering, or remaining in premises where the aggrieved resided or the aggrieved’s place of work except in the company of a police officer to recover property - to retrieve personal clothing and possession WKU owned. There were also provisions about the suspension of WKU’s gun licence if she had one.
(e)WKU was asked about the domestic violence order at the hearing. She said there were a lot of drugs and alcohol use and that she could not remember everything. She stated that there was domestic violence the whole time in the relationship and that the children were not with her at the time.
In deciding whether there is an exceptional case, where the Tribunal is aware of other relevant information about the person that it reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a blue card, the Tribunal must have regard to the matters set out in s 228(2)(d) of the WWC Act as follows:

The nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information;

(a)The Department received information from Child Safety in November 2018 advising there was an open investigation being conducted in relation to WKU. Child Safety at the time was unable to advise any further information in regard to that application. There were earlier matters that Child Safety had concluded.
In May 2003 police advised Child Safety they were placing WKU’s children in the care of Child Safety, as she had been arrested for a number of offences and there was no one to care for the children. WKU requested Child Safety place her children in the care of her partner of six months, despite telling Child Safety he was domestically violent and spoke to children in derogatory terms, and that she was aware his own children had been removed from his care due to child protection concerns. Child Safety considered WKU was placing her children at risk by exposing them to her partner, and that the children were at risk of further harm and neglect by WKU in light of her choices to place her own needs ahead of her children’s needs.
In September 2005 police advised Child Safety WKU had been incarcerated for nine months and had left her children “with a stranger”. Child Safety noted WKU had “abandoned” her children in similar circumstances in April 2005 when she was incarcerated. Child Safety assessed the harm to her children was “severe”, the pattern of harm was “escalating”, that WKU’s behaviour “was out of control and violent” and that she was minimising the harm to the children. In light of the risk of harm and lack of any protective factors, WKU’s children remained in the care of Child Safety.
On 25 September 2007 and 28 November 2007 concerns were received that WKU was unable to provide a female child (infant) with appropriate safe care. She engaged in a pattern of long-standing domestic violence. WKU has not engaged with appropriate support services offered to her to address the child protection concerns. Following investigation and assessment it was found that WKU’s long term drug dependence resulted in the child (infant) being at unacceptable risk of emotional harm and physical harm. WKU’s engagement in domestic violence resulted in the child being at an unacceptable risk of physical and emotional harm. It was substantiated that there was a risk of physical harm and risk of emotional harm and the child was in need of protection.
In April 2008, Child Safety was notified of concerns WKU was leaving her four-month-old child in the care of her older children, aged eight and fourteen years, when she attended hospital for daily methadone treatment. When interviewed by Child Safety, WKU stated that she left her newborn and other child in the care of her fourteen-year-old when she went to hospital briefly in the mornings, and occasionally for a few hours in the afternoon if she was meeting a friend.
In August 2010, Child Safety was notified of concerns WKU’s ten-year-old child was left unattended at home in the care of her sixteen-year-old child, and that the child was not attending school regularly. Child Safety noted police had spoken with WKU in relation to the concerns, and therefore considered it was likely that “in knowledge of police involvement [WKU] will be more vigilant in ensuring her child is adequately supervised at all times”.
In July 2015 Child Safety was notified that one of WKU’s children had broken her foot while unsupervised, and in October 2016, Child Safety was notified that one of WKU’s children, who was home alone while WKU was at home, had fallen over and hit her head on concrete.
The Department noted that WKU’s criminal history reflects constant engagement in drug offending over an approximately 18-year period, relating to cannabis, opiates and restricted drugs, during the time WKU had children in her care. The Department further noted that her illicit drug use included intravenous drug use, which is highly dangerous and places users at greater risk of overdose and the contraction of blood borne infections through unsafe injecting practices. WKU has several convictions for failure to properly dispose of a needle and syringe, which on one occasion in 2007 involved her possessing a used, bloodied syringe in the boot of her vehicle. The Department submitted offending in this regard has the potential to place WKU and others at serious risk of harm or injury and demonstrates a concerning lack of regard for the safety and wellbeing of herself and others.
In March 2005, Child Safety was notified WKU “was residing with a known drug user who is domestically violent towards her” and that she was engaging in opiate use. In April 2005 police advised Child Safety that WKU had just been arrested in a drug affected state after being “on the run from police for a number of months” during which her children had not attended school or had a stable home.
In August 2007, Child Safety was notified WKU was engaging in drug use while pregnant, and that she had been using opiates for more than 10 years. The child was born in November 2007 and, as WKU had been on an opiate treatment program for the duration of her pregnancy, was born suffering drug withdrawals. Child Safety interviewed WKU soon after the child’s birth, where she stated Child Safety did not do their job properly, and that she had been given minimal information about how she was supposed to act protectively for the child. When her child was removed by Child Safety, WKU disputed that her baby was suffering withdrawals, and stated she was only using a small dose of opiates which would not be enough to harm her baby. Child Safety referred to WKU having a “long drug addiction, which she is still currently being treated for” and that the opiate treatment program was not a rehabilitation program but stabilised her drug use by ensuring she received a “clean and regular dose of opiates”. Child Safety further noted WKU had previously tried rehabilitation and failed, and that her drug addiction led to criminal behaviour and the neglect of her two older children.
At the hearing WKU stated that when she went to jail the children went into foster care. In regard to her minimising harm to children she stated that “at the time I was delusional from use of drugs and alcohol”. She said she could not change the past and that she is trying to make up for it and that she was crying out for help. She said it was a lot easier now and that she does not have to worry about harm, and does not have to worry about drugs and alcohol.
Material obtained from Child Safety showed that the latest referral was in regard to an employee of WKU’s with a history of child sex offences who was at her house when her young daughter was present and concerns that it was inappropriate that this person should have contact with WKU’s daughter.
Child Safety was first notified in November 2017 that WKU’s 9-year-old daughter was having ongoing unsupervised contact with a man who was a convicted child sex offender. That police immediately advised WKU that the man who was employed by her was a convicted child sex offender and that concerns were held for the safety of her daughter, to which WKU stated she was unaware of her employee’s offending history and she would take appropriate action to ensure her daughter’s safety. At first Child Safety was satisfied WKU’s child was safe as WKU had stopped unsupervised contact between her daughter and the employee, and that she had taken protective measures.
However, in January 2018, Child Safety was notified of concerns WKU was continuing to allow her daughter to have “ongoing and regular contact” with her employee, which Child Safety noted was particularly concerning as WKU’s daughter was close in age to the victim of the employee’s previous offending. When Child Safety questioned WKU in March 2018, she stated that her daughter and the employee sometimes went to the park together or played games such as "tiggy" together at her house, but she was always supervising. WKU further told Child Safety she didn’t feel the need to stop her daughter from having contact with the employee as, “if [he] had done something in the past it is the past” and that her daughter was persistent in wanting to spend time with her employee, Child Safety advised WKU that despite her daughter’s desire to spend time with her employee this was not keeping her child safe, and that Child Safety had significant concerns as her employee was exhibiting the same past grooming behaviours on her child.
Child Safety conducted a further interview with WKU in January 2019 in which they advised her of further concerns received in November 2018, in relation to an incident where the employee became angry at WKU’s daughter and her daughter’s friend and threw a speaker at them and pushed over the trampoline the girls were sitting in. WKU’s advised Child Safety she thought the girls were “teasing” her employee, who she described as a bit like a child, and that she should have stepped in. When asked if she had concerns about her employee being around the child, WKU stated that they played games together, but that she kept an eye on them and didn’t think they spent enough time together to be worried. Child Safety again advised WKU of the inappropriateness of her child and her employee forming a friendship, and that it was her responsibility as the adult to protect her child from her employee, particularly because her child was nearing the age of her employee’s victim.
WKU was interviewed in February 2019, with Child Safety noting they had been trying to get in contact with WKU but had been unsuccessful, at which time Child Safety advised WKU that contact between her child and her employee could not occur anymore, even with supervision. WKU was advised police were involved, and there were concerns her employee was grooming her child in the same manner as the last time he offended, and if Child Safety was advised again that her employee was having contact with her child, WKU would be considered unable to protect her child. At the time, Child Safety considered the child’s presentation raised significant concerns that grooming had taken place, and subsequently contacted police to request WKU’s child be interviewed, at which point Child Safety was advised WKU’s employee was about to be arrested.
WKU was asked about this at the hearing. She stated that it was in regard to contact with a convicted child sex offender, and that he was an employee of hers. She worked from home and he would come and collect pay, etc. She said he would talk to her daughter if he saw her in the yard. That once she was aware of the risk she cut her daughter off from him. That they told her he had been in a sexual relationship with a minor. When asked what changes she made WKU said she restricted access to the yard, and that the equipment was set up so he did not have to come in. When asked what she did once she was told he was exhibiting grooming behaviours she said she fired him.
WKU was asked if she recalled saying “if he did something wrong in the past that was the past” and said she could not recall. She said “I don’t know his life not in our lives that is given. The Department stated that WKU was told about the employee’s child offender status and after that he spent time with her child. WKU stated that she was there and so was her daughter’s older brother.
The Department noted that contact was first reported to Child Safety in November 2017 and it was noted that WKU had said that there had been no contact after March 2018. WKU said, “he doesn’t have anything to do with us anymore”. WKU was then referred to the Child Safety visit to her property in January 2019 when she confirmed that the person was still employed by her and that he was around for “maybe two hours a week”. WKU was asked if she could recall if he was working for her or that she said he was having contact but she kept an eye on them. She was asked if the interview with Child Safety raised concerns. WKU said she was not sure of the exact date but that he was sacked, and that contact with him when she found out what he was became non-existent. She then confirmed that she had been notified and continued to have contact.
WKU was then asked about the meeting with Child Safety in February 2019 when she was advised of police concerns that there was similar pattern of behaviour to his last grooming, and that contact between her daughter and the employee could not occur anymore. Child Safety stated that if they found that the person was having contact with WKU’s daughter past that day, then Child Safety would have to look for a safe place for her as WKU would be considered unable to protect her. It was noted that Child Safety had given WKU an information sheet about this. She was asked what her understanding of grooming was. She said groomers win trust so they can eventually have sex with children. She was asked if this raised concerns with her and whether she was worried. She said she was gratified they told her and that she would not want someone like that.
The Department noted that in the Child Safety investigation report it was stated that WKU seemed to be minimising the severity of the situation, not understanding why her daughter was not safe in the presence of the sex offender. She said that it was hard for her to understand that he was dangerous and that in the end he got fired. She was asked why she could not see him as dangerous even though Child Safety said he was putting her child at risk. WKU said it was because they did not get to see each other alone, and that they were always in a group when he saw her. She said some employees were like friends.
WKU was asked if the employee was working in schools and said he would have been before she knew who he was. She also confirmed she was working in schools but at that time did not need a blue card. WKU was asked if she made any wrong decisions allowing this person who had child sex offences to work for her. She said “I should have sacked him” and that he said the girl was 17. The Department noted that police told her these were child sex offences. She said that the story they gave her was nothing like what he said. She said she was not sure how it worked, that she thought 17 was adult, and that the police did not tell her any ages. The Department noted that throughout 2018 when Child Safety was telling her there was grooming behaviour, her child continued to have contact, and WKU said it was supervised and they were not alone.

The length of time that has passed since the event or conduct the subject of the information occurred;

(b)The domestic violence application was made in 2006 and Child Safety’s concerns were raised mostly between 2003 and 2007 though it appears there is a current investigation. So, a substantial period of time has passed since these matters were finalised.

(c)The Child Safety concern from 2017 to 2019 in regard to the employee with child sex convictions having contact with WKU’s daughter are relatively current.

The relevance of the information to employment, or carrying on a business, that involves or may involve children; and

The domestic violence application occurred as a result of an allegation of unlawful wounding which was acknowledged by WKU. There are substantiated multiple forms of harm caused by WKU to her children and while the Department acknowledged that the children were ultimately returned to her care, conduct of the nature alleged by WKU is entirely inconsistent with the behaviour expected to provide a protective environment for children, and it constituted a significant breach of her position of trust and authority. Adults who care for children are expected to ensure that they act in the best interests of children at all times, including protecting them from dangerous situations or activities which may be harmful to their physical, emotional or mental wellbeing.
The Department in its written submissions in regard to the Child Safety material stated that the material demonstrates that WKU has failed to act protectively towards her children over a prolonged period of time, constituting a fundamental abrogation of her maternal responsibilities which would have had a detrimental effect on her children. It stated that adults responsible for the care of children must be able to identify and give priority to the needs of children, even if it means subjugating their own interests. The material indicates WKU has consistently placed her own needs above the needs of her children, resulting in her children being physically and emotionally harmed, or placed at risk of such harm. The Department notes this is despite “ongoing intervention” by Child Safety, which in 2008 noted WKU appeared to acknowledge its concerns, but “ha[d] failed to make appropriate and significant long-term changes, which would adequately ensure [the children’s] protection without further intervention occurring”. The Department noted that further intervention from Child Safety occurred up until 2018.
The Department submitted at the hearing in regard to the Child Safety material generally that the material outlined the significant interactions between Child Safety and WKU between 2002 and 2018. It submitted that the concerns received by Child Safety largely related to WKU’s illicit drug use, her children’s exposure to domestic violence, neglect and “a pattern” of her failing to provide appropriate supervision for her children. Child Safety’s repeated intervention with WKU to ensure the safety and wellbeing of her children, including by way of police involvement and the imposition of several child protection orders, raises serious concerns as to her ability to provide a protective environment for children in her care.
(a)The Department submitted in regard to the exposure of her daughter to a known sex offender that WKU, as a parent, held a position of trust, responsibility and authority in relation to her child, and her failure to protect her child from having contact with a convicted sex offender, despite multiple warnings and instructions from Child Safety and police to protect her own child, constitutes a fundamental and significant breach of the position she had. It submitted the material produced from Child Safety further indicates WKU had contracted her employee, a convicted child sex offender, to clean schools, which was highly concerning to Child Safety and suggests WKU may have placed other children and young people at risk. The Department also noted that when Child Safety questioned WKU’s daughter in relation to the time she was spending with WKU’s employee, the child told Child safety WKU had told her she could not spend time alone with the employee “because Child Safety said so”. The Department submitted this, in conjunction with WKU’s interactions with Child Safety in relation to the concerns her child was spending time with a convicted child sex offender, raise significant concerns as to her understanding of what is required to provide children with a protective environment and act in their best interests. Child Safety considered WKU appeared to be “minimising the severity of the situation, not understanding why [her child] was not safe in the presence of [her employee]. While there is no evidence to suggest WKU’s child was sexually abused by WKU’s employee, the Department submitted her actions, repeated minimisation of the situation and continued lack of insight placed her child at unacceptable risk of harm.

Anything else relating to the information that the Tribunal reasonably believes is relevant to the assessment of the person

(d)There were no other matters to be considered in this regard.

Risk and Protective factors

In her application WKU stated that she runs a cleaning business that operated cleaning services at the local school and she has no contact with students. She stated that being unable to check her staff’s quality of work will affect the contract she has with the school which will put their and her financial well-being at risk. She said that she was ashamed of her past and did not discuss it with anyone and that her attitude towards law enforcement had taken a 180-degree turn and she has a lot of respect for the police now. She states that her children know that they are to be trusted and looked up to and are people they can go to for anything,
WKU stated in her life story that she was 50 years old and a single mother to 3 children. She stated her parents separated when she was 18 months old and she was left in her mother’s care. She says looking at photos and talking to people that knew her mother she gets the impression that “the party never stopped”. Her father fought in the courts and tried to get custody of her, even kidnapping her when she was two and taking her to hospital for necessary treatment. Her father had her on holidays and every other weekend until she was five when she and her mother moved to Northern NSW. Her mother had met another man and they moved initially to a large tract of land owned by multiple families where his ex-wife and children were. This was in a rain forest without modern facilities. WKU states she was cared for by others especially when her mother weas hospitalised for a month. At that time, she realised her mother had a drinking problem.
Her mother and the man eventually bought their own block of land and they moved to that. This was an undeveloped block; they had a cow and calf and a dam and lived in a tent initially. They then built a two-room cabin. She says her mother and the male would argue a lot when they drank and that they had a volatile relationship and he would sometimes hit her mother when they were drinking and arguing. She says he started to sneak into her bed and touch her vagina while he put her hand on his penis. Her mother did not know this was going on and WKU did not tell her until she was 18. She said the worst was when her mother went to hospital again for about a month, she would wish for the school day to never end and take two hours walking home from the bus stop. If she was lucky, he would be in town still drinking, until he was so drunk he could not walk. She says she was glad when her mother came home as the sneaking into bed would rarely happen when she was home. WKU stated that between the ages of five to 12 the male in her words “put his filthy hands on me around 30 times”. She stated that after counselling she just pitied him now, whereas before, as a young adult she felt anger. She says this time when her mother came home, she had boxes and bottles of tablets for her manic depression (now known as bipolar disorder). She said her mother was hospitalised every 12-18 months for four to six weeks. WKU and her mother moved to town after she had a fall off her horse and her mother had difficulty getting her to hospital. By the time WKU was 12 the male partner of her mother had knocked out one of her front teeth and they moved back to Melbourne.
Starting school in Melbourne, WKU says, she was very scared and kept to herself. She met someone in term two who seemed as insecure as her and they started to become good friends. She was invited to stay at the girl’s place one night and the girl’s father came after they had fallen asleep into the room and put a hand into her underwear. She pushed him away and started to cry and said she wanted to go home. He took her into the lounge and tried to enter her from behind on the floor. He became remorseful and begged her not to tell anyone or her friend would be taken away from him. She and the girl did not talk on the way to school and she knew he was doing something similar or worse to her and she never saw her again. Within a couple of months her mother had another turn and was arrested for doing “something” in public as a result of which she was continually approached by students to bring drugs to school. She left school at thirteen.
She stated that her children do not have any physical or mental issues and that she is not currently in a relationship. WKU stated that she has three wonderful children who motivate her to do better. Her eldest son, who is 26, lives with her and works in the cleaning business. Her 12-year-old daughter lives with her and attends the local high school. Her 20-year-old daughter is doing an apprenticeship in the city with an electrician. WKU has been living in the same rental property for 13 years and has supported herself and the children for the past 10 years with the cleaning business. She employs two full time and five part time employees. She has been drug- and alcohol-free in this time and cannot see herself ever becoming the person she was before her youngest daughter was born. She says “it has taken a lot of visits to counsellors and doctors to help me forgive, let go of the past and take control of my destiny”.
She says her business is successful due to customer satisfaction, word of mouth, their reliability, and great employees who are willing to go the extra mile. She is proud of what she has achieved and hopes to pass her knowledge on to her son, so that maybe someday he could take the reins. Her drive comes from her desire to buy a house for her children and not wanting to rely on anyone else for security. She doubts that she will ever be in a relationship again. She states that her youngest daughter’s father was her last partner and his death affected not only her but her children also. She has worked hard and always keeps busy to help with the pain. Her mother was living with them until a month ago (5 June 2021) when an opening in a nursing home became available. She says her mother’s doctor in NSW rang her 18 months ago and said she would have to come and get her or they would send her to an aged facility, so she did. She said that her mother’s condition went downhill very quickly due to her dementia and that she found it hard to work to look after her day to day. She said she works 60-80 hours a week keeping her cleaning business running.
WKU said she had a very unstable life up until her daughter was born 12 years ago. When her daughter was aged two, she started doing some part time cleaning with one of her neighbours, the neighbour left town and asked if she would like to do the two jobs on her own, and that was how she started her business. She named the business after one of her favourite childhood movies. She went into detail about the business that is run from her home with three sheds to store all of the equipment and the three cars and one van used in the business. Over the last nine years she has employed more than 100 staff because the workload increased rapidly. She says she has high expectations and if the customer is paying money, he should get exactly what he has paid for if not more. She says her reputation is paramount, and she randomly sends her staff to the doctors for drug and alcohol tests. She says she works in a mining region and if she did not test them, they would be tested by one of her customers. She states she provides services to banks, employment agencies, local council (she has had the dog pound contract for the past five years and recently won a public toilet cleaning contract, high school (she has not been attending personally), churches and the airport. Because she has been trained in trauma cleaning, the local police refer people to her who have had a death in the family or similar. She feels part of the community and intends to run her business till retirement. She has just bought an industrial block of land in town and plans to build a shed/office to run the business from. During Covid she had numerous schools contact her for Covid cleaning and some of these were 300 kms away. She states there are a lot of cleaning companies in the vicinity without the appropriate training.
WKU does not feel she is a threat to anyone and she would be happy to provide her phone number to people that knew her 10 years ago and know her now. (She states these people would say that she is amazing and she has come far.) Besides, she is getting tired of being the victim, as living a life of sin is so much harder than doing the right thing. She has been jailed for drink driving. She has been separated from her children; she has been homeless. She has been so physically sick that she wanted to die. She says: “I’ve put up with all the degeneration associated with that lifestyle and not only was I hurting myself I was hurting others”. The Department submitted that this reflects WKU’s continued deflection of blame onto others for her behaviour, an amount of self-victimisation, and an inability to take responsibility for her own actions.
WKU provided certificates she had obtained in regard to training and skills necessary for her cleaning business as well as some personal photos.
WKU provided an update to her life story a year later and noted that she now employs eight staff, two full time, four part time and two casuals. Some of her employees have been working with her for a number of years which WKU says shows the stability that she has kept in her life.
WKU states that there is some instability in her life in regard to her youngest daughter and that they have disputes about make-up, bedtime and clothes. She states that her daughter is very strong headed, and that she had been getting advice and help from the school counsellor. She is showing progress and WKU is happy she wants to try harder at school. Her son, who lives with her and her youngest daughter, is also doing well. He has bought himself a car and is enjoying more freedom rather than being reliant on her. He has “a good head on his shoulders” and works with her in the business at short notice if someone calls in sick. He helps around the house and recently built a chicken cage to protect from stray dogs. WKU tries to visit her mother two to three times a week because she has gone downhill.
WKU states that her life is fairly event-free apart from work. She spends down time, though there is not too much of it, walking her daughter’s dog while listening to self-help books. She has been doing some house decorating.
At the hearing WKU stated that there is a lot she feels badly about. That there were a lot of offences in relation to drugs between 1991 and 2009 and she confirmed she was using drugs the entire time. She said her drug and alcohol issues started when she was 16/17 and that she used alcohol, dope, speed, heroin, “anything that was there”. When asked if there was any reason she started using drugs she stated it was to block out her feelings. She confirmed she injected speed and heroin and started when she was 25 years old. She said she finished 15 years ago when pregnant with her youngest daughter. She confirmed that she was using drugs when she had her first two children. When asked if her child was born in 2007 with drug withdrawal she said “not as far as I know”. She said she was not using drugs while pregnant. She said she was on an opiate treatment program and that she had gone on that as it was suggested to ensure a healthy baby. She confirmed she was probably using daily prior to her pregnancy.
WKU later stated that when she found out she was pregnant she went to the Alcohol Tobacco and Other Drug Service’s (‘ATODS’) opiate treatment, and that she saw counsellors and that they helped her get off drugs. WKU later confirmed the ATODS course talked about drugs and alcohol and it was for addiction in general, and that the counselling helped with any thoughts of addiction. She stated that she still participates in ATODS treatments in the nearest city once every three months. WKU stated that she has learnt to be aware of things that set her off: that make her think of drugs or alcohol. She states that she can ring for help or do things that make her feel good and that it has taken her a long time to learn to manage herself well. When asked what her triggers were for wanting to drink or use drugs WKU stated stress, a death in the family, money worries and seeing children unhappy, and that she does not act in response to those the way she used to. When asked what strategies she has learnt from ATODS treatment WKU stated that she can ring and talk to a friend, as this will pass, and do something else she enjoys that does not relate to drugs or alcohol.
When WKU was being taken through some of her offences, she stated “I am embarrassed and sorry for what I have done. I know I was a horrible person and that I am not that person anymore”. WKU stated in her submissions to the Tribunal that “I know I have done lot of bad things”. She stated that she was going to rehabilitation at the moment, and she is going to be a cleaner until the day she retires. The blue card is basically for cleaning. She knows she has hurt her children and others that she cares about, but will be on the “straight and narrow”. She stated that she needs to be a good person in her town, that she is trying to be the best person she can be, and that her interest is only in doing her job and she has no interest in doing other child-related work. She states that she is registered with ATODS and that she goes to the city or has video conferences every three months.
The Department submitted in regard to domestic violence that although the material indicates WKU was both a victim and perpetrator of domestic violence, the WWC Act requires that in considering whether to allow a person to work with children, the best interests of children must take priority,[23] and in this case, the material indicates WKU’s children suffered from significant exposure to domestic violence. It is widely accepted that there are multiple potential negative effects for children who witness domestic violence, including problems with aggressive and delinquent behaviours. Research supports that children in domestically violent households may receive limited emotional nurturing from their parents due to their diminished emotional and physical availability which may inhibit healthy emotional development.
[23]YR v Director-General, Department of Justice and Attorney-General [2021] QCAT 139 [17].
The Department submitted generally in regard to WKU’s life story that she had indicated she had been drug- and alcohol-free for the past 10 years and states “she cannot see herself ever becoming the person she was before [her youngest child] was born”. The Department submitted that WKU’s material as a whole reflects a concerning lack of insight into her behaviours and the consequences of those behaviours on others, namely her children. It submitted that the importance of an applicant possessing insight was noted by the former Children’s Services Tribunal in Re TAA,[24] where the Tribunal observed that
the issue of insight into the harm caused in these incidents is a critical matter for the Tribunal, the Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent upon the adults around them having insight into their actions and the likely effect on children.[25]
[24][2006] QCST 11.
[25]at [97].

The Department submitted that the effect of issuing a blue card is that WKU is able to work in any child-related employment or conduct any child related business, supervised or unsupervised, regulated by the WWC Act, not just for the purpose for which WKU has sought the card. If issued with a blue card, WKU could work with children of any age, gender or vulnerability. The Tribunal has no power to issue a conditional blue card, and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business. The Department submitted that the Tribunal must consider the transferability of notices under the WWC Act when having regard to the best interests of children.
The Department acknowledged there are a number of competing human rights relevant to the decision before the Tribunal. The Department submitted these could include the human rights of WKU, her right to privacy and reputation (HR Act s 21), right to take part in public life (HR Act s 23), right to further vocational education and training (HR Act s 36(2), and her cultural rights (HR Act ss 27-28). There are also the rights of children, specifically the right of every child to “the protection that is needed by the child, and is in the child’s best interests, because of being a child” as provided in s 26(2) of the HR Act. The Department submitted that a decision that WKU’s case is an exceptional case will be nevertheless compatible with human rights. This is because, despite any limit the decision places on WKU’s human rights, the decision will be justified by the factors outlined in s 13 of the HR Act because it will have the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people which is itself a human right. Further, it stated that any limitation on WKU’s human rights is consistent with the object, purpose and paramount principle of the WWC Act, that is, the welfare and best interests of children are paramount.
The Department submitted that the decision before the Tribunal is not whether WKU can expand her business to include cleaning schools. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, WKU’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. The Department submitted that the object of the WWC Act and the principle that the welfare and best interests of a child are paramount support a precautionary approach to decision making in child-related employment matters. It submitted that overall, the material demonstrates WKU has consistently, and across a range of situations and contexts, failed to provide a protective environment for the children in her care, resulting in her children suffering physical and emotional harm. The Department submitted that there is nothing before the Tribunal to indicate WKU has addressed her issues with violence, drug addiction and other concerning behaviours, and accordingly her case remains an exceptional case such that it would not be in the best interests of children and young people for WKU to be issued with a blue card.
At the hearing the Department submitted the test is whether it is an exceptional case and that the Tribunal has to take the mandatory factors into account. In accordance with s 360 of the WWC Act the Tribunal must apply the paramount principle that children are to be protected from harm. It is not additional punishment; it is to put gates around children. It submitted that ultimately the issue of a blue card is not in the best interests of children, that there were no witness statements and no independent third parties confirming WKU’s statements, and that this is a risk factor. WKU has 90 convictions and a traffic history with drink driving. She also has a child protection history between 2002 and 2018. It submitted that the material produced shows drug use, neglect, and inadequate supervision. Child Safety and police were required to intervene in 2003 due to incarceration; in 2005 the children were abandoned; 2006 in remand; 2007 drug withdrawal. The Department notes that WKU accepts that her past behaviour resulted in harm to her children.
The Department noted that WKU’s drug use included intravenous drugs and that since 2009 there have been no offences. Prior to that there were 18 years of daily drug use. WKU went into rehabilitation through the opiate treatment program and ATODS. WKU is aware of her triggers and how to avoid them. The Department acknowledges that WKU has some insight in light of the extent of substance use and behaviours. The Department noted the absence of probative evidence in regard to risks for triggers.
Investigation in 2018 showed that WKU did not protect her child having contact with a convicted sex offender, and could not recall details of events. WKU, when told of the offence, said she cut contact then said she was supervising. She said she believed the employee’s story over police, she said she was not minimising risk. The Department says her material shows she is minimising and lacks insight into the situation. Insight is integral and lack of it is a risk factor for children suffering physical and emotional harm. WKU has not demonstrated she has acted on risk that could harm her children, she has not shown insight, and the Department remains of the view that this is an exceptional case.
In response to this WKU said that, when police told her about her employee, police said I thought child was 17. He does not work for me now. She is not trying to hurt children. She is just trying to do her work. The children are not there at school, her work is after hours. She is not that person anymore; she doesn’t do drugs anymore. She wants to succeed at business and know how to clean, and that when she was younger, she was a smart arse. She does not boast about jail. If she sees something not legal, she says she needs to report it. She is a different person; she is not who she was.

Discussion

WKU’s life story shows how she was neglected and sexually abused as a child and after leaving school at 13 years old she began a life of crime including property, drug and violence offences. Her life was characterised by constant drug use including narcotics and domestic violence. Her interactions with the police often resulted in charges of obstruction and assault. During that time, she had two children and there were often interventions by Child Safety. Around the time of her last pregnancy, she took steps to minimise the effect of drugs on that pregnancy by participating in the ATODS drug and alcohol program and she was receiving a maintenance dose of opiates. WKU also, through a friend, found a way of earning a legitimate living through cleaning and that grew into a business. She has not had a conviction since 2009 and says she is a different person to the once who was involved in crime, domestic violence and neglect and harm of her children. She applied for a blue card because she was cleaning schools and it was a requirement that she had a blue card to undertake the school cleaning work.
It is positive that WKU has been able to make a new life for herself as evidenced by the lack of engagement with police and the courts since 2009. WKU showed insight into the harm that she has caused others and detailed how, with the assistance of the ATODS program, she is aware of her triggers and has some strategies to deal with them. She did not, however, as noted by the Department, provide any independent evidence in regard to her participation in ATODS although it would appear to be noted in some of the Child Safety material nor character evidence from third parties that know her so there is little evidence in support of her assertion that she is a changed person.
I accept that she has changed her life in terms of no longer being involved in criminal activity and drugs and alcohol based on her oral evidence. There is one very concerning recent aspect of WKU’s life, however, concerning an employee who was a convicted sex offender and his interactions with her daughter. An adult who has the care of children must be able to ensure their protection and that is recognised in the paramount principle of the WWC Act. WKU did not ensure that her daughter was protected from the sex offender when alerted to his status apart from not allowing him to have unsupervised contact with her daughter. She was advised that her daughter was nearing the age of his victim and he was using similar grooming behaviour towards her that he used towards the victim. It was only when Child Safety informed WKU that if she did not stop contact between them that she would be taken not to be able to provide a protective environment and consideration would be given to removing her daughter that contact stopped. Child Safety had been at pains to make WKU aware of the issues of grooming and had provided her with information. Around the time that contact stopped her employee was arrested. I note that WKU confirmed that this person had been employed in the cleaning of schools. It also appeared that WKU earlier accepted a story told to her that the supposed victim in the child sex offences was 17 years old and that she considered this was okay as the person was not a minor. This was despite the police informing her that he had been convicted of child sex offences.
This raises two issues: WKU’s lack of insight into the need to provide a protective environment for her own child, and that as an employer she allowed someone with child sex offences to be employed by her to work in a school. While I am sure that WKU is doing everything she can to live an honest and law-abiding life she still shows a lack of appreciation of the requirements to ensure a protective environment for children in her care.
She says that she only needs the blue card for her cleaning business and that she has no intention of undertaking any other type of child-related occupation. As submitted by the Department blue cards are transferrable and the Tribunal cannot make them conditional in any way. So, if a blue card was issued to WKU, she would be able to undertake any regulated child related employment or business. Therefore I need to consider the best interests of children in circumstance where WKU was employed in or operating a child-related business to determine if this is an exceptional case where it would not be in the best interests of children for her to be issued with a blue card to be able to do so.
As mentioned as a result of the paramount principle I am not to take into account any effect on WKU or her business of her not being issued a blue card as the best interests and protection of children are paramount and that it is appropriate to take a precautionary approach in these cases. I also need to be satisfied on the balance of probabilities, having regard to the gravity of the consequences, and in this case, they are the effect on the best interests of children and their need for protection. On the one hand there is WKU’s history of offending, drug use, domestic violence and Child Safety issues and on the other is her testimony that she is not that person anymore and her lack of involvement with the courts in many years. While it is clear that WKU has changed her life dramatically, and this is positive, her lack of insight into the need for protection of her child with a known sex offender and her employment of him in a school environment weighs heavily against her in terms of her demonstrating insight into the needs of children for a protective environment and shows that her ability to do so is compromised.
I am satisfied that as a result this 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 to WKU and the decision of the Department is confirmed.
In regard to the HR Act I acknowledge that WKU’s rights have been limited by the making of this decision and that has been on the basis that the rights of children generally are paramount to her rights in accordance with the object of the WWC Act and those rights would be compromised if WKU were to be issued with a blue card.
There are matters disclosed in relation to children who have been subject to involvement with Child Safety and in accordance with s 189 the Child Protection Act 1999 (Qld) a person must not publish identifying information about any child who has been the subject of an investigation under that Act. To ensure that this requirement is met the reasons for this decision be subject to a non-publication order when published in accordance with s 66 of the QCAT Act.