XTN v Director-General, Department of Justice and Attorney-General - [2025] QCAT 12

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

XTN v Director-General, Department of Justice and Attorney-General [2025] QCAT 12

PARTIES:

XTN

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML092-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

8 January 2025

HEARING DATE:

27 February 2023

HEARD AT:

Ipswich

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Director-General, Department of Justice and Attorney-General that XTN’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case.

2. Publication of the name or any identifying information of XTN or any person associated with him 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 charged with rape of a minor – where applicant found not guilty of charge – where applicant has no other relevant criminal history – 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 Grindrod (No 2) (2008) WASCA 26
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 Lister (No 2) [2011] QCATA 87
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
LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16
RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331
Re TAA [2008] QCST 11
TNC v Chief Executive, Public Safety Business Agency [2015] QCAT 489
TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

Volkers v Commission for Children and Young People [2010] QCAT 243

WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190

APPEARANCES & REPRESENTATION:

Applicant:

XTN – self-represented

Respondent:

Ms Capper – in-house lawyer, for the Department

REASONS FOR DECISION

INTRODUCTION

XTN made application to enable him 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’). He received a negative notice and statement of reasons dated 3 March 2021 which meant that he was not eligible to work with children in Queensland. He 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 relevant information or conviction etc for a non-serious offence. Where the Department is aware of relevant information as is the case here the Department must issue a negative notice if the Department is aware of relevant information about the person and 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] In this case XTN was charged with a serious offence but the charge was dismissed so s 221 of the WWC Act applies. The decision under review is then whether XTN’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 [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 [41], 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, 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; or setting aside the original decision and returning it 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 [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 XTN, 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 [30].
[17]Chief Executive Officer Department of Child Protection v Scott(No 2) [2008] WASCA 171, Buss J at 109 (‘Scott (No 2)’).
[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 XTN 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 him 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 (‘Eales’).
[20]Ibid [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, XTN’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 XTN’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 XTN’s case

[21]HR Act ss 15-37.

The Paramount Principle

XTN in his application advised that he applied for a blue card when he was applying for a position in the fire brigade. The Department submitted that such considerations are not relevant in determining whether his case is an exceptional case. Given the paramount principle, such considerations must “yield” to the consideration of whether XTN 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 XTN as a result of not obtaining a blue card is of no relevance. Similarly, any benefit to children from having XTN being a fireman is not relevant if it is not in the best interests of children for him 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 XTN of him not obtaining a blue card nor the potential benefits to children of him 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 XTN 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

XTN’s criminal history contains one finalised charge of rape for which he was charged on 28 August 2010 the complainant to which was his 14-year-old step child, the charge proceeded to trial and XTN was found not guilty. The Department submitted that although the charge did not give rise to a conviction it is relevant for the Tribunal to consider the charge as the Tribunal is ultimately determining XTN’s eligibility to work with children. Information that is relevant to such an inquiry may be disclosed through information about incidents leading to charges being laid even if they do not lead to criminal convictions.[22] It is for the Tribunal to reason their way through the matters in s 226(2) and weigh the evidence before them to determine whether or not there is an exceptional case.[23] The Department submitted that the fact that the charge did not result in a conviction does not, of itself, mean that there is no elevation of risk to the welfare and best interests of children. It submitted that, by including charges in the mandatory statutory criteria, Parliament has determined that even where charges do not result in a conviction, they can and must be taken into account to provide a mechanism for the welfare and best interests of children to be protected, and reference was made to the explanatory notes to the WWC Act. It was noted that in a previous Blue Card matter, Volkers v Commission for Children and Young People and Child Guardian,[24] the Tribunal considered the relevance of charges against the applicant which did not result in conviction. The Member referred to the matter of Chief Executive Officer, Department for Child Protection vGrindrod (No 2)[25] and stated:
It is not the…Tribunal’s function…to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charges in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of future potential harm.
[22]LO v Director-General, Department of Justice and Attorney-General [2021] QCAT 16 [68].
[23]Ibid [52].
[24][2010] QCAT 243 (‘Volkers’).
[25](2008) WASCA 28 [84] (‘Grindrod (No 2)’).
The Department submitted similarly in another blue card matter, TNC v Chief-Executive, Public Safety Business Agency,[26] the Tribunal considered what weight ought to be afforded to charges, in that case the charges were either dismissed, withdrawn or following trial, a jury returned a verdict of not guilty.[27] the Member stated the following in relation to charges:
A charge is not the same as an allegation. Before a charge is brought consideration is given to the evidence available supporting the charge. This gives it more weight than an unscrutinised allegation. The legislation allows charges to be considered because parliament recognises this distinction and the difficulties of obtaining a conviction.[28]
[26][2015] QCAT 489 (‘TNC’).
[27]Ibid [82].
[28]Ibid [83].
That further, the Member in TNC noted the “difficulties associated with securing convictions for child sex offences is well documented and the dismissal of charges is not conclusive of the issues to be considered by the Tribunal”.[29] The Member further opined that it was not a matter for the Tribunal “to be satisfied on a balance of probabilities that the offences occurred” and specifically stated it was sufficient for the decision-maker to be satisfied “that the circumstances raise the possibility of a risk to children”[30] and in making the assessment of risk, the totality of the evidence was to be considered, not merely the charges.[31]
[29]Ibid [68].
[30]Ibid.
[31]Ibid [90].

The Department submitted that given XTN’s charge and the totality of evidence in this case, the circumstances raise the possibility of a risk to children such that it would not be in the best interests of children for XTN to be issued with a blue card.

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

While the offence XTN was charged with was a serious offence and a disqualifying one if convicted, he was found not guilty of the charge after a trial. The Department submitted that the classification of the offences as disqualifying reflects the seriousness with which Parliament considers such offending and its direct relevance to the question of whether XTN’s case is an exceptional case in which it would not be in the best interest of children for him to be issued with a blue card.

When the offence was committed or alleged to have been committed

The offence was alleged to have been committed on 28 August 2010 and went to trial in the District Court in December 2011. The Department noted that as pointed out by the Appeals Tribunal, the passage of time without further offending, or allegations of further offending, is not, of itself, conclusive that the risk of harm to children is reduced.[32] Further, The Department notes that in Volkers, the Tribunal held that “although the allegations relate to offences committed many years ago, they are of such repetitive and serious nature, that time does not detract from their seriousness.”[33] Consistent with that decision, the Department submitted that in the current matter, time does not detract from the seriousness of XTN’s alleged offending.

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

[32]Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 [55] (‘Lister (No 2)’).

[33]Volkers [65].

The Department provided details in regard to the offence that XTN was charged with. XTN was the boyfriend of the complainant child’s mother. The complainant child was 14 years old and she resided with her mother. XTN was also residing with the complainant child’s mother at the time of the alleged offence. On 28 August 2010 the complainant child attended a Child Protection and Investigation Unit (‘CPIU’) office with her mother and provided a statement to police. That morning the complainant child had been asleep on a mattress in the lounge room. She was laying on her stomach. She alleged that “she was awoken by XTN’s hand inside of her pyjama pants his fingers moved in and out of her vagina.” The complainant child stated that she told XTN to fuck off and he removed his hand. XTN is alleged to have sat at the end of the mattress and the complainant child asked him to leave. The complainant child alleged that XTN then leant across her stating he needed to grab something and she kicked him in the face, believing he was going to try and touch her again. The complainant child stated that a short time later she sent a text message to a friend and told them something had happened between her and XTN. The complainant child went to a friend’s house.
XTN’s recollection is that he called to the complainant child who was laying on a mattress in the lounge under two blankets while he was walking down the stairs and saw that she was awake. He approached her and asked if she wanted to the DVD before he had to return it. She did not respond and he pulled her ankle and she still did not respond and then did it again and she kicked him angrily. He puts his hands on hers to calm he down and leant across and picked up the DVD to be returned.
The complainant child stated she contacted her mother in the afternoon, and advised her what happened. The complainant child’s mother collected her from the friend’s address. She took her to a police station where the complainant child and her mother informed police of what was alleged to have happened. Arrangements were made for the complainant child and mother to attend another police station to take up with police from CPIU.
At approximately 8:00pm, police located XTN at a friend’s address and advised him of the allegations in relation to this matter. XTN declined to be formally interviewed in relation to the matter on the advice of a solicitor. He was arrested and transported to a watch house where he was charged in relation to the alleged offence. Police noted that XTN had no previous criminal or traffic history.

Relevance of offending to working with children

The Department submitted that XTN has been charged with an offence which is both serious and disqualifying under the WWC Act,[34] which was allegedly perpetrated against a child, his stepdaughter, whilst she was in his care. By designating the offence a disqualifying offence, Parliament has clearly demonstrated its relevance to employment, or carrying on a business, that involves or may involve children.

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

[34]WWC Act schedule 4.

XTN has not been convicted of any offence.

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

The Department filed information provided by the Director of Public Prosecutions as it related to XTN’s alleged offending.

Anything else relating to the commission, or alleged commission of the offences that is reasonably considered to be relevant

The Department noted that the Tribunal is not confined to considering only those matters in s 226(2) of the WWC Act. The Department submitted that in addition to the matters outlined above, there are a number of other matters that are relevant to determining whether XTN’s case is an exceptional case.
The Department submitted that the charges against XTN were committed to trial in the District Court of Queensland in 2011. That the material indicates that this occurred by way of committal hearing. Being committed to trial by way of committal hearing, the Department notes that a presiding Magistrate, having read the material and with the benefit of hearing any evidence and cross examination of witnesses, must have determined that there was a prima facie case in relation to the charge. That is, the Magistrate must have been satisfied that there was sufficient evidence to establish each element of the offence and that a jury, properly instructed could convict XTN of the offence. I note from the material at BCS-170 that the defence conceded that there was a prima facie case at the committal hearing and the Magistrate was not therefore required to weigh up the evidence.
The Department confirmed that the Office of the Director of Public Prosecutions (‘ODPP’) presented a single count indictment during the 8 July 2011 sittings. The ODPP’s guidelines dictate that the prosecution process should only be continued post-committal if there are reasonable prospects of a conviction before a jury and the public interest requires a prosecution. The Department submitted that in circumstances where the charge against XTN proceeded to trial it must have been determined by the ODPP, that there was a prima facie case, reasonable prospects of success and that there was a public interest in proceeding. XTN submits that BCS-139 to BCS-153 where the investigating senior constable is being cross-examined during the committal hearing shows that he did not conduct investigations properly, instead to do enquiry with mother or complainant child, he just assumed everything, when the complainant’s mother had any concerns or she tried to hand over social media chat history papers to him he did not bother to accept them or look into the matter or make a note in a police diary, per BCS-141 lines 40 to 60 and BCS-143 line 20 to 51.
The Department notes that XTN’s material places considerable emphasis upon the fact that he was found “not guilty by Honourable Court and jury”. The Department accepts that the jury verdict indicates that the offence was not proved to the criminal standard of beyond reasonable doubt. The Department submitted that it is clear, however, that the jury verdict does not determine the matter. To adopt the wording of the Member in TNC, such verdicts are “not conclusive of the issues to be determined by the Tribunal.”[35] The Department submitted that if it were otherwise the relevant legislation to be applied would be very different, and the Tribunal would not be required to consider these charges.
[35]TNC [68].
The Department submitted that the circumstances surrounding the alleged commission of the offence must be examined for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of XTN’s alleged criminal conduct, and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.[36] It submitted that the issue in these proceedings is the probative value of the evidence and the evaluation of the risk based upon those facts.
[36]Re Minster of Immigration and Ethnic Affairs v Agazio Daniele [1981] FCA 212 [358].
The Department submitted that XTN was alleged to have committed the offence against the 14 year old complainant child while she was under his care. He therefore held a position of trust and authority and his alleged behaviour, if it occurred, would have constituted a gross breach of his responsibility to ensure the physical and emotional needs of the child in his care were met and that protection of children and young people from abuse by people in a position of trust or authority is a consideration of utmost importance in an assessment of a person’s eligibility for child related employment.
The Department submitted that, when considering charges, it is not a matter for the Tribunal to be satisfied on a balance of probabilities that the offences occurred.[37] Rather, it is sufficient for the Tribunal to be satisfied “that the circumstances raise the possibility of a risk to children”[38] and in making the assessment of risk, the totality of the evidence is to be considered, not merely the charges.[39] I note that the decision of Eales cited earlier by the Department shows that there is no requirement for there to be an unacceptable level of risk of harm.
[37]TNC [89].
[38]Ibid.
[39]Ibid [90].
The Department asserted that the Tribunal must assess whether XTN has provided sufficient evidence to displace the possibility of future risk to children and that the assessment of risk can only be conducted on the basis of the evidence before it, including the limitations of the evidence adduced by XTN. The Department submitted that this includes the sworn statements made to the police and that as the Appeals Tribunal has previously made clear, the “fact that the authors of the statements have not been cross-examined will affect what weight should be placed on them but not render them irrelevant. Even untested allegations made in sworn statements to the police bear on the question whether this is an exceptional case.”[40]
[40]Lister (No 2) [32].
I note that as submitted by the Department above neither party bears an onus of proof in these matters. It is for the Tribunal to make its decision on the basis of the evidence before it on the balance of probabilities and while it is for XTN to provide evidence that may constitute protective factors or obviate risk factors he has no onus of proof and nor does the Department.
The Department submitted that the allegations, at their highest, suggest XTN intentionally violated the personal boundaries of his stepdaughter and disregarded her right to feel safe and free from being violated. At its lowest, the evidence suggests XTN made his stepdaughter feel uncomfortable by violating her personal space and failing to recognise she was uncomfortable. In either case, the Department contended that the alleged behaviour raises question about his suitability to be entrusted with the care of children and young people.
XTN submitted that the Department keep assuming circumstances in the most horrific way, where asking an angry child if she wants to watch a movie that she could not watch last night or touching her foot to convince her to response is considered a sexual crime. In regard to what the evidence suggests, XTN states we are considering her fabricated copy-pasted story from her mother’s childhood trauma by child and this is not evidence. He notes in his statement that the child is now 24 and living in his house and asked why anyone would start to live with someone comfortably if they have an actual issue from the past.
The Department submitted in relation to the circumstances of the offence that it is not the function of the Tribunal to adjudicate whether XTN is, in fact and law, guilty or not guilty of the charge in question. Rather, the relevant function involves an analysis and evaluation of risk, and the likely prevention of future potential harm, in determining such risk, it is still necessary for the Tribunal to rely partly on facts and party on reasonable suspicions.[41] Further, the Tribunal may, and indeed must, go into the circumstances of the alleged offending behaviour.[42]
[41]Scott (No 2) [84], [85].
[42]WJ v Chief Executive Officer, Public Safety Business Agency [2015] QCATA 190 [80] (‘WJ’).
The Department submitted that the factors which bear upon risk and which should be taken into account, include, for example:
(a)The relevant factual circumstances of the offence;
(b)The apparent strength or weakness of the case against XTN in relation to the non-conviction charge in question;
(c)The degree of seriousness of any future risk to children if XTN were to engage in child related employment; and
(d)The likelihood of any such risk materialising.[43]
[43]Scott (No 2) [84], [85]; Grindrod (No 2).
The Department recognised that XTN denies the substantive allegations but nonetheless the conduct which he accepts indicates a propensity to act impulsively and in his own interests without regard for others, in this instance the complainant child. During a pre-text call, recorded after the alleged incident, XTN stated to the complainant child “I did misbehave with you… I pulled your leg”. At one point during the call the complainant child called XTN “a lying pig” to which XTN responded, “Mmm I’m afraid you are.” In defending accusations levelled against him, XTN’s responses to the allegations were preoccupied with declarations of innocence and criticism of the complainant child, including “it’s none of your business to ask me anything.”[44]
[44]BCS-109.
XTN submitted in regard to the pre-text phone call that he could not remember properly as it happened 13 years ago. I note that he did not have access to the material on that part of the file. He stated that it was a sudden call from the complainant child under the supervision of the police. He stated he has a blurry memory the child was trying to convince him of something by her smart talk, as she knew he does not have good knowledge of English and when he does not understand something most of the time he says he says “ok” or “yes”. He would shake his head or fake laugh to cover his embarrassment. He can only remember she was trying to take advantage of his weakness and she did not succeed, but she got exposed when after irritation he said something about he knew about her pregnancy and other matters on call. Then he thought she was scared, he may have revealed her drugs or something, so he thinks she cut the call by saying “its none of your business to ask me anything” as she knew the police were recording their whole conversation.
I confirm that when XTN raised issues about her being pregnant the complainant child stated “you know what I did with XXX is none of your business” and then he made the statement mentioned by the Department above.
At trial, XTN conceded that he pulled the leg of the complainant child multiple times, “to see if she wanted to watch it (a borrowed DVD) or if she wanted me to return the movie”[45] his actions angered the complainant child, so in response he placed his hands on her hands and asked her what was wrong. At the Tribunal hearing XTN was asked if he would change anything about his conduct (that is his conduct he testified on at the trial), to which he responded he would not. The Department submitted putting aside XTN’s bizarre assertions. His conduct indicates a disregard for the complainant child, and suggests he acted in an inappropriate manner and failed to engage in socially acceptable conduct with a child. It submitted that the material further raises concerns about XTN’s ability to respect personal boundaries and another person’s right to feel safe from fear of being violated against their will. Further, the fact XTN maintained that there was nothing he would change about his conduct raises further questions as to whether it is in the best interests of children for XTN to be issued with a blue card.
[45]Transcript of The Queen v XTN (Day 1) 5 December 2011 BCS-197.
XTN submitted that there is nothing he can change if the child already planned to lie to kick him out of the house, he stated his approach was only caring, but the Department’s point of view is only an assumption on the basis of the child’s fabricated story. I note that in his evidence at the hearing XTN, when asked to reflect on the incident and how he went about getting the DVD concerned, whether he would do anything differently regarding his conduct towards her in that particular interaction, replied “Yes if it happened today I would not interfere I would be very cautious in talking to people about anything.”
The Department notes that the circumstances of the alleged commission of the offence must be examined for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of XTN’s alleged criminal conduct and not for the purpose of assessing the propriety of the conviction or fairness of the trial. It notes that the issue in these proceedings is the probative value of the evidence of similar incidents and the evaluation of risk based upon those facts.[46] The Department submitted that the Tribunal’s task is not to seek to prove whether the alleged offences occurred but whether there is a real risk of substantial harm posed.[47] As to the risk of “harm” that may be occasioned to children, harm to a child, is any detrimental effect of a significant nature of the child’s psychological, or emotional well-being and it is immaterial how the harm is caused. In this regard, harm can be caused by physical, psychological or emotional abuse, neglect, sexual abuse or exploitation.[48] The Department submitted that, given XTN’s charge and the totality of evidence in this case, the Tribunal could be satisfied there is a real risk of substantial harm posed.[49]
[46]Purnell v Medical Board of Queensland [1999] 1 Qd R 362 at 368-369.
[47]WJ [80].
[48]Child Protection Act1999 (Qld) s 9.
[49]WJ [80].
The Department notes that XTN maintains the charge was “totally baseless, false and untrue” and he was “ultimately vindicated by a jury being found not guilty on all charges.” XTN further asserts that the District Court Judge at trial made statements to the effect, “there was no evidence to support the allegations. …the Court could not believe the allegations of the complainant.” That at the hearing, XTN proffered a basis for which the complaint was made, namely that she had ‘conspired’ with friends to make the complaint “to get me out of the house.” In support of XTN’s contention that the allegations of child sex offences against him were fabricated, he proffered a series of elaborate claims regarding the complainant child’s engagement in substance use and sexual activity. The Department accepts that if true, these allegations may identify a motive for the complainant child to lie. In the Department’s submission, however, the various claims made by XTN are either inconsistent with the evidence filed in the proceedings, inconsistent with the oral evidence provided by his witnesses, not supported by any evidence other than XTN’s assertions, or are illogical and unconvincing.

The Department submits that the transcript from the Committal Hearing suggests the complainant’s mother discovered the complainant child’s chat history from her Bebo account, sometime between 28 August 2010, when the complaint was made to police, and the committal hearing, which proceeded on 6 April 2011. It submits that it was not until she discovered her daughter’s chat history that she had any idea her daughter may have been engaging in drug use or sexual activity. During her oral testimony, the complainant’s mother confirmed that it was not until she discovered the chat history that she or XTN thought that there was any possibility the complainant could be pregnant or using illicit substances. The Department refers to a document tendered by XTN for the hearing which reflects screen shots of a Bebo conversation between “Nxxx” and “Shaney” which were exchanged on 2 May 2010 which he confirmed during his oral evidence at the hearing was the social media history referred to by him and the complainant’s mother referred to in their written evidence. The Department submitted that, the chat history, at its highest, reflects the complainant child was trying to buy cannabis over Bebo from her friend and that her pregnancy fears, which she held at one time, were misplaced.
The Department states in his life story XTN contends, “I found out about her activities through the social media chat” and this social media chat history was discovered “during the trial we (I and the complainant’s mother)… she thought she was pregnant… she admitted to consuming drugs and setting me up into fake case.” XTN, during his oral evidence, asserted at the time of the alleged incident, “I was pretty sure that she was taking drugs and that she was pregnant… I overheard her talking to her friends.” XTN maintained that these purported conversations, in which she voiced suicidal ideations, taking drugs, and falling pregnant, occurred about “a month and a half” prior to the complaint to police in August 2010. XTN conceded that suicide, pregnancy and drug use were all very serious topics for a fourteen-year-old child to be discussing with her friends. Nonetheless, he asserted during his oral evidence that he confronted the child about these matters, to ascertain if she was telling the truth. This purported conversation occurred approximately fourteen days prior to the complaint being made to police.
The Department contended that accepting for the moment that XTN did overhear these discussions between the complainant child and her friends, it beggars belief that in his mind, the most appropriate course was “to talk to her (the complainant child)…to confirm with her the true story… she used to give a slightly different story to her friends.” Noting he had a strained relationship with the complainant child, XTN was asked whether he agreed it would have been more appropriate for him to convey these matters to the complainant child’s mother, and if he required to arrange external intervention for the complainant child. XTN then strayed from his earlier oral evidence, asserting that, “actually, when I found out about her taking drugs, I did tell her mother about it.”
In the Department’s submission, the evidence before the Tribunal does not support XTN’s assertion that, at the time of the alleged incident, he was aware the complainant child was engaging in drug use or sexual activity. The weight of evidence supports the fact that XTN and the complainant child’s mother only became aware of the complainant child’s purported engagement in these activities after the complaint was made to police. XTN’s assertion that the complainant child was motivated to falsify the allegations because she was engaging in drug use and/or pregnant, in the Department’s submission, is not supported by the evidence. I note that the transcript of the second pretext call clearly shows that XTN had some knowledge in regard to the complainant child being pregnant prior to the incident on 28 August 2010.[50]
[50]BCS-109.
XTN stated in regard to the Bebo chat evidence before the Tribunal that all social media evidence was recovered after the alleged incident, most of the evidence was dated pre-incident, there was no point in printing or saving them before the incident as he could not see the future and if someone was going to lie, these four pages before the Tribunal only proved 1) the child was pregnant, 2) the child was in contact with shady friends 3) the child was looking for drugs, and 4) sexual activity as the child was pregnant. XTN notes that at BCS-141 lines 40 to 43 and BCS-156 lines 40 to 43 the barrister kept mentioning Bebo, MSN and Facebook social media chat records because he, XTN, was able to recover some pre-alleged incident social media chat history from MSN live chat room and Facebook from his laptop. That is why the barrister mentioned them, as chat history for all three platforms was submitted in the court before trial.
The Department noted that at the Tribunal hearing, XTN made claims that the complainant child had disclosed to her grandmother and aunty that she had fabricated the allegations against him. He conceded that he had not filed any material from them and when asked why he said “the aunty had passed away from cancer and the grandmother, she is a patient of dementia, it is not worth having that conversation.” The Department submitted that again, other than XTN saying so, there is little in the way of independent evidence to support his assertions. The Department noted that the complainant child’s mother was cross-examined at the Tribunal hearing. She confirmed that her daughter did reside with her grandmother for short period after the trial, which concluded in December 2011. She confirmed that whilst her daughter was residing with her mother, she was very close with her daughter and her mother. She accepted that “had” her daughter stated to her grandmother that she fabricated the allegations, “yes, my mother would have told me”. Nonetheless, she confirmed that at no time had her mother made any representations of this kind, nor had her daughter reneged the allegations she made against XTN. In the Department’s submission, the evidence before the Tribunal does not support XTN’s assertion that the complainant child told her grandmother and/or aunty that she had fabricated the allegations.
XTN submitted that at BCS-163 lines 30 to 50, the complainant child indicated to her grandmother “she wishes to not go on anymore” and this is what her grandmother told her mother two months before the trial. He also submitted BCS-162 lines 40 to 45 conversations with the complainant child’s mother in which she asked her what she wanted to happen out of this “complaint” and she said “I want life to go back to the way they were before”. I note that at BCS-163 line 1 the mother states that she thought the complainant child was referring to back to when her father and her were together. XTN submitted that the aunty died five years ago, that she was never part of the trial, but she mentioned at one of her grandchildren’s birthday parties the “child told her she (child) made that up. She is full of shit, and she wants to end this.” He said he could not get aunty to be part of the trial as he was not sure if it was too late to add her as evidence as the trial was already listed and about to begin in few days.
XTN submitted the complainant child’s intention was to get him out of the house by lying to her mother, as he was too annoying, interrupting her from seeing her friends, and he did not welcome or talk to the complainant child’s shady friends nicely and always gave them “go away” looks. He also started to ask the complainant child questions and tried to guide her to talk with her mother and advise her not to do wrong things, she and her friends hated him for keeping an eye on them, and the complainant child never thought that her mother would involve police in the very first stage.
The Department noted that during his oral evidence XTN confirmed that from the date the complaint was made to police, until the complainant child turned eighteen, he was not permitted to reside with the complainant child’s mother or her children. XTN confirmed this was for a period of approximately five years. This was accepted by the complainant child’s mother during her oral evidence. The complainant child’s mother accepted that she formed the view it would be in the best interest of her daughter, the complainant, to live separately from XTN until her daughter turned eighteen. She accepted that there were residual concerns. Should her daughter reside with XTN prior to her turning eighteen, it may give rise to further allegations. In the Department’s view, the complainant child’s mother’s concerns are compelling, and weight is afforded to her concerns that she believed XTN and her daughter should live separately as a result of the complaint made to police. I note that in her oral evidence when it was put to her that XTN had said that she was concerned that the complainant child might make up another allegation if they resumed living together, she replied “at the time yes.” I find that the mother separated XTN and the complainant child having regard to the adverse relationship between them and the possibility of further allegations having regard to her evidence.
The Department submitted that given the analysis set out above, the Tribunal should find that XTN’s assertions that the allegations against him were malicious and were fabricated are not supported by the evidence before the Tribunal. In the absence of compelling evidence supporting XTN’s claims, and consistent with the principle that the welfare and best interests of the child are paramount, the Department submitted that there is no basis for the Tribunal to conclude that the children’s allegations made during the police interviews were made maliciously or were fabricated. Accordingly, in the Department’s submission, the Tribunal should closely consider the allegations made by the complainant child, and the allegations made in the other sworn statements filed in the proceedings. In the Department’s submission these allegations are directly relevant to the determination to be made by the Tribunal in these proceedings and, as noted by the Appeals Tribunal, “bear on the question whether this is an exceptional case.”[51]
[51]Lister (No 2) [32].
The Department noted that the effect of issuing a blue card is that XTN 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 he has sought the card. Further if issued the blue card XTN could work with children of any age, gender or vulnerability. It noted that the Tribunal has no power to issue a conditional blue card[52] and once issued, a blue card is unconditional and fully transferrable across all areas of regulated employment and business.
[52]RPG v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 331 [27].
The Department acknowledges that there are a number of competing human rights relevant to the decision before the Tribunal. These include the human rights of XTN, which could include his 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 cultural rights (HR Act ss 27-28). There are also the human 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. Furthermore, the Department submits, any limitation on XTN’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 XTN should be permitted to pursue his career objectives. The decision before the Tribunal is whether, having regard to the paramount principle under the WWC Act, XTN’s case is an exceptional case in which it would not be in the best interest of children for him 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 interest of children are paramount support a precautionary approach to decision-making in child-related employment matters. XTN has a finalised charge for rape, the complainant to which was his 14-year-old stepdaughter, The Department acknowledges that XTN was found not guilty, but submits that this is not conclusive of the matters to be determined by the Tribunal and the Tribunal is not required to determine whether the offences occurred. In the Department’s submission, based on the totality of the evidence before it, the Tribunal can be satisfied that the circumstances raise the possibility of a risk to children, and that XTN’s case is an exceptional case such that it is not in the best interests of children for him to be issued with a blue card.

Discussion

XTN has one charge of rape in respect of his 14-year-old stepdaughter for which he was found not guilty. I accept that the Tribunal is required to consider this charge and the surrounding circumstances in respect of XTN and the complainant child to determine his eligibility for a blue card in accordance with s 221 and s 226 of the WWC Act. I note the cases of Volkers and TNC which show how the Tribunal has approached applications where there have been charges which have not resulted in convictions. Both of those cases involved sporting professional trainers one in swimming and another in tennis who had long histories of allegations with similar facts which gave the Tribunal comfort in making adverse findings in regard to the applicant. This case involves a single allegation by one complainant.
The Department made submissions that XTN’s explanation as to why the complainant child fabricated her allegation should not be accepted and that as result the Tribunal should find there is no reason to accept that the allegations were made maliciously or fabricated. XTN made submissions in response and I have also made some comments in report to the Department’s submissions above. The Tribunal does not accept the Department’s analysis. XTN’s explanation may or not be accurate but that does not have a bearing on whether the allegation is true or not. There is no element of motivation in regard to these matters. The question is whether or not I find that, based on the charge XTN raped the complainant child, this is an exceptional case and it would not be in the best interest of children for him to be issued a blue card, firstly, and then whether in the circumstances there are other grounds which bear on his suitability for a blue card.
In terms of the burden of proof I must have regard to the paramount principle and I am required to be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there was an exceptional case. Therefore as the consequences of my decision would be the issue of a blue card to XTN enabling him to work with children the burden, in particular having regard to the offence in question being a disqualifying offence, should be high to ensure children’s interests are protected.
It is clear from the evidence at the trial and at the Tribunal hearing that the allegation made by the complainant child mirrored a sexual assault which her mother was subject to as a child and which the complainant child was aware of.[53] This issue was raised by XTN in his submissions describing the allegation as a copy-paste from her mother’s sexual assault. The complainant child also alleged that she had kicked XTN in the face and caused him an injury. There was no evidence to support that allegation. The arresting police officer confirmed that XTN had no injuries.[54] The Department did not make submissions in regard to these matters, relying solely on discrediting XTN’s submissions in regard to the complainant child’s motivation for making the allegation. The unlikelihood that XTN would sexually assault the complainant child in the same way her mother was assaulted weighs heavily against her as does the fact that one part of her allegation was shown to be untrue. For these reasons I am not persuaded of the likelihood that XTN raped the complainant child and I do consider that this charge raises concerns in regard to XTN being a risk to children. I am not satisfied that based on the charge that XTN raped the complainant, and that this is an exceptional case and it would not be in the best interest of children for XTN to be issued a blue card.
[53]BCS-159.
[54]BCS-153.
The Department noted that XTN’s behaviour made the complainant child feel uncomfortable by violating her personal space and failing to recognise she was uncomfortable and that this was also a ground to be considered in whether it was in the best interests of children for him to be issued a blue card. XTN accepted that he had shaken the leg of the complainant child to try to get a response to his questions in regard to whether she wished to watch a particular DVD when she had kicked him after that he had placed his hands on her hands and asked her what was wrong.[55] The Department submitted that XTN when asked at the Tribunal hearing stated at he would not change anything in regard to what he had done. I note that he later stated that if the circumstances arose again he would not have touched her. I also note that as early as the pretext call XTN apologised for pulling the complainant child’s leg.[56] At that time XTN had been living in the household with the complainant child and her mother for nearly two years and may have assumed that his behaviour was acceptable as a result. I am sure now that he is well aware of the boundaries in regard to touching others in similar circumstances and would not be likely to make the mistake of breaching those boundaries and causing discomfort again. While XTN did cause the complainant child discomfort by touching her leg I am satisfied that he would not be likely to do this again having regard to his own awareness of its inappropriateness having regard to his apology and statement he would not have touched her. I am not satisfied that on the basis of XTN’s pulling of the complainant child’s leg and any other incidental contact during the alleged incident shows that this is an exceptional case and it is not in the best interests of children for him to be issued a blue card.
[55]BCS-198.
[56]BCS-101.
There are no further matters for consideration under s 226 of the WWC Act in terms of whether this is an exceptional case. On that basis there is no evidence proven to the Tribunal on the balance of probabilities to find that this is an exceptional case and that it would not be in the best interests of children for XTN to be issued a blue card.
In regard to the HR Act XTN has obtained his desired outcome so his rights have been upheld. The rights of children generally have also been upheld because I have found that there is no evidence that it is in the best interests of children for XTN not to be issued with a blue card.
The order of the Tribunal is that the decision of the Department that XTN’s case is “exceptional”, within the meaning of s 221 of the WWC Act is set aside and replaced with the Tribunal’s decision that this is no “exceptional” case.
The reasons are de-identified in accordance with the fact that evidence has been filed which is subject to s 93A of the Evidence Act 1977 (Qld) subject to s 93AC and an order is made to ensure that the identity of the complainant child is protected.