QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Director-General, Department of Justice and Attorney-General v MAP [2022] QCATA 34	
PARTIES:	director-general, department of justice and attorney-general	

(applicant/appellant)	

	v	
	map	

(respondent)	

APPLICATION NO/S:	APL158-20	
ORIGINATING APPLICATION NO/S:	CML155-19	
MATTER TYPE:	Appeals	
DELIVERED ON:	7 March 2022	
HEARING DATE:	9 March 2021	
HEARD AT:	Brisbane	
DECISION OF:	Senior Member Howard, Presiding
Member Browne
	
ORDERS:	1.	The appeal is  allowed.
2.	The Tribunal’s decision of 15 May 2020 that there is no exceptional case in respect of MAP is set aside.
3.	The application to review the decision of the Director-General, Department of Justice and Attorney-General dated 19 March 2019 to refuse to cancel the negative notice issued to MAP is remitted back to the Tribunal, differently constituted, for reconsideration.
THE APPEAL TRIBUNAL DIRECTS THAT:
4.	The application is listed for a Directions Hearing before the Tribunal on a date and time to be advised by the Tribunal.
5.	Further directions will be made by the Tribunal at the Directions Hearing for the filing of any further material by either party to be relied upon at the hearing and to list the matter for an oral hearing on a date and time to be advised.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – JUDGE MISTAKEN OR MISLED – GENERALLY – where Tribunal set aside decision of the applicant and found that there was no ‘exceptional case’ – whether the Tribunal erred in applying the incorrect test under the Working With Children (Risk Management and Screening) Act 2000 (Qld) – whether the Tribunal erred in failing to take into account the Human Rights Act 2019 (Qld) – whether the Tribunal erred in determining that no ‘exceptional case’ existed
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Human Rights Act 2019 (Qld)
Working With Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 221, s 221(2), s 226(2), s 226(2)(a), s 266(2), s 266(2)(a), s 353, s 354
Commissioner for Children and Young People and Child Guardian v FCG [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492
Director-General, Department of Justice and Attorney-General v FRW [2020] QCATA 13
Ericson v Queensland Building and Construction Commission [2014] QCA 297
Flegg v CMC & Anor [2014] QCA 42
House v King (1936) 55 CLR 499
MAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 527
GP v Commissioner for Children and Young People [2013] QCAT 324
CSK v Director-General, Department of Justice and Attorney-General [2021] QCATA 153 
Wagner Cement Pty Ltd & Anor v Boral Resources (Qld) Pty Ltd & Anor [2020] QSC 124	
APPEARANCES & REPRESENTATION:	

Applicant:	
E Cooper, principal lawyer, Department of Justice and Attorney-General	

Respondent:	
B Bilic instructed by O’Reilly Stevens Lawyers	

REASONS FOR DECISION
[1]	MAP requires a blue card so that he can continue his work as a residential youth worker in Queensland. 
[2]	MAP has a criminal history dating back to 2011. Relevant to the present matter, MAP has two charges of unlawful possession of weapons and trespass. On 6 February 2017, MAP was also placed on a Domestic Violence Order for 2 years. The complainant with respect to the matter was SJ, the former partner of MAP’s father.
[3]	On 19 March 2019, MAP’s application to cancel his negative notice so that a blue card will issue was refused by the Director-General, Department of Justice and Attorney-General (‘DJAG’) on the basis that his case is an ‘exceptional case’.
[4]	MAP applied to the Tribunal for a review of the decision to refuse to cancel his negative notice. The Tribunal below was required to conduct a fresh hearing on the merits to determine whether or not there is an ‘exceptional case’ for MAP within the meaning of s221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘the Act’).  
[5]	Following an oral hearing, the Tribunal below published written reasons for its decision setting aside DJAG’s decision to refuse to cancel the negative notice and substituting the Tribunal’s decision that there is no ‘exceptional case’.
[6]	DJAG now applies to appeal the Tribunal’s decision that there is no ‘exceptional case’. There are 7 grounds of appeal that raise errors in the legal test and relevant law applied at first instance that is said to have fettered the Tribunal’s discretion in determining whether there is an ‘exceptional case’. Properly framed, the 7 grounds of appeal identify errors in the Tribunal’s decision below for which the principles in House v King apply. 
[7]	It is argued that the Tribunal below applied the incorrect legal test (Ground 1), took into account irrelevant considerations or failed to take into account relevant considerations (Grounds 3, 4, 5 and 6) and denied DJAG an opportunity to make submissions on matters of law (Ground 2).  In addressing Grounds 2, 3, 4 and 5 together, it is argued that there is a breach of procedural fairness and a failure to take into account relevant considerations because the Tribunal below applied the Human Rights Act 2019 (Qld) without giving the parties an opportunity to address the Tribunal as to the applicability of the legislation and relevant human rights.
[8]	At the oral hearing before the Appeal Tribunal, DJAG submitted that if it is determined that the Human Rights Act did not apply in the proceeding below, then Grounds 2, 3 and 5 fall away and Ground 4 is relied upon.
[9]	The 7 grounds of appeal that raise questions of law for which leave to appeal is not required and therefore proceeding under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), are set out below:
Ground 1: The member has erred at law in applying the incorrect legal test in determining whether the case should be an ‘exceptional case’.
Ground 2: The applicant (DJAG) was denied natural justice and procedural fairness in not being invited to make submissions on matters of law arising out of the Human Rights Act 2019 (Qld).
Ground 3: The Member erred in law by failing to take into account a human right under the Human Rights Act 2019 (Qld) which was relevant to the circumstances of the case.
Ground 4: The member erred in law by taking into account a human right under the Human Rights Act 2019 (Qld) which was irrelevant to the circumstances of the matter.
Ground 5: The Member fettered his discretion by finding that the limitation imposed by the Act was not compatible with human rights under s 58(1)(a) of the Human Rights Act 2019 (Qld).
Ground 6: The Member has fettered his discretion by taking into account a matter that was irrelevant to the circumstances of the case.
Ground 7: The Member has fettered his discretion by determining beneficial counselling to be a protective factor without having proper regard to the significant gaps in the psychological evidence.
[10]	DJAG seeks final orders in allowing the appeal to set aside the Tribunal’s decision and confirm the original decision that there is an ‘exceptional case’. Alternatively, DJAG ask that the matter be remitted back to the Tribunal for rehearing.
Ground 1
[11]	This ground raises an error in the test applied by the Tribunal in determining whether there is an ‘exceptional case’. The test applied by the Tribunal below is said to be an incorrect one because the Tribunal adopted a standard that is applied in the New South Wales jurisdiction which is not applicable in Queensland.
[12]	It is submitted that the Tribunal correctly observes in paragraphs [58] and [59] of the reasons the Tribunal’s task in determining whether there is an exceptional case. Further, in paragraph [60], the Tribunal cites the authority in Maher for the proposition that the Tribunal must determine whether an exceptional case exists or not on the balance of probabilities, bearing in mind the gravity of the consequences involved.  
[13]	At paragraph [211] of the reasons the Tribunal below is said to adopt an approach that is reflected in similar legislation in New South Wales and adopted in an earlier decision of the Tribunal in GP. Further, this approach is said to define ‘risk’ in the context of ‘real and appreciable risk’. The relevant extract from the Tribunal’s reasons is now set out below (footnotes emitted):
When identifying risk factors, the Tribunal in GP v Commissioner for Children and Young People adopted the approach of New South Wales courts in corresponding cases by defining ‘risk’ in this context to mean, ‘real and appreciable risk’. The Tribunal held that when identifying risks, 
“as part of its consideration of whether an exceptional case exists ... the tribunal is not concerned with what may be mere possibilities but rather will require foundation in fact. The Tribunal is looking at whether in all the circumstances there is a real and appreciable risk”.
[14]	It is argued that although the Tribunal repeats the principle in Maher again in paragraph [293] of the reasons it then goes on to outline factors in support of issuing a positive notice that are said to be in the context of whether they establish that the risks are real and appreciable, the effect of which is to apply the incorrect test under the Queensland legislative regime. The relevant paragraph [295] of the Tribunal’s reasons is set out below:
With respect to the Applicant’s volatile and sometimes abusive relationship with his spouse, and his alcohol consumption, I am also satisfied that the Applicant’s resort to alcohol no longer poses a risk. Three years after the Applicant’s offences, and viewed against the Applicant’s life and behaviour since, and to a large extent before 3 February 2007 I find that the factors previously identified as risks are no longer relevant or have, through changes to the Applicant’s circumstances and understanding, become less than real and appreciable risks.
[15]	As we understand the submissions raised in support of this ground of appeal, the Tribunal below applied the New South Wales test to the findings made. This is said to be evident from paragraph [296] of the Tribunal’s reasons when the Tribunal says the proposed risks cannot be described as ‘real and appreciable’ in the context of weighing the risks against protective factors of MAP’s past life and in response to the incidents that led to the negative notice. The relevant paragraph [296] of the Tribunal’s reasons is set out below (footnote emitted):
The proposed risks cannot be described as ‘real and appreciable’ and are overwhelmingly outweighed by protective factors of the Applicant’s past life and response to the incidents that led to his negative notice.
[16]	In our view, the Tribunal has fallen into error by defining risk to be ‘real and appreciable risk’ as laid out in GP in the context of reviewing a decision under the equivalent New South Wales jurisdiction. The error has fettered the Tribunal’s discretion below. This is clear from the Tribunal’s finding at paragraph [296] of the reasons in which the Tribunal considers that the risks identified cannot be described as ‘real and appreciable’ in balancing the risk and protective factors.
[17]	On a fair reading of the Tribunal’s reasons as a whole, the Tribunal has adopted the term ‘real and appreciable risk’ being a term used in reviewing similar decisions under the New South Wales jurisdiction and then applied the test to the facts in determining whether an exceptional case exists under the Act.
[18]	There is no mention of ‘real and appreciable risk’ in the Act. Indeed, the Act does not define the meaning of an ‘exceptional case’. The meaning of an ‘exceptional case’ has been the subject of much consideration in previous decisions of this Tribunal and the Appeal Tribunal.  
[19]	It is settled law that the determination of whether there is an ‘exceptional case’ involves the exercise of a broad discretion that should be ‘unhampered by any general rule and is to be construed in the particular context of the legislation’. 
[20]	The current legislative scheme in Queensland empowers the chief executive and the Tribunal on review, standing in the shoes of the decision maker, to consider whether there is an exceptional case under s 221(2) of the Act in which it would not be in the best interests of children for a positive notice to issue. If a positive notice is issued, the person may work with children and young people in Queensland without restriction. There are a number of matters prescribed under s 226 of the Act that the chief executive and Tribunal on review must take into account in determining whether there is an ‘exceptional case’.
[21]	The Act mandates that the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing. The objects of the Act are to promote and protect the rights, interests and wellbeing of children and young people.
[22]	Here, the Tribunal below has considered Maher in the context of reaching a decision and considering the evidence before it on the balance of probabilities or according to the civil standard. The Tribunal below has proceeded to make findings based on the evidence in the context of whether, as stated, ‘they cannot be described as real and appreciable risk’ the effect of which is to construe the evidence according to a particular standard or rule. The exercise of discretion under the Act should be unhampered. The Tribunal on review is required to consider whether there exists an ‘exceptional case’ within the meaning of s 221(1) and having regard to the matters under s 226(2).
[23]	There is no merit in MAP’s submission in response that the Tribunal below simply considered the term ‘real and appreciable’ as a matter of weight to be ascribed to the risk factors raised by DJAG, in the exercise of the Tribunal’s broad discretion. Further, the respondent’s submissions that Director-General, Department of Justice and Attorney-General v FRW which is said to be relevant to the present matter in that the Appeal Tribunal considered that the Tribunal’s incorrect statement of law did not mean that it had applied an incorrect test is rejected. Each case will be considered on the basis of their own facts and evidence and material before the Tribunal at first instance. In seeking to appeal a decision of the Tribunal below, the applicant must identify some error in the exercise of the Tribunal’s discretion such that, as applicable to Ground 1, the Tribunal acted upon a wrong principle.
[24]	In the present matter, it is clear from reading paragraph [296] of the Tribunal’s reasons that the Member below weighed the evidence including, what he described as, the ‘proposed risks’ and protective factors to determine whether the risks cannot be described ‘real and appreciable’. The risks identified are addressed in paragraphs [291] to [296], inclusive of the reasons and include MAP’s offences, alleged offences, excessive consumption of alcohol and behaviour amounting to non-physical domestic violence. Further, in paragraph [292] the Tribunal below found that although MAP and his partner have been reluctant to describe their controlling and verbally abusive domestic conflict as constituting domestic violence, the Tribunal was satisfied that their 8 year old son was living in a domestic violence household. In paragraph [295] of the reasons the Tribunal below refers to the factors previously identified as risks and says they are no longer relevant or have, as stated, ‘through changes to [MAP’s] circumstances and understanding, become less than ‘real and appreciable’ risk. There is an error in the Tribunal’s exercise of discretion because it applied the incorrect legal test in determining whether an ‘exceptional case’ exists. Ground 1 of the appeal is allowed.
Grounds 2, 3, 4 and 5
[25]	The proceedings below were commenced on 11 April 2019 before the Human Rights Act commenced on 1 January 2020. It is non contentious that the Human Rights Act 2019 (Qld) did not apply in the Tribunal proceeding below. 
[26]	It is readily apparent from reading the Tribunal’s reasons that it identified what was considered to be relevant human rights and applied them in the proceeding below without giving the parties an opportunity to make submissions about it. Further to that, the Tribunal below applied the Human Rights Act by focusing on matters it considered relevant to MAP in the context of weighing up risks and identified limits imposed on MAP’s rights.
[27]	As discussed above, having determined that the Human Rights Act did not apply, Grounds 2, 3 and 5 are without merit, and as conceded by DJAG, fall away. We will for completeness consider the remaining arguments for Ground 4.
Ground 4
[28]	We do not accept the respondent’s submissions in response that the Tribunal’s consideration of human rights did not affect the decision in a material way. On a fair reading of the Tribunal’s reasons as a whole some prominence was placed on the relevant human rights identified in circumstances when the Human Rights Act did not apply. 
[29]	The Tribunal considers the human rights in paragraph [32] to [50], inclusive and in paragraphs [290] and [317] to [320], inclusive. Further, in paragraph [49] of the Tribunal’s reasons the Tribunal considered the application of the Human Rights Act for the purposes of determining whether MAP’s case is an ‘exceptional case’.
[30]	The parties were, of course, entitled to procedural fairness in the proceeding. However, the Tribunal’s failure to afford procedural fairness to the parties to make submissions about the application of the Human Rights Act is not fatal to the Tribunal’s determination of whether an ‘exceptional case’ exists. The Human Rights Act did not apply to the proceedings below and the Tribunal below was not required to identify and consider any relevant human rights. 
[31]	We accept DJAG’s submission in addressing Ground 4, that the Tribunal below has taken into account a human right under the Human Rights Act that was irrelevant to the circumstances of MAP’s matter.
[32]	In paragraphs [319] and [320] of the reasons the Tribunal below identifies relevant rights as the right to not be tried or punished more than once for an offence, the right against self-incrimination and MAP’s right to a public hearing and fair hearing. There is, as submitted by DJAG in addressing Grounds 2 to 5, inclusive, no mention of the human rights relating to children as stated in s 26 of the Human Rights Act. This is said to be important because as required under s 6 of the Act 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.
[33]	We do not consider that a failure to take into account considerations such as the human rights relevant to children is fatal to the exercise of the discretion in the proceeding below because, as discussed above, the Human Rights Act did not apply. That said, we do consider that to the extent that the Tribunal below did consider certain human rights under the Human Right Act which was irrelevant to the circumstances of the matter has infected the exercise of discretion in determining whether an ‘exceptional case’ exists.
[34]	In paragraphs [289] and [290] the Tribunal below draws conclusions about past risks in the context of human rights and being able to justify any limiting of an applicant’s human rights. The relevant paragraphs [289] and [290] are now set out below:
Conclusion 
[289] In view of the object, purpose and nature of decisions enshrined in the Working with Children Act, and the inherent impossibility of predicting future risk with certainty, it is not surprising that past risks (sic) has been seen as indications of future risks justifying decisions being made with caution. 
[290] However, I note that speculative risk is insufficient, and not able to be justified as being compliant with human rights. Any limits on the human rights of Applicants imposed by statutory provisions must be reasonable and justifiable, even where the overriding objective is to protect the safety and welfare of children. Consequently, when interpreting relevant statutory provisions, a decision maker is now obliged to consider and justify any limiting of an Applicant’s human rights. 
[35]	The Tribunal below clearly had regard to certain human rights in making findings about risk relevant to whether an ‘exceptional case’ exists. Further, having regard to [290], it did so at the expense of the principles according to which the Act is to be administered: that is, 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 well-being: s 6.
[36]	There is an error in the exercise of discretion by taking into account certain human right under the Human Rights Act which were irrelevant to the circumstances of the matter because the Act did not apply in the proceeding below. The appeal on Ground 4 is allowed.
Ground 6
[37]	It is argued that the Tribunal below fettered its discretion by taking into account a matter that was irrelevant to the circumstances of the case. In paragraph [95] of the reasons the Tribunal refers to an infringement of MAP’s right not to be tried or punished twice in the context of an offence that falls into a category as stated, ‘to be presumed to warrant a negative notice’.
[38]	In paragraph [98] of the reasons the Tribunal below says the loss of a blue card is not punishment for a minor crime. The error is said to appear in paragraphs [97] and [98] of the reasons and the regard the Tribunal below had to the statement made by the child safety officer that ‘the loss of a blue card is not punishment for minor crime’.
[39]	Although the statement was not relevant, we do not consider that the reference to the child safety officer’s comments as being fatal to the Tribunal’s exercise of discretion. We accept the respondent’s submissions in response that the observations made by the Tribunal below must be viewed within their proper context. The Tribunal’s comments in referring to ‘punishment for a minor crime’ is in our view no more than an observation in the context of remarks made about an offence and whether there is an offence that may have implications under the Act. 
[40]	The Tribunal below acknowledged the remarks and made observations about it in the context of the Act. Ground 6 is without merit.
Ground 7
[41]	There is no new error identified that has not already been raised and addressed in Grounds 1, 3 and 4 of the appeal.
[42]	As discussed above, there is an error in the Tribunal’s exercise of discretion by applying the incorrect test and taking into account irrelevant considerations in the exercise of discretion. For completeness we have considered the submissions advanced in support of Ground 7. It is argued that the Tribunal below considered ‘beneficial counselling’ to be a protective factor in circumstances where concerns were put forward about the shortcomings in the psychological assessments.
[43]	We are referred to the Tribunal’s reasoning in paragraph [239] of the reasons. It is argued that it is not apparent from the reasons where or how the Member has taken into account those gaps or concerns about the psychological evidence.
[44]	The Tribunal below made findings as to the risk and protective factors in paragraph [210] to [288], inclusive. On a fair reading of the Tribunal’s reasons as a whole, the Tribunal below acknowledged the concerns in paragraph [239] of the reasons about the psychological evidence. In the preceding paragraphs [236] to [238], inclusive, the Tribunal refers to  deficiencies raised by DJAG including that the health reports do not comply with the Practice Directions and a rule in the Uniform Civil Procedure Rules. The Tribunal also refers to the domestic violence in 2017 not having been the subject of counselling at [274]; MAP’s reluctance to describe his domestic conflict as constituting domestic violence at [292]; and the evidence of LL, a psychologist, that  MAP’s childhood traumas were not discussed at [264]. 
[45]	Notwithstanding that a differently constituted tribunal might have taken a different view about the adequacy of the ‘beneficial counselling’ having regard to the gaps, we do not consider that the Tribunal below fettered its discretion by determining beneficial counselling to be a protective factor, notwithstanding  the gaps in the evidence. It was open to find there was benefit in the counselling that had been undertaken. As reflected in paragraph [238] of the reasons, the Tribunal below was not satisfied that any deficiencies would render the health reports inadmissible. The Tribunal acknowledged the concerns about the psychological evidence and in paragraph [239] says that while some of this information was able to be gathered in examination of the witnesses the Tribunal ‘propose to take into account any gaps in the information and conclusions provided’. It acknowledged gaps.
[46]	The assertion here that the Tribunal fettered its discretion by determining that ‘beneficial counselling’ is a protective factor without regard to the significant gaps is without merit. Ground 7 is without merit.
[47]	We make the observation that the Tribunal’s reference in [236] to the lack of evidence of any mistreatment by MAP of his child ‘apart from witnessing and hearing his parents’ mutual verbal abuse, is regrettable in that it appears to minimise both the events and the seriousness of exposing a child to it. As recently explained by a differently constituted Appeal Tribunal in Vaeau v DJAG:
Domestic violence is undoubtedly a scourge on society. Recent years have seen raised awareness of the prevalence and diverse forms of domestic violence resulting in vehement condemnation of acts of domestic violence of all types by the community at large, as well as an attitude of ‘zero tolerance’. It is also now accepted and understood that a child exposed to domestic violence can experience serious physical, psychological and emotional harm.
Conclusion
[48]	There is an error in the Tribunal’s exercise of discretion in determining whether an ‘exceptional case’ exists. In allowing the appeal on Grounds 1 and 4, we have found that the Tribunal below fell into error by applying the incorrect legal test and taking into account human rights that were irrelevant to the circumstances of the matter.
[49]	In allowing the appeal, the appropriate course here is to set aside the Tribunal’s decision of 15 May 2020 under s 146(c) of the QCAT Act and to return the matter to a differently constituted Tribunal for reconsideration. We regret that there will be further delays in finalising the proceedings. However, in reconsidering the application below, DJAG and MAP should be given an opportunity to file in the Tribunal any further material whom which they seek to rely at the hearing. We make directions accordingly.