QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	JW v Director-General Department of Justice and Attorney General [2022] QCAT 138	
PARTIES:	JW	

(applicant)	

	v	
	Director-General Department of Justice and Attorney -General	

(respondent)	

APPLICATION NO/S:	CML391-20	
MATTER TYPE:	General administrative review matters	
DELIVERED ON:	29 March 2022	
HEARING DATE:	23 February 2022	
HEARD AT:	Brisbane	
DECISION OF:	Member Burson	
ORDERS:	1.	The decision of the delegate of the Director General of the Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. 
2.	Disclosure of the identity of the Applicant or the relatives of the Applicant is prohibited.	
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER 
MATTERS – application for review of a decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – Applicant blue card holder originally charged with a ‘serious offence’ – aggravating circumstances of charge withdrawn and Applicant instead prosecuted for a non-serious offence – whether the 
Applicant’s case is an ‘exceptional case’ 
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221, s 225, s 226
Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27	
APPEARANCES & REPRESENTATION:	

Applicant:	
Ms I Gajic-Pavlica Counsel instructed by Kilroy Callaghan Lawyers	

Respondent:	
Ms A Sanders Counsel for the Director-General, Department of Justice and Attorney-General	

REASONS FOR DECISION
[1]	In accordance with the decision of the Tribunal dated 3 June 2021, the Applicant’s identity as well as the identity of any relative or family member are not identified in this decision.
[2]	JW is a 33 year old woman who is working in the community sector as well as pursuing higher education. To continue working within this sector JW is required to obtain a Blue Card to engage in child related activities. JW applied for this on 10 July 2019.
[3]	On 24 October 2019 Blue Card Services wrote to JW with a request for submissions as information had been received which raised concern regarding JW’s eligibility to hold a Blue Card.
[4]	On 28 November 2019 JW responded to Blue Card Services including a submission and supportive references.
[5]	On 2 September 2020 JW was advised in writing that a negative notice had been issued to JW. Detailed reasons were set out by Ms Michelle Miller, Director of Blue Card Services in the decision notice.
[6]	Blue Card Services advised JW’s employer.
[7]	JW seeks to have the Tribunal review all the facts and set aside the decision of Blue Card Services.
Why was the Applicant issued with a negative notice?
[8]	The Respondent’s decision to issue a negative notice was outlined in the Reasons dated 1 September 2020.
[9]	The decision of the Respondent was based on the offence of Dangerous Operation of a Motor Vehicle (Domestic Violence Offence) and a 2016 expired Domestic Violence Order which named JW as the Respondent.
[10]	The offence is not one that is a serious or disqualifying offence within the meaning of those terms in the Working with Children (Risk Management and Screening) Act 2000 Qld (‘WWC Act’).
Relevant statutory provisions
[11]	The role of the Tribunal in this case is to stand in the position of the respondent decision-maker to arrive at the correct and preferable decision. 
[12]	The Tribunal must decide the review by way of a fresh hearing on the merits. It is not necessary to establish any error in either the process or the reasoning that led to the decision and there is no presumption that the reviewable decision was correct.
[13]	In conducting a proceeding, the Tribunal on review is not bound by the rules of evidence, but must observe the rules of natural justice and, among other things, ‘ensure, so far as is practicable, all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.
[14]	JW has not been charged with or convicted of any disqualifying offence.
[15]	Therefore, she is not automatically excluded from being issued a positive notice. 
[16]	The general rule is that an applicant for a blue card must be issued a positive notice, and hence a blue card, if the person has been convicted of an offence other than a serious offence, unless one of the following applies: 
(a)	There exists police or disciplinary information about the applicant; or 
(b)	There exists one or more of the following about the applicant, none of which involve a conviction:
(i)	investigative information; 
(ii)	disciplinary information;
(iii)	a charge for an offence other than a disqualifying offence; or 
(iv)	a charge for a disqualifying offence that has been dealt with other than by a conviction; and 
(v)	the decision maker is satisfied it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued a positive notice, in which case the chief executive must issue a negative notice to the person.
[17]	JW has one charge of police information.
[18]	As noted above JW entered a plea of guilty to the charge outlined in paragraph 9 above. The original decision maker could take this into account when deciding whether or not JW’s application involved an exceptional case.
[19]	The WWC Act, section 226 deals with what constitutes an exceptional case for this purpose. 
[20]	Section 226(1) says that this section applies if the chief executive: 
(a)	is deciding whether or not there is an exceptional case for the person; and
(b)	is aware that the person has been convicted of, or charged with, an offence. 
[21]	By virtue of s 226(1) the Respondent could consider both the police information and the domestic violence order and made the decision that this was an exceptional case and JW should be issued a negative notice. 
[22]	Section 226(2) of the WWC Act sets out the factors the Respondent, and therefore this Tribunal, must take into account when assessing whether an application represents an exceptional case when an applicant has been charged or convicted of an offence. 
[23]	These are: 
(a)	in relation to the commission, or alleged commission, of an offence by the person – 
(i)	whether it is a conviction or a charge; and 
(ii)	whether the offence is a serious offence and, if it is, whether 	it is a disqualifying offence; and
(iii)	when the offence was committed or is alleged to have been committed; and 
(iv)	the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and
(v)	in the case of a conviction - the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision; 
[24]	These factors are not exhaustive and will not necessarily be given equal weight in assessing an application.
Tribunal Considerations
[25]	The Tribunal has to determine whether the application by JW involves an exceptional case. If it is not an exceptional case, JW should be issued a positive notice and a blue card.
[26]	The statutory provisions mentioned in paragraph [23] above are relevant in making this decision. 
[27]	There remain other factors that the Tribunal must consider when assessing whether the instant case is an exceptional case. When considering the previously titled Act to the WWC Act, the Appeal Tribunal determined the following factors be taken into account, in Commissioner for Children and Young People and Child Guardian v Ram (Ram’s Case)
rehabilitation from a previous proclivity of engaging in offending behaviour is only one aspect of the protective factors that would be necessary to be established in this case before a blue card should be issued. Remorse and insight are other aspects. 
[28]	Further, there are no restrictions that can be placed on a blue card upon a positive notice being issued by Blue Card Services. This means the holder of a blue card may engage in any form of regulated employment. Ram’s Case also provides guidance when it comes to assessing the implications of blue card transferability and whether a matter is an exceptional case, when it says: It is also true that the Commission Act does not mandate that the Tribunal, on review, must consider the transferability of a blue card as being a relevant factor in determining whether there is an ‘exceptional case’ for the purposes of s 225. 
[29]	However, that factor is relevant to consideration of the issue in s 225(2) that the decision maker must be satisfied that it would not harm the best interests of children for a positive notice to be issued. 
[30]	Issuing a positive notice means that the holder of a blue card may engage in any type of employment or business activity. Such a person could change employment or activity from one with a low incidence of involvement with children to one with a high level and intimate level of contact with children. 
[31]	While the quote in paragraph 27 in Ram’s Case deals with an ‘exceptional case’ for the purposes of s 225, it is just as appropriate to take the same factors into account when considering an ‘exceptional case’ under s 226, which applies in this case.
[32]	The Tribunal has to consider the fact that a blue card holder may be in contact with children and young people. The Tribunal must also consider the consequences this may have for the safety and well-being of children and young people.
[33]	The Tribunal also must apply the paramount principle of the welfare and best interests of children by applying additional weight to any risk factors that are established.
[34]	JW has one charge, Dangerous Operation of a Motor Vehicle (Domestic Violence offence). The offence took place six (6) years prior to the hearing. JW was also the respondent and accepted the placement of a Domestic Violence Protection Order. In addition there was a child protection report that this Tribunal was asked to consider. 
[35]	The Domestic Violence order has now expired and the child protection report is one that has closed with no adverse finding regarding JW.
[36]	The Tribunal must determine whether the application by JW involves an exceptional case. If it is not an exceptional case, JW should be issued a positive notice and a blue card. 
[37]	The statutory provisions mentioned in paragraph [23] above are relevant in making this decision.
[38]	JW was convicted of the offence of Dangerous Operation of a Motor Vehicle (Domestic Violence offence). The victim in the matter being JW’s spouse. The offending did not involve children, though the Tribunal notes the Respondent’s concerns that children were witness to the offending behaviour and the potential impact that this would have on the child witnesses.
[39]	JW entered an early plea of guilty approximately two (2) weeks after the offence. JW received probation for twenty (20) months and a six (6) month driving disqualification.
[40]	JW successfully completed this probation without any concerns raised by Corrective Services.
[41]	JW also has an extensive traffic history.
[42]	References were provided by JW and evidence was given by JW’s referees including JW’s mother in law. 
[43]	All references and evidence provided supported JW and favourably attested to JW’s resilience and personal attributes which enable JW to be a positive role model.
[44]	All references and witnesses called in the hearing were aware of JW’s offending and supported JW’s application for a Blue Card.
[45]	The Respondent in its written submissions states, 
“The Applicant’s offending raises concerns as to her ability to make appropriate behavioural choices, exercise judgment and resolve relationship conflict in a calm and non-aggressive manner.”
[46]	JW provided a psychological report and evidence from Dr Luke Hatzipetrou, Clinical Psychologist. Dr Hatzipetrou opined, 
“Considering the available collateral and assessments, JW’s estimated risk of violence reoffending was considered to be low. The risk of imminent violence and JW’s risk of engaging in conduct that would result in serious harm to other was also rated as low.”
[47]	Dr Hatzipetrou in giving evidence confirmed his views of JW.
[48]	JW provided an assessment from Ms Antonia Burke, an Aboriginal intergenerational trauma counsellor. Ms Burke attested to JW’s work on personal growth and her insight into her own mental health.
[49]	Taking into account all the factors, including the Respondent’s reasons, the decision of the Respondent that the Applicant’s case is an exceptional one within the meaning of s 221(2) of the Working with Children Act is now set aside, and is replaced by the Tribunal’s decision that there is no exceptional case.