AAW v Department of Justice – Blue Card Services [2025] QCAT 434

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AAW v Department of Justice – Blue Card Services [2025] QCAT 434 PARTIES: AAW (applicant) V DEPARTMENT OF JUSTICE – BLUE CARD SERVICES (respondent) APPLICATION NO/S: CML232-23 MATTER TYPE: Childrens matters DELIVERED ON: 31 October 2025 HEARING DATE: 28 February, 30 May 2025 HEARD AT: Townsville DECISION OF: Member Taylor ORDERS: The decision of the Department of Justice – Blue Card Services dated 1 June 2023 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 confirmed. Pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of the following is prohibited, other than may be compelled by law or is necessary for either party to engage in and progress any appeal to the decision in this proceeding: (a) the contents of a document or other thing produced to the tribunal in this proceeding; (b) evidence given before the tribunal in this proceeding; (c) information that may enable a person who has appeared before the tribunal in this proceeding, or is affected by this proceeding, to be identified; and (d) any Direction, Decision, or Reasons documents other than in a de-identified format. -- 1 of 22 -- 2 CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where an applicant for a working with children clearance certificate had been charged with the offence of indecent dealing with a child – where the charge was discontinued and so did not proceed to trial or otherwise conviction – where the applicant argued that in the circumstances of it not proceeding to conviction it was irrelevant to her application for a working with children clearance certificate – where in Police record of interview the applicant admitted to the conduct having occurred which gave rise to the charge – where her application for such a clearance certificate was refused – where she sought review of that decision – wherein the review proceeding, notwithstanding the admission contained in the Police record of interview she denied the conduct as having occurred – where the Police record of interview also recorded the applicant having admitted having engaged in choking one of her children when annoyed with them – whether the applicant demonstrated insight in her offending conduct Human Rights Act 2019 (Qld), s 13, s 15, s 25, s 26, s 32, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 354 BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372 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 & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Re TAA [2006] QCST 11 SJG v Director-General, Department of Justice and Attorney-General [2025] QCAT 111 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489 -- 2 of 22 -- 3 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 APPEARANCES & REPRESENTATION: Applicant: Mr A. Sturgeon – Solicitor of Strategic Lawyers Respondent: Mr P. McNeill – Legal Officer Blue Card Services REASONS FOR DECISION [1] On 24 January 2024 and 19 November 2024, this Tribunal gave directions pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) prohibiting the publication of material in this proceeding to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or any non-party to the proceeding. For this reason, this document is published in a de-identified format. [2] Related to this is a submission made by the respondent’s representative at the conclusion of the hearing before me, one which was concurred with by AAW’s solicitor appearing before me, that a much broader order under s 66 of the QCAT Act should be made to cover the entire proceeding. I accepted that submission as being appropriate in the circumstances of this proceeding, and accordingly gave a further order under s 66 in broader terms. I did so because I considered it necessary to avoid interfering with the proper administration of justice given much of what was raised with AAW during this hearing has the potential for further criminal charges to arise against her, as well as to avoid endangering the physical or mental health or safety of a person, namely AAW’s daughter that was the subject of much of what was discussed in this proceeding. Overview [3] AAW had previously held a Blue Card under what is now the Working with Children (Risk Management and Screening Act) 2000 (Qld) (“WWC Act”) in 2005 and 2007, the last of which expired in May 2009.1 On 8 June 2021 she applied once again to be the holder of a Blue Card. She was unsuccessful. The respondent’s decision-maker decided that her case was ‘exceptional’, as that term is used in s 221 of the Act, concluding that it was not in the best interests of children for her to be issued with a Blue Card. Thus, she was issued with a negative notice under the Act. She applied to this Tribunal for a review of that decision. [4] Her story is sadly a tragic one. Her now deceased husband had subjected her children to sexual abuse of which she was, at the time it was occurring, unaware. However, what arose during the police investigation of that abuse were two events in her past which went to the core of that which I was required to consider in this review, one of 1 That terminology was abandoned with amendments to the Act from 1 April 2016, it then becoming known solely as a ‘positive notice’ but now known as a ‘working with children clearance’. However, the previously used terminology of ‘Blue Card’ has survived given its well-known reference. -- 3 of 22 -- 4 which brought about a charge being imposed on AAW for indecent treatment of a child (the “Indecent Treatment Charge”). [5] Firstly, she knowingly allowed, or in the alternative blindly failed to take steps to prevent, her husband to show her daughter pornographic film of what may be described as X-rated lesbian activity. That was the premise for the Indecent Treatment Charge. [6] As I listened to and observed her during the hearing, I formed the view that she was not truthful in her recounting of that event. Her documentary evidence was inconsistent with a police record of interview in which she made express admissions to having allowed such conduct to have occurred. Yet, the statements she made to the respondent, and repeated in this proceeding, were entirely opposite to what she stated in that interview. Those statements and what she had to say in this proceeding was also seemingly premised on, at best, a failure by her to have understood what had occurred resulting in the Charge, or at worst an intentional attempt by her to put an alternative meaning on it. [7] Secondly, as I read the transcribed record of that interview, AAW admitted to choking her daughter on one occasion when she says her daughter “was giving me lip like you wouldn’t believe” (the “Choking Event”). [8] Such raised concerns for me as to her suitability to now be the holder of a Blue Card. She failed to demonstrate to me during the hearing that she had developed any insight into her conduct in those two circumstances to demonstrate to me that she did not fall into the category of being a person for whom it would not be in the best interests of children to be issued with a Blue Card. [9] That being so, for the reasons I discuss herein, AAW was unsuccessful in her efforts to have this Tribunal review the decision and find in her favour. I gave orders confirming the decision. Background [10] On 8 June 2021 AAW applied to the respondent for a Blue Card. [11] Having considered her application and the submissions made in support of it, the respondent’s decision-maker decided that AAW’s case was ‘exceptional’ as that term is used in s 221 of the WWC Act concluding that it was not in the best interests of children for her to be issued with a Blue Card. Accordingly, on 1 June 2023, the respondent issued a negative notice under the Act (the “Decision”). [12] On 3 July 2023, AAW applied to this Tribunal for a review of the Decision.2 [13] That application ultimately came before me for hearing on 28 February 2025. On that occasion AAW presented herself as her only witness. Whilst cross-examination of her was concluded that day, there was insufficient time remaining in the day for re- examination and the giving of closing submissions, thus the need for a second day of hearing. This afforded AAW the opportunity to organise and present any other witnesses to give evidence in support of her efforts to obtain a Blue Card via this review proceeding. I gave directions accordingly for filing of any further witness statements. 2 Document Marked for Identification (MFI) ‘A’ in the hearing. -- 4 of 22 -- 5 [14] The hearing reconvened on 30 May 2025. However, AAW did not present any other witnesses, concluding the presentation of her case reliant solely on the evidence she had given together with what may generally be described as ‘character references’ annexed to her affidavit. Re-examination of her was conducted and the hearing then moved to the presentation of closing submissions. [15] At the conclusion of the hearing, I reserved my decision to consider the documentary and oral evidence, and the closing submissions, informing AAW not to expect a decision from me before the end of July 2025 due to commitments ahead of me at that time. Regrettably, it took me much longer than I had originally anticipated to get back to this matter. I offer my sincere apologies to AAW for this delay. The Nature of this Review Proceeding [16] This Tribunal’s jurisdiction to review the Decision arises under the WWC Act Chapter 9, more particularly s 354 therein, read together with the QCAT Act Chapter 2 Division 3. In constituting the Tribunal for this proceeding, I was required to exercise this jurisdiction in accordance with both those pieces of legislation and the Human Rights Act 2019 (Qld) (the “HR Act”). In doing so I had all the functions of the decision- maker in terms of the decision to be made.3 [17] The purpose of the review was to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits.4 It was not a traditional adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. The respondent was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker, the role of the respondent’s representative being to help me in making my decision on the review.5 Nor was it an inquisitorial process such that I was required to dig in to find the relevant facts and legal arguments. Nor was it necessary for me to consider whether the respondent’s decision-maker had made an error in making the Decision. Rather the focus was on the cogency of AAW’s case as presented to this Tribunal, simply required her to present her case demonstrating that it was not exceptional under s 221 of the WWC Act. [18] At the conclusion of the review, I was empowered to confirm or amend the Decision; set aside the Decision and substitute my own decision; or set aside the Decision and return the matter to the respondent’s decision-maker for reconsideration with directions I considered to be appropriate.6 The Issue [19] As I comprehended the filed material and the oral evidence, together with the closing submissions, I concluded that the sole issue in this proceeding was whether AAW had demonstrated insight into what had occurred that gave rise to the Indecent Treatment Charge, and the Choking Event, and the consequences of such in terms of being permitted to care for children as a holder of a Blue Card. [20] Even though it was part of the tragic history to which she had been subjected, if she was unable to show me that she could look back on it with the proper level of insight, 3 QCAT Act s 19. 4 Ibid s 20. 5 Ibid s 21(1). 6 Ibid s 24. -- 5 of 22 -- 6 then it must lead to the conclusion that AAW’s case was one to fall within the category of an ‘exceptional case’ and thus to deny her a Blue Card. AAW argued it was not such a case. The respondent’s representative submitted it was. [21] To resolve that contest, consideration of WWC Act s 226(2) was necessary, it providing a mandatory list of factors to be considered in deciding whether it was appropriate to issue a negative notice. It also required the following to be observed: (a) The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people through a scheme requiring, as relevant in this proceeding, the screening of persons employed in particular employment;7 (b) The paramount consideration must be the welfare and best interests of a child, 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;8 and (c) The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield,9 such being a principle that I was mandated to apply in this review. The Relevant Law Working with Children (Risk Management and Screening Act) 2000 (Qld) [22] The matter in issue in this proceeding is whether a negative notice should be issued, the consideration of which starts with s 221 of the WWC Act.10 Under that section the starting position is that AAW is entitled to be issued with a Blue Card unless it is an exceptional case.11 [23] If that starting position stood without exception, then it would be for me to set aside the Decision. That is, the exceptional case in this context is one that does not conform to the general rule, the rule being that a working with children clearance must issue thereby allowing AAW to be issued with a Blue Card.12 Thus the issue in this proceeding, such being that if I was satisfied AAW’s case is one in which it would 7 WWC Act s 5. 8 Ibid s 6. 9 As McPherson JA observed in Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, speaking in terms of the predecessor legislation to the WWC Act, namely the Commission for Children and Young People and Child Guardian Act 2000 (Qld): “Expression 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, 356, Viscount Simmonds said it was the paramount consideration “to which all others yield.”. 10 This is the applicable provision because, whilst the Indecent Treatment Charge fell into the category of a ‘serious offence’ for the purposes of the WWC Act, serious offences for the purposes of WWC Act being as described in Schedule 2 to the Act, and also a ‘disqualifying offence’ as defined in Schedule 4 of the Act, the charge falling within Part 4 therein of each as being one under s 210 of the Criminal Code, AAW was not ultimately ‘convicted’ of that charge – see the definition of ‘conviction’ in Schedule 7 of the Act. Had she been convicted the applicable provision would have been s 225 of the Act which in effect works in reverse of s 221 such that it mandates that a negative notice must issue unless it is an exceptional case in which it would not harm the best interests of children for a Blue Card to be issued. But notwithstanding the absence of a conviction, the charge remained ‘relevant information’ as that term is defined in s 221(3) of the WWC Act. 11 See WWC Act ss 221(1), 221(2), s 221(3)(a)(ii). 12 Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4]. -- 6 of 22 -- 7 not be in the best interests of children for her to be issued with such a clearance, then a negative notice must be issued.13 In turn, in the circumstances of this case, that would mean it would be in order for me to confirm the Decision. [24] But the WWC Act does not define an exceptional case. Thus, it creates a degree of complexity in applications of this type. To deal with that complexity it requires consideration of fact and degree with such to be decided in each case having regard to the interests of children. As it was expressed in Commissioner for Children and Young People and Child Guardian v FGC in reference to the predecessor legislation to the WWC Act:14 It is to be accepted that phrases like ‘exceptional case’ must be considered in 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: (sic) children. There is, however, nothing in the Commission Act which gives apparent support to the special meaning or construction suggested in OAA and, in the Queensland Supreme Court, Philippides J has said that: ‘… it would be most unwise to lay down any general rule with regard to what is an exceptional case … All these matters are matters of discretion’. We accept that the phrase is to be read in the particular context of the legislation in which it occurs, but are not persuaded that the legislature intended to give it a meaning which was special, or unusual. It is a term of common use in everyday language. The proper approach to it is that, with respect, adopted by Philippides J: to consider its application in each particular case, unhampered by any special meaning or interpretation. [25] There was no onus placed upon AAW to demonstrate that an exceptional case did not exist.15 It was a matter of discretion ultimately afforded to me as the effective decision-maker, such that I was required to exercise in deciding whether an exceptional case existed on the balance of probabilities.16 But in saying that, in undertaking that task it was not a matter for me to balance risk factors against protective factors in determining whether AAW’s case was an exceptional one. In terms of such an approach, the following was observed in Commissioner for Children and Young People and Child Guardian v Eales:17 The error that is of concern arises when the original Tribunal uses a test for exceptional case that has been discredited by the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC. The error is implicit in the original Tribunal’s explanation of what approach was endorsed by the Court of Appeal for finding whether an exceptional case exists or not in Commissioner for Children and Young People and Child Guardian v 13 WWC Act s 221(2). 14 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]– [33] (footnotes and citations omitted). The reference to ‘OAA’ is a reference to a decision of the Queensland Children’s Services Tribunal in Re OAA [2006] QCST 14. The reference to the ‘Commission Act’ being to the Commission for Children and Young People and Child Guardian Act 2000 (Qld). Each of these are respectively predecessors to QCAT and the WWC Act. 15 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 16 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30], [34]. 17 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [5]– [12] (footnotes omitted) (“Eales”). -- 7 of 22 -- 8 Maher. The original Tribunal had interpreted what was said by the Court of Appeal in the Maher case in the following terms: “…if the negative risk factors outweigh the protective factors that an unacceptable level of risk of harm exists. This unacceptable level of risk of harm is then capable of constituting an exceptional case.” With respect to the original Tribunal, there is no basis for that explanation or interpretation of the Maher decision. The Court of Appeal did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. The Court of Appeal did not endorse the concept that an unacceptable level of risk of harm exists if negative risk factors outweighed protective factors in a balancing exercise. The Court of Appeal did not endorse a finding that this level of unacceptable risk is capable of constituting an exceptional case. At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a blue card to be issued to a person. What was considered by the Court of Appeal was the presence of exceptional circumstances which were capable of rendering Mr Maher’s case as an exceptional case. What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Mr Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criterion specified by the Act. The Court of Appeal found that the exceptional circumstances identified in Maher’s case had taken the case outside the normal rule and thus had made it an exceptional case. No precondition of an outweighing of negative risks (sic) factors to protective factors was necessary before an exceptional case was found and no use of the wording “unacceptable level of risk” was made by the Court of Appeal in the Maher Case. In the FGC case in 2011, the Appeal Tribunal rejected the argument that principles brought across from the family law jurisdiction involving an unacceptable risk of harm should be resorted to in order to interpret what is meant by the phrase “exceptional case” in the Commission for Children and Young People and Child Guardian Act 2000. The Appeal Tribunal rejected the argument that the words in that phrase must be read and construed in a particular way, different from their ordinary meaning. The Appeal Tribunal accepted that the phrase “exceptional case” must be considered in the context of the legislation which contains that phrase, the intent and purpose of that legislation, and the interests of the persons whom it is designed to protect. The Appeal Tribunal stated that the proper approach is to consider the application of the phrase in each particular case unhampered by any special meaning or interpretation. It can [be] (sic) seen from an analysis of the Maher and FGC cases that interpreting the facts of a given case through the prism of balancing factors to ascertain whether an unacceptable level of risk of harm is present is an error that is more than a matter of semantics. That approach sets up a test that is not part of the statutory process for determining whether a positive or negative notice should be issued. The Act does not set up a system whereby any case in which negative risk factors outweigh protective factors must result in a blue card being declined. -- 8 of 22 -- 9 What the Act does is to require an exceptional case being established if, for convictions for other than a serious offence, the Commissioner is to refuse a blue card. If there are exceptional circumstances in a case, then, consistent with the principles identified by the Court of Appeal in Maher’s case, the Tribunal can find an exceptional case having regard to the criterion specified in the Act. [26] The criterion to which the Appeal Tribunal in Eales was referring is now set out in s 226(2) of the WWC Act. But the matters listed therein are not exhaustive, they merely specify matters which I must consider in deciding the application.18 Later herein I discuss my consideration of that criteria. Human Rights Act 2019 (Qld) [27] There is also the application of the HR Act that I was required to consider. [28] The main objective of the HR Act is to protect and promote fundamental human rights. However, the rights listed therein are not exclusive, nor are the rights protected thereunder absolute. They may be limited, but only so far as is reasonable and justifiable.19 [29] In deciding whether a limit is reasonable and justifiable relevant factors include inter- alia the nature of the human right, the nature and purpose of the limitation, whether there are any less restrictive and reasonably available ways to achieve the purpose, the importance of the purpose of the limitation, the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right, and the balance between the last two points. That being so, all statutory provisions, as far as is possible consistent with their purposes, must be interpreted in a way that is compatible, or most compatible, with human rights.20 Such includes the WWC Act. [30] I return to my discussion on the HR Act at the conclusion of these reasons The Evidence [31] As the respondent was required to do it provided material to this Tribunal,21 namely the reasons for the Decision and other documents considered relevant,22 including an ‘Outline of Submissions’ which became the written closing submissions elaborated on by way of oral closing submissions at the end of the hearing.23 The respondent did not otherwise seek leave to produce any further material at the hearing, nor call any witnesses. [32] AAW’s material was minimal. She had filed an Affidavit sworn by herself, such which contained a relatively short ‘Life Story’ such being commonplace in proceedings, but otherwise essentially being argumentative against the Decision.24 She was her only witness. 18 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42]. 19 HR Act s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act. 20 Ibid s 48(1), (2). 21 QCAT Act s 21(2). 22 Ex 1 & Ex 2. 23 MFI ‘B’ in the proceeding. 24 Ex 4. -- 9 of 22 -- 10 [33] But notwithstanding that, she seemingly also sought to rely on character references presented to the respondent as part of her material in support of her application.25 However there was an absence of clarity as to the extent she pressed the same before me. She did not call any of these persons as witnesses in the hearing to attest to the truth and accuracy of what was stated therein nor to be presented for cross- examination. [34] At the conclusion of the hearing her solicitor also presented a written ‘Outline of Submissions’ which, like the respondent’s, was elaborated on by way of short oral submissions.26 [35] My decision turned on the evidence and submissions presented to me in the hearing, both documentary and oral. It also turned on my observations of AAW in person during the hearing in the conduct and presentation of her case and her responses to questions posed of her by the respondent’s representative. That being so, before turning to a discussion on the application of the evidence in terms of the law, I have firstly set out herein those parts of the evidence presented which I considered relevant and of assistance in reaching my decision. [36] But before doing so I make this brief short observation. Ordinarily in writing Reasons for my decision in a matter such as this I would express with some specificity, as drawn from the evidence presented, an applicant’s history that brought him/her to this Tribunal challenging a decision to deny him/her a Blue Card so to provide any reader of these reasons detail of the background upon which I considered the primary issue before me, such being whether it would not be in the best interests of children for AAW to be issued with a Blue Card. However, in this instance I did not consider that to be necessary. AAW evidently suffered from a traumatic experience in years past, much of which had to be relived in the hearing before me. There was no purpose to be served detailing that out in these Reasons because all it would have resulted in would be subjecting AAW to further reliving this past should she read these Reasons. In my opinion it was sufficient to note merely two aspects of the past that I considered to be germane to that which I was required to consider and on which my decision turned. The Indecent Treatment Charge [37] In May 2015 AAW was charged with the Indecent Treatment Charge, more precisely the offence of ‘Indecent treatment of a child under 16 (indecent film etc)’ the details of which are recorded in a Queensland Police Service Court Brief (the “QP 9”) as being:27 The Defendant in this matter is [AAW]. The Victim Child is the biological daughter of the Defendant. 25 See the last page of a letter from her then lawyer to Blue Card Services contained in Annexure 2 to the affidavit; see also the second page of her own letter to Blue Card Services contained therein; and what appears to be the said character references contained therein and marked as documents shown thereon as having been extracted from the respondent’s BCS documents Copies of these appear in Annexure 2 to her affidavit which is Ex 4 in the hearing. Copies also appear at Ex 1 – pgs BCS – 49 to 61, 66, and 70. 26 MFI ‘C’. 27 Ex 1 pgs BCS-25 to BCS-27. -- 10 of 22 -- 11 At the time of the offence the Victim Child was aged between 10 and 12 years old. The Defendant’s co-offender is her husband [name redacted]. On an unknown date between 31st day of December 2010 and the 2nd day of June 2013 at [location redacted], the Defendant’s co-offender has turned on the computer and located some lesbian pornography. The Defendant’s co-offender has made the Victim Child watch the lesbian pornography. … On the 20th day of March 2014 the Defendant has attended the [city named] Police Station where she participated in an Electronic Record of Interview after she was given her CAUTION and RIGHTS in accordance with the PPRA. The Defendant stated that she was aware her co-offender showed the Victim Child lesbian pornography and that she allowed it, stating that her co-offender asked the Defendant’s permission if he could show her lesbian porn. The Defendant stated that she gave permission because she suspected the Victim Child to be a lesbian. [38] Ultimately the Charge was not proceeded with, the Director of Public Prosecutions (the “DPP”) entering a No True Bill relative to it. The reason for this was explained in a letter from the DPP to the respondent in the following manner:28 The decision to discontinue the prosecution was made following a careful consideration of the relevant and admissible evidence and in consultation with the arresting officer and the complainant. The allegation against [AAW] arose in the context of a larger prosecution being conducted by Queensland Police in relation to the co-accused for multiple child sexual offences. However, after considering the evidence against [AAW], the ODPP determined that there were no reasonable prospects of obtaining a conviction. This was supported by the fact that the complainant child indicated that [AAW] had no knowledge of, or involvement in, the offending committed by the co-accused and was not present when indecent films were shown to the complainant child by the co-accused. Therefore, the prosecution in relation to [AAW] was discontinued. [39] Notwithstanding the decision by the DPP, it remained an issue for consideration in this proceeding, the reason being that which I discuss later herein where I address the relevant criteria under s 226 of the WWC Act. The transcript of the Police record of interview of AAW on 20 March 2024 is contained in the material that was before me (the “Record of Interview”). It shows with clarity that the notation in the QP 9 as to AAW effectively approving the showing of lesbian pornography is correct, but moreover AAW was present when it was being shown to her child, she being able to explain with clarity what was visible on the computer screen.29 [40] This is to be contrasted to a statement AAW made to the respondent in support of her application for a Blue Card, such which she exhibited as part of her Affidavit, namely:30 Throughout the investigation and police records which you have access to it states that I gave permission for my daughter to be shown pornography which 28 Ex 1 pg BCS-28. 29 Ex 1 pgs BCS-185 Line 49 to BCS-188 Line 35. 30 Ex 4 – this is contained in a letter to Blue Card Service forming part of Annexure 2 therein. It also appears at Ex 1 pg BCS-67. -- 11 of 22 -- 12 is not correct and this was a direct action of my late husband whilst I was not present; this is further supported by the support letter of [name of daughter given] dated 19/02/2019.Whilst these accusations against my late husband are factual I have never and would never show my daughter these indecent materials or knowingly allow her to be exposed to these materials. [41] The ‘support letter’ to which she refers is an e-mail purportedly written by her daughter in April 2022, shown as having been e-mailed by AAW to herself, and then in turn by AAW to the respondent, wherein the following statements appear:31 (a) In the versions shown to have been sent by AAW to AAW on 4 April 2022 at 4:33pm and 5:03pm, and in turn to the respondent respectively on 17 April 2022 at 1:52pm and 20 April 2022 at 2:37pm:32 At the age of 12, I had made a false allegation regarding [AAW]. I was unaware of the consequences portrayed and have regretted my actions ever since. I was young and did not understand the damage I had caused towards [AAW]’s career path. As a 12 year old child I made quite a lot of rash decisions, I was angry and betrayed. (b) In the version shown to have been sent by AAW to AAW on 4 April 2022 at 6:19pm and in turn to the respondent on 6 April 2022 at 11:40am:33 At the age of 12, I really didn’t understand at the time what the police were saying or asking me regarding my mother. I was young and did not understand the consequence of this misunderstanding regards (sic) to what the police were actaully (sic) trying to ask. … [42] In that Affidavit she also made this statement related to this issue:34 The sole allegation raised in March of 2014 was recanted by my eldest daughter [name given] after she confessed to making a false statement and the proceedings were discontinued. … The Choking Event [43] In that Record of Interview there is a relevant passage from when the investigating officer was discussing with AAW some alleged assaults occasioned on the daughter. It was in response to the investigating officer turning AAW’s attention to “the time [daughter named] says she was about eight or nine at the time”. [44] Without any further reference to the subject matter AAW made this statement:35 … I remember choking her in the kitchen and I shouldn’t have done that, but I did, but she just wouldn’t do as she was told. … it was one of those mornings where I just said “Can you hurry up and get dressed please so we can hurry up and get to school” ‘cause (sic) I was running late or whatever. I think I had an appointment that – that day, I can’t remember exactly, but I know that I was in a hurry and she was just giving me lip like you wouldn’t believe. And – I choked her. I just got really annoyed with her and I said, “Please can you just get 31 One version of this appears in Ex 4 as part of Annexure 2 therein. Other versions appear in Ex 4 Annexure 6. These versions also appear at Ex 1 pgs BCS-74 to 76. 32 Ex 1 pgs BCS 74 and 75. 33 Ex 1 pg BCS-76. 34 Ex 4 – para 34. 35 Ex 1 – pgs BCS-198 and 199. -- 12 of 22 -- 13 dressed” and then she – and then I regretted it afterwards and I said I was sorry and – yeah. My consideration of AAW’s case [45] As I listened to AAW and understood the presentation of her case, it could be readily summed up by that which her solicitor had expressed in his written closing submissions, namely:36 (a) AAW was only ‘charged’ but not ‘convicted’; (b) The passage of time that has passed since that charge, namely more than 11 years, and that it has been the only charge ever brought against AAW; (c) Various expressions of ‘remorse’ for her conduct; (d) That AAW is “a person of good character, which is evidenced by the various character references … exhibited to her affidavit”; and (e) AAW’s human right of being entitled to be considered innocent until proven guilty should prevail. [46] The respondent’s closing submissions were effectively opposite, submitting:37 (a) The passage of time without further charge or conviction is not, of itself, conclusive that the risk of harm to children is reduced, and that such passage of time does not detract from the egregiousness of AAW’s alleged offending; (b) The nature of that offending is especially concerning given the child was aged between 10 and 12 at the relevant time and was AAW’s biological daughter, cumulatively demonstrating the vulnerability of the child and the gross breach of trust and authority allegedly perpetrated by AAW; (c) As to the choking incident, the admissions made in the Record of Interview are serious and raise questions of the possibility of a risk to children; and (d) The ‘support letters’ purported to have been given by AAW’s daughter must be viewed with caution given that there are three different versions and shown as having been sent by AAW to AAW and then on the Blue Card Services, and such raises questions as to AAW’s credibility; (e) There is inadequate evidence to show the level of insight gained by AAW to be able to make an assessment in terms of the paramount principle to be applied under the Act; and (f) To the extent AAW argues for reliance on the human right to be considered innocent until proven guilty, such is as provided for under s 32 of the HR Act relevant to criminal proceedings and has no relevance in this proceeding being one under the WWC Act. The Relevant Criteria [47] For the reasons I explain in the paragraphs that follow here wherein I discuss the relevant criteria, and on the premise of the evidence to which I have just referred, I 36 MFI ‘C’ – paras 33, 36 to 38, 43, 84, 86, and 97. 37 MFI ‘B’ – paras 43 and 44, and as advanced orally. -- 13 of 22 -- 14 did not accept AAW’s case as being one which showed her circumstances were such as to not be exceptional as that term is used under s 221 of the WWC Act. The submissions made by her solicitor at the conclusion of the hearing did not support that argument. [48] I thus now turn to those criteria. s 226(2) Whether the offence is a conviction or a charge38 Whether the offence is a serious offence, and whether it is a disqualifying offence39 [49] In my opinion it is convenient to consider these two criteria together. It is here that I return to explaining why the Charge remained an issue for consideration in this proceeding as I mentioned in paragraph [39] herein. [50] As I noted it in paragraph [38] herein, the Indecent Treatment Charge at all times remained solely as a charge. It was discontinued and so did not proceed to conviction. Notwithstanding that, the respondent submits that Parliament intended that all offences on a person’s criminal history are to be considered in determining their eligibility to work with children in regulated employment.40 I accept that as being a correct submission. [51] However, it does not mean that I was required to make any definitive finding about a charge that remained solely that, not proceeding to conviction. As was stated by this Tribunal in Volkers v Commission for Young Children and Young People and Child Guardian when considering the relevance of charges against an applicant which did not result in a conviction:41 It is not this 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. [52] Somewhat later, this Tribunal once again had cause to consider circumstances of a mere charge dealt with other than by conviction in the matter of TNC v Chief Executive Officer, Public Safety Business Agency, with the following observation being made therein by the learned Member:42 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 in obtaining a conviction. 38 WWC Act s 226(2)(a)(i). 39 Ibid s 226(2)(a)(ii). 40 MFI ‘B’ – para 586 - referring to the Explanatory Notes pg 11 to the Commissioner for Children and Young People Bill 2000, being the Bill to the enactment of the WWC Act in its original name. 41 Volkers v Commission for Young Children and Young People and Child Guardian [2010] QCAT 243, [58], referring to the decision of the Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grinrod (No 2) (2008) WASCA 28. 42 TNC v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 489, [83]–[86]. -- 14 of 22 -- 15 This may seem unfair to Mr TNC and many others in his situation, who are entitled to a presumption of innocence. It can be seen as offending a sense of justice. Parliament considered this tension and stated in the explanatory notes to the Bill introducing the Act at page 10: The infringements [on the rights of the individual] are considered necessary in order to uphold children’s entitlement to be cared for in a way that protects them from harm and promotes their well being (sic). I am therefore required to give some weight to the charges. They do not constitute an exceptional circumstance by themselves, if they did that would have the effect of elevating their importance to the level of convictions, and Parliament drew a distinction, but they must be considered as part of the circumstances. [53] Shortly after expressing those observations, the learned Member went on to say:43 I do not need to be satisfied on a balance of probabilities that the offences occurred and I do not make that finding. … The assessment of risk is not limited to the charges and I must consider the totality of the evidence. [54] I agree with the approaches as laid out by the learned Members in those matters. It is not for this Tribunal to make any finding of guilt or innocence in terms of the Indecent Treatment Charge, nor for me to in any way go behind the charge. [55] However, unlike other matters that have been before me where at best all that exists is a charge, entirely unsupported by any evidence that can lead to a conclusion, other than by inference, 44 in this matter notwithstanding the reasons given by the DPP for discontinuing the prosecution of AAW, the evidence before me suggests with a relatively high degree of certainty that AAW did engage in the conduct that led to the Charge being made. As I noted it in paragraph [39] herein, she effectively admitted it in the Record of Interview. Yet, in pressing her application for a Blue Card before the respondent, and the continuation of that in this proceeding, as I noted it in paragraph [40] herein she denied it. I return to the relevance of that denial later and conclude my discussion on these criteria with this comment. Whilst the Indecent Treatment Charge did not lead to a conviction, given AAW’s admission of such conduct as recorded in the Record of Interview, it remained entirely relevant to the issue in this proceeding, and moreover one which carried substantial weight. When the offence was committed45 [56] AAW’s offending conduct behind the Indecent Treatment Charge occurred at some time from the beginning of 2011 up to mid-2013. That being so, it might be thought and said that a significant passage of time had passed which might diminish the weight to be attributed to her conduct when considering the question of an exceptional case, particularly when, as was the case before me, there is no evidence of any further offending conduct since that time. This is AAW’s argument as I noted it earlier, such contained in the submissions presented by her solicitor. 43 Ibid [89]–[90]. 44 See, eg, BJM v Director-General, Department of Justice and Attorney-General [2022] QCAT 372. 45 WWC Act s 226(2)(a)(iii). -- 15 of 22 -- 16 [57] I do not agree. The passage of time, when being considered as an issue of time only, is not relevant. It must be viewed in conjunction with what has occurred since, such being at the very least the development of the applicant’s insight into that past conduct. In all cases such as these, that passage of time since the events occurred and what has occurred during that time is important because it is within that passage of time an applicant for a Blue Card should have, if he/she was going to, gained the requisite degree of insight into his/her offending behaviour. As I have said in other similar matters, the longer the passage of time, the greater should be the prospect that the applicant would have, and should have, gained that insight. But regrettably, that is not always the case, and in some instances even over a long passage of time no insight has been gained. [58] There are numerous decisions of this Tribunal which highlight the importance of the passage of time and in turn the development of insight have been considered. But one example is that found in Commissioner for Children and Young People and Child Guardian v Lister (No 2) wherein the Appeal Tribunal considered the issue and expressed this observation:46 Having considered Ms Lister’s oral and written submissions about her past conduct, the Appeal Tribunal is left with a real concern about drawing the conclusion that the risk is reduced by the passage of time without incident. Both the Trial Judge and the Court of Appeal referred to Ms Lister’s lack of remorse. Likewise the Appeal Tribunal has seen little indication of remorse or insight in Ms Lister’s current attitude to her offences … Ms Lister continues to minimize and justify her conduct … These are recent statements which reveal her current views. They suggest the passage of time has not been accompanied by a genuine change in Ms Lister’s views about these matters. They leave the Appeal Tribunal with a reasonable apprehension that the passage of time without further offence does not mean that the risk has been reduced. [59] I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General, wherein I said:47 Notwithstanding that this all occurred now many years ago, in the circumstances of the applicant still expressing these views today it leads me to only one conclusion, that being he has not accepted that his conduct was not socially acceptable. [60] The application of this criterion, given the circumstances as I have just discussed it, was a barrier for AAW to have overcome in the presentation of her case for an entitlement to a Blue Card. In my opinion, she did not overcome it. Whilst her solicitor sought to present the case reliant on the relatively extensive passage of time without any further offending of any nature having occurred, he entirely failed to address the issue of the development of his client’s insight over that passage of time. At its highest, he submitted that she was remorseful. But such remorse, even if genuinely held, may be nothing more than the remorse felt given the effect on AAW personally because of the past events. The mere fact of remorse is not an indication of the development of insight into the past conduct in terms of its effect on others and the 46 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [53]–[55]. 47 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, [68]. -- 16 of 22 -- 17 relationship such conduct has to the circumstances of considering a person’s eligibility to be approved as a Blue Card holder. [61] As I discuss in some further detail later in these reasons, AAW failed to show me that within that time she had learned more about her past behaviour and the impact it had on others. But moreover, notwithstanding that passage of time she is now either in total denial of the past events or has intentionally chosen to paint them in a picture inconsistent with the facts to support her own desire to obtain a Blue Card. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children48 [62] The seriousness of what transpired in the events that led to the Indecent Treatment Charge, and the facts of the Choking Event, and moreover her conduct as a mother engaging in such conduct whilst in care of her children, should not minimized. It is entirely unacceptable behaviour in any normal aspect of society. In my opinion it would ordinarily weigh heavily against an applicant for a Blue Card in consideration of this criterion. [63] Once again returning to other Blue Card review matters which I have decided wherein my observation of the applicant during the hearing indicated to me that he or she had progressed beyond the circumstances as they existed at those times and as such recognised the unacceptability of such conduct,49 such that its relevance did not carry such weight, in this proceeding that was not the case with AAW. [64] Critically, despite having admitted her conduct to the Police, as recorded in the Record of Interview, before me she sought to distance herself from it by simply denying it occurred. Despite that express denial, somewhat curiously her solicitor advanced the submission that AAW acknowledged that her conduct was not acceptable and that she was “sorry and remorseful for her actions in this case”.50 Yet, he presented this as a bare submission devoid of any reference to evidence, documentary or oral. If a solicitor is to make a submission of this type in closing, reference to evidence presented in the hearing should accompany it. [65] Moreover, when this issue was broached during cross-examination of AAW, after having been given a warning by me as to the possibility she may engage in self- incrimination and accordingly she may choose not to answer some questions, to the extent AAW did present some answers they were inconsistent with this submission and inconsistent with what she said as it was recorded in the Record of Interview. [66] For these reasons I accept the respondent’s submissions on this criterion as carrying sufficient weight to show me that AAW’s case was exceptional. As Mr McNeil expressed it in his written closing submissions:51 Children are inherently vulnerable. Their welfare depends upon adult carers being able to recognise risk and act in an appropriate and protective manner. [67] Here, AAW demonstrated to me that she could not recognise risk and act in an appropriate and protective manner. In firstly having admitted certain conduct and then 48 WWC Act s 226(2)(a)(iv). 49 See, eg, most recently in SJG v Director-General, Department of Justice and Attorney-General [2025] QCAT 111. 50 MFI ‘C’ para 33. 51 MFI ‘B’ para 56. -- 17 of 22 -- 18 later denying it, she placed her own interest ahead of others. As AAW presented her case, notably with the assistance of a legal representative, she either blindly failed to have recognised and understood the reality of her past conduct, such being a failure to have recognised risk, or more concerningly intentionally endeavoured to convey a false reality, such being a failure to have acted in an appropriate and protective manner. [68] In all respects, the circumstances of AAW’s history are directly relevant to employment, or the carrying on of a business, that involves children and/or young people. On AAW’s case as she presented it, and the respondent’s material presented to assist me in evaluating that case, I was unable to find anything within this criterion that led me to a conclusion her case was not an exceptional one. To the contrary, it established with certainty that her case was an exceptional one. 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 … the court’s reasons for its decision52 [69] I did not need to have regard to this criterion given that there was no conviction. Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant53 [70] It is here that I return once again to the issue of insight, it falling more fully within this criterion. This is particularly so in terms of whether the requisite degree of insight has been shown to exist to the extent it is relevant to assessing the reduction of the risk demonstrated by AAW’s conduct that gave rise to the Indecent Treatment Charge, and in terms of the Choking Event. [71] As I have already indicated earlier in these reasons, in my opinion it is AAW’s possession of genuine insight that was the critical factor in the consideration of her application to obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA:54 The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. … A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on the children. [72] It is those emphasised words that loomed large in my consideration of AAW’s case. Put simply, AAW failed to demonstrate to me she had any awareness of the consequences of her action and/or the effect of same on others. The presentation of her case was entirely focussed on her own self-interest. [73] In his written closing submissions, Mr McNeil identified what he argued was an expression by AAW in her affidavit filed in this proceeding where she made this statement, it demonstrating an absence of development of insight:55 52 WWC Act s 226(2)(a)(v). 53 Ibid s 226(2)(f). I need not have regard to s 226(2)(c)–(e) as they are not relevant. 54 Re TAA [2006] QCST 11, [97] cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128] (my emphasis). 55 Ex 4 paras 14 and 16. -- 18 of 22 -- 19 I was further confused and upset by the decision to reject my application because there had been no conviction against myself nor had there been any finding of guilty for (sic) a court in association with any of the alleged facts of the QP9 document because my daughter [named] had confessed to make (sic) the false statements and I was cleared of any wrongdoing. … As a result, I feel that I should not have to defend myself against the alleged offence. I state that if there had been a finding of guilt then the rejection of my application would be understandable and justifiable. [74] This statement demonstrates a very clear absence of AAW understanding the relevant facts and circumstances and is a manifestation of her putting herself first. Whilst it is correct to have said that there was no conviction nor any finding of guilt, that was simply because the charge was not proceeded with. For her to say that she was “cleared of any wrongdoing” is to go well beyond the outcome. She was in no way cleared of anything and it remains open for the charge to be reinstated and for her to be prosecuted which may in turn ultimately lead to a conviction. [75] But moreover, her expression of an alleged fact of her daughter having confessed to making a false statement is without any substance. There is no evidence of any such confession nor of any recanting of same. But moreover, in his written closing submissions AAW’s solicitor attempts to minimise this by asserting that AAW had “previously misunderstood the factual basis underpinning the criminal charge she previously faced.”56 Once again such is a curious submission for a legal representative to have made because there is no evidence of his client realising that she had misunderstood something and in turn seeking to correct it in this proceeding. I reiterate my earlier comment – if a legal representative is going to make such a submission it must be made with reference to evidence. [76] At the start of AAW giving evidence before me she was afforded the opportunity to correct or amend anything in her affidavit as part of her evidence-in-chief, an opportunity she could have and should have taken up at that time to correct this misunderstanding. Otherwise, it should have been something her solicitor, acting as her advocate in the hearing, should have done during re-examination if that realisation occurred only because of the cross-examination by Mr McNeil. [77] In AAW’s presentation of her case, as I read her written evidence, heard her oral evidence, and observed her during the hearing, in my opinion she demonstrated that she entirely failed to understand the gravity of her past conduct that brought about the Indecent Treatment Charge, and the Choking Event, and in turn the exposure of harm to at least one of her children. Because she failed to do so, I was readily able to conclude that at the time she appeared before me she had not gained any insight into this past conduct. [78] Accordingly, I was not satisfied that she could afford a child or young person the necessary guidance to assist them in reaching an understanding of their situation if faced with similar circumstances, and thus guiding them in taking the steps necessary to take to avoid being in that situation. It was thus my conclusion that she did not 56 MFI ‘C’ para 78. -- 19 of 22 -- 20 present as a person in whom the care of children or young people in an employment or business circumstance could readily be entrusted. s 228(2) [79] Whilst consideration of the provisions of s 226(2) are mandatory in all cases such as the one before me, and as I have discussed already that consideration was sufficient for me to reach the conclusion I have just expressed, there were two other issues I should address briefly given the extent to which they were raised in the hearing and respective closing submissions, the consideration of which arose under the provisions of s 228(2) of the WWC Act. [80] Whilst I have considered the mandatory requirements as they are expressed under s 228(2) of the WWC Act, in my opinion it is not necessary for me to go through them in detail in these reasons. But that is not to say I did not consider these requirements to the extent necessary. There is a voluminous amount of documentary material filed before this Tribunal, which portrays various issues which arise for consideration under this provision. [81] Firstly, there is the issue of AAW admitting to the Choking Event as recorded in the Record of Interview. I need not elaborate on that in any detail, it being sufficient to say that my comments made previously about a development by AAW of insight in terms of such conduct equally apply here. AAW’s solicitor sought to diminish the relevance of this fact in his written closing submissions by arguing that despite the admission in the Record of Interview, AAW has not at any time since been charged with any offence arising out of such conduct, and that AAW not only acknowledges her behaviour was not acceptable, but she was ‘sorry’ for having behaved in such a manner towards her child.57 [82] Accepting those facts at face value to be correct, it does not change the fact that she engaged in such conduct in a circumstance where she became ‘annoyed’ at her daughter ‘giving her lip’. AAW did not demonstrate in any way in this proceeding that the triggers for her conduct have been addressed since then and that there was not a chance such conduct could once again occur if she became annoyed with a child in her care. [83] Secondly, there is the issue I touched on in paragraphs [41] and [42] herein about the purported ‘support letter’ from AAW’s daughter and the issue of AAW’s credibility. AAW’s evidence is that the content of each of these documents were prepared by her daughter on her phone and then sent to AAW for on forwarding to Blue Card Services. On the evidence before me I was unable to accept that as being true. AAW was unable to explain why there were various iterations prepared, nor why they were sent at various times, now why her daughter could not have sent them directly to Blue Card Services. If AAW wished for me to accept her evidence of them having been prepared by her daughter, and the issue of her daughter allegedly recanting a false statement, then she should have presented her daughter as a witness in the hearing. In the absence of any such explanation, or the presentation of her daughter as a witness to attest to those asserted facts, I inferred that, at best, the asserted support letter is a document, or series of documents of various iterations of the same basic content, prepared by 57 MFI ‘C’ paras 82 to 84. -- 20 of 22 -- 21 AAW herself. It is another example of the absence of a forthright presentation of her case, and one which demonstrated AAW lacked credibility before me. [84] Thirdly, there is the issue of the asserted character references contained in AAW’s material as an annexure to her affidavit. None of the persons who are said to have authored these documents were presented as a witness, to confirm the authenticity of the document and be made available for cross-examination to test the probative value of what was said therein. Often self-represented applicants fail to realise that they need to present such persons as witnesses in the hearing. But here AAW was not only assisted, but moreover represented by a solicitor, in the hearing. Her solicitor should have known that these persons would be required to be presented as witnesses if any weight was to be afforded the references it is alleged that they provided. In the absence of them being presented I was unable to give them any weight. Accordingly, she was left with nothing other than her own credibility to support her case, credibility I found to be lacking in its entirety. [85] Finally, there is the extensive material the respondent filed that dealt with an investigation by Child Safety,58 and the associated cross-examination of AAW and submissions from both parties. Given the findings I have made on the issue in this proceeding based on the other evidence that was before me to which I referred, in my opinion I need not have, and so did not, descend into any detailed consideration of it. To the extent it was traversed in the parties’ respective closing submissions, nothing turned on it that would change the decision I reached on the other material considered and which I have discussed in detail. It of itself would not lead me to a conclusion different to that which I have reached concerning the development of AAW’s insight and in turn whether her case was not an exceptional one. Conclusion [86] There was material filed before this Tribunal which portrays entirely unacceptable conduct engaged in by AAW. But that did not convey the whole story. To properly and comprehensively understand the circumstances in which she found herself, it was necessary to explore them more deeply than could be ascertained from reading the written words alone. Such is a necessary element of being able to deal with the requirement to consider when something is, or is not, an exceptional case by reference to fact and degree as I noted it in paragraph [24] herein. [87] That is what occurred in the hearing before me. It afforded me the opportunity to not just hear from AAW in terms of her spoken words, but to observe her in terms of her body language, facial reactions, and emotional reactions, all as a manifestation of her feelings when certain issues were being raised with her. In my opinion this is not merely beneficial, nor should it be said merely essential, it is critical in being able to not just be informed of the relevant circumstances but to understand the causes for the relevant conduct which resulted. This process establishes with a degree of certainty and clarity the relevant facts, and the relevant degree to which I could determine the extent of AAW’s development of insight. [88] In all respects, having listened to AAW in the hearing and considered her responses to that raised with her under cross-examination, as well as having observed her during the hearing, I was left with the impression, and so reached the conclusion, that AAW would not be suitable as a holder of a Blue Card. She not only lacked credibility before 58 This is as contained in Ex 3. -- 21 of 22 -- 22 me, but she also demonstrated a willingness and preference to put herself first, seemingly fabricating a story to suit her own needs. I was not satisfied she is a person who could be entrusted to ensure that the welfare and best interests of a child would be protected should she find herself in a position of caring for children in an employment of business setting. [89] That being so, I was not able to find AAW’s case not to be an exceptional case. Her circumstances did not conform to the general rule under s 221 of the WWC Act. To the contrary, I concluded her case to be an exceptional one such that it would not be in the best interests of children and young people for her to be issued with a Blue Card. It therefore followed that the correct and preferable decision was for a negative notice to be issued. Thus, there was no basis to set the Decision, and moreover it was to be confirmed. There was an order to that effect. [90] Finally, in conclusion it is necessary for me to return to the HR Act and make a few further comments as I noted earlier herein I would do so. Given the conclusion I reached, certain rights as enshrined therein were relevant in this proceeding, such which would be infringed by it. Such included AAW’s right to recognition and equality before the law and her right to privacy and reputation.59 AAW’s solicitor, in his closing submissions, argued that another right was relevant, it being the one found in s 32 of the HR Act, such being the right to be presumed innocent until proved guilty according to law. Whilst there is no doubt this is a right AAW is entitled to the benefit of, it is not a right which arises for consideration in this proceeding. It is a right afforded AAW in a criminal proceeding, this proceeding not being such. The submission by AAW’s solicitor in this regard was entirely misguided. [91] Critically, whilst AAW is afforded the benefit of certain rights under the HR Act which must be considered by this Tribunal, there was a competing right that could not be overlooked, it being the relevant human right on which AAW’s case in part turned. It is one that permissibly limits AAW’s rights in the circumstances of her seeking to be the holder of a Blue Card. That is the right that every child has, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.60 Thus, a decision that AAW’s case is an exceptional case for the purposes of s 221 of the WWC Act, such which might be said to infringe her human rights, will nevertheless be compatible with the HR Act. This is because, despite any limit the decision places on her human rights, the decision will be justified by the factors outlined under s 13 of the HR Act because, amongst other things, it will have the proper purpose of promoting and protecting the right, interests, and wellbeing, of children and young people. [92] Furthermore, any limitation on AAW’s rights remains consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children is paramount. Thus, to the extent AAW is afforded a right under the HR Act, by application of the WWC Act in conjunction with the HR Act in making the correct and preferable decision such rights must yield to the rights of a child and so be limited in a manner permissible under the WWC Act. That would include the making of a finding that the circumstance AAW found herself in is an exceptional case such as to deny her an entitlement to a Blue Card. Such is consistent with s 13 of the HR Act. 59 HR Act ss 15, 25. I pause to note that her right to privacy is protected by the de-identification of these reasons and the associated non-publication orders under s 66 of the QCAT Act. 60 Ibid s 26. -- 22 of 22 --