AMS v Director-General, Department of Justice [2025] QCAT 308

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: AMS v Director-General, Department of Justice [2025] QCAT 308 PARTIES: AMS (applicant) V DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE (respondent) APPLICATION NO/S: CML 334-23 MATTER TYPE: Childrens matters DELIVERED ON: 14 August 2025 HEARING DATE: 4 June 2024 HEARD AT: Cairns DECISION OF: Member Taylor ORDERS: The decision of the Director-General, Department of Justice dated 15 September 2023 that the applicant’s case is not an “exceptional case” within the meaning of s 225 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where the applicant had a criminal history involving offensive behaviour and aggravated assault of a sexual nature dating back to 1988 up to 1995 – where the applicant was recently charged with unlawful stalking but such proceedings were discontinued – where the respondent issued the applicant with a negative notice under the Working with Children (Risk Management and Screening) Act 2000 having regard to the entirety of the applicant’s criminal history - whether the applicant’s recent stalking charge was appropriately a basis for the issuing of a negative notice - whether the applicant demonstrated insight in to his historical criminal offences Criminal Law Amendment Act 1954 (Qld), s 2A1. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24, s 66 Human Rights Act 2019 (Qld), s 13, s 15, s25, s 26, s 48 -- 1 of 20 -- 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 15, s 221, s 225, s 226, s 354 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 Ram [2014] QCATA 27 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215 Re TAA [2006] QCST 11 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392 SWJ v Department of Justice and Attorney-General [2022] QCATA 119 TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: P. McNiell – Advocacy Officer Blue Card Services REASONS FOR DECISION [1] On 19 September 2024, this Tribunal gave a direction 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. Overview [2] AMS is a man in his 60’s. Between 20 and 45 years ago he was subject to six (6) criminal charges, the critical one for the purposes of his proceeding being aggravated assault of a sexual nature. Notwithstanding those charges, he has since been the holder of a Blue Card under the Working with Children (Risk Management and Screening -- 2 of 20 -- 3 Act) 2000 (Qld) (WWC Act) or its equivalent predecessor legislation in 2011, 2015 and 2020.1 [3] In 2021 he was again subject to a criminal charge, namely unlawful stalking in conjunction with the use or threatened use of violence. Its presence prompted the respondent to reconsider his Blue Card status. Notwithstanding the charge was discontinued by the prosecution, ultimately the respondent’s reconsideration led to AMS being issued with a negative notice, thus denying him a Blue Card. [4] He sought review of that decision in this Tribunal. For the reasons I discuss herein, he was unsuccessful in that review. I gave orders confirming the respondent’s decision. Background [5] In his younger years AMS was subject to six (6) criminal charges, one involving stealing, one of resisting police, one of behaving in a disorderly manner, one involving offensive behaviour, one involving aggravated assault of a sexual nature, and one involving public nuisance. The last three of these involved sexual acts involving men in public toilets. Such occurred respectively in 1990, 1995, and 2004. Notwithstanding that history, in March 2020 he had been issued with a Blue Card having previously been issued Blue Cards in January 2011, November 2015, and March 2020. In 2021 he was again subject to a criminal charge, on that occasion unlawful stalking with the use/threat of violence.2 [6] Having been informed on that charge in July 2021, the respondent invited submissions from AMS as to why he should not be issued with a negative notice, which if issued would effectively nullify his Blue Card status. [7] On 27 September 2022, the 2021 stalking charge was discontinued on a ‘no true bill’ basis after the prosecution determined, following a review of all relevant and admissible evidence, that there were no reasonable prospects of securing a conviction.3 Notwithstanding that discontinuance, after considering AMS’s submissions, on 15 September 2023 the respondent’s decision-maker decided that AMS’s case was not ‘exceptional’, as that term is used in s 225 of the WWC Act, concluding that it could not be said that it would not harm the best interests of children for him to be issued with a Blue Card. Thus, he was issued with a negative notice under the Act. (the Decision). [8] On 10 October 2023, AMS applied to this Tribunal for a review of the Decision. [9] It is against that background his application came before me for hearing and determination. The Issues [10] As I comprehended the filed material, the oral evidence, and the closing submissions made, in my opinion there were three issues in this proceeding that I had to consider, namely: 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. 2 Ex 1 pg BCS-15. 3 Ex 1 pg’s BCS-15 and BCS-68. -- 3 of 20 -- 4 (a) what relevance and weight should be attributed to the stalking charge in 2021; (b) whether AMS had moved on from the conduct he had engaged in in his younger years in which his criminal history arose; and (c) critically, whether AMS had developed the requisite degree of insight into that conduct such that it could now be said it would not harm the best interests of children for him to be issued with a Blue Card. [11] That being said, even if I was satisfied that he had moved on from that conduct but he was unable to show me that he could look back on it with the proper level of insight, given the presence of the ‘aggravated assault of a sexual nature’ it being a ‘serious offence’ for the purposes of the WWC Act, then it must lead to the conclusion that his case was one which did not fall within the category of an ‘exceptional case’ under s 225 of the Act so as to permit him to be issued with a Blue Card. [12] AMS argued it was such a case. The respondent’s representative submitted it was not. The Relevant Law The Nature of this Review Proceeding [13] 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.4 [14] 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.5 It was not necessary for me to consider whether the respondent’s decision-maker had made an error in making the Decision. [15] The hearing however was not a traditional adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. The respondent’s representative, whilst fulfilling the role of advocate in the hearing, was not participating in an adversarial role advocating for the correctness of the decision by the decision-maker, rather his role was to use his best endeavours to help me in deciding whether AMS’s case was exceptional or not.6 [16] There was also a focus on the cogency of AMS’s case as presented in the hearing. Whilst the respondent was there to assist me, it did not fall solely on the respondent to present the competing cases. AMS remained burdened with the task of presenting his case to persuade me that it was exceptional. However there was no onus placed upon him to demonstrate that an exceptional case did exist.7 [17] 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 4 QCAT Act s 19. 5 QCAT Act s 20. 6 QCAT Act s 21(1). 7 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. -- 4 of 20 -- 5 return the matter to the decision-maker for reconsideration with directions I considered to be appropriate.8 Working with Children (Risk Management and Screening Act) 2000 (Qld) [18] The principle issue in this proceeding is whether or not a negative notice should be issued. That required me to consider the nature of the offences with which AMS has been previously charged and in part convicted. [19] With the exception of the offence of aggravated assault of a sexual nature, it ordinarily would have started with s 221 of the WWC Act, that provision setting out that which I, as the effective decision-maker, was required to consider.9 For present purposes, in the circumstances of a conviction or charge being part of AMS’s history, it required a consideration of that contained in s 226(2), 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; (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; and (c) The principle that “the welfare and best interests of a child are paramount” is a consideration to which all others must yield, such being a principle that I was mandated to apply in this review. [20] To the extent that AMS has been convicted, but not of a serious offence, under s 221(1)(b) of the WWC Act the starting position would be that AMS is entitled to be issued with a Blue Card unless it is an exceptional case.10 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 AMS to be issued with a Blue Card.11 If that starting position stood without exception, then save only for what I say shortly herein about the charge of aggravated assault of a sexual nature, it would be in order for me to set aside the Decision. However if I was satisfied his case is one in which it would ‘not be in the best interests of children’, as that phrase appears in s 221, for him to be issued with such a clearance, thus an exceptional case, then a negative notice must be issued.12 In turn, that would mean it would be in order for me to confirm the Decision. [21] But the circumstances for AMS are different to that more common approach in proceedings such as these. This is because of the existence of the offence of 8 QCAT Act s 24. 9 This is the applicable provision because all but that charge are not ‘serious offences’ for the purposes of the WWC Act. Serious offences for the purposes of WWC Act are as described in Schedules 2 and 3 to the Act. 10 See WWC Act s 221(2) and s 221(3)(a)(iii), and s 221(3)(c). 11 Consider Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [4]. 12 WWC ACT s 221(2). -- 5 of 20 -- 6 aggravated assault of a sexual nature. Notwithstanding its age, it remained a relevant issue that must be considered in this proceeding. [22] That was a charge arising under s 344 of the Criminal Code as was in force from 20 December 1946 to 30 June 1997 if the circumstance of aggravation was that the unlawful assault was an offence of a sexual nature, such being as defined in the Criminal Law Amendment Act 1945 (Qld) section 2A1.13 Whilst such is now expressed in Schedule 3 of the WWC Act as being a ‘Repealed or Expired Serious Offence’, it remains a ‘serious offence’ for the purposes of s 15 of the WWC Act. That dictates consideration of s 225 of the WWC Act which is cast in language opposite in its operation to that of s 221 of the Act. [23] Under s 225, in the circumstances of a conviction for a serious offence the starting position is that a negative notice must issue. It is only in the circumstance that a point of satisfaction can be reached that it would ‘not harm the best interests of children’, as that phrase appears in s 221 of the Act,14 for a Blue Card to be issued that it would be an exceptional case. That is, the exception here is to not issue a negative notice, rather than the exception being, as it arises under s 221 where there is no serious offence, to issue a negative notice. [24] It is this provision that provides the way in which AMS’s application before this Tribunal must be considered. [25] But the WWC Act does not define an exceptional case. It thus creates a degree of complexity in applications of this type. In order 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:15 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’. 13 As defined therein ‘offence of a sexual nature’ includes any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over the offender’s sexual instincts and any offence in the circumstances associated with the committal whereof the offender has exhibited a failure to exercise such proper control over the offender’s sexual instincts and includes an assault of a sexual nature. 14 The distinct difference in phraseology from that appearing in s 221, as I extracted it in paragraph [20] herein, is notable. 15 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31] to [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. -- 6 of 20 -- 7 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. [26] Ultimately, it was a matter of discretion afforded me as the effective decision-maker, such that I was required to decide the question of 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 AMS’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 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 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] to [12]. Footnotes omitted. -- 7 of 20 -- 8 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. 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. [27] The criteria to which the Appeal Tribunal in Eales was referring is that now set out in s 226(2) of the WWC Act. But, the matters listed therein are not exhaustive, they merely being particular matters which I must consider in deciding the application.18 Accordingly later herein I discuss my consideration of that criteria. Human Rights Act 2019 (Qld) [28] There is also the application of the HR Act that I was required to consider.19 [29] 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 as far as is reasonable and justifiable.20 18 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [42]. 19 I pause here to observe that the respondent’s decision-maker recorded consideration of the HR Act in reaching the Decision, and that the respondent’s representative in the hearing appropriately, albeit briefly, referred to the HR Act in the respondent’s written submissions, but that AMS did not raise any issue in his closing submissions or at any other time during the hearing as to his human rights or the application of the HR Act. 20 HR Act s 13(1). The factors for determining what is reasonable and justifiable are set out in s 13(2) of the Act. -- 8 of 20 -- 9 [30] 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, considering the nature and extent of the limitation on the human right, and the balance between the last two points. That being said, 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.21 Such includes the WWC Act. [31] I return to the HR Act in my concluding comments in these reasons. The Evidence & Submissions [32] As the respondent’s representative was required to do,22 he provided material to this Tribunal, namely the Reasons for the Decision and other documents considered relevant,23 plus an ‘Outline of Submissions’ which became his written closing submissions elaborated on by way of oral closing submissions at the end of the hearing.24 He did not otherwise produce any further material at the hearing, nor did he call any witnesses. [33] In contrast, AMS’s material was minimal. He had not filed any statement given by himself nor any document which could be read as a ‘Life Story’, the latter being commonplace in proceedings such as these. At its highest his material filed in response to Directions for same was to address, albeit briefly, the background to the stalking charge.25 He was his only witness, not calling any other person nor seeking to tender any statements by other persons. However he was extensively cross-examined by the respondent’s representative, such drawing out some additional evidence which was of assistance to me. [34] 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 AMS in the conduct and presentation of his case and his responses to questions posed of him under cross- examination. That being so, before turning to a discussion on the application of the evidence in terms of the relevant criteria under s 226(2) of the WWC Act, it seemed to me it could be beneficial to any reader of these reasons for me to first set out those parts of the evidence presented which I considered relevant and of assistance in reaching my decision. AMS’s evidence & submissions [35] As I listened to AMS and understood the presentation of his case, AMS’s case could be readily summed up by that which he had expressed in his application to this Tribunal, namely: (a) The offences, which he described as having occurred 28 years ago, were “isolated and of a minor nature with no repetition”; and 21 Ibid s 48(1) & (2). 22 QCAT Act s 21(2). 23 Ex 1 & Ex 2. 24 Marked for Identification ‘A’ in the hearing. 25 Ex 4 excluding 2 x USB sticks referred to therein, such which became Ex 5 and Ex 6. -- 9 of 20 -- 10 (b) The fact that the stalking charge was not proceeded with demonstrated his innocence of that offence. [36] Notwithstanding the sparsity in content of AMS’s documentary material, I afforded him the opportunity of expanding on it should he wished to do by giving an opening statement and oral evidence. He took up that opportunity, informing that he has been doing community volunteer work as a Torres Strait Islander with the Amaroo Community Justice Group, is an Elder in his community, holds an undergraduate degree in social science assisting First Nations people, and is now doing a post graduate diploma in psychology with future planes for studies to be done in mental health and to gain further knowledge in First Nations law.26 He also explained that he has had to educate himself in behaviour with others. [37] He also sought to explain the circumstances that gave rise to the stalking charge, such being by reference to video recordings that were viewed during the hearing.27 As he explained it, these were recordings made by him on his phone during interactions he had with other tenants in the unit complex in which he then resided, and in terms of which he later made complaints about to the Department of Housing. [38] Under cross-examination the respondent’s representative took AMS through a substantial amount of the documentation contained in the respondent’s material. In my opinion it is not necessary for me to recount that in these reasons. As I listened to it during the hearing I formed the view that it was directed to continue the line of reasoning adopted by the respondent’s decision-maker in reaching the Decision under review, namely as expressed in the Reasons document:28 … when these offences are considered in conjunction with his recent alleged offending, the concern is raised that the triggers of the applicant’s offending may have re-emerged. [39] It did however draw out one fact that the respondent’s representative drew my attention to in his closing, namely that AMS said he could not remember much of what occurred which gave rise to the historical charges, more particularly those involving other men in public toilets. [40] In contrast to the respondent’s closing submissions, AMS’s closing was significantly short. But notwithstanding that, it was focussed. He concluded with these statements: (a) He has changed his behaviours by educating himself in terms of interacting in society; (b) His strengths are providing services from a cultural perspective and living in a diversity of cultures and a multi-cultural society; (c) As to the stalking charge, the issue is the manner in which the information has been interpreted; and (d) As to his past convictions, they were in terms of adult persons – not children. 26 Much of this was repeated and confirmed under cross-examination. 27 Ex 5 and Ex 6. 28 Ex 1 pg BCS-10 at the first bullet point within s 6 therein. -- 10 of 20 -- 11 The respondent’s submissions [41] As I noted it earlier, the respondent’s representative did not lead evidence from any persons, containing the evidence to that found in the respondent’s documentation filed and that of AMS provided under cross-examination. Extensive closing submissions however were provided. [42] He sought to argue in closing that the three offences in 1990, 1995, and 2004 showed a pattern of conduct, however acknowledged that they are substantially historical and thus the passage of time was favourable to AMS’s case in response to the Decision. But given that passage of time, and AMS’s apparent absence of recollection of much of the circumstances that gave rise to the charges, he submitted that I would have difficulty in assessing AMS’s insight into these offences and identifying the relevant protective factors (if any) that may now be in place. Related to this, he emphasised that AMS’s characterisation of his historical offending as being ‘of a minor nature’ should raise concerns as to an apparent absence of AMS having developed insight into the unacceptable nature of that conduct. [43] There was however an acknowledgement on behalf of the respondent that the character references presented by AMS to the respondent in response to the invitation for submissions when he was notified of the possibility of a negative notice being issued speak highly of AMS,29 and that I had heard evidence from AMS about his present support network, namely his family, his church, and the education which he has been and continues to undertake. [44] As to the relatively recent stalking charge, whilst the respondent’s representative acknowledged that it had been discontinued, he submitted the conduct behind it, as evidenced by that shown in the video recordings watched during the hearing, demonstrated AMS had ‘a short temper’ and that his conduct escalated the situation, thus raising concerns about the extent to which AMS was seized of satisfactory conflict management skills. [45] The respondent’s representative maintained that AMS’s case remained as one which in terms of s 225 of the Act it was not exceptional. As it was noted in his written closing:30 Overall, the Applicant’s offending and alleged offending raises questions about … his ability to respect personal boundaries and respond to situations of stress or conflict in a rational and safe manner. Those concerns, in turn, raise questions about the degree to which the Applicant may pose a risk to children or young people who may be in his care. Such concerns are … compounded by related concerns about the Applicant’s insight. … the Tribunal would not be satisfied that this is an “exceptional case” in which it would not harm the best interests of children for the Applicant to be issued a blue card. [46] Finally, the respondent’s represented emphasised the relevant test for me to engage is that provided for under s 225 of the WWC Act, drawing my attention to the decision of this Tribunal’s Appeal Division in Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 (Ram), but that there was a factor in 29 These are found in Ex 1 at pg’s BCS 37 to 40. 30 Doc MFI ‘A’ para’s 70 and 72. -- 11 of 20 -- 12 AMS’s favour that was not found in Ram, such that the passage of time in Ram was short whereas in AMS’s case the passage has been lengthy. [47] For the reasons I explain in the paragraphs that follow here wherein I discuss the relevant criteria, I agree mostly with his submissions. The Relevant Criteria [48] Whilst I accept that the documentary evidence, as it was presented before me albeit with only a small part of it referenced herein, does on one reading convey a message that could lead to a conclusion that AMS’s case is an exceptional one for the purposes of s 225, in my opinion it does not derogate from the circumstances AMS was in, as I observed and understood them to be, at the time of the hearing. [49] What I observed of him, and understood from his answers to the questions posed of him and the expression of his views, both by way of spoken and body language, in my opinion demonstrated an absence of the development of a requisite degree of insight over the intervening 30 years or so since he engaged in the behaviour which brought about those historical convictions, particularly the serious offence conviction. For that reason I accept the submission that he demonstrated an absence of insight. [50] However, I do not agree with the submission that AMS’s conduct which brought about the stalking charge is such as to warrant the assertion that he has ‘a short temper’, nor that he was not seized of satisfactory conflict management skills. As I watched and considered the video recordings of the events which were behind the stalking charge, I was left with the impression that AMS was the recipient of entirely unsatisfactory engagements with him by other residents in the unit complex in which he resided. Whether this was because of his ATSI heritage or for some other reason it was entirely unclear, but it was evident to me that there was some prejudice held against him by the other persons shown in those videos. To the extent that he is recorded therein as having reacted in a manner which might suggest ‘a short temper’ or being ‘absent conflict management skills’, on my viewing of those recordings I formed the view that the engagement he found himself in was such that his reactions were at most those arising from frustration of having to be involved in such circumstances, and to some degree having a bias held against him. For these reasons I did not give the stalking charge any substance in terms of the issues I was required to consider in this review [51] That being so, as I discuss the relevant criteria in the paragraphs that follow here, I dealt with the issues with reference solely to the historical charges, and more specifically the three charges involving interactions with other men in public toilets, and in particular the charge of aggravated assault of a sexual nature, it being the ‘serious offence’ for the purposes of the WWC Act. In doing so, as I explain in the paragraphs that follow here, I reached the conclusion that his case was not exceptional for the purposes of s 225. Section 226(2) Whether the offence is a conviction or a charge31 [52] Only one of the charges shown on AMS’s criminal history resulted in a conviction being recorded.32 But that is not to minimise those for which no conviction was 31 WWC Act s 226(2)(a)(i). 32 Ex 1 pg BCS 15. -- 12 of 20 -- 13 recorded. They all demonstrate behaviour of a person who has in the past found himself in a circumstance which gives rise to, at the very least, questions being asked about his conduct and his ability to react with other persons in a manner consistent with accepted norms in society. [53] That being said, I do not agree with AMS’s characterisation of any of the offences for which he was charged, whether or not such resulted in a conviction, as ‘of a minor nature’. The mere existence of them and the background facts to them all carry weight in a consideration of whether this Tribunal can reach the relevant degree of satisfaction that it would not harm the best interests of children for AMS to be issued a Blue Card. Whether the offence is a serious offence, and whether it is a disqualifying offence33 When the offence was committed34 [54] For reasons that will become apparent on continued reading of these reasons, it is appropriate that I discuss these two criterion together. [55] As I have already noted it, one of the offences with which AMS was charged is a ‘serious offence’ for the purposes of the WWC Act, however none of the charges / convictions was a disqualifying offence under the Act. Notwithstanding that some of the offences were not ‘serious’, the entire existence of his actions which brought about his criminal history remained relevant in determining his eligibility to work with children in regulated employment, such being the intention of Parliament in enacting this provision within the legislation.35 [56] Moreover, the relevance is not just the existence of an offence but the conduct which brought the charge for it. Such is a critical factor in terms of those charges which are ‘serious’ given the importance with which Parliament has treated such conduct in the context of child-regulated employment. That importance is readily apparent given the extent to which the exception which I discussed earlier is effectively reversed from that provided for in terms of offences which are not ‘serious’ for the purposes of the Act. That degree of relevance is readily found in the reasoning of the Appeal Tribunal in Ram. [57] In that matter, Mr Ram required a Blue Card to enable him to undertake a student placement necessary for the completion of his pharmacy studies, and so applied for one in March 2012. At that time, the relevant scheme was one administered under the Commission for Children and Child Young People and Child Guardian Act 2000 which the Appeal Tribunal referred to as the ‘Commission Act’,36 the relevant parts of it being effectively identical with that I must consider under the WWC Act. The information received from the QPS identified that Mr Ram had a history of criminal offending including a conviction for a serious offence on 16 November 2009 for robbery in company/used personal violence. Mr Ram also had offences for wilful destruction, burglary and stealing in 2007. There was also 4 counts of drug offences and possessing utensils and pipes in 2008 and 2010, and also a number of charges that did not proceed or lead to a conviction relating to 2 counts of assault occasioning 33 WWC Act s 226(2)(a)(ii). 34 WWC Act s 226(2)(a)(iii). 35 Consider 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. 36 Its name was later changed to the WWC Act. -- 13 of 20 -- 14 bodily harm in 2008 and 2011, deprivation of liberty – unlawful detain/confine in 2008, and unlawful use of a motor vehicle in 2008.37 [58] At first instance, the learned Tribunal Member expressed the following observation concerning the passage of time since Mr Ram’s offending and the extent to, and manner in which, Mr Ram had considered that offending in the relatively short passage of time since it had occurred.38 However the Tribunal still has serious concerns that Mr Ram was less than fully frank in his evidence. He continued to minimise the impact of his behaviour on his victims. It has only been slightly more than 2 years since he last appeared in court. [59] In terms of this passage, the Appeal Tribunal expressed these observations:39 In view of the reservations expressed by the Tribunal on review about Mr Ram’s credibility, the Appeal Tribunal considers that it would be unsafe to make a finding that Mr Ram has developed insight about the impact of his unlawful and violent behaviour on those persons who were the subject of his behaviour. Similarly the Appeal Tribunal is not able to reach a finding that Mr Ram would have insight into the impact that such behaviour would have on vulnerable persons in need of protection. The Tribunal on review made findings about Mr Ram’s change in circumstances since the offending behaviour referred to as a ‘subsequent turnaround’ following his last appearance in court. The objective changes in lifestyle are clear: returning to education via TAFE and university, taking up of exercise and healthy eating choices, reengagement with his family. However the evidence about the other changes is largely self reported (sic) by Mr Ram: ceasing drugs in February 2011 and distancing himself from prior associates who had had a negative influence on him. [60] Noting this and other evidence that was before the Tribunal, the Appeal Tribunal then stated:40 … The Appeal Tribunal is not persuaded, due to the lack of objective evidence and the short period of time since his last offending, that Mr Ram’s turnabout is as complete as is claimed by him. [61] It is against this background that the Appeal Tribunal then expressed some views on the relevant test for exception in the legislation as it then applied, such which as relevant to this proceeding in terms of AMS equally applies under the WWC Act, namely:41 … The question is whether this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. The legislation has placed a barrier to persons with a conviction for a serious offence from working with children. The offence of robbery in company/used personal violence has been categorised in the Commission Act as a serious offence 37 This is as it was described in the learned Appeal Tribunal Members in their reasons in Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27 at [1] to [4]. 38 Ram v Commissioner for Children and Young People and Child Guardian [2013] QCAT 215;[87] 39 Commissioner for Children and Young People and Child Guardian v Ram [2014] QCATA 27;[41] and [42]. 40 Ibid at [43]. 41 Ibid at[46] and [47]. Emphasis added. Footnotes omitted. -- 14 of 20 -- 15 despite not intrinsically being an offence against children. The proper inference to draw from the Commission Act must be that it would harm the best interests of children for persons with convictions for that offence to work with children unless it is an exceptional case. This is in keeping with the objects of the Commission Act to promote and protect the rights, interests and wellbeing of children in Queensland. The Appeal Tribunal cannot be satisfied that, based on a consideration of Mr Ram’s circumstances as set out in these reasons, involving both the risks and the protective factors, that there were exceptional circumstances for the purposes of exercising discretion under s 225 of the Commission Act. Mr Ram has made changes in his life but changes that amount to him living his life in a law abiding manner as society expects. He has not shown he has insight into how his past violence and disregard for legal restrictions on his choice of conduct might affect his dealings with others, particularly vulnerable people. Mr Ram’s evidence is put no higher than he is now functioning in the community at a level expected of a person of his stage and age in life. These changes do not take Mr Ram’s circumstances outside of what is otherwise the “ordinary course”. His case is not exceptional. [62] AMS’s present circumstances is, as he described them to me, save only for one issue somewhat similar to Mr Ram’s. It is that saving issue which leads to the second aspect of the discussion on these two criteria together, it being the duration of the passage of time since not only the serious offence but the other historical offences, such being a distinguishing factor to Ram. [63] It might be thought and said that a significant passage of time has passed since AMS’s offending behaviour which brought about those historical charges, and so diminish the weight to be attributed to his earlier conduct when considering the question of an exceptional case, particularly when, as he sought to argue before me as being relevant, there is no evidence of any further offending conduct since that time. [64] But I do not agree with such a proposition. In my opinion 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. 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, if he/she was going to, have 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 learned. [65] 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) [2011] QCATA 87 wherein the Appeal Tribunal considered the issue and expressed this observation: 42 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 42 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87,[53] to [55]. -- 15 of 20 -- 16 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. [66] I also made a similar observation in SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392, wherein I had cause to consider the issue of the passage of time in reference to the level of insight demonstrated by the applicant, wherein I said: 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.43 [67] The application of both of these criterion, given the circumstances as I have just discussed them, was a barrier for AMS to have overcome in the presentation of his case for an entitlement to a Blue Card. In my opinion, he did not overcome it. [68] As AMS expressed it in his closing address, he has changed his behaviours by educating himself in terms of interacting in society. But this is to say no more than what he is doing now is consistent with that which is expected in society of a person of his stage and age in life. Of itself, that was not enough to persuade me that his case is exceptional given the existence of the serious offence, particularly in circumstances where he seemingly sought to diminish the seriousness of it by described it to be ‘of a minor nature’. That demonstrates to me an absence of the development of a requisite degree of insight into that past conduct. [69] Moreover, whilst the issues that gave rise to the ratio of the Appeal Tribunal’s decision in Ram do not arise in these proceedings such that it is a decision I am bound to follow under the doctrine of stare-decisis, the reasoning that led to that ratio is highly persuasive such that I should not ignore it. The emphasised parts of the passage from the reasoning therein which I extracted in paragraph [61] herein are telling. As noted, the legislation has placed a barrier to persons with a conviction for a serious offence from working with children. It is a barrier that, without more, I cannot ignore. That more could only come from a demonstration of the development of insight, such which AMS failed to demonstrate given his description of that earlier offending as being ‘of a minor nature’. [70] There was however another element of similarity with the facts and reasoning in Ram that I considered relevant. Returning to the definition of ‘an offence of a sexual nature’ that I referenced in paragraph [22] herein, there was an entire absence of any evidence from AMS where, with the passage of time, it can be shown that he has in any way effected a degree of control over his sexual instincts that brought about the charge for what is for the purposes of the WWC Act a serious offence. He should have done so. 43 SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392,[68]. -- 16 of 20 -- 17 Rather he chose to describe the offence as being ‘isolated and of a minor nature’ thus seemingly seeking to minimise the importance of such. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children44 [71] The seriousness of what transpired in the events that led to the offences for which AMS was charged and in part convicted, should not minimized. It is entirely unacceptable behaviour in any normal aspect of society, and in my opinion should weigh heavily against an applicant for a Blue Card in consideration of this criterion. [72] Whilst what I observed of AMS during the hearing indicated to me that, as I have already discussed earlier in these reasons, demonstrated that he has progressed beyond the circumstances as they existed at those times, that of itself was not enough. More was required, that more being a demonstration of his acceptance of those circumstances as today being unacceptable in society. [73] Moreover, as I often hear the argument from applicants in these types of matters their offending did not involve children, thereby seemingly seeking to distant it from being relative in their case for holding a Blue Card, sadly this was again one of those occasions. As I listened to AMS’s evidence, even though his conduct was not directed specifically towards any child, notwithstanding the passage of time since the offending conduct occurred I was not able to discern that he had developed any level of understanding extending to the manner in which such relates to him being in an employment or business situation concerning and involving the care of children. [74] Once again, his characterisation of his offending conduct as being ‘of a minor nature’ demonstrated to me that he was not able to make any connection between socially unacceptable conduct engaged in by an adult, albeit as between adults, who also sought to be authorised at law to care for children and young people. [75] For these reasons save only for the submission related to the stalking charge, I agree with the submissions from the respondent’s representative on this criterion. The presentation by AMS of his case before me failed to demonstrate to a sufficient standard that he is presently seized with the ability to judge appropriate behaviour and to respect and maintain appropriate personal boundaries. This raises questions about his ability to provide an environment which is safe and protective to children who may be in his care.45 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 decision.46 [76] The respondent did not provide me with copies of any sentencing remarks concerning AMS’s offences. It is a requirement that they be considered, but only if they exist.47 [77] At its highest, the respondent’s material noted that AMS had been variously sentenced to good behaviour period, forfeited bail, or fines and probation. Given the mandatory provisions of this criterion, I infer that in the absence of anything else the respondent 44 WWC Act s 226(2)(a)(iv). 45 See MFI ‘A’ para 47. 46 WWC Act s 226(2)(a)(v). 47 See SWJ v Department of Justice and Attorney-General [2022] QCATA 119, in particular at [16] to [19]. -- 17 of 20 -- 18 identified that sentencing remarks simply did not exist for the historical charges. For that reason I could not and so did not have regard to such material. Anything else relating to the commission of the offence I reasonably consider to be relevant to the assessment of the applicant48 [78] Whilst I have already touched on the issue of AMS’s insight within my discussion on other criterion, I return to it here because it is AMS’s possession of genuine insight which is, in my opinion, a critical factor in the consideration of his application to obtain a Blue Card. As it was put by the former Children’s Services Tribunal in Re TAA: 49 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. [79] With that in mind I need only return to that which I noted at paragraphs [65] and [66] as to other cases dealing with the question of insight. [80] Those comments are particularly relevant to the cogency of AMS’s case as it was presented before me. Similar to AMS case, these comments were made relevant to circumstances where there had been a lengthy passage of time between the offending conduct and the application before the Tribunal where the views of the applicant had not seemingly changed over that time. Unlike the facts before me in SS, AMS did not suggest to me that he would repeat the conduct which led to his historical offences, but he did appear to minimise the seriousness of that conduct now almost 30 years later by asserting it to be ‘of a minor nature’. Thus, the observations I expressed in SS are relevant here. The passage of time since the offending conduct seems not to have had any impact on AMS in terms of his view of that conduct. [81] It cannot be said with any substance that society in general would hold the same view as that held by AMS. His conduct, particularly in the circumstances of its consideration relative to the issuing of a Blue Card, was not of a minor nature. Moreover, in terms of the ‘aggravated assault of a sexual nature’ it is one that was viewed by Parliament as being necessary to characterise as a ‘serious offence’ which in turn, as I noted it earlier, has placed a barrier to persons from working with children. [82] AMS had the opportunity to present a case to this Tribunal that this barrier should be removed by persuading the Tribunal that his case was exceptional. He could have done this by presenting evidence to show that, over the lengthy passage of time since, he had developed the requisite degree of insight such that, at the very least, he would no longer have considered his past offending to be ‘of a minor nature’. That being so, like the circumstances in the cases of Lister and SS to which I referred earlier where the applicants therein had not demonstrated that they had in any way become aware of the true nature of their conduct, AMS similarly failed to demonstrate to me with clarity his development and now possession of that awareness. 48 WWC Act s 226(2)(f). I need not have regard to ss 226(2) (c) to (e) as they are not relevant. 49 Re TAA [2006] QCST 11, [97] cited with approval in TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121, [128]. -- 18 of 20 -- 19 [83] Whilst there were positive factors in the presentation by AMS of his case in terms of his personal development over that passage of time, it is worthy of repeating here such was effectively nothing higher than a demonstration that what he is doing now is consistent with that which is expected in society of a person of his stage and age in life. It was not enough to show that he had gained the requisite degree of insight so as to surmount the hurdle before him found in the prohibition enshrined in s 225 of the Act. [84] Accordingly, I was not satisfied that he 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 so as to avoid being in that situation. It was thus my conclusion that he did not present as a person in whom the care of children or young people in an employment or business circumstance could readily be entrusted. Conclusion [85] In all respects, having listened to AMS in the hearing and considered his responses to that raised with him under cross-examination, as well as having observed him during the hearing, whilst I was initially impressed with him in a general sense as being a person who, at face value, one would see as being suitable to be the holder of a Blue Card, it was his characterisation at that time of the hearing of his offending conduct many years ago as being ‘minor’ which indicated a contrary view was the correct one. I could not be satisfied that it would not harm the best interests of children for him to be permitted a Blue Card. [86] That being said, 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 [87] Given the conclusion I reached, in my opinion a number of human rights were relevant in this proceeding, such which would be infringed by it. Such included AMS’s right to recognition and equality before the law and his right to privacy and reputation.50 But there was a competing right that could not be overlooked, and one that was permissibly considered by me that may limit AMS’s rights in the circumstances of him 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.51 Thus, a decision that AMS’s case is not an exceptional case for the purposes of s 225 of the WWC Act, such which might be said to infringe his rights to which I have just referred, will nevertheless be compatible with human rights. This is because, despite any limit the decision places on his human rights, the decision will be justified by the factors outlined under s 13 of the HR Act. This is because, amongst other things it will have the proper purpose of promoting and protecting the right, interests, and wellbeing, of children and young people. [88] Furthermore, any limitation on AMS’s human rights remains consistent with the object, purpose and principle of the WWC Act, being that the welfare and best interests of children are paramount recalling such being a consideration to which all other factors must yield. Thus, to the extent AMS is afforded a right under the HR Act, in 50 HR Act s 15 and s25. I pause to note that his right to privacy is protected by the de-identification of these reasons. 51 Ibid s 26. -- 19 of 20 -- 20 making the correct and preferable decision, by application of the WWC Act in conjunction with the HR Act such right 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 AMS found himself in is not an exceptional case such as to deny him an entitlement to a Blue Card. Such is consistent with s13 of the HR Act. [89] All that being so, in conclusion it need only be said that I was not able to find AMS’s case to be an exceptional case, but rather it conformed to the general rule in the circumstances of an historical serious offence such that a negative notice must issue. It therefore followed that the Decision is the correct and preferable one, and that it should be confirmed. There was an order to that effect. -- 20 of 20 --