DCR v Director-General Department of Justice and Attorney-General [2025] QCAT 228

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DCR v Director-General Department of Justice and Attorney-General [2025] QCAT 228 PARTIES: DCR (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML324-21 MATTER TYPE: Childrens matters DELIVERED ON: 3 June 2025 HEARING DATE: 30 January 2024 HEARD AT: Brisbane DECISION OF: Member Davies ORDERS: The decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. Publication of information that may enable the identification of the Applicant, the witnesses and the children affected by this decision is prohibited. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to refuse an application to issue a working with children clearance FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – application for review of decision to issue a negative notice – where applicant has charges and other relevant information – where the charges did not result in a conviction – whether this is an exceptional case in which it would not be in the best interests of children for the applicant to be given a working with children clearance -- 1 of 11 -- 2 Human Rights Act 2019 (Qld), s 13, s 25, s 26, s 32, s 38, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226, s 228, s 353, s 360 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Director-General, Department of Justice and Attorney- General v CMH [2021] QCATA 6 ED v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 102 Johnston v Carroll [2024] QSC 2 Oliver v Queensland Racing Integrity Commission [2017] QCAT 50 APPEARANCES & REPRESENTATION: Applicant: G Rebetzke of Counsel Respondent: C Davis, Legal Officer, Department of Justice and Attorney- General REASONS FOR DECISION Introduction [1] In February 2021, the applicant (‘DCR’ or ‘Applicant’) made an application to be issued with a working with children clearance, also known as a blue card. After considering that application, the Director, Blue Card Services (Screening Services) Department of Justice and Attorney-General (‘Decision Maker’) decided to issue DCR with a negative notice (‘Negative Notice Decision’). That is, DCR was unsuccessful in obtaining a blue card. The reasons for the Negative Notice Decision were set out in a twenty-four-page document dated 26 August 2021 and which was sent to DCR (‘Reasons Document’).1 [2] In summary, the Decision Maker decided that DCR’s case was ‘exceptional’, and it would not be in the best interests of children for him to be issued with a blue card. Central to the Negative Notice Decision was the Decision Maker’s consideration of matters relating to DCR’s criminal history information. That criminal history was, in summary, that DCR had been charged with (but not convicted of) several serious 1 A copy of the Reasons Document forms part of exhibit 1. -- 2 of 11 -- 3 offences. These charges included rape, incest and maintaining an unlawful relationship with a child. [3] By his September 2021 application to the Tribunal, DCR seeks a review of the Negative Notice Decision. The central contentions set out in DCR’s application for review are that the Decision Maker made a number of errors. These asserted errors included that the Decision Maker failed to make a correct finding of fact and otherwise made an incorrect inference of fact, that the Decision Maker failed to give sufficient weight to DCR’s circumstances amounting to a jurisdictional error and that the Decision Maker failed to act fairly.2 [4] At the hearing of this matter and in post hearing written submissions the Applicant’s position was modified. There was a change from an assertion of error by the Decision Maker to a contention that DCR’s case was not ‘exceptional’ and it was therefore appropriate for him to be given a working with children clearance. This change was appropriate given that the role of the Tribunal is to stand in the shoes of the Decision Maker to arrive at the correct and preferrable decision.3 The Tribunal’s jurisdiction is not predicated on an assertion that the Decision Maker has made an error.4 The role of the Tribunal in determining this matter is addressed further below. [5] Thus, the ultimate issue for determination in this matter, can be phrased in the form of a question. That question is as follows – is DCR’s case exceptional so that it would not be in the best interests of children for him to be issued with a working with children clearance?5 [6] Before addressing this ultimate question, having regard to the evidence adduced before the Tribunal, it is appropriate to set out the legislative framework which governs the Tribunal in this matter. Legislative framework and role of Tribunal [7] The principal legislative enactments relevant to a review by this Tribunal of the Negative Notice Decision are the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’) – under which the Negative Notice Decision was made – and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) under which the Tribunal exercises its review jurisdiction. [8] The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons.6 [9] The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. [10] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.7 In meeting that purpose this Tribunal must hear 2 The written submissions of DCR attached to the Application at paragraphs 1-5. 3 QCAT Act s 20. 4 Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11]. 5 WWC Act s 221(2). 6 Ibid s 5. 7 QCAT Act s 20(1). -- 3 of 11 -- 4 and decide this matter by way of a fresh hearing on the merits.8 That is to say, this Tribunal must come to a decision on the evidence before it. [11] It is not necessary for DCR to establish that the Decision Maker fell into error in either the process or the reasoning that gave rise to the decision. Further, there is no presumption that the decision under review was correct.9 [12] In deciding this matter, this Tribunal has all the functions of the Decision Maker. So, in coming to a decision, this Tribunal is guided by the principles set out in the WWC Act. [13] Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.10 [14] The WWC Act provides, as a starting point in this matter, that a person in the position of DCR, should be allowed to hold a blue card unless that person’s situation is an exceptional case. An exceptional case is one where the decision maker, here it is the Tribunal, is satisfied that it would not be in the best interests of children for the applicant to be issued with a working with children clearance.11 [15] The term ‘exceptional case’ is not specifically defined in the WWC Act. As to what constitutes an exceptional case is a question of fact and degree having regard to the intent and purpose of the legislation. [16] Further, it is a term of common use in everyday language and the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.12 [17] In determining whether DCR’s circumstances constitute an exceptional case an appropriate framework for consideration of the material before the Tribunal is to consider: (a) The matters that the WWC Act mandates must be considered.13 (b) Any other matters that are relevant to the decision.14 This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised in [13] above, and any human rights relevant to the Tribunal’s determination. [18] With respect to human rights relevant to the decision, the Tribunal is a ‘public entity’ and is therefore also required to comply with s 58 of the Human Rights Act 2019 (Qld) (‘HRA’). Subject to some presently irrelevant exceptions, that section imposes two obligations on the Tribunal. They are the substantive obligation15 not to make a decision in a way that is incompatible with human rights and the procedural 8 Ibid s 20(2). 9 Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11]. 10 WWC Act ss 6, 360. 11 Ibid ss 221(1), 221(2). 12 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]- [35]. 13 WWC Act ss 226, 228. 14 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [42]. 15 HRA s 58(1)(a). -- 4 of 11 -- 5 obligation16 not to fail to give proper consideration to a relevant human right in making a decision.17 [19] The human rights that are relevant to the parties, particularly DCR, include the right to privacy and reputation,18 the right to a fair hearing19 and insofar as it involves the criminal proceedings against DCR, the right to be presumed innocent until proved guilty according to law.20 The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child.’21 Evidence [20] Before outlining the evidence before the Tribunal, some introductory observations are apposite. A determination of whether an exceptional case exists can only be made after evaluating all the available evidence.22 In this regard it is important to emphasise that a determination under s 221(2) of the WWC Act is an evaluative exercise rather than a fact-finding exercise.23 [21] Thus, as the Appeal Tribunal has recently stated, “it is not productive to approach the question of whether the Tribunal is ‘satisfied’ from the viewpoint of an onus or standard of proof”.24 [22] In evaluating the evidence, it must be recognised that the ‘ultimate question’ of what is in the best interests of children involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children’.25 [23] Whilst there can never be absolute certainty as to the future, speculation as to what might happen is, under the WWC Act, conditioned by having regard to the past. So, by mandating consideration of ‘relevant information’26 the WWC Act makes clear that past events provide guidance in addressing the ultimate question. [24] With this as background, what evidence was before the Tribunal? [25] The Respondent placed before the Tribunal two sets of documents. These consisted of firstly documents that were relevant to the Negative Notice Decision including the Reasons Document and related documents such as DCR’s a national police check report, police court briefs, transcripts of police records of interviews, witness statements and documents related to DCR’s blue card application.27 The second set of documents tendered by the Respondent consisted of three pages of a document that was produced as a result of a notice to produce (‘NTP’) issued by the Tribunal.28 The NTP document was not before the Decision Maker at the time of the issue of the 16 Ibid s 58(1)(b). 17 Johnston v Carroll [2024] QSC 2, [65]-[77]. 18 HRA s 25. 19 Ibid s 31. 20 Ibid s 32(1). 21 Ibid s 26(2). 22 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 23 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [19]. 24 Ibid [21]. 25 Ibid [16]. 26 WWC Act s 221. 27 Exhibit 1 – the BCS documents. 28 Exhibit 2 – the NTP document. -- 5 of 11 -- 6 Negative Notice Decision. The NTP document contained rather sparse information because of redactions. [26] For DCR several documents were put before the Tribunal. These documents consisted of a statutory declaration by him,29 a letter by DCR to the Decision Maker together with accompanying submissions and references,30 a document regarding DCR entitled ‘Brief History’,31 a set of (undated) submissions settled by the solicitors for DCR32 an expert report being a psychological assessment of DCR dated 29 June 2022 by a Consultant Psychologist and University Professor.33 In this regard, the report states that the Consultant Psychologist had the benefit of an in-person assessment of DCR shortly before he prepared his report. [27] DCR gave oral evidence at the hearing as did his (present) wife. In addition, the expert Consultant Psychologist also gave oral evidence. [28] Finally, post hearing written submissions were provided by both the Applicant and the Respondent. [29] From the above material certain matters are not in issue. These matters include: (a) That in July 2004 a series of allegations were made involving conduct by DCR. (b) The allegations were made in the context of a marital breakdown and at a time when DCR had primary care of two children of the marriage, a girl and a boy. In July 2004 the female child was aged about 11 years old and the male child about 9 years old. (c) These allegations resulted in criminal charges being preferred against DCR in relation to alleged conduct with the female child. (d) The charges were for serious offences being maintaining an unlawful relationship with a child, incest, rape and attempted indecent treatment of a child. (e) None of these charges resulted in a conviction. The attempted indecent treatment charge was not proceeded with by the prosecution and a nolle prosequi was entered. In respect of the other charges there was a jury trial. The jury returned verdicts of not guilty on all the charges they were asked to determine. (f) DCR maintains his innocence in respect of the charges preferred against him. Discussion [30] The WWC Act, in ss 226 and 228, mandates that the Tribunal, as the decision maker, must consider certain matters in deciding whether DCR’s case is exceptional. [31] Relevantly for this proceeding, the s 226 matters that the Tribunal must have regard to include those set out in s 226(2)(a). Most of the matters that the Tribunal must consider under this provision have been mentioned above including the absence of a 29 Exhibit 3. 30 Exhibit 4. These documents were also contained in Exhibit 1. 31 Exhibit 5. 32 Exhibit 6. 33 Exhibit 7. -- 6 of 11 -- 7 conviction in respect of any of the offences that DCR was charged with, the nature of the offences he was charged with and the time when the offences were alleged to have been committed.34 In relation to the length of time since the alleged offences, the Respondent submits that although over 20 years have passed since the alleged offences, the passage of time does not, of itself, negate the risk or otherwise detract from the gravity or seriousness of the allegations.35 [32] There are further matters under both s 226 and s 228 that must be considered by the Tribunal. Insofar as these matters are not addressed in the preceding paragraph they can be summarised as, firstly, consideration of the relevance of the offences that DCR was charged with to employment, or carrying on a business, that may involve children36 and, secondly, the broad requirement to consider ‘anything else’ relating to the alleged commission of the offences that the Tribunal reasonably considers to be relevant to an assessment of whether DCR’s case is exceptional.37 [33] As is appropriate for legislation that has, as its guiding principles, that (a) the welfare and best interests of children are paramount and (b) that every child is entitled to be cared for in a way that protects a child from harm and promotes the child’s wellbeing38 the ‘anything else’ provisions in ss 226 and 228 give the Tribunal a wide remit. In addition, the Appeal Tribunal has stated that the prescribed matters should not be considered in isolation and that there may well be ‘other factors’ that are relevant to determining whether a case is an exceptional one.39 [34] However, I consider, that there are limitations on this wide remit. ‘Anything else’ and ‘other factors’ must be limited to matters that have been established by the evidence before the Tribunal and are relevant to the issue of whether DCR’s case is exceptional. [35] Given the overlap in matters that merit consideration under ss 226 and 228 a suitable framework for evaluation of the evidence, in particular the evidence that touches on the matters that could be broadly described as falling under the heads of ‘anything else’ and ‘other factors’ is provided by setting out, in summary, the competing submissions of the parties. [36] The Respondent contends that DCR’s case is exceptional. This contention is based, in summary, on the following propositions: (a) That primacy should be given to the paramount principle and in so doing any detriment to DCR, such as a limitation on employment as a result of not holding a blue card, are not relevant. (b) Whilst recognising that DCR has not been convicted of any criminal offence the Respondent submits that the charges and, by extension, the conduct that gave rise to the charges should be considered. In support of this submission the Respondent refers to the explanatory notes to the Bill that became the WWC 34 See also WWC Act s 228(2)(e) which requires the Tribunal to consider, in respect of ‘other information’ the length of time that has passed since the conduct that gave rise to the criminal charges. 35 In support of this proposition the Respondent cites the Tribunal decision in Volkers v Commissioner for Children and Young People and Child Guardian [2020] QCAT 243, [65]. 36 WWC Act ss 226(2)(a)(iv), 228(f). 37 WWC Act ss 226(2)(f), s 228(g). 38 WWC Act s 6. 39 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [16]. -- 7 of 11 -- 8 Act40 which does manifest an intention to make a consideration of charges without convictions relevant to a person’s suitability to work with children. (c) The Respondent submits that the entry of a nolle prosequi and the jury findings of not guilty do not necessarily import innocence and that the totality of the evidence raises the possibility of a risk to children such that it would not be in the best interests of children for DCR to be issued with a working with children clearance. In respect of the totality of the evidence the Respondent, in written submissions, analyses in some detail the available evidence prepared for the 2005 trial of DCR and contends that veracity of the complaint child’s evidence and that of her brother should be largely accepted. Once accepted, the Respondent contends that as the WWC Act is protective legislation and that by applying a precautionary approach it would be appropriate to deny the Applicant a working with children clearance. (d) In referring to the totality of the evidence the Respondent highlights, amongst other matters; that the offences that DCR was charged with are both serious and disqualifying offences under the WWC Act; that DCR does not have contact with his daughter (the complainant child) even though some 20 years have passed and she is now an adult and highlighted the medical evidence regarding the child that was adduced at the criminal trial. (e) Taking these matters together the Respondent submits that the nature of DCR’s alleged offending makes his case exceptional. In this context the Respondent also relies on the contention that the material before the Tribunal does not disclose any reasonable or plausible motive for the compliant child to fabricate the allegations that she made. (f) The Respondent further submits that DCR’s alleged offending gives rise to considerations surrounding community expectation. I understand this submission to be based on the proposition that the nature of DCR’s alleged offending is such that the community would not consider him an appropriate person to be working with children – notwithstanding the absence of any conviction. (g) In relation to other relevant matters the Respondent submits that the holder of a blue card has unsupervised and unfettered access to children in a range of activities so that a blue card is unconditional and fully transferable across all areas of regulated employment. Further, that even if DCR might have skills that could benefit children, that is not a relevant consideration for this Tribunal. (h) With respect to the evidence of the consultant psychologist who conducted a psychological assessment of DCR in 2022, produced a report based on that assessment and gave oral evidence at the hearing, the Respondent submits that the conclusion in the psychologist’s report, namely, that DCR is a high functioning individual who is well suited to be permitted the opportunity to interact (and/or be in the presence of) children41 should be questioned. The asserted basis on which this conclusion should be questioned is set out in some detail in the Respondent’s post hearing submissions. In essence, the Respondent contends that the report is based on self-reported data, the unproven assumption 40 Explanatory Notes, Commissioner for Children and Young People Bill 2000, 11. 41 The concluding remarks of the report, exhibit 7 at paragraph 14.3. -- 8 of 11 -- 9 or conclusion that the complaint child’s allegations were false and other facts and conclusions that may not be accurate. Based on these contentions the Respondent invites the Tribunal to conclude that the report and the oral evidence of the consultant psychologist should be discounted. (i) The Respondent also contended that the Tribunal should treat DCR’s evidence regarding his 2005 trial with caution on the basis that some of his answers were not consistent with some of the available evidence from the trial and, in part, was inconsistent with the evidence of his now wife who attended the trial. [37] As is set out above, DCR’s contention is that his case is not exceptional. By way of reply to the Respondent’s submissions, DCR, in summary, highlights the following matters as being of relevance to an evaluation by the Tribunal of the evidence: (a) That the charges preferred against him were either not proceeded with or there was a jury finding that he was not guilty. Furthermore, DCR strongly denies the allegations, asserts that he is entitled to the presumption of innocence. (b) That the material gleaned from the police investigation does not make the allegations ‘exceptional’ and contends that the Respondent’s reference to aspects of the criminal trial such as corroboration and motive amounts to nothing more than a ‘where there is smoke there is fire’ contention. (c) DCR faced the charges some 20 years ago. That is, there has been a substantial period of time since the charges were preferred and a completely ‘clean’ record since then. (d) The context in which the allegations that gave rise to the criminal charges is relevant. That is that the allegations were made during a marital breakup and contested custody issues regarding the children of the marriage. In that regard it is contended that the charges have minimum relevance to employment or the carrying on a business that may involve children. (e) That DCR has no ongoing relationship with the complaint child, or her brother, does not support the proposition that DCR’s case is exceptional. (f) The expert report and oral evidence of the consultant psychologist who undertook a psychological assessment of DCR should be accorded significant weight. Amongst other matters DCR highlights that this expert witness is a very well credentialled and experienced psychologist who concluded that DCR did not raise any ‘red flags.’ Human Rights [38] In DCR’s post hearing submissions the rights under the HRA that are identified by him and are submitted to be relevant to evaluating the evidence in this matter are privacy and reputation, the protection of children and the presumption of innocence. [39] DCR submits that a negative notice would be unreasonable in the sense of being disproportionate to the legitimate aim of protecting children. Whilst recognising that human rights may be limited,42 DCR submits that a decision to allow him to have a 42 HRA s 13. -- 9 of 11 -- 10 working with children clearance cannot be said to have the effect of limiting the protections afforded by the State to children in general or in particular. [40] As to the presumption of innocence,43 DCR submits that it would not be reasonable or justifiable to limit the right to that presumption in this matter. Further, that a decision to issue a negative notice is a disproportionate response to the risk factor posed by the existence of a set of unproven allegations in DCR’s criminal history. [41] In post hearing submissions on the issue of limiting DCR’s human rights, the Respondent contends that a decision that DCR’s case is exceptional is consistent with the HRA in that the Act recognises that human rights may be limited. In support of that contention the Respondent places particular emphasis on the object, purpose and ‘paramount principle’ in the WWC Act. In support of that submission the Respondent helpfully cited observations in two recent Tribunal decisions.44 Evaluation and Conclusion [42] Having evaluated the evidence before the Tribunal the conclusion that I have come to is that DCR’s case is not exceptional. In coming to this decision, I have taken into account the very serious charges that DCR faced. Without more, those charges and the factual matrix that gave rise to them would point to a finding that DCR’s case is exceptional. [43] However, there are some significant factors that militate against a finding that DCR’s case is exceptional. Firstly, and of primary importance, is the evidence of the consulting psychologist who concluded that, in his forensic psychologist assessment, the Applicant presented as a high functioning individual who is well suited the opportunity to interact or be in the presence of children.45 [44] Secondly, it is more than two decades since the events that gave rise to the charges, the trial and the finding of not guilty. During that time DCR has not come to the attention of the police. [45] Thirdly, during that period DCR has remarried and he has participated in the joint raising of three children, including a daughter, who is now a teenager, with his current wife. DCR’s current wife gave evidence on his behalf at the hearing. She has full knowledge of the charges that DCR faced. Indeed, she attended his trial in 2005. I consider that DCR’s current wife constitutes an integral part of his support network. Non-publication [46] On 6 February 2023, prior to the hearing of this application, the Tribunal made a non- publication order. This order prohibited the publication of certain material to the extent that it could identify or lead to the identification of any child, any victim of an alleged offence or any non-party to the proceedings, save as is necessary for the parties to engage in and progress the proceeding. [47] The statutory power to make a non-publication order is contained in s 66 of the QCAT Act. The Tribunal’s power is discretionary. In support of a submission that the Tribunal should exercise that discretion and order what is, in effect, a continuation of 43 Ibid s 32(1). 44 DR v Director General Department of Justice and Attorney General [2023] QCAT 79; FG v Director General Department of Justice and Attorney General [2023] QCAT 497. 45 Exhibit 7, paragraph 14.3. -- 10 of 11 -- 11 the order of 6 February 2023, DCR contends that without a continuing non-publication order the identity of the complaint, a child at the time her allegation, and her sibling could be publicly available. Further, the Applicant submits that the publication of his name is not in the public interest in circumstances where he was not convicted of the 2004 charges and that the publication of his name could deter people from exercising their right to seek a review of an adverse decision in QCAT. [48] Whilst I do not consider there is substance in the asserted deterrence submission in this matter, I am persuaded to continue the non-publication on the basis that it would be contrary to the public interest for the names of DCR’s children to be published. Order [49] In addition to a non-publication order, the decision of this Tribunal is that the decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is “exceptional” within the meaning of section 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and replaced with the Tribunal’s decision that there is no exceptional case. -- 11 of 11 --