DM v Director-General, Department of Justice and Attorney-General [2022] QCAT 199

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DM v Director-General, Department of Justice and Attorney-General [2022] QCAT 199 PARTIES: DM (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML277-20 MATTER TYPE: Childrens matters DELIVERED ON: 30 May 2022 HEARING DATE: 3 September 2021 HEARD AT: Cairns DECISION OF: Member Stepniak 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. CATCHWORDS: KEY LEGISLATION: CHILDREN’S MATTER – BLUE CARD – where convicted of offences – where offences neither serious nor disqualifying –where offences committed when young – where after being convicted of offences worked in child related employment - where issued a negative notice – whether an ‘exceptional case’ HUMAN RIGHTS ACT – BLUE CARD SCREENING -– where decision limits human rights - where children’s rights are ‘paramount’- whether an applicant’s hardship is relevant –whether the paramountcy of a right permits any limitation of competing rights – whether the case is an ‘exceptional case’ International Covenant on Economic, Social and Cultural Rights Articles 4, 6. Crimes Act 1900 (NSW), ss 35, 59. Drug Misuse and Trafficking Act 1985 (NSW), s 25. -- 1 of 24 -- 2 KEY CASES: Human Rights Act 2019 (Qld) ss 4, 8, 13, 21, 23, 25, 26, 31, 36, 58. Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 19, 20, 21, 24, 28, 66, 90. Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 220, 221, 225, 226, 318, 319, 335, 337, 338, 353, 354, 360, 361; Chapter 8, Part 4, Division 9; Schedule 1, s 11.; Schedule 2; Schedule 4; Schedule 7. Briginshaw v Briginshaw & Anor [1938] HCA 34 Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86 Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 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 and Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. HF [2020] QCAT 482 JF [20220] QCAT 419 Kent v Wilson [2000] VSC 98. LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244. Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302 McKee v McKee [1951] AC 352 PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1. Re TAA [2006] QCST 11 Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms J Capper, representing the Director-General, Department of Justice and Attorney-General -- 2 of 24 -- 3 REASONS FOR DECISION [1] On 20 March 2019, DM (“the Applicant”) lodged an application for a working with children clearance and blue card,1in order to be able to engage in sport and active recreation child related employment.2 [2] On 13 May 2019, Blue Card Services advised the Applicant that a working with children check had identified information relating to his criminal record that raised concerns about his ‘eligibility to hold a blue card.’3 He was invited to view the materials of concern and to make submissions as to why he thought he was eligible for a blue card.4 [3] Blue Card Services did not receive any submissions from the Applicant and on 10 June 2020 advised the Applicant that Blue Card Services had decided to issue him with a negative notice. He was provided with written reasons for the decision and advised of his entitlements to reapply and apply to have the decision reviewed by the Queensland Civil and Administrative Tribunal (“the Tribunal”).5 [4] On 14 July 2020 the Applicant lodged his application to the Tribunal seeking a review of the Respondent’s decision and a stay of the Respondent’s decision. [5] On 14 July 2020, the Tribunal refused to stay the Respondent’s decision and provided written reasons for why the Tribunal did not have the power to do so.6 [6] The review application was heard on 3 September 2021. Relevant Law [7] The Working with Children (Risk Management and Screening) Act 2000 (Qld) (“the WWC Act”), the Act under which the Respondent’s decision was made, empowers the Tribunal to review its reviewable decisions.7 The WWC Act’s reviewable decisions include that made with respect of the Applicant––‘a decision of the chief executive as to whether or not there is an exceptional case for the person if, because of the decision, the chief executive issued the person a negative notice.’8 [8] The Tribunal’s review of this reviewable decision is governed by not only the WWC Act, but also the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) and the Human Rights Act 2019 (Qld) (“the HR Act”) [9] The nature of this review is not that of an appeal but rather that of a fresh hearing. The QCAT Act provides that in this review the Tribunal has ‘all the functions of the 1 BCS – 7-11, (BCS - Materials relied on by the Respondent). 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 156; Schedule 1, s 11. 3 BCS-18. 4 BCS-18 5 BCS–28. 6 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354(2)(a). 7 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 354; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17. 8 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 353(a)(i). -- 3 of 24 -- 4 decision maker for the decision being reviewed’9 and ‘undertakes a fresh hearing on the merits.’10 [10] A significance of this review being a ‘fresh hearing on the merits’ is that the Tribunal considers not only the evidence that was before the decision maker when the original decision was made, but also any additional or more recent evidence relevant to the Tribunal’s review.11 [11] Neither party bears the onus of proof of establishing whether the case is an exceptional case.12 The Tribunal determines whether the case is exceptional by considering all available evidence and reaching a decision ‘on the balance of probabilities, while bearing in mind the gravity of the consequences involved,’13or ‘bearing in mind the nature of the reviewable decision.’14 [12] The QCAT Act requires the Respondent as, ‘the decision-maker for the reviewable decision’ to ‘help the tribunal so that it can make its decision on the review,’15 and ‘produce the correct and preferable decisions.’16 [13] The reason the Respondent gave for not issuing a blue card to the Applicant was that the Respondent was satisfied that the Applicant’s case was an exceptional case in which it would not be in the best interest of children for the chief executive to issue a working with children clearance. Consequently, as the Respondent was satisfied that the case was an exceptional case, the WWC Act required the Respondent to issue a negative notice the Applicant.17 [14] Had the Respondent not been satisfied that the case is exceptional in that sense, the WWC Act would have required the Respondent to issue a working with children clearance to the Applicant.18 [15] The Tribunal’s role is to determine the specific question whether it is ‘satisfied that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance.’19 [16] The Human Rights Act 2019 (Qld) (“the HR Act”) is also applicable to the Tribunal’s review of this case, because in this review the Tribunal is considered to be a ‘public entity for the purposes of the HR Act.20 [17] Section 58 of the HR Act states— (1) It is unlawful for a public entity— 9 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(C). 10 Ibid, s 20(2). 11 Ibid, s 21(3). 12 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28. 13 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] citing as authority, the test in Briginshaw v Briginshaw & Anor [1938] HCA 34. 14 Chief Executive Officer, Public Safety Business Agency v Masri [2016] QCATA 86. 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(1). 16 Ibid, s 20(1). 17 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2). 18 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1). 19 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2). 20 See: PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at [123]; HF [2020] QCAT 482 and JF [20220] QCAT 419. -- 4 of 24 -- 5 (a) to act or make a decision in a way that is not compatible with human rights; or (b) in making a decision, to fail to give proper consideration to a human right relevant to the decision. [18] This provision requires the Tribunal to ‘[identify] the human rights that may be affected by the decision; and ‘[consider] whether the decision would be compatible with human rights.’21 For a decision to be compatible with human rights it must either not limit human rights, or if it does, no more than is reasonable and justifiable.22 [19] The Tribunal must also interpret legislation ‘in a way compatible with human rights.’23 What Makes a Case ‘Exceptional’? [20] As the WWC Act does not define the meaning of ‘exceptional case’, what constitutes an exceptional case must be determined within the context of the Act, or more specifically in the context of ‘the intent and purpose of the legislation and the interests of the people whom it is designed to protect: children’24 [21] The object of the WWC Act as set out in section 5(b) is, to promote and protect the rights, interests and wellbeing of children and young people in Queensland through a scheme requiring— (b) the screening of persons employed in particular employment or carrying on particular businesses. [22] The principles under which the Act is to be administered, state, that (a) the welfare and best interests of a child are paramount; (b) every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.25 [23] What constitutes an exceptional case clearly needs to be determined on the unique facts of each case, or as a ‘question of fact and degree in the whole of the circumstances of each particular case.’26 [24] While such determinations have been described as ‘matters of discretion’,27 the decision maker’s discretion is not unfettered. [25] Legislation requires the Tribunal to determine whether the Applicant’s case is an ‘exceptional case’, by— 21 Human Rights Act 2019 (Qld), s 58(5). 22 Human Rights Act 2019 (Qld), s 8, s 13. 23 Human Rights Act 2019 (Qld), s 4(f). 24 Kent v Wilson [2000] VSC 98 at [22] per Hedigan J, cited with approval in Commissioner for Children and Young People v FGC [2011] QCATA 291 at [31]. 25 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6. 26 LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244, citing Re TAA [2006] QCST 11 at [22]. 27 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] VR 1; Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, at [33]. -- 5 of 24 -- 6 (a) Reviewing the decision ‘under the principle that the welfare and best interest of a child are paramount.’28 (b) Having regard to the factors listed in section 226(2) WWC Act. (c) Giving proper consideration to human rights relevant to the decision;29 (d) Making a decision that is compatible with human rights;30 [26] It is also appropriate for the Tribunal to consider factors that are not specifically required to be considered by legislation but which are relevant to the decision.31 Mandatory Considerations [27] As the Applicant has been convicted of offences, the Tribunal is required to consider the factors listed in section 226(2) of the WWC Act. These are— First: Whether each offence was a conviction or a charge.32 [28] On 20 January 2015, in the Cooma Local Court, the Applicant was convicted of two counts of Supply Prohibited Drug <=Small Quantity. [29] On 8 September 2015 the Applicant was also convicted of Assault Occasioning Actual Bodily Harm. [30] In addition, the Applicant has a finalised charge for Reckless Grievous Bodily Harm. While the charge was withdrawn from being heard in the Cooma Local Court on 23 July 2015, the WWC Act is clear in requiring the decision maker to consider charges, even where they are withdrawn and do not lead to convictions.33 [31] The WWC Act also requires the Tribunal to have regard to both of the Applicant’s convictions and the finalised charge despite the Applicant being convicted and charged in NSW.34 Second: Whether each offence or alleged offence is a ‘serious offence, and if it is, whether it is a disqualifying offence’.35 [32] In classifying offences as ‘disqualifying’, ‘serious’, ‘other offences’ and ‘alleged offences,’ the WWC Act specifies how the Respondent, or the Tribunal on review, is 28 Working with Children (Risk Management and Screening) Act 2000, s 360. 29 HR Act, s 58(1)(b) 30 HR Act, s 58(1)(a). 31 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303 at [33]; Commissioner for Children and Child Guardian v Maher and Anor [2004] QCA 492 at [40] 32 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(i). 33 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1)(b)(iii); s 226(2)(a)(i); s 226(a)(iii); Schedule 7 Dictionary. 34 Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 221, 225; Schedule 7, ‘Criminal History’. 35 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(ii). -- 6 of 24 -- 7 to regard offences falling into such categories, when considering whether to issue a positive or a negative notice.36 [33] Both offences and the alleged offence for which the Applicant was charged were committed or alleged to have been committed in NSW, in breach of NSW law. However, the WWC Act provides that what constitutes a serious offence for the purposes of the WWC Act includes ‘an offence under the law of another jurisdiction that, if it had been committed in Queensland, would have constituted an offence’37 as defined in s 15 and schedule 2 or 3 of the WWC Act. [34] In this case, none of the Queensland equivalents of the Applicant’s offences are considered a ‘serious offence’38 or a ‘disqualifying offence’39 for the purposes of the WWC Act. Consequently, the chief executive is required to issue a working with children clearance unless satisfied that the case is an ‘exceptional case.40 Third: When the offences were committed.41 [35] The Applicant’s drug offences were committed on 10 and 11 June 2014, and the assault occasioning actual bodily harm offence was committed on 26 February 2015. [36] When the Applicant’s offences were committed is relevant to this review in a number of ways. Perhaps most significantly in that the Applicant was only 18 years and two months of age at the time of the drug offences and 18 years and 10 months of age at the time of the assault offence, and is presently 26 years of age. [37] As the offences for which the Applicant was convicted or charged were committed six and seven years ago, they cannot be considered recent. However, the age of an offence does not necessarily diminish its significance. As the Appeal Tribunal in Lister,42 stated, ‘the passage of time without further offending, of itself, is not conclusive that the risk of harm to children is reduced.’43 [38] Evidence of more recent offending on the one hand, or of active steps being taken to minimise or eliminate the prospect of reoffending, will go a long way towards determining the relevance of old offences. [39] In this case, determining the remaining relevance of the Applicant’s eight-year-old offences calls for an examination of his current attitudes and resort to both physical violence and the sale and use of illegal drugs, as well as his understanding of the impact of his actions on others, including children, of what caused him to commit the offences and of what he needs to do to avoid committing similar offences. [40] The WWC Act requires the Tribunal to consider all offences including those committed or alleged to have been committed a long time ago. The Act also requires the decision maker to have regard to other factors such as the nature of the offence, 36 Ibid, s 221; and Chapter 8 Part 4, Division 9 in general. 37 Working with Children (Risk Management and Screening) Act 2000, s 15(1)(g). 38 Ibid, s 167; schedule 2. 39 Ibid, s 168, schedule 4. 40 Ibid, s 221(1). 41 Ibid, s 226(2)(a)(iii). 42 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87, [55]. 43 Respondent’s Outline of Submissions, 2 September 2021 at 40. -- 7 of 24 -- 8 it’s relevance to engaging in regulated employment or businesses. While the significance of past offences may be determined by such other factors, when an offence was committed also has a role to play in determining whether a case is an exceptional case. [41] By having regard to, ‘when the offence was committed or is alleged to have been committed’44 the decision maker may also be able to draw certain inferences as to the relevance and significance of each of the prescribed considerations. Such a consideration may reveal a pattern of behaviour, the relevance of unique circumstances, and yet unresolved issues or other factors relevant to the determination of whether the case is an exceptional case. Consequently, in tandem with other considerations the Tribunal may conclude that a past offence is highly significant or alternatively of little, if any, significance. [42] Arguably as the Applicant’s offences were committed when he was 18 years of age and barely an adult, his offences could be viewed as something that he may have once done, but due to the passage of time would not do again. [43] The evidence in this case does suggest that in 2014 and 2015 he was yet to acquire the judgment and maturity to know better. I note that the Applicant refers to his offending 18-year-old self as, ‘young and stupid’.45 [44] Clearly, each offender and the nature of their offences must be assessed individually to determine the relevance of the timing of their offences. [45] In this respect I also note that the period of offending coincided with a particularly difficult period in the Applicant’s life. The Applicant describes the period when he committed the violent assault as, ‘perhaps the lowest point in my life’ and goes on to state that his, ‘mental state during this time was a feeling of being lost, not cared for, hated, angered, stressed and abandoned.’46 Fourth: The nature of the offences and their relevance to employment, or carrying on a business, that involves or may involve children. 47 The Drug Offences [46] The events leading up to the Applicant’s conviction for drug offences are set out in the police brief.48 [47] On 20 January 2015, in the course of a New South Wales Police investigation into the supply of prohibited drugs in the area of a country town, a police informant offered to purchase $110 worth of cannabis from the Applicant’s girlfriend. After the Applicant’s girlfriend advised the informant that she only handled deals worth $50 or less, but that the Applicant handled ‘quarter ounce and above deals.’ The Applicant subsequently sold approximately 6.4 grams of cannabis to the informant. [48] The following day, on 11 June 2014 the informant met the Applicant again, and bought 6.4 grams of cannabis for a further $110. 44 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226(2)(a)(iii). 45 Application to review a decision, Attachment D. 46 Life Story of Daniel Miethke, 21 July 2020. 47 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(a)(iv). 48 BCS -16 to BCS-17. -- 8 of 24 -- 9 [49] Three months later on 10 September 2014, Police officers executed a search warrant at the house where the Applicant and his girlfriend lived. The Applicant made frank admissions that he and his girlfriend supplied cannabis over a six-month period to fund their own drug habit. [50] He was charged with two counts of Supply Prohibited Drug <=Small Quantity.49 On 20 January 2015 he appeared in the Cooma Local Court where he was convicted and given a Community Service Order: 100 hours. Assault Occasioning Actual Bodily Harm [51] According to the Police brief,50 on 26 February 2014, or one month after being convicted of his drug offences, the Applicant and his girlfriend held a party at their home. It was an all-night party at which alcohol was consumed. [52] At around 6 am the Applicant’s girlfriend walked around the block arm in arm with another man, the complainant. When the Applicant saw them walking arm in arm he told the complainant, ‘you better start running.’ The Applicant then rushed towards him and punched him in the face with a closed fist approximately five times. Even though the complainant backed away, the Applicant grabbed him by his hair and brough his face down on the Applicant’s knee. When the complainant stood up, the Applicant punched him a further three times in the mouth. A witness separated the applicant and his victim. [53] The initial punches and knee to the face caused the complainant pain in lips, gums and jaw. The further punches knocked out the complainant’s two front teeth and chipped another tooth. The victim was taken to hospital where he underwent surgery and required further surgery, while the Applicant walked home. [54] Several days later, on 6 March 2015, police spoke with the Applicant’s girlfriend about the incident. While she denied the incident, the Applicant told police that because the victim had pushed the Applicant’s girlfriend over, he had punched him to the face. He denied using his knee and told police that he was sorry the complainant lost his teeth as he did not intend for that to happen. [55] The Applicant was charged with Reckless Grievous Bodily Harm.51 This charge was withdrawn in the Cooma Local Court on 23 July 2015. Instead, he was charged with the less serious offence of Assault Occasioning Actual Bodily Harm.52 [56] He appeared before the Cooma Local Court on 8 September 2015 and was convicted of assault occasioning actual bodily harm and sentenced to 8 months imprisonment suspended. He was also placed on an 8 months bond and ordered to attend counselling, educational development, drug or alcohol rehabilitation under the supervision of the NSW Probation Service. 53 49 Drug Misuse and Trafficking Act 1985 (NSW), s 25. 50 BCS - 14-15. 51 Crimes Act 1900 (NSW) s 35 (2). 52 Crimes Act 1900 (NSW) s 59. 53 BCS - 12 -- 9 of 24 -- 10 Relevance of Offences [57] The Respondent submits that both offences raise a general concern about the Applicant’s ability to judge appropriate behaviour and present as a positive role model.54 At the time of the offences, this was certainly the case. However, I note that other considerations suggest that by the time of this review, the Applicant appeared to be able to judge appropriate behaviour and had shown himself to be a good role model. Violence [58] A number of concerns arise with respect to the nature and level of violence involved in the assault offence. [59] The Respondent submits that the high level of the violence is reflected in the serious nature of the original charge for this offence (discussed below). The Respondent also describes the violence as being extreme and disproportionate and as behaviour ‘wholly inconsistent with behaviour required of a person entrusted to care for the safety and well being of children in activities regulated by the WWC Act.’55 [60] That the Applicant’s violent attack only stopped when his girlfriend intervened, the Respondent further suggests raises, significant concerns as to his ability to exercise restraint, utilise appropriate conflict resolution strategies and deal with difficult and/or stressful situations in a rational and controlled manner.56 [61] Concern has also been put forward about the Applicant’s ability to deal effectively with conflict and stress. 57 [62] In his submissions, the Applicant says very little about his violent offending. This is particularly evident in his life story.58 [63] The Respondent not only expresses concern regarding the Applicant’s actions and state of mind at the time of the offences, but suggests that he still has not come to grips with his violent offending. The Respondent submits— the Applicant’s sole reference to the offending namely that he became violent due to the actions of the complainant, suggests that even with time to reflect, he remains unable to accept responsibility for his own actions and deflects blame onto others, namely his ex-partner and the [victim of his assault].59 [64] Equally, the Applicant has expressed little remorse for his victim. While it is true that he has indicated more remorse for the effect his offences have had on his life, I sense that this is not necessarily reflective of a callousness, but rather of the Applicant’s matter of fact manner and attitude, and his determination to put that part of his life behind him. 54 Respondent’s Outline of Submissions, 2 September 2021 at para 46. 55 Respondent’s Outline of Submissions, 2 September 2021 at para 51. 56 Ibid. at para 52. 57 Respondent’s Outline of Submissions, 2 September 2021 at para 45. 58 Life Story of Daniel Miethke, 24 August 2020. 59 Ibid, at para 54. -- 10 of 24 -- 11 [65] While the Applicant’s statements can be interpreted as evidence of the implications that the Respondent contends, I consider that do so is to minimise or overlook what distinguishes the Applicant. [66] Particularly with reference to his violent offence, the Applicant does not see the offending as being reflective of him and looks to the context to provide an explanation. In my view, his determination to put that episode behind him accounts largely, if not wholly, for his reluctance to dwell on his offences. In Attachment D to his application to the Tribunal the Applicant makes his most comprehensive statement about his violent offence. I don’t wish to downplay the gravity of these offences and take full responsibility for my actions and the effect it has had on other people, not to mention the significance of it ensuring the protection for children. However, the offences happened in 2015 when I was 18 years old. My response to the assault offence, I agree was excessive and disproportionate to the incident. I reacted badly when I caught another bloke hand in hand with my girlfriend…I thought it was my place and an expectation to teach him a lesson. I was young and stupid but I was not out of control. I mis-judged my hand and am remorseful for my behaviour and the injuries I caused. I am not a violent person and don’t have anger management issues. I have learnt a great deal from that incident and matured in my response to confronting situations, choosing to walk away from things rather than try to control them, but most importantly not to succumb to peer pressure and ‘expectation’ again. [67] In this statement, the Applicant expresses very little remorse. He has not expressed any more remorse in other submissions nor when cross examined. The implications are, however, less troubling when assessed in the context of his personality, which in my view leads him to focus on preventing a repetition of what he did wrong rather than focus on any longer than necessary on what occurred. Selling Drugs [68] The outline of the Applicant’s drug offences is confined to two occasions of selling small quantities of cannabis to a police informant. However, I accept that the Applicant’s involvement in drugs extends well beyond the two offences for which he was convicted. The Applicant admitted to police that he had sold cannabis over a six- month period,60 and in cross examination on 3 September 2021, stated that he had used drugs for four years. [69] The Applicant’s statements as to his drug use since the offences appear to be inconsistent. For example, in his written submissions the Applicant has tended to say that he stopped using drugs. Other evidence and the Applicant himself suggest that this is an overstatement. [70] A brief overview of the evidence suggests that— [71] On 16 January 2015 Shortly before his conviction for drug offense on 20 January 2015, in an interview with Cooma Community Corrections the Applicant claimed to have ‘completed the Merit (Magistrates Early Referral into Treatment) program’ and to have used ‘no cannabis since November’.61 In his life story, dated 24 August 2020, 60 Police Brief, BCS–17. 61 NTP – 11. (NTP- Materials produced by the Commissioner, Corrective Services, New South Wales in response to a Notice to Produce) -- 11 of 24 -- 12 the Applicant refers to this, stating, ‘I did a drug counselling program called MERIT and have not smoked [cannabis] since’62 [72] However, in May 2015 the Applicant admitted to smoking one cone on his birthday.63 By August 2015 he admitted that he was using cannabis daily and attributed his relapse to his pending court appearance and prospect of possible imprisonment.64 [73] His cannabis use did not stop after his court appearance on 8 September 2015. On 16 October 201565 and 6 January 201666 he reported using ‘minimal alcohol’ or ‘on a weekend only occasionally not every weekend,’ and admitted to having ‘one or two cones per night to assist with sleep.’ [74] Quite clearly the Applicant has continued to struggle in his efforts to free himself of involvement with illicit drugs and of friends and acquaintances likely to influence him to take drugs. Of greater importance, is his current position and likelihood to allow drugs to affect his protection and promotion of the welfare and best interest of children if issued a blue card. [75] The Applicant’s current ambivalence as to the addictive nature of cannabis, may have contributed to concerns as to his insight into the effects of drug use. However, care needs to be taken not to draw inferences without taking into account the Applicant’s candour and spontaneous approach to this review. [76] The Respondent submits, the Applicant’s statements regarding his use of drugs suggests a lack of ‘insight into his previous drug use and protective factors and preventative strategies employed to reduce the risk of any future relapse into drug use.’ 67 [77] But this need not be the only conclusion. No evidence has been presented suggesting that the Applicant has recently used or is likely to use cannabis so as to affect his work. His professionalism has been remarked on by his employer and colleagues. He has repeatedly stated that cannabis has had a disastrous effect on his life. [78] The self discipline and persistence needed by him as a member of a medal winning team in a world championship should not be overlooked as it says a great deal about his self control, and suggests that the Applicant is no longer the lost soul that he was at the age of 18. [79] The Respondent also submits that by blaming his girlfriend for becoming involved in the sale of cannabis, ‘he remains unable to accept responsibility for his own actions which lead to his offending, and continues to deflect the blame for his drug offending.’68 [80] My interpretation of such remarks by the Applicant is that he sees situations such as living with a drug user as potential triggers for his own use. Consequently, when asked 62 Life Story of Daniel Miethke, 24 August 2020, at final paragraph. 63 NTP–16. 64 NTP–18. 65 NTP–19. 66 NTP–20. 67 Respondent’s Outline of Submissions, 2 September 2021 at para 59. 68 Respondent’s Outline of Submissions, 2 September 2021 at para 56. -- 12 of 24 -- 13 how he would deal having a partner who was a drug user, the Applicant said that he wouldn’t allow himself to get into that situation.69 [81] There is no doubt that children have a right to be protected from those who sell drugs and those whose drug use may impair their ability to promote and protect children’s best interests. It is equally clear that the sale of drugs has a flow on effect on children and the vulnerable.70 However, while such inferences could be drawn from the Applicant’s sale and used of cannabis eight years ago while he was 17 and 18, current evidence does not suggest that this is still the case. In particular, the Applicant has consistently stated his views on the negative impact of becoming involved in illicit drugs. His willingness to present himself as an example of such negative impact stands him in good stead as a role model.71 Insight [82] Whether or not the Applicant has acquired insight into the harm caused by his action and in particular the ‘likely effect on children’ is a significant consideration because, it has been suggested, ‘A person aware of the consequences of his actions on others is less likely to re-offend than a person who has no insight into the effect of his actions on others’72 [83] The Applicant’s aversion to participating in counselling therapy may be seen as evidence of the Applicant’s lack of sincerity to gain insight into his offending and its impact on others. Most notably, as the Respondent notes, when directed to make appointments for drug use related counselling, he had not arranged a single appointment during his eight-month supervision order that ended in May 2016.73 [84] However, the reality is that not everyone accepts participation in counselling as the most effective means of acquiring insight and understanding of their offending and its impact on others. The Applicant is an uncomplicated and yet self-aware young man, who has formed a clear view of what is right and wrong and a clear appreciation of what brings out the best in him and what does the opposite. His conclusions appear to be rational and practical, and most importantly, have worked for him in recent years. This, it must be conceded, is far more than is achieved by many who merely go through the motions of seeing a therapist. [85] I do not see his reluctance to obtain professional help as reflecting a fear but rather a preference to rely on his own judgment. However, I note that he has indicated a willingness to undergo psychological assessment tests. It is on this basis that I do not propose to draw significant negative inferences from the Applicant’s reluctance to seek professional assistance. 69 Cross-examination, 3 September 2021. 70 Respondent’s Outline of Submissions, 2 September 2021 at para 44. 71 Cross examination of KT, 3 September 2021. 72 Re TAA [2006] QCST 11 at para [97] cited by Respondent’s Outline of Submissions, 2 September 2021 at para 60. 73 Respondent’s Outline of Submissions, 2 September 2021 at para 59, referring to NTP–23. -- 13 of 24 -- 14 Fifth, the penalties imposed by the courts and the courts’ reasons for not imposing an imprisonment order or a disqualification order and the courts’ reasons for their decisions.74 [86] When convicted for his drug offending the Applicant was sentenced to a supervised community service order for 100 hours. [87] The Applicant’s conviction for assault occasioning actual bodily harm resulted in him being sentenced to 8 months imprisonment with his sentence suspended on entering a good behaviour bond for 8 months and being supervised by probation and attending counselling and entering drug and alcohol rehabilitation75 [88] No information is before the Tribunal on the courts’ reasons for their decisions nor on why they did not impose imprisonment orders. [89] Neither is any information available to explain why after being initially charged with Reckless Grievous Bodily harm, an offence that carries a maximum penalty of 10 years imprisonment and a ‘standard non parole period‘ of four years, the charge was withdrawn and replaced with Assault Occasioning Actual Bodily Harm, which attracts a significantly lower maximum penalty of 5 years imprisonment. Sixth, Information about the person given to the chief executive.76 [90] No relevant information about the person was provided to the Chief Executive by the Director of Public Prosecutions or by Corrective Services under section 318 or 319 of the WWC Act.77 No report about the Applicant’s mental health was given to the Chief Executive under section 335 of the WWC Act.78 And, no information about the Applicant was given to the chief executive under sections 337 or 338 of the WWC Act by the Mental Health Court or the Mental Health Review Tribunal.79 Lastly, ‘Anything else relating to the commission, or alleged commission, of the offence that the [decision maker] reasonably considers to be relevant to the assessment of the person.80 [91] All matters relating to the commission of the offences and relevant to the assessment of the Applicant are addressed above and in discussion of provisions of the HR Act, below. Other Factors Relevant to the Applicant’s Eligibility to Hold a Blue Card. Character References [92] A number of witnesses wrote character references for the Applicant, but only one witness presented for cross examination. 74 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(1)(v). 75 BCS-12. 76 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(b), (c) and (d). 77 Ibid, s 226(2)(b). 78 Ibid, s 226(2)(c). 79 Ibid, s 226(2)(d). 80 Working with Children (Risk Management and Screening) Act 2000, s 226(2)(d). -- 14 of 24 -- 15 [93] The witness who was cross examined appeared to be the only witness aware of the nature of the Applicant’s offence, but even she was not familiar with the reasons for why the Applicant was issued a negative notice. [94] The references regarding the Applicant’s three years of child related employment, though not in the context of offences or reasons for the issuing of the negative notice, were nonetheless relevant. The evidence of the Applicant’s reference writers is important, particularly as it address a number specific concerns flowing from the Applicant’s violent crime. Of particular note is evidence regarding how the Applicant has responded to difficult people, confrontation and emergency. [95] In spite of needing to attribute less weight to the evidence of witnesses whose testimony was not able to be tested through cross-examination, I also consider the witness statements to shed light on what would otherwise be a purely hypothetical, albeit informed, exercise in predicting whether the Applicant if issued a working with children clearance will pose a risk to children whose interactions with the Applicant would be governed by the WWC Act. [96] It is important to note that the character references relate to the Applicant’s work over three years with people of various categories including school children, teenagers, not before he committed the offences, but after. How the Applicant performed over the three years clearly serves to inform the question of how he would perform if issued a working with children clearance. [97] Five out of six character-referees worked with the Applicant, in most cases over a period of three years. The sixth referee is the Head Coach of the Australian Under 23 White Water Rafting team, of which the Applicant was a team member. [98] One of the questions in this review is whether the Applicant has changed to no longer be the person he was at the time of the offences. In his reference dated 12 July 2020, AT, the CEO of an outdoor adventure company notes how much the Applicant had changed in the three years that he worked for the company until he was issued a negative notice. He says— He turned up as a shaking leaf of a kid I felt very sceptical but reticent. However, I did see the type of character in him I value as holding high potential. I am happy to report that he has done nothing but blossom to become an outstanding young man and is highly regarded by me, my senior management and staff and most importantly our clients; children, teachers, international guests… [99] Concern has also been expressed about whether the Applicant would revert to violence and or drug use if faced with unfavourable challenges. In this respect, AT addresses how the Applicant has dealt with challenges he has faced in his work. Noting that the Applicant has worked with challenging groups and individuals in particularly difficult circumstances such as ‘being flooded in with a school of 80 kids and 11 teachers for 10 days,’ he states that the Applicant ‘continued to remain calm and in control and courteous in all situations.’ [100] AT further notes that when dealing with a rude disruptive or disrespectful student the Applicant was ‘always able to manage the situation with a high level of intelligence and correct judgment for the safety and comfort of the whole group.’ [101] In her 10 June 2020 reference, LW states that she works in Administration/Operations for the same company that employed the Applicant. She also knew him for three years. -- 15 of 24 -- 16 She comments further on how the Applicant responded to being flooded in with the students and teachers. She states— Emotions were running high, not only in camp, but with parents fearing for their stranded child’s safety. [The Applicant’s] disposition, energy and enthusiasm inspired the kids to make the most of the situation…and offered emotional support around the camp at night. [102] LW also noted that she had not ‘witnessed any negative reactive behaviour’ by the Applicant. LW’s observations gain weight when it is noted that she had previously served for 8 years as a NSW police officer. [103] JM also knew and worked with the Applicant for three years. In his 12 July 2020 reference, he refers to situations where ‘incidents have occurred both on and off the river with the potential for escalation.’ In such situations he states that the Applicant ‘has at all times kept a cool head and been instrumental in all these cases in defusing the state of things.’ [104] JM concludes by summing up the Applicant, as having, A very engaging personality and even when situations change, potentially not for the better, he keeps a calm and confident demeanour which allows things to end better than may otherwise have been the case. [105] In his reference dated 12 July 2020, SG, the company’s operations manager states During the time I have known him, [the Applicant] has repeatedly demonstrated nothing other than an extremely high level of professionalism and maturity…[and] has continued to demonstrate a capacity to engage youth while maintaining clear boundaries… [106] GM, Head Coach of the 2019 Australian Under 23 White Water Rafting Team also provided a reference, dated 12 July 2020. He states that he coached the Applicant for over a year to compete in the 2019 World Championships and notes that the team, including the Applicant achieved a bronze medal in one event and came fourth in another. [107] He describes the Applicant as very honest, caring and level headed in all situations, trustworthy and a great team player and leader. [108] Under cross examination on 3 September 2021, KT who not only knew the Applicant at work but also outside of work as he lived in her home for some time, recounted her surprise when the Applicant told her of his offences. She spoke of how the Applicant had been a good role model for her 17-year old son, promoted ‘reacting without violence’ and discussed the dangers associated with involvement with illicit drugs [109] KT was asked whether knowledge of the Applicant’s criminal convictions would detract from his ability to be a role model. She replied that, on the contrary, his background made him well placed to address these issues with young people. [110] Finally, the Applicant also tendered feedback, appearing on the Life’s Short Get Wet website, from those who had attended the adventure park. References to the Applicant used words such as kind, nice, very professional and enthusiastic. [111] The Respondent submits that the Applicant lacks a supportive network largely because his work colleagues and referees appear not to be familiar with his offending -- 16 of 24 -- 17 and his sister and father did not lend support to his application in this review.81 In my view the evidence suggests that the Adult is currently particularly careful about the company he keeps, and consequently is likely to have people in his circle of acquaintances and friends on whom he can rely for assistance. The Applicant’s work mates and partners tend to play key roles in his life and have ensured that he is happy with his current life. [112] That his referees were not aware of his offending should not in itself be seen as evidence that he lacks a support network. The Relevance of the Referees’ Evidence to Working with Children [113] The Applicant’s referees shed a great deal of light on his performance in the workplace, where he worked with both adults and children. Evidence that the Applicant worked well with children, as such is not relevant to the determination of whether this is an exceptional case. [114] In Scott, Buss J held that— any benefit that might be thought to flow to children by having access to the Applicant’s knowledge, experience or flair in working with children is of no relevance if there exists an unacceptable risk to children in future contact.’82 [115] While at first glance this judicial statement appears to be authority for the proposition that benefit to children is not relevant unless it also serves to protect them, I note that Buss J qualifies his statement with ‘if there exists an unacceptable risk to children in future contact’. [116] In this case, the Applicant’s work record as presented by his referees is relvant and important to consider, not because the witness statements offer evidence of how adept he has been in his work and popular with child customers, but because it provides some insight into whether the concerns flowing from his offending have eventuated or been the subject of concern. [117] While it is true that almost all of the Applicant’s referees were unaware of at least the details of his offences, they touched on and in same instances offered answers to what would otherwise have remained purely hypothetical whether it would be in the best interest of children for the Applicant to engage in child related employment. [118] While the work undertaken by the Applicant may to some extent, have been different to that if he was the holder of a blue card, the evidence suggests that for 3 years the Applicant did not pose any risks or display any characteristics that would suggest that his involvement with children was not in the best interest. Transferability [119] Once issued a blue card, the Applicant would be able to undertake any child related WWC Act regulated employment or business. Consequently, the Tribunal’s assessment of whether it would be in the best interests of children for the Applicant 81 Respondent’s Outline of Submissions, 2 September 2021 at para 61. 82 Ibid. -- 17 of 24 -- 18 to be issued a blue card must extend well beyond assessing his suitability to return to his outdoor adventure park work. [120] While conscious of the need to assess the Applicant’s suitability with transferability in mind, I am not aware of any evidence suggesting that the Applicant’s involvement in certain forms of regulated work would not by reasons of the nature of the involvement be in the best interests of children. Human Rights [121] As noted earlier, the Tribunal must also comply with the HR Act.83 In particular, the HR Act requires the Tribunal to ‘give proper consideration to human rights relevant to the decision.’84 To give proper consideration to relevant human rights requires the Tribunal to identify any human rights that its decision may affect.85 [122] Aware of how its decision may protect certain rights while limiting others, the Tribunal is required to ‘make a decision in a way that is compatible with human rights’86 [123] With respect to compatibility with human rights, in Section 8, the HR Act explains that— An act, decision or statutory provision is compatible with human rights, if the act, decision or provision— (a) does not limit a human right; or (b) limits the human right only to the extent that is reasonable and demonstrably justifiable … [124] Section 13(1) the HR Act further expands on what reasonably and justifiably means— A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. [125] The HR Act provides assistance to the determination of whether a limit on a human right is reasonable and justifiable. In section 13(2) the HR Act lists the following as factors that ‘may be relevant’ to the Tribunal’s determination — (a) The nature of the human right; (b) The nature and purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom. (c) The relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose; 83 See: PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 at [123]; HF [2020] QCAT 482 and JF [20220] QCAT 419. 84 Human Rights Act 2019 (Qld), s 58(1)(b). 85 Ibid, s 58(5)(1)(b). 86 Ibid, s 58(1)(a). -- 18 of 24 -- 19 (d) Whether there are any less restrictive and reasonable available ways to achieve the purpose; (e) The importance of the purpose of the limitation; (f) The importance of preserving the human right, taking into account the nature and extent of the limitation of the human right; (g) The balance between the matters mentioned in paragraphs (e) and (f). [126] This list of factors clearly recognises the existence of competing and even inconsistent rights, and provides a formula to protect all rights by restricting the limiting of rights to what is reasonable and justifiable. Limits on the Human Rights [127] As the Respondent’s decision is to be reviewed under the principle that the welfare and best interests of children are paramount,87 the Tribunal must consider how the decision may affect the rights of children with whom the Applicant may interact in the course of regulated employment or business. [128] The most directly relevant and applicable human right would appear to be that set out in section 26(2) of the HR Act, ‘Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.’ [129] That the protection of the rights of children in legislation concerning child related employment would have an unintended punitive effect on others was recognised by legislators, who stressed that the intention was about ‘putting gates around employment to protect children...[and] protecting children from future abuse.’ 88 [130] The practical implication of the Tribunal decision is that if the Tribunal decides that the Applicant’s case is an exceptional case, it will confirm the Respondent’s decision to not issue a positive notice and Blue Card to the Applicant.89 A decision that the case is not an exceptional case, on the other hand, will require a positive notice and Blue Card to be issued. 90 [131] A number of aspects of the Tribunal’s process of review may also be a burden on the Applicant and appear to impinge on his human rights. The Respondent has recognised a number of the Applicant’s human rights, likely to be affected, including his right to privacy and reputation,91right to take part in public life92 and a right to further vocational education and training.93 87 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 360. 88 Commission for Children and Young People Bill, Second Reading Speech, Queensland Parliament Hansard, 14 November 2000, 4391, Ms Bligh, cited by Member McConnell in Luong v Director- General, Department of Justice and Attorney-General [2019] QCAT 302 at [9]. 89 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2). 90 Ibid, s 221(1)(b)(iii), (c). 91 Human Rights Act 2019 (Qld), s 25. 92 Human Rights Act 2019 (Qld), s 23. 93 Human Rights Act 2019 (Qld), s 36(2). -- 19 of 24 -- 20 [132] In addition, I note human rights likely to be limited by the process of this review and the making of the decision, namely, the right to a fair hearing encompassing the right to be accorded natural justice, and a fair and public hearing.94 The Right to Work [133] The Applicant’s right to work appears to have been limited by both the decision to issue a negative notice and by the lengthy review process. [134] While the HR Act does not list the right to work amongst its 23 fundamental human rights, the right is recognised in international human rights covenants, and appears to provide a suitable vehicle for illustrating why even if a right to work was listed in the HR Act, or is deemed to fall under one or more of the other listed rights such as the right to take part in public life95 or the right to further vocational education and training,96 limitation of this right by the law as well as the acts and decision of this Tribunal would be compatible with human rights. [135] Article 6(1) of the International Covenant on Economic, Social and Cultural Rights’ (ICESCR)recognises, the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right. [136] However, the right to work enshrined in Article 6 of the ICESCR is also expressly qualified by article 4 which provides that – the State, may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society. [137] The qualification of the right appears to be similar to the reasonable and justifiable limit of the HR Act. [138] The right to work is undoubtedly qualified by the requirement that a person possesses the appropriate skills and qualifications to undertake particular work. On that basis it could be said that a negative assessment of a person’s suitability to undertake particular work is not necessarily a breach or limitation of that right. [139] In the unlikely event that the legislation, process or decision was found to limit the right to work, it would almost certainly be recognised as a reasonable and justifiable limitation, and consequently compatible with human rights. [140] No evidence has been identified establishing that the Applicant’s right to take part in public life97 or the right to further vocational education and training98 has been limited to any significant effect (apart perhaps from the right to work). Any lesser limits on the rights would in light of the Act’s paramount consideration being the protection of the rights of children any limit imposed by this review and decision would likely be 94 Human Rights Act 2019 (Qld), s 31. 95 Human Rights Act 2019 (Qld), s 23. 96 Human Rights Act 2019 (Qld), s 36(2). 97 Human Rights Act 2019 (Qld), s 23. 98 Human Rights Act 2019 (Qld), s 36(2). -- 20 of 24 -- 21 found to be a reasonable and justifiable limit and therefore to be compatible with the human rights. The Right to be Accorded a Fair Hearing and Natural Justice [141] The Tribunal is required to act ‘fairly and according to the substantial merits of the case,’99 and ‘must observe the rules of natural justice.’100 [142] Natural justice includes the right to be treated fairly and applies to a wide range of judicial, quasi judicial and administrative decision-making processes. [143] At its core, natural justice refers to the right to a fair hearing. A fair hearing generally entails appropriate notice of a hearing, a right to present one’s case, and a decision maker who is impartial, competent and unbiased. It also recognises that a party to proceedings has the right to present their own case, and be provided with a logically probative decision based on all the evidence presented. [144] The HR Act lists the right to a fair hearing as a human right. Section 31 provides that— (1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or in the interests of justice. (3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available. [145] As part of the right to a fair hearing, the HR Act clearly states that a party to civil proceedings has a right to have their proceeding decided ‘after a fair and public hearing’.101 It also states that ‘all judgments and decisions made by a court or tribunal in a proceeding must be publicly available’.102 [146] Section 90(1) of the QCAT Act provides that, ‘Unless an enabling Act…provides otherwise, a hearing of a proceeding must be held in public’. The enabling Act in this case is the WWC Act, which in s 361(1) states that, ‘A hearing of a proceeding for a QCAT child-related employment review must be held in private.’ [147] The QCAT Act also provides that a tribunal may direct a hearing to be closed if the tribunal ‘considers it necessary— (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for another reason, in the interests of justice.103 99 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 100 Ibid, s 28(3)(a). 101 Human Rights Act 2019, s 31(1). 102 Ibid, s 31(3). 103 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 90 (2). -- 21 of 24 -- 22 [148] In Section 31(2) of the HR Act, also provides for an exception to the holding of a public hearing. It states that— a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice. [149] I find the exclusion of the media and public from hearings in this review, required under the provisions of the QCAT Act and the WWC Act, to be compatible with human rights as set out in section 31(1) and qualified in section 31(2) of the HR Act. [150] As set out above, the section 31(3) of the HR Act requires all tribunal decisions to be ‘publicly available’. However, s 66(1)(c) of the QCAT Act permits the Tribunal to make a non publication order, (1) prohibiting the publication of… (c) information that may enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. [151] The Tribunal may only make such an order if it considers the order necessary for a number of specific reasons104 including, ‘to avoid the publication of confidential information or information whose publication would be contrary to the public interest’105, and ‘for any other reason in the interests of justice’.106 Such an order was made at an earlier stage of this review107and remains in force. [152] The identification of parties and disclosure of personal information may also infringe on the Applicant’s and others’ right to privacy and not to have their reputation unlawfully attacked.108and arbitrarily interfered with.109 [153] Both Section 66(1)(c) of the QCAT Act, permitting non publication orders, and the any directions regarding non publication, clearly limit the Applicant’s right to a fair hearing, enshrined in s 31(3) of the Human Rights Act. [154] However, I also find that the limit imposed is reasonable and justifiable for the purposes of s 13 of the Human Rights Act, and therefore compatible to the rights of persons whose right may be limited. [155] In accordance with factors listed in s 13(2) of the Act I note ‘the importance of the purpose of the limitation’,110 ‘the importance of preserving the human right, taking into account the nature and extent of the limitation on the right’,111 ‘the balance between the [last two factors]’112 and ‘whether there are any less restrictive and reasonably available ways to achieve the purpose’.113 104 Ibid, s 66(2). 105 Ibid, s 66(2)(d). 106 Ibid, s 66(e). 107 21 April 2021. 108 Human Rights Act 2019 (Qld), s 25 (b). 109 Ibid, s 25 (a). 110 Human Rights Act 2019 (Qld), s 13(2)(e). 111 Ibid, s 13(2)(f). 112 Ibid, s 13(2)(g). 113 Ibid, s 13(2)(d). -- 22 of 24 -- 23 [156] The QCAT Act, and the enabling WWC Act, also contain many other provisions designed to ensure that parties to Tribunal proceedings are accorded natural justice. I am not aware of any instances where the Applicant or another party has been denied natural justice. Paramount Principle and Reasonable and Justifiable Limits [157] Earlier, I outlined the provisions of the HR Act that require the Tribunal to make decisions compatible with human rights. Compatibility with human rights is defined by the Act as decisions that do not limit human rights or whose limits are reasonable and justifiable in accordance with section 13 of the Act. [158] The HR Act clearly requires that a decision’s impact on human rights be considered.114 To this extent, it overrides the earlier approach under which harm to an applicant was considered irrelevant.115 [159] Section 58(1)(b) of the HR Act unambiguously states that, ‘It is unlawful for a public entity…in making a decision, to fail to give proper consideration to a human right relevant to the decision’ which section 58(5)(a) states includes ‘identifying the human rights that may be affected’. [160] A limitation of human rights is not rendered compatible with human rights by having a proper purpose of promoting and protecting the rights interest and well being of children and young people,116 but rather by being found to be reasonable and justifiable. However, the purpose of promoting a particular right is clearly relevant to considerations listed in section 13(2) of the HR Act. [161] In my view the effect of the HR Act on decisions regard child related employment under the WWC Act is that the paramount rights of children are to take precedence over competing rights to the extent that such limiting of other rights is reasonable and justifiable, as determined in accordance with the factors set out in section 13(2) of the Act. [162] The application of the HR Act’s reasonable and justifiable limit does not erode the protection of the rights of children. Its provisions merely seek to ensure that the rights of others are not unreasonably and unjustifiably limited. [163] In the present case, further exclusion of the Applicant from work relating to children, and the associated limiting of his human rights would not in my view be reasonable nor justifiable. I base this conclusion on my finding that the case is not an exceptional case in which it would not be in the in the best interests of children for the Applicant to be issued a working with children clearance. [164] The Tribunal’s decision-making discretion is confined to being satisfied that the case is an exceptional case or a finding that it is not an exceptional case. For that reason and in view of the paramount principle under which this review is conducted, any risk to children flowing from issuing the Applicant a blue card will justify the issuing of a 114 Human Rights Act 2019 (Qld), s 58(5)(a). 115 Chief Executive Officer, Department for Child Protection v Scott (No 2) 2008 WASCA 171 at [109] per Buss J. 116 Respondent’s Outline of Submissions, 2 September 2021 at para 66. -- 23 of 24 -- 24 negative notice and makes the resulting limits on other human rights justifiable and reasonable. [165] My finding that the case is not an exceptional case does not, in my view, impose a limit on the rights of children to be protected but rather adjudges the Applicant’s potential involvement with children to not pose a risk and thus warrant a finding that it would not be in the best interest of children for him to work in child related employment and continue to deny the Applicant access to a blue card. Conclusion [166] In determining whether the Applicant’s case is an exceptional case in which it would not be in the best interest of children for the Applicant to be issued a working with children clearance, I have— (a) Considered all the evidence; (b) Undertaken the review ‘under the principle that the welfare and best interest of a child are paramount;’117 (c) Had regard to the factors listed in section 226(2) of the WWC Act; (d) Considered discretionary factors relevant to the decision; (e) Made my decision giving proper consideration to human rights relevant to the decision;118 (f) Acted and made a decision that is compatible with human rights;119 [167] On that basis and for the reasons set out above, I make the following decision and order. [168] Bearing in mind the gravity of consequences involved, I am not satisfied on the balance of probabilities that the Applicant’s case is an exceptional case in which it would not be in the best interests for the Applicant to be issued a working with children clearance. Order 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. 117 Working with Children (Risk Management and Screening) Act 2000, s 360. 118 Human Rights Act 2019 (Qld), s 58(1)(b) 119 Human Rights Act 2019 (Qld), s 58(1)(a). -- 24 of 24 --