END v Director General, Department of Justice and Attorney General [2020] QCAT 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: END v Director General, Department of Justice and Attorney General [2020] QCAT 29 PARTIES: END (applicant) v DIRECTOR GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY GENERAL (respondent) APPLICATION NO: CML089-19 MATTER TYPE: Children matters DELIVERED ON: 17 January 2020 HEARING DATE: 21 October 2019 HEARD AT: Townsville DECISION OF: Member Pennell ORDER: 1. That the decision of the Director General, Department of Justice and Attorney General dated 4 February 2019 that the applicant’s case is ‘exceptional’ within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is set aside and substituted with the tribunal’s decision that there is no exceptional case 2. That pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the publication of the contents of any document or thing filed in or produced to the tribunal and any evidence given to the tribunal by any witness is prohibited to the extent that it could lead to the identity of the applicant or any member of the applicant’s family or any non-party to the proceedings CATCHWORDS: FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – GENERALLY – blue card – a review of a decision to issue a negative notice – where the applicant was convicted of drug offences – whether an exceptional case exists – whether the risk to children has been sufficiently negated – whether it is in the best interests of children to issue a positive notice to the applicant -- 1 of 12 -- 2 EVIDENCE – MISCELLANEOUS MATTERS – NON PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY –– identity of the applicant – whether a de-identification order is necessary – whether it would be contrary to the public interest Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20(1), s 20(2), s 24(1), s 66(1), s 66(2), s 66(3) Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6(a), s 221(1), s 221(2), s 226, s 353, s 354, s 360, s 361 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Kent v Wilson [2000] VSC 98 Luong v Director General, Department of Justice and Attorney General [2019] QCAT 302 Murray v Director General, Department of Justice and Attorney General [2018) QCAT 56 Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 Re Perry and Brown's Patents (1930) 48 RPC 200 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: V Wolfe, in-house Government Legal Officer REASONS FOR DECISION Background [1] The applicant, along with her husband and three small children arrived in Townsville in 2007. The children were enrolled in a local primary school and the family settled in to enjoying their new life in North Queensland. She easily made friends with some of the mothers of the children who attended the same school as her children. It appears that the applicant and her family engaged in a meaningful social life, they had a group -- 2 of 12 -- 3 of close friends and her husband was able to establish a small business to support the family. [2] Sometime around 2012 the applicant became a volunteer ‘reader’ in the classroom of one of her children.1 Not long after that, she started volunteering in the school’s tuckshop. At some point after that, she was approached to fill in as a Teacher’s Aide. She subsequently applied for and was issued with a blue card. The latest blue card to be issued to her was on 15 December 2017. She continued working as a Teacher’s Aide until the respondent issued the negative notice.2 [3] In addition to those voluntary roles at the school, she was heavily involved as a volunteer with sporting and other extracurricular activities undertaken by her children. Her volunteering role included coaching and training junior netballs teams as well as fund raising activities for junior netball and gymnastics. [4] On 1 June 2018, police arrived at her residence and executed a search warrant. They were there to search for dangerous drugs. The police located a quantity for cannabis, some associated utensils used in connection with the smoking of cannabis and a small number of cannabis plants growing in a back garden. Also found was a small unsophisticated hydroponics system used to grow juvenile cannabis plants in a work shed. [5] After completing their investigation, the police prosecuted the applicant for three offences; namely possession of a quantity of cannabis and two separate charges of possessing various items and utensils used in connection with the commission of the drug offence. She was not charged with the production of the cannabis plants found in the back garden or in the hydroponics system. Her husband was charged in regard to those matters.3 [6] The applicant appeared in the Magistrates Court on 18 July 2018. She pleaded guilty to all the charges. The court placed her on a good behaviour bond for 18 months with a recognizance of $600. No conviction was recorded. [7] The only other entry on the applicant’s criminal history occurred on 8 May 1997, some 22 years ago. On that occasion she was convicted in the Magistrates Court for driving with an excess concentration of alcohol in her blood (‘drink driving’) and drive without due care and attention. For the drink driving offence she was fined $937 and her drivers’ licence was disqualified for 15 months. Regarding the driving without due care charge, she was convicted and fined the meagre amount of $28. Those offences are not defined in the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’) as either serious or disqualifying offences. Having regard to the circumstances of the offences, and that they occurred over two decades ago, I am not inclined to place any weight on those offences when reaching a decision in this matter. [8] It was the recent entries into the applicant’s criminal history relating to her conviction in the Magistrates Court for drug offences which concerned the respondent and there was reservations regarding her eligibility to hold a positive notice and a blue card. 1 For an hour per day. 2 The negative notice was issued on 4 February 2019. 3 The applicant’s husband later pleaded guilty to the production of the cannabis fond at their residence. -- 3 of 12 -- 4 [9] Notwithstanding the respondent acknowledging that the drug offences committed by the applicant were not deemed by the Working with Children Act to be serious or disqualifying offences, there was nevertheless a concern about her admissions that she had used cannabis over an extended period to relieve pain from her ongoing back injury and to assist her with sleeping. The respondent considered that the lack of independent medical evidence to support the applicant’s claim about the use of cannabis for medicinal purposes reflected a lack of good judgement on her part.4 [10] The respondent held further concerns about the applicant caring for her three children when there was drug related paraphernalia, including a small hydroponic system in the house. The respondent was of the view that those circumstances raised concerns that the applicant’s children may have witnessed a drug culture at a young age which had the potential to affect their perceptions of what is acceptable behaviour in respect of drugs and drug use in the community. [11] The respondent’s concerns also included the argument that all children have the right to be protected from the exposure to drug involvement and to be cared for by a person who is not using drugs that may impair their ability to promote and protect the best interests of children. In that regard, the respondent was of the view that the potential for the applicant to continue her drug offending would likely detract from her ability to provide a protective environment for children in her care. [12] After considering the paramount principle as provided under the Working with Children Act, the respondent was satisfied that an exceptional case existed and that it would not be in the best interests of children for a positive notice to be issued to the applicant. Legislative pathway [13] The objects of the Working with Children Act are to promote and protect the rights, interests and wellbeing of children in Queensland.5 The principles in which the legislation is to be administered is that the welfare and best interests of children is paramount. Every child is entitled to be cared for in a way that protects that child from harm.6 [14] It is not the legislative intention of the Working with Children Act to impose additional punishment on someone who has acquired police or disciplinary information, but rather its central focus is to put gates around employment so as to protect children from harm. The legislation is intended to protect children from future abuse; not to punish people twice.7 [15] The legislation expressly provides that once the respondent became aware that the applicant had been convicted of the drug offences, and was satisfied that an ‘exceptional case’ existed in which it would not be in the best interests of children to issue a positive notice to her, then it was mandatory for the respondent to issue the 4 Respondent’s material at BCS-6. 5 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5. 6 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6(a). 7 Commissioner for Children and Young People Bill, second reading speech, Queensland Parliament Hansard, 14 November 2000 at p. 4391. -- 4 of 12 -- 5 negative notice.8 ‘Exceptional case’ is a broad concept and I will discuss this term later in these reasons. [16] Because the respondent issued the negative notice, and the applicant chose to review that decision before the tribunal. The review must be undertaken under the principle that the welfare and best interests of a child is paramount9 and the purpose of the review is to produce the correct and preferable decision.10 [17] In undertaking its function, the tribunal ‘stands in the shoes’ of the original decision maker11 with a view of establishing whether or not the applicant’s case is an ‘exceptional case’, thus displacing the presumption as provided in the legislation that a positive notice should be issued to an applicant.12 [18] It is incumbent upon the tribunal to hear and decide the review by way of a fresh hearing on the merits of the application13 and the tribunal is not limited to the information which the respondent relied upon to reach the original decision. The tribunal is obliged to consider the best and most current information available.14 [19] Therefore the determination of the tribunal is not whether the original decision was the correct or preferable one based on the material which was before the decision maker at the time that the original decision was made, but rather whether the decision of the tribunal is the correct and preferable one based on the material before the tribunal at the time of the review hearing.15 [20] In undertaking that task, the tribunal has the discretion to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute its own decision; or set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the tribunal considers appropriate.16 [21] When arriving at the correct and preferable decision, the question for the tribunal to decide is whether an exceptional case exists bearing in mind the gravity of the consequences involved. The Queensland Court of Appeal has previously commented that the tribunal is required to be satisfied on a balance of probabilities in which it would not harm the best interests of children for a positive notice to be issued.17 [22] This consideration does no more than emphasise that when making a decision on these issues, it is appropriate for the tribunal to have regard for all the circumstances, including the consequences of confirming the decision or setting aside the decision. 8 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(2) and s 226. 9 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 353, s 354 and s 360. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1). 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19. 12 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221(1). 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2). 14 Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299. 15 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1). 17 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] per Philippides J citing Briginshaw v Briginshaw (1938) 60 CLR 336. -- 5 of 12 -- 6 Exceptional case [23] In blue card proceedings, the tribunal’s consideration must be undertaken in accordance with the context of the Working with Children Act.18 It is expressly provided within the legislation that a positive notice must be issued to an applicant unless the respondent is satisfied that there is an ‘exceptional case’ in which it would not be in the best interests of children to do so. If that satisfaction exists, then the respondent must issue a negative notice.19 [24] The term ‘exceptional case’ is not defined in the Working with Children Act. However, the term has been the subject of many discussions in a variety of jurisdictions, including the tribunal’s own appeal jurisdiction. The term has been said to be a question of fact and degree to be decided in each individual case and it is a matter of discretion.20 [25] Some time ago, the term ‘exceptional case’ was discussed at great length in an appeal to the Victorian Supreme Court. In arriving at an interpretation of what an ‘exceptional case’ is, the court at that time found that the term meant ‘unusual, special and out of the ordinary course’.21 The court observed that the facts of the case must be examined in the light of the legislation, the legislative intention and the interests of the parties involved. The Court went on to say that – It may be that the circumstances amounting to exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation. Courts have been both slow and cautious about essaying definitions of phrases of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.22 [26] There was an earlier observation of the term made in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1. On that occasion the court was of the view that particular attention should be paid to the warning given in the frequently cited definition of ‘exceptional case’ which arose out of Justice Luxmore’s comments in Re Perry and Brown's Patents (1930) 48 RPC 200, where it was observed that – …it would be most unwise to lay down any general rule about what an exceptional case is. Discretion should be used and each case should be considered on its own facts. [27] More recently in Queensland, the Court of Appeal endorsed the approach made by those earlier authorities regarding the term and commented that it would be most 18 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 at [31] citing Kent v Wilson [2000] VSC 98 at [22]. 19 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 221. 20 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [30] per Philippides J. 21 Referencing the Oxford English Dictionary. 22 Kent v Wilson [2000] VSC 98 at [22] per Hedigan J. -- 6 of 12 -- 7 unwise to lay down any general rule with regard to what is an exceptional case. All these matters are matters of discretion.23 [28] In analysing the position arrived in the various authorities just mentioned, there has been a consistent theme over a vast amount of time across a broad spectrum of jurisdictions that there is no general rule to apply to the interpretation of what is an ‘exceptional case’. It is a matter of discretion and each case must be judged on its very own set of facts and circumstances. Evidence from the applicant and witnesses [29] Three witnesses gave evidence for the applicant. Each of the witnesses told the tribunal that they met the applicant through their mutual involvement at the same school. They each supported the applicant and although some were aware of the applicant’s propensity to use cannabis, and had observed her doing so, there was no evidence provided by either of them that they ever saw the applicant under the influence of any alcohol or drugs, either in a private setting or within her workplace. [30] Notwithstanding that the evidence of the witnesses was not challenged, it was not a surprise that they each had positive things to say about the applicant. Afterall, they are close friends. Nevertheless, I accept that each of the witnesses were frank in the evidence that they gave. However, the only weight I give to their evidence is that none of them suggested that the applicant’s prior personal drug use had any impact upon her employment or on children. [31] I also note that contained within the respondent’s material is a reference to comments made by the Principal of the school where the applicant was employed as a Teacher’s Aide. Although no direct evidence was provided by the school’s Principal, his written reference referred to his support of the applicant during her initial submissions to the respondent. The Principal and the applicant have known each other for eight years and her conduct at the school was observed to have been exemplary. The Principal added that the applicant was found to be open and honest and self-reflective, and that he would have no hesitation in supporting her through her blue card review process. [32] In her evidence to the tribunal, the applicant told of how she suffered the emotional and physical trauma of being raped when she was aged 18. She went on to tell the tribunal of a debilitating back injury that she suffered within her workplace when she was aged 24. Since suffering that back injury, she constantly experienced difficulties managing the pain associated with that injury and found it difficult to get a good night’s sleep. Since that injury occurred, she avoided taking anti-inflammatory medication as this led to other complications with her health. It was not until later in life, after having her three children, that she discovered that cannabis provided her with pain relief for the back injury and has provided relief from her occasional bouts of depression. [33] Regarding the use of cannabis, the applicant told the tribunal that she only used the cannabis within her own home, and it occurred only when her children were placed in bed at night and were asleep. She said that she never used drugs in the presence of 23 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 at [34] per Philippides J endorsing the approach of Fullagar J in Re Imperial Chemical Industries Ltd’s Patent Extension Petitions [1983] 1 VR 1 in adopting the warning of Luxmore J in Perry and Brown Patents (1930) 48 RPC 200. -- 7 of 12 -- 8 her children or any other child. She lived in a high set house and she smoked the cannabis in the unoccupied downstairs area. At times her husband joined her to smoke the cannabis. [34] When discussing the cannabis plants found in the back garden and the hydroponic system, she said that the growing of cannabis was only a recent event because the purchasing of the cannabis had become too much of a financial burden. She went onto point out that she did not want the cannabis grown at their residence, but her husband overruled her on that decision. She added that as far as she knew, her children were not aware of the plants being in the back garden, and if they were, she was certain that they did not know what the plants were. In discussing the hydroponic system, she said that it had been set up within her husband’s work shed. Submissions [35] In her submissions, the applicant explained to the tribunal that the drugs and the drug paraphernalia at her house were not openly on display and were not kept where they could easily be seen or accessed by her children or other friends or family who may visit. She added that she did not directly expose her children to the use of dangerous drugs because she made sure that she was very discreet when using the drug at her house. As already explained in these reasons, the use of the drug was only undertaken in the downstairs area of the residence when the children were asleep upstairs. [36] The applicant went on to submit that she was fully aware of and is not naïve to the problems associated with and the destructive impact that the use of dangerous drugs has on individual members of society and their families. This comment gives me an impression that the applicant at least shows some insight into her drug use. [37] In her submissions, the applicant correctly stated that each case should be considered on its own facts on whether it is deemed ‘exceptional’. That argument is supported by the principle arrived at by Luxmore J in the matter of Re Perry and Brown's Patents.24 [38] To support her argument on this point, the applicant directed the tribunal to the authorities of Luong v Director General, Department of Justice and Attorney General [2019] QCAT 302 (‘Luong’) and Murray v Director-General, Department of Justice and Attorney-General [2018] QCAT 56 (‘Murray’). Both of those matters were tribunal decisions in the first instance which set aside and the respondent’s decision and arrived at a position that the circumstances of both those cases did not make either of them an ‘exceptional case’. [39] In Luong, she and her then boyfriend were intercepted by police. When their vehicle was searched, the police located 22 kilograms of cannabis in that vehicle. A subsequent search of her residence which she shared with her boyfriend revealed a further nine kilograms of cannabis and more than ten grams of methylamphetamines. Also found was $79,800 in cash. [40] Luong was later convicted of offences arising from those facts and was sentenced to two years imprisonment, with that sentenced being wholly suspended for an operational period of three years. In arriving at that sentence the court took into account her relatively young age, her early plea of guilty, her lack of any criminal 24 (1930) 48 RPC 200. -- 8 of 12 -- 9 history, and the fact that she had fallen into ‘bad company’, being the relationship with her former boyfriend, and she had limited involvement with his activities. [41] In reaching its decision in Luong, the tribunal found that the protective factors outweighed the risk factors having regard to the features of that matter, in particular the understanding, remorse and insight that the applicant possessed regarding her involvement in her then boyfriend’s criminal enterprise.25 [42] In Murray, he was described as a ‘former crystal methylamphetamine (ICE) addict’ with a criminal history spanning from 1997 to 2014. His criminal history included offences of breaching bail conditions and drug related offences, with the latest entry relating to 10 offences involving dangerous drugs and a single charge relating to a breach of privacy. [43] In his favour, Murray had engaged with the Australian Anti-Ice Campaign as a volunteer administrator and he had overcome his addiction to ‘ICE’. He was considered eminently qualified to deliver anti-drug education programs to school children.26 [44] Ultimately, the tribunal gave significant consideration to the features of Murray’s offending behaviour, including a matter where it was alleged that he caused the death of a person because of the dangerous manner in which he operated a motor vehicle. He was acquitted of that offence. After undertaking the necessary considerations, it was the view of the tribunal member that there was nothing about the nature of any of the entries in Murray’s criminal history prior to his 2014 offences that raised even the remotest spectre of risk to children.27 Even after considering his most recent drug offending in 2014, the tribunal was satisfied that Murray would only present a risk to children if he was still using illicit drugs and it appeared improbable that he would return to a life of drug addiction.28 [45] In regard to the features of Luong and Murray, although I am not bound by these decisions, the individual facts may be persuasive to any determination that I reach. I note that in each of those cases, the tribunal at first instance was satisfied that a person who has, or who had used dangerous drugs, was not automatically deemed to be unsuitable to hold a positive notice. I hold the same view. [46] However, it is incumbent upon me that in reaching the correct and preferable decision I have to be mindful of the guidance provided by the legislative principles that the welfare and best interests of children is paramount and that every child is to be cared for in a way that protects that child from harm. [47] I am also mindful of the principles arrived at in the relevant authorities that suggests that each case must be determined on its own set of facts and circumstances. In 25 Luong v Director General, Department of Justice and Attorney General [2019) QCAT 302 at [51] to [54] per Member McDonnell. 26 Murray v Director General, Department of Justice and Attorney General [2018) QCAT 56 at [3] per Member McLean Williams. 27 Murray v Director General, Department of Justice and Attorney General [2018] QCAT 56 at [42] per Member McLean Williams. 28 Murray v Director General, Department of Justice and Attorney General [2018) QCAT 56 at [49] per Member McLean Williams -- 9 of 12 -- 10 applying that principle, I am required to consider all the available evidence and the weight that it may carry. [48] The respondent’s submissions were particularly helpful to the tribunal, in particular where the protective and risk factors were identified. The identified protective matters are that the applicant expressed some remorse for her criminal behaviour, and she was able to demonstrate insight into the positivity that cannabis is no longer being used or grown at her residence. A further identified positive feature is that the applicant no longer engages in using cannabis and is managing her pain through various alternative methods. This would indicate that she possesses some level understanding into the relevance of not engaging in unlawful activities whilst being the holder of a blue card. [49] Other further protective features are that the applicant is active within her children’s lives, she engages in a volunteer basis at the children’s school and she engages in their extracurricular activities. These positive features are supported by one of the witnesses who indicated that although drug use is not something that she would generally accept and she does not ordinarily associate with people who use drugs, in the applicant’s case she would continue to entrust the care of her children with the applicant.29 [50] In regard to the risk factors, the respondent directed the tribunal to the applicant’s conviction is for drug-related offences. It was also suggested that the tribunal should accept that the applicant failed to acknowledge that her offending expose her children to drug-related activities. The respondent relied upon the cannabis found at her residence which she shared with her children. [51] However, I am not inclined to accept that this alone is a risk factor without evidence to support that conjecture. There must be more than mere speculation, supposition or assumption that the risk is evident, and there must be some tangible evidence to satisfy the hypothesis that she exposed her children to drugs. On my observation of the material and evidence available, there was no evidence to support any suggestion that the applicant’s children were exposed to dangerous drugs. Observations and discussions [52] The information and the evidence provided to the tribunal during the hearing suggests that the applicant participated in the use of cannabis within the privacy of her own home and she was aware of her husband growing cannabis at their residence. I accept that there was no commerciality attached to the production of the drug and it was for their own personal use. As already mentioned, that was an economic decision made because the purchase of cannabis was becoming too expensive. [53] Notwithstanding the illegality of her conduct, there is no evidence to suggest that her criminal conduct was witnessed by or involved her children or any other child. Her criminal behaviour took place in the privacy of her own home and the evidence does not suggest that her criminal offending flowed over into or impacted upon her workplace. [54] The tribunal must consider what, if any, is the risk of repetition of the concerning behaviour of the applicant. I have already indicated that there was no evidence provided to the tribunal which suggested that the applicant’s criminality impacted 29 Respondent’s submissions at paragraph 29. -- 10 of 12 -- 11 upon children, the school where she worked or upon children she generally involved herself with either at home, work or at some other extra-curriculum activity. [55] The applicant told the tribunal that she was never addicted to cannabis and after she was charged with the drug offences, she undertook counselling to address this issue. She said that she no longer smokes cannabis. Her motivation to stop smoking cannabis was the order made by the Magistrates Court, as well as her no longer having the desire to use cannabis. [56] The applicant went on to say that although she still battles some bouts of depression, she can identify the triggers for that condition and apply strategies to combat its onset. Those strategies include keeping herself busy, exercising and spending time with their children. Conclusion [57] Having regard to those facts just identified, I am satisfied that the applicant’s evidence negates any concerns regarding the possible repetitious behaviour. I am also satisfied that her use of cannabis in the private setting of her own home does not raise any concerns about the likelihood of her being a risk to children. [58] I accept that the applicant has implemented protective strategies, such as attending counselling to address her stress ailments and abstaining from the use of cannabis which sufficiently mitigates the concerns relating to a risk to children. [59] Particular attention has been paid to the facts of this matter and serious consideration was given to the paramount principle. Having regard to the evidence, I am satisfied, on a balance of probabilities, that it would not harm the best interests of children for a positive notice to be issued to the applicant. I am also satisfied that the respondent’s decision that the applicant’s case was ‘exceptional’ within the meaning of Working with Children Act should be set aside and substituted with the tribunal’s decision that there is no exceptional case. Non-publication order [60] The Working with Children Act expressly provides that proceedings in the tribunal for child related employment reviews must be held in private. Notwithstanding that provision, there are exceptions for various parties and people to be present in the hearing.30 [61] Either upon the application of a party to the proceedings, or upon its own initiative, the tribunal can exercise its discretion to de-identify any party or witness to the proceedings.31 [62] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides a discretion for the tribunal as to whether or not an order should be made prohibiting the publication of the contents of any document or thing produced to the tribunal; or the publication of any evidence given before the tribunal; or the publication of 30 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 361. 31 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(3). -- 11 of 12 -- 12 information that may enable a person who has appeared before the tribunal or is affected by the proceedings to be identified.32 [63] The making of a non-publication order is conditional on whether the tribunal considers that it is 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 any other reason in the interests of justice.33 [64] In consideration of the features of this matter, I am satisfied that it would be contrary to the public interest to identify the applicant or her witnesses. I consider that the only appropriate order to make with regards to the applicant’s identification is to prohibit the publication of the contents of any document or thing filed in or produced to the tribunal and any evidence given to the tribunal by any witness to the extent that it could lead to the identity of the applicant or any member of the applicant’s immediate family or any non-party to the proceedings. 32 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(1). 33 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2). -- 12 of 12 --