SEB v Department of Justice [2026] QCAT 389

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: SEB v Department of Justice [2026] QCAT 389 PARTIES: SEB (applicant) v DEPARTMENT OF JUSTICE (respondent) APPLICATION NO/S: CML386-21 MATTER TYPE: Childrens matters DELIVERED ON: 14 August 2026 HEARING DATE: 26 May 2025 HEARD AT: Brisbane DECISION OF: Member Davies ORDERS: The decision of the Director-General, Department of Justice that the Applicant’s case is ‘exceptional’ within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of: (a) the contents of a document or thing filed or produced to the Tribunal; (b) evidence given before the Tribunal; and (c) any order made or reasons given by the Tribunal. is prohibited to the extent that it could identify or lead to the identification of the applicant, any child, or non-party to the proceeding. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue the applicant with a negative notice FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – application for review of decision to issue a negative notice – where the applicant has -- 1 of 11 -- 2 convictions – where the offences and other material required consideration under the Working with Children (Risk Management and Screening) Act 2000 (Qld) Human Rights Act 2019 (Qld), s 25, s 26, s 31, s 58(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 63, 66 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 16, s 221, s 226, s 228, s 353, s 360, s 597 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Director-General, Department of Justice v CMH [2021] QCATA 6 Johnston v Carroll [2024] QSC 2 Oliver v Queensland Racing Integrity Commission [2017] QCAT 50 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: C Davis Legal Officer Department of Justice REASONS FOR DECISION Introduction [1] In June 2020, the applicant (‘SEB’) made an application for a working with children clearance.1 That clearance is commonly referred to as a blue card. At the time of SEB’s application the governing legislation regarding the issue of a blue card was entitled the Working with Children (Risk Management and Screening) Act 2000 (‘WWC Act’). The WWC Act has been amended on a number of occasions since June 2020 and is now entitled the Working with Children Check Act 2000.2 [2] SEB’s application arose out of his desire to assist, as a volunteer, with a sporting organisation. [3] By letters of August 2020 and January 2021, the respondent (‘Blue Card Services’) sought information from SEB to assist the consideration of his blue card application. 1 Exhibit 1 pages BCS 23 – 25. 2 The Child Safe Organisations Act 2024, in Chapter 10, Part 4, amended the WWC Act in various ways including, in s 125, by amending the short title of the Act. In these reasons, unless the context suggests otherwise, this Act will be referred to as the WWC Act as this was the name of the Act at the time of SEB’s application and the Negative Notice Decision. -- 2 of 11 -- 3 [4] In response to those requests, SEB provided further documents to support his application. Blue Card Services considered SEB’s application and the further documents he provided in assessing SEB’s eligibility to hold a blue card. [5] The outcome of that assessment was that the decision maker, the Director of Blue Card Services, decided not to issue SEB with a blue card but rather issue him with a negative notice (‘Negative Notice Decision’). SEB was advised of that decision under cover of a letter from Blue Card Services dated 4 November 2021. [6] That letter attached a 22-page document bearing the self-explanatory descriptor ‘Reasons’3 which set out why the Negative Notice Decision was made. [7] SEB was dissatisfied by the Negative Notice Decision. By an application received by the Tribunal Registry on 30 November 2021, he sought a review of that decision, by the Tribunal. [8] The principal legislative enactments relevant to a review are the WWC Act, which governed the issue of a working with children clearance, and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which governs the Tribunal’s exercise of its review jurisdiction. Also relevant to the Tribunal’s review of the Negative Notice Decision is the Human Rights Act 2019 (Qld) (‘HRA’). [9] Before evaluating the evidence before the Tribunal at the hearing of this matter, some context is appropriate beyond the identification of the principal statutes that govern this proceeding. This context is supplied by firstly identifying the principal issue that this Tribunal must address, secondly by setting out the legal framework that governs the Tribunal in its review and, thirdly, by identifying the evidence before the Tribunal that must be considered in coming to a decision on SEB’s application. Issue [10] As part of the Blue Card Services’ assessment process, SEB was informed that he must be issued with a blue card ‘unless we believe that your case is an exceptional case in which it would not be in the best interests of children to give you a blue card’.4 In summary, whether SEB’s case is ‘exceptional’ was the issue that was before the decision maker. As this is a review application, this is also the issue before this Tribunal. [11] Although the issue remains the same as the one that was addressed by Blue Card Services, the context is now different. This Tribunal addresses the issue by having regard to the evidence that was presented at the Tribunal hearing. As expanded on below, the evidence before the Tribunal was not the same as the material that was before the decision maker. It was augmented by new material brought before the Tribunal for the hearing. For example, there were almost 1,000 pages of documents produced as a result of the issue by the Tribunal of Notices to Produce.5 These Notices to Produce were issued by the Tribunal in June and July 2022. They were directed to the Director-General, Department of Children, Youth Justice and Multicultural Affairs, and to the (Queensland) Commissioner of Police. 3 Exhibit 1 at BCS 1 -22. 4 Exhibit 1 at BCS 61 and WWC Act s 221. 5 Section 63 of the QCAT Act empowers the Tribunal to make an order requiring a person who is not a party to a proceeding, but who has or is likely to have in the person’s possession or control a document relevant to the proceeding, to produce that document. -- 3 of 11 -- 4 [12] In addition to greater context provided by the Notice to Produce documents, the Tribunal hearing afforded SEB the opportunity to articulate, in detail, his position including responding to the issues raised by Blue Card Services together with addressing the new material before the Tribunal in response to the Notices to Produce. Legislative framework and role of Tribunal [13] The WWC Act has, since the inception of this review, been amended. What this means is that it is necessary to identify the relevant version of the WWC Act applicable to this matter. Blue Card Services, consistent with its role of assisting the Tribunal, submits in its post hearing submissions,6 that the transitional provision applicable to this proceeding (i.e. section 597 of the WWC Act), provides that the WWC Act, as in force from the commencement of the ‘relevant amendment’ applies to this proceeding.7 The effect of this submission is that Blue Card Services contend that the WWC Act in force from 20 May 2022 is the relevant version of the WWC Act that governs this application.8 SEB, in his post hearing submissions, does not dissent from this proposition. I consider that Blue Card Services’ submissions accurately set out the relevant legislative framework which governs this review application (including sections 221 and 228 applying from 20 May 2022). [14] The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children and young people in Queensland. It does this by a scheme requiring the development and implementation of risk management strategies and for the screening of persons who interact with children and young people.9 [15] The Negative Notice Decision is a ‘chapter 8 reviewable decision’ as that phrase is defined in s 353 of the WWC Act. [16] The purpose of a review by this Tribunal of the Negative Notice Decision is to produce the correct and preferable decision.10 In meeting that purpose this Tribunal must hear and decide this matter by way of a fresh hearing on the merits.11 That is to say, this Tribunal must come to a decision on the evidence before it. [17] It is not necessary for SEB to establish that the primary decision maker fell into error in either the process or the reasoning that gave rise to the decision. Further, there is no presumption that the decision under review was correct.12 [18] In deciding this matter, this Tribunal has all the functions and responsibilities of the primary decision maker. Relevantly, in coming to a decision, this Tribunal is also guided by the principles set out in the WWC Act. [19] Those principles are, in summary, that the welfare and best interests of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.13 6 In Part C. 7 Blue Card Services post hearing submissions at para 10. 8 I take the reference to 20 May 2022 as a reference to the date of assent of the Child Protection Reform and Other Legislation Amendment Act 2022 which relevantly amended sections 221 and 228 of the WWC Act. 9 WWC Act s 5. 10 QCAT Act s 20(1). 11 Ibid s 20(2). 12 Oliver v Queensland Racing Integrity Commission [2017] QCAT 50, [11]. 13 WWC Act ss 6, 360. -- 4 of 11 -- 5 [20] As stated, the WWC Act provides, as a starting point in this matter, that a person in the position of SEB should be allowed to hold a blue card unless that person’s situation constitutes an ‘exceptional case’. An exceptional case is one where the Tribunal is satisfied that it would not be in the best interests of children for SEB to be issued with a working with children clearance.14 [21] As to what constitutes an exceptional case is not defined in the WWC Act. It is a question of fact and degree having regard to the intent and purpose of the legislation. [22] Further, as it is a term of common use in everyday language, the application of the concept of what constitutes an exceptional case should be unhampered by any special meaning or interpretation.15 [23] In determining whether SEB’s circumstances constitute an exceptional case; it is necessary to consider: (a) The matters that the WWC Act mandates must be considered in deciding whether it would be in the best interests of children for SEB to be issued with a blue card.16 These matters include both ‘relevant information’17 and ‘other information’ that this Tribunal reasonably believes is relevant to deciding whether it would be in the best interests of children for SEB to be issued with a Working with Children Clearance.18 For SEB, the relevant information includes information that he has— (i) a charge for an offence other than a disqualifying offence; or (ii) a charge for a disqualifying offence that has been dealt with other than by a conviction; or (iii) a conviction for an offence other than a serious offence. [24] The WWC Act, in the heading to s 16, poses the question – what is a disqualifying offence? The section then answers that question by reference to schedules 4 and 5. Relevantly for this review, schedule 4 to the WWC Act refers to various provisions in the (Queensland) Criminal Code including indecent treatment of children under 16 and making and possessing child exploitation material. [25] The WWC Act also specifically directs attention to a range of matters that must be considered in determining whether there is an exceptional case where there has been, as is the case here, a conviction or charge19 or if there is other relevant information about SEB that the Tribunal reasonably believes is relevant to deciding whether it would be in the best interests of children for SEB to be issued with a blue card.20 [26] For SEB, the s 226 matters include whether it is a conviction or a charge, whether the offence is a serious offence and if it is, whether it is a disqualifying offence, when the offence was committed or alleged to have been committed, and the nature of the offence and its relevance to contact with children. 14 WWC Act s 221. 15 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]– [35]. 16 WWC Act ss 221, 226 and 228. 17 WWC Act s 221(3). 18 WWC Act s 221(3)(f). 19 WWC Act s 226. 20 WWC Act s 228. -- 5 of 11 -- 6 [27] As befits an Act which has as its object the promotion and protection of the rights, interests, and well-being of children and young people in Queensland the mandatory considerations in the WWC Act are not exhaustive. The Tribunal can consider any other matters that are relevant to its decision. 21 [28] This consideration must be conducted having regard to the principles for the administration of the WWC Act, summarised above, and any human rights relevant to the Tribunal’s determination. [29] With respect to human rights relevant to the decision, the Tribunal is a ‘public entity’ and is therefore also required to comply with s 58 of the HRA. Subject to some presently irrelevant exceptions, that section imposes two obligations on the Tribunal. They are the substantive obligation22 not to decide this application in a way that is incompatible with human rights and the procedural obligation23 to consider relevant human rights in making a decision.24 [30] The human rights that are relevant include SEB’s right to privacy and reputation25 and the right to a fair hearing.26 The human rights of children are also relevant to this review. Those rights relevantly are that every child has the right to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child.’27 Evidence [31] As mentioned, a determination of whether an exceptional case exists can only be made after evaluating all the available evidence.28 In this regard it is important to emphasise that a determination under s 221(2) of the WWC Act is an evaluative exercise rather than a fact-finding exercise.29 [32] In evaluating the evidence, the question of what is in the best interests of children ‘involves consideration of how children might be affected and a degree of speculation as to what might happen in the future and the potential future risks to children’.30 [33] Whilst there can never be certainty as to future events, speculation as to what might happen is, under the WWC Act, conditioned by having regard to past events. So, by mandating consideration of ‘relevant information’,31 the WWC Act makes clear that past events provide guidance for speculating as to what might happen and potential future risks to children. 21 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [42] and Commissioner for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. 22 HRA s 58(1)(a). 23 Ibid s 58(1)(b). 24 Johnston v Carroll [2024] QSC 2, [65] - [77]. 25 HRA s 25. 26 Ibid s 31. 27 Ibid s 26(2). 28 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28, [19]. 29 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [19]. 30 Ibid [16]. 31 WWC Act s 221(3). -- 6 of 11 -- 7 [34] Further, in assessing the evidence before the Tribunal ‘it is not productive to approach the question of whether the Tribunal is ‘satisfied’ from the viewpoint of an onus or standard of proof‘.32 [35] With this as background, what evidence was before the Tribunal? [36] The documentary evidence before the Tribunal consisted of six exhibits. Being: (a) The documents related to SEB’s blue card application and the consequent Negative Notice Decision (‘BCS documents’) – exhibit 1. This bundle of documents included the twenty-two pages Reasons document dated 4 November 2021. (b) The Notice to Produce Documents (‘NTP documents’) – exhibit 2. (c) A document, dated 14 February 2022, outlining SEB’s Life History – exhibit 3. (d) A report dated 24 November 2022, which takes the form of a psychological risk assessment of SEB by a clinical psychologist – exhibit 4. This report was prepared at the request of SEB for this proceeding. (e) A complex care report dated 20 November 2018, by a child and family therapist in relation to SEB’s son – exhibit 5. (f) A statement of a character witness for SEB dated 13 August 2020 – exhibit 6. [37] In addition, oral evidence was given by SEB, the clinical psychologist who authored the psychological risk assessment report (exhibit 4), and the author of exhibit 6 – the character reference. [38] SEB’s charges and convictions and the results of those charges and convictions are set out in a document entitled National Police Check Results Report 33 and in a police Brief of Facts.34 [39] The National Police Check Results Report sets out 11 court appearances by SEB over a period in excess of 18 years – from 2002 to 2020. In addition, the Police Brief of Facts sets out four encounters between SEB and the Queensland Police during the period December 2001-June 2003 that did not result in court appearances. [40] Of the 11 court appearances SEB received convictions for obstructing a police officer (April 2002), common assault (August 2008), use of a carriage service to make hoax threats (March 2009) and, most recently, for breach of a bail conditions (November 2017). [41] The penalties imposed by the courts for these convictions ranged from a reprimand for obstructing a police officer, to fines for the common assault and breach of bail convictions and, for the hoax threats, a term of imprisonment of nine months. [42] In respect of a number of other court appearances there were no convictions. In the period from July 2002 to July 2003 SEB, who was at the time around 16 years old, engaged in sexual conduct with his then girlfriend, who was a child of about 14 years old. Although this conduct resulted in a series of related charges the proceedings on 32 Director-General, Department of Justice and Attorney-General v CMH [2021] QCATA 6, [21]. 33 Exhibit 1, BCS documents 26-27. 34 Exhibit 1, BCS documents 33. -- 7 of 11 -- 8 all charges were discontinued by the Director of Public Prosecutions and no indictment was presented. [43] In the period from August 2018 to April 2020, SEB faced court on several charges. None of these charges resulted in a conviction. Nonetheless, the charges, and the factual matrix that gave rise to these charges, must be considered as I am of the view these charges are relevant to the assessment of SEB.35 These charges were: (a) making child exploitation material (b) possessing child exploitation material (c) indecent treatment of a child under sixteen and related offences (d) common assault [44] In addition to the charges and convictions there is a range of ‘other information’36 in the material before the Tribunal that can be described as reasonably relevant to a consideration of the issue of whether SEB’s case is exceptional. [45] Blue Card Services submit37 that the other information that falls within this category includes a letter from Child Safety and an expert report commissioned by Child Safety, certain allegations made by SEB’s stepdaughter, assessments by child safety officers and other material produced to the Tribunal by the Department of Children, Youth Justice and Multicultural Affairs (‘Child Safety’). Discussion [46] As a preface to a discussion of the evidence before the Tribunal and how it relates to the question of whether SEB’s position is exceptional, it is appropriate to state the final positions of the parties, as expressed in their closing submissions. [47] Blue Card Services submit that, having regard to SEB’s ‘relevant information’ and other information to which regard can or must be paid, SEB’s case is exceptional, and it would not be in the best interests of children for him to be issued with a blue card. [48] In support of this submission Blue Card Services highlights the following matters in the evidence before the Tribunal: (a) The nature and extent of SEB’s past use of illicit drugs and in particular his answer to questions in the hearing relating to that drug use. (b) That the material before the Tribunal points to SEB not acting protectively of children and young people and adhering to rules, regulations and procedures designed to keep children and young people safe. (c) That SEB’s conduct would give the Tribunal little confidence that his empathy and regard for the safety and welfare of others (including children and young people) will serve as a protective factor that could be expected to prevent or discourage him from transgressing boundaries in the future. In this regard Blue Card Services places particular emphasis on the circumstances that gave rise to SEB’s conviction for using a carriage service to make a hoax bomb threat and to his filming his then- 35 WWC Act s 226(2). 36 WWC Act ss 221(3)(f) and 228(1)(b)(iv), (2)(d), (f). 37 Blue Card Services post hearing submissions at para 43. -- 8 of 11 -- 9 partner giving her biological daughter a ‘wedgie’. This is the conduct that resulted in SEB facing charges for making and possessing child exploitation material. (d) That although there was no hearing as a result of a nolle prosequi in relation to a charge of indecent treatment of a child under 16 and related offences – the charges that gave rise to the April 2020 court appearance – Blue Card Services submit that the nature and gravity of the allegations made represents a risk factor. (e) That the Tribunal should have little confidence that risks and concerns that are raised by the evidence have been adequately addressed or mitigated. [49] SEB’s submission is that his case is not exceptional. In support of this position SEB acknowledges that at times his conduct has displayed an emotional immaturity and inappropriate conduct, some of which involved a child, there are nonetheless exculpatory or positive factors apparent on the evidence. [50] In both his oral and written submissions, the applicant stresses a range of positive matters that emerge from the evidence. These include: (a) The Psychological Risk Assessment which made the following observations of SEB: (i) That he presented as a low or very low risk of future offending or harm (ii) That he was at very low risk of harming children in the future and that there had been no violent offending in the past 15 years (iii) That he appears capable of distinguishing between appropriate and inappropriate child behaviours and that he has benefited from parental skills intervention (b) Whilst acknowledging previous shortcomings, SEB submits that the evidence shows that he has significantly matured not only in years but also as a result of his engagement with the criminal justice system (c) That he has demonstrated that he is a safe and responsible person who provides necessary care and protection of children in his care (d) With respect to the charges, he faced in 2018 (making and possessing child exploitation material) and 2020 (indecent treatment of a child under 16 and related offenses) SEB acknowledges that these are important matters in the context of his blue card application. However, SEB places particular reliance on a letter from the Director of Public Prosecutions to Blue Card Services dated 28 September 2020.38 That letter set out the results of the review by the Director of Public Prosecutions of the charges. In the case of the 2018 matter, the office of the Director of Public Prosecutions formed the view that the evidence did not support the charges. In respect of the 2020 matter the Director of Public Prosecutions noted that the charges arose from alleged conduct in 2017, that SEB had provided an alibi for the time of the alleged offending, and further, there were significant issues with the complainant’s evidence, including her previous habit of lying. [51] I consider that SEB presented well in his evidence and made appropriate concessions when questioned about his past conduct. Further I consider that he has some insight 38 Exhibit 1, BCS documents 56 – 57. -- 9 of 11 -- 10 into his conduct so as to go some way to mitigating the risks of repetition of the conduct that gave rise to the charges he has faced and, in particular, his convictions. Also, I consider that the evidence does go to show that SEB has now a good relationship with his son. Indeed, this is supported by the very reason that SEB applied for a Blue Card. [52] However considering the evidence as a whole, I have formed the view that the decision of Blue Card Services should be confirmed. That is to say, the decision that SEB’s case is ‘exceptional’ within the meaning of WWC Act should be confirmed. In coming to this decision, I have considered the competing human rights of both SEB and any hypothetical children that he may come into contact with, should he be granted a blue card. [53] The basis that I have formed this view that SEB’s case is exceptional can be summarised as follows: (a) The focus of this proceeding is on risk or potential risk. In this context the reasonably extensive criminal charges and, in particular, SEB’s convictions, are significant matters to take into account. Although the 2008 conviction for common assault and the 2009 conviction for using a carriage service to make a hoax threat took place some time ago, they cannot be dismissed simply as youthful mistakes. At the time of these offences, SEB was into his twenties. Further although these convictions related to matters that did not involve children directly, they do support a contention that SEB has found it difficult to manage his anger and respond to stress in an appropriate manner. (b) Although the serious charges of making and possessing child exploitation material and indecent treatment of a child under 16 were dismissed or no evidence was offered in support of them, they are matters that I consider I need to take into account. This is particularly so with respect to the wedgie incident. There is no doubt that SEB made a video of this incident. That conduct bespeaks of an inability to act proactively to ensure the welfare of a child. Although I consider that SEB now appreciates that his conduct was inappropriate, I am of the view that his failure to act at the time was a breach of the duty of care that he owed that child. (c) The evidence presented by his character witness, although encouraging with respect to SEB’s contact with children, did not allay concerns that his support network is rather circumscribed. This is particularly so when one considers the convictions and charges that SEB has faced over a period of almost 20 years. (d) The WWC Act and the paramount principle contained in that Act support a precautionary approach to decision-making in child-related matters. Although risks can never be completely eliminated, I am of the view that the most prudent course in this matter would be to adopt a precautionary approach and to conclude that SEB’s case is exceptional. Non-publication order [54] The Tribunal, under section 66 of the QCAT Act, may make an order prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. Having regard to the evidence in this matter, I consider it appropriate to make a non-publication order. To not do so could lead to, amongst other matters, the identification of not only SEB’s -- 10 of 11 -- 11 child but also the child who was central to the charge of making child exploitation material. -- 11 of 11 --