HK v Director-General, Department of Justice and Attorney-General [2021] QCAT 130

Date: 20 April 2021
Tribunal: Queensland Civil and Administrative Tribunal 
Tribunal Member: Member Fitzpatrick 
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 34, 48, 58
Rights considered: Right to protection of families and children; Right to a fair hearing; Right not to be tried or punished more than once
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226, 360, 580, Sch 2, 3, 4, 5; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 66
Keywords: Blue Card

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, HK. In confirming the respondent’s decision to issue a negative notice, the Tribunal stated that it considered the Human Rights Act 2019 (Qld) and held that any limitations on HK’s human rights were reasonable and justifiable pursuant to section 13 of the Human Rights Act 2019 (Qld).

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, HK. This decision was made on the basis that the applicant was an ‘exceptional case’ where the issuing of a positive notice would not be in the best interests of children.

HK applied for a blue card to enter the nursing profession. A negative notice was issued on the basis of HK’s charges and convictions for drug offences, including the supply of dangerous drugs, and an extensive traffic offence history: at [15]. HK also had a history of drug use and mental health issues, and there was evidence of the applicant having stored dangerous weapons in her car, which could be accessed by her young children: at [15]. As she had not been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to HK unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. 

The Tribunal noted that ‘it is not possible or necessary for all risk to be eliminated’, however, the importance of protecting children meant that the risks of the applicant ‘taking illicit drugs, suffering a major mental health episode, or engaging in criminal behaviour’ needed to be low: at [57]. On consideration of the evidence, the Tribunal could not find that HK was at low risk of relapsing into drug use and criminal behaviour: at [70]. In making this decision, the Tribunal held that any limitations placed on HK’s human rights by the decision were reasonable and justifiable pursuant to section 13 of the Human Rights Act 2019 (Qld): at [73].

While the Tribunal did not elaborate further in its reasons, a footnote listed the relevant rights as being: the right to a fair hearing (section 31); the right not to be tried or punished more than once (section 34); and the right to protection of families and children (section 26(2)): at note 21.

The Tribunal confirmed the respondent’s decision to issue a negative notice.

Visit the reported judgement: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/130/pdf