BA, DC, FE v State of Queensland [2022] QCAT 332

Date: 2 September 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 4(f), 8, 13, 15, 26, 31, 48, 58, 64
Rights Considered: Right to recognition and equality before the law; Right to protection of families and children; Right to a fair hearing
Other Legislation: Anti-Discrimination Act 1991 (Qld) s 134; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 10, 35, 43(2)(b), 101, 120, 218; Queensland Civil and Administrative Tribunal Rules 2009 (Qld), rr 9, 11; Australian Solicitor’s Conduct Rules 2012, rr 8.1, 4.11, 3.1
Keywords: Public Law Considerations: Interpretation, Fair Trial

This interim decision concerned whether a litigation guardian would be needed by any of three children who had brought a case alleging age discrimination in respect of the conditions of detention in the Cairns watch house for periods in excess of two days and failure to segregate children from adult detainees.

The governing statutory regime contemplated that a minor could bring a complaint that may be properly referred to the Tribunal, where the Tribunal would assist the young person in their litigation without the need for a litigation guardian.

In consideration of the circumstances of the two eldest complainants BA and DC, Member Fitzpatrick held that they were competently able to instruct counsel notwithstanding their youth or respective disabilities. BA and DC were considered to have reached a sufficient understanding and intelligence to be capable of forming their own views on the matter requiring decision. On this basis, BA and DC would not require litigation guardians and could conduct proceedings as applicants.

Member Fitzpatrick found that the youngest complainant, FE, who was fourteen years of age, would require a litigation guardian to ensure that his rights could be fully ventilated. A legal representative would be insufficient for this purpose, as a legal representative’s primary duty was recognised to be a primary duty to the court. Pursuant to Rule 95 and Form 13 of the Uniform Civil Procedure Rules 1999 (Qld), Member Fitzpatrick directed for a litigation guardian to be arranged for FE. Accordingly, it was considered whether this appointment would have any effect and likely limitation of FE’s human rights under the Human Rights Act 2019 (Qld), namely the right to recognition and equality before the law (section 15), the right to protection of families and children (section 26(2), and the right to a fair hearing (section 31).

Member Fitzpatrick considered that the limitation on FE’s human rights would be, “consistent with a free and democratic society based on human dignity, equality, and freedom”, as required under section 13 of the Human Rights Act 2019 (Qld), as “its purpose is to ensure a fair hearing for all parties based on reliable and informed instructions from a party competent to give instructions”, where such a limitation would achieve this purpose consistently with the fair administration of justice: at [44]. The Tribunal held that public interest to ensure that litigation could reliably proceed would outweigh FE’s countervailing private interest to ensure that FE’s complaint was heard.

View the judgment here: BA, DC, FE v State of Queensland [2022] QCAT 332