LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16

Date: 9 January 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 9, 12, 13, 25, 26, 31, 34, 36, 48, 58.
Rights Considered: Right to privacy and reputation; Right to protection of families and children; Right to a fair hearing; Right not to be tried or punished more than once; Right to education; Right to take part in public life; Cultural rights
Other Legislation: International Covenant on Economic, Social and Cultural Rights, Articles 4, 6; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 19, 20, 21, 22, 24, 28, 66, 90; Weapons Act 1990 (Qld) s 60(1)(c)(i); Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 2, 5, 6, 167, 168, 220, 221, 223, 225, 226, 227, 228, 311, 318, 319, 335, 337, 338, 353, 354, 360.
Keywords: Blue Card

The applicant was issued a negative blue card notice on the basis of her criminal history. The Tribunal considered the applicant’s rights pursuant to the Human Rights Act 2019 (Qld) and set aside the decision as her criminal history was recognised to be of limited relevance.

A negative blue card notice was issued to the applicant because of her criminal history, which included a charge of assault occasioning bodily harm; a public nuisance charge; and a breach of a temporary domestic violence order. The assault charge was struck out as no evidence was offered, and the second and third charges had a good behaviour bond with no conviction recorded. All charges were brought between nine and twenty years previous. Many years prior, Child Safety investigations occurred in relation to allegations made by the applicant's ex-partner, who was found to be the real risk to their children. The Child Safety investigations concluded that the applicant was of no risk to her children.

The Tribunal considered its obligations under the Human Rights Act 2019 (Qld) extensively, at [424]-[461]. The respondent submitted that because the Working with Children Act 2000 (Qld) considered certain rights of children to be a ‘paramount consideration’, any limitation on other rights would be compatible with human rights. However, Member Stepniak rejected the respondent’s submission and acknowledged that the human rights of others could only be limited to the extent that would be reasonable and justifiable to protect the human rights of children in accordance with s 13 of the Human Rights Act 2019 (Qld): at [458], [460]. Member Stepniak considered that the right not to be tried or punished more than once (section 34) the right to a fair hearing (section 31) of the Human Rights Act 2019 (Qld) and the right to work pursuant to The International Covenant on Economic, Social and Cultural Rights. Member Stepniak also recognised that the rights of children can be positively impacted by their parent receiving a blue card and being able to work: at [433].

The Tribunal considered that the review may have constituted a retrial of the applicant’s prior offences, which would make the process incompatible with s 34 of the Human Rights Act 2019 (Qld), being the right not to be tried or punished more than once: at [462], [463]. Accordingly, the Tribunal recognised that its function was not to determine innocence or guilt, but to undertake a risk-evaluation analysis regarding the applicant’s risk to children; it was not concerned with proving or disproving previous offences, but rather the prevention of future potential harm: at [464]-[465]. In this regard, the applicant’s criminal history formed part of ‘the totality of evidence’ to be considered: at [466].

The Tribunal held that its power to make non-publication orders clearly limited the applicant’s right to a fear hearing under s 31(3) of the Human Rights Act 2019 (Qld): at [495]. However, a non-publication order would prevent infringements on the applicant’s rights to privacy and reputation (section 25) under the Human Rights Act 2019 (Qld) and in any event was reasonable and justifiable in this matter: at [494], [496].

The applicant’s right to work was limited both by the decision to issue a negative notice and by the review process: at [499]. Although such a right was acknowledged to not be provided for in the Human Rights Act 2019 (Qld), the Tribunal considered that rights recognised under other laws would not be abrogated or limited by their full or partial exclusion from the Human Rights Act 2019 (Qld): at [500]. Accordingly, the Tribunal referred the existence of other civil, political, economic, social and cultural rights under the Human Rights Act 2019 (Qld), and the recognition of the right to work under the International Covenant on Economic, Social and Cultural Rights: at [501]-[503]. Ultimately the right to work was one ‘clearly qualified’ by the requirement that a person possesses the appropriate skills and qualifications to undertake that work, and thus a negative assessment of a person’s suitability to undertake that work was not necessarily in breach of that right: at [506]. In that regard, the Working with Children (Risk Management and Screening) Act 2000 (Qld) was held not to limit one’s right to work, but to respect one’s right to undertake work within the context of protecting the safety of children: at [507]-[508].

Ultimately, the Tribunal set aside the respondent’s decision, noting the limited relevance of the Applicant’s criminal history: at [529]. The investigations relating to the Applicant’s children were considered to be undertaken on the basis of ‘unfounded or clearly malicious allegations’, and ultimately ‘the Applicant was tireless in her efforts to protect and promote the best interests of her children’ despite a difficult family and financial position and an investigation against her: at [541], [545].

Visit the reported judgment: LO v Director-General, Department of Justice and Attorney-General [2022] QCAT 16