Dowling v Director-General, Department of Justice and Attorney-General [2020] QCAT 340

Date: 25 August 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 20, 21, 22, 23, 26, 31, 34, 48, 58
Rights Considered: Right to a fair hearing; Right not to be tried or punished more than once; Right to protection of families and children
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 353, 354, 360
Keywords: Children and Families

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant. The Tribunal considered the applicant’s right to a fair hearing (section 31), right not to be tried or punished more than once (section 34), and the right to protection of families and children (section 26(2)) under the Human Rights Act 2019 (Qld). Satisfied that its decision was compatible with these rights, the Tribunal ordered the respondent’s decision to be set aside and replaced.

The applicant applied for a renewal of his positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) so that he could undertake university placement and volunteering work. The applicant was previously issued a blue card in 2015 and 2018, but due to recent criminal activity, he was issued a negative notice on the ground that ‘it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued’: at [3].

The Tribunal considered the Human Rights Act 2019 in its assessment. First, it noted that by undertaking this review, it was ‘acting in an administrative capacity’ and was a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld). Therefore, the Tribunal was required to interpret statutory provisions in a way that was with human rights (section 48) and conduct itself in accordance with section 58 of the Human Rights Act 2019 (Qld). The Tribunal considered the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), balanced against the right to protection of children (section 26(2)). The Tribunal was satisfied that its decision was compatible with human rights and that any limitations on the rights were ‘reasonable and justifiable’ according to section 13 of the Human Rights Act 2019 (Qld): at [69].

The applicant also claimed that the issuing of a negative notice infringed his right to freedom of thought, conscience, religion and belief (section 20); right to freedom of expression (section 21); right to peaceful assembly and freedom of association (section 22); and right to take part in public life (section 23). The Tribunal did not raise objections to the applicant’s human rights submissions and accepted that he had a right to express his opinions. It also stated that it ‘did not seek to interfere’ with his rights of freedom of expression, religion or peaceful assembly: at [68]. Rather, it held that its task was to consider ‘whether the applicant’s case is exceptional such that it would not be in the best interests of children for a positive notice to be issued’: at [68].

The tribunal ultimately found that the applicant’s case was not an ‘exceptional case’ where it would be in the best interests of children to not issue him a blue card: at [70]. As a result, the respondent’s decision was set aside and replaced with the Tribunal’s decision that the applicant’s case is not an exceptional one.

Visit the judgement: Dowling v Director-General, Department of Justice and Attorney-General [2020] QCAT 340