FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260

Date: 15 July 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Kanowski
Human Rights Act 2019 (Qld) Sections: ss 26(2), 31(1)
Rights considered: Protection of families and children; Fair hearing
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 221, 226 and 360
Keywords: Children and Families; Education, Training and Employment; Privacy and Confidentiality

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice after the applicant was convicted of offences in relation to the possession of cannabis. The Tribunal considered the rights of children (section 26(2)) and the right to a fair hearing (section 31(1)) under the Human Rights Act 2019 (Qld). The Tribunal confirmed the respondent’s decision to issue a negative blue card notice on the basis that it would not be in the best interests of children to award a positive notice.

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, FBN, which 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. The applicant, FBN, wished to renew his blue card so that he could undertake the remaining practical replacements required to complete his education degree and become a high school teacher. A negative notice was issued on the basis of FBN’s commission of the offences of possessing a dangerous drug (cannabis), and equipment relating to the possession of a dangerous drug. He also had a previous conviction for possession of cannabis. On both occasions, he pleaded guilty and convictions were not recorded. There were also earlier charges relating to drunk and disorderly behaviour and obstruction of a police officer, but these charges were discontinued by the prosecution. Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to FBN 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 respondent’s lawyer raised the Human Rights Act 2019 (Qld), ‘commenting that there may be rights of FBN that are relevant, as well as the right of a child to the protection needed by the child, and which is in the child’s best interests, because of being a child’, in section 26(2): at [54]. The Tribunal considered that the only human right relevant to FBN was the ‘right to have the current proceeding decided by a competent, independent and impartial tribunal after a fair and public hearing’ under section 31(1) of the Human Rights Act 2019 (Qld): at [54]. However, the Tribunal considered this right to be limited by the express provision in section 361(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) to require a hearing in child-related employment reviews to be held in private.

The Tribunal confirmed the respondent’s decision to issue a negative blue card notice because the Tribunal found that it would not be in the best interests of children to award a positive notice: at [61]. The Tribunal based this decision on the fact that FBN was a frequent user of cannabis over a number of years, noting that ‘until such time as he has demonstrated sustained abstinence, the risk remains of relapse into heavier use’: at [59]. The applicant’s counsel sought a non-publication order ‘on the basis that convictions were not recorded for any of FBN’s offending’ and accordingly, ‘he is not required to disclose his offending’ and ‘protection would be removed if his case could receive publicity that identifies him’: at [63]. The Tribunal made a non-publication order on the basis that ‘it would not be in the interests of justice for FBN’s identity to be published’: at [65].

Visit the judgement: FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260