HAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 273

Date: 21 July 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Gardiner
Human Rights Act 2019 (Qld) Sections: ss 15, 21, 25, 26(2), 48
Rights Considered: Right to recognition and equality before the law; Right to protection of children; Right to freedom of expression; Right to privacy and reputation
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 221, 226, 354, 360; Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20
Keywords: Child protection; Employment

This case concerned an administrative review of the respondent’s decision to issue a negative blue card notice after the applicant was convicted of four breaches of the Weapons Act 1900 (Qld). The Tribunal considered the rights of children (section 26(2)), right to freedom of expression (section 21) and right to privacy and reputation (section 25) 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 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 self-represented applicant had held a blue card for approximately 12 years without incident and worked as a bus driver and teacher’s aide at a local high school, specifically working with special needs children.  He was issued with a negative notice after being convicted of four breaches of the Weapons Act 1900 (Qld). These charges arose from incidents when the applicant had taken an unloaded gun to school to show a colleague and when he visited a local shopping centre where he left a gun and 56 rounds of ammunition in a bag on the back seat of his locked car. Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to HAP 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.

In reviewing the respondent’s decision, the Tribunal stated that it had considered ‘the rights of children to recognition as people before the law entitled to equal protection without discrimination, freedom of expression and privacy and reputation’ as being the relevant rights engaged under the Human Rights Act 2019 (Qld): at [37]. The Tribunal recognised ‘[o]f particular concern are the rights of children, the protection that is needed and is in the child’s best interests because they are children’: at [37].

The Tribunal confirmed the respondent’s decision to issue a negative blue card notice because the Tribunal found that the applicant did not have ‘a mature understanding of the effects and consequences of his actions’ and found that it would not be in the best interests of children to award a positive notice: at [39].

Visit the judgement: HAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 273