Date: 9 November 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 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; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 360, 580, Schedule 7 
Keywords: Education, training and employment: Blue card

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

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, Sheraton, after he was convicted of drug-related offences. None of these offences were ‘serious offences’ or ‘disqualifying offences’ under the Working with Children (Risk Management and Screening) Act 2000 (Qld). Therefore, a positive notice needed to be issued unless the Tribunal was satisfied it was ‘an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued’: at [10].

The Tribunal noted that it was acting in an administrative capacity and was consequently a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld): at [63]. As a public entity, the Tribunal was required to give proper consideration to human rights under sections 48 and 58 of the Human Right Act 2019 (Qld). In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), as well as the right of every child to ‘the protection that is needed by the child, and is in the child’s bests interests, because of being a child’: at [67]. 

The Tribunal ultimately found it was an exceptional case in which it would not be in the best interests of children for a blue card to be issued to Sheraton, and confirmed the respondent’s decision. Key factors in this decision were the applicant’s apparent lack of insight into his behaviour, his ‘poor choices’ and his attitude towards cannabis use: at [54], [56] and [60]. The Tribunal acknowledged that possession of insight is an ‘important protective factor’ as children ‘are entirely dependent on the adults around them having insight into their actions and the likely effect on children’: at [54].  It was noted that other protective factors such as a supportive family and genuine desire to continue his studies had not prevented the applicant from continued cannabis use and offending behaviour in the past: at [62].

The Tribunal was satisfied that this determination was compatible with human rights, and to the extent that there were any limitations on those rights, the limitations were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [67]

Visit the reported judgement: https://archive.sclqld.org.au/qjudgment/2020/QCAT20-431.pdf