TSG v Director-General, Department of Justice and Attorney-General [2021] QCAT 98

Date: 16 March 2021
Tribunal: Queensland Civil and Administrative Tribunal 
Tribunal Member: Member Deane 
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 21, 23, 26, 27, 28, 31, 34, 36, 58, 108
Rights considered: Right to freedom of expression; Taking part in public life; Right to protection of families and children; Cultural rights; Cultural rights of Aboriginal and Torres Strait Islander peoples; Right to a fair hearing; Right not to be tried or punished more than once; Right to education
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 20, 24, 61, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 15, 16, 221, 226, 353, 355, 358, 360, 536, 580, Schedule 2, Schedule 3, Schedule 4, Schedule 5
Keywords: Education, Training and Employment: Blue Card; Children and Families;

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 theft, drug-related and traffic offences. The Tribunal found that the Human Rights Act 2019 (Qld) did not apply as the proceedings were commenced prior to the Act’s commencement. If the Human Rights Act 2019 (Qld) did apply, the Tribunal would have considered the applicant’s right to freedom of expression (section 21), right to take part in public life (section 23), cultural rights (section 27) and the rights of Aboriginal and Torres Strait Islander peoples (section 28), right to a fair hearing (section 31); right to not be tried more than once (section 34), and right to education (section 36); as well as the competing right of every child to protection (section 26(2)).

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, TSG. TSG applied for a blue card in order to work in child-related employment. TSG had convictions for theft, drug-related and traffic offences. The respondent concluded TSG’s application was an ‘exceptional case’ where the issuing of a positive notice would not be in the best interests of children. Because TSG had not been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to TSG 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.

At the oral hearing, submissions were made in relation to human rights under the Human Rights Act 2019 (Qld). As these proceedings were commenced before the Human Rights Act 2019 (Qld) came into effect, the Tribunal noted that the Act did not apply, pursuant to section 108 of the Human Rights Act 2019 (Qld): at [36]. However, if the Human Rights Act 2019 (Qld) did apply, the Tribunal recognised that it would be acting as a ‘public entity’ in an ‘administrative capacity’ pursuant to section 58: at [36]. The Tribunal stated that it had nevertheless considered TSG’s rights under the Human Rights Act 2019 (Qld) that would be potentially impacted, including TSG’s right to freedom of expression (section 21), right to take part in public life (section 23), cultural rights (section 27), cultural rights of Aboriginal and Torres Strait Islander peoples (section 28), right to a fair hearing (section 31), right to not be tried more than once (section 34), and right to education (section 36), as well as the competing right of every child to protection (section 26(2)): at [37]. The Tribunal did not detail its consideration of these rights.

The Tribunal set aside the respondent’s decision to issue a negative blue card notice and substituted it with the decision that this was not an ‘exceptional case’, where it would not be in the best interests of children to award a positive notice.

Visit the reported judegement: https://archive.sclqld.org.au/qjudgment/2021/QCAT21-098.pdf