TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121

Date: 8 April 2021
Tribunal: Queensland Civil and Administrative Tribunal 
Tribunal Member: Member Hemingway 
Human Rights Act 2019 (Qld) Sections: ss 8, 31, 58
Rights considered: N/A
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 167, 221, 226; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 66
Keywords: Blue Card

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, TWE. In confirming the respondent’s decision to issue a negative notice, the Tribunal considered the Human Rights Act 2019 (Qld) and found that the ‘paramount consideration’ of the best interests of children justified any limitations imposed on TWE’s human rights.

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, TWE. The decision 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. TWE, an Indigenous woman, previously held a blue card from 2010 to 2013 and from 2017 to 2018, and sought a new blue card to continue her work in child-related employment. A negative notice was issued on the basis of TWE’s conviction for 44 charges relating to the supply of a dangerous drug, cannabis. There was also evidence of TWE and her children being subject to domestic violence by the father of her children, and it was shown that TWE had acted protectively of her children and was no longer in a relationship with the father of her children: at [36]. As she 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 TWE 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 Tribunal confirmed the respondent’s decision to issue a negative notice, noting that applicant had not ‘developed sufficient insight into the effects of her drug-related conduct’ and that ‘her continuing beliefs…demonstrate an absence of insight and clearly show a lack of understanding, empathy and compassion for children’: at [129] and [134]. In making this decision, the Tribunal stated that it had given proper consideration to relevant human rights under the Human Rights Act 2019 (Qld) and acted in a way that was compatible with human rights, however, no particular human rights were cited: at [130]. The Tribunal’s interpretation of s 58 of the Human Rights Act 2019 (Qld) was that ‘the Tribunal must act reasonably in the face of a statutory provision such as that containing the paramount principle’: at [130]. The Tribunal found that the best interests of children, the ‘paramount principle’, included the ‘right to be protected from exposure to drug involvement’ and to be cared for by people who are not under the influence of drugs that could ‘impair their ability to promote and protect children’s best interests’: at [135]. The Tribunal held that this ‘paramount principle’ justified the limitation upon the human rights of the applicant: at [131]. 

Visit the reported judgement: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/121/pdf