WDE v Director-General, Department of Justice and Attorney-General [2020] QCAT 301

Date: 4 August 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 48, 58
Rights Considered: Right to a fair hearing; Right to protection of families and children: protection of children; Right not to be tried or punished more than once
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 225, 226, 353, 354, 360
Keywords: Children and Families; Education; Training and Employment; Privacy and Confidentiality

This case concerned an application for administrative review of the respondent’s decision to issue a negative blue card notice after the applicant was convicted of a serious offence within the meaning of Schedule 2 of the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Tribunal considered the rights of children (section 26(2)), the right to a fair hearing (section 31(1)) and the right not to be tried more than once (section 34) under the Human Rights Act 2019 (Qld). The Tribunal confirmed the respondent’s decision to issue a negative blue card notice.

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the self-represented applicant on the basis that the applicant was not an ‘exceptional case’ where the issuing of a positive notice would not harm the best interests of children. The applicant’s criminal history included a conviction for a serious offence within the meaning of Schedule 2 of the Working with Children (Risk Management and Screening) Act 2000 (Qld), being a conviction for entering a dwelling with intent by breaking whilst armed. Where a person is convicted of a serious offence, the respondent ‘must issue a negative notice unless the chief executive is satisfied it is an exceptional case in which it would not harm the best interests of children’ if a positive notice was issued: at [3], [10].

The Tribunal noted that it was ‘acting in an administrative capacity’ and, therefore, was a ‘public entity’, meaning that the Tribunal had to ‘interpret statutory provisions in a way that is compatible with human rights’ and ‘conduct itself in accordance’ with section 58 of the Human Rights Act 2019 (Qld). The Tribunal stated that it had considered WDE’s right to a fair hearing and right not to be tried more than once under sections 31(1) and 34 of the Human Rights Act 2019 (Qld). The Tribunal noted that the review did not ‘constitute a retrial as the Tribunal’s role is not to determine the Applicant’s guilt’: at [78]. Further, the Tribunal stated that it also considered ‘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”’ pursuant to section 26(2) of the Human Rights Act 2019 (Qld): at [80].

The Tribunal also considered that the requirement in section 361(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld), that the hearing be held in private, is compatible with the human rights set out in section 31 of the Human Rights Act 2019 (Qld).

The Tribunal was not satisfied that this was an exceptional case which would warrant the exercise of its discretion to award the applicant with a positive notice and confirmed the decision to issue a negative notice: at [82]. The primary factor in this determination was that there was ‘limited independent medical evidence which addresses risk factors, triggers, positive factors or preventative strategies implemented to reduce the applicant’s risk of further offending or the present status of the applicant’s mental health’: at [71].

Visit the judgement: WDE v Director-General, Department of Justice and Attorney-General [2020] QCAT 301