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WW v Director-General, Department of Justice and Attorney-General [2021] QCAT 7

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Date: 8 January 2021
Tribunal: Queensland Civil and Administrative Tribunal 
Tribunal Member: Member McDonnell 
Human Rights Act 2019 (Qld) Sections: ss 13, 26, 31, 34, 58
Rights considered: Right to protection of families and children; Right to a fair hearing; 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, 221, 226, 360, 580, Schedule 7
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 to the applicant, WW. In ordering that the respondent’s decision be set aside, the Tribunal considered the applicant’s right to a fair trial (section 31), the applicant’s right to not be tried or punished more than once (section 34), and the rights of children (section 26(2)) under the Human Rights Act 2019 (Qld).

This case concerned an application for review of the respondent’s decision to refuse to cancel the applicant’s negative blue card notice. WW was issued with a negative notice on 18 June 2015 and applied to have the negative notice set aside to allow completion of part of his university studies. WW was issued with this negative notice on the basis of his two convictions for ‘observations or recordings in breach of privacy’ which were taken of his daughter who was aged 17 and 18 at the time the recordings were taken: at [18]. As WW 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 him 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 recognised that it was required to consider the provisions of the Human Rights Act 2019 (Qld), by virtue of it being a ‘public entity’ acting in an administrative capacity within the meaning of section 48 of the Human Rights Act 2019 (Qld): at [74]. In particular, the Tribunal considered that the hearing being held in private was consistent with the applicant’s right to a fair hearing (section 31): at [77]. The Tribunal recognised that the purpose of this hearing was not to determine the applicant’s guilt, and it considered the applicant’s right to not be tried or punished more than once (section 34): at [75] and [76]. The Tribunal also considered the right of every child ‘to the protection that is needed by the child, and is in the child’s best interests, because of being a child’ pursuant to section 26(2) of the Human Rights Act 2019 (Qld): at [78].

The Tribunal was satisfied that the decision was compatible with human rights and to the extent that there were any limitations on those rights, those limitations were reasonable and justifiable pursuant to section 13 of the Human Rights Act 2019 (Qld): [78]. The Tribunal did not detail its considerations of these matters.

The Tribunal ordered that the respondent’s decision to issue a negative notice be set aside, on the basis that this was not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued.

Visit the reported judgement: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/7/pdf