FGH v Director-General, Department of Justice and Attorney-General [2020] QCAT 401
Date: 19 October 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 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: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 221, 226, 353, 354, 360, 580; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 24, 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, FGH. The Tribunal noted that FGH’s right to a fair trial (section 31) had been respected by holding the hearing in private, and that the hearing did not amount to a breach of FGH’s right not to be tried or punished more than once (section 34).
This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, FGH, which was made on the basis that the applicant was an ‘exceptional case’: at [3]. FGH had previously held a blue card but allowed it to lapse when his parents ceased fostering children: at [1]. He had applied for a new blue card in order to obtain employment as a swim teacher. A negative notice was issued on the basis of FGH’s conviction for the offences of serious assault of a person over 60 and using a carriage service to menace, harass or cause offence.
As FGH 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.
In considering the submitted evidence and material, the Tribunal confirmed that ‘possession of insight’ is an ‘important protective factor’ because children ‘are entirely dependent on the adults around them having insight into their actions and the likely effect on children’: at [54]. The Tribunal found FGH exhibited ‘genuine remorse and insight into his offending behaviour’: at [57].
Member McDonnell recognised that section 58 of the Human Rights Act 2019 (Qld) required the Tribunal to act in a manner compatible with human rights: at [61]. To this end, the Tribunal considered that the hearing being held in private was consistent with the applicant’s right to a fair hearing (section 31): at [64]. The Tribunal also noted that the purpose of this hearing was to protect children, rather than impose further punishment on the applicant: at [62]. This was held to be consistent with the applicant’s right not to be tried or punished more than once (section 34): at [65]. 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’ (section 26(2): at [65]. The Tribunal finally noted that its decision was ‘compatible with human rights and to the extent that there are any limitations on those rights, those limitations were reasonable and justifiable in accordance with section 13’ of the Human Rights Act 2019 (Qld): at [65].
The Tribunal ordered that the respondent’s decision to issue a negative notice be set aside, on the basis that ‘on the balance of probabilities, that this is not 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 [67].
Visit the judgement: FGH v Director-General, Department of Justice and Attorney-General [2020] QCAT 401