Date: 30 March 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Roney QC
Human Rights Act 2019 (Qld) Sections: s 26
Rights Considered: Right to protection of families and children
Other Legislation: Charter of Human Rights and Responsibilities Act 2006 (Vic) s 17; Child Protection Act 1999 (Qld) ss 5A, 5B, 87; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20(1)

Keywords: Judicial review; Interpretation; Child protection; Family 

The right to protection of families and children (Human Rights Act 2019 (Qld) s 26) was argued by the applicants and analysed by the court in the context of a foster child and his foster family. The court held that the term “family” was to be given a broad interpretation and understood in the society of a particular country.

This case concerned an application for the making of a Child Protection Order granting long-term guardianship of a seven-year-old child (‘L’) to the Chief Executive of the Department by the Director of Child Protection Litigation. Previous orders were made granting temporary custody of L to the Chief Executive of the Department of Child Safety, Youth and Women (‘the Department’). The current proceeding was brought by two applicants: a former foster sister and the former foster grandfather of L.

The applicants were seeking judicial review of the Department’s decision to restrict and place conditions upon their contact arrangements with L, in addition to an Information Notice, made under s 87(2) of the Child Protection Act 1999 (Qld): at [4], [6]. The purpose of these restrictions was because of the applicants’ influence on L’s ‘emotional stability,’ the ‘necessity to protect L’s mental health,’ and ‘to avoid the necessary attachment stressors in his life’: at [6].

The right to protection of families and children (Human Rights Act 2019 (Qld) s 26) was examined by Member Roney who noted that the rights under this provision are based on Articles 23(1) and 24(1) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980: at [22]. Furthermore, Member Roney, quoting the Queensland Human Rights Commission (‘the Commission’), added that the inclusion of these rights aimed to ‘guarantee… institutional protection of the family and positive measures for the protection of children by society and the state’ and ‘contends that “[f]amilies are entitled to protection. Children have the same rights as adults with added protection according to their best interests”’: at [23].

In examining the meaning of the word “family,” Member Roney quoted the Commission’s contention that:

‘…[the] right is also supported by the right to privacy in section 25 of the Act. This prohibits a public entity from unlawfully or arbitrarily interfering with a person’s family. If the term ‘family’ is interpreted consistently with international law it should be interpreted broadly, extending to different cultural understandings of family and small family units with or without children. The term ‘family’ has been interpreted broadly in Victoria, where the same protection exists in the Charter of Rights and Responsibilities Act 2006. Laws or policies that allow for the removal of a child from a family unit or the incarceration of a parent need to be considered in light of sections 25 and 26 of the Act’: at [24].

Member Roney further noted that the Australian Government has recognised in ‘published material’ that the UN Human Rights Committee has ‘stated that the term family in article 23 should have the same meaning as under article 17, in that it should be given a broad interpretation to include all those persons comprising the family as understood in the society of each country’: at [27].

For Australia, this includes Indigenous Australians, whereby ‘it is important that family be understood to include kinship structures, which encompass an extended family system often including distant relatives. There are other groups in Australia for whom family would include extended and other non-conventional family structures. It states that the Committee has made it clear that the definition of family is not confined by the concept of marriage’: at [27].

Ultimately, Member Roney held that the applicants’ submissions regarding section 26 did not address several issues, including whether section 26 applied at the time of the decision under review or if, upon its commencement after the date of the decision on 5 August 2019, it affected the outcome: at [29]. Consequently, several directions and orders were made, including adjourning the application to a date to be fixed: at [31].

Visit the reported judgement: NN and IN v Department of Child Safety, Youth and Women [2020] QCAT 146