Date: 22 May 2020
Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 3, 4, 8, 9, 13, 31, 34, 48, 58, 59, Part 2 Divisions 2 and 3
Rights Considered: Right to a fair hearing; Right not to be tried or punished more than once
Other Legislation: Charter of Rights and Responsibilities Act 2006 (Vic); Child Protection Act 1999 (Qld) s 9; Criminal Code 1899 (Qld) ss 227A(1), 227B(1); Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 21, 24, 28, 66, 90; Working with Children (Risk Management and Screening) Act 2000 (Qld), Long Title, ss 4, 5, 6, 8, 11, 167, 168, 221, 226, 229, 231, 317, 318, 319, 335, 337, 338, 353, 361. Chapter 8 Part 4 Division 3, 4 and 7, Schedule 1 Part 1, ss 1, 2, 4, 4A, 6, 8, 11, 14; Schedule 4 s Schedules 2 , 3 and 7

Keywords: Interpretation; Proportionality; Judicial review; Child protection; Double jeopardy; Confidentiality

A self-represented litigant sought judicial review after being issued a negative notice by Blue Card Services arguing that his case was ‘exceptional’. The Queensland Civil and Administrative Tribunal analysed limiting the applicant’s human rights and issued a non-publication order in light of the right to have all judgments and decisions made by a court or tribunal publicly available (Human Rights Act 2019 (Qld) s 31(3)).

This case concerned the issuing of a negative notice by Blue Card Services (‘the respondent’) to the applicant after he was charged and convicted of two offences: observations or recordings in breach of privacy and distributing prohibited visual recordings: at [9]. The applicant applied for a review of the negative notice and argued that his case was ‘an exceptional case’ pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [12].

In light of section 58 of the Human Rights Act 2019 (Qld), the Tribunal noted that it is required ‘to give “proper consideration to a human right relevant to the decision”’: at [20]. Although the Human Rights Act 2019 (Qld) only applies to public entities, a court or tribunal may fall under this definition if acting in an ‘administrative capacity’: at [22]. The Tribunal considered Justice Bell’s formulation in PJB v Melbourne Health and Anor (‘Patrick’s case’) [2011] VSC 327, that determining the capacity in which a Tribunal is acting in a particular case requires examining ‘the jurisdiction and … powers being exercised’: at [25]. The Tribunal held that when exercising its jurisdiction with respect to the Working with Children Act it was acting in an administrative capacity and, as such, was a public entity: at [26-28].

The Tribunal determined that when determining compliance  with the Human Rights Act 2019 (Qld), specific steps needed to be taken. First, the Tribunal had to ‘identify the protected human rights that may be affected by statutory provisions and their interpretation, and also by the Tribunal’s decisions and other actions’: at [31]-[33]. Secondly, after identifying the relevant rights and freedoms, the Tribunal had to determine whether the ‘relevant statutory provisions, their interpretation as well as the Tribunal’s actions and decisions are compatible with human rights’, particularly in light of section 48: at [34]-[36]. Lastly, the Tribunal noted that ‘even where a limit or interference with a human right is identified, it may nevertheless be deemed compatible with human rights, as long as it only “limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13”’: at [37]-[39].

The Tribunal then turned to what constituted an ‘exceptional case’ and whether the applicant’s case fell under this definition: at [40]. Given the particular circumstances, the Tribunal noted that for it to be found that the applicant’s case was exceptional, the Tribunal would be required to find ‘that even though the applicant’s case is one in which the respondent would otherwise be obliged to issue a positive notice, it is exceptional in that issuing a positive notice would not be in the best interests of children’: at [47].

Furthermore, the Tribunal thought it necessary to examine whether the applicant was being tried and punished again, particularly if ‘considering the offence for which the Applicant was convicted amounts to a retrial and punishment’: at [56]. Section 34 of the Human Rights Act 2019 (Qld) states that a person ‘must not be tried or punished more than once for an offence in relation to which the person has already been finally convicted or acquitted in accordance with law’: at [57]. The Tribunal held that ‘the decision to be made by the Tribunal is unrelated to any findings as to the Applicant’s criminal culpability’ but rather whether the applicant was a risk to children: at [62]. As such, the Tribunal’s assessment did not ‘constitute a retrial of the Applicant for the offence for which he had been tried and found guilty’: at [63].

The Tribunal recognised that any limitation on human rights would need to be ‘restricted to that able to be deemed reasonable and justifiable’ (at [71]) and noted that the purpose of the Working With Children Act was to ‘to promote and protect the rights, interests and wellbeing of children and young people’: at [68]. The Tribunal observed that the applicant’s offences (observations or recording in breach of privacy and distribute prohibited visual recordings) were not ‘serious or disqualifying offences’ and that the applicant ‘appears remorseful’ and ‘appears to have insight into the significance and relevance of his offence to being issued a blue card’: at [73], [79]. The Tribunal concluded that, whilst there was ‘no doubt that what the applicant did was harmful,’ there was no ‘specific evidence as to why and how the applicant may pose a risk of harm to children’: at [92]. The Tribunal was of the view that this was ‘a one off incident’ that was ‘out of character for him’: at [98], [186].

An additional human rights issue presented before the Tribunal was that judgments and decisions made by a court or tribunal are to be made publicly available (Human Rights Act 2019 (Qld) s 31(3)): at [189]. The Tribunal held that excluding the media and public from the proceedings was permitted by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and the Working with Children (Risk Management and Screening) Act 2000 (Qld) and was ‘compatible with human rights as set out in section 31(1) and qualified in section 31(2)’ of the Human Rights Act 2019 (Qld): at [196]. The Tribunal also found it necessary to prohibit the publication of ‘names or anything that would otherwise identify the Applicant, the victim, witnesses or any third party to these proceedings’ particularly to ‘avoid endangering the physical or mental health’ of all involved: at [202].

In addition, the Tribunal held that the non-publication order did not ‘significantly impact the benefits and importance of public accountability through the publication of decisions and reasons, as decisions and reasons are still published, with only the identity of certain persons disguised’: at [205].

Therefore, pursuant to section 13 of the Human Rights Act 2019 (Qld), the Tribunal was satisfied that the limits imposed on the applicant’s rights were reasonable and justifiable: at [211]. The Tribunal ultimately held that the applicant’s case did not constitute an ‘exceptional’ one and the decision of respondent was set aside.

Visit the reported judgement: PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188 (PDF, 615 KB)