AM v Director General Department of Justice and Attorney General [2023] QCAT 6

Date: 3 January 2023
Tribunal: Queensland Civil and Administrative Tribunal
Member: Member McDonald
Human Rights Act 2019 (Qld) Sections: ss 8,10(1), 11(2), 13, 21, 23, 36(2), 58.
Rights Considered: Right to freedom of expression; Taking part in public life; Right to education.
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.
Keywords: Blue Card; Education, Training and Employment: Right to Education; Political Freedoms: Taking part in public life, Freedom of Expression.

The Tribunal set aside a decision of the Director-General, Department of Justice and Attorney-General and found that the applicant’s case was not ‘exceptional’ in relation to his application for a positive notice for a blue card.

This matter concerned an appeal from a decision that there was an ‘exceptional’ case within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2009 (Qld). The Tribunal affirmed that it was a public entity when conducting an administrative review of a child related employment screening decision such as was the subject of the application: at [9]. It would be required to make decisions within section 8 of the Human Rights Act 2019 (Qld) and must give consideration to any human rights affected by the decision pursuant to sections 11 and 58 Human Rights Act 2019 (Qld): at [9].

The Tribunal considered that such rights may only be limited where it is reasonable and demonstrably justified in accordance with section 13 of the Human Rights Act 2019 (Qld): at [42]. These rights compete with children’s rights protected by the Working with Children (Risk Management and Screening) Act 2009 (Qld), and the legislative framework made clear that children’s rights to protection from harm and to be safely cared for took priority.

The Tribunal held that it would not be consistent with human rights to limit the applicant’s right to privacy and reputation, to take part in public life and to further vocational education and training protected by the Human Rights Act 2019 (Qld), where the evidence indicated that he no longer demonstrated behaviour which made him a poor role model for children. The Tribunal noted several protective factors weighing in favour of the applicant’s case not being ‘exceptional’ including insight, development of strategies and tools to manage potential triggers, a strong support system, and greater stability in the applicant’s social circumstances: at [37]-[39].

In the circumstances, the Tribunal set aside the respondent’s decision and considered that the applicant was not an exceptional case.

Visit the judgment: AM v Director General Department of Justice and Attorney General [2023] QCAT 6