Date: 21 June 2021
Court/Tribunal: Mental Health Court
Judicial Officer/Tribunal Member: Wilson J
Human Rights Act 2019 (Qld) Sections: ss 20, 28
Rights Considered: Right to protection of families and children, Cultural rights of Aboriginal peoples and Torres Strait Islander peoples
Other Legislation: Mental Health Act 2016 (Qld) ss 546(3), 639(2), 433, 431, 422(1), 447, 3(1)(c), (2), (3), 5(g)
Keywords: Health, Mental Health, Guardianship; Blue Card

This matter concerned an appeal by the Attorney-General against a decision of the Mental Health Review Tribunal to remove a condition from the respondent’s forensic order (community category) that prevented him from having unsupervised contact with children. In making its decision to confirm the decision and dismiss the appeal, the Court considered section 20 (right to protection of families and children) and section 28 (cultural rights of Aboriginal and Torres Strait Islander peoples) of the Human Rights Act 2019 (Qld).

The Attorney-General sought to appeal a decision of the Mental Health Review Tribunal to remove a condition from the respondent’s forensic order that he could not have unsupervised contact with children. The Attorney-General’s ultimate submission was that the condition that should be imposed is that the respondent must not have unsupervised interaction with children, but carving out of that an exception that he is allowed to have unsupervised contact with his nieces and nephews.

The Queensland Human Rights Commission intervened in the proceedings and made submissions, including that the respondent’s family and cultural rights should be given due weight in the exercise of discretion, particularly, but not exclusively, due to their protective value where these rights are not inconsistent with the dictates of public safety: at [8].

The original forensic order was imposed on the respondent in 2004 as a result of random and violent offending in 2002, including against a 15-year-old girl. At the time of the order the respondent was an inpatient at a secure mental health rehabilitation unit. The respondent later transitioned to a community care unit and eventually to living in the community, but with several hospital admissions in the context of substance use.

A report by the Community Forensic Outreach Services in April 2015, completed as part of their annual risk assessment of special notification forensic patients, noted the respondent often spent time at his sister’s place and helped her look after his nieces, including unsupervised babysitting. The report included a recommendation that the respondent’s treating team may need to consider a review with the hospital child protection team about whether his unsupervised contact with his nieces was appropriate, given the respondent's history of significant violence, chronic substance use, and ongoing low-level psychotic symptoms.

About a month later, in May 2015, the Tribunal added a condition to the forensic order that the respondent not have unsupervised contact with children.

At a hearing on 13 January 2021, in its role for conducting a periodic review of the respondent’s forensic order, the Tribunal was asked to consider whether the condition that the respondent not have unsupervised contact with children should be removed. The respondent wanted the condition removed so he could be a proper Uncle and have unsupervised contact with his nieces.

The Tribunal ultimately decided to revoke the condition. In doing so, the Tribunal accepted the evidence of the respondent’s treating team that the condition was not necessary to manage risks of harm to the children or the community generally. The Tribunal noted evidence of strong family protective factors, close monitoring of the respondent’s mental state, his stability and assurances that he would not be intoxicated or use substances at his sister’s home.

The Court confirmed that the appeal of the Tribunal’s decision was by way of rehearing, requiring the Court to conduct a review of the forensic order in accordance with both the Mental Health Act 2016 (Qld) and the Human Rights Act 2019 (Qld): at [28], [40]-[41] and [47].

The Court had particular regard to the cultural rights of Aboriginal peoples and Torres Strait Islander peoples protected by section 28 of the Human Rights Act 2019 (Qld), including that Aboriginal peoples must not be denied the right, with other members of their community, to enjoy, maintain, control, protect and develop their kinship ties. The Court observed the compatibility of these rights with the principles contained in section 5(g) of the Mental Health Act 2016 (Qld) for recognising and taking into account the unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders, and for ensuring that Aboriginal people and Torres Strait Islanders should be provided with treatment, care and support in a way that recognises and is consistent with Aboriginal tradition or Torres Strait Islander custom, mental health and social and emotional wellbeing, and is culturally appropriate and respectful: at [42], [46]-[47].

The Court highlighted that the requirement that any limit on human rights be in the least restrictive manner possible and limited to what is necessary to address an unacceptable risk to safety, has been developed to be protective of those underlying rights to the greatest extent possible: at [48]. The Court also turned its mind to the decision of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice [2013] 41 VR 359, which referred to the interaction between human rights and the evaluation task in discerning unacceptable risk, acknowledging a balance between the offender’s rights and the right of members of the public to be protected against the risk of the offender committing further offences: at [51].

The Court gave particular weight to an April 2021 report by the respondent’s treating psychiatrist, which included evidence from the respondent’s family and community (gathered by the respondent’s advanced Aboriginal mental health worker), who confirmed the respondent was very supported in his role as an Uncle, and that culturally isolating the respondent through reinstatement of the condition would have a negative effect on his mental health: at [57].

The Court accepted the treating psychiatrist’s evidence that a blanket direction preventing the respondent from having unsupervised access to children would be counterproductive and was more likely to do harm to an Indigenous man who takes his role as Uncle seriously. The Court considered it was a protective factor that the respondent was with children because he has a view that he has to protect them: at [87]-[89].

Ultimately, the Court was not satisfied that there was an unacceptable risk if the respondent had unsupervised contact with children and confirmed the decision of the Mental Health Review Tribunal, dismissing the appeal.

Visit the judgment: Attorney-General for the State of Queensland v GLH [2021] QMHC 4