BE v Director-General, Department of Justice and Attorney-General [2020] QCAT 498

Date: 9 December 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 34, 48, 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: Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6, 16, 17, 221, 225, 226, 227, 228, 229, 231, 353(a), 354, 355, 536
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, BE. In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), as well as the right to protection of children (section 26(2)) under the Human Rights Act 2019 (Qld).

The applicant applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) so that she could undertake a university placement. The applicant had a history of drug use from 2016 to 2018, with a number of offences in that period including one conviction of possessing a dangerous drug (methylamphetamine) from 2018 and a related conviction for breach of the order imposed for failing to participate in a drug diversion program: at [13]. None of the convictions or charges were ‘serious’ or ‘disqualifying’ offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [16]. However, the applicant was issued a negative notice on the ground that it was ‘an “exceptional” case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card’: at [2].

The Tribunal noted that the ‘overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’: at [6]. The Tribunal, while accepting that it could not direct the respondent to issue a positive notice, found that the applicant had been successfully rehabilitated and would not represent a risk to the welfare of children if issued a positive notice and blue card: at [74] and [76].

The respondent’s decision that the applicant was an ‘exceptional’ case in which a blue card would not be issued was set aside and replaced with the Tribunal’s decision that the applicant’s case was not an exceptional one: at [78].

In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and her right not to be tried or punished more than once (section 34), in addition to the right to protection of children (section 26(2)) under the Human Rights Act 2019 (Qld): at [79]. The Tribunal was satisfied that the decision was compatible with human rights and to the extent there were any limitations on those rights, they were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [79].

Visit the judgement: BE v Director-General, Department of Justice and Attorney-General [2020] QCAT 498