CA v Director-General, Department of Justice and Attorney-General [2020] QCAT 452

Date: 18 November 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, CA, due to his lengthy criminal history. In conducting its review, Member Fitzpatrick 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 families and children (section 26(2)) under the Human Rights Act 2019 (Qld).

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, CA. CA had an extensive criminal history, having been convicted of over 50 offences committed between 2002 to 2013. However, CA had never been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld). A positive notice therefore needed to be issued to CA, unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. 

The Tribunal noted that the ‘overarching objective of the [Working with Children (Risk Management and Screening) Act 2000] 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 [18]. It found that CA was not a threat to the welfare and best interests of children, and that protective factors such as his mental health care, lifestyle changes, and support network lowered his risk of re-offending: at [61]. As a result, the Tribunal set aside the respondent’s decision not to issue a blue card and replaced it with the Tribunal’s decision that there is no exceptional case: at [63]. 

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): at [64]. There was no in-depth discussion of these rights. The Tribunal was satisfied that the decision was compatible with human rights and to the extent were there any limitations on those rights, they were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [64].

Visit the reported judgement: CA v Director-General, Department of Justice and Attorney-General [2020] QCAT 452