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CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305

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Date: 9 August 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Garner
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 23, 25, 26(2), 36(2), 48, 58.
Rights Considered: Taking part in public life, Right to privacy and reputation, Right to protection of families and children, Right to education.
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 15, 16, 17, 221, 226, 353, 354, 360, 361, 580, sch 7
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17(1), 18(1), 19, 20, 21, 66.
Keywords: Blue Card

The case concerned a negative blue card notice to an applicant convicted of assault offences arising from an altercation in March 2019. The Tribunal was satisfied that the applicant’s case was an exceptional case. The Tribunal acknowledged that the human rights of the applicant to ‘privacy and reputation’, to ‘take part in public life’ and ‘to further vocational education and training’ would be affected by the decision. However, the Tribunal considered it had made a decision compatible with human rights as it was reasonable and justifiable, in particular, because the decision had the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right.

The case concerned an application for review of a negative blue card notice arising from a decision that the applicant’s case was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

The applicant had been convicted of assault and domestic violence offences after she and her brother physically assaulted her ex-husband and his sister during an altercation on 7 March 2019. The applicant and her ex-husband were going through a separation and the offending occurred at their former matrimonial home with no children present: at [40], [48], [54].

When conducting a review of a child-related employment decision, the Human Rights Act 2019 (Qld) applies as the Tribunal is a ‘public entity’ under it: at [36] Accordingly, the Tribunal needed to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights: at [37]. Further, ‘except when a different action or decision is required because of a statutory provision or other law’, the Tribunal must ‘act or make a decision in a way that is compatible with human rights’; and, ‘in making a decision, give proper consideration to a human right relevant to the decision, at least by identifying human rights that may be affected by the decision and considering whether the decision would be compatible with human rights’: at [38]. A decision will be compatible with human rights if it does not limit a human right or if it limits a human right in a way which is reasonable and justifiable: at [39]

Regarding the evidence given and matters considered, the Tribunal was not satisfied that the applicant now presents a low risk of reoffending and that there is no real and appreciable risk that the applicant would harm children in the course of her employment or volunteer work: at [160]. The Tribunal was satisfied that it would not be in the best interests of children for the respondent to issue a working with children clearance to the applicant: at [161].

The Tribunal considered that, pursuant to section 48 of the Human Rights Act 2019 (Qld), the Tribunal had interpreted s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) consistently with its purpose, in a manner compatible with human rights, and made its decision with proper consideration of the relevant human rights and implications of the decision in terms of compatibility with human rights: at [168].

In considering the human rights that may be affected by this child-related employment decision under the Working with Children (Risk Management and Screening) Act 2000 (Qld), the Tribunal considered, with respect to the applicant, the human rights of the applicant to ‘privacy and reputation’, to ‘take part in public life’ and ‘to further vocational education and training’. As to children, the Tribunal considered the human right of every child to ‘the protection that is needed by the child’ and is in the child’s best interests, because of being a child’: at [169].

Ultimately, the Tribunal was satisfied that its decision would nevertheless be compatible with human rights because it is reasonable and justifiable having regard to the matters set out in s 13(2) of the Human Rights Act 2019 (Qld): at [170]. Indeed, it considered that the decision would, ‘have the proper purpose of promoting and protecting the rights, interests and wellbeing of children, which is itself a human right’ and that any limit on the applicant’s human rights would be consistent with the purpose of the Working with Children (Risk Management and Screening) Act 2000 (Qld) that prioritises the welfare and best interests of children as paramount considerations: at [170].

Visit the judgment: CA v Director-General, Department of Justice and Attorney General [2022] QCAT 305