Date: 12 October 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member PG Stilgoe OAM
Human Rights Act 2019 (Qld) Sections: ss 17, 18, 34
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Right to freedom from forced work; Right not to be tried or punished more than once
Other Legislation: Criminal Code Act 1995 (Cth), s 135.2; Disability Services Act 2006 (Qld) ss 40, 42, 91, Schedule 2; Disability Services and Other Legislation (Working Screening) Amendment Bill 2020 (Qld); Disability Services Regulation 2007 (Qld); Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19(a), 20, 32
Keywords: Education, Training and Employment; Public Law Considerations: Fair Trial

The case concerned an application for review of a yellow card negative notice. The Department identified that the rights to protection from torture, cruel, inhuman or degrading treatment (section 17) and freedom from work (section 18), so far as they related to vulnerable people, are already incorporated into the Disability Services Act 2006 (Qld), and the application of the Human Rights Act 2019 (Qld) supports but does not extend the paramount consideration. While section 34 of the Human Rights Act 2019 (Qld) provides that a person must not be tried or punished more than once for an offence in relation to that which the person has already been finally convicted or acquitted in accordance with law, and although the decision to exclude the applicant from holding a yellow card might seem like a second punishment for the same offence, it is merely an unfortunate consequence of applying the Disability Services Act 2006 (Qld) protective regime. In confirming the decision to issue a negative notice, the Tribunal acknowledged the deliberately high bar imposed by the Disability Services Act 2006 (Qld) and considered that whilst the decision may be correct at law, it was not necessarily a just decision having regard to the financial circumstances of the applicant and the fact that the issuing of a negative notice would effectively void her of the opportunity to work in an industry longing for greater support.

Visit the judgment: Davidson v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 367