Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386

Date: 18 October 2022
Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Goodman
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 17, 25, 58
Rights Considered: Right to protection from torture and cruel, inhuman or degrading treatment; Right to privacy and reputation
Other Legislation: Disability Services Act 2006 (Qld) ss 40, 41, 50, 51, 86, 87, 88, 92, 93, 94, 138ZR, 138ZR, 138ZS, 367, 371, 382, 385, sch 8; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 18, 28
Keywords: Education, Training and Employment; Public Law Considerations: Fair Trial

The case concerned an application for a review of an exclusion from working in the disability sector. The Tribunal was satisfied that the applicant’s rights to fair hearing and not to be tried or punished more than once had not been limited, and that it could lawfully make a decision incompatible with the applicant’s right to reputation as the Disability Services Act 2000 (Qld) compels it to conduct a risk assessment, and to make the safety of persons with a disability the paramount consideration. The Tribunal ultimately dismissed the application.

The case concerned an application for a review of an exclusion from working in the disability sector, where the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (‘the Department’) decided that the applicant was an unacceptable risk of harm to people with a disability: at [28]. The applicant had been convicted of stealing in 1966, and charged, but not convicted of, one indecent act in 2000 and five sexual assaults between 1997 and 2017: at [4]-[6].

Proper consideration to relevant human rights under the Human Rights Act 2019 (Qld) needed to be given: at [48]. It is unlawful for the Tribunal to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision: at [48]. Human rights must be limited only if justified under the Act: at [48].

The Tribunal was satisfied that the applicant’s right to a fair hearing had not been limited, as the application has been determined by a competent, impartial and independent tribunal after a fair hearing, the reasons for decision are publicly available, although the hearing was not conducted in public, and the Tribunal did not prevent the applicant from providing relevant evidence: at [51].

The Tribunal was also satisfied his right not to be tried or punished more than once had not been limited: at [51].

The applicant appeared to consider that this process and decision unlawfully attacked his reputation: at [52]. Taking a generous view on that point in the applicant’s favour, the Disability Services Act 2000 (Qld) makes the safety of persons with a disability the paramount consideration and the Tribunal is able to make a decision not compatible with human rights if it could not reasonably have acted differently because of a statutory provision: at [52]. The Tribunal was satisfied it was lawfully able to make the decision if not compatible with the applicant’s right to privacy and reputation as the Disability Services Act 2000 (Qld) compels it to conduct a risk assessment: at [52].

Consideration for the rights of persons with a disability to be protected from cruel, inhuman and degrading treatment, and the right of persons with a disability to lives free from abuse, violence, neglect or exploitation, were returned to throughout the judgment as mitigating and, in some circumstances, paramount considerations, with regard to the applicant’s claims: at [19], [49], [52].

The Tribunal ordered that the application be dismissed.

Visit the judgment: Devon v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2022] QCAT 386