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DL v Director-General, Department of Justice and Attorney General ([2021]) QCAT 61

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Date: 21 January 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Garner
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 25, 26(2), 36(2), 48, 58
Rights Considered: 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; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17(1), 18(1), 19, 20, 21, 66; Explanatory Notes to the Bill introducing the Working with Children (Risk Management and Screening) Act 2000 (Qld) (Commission for Children and Young People Bill 2000)
Keywords: Blue Card; Children and Families: Foster care

This case concerned an application for review of the respondent’s decision to cancel the working with children clearance and blue card of the applicant, DL, and to issue a negative notice in its place. This decision meant the applicant could no longer continue to work as a foster carer. The Tribunal considered the applicant’s right to privacy and reputation (section 25) and to take part in public life (section 23), as well as the right to protection of families and children (section 26), and the Tribunal’s own role as a public entity under the Human Rights Act 2019 (Qld). 

DL (‘the applicant’) was a 65 year old foster carer who applied to review a decision made by the Department of Justice and Attorney General (‘the respondent’). The applicant had been issued a working with children clearance (previously known as a positive notice) in 2018. Subsequently, previously undisclosed details of the applicant’s traffic record were provided to the respondent by the Queensland Police Service.  During the ensuing reassessment, the respondent was also provided information from the Department of Children, Youth Justice, and Multicultural Affairs regarding concerns about the applicant’s treatment of children in her care. On 29 August 2019, DL was issued a negative notice: at [1]-[6]. 

The Tribunal considered the traffic offences to be of limited relevance to DL’s eligibility to hold a working with children clearance and blue card: at [56]. The Tribunal considered the information from the Department of Children, Youth Justice, and Multicultural Affairs regarding the applicant’s breach of foster care standards in detail, but weighed these reported incidents against the evidence from the Queensland Police Service that the allegations of harm were unfounded and that the applicant had undertaken training and enhanced her support network: at [87]. The Tribunal also considered supporting witness testimony, as well as extensive and comprehensive psychologist reports on the applicant: at [87]. The Tribunal was satisfied on the balance of probabilities that the applicant presented a low risk to children: at [101]-[102].

The Tribunal discussed the requirements of the Human Rights Act 2019 (Qld), noting that the Tribunal was acting in an administrative capacity and was therefore required to act and make decisions in a manner compatible with human rights: at [37]-[39]. The rights of the applicant to privacy and reputation (section 25), to take part in public life (section 23), and 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’ (section 26(2)) were also considered: at [110]. The Tribunal was satisfied that the decision would meet the proper purpose of promoting and protecting the rights, interests and wellbeing of children: at [111].

The Tribunal set aside the decision of the respondent and replaced it with the decision that there was no exceptional case: at [112].

Visit the judgement: DL v Director-General, Department of Justice and Attorney General ([2021]) QCAT 61