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HM v Director-General, Department of Justice and Attorney General [2021] QCAT 13

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Date: 18 January 2021
Tribunal: Queensland Civil and Administrative Tribunal
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 of the child to protection that is in their best interests; 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, Schedule 7; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17(1), 18(1), 19, 20, 21, 66
Keywords: Blue card; Privacy and Confidentiality

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, HM. The Tribunal considered whether its decision was compatible with the applicant’s rights to privacy and reputation (section 25), right to take part in public life (section 23), and right to further vocational education and training (section 36(2)), as well as the rights of children to necessary protection that is in their best interests (section 26(2)) under the Human Rights Act 2019 (Qld), and concluded that its decision promotes and is compatible with human rights.

This applicant had applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) to complete placement requirements for his university studies. The respondent refused the application on the basis of the applicant’s criminal history. This consisted of two incidents where the applicant, aged 15 years, had attended female toilets, looked under cubicle partitions and made mobile phone recordings women’s genitals: at [40].  The applicant was charged for both incidents, and admitted guilt. In the first case, the charge was dropped following the issue of a Notice of Caution under section 15(1) of the Youth Justice Act 1992 (Qld), and in the second case, the applicant was reprimanded, with no conviction recorded: at [134].

The Working with Children (Risk Management and Screening Act) 2000 (Qld) prescribes that persons must be issued with blue cards, including where they have been charged or convicted with an offence other than a ‘serious offence’, unless the executive officer is satisfied it is an exceptional case in which it would not be in the interests of children for a blue card to be issued. The applicant had not been charged or convicted of a ‘serious offence’, but the respondent had considered his case was exceptional, and had therefore rejected his application. 

The Tribunal noted that the Human Rights Act 2019 (Qld) requires the Tribunal to interpret the Working with Children (Risk Management and Screening Act) 2000 (Qld), to the extent possible that is consistent with its purpose, in a way that is compatible with human rights: at [37]. The Tribunal further noted that it must act in a way that is compatible with human rights, and give proper consideration to human rights relevant to the decision. The Tribunal also noted that a decision is compatible with human rights if it limits a human right in a way which is reasonable and justifiable under the Human Rights Act 2019 (Qld): at [39].

Upon consideration of the evidence, which included details of the applicant’s illness at the time, his psychological profile, remorse, and evidence of reform, the Tribunal concluded that there was not a real and appreciable risk that the applicant would harm children whilst employed or undertaking volunteer work: at [129].

The Tribunal set aside the respondent’s decision that the applicant’s case was an exceptional case and replaced it with the decision that there was no exceptional case, and ordered that the publication of the applicant’s name be prohibited.

The Tribunal concluded by briefly stating that it had complied with the requirements of the Human Rights Act 2019 (Qld), noting the rights that could be impacted by its decision: at [153]-[154]. The Tribunal was satisfied that its decision was compatible with human rights because the decision was reasonable and justifiable under the Human Rights Act 2019 (Qld), particularly because it promoted and protected the rights, interests and wellbeing of children: at [155].

Visit the judegement: HM v Director-General, Department of Justice and Attorney General [2021] QCAT 13