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Ibarra v Director-General, Department of Justice and Attorney-General [2021] QCAT 225

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Date: 22 June 2021
Court/Tribunal: Queensland and Civil Administrative Tribunals
Judicial Officer/Tribunal Member: Member Ellis
Human Rights Act 2019 (Qld) Sections: ss 13, 25, 26, 58(1)(b). Rights Considered: Right to privacy and reputation; Right to protection of families and children.
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5(b), 15, 221, 226, 360; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17, 18, 19, 20, 24.
Keywords: Blue Card

The case concerned a review of a decision to issue a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld), where the applicant’s case was found to be ‘exceptional.’ The Tribunal considered that there are three steps when having regard to the Human Rights Act 2019 (Qld); that the right to privacy and reputation might be interpreted to include a right to work prospects without interference and it is justifiable in certain circumstances to limit the rights of one sector of the community to protect those of a more vulnerable sector. The Tribunal upheld the delegate’s decision as the Tribunal was not satisfied the applicant had undertaken the steps necessary to handle the bad days and considered a limit on the applicant’s applicable human rights was justified.

The case concerned a decision to issue a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld), following a decision that the applicant’s case was an ‘exceptional’ case within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) in that it would not be in the best interests of children for the applicant to be issued with a positive notice.

The applicant had been convicted of criminal offences relating to the assault of two children under his care on 16 October 2016, which occurred in the course of employment as a Youth Worker on a casual basis with Families South Australia where he worked within residential facilities with children under Child Protection Orders.

The Tribunal noted that ‘the interpretation of legislation and the application of facts within the statutory consideration must be undertaken’ with reference to the Human Rights Act 2019 (Qld): at [21]. The Tribunal noted that, to do so, ‘a decision maker must give proper consideration to human rights relevant to the decision’: at [21]. The Tribunal summarised the three steps outlined in Storch v Director General, Department of Justice and Attorney General1 regarding the consideration of the Human Rights Act 2019 (Qld) as being (at [21]):

  • To “identify the protected Human Right;”
  • To “consider compatible statutory interpretations;” and
  • To “determine whether a limit or interference with a human right identified is or is not ‘reasonable and justifiable’.”

The Tribunal noted that the right to privacy and reputation ‘may be interpreted to include a right to work prospects without interference,’ although work is not an express right under the Human Rights Act 2019 (Qld), and that the Human Rights Act 2019 (Qld) also ‘provides the right to protection of families and children and the rights of every child to the protection that is needed and is in the child’s best interests because they are a child’: at [22]. The Tribunal also noted that the Human Rights Act 2019 (Qld) ‘recognises that in a democratic society it may in certain circumstances be justifiable to limit the rights of one sector of the community in order to protect the human rights of a more vulnerable sector of the community’: at [23].

The Tribunal upheld the delegate’s decision.

The Tribunal identified the protective factors of the applicant having no other criminal history; the supporting witnesses having reported positively regarding his interactions with children after the incident, but noting that weight of this evidence was tempered ‘due to their limited understanding of the offences and other factors’; the applicant having ‘sought psychological assistance post incident and has, albeit irregularly, maintained that connection’; the applicant having ‘undertaken further training to support his skills’; and the applicant having ‘reflected remorse’ and ‘generally having appeared to have insight into his behaviour’: at [42].

The Tribunal identified the risk factors of the application having ‘had significant training prior to the incident’ but still being ‘unable to react appropriately to the children’s behaviours; the applicant admitting in cross examination that ‘he does not have the skills to appropriately respond to behaviours of children with trauma backgrounds’; the limited psychological intervention; the offending having come from an inability to control emotions and concerns regarding ‘the level of insight and acceptance of responsibility’ as he ‘sought to downplay the incidents in earlier written material and classified the child’s spraying with water as an ‘attack’: at [43].

While the Tribunal was satisfied that the applicant “would be able to provide day to day care of children in a satisfactory manner,” the Tribunal was not satisfied the applicant had “undertaken the steps necessary to handle the bad days:” at [45]. The Tribunal also noted that, as conditions are not able to be placed on the issuance of blue cards, ‘there would be no impediment to the Applicant applying for employment with vulnerable children with trauma history’: at [47].

The Tribunal noted they had ‘considered the competing human rights in reaching their conclusion and considered a limit on the applicant’s applicable human rights are justified in the circumstances of this case’: at [48].

Visit the judgment: Ibarra v Director-General, Department of Justice and Attorney-General [2021] QCAT 225

1: [2020] QCAT 152, 47-55