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LSR v Director-General, Department of Justice and Attorney-General [2021] QCAT 380

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Date: 5 October 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 9,13, 25, 26, 31, 34, 36, 48, 58, 59, Part 2, Division 2 and 3.
Rights Considered: Right to privacy and reputation, right to protection of families and children, right not to be tried or punished more than once, right to a fair hearing, right to education.
Other Legislation: International Covenant on Economic, Social and Cultural Rights art 4, 6; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 21, 22, 24, 28, 66, 90; Weapons Act 1990 (Qld) s 60(1)(c)(i); Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 2, 5, 6, 8, 156, 167, 168, 220, 221, 223, 225, 226, 227, 228, 311, 318, 319, 320, 335, 337, 338, 353, 360, Ch 8, Pt 4, Div 4 and 7; Pt 6, Div 2; Ch 9, Pt 1 Div 9; Sch 1; Sch 2; Sch 4; Sch 7.
Keywords: Children and Families

The case concerned a review of a negative Blue Card notice. The Tribunal determined that they were required to comply with the Human Rights Act 2019 (Qld) provision directed at public entities and that the limitations to human rights from refusing to issue the blue card, excluding the media and public, and issuing the non-publication order were reasonable and justifiable. The Tribunal ultimately concluded that it was not satisfied the applicant’s case was an exceptional case and therefore it would be in the interests of children for her to be issued with a ‘working with children clearance.’

The case concerned a review of a refusal of an application for a blue card. The applicant had been charged with fraud from using her employer’s credit card to make unauthorised personal purchases amounting to almost $5300 over a period of two years, and for the unlawful possession of a weapon from several cannisters of Capsicum spray having been found in her place of residence.

The Court determined that the Tribunal was required to comply with the Human Rights Act 2019 (Qld) provision directed at public entities, as the Tribunal was acting in its administrative capacity: at [37]-[39].

Regarding the human rights of children, the Tribunal took into account the impact of the applicant’s human rights on the human rights of children with whom she may be in contact with if granted a blue card and concluded that the Working with Children (Risk Management and Screening) Act 2000 (Qld) was not intended to limit the human rights of children. It came to this conclusion on the view that the concept of an exceptional case is intended to ensure that blanket considerations as to the issuing of positive or negative notices do not infringe on the rights of children, and only infringe on the human rights of applicants where the best interests of children and the protection of their human right demands it: at [251]-[252].

Regarding the right not to be tried or punished more than once (section 34), the Tribunal considered the importance of the purpose of the Working with Children (Risk Management and Screening) Act 2000 (Qld), that is, ‘to promote and protect the rights, interests and wellbeing of children and young people,’ the unsurprising consideration ‘that past risks had been seen as indications of future risks and consequently as justifying decisions being made with caution,’ and that the right was limited only to the extent that is reasonable and demonstrably justifiable: at [270] - [276].

Regarding the right to further vocational education (section 36(2)), the Tribunal found that the process and considerations prescribed by the Working with Children (Risk Management and Screening) Act 2000 (Qld) were just and reasonable [279].

Regarding the right to work under the International Covenant on Economic, Social and Cultural Rights, which is recognised as ‘another law’ under section 12 of the Human Rights Act 2019 (Qld), the Tribunal found that the restrictions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) fall within the qualification of the right and are compatible with this human right: at [290].

Regarding the right to be accorded natural justice (provided for by the requirement under section 28(3)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), that the Tribunal must observe the rules of natural justice) the related right to a fair and public hearing (section 31 of the Human Rights Act 2019 (Qld)) and the right to privacy and reputation (section 25), the Tribunal considered the exclusion of media and public from hearings in these proceedings and the making of a non-publication order constituted reasonable and justifiable limits on the right to a public hearing. The Tribunal made this decision have regard to the non-publication order, that the interests of justice require nothing to be published that could identify the applicant’s children, and that the publication of the names or anything otherwise identifying the applicant, witnesses or any third party to these proceedings would likely lead to the identification on the children and thus, result in the disclosure of confidential information that would likely cause the applicant’s human right to privacy and reputation to be arbitrarily interfered with: at [301]-[319].

Overall, the Tribunal concluded that it was not satisfied the applicant’s case was an exceptional case: at [332].

Visit the judgment: LSR v Director-General, Department of Justice and Attorney-General [2021] QCAT 380