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MAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 527

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Date: 15 May 2020
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 3, 4, 8, 9, 13, 24, 25, 31, 34, 48, 58, 59, Part 2, Division 2 and 3
Rights Considered: Right to privacy and reputation; Right to a fair hearing; Right not to be tried or punished more than once
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 21, 24, 28, 63, 66, 90; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 2, 5, 6, 8, 156, 167, 168, 221, 226, 311, 317, 318, 320, 335, 337, 338, 353, 360, 361, Schedules 1, 2, 4, 7; Charter of Rights and Responsibilities Act 2006 (Vic); Domestic and Family Violence Act 2012 (Qld) s 8; Family Law Act 1975 (Cth) s 4AB
Keywords: Blue Card; Criminal Law and Corrective Services: Double Jeopardy; Children and Families: Domestic Violence

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, MAP. The Human Rights Act 2019 (Qld) was discussed in relation to the duties it imposed upon the Tribunal, and the relevance of the right not be tried or punished more than once (section 34), the right to a fair hearing (section 31) and the right to privacy and reputation (section 25) to the operation of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

The applicant had been issued a negative blue card notice on the basis that his was an exceptional case where it would not be in the best interests of children for him to be granted a blue card. The applicant submitted that the respondent’s decision failed to give sufficient weight to the factual basis and nature of the offending, failed to give sufficient weight to the applicant’s rehabilitation and positive references, and that there had been an incorrect assessment of his case being an ‘exceptional case’: at [24].

The Tribunal determined, following the approach of Justice Bell of the Victorian Supreme Court, that it was acting in an administrative capacity when reviewing the respondent’s decision, and was therefore required to comply with the Human Rights Act 2019 (Qld): at [35]-[38], [40]-[41].

The Tribunal determined that it was required to take specific steps to comply with the obligations under the Human Rights Act 2019 (Qld): at [42]. First, the Tribunal needed to identify the relevant human rights that may be affected by the statutory provisions and their interpretation: at [43]. Secondly, the Tribunal needed to determine whether these statutory provisions, their interpretation, and the Tribunal’s actions and decisions were compatible with human rights: at [45]. Thirdly, where a limit or interference with a human right was identified, the Tribunal needed to consider whether the limitation of that human right was ‘reasonable and demonstrably justifiable in accordance with section 13’: at [48].

The Tribunal considered the right not be tried or punished more than once (section 34 of the Human Rights Act 2019 (Qld)): at [71]-[72]. The Tribunal did not consider the review process to be a retrial as the Tribunal was not making a determination of the applicant’s guilt, but was analysing and evaluating the risk that would be posed to children if a positive notice were to be issued: at [74]. However, the Tribunal noted that screening under the Working with Children (Risk Management and Screening) Act 2000 (Qld) could have the unintended consequence of punishing a person in the applicant’s position: at [79]. The Tribunal found that the relevant provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld) could not be interpreted in a manner consistent with human rights, so the Tribunal was obliged to interpret them in a way that is most compatible with human rights, to the extent that is consistent with the purpose of the Act: at [79-80].

The Tribunal examined the evidence and weighed up the risks and protective factors. The Tribunal concluded that the proposed risks were no longer ‘real and appreciable’ and were ‘overwhelmingly outweighed by protective factors’: at [296].

The Tribunal considered whether ordering a closed hearing was compatible with the right to a fair hearing (section 31(1) of the Human Rights Act 2019 (Qld)). The Working with Children (Risk Management and Screening) Act 2000 (Qld) required the Tribunal to hold the hearing in private and the Tribunal found this to be compatible with section 31(2) of the Human Rights Act 2019 (Qld) which authorised the Tribunal to exclude the general public if it would be in the interests of justice to do so: at [303]-[305].

The Tribunal considered whether a non-publication order would unreasonably limit section 31(3) of the Human Rights Act 2019 (Qld) which requires all tribunal decisions to be publicly available. The Tribunal considered it necessary to prohibit the publication of identifying factors of the applicant and witnesses, as publication may lead to the identification of particular children and other confidential information: at [312]. The Tribunal held that the limit imposed was reasonable and justifiable: at [313].

The Tribunal set aside the decision of the respondent and replaced it with the Tribunal’s decision that there was no exceptional case: at [324].

Link: https://www.queenslandjudgments.com.au/caselaw/qcat/2020/527/pdf

NOTE: This case was successfully appealed on the basis that, at the time of the decision, the Human Rights Act (2019) had not yet commenced:https://www.queenslandjudgments.com.au/caselaw/qcata/2022/34/pdf