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MB [2022] QCAT 185

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Date: 23 May 2022
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 9, 13, 24, 25, 26, 31, 34, 36 48, 58
Rights Considered: Property rights; Right to privacy and reputation; Right to protection of families and children; Right to a fair hearing; Right not to be tried or punished more than once; Right to education
Other Legislation: Criminal Code Act 1899 (Qld) ss 12, 210, 227; Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) ss 3, 5; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 21, 24, 28, 66, 90; Weapons Act 1990 (Qld) s 10; Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 7, 167, 220, 221, 223, 225, 226, 227, 228, 318, 319, 335, 337, 338, 353, 360, 361
Keywords: Blue card; Education, Training and Employment; Public Law Considerations: Fair trial; 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, MB. In affirming the respondent’s decision, the Tribunal considered property rights, the right to privacy and reputation, the right to protection of families and children, the right to a fair hearing, the right not to be tried or punished more than once and the right to education.

The applicant had been issued a negative blue card notice on the basis that the applicant’s circumstances amounted to an exceptional case where the issuing of a positive notice would not be in the best interests of children: at [8]. The applicant was arrested and charged with disqualifying offences of ‘indecent treatment of a child under 16’ and ‘indecent act in any place with intent to insult or offend any person’: at [2], [36]-[37]. There was insufficient evidence to go to trial and the applicant was not convicted of either offence: at [38].

It was held that the Tribunal was a ‘public entity’ that was required ‘to act and make decisions in a way that [wa]s compatible with human rights’ and to ‘give proper consideration to a human right relevant to the decision’: at [18].

The Tribunal considered several rights of the applicant that were limited by the negative notice. Notably, Member Stepniak considered whether the right to privacy and reputation, the right to own property, and the right to education may together encompass a right to work not specified in the Human Rights Act 2019 (Qld): at [253]. It was emphasised that any potential right to work was qualified by a person’s skills, qualifications, and suitability to perform a particular role: at [254]. Further, the limitation on the applicant’s potential right to work was justified in the context of the primary object of the Working with Children (Risk Management and Screening) Act 2000 (Qld), to protect children.

The limitations placed on the applicant’s right to privacy and reputation were also found to be justified in the context of protecting children: at [260]. The Tribunal noted that legislators had recognised that protecting children may in some cases have a punitive effect on others, however, the objective was to protect children rather than punish people twice: at [260].

The Tribunal considered the elements of the right to a fair hearing under section 31 of the Human Rights Act 2019 (Qld): at [262]-[280]. The Tribunal indicated that the process of appointing tribunal members to preside over Blue Card matters was designed to ensure a ‘competent, independent and impartial tribunal’: at [264]. The Tribunal recognised the requirement for a child-related employment review to be held in private was permitted by section 31(2) of the Human Rights Act 2019 (Qld) as it fell within the qualification that a tribunal may limit public access to the hearing if ‘in the public interest or the interests of justice’: at [269]. The Tribunal considered section 31(3) of the Human Rights Act 2019 (Qld) which provided that all decisions be publicly available and held that the requirement for nothing be published that could identify children who may be affected by the child-related employment proceeding would clearly limit the applicant’s right to a fair hearing: at [274] and [277]. However, it was noted that a non-publication order was required to protect children in accordance with the right to protection of families and children provided by section 26 of the Human Rights Act 2019 (Qld): at [275]. On this basis, a non-publication order was issued, even though it limited the applicant’s right to a fair hearing, on the grounds that the limitation was reasonable and justifiable for the purposes of section 13 of the Human Rights Act 2019 (Qld): at [277]-[278]. The Tribunal emphasised that the decision would still be published in an anonymised format and, therefore, would not infringe on the requirement to be ‘publicly available’: at [278].

In considering the risk associated with issuing the Blue Card notice, the Tribunal considered that prior to the enactment of the Human Rights Act 2019 (Qld), ‘risk’ as ‘a mere possibility’ was distinguished from ‘risk’ as ‘a real and appreciable risk’: at [283]. The Tribunal held that the Human Rights Act 2019 (Qld) requires decision-makers to distinguish between ‘a risk which limits an applicant’s human rights no more than is reasonable and justifiable, and a risk which limits an applicant’s human rights more than is reasonable and justifiable’ as determined by section 13 of the Human Rights Act 2019 (Qld): at [283].

With consideration to the competing human rights of children affected by the Tribunal’s decision under section 26 of the Human Rights Act 2019 (Qld), the Tribunal found that the applicant’s human rights had not been limited to an extent and in a manner that was not reasonable and demonstrably justifiable: at [290].

Visit the judgment: MB [2022] QCAT 185