MK v Director-General, Department of Justice and Attorney General [2021] QCAT 62

Date: 23 February 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Garner
Human Rights Act 2019 (Qld) Sections: ss 8, 13, 23, 25, 26(2), 36(2), 48, 58
Rights Considered: Taking part in public life; right to privacy and reputation; right to protection of families and children; 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; Commission for Children and Young People Bill 2000 Explanatory Notes
Keywords: Blue card

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, MK. In conducting its review, the Tribunal had regard to the applicant's right to take part in public life (section 23), right to privacy and reputation (section 25), and right to further vocational education and training (section 36(2)), as well as the right to protection of children (section 26(2)), under the Human Rights Act 2019 (Qld).

The applicant applied for a positive notice and a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) so that she could undertake community volunteer work: at [3]. She had previously been charged with several offences, none of which were ‘serious offences’ or ‘disqualifying offences’ that would automatically preclude her from being issued a positive notice under the legislation: at [6]. However, the applicant was issued a negative notice on the ground that it was ‘an “exceptional” case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card’: at [6].

The Tribunal noted that when conducting a review of a blue card decision, it is acting in an administrative capacity and is therefore a ‘public entity’ under the Human Rights Act 2019 (Qld): at [35]. Accordingly, the Tribunal must interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights. The Tribunal must also make a decision in a way that is compatible with human rights, and give proper consideration to relevant human rights: at [37].

In conducting its review, the Tribunal was satisfied that it had fulfilled its obligations under the Human Rights Act 2019 (Qld). The Tribunal had regard to the applicant's right to take part in public life (section 23), right to privacy and reputation (section 25), and right to further vocational education and training (section 36(2)), as well as the right to protection of children (section 26(2)): at [161]. The Tribunal held that any limitation on the applicant’s human rights would be reasonable and demonstrably justifiable, as the Tribunal’s decision has the purpose of promoting the welfare and best interests of children: at [162].

The respondent’s decision that the applicant was an ‘exceptional’ case in which a blue card would not be issued was set aside and replaced with the Tribunal’s decision that the applicant was not an exceptional case: at [163].

Visit the judgement: MK v Director-General, Department of Justice and Attorney General [2021] QCAT 62