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RE and RL v Department of Child Safety, Youth and Women [2020] QCAT 151

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Date: 29 April 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Murray, Member Allen, and Member Garner
Human Rights Act 2019 (Qld) Sections: ss 9, 13, 15, 25, 26, 48 and 58
Rights Considered: right to recognition and equality before the law; right to privacy and reputation; right to protection of families and children
Other Legislation: Child Protection Act 1999 (Qld) ss 5, 82, 89, 90, 91, 99D, 122, 132, 134, 135, 139, 140, and Schedule 2; Child Protection Regulation 2011 ss 22 and 26; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 9, 17, 19, 20, 21, 24 and 28

Keywords: Child protection; Family; Foster care

Foster parents applied to the Tribunal to review decisions made by the Department of Child Safety, Youth and Women to remove two children from their care and cancel their certificate of approval as foster carers. The Tribunal had regard to the applicants’ right to recognition and equality before the law but held that the right to protection of families did not apply as foster carers do not constitute “family” for the purpose of s 26 of the Human Rights Act 2019 (Qld). The protection of children under s 26(2) of the Human Rights Act 2019 (Qld), was also considered in relation to the Child Protection Act 1999 (Qld).

This case concerned RE and RL, the long-term foster carers of brothers identified as Child 1 and Child 2. The Department of Child Safety, Youth and Women (‘the Department’) held an investigation into the treatment of Child 1 and Child 2 and made the decision to remove the children from RE and RL’s care. The Department also made the decision to cancel RE and RL’s certificate of approval as foster carers. RE and RL made an application to review each of these decisions, which the Tribunal heard together.

The Tribunal noted that, as a public entity, it is subject to the requirements of the Human Rights Act 2019 (Qld) in its administrative review jurisdiction: at [22]. As such, the Tribunal must ensure that the human rights applicable to RE and RL are subject only to reasonable limits that can be demonstrably justified in a free and democratic society based on human rights, dignity, equality and freedom: at [22]. The Tribunal also recognised that it must interpret statutory provisions, to the extent possible that is consistent with its purpose, in a way compatible with human rights: at [23]. Furthermore, the Tribunal recognised that it is unlawful for it to act or make a decision in a way that is not compatible with human rights, or in making a decision, to fail to give proper consideration to a human right relevant to the decision: at [23].

The Tribunal had regard to RE and RL’s right to recognition and equality before the law under s 15 of the Human Rights Act 2019 (Qld). It was satisfied that this right had not been limited; RE and RL had the opportunity to put their material before the Tribunal, answer the matters raised by the Department, have their witnesses appear at the hearing and cross-examine the Department’s witnesses: at [24]. The Tribunal also noted that the requirements of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) help ensure that the Tribunal exercises its powers in a way that is consistent with human rights. Specifically, the Tribunal is “required to observe the rules of natural justice in terms of the hearing rule and the bias rule and to take all reasonable steps to ensure that RE and RL had a proper understanding of the Tribunal process:” at [24].

The Tribunal considered the specific rights contained within the Human Rights Act 2019 (Qld) that deal with a person’s family: the right to privacy and reputation under s 25 and the right to protection of families and children under s 26(1). The Tribunal held that as RE and RL were foster carers of Child 1 and Child 2, they do not constitute “family” under the Human Rights Act 2019 (Qld) and therefore are not entitled to protection under these provisions: at [25]. While the Tribunal did not consider these rights when making its decision, it did consider the right to protection of children under s 26(2), which reflects the requirement under the Child Protection Act 1999 (Qld) to consider the best interests of the child: at [25]. The Tribunal was satisfied that it had complied with these requirements.

The Tribunal went on to find that RE and RL failed to meet the standards of care mandated under the Child Protection Act 1999 (Qld). As a result, the Tribunal held that it is in the best interests of Child 1 and Child 2 to be removed from their care. The Tribunal thus confirmed both the decision of the Department to remove Child 1 and Child 2 from RE and RL and the decision to cancel their certificate of approval as foster carers.

Visit the reported judgement: RE and RL v Department of Child Safety, Youth and Women [2020] QCAT 151