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SF v Department of Education [2021] QCAT 10

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Date: 13 January 2021 
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Hughes
Human Rights Act 2019 (Qld) Sections: ss 4, 8, 13, 15, 25, 26, 36, 48, 58
Rights Considered: Right to recognition and equality before the law; Right to privacy and reputation; Right to protection of families and children; Right to Education
Other Legislation: Acts Interpretation Act 1954 (Qld) ss 14A, 32CA; Anti-Discrimination Act 1991 (Qld) ss 7, 8, Schedule 1; Child Protection Act 1999 (Qld) s 13A; Education (General Provisions) Act 2006 (Qld) ss 5, 7, 176, 177, 178, 205, 208, 210, 214, 216, 426, 433; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20, 24, 28, 66
Keywords: Education, Training and Employment: Right to education; Children and Families: Domestic Violence; Discrimination: Disability

This case concerned an application for review of the Department of Education’s decision to refuse SF’s application to home school her child on the basis that they require an address to be provided. The Human Rights Act 2019 (Qld) was relevant in assessing whether the Department of Education’s interpretation of the procedural requirements and the terms of the application form to home school were compatible with SF and her children’s right to recognition and equality before the law (section 15), right to privacy and reputation (section 25), right to protection of families and children (section 26), and right to education (section 36).    

This case concerned an application for review of a decision of the Department of Education to refuse home education registration for the applicant’s child with learning disabilities. The applicant and her children had moved to escape domestic violence and she kept their exact location secret to keep her family safe from her former partner, who had successfully located her in the past. 

SF had provided the Department of Education a town name, postal address and mobile phone number, but not a street address or number. The Tribunal found that it had met the procedural requirements of the application form in her extenuating circumstances: at [33]. The Tribunal interpreted the procedural requirement of supplying an address on the form in a way that facilitated access to education and was responsive to the individual needs of the child, and that ensured SF and her children’s safety: at [26], [32] and [38].

The Tribunal supported SF’s seclusion of her address, stating that the more people with access to that information, the greater the risk for human error or an application under the Right to Information Act 2009 (Qld) which could lead to sensitive information being disclosed to her former partner: at [30]-[31]. This posed a significant risk to the safety and privacy of SF and her children.

The Tribunal referred to Victorian cases that had discussed the ‘right to privacy’, and the ‘right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’ (section 13(a) of the Charter of Human Rights and Responsibility Act 2006 (Vic)): at [44].

When discussing the Human Rights Act 2019 (Qld), the Tribunal listed the rights of SF and her children that were affected, and recognised that all statutory provisions must be interpreted in a way that is compatible, or is most compatible, with human rights: at [43]-[45]. The Tribunal noted that since the terms used in the application form were not defined, they must be interpreted in a way that ‘will give effect to the legislative purpose of the governing Act that is compatible with human rights’: at [45]. The governing Act, Education (General Provisions) Act 2006 (Qld), had not provided clear definitions of ‘residential address’, ‘address where the home education will be delivered’ or ‘address of the child’s usual place of residence.’ The Tribunal held that these terms must be interpreted in a way that is compatible with human rights: at [45]. 

The Tribunal found that an interpretation that mandated SF to provide a street number, street name and town name, was not an interpretation that least infringed on SF and her family’s human rights: at [46]. Since there were less restrictive ways of achieving the legislative purposes of ensuring the child’s proper registration, and SF was contactable, imposing a strict requirement for disclosure of street number and street name did not satisfy section 13 of the Human Rights Act 2019 (Qld): at [47]-[48]. 

The Tribunal noted the consequences of disclosing SF’s location were severe and, thus, the object of the Education (General Provisions) Act 2006 (Qld) must be sufficiently important to warrant the measure if it is to be ‘reasonable and demonstrably justified in a free and democratic society’: at [49]. It was held that the child’s right to access education appropriate to their needs and the family’s right not to have their privacy, family or home arbitrarily interfered with outweighed the requirement to provide an exact address: at [50].  

The application for external review was approved and the decision made by the Department of Education was substituted with a decision to grant home education registration for SF’s child: at [54]. 

Visit the judgement: SF v Department of Education [2021] QCAT 10