SFV v Director-General, Department of Justice and Attorney-General [2021] QCAT 223

Date: 21 June 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member McDonnell
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 48, 58
Rights Considered: Right to protection of families and children; Right to a fair hearing
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 221, 226, 228, 360; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 24
Keywords: Blue card

The case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant on 6 April 2020. The decision of the Director-General, Department of Justice and Attorney-General that this was an ‘exceptional case’ within the meaning of s 221(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) was confirmed.

SFV and his wife had been foster carers for many years with positive notices and blue cards being issued in this period. Upon receiving a notice of a change in SFV’s disciplinary information, the respondent undertook a review and cancelled SFV’s blue card and issued a negative notice on 6 April 2020.

SFV has one conviction for higher PCA and one conviction for stealing. The offending occurred between 1977 and 1982. Neither offence is a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Working with Children (Risk Management and Screening) Act 2000 (Qld) seeks to ‘put gates around employment to protect children from harm’, not to punish those who have received police or disciplinary information: at [6]. A working with children clearance must be issued unless the Tribunal is satisfied SFV’s is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued. The Tribunal found that SFV’s criminal history is not such that it would warrant a determination that SFV’s case is exceptional: at [21].

However, on 2 January 2019 the Department of Child Safety, Youth and Women cancelled SFV’s certificate of approval as a foster carer. Their reasons were that SFV had not met the standards of care required, used inappropriate discipline techniques and demonstrated an inability to implement case plan goals and achieve outcomes for children in care: at [26]. The Department’s Standard of Care Review criteria were not met: at [29].

In considering the evidence submitted by the applicant, the Tribunal was not satisfied that SFV had developed “genuine insight” about the impact of his behaviour on the children in his care, nor vulnerable persons in need of protection: at [54]. The Tribunal also raised concerns about SFV’s ability to provide a protective environment for children consistent with community expectations: at [47].

Member McDonnell recognised that, pursuant to section 48 of the Human Rights Act 2019 (Qld), she must interpret statutory provisions in a way that is compatible with human rights: at [55]. In undertaking the review, the Tribunal must also take into account the obligations on public entities under section 58 of the Human Rights Act 2019 (Qld): at [55].

The Tribunal emphasised that the purpose of this hearing was to protect children rather than impose further punishment for past conduct: at [56]. The Tribunal considered that the hearing being held in private was consistent with the applicant's right to a fair hearing: at [57]. Additionally, the Tribunal considered the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’: at [58]. Member McDonnell was satisfied that any limitations on these rights were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld).

The Tribunal confirmed the respondent’s decision that this was an exceptional case within the meaning of s 221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld).

Visit the judgment: SFV v Director-General, Department of Justice and Attorney-General [2021] QCAT 223