SH v Director-General, Department of Justice and Attorney-General [2023] QCAT 293

Date: 31 July 2023
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Taylor
Human Rights Act 2019 (Qld) Sections: ss 13, 15, 21, 23, 25, 26, 48.
Rights Considered: Right to recognition and equality before the law; Right to freedom of expression; Taking part in public life; Right to privacy and reputation; Right to protection of families and children.
Other Legislation: Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 228, 294, 304 I, 354; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 21, 24, 66.
Keywords: Blue Card; Children and Families: DV.

This matter concerned an application for review of the decision not to cancel the applicant’s negative notice for a Blue Card. The Tribunal acknowledged it must exercise its jurisdiction in accordance with the Human Rights Act 2019 (Qld) but considered any limit on the applicant’s rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children.

The Applicant was issued with a negative notice preventing him from holding a Blue Card on the basis of his criminal history, which involved breaches of domestic violence orders. The Applicant subsequently applied to have the negative notice cancelled but was refused. He then applied to the Tribunal for review of that decision, submitting that his lifestyle and living arrangements had changed.

The Tribunal noted its obligations under the Human Rights Act 2019 (Qld) (HR Act) and the effect of the interpretive provision under s 48 of the HR Act. It noted the following rights, pursuant to the HR Act, were relevant to the applicant’s case: the right to recognition and quality before the law (section 15), right to freedom of expression (section 21), right to take part in public life (section 23) and the right to privacy and reputation (section 25). The right to protection for families and children was referred to as a competing right and the Tribunal reasoned that “any limit” on the applicant’s rights would be justified “because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people” (at [29]). It considered that when applying both the HR Act and the Working with Children (Risk Management and Screening) Act 2000 (Qld), any rights of the Applicant must yield to the rights of children as paramount.

The Tribunal considered that the Applicant lacked insight into the connection between his excessive alcohol intake and his offending, and until he abstained from drinking alcohol “the rights, interests and wellbeing of children and young people would be at risk and thus not protected if he were afforded the entitlement of holding a Blue Card” (at [18]). In reaching its decision to uphold the negative notice, the Tribunal did not substantively consider any limits on the applicant’s rights.

Visit the Judgement: SH v Director-General, Department of Justice and Attorney-General [2023] QCAT 293