SM v Director-General, Department of Justice and Attorney-General [2021] QCAT 116
Date: 24 March 2021
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Traves
Human Rights Act 2019 (Qld) Sections: 108
Rights Considered: N/A
Other Legislation: Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 24, 66; Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 5, 6, 15, 221, 226, 294, 304G, 360, 580, Schedule 2, Schedule 7
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, SM. The Tribunal found that the Human Rights Act 2019 (Qld) did not apply, as the proceedings began before the commencement of the Human Rights Act 2019 (Qld).
The applicant, SM, was issued a negative notice when he applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) in 2015. He applied to cancel the negative notice, but the respondent found that this was ‘an exceptional case in which it would not be in the best interests of children…to cancel the applicant’s negative notice’: at [6]. SM applied to the Tribunal for a review of this decision.
The Tribunal considered the applicant’s criminal history. The applicant had one conviction for the offence for ‘using a carriage service to menace, harass or cause offence’ in 2007: at [9]. The offence involved sending a text message to a 13-year-old girl which ‘referred to the girl’s breasts in a form of a greeting’: at [17]. The applicant gave oral evidence seeking to explain the context of the text and issued an apology for his behaviour: at [15]. The respondent submitted that the applicant should have been aware that the message was inappropriate, that he continued to minimise his behaviour, that he was in a position of trust in relation to the girl, and that he lacked appreciation of personal boundaries: at [20]-[21].
On balance, the Tribunal was ‘not satisfied that the applicant’s is an exceptional case in which it would not be in the best interests of children for him to have his negative notice cancelled’: at [25]. It was satisfied that the text was an error of judgement and the applicant ‘would never send such a text now’: at [25]. The Tribunal also observed that the offence was neither a serious nor disqualifying offence, and it occurred over 13 years ago: at [16].
The Tribunal noted that no oral or written submissions were made regarding the application of the Human Rights Act 2019 (Qld): at [26]. Regardless, it found that the Human Rights Act 2019 (Qld) did not apply as the proceedings began before the legislation commenced on 1 January 2020: at [26].
The Tribunal set aside the respondent’s original decision and substituted it with the decision that this is not an exceptional case within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [28].
Link: https://www.queenslandjudgments.com.au/caselaw/qcat/2021/116/pdf