Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152

Date: 13-14 November 2019
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Member Stepniak
Human Rights Act 2019 (Qld) Sections: ss 3, 4, 8, 9, 10, 12, 13, 15, 24, 25, 31, 32, 34, 48, 58
Rights Considered: Right not to be tried or punished more than once; Rights in criminal proceedings: right to be presumed innocent until proven guilty, rights of a person charged with a criminal offence not to be compelled to testify against themselves or to confess guilt; Right to a fair hearing
Other Legislation: Charter of Rights and Responsibilities Act 2006 (Vic); Child Protection Act 1999 (Qld) ss 131, 132, 133, 186; Criminal Code 1899 (Qld) s 210(1)(a); Evidence Act 1977 (Qld) ss 10(1), 23(2),(3); Jury Act 1995 (Qld) s 59A; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 17, 18, 19, 20, 24, 28, 66, 90; Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 8, 156, 167, 168, 221, 226, 229, 231, 236, 240, 305, 315, 318, 319, 335, 337, 338, 353, 360,361. Chapter 8 Part 4 Division 7, Schedule 1 Part 1, ss 1, 2, 4, 4A, 14; Schedule 4 s Schedules 2 and 7
Keywords: Public entity; Child protection; Employment

The self-represented applicant argued that the respondent’s decision to issue him with a negative blue card notice, despite him being acquitted at trial of a charge of indecent treatment of a child, was a breach of several rights under the Human Rights Act 2019 (Qld). Specifically, the Tribunal discussed the applicant's right to not be tried or punished more than once for an offence of which he was previously acquitted, right to a fair hearing, right to be presumed innocent until proven guilty and right against self-incrimination. The Tribunal, acting in an administrative capacity as a ‘public entity’ under s 9 of the Human Rights Act 2019, ultimately found that any limits imposed on the applicant’s human rights were ‘reasonable and justified’ and confirmed the decision of the respondent to issue the applicant with a negative blue card notice.

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant on the basis that the applicant was ‘an exceptional case’ where the issuing of a positive notice would not be in the best interests of children. The applicant had been issued a positive notice and blue card on four previous occasions, but his positive notice was suspended when the applicant was charged with indecent treatment of a child in June 2017. This charge arose from a statement made by a five-year-old boy who had attended the pre-school centre at which the applicant worked. The boy had informed his parents that the applicant had touched his genitals the year prior. After a two-day jury trial, the applicant was found not guilty. As the applicant was acquitted of the charge, the respondent would usually be required to issue a positive notice. However, the respondent was of ‘the view that the applicant’s case was “an exceptional case in which it would not be in the best interests of the children for the chief executive to issue a positive notice”’ in accordance with s 226 of the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [25]. The reasons for this decision included consideration of further, untested allegations from 2009 when the Applicant was 18 years of age. This resulted in the negative notice being issued, and the applicant applied to the Queensland Civil and Administrative Tribunal for review of this decision.

The Tribunal recognised that section 9(4)(b) of the Human Rights Act 2019 (Qld) states that ‘a public entity does not include...a court or tribunal except when acting in an administrative capacity’. The Tribunal considered the reasoning of Justice Bell in the Victorian case of PJB v Melbourne Health and Anor (Patrick’s case) [2011] VCS 327 as to whether the Tribunal was, in this case, acting in an administrative capacity: at [40]. Here, the Tribunal was undertaking ‘a fresh review on the merits and in accordance with the enabling Act’ and therefore was performing ‘the administrative functions of the respondent as decision maker’: at [43]. The Tribunal also determined that ‘when reviewing the respondent’s decision regarding screening for child related employment, the Tribunal is acting in an administrative capacity’: at [44]. Therefore, the Tribunal was a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld) and was required ‘“to act and make decisions in a way that is compatible with human rights”, to give proper consideration to a human right relevant to the decision, and to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way compatible with human rights’: at [44]-[45]. This recognises the duties placed on public entities in sections 4(b), (f); 58(1)(a); 59(1)(b) and 48(1) of the Human Rights Act 2019 (Qld).

The Tribunal determined that giving proper consideration to relevant human rights required it to follow a three-step process: (1) to ‘identify the protected human rights that may be affected by statutory provisions and their interpretation, as well as the Tribunal’s decisions and other actions’; (2) to ‘determine whether the relevant statutory provisions and their interpretation by the Tribunal and the Tribunal’s decisions and actions are compatible with such human rights’; and (3) to consider that ‘even where a [sic] limit or an interference with a human right is identified, it may nevertheless be deemed compatible with human rights as long as the limitation is “reasonable and justifiable”’: at [46]-[55].

The Tribunal first considered the applicant’s right under section 34 of the Human Rights Act 2019 (Qld) to not be tried or punished more than once. The Tribunal found that the ‘refusal to issue a positive notice does not constitute a retrial as the Tribunal’s role is not to determine whether the applicant is guilty of the charge. The Tribunal’s function is to undertake an analysis and evaluation of risk that would be posed to children if a positive notice was issued’: at [85]. This further led to the Tribunal considering whether the applicant’s right to be presumed innocent until proven guilty under section 32(1) of the Human Rights Act 2019 (Qld) had been breached. The Tribunal found that ‘the purpose of this review is not to determine the applicant’s guilt or innocence. It is to determine whether when viewed in its entirety the evidence suggests that on the balance of probabilities, the applicant may pose a risk to children’ and therefore neither party ‘bears the onus of proof in this review and the hearing merely considers all the evidence to assess whether the applicant’s case is an exceptional one’: at [278]-[279]. On this basis, the Tribunal found it able to consider the earlier complaints made against the applicant.

The applicant further submitted that he had been denied natural justice, because his ‘case had not been based on all the evidence, but rather on negative and unfounded inferences with little attention given to evidence favouring his submissions’: at [95]. As one aspect of this argument, the Tribunal considered section 31 of the Human Rights Act 2019 (Qld), the right to a fair hearing. The Tribunal considered that this right had not been breached for a number of reasons: the applicant had been provided with all relevant documents, was given the opportunity to respond to and present submissions, was provided with the opportunity to be legally represented (although he opted to represent himself), and was accompanied by a support person and the Tribunal took additional steps to ensure that the self-represented applicant received a fair hearing: at [101]-[103]. The Tribunal also found that ‘when the applicant gave oral evidence and was examined by the respondent’s legal representative and the Tribunal about alleged criminal acts allegedly committed by the applicant, he was advised of his right not to answer any questions or make statements, if to do so “might tend to incriminate him”’, so as to uphold his right under section 32(2)(k) of the Human Rights Act 2019 (Qld): at [295]-[296]. This section recognises the right of a person charged with a criminal offence not to be compelled to testify against themselves or to confess guilt.

The Tribunal also considered whether the issuing of a negative blue card notice was a breach of the applicant’s right to work because he would be unable to undertake various forms of employment involving children. The Tribunal recognised that the Human Rights Act 2019 (Qld) does not include a right to work but does recognise that ‘a right or freedom recognised under another law should not be interpreted as being abrogated or limited simply because it is not included in the Act’: at [357]. The right to work is included in article 6(1) of the International Covenant on Economic, Social and Cultural Rights, which has been ratified by Australia. This article does not form part of Australian law, as it has not been incorporated into Australian legislation: at [359]. However, the Tribunal cited the High Court’s reasoning in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, that ‘Australia’s ratification of a rights instrument may create “legitimate expectations” that Australia will fulfil its obligations [sic] by recognising the right’: at [359]. Therefore, the right to work was a human rights consideration that the Tribunal took into account. Ultimately, the Tribunal found that the legislation allowing the respondent to decline issuing a positive notice in exceptional cases was a limitation for the ‘promotion of welfare in a democratic society’ within the meaning of article 4 of the International Covenant on Economic, Social and Cultural Rights, and therefore, constituted a permissible limitation on the right to work: at [363]-[366].

The Tribunal ultimately found that any limits imposed on the above mentioned human rights were ‘reasonable and justified’ in accordance with section 13 of the Human Rights Act 2019 (Qld) and confirmed the decision of the respondent to issue the applicant with a negative blue card notice.

Visit the reported judgement: Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152