TD v Director-General, Department of Justice and Attorney-General [2021] QCAT 138

Date: 19 April 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Fitzpatrick
Human Rights Act 2019 (Qld) Sections: ss 13, 26(2), 31, 34, 48, 58
Rights Considered: Right to protection of families and children; Right to a fair hearing; Right not to be tried or punished more than once
Other Legislation: Working with Children (Risk Management and Screening Act) 2000 (Qld) ss 6, 221, 226(2), 580; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 66
Keywords: Blue Card

This case concerned an application for review of the respondent’s decision to issue a negative blue card notice on the basis that the applicant was an ‘exceptional case’. In deciding that the applicant was not an exceptional case, the Tribunal briefly considered the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), and the right to protection of families and children (section 26(2)) and considered that, to the extent that there were any limitations on those rights, those limitations were reasonable and justifiable.

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 sought a blue card so that he could care for his niece as part of a kinship care arrangement. Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice must be issued unless it is an exceptional case where it would not be in the best interests of children if a positive notice were granted.

In making its decision, the respondent had regard to the applicant’s criminal history. On 17 August 2015, the applicant had been convicted of Attempted observations or recordings in breach of privacy. This charge had arisen from the applicant taking a video of an adult female person’s anal and genital area in a public place for his own pleasure. Police had also located numerous downloaded photos on the applicant’s phone which appeared to have been taken up the skirts of other unknown females. The Tribunal held that this offence was relevant to the welfare of children as it represented a serious lack of judgement that could diminish his appropriateness as a role model to children, as ‘children are entitled to be cared for by adults who do not engage in anti-social or offensive behaviour’: at [19].

The Tribunal highlighted a number of factors that demonstrated the applicant presented a low risk of re-offending which included the support he had from his partner and uncle, the fact there were no longer negative influences in his life and that the applicant was benefitting broadly from counselling: at [46]-[52].

The Tribunal set aside the respondent’s decision and replaced it with the decision that there was no exceptional case: at [53].

In reviewing the respondent’s decision, the Human Rights Act 2019 (Qld) was relevant and the Tribunal had regard to the right to protection of families and children, the right to a fair hearing and the right not to be tried or punished more than once: at [55]. The Tribunal was satisfied that its decision was compatible with human rights, and that, to the extent that there were any limitations on those rights, those limitations were reasonable and justifiable: at [55].

Visit the judgment: TD v Director-General, Department of Justice and Attorney-General [2021] QCAT 138