YM v Director-General, Department of Justice and Attorney-General [2021] QCAT 224

Date: 22 June 2021
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Taylor
Human Rights Act 2019 (Qld) Sections: ss 25, 26
Rights Considered: 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, 15, 156, 221, 226, 294, 304A, 354, 360; Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 21, 24, 66
Keywords: Blue Card

This application relates to a review of a decision from the Department of Justice and Attorney-General to cancel the applicant’s positive notice and blue card and issue a negative notice. The Human Rights Act 2019 (Qld) is discussed in relation to the applicant’s right to privacy and reputation against the competing right to protection of families and children, and the reasonable limitation of the applicant’s rights under section 13.

The applicant originally held a positive notice and a blue card, but it was revoked upon the Department of Justice and Attorney-General being notified by the Queensland Police Service that he had been found to be in possession of 47 capsules of MDMA: at [2] - [4]. There was no conviction recorded but it met the requirements of ‘conviction’ for the purposes of the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [11]. The Department then decided to treat the applicant’s circumstances as an ‘exceptional case’ in which it would not be in the best interests of children to issue a working with children clearance, despite it not being a ‘serious offence’ and thus automatically requiring the issuance of a negative notice: at [9] - [12].

The Human Rights Act 2019 (Qld) was discussed in weighing up the applicant’s right to privacy and reputation against a child’s right to protection under s26(2): at [108] - [109]. The application originally submitted the denial of the blue card denies him his basic human right to work which is not an express right in the Human Rights Act 2019 (Qld), but was discussed under privacy and reputation, which had been noted might encompass a right to work; at [108]. The Tribunal however considered the welfare and interests of children as paramount, one of which all other considerations must yield, and taking into account the importance of preserving this human right and the purpose behind limiting the applicant’s right to privacy and reputation, found it consistent with s13 of the Human Rights Act 2019 (Qld) to restrict the applicant’s right to privacy and reputation: at [110] - [111].

In making its decision, the Tribunal considered evidence such as the Life Story submitted by the applicant, a psychologist’s letter, steps taken to address the applicant’s triggers and substance abuse history, witness statements and the nature of his drug charge causing the disqualification of his blue card. The Tribunal was unsatisfied with the steps the applicant has taken and his understanding of his conduct, and found there to be an exceptional case and so affirmed the decision from the Department of Justice and Attorney-General to issue the applicant with a negative notice: at [112] - [116].

Visit the judgment: YM v Director-General, Department of Justice and Attorney-General [2021] QCAT 224