Items

• Vale v Queensland Racing Integrity Commission [2021] QCAT 438
  This matter involved a horse trainer, Vale, who committed acts of physical violence and threats in breach of the Australian Rules of Racing. Citing the Human Rights Act 2019 (Qld), the Tribunal considered Mr Vale’s human rights, including his right to freedom of expression (section 21) and his right to not have his reputation unlawfully attacked (section 25(b)). The Tribunal was satisfied in the circumstances that the limitation on these rights was consistent with the proper purpose of maintaining public confidence in Queensland’s racing industry and upholding the integrity of all persons involved with racing.
• TWE v Director-General, Department of Justice and Attorney-General [2021] QCAT 121
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, TWE. The decision was made 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. TWE, an Indigenous woman, previously held a blue card from 2010 to 2013 and from 2017 to 2018, and sought a new blue card to continue her work in child-related employment. A negative notice was issued on the basis of TWE’s conviction for 44 charges relating to the supply of a dangerous drug, cannabis. There was also evidence of TWE and her children being subject to domestic violence by the father of her children, and it was shown that TWE had acted protectively of her children and was no longer in a relationship with the father of her children: at [36]. As she had not been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to TWE unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. The Tribunal confirmed the respondent’s decision to issue a negative notice, noting that applicant had not ‘developed sufficient insight into the effects of her drug-related conduct’ and that ‘her continuing beliefs…demonstrate an absence of insight and clearly show a lack of understanding, empathy and compassion for children’: at [129] and [134]. In making this decision, the Tribunal stated that it had given proper consideration to relevant human rights under the Human Rights Act 2019 (Qld) and acted in a way that was compatible with human rights, however, no particular human rights were cited: at [130]. The Tribunal’s interpretation of s 58 of the Human Rights Act 2019 (Qld) was that ‘the Tribunal must act reasonably in the face of a statutory provision such as that containing the paramount principle’: at [130]. The Tribunal found that the best interests of children, the ‘paramount principle’, included the ‘right to be protected from exposure to drug involvement’ and to be cared for by people who are not under the influence of drugs that could ‘impair their ability to promote and protect children’s best interests’: at [135]. The Tribunal held that this ‘paramount principle’ justified the limitation upon the human rights of the applicant: at [131].
• Turay v Workers’ Compensation Regulator (No 2) [2023] ICQ 019
  The case concerned two applications and a second appeal of a decision by the Queensland Industrial Relations Commission regarding a claim for worker’s compensation after termination of employment as a registered nurse. The claim had been made some sixteen months late due to the appellant having suffered incapacitating mental health issues. The appellant had submitted that her human rights were being violated by a denial of a right to appeal. The Court considered that international conventions did not form a part of the domestic law of Queensland and that the appellant’s reliance on them was misplaced. Accordingly, the Human Rights Act 2019 (Qld) did not recognise a human right to an appeal. The appellant had already had her appeal; the right would only be relevant to the interpretation of the Industrial Relations Act 2016 (Qld); the legislation was clear and could not be construed consistently with any right to reopen a concluded appeal. The Court ultimately struck out the appeal.
• TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297
  The Court considered it was unnecessary to decide whether the Human Rights Act 2019 (Qld) was engaged but that there was a strong argument it was not engaged: at [166]. This is because the Human Rights Act 2019 (Qld) does not affect proceedings commenced or concluded before its commencement under section 108(2)(a): at [167]. Section 108(2)(a) was considered clear, making it unnecessary to refer to the Explanatory Notes to confirm its effect: at [167]. The Court observed that the identification of the relevant proceeding was relevant because section 108(2)(a) of Human Rights Act 2019 (Qld) would ‘not affect’ the criminal proceeding that started before the Act commenced, while the application for leave under section 14H that was commenced in 2020 would be unaffected by s 108(2)(a): at [168]. This was not ultimately determined. The Court considered that the provisions in Division 2A, including s 14H, make apparent that the law seeks to balance rights and interests, which include privacy, fair trial and cross-examination: at [173]. The enactment of Division 2A was considered to have deliberately altered the balance previously been struck by the law in facilitating compulsory production of protected counselling communications and in the ability of an accused person to have those communications disclosed, inspected or copied and to use the protected counselling communication, with its purpose confirmed by the Explanatory Notes to the 2016 Bill and the public interest considerations stated in section 14H(2): at [174]. The Court discussed that the purpose is to balance interests in preserving the confidentiality of such communications against the rights of an accused person to a fair trial, with the legislation not containing an absolute prohibition on an accused person gaining access to protected counselling communications but rather balancing rights and interests: at [177]. The Court considered that, if the interpretive task was affected by section 48 of the Human Rights Act 2019 (Qld), then it would involve a recognition that the relevant provisions balance competing human rights and competing public interests in a way that is compatible with human rights, and that the judge would also be required to apply ordinary principles of statutory interpretation: at [179] Section 48 and principles of statutory interpretation were considered not to support an interpretation which compels a judge hearing an application for leave under section 14H to consider the contents of the protected counselling communications in respect of which access was sought: at [180]. Such an interpretation would effectively require words to be read into s 14H or elsewhere in Division 2A which was unnecessary, as the purpose of the legislation can be achieved without reading those words in, and that to do so it would exceed the interpretative function of the court: at [181]. Therefore, an interpretation that allows, rather than compels, a judge hearing an application for leave to consider the contents of the protected counselling communications is compatible with the human rights of counselled persons, accused persons and other individuals whose human rights are protected by the Human Rights Act 2019 (Qld): at [182]. It was concluded that the judge did not err in not referring to the Human Rights Act 2019 (Qld) as no reliance was placed upon it and, even in relying upon it, the judge would not have been required to adopt a different interpretation: at [183].
• TRE v Director-General, Department of Justice and Attorney-General [2020] QCAT 306
  This case concerned a self-represented applicant, TRE, who applied for a blue card notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld). Due to her criminal history, the respondent proposed to issue a negative blue card notice and invited TRE to ‘make submissions about whether or not there was an exceptional case’: at [1]-[2]. TRE was issued a negative notice in August 2019 and sought review of the decision, arguing it was not an ‘exceptional case’ within the meaning of section 221(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [4]. The Tribunal noted that a positive notice must be issued unless the Tribunal is satisfied that ‘it is an exceptional case in which it would not be in the best interests of children for a positive notice to be issued’ to TRE: at [10]. In making this decision, the Tribunal noted that it was required to ‘stand in the shoes of the decision maker’ and undertake the review ‘under the principle that the welfare and the best interests of the child are paramount’: at [7]. With regards to the Human Rights Act 2019 (Qld), specifically, the Tribunal noted that it was ‘acting in an administrative capacity’ and, therefore, was a ‘public entity’ that had to ‘interpret statutory provisions in a way that is compatible with human rights’ and ‘conduct itself in accordance’ with section 58: at [68]. There was no substantive engagement with the Human Rights Act 2019 (Qld), however, the Tribunal noted that it considered TRE’s right to a fair hearing and her right not to be tried or punished more than once. In addition, the right of every child ‘to protection that is needed by the child, and is in the child’s best interests, because of being a child’ pursuant to section 26(2) of the Human Rights Act 2019 (Qld) was also noted. The Tribunal was ‘satisfied’ that its decision was ‘compatible with human rights’ and, if there were any limitations on the relevant human rights, those limitations were reasonable and justifiable in accordance with section 13: at [73]. The Tribunal further noted that as the hearing was held in private, it acted in compatibility with section 31 of the Human Rights Act 2019 (Qld): at [72]. Ultimately, the Tribunal held that TRE’s case ‘is not an exceptional case in which it would not be in the best interests of children for a positive notice to be issued’: at [75].
• TPO [2022] QCAT 232
  This matter concerned an application for an interim order for a guardian and administrator for TPO, brought by his daughter DTA, on the basis of alleged misconduct by WFA, TPO’s de facto partner and power of attorney. The Tribunal acknowledged that the making or not making of an interim order can affect an adult’s rights, particularly freedom of movement (s 19) and protection against degrading treatment if adequate care cannot be provided in alternate accommodation (s 17). There was no substantive discussion in relation to human rights. The Tribunal was not satisfied there was an immediate risk of harm to TPO to justify an interim order, and thus dismissed DTA’s interim application.
• TJS v Director General, Department of Justice and Attorney-General [2022] QCAT 214
  The matter concerned an application for a review of the respondent’s decision to issue a negative notice in respect of TJS’s application for a blue card. The Tribunal did not consider human rights in any detail but observed: As required by the Human Rights Act 2019 (Qld), I have had regard to TJS’s human rights, including the right to a fair hearing and not to be punished more than once for her offences, however, in the circumstances I am satisfied that any limitation on these rights is consistent with the proper purpose of promoting and protecting the human rights, interests and wellbeing of children[40] and with the paramount nature of those interests: at [117]
• Thornton v State of Queensland (Queensland Health) [2022] QIRC 393
  The respondent sought an order dismissing the claim filed by the applicant on the basis that, inter alia, the claim was made out of time, while the applicant sought an order that time be extended to the date of the filing of the claim. The Human Rights Act 2019 (Qld) did not apply to the Commission’s consideration of the application to extend time on the basis that it was not acting in an administrative capacity. The application was dismissed.
• Thorley v State of Queensland (Department of Education) [2022] QIRC 133
  The appellant, a teacher, appealed against the Department of Education’s decision to suspend her without pay due to her failure to comply with a COVID-19 vaccination direction. The appellant argued that the decision made ‘an unjustifiable incursion’ on her human rights, and that the decision maker had no authority to ‘overrule’ section 4 of the Covid-19 Emergency Response Act (2020) (Qld) which states that it does not override the Human Rights Act 2019 (Qld). The decision maker concluded that the respondent appropriately considered the appellant's human rights and potential limits which were ultimately justifiable, but there was no substantive consideration of human rights.
• Thomson v State of Queensland (Department of Education) [2022] QIRC 402
  This matter concerned the appeal of the respondent’s decision to continue the appellant’s suspension without remuneration for a further six months. The Commissioner considered the statutory requirements binding the respondent and found that respondent did not comply with all requirements. The appellant referred to their right to freedom of movement (section 19), right to take part in public life (section 23) and their right to privacy and reputation (section 25) under the Human Rights Act 2019 (Qld). The respondent asserted that any limitation to these human rights caused by their decision was reasonable and demonstrably justifiable when balancing the rights of others including staff and student safety and the broader interests of the public. The Commission did not engage in any substantive discussion in respect of the appellant’s human rights.
• The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144
  The Applicant sought to terminate the Respondent’s State Tenancy Agreement on the basis of the respondent’s ‘objectionable behaviour.’ This circumstance fell within an exception of the moratorium on residential tenancy evictions prescribed by s 8 of the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld). The Applicant had received ‘over seventy complaints from twenty neighbours and approximately one hundred and forty-eight videos of objectionable behaviour of the Respondent’ which included reports of aggressive and abusive behaviour, loud and disruptive behaviour and destruction of property: at [27], [37]. The respondent suffered from serious mental illness: at [97]. She was self-represented, having received some advice and assistance from Tenants Queensland Inc (QSTARS). The Tribunal found that it ‘would err in law if it failed to consider what human rights of litigant/s and any other human beings are relevant and engaged, and whether they are lawfully limited and qualified or rendered subordinate to the rights of others by a decision of the Tribunal’: at [152]. The Applicant is also a public entity within the meaning of section 9 of the Human Rights Act 2019 (Qld) and is required to make decisions in a way that is compatible with human rights: at [158]. Firstly, the Tribunal considered the freedom to choose where to live contained in section 19 of the Human Rights Act 2019 (Qld). The Tribunal determined that this right was reasonably limited by the State’s resources in the supply and demand of public housing. Here, the Respondent’s freedom to choose where to live was held to be reasonably limited, on the basis that her objectionable behaviour warranted termination of her lease. Second, the Tribunal considered the right not to be treated in a cruel, inhuman or degrading way, contained in section 17 of the Human Rights Act 2019 (Qld). The Tribunal held this right was ‘sufficiently broad so as to include forcible eviction as an example of what might subjectively be considered cruel, inhuman or degrading treatment’: at [166]. However, the Tribunal determined that the right was ‘reasonably limited in circumstances where [the forcible eviction] is necessary because a tenant has failed to leave in defiance of a Tribunal order ending a residential tenancy’: at [167] Third, the Tribunal considered that the freedom of expression contained in section 21 of the Human Rights Act 2019 (Qld) is limited by the ‘reasonably and lawfully limited’ by the requirement ‘that the expression by words and/or conduct is not objectionable’ and ‘does not seriously impact’ the rights of others: at [171]. Lastly, the Tribunal considered the right of a person to not have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, pursuant to section 25 of the Human Rights Act 2019 (Qld). The Tribunal determined that the right not to have one’s privacy, family, home or reputation interfered with ‘is reasonably and lawfully limited where [the tenant’s] behaviour warrants the interference and the response is not arbitrary’: at [172]. Similarly, the Tribunal held that the right to protection of the family unit ‘is reasonably and lawfully limited where the behaviour of a tenant is so objectionable as to warrant the termination of a tenancy… notwithstanding its effect on the family’: at [173]. The Tribunal also considered the rights of the respondent’s 20 year old son. The Tribunal noted that if the tenancy was terminated, the respondent’s son would also lose his housing, and there was a chance that the respondent and her son would be ‘split up’: at [191]. Yet, the Tribunal found that the impact on his human rights was ‘neither arbitrary, nor disproportionate, nor unlawful’ but rather was ‘the inevitable consequence of the Respondent’s objectionable behaviour which rebounds on both mother and son’: at [192]. In coming to this conclusion, the Tribunal cited the analysis of section 7 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (identically worded to section 13 of the Human Rights Act 2019 (Qld)) by Member Kirmos in Director of Housing v Ronan (Residential Tenancies) [2013] VCAT 2050 who said at [30]: ‘While the family and in particular children are protected by the Charter, it does not mean that families or children can never be removed from public housing by legal means, where valid reasons to do so arise. It would otherwise bring about the absurd situation where public tenants, depending on their circumstances, might never be required to vacate, no matter what has arisen.’ Here, the Tribunal considered that ‘it would be an absurd outcome in the present case if, by asserting her human rights without regard for her human obligations, the Respondent could never be required to vacate the property under any circumstances’: at [195]. Therefore, the Tribunal ordered that the Respondent’s tenancy be terminated with effect from 24 May 2020.
• The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54
  This case concerned donations in relation to the Australian Institute for Progress (AIP). The AIP Board is a research body largely connected to the Liberal National Party and ‘ideologically centre-right': at [1]. In support of advocating for a particular political party and conducting political research, the AIP intended to accept donations from 'prohibited donors'. The Commission advised that, as AIP was a ‘third party’ within the meaning of the Electoral Act 1992 (Qld), it was not lawful for prohibited donors to make gifts to the AIP. The AIP sought declaratory relief, arguing, inter alia, that s 48 of the Human Rights Act 2019 (Qld) meant that the provisions of the Electoral Act 1992 (Qld) ‘must be interpreted, to the extent possible that is consistent with their purpose, in a way that is “compatible with human rights”’: at [117]. First, Applegarth J found that the relevant provisions of the Electoral Act limited the rights of freedom of expression and the right to take part in public life by prohibiting property developers from making certain donations to political parties: at [119]. Applegarth J then considered whether this limitation was reasonable and justifiable in accordance with the proportionality requirement of s 13 of the Human Rights Act 2019 (Qld). His Honour considered that the purpose of the provisions of the Electoral Act 1992 (Qld) is to reduce ‘the risk of actual or perceived corruption related to developer donations in State elections and improving transparency and accountability in State elections and State government’: at [122]-[123]. This purpose ‘is consistent with “a free and democratic society based on human dignity, equality and freedom”’ and is important because it enhances the democratic system: at [124], [127]. His Honour found that whilst preserving the rights contained in ss 21 and 23 of the Human Rights Act 2019 (Qld) was important, the limitation in this case was proportionate and reasonable: at [128], [133].
• The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors (No 2) [2020] QSC 174
  In these proceedings, the Australian Institute for Progress sought an order that the Electoral Commission of Queensland pay their costs despite the Institute being unsuccessful in their application for declaratory relief. The case summary for the original application can be found here. The Australian Institute for Progress argued that this case warranted departure from the general rule that costs follow the event because, amongst other reasons, ‘it was public interest litigation providing useful commentary on the Human Rights Act 2019 (Qld) and the Electoral Act 1992 (Qld)’: at [6]. Applegarth J held that cases which involve ‘the liberty of individuals and raises matters of public importance may warrant a departure, or partial departure, from the usual rule’, but the mere fact that proceedings may concern human rights is not sufficient: at [46]. His Honour found that ‘[i]f the decision provided any useful commentary on the HRA [Human Rights Act 2019 (Qld)], then that was not of the AIP’s [Australian Institute for Progress] making. It expressly did not rely upon the HRA’: at [44]. Whilst the proceeding may have provided some general clarification of the provisions of the Electoral Act 1992 (Qld), this was not a sufficient reason to depart from the ordinary rule that costs follow the event and the Applicant was ordered to pay the Respondent’s costs on a standard basis: at [46]-[49].
• Terrace-Haven Pty Ltd [2022] QCAT 23
  The case concerned an application for an exemption from the Anti-Discrimination Act 1991 (Qld) under section 113 of that Act to allow Terrace-Haven to continue to operate a retirement village with an age restriction for residents of the retirement village for a period of five years. The Tribunal considered that the combined effect of sections 8, 13 and 48 of the Human Rights Act 2019 (Qld) means an interpretation and application of section 113 of the Anti-Discrimination Act 1991 (Qld) ‘which has the effect of limiting a human right, is “compatible with human rights” if it is reasonable and demonstrably justifiable in accordance with the factors contained in section 13:’ at [70]. The factors contained in section 13(2)(a)-(g) are not exhaustive, but do provide guidance on whether the relevant limit on the human right in section 15 is both reasonable and justifiable: at [71]. The Boeing criteria (1), apart from the first criterion of necessity for the exemption, can be considered to fall within the scope of the factors contained in s 13(2), and it may be that in considering an application for an exemption under section 113, since the commencement of the Human Rights Act 2019 (Qld), the s 13 factors have replaced or subsumed the Boeing criteria as an application for an exemption under s 113 almost inevitably contemplates that the proposed action involves some discrimination under the Anti-Discrimination Act 1991 (Qld) and therefore a limitation to the human right of equal treatment under s 15 of the Human Rights Act 2019 (Qld): at [72]. Under section 13(2)(a), the human right potentially limited by section 113 in this case is the right of equality before the law in section 15 of the Human Rights Act 2019 (Qld), which is ‘a human right of obvious importance and not easily to be traded away:’ at [73]. The purpose of the limitation of the human right, which is the effect of a successful application under section 113, is to grant an exemption from what would otherwise be unlawful discrimination under the Anti-Discrimination Act 1991 (Qld): at [74]. The application of section 113 depends on the exercise of the discretion of the Tribunal: at [74]. The Tribunal considered that much will depend on the purpose of the exemption applied for, which in this case is to allow Terrace- Haven to restrict accommodation at the Complex to people over the age of 50: at [74]. Terrace-Haven wished to seek the exemption so that the community at the Complex comprising residents all over the age of 50 can continue to live with similarly-aged and similarly-minded people; and to avoid the financial burdens under the Retirement Villages Act 1999 (Qld), with the obligations under the buyback provisions, and the new administrative requirements, in a community in which certainly some of the residents cannot afford those additional financial burdens, and in which many receive income only from the aged pension: at [75]. Section 13(1) and section 13(2)(b) include the concepts of human dignity and freedom which, on the facts of this application, find recognition in the freedom of the residents of the Complex to live as they choose, with similarly-aged and similarly- minded people: at [76]. The concept of dignity is also enhanced in allowing people to live as they choose: at [76]. These concepts and values ‘have special weight in this case, where there are elderly residents, many of whom have limited financial means, resulting in restriction to make other choices about where to live:’ at [76]. In this case, part of the balancing process, which is the subject of section 13(2), is a balance between some limitation on the right to equality before the law contained in section 15 of the Human Rights Act 2019 (Qld) with promotion of the values of dignity and freedom in section 13: at [77]. On application of section 13(2)(c), there is a direct relationship between the limitation of the human right to equality before the law and the purpose of the limitation in this case, which is to continue an age restriction on accommodation in the Complex: at [78]. The age restriction cannot be continued without an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) if Terrace-Haven deregisters as a retirement village under the Retirement Villages Act 1999 (Qld): at [78]. No exemption from the buyback scheme existed and even if it did it would not relieve the residents of the cost of the other administrative requirements introduced into the Retirement Villages Act 1999 (Qld): at [79]. Moreover, the argument that the purpose of providing a safe environment that appeals to older people can be achieved through alternate legitimate means such as the types and style of dwelling, the provision of facilities and activities, and targeted marketing would have little application where, in this case, the units were constructed many years ago and any marketing would be limited to only those units which need to be sold because of the individual circumstances of the aged residents: at [80]. Therefore, the Tribunal was satisfied there is no less restrictive and reasonably available way to achieve the purpose: at [79]. The Tribunal considered that the importance of the purpose of the limitation of the human right to equal treatment is to enable the residents of the Complex to live as they have done for many years under the Retirement Villages Act 1999 (Qld) as it was prior to the recent amendments: at [81]. In this case, the purpose of the exemption will help the residents achieve the values of human dignity and freedom, which in the particular circumstances of this case, should be given considerable weight: at [81]. The importance of the limitation to allow exemptions to the age discrimination ground under the Anti-Discrimination Act 1991 (Qld) is something that has, in effect, been recognised by the past decisions of the Tribunal, as well as the reasonableness of the limitation of application of the Anti-Discrimination Act 1991 (Qld). This will be relevant for the purposes of the ‘reasonable limits’ on a human right for that expression in section 13(1) of the Anti-Discrimination Act 1991 (Qld), and of allowing the continuation of an age restriction on accommodation for older people, where that limitation has been in existence for an appreciable period of time: at [82]. Section 13(2)(f) requires an assessment of the importance of preserving the human right in section 15 of the Human Rights Act 2019 (Qld), taking into account the nature and extent of the limitation on the human right: at [83]. The exemption under s 113 applied for in this case is limited to Terrace-Haven, which consists of only 44 units, so the limitation of the human rights of equality under the law will only be impacted in a small way by any exemption granted under sections 113: at [83]. Grant of an exemption to the Anti-Discrimination Act 1991 (Qld) to allow an age restriction limited to the Complex would amount to a confined limitation on the right to equality before the law contained in section 15 of the Human Rights Act 2019 (Qld), against the importance of the purpose of the application, which ‘will allow similarly-aged and similarly-minded people to enjoy the human dignity and freedom of choice they have made to live at the Complex with an age restriction that has existed for many years:’ at [84]. Thus, the Tribunal considered that the age limitation applied for by Terrace-Haven under section 113 could be reasonably justified in a free and democratic society based on human dignity, equality and freedom under section 13(1): at [85]. [1] Exemption application re: Boeing Australia Holdings Pty Limited and others [2003] QADT 21
• TD v Director-General, Department of Justice and Attorney-General [2021] QCAT 138
  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].
• TCN v Public Guardian & anor [2022] QCATA 158
  The case concerned an appeal of a decision which included an application for notices to produce documents where they may be relevant to capacity, subsequent to the making of an enduring power of attorney appointing the respondent as attorney for the application. The Member at first instance considered Dr Botha’s records were relevant and ‘in a different category’ but that, nevertheless, obtaining the records which would become publicly available would prima facie be a breach of her right to privacy protected under the Human Rights Act 2019 (Qld). The Tribunal determined it was sufficiently clear from the Tribunal’s reasons that it was satisfied that it had all the relevant information and material to properly consider and determine the applications before it without any substantive discussion of human rights issues.
• TCD v Director General Department of Justice and Attorney-General [2023] QCAT 277
  This case concerned an application for review of the respondent’s decision to issue a negative notice (that is, deny the applicant a Blue Card) under the Working with Children (Risk Management and Screening) Act 2000 (WWC Act). Member Davies noted a number of competing rights protected by the Human Rights Act 2019 (Qld) including the applicant’s right to privacy and reputation (section 25) and right to take part in public life (section 23), as well as right of every child to the protection that is needed by the child (section 26). Member Davis ‘narrowly’ came to the view that the applicant should be issued a Blue Card, but did not otherwise explain what consideration or weight was given to each of those competing rights in reaching that view.
• Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249
  This case concerned a complaint made on behalf of a five-year-old boy, Cyrus Taniela, that he had been subjected to discrimination on the basis of race and sex. The matter arose from a decision made by Cyrus’s school, the Australian Christian College Moreton Ltd, and its principal, Gary Underwood, that Cyrus was required to cut his hair before the commencement of the second school semester of 2020 or be ‘unenrolled’. Cyrus was of Cook Island and Niuean descent and in accordance with a Cook Island custom for young boys, his hair had not been cut since birth so he could take part in a hair cutting ceremony around age seven or eight. This ceremony ‘is a male rite-of-passage that symbolises the boy’s transition to manhood’ and was planned to take place on Cyrus’s seventh birthday in September 2021 in Sydney: at [3], [9]. The applicant, Cyrus’s mother, argued that the school’s position amounted to unlawful discrimination under section 39 of the Anti-Discrimination Act 1991 (Qld) on the basis of race and sex. An argument of direct discrimination was made on the basis that ‘the respondents treated or proposed to treat Cyrus less favourably than other students at the school and the treatment was wholly or substantially for the reason of his race and associated characteristics’: at [56]. A argument of indirect discrimination was also made on the basis that the respondents imposed a requirement that Cyrus have short hair, which Cyrus could not comply with on the basis of his race and that a higher proportion of students not of Cook Islands or Niuean heritage could comply with: at [57]. This requirement was not reasonable because, amongst other reasons, ‘it ignores the fact that Cyrus’s practice of wearing his hair tied up in a bun keeps the hair neat and above the collar, in a manner that the school considers acceptable for female students’: at [57]. The applicant also claimed that a Facebook post made by Mr. Underwood amounted to victimisation within the meaning of section 130(1) of the Anti-Discrimination Act 1991 (Qld). This Facebook post ‘suggested, among other things, that Cyrus and his family did not respect the school’s policies, procedures and guidelines or the decision of the principal’ and ‘[t]he post was public, interactive, a number of people viewed and interacted with the post before it was deleted and it has since been replicated in media reporting’: at [58]. The Tribunal found both direct and indirect discrimination on the basis of race: at [105], [130]. However, the Tribunal did not make a finding of discrimination on the basis of sex, as the school’s uniform policy had requirements in respect of hairstyles for both boys and girls and ‘the uniform policy in relation to hair does not treat boys less favourably than girls’: at [150]. The Tribunal also found that the Facebook post did not amount to victimisation within the meaning of section 130(1) of the Anti-Discrimination Act 1991 (Qld) because it was accepted ‘that Mr. Underwood made the post because of, and in response to, negative media attention and public reaction as a result of its position in relation to Cyrus’s hair and was intended to clarify the school’s point of view on matters that had been raised in the media and the negative public reaction to those publications’ and that the post was not to the detriment of Cyrus: at [154]-[156]. The applicant also argued that several human rights provided for in the Human Rights Act 2019 (Qld) were relevant to the discrimination experienced by Cyrus: recognition and equality before the law (section 15); freedom of thought, conscience, religion and belief (section 20); the rights of children (section 26(2)); cultural rights (section 27); and the right to education (section 36). The Tribunal did not discuss the Human Rights Act 2019 (Qld), apart from commenting that the finding of discrimination in this case was consistent with the plain meaning of the Anti-Discrimination Act 1991 (Qld). The Tribunal noted that the Anti-Discrimination Act 1991 (Qld) should be interpreted consistently with human rights (section 48) and that this section ‘encourages such an outcome,’ but that the same findings would have been made regardless: at [153]. No award of compensation was made by the Tribunal, but an order for a private written apology by the respondents to Cyrus was made: at [160]-[162]. Further, the Tribunal made an order that ‘insofar as the uniform policy may form part of a contract, it is void insofar as it purports to impose an obligation on Cyrus in relation to the cutting of his hair’: at [164].
• Tamarin Pty Ltd & Otmoor Pty Ltd as Trustee v Wicks [2021] QCATA 146
  This matter concerned a minor civil dispute claim by a commercial lessor against the directors of the lessee company for various costs including rental arrears. The relevant issue on appeal was whether a decision by an adjudicator not to call for submissions regarding the issue of jurisdiction was a breach of natural justice. In a general discussion about the importance of access to courts and tribunals, the Tribunal cited the right to a fair hearing by an independent and impartial court or tribunal provided by section 31 of the Human Rights Act 2019 (Qld). Ultimately, although leave to appeal was granted, this appeal was dismissed as any submissions would have been futile due to the limits of the court’s jurisdiction. The Tribunal did however hold that in light of the right to a fair hearing and the importance of the question of jurisdiction, care should be taken when dismissing a claim for want of jurisdiction.
• Talbot v State of Queensland (Department of Education) [2023] QIRC 010
  This matter concerned an application for a review of a substitute decision made by the respondent after a legislated deadline which offered to convert the appellant’s employment from a temporary role to a full-time position in central Queensland. The primary issue for consideration was whether this substitute decision was a valid exercise of the respondent’s powers. The appellant referenced the right to protection of families and children under section 26 of the Human Rights Act 2019 (Qld) and argued that the respondent had not properly considered this right in making the substitute decision. The respondent referred to the requirement under section 48 of the Human Rights Act 2019 (Qld) that required statutory provisions to be interpreted in a way that was compatible with human rights. The Commission did not discuss human rights in determining that the respondent's attempt to repeal the deemed decision and replace it with the substitute decision was an invalid use of its discretion.
• TAJ (costs) [2023] QCAT 133
  This case related to a decision about costs in a remitted hearing. In considering whether the Tribunal was bound to follow the doctrine of precedent, Member Gordon was prompted to consider whether the Tribunal was exercising judicial functions or administrative functions. The Tribunal considered that where a tribunal acts in an administrative capacity, it is less likely that the doctrine of precedent would apply. Member Gordon noted that the Human Rights Act 2019 (Qld) had prompted the Tribunal to consider when it is acting in an administrative capacity rather than judicial capacity but made no further reference to the legislation.
• Tafao v State of Queensland [2020] QCATA 76
  This case was brought by a former prisoner, Ms. Tafao (the applicant), who is a transgender woman. It concerned an application for leave to appeal and appeal of a decision made by the Tribunal to dismiss the applicant’s complaint ‘that the respondents had contravened the Anti-Discrimination Act 1991 (Qld)…by unlawfully discriminating against her on the basis of gender identity while she was incarcerated in a male, high security, prison’: at [1]. The second respondent was Serco Australia Pty Ltd (the company that operates the South Queensland Correctional Centre) and Mark Walters (a director of the South Queensland Correctional Centre). The applicant argued that she was discriminated against by prison officers, particularly due to their ‘insistence on referring to her by male pronouns and by the imposition of behavior plans’ which she argued were ‘aimed at mitigating her transgendered behavior and which prevented her from “being who [she was]”’: at [2]. After discussing the application of the Anti-Discrimination Act 1991 (Qld), the Tribunal observed that the Human Rights Act 2019 (Qld) was not necessary to consider because it ‘does not apply to an act or decision made by a public entity before its commencement, which was 1 January 2020’: at [18]. The Tribunal granted the leave to appeal, allowed the appeal, and set the Tribunal’s original decision aside. It was held that in respect of the use of male pronouns to refer to Ms. Tafao, the respondents were ‘jointly and severally liable for unlawful indirect discrimination’ pursuant to section 101 of the Anti-Discrimination Act 1991 (Qld) and ordered the respondents to make a private apology: at [180].
• Tadeo v State of Queensland (Department of Education) [2022] QIRC 177
  The appellant was a technical officer at Redlynch State College whose employment was suspended without pay due to her failure to provide evidence of receiving a COVID-19 vaccine in accordance with the Department of Education Employment Direction 1/21. She submitted that her human rights had been breached, namely under ss 15, 17, 18, 20 and 21 of the Human Rights Act 2019 (Qld). The respondent submitted that in making their decision they had given consideration to the appellant’s human rights, ultimately concluding to suspend her employment given the high level of risk to the health and wellbeing of students, families, department workers, and other stakeholders. The Tribunal agreed that the respondent had given sufficient consideration to the appellant’s human rights, and as such their decision was not contrary to the Human Rights Act 2019 (Qld).
• Surtie Enterprises Pty Ltd T/A Greenbank Gardens Manufactured Home Park [2023] QCAT 228
  The application was brought before the Tribunal for the renewal of an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) for the purposes of operating a manufactured home park for people over 50 years of age. The effect of the exemption sought would be to allow the park owner to discriminate based on age for accommodation, goods and services and in the disposition of land. The Tribunal acknowledged that as it was acting in an administrative capacity, it was a public entity such that s 58 of the Human Rights Act 2019 (Qld) would apply. Accordingly, the Tribunal considered human rights that may be affected by the renewal of the exemption and whether the decision would be compatible with human rights. It was accepted that providing an environment to appeal to people over 50 could be achieved through an alternate legitimate means. The placing of an age restriction of 50 years old and excluding those of any age below that threshold was recognised to be disproportionate to the purpose of providing affordable accommodation for elderly retirees. Accordingly, the Tribunal considered that the age restriction was not a legitimate and proportionate limitation on the right to recognition and equality before the law (section 15) pursuant to the Human Rights Act 2019 (Qld). The Tribunal then considered whether there was any reasonable limitation on property rights (section 24) under the Human Rights Act 2019 (Qld). ‘Property rights’ were recognised to include the right to own property and not be exposed to substantial restrictions on a person’s ability to derive profits from their property. A deprivation of such right was considered to include a substantial restriction on the enjoyment of exclusive possession or a person’s ability to dispose of, destroy, or transfer the property or the capacity to derive profits from it but not a mere diminution in the value of real property: at [107]. The exemption would operate to prevent a person under 50 from owning a home in the manufactured home park, which was considered to limit their protected right to own property as referred to in s 24(1) of the Human Rights Act 2019 (Qld) on a basis of which the Anti-Discrimination Act 1991 (Qld) regarded as unlawful discrimination: at [100]. Moreover, the Tribunal considered that each home in the park would be the ‘property’ of each owner, and their respective interests in their home would include the ownership use, enjoyment and right to disposal of the property. If granted, the exemption would limit the property rights of people, preventing some from owning a home in the park, and the property rights of people who have homes in the park: at [113]. This limitation was recognised to be not reasonable and demonstrably justified, in accordance with s 13 of the Human Rights Act 2019 (Qld): at [113]. The Tribunal considered that the policy objectives purported to justify the exemption were not limitations that were reasonable and demonstrably justified in accordance with s 13 of the Human Rights Act 2019 (Qld): at [114]. An exemption that would limit the present residents’ ability to freely dispose of their homes at a market value that was not artificially diminished, was not a legitimate and proportionate limitation on the human right which it affected: at [115]. The Tribunal ultimately decided not to grant a renewal.
• Sunshine Coast Regional Council [No 2] [2021] QCAT 439
  The proposed policy the applicant was seeking to implement would introduce a new category of permit for commercial activities that require access to community land for the purpose of delivering Aboriginal and Torres Strait Islander cultural tourism experiences: at [19]. Considering the operation of such a policy would discriminate against people who are not Aboriginal or Torres Islander, the applicant applied to the Tribunal for an exemption to the Anti-Discrimination Act 1991 (Qld). The Tribunal accepted that section 48 of the Human Rights Act 2019 (Qld) applied when considering an application under s 113 of the Anti-Discrimination Act 1991 (Qld), such that the statutory provisions needed to be interpreted in a way that is consistent with their purpose and compatible with human rights: at [26]. The Tribunal went on further to identify and engage the right to recognition and equality before the law (section 15) due to its connection to the Anti-Discrimination Act 1991 (Qld): at [30] - [31]. Specific attention was paid towards s15(5), which excepts ‘measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination’ from constituting discrimination, and meant that the balancing test within s13 of the Human Rights Act 2019 (Qld) was not required: at [32]. However, the Tribunal did continue on to apply s 13 and consider whether the potential limit was in these circumstances reasonable and justifiable; at [45] - [47]. The Tribunal balanced this limitation of s 15 with the promotion of the cultural rights of Aboriginal and Torres Strait Islander peoples in s 28 of the Human Rights Act 2019 (Qld): at [51] - [52]. It acknowledged a direct relationship between the limitation of the human right to equality before the law and the promotion of Indigenous culture in relation to s13(2)(c): at [53]. The Tribunal went on to apply the remaining subsections of s 13 to the facts of the case and the application of the Anti-Discrimination Act 1991 (Qld): at [53]-[59]. The Tribunal dismissed the application on the basis it was not necessary to grant an exemption in the circumstances as it was already possible for the proposed policy to be implemented without unlawful discrimination or a limitation of the human right to recognition and equality before the law under s15 of the Human Rights Act 2019 (Qld): at [61]-p63].