Items

• Stys v State of Queensland (Queensland Ambulance Service) [2022] QIRC 265
  This matter concerned an appeal brought against the Queensland Ambulance Service’s policy of mandatory COVID-19 vaccination. The Appellant submitted that, inter alia, her human rights had not been properly considered. Section 17 – the right to protection from torture and cruel, inhuman or degrading treatment – of the Human Rights Act 2019 (QLD) was explicitly raised by the Appellant: at [24]. The Respondent submitted that to the extent the Appellant’s human rights were impacted, those impacts were reasonably justified in light of the purpose of the Policy: at [26]. The Tribunal was satisfied that the Respondent’s initial consideration of the Appellant’s human rights was reasonable, and the limitations of her rights was justified in the circumstances pursuant to section 13 of the Human Rights Act 2019 (QLD). The appeal was dismissed.
• Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152
  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.
• Steinhardt v State of Queensland (Queensland Health) [2022] QIRC 111
  The case concerned an appeal against a rejection of the appellant’s application for an exemption, made on the grounds of a genuinely held religious belief, from the Queensland Health employee COVID-19 vaccination requirement: at [4]. The Commissioner acknowledged that the decision may engage or limit some of the appellant’s human rights and that the decision-maker had rightly decided that the limitation on human rights was necessary and there were no less restrictive means to achieve the directive’s purpose: at [15], [36]-[38]. Accordingly, the Commission held that the application for the exemption was rightly declined as the decision was fair and reasonable and the appeal was dismissed: at [39]-[40].
• ST v State of Queensland (Department of Education) [2023] QIRC 004
  In deciding an appeal against a decision to transfer a public service officer made pursuant to s194(1)(d) of the Public Service Act 2008 (Qld), the Commissioner addressed a contention that the decision-maker failed to give proper consideration to a number of human rights, as evidenced by a lack of any express reference to human rights in the transfer decision. Citing Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317, the Commissioner expressed a view that it was not always necessary for a decision-maker to write in great detail about the consideration of human rights particularly if the decision-maker has come to the conclusion that human rights are not interfered with: at [65]. The Commissioner rejected the lack of express reference to human rights as grounds rendering a decision unreasonable and, following that line of reasoning, determined there was no utility in returning the transfer decision to the decision-maker to reissue the transfer decision with an expanded explanation regarding the consideration of human rights: at [66]. The Commissioner did find the transfer decision was not reasonably open to the decision-maker, but for other reasons.
• ST v Director-General, Department of Justice and Attorney-General [2021] QCAT 337
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, ST. In ordering that the respondent’s decision be set aside the Tribunal noted that the applicant’s right to privacy (section 25), right to taking part in public life (section 23), right to protection of families and children (section 26), right to education (section 36), cultural rights (section 27) and cultural rights of Aboriginal and Torres Strait Islander peoples (section 28) were relevant, but did not substantively discuss these rights. The applicant had been issued a negative blue card notice on the basis that the applicant’s circumstances amounted to an exceptional case where the issuing of a positive notice would not be in the best interests of children: at [2]-[3]. The applicant had been charged in 2007 with possessing child exploitation material which would constitute as a ‘disqualifying offence’ but the charge was dismissed and thus considered ‘dealt with’ under s 221(1)(b)(iv) of the Working with Children (Risk Management and Screening) Act 2000: at [10]. The Tribunal noted that under the Human Rights Act 2019 (Qld), it was required to give proper consideration to any relevant human rights in making its decision, and noted that the applicant’s right to privacy (s 25), right to take part in public life (s 23), the right to education (s 36) and the applicant’s cultural rights including rights of Aboriginal and Torres Strait Islander peoples (ss 27-28) were relevant: at [20]. The Tribunal also raised the right to protection of children and families (s26): at [21]. The Tribunal concluded that its decision was compatible with human rights, but did not discuss these rights in any detail. The Tribunal set aside the respondent’s decision, finding that the applicant’s case was not an exceptional case where it would not be in the best interests of children to deny a blue card: at [103].
• ST v Director General, Department of Justice and Attorney General [2022] QCAT 1
  The Tribunal was required to consider whether the Applicant’s changed circumstances were sufficient to warrant the case as exceptional such that a negative notice should be issued. Charges were laid against the Applicant for breach of a domestic violence order, however evidence established that the charges were dropped when the allegations were proved to be false and otherwise lack evidentiary support. The Tribunal set aside the decision of the Respondent in finding that the case was exceptional such that the Applicant should continue to hold a positive notice. In reaching this decision, the Tribunal had regard to the Human Rights Act 2019 (Qld) and considered that neither the human rights of children nor the Applicant were affected or limited by this decision.
• SSJ v Director-General, Department of Justice and Attorney-General [2020] QCAT 252
  This case concerned an application for review of the issuing of a negative blue card notice. In April 2019, SSJ, the applicant, filed an application to the Queensland Civil and Administrative Tribunal to review Director-General, Department of Justice and Attorney-General (the respondent)’s ‘decision that the Applicant’s case was an “exceptional case”’ whereby it was not ‘in the best interests of children’ for the applicant to possess a positive notice and blue card: at [1]- [5]. The behaviour of SSJ in question related to a charge of public nuisance at age 17 and a breach of a Domestic Violence Order (‘DVO’). SSJ admitted to the court that his behaviour was ‘stupid’ and that his judgment was ‘impaired under the influence of alcohol’: at [21]. The breach of the DVO arose out of a difficult home situation and the court noted that SSJ has ‘learnt to better manage his anger, develop conflict management skills, learnt to step back and reflect on his decisions and learnt breathing exercises to make him a calmer person’: at [22]- [23]. The Tribunal further noted the steps SSJ has taken to improve himself and better manage his emotions, including making changes to his lifestyle and having a range of supports around him: at [29]- [34]. Taking into consideration all of the evidence, the Tribunal was of the view that SSJ had ‘taken the change given to him to rehabilitate his life’ and held that, on the balance of probabilities, SSJ’s case was not an “exceptional case” that would harm the welfare of children and young people: at [95], [104]. In relation to human rights, the Tribunal noted that it was acting in an administrative capacity and, therefore, was a ‘public entity’ for the purposes of the Human Rights Act 2019 (Qld) and had to make decisions compatible with human rights: at [109]- [110]. The Tribunal was satisfied on the facts and relevant legislation that it had given proper consideration to human rights, acted in a manner that was compatible with human rights, and interpreted provisions in a way that was compatible with human rights: at [111]. The Tribunal was also satisfied that there ‘where the Tribunal identified limits on rights, the Tribunal has determined whether any limits imposed are reasonable and justifiable in accordance with section 13 of the Human Rights Act’ at [112].
• SS v Office of Fair Trading [2023] QCAT 215
  The Appellant was a Security Officer and Crowd Controller registered under the Security Provider Act 1993 (Qld). His licence was suspended for the duration of criminal proceedings where it was alleged that he had, during the course of performing security patrols, instructed an intoxicated woman to enter his car whereupon he sexually assaulted her. The Appellant filed an application to stay the criminal proceedings against him, including on grounds that the decision maker, in deciding to suspend his licence, failed to consider his human rights. He argued that the suspension itself was a breach of his human rights and the presumption of innocence: at [22]. The Tribunal considered a suspension was a justifiable limitation of an individual’s human rights when balanced against matters of public importance, including the protection of the public and the preservation of faith of the community that persons who hold a Security Officer/Crowd Controller licence are appropriate persons to hold such a licence: at [24] - [25]. The stay application was dismissed.
• SS v Director-General, Department of Justice and Attorney-General [2021] QCAT 392
  An application for the review of a negative blue card notice was brought by a full-time truck driver. Member Taylor found that, as the applicant had been convicted of a serious offence in 2004, as defined in the Working with Children (Risk Management and Screening) Act 2000 (Qld), a negative notice must be issued unless an exceptional case exists in which it would not harm the best interests of children for a working with children clearance to be issued. The Tribunal found the applicant’s case was not ‘exceptional’ within the meaning of section 225 and confirmed the original decision. The Tribunal briefly mentioned the rights and protection of children (section 26(2)) under the Human Rights Act 2019 (Qld), but there was no in-depth discussion as a human rights argument was not made by the applicant.
• SQH v Scott [2022] QSC 16
  The appellant sought leave to appeal a decision of the respondent that the applicant did not have a reasonable excuse not to answer a question from the respondent (the question being: ‘what is your knowledge of the involvement of [names of alleged co-offenders] in the trafficking of dangerous drugs?’). One of the three grounds of appeal directly involved the Human Rights Act 2019 (Qld) and alleged that the decision made was not compatible with the appellant’s right not to be compelled to testify against themselves or to confess guilt, as contained in section 32(2)(k) of the Human Rights Act 2019 (Qld). The Court acknowledged that multiple human rights were impacted (including the right to non-interference with privacy and family as the questions related to the appellant’s partner) but that ‘the values underlying the right to privacy largely overlap with the values underlying the right to a fair hearing and the right not to incriminate oneself’: [278], [291]. On this basis, the Court continued to consider the impact of the decision on the rights outlined in section 31(1) (right to a fair hearing) and section 32(2)(k) (right not to testify against oneself or confess guilt). The respondent’s argument that the circumstances did not engage section 32(2)(k) because the investigative hearing was not a criminal proceeding was rejected by the Court, which found that the right was engaged for the purposes of the respondent’s decision: [324]. In reaching this conclusion, the Court stated that ‘the right should be given the broadest possible construction consistent with the authorities and the purpose of the HR Act’: [324]. The Court went on to consider the compatibility test related to section 13 (Human rights may be limited) and concluded that ‘while the decision of the respondent limited the applicant’s human rights in sections 31 and 32(2)(k) of the HR Act, the limit was justified under sections 8(b) and 13 of the HR Act’: [365]. This was largely due to the fact that the ‘code of silence’ present in organised crime prevents other less restrictive methods of collecting evidence and that if evidence obtained from coercive examinations could not be used by the Crime and Corruption Commission, the objects and purpose of the Crime and Corruption Act 2001 (Qld) would be undermined: [361]. Consequently, the third ground of appeal, which rested on the right outlined in section 32(2)(k) of the Human Rights Act 2019 (Qld), could not be established: [367].
• Spedding Estates Pty Ltd ATF The Spedding Family Trust v Cotterill & Downie [2022] QCATA 3
  Summergrove Estate entered into a contract with the respondents, Cotterill and Downie, to provide wedding services. Owing to COVID-19 restrictions, Summergrove Estate were unable to perform the wedding services as agreed upon: at [7]-[9]. The respondents requested a refund and refused a credit note: [9]-[10]. The respondents then brought a minor civil dispute claim to the Tribunal where judgement was made in their favour. On appeal, the Tribunal had to determine whether it had jurisdiction for a claim brought by parties living in Queensland against a New South Wales company, with shareholders and directors residing in New South Wales, where the contractual obligations were to be performed in New South Wales: at [1]. In making the decision, the Tribunal referred to section 20(3) of the Service and Execution of Process Act 1992 (Cth) which stated that civil proceedings may be stayed if it is determined that there is a court of another state that has appropriate jurisdiction to determine the matter: at [99]. The Tribunal highlighted that this was an important provision in light of the right to a fair hearing under section 31 of the Human Rights Act 2019 (Qld): at [99]. It was also noted that the Tribunal was required to ‘apply and enforce those human rights that relate to court and tribunal proceedings’ on the basis of section 5(2)(a) of the Human Rights Act 2019: at [Footnote 34]. The Tribunal granted leave to appeal the decision and then dismissed the appeal.
• Smith v State of Queensland (Queensland Health) [2022] QIRC 190
  This case concerned an application for an order protecting the complainant’s interests. The applicant had lodged a discrimination complaint in relation to his employer, Queensland Health’s, decision not to employ him, which the applicant alleged was on the basis of his relationship with another doctor at that hospital. The applicant’s complaint to the Queensland Human Rights Commission alleged an unreasonable limitation of the right to recognition and equality before the law and right to take part in public life under the Human Rights Act 2019 (Qld). The Commission did not consider this aspect of the complaint in dismissing the applicant’s complaint for various other reasons.
• Smith v State of Queensland (Queensland Health) & Anor [2022] QIRC 462
  The case concerned an application for leave to be legally represented. The court considered that the applicant’s right to equal protection would not be compromised, and granted leave. The case concerned an application for leave to be legally represented in proceedings concerning a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld). The applicant submitted, inter alia, that ‘a factor to be considered is whether it is fair for the Applicant to 'face an unequal opponent' when he has a right to equal protection against discrimination under s 15(4) of the Human Rights Act 2019 (Qld)’: at [21]. However, the Court considered that the applicant’s right to equal protection would not be compromised by allowing the respondents legal representation, referring to Neate IC in Wanninayake v State of Queensland (Department of Natural Resources and Mines) [2014] QIRC 079 who considered that ‘competent legal representation….can assist in ensuring that the proceedings remain focused on the real issues of fact and law, that the distinction between evidence and submissions is observed, that evidence is properly adduced….and that submissions are confined to the matters which the Commission must decide’: at [34]. Leave was granted for the respondents to be legally represented in the proceedings.
• SM v Director-General, Department of Justice and Attorney-General [2021] QCAT 116
  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].
• SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65
  The case concerned a challenge to a domestic violence protection order regarding a relationship between two 12-year-olds. In considering whether the appellant was afforded procedural fairness, the Court briefly mentioned ss 31-33 of the Human Rights Act 2019 (Qld), namely, the right to a fair hearing (section 31); rights in criminal proceedings (section 32); and rights of children in the criminal process (section 32). On this point, the Court decided that the appellant was not afforded procedural fairness as the proceeding to final orders was premature, the short adjournment did not afford the appellant child a reasonable opportunity to obtain representation by a lawyer, and the appellant was not afforded a reasonable opportunity to be heard. The Court ultimately set aside the protection order.
• Sher v State of Queensland (Queensland Health) [2023] QIRC 88
  The case concerned an application for review of the decision to decline an exemption for COVID-19 vaccine requirements pursuant to Health Employment Directive No. 12/21. The Appellant submitted, inter alia, that a requirement to provide medical evidence may have unreasonably limited her right to privacy and reputation pursuant to s 25 of the Human Rights Act 2019 (Qld). The Commission considered the original decision maker discharged their obligations under the Human Rights Act and ultimately found that the decision was fair and reasonable. In respect of human rights, the appellant contended that “requiring her to obtain further medical evidence poses a significant restriction to her right to privacy and reputation and the Department could impose the lesser restrictive option of granting the Appellant a temporary exemption” (at [64]). The original decision maker considered, in making the exemption decision, that any limitation on the appellant’s human rights was justified, having regard to the need to ensure the readiness of the health system in responding to COVID-19 and to protect employees, patients and the community. The Commission adopted the reasoning in Mocnik v State of Queensland (Queensland Health) [2023] QIRC 058 that the health directive was compatible with human rights and accepted that the appellant’s human rights had been taken into account, and any limitation was reasonable and demonstrably justified. The Commission concluded that the “the Respondent's consideration of human rights does not render the Exemption Decision unfair or unreasonable. The Appellant's views on human rights simply differ to that of the Respondent” (at [70]).
• Sharpley v Director General, Department of Justice & Attorney General [2023] QCAT 80
  The case concerned a review of the Respondent’s decision to refuse to cancel a negative notice that had been issued to the Applicant in 2009 because of his criminal history. The Tribunal upheld the negative notice. After reaching that conclusion, the Tribunal referred to ss 13 and 48 of the Human Rights Act 2019 (Qld) and reached a conclusion that any limitations were demonstrably justifiable without any substantive discussion of the rights engaged or the likely limits imposed by the decision. The Applicant was issued with a negative notice, cancelling his Blue Card, in 2009. His application to revoke the negative notice was refused and he appealed to the Tribunal. The Applicant is described as a “highly respected member of his local Rugby League community” with two children and aged 42. He was first issued with a negative notice in 2009 on the basis of his criminal history including a conviction for burglary (a serious offence) in 2002, and the Tribunal took into account subsequent offending in 2018. The Applicant led evidence about being a positive role model for children in the community; however, the Tribunal considered that he minimised the seriousness of his offending and showed poor insight, and that there was nothing in his circumstances that could be considered exceptional. The Tribunal’s consideration of the Human Rights Act 2019 (Qld) was limited to one paragraph after the conclusion to uphold the negative notice had been reached. The Tribunal acknowledged the interpretive provision in s 48 of the Human Rights Act but gave no indication it had been applied in the reasoning. In respect of its obligations, the Tribunal asserted it had considered relevant human rights, acknowledged the decision may impact upon some human rights (though did not identify any specifically) and concluded that, with regard to the objects and intent of the working with children legislation, the order is demonstrably justified. There was no substantive discussion of the rights engaged or the nature of any limitations.
• SH v Director-General, Department of Justice and Attorney-General [2023] QCAT 293
  This matter concerned an application for review of the decision not to cancel the applicant’s negative notice for a Blue Card. The Tribunal acknowledged it must exercise its jurisdiction in accordance with the Human Rights Act 2019 (Qld) but considered any limit on the applicant’s rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of children. The Applicant was issued with a negative notice preventing him from holding a Blue Card on the basis of his criminal history, which involved breaches of domestic violence orders. The Applicant subsequently applied to have the negative notice cancelled but was refused. He then applied to the Tribunal for review of that decision, submitting that his lifestyle and living arrangements had changed. The Tribunal noted its obligations under the Human Rights Act 2019 (Qld) (HR Act) and the effect of the interpretive provision under s 48 of the HR Act. It noted the following rights, pursuant to the HR Act, were relevant to the applicant’s case: the right to recognition and quality before the law (s 15), right to freedom of expression (s 21), right to take part in public life (s 23) and the right to privacy and reputation (s 25). The right to protection for families and children was referred to as a competing right and the Tribunal reasoned that 'any limit' on the applicant’s rights would be justified 'because it will have the proper purpose of promoting and protecting the right, interests, and wellbeing of children and young people' (at [29]). It considered that when applying both the HR Act and the Working with Children (Risk Management and Screening) Act 2000 (Qld), any rights of the Applicant must yield to the rights of children as paramount. The Tribunal considered that the Applicant lacked insight into the connection between his excessive alcohol intake and his offending, and until he abstained from drinking alcohol 'the rights, interests and wellbeing of children and young people would be at risk and thus not protected if he were afforded the entitlement of holding a Blue Card' (at [18]). In reaching its decision to uphold the negative notice, the Tribunal did not substantively consider any limits on the applicant’s rights.
• SFV v Director-General, Department of Justice and Attorney-General [2021] QCAT 223
  The case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant on 6 April 2020. The decision of the Director-General, Department of Justice and Attorney-General that this was an ‘exceptional case’ within the meaning of s 221(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) was confirmed. SFV and his wife had been foster carers for many years with positive notices and blue cards being issued in this period. Upon receiving a notice of a change in SFV’s disciplinary information, the respondent undertook a review and cancelled SFV’s blue card and issued a negative notice on 6 April 2020. SFV has one conviction for higher PCA and one conviction for stealing. The offending occurred between 1977 and 1982. Neither offence is a serious or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld). The Working with Children (Risk Management and Screening) Act 2000 (Qld) seeks to ‘put gates around employment to protect children from harm’, not to punish those who have received police or disciplinary information: at [6]. A working with children clearance must be issued unless the Tribunal is satisfied SFV’s is an exceptional case, in which it would not be in the best interests of children for a working with children clearance to be issued. The Tribunal found that SFV’s criminal history is not such that it would warrant a determination that SFV’s case is exceptional: at [21]. However, on 2 January 2019 the Department of Child Safety, Youth and Women cancelled SFV’s certificate of approval as a foster carer. Their reasons were that SFV had not met the standards of care required, used inappropriate discipline techniques and demonstrated an inability to implement case plan goals and achieve outcomes for children in care: at [26]. The Department’s Standard of Care Review criteria were not met: at [29]. In considering the evidence submitted by the applicant, the Tribunal was not satisfied that SFV had developed “genuine insight” about the impact of his behaviour on the children in his care, nor vulnerable persons in need of protection: at [54]. The Tribunal also raised concerns about SFV’s ability to provide a protective environment for children consistent with community expectations: at [47]. Member McDonnell recognised that, pursuant to section 48 of the Human Rights Act 2019 (Qld), she must interpret statutory provisions in a way that is compatible with human rights: at [55]. In undertaking the review, the Tribunal must also take into account the obligations on public entities under section 58 of the Human Rights Act 2019 (Qld): at [55]. The Tribunal emphasised that the purpose of this hearing was to protect children rather than impose further punishment for past conduct: at [56]. The Tribunal considered that the hearing being held in private was consistent with the applicant's right to a fair hearing: at [57]. Additionally, the Tribunal considered the right of every child to ‘the protection that is needed by the child, and is in the child’s best interests, because of being a child’: at [58]. Member McDonnell was satisfied that any limitations on these rights were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld). The Tribunal confirmed the respondent’s decision that this was an exceptional case within the meaning of s 221(2) of the Working With Children (Risk Management and Screening) Act 2000 (Qld).
• SF v Department of Education [2021] QCAT 10
  This case concerned an application for review of the Department of Education’s decision to refuse SF’s application to home school her child on the basis that they require an address to be provided. The Human Rights Act 2019 (Qld) was relevant in assessing whether the Department of Education’s interpretation of the procedural requirements and the terms of the application form to home school were compatible with SF and her children’s right to recognition and equality before the law (s 15), right to privacy and reputation (s 25), right to protection of families and children (s 26), and right to education (s 36). This case concerned an application for review of a decision of the Department of Education to refuse home education registration for the applicant’s child with learning disabilities. The applicant and her children had moved to escape domestic violence and she kept their exact location secret to keep her family safe from her former partner, who had successfully located her in the past. SF had provided the Department of Education a town name, postal address and mobile phone number, but not a street address or number. The Tribunal found that it had met the procedural requirements of the application form in her extenuating circumstances: at [33]. The Tribunal interpreted the procedural requirement of supplying an address on the form in a way that facilitated access to education and was responsive to the individual needs of the child, and that ensured SF and her children’s safety: at [26], [32] and [38]. The Tribunal supported SF’s seclusion of her address, stating that the more people with access to that information, the greater the risk for human error or an application under the Right to Information Act 2009 (Qld) which could lead to sensitive information being disclosed to her former partner: at [30]-[31]. This posed a significant risk to the safety and privacy of SF and her children. The Tribunal referred to Victorian cases that had discussed the ‘right to privacy’, and the ‘right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’ (s 13(a) of the Charter of Human Rights and Responsibility Act 2006 (Vic)): at [44]. When discussing the Human Rights Act 2019 (Qld), the Tribunal listed the rights of SF and her children that were affected, and recognised that all statutory provisions must be interpreted in a way that is compatible, or is most compatible, with human rights: at [43]-[45]. The Tribunal noted that since the terms used in the application form were not defined, they must be interpreted in a way that ‘will give effect to the legislative purpose of the governing Act that is compatible with human rights’: at [45]. The governing Act, Education (General Provisions) Act 2006 (Qld), had not provided clear definitions of ‘residential address’, ‘address where the home education will be delivered’ or ‘address of the child’s usual place of residence.’ The Tribunal held that these terms must be interpreted in a way that is compatible with human rights: at [45]. The Tribunal found that an interpretation that mandated SF to provide a street number, street name and town name, was not an interpretation that least infringed on SF and her family’s human rights: at [46]. Since there were less restrictive ways of achieving the legislative purposes of ensuring the child’s proper registration, and SF was contactable, imposing a strict requirement for disclosure of street number and street name did not satisfy section 13 of the Human Rights Act 2019 (Qld): at [47]-[48]. The Tribunal noted the consequences of disclosing SF’s location were severe and, thus, the object of the Education (General Provisions) Act 2006 (Qld) must be sufficiently important to warrant the measure if it is to be ‘reasonable and demonstrably justified in a free and democratic society’: at [49]. It was held that the child’s right to access education appropriate to their needs and the family’s right not to have their privacy, family or home arbitrarily interfered with outweighed the requirement to provide an exact address: at [50]. The application for external review was approved and the decision made by the Department of Education was substituted with a decision to grant home education registration for SF’s child: at [54].
• SDS v Director General, Department of Justice and Attorney-General [2022] QCAT 165
  The applicant was issued with a negative Blue Card notice following his being charged with criminal offences related to an incident he described as a ‘prank’. The Tribunal upheld the negative notice and stated that the respondent had appropriately acknowledged and considered the applicant’s human rights. The applicant was issued with a negative Blue Card notice following his being charged with assault, animal cruelty and dangerous conduct with a weapon, all of which charges were ultimately discontinued: at [2]-[4]. These charges arose from circumstances in which the applicant, with an associate, performed a drive-by shooting with a gel blaster as a ‘prank’ against a friend, which ultimately hit her in the leg, hit her cat and damaged her car: at [7]. In issuing a negative notice, the respondent had appropriately acknowledged and considered the applicant’s right to privacy and reputation, right to take part in public life and right to further vocational education and training: at [68]. However, in this case it was reasonable to limit these rights to protect the children’s rights to protection which was paramount in the circumstances: at [70]. The Tribunal confirmed the issuing of the negative notice, in the absence of any remorse or explanation for the applicant’s behaviour, it was not in the best interests of children from him to be issued with a clearance: at [74].
• SDF v Director General, Department of Justice and Attorney General [2022] QCAT 198
  The case concerned an application for review of a decision to issue a negative notice for a Blue Card where the applicant had been convicted of breaching domestic violence orders, breaching a suspended sentence, breaching a probation order, failing to appear in accordance with undertaking, breaching bail conditions, possessing dangerous drugs and possessing property suspected of having been used in connection with the commission of a drug offence. The Tribunal concluded that it was an exceptional case in which it would not be in the best interests of children for a positive notice and blue card to be issued. The Tribunal stated that the provisions of the Human Rights Act 2019 (Qld) had been considered, and that it was satisfied that any limitation is justified because it had the proper purpose of promoting and protecting the rights, interests and wellbeing of children and young people.
• Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330
  The applicant sought to review a decision from the Queensland Police Service to not review her weapons licence. The QPS did not consider her as having a valid reason under the relevant legislation to hold a firearm, as the applicant applied for the renewal based on ‘occupational requirement’, but her use of the firearm relates to the raising of cattle on her land for personal consumption and not part of an occupation: at [19]. The applicant submitted that her occupation was housewife/carer and saves money by producing meat, and so therefore should be regarded as deriving an income: at [20] - [21]. The Human Rights Act 2019 (Qld) was discussed in relation to the Tribunal being a public entity acting in an administrative capacity, and therefore required to consider the applicant’s human rights and any ensure decision which limits her rights is reasonable and justifiable, and consistent with the principles and objects of the Human Rights Act 2019 (Qld): at [25]. In coming to its decision, the Tribunal considered relevant case law, dictionary definitions, evidence submitted by the applicant as to the availability of veterinary care, and the activities the applicant undertakes in the care of the cattle and their commerciality: at [15] - [23]. The Tribunal was not satisfied that the applicant demonstrated an occupational requirement and therefore confirmed the decision from the Queensland Police Service to reject the applicant’s application.
• Schimke v State of Queensland (Queensland Fire and Emergency Services) [2020] QIRC 205
  This case concerned an application to review the respondent’s decision to refrain from converting Ms Schimke’s employment from fixed-term temporary status to permanent status, as a substantial incumbent was returning to the role on a full-time basis. Ms Schimke appealed this decision on the grounds that it did not align with the relevant policy directive, Directive 09/20 Fixed term temporary employment (‘the Directive’), which clarified the process of converting fixed-term temporary employment to permanent employment: at [3]. The Directive noted that decision-makers were obliged, under the Human Rights Act 2019 (Qld), to act and make decisions in a way that was compatible with human rights and to give proper consideration to human rights: at [6]. The Commission reproduced this clause in the reasons for decision, but there was no further discussion of the Human Rights Act 2019 (Qld). The Commission considered that the decision not to convert Ms Schimke’s position was fair and reasonable in the context of the considerations provided by the Public Service Act 2008 (Qld): at [15]-[16]. The Commission upheld the respondent’s decision and dismissed the appeal.
• Schiemann v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 035
  This matter concerned an appeal against the respondent’s decision not to permanently convert the appellant’s employment appointment to a higher classification level. The decision included an extract from a relevant statutory instrument, confirming decision makers’ obligations under section 58 of the Human Rights Act 2019 (Qld). The Commission identified its role as deciding whether the decision was fair and reasonable, and did not engage in any discussion as to whether the decision maker fulfilled their obligations under the HR Act. There is no indication that human rights grounds were raised by the appellant.