Items

• ADI v EGI [2020] QDC 13
  The provisions of the Human Rights Act 2019 (Qld) were cited by a self-represented applicant arguing for a stay of the decision of the Magistrates Court to dismiss her application to vary a protection order. The court gave limited consideration to the interpretation provisions of the Human Rights Act 2019 (Qld), and did not elaborate on the applicant’s arguments. This case concerned an application for a stay of the decision of the Magistrates Court to dismiss an application brought by the appellant to vary a protection order. The self-represented appellant raised ss 17 (protection from torture and cruel, inhuman or degrading treatment), 26 (protection of families and children) and 31 (right to a fair hearing) of the Human Rights Act 2019 (Qld) in her submissions to the court. In making his decision to refuse the application for a stay, Smith DCJA held that he needed to have regard to the relevant provisions of the Human Rights Act 2019 (Qld): at [8]. His Honour stated that he had ‘regard to s 48 of the Human Rights Act 2019 (Qld)’ (the interpretation provision) but did not elaborate further or discuss the above submissions made by the appellant: at [43].
• AA v State of Queensland (Office of Industrial Relations) [2021] QCAT 258
  This case concerned a privacy complaint made against the State of Queensland (Office of Industrial Relations). The Tribunal did not consider the Human Rights Act 2019 (Qld) as the Tribunal was exercising its original jurisdiction. This case concerned a privacy complaint made by the applicant, AA, against the State of Queensland (Office of Industrial Relations). Both parties agreed there had been four breaches of AA’s privacy that had occurred in the course of telephone conversations between a staff member of the Office of Industrial Relations and staff of QSuper: at [4]. AA argued the breaches were malicious in nature and that a higher monetary award should be made: at [6]. The privacy complaint was referred to the Tribunal under section 176 of the Information Privacy Act 2009 (Qld): at [2]. Based on the evidence and submissions, the Tribunal found that breaches of Information Privacy Principle 11 occurred on four occasions: at [57]. It was held there was insufficient evidence to demonstrate that the privacy breaches were motivated by malice: at [64]. The Tribunal held that the Human Rights Act 2019 (Qld) had no operation in this matter: at [58]. Member Kent found that the Tribunal was sitting in its original jurisdiction and, therefore, was not a ‘public entity’ within the meaning of the Human Rights Act 2019 (Qld): at [58].
• AB v CD [2020] QCAT 295
  The applicant made an application for a minor debt for the collection and recovery of a child support overpayment by one parent to another. The Queensland Civil and Administrative Tribunal briefly considered the right to privacy and reputation (s 25 Human Rights Act 2019 (Qld)) and issued a non-publication order so that the parties involved would remain anonymous. This case concerned an application for a minor debt for the collection and recovery of an assessed child support overpayment by one parent to another. Neither parent resided in Queensland, however, the applicant’s agent had its place of business of the Gold Coast. Thus, the matter was heard before the Queensland Civil and Administrative Tribunal. The Tribunal noted that s 3(2) of the Child Support (Registration and Collection Act) 1988 (Cth) required the legislation to be administered in a manner that was ‘consistent’ to attain its objects, but had limited interference with the ‘privacy of persons’: at [2]. In doing so, the Tribunal highlighted s 25 of the Human Rights Act 2019 (Qld) which protects the right to privacy and reputation, and noted that although the Human Rights Act 2019 (Qld) ‘does not have extra-territorial effect beyond the State of Queensland,’ the Tribunal would protect the privacy of the parties by referring to them anonymously and by making a non-publication order ‘with respect to their identities and addresses’: at [3]-[4]. It was ultimately held that the Tribunal did ‘not have jurisdiction to hear this matter having regard to ss 104, 113, and 113A’ of the Child Support (Registration and Collection Act) 1988 (Cth) and the application was dismissed for lack of jurisdiction: at [75].
• Abbott v State of Queensland (Department of Education) [2021] QIRC 113
  This matter is related to a public service appeal for appointment to a high classification level. The Human Rights Act 2019 (Qld) was referred to in a departmental document tendered in evidence. However, there was no substantive discussion of human rights in the reasons.
• ABD v Director-General, Department of Justice and Attorney-General [2021] QCAT 57
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant. The Tribunal stated that it had considered the provisions of the Human Rights Act 2019 (Qld) and concluded that its decision did not unreasonably compromise any of the human rights affected. ABD (‘the applicant’) was 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 [5]. ABD had sought a positive blue card notice in order to work with vulnerable people, including young people and children: at [2] and [8]. The negative notice was issued because of ABD’s prior offending behaviour, which included three charges of assault, two domestic violence orders, and seven road traffic offences: at [12]. The Tribunal discussed the various factors it needed to consider in determining whether ABD’s application was an exceptional case, including rehabilitation, remorse, and insight: at [29]. The Tribunal considered the role that alcohol dependency had played in the applicant’s offending behaviour, noting that the applicant had since ceased consuming alcohol, reconciled with his wife, and developed support networks including his church: at [68]. The Tribunal had regard to the human rights of the applicant and potential children the applicant might come into contact with, stating that it was ‘satisfied that there [was] no unreasonable compromise of the human rights of any affected, or potentially affected, person’: at [72]. The footnotes referenced the right to protection of families and children (s 26(2)) and the section providing that human rights may be limited (s 13(2)(b)). The respondent’s decision was set aside and replaced with the Tribunal’s decision that there was no exceptional case: at [74].
• Accoom v Pickering [2020] QSC 388
  This case concerned an application for orders regarding a family dispute over the burial location of a deceased Indigenous man. Henry J noted that s 28 of the Human Rights Act 2019 (Qld) (cultural rights of Aboriginal and Torres Strait Islander peoples) did not affect the Court’s usual approach to resolving these types of cases as Aboriginal and Torres Strait Islander customs have always been considered. This case concerned a dispute between the family members of a deceased Indigenous man regarding his burial location. After a failed mediation, the deceased’s mother (‘the applicant’) applied to the Court seeking orders which included, inter alia, that pursuant to s 6 of the Succession Act 1991 (Qld), the deceased should be buried in Mareeba, Queensland; the funeral expenses were to be paid by the applicant; and there was to be no order as to costs: at 2. While Justice Henry noted that neither s 6 nor any other section of the Succession Act 1991 (Qld) provided for decision-making as to burials, he held that s 6(1) was of particular relevance to the present case. More specifically, His Honour linked s 6(1)’s ‘conferral of power to grant letters of administration and determine all matters relating to administration’ to the common law rule that the ‘person entitled to administration is usually the person responsible for arranging the funeral and burial of the deceased’: at 3. Furthermore, r 610 of the Uniform Civil Procedure Rules establishes the priority of persons to whom the court may grant letters of administration. As the deceased’s mother was the applicant, it followed from the common law rule that her application was to be favoured, although it should be noted that past case law has held that this rule is not to be ‘“rigidly applied”’: at 3. Regarding human rights, Justice Henry noted that ‘it was uncontroversial in Queensland before the enactment of the Human Rights Act 2019 (Qld) that Aboriginal custom, including cultural and spiritual beliefs, are a relevant consideration in a case like the present’. As a result, His Honour held that neither the application of s 28 of the Human Rights Act 2019 (Qld) (Cultural rights of Aboriginal and Torres Strait Islander peoples), nor s 48 (interpretation) would ‘produce a different approach than that already taken by this [Court]’: at 4. The applicant and the deceased’s aunt both presented arguments as to why the deceased should be buried in either Mareeba or Croydon, respectively, the latter being where the deceased had spent a significant part of his life. In response to the evidence related to Aboriginal culture, Justice Henry noted that ‘if the outcome of Aboriginal custom in this case were clear cut and yielded a singular result, I would readily honour it,’ however, ‘the reality [was] that there [was] a difficult mix of custom related considerations in play’: at 4. The application was ultimately granted as the deceased’s ‘cultural connections’ to Croydon were not ‘so exclusive or so compelling as to trump the mix of other considerations, including practical considerations and the common law starting point, trending to favour a burial at Mareeba’: at 8.
• ADU [2021] QCAT 70
  This matter concerned the replacement of ADU’s enduring power of attorney for personal and health matters with the appointment of the Office of the Public Guardian. The Human Rights Act 2019 (Qld) was discussed in relation to ADU’s right to freedom of expression, right to a fair hearing and the circumstances in which a human right may be limited. ADU had been in custody after serving sentences for sexual offences against children and was subject to a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’). In the course of the annual review of that order (‘DPSO Act proceedings'), the Supreme Court raised concerns about ADU’s capacity to defend the review proceeding and referred the matter to the Tribunal: at [2]. The Tribunal accordingly initiated applications for a declaration about capacity and to appoint a guardian. Further applications were made when it was realised that an enduring power of attorney had been executed appointing ADU’s father, FDA, as the attorney for financial and personal/health matters: at [4]. ADU’s schizophrenia manifested in delusional beliefs of being persecuted by courts, lawyers and mental health practitioners, particularly in relation to the convictions for sexual offences against children: at [29]. The Tribunal held that ADU was in no position to make informed and rational decisions about his review proceedings for continuing detention due to his delusions and preoccupations, and that the presumption of capacity had been rebutted: at [34]-[37]. FDA did not wish to have power of attorney in relation to personal decisions for ADU, especially those involving litigation, and did not realise he had been appointed to do this: at [41]. FDA resided in South Australia and was a retired accountant. FDA felt comfortable handling ADU’s financial matters, but felt ill-equipped to make personal decisions for ADU given his lack of understanding on the Queensland legal system, his age (76 years old), and other personal circumstances: at [41]. ADU also wished for FDA to remain as attorney only for financial matters: at [42]. The Tribunal considered it desirable for FDA to be relieved of the power of attorney, but only for decisions relating to the DPSO Act proceedings: at [46]. The Tribunal did not find it appropriate to grant leave to FDA to resign as ADU’s attorney completely for all personal/health matters: at [60]. The Office of the Public Guardian submitted that appointing a guardian would infringe on ADU’s rights without achieving the desired purpose, referring to s 13(2)(c) of the Human Rights Act 2019 (Qld): at [52]. The Tribunal found that it would be difficult to facilitate ADU’s right to a fair hearing under section 31(1) of the Human Rights Act 2019 (Qld) if his case was left entirely to him to self-represent, in light of his paranoid delusions about the litigation: at [53]. The Tribunal considered that any limitation on his rights by the appointment of a substitute decision-maker was reasonable in order to effectively advocate for ADU’s legitimate interest in being released from custody: at [54]. The Tribunal appointed a guardian, namely the Public Guardian, to overtake the enduring power of attorney for the purpose of the DPSO Act proceedings and refused leave to FDA to resign as attorney for all other personal/health matters: at [56], [59], [61].
• ADW [2021] QCAT 453
  This matter concerned an interim order application for the appointment of a guardian and an administrator. The Tribunal referred generally to the imperative under section 13(1) of the Human Rights Act 2019 (Qld) to not restrict rights and freedoms except where that is demonstrably justified. It was subsequently noted that appointing a guardian and administrator on an interim basis is a serious step and that such rights should only be infringed where there is an immediate risk of harm of sufficient magnitude. The Tribunal did not engage in any further substantive discussion of the Human Rights Act 2019 (Qld).
• Aitchison v Queensland Police Service – Weapons Licensing [2023] QCAT 45
  This case involved an application by the Queensland Police Service to dismiss or strike out an application, in which the applicant requested a review of the revocation of their firearm licence. Member Munasinghe considered that dismissing the proceeding and denying the applicant the opportunity to make oral submissions would unreasonably and unjustifiably limit the applicant’s right to a fair trial under section 31 of the Human Rights Act 2019 (Qld).
• AM v Director General Department of Justice and Attorney General [2023] QCAT 6
  The Tribunal set aside a decision of the Director-General, Department of Justice and Attorney-General and found that the applicant’s case was not ‘exceptional’ in relation to his application for a positive notice for a blue card. This matter concerned an appeal from a decision that there was an ‘exceptional’ case within the meaning of s221(2) of the Working with Children (Risk Management and Screening) Act 2009 (Qld). The Tribunal affirmed that it was a public entity when conducting an administrative review of a child related employment screening decision such as was the subject of the application: at [9]. It would be required to make decisions within section 8 of the Human Rights Act 2019 (Qld) and must give consideration to any human rights affected by the decision pursuant to ss 11 and 58 Human Rights Act 2019 (Qld): at [9]. The Tribunal considered that such rights may only be limited where it is reasonable and demonstrably justified in accordance with section 13 of the Human Rights Act 2019 (Qld): at [42]. These rights compete with children’s rights protected by the Working with Children (Risk Management and Screening) Act 2009 (Qld), and the legislative framework made clear that children’s rights to protection from harm and to be safely cared for took priority. The Tribunal held that it would not be consistent with human rights to limit the applicant’s right to privacy and reputation, to take part in public life and to further vocational education and training protected by the Human Rights Act 2019 (Qld), where the evidence indicated that he no longer demonstrated behaviour which made him a poor role model for children. The Tribunal noted several protective factors weighing in favour of the applicant’s case not being ‘exceptional’ including insight, development of strategies and tools to manage potential triggers, a strong support system, and greater stability in the applicant’s social circumstances: at [37]-[39]. In the circumstances, the Tribunal set aside the respondent’s decision and considered that the applicant was not an exceptional case.
• AM [2021] QCAT 394
  This case concerned a review of the appointment of RM as Guardian for AM for legal matters. AM’s mother, FK, applied for a review of this appointment. The Tribunal previously appointed AM’s father as Guardian for legal matters including visa applications or immigration issues relating directly or indirectly to AM and his family in circumstances where AM was a 25 year old male with Down Syndrome. An application was subsequently made by AM’s mother, FK, who moved from Fiji to Australia under a carer visa to provide care for AM in circumstances where she was concerned about the adequacy of care being provided to him. The Tribunal conducted a review of the appointment of RM as guardian pursuant to s 31 of the Guardianship and Administration Act 2000 (Qld). The Tribunal was satisfied that the medical evidence established that AM’s Down Syndrome and intellectual disability impaired his capacity to make decisions about simple lifestyle, accommodation and financial matters: at [13]. In the context of the dispute between AM’s parents, the Tribunal considered that the Public Guardian was more appropriate to bring an independent decision-making framework to the decisions at hand, and appointed the Public Guardian as guardian for AM on a short-term basis, to be reviewed by the Tribunal in 6 months: at [24]. Member McDonald recognised that s 48 of the Human Rights Act 2019 (Qld) obliged the Tribunal to interpret statutory provisions to the extent possible that is consistent with their purpose in a way compatible with human rights, and that appointing a guardian would result in some incursions on an adult’s right to privacy (s 25 of the Human Rights Act 2019 (Qld)): at [25]. Member McDonald was satisfied that the limits imposed by the order were reasonable and justified in accordance with s 13 of the Human Rights Act 2019 (Qld) as it sought to ensure AM’s interests were adequately protected in exercising substituted decision making around his lifestyle and accommodation decisions: at [26].
• Amaya v State of Queensland (Queensland Health) [2022] QIRC 117
  This case concerned an appeal of a Queensland Health decision that denied the appellant an exemption from compliance with an employment vaccination directive on the basis of her religious beliefs as a Seventh Day Adventist (‘the decision’). The Commission was required to conduct a review of the decision to determine whether it was fair and reasonable. The Commission noted the reasons for the decision acknowledged the impact of the decision on the appellant’s human rights including the right to recognition and equality before the law (section 15 of the Human Rights Act 2019 (Qld)), the right to freedom of thought, conscience, religion and belief (section 20 of the Human Rights Act 2019 (Qld)), property rights (section 24 of the Human Rights Act 2019 (Qld)) and the right to protection from torture and cruel, inhuman or degrading treatment (including not to be subjected to medical or scientific experimentation or treatment without the person’s full, free and informed consent) (section 17 of the Human Rights Act 2019 (Qld)). The respondent was satisfied those limits on human rights were justified by the need to ensure the readiness of the health system in responding to the COVID-19 pandemic, and to protect the lives of employees, patients and the community they serve. On review of the decision, the Commission considered the decision failed to meaningfully consider the appellant’s religious beliefs and was therefore not fair and reasonable: at [34]-[37]. The Commission set aside the decision and directed a fresh internal review by a different decision maker of the respondent.
• AMD v Director General, Department of Justice and Attorney-General [2022] QCAT 4
  This decision concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant. In affirming the respondent’s decision, the Tribunal had regard to the applicant’s human rights, including the right to freedom of expression (section 21) and the right to privacy and reputation (section 25) in accordance with the Human Rights Act 2019 (Qld). The Tribunal determined that the limitation on those rights was for the purpose of promoting and protecting the rights, interests and wellbeing of children, which was consistent with a free and democratic society based on human dignity, equality and freedom pursuant to section 13(2)(b) of the Human Rights Act 2019 (Qld).
• Amos v State of Queensland (Queensland Health) [2022] QIRC 197
  This case concerned an appeal following a disciplinary finding. The appellant received a disciplinary finding against him following refusal to comply with a lawful direction relating to COVID-19 vaccination. The appellant submitted that the requirement for a hospital health directive to receive two doses of the COVID-19 vaccination was an unjustified breach of their human rights under section 13 of the Human Rights Act 2019 (Qld). The appellant is employed by Queensland Health as Director of Training - Psychiatry at Townsville Hospital. A hospital health directive required hospital employees to receive two doses of the COVID-19 doses unless they are granted an exemption: at [1] and [4]. The appellant objected to the vaccination requirement, claiming that it was an ‘unwarranted limitation of [his] human rights’: at [5]. He then stopped attending work, after which he was told by his employer to show cause as to why disciplinary action should not be made against him on the basis that he had not received his required vaccination doses and had not provided evidence of any exemption: at [11]. The appellant responded by referring to section 13 of the Human Rights Act 2019 (Qld), arguing that it required directives to use the least restrictive means to achieve its goal: at [12] and [27]. He was required to work at home under a flexible work arrangement, with the initial disciplinary decision holding that the Directive ‘was reasonable and justified by the need to ensure compliance with the Directive’ and that there was no less restrictive means, other than vaccination, ‘which would sufficiently ensure the safety of [the appellant], other staff members and patients, as well as ensuring the ongoing readiness of the health system to respond to the pandemic’: at [16]. The issue for determination in the appeal was whether the decision appealed against was fair and reasonable. The Commission held that as the appellant’s position required face-to-face contact with trainees, there was no less restrictive means to achieve the objective of the Directive: at [55]. The initial decision was, therefore, considered to be fair and reasonable and the rights were justifiably limited in the circumstances: at [59].
• Angelopoulos v Silkwire Pty Ltd [2022] QCAT 52
  This case concerned an application for a non-publication order relating to medical evidence that the applicant had filed in relation to an application he was pursuing under the Anti-Discrimination Act 1991 (Qld). In refusing the non-publication order, the Tribunal considered that the production of the document was in the interests of justice and that the applicant’s right to privacy had not been unlawfully or arbitrarily interfered with. The applicant alleged that he had been subject to indirect discrimination on the basis of his impairment in relation to residential accommodation following the floods in early February 2019: at [2]. The applicant had filed an application for a further extension of time with supporting letters from his doctor and from North and West Remote Health: at [4]-[7]. The Tribunal directed the applicant to give a copy of this application, including the attached supporting medical evidence, to the respondents so that they could file submissions: at [8]. The applicant then applied for a non-publication order in relation to the letter from North and West Remote Health, requesting that it not be shared with the respondents or more widely: at [9]-[10]. In making his application for a non-publication order, the applicant referred to the right to privacy and reputation under section 25 of the Human Rights Act 2019 (Qld), asserting that the publication of his medical evidence would have ‘detrimental health outcomes’ and that his human rights would be ‘alienated’: at [10]. He also contended that it was neither in the public nor the respondent’s interests to have access to his medical information: at [10]. The Tribunal recognised that, pursuant to section 48 of the Human Rights Act 2019 (Qld), it was obligated to interpret section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) consistently with human rights and ‘to the extent possible in a manner compatible with human rights’: at [13] and [20]. The Tribunal considered a previous High Court decision of Momcilovic v The Queen [2011] HCA 34 that held statutes must be read against the background of human rights: at [19]. Therefore, the Tribunal held that it must take the applicant’s human rights into account in applying the interests of justice to its decision regarding the making of the non-publication order: at [21]. The relevant right under the Human Rights Act 2019 (Qld) was the right to privacy and reputation (section 25), which protected people from unlawful or arbitrary interference with their ‘personal and social individuality and identity’: at [15]. The Tribunal applied the interpretation of ‘arbitrary interference’ provided by Bell J in PJB v Melbourne Health (2011) 39 VR 373, which included interferences that were ‘capricious, unpredictable or unjust’ and extended to interferences that were disproportionate to a legitimate aim sought: at [17]. The medical evidence in question was submitted to the Tribunal in support of the applicant’s application for a further extension of time: at [22]. The Tribunal recognised that it was standard practice for documents filed with the Tribunal to be shared with the other side for reasons of procedural fairness and was fundamental to the proper administration of justice: at [22]. Due to the importance of open and transparent proceedings, the request that the medical evidence be produced to the other side was not an arbitrary interference with the applicant’s privacy: at [23]-[24]. The Tribunal refused the application for the non-publication order: at [24].
• Angelopoulos v State of Queensland [2021] QCAT 421
  This matter concerned an application by the respondent for leave to be legally represented pursuant to section 43 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), which was granted. The applicant requested reasons for that decision. In its reasons, the Tribunal considered a submission by the applicant that granting leave to the respondent would create inequality before the law, in contravention of section 15 of the Human Rights Act 2019 (Qld). The Tribunal did not accept the submission on the basis the Tribunal was obligated and had the necessary powers to ensure a fair hearing, including the power to give assistance to a litigant in person.
• Angelopoulos v State of Queensland [2022] QCAT 163
  The case concerned the contention that the respondent had discriminated against the applicant by requiring him to bury his father without a church service or private viewing. The Tribunal considered that this did not amount to unlawful discrimination. The Tribunal determined that the Human Rights Act 2019 (Qld) did not apply as the complaint was made prior to its commencement.
• AS [2022] QCAT 148
  This matter concerned applications for the appointment of the Public Guardian as guardian for legal matters pertaining to AS and for a declaration of capacity about AS. In its reasons, the Tribunal considered AS’s rights to recognition as a person before the law entitled to equal protection without discrimination, freedom of movement and privacy under the Human Rights Act 2019 (Qld) and found that the limits imposed by the appointment of the Public Guardian as guardian for legal matters were ‘reasonable and justified in accordance with s 13’: at [10].
• Attorney-General (Qld) v Grant (No 2) [2022] QSC 252
  A key issue in proceedings was whether Mr Grant, an elderly man with serious health and mobility issues, could be released into the accommodation provided by Queensland Corrective Service (‘QCS’) to persons living under Dangerous Prisoners (Sexual Offenders) Act (Qld) 2003 orders. QCS policy prohibited visitors including food delivery, and health and aged care providers from attending at the accommodation. Notably, Mr Grant did not seek any declaratory relief in relation to the unlawfulness of the QSC’s policy under section 58 of the Human Rights Act 2019 (Qld) or seek to agitate his other relevant rights such as the right to health services without discrimination. Nonetheless, Applegarth J, engaged in a detailed examination of the application of the Human Rights Act 2019 (Qld) to his judicial functions, and the exercise of his discretion under the Dangerous Prisoners (Sexual Offenders) Act (Qld) 2003. He rejected the AG’s submissions that none of the rights under the Human Rights Act 2019 (Qld) related to the proceedings, and found that at least sections 29(1), 29(2) and 30(1) were applicable to the exercise of the Court’s function under section 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld): at [132]. He observed that there will be circumstances, including in this case, where an exercise of judicial discretion, ordinarily not subject to the Human Rights Act 2019 (Qld) by application of section 5, will nonetheless require the Court to consider human rights: at [110-114]. The Court found that a continuing detention order would deprive the First Respondent of the right to liberty pursuant to section 29 of the Human Rights Act 2019 (Qld). The Court defined “arbitrary” under that section to mean capricious, unpredictable, unjust or unreasonable in the sense of not being proportionate: at [111]. Additionally, a supervision order would impede the First Respondent’s freedom of movement under s 19: at [115]. The Court found that the right to humane treatment when deprived of liberty (section 30) in the Human Rights Act 2019 (Qld) was complementary to section 17b of the Human Rights Act 2019 (Qld), being the right to protection from torture and cruel, inhuman or degrading treatment. In determining between those two options Applegarth J gave weight to the wishes of Mr Grant that he would prefer community supervision over continued detention, notwithstanding the risks to his health and wellbeing. A supervision order of ten years was therefore made. In highlighting the shortcomings of the accommodations planned for Mr Grant in community, Applegarth J noted: A question remains whether QCS’s practices and policies in relation to a person with the first respondent’s medical conditions are compatible with the HRA, particularly ss 30 and 37. They are questions for another day and possibly for another court. It may even be the Coroners Court. In such a forum, QCS may have to justify its inertia in response to Chief Justice Holmes’ 2017 judgment in Guy’s case. It may have to justify the inflexible application of policies that may be reasonable and justifiable for many other individuals who are accommodated at the precinct but distinctly inappropriate for an individual with acute medical and mobility problems: at [178].
• Attorney-General (Qld) v Grant [2022] QSC 180
  The Attorney-General sought a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Court was required to consider whether a policy of the Queensland Corrective Service in not allowing the provision external support services in precinct housing was compatible with the Human Rights Act 2019 (Qld). Queensland Corrective Services maintains a policy of not allowing external domestic, daily living or medical support to be provided at 'precinct’ accommodation occupied by released person living under DPSO Act orders. Considering this policy restriction, the Court had to consider whether it would be more suitable for the Respondent to remain in jail: at [5], [6] and [17]. Applegarth J acknowledged that in exercising the discretion in favour of making a continuing detention order under s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Respondent’s autonomy and rights pursuant to the Human Rights Act 2019 (Qld) must be considered. Accordingly, Applegarth J considered that the Queensland Corrective Service policy raised serious concerns in respect of compliance with ss 30 and 37 of the Human Rights Act 2019 (Qld), namely, the right to humane treatment when deprived of liberty (Section 30) and the right to health services (section 37), respectively: at [33]. Applegarth J proposed to impose an interim detention order for two months; to join the Chief Executive of Queensland Corrective Services as a respondent; directed the parties to notify the Queensland Human Rights Commission of the interim detention order, and adjourned the matter: at [34].
• Attorney-General for the State of Queensland v GLH [2021] QMHC 4
  This matter concerned an appeal by the Attorney-General against a decision of the Mental Health Review Tribunal to remove a condition from the respondent’s forensic order (community category) that prevented him from having unsupervised contact with children. In making its decision to confirm the decision and dismiss the appeal, the Court considered s 20 (right to protection of families and children) and s 28 (cultural rights of Aboriginal and Torres Strait Islander peoples) of the Human Rights Act 2019 (Qld). The Attorney-General sought to appeal a decision of the Mental Health Review Tribunal to remove a condition from the respondent’s forensic order that he could not have unsupervised contact with children. The Attorney-General’s ultimate submission was that the condition that should be imposed is that the respondent must not have unsupervised interaction with children, but carving out of that an exception that he is allowed to have unsupervised contact with his nieces and nephews. The Queensland Human Rights Commission intervened in the proceedings and made submissions, including that the respondent’s family and cultural rights should be given due weight in the exercise of discretion, particularly, but not exclusively, due to their protective value where these rights are not inconsistent with the dictates of public safety: at [8]. The original forensic order was imposed on the respondent in 2004 as a result of random and violent offending in 2002, including against a 15-year-old girl. At the time of the order the respondent was an inpatient at a secure mental health rehabilitation unit. The respondent later transitioned to a community care unit and eventually to living in the community, but with several hospital admissions in the context of substance use. A report by the Community Forensic Outreach Services in April 2015, completed as part of their annual risk assessment of special notification forensic patients, noted the respondent often spent time at his sister’s place and helped her look after his nieces, including unsupervised babysitting. The report included a recommendation that the respondent’s treating team may need to consider a review with the hospital child protection team about whether his unsupervised contact with his nieces was appropriate, given the respondent's history of significant violence, chronic substance use, and ongoing low-level psychotic symptoms. About a month later, in May 2015, the Tribunal added a condition to the forensic order that the respondent not have unsupervised contact with children. At a hearing on 13 January 2021, in its role for conducting a periodic review of the respondent’s forensic order, the Tribunal was asked to consider whether the condition that the respondent not have unsupervised contact with children should be removed. The respondent wanted the condition removed so he could be a proper Uncle and have unsupervised contact with his nieces. The Tribunal ultimately decided to revoke the condition. In doing so, the Tribunal accepted the evidence of the respondent’s treating team that the condition was not necessary to manage risks of harm to the children or the community generally. The Tribunal noted evidence of strong family protective factors, close monitoring of the respondent’s mental state, his stability and assurances that he would not be intoxicated or use substances at his sister’s home. The Court confirmed that the appeal of the Tribunal’s decision was by way of rehearing, requiring the Court to conduct a review of the forensic order in accordance with both the Mental Health Act 2016 (Qld) and the Human Rights Act 2019 (Qld): at [28], [40]-[41] and [47]. The Court had particular regard to the cultural rights of Aboriginal peoples and Torres Strait Islander peoples protected by section 28 of the Human Rights Act 2019 (Qld), including that Aboriginal peoples must not be denied the right, with other members of their community, to enjoy, maintain, control, protect and develop their kinship ties. The Court observed the compatibility of these rights with the principles contained in section 5(g) of the Mental Health Act 2016 (Qld) for recognising and taking into account the unique cultural, communication and other needs of Aboriginal people and Torres Strait Islanders, and for ensuring that Aboriginal people and Torres Strait Islanders should be provided with treatment, care and support in a way that recognises and is consistent with Aboriginal tradition or Torres Strait Islander custom, mental health and social and emotional wellbeing, and is culturally appropriate and respectful: at [42], [46]-[47]. The Court highlighted that the requirement that any limit on human rights be in the least restrictive manner possible and limited to what is necessary to address an unacceptable risk to safety, has been developed to be protective of those underlying rights to the greatest extent possible: at [48]. The Court also turned its mind to the decision of the Victorian Court of Appeal in Nigro v Secretary to the Department of Justice [2013] 41 VR 359, which referred to the interaction between human rights and the evaluation task in discerning unacceptable risk, acknowledging a balance between the offender’s rights and the right of members of the public to be protected against the risk of the offender committing further offences: at [51]. The Court gave particular weight to an April 2021 report by the respondent’s treating psychiatrist, which included evidence from the respondent’s family and community (gathered by the respondent’s advanced Aboriginal mental health worker), who confirmed the respondent was very supported in his role as an Uncle, and that culturally isolating the respondent through reinstatement of the condition would have a negative effect on his mental health: at [57]. The Court accepted the treating psychiatrist’s evidence that a blanket direction preventing the respondent from having unsupervised access to children would be counterproductive and was more likely to do harm to an Indigenous man who takes his role as Uncle seriously. The Court considered it was a protective factor that the respondent was with children because he has a view that he has to protect them: at [87]-[89]. Ultimately, the Court was not satisfied that there was an unacceptable risk if the respondent had unsupervised contact with children and confirmed the decision of the Mental Health Review Tribunal, dismissing the appeal.
• Attorney-General for the State of Queensland v Haynes [2020] QSC 348
  The Attorney-General applied for a supervision order pursuant to ss 13(5)(b) and 16 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in relation to the respondent, who was convicted of serious sexual offences. The court noted the respondent’s right to a fair hearing (s 31 of the Human Rights Act 2019 (Qld)) when considering the appellant’s submissions, which were not considered further. The respondent, Lawrence Haynes, was serving a 12 year prison sentence for convictions of rape, assault occasioning bodily harm and deprivation of liberty in relation to an incident that took place in January 2006. Mr Haynes also had previous convictions for a number of serious sexual offences, and had been in prison ‘for all but approximately one of the last 19 years’: at page 2, line 5. As Mr Haynes was due to be released from custody, the Attorney-General applied for a supervision order pursuant to ss 13(5)(b) and 16 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General tendered ‘thousands of pages of physical documents’ in support of the application: at page 4, line 39. Jackson J stated that such a large number of submissions hindered the process of hearing the application. Further, His Honour noted that there is ‘a requirement of a fair hearing for a respondent … provided for by section 31 of the Human Rights Act 2019’ even if the proceeding occurred in the civil jurisdiction: at page 6, line 22 - 33. Despite the Court’s concerns about the overall quality of the evidence adduced by the Attorney-General, it was satisfied that Mr Haynes posed a serious danger to the community, given his pattern of offending and lack of progress with rehabilitation. The Court ordered that Mr Haynes be released from custody and from that time be subject to the requirements of the supervision order for a period of five years. His Honour also made various changes to the proposed draft supervision order.
• Attorney-General for the State of Queensland v Sri [2020] QSC 246
  The Attorney-General sought urgent injunctions to restrain the second, third and fourth respondents from attending or encouraging others to attend a planned protest which included a sit-in on the Story Bridge planned for 8 August 2020. Justice Applegarth considered that the following rights under the Human Rights Act 2019 (Qld) were relevant: freedom of movement (section 19); freedom of thought, conscience, religious belief (section 20); freedom of expression (section 21); peaceful assembly and freedom of association (section 22); and taking part in public life (section 23). His Honour reached the conclusion that the orders sought were appropriate because the assembly involved a planned sit-down of a significant duration, which placed a significant burden on the rights of other citizens. The Queensland Human Rights Commission intervened in the proceedings. The Attorney-General sought urgent injunctions to restrain the second, third and fourth respondents from attending or encouraging others to attend a planned protest which included a sit-in on the Story Bridge planned for 8 August 2020. Applegarth J confirmed that the Attorney-General applied for the injunctions in the interest of protecting ‘public health and comfort’: at [2]. His Honour noted that the relevant rights engaged under the Human Rights Act 2019 (Qld) were ‘freedom of movement (section 19); freedom of thought, conscience, religious belief (section 20); freedom of expression (section 21); peaceful assembly and freedom of association (section 22); and taking part in public life (section 23)’, but that these rights ‘may be subject under law to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’ pursuant to section 13: at [28]. His Honour also noted that the case involved ‘balancing the legitimate right to public assembly in all of its forms, including sit-down protests, against the public interest, the threatened obstruction of traffic [which] is a significant burden upon the public and upon individuals’: at [35]. His Honour concluded that the orders sought were appropriate on the basis that this assembly involved a planned sit-down which was to be ‘significant and long-lasting’ and in circumstances where ‘the obvious intent of the organisers [was] to engage in civil disobedience’: at [35]. Further, the event was to impose ‘a significant burden upon the rights of other citizens and upon the public more generally’ and the organisers had not attempted to engage the processes provided for in the Public Assembly Act 1992 (Qld): at [36]. His Honour granted ex parte injunctions against the third and fourth respondents from attending or encouraging others to attend the protest. His Honour declined to make orders against Councillor Sri, ‘in light of the state of the evidence and his submissions as to his involvement or lack of involvement in today’s planned event’ and because ‘[h]e mentioned in email communications that he thought that the event had been called off’: at [7].
• Attorney-General v Carter [2020] QSC 217
  Pursuant to section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Attorney-General applied to the court for either a continuing detention order or a supervision order in relation to the respondent, Carter, who was convicted of serious sexual offences. The court noted that supervision orders limit the right to liberty and freedom of movement contained in sections 29 and 19 of the Human Rights Act 2019 (Qld), but that they did so to fulfil the statutory purpose of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) relating to the safety of the community.
• BA, DC, FE v State of Queensland [2022] QCAT 332
  This interim decision concerned whether a litigation guardian would be needed by any of three children who had brought a case alleging age discrimination in respect of the conditions of detention in the Cairns watch house for periods in excess of two days and failure to segregate children from adult detainees. The governing statutory regime contemplated that a minor could bring a complaint that may be properly referred to the Tribunal, where the Tribunal would assist the young person in their litigation without the need for a litigation guardian. In consideration of the circumstances of the two eldest complainants BA and DC, Member Fitzpatrick held that they were competently able to instruct counsel notwithstanding their youth or respective disabilities. BA and DC were considered to have reached a sufficient understanding and intelligence to be capable of forming their own views on the matter requiring decision. On this basis, BA and DC would not require litigation guardians and could conduct proceedings as applicants. Member Fitzpatrick found that the youngest complainant, FE, who was fourteen years of age, would require a litigation guardian to ensure that his rights could be fully ventilated. A legal representative would be insufficient for this purpose, as a legal representative’s primary duty was recognised to be a primary duty to the court. Pursuant to Rule 95 and Form 13 of the Uniform Civil Procedure Rules 1999 (Qld), Member Fitzpatrick directed for a litigation guardian to be arranged for FE. Accordingly, it was considered whether this appointment would have any effect and likely limitation of FE’s human rights under the Human Rights Act 2019 (Qld), namely the right to recognition and equality before the law (section 15), the right to protection of families and children (section 26(2), and the right to a fair hearing (section 31). Member Fitzpatrick considered that the limitation on FE’s human rights would be, “consistent with a free and democratic society based on human dignity, equality, and freedom”, as required under section 13 of the Human Rights Act 2019 (Qld), as “its purpose is to ensure a fair hearing for all parties based on reliable and informed instructions from a party competent to give instructions”, where such a limitation would achieve this purpose consistently with the fair administration of justice: at [44]. The Tribunal held that public interest to ensure that litigation could reliably proceed would outweigh FE’s countervailing private interest to ensure that FE’s complaint was heard.