Items

• Baggaley v Commonwealth Director of Public Prosecutions [2020] QCA 179
• Bakhash v State of Queensland (Department of Education) [2022] QIRC 362
  This case concerned an appeal of the respondent’s decision that the appellant contravened clause 5 of the Employment Direction 1/22 - COVID 19 Vaccination (‘the direction’), without reasonable excuse. The appellant advanced a number of arguments and made several comments that the Commission considered to be incorrect. Among these, the appellant claimed generally that, according to the Human Rights Act 2019 (Qld), the direction was unlawful. The Commission noted that the appellant had failed to consider the effect of s 13 of the Human Rights Act 2019 (Qld), and the extent to which human rights may be legitimately limited. The Commission declined to hear the appellant’s appeal against the respondent’s decision.
• Balemi v Ingles [2020] QCATA 58
  This case was an application for a leave to appeal from a decision by an Adjudicator in a minor civil dispute whereby Balemi, the appellant, was ordered to pay Ingles a sum constituting a refund for a defective jet ski: at [1]. Balemi argued two grounds of appeal: He did not have the opportunity to present his case at the hearing (a fundamental entitlement to any person); and The purchase of the jet ski was made in Bartercard dollars, not Australian dollars, and the failure to refund in this currency ‘overcompensated Mr. Ingles’: at [9]. In assessing the first ground of appeal, Member Gordon held: ‘Provided the parties had been properly served it was open to the Adjudicator to proceed with the hearing if this were fair.’ He went on to explain: ‘The requirement to act fairly is in section 28(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and is also required by sections 28(3)(a) and acting fairly is one of the objects of the QCAT Act. Since 1 January 2020 the right to fair hearing is also provided by section 31 of the Human Rights Act 2019 (Qld)’: at [14]. Member Gordon did not further analyse section 31 but held that the first ground of appeal was not ‘reasonably arguable’: at [29]. The appeal ultimately failed and the original decision was stayed: at [50]-[51].
• Basnayake v TAFE Queensland [2022] QIRC 444
  This case concerned an appeal of a decision to extend the appellant’s fixed term temporary employment and to not permanently appoint her based on genuine operational requirements. The decision maker provided that Part 2 of the Human Rights Act 2019 (Qld) had been considered in making the decision. No further human rights discussion was given by the judgment. The Commission set aside the decision as it had no confidence that the matters specified in the decision amounted to genuine operational requirements of TAFE.
• BB v State of Queensland & Ors [2020] QCAT 496
  There was no substantial discussion of human rights in this case. The Tribunal held that the Human Rights Act 2019 (Qld) did not apply in this case as the legislation commenced after the relevant events took place: at [52]. The Tribunal observed that the evidence did not reach the threshold to make a finding of a contravention of human rights.
• BCC [2021] QCAT 123
  This matter concerned an application to appoint a guardian and administrator for BCC because of capacity and mental health concerns. The Tribunal noted that section 13(2)(d) of the Human Rights Act 2019 (Qld) was engaged when considering the need to appoint a decision-maker once the presumption of capacity had been rebutted. An application for the appointment of a guardian and administrator for BCC was made by the rehabilitation unit that had previously provided BCC with inpatient care. They had identified him as being financially vulnerable and lacking the ability to responsibly manage his finances: at [5]. At the hearing, the applicant’s sister appeared and advocated that she should be considered for the roles: at [8]. BCC’s independent advocate, Ms Hansen, questioned BCC’s sister’s appropriateness: at [17], [21]-[22]. The Tribunal found that those concerns were not supported by the evidence: at [23]. The Tribunal noted that the principle that all adults share the same human rights and fundamental freedoms required that BCC should not be treated as being unable to make his own decisions, and that all practicable steps be taken to provide him with the support and necessary information for him to make and communicate a decision: at [41]. The Tribunal also noted that it had to consider whether there was a ‘less restrictive and reasonably available way’ to achieve their purpose when deciding whether to appoint a decision maker, in accordance with section 13(2)(d) of the Human Rights Act 2019 (Qld): at [43]. The Tribunal did not cite any relevant human rights from the Human Rights Act 2019 (Qld). However, the General Principles in section 11B of the Guardianship and Administration Act 2000 (Qld) were highlighted, particularly BCC’s right to participate in decisions affecting him, and the presumption that BCC’s views, wishes and preferences would be sought before any appointed decision-maker exercised their power: at [43]-[44]. The Tribunal was satisfied that there was a need for the appointment of a guardian and administrator for particular types of decisions and financial matters: at [62]. Orders were made appointing BCC’s sister as both administrator for BCC’s interest held in real estate and guardian for the provision of services, including decisions relating to the NDIS, with a review scheduled after one year: at [62]-[64].
• BE v Director-General, Department of Justice and Attorney-General [2020] QCAT 498
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, BE. In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and right not to be tried or punished more than once (section 34), as well as the right to protection of children (section 26(2)) under the Human Rights Act 2019 (Qld), but there was no substantial discussion of human rights in this case. The applicant applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) so that she could undertake a university placement. The applicant had a history of drug use from 2016 to 2018, with a number of offences in that period including one conviction of possessing a dangerous drug (methylamphetamine) from 2018 and a related conviction for breach of the order imposed for failing to participate in a drug diversion program: at [13]. None of the convictions or charges were ‘serious’ or ‘disqualifying’ offences under the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [16]. However, the applicant was issued a negative notice on the ground that it was ‘an “exceptional” case in which it would not be in the best interests of children for the applicant to be issued with a positive notice and blue card’: at [2]. The Tribunal noted that the ‘overarching objective of the WWC Act which the Tribunal must observe is to ensure that the welfare and best interests of a child are paramount, and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing’: at [6]. The Tribunal, while accepting that it could not direct the respondent to issue a positive notice, found that the applicant had been successfully rehabilitated and would not represent a risk to the welfare of children if issued a positive notice and blue card: at [74] and [76]. The respondent’s decision that the applicant was an ‘exceptional’ case in which a blue card would not be issued was set aside and replaced with the Tribunal’s decision that the applicant’s case was not an exceptional one: at [78]. In conducting its review, the Tribunal had regard to the applicant’s right to a fair hearing (section 31) and her right not to be tried or punished more than once (section 34), in addition to the right to protection of children (section 26(2)) under the Human Rights Act 2019 (Qld): at [79]. The Tribunal was satisfied that the decision was compatible with human rights and to the extent there were any limitations on those rights, they were reasonable and justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [79].
• Bell v State of Queensland [2022] QSC 80
  The applicant sought judicial review of a decision which refused approval to deliver Satanic religious instruction in State schools. The judgment alluded to a submission made by the applicant which argued that s 48 of the Human Rights Act 2019 (Qld) required the phrase ‘religious denomination or society’ to be interpreted in a way that is compatible with human rights: at [44]. His Honour did not consider that this provision was applicable on the facts, and thus no substantive comments were made about human rights.
• Benjamin Stewart Shannon v Queensland Police Service [2022] QCAT 158
  The applicant sought a review of the respondent’s decision to dismiss him from employment with the Queensland Police Service (‘QPS’). There was no substantive discussion of human rights or the Human Rights Act 2019 (Qld) in the reasons, beyond bare acknowledgement that such rights had been considered. The applicant, Benjamin Shannon, was employed in the role of Senior Constable with the QPS. The QPS dismissed Mr Shannon from employment on the grounds that he inappropriately involved himself in the investigation of a traffic accident involving his wife, enabling his wife to avoid a possible charge of driving under the influence of alcohol. Mr Shannon was not challenging the finding of misconduct but the sanction of dismissal from QPS and seeking an alternative sanction.
• Bezett v State of Queensland (Queensland Fire and Emergency Services) [2023] QIRC 048
  The case concerned an application for leave to be legally represented in any conciliation conferences held before the Commission regarding an unfair dismissal application. The respondent had raised in submissions specific issues that were likely to be disputed, both in fact and law, which included whether the respondent had complied with the Human Rights Act 2019 (Qld). There were no further references to or discussion of the Human Rights Act 2019 (Qld). The Commission did not consider human rights in the decision to grant leave to be legally represented.
• BIL v Queensland Police Service - Weapons Licensing [2022] QCAT 150
  BIL applied to renew his weapons licence, stating that he had an occupational requirement as a primary producer on rural property (acknowledged as a genuine reason for a weapons licence in s 11 of the Weapons Act 1990 (Qld)). The renewal application was refused so BIL applied to the Tribunal to review the decision. The decision to refuse the application on the basis of it not being in the public interest was confirmed. In confirming the decision, Member Deane acknowledged that the Tribunal was acting as a public entity in an administrative capacity, bound to interpret statutory provisions in a way compatible with human rights to the extent possible in keeping with the statute’s purpose. The Tribunal accepted that the decision potentially impacted BIL’s rights but was satisfied that the limitations on those rights were reasonable and justifiable.
• Bishop v State of Queensland (Queensland Ambulance Service) [2022] QIRC 292
  This case concerned an appeal of the respondent’s decision to refuse to exempt the appellant from the required doses of the COVID-19 vaccination. The appellant referred to her right to protection from torture and cruel, inhuman or degrading treatment (section 17) under the Human Rights Act 2019 (Qld). The Commission considered the appellant’s human rights, and was satisfied that they had been suitably addressed in the respondent’s decision. The respondent, in their decision, was satisfied that any limits on human rights engaged – particularly the right to recognition and equality before the law (section 15), and the right to take part in public life (section 23) - were justified. The Commission confirmed the respondent’s decision.
• BJ [2022] QCAT 326
  This case concerned an application to the Tribunal, seeking authorisation to share information about former guardianship proceedings concerning BJ with the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and a News Media company. CH, an active party to the former proceedings, sought to have their identity withheld from any authorised publication. The Tribunal noted that BJ intended to present ‘an unflattering and indeed reputationally damaging’ account of the former proceedings insofar as CH was concerned, which CH would be unable to defend. The Tribunal acknowledged that, pursuant to section 48 of the Human Rights Act 2019 (Qld), statutory provisions must be interpreted in a way that is compatible with human rights. The Tribunal concluded that allowing BJ to share the information is consistent with the right to freedom of expression (section 21). Additionally, the Tribunal noted that the right to privacy (section 25) was considered related to CH’s concerns, however the authorisation to share BJ’s information was considered lawful and that if any concern arose regarding the defamation of CH, there would be appropriate legal remedies available to them. The Tribunal decided to exercise its discretion to authorise BJ to identify himself in connection with the former proceedings.
• BLK [2022] QCAT 222
  This matter concerned an interim order application for the appointment of a guardian. The Tribunal noted that a successful interim application would frequently affect the adult’s rights under the Human Rights Act 2019 (Qld), such as their right to freedom of movement (section 19). The Tribunal also considered that the appointment of an interim guardian might enhance the adult’s rights, including by promoting the right to protection from degrading treatment (section 17). The Tribunal concluded that they were not able to make a well-informed assessment as to whether it was necessary to appoint a guardian until the substantive application could be heard. The Tribunal concluded that there was not sufficient risk of harm, and the interim application was dismissed.
• Blomfield v State of Queensland (Queensland Health) [2022] QIRC
  This application concerned an appeal of a decision to not approve the applicant’s request for an exemption from the requirement to receive the necessary doses of the COVID-19 vaccination. The applicant referred to her right to work (within the International Covenant on Economic, Social and Cultural Rights) and her cultural rights (section 27), while the respondent referred to the applicant’s right to recognition and equality before the law (section 15) and her right to health services (section 37). The Tribunal considered the human rights raised in the submission and found them justifiably balanced in the circumstances, however, did not engage in any further substantive discussion.
• Bloxham v State of Queensland (Queensland Police Service) [2022] QIRC 37
  The case concerned an application for an exemption pertaining to mandatory COVID-19 vaccination and requirements for police officers in circumstances where the Appellant was suspended without remuneration when her exemption was denied. The Appellant contended that the Respondent’s conclusions with respect to her human rights ‘lack[ed] clarity’: at [23]. However, the Commission considered that the Respondent had taken her human rights into careful consideration in listing several rights that may have been limited and considered why those limitations were reasonable, which included the right to protection from torture and cruel, inhuman or degrading treatment (section 17) and the right to privacy and reputation (section 25) in the of the Human Rights Act 2019 (Qld). The Respondent considered that the importance of maintaining financial accountability and public trust in the Queensland Police Service outweighed the impacts on her rights. The Commission held that it was not unreasonable to refuse the exemption request and suspend the Applicant on this basis.
• Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39
  The applicant was the principal body corporate for a layered community title scheme comprised of 18 subsidiary body corporates. The respondent was a service contractor under the Body Corporate and Community Management Act 1999 (Qld). A dispute arose regarding the terms of the relevant caretaking agreement. Although no specific human rights were mentioned by the Tribunal or the parties, the Tribunal noted that its interpretation of relevant statutory provisions had to be consistent with human rights pursuant to s 48 of the Human Rights Act 2019 (Qld).
• Body Corporate for the Lakes-Cairns CTS 28090 v Sunshine Group Australia Pty Ltd [2023] QCAT 39
  The applicant was the principal body corporate for a layered community title scheme comprised of 18 subsidiary body corporates. The respondent was a service contractor under the Body Corporate and Community Management Act 1999 (Qld). A dispute arose regarding the terms of the relevant caretaking agreement. Although no specific human rights were mentioned by the Tribunal or the parties, the Tribunal noted that its interpretation of relevant statutory provisions had to be consistent with human rights pursuant to s 48 of the Human Rights Act 2019 (Qld).
• Bowie v Gela [2022] QCATA 112
  The appellant sought a stay of the Tribunal’s decision to terminate the residential tenancy agreement between the appellant and respondent. The appellant also filed an application for leave to appeal the decision which included a generalised complaint that his rights under the Human Rights Act 2019 (Qld) were infringed by the termination because of a shortage of housing on Badu Island. The Tribunal acknowledged the appellant would be disadvantaged due to the shortage of housing, but also noted the respondent would be equally disadvantaged by not having access to her own property: at [11]. The Tribunal refused the application for a stay but did not otherwise make any substantive comments or findings in relation to the application of the Human Rights Act 2019 (Qld).
• Bowie v Queensland Police Service [2022] QLC 8
  The Court dismissed an application for a number of orders under the Land Court Act 2000 (Qld). In doing so, the Court found that the Human Rights Act 2019 (Qld) had no bearing on the Queensland Police Service’s execution of a lawfully granted warrant of possession. The Court also considered that evicting the applicant from a house he leased on Badu Island, where the applicant was a common law native title holder of Badu Island, would not result in a denial of the applicant’s cultural rights under Human Rights Act 2019 (Qld). This case concerned an application for a number of orders under the Land Court Act 2000 (Qld). The most pressing of these orders was an injunction to prevent the execution of a warrant of possession against a house subleased to the applicant: at [17]. The remaining three orders concerned the progress of a home ownership application, and the continuation of a social housing lease, over the same property. The applicant was a common law native title holder of Badu Island. He submitted that, were he to be evicted from the subject property, his human rights would be breached as he would be prohibited from exercising his cultural rights to maintain a connection to Badu Island as a native title holder: at [29]. The Court considered the issue of whether cultural rights, as protected under the Human Rights Act 2019 (Qld), provided for the protection or preservation or access to items, places or areas of cultural significance to Torres Strait Islanders: at [32]. It noted that Torres Strait Islander peoples must not be denied the right with other members of their community to enjoy, maintain, control, protect and develop their kinship ties: at [33]. The Court accepted the submissions made by three of the respondents that, as a public entity, the Human Rights Act 2019 (Qld) had no bearing on the Queensland Police Service’s execution of a lawfully granted warrant of possession: at [34]. Further, the Court was not convinced that the applicant’s eviction would result in a denial of cultural rights where evidence showed that he had continued to enjoy cultural rights despite long absences from Badu Island: at [35]. The Court concluded that there was sufficient reason to dismiss the application: at [49].
• Boyy v Executive Director of Specialist Operations of Queensland Corrective Services [2019] QSC 283
  This case concerned an application for an order under section 38 of the Judicial Review Act 1991 (Qld) for a written statement of reasons regarding the decision to attach an ‘enhanced security offender’ flag to the applicant’s prison profile. The applicant argued that section 34 of Human Rights Act 2019 (Qld) applied (right not to be tried or punished more than once), but the court found it unnecessary to consider this argument. There was no substantive discussion of human rights.
• BPM v Director-General, Department of Justice and Attorney-General [2022] QCAT 286
  This case concerned an application for a review of the respondent’s decision to issue a negative blue card notice to the applicant. In ordering that the respondent’s decision be set aside, the Tribunal referred to the Human Rights Act 2019 (Qld) as it was mentioned in submissions, however, did not substantively discuss these rights. BPM (‘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 [3]. The applicant had been charged with offences of unlawful stalking and trespass in late 2019 to early 2020, and an earlier offence of unlawful stalking in 2010: at [3]. The victim of all three offences was a woman 27 years older than the applicant who lived next door to his parents: at [27]. It was undisputed that the offence committed was not a ‘serious offence’ as defined in the Working with Children (Risk Management and Screening) Act 2000 (Qld): at [40] and [52]. The Tribunal heard submissions on various human rights raised in the applicant’s submissions, including the applicant’s right to privacy and reputation, right to take part in public life, right to further education, and cultural rights, though not all were considered relevant: at [44]. The Tribunal also noted that children have a right to protection under s 26(2) of the Human Rights Act 2019 (Qld): at [44]. The Tribunal concluded that its decision to overturn the negative notice was compatible with human rights under s 13 of the Human Rights Act 2019 (Qld): at [44]. The Tribunal set aside the respondent’s decision, finding that the applicant’s case was not an exceptional case.
• BR v State of Queensland (No 2) [2022] QIRC 154
  The appellant sought a review of the respondent’s decision to suspend his employment without normal remuneration after he had been charged with seven indictable offences, including five counts of sexual assault, which allegedly occurred during his work as a ride share driver and not his work for the respondent. The decision maker considered the effects of the decision on the appellant’s human rights (including his right to privacy and reputation) but did not draw on the Human Rights Act 2019 (Qld). The appellant raised his right under the Human Rights Act 2019 (Qld) to be presumed innocent until proven guilty (s 31(1)) however the Commission noted that the decision maker did not seek to determine or make a determination as to whether the appellant was guilty of the alleged conduct. The decision under review was an administrative action, taken for administrative necessity, rather than a disciplinary action, and the appellant would be entitled to reimbursement from the date of suspension without pay if the disciplinary process did not ultimately result in employment termination.
• Brisbane Marine Pilots Pty Ltd (in liquidation) v General Manager of Maritime Safety Queensland, Department of Transport and Main Roads and Ors (costs) [2022] QCAT 225
  This case concerned an application for a costs order. The Court considered that the importance of ready and economical access to justice has become more obvious with the passing of the Human Rights Act 2019 (Qld), particularly the right to a fair hearing (section 31): at [107]. The Court noted that this right goes beyond simply providing an entitlement to a procedurally fair hearing; it is a right of access to the courts which must provide a person with ‘a clear, practical opportunity to challenge an act that is an interference with his rights’: at [108]. This right of access extends to circumstances where court procedures are so complex that a solicitor would be required, but the person is unable to afford one: at [108]. As the right to access to justice is not absolute, the question (as it usually is under the Human Rights Act 2019 (Qld)) is whether such an impediment is a reasonable limit that is demonstrably justified in a free and democratic society based on human dignity, equality and freedom: at [109]. The Court considered that it might be possible that a financial burden imposed on a party when accessing a court or tribunal may be a contravention of such principles and may not be demonstrably justified: at [110]. In doing so, the Court noted (but did not apply or reject) a United Kingdom decision (R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51) where a trade union had successfully challenged application and hearing fees: at [110]. The Court did not directly apply human rights principles in this case.
• Brown v State of Queensland (Queensland Ambulance Service) [2022] QIRC 312
  This matter concerned an appeal of the respondent’s decision to refuse to exempt the appellant from COVID-19 vaccination requirements on the basis of a genuinely held religious belief. The appellant raised a number of human rights arguments. The Commission, in considering these arguments, noted the effect of s 13(1) of the Human Rights Act 2019 (Qld). The Commission found that the appellant’s rights were justifiably limited by the respondent, in light of the need to ensure the readiness of the Queensland Ambulance Service in responding to the COVID-19 pandemic, as well as the safety of its patients, employees, and the greater community.