Items

• Edwards v State of Queensland (Queensland Health) [2022] QIRC 091
  Ms Lisa Edwards (‘the appellant’) was employed as a Business Support Officer in a Clinical Governance Unit by the State of Queensland and appealed against the decision to refuse her vaccine exemption application, primarily on the basis that her refusal was not grounded in any genuinely held religious belief but rather, vaccine hesitancy arising out of concerns regarding the effiacy and safety of the COVID-19 vaccination specifically. In making the decision, the Commission referred to the Health Employment Directive 12/21 which required COVID-19 vaccinations for health service employees but allowed an exemption application to be considered in a range of circumstances, including where an employee has a genuinely held religious belief. The appellant submitted that the vaccination requirement is contrary to the right to protection from torture and cruel, inhuman or degrading treatment (section 17(c)). The Commission acknowledged that whilst the Directive impacted the rights to equality, non-discrimination and the right not to receive medical treatment without consent, however it did not find that the Directive could be reasonably characterised as enaging the right to protection from torture and cruel, inhuman or degrading treatment, provided for in section 17(c) of the Human Rights Act 2019 (Qld): at [42]. The respondent’s decision was confirmed and the appeal was dismissed.
• EH v Queensland Police Service; GS v Queensland Police Service [2020] QDC 205
  The right to peaceful assembly and freedom of association (section 22) in the Human Rights Act 2019 (Qld) was briefly mentioned by Fantin DCJ in Her Honour’s reasons for allowing an appeal and resentencing the two appellants in circumstances where the original sentences imposed were manifestly excessive. The two appellants were charged with obstructing a railway, trespassing on a railway, and using a dangerous attachment device to interfere with transport infrastructure, and contravening a police direction or requirement, after taking part in protest activity against coal mines. At first instance, the Acting Magistrate convicted and sentenced the appellants to three months imprisonment, wholly suspended for two years, for the offence of using a dangerous attachment device: at [8]. The appellants were convicted of the other offences, but no further penalty was imposed: at [8]. The appellants appealed against the sentences of imprisonment on the grounds that they were manifestly excessive, and Fantin DCJ made orders allowing the appeal and the resentencing of the appellants. Her Honour noted that the Explanatory Notes to the Summary Offences and Other Legislation Amendment Bill 2019 which included a statement highlighting the right to peaceful assembly. The Explanatory Notes stated that the right to peaceful assembly ‘has long been recognised in international human rights law through Article 21 of the International Covenant on Civil and Political Rights’ and has also been recognised in both the Peaceful Assembly Act 1992 (Qld) and Human Rights Act 2019 (Qld): at [50]. Consequently, Her Honour held that the appellants ‘have the right to express their views and to protest against an activity to which they object’, which is limited by law and the ‘prevention of disorder or crime of the protection of the rights and freedoms of others’: at [66]. Her Honour held that the Acting Magistrate imposed a sentence that was ‘manifestly excessive’ and ‘made several errors which caused the sentencing discretion to miscarry’: at [86]. Subsequently, a single fine of $1000 was issued to each of the appellants for all of the offences: at [94].
• Elliott v State of Queensland (Queensland Health) [2022] QIRC 332
  The case concerned an appeal of a disciplinary finding decision and a suspension without pay decision. The appellant contended that decisions following vaccine directions made under the Health Employment Directive No. 12/21 - Employee COVID-18 vaccination requirements had contravened the Human Rights Act 2019 (Qld), which she subsequently sought to invoke. The Commission considered that the arguments relying on the Human Rights Act 2019 (Qld) regarding the COVID-19 vaccination mandate were “incomplete”: at [36]. The Commission did not further discuss human rights and declined to hear the appeal: at [47].
• Ellison v State of Queensland (Queensland Health) [2022] QIRC 174
  The appellant sought a review of the respondent’s decision not to convert her employment from a Registered Nurse (NG5) to a Clinical Nurse (NG6). The appellant referred to the Human Rights Act 2019 (Qld) in her submissions to assert that all employees must be treated equitably, that decision makers have an obligation to make decisions in a way that is compatible with human rights and that decision makers are obliged to give proper consideration of human rights. There was no substantive discussion of human rights or the Human Rights Act 2019 (Qld) in the reasons of the Commission.
• ELS v QPS – Weapons Licensing [2022] QCAT 118
  The appellant sought a preliminary decision about whether information filed by QPS was ‘criminal intelligence’ in proceedings involving a substantive review of three decisions relating to weapons licensing. Member Lee concluded the information was ‘criminal intelligence’ resulting in its non-disclosure to the applicant, and in doing so consideration was given to the right to a fair hearing under section 31 of the Queensland Human Rights Act 2019 (Qld). The applicant sought review of three decisions relating to the revocation and rejection of weapons licenses. Before these matters could proceed to a substantive review hearing, it was necessary for Member Lee to determine the preliminary issue of whether information filed by the Queensland Police Service (QPS) was correctly categorised as ‘criminal intelligence’ under the Weapons Act 1990 (Qld). Member Lee considered the information satisfied several of possible criteria that constitute ‘criminal intelligence’ under section 142A of the Weapons Act 1990 (Qld): at [24]. This resulted in the information being protected from disclosure to the applicant for the substantive review hearing: at [28]. In making the decision, Member Lee noted that, while no submission was made by either party addressing the Human Rights Act 2019 (Qld), the right to fair hearing under section 31 was potentially engaged and limited by the decision to prevent the disclosure of information to the applicant. Ultimately, Member Lee was satisfied the limitation placed on the applicant’s right to a fair hearing was lawful and proportionate in the circumstances, and reasonably justifiable based on several grounds, including: the potential consequences of disclosure of the information, the overriding objectives of the Weapons Act 1990 (Qld) to prevent weapons misuse and that the right to a fair hearing should be balanced against the right to the community if ‘criminal intelligence’ is disclosed: at [27].
• Elsworthy v State of Queensland (Queensland Ambulance Service) [2022] QIRC 412
  This matter concerned an application for a review of a decision from the respondent to refuse to exempt the applicant from the required doses of the COVID-19 Vaccination. The Commissioner did not engage in any substantive discussion in respect to the applicant’s human rights. Although the applicant refers to their human rights more broadly (i.e., right to safety and informed consent), they did not refer to any specific right under the Human Rights Act 2019. The respondent did, however, consider the right to protection from torture and cruel, inhuman or degrading treatment (section 17), the right to recognition and equality before the law (section 15), and the right to take part in public life (section 23), however, it was determined to be reasonably justified. The Commissioner was satisfied that the respondent had made the decision in a way that was compatible with human rights, acknowledging that the decision does not itself compel a person to be vaccinated but rather, imposes employment consequences on those working within the Queensland Ambulance Services that require vaccination except in extenuating circumstances, a requirement both necessary and justified in the context of a global pandemic.
• EMC v MMH & Ors [2022] QCATA 139
  This matter concerned an application for leave to appeal and an application to stay a decision made by the Tribunal regarding EMC’s removal as an Enduring Power of Attorney for ECJ. The Appeal Tribunal dismissed the application to stay a decision. The Appeal Tribunal considered that in the context of exercising judicial power, EMC was accorded a fair hearing compatible with his human right to a fair hearing under s5(2)(a) of the Human Rights Act 2019 (Qld). The Tribunal did not undertake further discussion of the Human Rights Act 2019 (Qld).
• FBN v Director-General, Department of Justice and Attorney-General [2020] QCAT 260
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, FBN, which was made on the basis that the applicant was an “exceptional case” where the issuing of a positive notice would not be in the best interests of children. The applicant, FBN, wished to renew his blue card so that he could undertake the remaining practical replacements required to complete his education degree and become a high school teacher. A negative notice was issued on the basis of FBN’s commission of the offences of possessing a dangerous drug (cannabis), and equipment relating to the possession of a dangerous drug. He also had a previous conviction for possession of cannabis. On both occasions, he pleaded guilty and convictions were not recorded. There were also earlier charges relating to drunk and disorderly behaviour and obstruction of a police officer, but these charges were discontinued by the prosecution. Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to FBN unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. The respondent’s lawyer raised the Human Rights Act 2019 (Qld), ‘commenting that there may be rights of FBN that are relevant, as well as the right of a child to the protection needed by the child, and which is in the child’s best interests, because of being a child’, in section 26(2): at [54]. The Tribunal considered that the only human right relevant to FBN was the ‘right to have the current proceeding decided by a competent, independent and impartial tribunal after a fair and public hearing’ under section 31(1) of the Human Rights Act 2019 (Qld): at [54]. However, the Tribunal considered this right to be limited by the express provision in section 361(1) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) to require a hearing in child-related employment reviews to be held in private. The Tribunal confirmed the respondent’s decision to issue a negative blue card notice because the Tribunal found that it would not be in the best interests of children to award a positive notice: at [61]. The Tribunal based this decision on the fact that FBN was a frequent user of cannabis over a number of years, noting that ‘until such time as he has demonstrated sustained abstinence, the risk remains of relapse into heavier use’: at [59]. The applicant’s counsel sought a non-publication order ‘on the basis that convictions were not recorded for any of FBN’s offending’ and accordingly, ‘he is not required to disclose his offending’ and ‘protection would be removed if his case could receive publicity that identifies him’: at [63]. The Tribunal made a non-publication order on the basis that ‘it would not be in the interests of justice for FBN’s identity to be published’: at [65].
• Fennell v State of Queensland (Queensland Health) [2021] QIRC 092
  This case concerns an appeal to the Queensland Industrial Relations Commission against a decision made with respect to the appellant’s fixed term temporary employment status and consideration of conversion to permanent employment. In order to consider the appeal, it was necessary to consider the relevant provisions of the Public Service Act 2008 and Directive 09/20 Fixed Term Temporary Employment, the latter of which included a reference to the requirement imposed by section 58 of the Human Rights Act 2019 which requires decision makers to act and make decisions in a way that is compatible with human rights. However, there was no consideration of human rights made by the Commission.
• Fernwood Womens Health Clubs (Australia) Pty Ltd [2021] QCAT 164
  The Tribunal considered the benefits of providing an opportunity for women to reach fitness goals uninhibited by the presence of men, the importance of wellbeing education seminars specifically designed for women, and the community interest in permitting women to attend a women-only gym when they would not otherwise attend a mixed gym: at [27]. The Tribunal considered itself bound by section 58 of the Human Rights Act 2019 (Qld) as it was acting as a public entity in deciding whether to grant an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld): at [29]. The Tribunal clarified that both the way in which the Tribunal made the exemption decision, and the exemption decision itself, must be compatible with human rights, and that proper consideration must be given to relevant human rights: at [28]. The Tribunal noted there were no submissions to suggest that it was not compatible with human rights to determine the matter on the papers instead of by way of oral hearing: at [31]. In considering whether to grant the exemption, the Tribunal identified that granting the exemption may affect the right to recognition and equality before the law (section 15 of the Human Rights Act 2019 (Qld)): at [32]. The Tribunal found that this right was limited by the exclusion of men on the basis of their sex and considered whether this human right was limited only to the extent that was reasonable and demonstrably justifiable in accordance with section 13 of the Human Rights Act 2019 (Qld): at [33]. The Tribunal held that the purpose of limiting the right to recognition and equality before the law, which benefited women who wished to attend a female-only exercise centre for medical, religious or psychological reasons, was consistent with a free democratic society: at [35]. The Tribunal found that the exemption was necessary and appropriate, and no other less restrictive or ‘reasonably available ways’ existed to achieve that purpose: at [35]. The Tribunal was satisfied that the exemption was compatible with human rights and granted the exemption to Fernwood for a period of five years: at [37].
• FGH v Director-General, Department of Justice and Attorney-General [2020] QCAT 401
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, FGH, which was made on the basis that the applicant was an ‘exceptional case’: at [3]. FGH had previously held a blue card but allowed it to lapse when his parents ceased fostering children: at [1]. He had applied for a new blue card in order to obtain employment as a swim teacher. A negative notice was issued on the basis of FGH’s conviction for the offences of serious assault of a person over 60 and using a carriage service to menace, harass or cause offence. As FGH had not been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to him unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. In considering the submitted evidence and material, the Tribunal confirmed that ‘possession of insight’ is an ‘important protective factor’ because children ‘are entirely dependent on the adults around them having insight into their actions and the likely effect on children’: at [54]. The Tribunal found FGH exhibited ‘genuine remorse and insight into his offending behaviour’: at [57]. Member McDonnell recognised that section 58 of the Human Rights Act 2019 (Qld) required the Tribunal to act in a manner compatible with human rights: at [61]. To this end, the Tribunal considered that the hearing being held in private was consistent with the applicant’s right to a fair hearing (section 31): at [64]. The Tribunal also noted that the purpose of this hearing was to protect children, rather than impose further punishment on the applicant: at [62]. This was held to be consistent with the applicant’s right not to be tried or punished more than once (section 34): at [65]. The Tribunal also 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’ (section 26(2): at [65]. The Tribunal finally noted that its decision was ‘compatible with human rights and to the extent that there are any limitations on those rights, those limitations were reasonable and justifiable in accordance with section 13’ of the Human Rights Act 2019 (Qld): at [65]. The Tribunal ordered that the respondent’s decision to issue a negative notice be set aside, on the basis that ‘on the balance of probabilities, that this is not an exceptional case in which it would not be in the best interests of children for a working with children clearance to be issued’: at [67].
• FH [2020] QCAT 482
  This case concerned an application made by Direct Care Resources for the appointment of the Public Guardian to make decisions with respect to legal matters for FH. An employee of Direct Care Resources sustained an injury after slipping whilst providing care services to FH at FH’s home, and subsequently filed a claim under the Personal Injuries Proceedings Act 2002 (Qld). Evidence was provided by FH’s general practitioner that he did not possess the capacity to make decisions with respect to complicated legal matters. The Public Trustee had already been appointed as administrator of FH’s financial and property matters, but Member Traves found that this matter was not within the mandate of the Public Trustee. This was because it concerned FH’s liability under the Personal Injuries Proceedings Act 2002 (Qld), rather than being a legal matter with respect to FH’s property or finances. Member Traves held that there would ‘be an immediate risk of harm to FH’ if the appointment of the Public Guardian was not made and made an order to that effect: at [13]. In making that order, Member Traves recognised the Tribunal as being ‘subject to the HRA [Human Rights Act 2019 (Qld)] when it makes a decision to appoint an administrator or guardian under the Act, being, in the course of making that decision, a “public entity” acting in an “administrative capacity”’: at [13]. Member Traves did not specify what sections of the Human Rights Act 2019 (Qld) were considered in her decision.
• FHV [2022] QCAT 312
• Figueiredo v State of Queensland (Queensland Health) [2023] QIRC 052
  The matter concerned the appeal of a decision from the respondent to refuse to exempt the appellant from the required doses of the COVID-19 vaccination. The appellant submitted he was exempt from the obligation based on a genuinely held religious belief however did not expressly refer to his rights under the Human Rights Act 2019 (Qld). Reference to the Human Rights Act 2019 (Qld) was contained in the respondent’s decision to refuse the exemption application, stating that although the mandate would potentially impact the human rights of the appellant, it was reasonably justified for the purpose of protecting staff and patients from infection and to maintain a proper and efficient health system. The Commission did not engage in any substantive discussion in respect to the applicant’s human rights. The Commission held that the decision was fair and reasonable and dismissed the appeal.
• Fitzgerald v Venables & Anor [2022] QSC 78
  In January 2022, a delegate of the first respondent, the Queensland Human Rights Commissioner, made a decision not to accept a complaint made under the Human Rights Act 2019 (Qld). In a prior application, Applegarth J provided the applicant, Mr Fitzgerald, with a statement of reasons for the decision and adjourned the matter to be listed for further directions. The applicant subsequently filed for the application to be decided without an oral hearing and made submissions outlining his arguments for the application. Martin SJA discussed the issues with the applicant's request for the matter to be heard on the papers and arguments made in his submissions, ordering that a contractor be appointed to assist the Court in dealing with the matter. The matter was adjourned. No substantive discussion of the Queensland Human Rights Act 2019 (Qld) was required by Martin SJA in adjourning the matter.
• FJM v Director-General, Department of Justice and Attorney-General [2023] QCAT 36
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant. The applicant had been convicted for wilful and obscene exposure in 1979, 1992 and 2015. The Tribunal upheld the negative blue card notice. The applicant made reference to and relied on his rights under the Human Rights Act 2019 (Qld), but the Tribunal considered any infringement on those rights was justified due to the paramount consideration of the rights and interests of children.
• Fletcher v State of Queensland (Queensland Health) [2023] QIRC 045
  The appellant in this case had sought an exemption to mandatory vaccination requirements on the basis of exceptional circumstances. These circumstances included concerns regarding a lack of consultation, safety, and efficacy of the vaccine, and the incursion upon the appellant’s human rights. The appellant asserted that mandatory vaccinations were a breach of section 17 of the Human Rights Act 2019 (Qld) which provided the right to protection from torture and cruel, inhuman or degrading treatment. The Commission held that the respondent had given proper consideration of the appellant’s human rights in their decision to refuse the exemption application. The Commission confirmed the respondent’s conclusion that any limitation upon the appellant’s human rights caused by the decision was justified by the purpose of ensuring the readiness of the health system responding to COVID-19, and to protect the lives of employees, patients and the community.
• Flowers v State of New South Wales [2019] NSWSC 1467
  This case concerned an amended statement of claim. The defendant was requesting further particulars and maintained that he had not received a sufficient response to enable him to formulate or file a proper defence. The defendant argued that the pleadings and the plaintiff's claim should be struck out and dismissed in accordance with the Uniform Civil Procedure Rules 2005 (NSW) for being ‘frivolous or vexatious’: at [3]. The Human Rights Act 2019 (Qld) was included as an argument by the plaintiff, but the court did not find it necessary to assess this argument, nor did the court consider the Human Rights Act 2019 (Qld) to be relevant to the case. Harrison J noted: ‘For example, Mr. Flowers alleges that there have been Australian and international human rights breaches by the NSW Police spanning 14 years. These include various breaches of the Universal Declaration of Human Rights, the Human Rights Act 1998 (UK), the Queensland Human Rights Act 2019, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It is not apparent from the amended statement of claim how these various enactments or treaties inform or support the existence of a viable cause of action against the present defendant’: at [30]. His Honour made several orders, including striking out the amended statement of claim: at [36].
• FQA and MKD v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 126
  The case concerned an application to review a contact decision. The Tribunal considered that account needed to be taken of the right under section 26 which, in part, provides that families are the fundamental group unit of society and are entitled to be protected by society and the State, and that every child has the right, without discrimination, to the protection that is needed by the child: at [13]. The Tribunal quoted the discussion of those rights in N and IN v Department of Child Safety, Youth and Women [2020] QCAT 146: at [14]. The Tribunal discussed that, also in N and IN v Department of Child Safety, Youth and Women [2020] QCAT 146, it was noted that the UN Human Rights Committee, in a case arising in the Western context, had stated that while the term family should be given a broad interpretation, a relationship must display the ‘minimal requirements’ of ‘life together, economic ties, a regular and intense relationship, etc’ in order for it to be protected as a family under art 23(1) of the International Covenant on Civil and Political Rights: at [17]. It was also noted that, in the present matter, no relevant person identified as Indigenous, and that it was “not evident that any other ethnic or cultural considerations arose that might impact a determination of what constitutes a ‘family:’ at [17] n 20. The Tribunal considered these minimal requirements were “far from the circumstances of the present case” as “MKD has never met the subject children and there is no indication of any other involvement with them, other than perhaps indirectly through his relationship with FQA, the nature and scope of which is not evident on the material before the Tribunal:” at [18]. The Tribunal determined that MKD was not a parent or a member of the children’s family, so he had no standing to bring an application to review that decision and the Tribunal did not have jurisdiction to determine the application: at [19].
• GCS [2020] QCAT 206
  The Tribunal considered whether there was a need to appoint a guardian and administrator for GCS, an 89 year-old woman with impaired capacity. The Tribunal had regard to the interpretation provisions of the Human Rights Act 2019 (Qld) (s 48), GCS’s property rights (s 24), freedom of movement (s 19), and right to privacy (s 45) when making its decision to appoint the Public Guardian to manage GCS’s affairs. This case concerned GCS, an 89 year-old woman who had been hospitalised and subsequently transferred to an interim care facility at the time of the hearing. On 17 July 2018, GCS appointed her son, RFA, as her Enduring Power of Attorney for personal, health and financial matters. She also named her friend, JFH, as successive attorney, should RFA be unwilling or unable to act. On 17 April 2020, the Tribunal received an application from LS, a social worker at the hospital, seeking the appointment of a guardian and administrator for GCS, and an order about an Enduring Power of Attorney. The applicant sought RFA to be ‘appointed “jointly with another trusted party rather than solely”, or the appointment of the Public Guardian and Public Trustee of Queensland as guardian and administrator’: at [4]. In accordance with s 12 of the Guardianship and Administration Act 2000 (Qld), the Tribunal was satisfied that GCS had impaired capacity to make complex personal and financial decisions. The Tribunal went on to determine what decisions were required for GCS and whether the current decision-making regime was meeting her needs and protecting her interests. After reviewing the evidence before it, the Tribunal held that RFA would not discharge effective decision-making as an Enduring Power of Attorney for GCS: at [55]. As JFH supported the appointment of the Public Guardian and Public Trustee of Queensland as guardian and administrator, the Tribunal was unable to empower JFH as successive attorney. Accordingly, the Tribunal appointed the Public Guardian as guardian for GCS for the matters of accommodation and health care: at [58]. The Public Trustee of Queensland was also appointed as administrator for GCS for all financial matters: at [60]. The Tribunal noted its obligation under s 48 of the Human Rights Act 2019 (Qld) to interpret statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights. It also acknowledged that GCS’s ‘rights to property, freedom of movement, privacy and protection from being subject to medical treatment without her full, free and informed consent are engaged and limited by the guardianship and administration appointments’: at [64]. The Tribunal, however, was satisfied that the limits imposed by its decision were reasonable and justified pursuant to s 13 of the Human Rights Act 2019 (Qld).
• GEE v Director-General, Department of Justice and Attorney-General [2022] QCAT 260
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, GEE. In weighing the risk and protective factors in consideration of the evidence, the Tribunal considered the applicant’s prior ten child concern reports for children in her care, her history of domestic violence (as both a protected and respondent person) and limited criminal history, the applicant’s ongoing interpersonal conflict with others and authorities, the circumstances in her home, the lack of independent social supports, and the perceived lack of insight and accountability the applicant had for her own actions related to harm suffered to a child in her care. In conducting its review, the Tribunal noted the right to protection of families and children (section 26(2)) under the Human Rights Act 2019 (Qld) finding that the rights of children remain the paramount consideration and outweigh any limitation on the human rights of the applicant.
• GI [2023] QCAT 122
  This matter concerned a woman with an intellectual disability on behalf of whom consent was sought for a hysterectomy to mitigate an increased risk of cancer. In having regard to her right to recognition before the law, freedom of movement and privacy, and protection from inhuman or degrading treatment, the Tribunal found that limits were reasonable and justified in consenting to the hysterectomy. This matter concerned applications for guardianship and administration, and for consent to a hysterectomy for a 35 year old woman with an intellectual disability in circumstances where an increased risk of cancer led to a recommendation for a hysterectomy and where she had expressed a desire to have a hysterectomy. The Tribunal confirmed that the applicant’s limited capacity did not limit her human rights and freedom, as per s 11(b) of the Human Rights Act 2019 (Qld), which were to be recognised and considered: at [14]. In accordance with their requirement under section 48 of the Human Rights Act 2019 (Qld), the Tribunal considered relevant human rights including the applicant’s rights to equal recognition before the law (s 15), freedom of movement (s 19) and privacy (s 25) and protection from inhuman or degrading treatment (s17): at [31]. The Tribunal was satisfied that the limits imposed by the orders were reasonable and justified in consenting for the application to undergo sterilisation, in the least restrictive manner based on the information before it: at [31].
• Gilbert v Metro North Hospital Health Service & Ors [2020] QIRC 084
  This case concerned an application by Ms. Margaret Gilbert, a registered nurse and member of the Nurses Professional Association Queensland (NPAQ). Ms. Gilbert filed an amended application seeking ‘declaratory relief and other orders against the named respondents,’ arguing that they ‘misrepresented her workplace rights regarding NPAQ’: at [1]. The Queensland Nurses and Midwives’ Union of Employees (QNMU) subsequently filed an application ‘seeking orders to be jointed as a party to the proceedings on the basis that the relief sought by the applicant will have both a direct and indirect effect on the QNMU’s legal interests’: at [2]. The QNMU sought specific orders that they be jointed as a party to the proceeding, pursuant to the Industrial Relations Act 2019 (Qld) (‘the IR Act’) and that they be granted leave to be heard on matters identified in an affidavit issued on 9 March 2020: at [2]. The Commission was required to determine whether there was sufficient ground to entitle the QNMU to be joined as a party, ‘and extent of the participation that may be offered them’ in the proceedings: at [4]. The application was amended to include a reference to section 22 of the Human Rights Act 2019 (Qld), specifically the right to peaceful assembly and freedom of association. Here, the applicant sought declarations that the Nurses and Midwives (Queensland Health) Award - State 2015 and the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB10) 2018 contained clauses that violated her rights under section 22 and unlawfully discriminated against her on the basis of trade union activity: at [35]. In response, the QNMU sought to be heard ‘on the proper construction of the IR provisions’ and the potential consequences arising from the Human Rights Act 2019 (Qld) and international treaties. They further sought to determine whether the NPAQ ‘answers the relevant description of an industrial association, trade union or registered organisation and what effect that has on any rights and entitlements of the NPAQ’: at [51]. The Commission ultimately granted QNMU ‘a right to make both written and oral submissions’ and ordered that within seven days the parties ‘file and serve submissions on the form of the orders to be made’: at [58]-[59].
• Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255
  The applicant sought declarations that the respondents had acted unlawfully under s 58 of the Human Rights Act 2019 (Qld) by acting in a way that was incompatible with her right to freedom of expression (s 21) and freedom of association (s 22(2)), and by failing to give proper consideration to her human rights. The Commission dismissed the application, on the basis that limitations were reasonable and demonstrably justifiable. This case concerned alleged breaches under the Industrial Relations Act 2016 (Qld) and the Human Rights Act 2019 (Qld). The applicant, Ms Gilbert, was quoted in an article in the Sunday Mail where she made critical comments about nursing graduates and the nursing profession: at [7]. The article identified her as ‘the duty nurse manager at Prince Charles Hospital’: at [7]. She was consequently issued with a notice to show cause why she should not be disciplined for making the comments: at [9]. In response, Ms Gilbert, applied to the Commission alleging there had been contraventions of the Industrial Relations Act 2016 (Qld), the Anti-Discrimination Act 1991 (Qld) and the Human Rights Act 2019 (Qld): [10] and [44]. Ms Gilbert sought declarations under the Human Rights Act 2019 (Qld) that the respondents had breached s 58(1)(a) by issuing the request to show cause. She claimed this was incompatible with Ms Gilbert’s right to freedom of expression (s 21) and her right to freedom of association (s 22(2)): at [348]. She also sought a declaration that the respondents had breached s 58(1)(b) by failing to give proper consideration to her rights in making their decision: at [348]. The applicant claimed that the respondent had taken adverse action against her for engaging in industrial activity as a member of the Nurses’ Professional Association of Queensland (NPAQ): at [448]. The applicant argued that the NPAQ was a ‘protected trade union’ and an ‘industrial association’: at [407]. However, the Commission found that the NPAQ was not an industrial association, nor a trade union: at [409]. Therefore, involvement in trade union activity could not have been the reason that the show cause notice was issued, and there was no breach of s 291 of the Industrial Relations Act 2016 (Qld): at [417]. In relation to the claimed breaches of the Human Rights Act 2019 (Qld), the Commission’s reasoning turned on the employee Code of Conduct upon which the show cause notice was issued: at [374]. The Commission found that the Code of Conduct limited the freedom of expression and the freedom of association, but that this was reasonable and demonstrably justifiable under s 13 of the Human Rights Act 2019 (Qld): at [377]-[383]. Citing Comcare v Banerji [2019] HCA 23, the Commission stated that ‘the employer's reasonable and lawful instructions about an employee's conduct, typically expressed in the form of a Code of Conduct, remain paramount’: at [377]. A public sector employee cannot rely on the Human Rights Act 2019 (Qld) for immunity from contravening their employer’s behavioural expectations, and reasonable limits are justifiable in protecting the reputation of a public service: at [377] and [397]. The Tribunal found that there was no independent ground of unlawfulness upon which s 59 of the Human Rights Act 2019 (Qld) could be engaged to provide piggyback relief for contravention of section 58(1): at [365]. The Commission refused to exercise its discretionary power, under section 463 of the Industrial Relations Act 2019 (Qld), to make a declaration in relation to an industrial matter, on the basis that the declarations the applicant sought in reliance on the Human Rights Act 2019 (Qld) would have no practical relevance or utility: at [392], [394] and [474]. The Commission emphasised that only the Supreme Court had the power to make a declaration of incompatibility and that the applicant had not applied to refer any matter to the Supreme Court: at [388]. The Commission dismissed the application: at [482].
• GNR [2022] QCAT 430
  GNR was a 21 year old woman with Prader-Willi Syndrome, a genetic condition that had resulted in a severe intellectual disability. The delayed-onset of GNR’s menstrual cycle caused GNR extreme distress leading to anxiety, violence, and obsessive-compulsive behaviours: at [12]. Due to GNR’s complicated health needs, two gynaecologists agreed that surgical intervention would be the least invasive and safest option to cease menstruation: at [13]-[15]. This procedure, however, would cause infertility: at [15]. GNR expressed her views and wishes, with the aid of her representative from the Office of the Public Guardian, that she wanted to stop the bleeding through surgery, that she did not wish to have a child and, that if she did have a child, she would not be able to look after the child herself: at [18]. GNR’s parents, who were GNR’s guardians, were also in favour of the procedure: at [19]. The Tribunal acknowledged the General Principles outlined in chapter 2A of the Guardianship and Administration Act 2000 (Qld) provided that all adults have the right to the same human rights: at [3]. The Tribunal considered that the right to not be subjected to medical treatment without free, full and informed consent (section 17(c)) and the right to access health services without discrimination (section 37(1)) under the Human Rights Act 2019 (Qld) were relevant to the decision: at [6]. The Tribunal considered that the right to access health services without discrimination was enhanced by giving consent for the proposed procedure: at [6]. Indeed, the Tribunal appeared to consider that a refusal to permit the procedure due to the lack of consent arising from GNR’s incapacity would be discriminatory and infringe the right to health services: at [6]. The Tribunal accepted that giving consent to the proposed procedure would limit the right to not be subjected to medical treatment without free, full and informed consent (section 17(c)) under the Human Rights Act 2019 (Qld): at [6]. The Tribunal noted that this was an important right and that the procedure would have significant effects with the lifelong infertility: at [6]. This was weighed against the need and purpose for the procedure and the lack of less restrictive and reasonably available ways to achieve it: at [6]. The Tribunal concluded that it would be reasonable to limit the right not to be subjected to medical treatment without full, free and informed consent, as it could be demonstrably justified in a free and democratic society based on human dignity, equality and freedom under section 13 of the Human Rights Act 2019 (Qld): at [6].