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• Gold Coast Property Expo v Rhodes [2022] QCATA 120
  The case concerned an appeal by Gold Coast Property Expo against a decision by a member to strike out or summarily dismiss their residential tenancy compensation claim against their former tenants. In allowing the appeal, the Tribunal noted the right to a fair hearing under section 31 of the Human Rights Act 2019 (Qld), saying: When exercising the discretion to strike out or dismiss under section 48 the tribunal would be mindful of the fact that such an order without hearing the claim on its merits has been described as ‘a very serious matter’ and drastic Such considerations have greater importance now under section 31 of the Human Rights Act 2019 (Qld) under which a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing: at [47]
• Gorgievski v Gold Coast City Council & Anor [2022] QCAT 365
  The discrimination complaint stemmed from the perceived mishandling of a sexual harassment complaint against the second respondent by the applicant: at [32]. The applicant complained that he was discriminated against because he was a gay man and also on the basis of his sex: at [34]. This complaint was made to the Queensland Human Rights Commission and was accepted as being sex discrimination and sexuality discrimination: at [35]. The applicant referred generally to the Human Rights Act 2019 (Qld) in his closing submissions before the Tribunal, however, his initial complaint to the Human Rights Commission did not allege any contravention of the Act, nor was his complaint to the Tribunal amended to cover any such allegations. The Senior Member did not deal with the issue further, but considered the Tribunal’s obligations under the Human Rights Act 2019 (Qld), in making the decision: at [99] and [100]. The Senior Member stated that the Tribunal, in exercising a judicial power by way of enforcing existing legal rights, was bound to apply the Human Rights Act 2019 (Qld) to the conduct of the proceedings where the nature of the Senior Member’s judicial function involves applying or enforcing human rights which relate to that function. In particular, Senior Member Fitzpatrick identified the applicant’s right to recognition and equality before the law (section 15(1)) and the right to a fair hearing (section 31). She found that a fair hearing was ensured by the applicant’s being heard in the proceeding and the taking into account of his evidence and submissions. Further, the hearing was conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which ensures a fair hearing: at [103]. As such, the Tribunal discharged their obligations under s 5(2)(a) of the Human Rights Act 2019 (Qld).
• Graffunder v State of Queensland (Queensland Health) [2022] QIRC 76
  The case concerned an appeal against a decision to suspend the Appellant’s employment as a health service employee without remuneration due to her inability to comply with Health Employment Directive No. 12/21 which required her vaccination against COVID-19. The Appellant argued that “lack of engagement” with the risks of the vaccine and coercion, bullying and discrimination were inconsistent with her human rights. She also contended that her suspension would breach her right to recognition and equality before the law (section 15) and right to protection from torture and cruel, inhuman or degrading treatment (section 17) of the Human Rights Act 2019 (Qld). The Respondent’s submitted that their exemption decision did expressly acknowledge and consider the possible limitation of human rights, though ultimately considered that the suspension was "justified by the need to ensure 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”: at [59]. The Commission was satisfied that the Respondent had sufficiently considered the Appellant’s human rights in circumstances where the differing views of the Respondent and Appellant did not render the Appellant worthy of an exemption.
• GT v Department of Transport and Main Roads [2022] QCAT 187
  This matter concerned an application to stay the operation of the Department of Transport and Main Roads’ decision to immediately suspend the applicant’s driver authorisation number as a result of him being charged with domestic violence offences. The Tribunal considered that the applicant’s rights may be impacted under the Human Rights Act 2019 (Qld), however, they were not satisfied that any rights such as the right to privacy (section 24) or the right to privacy and reputation (section 25) may be impacted in this matter in a way that outweighs the public interest in circumstances where serious charges have been made in a domestic violence setting and have not, to date, been finalised by a court. As such, the Tribunal refused to grant the application for the stay of the operation of the decision.
• Gundrum v State of Queensland (Queensland Health) [2022] QIRC 226
  This case concerned an appeal against the respondent’s (Queensland Health’s) decision to refuse the applicant’s application for an exemption to COVID-19 vaccine requirements under a directive. The applicant submitted that his human rights had been limited by the directive: at [23]. The Commission noted that his submission failed to “address the legal reality” that human rights can be limited in appropriate circumstances under section 13 of the Human Rights Act 2019 (Qld), and that there could not be a “more important reason” than the protection of the applicant’s colleagues, patients and visitors against the possibility of contracting a potentially deadly virus from an unvaccinated employee: at [46].
• HAC [2022] QCAT 104
  This case concerned an application for the appointment of guardians and administrators for HAC made by her son, WC. Mr C was proposed as both administrator and guardian; he would act jointly in the latter role with another proposed guardian who was not named in the application: at [1]. On the same day the application was made, Mr C made an application for an interim order seeking the appointment of an administrator and guardian for HAC: at [4]. Mr C indicated in his application that the order was necessary on the basis of allegations of neglect of HAC’s care and exploitation of her property, though he did not provide evidence of this to the Tribunal, nor was it clear who these allegations were levelled at: at [4]–[5]. A/Senior Member Traves made an order dismissing the application for an interim order for the reason that she was not satisfied that there was an “immediate risk of harm to the health, welfare or property of the adult concerned in an application, including because of the risk of abuse, exploitation or neglect of, or self-neglect by, the adult,” as required under s 129 of the Guardianship and Administration Act 2000 (Qld): at [7], [9]. She found that there was no evidence that HAC was in any immediate risk of harm at her Nursing Home, nor that her attorneys (Mr C (HAC’s son), and BG (HAC’s niece)) who were appointed through an enduring power of attorney were either invalidly appointed or acting inappropriately: at [10]–[11]. A/Senior Member Traves recognised that the Tribunal was subject to the Human Rights Act 2019 (Qld) in making a decision to appoint an administrator or guardian under the Guardianship and Administration Act 2000 (Qld), due to it being, in the course of making such a decision, a ‘public entity’ acting in an ‘administrative capacity’: at [14]. A/Senior Member Traves cited s 9(4)(b) in this regard. She also recognised that such an appointment of an administrator or guardian is a serious incursion on a person’s human rights as it transfers exclusive control of a person’s capacities to another. This was particularly so when it was done on an interim basis, whereby the usual legal protections and rights of adults with impaired capacity do not apply: at [14]. For this reason, she was not satisfied that reasonable grounds existed for the making of an interim order and the application for an interim order was dismissed: at [15].
• Hannigan and Associates Pty Ltd & Anor v Da Cunha & Anor [2022] QLC 14
  The case concerned an application for one of the mining lease applications related to an open cut mine proposed for the Bowen Basin, and objections to that application. Although there were no objections relating to the Human Rights Act 2019 (Qld), and the Act had not come into force at the time the objections were lodged, the Court nonetheless was conscious of its obligation to consider any engaged human rights and not make a decision that was incompatible with human rights: at [21], [76]. The court cited factors set out in Cement Australia Exploration Pty Ltd & Anor v East End Mine Action Group & Anor (No 4) [2021] QLC 22, which it was to consider in its application of section 58 of the Human Rights Act 2019 (Qld): at [77]. 1. Engagement: which rights might the objector seek to invoke? 2. Limitation: how might it be alleged that the rights are limited? 3. Justification: if the rights are limited, is/are the limitation/s reasonable and demonstrably justified? Is the limitation in accordance with procedural requirements and not arbitrary? Is the limitation on the human rights proportionate to other competing private and public interests? 4. Proper consideration: even if the limits are lawful and proportionate has the decision given proper consideration to the rights engaged? 5. Inevitable infringement: Does a statutory provision or law prescribe a different decision? The court considered these factors in relation to Property rights, the Right to privacy and reputation and Cultural rights. Property rights were not infringed as all affected landholders had reached agreements or were finalising compensation: at [80]. Privacy rights were not infringed as there would be no interference on private land: at [81]. In relation to Cultural rights, a cultural heritage management agreement had been reached: at [82]. Consequently, these three rights would not be prejudiced.
• Hansen v State of Queensland (Department of Environment and Science) [2021] QIRC 162
  The appellant sought a review of the respondent’s decision not to convert his employment to a higher classification level. The appellant submitted to the Commission that he should have been treated by the respondent in accordance with the Human Rights Act 2019 (Qld). There was no substantive discussion of human rights or the Human Rights Act 2019 (Qld) in the reasons.
• HAP v Director-General, Department of Justice and Attorney-General [2020] QCAT 273
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant on the basis that the applicant was an “exceptional case” where the issuing of a positive notice would not be in the best interests of children. The self-represented applicant had held a blue card for approximately 12 years without incident and worked as a bus driver and teacher’s aide at a local high school, specifically working with special needs children. He was issued with a negative notice after being convicted of four breaches of the Weapons Act 1900 (Qld). These charges arose from incidents when the applicant had taken an unloaded gun to school to show a colleague and when he visited a local shopping centre where he left a gun and 56 rounds of ammunition in a bag on the back seat of his locked car. Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to HAP 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 reviewing the respondent’s decision, the Tribunal stated that it had considered ‘the rights of children to recognition as people before the law entitled to equal protection without discrimination, freedom of expression and privacy and reputation’ as being the relevant rights engaged under the Human Rights Act 2019 (Qld): at [37]. The Tribunal recognised ‘[o]f particular concern are the rights of children, the protection that is needed and is in the child’s best interests because they are children’: at [37]. The Tribunal confirmed the respondent’s decision to issue a negative blue card notice because the Tribunal found that the applicant did not have ‘a mature understanding of the effects and consequences of his actions’ and found that it would not be in the best interests of children to award a positive notice: at [39].
• Harry v State of Queensland (Queensland Health) [2022] QIRC 293
  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 mandates. The applicant referred to their right to protection from torture and cruel, inhumane, or degrading treatment (section 17). The Queensland Industrial Relations Commission endorsed the decision made by the internal review and denied Harry’s application for an extension of time in which to commence the appeal.
• HAW [2021] QCAT 252
  HAJ, the appointed attorney for HAW in relation to financial, personal and health matters, filed an application seeking authorisation of a conflict transaction. The Tribunal was satisfied that authorising these transactions was compatible with HAW’s rights under the Human Rights Act 2019 (Qld), specifically HAW’s property rights. HAJ was attorney for financial, personal and health matters of HAW: at [1]. On 12 November 2020, HAJ filed an application seeking the authorisation of a conflict transaction pursuant to section 118(2) of the Powers of Attorney Act 1998 (Qld): at [2]. Specifically, HAJ sought reimbursement for the expenses she had incurred in providing HAW with meals and transport: at [11]. The Tribunal considered that payment to HAJ from HAW in relation to past expenses constituted a conflict transaction: at [9]. The Tribunal noted the principle in Reilly v Reilly that ‘[w]here a fiduciary... exercises a power which results in his or her obtaining some incidental benefit, there may be nothing per se improper with his or her having that benefit if the benefit itself is, in the circumstances, an inevitable consequence of his or her properly exercising the power which produces it’: at [8]. The Tribunal determined that the expenses HAJ incurred on behalf of HAW should be reimbursed and authorised the conflict transaction. In reaching this decision, the Tribunal considered HAW’s human rights, specifically his property rights under s 24 of the Human Rights Act 2019 (Qld): at [19]. The Tribunal was satisfied that the re-imbursement and the provision for future regular payments was ‘in the interests, and for the benefit, of HAW, the person with impaired capacity and the person in need of protection’: at [19].
• HDK v Director-General, Department of Justice and Attorney-General [2021] QCAT 97
  This matter concerned an application for review of the respondent’s decision to cancel the applicant’s Blue Card due to the applicant being charged with a stalking offence. The Tribunal found that the Human Rights Act 2019 (Qld) did not apply to this decision as the proceedings commenced before its commencement on 1 January 2020 (section 108). Regardless, the Tribunal acknowledged that it was a public body acting in an administrative capacity and that the decision would potentially impact the applicant’s right to freedom of expression (section 21), right to take part in public life (section 23), cultural rights (section 27), cultural rights of Aboriginal and Torres Strait Islander peoples (section 28), the right to education (section 36(2)), the right to a fair hearing (section 31) and the right not to be tried or punished more than once (section 34). This was balanced against the right of every child to protection (section 26(2)). The Tribunal was satisfied that the decision to cancel the applicant’s Blue Card was compatible with human rights as the limits on the applicant’s rights were reasonable and justifiable (section 13).
• HE [2022] QCAT 34
  This matter concerned an application for an interim order seeking the appointment of the Office of the Public Guardian as guardian for HE. The Tribunal accepted that it was subject to the Human Rights Act 2019 (Qld) and that appointing a guardian on an interim basis would interfere with a person’s human rights. In refusing the application, the Tribunal concluded that it was consistent with HE’s human rights to hold a hearing of the matter and provide HE the opportunity to be heard.
• Health Ombudsman v ORC [2020] QCAT 181
  The right to a fair hearing, specifically the right to have all judgments and decisions made publicly available (Human Rights Act 2019 (Qld) s 31(3)) was noted by the Tribunal. It was ordered that due to delays in the matter, publication of materials which could identify the respondent was prohibited. This case concerned behaviour by a medical professional (‘the respondent’) that constituted unprofessional conduct, pursuant to the Health Ombudsman Act 2013 (Qld). The conduct occurred in February 2014 when a female patient attended the clinic to undergo sexual health tests performed by the respondent: at [4]. During the appointment, the respondent invited the patient to have a drink later that evening and both exchanged mobile numbers. They did go out together that evening. The respondent sent a series of text messages to the patient the following day inviting further contact, at which time the patient communicated to the respondent that meeting again would not be a ‘good idea’: at [5]-[8]. The Tribunal held that the respondent’s conduct breached the professional boundaries doctors must maintain between themselves and their patients: at [9].The Tribunal was required to determine whether or not the respondent’s conduct constituted ‘unprofessional conduct’ or ‘professional misconduct.’ Pursuant to s 5 of the Health Practitioner Regulation National Law (Queensland), ‘unprofessional conduct’ included ‘professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner's professional peers’: at [12]. ‘Professional misconduct’ included unprofessional conduct that ‘amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience’: at [13]. There was substantial delay between the time of the complaint and subsequent regulatory action which was not ‘the fault of the respondent but which has significantly impacted upon the respondent’: at [17]. Whilst the delay was ‘significant’ and led to ‘stress and anxiety’, it gave the respondent ‘the opportunity to demonstrate his full rehabilitation’ by complying ‘with stringent conditions on his registration for a lengthy period’ and no further complaints were lodged in respect of the respondent. On this basis, the Tribunal was satisfied that ‘such conduct is unlikely to be repeated’: at [31]. In relation to the Human Rights Act 2019 (Qld), the Tribunal noted the terms of ss 31(3) and 108(2)(a): at [43]. The Tribunal noted that publishing contents of the Tribunal’s decisions promotes ‘public confidence in the maintenance of professional standards’ for health professionals, however it determined that, in this particular case, questions arose whether it was in the interests of justice to name and shame the respondent given the ‘inordinate delay’: at [44]-[45]. Ultimately, the Tribunal ordered that in the interests of justice, the publication of orders, reasons, and any material before the Tribunal was ‘prohibited to the extent that it might identify the respondent’: at [45].
• Herbert v State of Queensland (Department of Education) [2021] QIRC 415
  This case concerned an appeal of a decision to reject a conversion to a higher classification position under the Public Service Act 2008 (Qld). In submissions, the respondent decision-maker had noted that, as required by the Human Rights Act 2019 (Qld), the appellant’s human rights had been considered, particularly the right to work embodied in article 6(1) of the International Covenant on Economic, Social and Cultural Rights.
• HK v Director-General, Department of Justice and Attorney-General [2021] QCAT 130
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, HK. In confirming the respondent’s decision to issue a negative notice, the Tribunal stated that it considered the Human Rights Act 2019 (Qld) and held that any limitations on HK’s human rights were reasonable and justifiable pursuant to s 13 of the Human Rights Act 2019 (Qld). This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant, HK. This decision was made on the basis that the applicant was an ‘exceptional case’ where the issuing of a positive notice would not be in the best interests of children. HK applied for a blue card to enter the nursing profession. A negative notice was issued on the basis of HK’s charges and convictions for drug offences, including the supply of dangerous drugs, and an extensive traffic offence history: at [15]. HK also had a history of drug use and mental health issues, and there was evidence of the applicant having stored dangerous weapons in her car, which could be accessed by her young children: at [15]. As she had not been convicted of a ‘serious offence’ within the meaning of the Working with Children (Risk Management and Screening) Act 2000 (Qld), a positive notice needed to be issued to HK unless the Tribunal made a finding that this was an exceptional case where it was not in the best interests of children for a positive notice to be issued. The Tribunal noted that ‘it is not possible or necessary for all risk to be eliminated’, however, the importance of protecting children meant that the risks of the applicant ‘taking illicit drugs, suffering a major mental health episode, or engaging in criminal behaviour’ needed to be low: at [57]. On consideration of the evidence, the Tribunal could not find that HK was at low risk of relapsing into drug use and criminal behaviour: at [70]. In making this decision, the Tribunal held that any limitations placed on HK’s human rights by the decision were reasonable and justifiable pursuant to s 13 of the Human Rights Act 2019 (Qld): at [73]. While the Tribunal did not elaborate further in its reasons, a footnote listed the relevant rights as being: the right to a fair hearing (s 31); the right not to be tried or punished more than once (s 34); and the right to protection of families and children (s 26(2)): at note 21. The Tribunal confirmed the respondent’s decision to issue a negative notice.
• HM v Director-General, Department of Justice and Attorney General [2021] QCAT 13
  This applicant had applied for a blue card under the Working with Children (Risk Management and Screening) Act 2000 (Qld) to complete placement requirements for his university studies. The respondent refused the application on the basis of the applicant’s criminal history. This consisted of two incidents where the applicant, aged 15 years, had attended female toilets, looked under cubicle partitions and made mobile phone recordings women’s genitals: at [40]. The applicant was charged for both incidents, and admitted guilt. In the first case, the charge was dropped following the issue of a Notice of Caution under section 15(1) of the Youth Justice Act 1992 (Qld), and in the second case, the applicant was reprimanded, with no conviction recorded: at [134]. The Working with Children (Risk Management and Screening Act) 2000 (Qld) prescribes that persons must be issued with blue cards, including where they have been charged or convicted with an offence other than a ‘serious offence’, unless the executive officer is satisfied it is an exceptional case in which it would not be in the interests of children for a blue card to be issued. The applicant had not been charged or convicted of a ‘serious offence’, but the respondent had considered his case was exceptional, and had therefore rejected his application. The Tribunal noted that the Human Rights Act 2019 (Qld) requires the Tribunal to interpret the Working with Children (Risk Management and Screening Act) 2000 (Qld), to the extent possible that is consistent with its purpose, in a way that is compatible with human rights: at [37]. The Tribunal further noted that it must act in a way that is compatible with human rights, and give proper consideration to human rights relevant to the decision. The Tribunal also noted that a decision is compatible with human rights if it limits a human right in a way which is reasonable and justifiable under the Human Rights Act 2019 (Qld): at [39]. Upon consideration of the evidence, which included details of the applicant’s illness at the time, his psychological profile, remorse, and evidence of reform, the Tribunal concluded that there was not a real and appreciable risk that the applicant would harm children whilst employed or undertaking volunteer work: at [129]. The Tribunal set aside the respondent’s decision that the applicant’s case was an exceptional case and replaced it with the decision that there was no exceptional case, and ordered that the publication of the applicant’s name be prohibited. The Tribunal concluded by briefly stating that it had complied with the requirements of the Human Rights Act 2019 (Qld), noting the rights that could be impacted by its decision: at [153]-[154]. The Tribunal was satisfied that its decision was compatible with human rights because the decision was reasonable and justifiable under the Human Rights Act 2019 (Qld), particularly because it promoted and protected the rights, interests and wellbeing of children: at [155].
• Horizon Housing Company v Ross [2020] QCAT 41
  This case concerned an applicant who sought the termination of a community housing lease on the ground that the lessee would not leave the property. The lessee was given an eviction notice after failing to pay rent. The tribunal found that the tenant had ignored his responsibilities, including ‘the contractual responsibilities under the lease’ and did not fulfil his obligation to pay rent: at [9]. In making his decision that the lease should come to an end, Adjudicator Walsh discussed the influence and operation of the Human Rights Act 2019 (Qld). He acknowledged that the tribunal is bound to consider relevant rights: at [10]. He did not, however, go on to list which rights were relevant in this case. He relevantly commented at [12]: ‘Human rights conferred by the Human Rights Act 2019 do not exist in a vacuum. They are to be considered in the factual and legal context of each case.’ He further commented at [13]: ‘I have considered the provisions of the Human Rights Act 2019 and, insofar as human rights of the tenant are engaged on the facts of this case, having considered them, I find that they are lawfully limited by the valid and effective provisions of the Residential Tenancies and Rooming Accommodation Act 2008 in circumstances where the tenant is in ongoing breach of the lease in ever increasing amounts rental-wise in the respects to which I have referred.’ The tribunal subsequently made a termination order and directed the issue of a warrant of possession in respect of the premises: at [17]-[18].
• Hunt & Ors v Dr John Gerrard, Chief Health Officer & Anor; Ishiyama & Ors v Dr Peter Aitken, Former Chief Health Officer & Ors; Baxter & Ors v Dr John Gerrard, Chief Health Officer & Anor 2022 QCA 263
  This case concerned three sets of appeals relating to vaccination entry requirements. The appellants sought judicial review of three categories of healthcare directive; the Social Measures Directions, High Risk Setting Directions, and Workers in Healthcare Directions. The group seeking review of the Workers in Healthcare Direction also sought relief under the Human Rights Act 2019 (Qld). Because part of the declaratory relief sought involved the operation of the Human Rights Act 2019 (Qld), the Queensland Human Rights Commission and the Attorney-General for the State of Queensland intervened in the Trial Division proceedings, but did not make submissions in the appeal. The central question was whether the relevant declarations were decisions of an administrative or legislative character. The Court affirmed the primary decision-maker’s finding that the decisions were of a legislative, rather than an administrative character, and consequently that they were not judicially reviewable: see [65], [67], [87], 89]. In dissent, Davis J argued that the giving of directions showed the classic features of a grant of administrative power: see [149]. The judgment did not address the question of entitlement to relief under the Human Rights Act 2019 (Qld).
• Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162
  This matter involved an application for appeal of a disciplinary decision from the Respondent based on various allegations made in respect to the Applicant’s conduct during his employment. In the Applicant’s submissions, it was contended that the Respondent acted contrary to s 25 of the Human Rights Act 2019 (Qld) in making the disciplinary decision in a way that was not compatible with the Applicant’s right to privacy and reputation. Disciplinary grounds were found to have existed in relation to the Appellant’s conduct in respect of six allegations that were considered to warrant taking disciplinary action against him potentially to the degree of termination. The Appellant sought to appeal the disciplinary decision and pursue a claim pursuant to ss 25 and 59 of the Human Rights Act 2019 (Qld), where it was contended that the Decision-Maker had acted unlawfully by making their decision in a way that was not compatible with the Appellant’s right to privacy and reputation (s 25). The Appellant submitted that he was deprived of his rights to privacy and reputation in accordance with s 25 of the Human Rights Act 2019 (Qld), as the Director-General had issued a media release that concerned the Appellant’s initial suspension, where he was then featured in numerous media articles relating to the allegations. It was contended that the Department’s actions damaged his otherwise unblemished professional reputation. The Tribunal considered that the Appellant could not make out a claim in respect of ss 25(a) or (b) of the Human Rights Act 2019 (Qld) and accepted that Chapter 6 of the Public Service Act 1922 (Qld) imposed a reasonable limit on human rights that was demonstrably justified. The Tribunal upheld the findings of the Decision-Maker and determined that this was fair and reasonable.
• Hurling v State of Queensland (Queensland Police Service) [2022] QIRC 084
  The Applicant sought a review of the Respondent’s decision to suspend them without remuneration, and the Tribunal was required to determine whether the the Decision-Maker erred in applying s 58(1)(a) of the Human Rights Act 2019 (Qld) and also contravened s 58(1)(b). The Appellant was employed as an AO6 Senior Business Analyst by the Queensland Police Service, and was arrested for four charges of computer hacking and misuse and one charge of misconduct in relation to public office. She was suspended by her employer without remuneration. The Commission found that the Decision-Maker did not err in applying s 58(1)(a) of the Human Rights Act 2019 (Qld) because they did not fail to presume innocence and did not deny the Applicant a right to silence or fair trial (s 31). The Commission further considered that the decision maker did give proper consideration of human rights relevant to the decision as required by s 58(1)(b) of the Human Rights Act 2019 (Qld) by “clearly stating that the [appellant] is presumed to be innocent of the allegations” and ensuring the appellant was not “compelled to forego her right to silence”: at [49]. The Respondent’s decision was affirmed and the appeal was dismissed.
• Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317
  This matter concerned a fair treatment appeal against a finding that grounds for discipline had been established after the appellant was convicted of fraud and her employer (the respondent) found her guilty of misconduct under the Public Service Act. The appellant referred to their right to a fair and public hearing (s 31), right to legal representation and the use of a witness in a criminal trial (ss 32(2)(d)–(h)) and right not to be tried or punished more than once (s 34). Background: Misconduct under s 187(4)(b) of the Public Service Act is ‘inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service’: at [29]. A review of transcripts from criminal proceedings in which the appellant was convicted of fraud revealed that the appellant’s employment with the respondent was made public. The respondent stated that the appellant’s conduct ‘undermines the public’s confidence and trust in the Health Service and brings the organisation into disrepute’: at [37]. Right to a fair and public hearing: The appellant’s submission was that it was not fair for the disciplinary finding to rely on what flowed from her proper exercise of her right to a fair and public hearing (s 31) and right to legal representation and the use of a witness in a criminal trial (s 31(2)(d)–(h)). The appellant submitted that her employment with the respondent was stated in open court as it went to the context of a character reference provided by her supervisor. The appellant submitted that ‘[f]ormulating decisions on the basis of the transcript of or the legal argument presented at a fair and reasonable hearing was not reasonable’: at [44] and that if the respondent had properly considered her human rights, it would have ‘viewed the conduct in the context of the conduct alone’: at [83]. The respondent argued that it was reasonable for them to consider anything said in open court and that, because these matters were discussed in open court, they were relevant to the respondent’s consideration of whether the conduct reflected seriously and adversely on the public entity: at [63]. The Commission found that it was not the publicising of the conduct that was the problem, but the fact of the conduct itself: at [109]. The Commission therefore reasoned that the disciplinary finding flowed from the appellant’s ‘conduct subject of the allegation in the show cause letter’ and was not ‘made in reliance of what flowed from her exercise of her human rights to a fair and public hearing’: at [111]. Furthermore, the Commission rejected the appellant’s submission that the respondent’s reference to the court transcript offended her human rights and found that there was nothing improper about a representative of the respondent informing themselves of the appellant’s conduct by accessing a publicly available document: at [112]. Right not to be punished more than once: The appellant submitted that her right not to be punished or tried more than once under section 34 of the Act meant that no grounds existed to bring forth an allegation because she had already been tried, punished and convicted for the offence: at [46], [50]. The respondent submitted that the appellant is conflating her punishment in the criminal jurisdiction with disciplinary action by her employer (an administrative process) and that the disciplinary finding does not attempt to punish the appellant for fraud: at [60], [66]. The respondent also submitted that it limited the appellant’s rights only to the extent that was reasonable and demonstrably justifiable in accordance with s 13 and highlighted the fact that, if the appellant’s submissions were accepted, ‘the State of Queensland (as an employer) would be prevented from taking disciplinary action against public servants for any conduct resulting in a criminal conviction’: at [69]. The Commission found the suggestion that a public service disciplinary process was an attempt to try or punish the appellant a second time to be ‘misguided’: at [122]. Other Relevant Discussions regarding Human Rights: The Commission rejected the appellant’s submission that ‘the respondent formulated any and all decisions on the basis of [the appellant] exercising her rights, renders her unequal under the law and not “entitled to equal protection of the law without discrimination” pursuant to s 15(3)’ of the Human Rights Act: at [121]. The Commission considered the respondent’s duty to consider the appellant’s human rights as a public entity at [125]-[128]. The Commission noted that ‘proper consideration’ is not clearly defined in the Human Rights Act or the relevant Directive but that it had been considered in relation to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (comparable to s 58(1) of the Queensland legislation): at [131]. The Commission applied the test stated by the Supreme Court of Victoria in Castles v Secretary of the Department of Justice [2010] VSC 310 at [185]-[186]. On the basis of the judgment in Castles, the Commission acknowledged that ‘the simple inclusion in a decision of a sentence to the effect that “human rights have been taken into consideration” does not provide the person affected by the decision with any useful information’ but did not think it was necessary for the decision maker to write ‘in great detail’: at [132]. The Commission provided that ‘the inclusion of a statement to this effect may provide some confirmation to the employee that “proper consideration” has occurred’ as a decision maker provide such a statement if they had properly considered the employee’s human rights: at [133]. Furthermore, the Commission found that ‘proper consideration’ involves explaining the reasoning for limiting human rights under s 13: at [135]. Decision: The Commission found that the decision to commence a disciplinary process was not capable of being appealed but that the appellant was able to appeal the disciplinary finding: at [96], [100]. The Commission concluded that the respondent’s decision that finding the conduct to be misconduct was reasonably justified and confirmed the original decision: at [139], [141].
• IAR v Director-General, Department of Justice and Attorney-General [2021] QCAT 14
  This case concerned an application for review of the respondent’s decision to issue a negative blue card notice to the applicant. As the appeal pre-dated the commencement of the Human Rights Act 2019 (Qld), the Tribunal held that the act did not apply.
• Ibarra v Director-General, Department of Justice and Attorney-General [2021] QCAT 225
  The case concerned a review of a decision to issue a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld), where the applicant’s case was found to be ‘exceptional.’ The Tribunal considered that there are three steps when having regard to the Human Rights Act 2019 (Qld); that the right to privacy and reputation might be interpreted to include a right to work prospects without interference and it is justifiable in certain circumstances to limit the rights of one sector of the community to protect those of a more vulnerable sector. The Tribunal upheld the delegate’s decision as the Tribunal was not satisfied the applicant had undertaken the steps necessary to handle the bad days and considered a limit on the applicant’s applicable human rights was justified. The case concerned a decision to issue a negative notice pursuant to the Working with Children (Risk Management and Screening) Act 2000 (Qld), following a decision that the applicant’s case was an ‘exceptional’ case within the meaning of section 221(2), in that it would not be in the best interests of children for the applicant to be issued with a positive notice. The applicant had been convicted of criminal offences relating to the assault of two children under his care on 16 October 2016, which occurred in the course of employment as a Youth Worker on a casual basis with Families South Australia where he worked within residential facilities with children under Child Protection Orders. The Tribunal noted that ‘the interpretation of legislation and the application of facts within the statutory consideration must be undertaken’ with reference to the Human Rights Act 2019 (Qld): at [21]. The Tribunal noted that, to do so, ‘a decision maker must give proper consideration to human rights relevant to the decision’: at [21]. The Tribunal summarised the three steps outlined in Storch v Director General, Department of Justice and Attorney General regarding the consideration of the Human Rights Act 2019 (Qld) as being (at [21]) to “identify the protected Human Right;” to “consider compatible statutory interpretations;” and to “determine whether a limit or interference with a human right identified is or is not ‘reasonable and justifiable’.” The Tribunal noted that the right to privacy and reputation ‘may be interpreted to include a right to work prospects without interference,’ although work is not an express right under the Human Rights Act 2019 (Qld), and that the Human Rights Act 2019 (Qld) also ‘provides the right to protection of families and children and the rights of every child to the protection that is needed and is in the child’s best interests because they are a child’: at [22]. The Tribunal also noted that the Human Rights Act 2019 (Qld) ‘recognises that in a democratic society it may in certain circumstances be justifiable to limit the rights of one sector of the community in order to protect the human rights of a more vulnerable sector of the community’: at [23]. The Tribunal upheld the delegate’s decision. The Tribunal identified the protective factors of the applicant having no other criminal history; the supporting witnesses having reported positively regarding his interactions with children after the incident, but noting that weight of this evidence was tempered ‘due to their limited understanding of the offences and other factors’; the applicant having ‘sought psychological assistance post incident and has, albeit irregularly, maintained that connection’; the applicant having ‘undertaken further training to support his skills’; and the applicant having ‘reflected remorse’ and ‘generally having appeared to have insight into his behaviour’: at [42]. The Tribunal identified the risk factors of the application having ‘had significant training prior to the incident’ but still being ‘unable to react appropriately to the children’s behaviours; the applicant admitting in cross examination that ‘he does not have the skills to appropriately respond to behaviours of children with trauma backgrounds’; the limited psychological intervention; the offending having come from an inability to control emotions and concerns regarding ‘the level of insight and acceptance of responsibility’ as he ‘sought to downplay the incidents in earlier written material and classified the child’s spraying with water as an ‘attack’: at [43]. While the Tribunal was satisfied that the applicant “would be able to provide day to day care of children in a satisfactory manner,” the Tribunal was not satisfied the applicant had “undertaken the steps necessary to handle the bad days:” at [45]. The Tribunal also noted that, as conditions are not able to be placed on the issuance of blue cards, ‘there would be no impediment to the Applicant applying for employment with vulnerable children with trauma history’: at [47]. The Tribunal noted they had ‘considered the competing human rights in reaching their conclusion and considered a limit on the applicant’s applicable human rights are justified in the circumstances of this case’: at [48]
• IHC [2021] QCAT 141
  This case concerned several applications by IHC’s sons SHM and BHJ to be appointed as Guardian, Administrator and Enduring power of attorney. Member Casey ordered that the Public Guardian be appointed as guardian for IHC regarding accommodation and healthcare, and the Public Trustee appointed as administrator for all financial matters. In doing so, Member Casey held that this was a reasonable limitation on IHC’s human rights. In August 2020, IHC appointed her son, SHM, her Enduring Power of Attorney for personal and health matters. In November 2020, the Tribunal received an application from IHC’s second son BHJ seeking sole appointment as guardian, joint appointment with SHM as administrator for the adult, and an interim order. The interim order was dismissed. In January 2021, an interim order appointed the Public Trustee as administrator for the adult for all financial matters. Further applications were received that month by BHJ, who sought sole appointment as guardian and administrator, along with an application for an order about the Enduring Power of Attorney. Relevantly, there is an established pattern of negative communications between SHM and BHJ: at [50]. At the Tribunal hearing they were not able to engage in productive discussions. They submitted various affidavits alleging the unsuitability of each other. IHC has a diagnosis of mixed (Alzheimer’s and vascular) dementia. IHC has progressive cognitive deficits across a number of domains such as orientation, concentration, executive function and recall. Clinical evidence shows IHC’s decision-making ability is limited to communicating simple day-to-day choices: at [29]. The Tribunal was concerned with whether the current decision-making regime was effectively meeting IHC’s needs and protecting her interests. The tribunal was not satisfied that IHC understood the nature and effect of her financial decisions (both simple and complex) or complex personal decisions: at [31]. There was concern regarding the appropriate accommodation — the Public Trustee had IHC (SHM agreeing) in a residential aged care facility, however BHJ was not convinced IHC needed 24/7 care on a permanent basis in a dementia unit: at [43]. The conflictual relationship results in SHM’s appointment as Power of Attorney being not in the best interests of the adult: at [51]. There is no other appropriate person available, and so the Tribunal appointed the Public Guardian: at [55]. SHM withdrew his application to be administrator. The Tribunal was not satisfied BHJ would be able to liaise effectively with all stakeholders and thus appointed the Public Trustee of Queensland as administrator for IHC in all financial matters: at [70]. Member Casey recognised the Tribunal was subject to the Human Rights Act 2019 (Qld) and that any limitation placed on IHC’s rights, such as IHC’s ‘rights to privacy, freedom of movement, and property’ are inherently limited by these appointments: at [71]. However, Member Casey was of the opinion that taking into account the facts of the circumstances, the benefits of the decision outweigh the limitations placed on IHC’s human rights and thus the limitations were reasonable and demonstrably justified in accordance with s 13 of the HRA.