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SF v Department of Education[2021] QCAT 10

SF v Department of Education[2021] QCAT 10

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SF v Department of Education [2021] QCAT 10

PARTIES:

SF

(applicant)

v

DEPARTMENT OF EDUCATION

(respondent)

APPLICATION NO/S:

GAR058-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. The decision of the Department of Education dated 12 December 2019 is set aside and substituted with a decision to grant home education registration for the student.
  2. These reasons are to be published in a de-identified format only. 

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where applicant and children moved due to domestic violence – where child diagnosed with Global Development Delays and Autism Spectrum Disorder – where applicant applied for home education registration – where Department refused application for home education – whether Education (General Provisions) Act 2006 (Qld) requires disclosure of street number, street name and town name – whether approved form under Education (General Provisions) Act 2006 (Qld) requires disclosure of street number, street name and town name – whether sufficient information provided to meet procedural requirements of the application formwhether compliance with substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) – whether consistent with the Human Rights Act 2019 (Qld)

Acts Interpretation Act 1954 (Qld), s 14A, s 32CA

Anti-Discrimination Act 1991 (Qld), s 7, s 8, Schedule 1

Child Protection Act 1999 (Qld), s 13A

Education (General Provisions) Act 2006 (Qld), s 5, s 7, s 176, s 177, s 178, s 205, s 208, s 210, s 214, s 216, s 426, s 433

Human Rights Act 2019 (Qld), s 4, s 8, s 13, s 15, s 25, s 26, s 36, s 48, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 28, s 66

Brabender v Brabender [1949] VLR 69

Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422

Castles v Secretary, Department of Justice (2010) 28 VR 141

Cole v Department of Youth and Community Services (1986) 7 NSWLR 541

Director of Housing v Sudi [2010] VCAT 328

Equipment Investments Pty Ltd and MJ Dowthwaite and Co Pty Ltd (1969) 16 FLR 23

Harley v Department of Justice and Attorney-General [2012] QCAT 620

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494

Mills v Meeking (1990) 169 CLR 214

Momcilovic v The Queen (2011) 245 CLR 1

Norton v Long [1968] VR 221

O'Brien v Gladstone Regional Council [2015] QCATA 82

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476

Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37

PJB v Melbourne Health & Anor [2011] VSC 327

PJS Development Pty Ltd v Tong [2003] QSC 337

Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355

Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd [2013] QCA 320

R v Chaulk [1990] 3 SCR 1303

R v Oakes (1986) 1 SCR 103

Richardson v ACT Health & Community Care Service [2000] FCA 654

Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152

The Metropolitan Gas Co. v The Federated Gas Employees’ Industrial Union (1924) 35 CLR 449

Watkins v Queensland Building Services Authority [2013] QCAT 535

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

White v Tennant (1888) 8 SE 596

Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147

APPEARANCES &

REPRESENTATION:

 

Applicant:

N Pagonis for Cairns Community Legal Centre Inc

Respondent:

S Munasinghe for Crown Solicitor

REASONS FOR DECISION

What is this application about?

  1. [1]
    SF and her children have moved in an attempt to escape domestic violence.[1] She has been forced to seclude her location to keep her family safe.[2] Despite her efforts, her former partner has used numerous unlikely resources to locate her.[3]
  2. [2]
    One of SF’s children has been diagnosed with conditions affecting their ability to learn.[4] SF applied to the Department of Education to home school the child. Although her application otherwise meets the requirements for home education, the Department did not grant it because SF did not provide her street number, street name and town name.[5]
  3. [3]
    At one stage, the Department was willing to accept statutory declarations from SF verifying her usual place of residence as simply a town.[6] However, it has since changed its view on the basis that strict compliance with the Education (General Provisions) Act 2006 (Qld) requires an actual address to be provided on a certificate of registration.[7]
  4. [4]
    Neither the Education (General Provisions) Act 2006 (Qld) (‘the Act’) nor the form approved by the Chief Executive[8] expressly requires an applicant for home schooling to provide a street number, street name and town name.
  5. [5]
    SF has applied to the Tribunal for external review of the Department’s decision.

What does the Tribunal do?

  1. [6]
    In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[9] This means that SF need not prove any error by the Department in its decision – the decision is not presumed correct.[10]
  2. [7]
    The Tribunal effectively ‘stands in the shoes’ of the Department and makes its own decision.[11]
  3. [8]
    The Tribunal may therefore confirm or amend the decision, set aside the decision and substitute its own decision or return the matter for reconsideration by the Department.[12]

Does the Education (General Provisions) Act 2006 (Qld) require SF to disclose her street number, street name and town name?

  1. [9]
    Chapter 9, Part 5 of the Act provides for home education. It has the following relevant definition provision:

205  Definitions for pt 5

In this part -

home education, for a child, means the education of the child provided by 1 or both of the child’s parents, or a registered teacher, primarily at the child’s usual place of residence.

  1. [10]
    The Act also relevantly provides the following procedural requirements relating to home education applications:

208 Procedural requirements for application

  1. (1)
    An application for registration of a child for home education must be –
  1. (a)
    made to the chief executive; and
  1. (b)
    in the approved form; and
  1. (c)
    accompanied by –
  1. (i)
    evidence, satisfactory to the chief executive, that –
  1. (A)
    the child is eligible for registration for home education; and
  1. (B)
    the applicant is a parent of the child; and
  1. (ii)
    a summary of the educational program to be used, for the home education; and
  1. (iii)
    any other documents, identified in the approved form, the chief executive reasonably requires to decide the application.
  1. (2)
    Information in, or accompanying, the application must, if the approved form requires, be verified by a statutory declaration.
  1. (3)
    An application under this section may relate to only 1 child.

210  Chief executive must ensure compliance with procedural requirements

  1. (1)
    If the chief executive considers an application for the registration of a child for home education does not comply with a procedural requirement, the chief executive must, by notice given to the applicant, require the applicant to comply with the requirement within a reasonable period, of at least 28 days, stated in the notice.
  2. (2)
  3. (3)
    If the applicant does not comply with the procedural requirement within the period stated in the notice, or by the agreed compliance day, the chief executive may decide to refuse to grant the application.

214 Steps to be taken after application decided

  1. (1)
    If the chief executive decides to grant an application for the registration of a child for home education, the chief executive must as soon as practicable issue a certificate of registration, for the child, to the applicant.

216 Minimum details to be recorded on certificate of registration

A certificate of registration of a child for home education must include at least the following –

  1. (a)
  2. (b)
    the address of the child’s usual place of residence;

  1. [11]
    None of these provisions, read together or in isolation, imposes any express obligation on SF to disclose her street number, street name and town name.
  2. [12]
    Section 205 is a definition provision only. Although it refers to ‘usual place of residence’ as an element of ‘home education’, it imposes no requirement on SF to disclose that element – however defined.[13] The provision merely distinguishes home education from other forms of education.
  3. [13]
    Section 208 sets out procedural requirements for an application. It does not include street number, street name and town name as a procedural requirement. 
  4. [14]
    Section 210 provides consequences for non-compliance with a procedural requirement, ultimately conferring a discretion on the Chief Executive to refuse to grant the application.
  5. [15]
    Section 214(1) imposes an obligation on the Chief Executive to issue a certificate of registration after deciding an application. It imposes no obligations on SF.
  6. [16]
    Section 216 includes ‘the address of the child’s usual place of residence’, as a minimum detail to be recorded on the certificate of registration. However, it does not impose any requirement on SF to disclose these details – however defined.[14]

Does the approved form require SF to disclose her street number, street name and town name?

  1. [17]
    Section 208 requires the application to be in the approved form. The Chief Executive may approve forms for use.[15]
  2. [18]
    The approved form[16] provides for ‘Applicant’s residential address’, ‘Residential address of the child’ and ‘The address where the home education will be delivered’.[17] To each of these items, SF inserted ‘address suppressed (due to privacy, see attached)’ with a town name. SF has also provided a postal address and mobile phone number.
  3. [19]
    Neither the Act nor the form defines the terms used in the form. The Department submitted that the ordinary meaning of the terms ‘address’ and ‘residence’ required a specific house number and street name.[18] However, the terms are not to be read in isolation but within the context of the enabling provision as a whole.[19] That enabling provision merely refers to ‘procedural’ requirements[20] – in contrast to a substantive requirement mandating compliance.[21]
  4. [20]
    Neither the Act nor the form refers to street number, street name or town name, nor do the definitions from the Macquarie Online Dictionary submitted by the Department:

‘Address’ – A direction as to name and residence inscribed on a letter, etc; a place where a person lives or may be reached.

‘Residence’ – The place, especially the house, in which one resides, dwelling place; dwelling.[22]

  1. [21]
    If the legislature or chief executive intended that a form must specifically require a street number, street name and town name they could have said so. They did not. In the absence of expressly requiring these specific details to be disclosed, a rigid rule of construction for ‘address’ and ‘residence’ must give way to a statutory injunction to prefer a construction that would promote the purpose of an Act to one that does not, particularly where that purpose is set out in the Act.[23] The interpretation that will best achieve the purpose of an Act is preferred.[24]  
  2. [22]
    The requirements in the form for a ‘residential address’ and ‘address where the home education will be delivered’ are to be read in a way that is practical, as a whole and as intending to achieve balance between outcomes:[25]

… to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context… Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise.[26]

  1. [23]
    Although the passage refers to interpreting a section of an enactment, the same approach applies a fortiori to a form made under an enactment. The procedural requirements of the form are subordinate to the Act and can only be used to further its purposes. Those procedural requirements cannot be interpreted in a way that would override or be contrary to the Act’s overarching objects and guiding principles. Instead, they are to be read in a flexible way consistent with these objects and guiding principles:

The duty of a court is to give the words of a statutory provisions the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[27]

  1. [24]
    The effect of a rigid construction of ‘residential address’ and ‘address where the home education will be delivered’ in the form to mean only street number, street name and town name would mean SF must ‘choose’ between disclosing these details and increasing the risk of harm to her and her family or forfeiting the opportunity to provide an education attuned to her child’s specific needs. This restrictive interpretation of the form’s procedural requirements would be contrary to the Act’s overarching objects and guiding principles including:
    1. (a)
      Making available to each Queensland child or young person a high-quality education that will:
      1. help maximise his or her educational potential;[28] and
      2. enable him or her to become an effective and informed member of the community;[29]
    2. (b)
      Ensuring education programs are responsive to the individual needs of children and young people;[30]
    3. (c)
      Encouraging a parent’s involvement in his or her child’s education;[31]
    4. (d)
      Parents having the responsibility of choosing a suitable education environment for their children;[32]
    5. (e)
      Providing education to a child or young person in a way that –
  1. (i)
    provides positive learning experiences;[33]
  2. (ii)
    promotes a safe and supportive learning environment;[34] and
  3. (iii)
    recognises his or her educational needs;[35] and
    1. (f)
      The State, parents, teachers, school communities and non-government entities should work collaboratively to foster a commitment to achieving the best educational outcomes for children and young people.[36]
  1. [25]
    This means the requirements in the form for a ‘residential address’ and ‘address where the home education will be delivered’ will vary according to the individual circumstances of the case, within the context of the overarching objects and guiding principles. Their meaning derives from the Act as a whole.[37]
  2. [26]
    This may include a requirement for an applicant to disclose a street number, street name and town name where it would not otherwise transgress the Act’s overarching objects and guiding principles.[38] However, the form cannot operate to require SF to disclose these details in circumstances where it compromises her and her family’s safety contrary to those objects and guiding principles.  
  3. [27]
    The Department submitted that interpreting the form to not require a specific street address is inimical to its ability to serve non-enrolment notices on parents in an efficacious way.[39] However, the notice provisions allow for meetings in person.[40] Moreover, modern technology provides a variety of options for the giving of notices.[41] The Tribunal notes SF has provided alternative means of contact including a postal address and mobile phone number, which would suffice to arrange a meeting or give a notice for these purposes. 
  4. [28]
    The Department also submitted that its child protection referrals are less complete and effective where it does not have a child’s address or place of education.[42] However, this information would be known or be able to be rapidly acquired by law enforcement authorities. Moreover, the Department’s position would be no different than when SF’s child was enrolled in a local school with a suppressed address.[43]
  5. [29]
    The Department also submitted that the confidentiality provisions of the Act[44] and its own internal policies[45] are sufficient to ameliorate the risk of unauthorised disclosure. However, the Tribunal is not satisfied they are sufficient to ameliorate the risk for SF, based on her evidence and submissions relating to the particular circumstances of her and her children.
  6. [30]
    The risk for SF is that the confidentiality provisions and policies repose a discretion in departmental officers about the use and disclosure of information, require interpretation by departmental officers and leave it open for a person to apply to the department to access the information under the Right to Information Act 2009 (Qld) and Information Privacy Act 2009 (Qld). Moreover, adding another layer of people with access to SF’s information increases the opportunity for human error or failure, with potentially tragic and irreversible consequences.
  7. [31]
    The more information SF is required to disclose and the more people who have access to that information, the greater the risk to her and her children.[46]  In short, both the risk and potential consequences exceed the policy aim and reach of the confidentiality provisions and policies. 
  8. [32]
    The Education (General Provisions) Act 2006 (Qld) is beneficial because it is in the public interest to provide accessible education appropriate to individual needs. This means that procedural requirements are to be read in a way that facilitates access to maximise the scope of the beneficial effect of the legislation.[47]
  9. [33]
    SF provided a town name, postal address and mobile phone number with an explanation of her extenuating circumstances for not providing a street number and street name. That is sufficient for her to meet the procedural requirements of the application form where further disclosure would jeopardise her and her family and her application otherwise met the requirements for home education.
  10. [34]
    This gives the form a flexible operation consistent with both the objects of the Education (General Provisions) Act 2006 (Qld) and common law interpretations of ‘residence’ that focus on intent rather than physical presence.[48]

Has SF complied with the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) in any event?

  1. [35]
    Because the Tribunal is satisfied that SF has provided sufficient information to meet the procedural requirements of the application form, it is not strictly necessary to consider the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld). However, the Tribunal is satisfied that SF has complied with the substantial compliance provisions of the Acts Interpretation Act 1954 (Qld) in any event.
  2. [36]
    The Acts Interpretation Act 1954 (Qld) allows substantial compliance with an approved form.[49] The Department submitted that this is qualified by the succeeding subsection which provides that if a form requires specified information, the form is not properly completed unless the requirement is complied with.[50] However, this requirement is qualified by the later section 48A(4) that relevantly provides:

If a form may be prescribed or approved under an Act for a purpose or 2 or more purposes, the form may only require information or documents to be included in, attached to or given with the form that are reasonably necessary for the purpose or 1 or more of the purposes.

Example 1 –

A prescribed or approved form may not require the provision of personal information irrelevant to a purpose for which the form is required.

Example 2 –

A prescribed or approved form may not require the provision of personal information that has some relevance to a purpose for which the form is required, but is excessively intrusive to personal privacy.

  1. [37]
    The Department submitted the purpose was to provide a certificate of registration with the ‘address of the child’s usual place of residence’.[51] However, neither the certificate of registration nor the form specifies the required information as street number, street name and town name. They merely refer to ‘residential address’, ‘address where the home education will be delivered’ and ‘address of the child’s usual place of residence’.
  2. [38]
    Interpreting these terms to require SF to provide her street number, street name and town name where it would risk the health and safety of her and her children would be excessively intrusive to her personal privacy, as explicitly contemplated by Example 2.[52] SF has not provided less information than the approved form requires within the context of the overarching objects and guiding principles of the Education (General Provisions) Act 2006 (Qld).[53]
  3. [39]
    The Tribunal is satisfied that the information provided by SF in her particular circumstances is sufficient to constitute substantial compliance with the procedural requirements of the approved form as contemplated by the Acts Interpretation Act 1954 (Qld).
  4. [40]
    This interpretation also ensures that section 210(3) of the Act has work to do. This provision confers a discretion[54] on the chief executive on whether to refuse to grant the application, where an applicant has not complied with a procedural requirement. An interpretation requiring strict compliance with a procedural requirement would arbitrarily fetter the discretion by leaving it with little, if any, room to operate.  If the discretion is not enlivened in circumstances of substantial compliance, when would it be?
  5. [41]
    An interpretation that gives meaning and effect to a provision is preferred to an interpretation that would render a provision inoperative or inept.[55] Substantial compliance with a procedural requirement must enliven the discretion in section 210(3) of the Act. The Tribunal is satisfied that the discretion should be exercised to grant SF’s application in circumstances of substantial compliance with a procedural requirement and where her application otherwise meets the requirements for home education.

Is this interpretation consistent with the Human Rights Act 2019 (Qld)?

  1. [42]
    The Tribunal must act and make its decisions in a way that is compatible with human rights[56] and interpret statutory provisions accordingly.[57]
  2. [43]
    SF and her children have fundamental human rights including:
    1. (a)
      Equal protection of the law without discrimination;[58]
    2. (b)
      Not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with;[59]
    3. (c)
      Protection of the children as they need and is in their best interests;[60] and
    4. (d)
      Access by her child to education appropriate to the child’s needs.[61]
  3. [44]
    Parliament has recognised that children are particularly vulnerable.[62] People with an impairment are also especially vulnerable.[63] SF’s child has an impairment. In addition, the right to privacy has been identified as a right of “considerable amplitude”:

The rights to privacy, family, home and correspondence… are of fundamental importance to the scheme of the Charter. Their purpose is to protect and enhance the liberty of the person – the existence, autonomy, security and wellbeing of every individual in their own private sphere. The rights ensure people can develop individually, socially and spiritually in that sphere, which provides the civil foundation for their effective participation in a democratic society. They protect those attributes which are private to all individuals, that domain which may be called their home, the intimate relations which they have in their family and that capacity for communication (by whatever means) with others which is their correspondence, each of which is indispensable for their personal actuation, freedom of expression and social engagement.[64]

  1. [45]
    All statutory provisions must therefore be interpreted in a way that is compatible with, or most compatible with, human rights to the extent possible consistent with their purpose.[65] Because the terms ‘residential address’, ‘address where the home education will be delivered’ and ‘address of the child’s usual place of residence’ used in the application form are not defined, they must be interpreted in a way that will give effect to the legislative purpose of the governing Act that is compatible with, human rights:

[Section 48 of the Human Rights Act 2019 (Qld)]… mandates an attempt to interpret statutory provisions compatibly with human rights. There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process…

It requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. [Section 48] applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application.[66]

  1. [46]
    SF and her children have moved to escape domestic violence. They are still at risk of harm. The child she seeks to home school has a dual diagnosis of conditions affecting the child’s ability to learn, sufficient to constitute an impairment and therefore a protected attribute under the Anti-Discrimination Act 1991 (Qld).[67] SF has identified that her child learns best with one-on-one educational support and has tailored a detailed, goal-directed home education program suited to the child’s needs.[68] An interpretation that would mandate SF to provide her street number, street name and town name before granting her application for home education in these circumstances, is not an interpretation that least infringes her and her family’s human rights.[69]
  2. [47]
    Moreover, the Tribunal does not accept this interpretation limits human rights only to the extent that is reasonable and demonstrably justifiable.[70] The Tribunal accepts SF’s evidence of the serious risk to her and her family from an interpretation mandating her to disclose her street number, street name and town name.[71] The Tribunal does not accept that the confidentiality provisions of the Act[72] and the Department’s own internal policies[73] are sufficient to uphold her children’s right to protection in their particular circumstances.[74] 
  3. [48]
    The Tribunal does not consider that an interpretation mandating SF to disclose her street number, street name and town name is necessary to achieve the purposes of ensuring her child is properly registered and that SF is able to be contacted, where she has provided a postal address, mobile number and details of her circumstances. By providing these details and remaining in contact, SF has provided a less restrictive and available way to achieve the purposes.[75]
  4. [49]
    The means to achieve the purposes must impair SF and her children’s rights as little as possible and must strike a fair balance.[76] This is not a case where respecting the human rights of SF and her children will necessarily involve an infringement of another person’s human rights.[77] Rather, because this is a review of an administrative decision by an agency of the executive, the Department is best characterised as the singular contradictor of the individuals whose rights are being infringed.[78] Therefore, the more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.[79]
  5. [50]
    SF’s child’s right to access education appropriate to that child’s needs together with SF and her children’s fundamental rights to be properly protected and to not have their privacy, family or home arbitrarily interfered with outweigh a requirement for SF to provide her street number, street name and town name where the purpose of ensuring her child is properly registered and that SF is able to be contacted, can be achieved by less restrictive means.[80]
  6. [51]
    The Department submitted that it could not have acted differently because section 216(b) of the Education (General Provisions) Act 2006 (Qld) requires a certificate of registration to include the child’s usual place of residence.[81] However, this presumes the term ‘child’s usual place of residence’ is confined to disclosing street number, street name and town name.
  7. [52]
    A blanket and rigid interpretation of these terms is not responsive to SF and her children’s human rights. Each application is to be treated according to its merits, including procedural aspects. Interpreting the terms ‘residential address’, ‘address where the home education will be delivered’ and ‘address of the child’s usual place of residence’ within the context of the overarching objects and guiding principles of the Education (General Provisions) Act 2006 (Qld) in a way that will vary according to the individual circumstances of the case, ensures SF’s child’s right to an education appropriate to that child’s needs while protecting SF, her family, their privacy and their home. 
  8. [53]
    This interpretation is compatible with human rights. It is also consistent with the general rule of statutory construction that the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms.[82]

What is the correct and preferable decision?

  1. [54]
    SF has met the procedural requirements for home education in her family’s particular circumstances. Her application otherwise meets the requirements for home education. The correct and preferable decision is to set aside the decision of the Department of Education dated 12 December 2019 and substitute it with a decision to grant home education registration for the student.
  2. [55]
    Because the Tribunal has previously ordered that any reasons or orders of the Tribunal are not to identify relevant persons, these reasons are published in a de-identified format.[83]

Footnotes

[1]Application to review a decision dated 10 February 2020, Attachment A, [12].

[2]Application to review a decision dated 10 February 2020, Attachment A, [12].

[3]Application to review a decision dated 10 February 2020, Attachment A, [15].

[4]Certification of Disability dated 22 March 2019; Hospital Report dated 31 May 2019; Application to review a decision dated 10 February 2020, Attachment A, [16].

[5]Decision dated 12 December 2019.

[6]Submissions in respect of Review Decision dated 21 May 2020, [32].

[7]Submissions in respect of Review Decision dated 21 May 2020, [32].

[8]Education (General Provisions) Act 2006 (Qld), Chapter 9 Part 5; Approved form RHE – 1 V8.

[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[10]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[11]O'Brien v Gladstone Regional Council [2015] QCATA 82, [18].

[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[13]The provision does not define ‘usual place of residence’ or ‘residence’ nor refer to street number, street name and town name.

[14]The provision does not define ‘address’, ‘usual place of residence’ or ‘residence’ nor refer to street number, street name and town name.

[15]Education (General Provisions) Act 2006 (Qld), s 433.

[16]Approved form RHE – 1 V8.

[17]Application for Registration for Home Education, items 1.1, 3 and 4.

[18]Submissions in respect of Review Decision dated 21 May 2020, [22] to [24].

[19]The Metropolitan Gas Co. v The Federated Gas Employees’ Industrial Union (1924) 35 CLR 449.

[20]Education (General Provisions) Act 2006 (Qld), s 208.

[21]Watkins v Queensland Building Services Authority [2013] QCAT 535.

[22]Submissions in respect of Review Decision dated 21 May 2020, [22] to [24].

[23]Mills v Meeking (1990) 169 CLR 214, 235; Buckman (HC) & Son Pty Ltd v Flanagan (1974) 133 CLR 422, [11].

[24]Acts Interpretation Act 1954 (Qld), s 14A.

[25]Zappala Family Co. Pty Ltd v Brisbane City Council [2014] QCA 147, [56], citing Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337 and Lewiac Pty Ltd v Gold Coast City Council [2011] QPELR 494.

[26]K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, 314 (Mason J).

[27]Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, 384 (McHugh, Gummow, Kirby and Hayne JJ).

[28]Education (General Provisions) Act 2006 (Qld), s 5(1)(a)(i).

[29]Education (General Provisions) Act 2006 (Qld), s 5(1)(a)(ii).

[30]Education (General Provisions) Act 2006 (Qld), s 5(2)(c).

[31]Education (General Provisions) Act 2006 (Qld), s 5(2)(d).

[32]Education (General Provisions) Act 2006 (Qld), s 7(a).

[33]Education (General Provisions) Act 2006 (Qld), s 7(b)(i).

[34]Education (General Provisions) Act 2006 (Qld), s 7(b)(ii).

[35]Education (General Provisions) Act 2006 (Qld), s 7(b)(iii).

[36]Education (General Provisions) Act 2006 (Qld), s 7(d).

[37]PJS Development Pty Ltd v Tong [2003] QSC 337, [5], [8].

[38]PJS Development Pty Ltd v Tong [2003] QSC 337, [5], [8].

[39]Education (General Provisions) Act 2006 (Qld), s 176, s 177, s 178.

[40]Education (General Provisions) Act 2006 (Qld), s 178(3).

[41]Queensland Building Services Authority v J M Kelly (Project Builders) Pty Ltd [2013] QCA 320.

[42]Child Protection Act 1999 (Qld), s 13A.

[43]Submissions of the Applicant, [34].

[44]Education (General Provisions) Act 2006 (Qld), s 426.

[45]Department of Education Student protection guidelines dated March 2020; Family law matters affecting state schools dated 6 June 2019.

[46]See email Department of Human Services to Department of Education dated 16 October 2019 for an example of restricted access in a government agency.

[47]Cole v Department of Youth and Community Services (1986) 7 NSWLR 541; Richardson v ACT Health & Community Care Service [2000] FCA 654.

[48]White v Tennant (1888) 8 SE 596; Brabender v Brabender [1949] VLR 69 where a person was held to be a resident without a fixed abode.

[49]Acts Interpretation Act 1954 (Qld), s 48A(1).

[50]Acts Interpretation Act 1954 (Qld), s 48A(2).

[51]Education (General Provisions) Act 2006 (Qld), s 216(b).

[52]Within the context of human rights, SF and her family’s right not to have their privacy, family, home or correspondence ‘arbitrarily’ interfered with extends to interferences which, in the particular circumstances applying to the individual, are unreasonable in the sense of not being proportionate to a legitimate aim sought – interference can be arbitrary although it is lawful: PJB v Melbourne Health & Anor [2011] VSC 327, [80] – [85] (Bell J). 

[53]Unlike Equipment Investments Pty Ltd and MJ Dowthwaite and Co Pty Ltd (1969) 16 FLR 23.

[54]Acts Interpretation Act 1954 (Qld), s 32CA(1).

[55]Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, 382 (McHugh, Gummow, Kirby and Hayne JJ); Norton v Long [1968] VR 221, 221-4 (Winneke CJ).

[56]Human Rights Act 2019 (Qld), s 4(b) and (f), s 58(1)(a).

[57]Human Rights Act 2019 (Qld), s 48; Storch v Director-General, Department of Justice and Attorney-General [2020] QCAT 152, [45].

[58]Human Rights Act 2019 (Qld), s 15(3).

[59]Human Rights Act 2019 (Qld), s 25(a).

[60]Human Rights Act 2019 (Qld), s 26.

[61]Human Rights Act 2019 (Qld), s 36(1).

[62]Human Rights Bill 2018 (Qld), Explanatory Notes 22.

[63]PJB v Melbourne Health & Anor [2011] VSC 327.

[64]Castles v Secretary, Department of Justice (2010) 28 VR 141, 163 citing Director of Housing v Sudi [2010] VCAT 328, [29] referring to Nowak, UN Covenant on Civil and Political Rights: ICCPR Commentary (2nd revised ed, 2005) 377ff.

[65]Human Rights Act 2019 (Qld), s 48.

[66]Momcilovic v The Queen (2011) 245 CLR 1, [50] – [51] (French CJ).

[67]Anti-Discrimination Act 1991 (Qld), s 7(h), s 8, Schedule 1 (definition of ‘impairment’).

[68]Application to review a decision dated 10 February 2020, Attachment A, [16].

[69]Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37.

[70]Human Rights Act 2019 (Qld), s 8(b), s 13.

[71]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c).

[72]Education (General Provisions) Act 2006 (Qld), s 426.

[73]Department of Education Student protection guidelines dated March 2020; Family law matters affecting state schools dated 6 June 2019.

[74]See [29] to [32].

[75]Human Rights Act 2019 (Qld), s 13(2)(d); Momcilovic v The Queen (2011) 245 CLR 1, 223 (Crennan, Kiefel JJ); Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c); See for example Centrelink letter dated 12 March 2020.

[76]Castles v Secretary, Department of Justice (2010) 28 VR 141.

[77]R v Chaulk [1990] 3 SCR 1303.

[78]R v Chaulk [1990] 3 SCR 1303.

[79]R v Oakes (1986) 1 SCR 103, [71].

[80]Human Rights Act 2019 (Qld), s 13(2)(g); R v Chaulk [1990] 3 SCR 1303.

[81]Human Rights Act 2019 (Qld), s 58(2).

[82]Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, 492.

[83]Direction 6 of 28 April 2020; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

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Editorial Notes

  • Published Case Name:

    SF v Department of Education

  • Shortened Case Name:

    SF v Department of Education

  • MNC:

    [2021] QCAT 10

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    13 Jan 2021

Appeal Status

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