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JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships[2023] QCAT 316

JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships[2023] QCAT 316

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316

PARTIES:

JD

(applicant)

v

Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships

(respondent)

APPLICATION NO/S:

GAR 280-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 August 2023

HEARING DATE:

12 October 2022

Written closing submissions filed 26 October 2022, 18 November 2022, and 2 December 2022

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

  1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. the contents of a document or thing filed in or produced to the Tribunal;
    2. evidence given before the Tribunal; and
    3. any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, or any innocent third party to this proceeding, save as is necessary for the parties to engage in and progress this proceeding.

  1. The applicant’s Application to Review a Decision filed 23 April 2021 is dismissed.
  2. The applicant’s Application for Miscellaneous Matters filed 30 September 2022 is dismissed.
  1. The applicant’s Applications for Miscellaneous Matters filed 4 August 2022 and 11 October 2022 seeking orders for the giving of declarations under s  58 and/or s 59 of the Human Rights Act 2019 (Qld) are dismissed.
  2. The applicant’s Application for Miscellaneous Matters filed 4 August 2022 seeking any other orders the Tribunal deems fit is dismissed.
  3. The applicant’s Application for Miscellaneous Matters filed 11 October 2022:
    1. seeking directions as to the hearing of the applicant’s Application for Miscellaneous Matters filed 4 August 2022 is dismissed;
    2. seeking an order from this Tribunal that the applicant be issued with a Disability Worker Screening Clearance pursuant to s 92(2)(a) of the Disability Services Act 2006 (Qld) is dismissed.
    3. seeking written recommendations be made by this Tribunal under s 24(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to the chief executive of the respondent is dismissed.
  4. Costs are reserved.
  5. Should the parties not agree on the issue of costs within 14 days of the date of this order, the issue of costs will be determined by this Tribunal in accordance with the following directions:
    1. The applicant is to file in this Tribunal, and serve on the respondent, any further material upon which he seeks to rely together with his submissions on the issue of costs, within 28 days of the date of this order.
    2. The respondent is to file in this Tribunal, and serve on the applicant, its material (if any) upon which it seeks to rely together with its submissions (if any) on the issue of costs, including its reply (if any) to the applicant’s submissions, within 14 days of being served with the applicant’s material and submissions.
    3. The applicant is to file in this Tribunal, and serve on the respondent, its submissions in reply (if any), within 7 days of being served with the respondent’s  submissions.
    4. Unless either party requests a hearing on costs within their submissions filed as per subparagraphs (a) to (c) herein, the issue of costs will thereafter be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
    5. Should either party choose not to file any submissions as per (a) to (c) herein, that party is to inform this Tribunal, with a copy to the other party, of same in writing not later than the day on which the submissions are due.
    6. Should the applicant not file any material or submissions within the time directed in subparagraph (a) herein, or any extended time granted by this Tribunal, or should he inform this Tribunal that he will not be doing that as provided for in subparagraph (e) herein, the applicant’s application for costs will immediately thereafter, by further order of this Tribunal, be dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant sought review of a decision by the respondent not to cancel a transitional exclusion under the Disability Service Act 2006 (Qld) – where the Tribunal invited the respondent to reconsider the decision – where the respondent  reconsidered the decision and set it aside – where the applicant accepted the reconsidered decision but did not withdraw his application for review – where, notwithstanding the reconsidered decision, the applicant sought an order from the Tribunal that a clearance be issued – where the applicant also sought orders for declarations under the Human Rights Act 2019 (Qld) – where the applicant also sought orders that the Tribunal make recommendations to the respondent’s chief executive.

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – identity of applicant – identity of persons with a disability – identity of organisations providing disability services – asserted harm to a person’s reputation and employment position  – sensitive cultural aspects – exercise of discretion when making a non-publication order

HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – where the applicant sought orders for declarations under the Human Rights Act 2019 (Qld) – where those declarations were sought within a merits review proceeding in the Queensland Civil and Administrative Tribunal

HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – where the applicant sought orders for declarations under the Human Rights Act 2019 (Qld) – where those orders were sought as part of a merits review of a decision – whether the Queensland Civil and Administrative Tribunal had jurisdiction when conducting a merits review to determine the question of ‘unlawful’ for the purposes of s 59(1) of the Human Rights Act 2019 (Qld)

Charter of Human Rights and Responsibilities Act 2006 (Vic) s 38(1), s 38(2)

Disability Services Act 2006 (Qld) s 92, s 95, s 98, s 99, s 138ZX, s 138ZW, s 138ZV, s 371, s 382, s 385

Human Rights Act 2019 (Qld) s 58(1), s 59(1)

Judicial Review Act 1991 (Qld) s 20, s 21, s 22, s 23, s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 18, s 19, s 20, s 21, s 23, s 24, s 28, s 60, s 61, s 62, s 66

Director of Housing v Sudi (2011) 33 VR 559

Director-General, Department of Justice and Attorney-General v PML [2021] QCAT 51

DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33

Goode v Common Equity Housing [2014] VSC 585

Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623

LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373

LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333

Minister for Immigration v Bhardwaj (2002) 209 CLR 597

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

Queensland College of Teachers v Mills [2015] QCAT 476

SQH v Scott [2022] QSC 16

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33

APPEARANCES & REPRESENTATION:

Applicant:

B Coyne instructed by Langtree Legal

Respondent:

F Chen instructed by Crown Law

REASONS FOR DECISION

Overview

  1. [1]
    The applicant is a young man who desired to work with disabled person. For that, he needed a clearance under the Disability Services Act 2006 (Qld) (the DS Act). However he has a criminal history and as such his first attempt to obtain a clearance failed. He then sought relief in this Tribunal in its review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) to have that decision reviewed and set-aside with a finding to be made that would entitle him to be granted that clearance.
  2. [2]
    Relatively shortly after he made his application to this Tribunal, the DS Act was substantially amended. This resulted in the decision to deny him a clearance returning to the respondent to be decided again, but on the second occasion by a more senior officer and without reference to the earlier decision made. But once again he failed to obtain the clearance, and so he once again applied to this Tribunal for a review of that decision.
  3. [3]
    Whilst on its face this might seem to be just another administrative review proceeding, it was far from that. What unfolded was a convoluted, confused, and confusing proceeding with an underlying current of complaint and conjecture from the applicant that the respondent’s decision-maker had failed to consider, or properly consider, the requisite provisions of the Human Rights Act 2019 (Qld) (the HR Act) in reaching the decision to deny him a clearance, as well as complaint and conjecture that the process engaged in was flawed to the extent the applicant requested this Tribunal make recommendations to the respondent as to necessary policy and/or procedural changes.
  4. [4]
    As this proceeding unfolded, the applicant filed three Applications for Miscellaneous Matters. In some respects these were repetitive in the relief sought therein, whilst also effectively seeking to expand the relief he sought from this Tribunal beyond that in his Application for Review of a Decision. That expanded relief was in terms of  declarations to be made under the HR Act as to the alleged contraventions thereof by the respondent in its decision-making capacity, and that under the QCAT Act this Tribunal give the recommendations to the respondent. He also, by way of those interlocutory applications, sought his costs of the proceeding.
  5. [5]
    Ultimately, as the proceeding progressed and material was filed, it is apparent that with the further information gained from the applicant’s material as it was filed, the respondent concluded that the applicant was entitled to a clearance. Accordingly, shortly before the substantive hearing was to occur, the respondent requested this Tribunal to exercise the discretion afforded the Tribunal under s 23 of the QCAT Act and invite the respondent to reconsider the decision. That occurred, and the respondent reversed the decision thereby leading to the applicant obtaining the clearance he desired.
  6. [6]
    Notwithstanding that change in the respondent’s decision and the applicant effectively achieving that which he started out to get, he did not withdraw his application in this Tribunal and pressed on. However, whilst he did not do so in any way seeking a review of the amended decision, such which became the reviewable decision under the operation of s 23 of the QCAT Act, thus effectively accepting it as being correct, he continued to press this Tribunal to give an order that would give him the requisite clearance. He also continued to press for the relief in terms of the declarations and recommendations, as well as maintaining his claim for costs.
  7. [7]
    For the reasons I discuss herein, the applicant fails in his efforts to have this Tribunal grant him the relief he seeks in terms of issuing him with a clearance, making the declarations under the HR Act, and giving recommendations to the respondent under the QCAT Act. There however remains the issue on costs for which I am yet to receive submissions from the parties.
  8. [8]
    Orders were accordingly made to that effect.

Background

  1. [9]
    The background to this proceeding is convoluted for a number of reasons. Firstly, substantial amendments were made to the DS Act which commenced on 1 February 2021, being after the applicant filed his application in this Tribunal by which this proceeding commenced. Secondly, because of the number of interlocutory applications the applicant made in the proceeding and the extent to which he sought to expand the ambit of the relief he was seeking from this Tribunal. Thirdly, because of the respondent’s reconsideration and reversal of its decision to which the applicant’s application relates, such effectively occurring almost on the eve of the substantive hearing. That being so, it seemed to bm it would be helpful, in assisting with an understanding of these reasons and the decisions I have reached, to set out that background in detail. I do so here by way of a chronology of the key events as I saw them to be.
  2. [10]
    On 17 September 2019, the applicant applied for a prescribed notice under the then current version of the DS Act,[1] such effectively being an application for what was then, as I understand it, generally known as a ‘Yellow Card’ which would permit him to be employed in working with disabled persons.[2]
  3. [11]
    On 21 July 2020, the respondent,[3] by its delegate decision maker, decided the application issuing a ‘negative notice’ under s 54 of the then current DS Act (the July 2020 Decision).[4]
  4. [12]
    On 17 August 2020, the applicant applied to this Tribunal under s 109 of the then current DS Act for a review of the July 2020 Decision (the August 2020 Application).[5]
  5. [13]
    On 1 February 2021, substantial amendments to the DS Act commenced.[6] At that time the August 2020 Application had not been decided or withdrawn. As a consequence, pursuant to the then amended DS Act:
    1. under s 371, the negative notice issued pursuant to the July 2020 Decision became a ‘transitioned exclusion’, such which had the effect that the negative notice was an ‘exclusion’ for the purposes of s 99 of the amended DS Act;
  1. under s 382 read together with s 385:[7]
  1. (i)
    this Tribunal was required to dismiss the August 2020 Application and any proceeding related to it;
  1. (ii)
    the respondent was required to make a new decision, in effect being a decision ‘to cancel or not to cancel the exclusion’,[8] such to be conducted afresh by way of an assessment in accordance with the amended Act disregarding the July 2020 Decision and the reasons for it; and
  1. (iii)
    that new decision would then be considered as if it were an ‘internal review decision’ conducted under s 138ZV of the amended Act.
  1. [14]
    On 2 February 2021, this Tribunal dismissed the August 2020 Application.[9]
  2. [15]
    What then followed was that in March 2021 the respondent’s delegate conducted the assessment afresh, and as it was required to do afforded the applicant the opportunity to provide submissions.[10]
  3. [16]
    On 29 March 2021, the respondent’s decision maker informed the applicant of the decision not to cancel the applicant’s ‘exclusion’ under s 385 of the then amended DS Act (the March 21 Decision). The effect of this was that the applicant was unable to obtain a ‘clearance’ under s 92(2) of the DS Act, which in turn meant he could not obtain the issue of a ‘clearance card’ under s 98(2) of the DS Act, such which was that previously known as the ‘Yellow Card’.
  4. [17]
    On 3 April 2021, noting the March 21 Decision was effectively an internal review decision pursuant to s 138ZW of the amended DS Act, the applicant commenced this proceeding for review of the March 21 Decision (the Original Application) seeking the following relief:

That the Tribunal set aside the decision to issue an exclusion, and that a Clearance is issued to the Applicant.

  1. [18]
    There was then a substantial period of time within the proceeding during which procedural directions were issued, but during which there was, at times, a failure by the applicant to comply with the given timeline for filing requisite material. Whilst originally it was to have been listed for hearing on a date not before 21 February 2022, ultimately it was listed for hearing on 5 August 2022.[11]
  2. [19]
    On 4 August 2022, the applicant filed the first of what became three Applications for Miscellaneous Matters in this proceeding (the 4 August Application).[12] He sought to expand the relief expressed in the Original Application by adding his request for:
    1. A non-publication order under s 66 of the QCAT Act.
    2. Declarations that the respondent had, in making a decision of 2 February 2021,[13] which whilst not expressed as such in the application I understand it to be in reference to a decision relevant to the applicant,  breached s58(1)(a) the HR Act.
    3. An order for costs of the proceeding.
  3. [20]
    On 5 August 2022, this proceeding originally came on for hearing before a Member other than me. It was adjourned on that day when, as I understand it, the learned Member found it necessary recuse himself. Subsequently it was scheduled for hearing before me on 12 October 2022.
  4. [21]
    On 28 September 2022, the respondent also filed an Application for Miscellaneous Matters within this proceeding seeking directions that (the Respondent’s Application):
    1. This Tribunal invite it to reconsider the March 21 Decision within 3 business days of notice of the order to do same; and
    2. Within 3 business days of the applicant receiving notice of the respondent’s reconsideration of its decision, the applicant is to inform this Tribunal and the respondent:
    1. (i)
      whether the applicant wishes to proceed with the hearing on 12 October 2022; and
    1. (ii)
      if so, what matters the applicant expects the Tribunal to hear and determine that day.
  5. [22]
    On 30 September 2022:
    1. this Tribunal issued directions consistent with the respondent’s application, requiring a response from the respondent by 6 October 2022 and a response from the applicant by 10 October 2022 (the 30 September Directions); and
    2. by what is said to have been a document filed in the Cairns Magistrates Court Registry that same day, the applicant filed his second Application for Miscellaneous Matters (the 30 September Application), wherein he sought:
    1. (i)
      directions in terms of the setting of dates for the hearing and determination of his 4 August Application other than his application for costs; 
    1. (ii)
      that a date for the hearing of the respondent’s Application be set, but not before the date for the hearing and determination of the first two parts of his 4 August Application; and
    1. (iii)
      his application for costs to be decided after all other interlocutory applications and the Original Application had been heard and determined.
  6. [23]
    On 4 October 2021, in an e-mail sent to this Tribunal covering a copy of the 30 September Application, the applicant’s solicitor made these comments:[14]

The Applicant did not have an opportunity to respond to the Respondent’s Application prior to the Tribunal making these Directions. …

…

We are further concerned that the decision of the Tribunal to make the Directions sought by the Respondent in its application dated 28 September 2022 failed to properly consider the human rights of the Applicant.

In the circumstances above, we respectfully request that the Tribunal urgently considers the attached Application for Miscellaneous Matters, which submits that an important step should be taken prior to the Respondent being invited to reconsider its decision, namely that both the Applicant’s Application for a non-publication order and declaratory relief pursuant to sections 58 and 59 of the Human Rights Act 2019 (Qld) are heard and determined by the Tribunal first.

  1. [24]
    On 5 October 2022, in terms of the 30 September Application this Tribunal gave directions (the 5 October Directions):
    1. for the respondent to file and serve by 10 October 2022 any submissions it wished to make in response thereto; and
    2. the application then to be determined on the papers but not before 11 October 2022.
  2. [25]
    On 6 October 2022, in satisfaction of the 30 September Directions, the respondent sent a letter to the applicant informing him that (the Reconsideration Decision).[15]  
    1. the March 21 Decision had been set-aside and that the exclusion was thus cancelled; and
    2. he was eligible to apply for a disability worker screening clearance.
  3. [26]
    On 10 October 2022, notwithstanding the Reconsideration Decision:
    1. in response to the 30 September Directions, the applicant’s solicitor sent a second e-mail to this Tribunal stating:[16]

In accordance with those Directions, we advise that the Applicant:

  1. Intends to pursue the Application for Review of a Decision.
  2. Expects the Tribunal to hear and determine the following matters on 12 October 2022:
    1. The Applicant’s Application filed 4 August 2022 for a non-publication order;
    2. The Applicant’s Application filed 4 August 2022 for declaratory relief under sections 58 and 59 of the Human Rights Act 2019 (Qld);
    3. The issuing of a Disability Worker Screening Clearance to the Applicant pursuant to section 92(2)(a) of the Disability Services Act 2006 (Qld);
    4. The Applicant’s Application filed 4 August 2022 for costs; and
    5. That the Tribunal makes written recommendations to the chief executive of the Respondent, and provides a copy of the recommendations to the decision-maker, under sections 24(3) and (4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The Applicant wishes to withdraw the Form 40 – Application for Miscellaneous Matters filed on 30 September 2022. We will shortly be filing a Form 40 - Application for Miscellaneous Matters which provides further information around the above matters.

  1. in response to the 5 October Directions, the respondent filed submissions not only responding to the application but also noting the existence of the Reconsideration Decision.[17]
  1. [27]
    On 11 October 2022, seemingly aware of the Reconsideration Decision, the applicant then filed his third Application for Miscellaneous Matters (the 11 October 2022 Application) in which he: [18]
    1. repeated the relief sought in his 4 August 2022 Application but on this occasion requesting that the matters the subject of that earlier application be heard and determined at the hearing on 12 October 2022;
    2. expanded on the extent to which the relief he sought in his Original Application in terms of a clearance and sought an order in the following terms;[19] and

The Applicant be issued with a Disability Worker Screening Clearance pursuant to section 92(2)(a) of the Disability Services Act 2006 (Qld).

  1. sought orders for recommendations in the following terms.

The Tribunal makes written recommendations to the chief executive of the Respondent, and provides a copy of the recommendations to the decision-maker, under sections 24(3) and (4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

  1. [28]
    On 12 October 2022, as I understand shortly before the start of the hearing before me, the respondent sent to the applicant a follow up letter to the Reconsideration Decision letter, in which the following statements appear:[20]

To be clear, given that I am satisfied that you do not pose an unacceptable risk of harm to people with a disability, the department must issue a clearance to you pursuant to s 92(2)(a) of the Disability Services Act 2006 (the Act). Further, under s 98(1)(a)(i) of the Act, the department must give you a notice that states the department has decided, in your case, to issue an (sic) NDIS worker screening clearance. Under s 98(1)(b), the department must also issue you with a clearance card.

However, as a result of changes to the department’s proceedings following amendments to the Act in 2020 brought about by the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020, the department requires an application for a disability  worker screening clearance to be lodged electronically in order to process your clearance, including issued you with a clearance card. …

Given that my reconsideration decision arose out of review proceedings before QCAT which relate to a decision not to cancel your transitioned exclusion under s 385 of the Act, there is no current or valid application for a disability worker screening clearance in the department’s system able to be processed.

  1. [29]
    It was against this background that the parties then appeared before me on 12 October 2022 for determination of the Original Application, the 4 August Application, and the 11 October Application,[21] whilst noting the Respondent’s Application had been addressed and the applicant had purportedly withdrawn his 30 September Application. At the conclusion of that hearing I gave directions for the filing of written closing submissions, the last of which was filed on 2 December 2022.
  2. [30]
    Regrettably, since then, due to a number of issues arising unexpectedly before me, my consideration of this matter was substantially delayed such that it has taken until now for there to be time available for me to read and consider the voluminous and at times complex and confusing material so as to reach a decision and provide these reasons. To some degree this has also been a result of dealing with a backlog for me that arose from the Covid pandemic.

The Substantive Issues

  1. [31]
    At the start of the hearing on 12 October 2022, given the Reconsideration Decision, I requested clarification from the parties as to what remained to be determined in this proceeding. After some extensive discussion with the parties’ respective Counsel,[22] the result was that the following relief was still being sought by the applicant:
    1. A non-publication order be made under s 66 of the QCAT Act;
    2. An order be made that the Applicant be issued with a clearance card under the DS Act;
    3. Recommendations be made under s 24 of the QCAT Act;
    4. Declarations be made under s 58 / s 59 of the HR Act; and
    5. Costs.
  1. [32]
    Whilst these were the ‘Issues’ as the parties identified them before me, in my opinion there was a fifth issue that required address, it being one which I considered should be dealt with before the substantive issues are addressed other than the non-publication order.[23] This is the existence of the Original Application and the relief sought thereunder given the Reconsideration Decision.
  2. [33]
    The relevant issue is that the applicant sought relief in his Original Application that the March 21 Decision be set-aside, and notwithstanding the Reconsideration Decision, given the content of the applicant’s solicitor’s e-mail of 10 October 2022 which I noted in paragraph [26] herein, that relief and the application in its entirety effectively remained pending before this Tribunal in the absence of the applicant having formally withdrawn the Original Application. Thus, there was a question of this Tribunal’s jurisdiction to proceed.
  3. [34]
    But, before embarking on a discussion of that and the substantive issues, there are two preliminary issues that in my opinion are in order to address first up for a clearer understanding of that which follows in these reasons.

Preliminary Issues

The Transcript

  1. [35]
    In reading the applicant’s Counsel’s closing written submissions and in considering the various issues on which I was required to decide, and then in drafting these reasons, I became aware that, for an entirely unexplained reason, there were two versions of a Transcript for the hearing before me on 12 October 2022. One version is 104 pages long (the Short Version), the other is 118 pages long (the Long Version).
  2. [36]
    On my scan reading of the two versions, the substantive difference between them appears only to be the manner in which some of the discussions have been transcribed where one person spoke over the top of another person which leads to a disjointed transcription, or at times words spoken by one person being attributed to the other person.[24] The Short Version has reduced some of that disjointed transcription leading to it being more readily comprehendible when reading it. There are also occasionally a slight difference in some words, or the manner in which references to sections / extracts from legislation is given, and also spelling of some words, none of which has in any way changed the meaning of that which is recorded as having been said. The Short Version also seemed to be consistently presented at 49 lines per page whereas the Long Version is presented at 45 lines per page, which at least in part explains the difference in the quantity of pages in the Transcript documents.
  3. [37]
    That being so, to the extent I have extracted any part of the Transcript herein, it is from the Short Version, and where I have referenced the transcript in a Footnote I have done so initially as to the Short Version, but then immediately thereafter given the Long Version reference in parentheses.

The documentary ‘Material’ in the hearing

  1. [38]
    Given the Reconsideration Decision, as I discuss later in these reasons, there was no requirement for me to consider the Original Application to the extent the applicant sought an order that the March 21 Decision be set-aside. That decision was no longer the reviewable decision for the purposes of this proceeding. For that reason, there was no need to hear evidence that would otherwise have been heard.
  2. [39]
    However, the applicant still pressed his Original Application and his Interlocutory Applications. Accordingly substantial documentary material was tendered and received as exhibits in the hearing.
  3. [40]
    The respondent tendered a large bundle of material, provided to this Tribunal pursuant to s 21(2) of the QCAT Act in satisfaction of Directions to that effect given 10 May 2021.[25] Notwithstanding that I was not required to decide in terms of setting aside or confirming the March 21 Decision, this material still assisted me in a limited manner to understand the background to the proceeding and consider the issues that remained to be determined within it. For that reason I did have some regard to it.
  4. [41]
    The respondent also tendered, with the consent of the applicant, one statement of a DM. However I did not ultimately need to have any regard to it.[26]
  5. [42]
    Notwithstanding that the March 21 Decision no longer needed to be considered in terms of the primary issue which gave rise to the Original Application, namely whether the applicant posed an unacceptable risk to persons with a disability and thus whether his exclusion should be maintained or cancelled, the applicant still tendered a substantial volume of statements from himself and others, all of which were effectively with the consent of the respondent and without any of those persons being required for cross-examination.[27] However, for the reasons I have given herein as to my decision on the substantive issues remaining in this proceeding after the Reconsideration Decision was made, this material was simply of no assistance to me. I did not need to, and so did not, have any regard to it.
  6. [43]
    There was also four other documents tendered as exhibits, namely earlier written submissions from the applicant and the respondent respectively,[28] and a copy of the respondent’s two letters to the applicant concerning the reconsideration of the decision.[29]

The Substantive Issues

  1. [44]
    I thus now turn to the substantive issues. Whilst the manner in which they were addressed during the hearing was somewhat once again convoluted, I have put them into an order I considered to be most appropriate.

Application for a non-publication order

  1. [45]
    The applicant’s application for a non-publication order was premised inter-alia on the asserted facts that he works within a confidential environment, and that people with a disability access support services on an understanding that their identities remain a private part of the service agreement.
  2. [46]
    As relevant, the provision of the QCAT Act is as follows:

66  Non-publication orders

  1.  The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
  1.  the contents of a document or other thing produced to the tribunal;
  1.  evidence given before the tribunal;
  1.  information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
  1.  The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
  1.  to avoid interfering with the proper administration of justice; or
  1.  to avoid endangering the physical or mental health or safety of a person; or
  1.  to avoid offending public decency or morality; or
  1.  to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
  1.  for any other reason in the interests of justice.
  1.  …
  1. [47]
    In the hearing, the applicant’s Counsel advanced the application on the basis that paragraphs 2 (b), (d) and (e) were the relevant provisions as to why the order is necessary, making this submission:[30]

And then, finally, on the non-publication order my instructions are regarding the reason section 66, sub (2)(b), (d) and (e) are probably most relevant; (b) avoid endangering the mental health or safety of a person. I mean, there’s a cultural context to this as well, but the information/events being personal and private, occurring at a difficult time in my client’s life, and if disclosed could - if publicly disclosed could endanger his mental health; and also there’s a potential to prejudice future employment, which probably comes under sub (e), any other considerations.

  1. [48]
    The respondent did not oppose this application.[31] 

Consideration of the Issue

  1. [49]
    Notwithstanding the common ground that existed as to the application being granted, it remained a matter of the exercise of my discretion on the bases of that set out in s 66(2) of the QCAT Act.
  2. [50]
    As to the premises upon which the application for the order was advanced, such appeared not to be the premise that ultimately it was pressed in the hearing. But even if it was pressed, I found the reasons for the application to be vague other than the assertion that persons with a disability who access support services are to be afforded a respect of their privacy. In that regard it seemed to me that, to the extent there could be some reference to persons or organisations with whom the applicant may have an association that was relevant to the issues to be determined in this proceeding, then those references should be de-identified references so favouring the issuing of a non-publication order.
  3. [51]
    As to the arguments presented by the applicant’s Counsel, as was observed by this Tribunal in  Queensland College of Teachers v Mills [2015] QCAT 476, harm to a person’s reputation and employment position alone, while a legitimate concern, does not make it necessary for a non-publication order in the interests of justice because such an order is not appropriate to simply avoid the unfortunate consequences of a person’s behaviour.[32] Accordingly I do not accept the applicant’s argument as to there being a potential to prejudice his future employment as a valid reason. Nor do I accept on face value the submission that any disclosure could endanger the applicant’s mental health. Such is a bare submission devoid of any evidence being presented to support it. If such an argument were to carry weight there would need to be something more than the bare submission.
  4. [52]
    I did not however accept that there was a cultural element here that should be respected. Many of the issues that were traversed in the material filed in this proceeding and discussed during the hearing revolve around the applicant’s culture and the culture of persons / organisations to which reference was made. It is for this reason, and the reason I noted earlier concerning respecting the privacy of persons with a disability, extending to organisations providing services for same, that I considered it was in order for me to exercise the discretion afforded me under s 66(2)(e) of the QCAT because I considered that it was in the interests of justice to ensure that both sensitive cultural aspects and persons with a disability are respected and protected in terms of privacy.
  5. [53]
    Accordingly the requested non-publication order was made.

This Tribunal’s Jurisdiction given the Reconsideration Decision

  1. [54]
    This Tribunal’s jurisdiction to review the March 21 Decision arose under s 138ZW and s 385(10) of the DS Act, read together with the QCAT Act Chapter 2 Part 1 Division 3, particular s 18 therein. In constituting the Tribunal for this proceeding, I was required to exercise this jurisdiction in accordance with both those pieces of legislation and, to the extent I was required to make a decision that would fall under the DS Act I must also consider the HR Act.[33] In doing so under s 19 of the QCAT Act I had all the functions of the decision-maker in terms of the decision to be made.
  2. [55]
    Under s 20 of the QCAT Act, the purpose of the review was to produce the correct and preferable decision, such to be reached by way of a fresh hearing on the merits. It was not necessary for me to consider whether the decision-maker made an error in making the March 21 Decision, rather the focus was on the cogency of the case as presented in this hearing, such as relevant being the applicant’s case for being permitted to hold a clearance under the DS Act.[34]  
  3. [56]
    Under s 24 of the QCAT Act,  at the conclusion of the review  I was entitled to confirm or amend the March 21 Decision, set aside the March 21 Decision and substitute my own decision, or set aside the March 21 Decision and return the matter for reconsideration to the decision-maker with directions I considered to be appropriate.
  4. [57]
    It was on these bases that the Original Application was set down for hearing before me. However, there is another provision of the QCAT Act dealing with this Tribunal’s jurisdiction that is relevant to what occurred and impacted the outcome of this proceeding. It is the operation of s 23 of the QCAT Act, which for ease of reference I extract here in full:

23  Inviting decision-maker to reconsider decision

  1.  At any stage of a proceeding for the review of a reviewable decision, the tribunal may invite the decision-maker for the decision to reconsider the decision.
  1.  If the decision-maker for a reviewable decision is invited to reconsider the decision under subsection (1), the decision-maker—
  1.  has 28 days to reconsider the decision; and
  1.  may—
  1.  confirm the decision; or
  1.  amend the decision; or
  1.  set aside the decision and substitute a new decision.
  1.  If, under subsection (2), the decision-maker for a reviewable decision confirms the decision, the proceeding for the review of the decision must continue.
  1.  If, under subsection (2), the decision-maker for a reviewable decision (first decision) amends the decision or sets the decision aside and substitutes another decision for it—
  1.  the first decision as amended or the decision substituted for the first decision is taken to be the reviewable decision for this Act and the enabling Act; and
  1.  the review must continue for the reviewable decision unless the applicant for the review withdraws the application for review; and
  1.  if a person other than the applicant applies to the tribunal to review the reviewable decision—the tribunal may hear and decide each application for the review of the reviewable decision.
  1. [58]
    As I have noted it in the Background section of these reasons, by way of the 30 September Directions this Tribunal proceeded under s 23(1) and invited the respondent to reconsider the March 21 Decision, directing it to provide a response to both the Tribunal and the applicant as to the outcome of that reconsideration. The outcome was, as noted, the Reconsideration Decision whereby the March 21 was set-aside and substituted with the decision that, in effect, the applicant was entitled to the clearance he sought. That being so, by virtue of s 23(4)(a) and (b) of the QCAT Act, the Reconsideration Decision became the reviewable decision for the purposes of the Original Application in the absence of the applicant withdrawing that application, which he did not do.
  2. [59]
    Instead, there was subsequent communication from the applicant to this Tribunal relative to the invitation to reconsider and the subsequent Reconsideration Decision. By way of his solicitor’s e-mail of 4 October 2022, the applicant seemingly took issue with the 30 September Directions arguing that this Tribunal failed to properly consider his human rights in making the decision to invite the respondent to reconsider the March 21 Decision, and also that his 4 August Application should first be determined, in terms of at least the non-publication order and the declaratory relief he sought under s 58 and s 59 of the HR Act.
  3. [60]
    Later by way of his solicitor’s e-mail of 10 October 2022, having received the Reconsideration Decision, in satisfaction of the remainder of the 30 September 2022 Directions as it applied to him the applicant informed this Tribunal:
    1. that he intends to pursue the Original Application; and
    2. that he expects the Tribunal to hear and determine the following issues in the hearing on 12 October 2022:
      1. His application for a non-publication order;
      2. His application for declaratory relief under the HR Act;
      3. His application for the issuing of the required ‘clearance’ under the DS Act; and
      4. His application for written recommendation to be made; and
      5. His application for costs.
  4. [61]
    However, critically and notably, whilst he did not withdraw the Original Application,  he did not press for a decision from this Tribunal in terms of the Reconsideration Decision, but rather continued to press for relief that he otherwise sought in terms of the March 21 Decision.

Consideration of the Issue

  1. [62]
    In my opinion this is where the applicant’s case and conduct of his Original Application went wrong.
  2. [63]
    Other than for the issues arising from his Interlocutory Applications, such which were presented at the time the March 21 Decision was the decision under review and accordingly save only for one comment I make in the next paragraph can only be read as being relevant to that decision and not the Reconsideration Decision,[35] the net effect is that the March 21 Decision was no longer open to be reviewed and this Tribunal’s jurisdiction in respect of it was spent.
  3. [64]
    That comment is to the issue I raised in the Footnote to paragraph [19](b) herein, namely that the declarations the applicant sought in terms of alleged breaches of s 58 of the HR Act were said to be relevant to a decision the respondent made on 2 February 2021, however no such decision as it relates to the applicant is before me. The only decision of 2 February 2021 that is before me is a decision of this Tribunal dismissing the applicant’s August 2020 Application. This point was never identified in the hearing. That being so, it is not entirely clear to me whether this was a specific reference the applicant made, or it was one simply made in error and what was supposed to have been referred to is the respondent’s March 21 Decision. Given that the substantive arguments before me both orally during the hearing and in written material subsequently filed were in terms of what was often described as ‘the Impugned Decision’, being a reference to the March 21 Decision,[36] I infer it was the latter and accordingly I proceeded to consider the proceeding before me on the understanding that the declaratory relief the applicant sought was in reference to the March 21 Decision.
  4. [65]
    That being so, the challenge then for the applicant was that, once this Tribunal’s jurisdiction was spent in terms of reviewing the March 21 Decision, the question arose as to the bases for consideration of those issues raised in the Interlocutory Applications. In order to deal with them, in my opinion it would have been necessary to conduct a full review of the merits of Reconsideration Decision, such which in my opinion would have necessitated a review of all events leading up to it, including the making of the March 21 Decision.
  5. [66]
    But that is not the manner in which the applicant conducted his case in the hearing before me. Such was in my opinion appropriately so given the absence of any utility in seeking a review of the Reconsideration Decision when it was a decision ultimately which would give him precisely that which he sought, namely a clearance under the DS Act. Confirming it, setting it aside and substituting it with another decision, or remitting it to the respondent for further consideration with directions, such being the outcomes available should it be reviewed, would serve no purpose whatsoever. Rather, he continued to effectively ‘attack’ the making of the March 21 Decision. Two errors arose from that approach.
  6. [67]
    Firstly, the March 21 Decision was no longer the reviewable decision upon which this Tribunal’s jurisdiction was to be exercised.
  7. [68]
    Secondly, and moreover critically, what the applicant was asking this Tribunal to do was go behind the decision making process of the respondent and consider the question of whether errors were made in that process. In that regard, the applicant’s Counsel made this oral submission in the hearing:[37]

… And I guess, I mean, look, notwithstanding a lot of the authorities in the tribunal talk about - in the review jurisdiction talk about there’s no need to find errors in the impugned decision, it’s a fresh merits review, etcetera, etcetera, the tribunal still has the power to inform itself in any way it thinks fit. The reason the applicant’s decisions are quite protracted and elaborated is because it well, I took an approach of going through a quite orthodox administrative review position of impugning that decision in order to inform the tribunal about how to better make a decision.

  1. [69]
    A similar vein was presented in the applicant’s written closing submissions:[38]

The Applicant’s submissions filed 3 February 2022 alleged a multiplicity of grounds of unlawfulness along the lines of orthodox administrative law principles. ….

The purpose of a review is to produce the “correct and preferable decision”. While it is not necessary for the Tribunal to consider whether the decision-maker made an error in making the Impugned Decision, the Tribunal is not precluded from finding error or errors in the Impugned Decision, including as part of its reasons for making the correct and preferable decision which is different, given that the Tribunal has broad discretion under relevant legislation in terms of how to administer and determine proceedings before it.

  1. [70]
    In support of the first part of that submission, the applicant refers me to the decision of this Tribunal in a Blue Card matter,[39] namely LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333,[368] wherein the learned Member cited Director-General, Department of Justice and Attorney-General v PML [2021] QCAT 51. Respectfully, that citation does not assist nor support the applicant’s argument. What the Tribunal was concerned with there was the question of the Tribunal considering all relevant material, such that if it were not considered it would be an error of law. But that does not translate to the argument the applicant is endeavouring to make here such that if the material demonstrating the process engaged in by the decision-maker shows the process was infected with error, then it is relevant material to consider in the review. This is because the review is a merits review, which is a hearing afresh on all the available and relevant material, such not being concerned with errors made in the process that led to the decision under review.
  2. [71]
    In support of the last part of that submission, the applicant cites s 28, s 60, and s 61 of the QCAT Act. Whilst each of those sections provide a broad discretion to this Tribunal in the conduct of a proceeding:
    1. as s 28(1) makes clear the discretion in setting the ‘procedure for a proceedings’ is at all times subject to the QCAT Act, as is relevant here the DS Act, and the QCAT Rules, none of which empower the Tribunal to go behind the decision-making process;
    2. as s 61 makes clear it is nothing more than a power afforded the Tribunal to grant relief from procedural requirements, it does not extend to entitling the Tribunal to effectively go behind a decision under review and look for errors made in reaching that decision; and
    3. as to s 60, whilst it is a broad power given this Tribunal to make declarations in lieu of, or in additional to, an order it could make about a matter, once again it does not extend to a power to find and declare errors made in the process that led to the decision being reviewed.
  3. [72]
    I do not agree with the applicant’s submissions in this regard. The process of review he urged upon me to undertake is, in my opinion, one akin to a substantive administrative review under the Judicial Review Act 1991 (Qld), such which is beyond the jurisdiction given this Tribunal under the QCAT Act and the DS Act. For this reason I rejected it as being correct.
  4. [73]
    Finally, and for completeness, I should also make a brief observation regarding the applicant’s argument that the Tribunal did not properly consider his human rights when proceeding to invite the respondent to reconsider the decision.
  5. [74]
    Such an argument is bare of any detail. He does not identify which of his rights are said to have been applicable and to what extent they were not considered, or more importantly not considered, and if so what effect that is said to have had on the decision made to invite the respondent to reconsider the March 21 Decision. Nor has he identified the bases upon which it may be said that this Tribunal was required to consider his human rights in deciding to exercise the discretion it is afforded to invite the reconsideration.
  6. [75]
    If his argument is somehow founded in the doctrine of procedural fairness but presented as a human rights issue, and it is entirely unclear to me whether that is so, then in my opinion it is a flawed argument. In this matter the invitation to reconsider extended to the respondent under s 23(1) of the QCAT Act followed an application by the respondent for same, however the power to extend such an invitation is one afforded this Tribunal that may be exercised in the Tribunal’s discretion at any time, even in the absence of an application for same. Whilst it is correct that there is not an express provision to that effect within s 23,[40] under s 62(6) this Tribunal may act under s61(1) and give a direction in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding on the application of a party or on its own initiative, such which may be read in conjunction with s 23(1) thus empowering this Tribunal to have given the 30 September Direction without reference to the applicant.
  7. [76]
    For these reasons, and in particular given that the Reconsideration Decision has been made and the applicant does not press an application seeking review of that decision, then in my opinion the proper and appropriate order is to dismiss the Original Application in the absence of this Tribunal retaining any jurisdiction to consider it. Whilst there was an order to that effect, what must also be recalled and not overlooked is that within the relief sought in the Original Application is that a ‘clearance’ also be issued, such being advanced with more precision within the 11 October Application. Thus, I addressed that issue under a separate heading which follows here.

Application that the applicant be issued with a ‘Disability Worker Screening Clearance pursuant to s 92(2)(a) of the DS Act’

  1. [77]
    As I have earlier noted it, this was expressed as a separate relief in the 11 October Application, despite it effectively being covered by the relief sought in the Original Application albeit with less precision.
  2. [78]
    There was once again a degree of confusion with this issue in the arguments and submissions presented before me during and subsequent to the hearing. At the commencement of the hearing, when I endeavoured to identify with some clarity the issues that were being pressed in light of the Reconsideration Decision, the applicant’s Counsel made these submissions:

Now, there was going to be some contention this morning regarding the tribunal’s jurisdiction to make a correct and preferable decision that actually extends to issuing a clearance. The parties are at odds on that point. It is confused, the legislation, insofar as we’re 5 dealing with the transitional provisions and there do seem to be some gaps. But it was pursuant to section 138ZX(1)(a) that contemplates that in conducting a review of one of these transitioned exclusions the tribunal can issue a clearance, and it says so expressly.[41]

… So Member, you’ll be pleased to know we don’t have to have that jurisdictional argument, because my client is very relieved – I guess, that this decision has come.[42]

  1. [79]
    Later when discussing the relationship between the two remaining Interlocutory Applications, in terms of the relief sought therein as it was expressed in the 11 October 2022 Application, namely Orders 1 to 5, the applicant’s Counsel made this submission, his reference to ‘3’ therein being to the application for the issuing of a clearance pursuant to s 92(2)(a) of the DS Act.

1, 2 and 4, and 3 falls away because of the letter that we’ve received this morning.[43]

  1. [80]
    However, having made those submissions, somewhat surprisingly later in the hearing the applicant’s Counsel proceeded to make submissions about this very issue referring me to, and seemingly reliant on s 138ZX(1)(a) of the DS Act.[44]
  2. [81]
    Later, after some lengthy discussion with me, and between me and the respondent’s Counsel, the following exchange between me and the applicant’s Counsel occurred:             

ME: … if I’m understanding you correctly, you’re saying that the clearance that you seek from this tribunal is in satisfaction of section 98, subsection (1), paragraph (a), subparagraph (i)?

MR COYNE:  Yes.

  1. [82]
    Yet, having advanced those arguments in oral submissions during the hearing, the issue was not advanced at all in the applicant’s written closing submissions, nor does it appear anywhere within the orders he seeks as appended to those written submissions. Those written submissions were entirely silent on it. Accordingly I was left confused as to what the applicant ultimately was asking this Tribunal to do.
  2. [83]
    It may very well be the case that, as I read the written closing submissions, it was ultimately common ground that by the time both parties had made those submissions the ‘clearance’ had ultimately issued and accordingly an order from this Tribunal was not required. Although that seems to be the situation, given the extent to which it remained part of the Original Application and was seemingly still pressed in the hearing, for completeness I should discuss it briefly.
  3. [84]
    I do so by first extracting here the two sections of the DS Act to which the applicant’s Counsel referred and which I understand to be the premise for the relief originally sought.

98  Issuing clearance and clearance card

  1.  If the chief executive decides to issue a clearance to the person, the chief executive must—
  1.  give the person a notice that states the chief executive has decided—
  1.  if the person made an NDIS worker screening application—to issue the person an NDIS clearance; or
  1.  ….

138ZX  Stay of operation of particular tribunal decisions

  1.  This section applies if, on an application for a review of an internal review decision under section 138ZW, the tribunal sets aside the internal review decision and decides to—
  1.  issue a clearance to a person; or
  1.  end an interim bar imposed on a person; or
  1.  end the suspension of a person’s clearance.
  1.  The tribunal’s decision does not take effect until—
  1.  the end of the period within which an appeal against the tribunal’s decision may be started; or
  1.  if an appeal against the tribunal’s decision is started—the appeal is decided or withdrawn.
  1.  This section applies despite the QCAT Act, sections 145 and 152.
  1. [85]
    In my opinion, there are two fundamental flaws in the applicant’s argument as to why this Tribunal should have, if it was pressed, ‘issued a clearance’ to the applicant.
  2. [86]
    Firstly, the effect and operation of s 98(1)(a)(i) is not to require a ‘decision-maker’ to issue a clearance. Its effect is to require the Chief Executive to issue a clearance upon the decision-maker deciding to issue a clearance, or to put it another way to decide that a clearance should issue. Whilst that provision is expressed as noting the Chief Executive as the decision-maker, and also as to the issuer of  notice that the decision has been made to issue a clearance, it is only to the extent of the first of those roles and functions that this Tribunal steps into the shoes of the Chief Executive as the decision-maker when a decision is under review. It does not step into the shoes of the Chief Executive for other functions to be performed under the Act arising from the decision having been made. Thus s 98(1)(a) does not afford this Tribunal any jurisdiction to issue a clearance.
  3. [87]
    Secondly, s138ZX operates only when this Tribunal decides to issue a clearance, such which would occur under s 98(1)(a), or again to put it another way that a clearance should issue, but more relevantly and critically when the Tribunal decides under s 138ZW to first set aside the earlier decision under review. That is, in the absence of any decision made by the Tribunal to set aside the decision under review, then s 138ZX has no application. Moreover, the operation of s 138ZX is to place a stay on the Tribunal’s decision pending expiration of the relevant appeal period as provided for therein. Once again, this section does not afford this Tribunal any jurisdiction to issue a clearance.
  4. [88]
    In all respects, for these reasons to the extent the applicant’s Original Application, and his 11 October Application sought relief by way of an order for a clearance, they were without substance. The only proper outcome was that these applications be dismissed.
  5. [89]
    Thus, together with what I have discussed earlier herein regarding the substantive review application, the result must be that the Originating Application is dismissed in its entirety, and that the 11 October Application is dismissed to the extent it sought an order for a clearance. There were orders made to that effect.

Application for declaratory relief

  1. [90]
    By way of the Interlocutory Applications, the applicant sought declaratory relief requesting this Tribunal to issue declarations that his human rights had been contravened. In doing so he relied on the provisions of s 58 and s 59 of the HR Act, such falling within Part 3 – Division 4 of the Act which is entitled ‘Obligations on Public Entities’, which the applicant’s Counsel described as ‘the piggy-back provisions’.
  2. [91]
    Before embarking on a discussion of this aspect of the proceeding, I should say one thing about how this issue was dealt with in the hearing before me and subsequently in written closing submissions.
  3. [92]
    Towards the conclusion of the hearing the applicant’s Counsel raised a concern as to whether or not the respondent was running a particular argument concerning s 58 and s 59 of the HR Act in relation to the application of s 24(3) of the QCAT Act, such being relevant to the decision under review, and his confusion in that regard. The following ‘exchange’ took place between Counsel:[45]

MR COYNE:  One final thing. In my reply submissions I just asked for some clarification from my friend about a representation made earlier today about an argument wasn’t going to be run.

MEMBER:  Yes.

MR COYNE:  I had interpreted that - and this is possibly because I’m a stickler for model litigant principles, but I had interpreted that the argument that was not going to be run was the argument that the review decision had been substituted by the 6 October, 12 October decision. I’m just interested in what the explanation is because it wasn’t clear to me.

MEMBER:  Ms Chen, do you have anything to say about that?

MS CHEN:  I’ll clarify that. So it was that no argument would be made in relation to the section 58, section 59 under the Human Rights Act applying to that decision of the transitional exclusion decision. We weren’t going to make an argument that you can’t run those two sections and seek relief under those two sections in relation to that decision.

 The argument in relation to section 24(3) was about just utility; that is that the new decision has taken over the old decision and that goes to utility, not that we say the 15 applicant has no case.

MEMBER:  Does that answer your question?

MR COYNE:  I’m still confused.

MEMBER:  All right.

MR COYNE:  There seems to be an inherent contradiction in the position because  …

MS CHEN:  So there’s an issue about piggybacking - - -

MR COYNE:  As soon as, sorry, 24(3) is raised the submission from the respondent is, well, the 29 March 2021 decision is no longer in play, so therefore you don’t get your 58/59.

MS CHEN:  No.

MR COYNE:  Because it doesn’t seem to be there’s been a response to the nuanced position on the separate argument that there’s a separate jurisdiction under 58/59, that doesn’t seem to have been responded to at all. But just in terms of this question about the tribunal’s reviewed jurisdiction, maybe it’s late in the day and I just can’t work it out, but in any event - - -

MS CHEN:  We don’t take issue with the piggybacking. We don’t take issue with the stand-alone substantive cause of action under the Human Rights Act.

MR COYNE:  Thank you.

MS CHEN:  We say it’s all still in play.

MR COYNE:  Thank you.

  1. [93]
    Notwithstanding that exchange in terms of the confusion and apparent clarification, in her written closing submissions the respondent’s Counsel made this statement:[46]

The respondent acknowledges that at the hearing of this matter it conceded, to the contrary, that s 59 of the HR Act applied. On reflection, the respondent considers that submission was incorrect and apt to lead the tribunal into error. It is trite that the respondent cannot by its own concession give the tribunal jurisdiction it does not otherwise have. It is therefore withdrawn.

  1. [94]
    The applicant seemingly sought to make an issue about this in his written closing submissions asserting, in reference to the respondent, that he “holds serious concerns it has misled the Tribunal” making inter-alia these submissions as being relevant circumstances for such concern: [47]
  1.  s.21(1) QCAT Act … mandates that the Respondent “must use his or her best endeavours to help the tribunal so that it can make its decision on the review”, whereas the Respondent here has engaged in a bizarre campaign of obstruction and obfuscation of the Applicant and the Tribunal in what appears to be a desperate attempt to shield itself from public scrutiny under the HR Act – which, needless to say, goes against the very spirit of the HR Act as an educative force for good for the people of Queensland in helping to “build a culture in the Queensland public sector that respects and promotes human rights.”
  1.  additionally, the Respondent’s representatives at Crown Law, as public entities, also have strict obligations as to their acts and decisions being compatible with human rights and the substantive and procedural obligations contained in s.58(1) including affording [the applicant] the right to a fair hearing …
  1. [95]
    In my opinion there is no substance in the applicant’s submissions in this regard. Whilst it was unfortunate that the respondent’s Counsel had confirmed her client’s  position in the hearing as being what it then was, only later to have to correct that position, once realising the mistake said to have been made she properly and appropriately took the requisite step to correct it. The applicant was then on notice of this correction when his opportunity to make his written closing submissions came about. If there has been any prejudice suffered by the applicant as a result of this correction, it is not a prejudice that arises out of a denial of procedural fairness. It is one that, if established, could readily be addressed by way of an order for costs. However, in saying that, I am not suggesting that there has been prejudice or that any order for costs should follow. That remains the subject of submissions yet to be made.
  2. [96]
    I thus now turn back to the issue to hand. For convenience and ease of reference I extract the provisions of the HR Act in issue. They are:

58  Conduct of public entities

  1.  It is unlawful for a public entity—
  1.  to act or make a decision in a way that is not compatible with human rights; or
  1.  in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1.  Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.
  1.  Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion.
  1.  This section does not apply to an act or decision of a private nature.
  1.  For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
  1.  identifying the human rights that may be affected by the decision; and
  1.  considering whether the decision would be compatible with human rights.
  1.  To remove any doubt, it is declared that—
  1.  an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and
  1.  a person does not commit an offence against this Act or another Act merely because the person acts or makes a decision in contravention of subsection (1).

59  Legal proceedings

  1.  Subsection (2) applies if a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that the act or decision was, other than because of section 58, unlawful.
  1.  The person may seek the relief or remedy mentioned in subsection (1) on the ground of unlawfulness arising under section 58, even if the person may not be successful in obtaining the relief or remedy on the ground mentioned in subsection (1).
  1.  However, the person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58.
  1.  This section does not affect a right a person has, other than under this Act, to seek any relief or remedy in relation to an act or decision of a public entity, including—
  1.  a right to seek judicial review under the Judicial Review Act 1991 or the Uniform Civil Procedure Rules 1999; and
  1.  a right to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or an exclusion of evidence.
  1.  A person may seek relief or remedy on a ground of unlawfulness arising under section 58 only under this section.
  1.  Nothing in this section affects a right a person may have to damages apart from the operation of this section.
  1. [97]
    Ryan J explained the operation of these two sections as the ‘piggyback provisions’ in the following manner in Innes v Electoral Commission of Queensland (No 2):[48]

A person who claims that a public entity has breached s 58 can only bring legal proceedings to vindicate that claim by attaching it to an independent ground of unlawfulness (s 59(1)). In other words, a contravention of s 58 does not of itself give rise to any claim to relief or remedy. To achieve relief or remedy, the person alleging a breach of s 58 must also have a claim arising independently of the HR Act upon which the s 58 claim might “piggyback”.

Consideration of the Issue

  1. [98]
    Given that general brief background of the relevant law, I turn firstly to the competing submissions.
  2. [99]
    With the utmost of respect to the applicant’s Counsel I must confess to having had great difficulty in following the argument being made. It was not only prolix, but  similar to much of the applicant’s material before me, it was confused and confusing. That being so, as I understood the submissions, both oral and written, it was pressed on two grounds that provided the requisite ground of ‘unlawfulness’ to trigger the claimed right to a declaration under s59(4)(b), namely:
    1. Because s 20 of the QCAT Act requires this Tribunal, on the review of a decision, to make the ‘correct and preferable decision’, the Original Decision under review, being that made by the respondent under s 92 of the DS Act, was not only incorrect, but unlawful;[49] and
    2. because of the decision-maker’s failure to have properly considered the applicant’s human rights in making the March 21 Decision, and possibly extending back to the July 2020 Decision.[50]
  3. [100]
    In terms of that first argument, it being the primary ‘independent ground of unlawfulness’ as that terms was used by Ryan J, as I also noted it at paragraph [69] herein when discussing the issue of this Tribunal’s jurisdiction following the Reconsideration Decision having been issued, the applicant had earlier made a submission about unlawfulness of the March 21 Decision, but as relevant to this issue he went further in terms of the HR Act and accordingly I extract that submission more fully here:[51]

The Applicant’s submissions filed 3 February 2022 alleged a multiplicity of grounds of unlawfulness along the lines of orthodox administrative law principles. The Applicant submits that as he was able to seek such relief in the Review Jurisdiction of the Tribunal, the s.59 “piggyback provisions” were thereby triggered and therefore, even if he is not successful on his substantive application he is able to pursue the Human Rights Declarations as sought.

  1. [101]
    Under the heading ‘Deficiencies in the Decision’ in the February 2022 submissions,[52] the applicant prefaced the submissions that followed with this statement:[53]

Whilst the purpose of this proceeding is a rehearing on the merits and not a judicial review-type proceeding on administrative law grounds, given that the proceedings involve an impugning of an administrative decision-maker’s process, procedure and outcome of making an administrative decision, the Applicant submits that it is instructive to interrogate the various failures of the Decision-Maker and the deficiencies of the Decision through an administrative law lens, including for the purposes of illuminating a path for the Tribunal to the correct and preferable decision to issue the Applicant a clearance in the circumstances including with regard to the updated information and evidence.

  1. [102]
    What then followed were extensive submissions asserting various failures, and thus what was said to be errors, under these headings:[54]

F.2 Failure to have sufficient regard to consideration under new Worker Screening Framework

F.3 Failure to engage actively intellectually with the evidence of rehabilitation and other protective factors to find that they were sufficient to mitigate risk

F.4 Failure to engage actively intellectually and adequately, or at all, with the Applicant’s evidence and submissions about culturally appropriate and culturally safe care models employed by [Organisation named]

F.5 Irrelevant consideration

F.6 Error in purported formation of state of satisfaction in finding unacceptable risk – Unreasonableness / Illogicality / Irrationality

F.7 Duy to Inquire

  1. [103]
    However, despite the extensive nature of these submissions and the various categories in which the alleged errors were said to have been made, I was unable to discern the basis upon which the applicant ultimately asserted the March 21 Decision, and/or if applicable the July 2020 Decision, was ‘unlawful’.
  2. [104]
    At its highest, the applicant made a very general submission in a Footnote within his written closing submissions as follows:

… the Applicant relies upon the authorities cited therein of its Submissions filed 3 February 2022 (Exhibit 20) as to the unlawfulness of the Impugned Decision alleged.

  1. [105]
    But, once again with the utmost of respect to the applicant’s Counsel, this submission  does not assist me. In no way has it been made clear as to the basis upon which it is said that the March 21 Decision, and/or if applicable the July 2020 Decision, was unlawful. Nor did he address the fundamental issue of this Tribunal’s jurisdiction to consider and decide the requisite foundational issue, namely the ‘independent ground of unlawfulness’, once again as that term was used by Ryan J in Innes v Electoral Commission [55], such that it may correctly and properly be said the relative decision was ‘unlawful’
  2. [106]
    As the respondent’s Counsel has appropriately, and in my opinion correctly, submitted:[56]

Here, in the tribunal’s merits review jurisdiction, there is no independent ground of unlawfulness. The tribunal’s concern is with whether its decision is the correct and preferrable one, not with whether the decision being reviewed was lawful.

  1. [107]
    In Director of Housing v Sudi,[57] the Victorian Court of Appeal had cause to consider the jurisdiction of the Victorian Civil and Administrative Tribunal (VCAT) in terms of review of administrative decisions under an empowering Act, in that circumstance the Residential Tenancies Act 1997 (Vic), and whether VCAT could determine the existence of the requisite independent ground of unlawfulness for the purposes of s 39(1) in the Charter of Human Rights and Responsibilities Act 2006 (Vic), being the equivalent to s 59(1) of the HR Act. Such also extended to a consideration of s 38(1) of the Charter, such being the equivalent of s 58(1) of the HR Act.[58]
  2. [108]
    Whilst the issues in that matter concerned the powers of VCAT in its original jurisdiction, as compared to its review jurisdiction, in my opinion the reasoning of Warren CJ is still apposite to the circumstances as they were pressed before me. This is because it was premised on the question for determination, being whether the decision of a primary decision maker was ‘unlawful’, it being approached therein  within the confines of judicial review.[59]
  3. [109]
    The following observation by her Honour is an apt place to start comparing the jurisdiction of the Supreme Court to conduct judicial review to that of VCAT in performing its functions, such which in my opinion can be read as directly relevant to this proceeding by substituting VCAT with QCAT, the RTA with the DS Act, and the Charter with the HR Act:[60]

In contrast, the role and jurisdiction of VCAT is quite different. As an administrative tribunal, the jurisdiction of VCAT derives entirely from statute. The powers of an administrative tribunal in any particular instance flow from the statute that establishes the tribunal, in this case the VCAT Act, and any subject-specific legislation granting further jurisdiction, in this instance, the RTA. VCAT is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction.

Given these fundamental differences, if Parliament had intended to confer on VCAT the power to carry out judicial review of administrative decisions, it would have done so expressly, or at least by clear implication. No such express provision can be found, or clear implication discerned, in the VCAT Act, the RTA, or the Charter.

Accordingly, the learned judge was right to hold that VCAT “does not possess a judicial review jurisdiction” in its original jurisdiction.

  1. [110]
    Her Honour then continued posing this question for consideration:[61]

In the absence of a court order authoritatively declaring a purported administrative decision to be invalid, can VCAT itself inquire into the validity of the decision?

  1. [111]
    In addressing that question, her Honour proceeded by undertaking an analysis of the issue in terms of whether the Tribunal was seized of jurisdiction to undertake a collateral review to determine the issue of unlawfulness, observing:[62]

VCAT’s lack of judicial review jurisdiction is not necessarily fatal to its ability to undertake this inquiry. An inferior court with no judicial review jurisdiction may still be able to entertain a collateral challenge to the validity of an administrative decision.

  1. [112]
    That analysis highlighted the uncertainty in the state of the law, with her Honour then expressing these observations with reference to relevant High Court authorities from 1997 and 1999 that concerned collateral challenges in a Court, and ultimately the 2002 decision of Minister for Immigration v Bhardwaj[63] which concerned an administrative tribunal rather than a court:[64]

Unlike Ousley and Breckler, Bhardwaj is a case that touched on the issue of collateral review by an administrative tribunal rather than a court. In Bhardwaj, the majority of the High Court held that the Immigration Review Tribunal was permitted to disregard its own purported decision vitiated by jurisdictional error and to remake the decision afresh. The tribunal could do so even in the absence of any order by a court of competent jurisdiction quashing the original purported decision or declaring it to be invalid. In coming to this conclusion, the majority of the High Court must have accepted that the tribunal could inquire into, and decide for itself, whether its original purported decision was a nullity. That is to say, the majority must have accepted that the tribunal could, in effect, carry out a collateral review of its own decision.

But Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal’s ability, if any, to conduct such inquires remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach “some relevant legal consequence” to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.

Accordingly, to determine whether VCAT can carry out collateral review, it is necessary to interpret the relevant provisions of the RTA, the VCAT Act and the Charter.

  1. [113]
    Proceeding with that necessary interpretation, Warren CJ expressed these views, in part addressing submissions before the Court as to why certain provisions of the legislation give rise to the requisite jurisdiction:[65]
  1. 35.
    In order to entertain a collateral attack on the validity of an administrative decision while dealing with an application under the RTA, VCAT would have to, in effect, conduct a trial within a trial. VCAT would need to leave the subject of tenancy law and enter the domain of administrative law. It would have to make difficult decisions about whether the challenge falls within the limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional. Such a complex, technical and time-consuming inquiry would destroy the advantages of litigating the tenancy dispute in VCAT rather than in a court.
  1. 36.
    The possibility of this detour into administrative law would be all the more anomalous given that VCAT does not possess general civil jurisdiction but only has original jurisdiction in respect of specific kinds of disputes and claims. …

…

  1. 39.
    In my view, these matters are a necessary consequence of setting up a specialist forum of limited jurisdiction. If the jurisdiction of a court or tribunal is limited, a dispute between the parties to a proceeding in that court or tribunal may raise issues that fall outside of its limited jurisdiction. This may lead to fragmentation of proceedings. In some circumstances, it may also require the court or tribunal to make an assessment of the strength of a party’s case in another forum. These difficulties are the flipside of the policy benefits derived from limiting VCAT’s jurisdiction — the quick, efficient, inexpensive and informal resolution of issues arising under the RTA that do fall within VCAT’s jurisdiction.

…

  1. 43.
    For the reasons I have given, I am satisfied that the RTA and the VCAT Act evince an intention to deny VCAT power to collaterally review the validity of a purported administrative decision that happens to be material to the tenancy dispute before VCAT. Or, to put it differently, the two Acts evince an intention that, in dealing with applications under the RTA, VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.

…

  1. 45.
    The interpretive requirement of s 32 of the Charter does not alter my conclusions about the construction of the VCAT Act and the RTA. Even if an interpretation of the VCAT Act and the RTA that permitted collateral challenge on Charter grounds would be more “compatible with human rights”, that interpretation would be inconsistent with the purposes of the Acts.
  1. [114]
    Her Honour then concluded her reasoning returning to the operative provisions of the Charter, namely s 38(1) and s 39(1), as noted earlier herein being the Victorian equivalent to s 58(1) and s 59(1) of the HR Act, expressing this opinion:[66]

For reasons already outlined, VCAT did not, apart from the Charter, have power to review the validity of the director’s decisions on the ground of unlawfulness. Accordingly, s 39(1) does not operate to confer jurisdiction on VCAT to grant relief on “a ground of unlawfulness arising because of this Charter”.

  1. [115]
    Applying that same reasoning to the circumstances before me, in my opinion there is simply no jurisdiction afforded this Tribunal to consider and reach a conclusion that the decision under attack via a review proceeding is unlawful, that being the requisite ‘independent ground of unlawfulness’, once again adopting the terminology of Ryan J from Innes, which must first be found. To the extent the applicant argues that the jurisdiction arises because of the piggy-back provisions of the HR Act, in my opinion he is in error.
  2. [116]
    That being so, in the absence of any finding that the decision in issue, whether it be the March 21 Decision, and/or if applicable the July 2020 Decision, or even the Reconsideration Decision, is unlawful, the piggy-back provisions have not been enlivened and the applicant’s argument is without substance such that his application to this Tribunal for declarations cannot succeed.
  3. [117]
    However, even if I am wrong about that and there is some basis upon which this Tribunal is seized of jurisdiction to reach a determination on whether the decision in issue was unlawful, I offer these observations.
  4. [118]
    As to when the requisite issue of unlawfulness can be identified, the following judicial observations have been made:
    1. It will be satisfied in the case of an act or decision which is amenable to judicial review;[67] and
    2. It will be satisfied by any act that is:[68]

… an act or decision that is prohibited or proscribed by, or contrary to, a statutory provision or the common law or that is inconsistent with a norm or standard prescribed in such a provision or law.

  1. [119]
    Here, notwithstanding the applicant’s submissions as to the asserted ‘failures’ by the respondent in considering his application and then ultimately making the March 21 Decision, on my reading of the material before me, in particular the ‘respondent’s section 21 documents’ which is in effect that which was before the decision-maker,[69] I am unable to identify that which would satisfy either of these bases for saying the decision was unlawful. As to the issue of whether the decision would be amenable to judicial review, whilst it is not within the jurisdiction of this Tribunal to enter into the fray of judicial review, I am simply unable to accept on the material that is before me from the applicant, that any of the grounds under s 20 to 24 of the Judicial Review Act 1991 (Qld) could be made out. Nor has the applicant demonstrated that there was conduct by the decision-maker that was prohibited or proscribed by, or contrary to, the DS Act or the common law or that is inconsistent with a norm or standard prescribed in the DS Act.
  2. [120]
    For this reason alone, in my opinion the applicant cannot succeed in his application to this Tribunal for declarations to be made under s 59 of the HR Act.
  3. [121]
    There is however one other challenge the applicant faced in pressing this argument and for the declaratory relief he sought. For the reasons I have already given earlier herein when discussing this Tribunal’s jurisdiction given the fact of the Reconsideration Decision, the Original Decision is no longer the reviewable decision, and accordingly the issue is whether this is relevant to the application of s 59 of the HR Act would apply.
  4. [122]
    As I understood the applicant’s argument pressed in his Counsel’s written closing submissions, the argument was that such is not the case because:[70]
    1. Subject to one qualification, his entitlement to press for relief under s 59 of the HR Act is independent of the conduct of his Original Application being effectively stopped by the Reconsideration Decision unless he pressed further to seek review of that decision;
    2. That qualification being he has an independent entitlement to seek relief relative to an act or decision which he ‘may’ press, not that he must have pressed.
  5. [123]
    Such an argument was pressed in response to the submission made by the respondent’s Counsel as follows:[71]

The respondent cannot obtain a declaration in this proceeding that the respondent failed to comply with its human rights obligations under s 58(1) of the HR Act. The reason is that a party to a proceeding may only seek relief for breach of s 58(1) of the HR Act if they have available an independent ground of unlawfulness on which to seek that relief.

The independent ground of unlawfulness must relate to the same act or decision challenged on human rights grounds. If the party is successful on its human rights grounds, it may obtain the relief which would have been available if the independent ground had been established. That is the effect of the ‘piggyback’ clause in s 59 of the HR Act.

  1. [124]
    That submission was made referring to the decision of Ryan J in Innes v Electoral Commission of Queensland [No 2][72] and Williams J in SQH v Scott [73]. I have extracted the relevant passage from Ryan J’s reasons earlier herein and need not repeat that here. As Williams J expressed it in the passage cited by the respondent:

Generally, s 59 of the HR Act contains a mechanism that allows human rights claims to be brought in conjunction with other proceedings brought on a ground of unlawfulness: that is, a claim for unlawfulness arising on a human rights basis is “piggybacked’ on to the proceedings claiming unlawfulness on another basis.

  1. [125]
    Whilst neither Ryan J nor Williams J state that it must be the ‘same’ act or decision, in my opinion that is the effect of their Honours’ respective reasoning. The claim for unlawfulness on another basis must be in terms of the relevant decision or act for which the alleged failure to have considered relevant human rights exists. The two actions are not independent. In my opinion, it cannot be the correct construction of s 59 of the HR Act that the use of the word  ‘may’ means that it is nothing more than a discretionary factor such that s 59 can be engaged even if relief or remedy in terms of a particular act or decision is not pressed, but that an applicant can ‘piggy back’ an action under s 59 of the HR Act on to any action for relief or remedy in relation to some other act or decision.
  2. [126]
    On my reading of the submissions before me the respondent is correct. It must be the ‘same act or decision’ for which the relief or remedy is being sought outside of the HR Act before the action under the HR Act is piggy backed. Accordingly I do not accept the applicant’s argument in this regard as being correct.
  3. [127]
    For this reason also, the applicant cannot succeed.
  4. [128]
    Accordingly, for all of these reasons, the proper order in terms of this aspect of the Interlocutory Applications was that it be dismissed. There was an order to that effect.

Application for recommendations to the Chief Executive of the Respondent

  1. [129]
    Despite it not being relief sought in his Original Application, in his 11 October Application the applicant requested this Tribunal to make written recommendation to the respondent under s 24(3) and (4) of the QCAT Act. The extent of the recommendations sought was extensive traversing four pages in relatively small-pitched typeface. By the time it came to providing Draft Orders to me, this has expanded to five pages.
  2. [130]
    The applicant’s Counsel made this oral submission in endeavouring to sum up his client’s case for the recommendations:[74]

They’re all set out very clearly. We have paid very close attention, the applicant and legal advisers, to what the Act says. There was a suggestion before saying that it requires legislative change. It does not. That has been contemplated. All that’s being submitted, with the understanding that the tribunal doesn’t control the respondent, it’s a mere recommendation, so in some ways it’s not - there’s no onus on the respondent to take up the recommendation. It might - I mean, my client can go and meet with the minister and have a conversation about certain different things, as can any member of the public, to help improve the system. But another mechanism provided for in the QCAT Act is the tribunal can make a recommendation.

Now, there’s no suggestion that - I mean, I agree a recommendation about - well, it doesn’t say you can’t make recommendations about legislative change, but there might be some questions as to the utility of that. But we’re not even suggesting that. Clearly in the application and the reasons of 10 October of the applicant all of the recommendations in that long elaborate paragraph are about training for the department, are about policy change on risk assessment.

Now, again, you know, I guess it just comes down to common-sense principles that if, in the context of what has occurred in this case, the tribunal thought there might be utility in making some recommendations for the respondent to think about - and, again, there’s no sense of there’s a mandatory onus of implementation - well, I mean, that’s a matter for the tribunal. But the applicant certainly does. And the applicant works for a leading disability services advocacy organisation nationally that is well respected, has a wealth of experience in this area, and they have been consulted on these recommendations as well, and that’s part of the reason some of those extra statements of [C] and [S] went in yesterday as well. So I think that’s all I need to say on those recommendations, because they do speak for themselves.

  1. [131]
    The respondent’s Counsel made extensive oral submissions in the hearing.[75] In my opinion I need to repeat any of them here as they were adequately summed up in this written submission from the respondent:[76]

As was submitted at the hearing, the Respondent submits that the recommendations sought by the Applicant in relation to a new risk assessment process would require legislative change and, in any event, there does not appear to be some systemic issue with the existing process. The payment of medical reports is provided for in the legislation, however, the Applicant did not fall into the relevant category and so this recommendation would also require legislative change. Also, a complete review of the processes under the DS Act is a matter for the Government to decide and a recommendation to the Respondent would have no utility. Moreover, there is no evidence that Respondent’s workers are not properly trained or qualified or that there are systemic issues that would warrant a recommendation being made.

On that basis, the recommendations ought not to be made. The above submissions apply equally to the comments made in the further statements of [C] and [S].

  1. [132]
    The applicant responded to these submission in his Counsel’s reply submissions asserting the respondent’s argument to be misconceived elaborating on why he says this is so.[77]
  2. [133]
    There is only one aspect of this elaboration which in my opinion I should note here because to some degree it is indicative of the approach the applicant has seemingly taken to place a focus and burden on the respondent to establish that recommendations are not required. In response to the respondent’s submissions that there does not appear to be some systemic issue with the existing process, and that there is no evidence that the Respondent’s workers are not properly trained, or that there are systemic issues to warrant a recommendation being made, the applicant submitted:[78]

[W]ith respect there is no evidence to properly found such submission and it should be entirely disregarded.

To the contrary, the Respondent failed to put on any evidence that the Impugned Decision maker, Ms Curtis, was adequately trained to carry out a risk assessment, despite having had every opportunity to do so, and, in that regard, where the Respondent was on notice of such proposition, the Applicant submits it is open for the Tribunal to draw and (sic) adverse inference that no such evidence exists pursuant to the rule in Jones v Dunkel.

  1. [134]
    In reply thereto the respondent made this submission:[79]

…, the submissions made are contrary to the fact that the Applicant has raised these as issues to support his Application for Review of a Decision and he bears the onus of providing evidence and establishing these facts to support his submission. The Respondent was not required to prove either of these facts and no adverse inference should be drawn from not proving or disproving these facts.

Consideration of the Issue

  1. [135]
    It may readily be accepted that this Tribunal has a discretionary power, as part of its review jurisdiction, to make written recommendations to the chief executive of the entity in which the reviewable decision was made about the policies, practices and procedures applying to reviewable decisions ‘of the same kind’. That is as expressly provided for in s 24(3) of the QCAT Act. But it does not follow that such a power should be readily exercised in a review when an applicant complains about the process engaged in by the decision-maker in reaching the decision that is then under review in this Tribunal.
  2. [136]
    In my opinion, an applicant who requests the Tribunal to exercise its discretion and make written recommendations must show a very good case as to why such is necessary. Moreover, an applicant must show that it is required in terms of the ‘reviewable decision’. In my opinion the applicant has not done that here. What the applicant seemingly seeks is recommendations concerning the policies, practices, and procedures applying to the same kind of decisions as the March 21 Decision and it would seem possibly also to the extent of the July 2020 Decision. Two things must be said about that.
  3. [137]
    Firstly,  as I noted it in paragraph [13](b)(iii) herein, under s 385(10) of the DS Act the March 21 Decision is to be considered as if it were an ‘internal review decision’, however unlike an internal review decision arising under the Part 5 Division 9 of the DS Act, more particular s138ZV of the Act, because of the transitional nature of the decision in issue, the effective internal review of the original decision, which was the July 2020 Decision, was to be conducted ‘afresh’ disregarding the July 2020 Decision, something which would not ordinarily be done under a Part 5 Division 9 Internal Review. What this means is that the March 21 Decision is somewhat of a unique kind of decision.
  4. [138]
    Secondly, and critically here, as I have already discussed earlier in these reasons, once the Reconsideration Decision was made it became the reviewable decision for the purposes of this proceeding and accordingly the ambit of s 24(3) of the QCAT Act was limited to decisions of that kind, such being one which was in effect a further review but not one which fell within the ambit of any review process under the DS Act.
  5. [139]
    Accordingly, it was entirely unclear on the applicant’s material and his submissions as to which kind of decision he was seeking recommendations be made about, and it was not for this Tribunal to guess. Thus, the applicant’s case lacked the requisite degree of clarity to enable me to consider whether it was necessary to exercise the discretion afforded this Tribunal under s 24(3) of the QCAT Act, and for that reason his application for recommendations to be given must fail.
  6. [140]
    However, even if I am wrong about that, there is another aspect to this issue which cannot be overlooked.
  7. [141]
    In order for this Tribunal to consider the need for any such recommendations, whilst not descending into judicial review and a determination of errors having been made in the decision-making process, it would require a detailed consideration as part of the merits review of what occurred during the course of the decision-making process engaged in by the decision-maker in comparison to the decision making process engaged in under review in this Tribunal before anything could be identified to which it might be said that there was the need for improvement or change. That is, it would require the entire merits review process to have been undertaken. But this is not what the applicant ultimately pressed for when he, for all intent and purpose, accepted the Reconsideration Decision as being a decision favourable to him. He did not press for a review of that decision and to have it dealt with by this Tribunal in its review jurisdiction. Rather he continued only to press for what may readily be described as the ancillary relief he sought arising out of his Interlocutory Applications which were directed towards, at the very least the March 21 Decision, and possibly even the July 2020 Decision, neither of them ultimately the subject of review in this proceeding.
  8. [142]
    For this reason also, in my opinion there is no basis for me to exercise the discretion and embark on the making of recommendations. As I see it, my jurisdiction under s24(3) has not been engaged in the absence of the Reconsideration Decision being pressed as the reviewable decision.
  9. [143]
    Further, even if I am also wrong about that, I do not accept the applicant’s limited arguments as to there being the need for recommendations to be given. As I have read the material before me and listened to the arguments made in the hearing and then read and considered the closing submissions, in my opinion the process has worked as it is designed to work. Whilst it is correct to say that it was a long drawn out process for the applicant to ultimately obtain the desired clearance, he was afforded the relevant and requisite opportunities, which he took up, to provide submissions during that process, and so was afforded the requisite degree of procedural fairness, and then he had the opportunity to take up his case in this Tribunal, which again he did, all of which ultimately led to achieving the desired outcome.
  10. [144]
    For all of these reasons I dismiss the applicant’s application for recommendations. There was an order made to that effect.

Applicant’s application for costs

  1. [145]
    The applicant had also sought his costs of this proceeding.
  2. [146]
    It was common ground in the hearing that this issue should only be addressed and determined after the substantive issues in the proceeding have been decided, with the suggestion being made that written submissions on costs could follow with an opportunity for an oral hearing if required by either party otherwise to be determined on the papers.
  3. [147]
    Whilst I foreshadowed, when wrapping up the hearing, that I might give some indication in these reasons as to my thoughts on costs, on reflection I decided it was not appropriate to give any such indication here. Accordingly, the appropriate way forward was that I reserved costs and gave orders for the provision of written submissions and associated orders to deal with costs after the parties have had the opportunity to consider my decision and reasons for it on the substantive issues. Orders were be made to that effect.

Remaining Sundry Issues

  1. [148]
    Whilst all of which I have said in the preceding paragraphs effectively disposes of the entirety of the proceeding save only for the issue of costs, there remained some sundry issues arising from the several Applications for Miscellaneous Matters filed by the applicant which for completeness and certainty I thought I should deal with to ensure that nothing was left unattended to.
  2. [149]
    Firstly, whilst the applicant informed this Tribunal that he sought to withdraw the 30 September Application, on my review of the Tribunal’s file such a withdrawal has not been formalised and it should not be overlooked that Directions had been issued by this Tribunal in terms of that application. Accordingly, for the sake of completeness I made an order formally dismissing this application.
  3. [150]
    Secondly, the 4 August Application contained a commonly seen ‘catch all’ relief that the Tribunal makes any further orders it deems fit. I did not consider it necessary to make any other orders, the entirety of the matters before this Tribunal being addressed and resolved by the orders I have given. For this reason I made an order formally dismissing that part of the application.
  4. [151]
    Lastly, the 11 October Application sought directions from this Tribunal as to when the matters the subject of the 4 August Application be heard. The need for those directions became redundant given the manner in which the proceeding unfolded. Thus, once again I made an order formally dismissing those parts of the application.

Conclusion

  1. [152]
    The applicant embarked upon this proceeding seeking a clearance under the DS Act such that he would be lawfully entitled to work with disabled persons. Ultimately that is what he achieved. However, as I referred to it at the start of these reasons, it seemed to me that there was an underlying current to his application that had the effect of overtaking the proceeding beyond that which it started out to achieve.
  2. [153]
    In my opinion, whilst the applicant should be commended for standing up and expressing a desire to ensure that the human rights to which we are all afforded, now enshrined in the Human Rights Act 2019 (Qld), are respected, the convoluted, confused, and confusing manner in which this issue has been raised in this proceeding did not assist him in that task. In my opinion conducting such an argument in a merits review of a decision which this Tribunal has jurisdiction to conduct and determine was misplaced. The outcome of this proceeding reflected that.

Footnotes

[1] That version was the one current 1 July 2019 to 24 May 2020.

[2] Ex 1 pg 6.

[3] Then known as the Department of Communities, Disability Services and Seniors.

[4] Ex 1 pg 67.

[5] GAR 311-20.

[6] This was pursuant to the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld).

[7] In particular see s 382(4) and s 385(2)(a) and (b)(i), and (4) to (10).

[8] In particular see s 385(2)(b)(i).

[9] Decision of Member Kent in GAR 311-20. A copy of this Decision appears in Ex 1 at pg 109.

[10] See s 95(2) of the amended DS Act. See also Ex 1 pg’s 114 to 136.

[11] See various Directions from 10 May 2021 to 28 July 2022.

[12] In the hearing before me, this application was marked for identification as ‘A’. In this Reasons document I refer to it in Footnotes as ‘MFI A’.

[13] I pause here to note the confusing nature of this Application for Miscellaneous Matters in that the respondent did not make a decision on 2 February 2021 relevant to this proceeding.

[14] E-mail from Langtree Legal to QCAT (cc Crown Law) dated 4 October 2022 at 1:28 pm. Emphasis is as it appears in the original.

[15] Ex 22.

[16] E-mail from Langtree Legal to QCAT (cc Crown Law) dated 10 October 2022 at 4:00 pm.

[17] In the hearing before me it was common ground that these submissions were no longer relevant, and for that reason I did not have regard to them. T1-31 Line 39 to T1-32 Line 12. [T1-36 Line 19 to 46].

[18] In the hearing before me, this application was marked for identification as ‘B’. In this Reasons document I refer to it in Footnotes as ‘MFI B’.

[19] As I understood this aspect of the third Application for Miscellaneous Matters, the applicant acknowledged the Reconsideration Decision but continued to press for relief that a clearance still be issued, such forming part of the relief sought as it was expressed in the Original Application.

[20] Ex 23.

[21] Given the extent to which the 11 October Application effectively repeated the 4 August Application, in these reasons unless reference to either of them specifically is necessary, I will simply refer to them together as the Interlocutory Applications in contrast to the Original Application.

[22] T 1-2 Line 49 to T1-9 Line 31. [T1-3 Line 3 to T1-10 Line 23]

[23] Notwithstanding what I discuss later in these reasons concerning this Tribunal’s jurisdiction to consider further the Original Application once the Reconsideration Decision was issued, in my opinion it is proper and appropriate to still deal with the application for a non-publication order as it arose prior to the Reconsideration Decision being given and is one that could have been, and arguably should have been, dealt with by way of an interlocutory decision before the proceeding advanced to dealing with the subject matter of the Respondent’s Application.

[24] For example see the Short Version at T1-9 lines 31 to 33 cf the Long Version at T1-10 Line 23.

[25] Ex 1.

[26] Ex 2.

[27] Ex’s 3 to 19. See also T1-15 Line 8, [T1-22 Line 41]. T1-35 Line 45. [T1-41 Line 9].

[28] Ex’s 20 and 21.

[29] Ex’s 22 and 23.

[30] T1-91 Lines 15 to 17. [T1-104 Lines 6 to 15].

[31] T 1-96 Line 1. [T1-109 Lines 4 to 8].

[32] Queensland College of Teachers v Mills [2015] QCAT 476,[16].

[33] Ultimately, I was not required to make a decision that fell under the DS Act, nor for that matter any decision in terms of the applicant’s entitlements under an enactment save only for decision of a procedural nature in terms of the proceeding in this Tribunal. Accordingly, no occasion arose for me to consider the provisions of the HR Act relevant to whether the applicant’s human rights may be limited by the decisions I was required to make.

[34] Consider LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373,[10], and DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33;[31],[32] in terms of a similar regime dealing with working with children’s clearances under the Working with Children (Risk Management and Screening Act) 2000 (Qld), generally known as ‘Blue Cards’.

[35] I pause here to observed that the Reconsideration Decision did not exist at the time of the 4 August Application, and the net effect of the 11 October Application was to simply repeat and advance the 4 August Application in the absence of any reference therein to the Reconsideration Decision.

[36] See T1-4 Line 16. [T 1-4 Line 17].

[37] T1-58 Lines 36 to 43. [T1-67 Lines 20 to 27].

[38] ACS para’s 15 and 16. Footnotes omitted.

[39] Blue Cards are now known as working with children clearances under the Working with Children (Risk Management and Screening) Act 2000 (Qld) which provides for a protective regime similar in operation to that of the clearance system under the DS Act.

[40] Compare inter-alia s 38(5), s 42(3), s 47(3), s 48(4), s 49(6), s 58(2), s 61(4)

[41] T1-3 Line 2 to 9. [T1-4 Line 5 to 12].

[42] T1-4 Line 8 to 10.[T1-4 Line 11 to 13].

[43] T1-6 Line 45. [T1-7 Line 21].

[44] T1-36 Lines 19 to T1-40 Line49. [T1-41 Line 33 to T1-46 Line 37].

[45] T1-102 Line 43 to T1-103 Line 47. [T1-116 Line 25 to T1-117 Line 35].

[46] RCS para 18.

[47] ACS para 12.

[48] Innes v Electoral Commission of Queensland (No 2) (2020) 5 QR 623,679; [2020] QSC 293,[269].

[49] ACS para 17

[50] T1-51 Line 1 to T1-52 Line 32. [T1-58 Line 28 to T1-60 Line 19].

[51] ACS para 15.

[52] The submissions of 3 February 2022 became Exhibit 20 in this proceeding.

[53] Ex 20 para 65.

[54] Ex 20 para’s 66 to 116.

[55] Supra.

[56] RCS para 15.

[57] Director of Housing v Sudi (2011) 33 VR 559.

[58] In this regard it must not be overlooked that whilst these are equivalent provisions, there are contextual differences between them and as such some judicial reasoning on interpretation of the Victorian provisions may not apply directly to the Queensland provisions, and so should be approached with caution, however it is legitimate and instructive to have regard to the text of the Victorian Charter, and relevant jurisprudence about it, paying due regard to any differences in the text of the two Acts. (See Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33,[21] and [61] – See also Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273,[134] to [141] and the manner in which Martin J considered Victorian caselaw.) But in my opinion those contextual differences do not arise in the circumstances of this issue now under discussion, namely the extent of this Tribunal’s jurisdiction to determine whether the decision in issue was ‘unlawful’.

[59] Director of Housing v Sudi (2011) 33 VR 559, 563 and 564, [15] to [21].

[60] Ibid,564,[19] to [21].

[61] Ibid,565,[23].

[62] Ibid,565,[24]

[63] Minister for Immigration v Bhardwaj (2002) 209 CLR 597.

[64] Director of Housing v Sudi (2011) 33 VR 559,556 and 567,[30] to [32]. Footnotes omitted.

[65] Ibid,567 to 569, paragraphs as noted. Footnotes omitted. Emphasis added.

[66] Ibid,569,[48].

[67] SQH v Scott [2022] QSC 16,[90]. See also Director of Housing v Sudi (2011) 33 VR 559,580;[2011] VSCA 266,[97] in reference to the equivalent provision in Victoria.

[68] Goode v Common Equity Housing [2014] VSC 585,[26].

[69] Ex 1.

[70] ACS para’s 18 and 19.

[71] RCS para 14. Emphasis in italics is in the original. Footnotes omitted.

[72] Innes v Electoral Commission of Queensland [No 2] (2020) 5 QR 623, 679, [269].

[73] SQH v Scott [2022] QSC 16, [83].

[74] T1-90 Line 32 to T1-91 Line 11. [T103- Line 20 to T104- Line 2].

[75] T1-93 Line 38 to T1-95 Line 46.[T1-106 Line 45 to T1-108 Line 47].

[76] RCS para’s 40 and 41.

[77] ASS para’s 42 to 44.

[78] ACS para’s 42 (b) and (e). Footnote omitted.

[79] RRS para

Close

Editorial Notes

  • Published Case Name:

    JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships

  • Shortened Case Name:

    JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships

  • MNC:

    [2023] QCAT 316

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    18 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Director of Housing v Sudi (2011) 33 VR 559
5 citations
Jump To
Cite 1 - (2011) 33 VR 559
Cite 2 - (2011) 33 VR 559
Cite 3 - (2011) 33 VR 559
Cite 4 - (2011) 33 VR 559
Cite 5 - (2011) 33 VR 559
Director of Housing v Sudi [2011] VSCA 266
1 citation
Jump To
Cite 1 - [2011] VSCA 266
DVL v Director General, Department of Justice and Attorney General [2022] QCAT 33
2 citations
Jump To
Cite 1 - [2022] QCAT 33
Cite 2 - [2022] QCAT 33
Goode v Common Equity Housing [2014] VSC 585
2 citations
Jump To
Cite 1 - [2014] VSC 585
Cite 2 - [2014] VSC 585
Health Ombudsman v Balfour [2021] QCAT 51
2 citations
Jump To
Cite 1 - [2021] QCAT 51
Cite 2 - [2021] QCAT 51
Innes v Electoral Commission of Queensland (No 2)(2020) 5 QR 623; [2020] QSC 293
4 citations
Jump To
Cite 1 - [2020] QSC 293
Cite 2 - (2020) 5 QR 623
Cite 3 - (2020) 5 QR 623
Cite 4 - (2020) 5 QR 623
LD v Commissioner for Children and Young People and Child Guardian [2012] QCAT 373
2 citations
Jump To
Cite 1 - [2012] QCAT 373
Cite 2 - [2012] QCAT 373
LM v Director-General, Department of Justice and Attorney-General [2022] QCAT 333
2 citations
Jump To
Cite 1 - [2022] QCAT 333
Cite 2 - [2022] QCAT 333
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
2 citations
Jump To
Cite 1 - (2002) 209 CLR 597
Cite 2 - (2002) 209 CLR 597
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - [2021] QSC 273
Queensland College of Teachers v Mills [2015] QCAT 476
3 citations
Jump To
Cite 1 - [2015] QCAT 476
Cite 2 - [2015] QCAT 476
Cite 3 - [2015] QCAT 476
SQH v Scott(2022) 10 QR 215; [2022] QSC 16
3 citations
Jump To
Cite 1 - [2022] QSC 16
Cite 2 - [2022] QSC 16
Cite 3 - [2022] QSC 16
Waratah Coal Pty Ltd v Youth Verdict Ltd [2020] QLC 33
2 citations
Jump To
Cite 1 - [2020] QLC 33
Cite 2 - [2020] QLC 33

Cases Citing

Case NameFull CitationFrequency
Horsfall v Queensland Building and Construction Commission & S Watson Pty Ltd t/as Eclipse Patios and Extensions [2023] QCAT 3462 citations
HRE v Chief Executive, Department of Child Safety, Seniors and Disability Services [2024] QCAT 2212 citations
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 2922 citations
1

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