Brew v State of Queensland (Office of the Public Guardian)

The case before the court is an appeal brought by Tracy Brew against the decision of Ms Smith, the respondent, who declined to appoint Ms Brew to the AO6 position. The dispute revolves around the interpretation and application of certain clauses within the relevant legislation and the decision-making process undertaken by Ms Smith. The appeal was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue before the court was whether the decision made by Ms Smith was fair and reasonable, specifically whether the ongoing review of the functions and powers under the Disability Services Act 2006, Guardianship and Administration Act 2000, and Public Guardian Act 2014 constituted a genuine operational requirement that precluded Ms Brew's appointment to the AO6 position. Ms Brew argued that the obligations under the Public Service Act 2008 (Qld) should take precedence over any operational requirements and that her employment should not be denied based on general uncertainties related to the role.

The court found that Ms Smith's decision was not fair and reasonable. The court held that the ongoing government review did not constitute a genuine operational requirement that precluded Ms Brew's appointment. The court considered that the default basis for employment in the public service is on tenure, and any general uncertainty with respect to the Principal Guardian role did not absolve the Office of the Public Guardian of its obligations under the Public Service Act 2008 (Qld). Consequently, the court allowed the appeal and set aside the decision of Ms Smith, substituting it with a decision to appoint Ms Brew to the AO6 Principal Guardian, Positive Behaviour Support position.