Director-General, Department of Justice and Attorney-General v Map

In the case of Director-General, Department of Justice and Attorney-General v Map, the appellant challenged the decision of a Tribunal that set aside a decision to issue a negative notice under the Working With Children (Risk Management and Screening) Act 2000 (Qld) and found that there was no 'exceptional case'. The Tribunal had considered certain human rights under the Human Rights Act 2019 (Qld) that were irrelevant to the circumstances of the matter because the Act did not apply in the proceeding below. The appellant argued that this was an error in the exercise of discretion. The appellant also argued that the Tribunal had fettered its discretion by taking into account the loss of a blue card as being punishment for a minor crime, which was irrelevant to the circumstances of the case. The Tribunal's comments were no more than an observation in the context of remarks made about an offence and whether there is an offence that may have implications under the Act.

The court was required to decide whether the Tribunal below erred in applying the incorrect test under the Working With Children (Risk Management and Screening) Act 2000 (Qld) and whether the Tribunal below erred in failing to take into account the Human Rights Act 2019 (Qld). The court was also required to decide whether the Tribunal below erred in determining that no 'exceptional case' existed.

The court found that the Tribunal below erred in applying the incorrect test under the Working With Children (Risk Management and Screening) Act 2000 (Qld) and in failing to take into account the Human Rights Act 2019 (Qld). The court also found that the Tribunal below erred in determining that no 'exceptional case' existed. The Tribunal below drew conclusions about past risks in the context of human rights and being able to justify any limiting of an applicant’s human rights. The court found that the Tribunal below clearly had regard to certain human rights in making findings about risk relevant to whether an ‘exceptional case’ exists. However, the court found that the Tribunal below did so at the expense of the principles according to which the Act is to be administered. The court found that there was an error in the exercise of discretion by taking into account certain human rights under the Human Rights Act which were irrelevant to the circumstances of the matter because the Act did not apply in the proceeding below. The court also found that the Tribunal below fettered its discretion by taking into account the loss of a blue card as being punishment for a minor crime, which was irrelevant to the circumstances of the case. The court found that the Tribunal's comments in referring to ‘punishment for a minor crime’ was no more than an observation in the context of remarks made about an offence and whether there is an offence that may have implications under the Act.

The court allowed the appeal and set aside the Tribunal's decision of 15 May 2020 that there is no exceptional case in respect of MAP. The court remitted back the application to review the decision of the Director-General, Department of Justice and Attorney-General dated 19 March 2019 to refuse to cancel the negative notice issued to MAP to the Tribunal, differently constituted, for reconsideration. The court directed that the application is listed for a Directions Hearing before the Tribunal on a date and time to be advised by the Tribunal. Further directions will be made by the Tribunal at the Directions Hearing for the filing of any further material by either party to be relied upon at the hearing and to list the matter for an oral hearing on a date and time to be advised.