RDF v State of Queensland (Education Queensland)

[2018] QCAT 220

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RDF v State of Queensland (Education Queensland) [2018] QCAT 220

PARTIES:

RDF  
(applicant)

v

STATE OF QUEENSLAND (EDUCATION QUEENSLAND)

(respondent)

APPLICATION NO/S:

ADL023-18

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

9 July 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane  

DECISION OF:

Member Kanowski

ORDERS:

1.   The Application for an interim order filed on 10 May 2018 is dismissed.

2.   The Application for miscellaneous matters filed on 2 July 2018 is dismissed.

3.   Until 31 August 2018 publication of information that may identify the applicant, her family, or her school, is prohibited.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application for an interim order before referral of discrimination complaint – whether interim order can be made once referral made

Anti-Discrimination Act 1991 (Qld), s 144, s 174A

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

REPRESENTATION:

Applicant:

Father of RDF

Respondent:

P Tyquin, senior lawyer at Crown Law

APPEARANCES:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

Introduction

1. RDF is a four year old girl. RDF’s father has applied to QCAT on her behalf for an interim order to prevent the State of Queensland (Education Queensland) (‘State of Queensland’) removing her from a state school. The application is made under section 144(1) of the Anti-Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’), by means of an application for an interim order.

2. The background is that the then Acting Principal of the school accepted an enrolment application for RDF to attend the preparatory year in 2018. RDF started school at the beginning of 2018 and has now completed the first semester. However, in April 2018 the current Acting Principal notified RDF’s parents that the previous Acting Principal had made an error in accepting the enrolment application. This was because RDF was approximately three months below the minimum starting age set by the relevant regulation. The current Acting Principal proceeded to cancel RDF’s enrolment. He advised RDF’s parents that she must cease attendance on 4 May 2018, though this was subsequently put back a week.

3. On 10 May 2018 RDF’s father made a complaint of age discrimination on RDF’s behalf to the Anti-Discrimination Commission Queensland (‘Anti-Discrimination Commission’). On the same date, RDF’s father lodged the application for an interim order with QCAT on RDF’s behalf. This application is made under section 144(1) of the Anti-Discrimination Act which permits a complainant, at any time before their complaint is referred by the Anti-Discrimination Commission to QCAT, to apply to QCAT for an order prohibiting certain actions. RDF’s father sought an order preventing the State of Queensland from removing RDF from the school until the complaint to the Anti-Discrimination Commission was resolved.

4. On 11 May 2018 Senior Member Howard of QCAT made an initial interim order to the effect that until the application for an interim order was determined by QCAT, the State of Queensland was not to repeal RDF’s enrolment or remove her from the school. As this order was made on an urgent basis, submissions had not yet been invited from the State of Queensland.

5. On 11 May 2018 QCAT directed the parties to file evidence and submissions relating to the application for an interim order, and they have since done so.

6. On 15 June 2018 the parties’ representatives attended a conciliation conference at the Anti-Discrimination Commission. The matter was not resolved. On 2 July 2018 QCAT received a referral of the complaint from the Anti-Discrimination Commission. This referral will enable QCAT to hear and decide the complaint under Part 2 of Chapter 7 of the Anti-Discrimination Act.

   What effect does the referral have on the application for an interim order?

7. The functions of QCAT under the Anti-Discrimination Act are set out in section 174A of that Act. The only relevant function is the function ‘in relation to complaints … that are referred, or to be referred, to QCAT … to make orders under section 144 before the complaints are referred to the tribunal’.[1]

   [1]Anti-Discrimination Act 1991 (Qld), s 174A(a)(i).

8. It follows, in my view, that QCAT’s power to make an order prohibiting a person from doing an act under section 144(1) of the Anti-Discrimination Act ceases once a referral of the complaint is made to QCAT. This is not surprising when one considers that once QCAT has a complaint before it, it is then open to the complainant to apply for an interim order under section 58 of the QCAT Act or an interim injunction under section 59 of the QCAT Act. Under those provisions, for example, RDF’s father could apply on her behalf for orders preventing RDF’s removal from the school pending the determination of the complaint by QCAT.

   What order is appropriate in relation to the application for an interim order?

9. As QCAT no longer has power to make an order under section 144 of the Anti-Discrimination Act in RDF’s case, the appropriate order is to dismiss the application for an interim order that was filed on 10 May 2018.

10. It is important at this point to highlight that the order made by Senior Member Howard on 11 May 2018 (Order 3) preventing RDF’s removal from the school etc. now ceases to have effect. This is because the application for an interim order has now been determined by QCAT.

    Application for miscellaneous matters

11. On 2 July 2018 RDF’s father on her behalf lodged an application for miscellaneous matters. This application sought leave to file further evidence and submissions in support of the application for an interim order.

12. As I have decided that QCAT no longer has power to make an order section 144(1) of the Anti-Discrimination Act, nothing would be gained by granting this application. The appropriate order is to dismiss the application.

    Non-publication of identifying details

13. Under section 66 of the QCAT Act, QCAT may, in limited circumstances, make an order prohibiting the publication of information that may enable a party to be identified. Relevantly, such an order can be made if it is necessary ‘in the interests of justice’.[2] In their submissions, both parties have suggested that an order should be made to prevent identification of RDF and her family. However, neither party has filed an application for miscellaneous matters seeking such an order. While QCAT can act under section 66 on its own initiative, it is generally preferable for a party seeking such an order to file an application for miscellaneous matters so that they can specify exactly what orders they seek and why.

    [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66(2)(e).

14. In the circumstances I consider it appropriate to make a non-publication order that will operate for several weeks. If a party seeks a permanent non-publication order, they should promptly file an application for miscellaneous matters. (This would be separate from any similar application that a party might wish to make in respect of the complaint proceeding).

15. RDF is a young child caught up in this difficult situation. If her identity is publicised, she could become subject to hurtful speculation, rumour and teasing. Accordingly, I consider that it is in the interests of justice to prohibit publication of information that might identify her. Necessarily, this includes information that might identify her family. It also includes information that might identify the school because such information could easily lead to identification of the child herself if she is, in due course, removed from the school.

16. To protect her identity in the meantime, the child has been assigned the acronym RDF in these reasons.