Court finds no unlawful interference with accused's rights to privacy and reputation in Department's investigation into historical child sexual abuse

BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266

Summary

On 30 November 2023, the Supreme Court of Queensland held that the plaintiff, BZN, had not established that the final review outcome decision which upheld the findings of an investigation in relation to his alleged sexual assault of a child, was:

• legally invalid; or

• unlawful under section 59 of the Human Rights Act 2019 (Qld) ('HRA').

The judgment provides insight into the application of the HRA to public authorities and what is sufficient to discharge their obligation to make decisions in a way which gives proper consideration to human rights.

Facts  

BZN is a social worker who has worked in roles with young people, including those under the care and protection of the Chief Executive of the Department of Children, Youth Justice and Multicultural Affairs (the 'Chief Executive'). Information was provided to the Chief Executive that BZN had sexually assaulted a child while he was employed as a residential care worker at an accommodation facility for young people in care. This information prompted the Chief Executive to investigate the matter as an alleged harm or risk of harm to a child under section 14(1) of the Child Protection Act 1999 (Qld) ('CPA'). The investigation found that the alleged harm had been substantiated.  

Three internal reviews were undertaken on request by BZN, each of which confirmed the original decision. The third and final review conducted by a delegate of the Chief Executive, Ms Kylie Stevens, was set out in written report titled Review of Standard of Care Outcome Decision, dated 8 July 2022 ('Final Decision'). 

BZN sought judicial review of the Final Decision on the basis that it was a decision reviewable under the Judicial Review Act 1991 (Qld) ('JRA'), claiming that the decision was invalid, or alternatively, unlawful under section 58 of the HRA insofar as: 

• it was not compatible with BZN's human rights; and/or  

• Ms Stevens failed to give proper consideration to his right to privacy and reputation. 

Key Findings

1. The Final Decision was a reviewable decision under section 20(1) of the JRA 

A preliminary issue was whether the Final Decision was a 'decision' under the JRA that could be subject to judicial review. While the term 'decision' is not defined in the legislation, section 4(a) of the JRA provides that the Act applies to a 'decision of administrative character… made under an enactment'. Crowley J relied on Griffith University v Tang (2005) 221 CLR 99, in which the plurality found that the statutory language of 'made under an enactment' requires:  

• the decision to be expressly or impliedly required or authorised by the enactment; and  

• the decision must itself confer, alter or otherwise affect legal rights or obligations. 

Having regard to the text, purpose and context of section 14(1)(a) of the CPA, Crowley J found that the Final Decision is a decision that satisfies the first limb of the Tang test.  

In respect of the second limb, while his Honour acknowledged that the Final Decision is a decision that impacts on BZN's interests, it does not confer, alter or otherwise affect his legal rights or obligations. BZN's submissions on this issue included arguments that the Final Decision affects his human rights under the HRA, and that human rights under the HRA are legal rights for the purpose of the second limb of the test in Tang.  Crowley J dismissed these arguments, finding that the HRA does not itself create legal rights that have free-standing operation (that is, which may be independently vindicated or enforced). Instead, it identifies certain human rights that are to be protected and promoted by public entities. 

Nevertheless, the Final Decision was still held to be a reviewable decision under Part 3 of the JRA as it was a decision from which a clear legal obligation arises upon the Chief Executive – that is, an obligation to assess the child's protective needs if a risk of harm is substantiated.  

2. The final review decision was not legally invalid  

Crowley J made a number of findings when assessing whether the decision was invalid:   

• Under section 14(1) of the CPA, the requirement that the Chief Executive reasonably suspects that a child is in need of protection before harm can be investigated is a subjective jurisdictional fact. The CPA provides that 'a child in need of protection' includes a child who has suffered significant historical harm. Accordingly, the Chief Executive satisfied the state of mind required by section 14(1) of the CPA (see paragraphs 102 to 103). 

• Crowley J acknowledged that despite an allegation of harm having serious consequences to the perpetrator, the 'allegation of harm must necessarily be considered in the context of the purposes of the CPA and the paramount principle stated in s 5A' regarding the safety, wellbeing and best interests of a child (at paragraph 109).  

• Contrary to BZN's submissions that he was denied a fair hearing and the decision was infected by a reasonable apprehension of bias, Crowley J found there was no substance to arguments that the Final Decision was in breach of the rules of natural justice. Crowley J disagreed with BZN's arguments that bias arose from the Child Sexual Abuse Practice Kit which stated, 'false allegations are very rare (approximately 2%)' (at paragraph 117) and that he was denied a fair hearing because he was not provided the opportunity to cross-examine the child at an oral hearing (at paragraph 126).    

• Crowley J considered that the material and information reviewed by Ms Stevens did not take into account irrelevant considerations or fail to consider relevant considerations. Her decision also did not 'lack an evident and intelligible justification' (at paragraph 199) to establish unreasonableness.  

3. The decision was not unlawful under section 58 of the HRA  

Section 58(1) of the HRA provides a public entity cannot: 

a) act or make decisions incompatible with human rights; or 

b) when making a decision, fail to give proper consideration to relevant human rights.  

As Ms Stevens was a public entity for the purpose of the HRA, Crowley J found that she must adhere to section 58 in reaching the Final Decision. BZN contended that Ms Stevens failed to give proper consideration to his right to privacy and his right to reputation. He further submitted at paragraph 227 that:  

Ms Stevens was required to seriously turn her mind to the possible impacts of the decision on his human rights and to identify countervailing interests or obligations and that it was insufficient to simply recite provisions of the HRA and then reach a decision. 

Crowley J held Ms Stevens had given proper consideration to human rights and the countervailing interest of the child's human rights in light of the purpose and nature of the review. His Honour accepted that BZN's human rights of privacy and reputation were engaged, but noted that the rights of privacy and reputation under section 25 of the HRA are not absolute. His Honour rejected that the interference with BZN's right of reputation was unlawful. The interference with BZN's right to privacy was found to be proportionate to the legitimate aim of the protection of children and their human rights.  

Accordingly, Crowley J held that BZN had not established any of his grounds of review, nor any basis for any of the relief sought. Accordingly, his application was dismissed. 

Commentary  

The decision by the Supreme Court of Queensland provides insight into the application of the HRA in two respects:  

• the HRA identifies human rights that are to be protected and considered by public entities when making decisions, but does not give those rights any free-standing operation; and  

• where there are conflicting human rights resulting from a decision, the rights of impacted parties affected need to be balanced and assessed to determine if interference with one party's rights is proportionate to the protection of another's, and therefore the limitation of an impacted party's rights is reasonable and justifiable in accordance with section 13 of the HRA.  

The full case can be read here.  

This summary was prepared by Heidi Ruckert (Lawyer) and Nick Horton (Associate) at Allens