Dreyer v Queensland Building and Construction Commission [2023] QCAT 471

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dreyer v Queensland Building and Construction Commission [2023] QCAT 471 PARTIES: DEAN JASON DREYER (applicant) V QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: OCR016-21 MATTER TYPE: General administrative review matters DELIVERED ON: 7 December 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The application for miscellaneous matters filed on 5 October 2023 is dismissed. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – GENERALLY – OTHER MATTERS – where applicant seeks non-publication order – whether grounds for non-publication order made out Human Rights Act 2019 (Qld), s 13, s 25, s 31, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 66, s 90, s 125 Dreyer v Queensland Building and Construction Commission [2022] QCAT 276 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 4 -- 2 REASONS FOR DECISION On 19 July 2022, I confirmed a decision by the Queensland Building and Construction Commission (‘the QBCC’) to refuse Mr Dreyer’s application for a building licence: see Dreyer v Queensland Building and Construction Commission [2022] QCAT 276. On 5 October 2023, Mr Dreyer lodged an application for miscellaneous matters, seeking that a non-publication order be made. The reasons Mr Dreyer sought a non- publication order were as follows: I am sure you can appreciate that my rights to privacy including my honour, reputation and as such my private affairs take precedence over the right to freedom of information and expression through the internet. ‘Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents challenges. It is clear however that measures to protect these rights which limit freedom of expression and information must comply with the requirements set out in article 19(3) of the ICCPR’. Without getting into specifics regarding the reasons and unsubstantiated mere opinions of members included within decisions and orders handed down, and without getting into specifics regarding International Covenants and subsequent Domestic laws protecting my Human Rights, it is with all due respect that I ask you to make such orders and action the removal of those decisions and orders made. Your understanding and actioning of this request in advance is most graciously appreciated. On 15 November 2023, Mr Dreyer lodged a further submission in the following terms: Pursuant to-Article 17 ICCPR ‘Freedom from arbitrary interference with home, family, correspondence or reputation privacy (article 17 of the ICCPR). Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents challenges. It is clear however that measures to protect these rights which limit freedom of expression and information must comply with the requirements set out in article 19(3) of the ICCPR Right to privacy, family, home, correspondence, honour and reputation “Article 17 of the ICCPR states that: 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such inference or attacks. The HRC has indicated its view that ‘this right is required to be guaranteed against all such interferences and attacks whether they emanate from State authorities or from natural and legal persons. However, the Committee has also observed that ‘[a]s all persons live in society, the protection of privacy is necessarily relative. Balancing the rights to privacy and/or protection of reputation with the rights to freedom of information and expression presents challenges. It is clear however that measures to protect -- 2 of 4 -- 2 these rights which limit freedom of expression and information must comply with the requirements set out in article 19(3) of the ICCPR’. I understand Mr Dreyer’s references to ‘the ICCPR’ to be references to the International Covenant on Civil and Political Rights. It is well established that international treaties do not form part of domestic law unless enacted by legislation, although they may have influence in other ways: see generally Cranwell, ‘Treaties and Australian Law: Administrative Discretions, Statutes and the Common Law’ (2001) 1 QUT Law & Justice Journal 49. In the State of Queensland, the Parliament has enacted the Human Rights Act 2019 (Qld) (‘the HR Act’). In these proceedings, Mr Dreyer sought an administrative review of a decision made by the QBCC. Pursuant to section 19(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Tribunal has ‘all the functions of the decision-maker’, namely the QBCC. In those circumstances, section 58 of the HR Act requires the Tribunal ‘to make a decision in a way that is … compatible with human rights’ and ‘to give proper consideration to a human right relevant to the decision’. Section 13(1) of the HR Act also states: A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. Division 2 of Part 2 of the HR Act sets out a number of ‘civil and political rights’ held by individuals. Section 25, modelled on article 17 of the ICCPR, sets out the right to privacy and reputation as follows: A person has the right— (a) not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have the person’s reputation unlawfully attacked. Consistent with article 17, it should be noted that section 25(a) refers to ‘unlawful or arbitrary’ interference with a person’s privacy. The Tribunal’s review jurisdiction was enlivened by Mr Dreyer lodging an application for review, and publication of its reasons for decision was authorised by section 125 of the QCAT Act. It follows that any interference with Mr Dreyer’s privacy was neither arbitrary nor unlawful. Further, section 31 of the HR Act, drawn from article 14(1) of the ICCPR, sets out the right to a fair hearing as follows: (1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. (2) However, a court or tribunal may exclude members of media organisations, other persons or the general public from all or part of a hearing in the public interest or the interests of justice. (3) All judgments or decisions made by a court or tribunal in a proceeding must be publicly available. It should be noted that: -- 3 of 4 -- 2 (a) the requirement for a public hearing in section 31(1) is consistent with section 90(1) of the QCAT Act, which states that hearings must be held in public unless an enabling Act provides otherwise; (b) the recognition in section 31(2) that it may be in the interests of justice for some proceedings to be conducted in private is consistent with sections 90(2) and (3) of the QCAT Act; and (c) the requirement in section 31(3) that all decisions made by a tribunal to be publicly available is limited by, amongst other things, the Tribunal’s power to make a non-publication order under section 66 of the QCAT Act. For completeness, I consider that section 66 of the QCAT Act is a reasonable and justifiable limitation on section 31(3) having regard to the factors set out in section 13(2) of the HR Act. Section 66(2) of the QCAT Act sets out the grounds upon which a non-publication order may be made: The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— (a) to avoid interfering with the proper administration of justice; or (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reason in the interests of justice. The only grounds which might be potentially relevant to Mr Dreyer’s application for a non-publication order are those contained in section 66(2)(b) and (e). While I understand Mr Dreyer’s desire for privacy, he has not provided any evidence to support a claim that continued publication would endanger his physical or mental health or safety. While I also understand Mr Dreyer’s concern about the potential impact on his ‘honour and reputation’, it is fundamental to the administration of justice in a free and democratic society that proceedings of the Tribunal are open and transparent. Mr Dreyer has not provided any evidence to persuade me that it is otherwise in the interests of justice for a non-publication order to be made. The application for miscellaneous matters is dismissed. -- 4 of 4 --