Background
On 12 January 2020, Johnny Valkyrie and Dwayne Hill performed as drag queens — under the stage names “Queeny” and “Diamond” — at a children’s “Drag Queen Storytime” event organised by the Brisbane City Council and Rainbow Families. In the days and months that followed, Lyle Shelton published a series of blog posts criticising the event, arguing it was inappropriate for drag performers to engender gender confusion in young children. Both respondents are members of the LGBTIQ+ community: Valkyrie is transgender and a community advocate; Hill performs in drag, but only under the name “Diamond” when working with children. They each lodged complaints with the Queensland Human Rights Commission alleging Shelton’s posts breached s 124A of the Anti-Discrimination Act 1991 (Qld), which renders unlawful public acts that incite hatred, serious contempt, or severe ridicule on the ground of sexual or gender identity.
After conciliation failed, the complaints were referred to the Queensland Civil and Administrative Tribunal (QCAT). Following a three-day hearing in November 2022, QCAT Member Gordon dismissed the complaints in August 2023, finding the elements of s 124A had not been proved — in particular, that applying an ordinary reasonable reader test, the published material had not caused the requisite incitement. The respondents appealed to the QCAT Appeal Tribunal (QCATA).
On 27 February 2026, QCATA Judicial Member Loos granted leave to appeal, finding that Member Gordon had applied an incorrect legal test and had erred on several subsidiary points, including his treatment of third-party comments and his findings regarding the distinction between “drag queen” and protected attributes. The judicial member indicated the primary decision “would be” set aside and adjourned the appeal pending further written submissions. Shelton then commenced proceedings in the Supreme Court seeking judicial review of that QCATA ruling under the Judicial Review Act 1991 (Qld) (JRA), seeking declarations that it was void and an order remitting the matter to a differently constituted appellate tribunal. The respondents applied for summary dismissal.
The Court’s Holding
Smith J dismissed the application for statutory order of review. The primary basis for dismissal was that the QCATA’s ruling — granting leave to appeal, identifying errors in Member Gordon’s reasoning, and adjourning for further submissions — did not constitute a reviewable “decision” within the meaning of the JRA. Applying the principles in Australian Broadcasting Tribunal v Bond [1990] HCA 33, the court held that a reviewable decision must be final, operative, and determinative of the matter in issue. An intermediate ruling that is a step in the course of reasoning toward a decision not yet made lacks the necessary quality of finality. Because the judicial member had not yet exercised the powers available under s 147 of the QCAT Act 1999 (Qld) — confirming, amending, substituting, or remitting the decision — and had merely flagged errors and adjourned, the ruling remained preparatory and interim in character.
The court further held that even if the ruling were treated as a reviewable decision, the application would be dismissed under s 14 and/or s 48 of the JRA. Section 14 permits dismissal where adequate provision is made by another law for review by another court, and s 150 of the QCAT Act gives Shelton an avenue to seek leave to appeal to the Court of Appeal once a final decision is made. The court accepted the general principle that judicial review should not be used as a substitute for the appellate process, and that permitting a collateral challenge at this interim stage would fragment the administrative decision-making process. No exceptional circumstances justified departing from that position.
On costs, Smith J reserved the question and indicated he would hear the parties. He noted, however, that had he not dismissed the application on the primary grounds, he would have dismissed the respondents’ application under s 49(1)(d) of the JRA seeking an indemnity against costs. The court also confirmed that the respondents’ lawyers were entitled to their costs under the conditional costs agreements if the stipulated contingencies were met.
Key Takeaways
- A QCATA ruling granting leave to appeal and identifying errors in a primary decision, while adjourning for further submissions without making final orders under s 147 of the QCAT Act, is not a reviewable “decision” under the JRA — it lacks the finality, operative character, and determinative quality required by Australian Broadcasting Tribunal v Bond.
- Judicial review under the JRA is not available as a substitute for the appellate process set out in the QCAT Act; in the absence of exceptional circumstances, a party must await a final decision before seeking review or leave to appeal to the Court of Appeal under s 150.
- Section 156 of the QCAT Act limits the operation of the JRA to decisions or conduct affected by jurisdictional error, reflecting a parliamentary intention to partially oust the JRA’s application to QCAT proceedings.
- A conditional or contingency costs agreement does not prevent the respondents’ lawyers from being entitled to costs if the contractual contingencies are satisfied.
Why It Matters
This decision clarifies the boundary between reviewable and non-reviewable administrative action in the QCAT appellate context, reinforcing that piecemeal judicial review of intermediate tribunal rulings will not be permitted. Parties who believe an appellate tribunal has erred at the leave-to-appeal stage cannot short-circuit the process by invoking the JRA; they must allow the appeal to run to a final decision and then pursue statutory appeal rights. This protects the integrity and efficiency of QCAT’s appellate process and prevents fragmentation of administrative decision-making.
The underlying anti-discrimination dispute — whether Shelton’s public commentary about a children’s drag queen event constituted unlawful sexual and gender identity vilification under s 124A of the Anti-Discrimination Act 1991 (Qld) — remains unresolved. The QCATA appeal will continue, and the correct legal test for incitement (in particular whether the “ordinary” or “ordinary reasonable” member of the audience is the appropriate standard) will need to be authoritatively determined. The outcome will have significant implications for the scope of free expression in public debates touching on LGBTIQ+ issues and children’s programming in Queensland.