Overview of the Blue Card scheme 

The Working With Children (Risk Management and Screening) Act 2000 (Qld) (‘WWCA’) is the legislation that underpins the Blue Card scheme. The object of the WWCA is to promote and protect the rights, interests and wellbeing of children and young people in Queensland by ensuring that those people who are engaged to work with them are adequately screened beforehand.[1] The principles under which the WWCA is to be administered are:

• the welfare and best interests of a child are paramount;
• every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[2]

Before delving into the scheme, it is useful to cavass a few basic principles under the WWCA. A positive notice means that a person is eligible for a Blue Card and they will subsequently be issued one. A negative notice means that a person is not and as it follows, they will not be issued a Blue Card.[3] When a person applies for a Blue Card (or they are having their Blue Card renewed etc.) the ‘chief executive’ (which in practice means the Blue Card organisation) determines if a person is eligible for a Blue Card through consideration of certain information.[4] This, quite obviously, includes their ‘police information’, but it can also include ‘investigative information’, and ‘disciplinary information’.

Each of these terms are described below.

Police information is defined to mean:-

(a) the person’s criminal history;

(b) investigative information about the person;

(c) information as to whether the person is or has been—

(i) a relevant disqualified person; or

(ii) the subject of an application for a disqualification order; or

(iii) named as the respondent to an application for an offender prohibition order.[5]

Importantly, criminal history includes both charges and convictions for any offence across Queensland or elsewhere.[6] It is therefore apparent that criminal history does not simply include a persons finalised convictions.

Investigative information is defined to mean information gathered during a police investigation into the alleged commission of a child sex offence by a person.[7] It includes information gathered through interviews and other areas of police investigations. This information is able to be used in a person’s Blue Card application even if the person was not charged due to the complainant passing away or being unwilling to proceed.

Disciplinary information means information gathered under certain investigations, usually related to the workplace.[8] For example it includes information gathered about a teacher if they have been subject to disciplinary action or information about a health practitioner gathered due to an investigation into their workplace conduct.

Section 221 of the WWCA provides that when an applicant (i.e. someone applying for a Blue Card) has either no ‘police information’ or ‘disciplinary information’, or, they have a conviction for an offence other than a serious or disqualifying offence, the presumption is that the person is to be issued a positive notice. This presumption is said to apply unless the chief executive is satisfied it would be in the best interests of child not to issue the person a Blue Card.

What this effectively means is when a person has criminal history that falls into neither the serious or disqualifying offence category, they should be issued a Blue Card unless the chief executive is satisfied that such a decision would not be in the best interests of children or young people.

It should also be noted that when deciding an application where a person’s criminal history does reveal either a conviction or charge for any offence, the chief executive must consider:-

(a) in relation to the commission, or alleged commission, of an offence by the person—

(i) whether it is a conviction or a charge; and

(ii) whether the offence is a serious offence and, if it is, whether it is a disqualifying offence; and

(iii) when the offence was committed or is alleged to have been committed; and

(iv) the nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children; and

(v) in the case of a conviction—the penalty imposed by the court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for its decision;

(b) any information about the person given to the chief executive under section 318 or 319;

(c) any report about the person’s mental health given to the chief executive under section 335;

(d) any information about the person given to the chief executive under section 337 or 338;

(e) information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;

(f) anything else relating to the commission, or alleged commission, of the offence that the chief executive reasonably considers to be relevant to the assessment of the person.[9]

At this juncture it is useful to note what actually are ‘serious’ or ‘disqualifying’ offences. A serious offence is one which is mentioned in schedule 2 or 3 of the WWCA or any other offence which would make someone a reportable child sex offender.[10] It also includes attempting, counselling, conspiring or procuring to commit such an offence and includes offences of the same nature that existing in other jurisdictions. As the name suggests, the offences in schedule 2 are ones involving serious criminality, and include offences such as making an objectionable film, possessing child pornography, indecent treatment of a child, unlawful homicide, rape, sexual assault, kidnapping, trafficking in dangerous drugs (in certain circumstances).

A disqualifying offence is listed in schedule 4 and 5 of the WWCA.[11] They involve many of the offences above, but often concern situations in which the victim was a person under the age of 16. As the name suggests, a person who has been convicted of a disqualifying offence is a ‘disqualified person’[12] and therefore is unable to obtain a Blue Card. If a disqualified person makes an application for a Blue Card they commit an offence under the WWCA which carries with it penalties ranging from a $68,925 (500 penalty units) fine or 5 years imprisonment.[13]

In consideration of all of this, what then, is an ‘exceptional case’?

The WWCA provides no guidance on the interpretation of this term. QCAT has subsequently found that what might be an exceptional case is a question of fact and degree, to be decided in each case on its own facts having regard to ‘…the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect: children’.[14] In a previous blog, solicitor Remy Kurz has looked at whether ‘exceptional’ cases are in fact the new norm, noting the increasing frequency in which our firm is being contacted by people issued with show caused submissions or negative notices despite the fact that their criminal history is for offences other than a serious or disqualifying one (see here).

If the chief executive considers that there are grounds upon which it may issue someone a negative notice based upon the fact that it may not be in the best interests of children to issue a positive notice, procedural fairness dictates that the person is given a chance to respond to these concerns. This is cemented by section 229 of the WWCA which provides that a person must be given a notice highlighting that that chief executive is aware of such information, and secondly, that they are invited to provide a response to this information (this is commonly referred to as a ‘show cause’ submission). The person must then provide the chief executive with a submission that address these concerns within a reasonable time frame. Our experience is that this is usually required within 28 days of being served the notice.

If the chief executive considers that this satisfies their concerns, the person will be issued a positive notice. If they consider that the information does not, a negative notice will be issued and reasons for the decision are also given.[15] At this point, an applicant’s only option to review the decision is to have the matter referred to QCAT. Importantly, the notice of review must be lodged with QCAT within 28 days of being issued the decision of a negative notice.[16]

When the matter is before QCAT the purpose of the Tribunal’s review is to produce the correct and preferable decision[17] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[18] After considering the submissions of both parties, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[19]

QCAT often states that it is not the intention of the WWCA to impose additional punishment on a person who has police or disciplinary information, but rather is intended to put gates around employment to protect children from harm.[20] Ultimately, QCAT must conduct the review in light of the underlying principle that the welfare and the best interests of a child are paramount.[21]

[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.

[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 6.

[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 220, 232A.

[4] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.

[5] Working with Children (Risk Management and Screening) Act 2000 (Qld) sch 7.

[6] Working with Children (Risk Management and Screening) Act 2000 (Qld) sch 7.

[7] Working with Children (Risk Management and Screening) Act 2000 (Qld) sch 7.

[8] Working with Children (Risk Management and Screening) Act 2000 (Qld) sch 7.

[9] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.

[10] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 15.

[11] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 16.

[12] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 17.

[13] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 176K.

[14] Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31], citing Kent v Wilson [2000] VSC 98, [22].

[15] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 233.

[16] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 353.

[17] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[18] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.

[20] As stated in Queensland, Parliamentary Debates, Queensland Parliament, Commission for Children and Young People Bill Second Reading Speech, 14 November 2000, 4391 (Anna Bligh).

[21] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 360.