Working with children: blue cards in Queensland

A positive notice, also known as a “blue card”, is required by those who work or volunteer with children or run a child-related business in Queensland.

The blue card proves the holder has passed the State’s working with children check, which aims to protect children from harm by assessing and monitoring people working in industries such as childcare, education and sport.

Blue cards are governed by the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act).

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Spencer Wright

Spencer Wright is the litigation director at Gibbs Wright Litigation Lawyers. With a strong background in business and a commanding understanding of the law, Spencer offers strategic and creative solutions to a range of commercial litigation matters throughout Queensland.

When is a blue card needed?

A blue card is required for any agreement that involves working with children, regardless of:

  • whether the agreement is written or not;
  • whether the work is paid or unpaid;
  • the motivation for carrying out the work;
  • the time for which the work is to be done;
  • the frequency of the work; or
  • the nature of the work.

Under the Act, workers are required to hold a blue card in many categories of employment, including residential facilities, schools, childcare, health services and sport.

Penalties under the Act

From 31 August 2020, the Act was amended to no longer allow employees to start child-related work while they have a pending application for blue card. All operators, paid employees, and volunteers must now hold a current blue card or exemption card before commencing care.

The maximum penalty for breaching this law is a fine of 500 penalty units ($68,925 at the time of publication) or five years’ imprisonment.

The same maximum penalty applies for other blue card offences, including:

  • applying for a blue card if you are a negative notice holder or disqualified person;
  • running a regulated business without a blue card; and
  • continuing or starting regulated work after being convicted of a serious offence without a further blue card clearance.

A maximum penalty of a fine of 100 penalty units ($13,785 at the time of publication) applies to other blue card offences including:

  • a blue card holder failing to notify Blue Card Services about a change in their police information; and
  • making false or misleading statements to Blue Card Services.

A maximum penalty of a fine of 10 penalty units ($1378.50 at the time of publication) applies to minor blue card offences including:

  • a blue card holder failing to notify Blue Card Services about a change in contact, or employment, details within 14 days; and
  • not applying for a replacement blue card within 14 days of it being lost or stolen.

Who cannot apply for a blue card?

A blue card cannot be issued to a person who has been convicted of a “disqualifying offence” or “serious offence”, or who has been issued with a negative notice.

Disqualifying offences include, for example:

  • sex with a child;
  • other child-related sex or pornography offences; and
  • murder or other serious sexual or violent offences against an adult or child.

Serious offences include, for example:

  • a child abduction offence;
  • drug trafficking; and
  • inflicting grievous bodily harm.

A negative notice is issued when an application for a blue card is denied. The notice remains in place until it is cancelled. A negative notice holder can apply to have the notice cancelled two years after it was issued, or because it was issued based on inaccurate information. There is no automatic cancellation for a negative notice.

How is a blue card application decided?

Screening that determines a person’s eligibility to work with children considers factors including any:

  • charge or conviction for any offence in Australia;
  • courts orders, including offender prohibition orders or sexual offender orders;
  • offender reporting obligations under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) and the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld);
  • investigations of allegations of serious child-related sex offences; and
  • disciplinary action taken by certain organisations.

My blue card application/renewal has been denied. What are my options?

If a blue card application or renewal has been refused, there are still other avenues available. These include obtaining a card because it is an “exceptional case” or applying to Queensland Civil and Administrative Tribunal (QCAT) to have the decision reviewed.

Exceptional case

The Act grants the decision-maker the power to deem an application an “exceptional case” and issue a blue card if the applicant has been convicted of, or charged with, an offence that would otherwise prohibit them from holding a card.

Factors that must be considered in deciding an exceptional case include:

  • the seriousness of the offence;
  • when the offence was (or alleged to have been) committed;
  • the nature of the offence and its relevance to working with children; and
  • the penalty imposed by a court (if there was a conviction).

If there is police information (“investigative information”), or disciplinary information, available about the applicant, the decision-maker must also consider this.

If the decision-maker decides the application is not an exceptional case, and proposes to issue a negative notice to the applicant, they must provide the applicant with the information that is affecting the application and invite the applicant to make a submission as to whether they are an exceptional case and why they should be issued with a blue card, or not issued with a negative notice. The applicant can then provide a submission by the due date, withdraw the application, or not provide a submission.

Submission

A submission should address all the information provided to the applicant by the decision-maker. It may include details about:

  • whether the applicant agrees with the details in the information;
  • any background to any offence, including personal circumstances at the time;
  • steps taken to address offending behaviour;
  • any courses or programs completed; and
  • previous interactions or experiences with children.

An applicant may also choose to provide references in support of their submission.

QCAT review of failed blue card applications

If a blue card application or renewal is refused or a negative notice is issued, the applicant has a right to request a review of the decision by QCAT.

A “Form 23—Application to review a decision” must be lodged within 28 days of notification of the decision from Blue Card Services. An extension may be granted only if there is a reasonable excuse for the delay.

The decision stands until the QCAT’s review is complete. QCAT may:

  • confirm, set aside or vary the decision;
  • set aside the decision and substitute its own decision; or
  • set aside the decision and send it back to Blue Card Services for reconsideration.

QCAT may also dismiss the application if:

  • it is considered frivolous or vexatious;
  • the applicant received reasonable notice of the proceeding and failed to appear; or
  • the proceeding is delayed because of unreasonable actions by the applicant.

Proceedings are held in private. Witnesses may be called, and they may be questioned by the applicant, QCAT members or Blue Card Services representatives. Witnesses remain outside the tribunal room until they are called and leave directly after giving evidence.

How Gibbs Wright Litigation Lawyers can help

If your blue card application or renewal has been denied, we can help you prepare submissions at the first instance, or help you appeal a decision to QCAT. Call us for a no-obligation, confidential discussion about your options.

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