Applying to QCAT for review of a Blue Card related decision
The Queensland Civil and Administrative Tribunal (QCAT) can review certain Blue Card related decisions made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act)
This factsheet is written for persons who are unfamiliar with that legislation.
Blue Card Services
- Blue Card Services (BCS), a public service unit administered by the Department of Justice and Attorney-General since 1 October 2016 is responsible for regulating the issue of Blue Cards and Exemption Cards, which are mandatory for people employed or volunteering in certain child-related positions in Queensland. Blue Card Services was previously administered by the Public Safety Business Agency.
- Blue Cards are issued to eligible persons working or volunteering in regulated areas, including sport, education, child care services and the care of children under the Child Protection Act 1999 (Schedule 1 WWC Act).
- Exemption Cards are issued to eligible registered teachers and police officers in Queensland providing regulated services to children outside of their professional duties.
- When the BCS receives a Blue Card application, BCS must either issue a positive notice (granting a Blue Card) or a negative notice (refusing a Blue Card) (section 220 WWC Act).
- In some cases, BCS must issue a positive notice unless the case is exceptional (section 221 WWC Act). That may happen, for example, if a person has been convicted of an offence other than a serious offence (as defined in Schedule 2 WWC Act).
- In other cases, BCS must issue a negative notice unless the case is exceptional (section 225 WWC Act). That may happen, for example, if a person has been convicted of a serious offence.
- If a person does not agree with a decision of BCS about a Blue Card, the person may be able to apply to QCAT for review of the BCS decision.
Applying to QCAT for review of a BCS decision
- A person can only apply to QCAT for review of a BCS decision if the person is not disqualified from applying under the WWC Act. Also, only certain BCS decisions can be reviewed by QCAT (sections 353 and 354 WWC Act).
- BCS decisions that can be reviewed by QCAT are called chapter 8 reviewable decisions and are set out in section 353 WWC Act. They include, for example, a decision to issue a negative notice to a person who was not convicted of a serious offence.
What is the limitation period to apply to QCAT?
- A limitation period is a length of time within which legal action must be started. If legal action is not started within that time, a person may be prevented from commencing any action, even if it has legal merit.
- A person applying to QCAT for review of a BCS decision must file a review application in QCAT generally within 28 days from the day the person receives notice of the decision (sections 353 and 354 WWC Act).
- QCAT may grant an extension of time for a person to file a review application in exceptional circumstances (section 61 QCAT Act).
- QCAT decides review applications by way of a fresh hearing (section 20 QCAT Act).
- A review by QCAT is undertaken under the principle that the rights and well-being of children are paramount (section 360 WWC Act). That means that the right of children to be protected from risk of harm prevails over a person’s right to hold a Blue Card.
- Like BCS, QCAT also applies the law set out in the WWC Act. For example, if QCAT is reviewing a decision to cancel a Blue Card because a person’s police information has changed, QCAT must consider the matters set out in section 226 WWC Act, including:
- if the police information is about a conviction or a charge;
- if the alleged offence is a serious or disqualifying offence;
- when the offence is alleged to have been committed;
- the nature of the offence; and
- the sentence imposed by a court and the court’s reasons for its decision.
- When exercising its review jurisdiction, QCAT considers if BCS made the correct decision in assessing the risk of harm to children if a Blue Card is granted to a person, based on the merits of each case (section 19 QCAT Act).
- Each case is different. QCAT weighs up many factors to decide if a risk of harm to children is likely to materialise if a Blue Card is granted to a person. Those factors are called risk factors and protective factors.
- Examples of risk factors include a person’s:
- offending behaviour;
- history of abuse, neglect, drugs or alcohol issues;
- history of fractured relationships; and
- lack of remorse and insight into the offending behaviour.
- Examples of protective factors include:
- evidence of steps taken by a person to manage the causes of the offending behaviour;
- evidence from a doctor or psychologist that a person is suitable to work with children;
- a person’s honesty and insight into the offending behaviour; and
- a person’s supportive and stable relationships.
- QCAT will not allow a person to hold a Blue Card if that would expose children to an unacceptable risk of harm.
- QCAT decisions about Blue Card review proceedings are published by the Queensland Supreme Court Library and can be found here.
QCAT pre-hearing process
- When QCAT receives a valid application seeking review of a BCS decision (QCAT Form 23), QCAT serves a copy of the application on BCS.
- Within 28 days from receiving a copy of the review application, BCS must file in QCAT a written statement with reasons for the decision (section 21 QCAT Act).
- The BCS statement of reasons includes all documents and information that BCS used to make its decision, including for example information received from the police, Director of Public Prosecutions, Corrective Services, Child Services, the Mental Health Court and the Mental Health Review Tribunal.
- QCAT may make orders about how a review application will progress and direct the parties to attend one or more compulsory conferences.
- QCAT cannot suspend a BCS decision until a review application is decided (section 354 WWC Act). That means that the filing of a review application in QCAT does not affect the operation of a BCS decision.
- The hearing of a Blue Card review application is held in private and only persons authorised by QCAT are allowed to attend. The parties present at a hearing are usually the applicant, a BCS representative, lawyers if the parties are legally represented, support persons and witnesses while they are giving evidence (section 361 of the WWC Act).
- There are special provisions in the QCAT Act and the WWC Act about special witnesses giving evidence, including children and people who QCAT consider may be disadvantaged due to a mental, intellectual or physical impairment (section 99 QCAT Act; sections 364- 367 WWC Act).
- QCAT decisions involving children or vulnerable people are de-identified if they are published, to protect the identity of these parties. However, other details of the case may be published unless QCAT makes a non-publication order.
- QCAT may make a non-publication order on its own initiative or if a party to the proceeding applies for the order (section 66 QCAT Act; QCAT Form 40).
Post hearing process
- QCAT may decide a review application at the hearing or deliver its decision at a later date, for example if the presiding member needs more time to consider the matter or gather information.
- When deciding the application QCAT may either:
- confirm a BCS decision;
- amend a BCS decision;
- substitute a BCS decision by its own decision; or
- set aside a BCS decision and return the matter to BCS for reconsideration, with any directions QCAT considers appropriate (section 24 QCAT Act).
- If QCAT grants a review application, the applicant must liaise with BCS to have a Blue Card issued. A QCAT decision to grant a review application does not automatically issue a person’s Blue Card.
- Appeals are very technical legal proceedings. Appeal rights, either to the QCAT Appeal Tribunal or to the Queensland Court of Appeal, will depend on whether the appeal relates to a question of law or fact, and whether a matter was heard by a judicial member.
- If a person is considering appealing a QCAT decision, it is strongly recommended that the person apply for reasons for the decision and obtain legal advice before filing an appeal.
- A person can request written reasons for a QCAT decision within 14 days from the decision taking effect (section 122 QCAT Act). A decision generally takes effect on the date it is made, unless QCAT provides otherwise.
For more information, refer to the Appeals factsheet on the QPILCH website.
- There is no filing fee to apply to QCAT for review of a Blue Card decision of BCS.
- For information about costs orders, refer to the Costs in QCAT factsheet on the QPILCH website.
For more information about the help available, and the process for applying for help, please contact QPILCH by:
|Telephone:||07 3846 6317|
|Fax:||07 3846 6311|
|Postal address:||QPILCH, PO Box 3631, South Brisbane BC, Qld 4101|
QPILCH does not provide legal advice over the phone.
The information in this factsheet is for general information purposes only. If you would like help with a legal problem, you may be eligible for assistance from a QPILCH service or clinic.