Queensland is currently in the process of strengthening and streamlining its blue card system.  A comprehensive review of the blue card system by the Queensland Family and Child Commission (QFCC) found that Queensland had one of the strongest working with children check  (WWCC) systems in Australia. It did go on to say however that a blue card/WWCC system “is only one tool in the broader system for keeping children safe” and that in fact “over-reliance on the WWCC may create risks for children, as parents and carers may assume their children are safe when left with people holding blue cards”. The review listed 81 recommendations including that there be reforms to Queensland’s blue card system.

In May 2019, the Queensland Parliament passed the Working with Children (Risk Management and Screening) and Other Legislation Amendment Act 2019 (Qld) (WWC Amendment Act) in order to further enhance the protection offered by the blue card system.

The WWC Amendment Act amends the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act). The WWC Amendment Act introduces four significant changes including modifying the disqualification and serious offence framework, introducing a ‘No Card, No Start’ policy, amending the definition of “minimum frequency for regulated employment” and creating offences related to “restricted employment” and “restricted persons”.

The changes to the disqualification and serious offence framework came into effect on 1 July 2019, while the ‘No Card, No Start’ policy, the amendment of the “minimum frequency for regulated employment” definition  and the introduction of the “restricted employment” and “restricted persons” offences are expected to commence in early 2020.

After providing an overview of Queensland’s blue card system, this article will examine these four key changes.

Overview of the Blue Card System

The blue card system has three components which aim to deal with past, present and future risks:

• initial blue card screening to determine a person’s eligibility to work with children and young people based on their past behaviour (if they are eligible they will be issued with a ‘blue card’ and a ‘positive notice’ which allows them to work in any regulated child-related employment or conduct any regulated child-related business for three years while their police information continues to be monitored)
• ongoing monitoring of the police information of all blue card holders, thereby enabling action to be taken to protect children and young people if a blue card holder is charged with certain offences
• mitigating future risks through the requirement for organisations providing child related services to develop and implement child and youth risk management strategies.

In Queensland, a person can undertake child-related work without a blue card if they are exempt (although, for certain exempt people, they must obtain an exemption card if they want to do particular kinds of work). One exemption is if the person has been screened under another specified process: being a registered teacher or a police officer fits within this category. Parents who volunteer at the school their child attends are also exempt.

Schools should note that registered teachers don’t need either a blue card or an exemption card when providing regulated child-related services as part of their professional duties. This means a teacher registered with the Queensland College of Teachers does not require a blue card (or an exemption card) when teaching at a school or a boarding facility. However, teachers may require an exemption card if they are providing other child-related regulated services beyond their professional duties, such as privately tutoring a child or supervising after hours school care. Further information on whether a registered teacher needs an exemption card can be found here.

Changes to the Disqualification and Serious Offence Framework

The WWC Amendment Act implements the recommendations of the QFCC and the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) in relation to expanding the range of disqualifying and serious offences under the WWC Act (and both of these terms are defined in the WWC Act). The current WWC Act makes it an offence for a person who has been convicted of a disqualifying offence to apply for a blue card, unless an “eligibility declaration” has been granted. As of 1 July 2019, 17 new offences were added to the list of disqualifying offences, including kidnapping of a child and torture of a child. Existing cardholders with a previous conviction for a new disqualifying offence will have their eligibility to continue holding a blue card assessed by Blue Card Services (the Queensland government body that manages the blue card system).

In relation to serious offences, the WWC Act operates so that an applicant who has been convicted of a serious offence will not be issued with a blue card unless there are exceptional circumstances. As of 1 July 2019, two new offences were added to the list of serious offences – manslaughter and servitude offences against an adult. Existing cardholders with a previous conviction of a new serious offence will have their eligibility to continue to hold a blue card assessed by Blue Card Services. A new framework for serious offences will also be introduced, bringing in several other changes. For example, if a person applying for a blue card to undertake paid employment has a conviction for a serious offence, the person must stop child-related work until their application has been assessed and they have been issued with a blue card.

‘No Card, No Start’

The ‘No Card, No Start’ policy is designed to strengthen the blue card system by preventing applicants from commencing child-related work while their blue card application is still pending. The WWC Amendment Act will bring in new provisions which prohibit an employer from hiring a person for regulated employment (relevant child-related work) unless the person holds a WWCC clearance and the employer has notified the chief executive that they are proposing to employ that person.  The penalty for not abiding by this obligation will be increased to 100 penalty units (almost $13,500 as at 1 July 2019). Queensland’s Attorney-General and Minister for Justice, Yvette D’Ath, has described the increased penalty as designed “to emphasise the significant responsibility that employers have as the gatekeepers of child-related employment”.

To minimise adverse impacts to jobseekers and employers, the ‘No Card, No Start’ requirement will be accompanied by complementary changes designed to streamline the blue card application process, reduce processing times to ensure people can be job-ready by allowing them to apply for blue cards without a pre-existing link to an employer.

“Minimum Frequency for Regulated Employment”

The definition of “minimum frequency for regulated employment” in the WWC Act is confusing and difficult to find. The WWC Amendment Act attempts to make the definition clearer and accords with the definition recommended by the Royal Commission.

Under the WWC Amendment Act, the minimum frequency aspect will be subsumed into the definition of “regulated employment”.  Under the definition of “regulated employment” in the WWC Amendment Act, a person’s employment won’t fall within the definition if the person is employed to work, and works “in the employment” for seven days or fewer in a calendar year.

“Restricted Employment” and “Restricted Persons”

Currently, a person can undertake certain child-related work without having a WWCC if a relevant exemption applies to them. These exemptions include if the person:

• is a volunteer parent, in certain circumstances
• is a volunteer under the age of 18
• does not meet the minimum frequency for regulated employment.

This means a person with a negative notice (i.e. a person who had their blue card application refused) or any other ‘high risk’ person could still carry out child-related work if they were exempted.

The QFCC recommended that changes be made to the WWC Act in order to prevent negative notice holders and other ‘high risk’ persons from relying on these exemptions. The WWC Amendment Act achieves this through the introduction of two new terms – “restricted employment” and “restricted person”.

“Restricted employment” is defined as:

• infrequent employment which does not meet the minimum frequency under the new section 156 of the amended WWC Act
• the unpaid employment of a person under the age of 18
• volunteer parents who undertake regulated employment in the following settings: schools, education and care services, child care, churches, clubs and associations and sport and active recreation.

“Restricted person” captures the following high risk people

• negative notice holders
• persons with a suspended working with children authority
• a disqualified person
• a person charged with a disqualifying offence.

The WWC Amendment Act makes it an offence for a restricted person to start or continue in restricted employment. It will also be an offence under the amended WWC Act for an employer to employ or continue to employ a person in restricted employment if they know or ought reasonably to know that the person is a restricted person. It is important for schools to be aware of this latter offence. For example, if a school knows or ought to know that a parent would be considered a “restricted person” under the new WWC Act, then they must not allow that parent to volunteer at the school. The penalty for this offence is 200 penalty units (almost $27,000 as at 1 July 2019) or up to two years imprisonment.

In practice, it may be difficult for a school to obtain information about whether a person is a “restricted person” (particularly, based on advice that the authors have received from Blue Card Services, as those seeking to undertake “restricted employment” are not permitted to submit an application for a WWCC). It will depend on whether the school in fact knew or ought to have known that the person was a “restricted person”. Hopefully Blue Card Services will provide more guidance on some of these issues in the coming months.

What Does this Mean for Schools?

It is important for schools to be aware of their obligations in relation to the amended WWC Act, particularly given the increased penalties and new offences that will come into force in early 2020. Although not all the provisions in the WWC Amendment Act are in force yet, it is prudent for schools to be ready for the changes in advance.

Authors

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Lucinda Hughes

Lucinda Hughes is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Arts and Bachelor of Laws at the University of Sydney.