Reviewing a Negative Notice to Issue a Blue Card (Qld)

The Director-General of the Department of Justice and Attorney-General has the discretion to issue an applicant with a negative notice to issue a blue card. In exercising this discretion, the Director-General must have regard to the Working with Children (Risk Management and Screening) Act 2000. However, prior to exercising this discretion, he or she will typically write to the applicant, placing them on notice that they are contemplating issuing them with a negative notice, and inviting them to make submissions as to why a negative notice should not be issued. If a negative notice is issued, the applicant may want to consider speaking to QCAT about reviewing the negative notice to issue a blue card.

Reviewing a Negative Notice to issue a blue card: Making Submissions

In exercising the discretion to issue a negative notice, the Director-General will invite the applicant to make submissions in relation to the following:

1. The applicant’s criminal history, and if the applicant has been convicted of a serious and/or a disqualifying offence and/or if this is pending;
2. The facts and circumstances of the offence and/or alleged offence, including when the offence was committed or is alleged to have been committed;
3. If the offence has any bearing on working with children and/or in child-related work;
4. If the applicant was convicted of the offence; and in the case of a conviction, the penalty imposed by the court, and the court’s reasons for its decision;
5. Anything else relating to the commission, or alleged commission of the offence that is reasonably considered to be relevant;
6. Anything else relating to the applicant’s mental health during the course of the offending, and the applicant’s current mental health;
7. Any character references in support of the applicant’s application; and/or
8. If the applicant has not been convicted of either a serious or a disqualifying offence, if it is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a blue card.

Should the applicant choose not to make a submission, the Director-General may withdraw the applicant’s application and/or issue a negative notice. In the event that an application is withdrawn and/or a negative notice issued, the applicant must cease working with children as soon as practicable thereafter. Failing to do so can result in a criminal charge. Section 15 of the Act outlines what is a “serious offence” and section 16 of the Act outlines what is a “disqualifying offence”.

Issuing the Applicant with a Negative Notice

If the Director-General issues the applicant with a negative notice, the applicant can apply for a review of this decision to the Queensland Civil and Administrative Tribunal (QCAT). The applicant must apply to the Tribunal for a review of the decision by not later than 28-days after receiving the negative notice. If the applicant applies to the Tribunal after this date, there is a risk that it will not accept the application, potentially resulting in the application being refused. In this event, the applicant will need to make submissions as to compelling circumstances.

Reviewing a Negative Blue Card Notice: Applying to QCAT

The Applicant can apply to QCAT for a review of a negative blue card decision. The Tribunal has the discretion to review this decision and to set it aside if there has been an error. Under section 20 of the Queensland Civil and Administrative Tribunal Act 2009, the purpose of the review of a reviewable decision is to make the correct and preferable decision. However, it must be emphasised that even if a decision is a reviewable decision, an application to review the decision must have merit. This means that the applicant must have grounds for arguing that the Director-General General erred in making the decision to issue a negative notice. The grounds commonly relied on are jurisdictional error and/or incorrect findings of fact and law.

Reviewing a Negative Blue Card Notice: Exceptional Case

A negative notice may be issued on the basis it is not in the best interests of children for the applicant to be issued with a blue card. In this situation, as the applicant has not been convicted of a disqualifying and/or a serious offence, QCAT must consider section 221 of the Act, and whether an “exceptional case” exists, meaning it is not in the best interests of children to issue the applicant with a blue card.

Section 221 of the Act states:

• “Subject to subsection (2), the chief executive must issue a positive notice to the person if—
  • the chief executive is aware of a conviction of the person for an offence other than a serious offence.
  • If subsection 1(c) applies to the person and the chief executive is satisfied it is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice, the chief executive must issue a negative notice to the person.”

“Exceptional case” is not defined in the Act. Accordingly, it is open to the applicant to make submissions in relation to facts and circumstances that should be taken into account when reviewing a decision.

In an application for a review of a decision, submissions should be made as to the above – mentioned points as well as on the following points:

• The applicant’s mental health, including:
  • the applicant’s insight into the offending, if any, including the applicant’s circumstances and mental health during the course of the offending;
  • the triggers, if any, which continue to be present, and which could put the applicant at risk of further offending;
  • the preventative strategies, if any, which are present and/or which the applicant uses to reduce the risk of further offending; and
  • the effects the issue of a negative notice will have on the applicant, if any, including anyone associated with the applicant, and including in relation to the applicant’s mental health;
  • the applicant’s employment history, including the applicant’s prospects for further employment if the applicant is issued with a negative notice;
  • the applicant’s relationship history;
  • the applicant’s financial circumstances; and
  • human rights considerations (if applicable).

Applications for a review of a decision are quite complex; it is suggested that an applicant obtain independent legal advice prior to making an application for a review of a decision.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.