No Card No Start for Working with Children in QLD


This training brochure applies to organisations that work with children.

Working with Children (Risk Management and Screening) and Other Legislation Amendment Act 2019 (Qld)

Relevant parts of the Working with Children (Risk Management and Screening) and Other Legislation Amendment Act 2019 (Qld) (the Amending Act) commenced on 31 August 2020. The Amending Act has amended multiple Acts, but primarily the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act).

The Amending Act has made significant changes to the blue card system in Queensland that screens persons who work or volunteer with children in Queensland. In addition to the significant changes set out below the Amending Act has reframed and consolidated the existing offences under the WWC Act.

Please note that this update was initially released in Q2-2020 but was later retracted as its commencement was delayed to ensure that organisations providing child-related services can continue to do so while taking all necessary steps to deal with the ongoing health emergency of COVID-19.

Changes to key terminology

The Amending Act has modernised the terminology used in the WWC Act. Previously the WWC Act referred to:

  • an application for a blue card as a “prescribed notice”;
  • a person receiving a “positive notice” when their application is approved and a “negative notice” when the application is refused; and
  • a person being issued with a “positive notice blue card”.

The Amending Act has changed this and introduced the following terminology in its place:

  • a person will apply for a “working with children check”;
  • a positive outcome will be a “working with children clearance”;
  • a negative outcome will be a “negative notice”; and
  • a person will be issued with a “working with children card”.

The change in terminology achieves consistency with other Australian jurisdictions.

No card, No Start

Previously, employers were able to employ staff in regulated employment if an application had been made for a working with children clearance (even if it had not yet been given).  The Amending Act now requires all paid workers to have a working with children clearance (not just a pending application) before they can work in regulated employment.

An employer who fails to comply with this obligation may face a fine of up to 200 penalty units (currently, $26,690) or 2 years imprisonment.

Employer to take steps to identify employee before employment

The Amending Act creates a new requirement for an employer to take reasonable steps to verify the identity of a person, before giving notice to the chief executive of the Department of Education under sections 175 or 176 (that the employer has engaged an employee in regulated employment). Section 173 of the WWC Act sets out examples of reasonable steps, such as:

  • viewing the person’s photo identification on their working with children card; or
  • viewing the person’s photo identification on their driver licence.

Restricted persons and restricted employment

Previously, a person was able to undertake certain child-related work without a WWC authority if they met one of the following exemptions, they:

  • only perform regulated employment for 7 days or less in any calendar year; or
  • are under 18 years old; or
  • are a volunteer parent at a family child care centre.

In effect, this allowed persons with negative notices and other high-risk persons to carry out child-related work provided they met one of these exemptions.

To address this risk, the Amending Act has inserted two new concepts ”restricted person” and “restricted employment”. A restricted person is defined to include a disqualified person, a person who holds a negative notice, or a person whose working with children authority has been suspended, etc. and restricted employment is essentially employment engaged in under one of the above exemptions.

New section 176J of the WWC Act creates an offence for a restricted person to start or continue in restricted employment. This offence carries a maximum penalty of 500 penalty units (currently, $66,725) or 5 years imprisonment.

New section 176I creates an offence for employers if they know or ought to reasonably know that the person is a restricted person. This offence can attract a maximum penalty of 200 penalty units (currently, $26,690) or 2 years imprisonment.

In effect, the exemption to the requirement for a valid clearance remains, however restricted persons are be prohibited from obtaining the benefit of any of the exemptions.

Information sharing

New section 344A of the WWC Act enables communication by the chief executive of the Department of Education of information to “authorised entities” (this includes the person’s employer) about:

  • a working with children check application made by the person;
  • a working with children authority or negative notice held by the person;
  • a working with children notice about the person given, or required to be given, to the authorised entity under the WWC Act.

A person who receives such information under the WWC Act is only able to communicate it for certain purposes set out in new section 344B of the WWC Act, such as to identify or monitor a risk to a child in relation to the regulated employment; or to assess whether the person has a current working with children clearance.

The offence for disclosing information other than in accordance with section 344B(3) would draw a maximum penalty of 100 penalty units (currently $13,345).

Register for recording and reporting on all children-related employment or business conducted from home

The Amending Act has established an electronic register concerning foster and kinship care, home-based family day care services and home-based stand-alone care services. The register will contain particulars about persons providing the services and any other adults occupying the home or residence (associated adults).

An amendment of schedule 1, section 4 of the WWC Act expands the meaning of regulated employment under the WWC Act, to classify an occupant of:

  • a home at which stand-alone care services are provided; or
  • a family day care residence,

as a volunteer engaged at the particular service and therefore require those individuals to have a current working with children clearance.

Disqualifying offences

The Amending Act has expanded the range of offences that disqualify a person from working in regulated employment to include, among others, the following offences under the Criminal Code Act 1899 (Qld):

  • bestiality;
  • attempted murder;
  • conspiring to murder;
  • choking, suffocation or strangulation in a domestic setting;
  • torture of a child;
  • kidnapping of a child;
  • kidnapping of a child for ransom;
  • child stealing;
  • abduction of a child under 16;
  • cruelty to children;
  • murder or rape of an adult.

However, in relation to the child-stealing and kidnapping offences, the Amending Act excludes offences that are committed in a “familial setting”.

Public Service Act

We note that ‘child-related duties’ are not included in the list of regulated employment under the WWC Act. However, the Amending Act has also amended the Public Service Act 2008 (Cth) to prevent public service employees from commencing ‘child-related duties’ without holding a working with children clearance.

Conclusion

Organisations must ensure that relevant staff understand the above obligations, in particular the new no card no start requirements. Policies and procedures should be updated to reflect the new terminology and changes summarised above and set out in detail in the QLD – Children’s Services topic.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au