review of the blue card system - qfcc · guiding principles for the review the following principles...

Review of the blue card systemDiscussion Paper

UNDERTAKING A REVIEW 1

Terms of Reference 1

Review process 1

Guiding principles for the review 2

Why we need your help 2

Next steps 2

Make a submission 2

ROLE OF THE BLUE CARD SYSTEM 3

History of the blue card system 3

Purpose of the blue card system 3

Effectiveness of the blue card system 3

STRENGTHENING THE SYSTEM 4

Child-safe organisations 4

What are the current requirements for organisations? 4

What environments are regulated by the blue card system? 5

Working with Children Checks 6

When is a WWCC required? 6

When is a WWCC not required? 7

When can a person commence work? 8

What information is considered as part of a WWCC? 9

How is a decision made about whether a person should be granted a WWCC? 10

How can an adverse WWCC decision be reviewed? 11

Compliance with the blue card system 12

How is compliance with the blue card system monitored? 12

Information sharing 13

What information is currently shared? 13

Offences and penalties 14

What are the current offences for not complying with the blue card system? 14

STREAMLINING THE SYSTEM 15

Child-safe organisations 15

How are organisations supported to create safe service environments? 15

Working with Children Checks 16

What is the current application process? 16

How long is a WWCC valid for and how much does it cost? 17

COMMUNITY PARTICIPATION AND SUPPORT 18

Supporting Aboriginal and Torres Strait Islander communities 18

Building public confidence in the system 19

What mechanisms are there for oversight and review of the system? 19

GLOSSARY 20

CON

TENTS

Review of the blue card system Discussion Paper

On 21 September 2016, the Premier of Queensland requested the Queensland Family and Child Commission (QFCC) undertake a review of the blue card system, the approval and monitoring processes for foster carers (including kinship carers and provisionally approved carers) and pressure points in child protection service delivery.

The need for this review was identified following the investigation into the tragic death of Tiahleigh Palmer and subsequent arrest of Tiahleigh’s foster carers. The QFCC’s first report, When a child is missing: Remembering Tiahleigh – A report into Queensland’s children missing from out-of-home care was released on 11 July 2016.

This review will also provide an opportunity to examine how the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) in relation to Working with Children Checks (WWCC) can best be implemented in Queensland.

The recommendations of the Royal Commission have been developed following extensive consultation and a comparison of the operation of the WWCC systems across Australia.

TERMS OF REFERENCE The review is to be conducted under Part 3 of the Family and Child Commission Act 2014.

The QFCC will work with stakeholders and an established Expert Panel to identify opportunities for improvement in the blue card system and foster care approval and monitoring processes.

The terms of reference under which the QFCC will conduct the review are as follows:

1. Explore ways to build and sustain public confidence in the blue card and foster care systems.

2. Review the blue card system legislation, including its scope, to identify any gaps, barriers, inconsistencies or inefficiencies in meeting the safety needs of children in Queensland.

3. Review key operations to identify opportunities to streamline, innovate and enhance access for members of the community, including Aboriginal and Torres Strait Islanders.

4. Audit and review foster carer approval and monitoring processes, to assess their effectiveness as safeguards for vulnerable children and to identify any gaps or inconsistencies in meeting the safety needs of children in Queensland.

5. Review Child Safety Services within the Department of Communities, Child Safety and Disability Services to determine whether it is operating effectively, including engaging with frontline staff through targeted consultation to determine any capacity issues or pressure points in meeting the safety needs of children in the Child Protection System.

REVIEW PROCESS In undertaking the review, the QFCC will:

1. Establish steering and advisory mechanisms representative of the scope of the blue card and foster care systems.

2. Work collaboratively with stakeholders, including through conducting state-wide and targeted consultation and providing an open opportunity for written submissions.

3. Consider the QFCC’s own prior reviews, relevant publications and evidence of the Royal Commission, the Queensland Child Protection Commission of Inquiry and the Queensland Ombudsman.

4. Explore any specific issues with the blue card system and foster care approval and monitoring processes experienced by Aboriginal and Torres Strait Islander families and children.

5. Assess and consider relevant developments in other jurisdictions, including the impact of a nationally consistent approach or model to the blue card system.

6. Provide an estimate of any costs, savings, efficiencies or impacts to government or stakeholders expected to result from any proposed recommendations.

7. Deliver findings and recommendations to the Premier by 31 March 2017.

UNDERTAKING A REVIEW

Queensland Family & Child Commission1

GUIDING PRINCIPLES FOR THE REVIEWThe following principles will guide the review of the blue card system:

1. The safety, wellbeing and best interests of children are paramount and will always take priority.

2. Keeping children safe is a shared responsibility of parents, the government and the community as a whole.

3. The blue card system should complement the existing regulatory frameworks that work to keep children safe in Queensland.

4. The blue card system must be efficient and sustainable into the future.

5. Any reforms must consider how to support the specific needs of Aboriginal and Torres Strait Islander and culturally and linguistically diverse communities.

WHY WE NEED YOUR HELP The review provides an opportunity to test contemporary community expectations in relation to the role of the blue card and foster care systems in keeping children safe.

The review must be informed by the practical experiences of people engaging with the blue card and foster care systems.

Hearing from the community and stakeholders about what works well and what needs improving is essential to make sure any reforms will be effective and sustainable into the future.

NEXT STEPS The QFCC will consult widely on the operation of the blue card and the foster care systems in Queensland.

There will be many opportunities to contribute, including by providing responses to discussion papers.

The feedback provided will be used to develop options for reform to improve the operation of the systems. Further consultation in relation to these options will be undertaken in the future.

For more information about the review and how you can contribute visit

www.qfcc.qld.gov.au

MAKE A SUBMISSIONYou are invited to make a submission in response to this discussion paper or the discussion paper about the review of the foster care system, which can be accessed at http://www.getinvolved.qld.gov.au/gi/consultation/3405/view.html.

You may respond to all of the questions raised in the discussion papers or you may choose to answer only those questions most relevant to you.

You can lodge your submission by email or post:

Email: [email protected]

Mail: Queensland Family and Child Commission PO Box 15217 BRISBANE CITY EAST QLD 4002

Submissions for both discussion papers will close on 23 December 2016.

The information you provide in response to the discussion papers will only be used by the QFCC for the purposes of undertaking the review of the blue card and foster care systems.

Submissions provided to the QFCC in relation to the discussion papers will be treated as public documents. If you would like your submission, or any part of it, to be treated as confidential, please indicate this clearly in the submission.

This is a discussion paper only. It does not represent the policy of the Queensland Government.

© The State of Queensland (Queensland Family and Child Commission) 2016.

2


http://www.qfcc.qld.gov.au

http://www.getinvolved.qld.gov.au/gi/consultation/3405/view.html

http://www.getinvolved.qld.gov.au/gi/consultation/3405/view.html

mailto:[email protected]

HISTORY OF THE BLUE CARD SYSTEMThe WWCC, otherwise known as a ‘blue card check’, commenced in Queensland in 2001. Since its establishment, the blue card system has changed significantly, improving safeguards for children.

Close to 3 million WWCCs1 have been issued since the commencement of the system. As at 30 June 2016, over 680,000 current blue card holders and applicants were being monitored on a daily basis2.

PURPOSE OF THE BLUE CARD SYSTEMThe blue card system is designed to complement other laws in Queensland, which aim to keep children safe. For example, the Child Protection (Offender Prohibition Order) Act 2008 and the Child Protection (Offender Reporting) Act 2004, provide specifically for the management of offenders who have committed child-related offences.

The blue card system is focused on creating safe environments for children when participating in activities or receiving services essential to their development and wellbeing, where parents are often not present.

The blue card system seeks to do this through a three-part system:

1 Information provided by Blue Card Services. This number includes all applications, including renewals.2 Public Safety Business Agency, Blue Card Services 2016, Annual Report 2015-16, Queensland Government Brisbane. 3 Royal Commission into Institutional Responses to Child Sexual Abuse 2015, Scoping Review: Evaluations of pre-employment screening practices for child-

related work that aim to prevent child sexual abuse, Royal Commission into Institutional Responses to Child Sexual Abuse, Sydney. 4 http://www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/evaluations-of-pre-employment-screening-practices

EFFECTIVENESS OF THE BLUE CARD SYSTEMThere is no large-scale research to assist in understanding the effectiveness of WWCCs in reducing risks of harm to children. A WWCC is not a guarantee of safety and will only identify individuals who pose a risk based on their past history. For example, in 2015-16 there were 2597 cases where individuals identified as presenting a risk of harm to children were prevented from working with children. Research, however, does indicate that WWCCs do contribute to the creation of safe environments for children when incorporated into broader child-safe strategies3.

Blue Card Services does not currently have a research function to support any analysis of data to identify trends or potential risks in particular environments where children receive services.

Other information

Findings of the Royal Commission into Institutional Responses to Child Sexual Abuse

The Royal Commission has conducted a scoping review4 to map evaluations of pre-employment screening practices for child-related work aiming to prevent child sexual abuse.

ROLE OF THE BLUE CARD SYSTEM

WWCCs stop people who are assessed as a risk to children’s safety and wellbeing from working with children

Changes in Queensland criminal history information are monitored and assessed

Organisations are required to develop and implement child and youth risk management strategies

PAST RISK PRESENT RISK FUTURE RISK

QUESTIONS

1 How does the blue card system contribute to the creation of safe environments for children?

2 How can the blue card system better contribute to the creation of safe environments for children?


http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ChildProtOPA08.pdf

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ChildProtOPA08.pdf

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ChildProtORA04.pdf

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/ChildProtORA04.pdf

http://www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/evaluations-of-pre-employment-screening-practices

http://www.childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/evaluations-of-pre-employment-screening-practices

STRENGTHENING THE SYSTEM

CHILD-SAFE ORGANISATIONSWhat are the current requirements for organisations?

Current positionUnder the Working with Children (Risk Management and Screening) Act 2000 (the WWC Act) organisations regulated by the blue card system must develop and implement child and youth risk management strategies on an annual basis.

There is no requirement for the strategy to be in place before the organisation commences providing regulated services.

The strategy must include:

• a stated commitment to the safety and wellbeing of children and the protection of children from harm

• a code of conduct for interacting with children

• procedures for recruitment, selection, training and managing staff

• policies and procedures for handling disclosures or suspicions of harm, including reporting guidelines

• a plan for managing breaches of the risk management strategy

• policies and procedures for ensuring compliance with risk management and WWCC requirements

• risk management plans for high risk activities and special events

• information about communication and training in relation to the risk management strategy5.

5 Working with Children (Risk Management and Screening) Regulation 2011 – section 36 http://childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/key-elements-of-child-safe-organisations7 https://www.dss.gov.au/families-and-children/programmes-services/children/protecting-children-is-everyones-business-national-framework-for-

protecting-australias-children-2009-2020-third-action-plan-2015-20188 http://christianporter.dss.gov.au/media-releases/community-services-ministers-meeting-communiqu

It is an offence for an organisation not to comply with this obligation. The current penalty is 20 penalty units, which is similar to other jurisdictions. Blue Card Services focuses on supporting organisations to comply and to date there have been no successful prosecutions of an offence for non-compliance.

Other information


The Royal Commission has published the Creating child safe institutions report6 which identifies ten key elements of a child-safe institution.

National Framework for Protecting Australia’s Children 2009-2020: Third Action Plan

The Third Action Plan 2015-20187 commits to the review and implementation of the National Schedules for Creating Child-Safe Environments (Signature Action 3.1.1) and the development of a work plan to identify resources to support best practice on child-safe standards (Signature Action 3.1.2).

National Statement of Principles for Child Safe Organisations by Community Services Ministers

On 11 November 2016, Ministers agreed8 to the development of National Statement of Principles for Child Safe Organisations to be endorsed by Council of Australian Governments.

QUESTIONS

3 Are the current requirements for organisations to develop and implement risk management strategies sufficient? Why/ why not?

4 Is the current penalty for not developing and implementing a child and youth risk management strategy sufficient? Why/ why not?

4


http://childabuseroyalcommission.gov.au/policy-and-research/our-research/published-research/key-elements-of-child-safe-organisations

https://www.dss.gov.au/families-and-children/programmes-services/children/protecting-children-is-everyones-business-national-framework-for-protecting-australias-children-2009-2020-third-action-plan-2015-2018

http://christianporter.dss.gov.au/media-releases/community-services-ministers-meeting-communiqu

CHILD-SAFE ORGANISATIONS What environments are regulated by the blue card system?

Current position The blue card system regulates environments where children receive services and participate in activities essential to their development and wellbeing.

Regulated environments broadly include:

• Residential facilities and child accommodation services

• Schools

• Early childhood education and care services (e.g. long day care, kindergarten, family day care and outside school hours care)

• Community organisations (e.g. churches, sporting and recreation clubs, providers of cultural activities and religious representatives)

• Health, counselling and support services

• Private teaching, coaching and tutoring

• Child protection

Organisations are required to develop and implement child and youth risk management strategies in these environments. Individuals are required to undergo a WWCC if they are providing services in these environments, in certain circumstances (see page 6 for further information).

Amusement parks are specifically excluded from regulation.

Other information


• In addition to those already screened in Queensland, the Royal Commission recommends the following environments be regulated by WWCC laws:

– commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions

– overnight camps

• transport services for children (recommendation 12a).


QUESTIONS

5 Should the blue card system continue to focus on environments where children receive services essential to their development and wellbeing? Why/ why not?

6 Should the blue card system regulate any additional environments? If so, which ones and why?


WORKING WITH CHILDREN CHECKS When is a WWCC required?

Current positionIn Queensland, whether or not a WWCC is required depends on the environment in which services are being provided and the type of contact with children.

A WWCC is required in the following circumstances:

• Management – a person who takes part in the management of a regulated business or organisation

• Services directed to children – a person providing services which are directed mainly towards children at a school, within a church, club or association, or as part of sport or active recreation activities

• Child-related environments – a person working in a child-related environment such as a boarding school, residential facility, early education and care service, or a funded child-related disability service

• Religious representatives – a person providing services to children

• Early childhood education and care services or child care services – a person providing care or living in a family day care home

• Health services – a person providing services at a health facility for children, services targeted at children, or services which require physical contact with a child or where the person will be alone with a child

• Counselling and support services – a person is alone with children or providing services over the telephone or online

• Commercial teaching, coaching or tutoring children

• Home stay services

• Out-of-home care services – including foster and kinship carers and adult members of the household

• School crossing supervisors

• Emergency services cadet program

A person may need to get a WWCC even if they do not have direct contact with children. For example, a person may be making management decisions affecting the safety of children, or auditing/assessing sensitive records under the Education (Accreditation of Non-State Schools) Act 2001.

A person with management responsibilities or volunteering in regulated environments is required to undergo a WWCC regardless of how often they are engaged in regulated activities. A paid employee is only required to have a WWCC if they meet the frequency test.

Other information


• There is a lack of consistency across jurisdictions and work should be only considered child-related if it involves:

– physical or face-to-face contact, or oral, written or electronic communication with children (recommendation 6 and 7a), regardless of whether it is supervised or unsupervised (recommendation 9)

– contact with children that is a usual part of, and more than incidental to the work (recommendation 8)

• WWCCs should not be required merely to make decisions affecting a child or manage sensitive records.


QUESTIONS

7 In what circumstances should a person be required to undergo a WWCC? Does this differ depending on the service environment?

8 Is the current frequency test suitable for use in determining whether a WWCC is required? Why/why not?

6


QUESTIONS

9 When should a person not have to undergo a WWCC?

10If a person has been issued with a negative notice, should they be able to continue to provide services if they are exempt from requiring a WWCC? Why/ why not?

11 Should WWCCs from other jurisdictions be recognised in Queensland?

WORKING WITH CHILDREN CHECKS When is a WWCC not required?

Current positionSome people do not need a WWCC when carrying out child-related work. These include:

• a person employing or supervising a child in a workplace

• volunteer parents providing services or conducting activities in certain circumstances

• volunteers under 18 years of age, unless they are a trainee student doing a practical placement

• relatives or friends caring for a child as part of a private arrangement

• people providing informal domestic/ babysitting services

• police officers providing services as part of their professional duties

• registered teachers in schools providing services as part of their professional duties

• registered health practitioners, if the work relates to their professional duties

• ambulance officers, if the work relates to their professional duties

Other screening systems are in place for police officers, teachers, health practitioners and ambulance officers as part of their professional employment. A WWCC (or an exemption card for police officers and teachers) is required if they are involved in regulated child-related work or voluntary outside of their professional duties. For example, volunteering at a children’s sporting club or providing foster care.

WWCCs undertaken in other jurisdictions are currently not recognised in Queensland.

A person who has been issued with a negative notice can continue to provide regulated services if they are exempt from requiring a WWCC.

Other information


• Only the following should be exempt from a WWCC check:

– children under 18 years of age, regardless of their employment status

– employers and supervisors of children in a workplace

– people who engage in child-related work in the same capacity as the child

– police officers, including members of the Australian Federal Police

– parents or guardians who volunteer for services or activities, except when involved in overnight excursions or stays or providing services to children with disabilities, where the services involve close, personal contact with those children (recommendation 14).

• A person who has been refused a WWCC should not be able to rely on an exemption category (recommendation 14c).

• WWCC should be transferable across jurisdictions (recommendation 30).




WORKING WITH CHILDREN CHECKS When can a person commence work?

Current positionA person with management responsibilities (including in not-for-profit organisations) must have a WWCC before they can start providing regulated services. Volunteers are also required to have a WWCC before they can start providing regulated services.

Conversely, a paid employee can start work while their WWCC is being processed.

Under the WWC Act it is an offence for a person convicted of a disqualifying offence to apply for a WWCC (a disqualified person). This stops individuals with convictions for serious child-related sexual offences from working with children while a WWCC application is being processed.

All individuals applying for a WWCC are required to declare they are not a disqualified person on the application form. A disqualified person can be subject to a maximum penalty of 500 penalty units, or five years imprisonment for making an application for a WWCC.

A person convicted of a disqualifying offence who was sentenced to a period of imprisonment (including a wholly suspended sentence) or is subject to current reporting obligations of a current prohibition order, disqualification order or sexual offender order cannot get a WWCC. In this circumstance there is no opportunity for review.

A person convicted of a disqualifying offence who was not sentenced to a period of imprisonment can apply for an eligibility declaration. An eligibility declaration may be issued only if it is an exceptional case in which it would not harm the best interests of children. If an eligibility declaration is issued, a person can then apply for a WWCC.

Other information


• A person should be able to commence working while their application is processed regardless of their employment status. There must also be an ability to issue an interim bar where records indicate a person may pose a risk of harm (recommendation 25).

• An automatic refusal should occur when an applicant has a charge or conviction for: murder or manslaughter of a child; indecent or sexual assault of a child; child pornography–related offences; incest where the victim was a child; abduction or kidnapping of a child; and animal-related sexual offences (recommendation 20b).

QUESTIONS

12 Should a person be allowed to start working/volunteering while their WWCC is being processed? Why/ why not?

13 Should some individuals be prohibited from applying for a WWCC? If so, why and in what circumstances?

8


WORKING WITH CHILDREN CHECKS What information is considered as part of a WWCC?

Current positionThe WWCC in Queensland considers known past police and disciplinary information:

Criminal history (including juvenile history)

National check of charges (regardless of the outcome) and convictions (incuding spent convictions and where a conviction is not recorded)

Investigative information

A person was not charged with a disqualifying offence because the child died or it was not in the child’s best interests

Disciplinary information

Teachers, child care providers, foster carers, nurses, midwives and certain health practitioners

Additional information is sought from police, courts, prosecuting authorities and other relevant bodies where necessary. A mental health assessment can also be undertaken in certain circumstances.

Information about a person’s international criminal history and child protection is not considered routinely as part of a WWCC but can be considered if provided to Blue Card Services. Child protection history can only be considered if there is other assessable information.

Information about whether a person has been a respondent to a domestic violence order cannot be accessed as part of a WWCC, but criminal charges related to breaches of the order are considered.

Information about the outcome of a WWCC in another jurisdiction is not available or routinely considered.

Other information

Findings Royal Commission into Institutional Responses to Child Sexual Abuse

• A person’s entire criminal history should be considered, including juvenile and international history, and all charges and convictions (recommendation 17).

• Relevant disciplinary or misconduct information should also be considered (recommendation 19).

• Child protection and domestic violence history are relevant in assessing risk.

• WWCC outcomes and status should be recorded in a central database accessible to all jurisdictions (recommendation 3).

• Reportable conduct information should be considered as part of a WWCC (recommendation 19b).

Reportable conduct schemes

• Queensland is working with other jurisdictions, through the Council of Australian Governments (COAG), to progress a proposal for nationally harmonised reportable conduct schemes.

Findings of the South Australian Child Protection Systems Review

• Child protection records should always be assessed during child-related employment screening, including unsubstantiated matters.


QUESTIONS

14 What information should be routinely considered as part of a WWCC?


WORKING WITH CHILDREN CHECKS How is a decision made about whether a person should be granted a WWCC?

Current positionThe WWC Act is administered under the principle that the welfare and best interests of a child are paramount.

Police information, disciplinary information and other associated information is considered. Section 221 of the WWC Act provides a specific framework for how decisions are made:

No police or discipinary information

Blue card MUST be issued

Investigative information, disciplinary information, charges or convictions (other than for a serious offence)

Blue card MUST be issued, unless it is an exceptional case in which it would not be in the best interests of children

Conviction for a serious offence

Blue card must NOT be issued unless it is an exceptional case in which it would not harm the best interests of children

The WWC Act outlines factors which may be considered in determining if there is an exceptional case. The guidelines outline a range of issues which may be considered in deciding if there is an exceptional case:

• type, number and seriousness of offences

• recency of any offending or alleged offending

• relevance of past criminal or concerning behaviour to child-related activities

• penalty imposed for relevant offences

• veracity of the evidence available

• evidence of attempts to change/address behaviour or triggers for initial offending

• any pattern of behaviour or a breach of trust

• any identified risk or protective factors

If a negative notice is proposed, applicants are given the opportunity to provide a submission and respond to any adverse information before a final decision is made.

Other information


• The paramount consideration must be the best interests of children, having regard to their safety and protection (recommendation 24).

• A WWCC should be automatically issued if there is no relevant criminal history or disciplinary information (recommendation 20a).

• Except where the person is disqualified, an assessment should consider a range of specific factors (recommendation 23).


QUESTIONS

15 Does the current approach to decision making adequately prioritise the safety of children? Why/why not?

16 Are the factors considered as part of the decision making process sufficient to ensure consistency of decision making? Why/why not?

10


WORKING WITH CHILDREN CHECKS How can an adverse WWCC decision be reviewed?

Current positionIf a person is refused a WWCC, a negative notice is issued and the person is provided with reasons why the notice was issued.

A person can apply to the Queensland Civil and Administrative Tribunal (QCAT) for a review of the issue of a negative notice within 28 days. To apply for a review, a person must state the grounds for the review and provide supporting evidence about why the decision is wrong.

The QCAT will consider whether the correct decision was made by conducting a review of all relevant materials and any additional evidence presented by the applicant or Blue Card Services.

The QCAT can confirm the decision to issue a negative notice, set aside the decision so a person is issued with a positive notice or refer the decision back to Blue Card Services. While a review is in progress, the negative notice remains in effect.

Between 1 July 2011 and 30 June 2016, 514 people applied to have a decision reviewed by QCAT after being issued with a negative notice. Approximately 22 per cent of these reviews resulted in the decision to issue a negative notice being upheld. Approximately 25 per cent resulted in a blue card being issued. In approximately 38 per cent of cases the appeal was withdrawn by the applicant9.

A person who has a conviction for a disqualifying offence, or is subject to current reporting obligations or a current prohibition order, disqualification order or sexual offender order cannot apply for a review of an adverse decision.

9 Information provided by Blue Card Services.

Other information


• Adverse WWCC decisions should be able to be appealed to a body independent of the WWCC screening agency except where a person has been convicted of: murder of a child, indecent or sexual assault of a child, child pornography-related offences, or incest where the victim was a child (recommendation 29).

• If a person received a term of imprisonment for any of these convictions, they should be permanently excluded from the appeal process (recommendation 29a).

• If a person is subject to an order that imposes any control on conduct or movement, or excludes the person from working with children, they are to be excluded from an appeal for the duration of the order (recommendation 29b).


QUESTIONS

17 When should a person be able to apply for a review of an adverse decision?

18 Is the current process the most effective way to review adverse decisions? Why/why not?


COMPLIANCE WITH THE BLUE CARD SYSTEMHow is compliance with the blue card system monitored?

Current positionThe Chief Executive of Blue Card Services has a function to audit or monitor compliance with the blue card system. This includes the development and implementation of risk management strategies and compliance with WWCC requirements.

Blue Card Services undertakes proactive monitoring and responds to complaints. The WWC Act does not contain any specific powers to support the compliance function. For example, there is no ability to compel the production of information to inform compliance activities.

In 2015-16, Blue Card Services engaged with over 2,400 regulated businesses and organisations to provide information to help increase compliance with system requirements. It also conducted 386 compliance checks of organisations and 48,512 checks of individuals10.

10 Public Safety Business Agency, Blue Card Services 2016, Annual Report 2015-16, Queensland Government Brisbane.

Other information


• Screening agencies should be granted statutory power to monitor compliance with WWCC laws and these powers should include the ability to compel the production of information for compliance activities (recommendation 32 and 33).


QUESTIONS

19Should there be statutory powers to monitor compliance with the obligations to develop and maintain risk management strategies and undertake WWCC checks? Why/why not?

20 Should there be legislative powers to enable the compulsion of information provision to assist with monitoring compliance? Why/why not?

12


INFORMATION SHARING What information is currently shared?

Current positionA range of information sharing is provided for under the WWC Act:

• Queensland Police Service are permitted to share information with Blue Card Services about a person’s police information, including any changes which occur after a WWCC is issued.

• Blue Card Services can also ask certain Queensland state entities for additional information about a person. These entities include Queensland Corrective Services and the Director of Public Prosecutions.

• There is no general power to otherwise compel the production of information.

• Blue Card Services can share certain information with a person’s employer or other notifiable organisations or entities. The information which can be shared includes:

– decisions about whether a positive or negative notice has been issued or when an application has been withdrawn

– if there is a change in the blue card status (cancellations or suspensions)

– if the person has had a change in police information that is relevant to child-related employment.

The sharing of information about a person’s criminal history information is otherwise strictly prohibited unless the person has consented to the information being shared or it is specifically authorised by law (section 384 of the WWC Act).

Information other than criminal history information can be shared in certain circumstances, for example, for a purpose directly related to a child’s protection or welfare.

There is no general ability to share information with other relevant regulatory agencies or other jurisdictions.

Other information


• There is support for a nationally consistent approach to WWCCs, which includes a centralised database of WWCC outcomes to facilitate information sharing between jurisdictions (recommendation 3a).

National Framework for Protecting Australia’s Children 2009-2020: Third Action Plan

• Commonwealth, State and Territory Governments and non-government agencies need to address barriers to information sharing where there are concerns about child wellbeing (Action Area 3.2).

• A best practice model of information exchange to be developed by sharing existing jurisdictional approaches (Signature Action 3.2.1).


QUESTIONS

21 Is the scope of information sharing adequate to protect children? Why/why not?

22 How could information sharing be improved to better inform the WWCC process?

23 Should information be able to be shared with other jurisdictions? If so, what information?


OFFENCES AND PENALTIESWhat are the current offences for not complying with the blue card system?

Current positionThere are a range of penalties for not complying with obligations under the WWC Act, including:

Disqualified persons

Obligations and penalities Maximum penalty

A disqualified person must not sign an application or apply for, or start or continue in, regulated employment or a regulated business.

500 penalty units or 5 years imprisonment

Notification - change to police information


A volunteer or paid employee and a person carrying on a regulated business must immediately notify the relevant entity or person of any change in their police information.

100 penalty units

Conviction for a serious offence or charge for a disqualifying offence


A person must not apply for, start or continue in regulated employment or a business:

if convicted of a serious offence, until a further blue card is issued; or500 penalty units or 5 years imprisonment

if, after applying for a blue card, they are charged with a disqualifying offence500 penalty units or 5 years imprisonment

if their blue card has been suspended due to a conviction for a serious offence, a charge for a disqualifying offence, or a temporary offender prohibition order or interim sexual offernder order to which they are subject.


Risk Mangement Strategy


An employer who employs people in regulated employment must develop and implement a risk management strategy, as required by the WWC Act. The strategy must be revieved annually.

20 penalty units

Other


A person must not make false or misleading statements to a proposed employer or to the Chief Executive of Blue Card Services.


Other information


• Offences should be consistent and simplified across jurisdictions, including offences related to engaging in child-related work without a WWCC; engaging a person in child-related work without a WWCC; providing false/ misleading information; failures to notify screening agencies of changes in circumstances; and unauthorised disclosure of information gathered during a WWCC.


QUESTIONS

24 Are the current obligations and penalties under the WWC Act sufficient to create safe environments for children? Why/ why not?

14


CHILD-SAFE ORGANISATIONSHow are organisations supported to create safe service environments?

Current positionOrganisations are currently given access to a range of materials and training to assist them in developing and implementing a child and youth risk management strategy, including a blue card register. There is a toolkit and online videos available to provide guidance on the eight minimum requirements and the creation of child-safe environments.

Blue Card Services may request, but not compel, a copy of the strategy, a self-assessment checklist and/or the register in response to a complaint or as part of a proactive audit.

An organisation provides a copy of the relevant documents via mail or email. Blue Card Services may provide advice in relation to how the strategy can be improved and what action, if any, needs to be taken in relation to individuals listed in a blue card register to ensure compliance with WWCC obligations.

While the Working with Children (Risk Management and Screening) Regulation 2011 outlines matters for inclusion in the strategy, there is currently no legislative standard against which to benchmark the strategy.

Organisations are advised via mail of the outcomes of a WWCC application or any relevant changes. Some larger organisations receive this information through an electronic spreadsheet. Organisations implement appropriate records management systems in relation to compliance with the blue card system.

Other information

Findings of the Queensland Child Protection Commission of Inquiry final report

• Red-tape reduction should be considered by streamlining the blue card system.

STREAMLINING THE SYSTEM

QUESTIONS

25 Can organisations be better supported to create child-safe organisations? If so, how?

26 Can parents and communities be better supported in choosing child-safe organisations for their children? If so, how?

27 Are there opportunities to streamline processes associated with risk management strategies? If so, how?


WORKING WITH CHILDREN CHECKSWhat is the current application process?

Current positionThe following information outlines a number of the key features of the application process for a WWCC in Queensland:

Application form is completed

• There is no online application process. A paper form must be completed.

Identity is verified by the organisation

• The organisation is responsible for verifying the identification documents and the signature of the applicant to be printed on the card.

• There are alternative identification processes if an individual cannot meet the standard identification requirements.

• In Queensland, the person is provided with a physical plastic card, which includes the person’s name and signature but does not include a photo of the individual blue card holder.

Application is submitted by the organisation

• An individual cannot apply unless they are engaged by an organisation or proposing to carry on a regulated business.

Processing times for WWCC applications will vary depending on whether there is assessable information that needs to be requested from other government or interstate agencies.

Other information


• An online application processing system should be implemented for WWCCs (recommendation 26).

• WWCCs should be processed within five working days, and no longer than 21 working days for more complex cases (recommendation 27).


QUESTIONS

28 Should an online application process be implemented? Are there any implications for particular communities or individuals?

29 Should an individual be able to apply without being linked with an organisation? Why/why not?

30 Should there continue to be a physical card? Why/why not? If so, should it contain a photo?

16


WORKING WITH CHILDREN CHECKSHow long is a WWCC valid for and how much does it cost?

Current positionA WWCC is current for three years, unless cancelled earlier. A person wanting to renew their WWCC undergoes the same check as a new applicant.

There is a standard fee of $84.25 for WWCC applications, including eligibility declarations and renewals. There is no fee for volunteers and in the 2015/16 financial year, nearly 70 per cent of applications were for unpaid applicants.

A person’s Queensland criminal history is monitored on a daily basis. Ongoing interstate and international criminal history monitoring is not currently available to any state or territory. A person is required to advise Blue Card Services of a change in police information during the validity of the WWCC. The penalty for not advising Blue Card Services of a change in police information is 100 penalty units. If the change relates to a conviction for a serious offence, or a charge or conviction for a disqualifying offence, the penalty increases to 500 penalty units.

Other information


• WWCC should be valid for 5 years (recommendation 31a).

• The fee for a WWCC is linked with renewal period in each state and territory.


QUESTIONS

31 How long should a WWCC be valid for?

32 What are the benefits and risks associated with extending the renewal period?


SUPPORTING ABORIGINAL AND TORRES STRAIT ISLANDER COMMUNITIES

Current positionSince the commencement of the WWC Act, approximately 3 per cent of all blue and exemption cards have been issued to applicants who identified as Aboriginal and Torres Strait Islander11.

An analysis of data for the 2015-16 period in a sample of nine identified Aboriginal and Torres Strait Islander communities demonstrates that 71.6 per cent of applicants received a blue card and only a small percentage of applicants received a negative notice (2.8 per cent)12.

This also demonstrates there is a significant proportion of applications withdrawn during the application process (approximately 17.8 per cent).

The data is supported by feedback received during consultation with Aboriginal and Torres Strait Islander communities, which has identified a number of key challenges relating to the blue card system:

• Proof of identity

– meeting the current standard identification requirements can be difficult for some Aboriginal and Torres Strait Islander people.

11 Information provided by Blue Card Services. This includes all applications, including renewals.12 Information received from Blue Card Services.

• Application and assessment process

– the remote locations of some communities can result in difficulties in accessing correspondence related to a blue card application which is sent via post

– the formal written nature of the application and assessment process can be challenging for Aboriginal and Torres Strait Islander people and can result in disengagement with the process

– the current review process presents challenges for Aboriginal and Torres Strait Islander people

– there is no current requirement for cultural considerations to form part of the assessment process, which can result in some Aboriginal and Torres Strait Islander people disengaging from the process.

• Need for greater support

– there is a misconception that any criminal history will exclude a person from being eligible for a blue card, which can result in Aboriginal and Torres Strait Islander people not applying for a blue card.

COMMUNITY PARTICIPATION AND SUPPORT

QUESTIONS

33 What are the issues affecting Aboriginal and Torres Strait Islander communities’ participation in the blue card system?

34 How can Aboriginal and Torres Strait Islander communities be better supported to participate in the blue card system?

35 Does the current approach adequately enable cultural considerations to form part of the decision making process? Why/why not?

18


BUILDING PUBLIC CONFIDENCE IN THE SYSTEMWhat mechanisms are there for oversight and review of the system?

Current positionThe WWC Act does not currently require a review of the operation of the blue card system. The last holistic review of the blue card system occurred in 2005 to comply with the requirement for a statutory review of the operation of the WWC Act five years after introduction in 2000.

There have been regular reforms to the blue card system since the introduction of the WWC Act. These reforms have continued to increase safeguards in child-related environments.

The Chief Executive of Blue Card Services is required to report on certain matters and may provide a report to the Minister in relation to the administration of the WWC Act. There is no current requirement for regular public reporting in relation to the operation of the system. However, potential exists to publish data to, for example, show which service environments represent the greatest risk to children. This could then be used as an evidence base to inform risk management approaches.

COMMUNITY PARTICIPATION AND SUPPORT

QUESTIONS

36 Should the WWC Act contain provisions requiring regular review and reporting requirements? Why/ why not?

37 How can stakeholders be more involved in the oversight of the system?

38 Should more data and information about the blue card system be reported? If so, what data and information?


Assessable information

Means police information or disciplinary information

Disciplinary information

Means information received by the Chief Executive of Blue Card Services from professional organisations about relevant disciplinary action.

For example, the Chief Executive of Child Safety Services can take disciplinary action against a foster carer by amending, suspending or cancelling a person’s carer certificate.

Disqualification order

Means a disqualification order under the Child Protection (Offender Prohibition Order) Act 2008, or a disqualification order under section 357 of the WWC Act which prohibits a person from holding, or applying for, a positive notice or exemption notice.

Disqualified person

Means a person who:

• has been or is convicted of a disqualifying offence; or

• is subject to:

– offender reporting obligations; or

– an offender prohibition order; or

– a disqualification order; or

– a sexual offender order.

See section 169 of the WWC Act

Disqualifying offence

Includes:

• a range of offences of a sexual nature,

• child pornography offences; and

• murder of a child.

See section 168 of the WWC Act.

Frequency test

Means:

• at least eight consecutive days; or

• at least once a week for each week during a period of four weeks; or

• at least once a fortnight for each fortnight during a period of eight weeks; or

• at least once a month for each month during a period of six months.

Guidelines

Guidelines for dealing with information obtained under Chapter 8 of the WWC Act are published.

The guidelines can be accessed at https://www.bluecard.qld.gov.au/pdf/infosheets/Guidelines-for-dealing-with-information-BCS-website.pdf

Investigative information

Means information that the Police Commissioner may provide in relation to police investigations into allegations of serious child-related sexual offences, even if no charges were laid (see section 305 of the WWC Act).

Negative notice

Means a notice declaring a blue card application has been refused (see section 220(b) of the WWC Act).

Penalty unit

The penalty unit value in Queensland is $121.90 (current from 1 July 2016). The maximum penalty under the WWC Act is calculated by multiplying this amount by the number of penalty units for the offence.

Police information

Means any of the following:

• criminal history

• investigative information

• whether the person is or has been a relevant disqualified person, the subject of an application for a disqualification order, or named as the respondent to an application for an offender prohibition order.

See schedule 7 of the WWC Act.

Positive notice

Means a notice declaring an application to be approved (see section 220(b)).

Prohibition order

Means an offender prohibition order under the Child Protection (Offender Prohibition Order) Act 2008.

GLOSSARY

20


https://www.bluecard.qld.gov.au/pdf/infosheets/Guidelines-for-dealing-with-information-BCS-website.pdf



Relevant disqualified person

Means a person who:

• has been convicted of a disqualifying offence and sentenced to imprisonment (including wholly or partially suspended sentences or intensive correction orders); or

• is subject to a child protection offender prohibition order; or

• is subject to a disqualification order made by a Court; or

• is a reportable offender with current reporting obligations; or

• is subject to a sexual offender order.


Reporting obligations

Means reporting obligations under the Child Protection (Offender Reporting) Act 2004.

Serious offence

Means:

• a range of offences of a sexual or violent nature, including expired or repealed offences and offences that have been amended, which were committed in Queensland or interstate;

• child pornography offences; and

• offences of counselling, procuring the commission of, or attempting or conspiring to commit, one of those offences.


Sexual offender order

Means a division 3 order, interim order or interim supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003.

Submission

Means information provided by a person who may be adversely affected by a decision. An applicant will be given the opportunity to participate in the decision making process through the submission process if it is proposed that a negative notice will be issued. An applicant should address all the information provided to them by Blue Card Services. Applicants can also include any other information or material relevant to the assessment process.


review of the blue card system - qfcc · guiding principles for the review the following principles...

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