Applying to QCAT for review of a Disability Worker Screening Clearance decision

The Queensland Civil and Administrative Tribunal (QCAT) can review certain decisions made under the Disability Services Act 2006 (Qld) (DS Act).

This factsheet is written for persons who are unfamiliar with that legislation.

Disability Worker Screening

  • The Department of Child Safety, Seniors and Disability Services (Disability Services) is a public service unit responsible for regulating the issue of Disability Worker Screening Clearances (DWS Clearances), which are mandatory for people employed or volunteering in certain positions that involve working with people with disability.
  • Under the DS Act, DWS Clearances are issued to eligible persons working or volunteering in regulated areas, including services provided by Disability Services, funded non-government service providers or NDIS non-government service providers.
  • When Disability Services receives a DWS Clearance application, Disability Services must either issue a positive notice (granting DWS Clearance) or an exclusion (refusing to grant DWS Clearance) (sections 89 and 90 of the DS Act).
  • In some cases, Disability Services must issue a positive notice unless the case is exceptional (section 92 of the DS Act). For example, this may occur if a person has been convicted of an offence that is not a serious offence (as defined in Schedule 2 of the Disability Services Regulation 2017 (Qld)).
  • In other cases, Disability Services must issue an exclusion unless the case is exceptional (section 91 of the DS Act). For example, this may occur if a person has been convicted of a serious offence, is subject to a temporary offender prohibition order or an interim sexual offender order.
  • Disability Services can impose an interim bar on an applicant when they apply for a disability screening clearance if they have been charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The applicant will receive a notice that states the interim bar is imposed, the reasons for imposing the interim bar and the effect of the interim bar (sections 81 to 85 of the DS Act).
  • Disability Services can also suspend a clearance if a person who holds a clearance is charged with a disqualifying offence that has not been dealt with and they were an adult when the offence is alleged to have been committed. The person will receive a suspension notice that states the person’s clearance is suspended, the reasons for the suspension, how long the suspension will continue and the effect of the suspension.
  • All of the decisions described above are decisions that can be reviewed (sections 138ZR to 138ZY of the DS Act).

Who can apply for review?

  • A person dissatisfied with a reviewable decision may apply for review. The review process includes:
      1. An internal review undertaken by an independent, senior officer from Disability Services. Disability Services must notify the applicant of the outcome within 28 days of receiving the application (Disability Services may extend this time by a further 28 days).
      2. If a person remains dissatisfied with the outcome of the internal review, external review may be sought through QCAT. A QCAT review may only occur after an internal review has taken place.
  • A disqualified person cannot apply to have the decision reviewed. The only exception to this is in the case of mistaken identity (see full list of disqualifying offences in Schedule 2 Disability Services Regulation 2017 (Qld)). If a person becomes disqualified during the internal or QCAT review process, the review application must be dismissed.

Applying to QCAT for review of a Disability Worker Screening Clearance decision

  • The person who wants the decision reviewed by QCAT (the applicant) must complete a QCAT Form 23 – Application to review a decision. A copy of the decision and reasons must also be provided to QCAT with the Form 23;
  • The applicant must file two (2) copies with QCAT. QCAT will return one of the copies, which must then be served on (given to) Disability Services;
  • There is a filing fee for review of a Disability Services decision in QCAT and for filing an application for leave to appeal/appeal. QCAT’s filing fees can be found online.
  • A fee waiver or reduction may be available in circumstances of financial hardship.

Costs

  • Generally in QCAT, parties bear their own costs however in certain circumstances, a cost order may be made.
  • For information about costs orders, refer to the Costs in QCAT factsheet on the LawRight website.

What is the limitation period to apply to QCAT?

  • A limitation period is a length of time within which legal action must begin. 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 DWS Clearance decision must file a review application in QCAT within 28 days from the day the person receives notice of the decision (section 138ZW of the DS Act and section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)).
  • QCAT may grant an extension of time for a person to file a review application in exceptional circumstances (section 61 of the QCAT Act).

QCAT review of Disability Worker Screening related decisions

  • QCAT decides review applications by way of a fresh hearing (section 20 of the QCAT Act). This means that the Tribunal can consider new evidence which was not before the original decision-maker.
  • The principal consideration QCAT must apply under the law is that people with a disability have the right to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation (section 41 of the DS Act).
  • This means that the right of people with disability to be protected from risk of harm is given more importance than the impact not having a DWS Clearance may have on the applicant.
  • QCAT applies the law set out in the DS Act. For example, if QCAT is reviewing a decision to cancel a DWS Clearance because a person’s police information has changed, QCAT must consider the matters set out in subdivision 3 of the DS Act). This includes:
  • 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 Disability Services made the correct decision in assessing the risk of harm to people with disability if a DWS Clearance is granted to a person, based on the merits of each case (section 19 of the QCAT Act).

Risk and protective factors

  • Each case is different. QCAT considers many factors to decide if a risk of harm to people with disability is likely to materialise if a DWS Clearance is granted to a person. These 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 people with disability;
  • 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 DWS Clearance if that would expose people with disability to an unacceptable risk of harm.

QCAT pre-hearing process

  • When QCAT receives a valid application seeking review of a DWS Clearance decision (QCAT Form 23), QCAT will make directions.
  • Within 28 days from receiving a copy of the review application, Disability Services must file in QCAT a written statement with reasons for the decision (section 21 of the QCAT Act).
  • Disability Service’s statement of reasons includes all documents and information that Disability Services used to make its decision, including for example, information received from the police or disciplinary information.
  • 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 Disability Service decision until a review application is decided (section 109 of the DS Act). This means that the filing of a review application in QCAT does not affect the operation of the decision of Disability Service.

QCAT hearing

  • The hearing of a DWS Clearance review application is held in public, unless a specific order is sought and granted by QCAT.
  • The parties present at a hearing are usually the applicant, a representative from Disability Services, lawyers if the parties are legally represented, support persons and witnesses while they give evidence.
  • QCAT decisions involving 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.

Post hearing process

  • QCAT may decide a review application at the hearing or deliver its decision at a later date.
  • When deciding the application, QCAT may either:
  • Confirm or amend the exclusion;
  • Set aside the decision and make a substitute decision; or
  • Set aside the decision and return the matter to the Department for reconsideration.
  • If QCAT grants a review application, the applicant must liaise with Disability Services to have a DWS Clearance issued. A QCAT decision to grant a review application does not automatically issue a person’s DWS Clearance.

Appeals

  • 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 reasons for a QCAT decision within 14 days from the decision taking effect (section 122 of the QCAT Act). A decision generally takes effect on the date it is made, unless QCAT provides otherwise.
  • For more information, refer to the Appealing a QCAT decision factsheet on the LawRight website.

Other resources

  • QCAT decisions about DWS Clearance review proceedings are published by the Queensland Supreme Court Library and can be found here.

This resource is current as of 21 February 2024