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. 1. 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

GAA – Guardianship and Administration toolkit

This fact sheet is part of a set of fact sheets about guardianship, administration and other substituted decision making in relation to adults with impaired capacity. It does not relate to decision making for children and minors. The fact sheets are written for Queensland persons who are unfamiliar with guardianship and administration laws in this jurisdiction.

The fact sheets in this series are:

GAA – Purpose of Act and general principles

GAA – Types of substituted decision making

GAA – Capacity

GAA – Functions and powers of the Tribunal

GAA – Application for appointment of a Guardian or Administrator

GAA – Duties of appointees and remedies in case of breach

GAA – End of appointment

GAA – Review of appointment

What is guardianship and administration?

Guardianship and administration refers to the mechanisms which apply when an adult can no longer make decisions for themselves because they have lost the capacity to do so (see GAA – Capacity fact sheet).

In those circumstances another person may be authorised to act on the Adult’s behalf under the Guardianship and Administration Act 2000 (Qld) (GAA Act)or the Powers of Attorney Act 1998 (Qld) (POA Act). This may be:

• On an informal basis by members of the Adult’s existing support network (whose decision may then be ratified or approved by the Queensland Civil and Administrative Tribunal under s154 of the GAA Act);
• By the appointment of a Guardian or Administrator by the Queensland Civil and Administrative Tribunal under the GAA Act;
• By an appointment made by the Adult under an enduring power of attorney or advance health directive under the POA Act;
• By a statutory health attorney under the POA Act; or
• By the Supreme Court of Queensland.

Substituted decision-making also occurs under the Mental Health Act 2016 (Qld), in relation to medical treatment for mental illness, and under the Uniform Civil Procedure Rules 1999 (Qld), in relation to people involved in civil legal proceedings.

The focus of the guardianship and administration regime is on adults, not children, although there are provisions under the GAA Act for children regarding sterilisation.

Relevant Queensland legislation

Guardianship and Administration Act 2000 (Qld)

This Act is focused on adults with impaired capacity. It seeks to strike a balance between an adult’s autonomy in decision making and an adult’s right to adequate and appropriate support for decision making.

Public Guardian Act 2014 (Qld)

This Act establishes the Public Guardian, an agency to promote and protect the rights and interests of adults with impaired capacity, as well as certain children. It is to be read in conjunction with the Guardianship and Administration Act 2000.

Powers of Attorney Act 1998 (Qld)

This Act relates to substituted decision making under powers of attorney, enduring powers of attorney, advance health directives and by statutory health attorneys. It is to be read in conjunction with the Guardianship and Administration Act 2000.

Disability Services Act 2006 (Qld)

This Act concerns the rights of people with a disability and the services provided to aid their health and wellbeing. A funded service provider who is providing services to an adult with an intellectual or cognitive disability may be authorised by the Queensland Civil and Administrative Tribunal (QCAT) to contain, seclude, restrain or restrict access to the Adult (restrictive practices).

Public Trustee Act 1978 (Qld)

This Act establishes the office of the Public Trustee who may be appointed by the Tribunal as administrator for Adult’s financial matters.

Mental Health Act 2016 (Qld)

This Act may authorise the involuntary assessment and treatment of a person with a mental illness, to the exclusion of substituted decision making under the Guardianship and Administration Act 2000, the Public Guardian Act 2014 or the Powers of Attorney Act 1998.

Trusts Act 1973 (Qld)

This Act regulates the functions and powers of trustees, including the Public Trustee, and provides the standard for authorised investments by administrators appointed under the Guardianship and Administration Act 2000.

Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (formerly the Residential Services (Accommodation) Act 2002)

This Act regulates the giving of a notice under a rooming accommodation agreement to a person with impaired capacity for financial matters or limited capacity to manage their own affairs.

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

This Act establishes QCAT which has jurisdiction to make decisions in relation to people with impaired capacity, such as the appointment of a guardian under the GAA Act.

This legislation can be accessed here.

Principal government entities

The principal government entities are:

• The Public Guardian, established under the Public Guardian Act 2014 (Qld);
• The Public Trustee of Queensland, established under the Public Trustee Act 1978 (Qld);
• The Public Advocate (the systemic advocate for people with impaired capacity), established by the Guardianship and Administration Act 2000;
• The Queensland Civil and Administrative Tribunal, established under the Queensland Civil and Administrative Tribunal Act 2009.

The Queensland Civil and Administrative Tribunal

From 1 December 2009, all matters under the Guardianship and Administration Act 2000 (GAA Act) are heard by the Queensland Civil and Administrative Tribunal (QCAT).

The Tribunal’s functions and powers include the appointment of substitute decision makers for adults with impaired capacity where informal supports no longer work.

See GAA – Functions and powers of the Tribunal fact sheet for more information.

Key principles

• Any person or other entity that performs a function or exercises a power under the GAA Act in relation to an adult with impaired capacity must apply the general principles.
• If the matter relates to a health matter or special health matter, then the person or other entity must apply both the general principles and the health care principle.
• It is important when applying the GAA Act to always keep in mind the purpose of the Act.

The General Principles, the Health Care Principle and the purpose of the Act are set out in full in our GAA – Purpose of Act and general principles factsheet.

Further information

The QCAT website is an excellent source of information, and includes an outline of the Tribunal’s procedures and forms.

The Tribunal has also prepared a list (by subject category) of cases published on Austlii that best represents the law and procedures of the Tribunal.

Legislation is available here.

The Guardianship section of the Department of Justice and Attorney-General website may also be of assistance.

This resource is current as of 30 June 2023

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.