Yellow card – change in police information or risk assessment matter
If you hold a yellow card, you have obligations to disclose certain information to the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (‘Department’). The Department is governed by the Disability Services Act 2006 (Qld) and other related legislation (‘Act’).
This article will not discuss all the information that a person with a yellow card must disclose, and will only address a yellow card holder’s obligation to disclose a change in police information or risk assessment matter.
If there is information that could be or is relevant to disclose to the Department in relation to a change of police information or risk assessment, it is important to seek independent legal advice as soon as possible. Depending on the nature of the information disclosed, a person’s yellow card may be reassessed, suspended or cancelled.
This article is general in nature and should not be relied upon as legal advice. If you are seeking legal advice, you can call us on 07 5532 3133 to speak with one of our firm’s litigation lawyers who can assist you with your yellow card matter.
Obligation to disclose change in information relating to police information and risk assessment matters
Under sections 104 (1) and (2) of the Act, a person who holds a yellow card must immediately submit a ‘Change in Police Information or Risk Assessment Matter’ Form with the Department.
Those sections of the Act state:
104 Clearance holder to notify change in other information
(1) A person who holds a clearance must immediately give the chief executive a notice, in the approved form and in an approved way, if the person becomes aware that—
(a) the police information about the person changes; or
(b) a risk assessment matter relating to the person changes.
Maximum penalty—100 penalty units.
(2) For subsection (1), the police information about a person changes if a criminal history event happens in relation to the person.
The Department publishes the approved form to make this disclosure. A copy of the form can be accessed using the following link: https://workerscreening.dsdsatsip.qld.gov.au/resources/workerscreening/form-adv-chng-police-risk.pdf
What constitutes police information?
The definition of police information is wide under the Act. Generally, a person who holds a yellow card must disclose the following police information:
- A person who is charged in Queensland or elsewhere at any time;
- A person who is convicted in Queensland or elsewhere at any time;
- The police commissioner decides that information relating to the person constitutes ‘investigative information’ under the Act;
- A person who is subject to offender reporting obligations, offender prohibition order or an offender prohibition disqualification order;
- A person who is named as the respondent to, or is the subject of, an application for an offender prohibition order;
- A person who is charged with contravening a domestic violence order.
What constitutes a risk assessment matter?
The definition of risk assessment matter is defined under the Act as a matter that is or may be relevant to whether the person poses a risk of harm to people with disability and is prescribed by regulation to be a risk assessment matter.
The relevant regulation being the Disability Services Regulation 2017 (Qld). Regulation 11(1) defines a risk assessment matter as:
(a) a disability worker screening application or corresponding interstate application made by the person was refused;
(b) a working with children check application or corresponding interstate application made by the person was refused;
(c) a clearance or interstate clearance held by the person was cancelled and an exclusion or interstate exclusion was issued to the person;
(d) a working with children clearance or interstate WWC authority held by the person was cancelled and a negative notice was issued to the person;
(e) the person is the subject of a workplace investigation about the person’s alleged conduct that includes—
(i) assault or violent behaviour; or
(ii) inappropriate sexual behaviour; or
(iii) fraud, deceit or theft; or
(iv) failing to provide appropriate care for a vulnerable person in the person’s care;
(f) the person is or was the subject of an investigation by a government entity and, as a result of the investigation, the person becomes subject to a condition or restriction in relation to having contact with a child;
(g) disciplinary action is taken against the person;
(h) a domestic violence order is made against the person.
Importantly, the definition of risk assessment matter is wide and isn’t necessarily restricted to what is defined in the regulation.
It is therefore critical that if you have concerns about whether you have a disclosure obligation to the Department in relation to your yellow card you seek independent legal advice as soon as possible, even if one of the risk assessment matters does not apply to you.
What may happen after disclosing police information or a risk assessment matter to the Department?
Depending on the nature of the matter, a person’s yellow card may be cancelled, suspended or conduct a risk assessment to reassess the person’s suitability to hold a yellow card.
In most cases, the Department will provide an opportunity for the person who holds a yellow card to ‘show cause’, which is an opportunity for the person to demonstrate why they are a suitable person to continue holding a yellow card.
Factors that the Department must consider when conducting a risk assessment
Section 94 of the Act sets out matters that must be considered, namely:
(2) The chief executive must consider the following matters—
(a) the nature, gravity and circumstances of the person’s offending conduct;
(b) how the person’s offending conduct is relevant to disability work;
(c) how long ago the person’s offending conduct occurred;
(d) if the person’s offending conduct was committed against another person (the victim)—
(i) the victim’s vulnerability at the time of the conduct; and
(ii) the person’s relationship to, or position of authority over, the victim at the time of the conduct;
(e) whether the person’s offending conduct indicates a pattern of concerning behaviour;
(f) the person’s conduct since the offending conduct;
(g) any other circumstances relevant to the person’s offending conduct.
Responding to a risk assessment or corresponding with the Department
Responding to a risk assessment or corresponding with the Department should be taken with the utmost seriousness. The Department is the gatekeeper to a person’s yellow card and losing a yellow card may have detrimental impacts on the person’s livelihood.
Engaging a lawyer to assist with responding to a risk assessment or corresponding with the Department can greatly improve your chances of remaining a suitable person to hold a yellow card.
Failing to disclose a change in police information or risk assessment could mean that a penalty may be imposed on a person with a yellow card, and could also increase the chances of the Department taking away a person’s yellow card.
As the Department is the gatekeeper to a person’s yellow card, it is important to take any concerns raised by the Department with the utmost seriousness and to act swiftly.
If you are in this position, you can call us on 07 5532 3133 to speak with one of our firm’s civil litigation lawyers who can assist you with your yellow card matter.