Proposed changes to Blue Card laws: Are they necessary?
I have previously written about endemic problems with the current Blue Card system in my blog Blue Card laws: Is ‘exceptional the new normal’? (access here).
In that article I challenged Blue Card Services’ (BCS) use of the ‘exceptional case’ provision under section 221(2) of the Working with Children (Risk Management and Screening) Act (‘the Act’) and posited that the frequency this subsection was relied on by BCS was at odds with its plain reading.
Currently the Child Protection Reform and Other Legislation Amendment Bill is under consideration by Parliament. Amongst other aims, it seeks to further broaden the ‘information’ that BCS might access when assessing those who wish to work, or volunteer with, children.
It is of course important, at the outset, to state the obvious – children need protection as they are inherently vulnerable. There is no question that those convicted of offending against children should either be refused Blue Cards or, at very least, have their applications come under intense scrutiny. My concern is not with these most necessary of screening powers. This article is concerned with the ever expanding pool of ‘information’ upon which BCS may rely on to refuse an application for a Blue Card for people who haven’t been charged with, or convicted of, offences relating to children.
Firstly we should recognise the devastating impact that a refusal of a Blue Card can have on an applicant’s employment prospects.
Imagine an applicant who has some past indiscretions which, even if objectively serious, did not involve, either directly or indirectly, any harm coming to a child or a child being exposed to any harm.
The applicant progresses through tertiary studies and plans to be a high school teacher. They reach the practical component of their study and require a Blue Card. The legislation, as it currently stands, presumes they should receive a Blue Card. They apply for the Blue Card. That application is refused on the basis of their case being deemed ‘exceptional’. If they accept that decision they cannot re-apply for a Blue Card for 2 years. Their entire academic progress is halted, they cannot complete their degree and they have accumulated a large HECS debt for a course of study which ultimately results in no avenue of employment.
Even if the Applicant appeals the BCS ‘exceptional’ determination they face a 12-18 month delay before the appeal is heard at QCAT. Throughout that period BCS do not reconsider their position. Upon receipt of a psychological report which suggests no discernible risk to children, BCS do not make a mea culpa and issue the Blue Card. BCS stays the course. They justify their position by reference to their remit – “how can we ever be wrong if we aim to protect children?” They have a team of lawyers ready to defeat the largely self-represented pool of litigants who can be bothered sticking it out through a concerningly long appeal process. The house doesn’t always win but the odds are stacked in their favour.
All of this is to say that the system, as it currently stands, is already hopelessly slanted against anyone with some form of adverse ‘information’ – I pause to note this doesn’t even mean they have been found guilty of any offence.
You might think against such a backdrop that the current Bill might seek to redress these systemic inequalities. Unfortunately, it does quite the opposite.
The Bill proposes (amongst other things) to amend s221 of the Act. This is the same section already being tortured by BCS (discussed in my previous post). The new section allows BCS to have regard to ‘domestic violence information’. So what is domestic violence information?
Domestic violence information, about a person, means information about the history of domestic violence orders made, or police protection notices issued, against the person under the Domestic and Family Violence Protection Act 2012.
That might sound like reasonable information to be assessed for those not familiar with working within the DV sphere. For those who are, it is easy to recognise the potential misuse of this ‘information’.
Why the concern?
There are many reasons why this information should not be part of BCS’ assessment, I will try and enumerate the most important of them:
1) ‘Domestic Violence Orders’
You get the impression, at first glance, that this would allow BCS access to information relating to final protection orders made either by consent of the Respondent or after a contested hearing. That impression would be erroneous. BCS would be granted information on any order, even a Temporary Protection Order (TPO).
Any practitioner who works in this space is aware that TPOs are made in perhaps over 90% of domestic violence applications. That effectively means that the vast majority of Respondents to a domestic violence application would have this information provided to BCS, even though no final protection order has been made, nor the merits of the application determined.
The legislative test for the making of a TPO is less onerous than the making of a final protection order.[i] Moreover, the making of a TPO often has no bearing on whether a final order is made. A TPO is most commonly made at the commencement of an application (often ex parte) and on the basis of what is in the application. There is no proper scrutiny of the merits of the application, other than to ensure it discloses a relevant relationship and some claim of domestic violence.[ii] The Courts can be forgiven for erring on the side of making a TPO, particularly when a matter might take 12+ months to reach a final hearing and tensions are high between the parties in the wake of the filing of the application.
So what are in these applications that BCS will gain access to? Most applications contain legitimate claims of domestic violence and merit a TPO. Many applications might contain allegations of domestic violence which have no nexus with a child, i.e. no child is harmed or exposed to domestic violence. Some applications contain patently untrue or exaggerated allegations, quite often included to further family law aims. The current Bill doesn’t discriminate between these types of applications. All material within an application (and related affidavits) would be fair game to BCS.
Can you imagine how a body already notorious for its questionable use of ‘information’ would use this domestic violence information? To suggest BCS are capable of delineating domestic violence generally and domestic violence which might properly impact someone’s ability to work with children is fanciful. BCS have shown time and time again they are willing to refuse applications on the basis of criminal allegations which have led to acquittals! How could they possible be trusted to properly apportion weight to the ‘domestic violence information’ they receive?
- Police Protection Notices (PPNs)
A PPN is a form of initiating process[iii] which also imposes conditions on its recipients. The Police issue a PPN to ensure conditions are in place against a Respondent while the matter awaits a Court date. The PPN then takes the place of an application once the matter is before a Court. As above, this will likely result in the making of a TPO.
The Police are under understandable pressure to act on any claim of domestic violence. They must err on the side of caution and issue a PPN where they feel there is a risk that an Aggrieved will be subject to domestic violence. However, to suggest that the issuing of a PPN can be used as some sort of indicator as to the strength of a domestic violence application is misguided. While one would hope a PPN is framed in a slightly more objective fashion than a self-represented application, its inherent reliance on the (typically oral) version of one party over another makes it probative value slight.
What concerns me is how BCS will use the veneer of objectivity associated with a PPN to ground an exceptional case. The reasoning would no doubt be “Police deemed it necessary to impose a PPN so the allegations within it must be true”. This isn’t a criticism of Police. They are not flies on the wall observing domestic violence incidents. They must rely on the versions given by Aggrieved. The risk though is that this ‘information’ (I cannot in good conscience call it evidence) is elevated to a degree of probity by BCS that can affect the livelihood of applicants despite it not even having being tested in a proper court process, for example, via cross examination or by an affidavit in response.
There are many, many PPNS which do not result in temporary of final orders. Despite this, under the new law, the mere making of a PPN could be used by BCS to deem a case exceptional.
- The inclusion of children as named persons on TPOs & Protection Orders
Properly considered, a child should not be listed as a named person on a domestic violence order, either a TPO or a final Protection Order, unless there has been evidence presented which suggests the child requires protection from domestic violence or being exposed to domestic violence.[iv]
The reality is quite different. Children are routinely named on these orders as a type of pre-emptive measure. What self-represented Aggrieved with children will not tick the box ‘do you wish this child to be named on the order?’ on the standard DV application? What Magistrate who hears of serious domestic violence between parents won’t just add the children for ‘peace of mind’ even if the legislative test is not properly addressed? It is entirely understandable why children are named in such circumstances. The issue is how BCS will use this fact.
Frankly I have no confidence that BCS will not simply see that children are named on an order and deem a case exceptional. I have seen them adopt similar reasoning in cases I have worked on already. It provides a simple, if not superficial, nexus to their remit of protecting children. But should it be this simple?
Remember we are not just talking about final orders, the Bill allows for considerations of TPOs, made on an interim basis without the testing of the application to any significant degree. What if there is no evidence a child was impacted by domestic violence but they are named anyway? What if a TPO naming the children is made but a final order is refused? What if children are named in the TPO but not on the final order? What if the Respondent consents to an order naming the children just to save the hassle of coming back to Court over and over again?
In all of the above circumstances it would be difficult to suggest a nexus between the ‘information’ being made available to BCS and the ability for a person to work with children. Do we really have confidence that BCS can make such a distinction?
- The impact on the Domestic Violence Courts
This issue is the great sleeper in this debate and, quite plainly, has not been properly considered by the legislature.
The vast majority of domestic violence applications resolve on a consensual[v], “without prejudice” basis. That is an order is made without the need to find that domestic violence occurred or that an order is necessary or desirable. The reasons for this are varied but include: the strength of the application against the Respondent; their lack of resources; the desire to avoid continued litigation and the knowledge that, save for limited exceptions, no criminal record or other adverse legal consequences flow from the mere making of an order.[vi]
If, however, the making of an order (be it a TPO or final Protection Order) can be used to refuse a Blue Card application it is clear that the incentive to consent to an order (either temporary or final) on a consensual basis is greatly impacted.
A Respondent, properly advised, would contest the making of a TPO and the making of a final order if holding or obtaining a Blue Card was important, or could be important, to their livelihood. This would cause an enormous issue for Domestic Violence Courts already bursting at the seams.
What is the net effect of more contests in the DV arena? Well, it means more cross examination of victims of domestic violence; greater delays in obtaining an order; the prolonging of animus between the parties; an increased outlay in legal fees; more breaches of TPOS (they being in place longer); increased Police work administering TPOs….the list goes on. Do these collateral impacts undermine the overall efficacy of the Bill? Put differently, are the incremental benefits sought by the Bill usurped by the impact on the domestic violence framework?
- Case studies
Sometimes considerations of prospective legislation can be too prosaic to have an impact. Consider the following case studies to illustrate my above concerns:
Case Study A
Lena is dating John. They come home after a night celebrating a wedding. Both are impacted by alcohol. John accuses Lena of infidelity. Lena denies it. John makes domestically violent comments towards Lena. Lena retaliates by throwing her phone at John causing a small scratch. The Police are called. The Police see John’s injury and assess him as the person most in need of protection. They issue a PPN against Lena. The PPN adopts a version more favourable to John as his injuries seem to corroborate his story.
Lena now has relevant ‘domestic violence information’ which allows for BCS to deem her case exceptional and deny her a Blue Card.
Case Study B
Mike and Brad are married. They have two children under the age of 5. Mike has, for a continued period, coercively controlled Brad through various means including via financial control and manipulative behaviour. Mike has resolved to leave Brad. He moved out of the home leaving the children in Brad’s care, albeit he wants to regain custody of them. Mike makes an application for a domestic violence order against Brad. While the children haven’t been exposed to any domestic violence Mike includes them as named persons in his application because he is worried that Brad will lash out against them to get back at him for moving out. The matter comes before court. There are 20 matters before the Magistrate that day. The Magistrate imposes a TPO naming the children. She says that the naming of the children at this stage is precautionary and full consideration will be given to whether they ought to be named on a final order, if one is made.
Brad, who holds a Blue Card, now has ‘domestic violence information’ which BCS say is such that a negative notice should be issued. They reason that the children were named in a domestic violence order and, under the domestic violence legislation, this can only occur when the Court is satisfied that there is a risk that the child will be the victim of, or be exposed to, domestic violence. Brad loses his job as he doesn’t have a Blue Card and his prospects of future employment working with children are evaporate.
Case Study C
Tony and Maria were married but divorced 10 years ago. They share 3 children. Maria has recently commenced a new relationship. Tony is not happy about this and, in a series of increasingly domestically violent text messages to Maria, makes his displeasure known. Maria makes an application for a domestic violence order to prevent Tony from messaging her about anything other than the care of the children. Tony accepts he went too far and, had the old law applied, would have consented to an order on a “without admissions basis” but he is a volunteer firefighter and needs a Blue Card to continue in this role. He is told that the making of a TPO or final order will result in Blue Card being granted access to the Maria’s application and supporting affidavits. He is told this may result in him not being able to be a volunteer fire fighter anymore. Tony uses his life savings to engage a barrister to avoid the making of a TPO and to contest the final hearing. Due to his superior legal representation, Tony avoids the making of a final order despite a finding that he was domestically violent. He continues to be domestically violent towards Maria.
Are the changes required?
BCS’ decision making is only as good as the information it has available to it. The ability for them to consider ‘domestic violence information’ which, for the reasons above, is not always reliable, let alone relevant, to BCS’ remit, will only further disenfranchise those who require a Blue Card for employment, study or volunteer purposes.
Most importantly, the change of the law has the ability to impact the way in which domestic violence proceedings are litigated. As can be seen in Case Study C, this may mean those who might otherwise avail themselves of protection lose out due to the higher stakes placed on the outcome of the application.
The Act already has a ‘catch all’ provision. BCS is allowed to consider ‘other information about the person that the chief executive reasonably believes is relevant’.[vii] Isn’t this sufficient?
The law as currently applied by BCS affords children the broadest of protection. For reasons expounded in both this and my previous post on the issue, if any change was needed to the current law it was to redress the contorted lens BCS was using to find an ‘exceptional case’.
To push the law in the opposite direction would afford children little further protection, noting the catch all provision mentioned above; conversely, the new provisions are ripe for exploitation by BCS to expand their already overzealous assessment methods to further limit people from working, studying or volunteering in their field of choice.
Remy Kurz
Solicitor, Accredited Specialist in Criminal Law
4 November 2021
[i] Section 46, Domestic and Family Violence Protection Act (2012) cf s37.
[ii] Ibid.
[iii] Section 112 Domestic and Family Violence Protection Act (2012)
[iv] Section 53 Domestic and Family Violence Protection Act (2012)
[v] Section 51 Domestic and Family Violence Protection Act (2012)
[vi] Obviously the breach of an order is different and the Respondent is also prohibited from holding a weapons licence.
[vii] Section 221(1)(d)