Yellow Card eligibility process

All providers of prescribed disability services must comply with the Act regarding criminal history screening.

Section 41 of the Act states that the paramount consideration in making a decision about a Yellow Card application is the safety of people with a disability. In particular, this includes the right of people with a disability to live lives free from abuse, neglect or exploitation.

To apply for a Yellow Card, a person must be made in the ‘approved form’ and must be accompanied by the prescribed fee for considering such an application.[1] Once an application is made, the chief executive may either issue the person a ‘clearance’ or an ‘exclusion’. A clearance means that the person is eligible for a Yellow Card, whereas an exclusion means that a person is not eligible for one.

When deciding an application for a Yellow Card, the chief executive must consider each of the following types of information for a person including:—

(a) police information;

(b) domestic violence information;

(c) disciplinary information;

(d) NDIS disciplinary or misconduct information;

(e) information about—

(i) whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or

(ii) if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled.[2]

They also have the broad discretion to consider any other information about the person that is relevant to whether the person poses a risk of harm to people with disability.[3]

Most commonly, people often have police or domestic violence information that they need to disclose. Police information is defined as:

(a) the person’s criminal history;

(b) investigative information about the person;

(c) information about whether the person is or has been—

(i) subject to offender reporting obligations; or

(ii) subject to an offender prohibition order or offender prohibition disqualification order; or

(iii) named as the respondent to an application for an offender prohibition order; or

(iv) the subject of an application for an offender prohibition disqualification order.[4]

Domestic violence information is defined as information about the history of domestic violence orders made against the person under the Domestic and Family Violence Protection Act 2012 (Qld).[5]

There is a presumption that in the absence of any disclosable information discussed above, the chief executive must issue such a person with a clearance.[6]

However, if a person has been convicted or charged with certain offences, they may not necessarily be issued a clearance.[7] There are three situations in which this may occur:

  1. Conviction for a serious offence or charge for a disqualifying offence

If a person has a conviction for a serious offence or the person has previously been charged with a disqualifying offence or serious offence, then the chief executive must issue an exclusion.[8] However, the chief executive still has the discretion to issue a clearance if they are satisfied that there are exceptional circumstances to show that the person does not pose an unacceptable risk of harm to people with disability.[9]

When coming to such a decision, a risk assessment of the person must be conducted,[10] which looks to factors such as:

  • the nature, gravity and circumstances of the person’s offending conduct,
  • how the person’s offending conduct is relevant to disability work and
  • how long ago the person’s offending conduct occurred to help aid the risk assessment process.[11]

Importantly, if a person’s application is being considered under the risk assessment avenue discussed above, the chief executive must give that person a ‘show cause’ notice that essentially allows them to bring forward reasons and evidence to demonstrate that they should be issued with a clearance.[12]

  1. Conviction for a disqualifying offence

If a person is a disqualified person, meaning a person who has been convicted of a disqualifying offence,[13] then they will not be eligible for a Yellow Card. There is no avenue for risk assessment that applies to these circumstances.

  1. Conviction for any other offence other than a serious or disqualifying one

If a person is convicted on an offence other than a serious or disqualifying one, the chief executive must issue them with a clearance if they are satisfied the person does not pose an unacceptable risk of harm to people with disability.[14] Otherwise, they must issue an exclusion.[15] When considering such an application, a risk assessment must be conducted.[16]

Essentially, this means that when a person is the subject of any disclosable information as discussed above, the chief executive maintains – at all times – a discretion to exclude that person if it would not be in the best interests of disabled people to issue them with a clearance.


How can Robertson O’Gorman help you? 

We frequently assist clients with their Blue and Yellow Card applications. Whether that be drafting show cause submissions or representing them at hearings. We often contact Disability Services or appear in QCAT as solicitor advocate and have successfully argued for a positive notice for our clients.

The decision of ST v Director-General, Department of Justice and Attorney-General [2021] QCAT 337 is but one recent example of our firm doing this. Likewise, and depending on the complexity of the matter and the wishes of the client, we can also brief counsel in such matters. The decisions of CC v Director-General, Department of Justice and Attorney-General [2021] QCAT and HM v Director-General, Department of Justice and Attorney General [2021] QCAT are recent examples of our firm successfully arguing the reversal of a negative notice with the assistance of counsel.

Contact Robertson O'Gorman Today

[1] Disability Services Act 2006 (Qld) s 68.

[2] Disability Services Act 2006 (Qld) s 88(1).

[3] Disability Services Act 2006 (Qld) s 88(2).

[4] Disability Services Act 2006 (Qld) sch. 8.

[5] Disability Services Act 2006 (Qld) sch. 8.

[6] Disability Services Act 2006 (Qld) s 89.

[7] For a discussion of what constitutes a ‘disqualifying’ or ‘serious’ offence, see below.

[8] Disability Services Act 2006 (Qld) s 91.

[9] Disability Services Act 2006 (Qld) s 91.

[10] Disability Services Act 2006 (Qld) s 87(1)(c).

[11] Disability Services Act 2006 (Qld) s 94. This is not an exhaustive list.

[12] Disability Services Act 2006 (Qld) ss 95 and 96.

[13] Disability Services Act 2006 (Qld) sch. 8.

[14] Disability Services Act 2006 (Qld) 92(2)(a).

[15] Disability Services Act 2006 (Qld) 92(2)(b).

[16] Disability Services Act 2006 (Qld) s 87(1)(c).