Today’s correspondent has drawn my attention to a news story published by the ABC – Amy Sheehan, ‘Police investigate Queensland rural firefighters over controversial blue card rules’ ABC Sunshine Coast (Online) (13 May 2020). The story says:
Several volunteers and employees with Queensland Fire and Emergency Services (QFES) have been questioned and cautioned for signing off blue card applications for volunteers with a criminal history…
The ABC understands that on at least two occasions, police questioned QFES staff and volunteers in the Central Region who signed the declaration on the form despite the applicants knowing they should not have applied…
The Rural Fire Brigade Association of Queensland (RFBAQ) said the volunteer First Officers who signed the declarations for the volunteer rural firefighters were not aware they could not apply.
An internal email sent to staff last Wednesday warned that any QFES officials signing the declaration must also initial the document to say they had verbally warned the applicant it was an offence for a disqualified person to apply.
My correspondent says:
It still isn’t clear what the Qld Police investigation is about.
Any organization with a blue card requirement is required to actually sponsor or support the application.
How is it the responsibility of the representative of the organisation to conduct the Police checks?
Isn’t that the requirement of the organization issuing the Blue-card?
I’m not seeing how a RFS or even a SES Group leader is responsible for anything other than confirming the applicant is a member of the organization?
I suppose that the first thing to note, albeit unhelpfully, is that it’s not surprising that it ‘isn’t clear what the Qld Police investigation is about’ what we have is a news story and the journalist has to try and get the story out and doesn’t have the time nor the space to give all the details though there is a certain lack of clarity in this article. To try to resolve some issues I will (given that is the nature of this blog) look at the law.
The relevant legislation is the Working with Children (Risk Management and Screening) Act 2000 (Qld). In short where a person is subject to the Act an application is made for a prescribed notice.
The chief executive must decide the prescribed notice application by issuing either of the following to the person—
(a) a notice declaring the application is approved (a positive notice);
(b) a notice declaring the application is refused (a negative notice).
Where the application is approved the person gets a positive notice blue card. With that context the question turns to the application process.
Section 199 provides that the applicant is a person ‘who proposes to start employing, or continue employing, another person in regulated employment’ that is it is the employer and not the employee. For the purposes of this Act, a volunteer is ‘a person who is employed by another person and does not carry out any work for the other person for a financial reward’ (s 165; see also s 161). In context QFRS is the employer of both its staff and its volunteers.
An application must include (s 200):
(a) identifying information about the employee; and
(b) certification by the applicant that the applicant has sighted the employee’s proof of identity documents; and
(c) a declaration by the applicant that the applicant has given the employee a warning as required under section 199(3); and
(d) a declaration by the employee that he or she is not a disqualified person; and
(e) the employee’s consent to employment screening under this chapter.
(3) The approved form mentioned in subsection (1)(a) must include—
(a) a warning that it is an offence for a disqualified person to sign the application; and
(b) a statement about applying for an eligibility declaration.
A disqualified person is (s 169) a person who:
(a) has been or is convicted of a disqualifying offence [defined in s 168 and schedules 4 and 5]; or
(b) is subject to—
(i) offender reporting obligations; or
(ii) an offender prohibition order; or
(iii) a disqualification order; or
(iv) a sexual offender order; or
(c) is the respondent to an application for an offender prohibition order under the Offender Reporting Act.
Section 199(3) says:
If a person who makes an application under this division asks the person about whom the application is made to sign the application, the person making the application must warn the person asked to sign it that it is an offence for a disqualified person to sign the application.
Putting that together one can infer that:
- The application is made by QFRS (or the local brigade without re-entering the debate of the status of bush fire brigades in Queensland; see Status of Queensland Rural Fire Brigades (September 10, 2014) and Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service) (August 6, 2018));
- The person signing the application on behalf of the applicant is the volunteer First Officer.
- The volunteer First Officer as the applicant is not required to certify that the proposed employee is or is not a disqualified person but they, or the form, is required to warn the employee/volunteer that they commit an offence if they declare that they are not a disqualified person.
- The employee or volunteer is required to declare that they are not ‘a disqualified person’. A disqualified person commits an offence if he or she signs the application ‘made by someone else’ (s 174(1)(a)).
To return to the ABC story, it starts by saying:
Several volunteers and employees with Queensland Fire and Emergency Services (QFES) have been questioned and cautioned for signing off blue card applications for volunteers with a criminal history.
There is no offence in signing the application where the proposed employee has a criminal history. The applicant cannot be expected to know their history, that is why a system of checking is in place. The proposed employee is required to declare that he or she is not a disqualified person and if they say they are not, they sign the application. The application is sent off and the process is there to confirm that this it is indeed the case that they are not disqualified. Further a criminal history does not make a person a disqualified person, it has to be history that involves conviction of a disqualifying offence, not any offence.
The ABC understands that on at least two occasions, police questioned QFES staff and volunteers in the Central Region who signed the declaration on the form despite the applicants knowing they should not have applied.
Is certainly confusing. If by ‘the applicants’ the ABC means the member then it’s true they should not have signed the declaration on the form if they knew they were disqualified; but they are not the applicants. If they mean the first officer who signs as the applicant, then it is not their role to check the member’s criminal history, that is what the blue card check is for.
The story goes onto say:
“We will supply that list [of disqualifying offences] to volunteer Brigade First Officers, and also suggest that if they in any way feel uncomfortable with witnessing any application they can pass that responsibility onto QFES paid staff.”
That too is confusing as the First Officers are not ‘witnessing any application’ they are the applicant. The list of disqualifying offences needs to be made available to employees and volunteers so they can make the declaration that they are not disqualified.
Certainly the way the story is reported, both on what is happening with police and QFRS but the very reporting itself would confirm that ‘the process of implementing the blue card system had been a “shemozzle”’.
The problem evidenced by the story is confusion as to who is the applicant and who has to verify that the volunteer or staff member is not a disqualified person. The employer is the applicant, they do not commit an offence if they make an application and it turns out that the employee or volunteer is a disqualified person. They cannot know that; that is why there is this process. The employee or volunteer is not the applicant but they have to declare that they are not a disqualified person and indeed they should know their own criminal history and do commit an offence if they declare that they are not disqualified when indeed they are.
The news story is sufficiently ambiguous that it is not clear whether police are having these discussions with applicants or volunteers/employees. They are not the same person.
After writing the post I received an email from the Rural Fire Brigades Association Queensland Inc. where they added ‘We also had a meeting with the Commissioner and Deputy Commissioner … where we were informed that signing on behalf of the organisation without issuing a warning is an offence.’
That is indeed true. The penalty for not giving the warning required by s 199(3) is a maximum fine of 10 penalty units. A penalty unit is currently $133.45 so the maximum fine is $1334.50.
I did not get, from the ABC story, that the issue was first officers not giving the required warning. The news story implied that the issue was that applicants were submitting applications where the employee/volunteer was disqualified. But if the issue is First Officers not giving the warning and then signing a form to say they have – that’s not really an issue at all.
The application form, as noted above, must have a declaration by the applicant (the First Officer) that the relevant warning was given to the employee/volunteer. Everyone should understand that if they are signing a form saying they did something, then they should indeed have done that thing, ie issue the warning. Say what you mean and mean what you say – don’t sign a form saying you have done something if you have not.