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

Witnesses in QCAT

This factsheet provides information for people who intend, or are required to, give evidence or produce a document for proceedings before the Queensland Civil and Administrative Tribunal (QCAT). It sets out a witness’s rights and obligations under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

An enabling Act may have provisions that supersede the rules stated below. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Notice to attend a hearing

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to attend at a stated hearing of a proceeding to give evidence (s 97(1)(a) QCAT Act).

Notice or order to produce documents or things

The Tribunal may, of its own initiative or upon application of a party, issue a written notice requiring a person to produce a stated document or other thing to the Tribunal (s 97(1)(b) QCAT Act).

The Tribunal may also make an order requiring a person to produce a document or thing to the Tribunal or to a party to the proceeding (s 63(1) QCAT Act).

The document or thing stated in the notice or order may be inspected, photographed, photocopied or otherwise recorded by a party to the proceedings unless the Tribunal orders otherwise (Rule 80(3) QCAT Rules).

A person the subject of the order or notice is not required to attend the hearing unless the Tribunal orders otherwise or the person has been given notice under s 97(1)(a) to attend the hearing (Rule 80(2) QCAT Rules).

Witness entitlements

A person who attends a hearing or produces a document in accordance with the written notice issued by the Tribunal under s 97 is entitled to be paid the fees and allowances prescribed by regulation (s 97(4) QCAT Act). See regulations 11 to 16 of the Queensland Civil and Administration Tribunal Regulation 2009 (Qld) for more information.

These fees and allowances are to be paid:

• if the written notice was issued upon application by a party – by the party who made the application; or
• if the written notice was made by the Tribunal on its own initiative – by all of the parties in the proportions decided by the Tribunal (s 97(45) QCAT Act).

Giving evidence

At a hearing, evidence of a witness may be given orally or in writing, and, if the Tribunal directs, on oath or by affidavit (s 95(4) and 98(1)(b) QCAT Act). The Tribunal may also permit a witness to give evidence by tendering a written statement, verified, if the Tribunal directs, by oath (s 57(3) QCAT Act).

However, a child cannot be compelled to take an oath (s 945(6) QCAT Act).

Cross examination

The object of cross-examination is to qualify, weaken or destroy the opponent’s case and, potentially, establish your own case.

Each party must be given a reasonable opportunity to examine, cross-examine and re-examine each witness (s 95(1) QCAT Act).

However, the Tribunal may refuse or limit cross-examination if the Tribunal considers there is already sufficient evidence before the Tribunal about the matter and the evidence has been sufficiently tested by cross-examination (s 95(2)(b) QCAT Act).

In expedited hearings, cross-examination and re-examination of witnesses is at the discretion of the Tribunal, subject to the QCAT Rules (ss 95(2)(c) and 94 QCAT Act).

The Tribunal also has the power to place time limits on the giving of evidence and on the examination, cross-examination and re-examination of witnesses (s 95 (3) QCAT Act).

Tribunal powers in relation to witnesses

The Tribunal can call any person to give evidence on the Tribunal’s own initiative (s 98(1) QCAT Act).

The Tribunal may also:

• examine a witness on oath, or require a witness to give evidence by affidavit.
• examine or cross-examine a witness to the extent the Tribunal considers it appropriate to obtain information relevant to performing its functions in the proceedings,
• compel a witness to answer questions the Tribunal considers relevant to the proceeding (s 98(1) QCAT Act).

However, the Tribunal may not compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question, for example, where the answer might incriminate the person (s 98(2) and (3) QCAT Act).

Proceedings where witnesses are not needed

The Tribunal may decide to conduct part or all of the proceeding by solely relying on the documents the parties have lodged with the Tribunal. In those circumstances, witnesses need not appear at the hearing. The parties and their representatives are also excused (s 32 QCAT Act).

Treatment of vulnerable witnesses

Tribunal obligations to conduct proceedings sensitively

The Tribunal has an obligation to take reasonable steps to understand the actions, views and assertions of a witness in the proceeding, having regard to the witness’s age, any disability, and cultural, religious and socioeconomic background (s 29(1)(b) QCAT Act).

The Tribunal must also take all reasonable steps to ensure that each party to a proceeding understands the nature of assertions made in the proceeding and the legal implications of the assertions (s 29(1)(a) QCAT Act). This would include ensuring that each party understands the material evidence being presented by each witness.

The Tribunal is also required to ensure that the conduct of proceedings is responsive to:

• cultural diversity and the needs of a witness who is from another culture, or linguistic background or is an Aboriginal person or Torres Strait Islander;
• the needs of a witness who is a child or a person with impaired capacity or a physical disability (s 29(1)(c) QCAT Act).

See for example, Smith v Condie t/a Listonia Landscaping [2010] QCAT 256.

Interpreters and support people

Unless the Tribunal directs otherwise, a witness to a proceeding may be helped by an interpreter or other person to help the witness to understand the proceeding (s 44 QCAT Act). For example, the witness may be helped by someone with appropriate cultural or social knowledge and experience.

At a private hearing, the Tribunal is required to ask each witness if that witness needs a support person for giving evidence. If the witness confirms that they do need a support person, the Tribunal must allow the support person to attend the hearing with the witness. However, the support person must not represent the party and must not be a party to the proceeding (s 91 QCAT Act).

If the support person is also to be a witness at the hearing, they may be directed to only attend the hearing at certain times (s 91(4) QCAT Act).

Special witnesses

There exist a number of different types of orders that the Tribunal may make where a special witness is giving evidence at a hearing: see s 99 QCAT Act. Section 99 does not apply to guardianship and administration matters: see s 101 GAA Act.

A special witness is a witness who is a child or another person who the Tribunal considers likely, if the person is required to give evidence, to:

• be disadvantaged as a witness because of the person’s mental, intellectual or physical impairment or a relevant matter, such as the person’s age, education, level of understanding, cultural background, relationship with a party to the proceeding or the subject matter of the evidence; or
• suffer severe emotional trauma; or
• be so intimidated as to be disadvantaged as a witness (s 99(4) QCAT Act).

The various orders that the Tribunal may make in relation to a special witness include:

• that only particular people may be present when the special witness gives evidence;
• that only particular people may ask questions of the special witness;
• that the questioning of the special witness must be restricted to a stated time limit;
• that a particular person must be obscured from the view of the special witness while the special witness is giving evidence;
• that a particular person must be excluded from the place where the hearing is held while the special witness is giving evidence;
• that the special witness must give evidence in a place other than where the hearing is held and in the presence of only stated people or with stated people being excluded from the room;
• that a person, including, for example, a support person (see below), must be present while the special witness is giving evidence to give emotional support to the special witness;
• that an audiovisual record of the evidence given by the special witness be made and that the record be viewed and heard at the hearing instead of the special witness giving direct testimony at the hearing (s 99(2) QCAT Act).

A person can apply for one of these orders or they can be made on the Tribunal’s own initiative (s 99(3) QCAT Act).

Non-publication orders

Generally speaking, the QCAT file and hearings are a matter of public record.

A non-publication order prohibits the publication of the contents of a document, evidence given at the Tribunal or information which identifies a person who has appeared or is affected by the proceeding. It may be made on the application of a party or upon the Tribunal’s own initiative (s 66(1) QCAT Act).

The Tribunal may only grant a non-publication order if it considers the order is necessary:

• to avoid interference with the proper administration of justice;
• to avoid endangering the physical or mental health or safety of a person;
• to avoid offending public decency or morality; or
• to avoid the publication of confidential information or other information which would be contrary to the public interest; or
• for any other reason in the interests of justice (s 66(2) QCAT Act).

See for example, Medical Board of Queensland v Mallon [2010] QCAT 311, where the Tribunal granted a non-publication order to protect names of patients, but not the medical practitioner who was the subject of disciplinary proceedings.

Offences and enforcement

Failure to appear

It is an offence for a witness not to attend a Tribunal hearing if they have been issued a notice by the Tribunal under s 97 of the QCAT Act without reasonable excuse (s 214(1) QCAT Act).

If a witness does not attend, then the Tribunal has the power to issue a warrant directing a police officer to bring the person at the time and to the place stated in the warrant to give evidence. The proceedings may be adjourned until then (s 215 QCAT Act). The warrant should be carried out by the police officer in accordance with the requirements under the Police Powers and Responsibilities Act 2000 (Qld), in particular sections 21 (General power to enter to arrest or detain someone or enforce warrant) and 615 (Power to use force against individuals).

A person who fails to appear at a hearing may be the subject of contempt proceedings.

Failure to follow directions

A person appearing as a witness at a hearing of a proceeding must not:

• fail to take an oath when required by the Tribunal; or
• fail, without reasonable excuse, to answer a question the person is required to answer by the Tribunal; or
• fail, without reasonable excuse, to produce a document or other thing the person is required to produce by a notice under section 97 (s 214(2) QCAT Act).

It is a reasonable excuse not to answer a question or produce a document where that information would tend to incriminate the person (s 214(3) QCAT Act). This right is further preserved in section 237(9) of the QCAT Act.

Failure to follow directions is an offence and may result in contempt proceedings.

False and misleading information

Any person, including witnesses, must not say anything or give any document containing information that the person knows to be false or misleading to a Tribunal official. A Tribunal official includes registry staff but does not include a conciliator or mediator (s 216 QCAT Act).

However, a person will not have committed an offence if the person when giving a document tells the official how it is false and misleading and, if the person has or can reasonably obtain the correct information, gives the correct information.

Giving false or misleading information may result in contempt proceedings.

Influencing a witness

It is an offence to improperly influence, or attempt to improperly influence, a witness (s 217 QCAT Act).

Contravention of this provision may result in contempt proceedings.

Contempt of the Tribunal

In addition to the above, a person is in contempt of the Tribunal if they:

• insult a tribunal member, adjudicator, registrar or registry staff member;
• obstruct or assault a person attending a proceeding;
• obstruct or hinder a person from complying with a decision of the tribunal;
• unreasonably interrupt a proceeding or otherwise misbehaves;
• create or continue a disturbance in or near a place where the Tribunal is sitting;
• contravene an undertaking they have given to the Tribunal (s 218(1) QCAT Act).

Children are not in contempt if their actions relate to proceedings which are reviewing a decision about the child (s 218(2) QCAT Act).

The Tribunal has the ability to invoke all the protection, powers, jurisdiction and authority the Supreme Court has in relation to contempt (s 219 QCAT Act). This includes fines, exclusion from the hearing and imprisonment.

This resource is current as of 21 February 2024

Hearings in the Queensland Civil and Administrative Tribunal

This factsheet sets out some rules and procedures which generally apply to Queensland Civil and Administrative Tribunal (QCAT) hearings. It may be useful for people who are preparing to go to a QCAT hearing and would like some information on what to expect.

The following information refers to provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). An enabling Act may set out requirements which override these provisions. An enabling Act is another Act which gives the Tribunal jurisdiction to hear a particular matter. For example, if the matter relates to guardianship and administration, then the enabling Act is the Guardianship and Administration Act 2000 (Qld) (GAA Act).

Who will be at my hearing?

The Tribunal

The Tribunal may comprise of 1 to 3 members depending on the nature of the case. This may include a judicial member, that is, a member who is a Supreme Court or District Court judge. The composition of the Tribunal is carefully selected by the President, taking into account the nature, importance, complexity and special knowledge required for the matter (ss 165 and 167 QCAT Act).

Interpreters and support persons

Interpreters are allowed for parties or witnesses who have trouble understanding English.

A party or a witness may also be helped by another person to help them understand the proceedings. For example, the other person may be someone with appropriate cultural or social knowledge and experience (s 44 QCAT Act).

If the hearing is to be held in private, the Tribunal will allow each party and witnesses a support person to attend the hearing if they require one (s 91 QCAT Act).

Lawyers

As a general rule, parties before QCAT are self-represented unless the interest of justice require otherwise (s 43(1), QCAT Act).

However, the following categories of people are allowed representation as of right:

1. Children;
2. Persons with impaired capacity; and
3. Parties in a disciplinary proceeding.

A person may also be represented if another Act or the QCAT rules state the person may be represented. The Tribunal can also give its permission for a party to be represented (s 43 QCAT Act).

A representative must be a lawyer, unless the Tribunal otherwise agrees (s 43(4) QCAT Act).

See our factsheet Representation in QCAT for more information.

The public

Under s 90 of the QCAT Act, hearings must be held in public. This provision does not apply to guardianship and administration matters, although those matters as a general rule are also to be held in public: see ss 101 and 105 of the GAA Act.

However, a hearing (or part of a hearing) may be held in private if the Tribunal considers it necessary in the following circumstances:

• To avoid interfering with the proper administration of justice;
• To avoid endangering the physical or mental health or safety of a person;
• To avoid offending public decency or morality;
• To avoid the publication of confidential information or information whose publication would be contrary to public interest; or
• For any another reason in the interests of justice (s 90(2) QCAT Act).

What if I don’t go to my hearing?

In the event that a person, who has been given adequate notice of the hearing, fails to turn up or cannot be found after reasonable enquiries have been made, the Tribunal may hear and decide the matter in that person’s absence, even if that person is a party to the matter (s 93 QCAT Act).

What rules apply to my hearing?

Procedure generally

Subject to the QCAT Act, enabling Acts and rules, the procedure for QCAT proceedings are at the discretion of the Tribunal (s 28(1) QCAT Act).

The objects of the QCAT Act include:

• To have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick (s 3(b) QCAT Act).

The functions of the Tribunal include:

• To encourage the early and economical resolution of disputes including, if appropriate, through alternative dispute resolution processes;
• To ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice; and
• To ensure the Tribunal is accessible and responsive to the diverse needs of people who use the Tribunal (s 4 QCAT Act).

In all proceedings, the Tribunal must:

• Act fairly and according to the substantial merits of the case;
• Observe the rules of natural justice;
• Act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling act or the rules and a proper consideration of the matters before the Tribunal permit;
• Ensure so far as practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts;
• Take reasonable steps to ensure each party understands the practices and procedures of the Tribunal, the nature of allegations made in the proceedings and the decision of the Tribunal; and
• Ensure proceedings are responsive to cultural diversity, Aboriginal tradition and Island custom and the needs of a party who is a child or a person with impaired capacity or a physical disability (ss 28 and 29 QCAT Act).

See for example, Thackham v Dunne & Sweeney [2010] QCATA 109.

Giving evidence

The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate (s 28(3) QCAT Act).

The Tribunal must allow all parties a reasonable opportunity to:

• Call or give evidence;
• Examine, cross-examine and re-examine witnesses; and
• Make submissions to the Tribunal.

However, the Tribunal has a discretion to limit these rights if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.

Evidence can be given orally or in writing and may be required to be given under oath or by affidavit (s 95 QCAT Act).

You may need to compel witnesses to give evidence to support your case. For more information about witnesses, please see Witnesses in QCAT.

Prohibited conduct

It is important that your conduct in the Tribunal is respectful and does not unnecessarily disadvantage another party to the proceedings. See Unmeritorious proceedings and conduct causing disadvantage in QCAT for information about the risks in conducting your matter in a way that is unfair.

This resource is current as of 21 February 2024

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.

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.

The Queensland Civil and Administrative Tribunal (QCAT) only has jurisdiction to hear a matter if it is authorised to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or another piece of legislation. These other pieces of legislation are often referred to as “enabling Acts”.

When legislation gives authority to QCAT to hear a matter it will specify the “jurisdiction” QCAT must exercise in relation to the matter. QCAT has 3 types of jurisdiction:

1. Original jurisdiction;
2. Review jurisdiction; and
3. Appeal jurisdiction.

Each jurisdiction has its own purpose, rules and procedures and powers.

This fact sheet summarises the three types of jurisdictions conferred on QCAT.

Original Jurisdiction

What does “original jurisdiction” mean?

Original jurisdiction means that QCAT is making a decision on the matter for the first time. In other words, where an application is made to the Tribunal under its original jurisdiction, no other body or person will have previously decided this matter.

When does the Tribunal exercise its original jurisdiction?

QCAT has original jurisdiction for:

1. Minor civil disputes; and
2. Matters conferred upon it by an enabling Act to decide a matter in the first instance. (s 10 QCAT Act).

Minor civil disputes are defined in s 12 of the QCAT Act. The Tribunal only has power to make orders to the value of $25,000 (or other amount as prescribed by regulation). (s 13(3) QCAT Act).

Examples of original jurisdiction conferred on QCAT by an enabling Act are:

• The Guardianship and Administration Act 2000 (Qld) which gives QCAT a number of functions including the consideration of applications for appointment of guardians and administrators (s 81 Guardianship and Administration Act 2000 (Qld)).
• The Anti-Discrimination Act 1991 (Qld) which entitles a complainant to require the Human Rights Commissioner to refer a complaint to QCAT if conciliation has failed (s 166 Anti-Discrimination Act 1991 (Qld)).

QCAT also exercises original jurisdiction where it is empowered by an enabling Act to review its own decisions. For example:

• The Guardianship and Administration Act 2000 (Qld) enables parties to apply for review of the appointment of a guardian, the appointment having been made by QCAT in the first instance;
• The Health Practitioner Regulation National Law Queensland empowers QCAT to review decisions where QCAT has decided that grounds for disciplinary action exist.

What are the powers of the Tribunal in exercising original jurisdiction?

The enabling Act conferring original jurisdiction will generally state the Tribunal’s functions in the jurisdiction, which may add to, vary or exclude the functions stated in the QCAT Act (ss 6(3) and 16 QCAT Act).

Who are the parties to a proceeding in the tribunal’s original jurisdiction?

• the applicant; or
• the person the subject of the proceedings, if any; or
• an intervener; or
• a person joined as a party to the proceeding; or
• any other person specified as a party under an enabling Act (s 39 QCAT Act).

Review Jurisdiction

What does “review jurisdiction” mean?

If QCAT has been conferred (or given) review jurisdiction, it means a decision has already been made, generally by a government or statutory agency and QCAT is required to step into the shoes of the original decision-maker and reconsider the decision. This sort of decision making may have previously been referred to as an “appeal”.

The purpose of the review is to ensure that the correct decision was made based on the facts of a case. This is to enhance the quality and consistency of decisions by decision makers and to enhance openness and accountability of public administration (s 3(d) and (e) QCAT Act).

When does the Tribunal exercise its review jurisdiction?

QCAT has review jurisdiction when it is conferred with power to review decisions originally made by another entity (s 17 QCAT Act).

The decision being reviewed is known as the reviewable decision and the entity which originally made the decision is known as the decision maker.

What are the powers of the Tribunal in exercising review jurisdiction?

In exercising review jurisdiction, the Tribunal has the power to:

• confirm or amend the original decision
• substitute its own decision; or
• set aside the decision and return the matter for reconsideration by the original decision-maker with any directions it considers appropriate (s 24 QCAT Act).

The Tribunal may also:

• invite the decision maker to reconsider the decision at any stage of the proceeding (s 23 QCAT Act);
• exercise all the functions of the original decision-maker in relation to the reviewable decision (s 19(c) QCAT Act); and
• exercise the functions conferred upon it by the QCAT Act or the enabling Act (s 19(b) QCAT Act).

How does the Tribunal approach its task of reviewing a decision?

The purpose of the review is to produce the correct or preferable decision. This is done by way of a fresh hearing on the case’s merits (s 20 QCAT Act). A decision must be made in accordance with the QCAT Act and the enabling Act (s 19(1) QCAT Act).

To this end, the original decision-maker is required to assist the Tribunal to the best of their ability, including, for example, providing the Tribunal with a copy of the reasons for decision and any documents in the decision maker’s possession or control that may be relevant to the tribunal’s review of the decision, within 28 days of being given a copy of the application (s 21 QCAT Act).

A detailed consideration of the Tribunal’s approach to reviewing a decision is provided in Queensland Racing Ltd v McMahon [2010] QCATA 73.

How does a review affect the original decision?

The start of proceedings to review a decision does not affect the original decision unless otherwise stated in an enabling Act or unless QCAT specifically makes an order to stay the original decision.

An order to stay the original decision stops it from being implemented. A stay may be ordered upon application by a party or on the Tribunal’s own initiative.

In making a stay order, the Tribunal must have regard to:

1. The interests of any person who will be affected by the making of the order or the order not being made (but who may not be given an opportunity to make submissions if that is not practicable).
2. Any submission made to the Tribunal by the original decision-maker; and
3. The public interest.

The Tribunal may also require an undertaking as to costs or damages, or may impose certain conditions, or may provide for the lifting of the order if stated circumstances occur (s 22 QCAT Act).

Inviting the original decision maker to reconsider the decision

The Tribunal may invite the original decision-maker to reconsider their decision before the review proceedings have been completed. The decision-maker then has 28 days to reconsider their decision and either confirm, amend or substitute their original decision.

The review proceedings will then continue, based on the affirmed, amended or substituted decision, unless the applicant withdraws their application (s 23 QCAT Act).

Who are the parties to a proceeding in the Tribunal’s original jurisdiction?

• The applicant;
• The decision-maker for the reviewable decision (named using their official description, rather than their personal name);
• An intervener;
• A person joined as a party to the proceedings; and
• Any other person specified as a party under an enabling Act (s 40 QCAT Act).

Appeal Jurisdiction

What does “appeal jurisdiction” mean?

The appeal jurisdiction refers to a situation where another entity or QCAT itself has made a decision and there are provisions that allow an appeal to be lodged with the Tribunal.

If the Tribunal is to sit in its appeal jurisdiction, it will usually be constituted by 1, 2 or 3 judicial members (s 166 QCAT Act). This is often referred to as the Appeal Tribunal.

When does the Tribunal exercise its appeal jurisdiction?

The Tribunal has jurisdiction to hear:

• appeals against its own decisions under s 142 of the QCAT Act; and
• appeals against the decisions of other entities under an enabling Act (s 25 QCAT Act).

Generally speaking, a decision of QCAT may be appealed to the Appeal Tribunal under s 142 where:

• A judicial member did not constitute the Tribunal in the proceeding;
• The decision does not relate to a cost-amount decision (an amount ordered to be paid under a costs order); and
• The decision does not relate to the decision of a registrar to accept or reject an application or referral made to the Tribunal.

In certain circumstances it is necessary to get the Appeal Tribunal’s permission to appeal, which is called “getting leave”. The Appeal Tribunal’s leave is required to appeal:

• A minor civil dispute decision;
• An interim or preliminary decision;
• A costs order; and
• An appeal involving a question of fact.

Please see the Appealing a QCAT decision to the QCAT Appeal Tribunal or Queensland Court of Appeal factsheet for more information.

What are the powers of the Tribunal in exercising appeal jurisdiction?

Please see the heading Powers and procedure – Appeals to the Appeal Tribunal under the Appealing a QCAT decision factsheet under for more information.

Who are the parties to a proceeding in the tribunal’s appeal jurisdiction?

The parties to an appeal will be the same as the parties to the original decision.

This resource is current as of 21 February 2024

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.

Discrimination

Discrimination law governs the protection from and prevention of unlawful treatment on the basis of various attributes including race, sex, sexuality, age, disability, pregnancy, marital status, religion or political belief or activity.

Factsheets

• Discrimination claims in the Federal Circuit Court

External Resources

• Australian Human Rights Commission– The Australian Human Rights Commission is Australia’s independent human rights body which also helps people resolve complaints of discrimination and other breaches of human rights through their complaint handling service.
• Queensland Human Rights Commission (QHRC)– The Queensland Human Rights Commission receives and deals with complaints of discrimination and other contraventions of the Anti-Discrimination Act 1991 (Qld), and promotes human rights in Queensland.
• Discrimination and sexual harassment fact sheet– Legal Aid Queensland provides a detailed fact sheet on the law around discrimination and sexual harassment.

Where to go for help

• Queensland Advocacy for Inclusion (QAI)– Systems advocacy and legal advocacy organisation for people with disability in Queensland
• LawRight is an independent, not-for-profit, community-based legal organisation that operates a civil law referral service for pro bono legal representation and direct legal services for particular disadvantaged client groups. For more information about the help available, and the process for applying for help, please see the LawRight website at lawright.org.au. If your matter has not resolved in the Queensland Human Rights Commission (QHRC) and is proceeding to QCAT, LawRight may be able to help you through our Court and Tribunal Services.

This resource is current as of 21 February 2024

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.