Chief Executive Officer, Department for Child Protection v Grindrod (No 2) - [2008] WASCA 28

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION -v- GRINDROD [No 2] [2008] WASCA 28

CORAM: WHEELER JA
BUSS JA
MURRAY AJA

HEARD: 5 SEPTEMBER 2007

DELIVERED : 15 FEBRUARY 2008

FILE NO/S: CACV 97 of 2007

BETWEEN: CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Appellant
AND
NIGEL WAYNE GRINDROD
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :JUSTICE M L BARKER (PRESIDENT)
Citation  :C and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR COMMUNITY DEVELOPMENT [2007] WASAT 116
File No  :VR 195 of 2006

Catchwords:

Working with Children (Criminal Record Checking) Act 2004 (WA) - Application for an assessment notice - Negative notice - Construction of s 12(4) and s 12(8) - Satisfaction of the decisionmaker that, because of the particular circumstances of the case, a negative notice should be issued to the applicant - Definition of 'particular circumstances of the case' - The best interests of children as the paramount consideration - The notion of 'unacceptable risk' in relation to an applicant carrying out child related employment - The function of the decisionmaker in evaluating 'unacceptable risk'

Interpretation Act 1984 (WA), s 50(2) - Whether decisionmaker under Working with Children (Criminal Record Checking) Act 2004 (WA) empowered to issue an assessment notice subject to conditions - Section 50(2) does not apply to the issue of an assessment notice

Practice and procedure - Refusal to suppress name of party from publication - Judicial proceedings to be conducted in public - Public interest transcends the party's private interest

Legislation:

Evidence Act 1906 (WA), s 106B, s 106D
Interpretation Act 1984 (WA), s 3, s 19, s 50
State Administrative Tribunal Act 2004 (WA), s 17(1), s 27(1), s 29(1), s 61(4), s 62, s 105
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6, s 7, s 9, s 12, s 13(1)(a), s 13(7), s 14, s 19, s 20, s 21, s 22, s 23, s 24, s 26

Result:

Leave to appeal granted on grounds 15
Appeal allowed

Category: A

Representation:

Counsel:

Appellant: Mr R W Richardson
Respondent: Mr S B Watters

Solicitors:

Appellant: Department for Child Protection
Respondent: D G Price & Co

Case(s) referred to in judgment(s):

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297
Briginshaw v Briginshaw (1938) 60 CLR 336
C v Chief Executive Officer, Department for Community Development [2007] WASAT 116
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Fardon v Attorney‑General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575
Grindrod v The Queen [1999] WASCA 44
M v M (1988) 166 CLR 69
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Murphy & Murphy [2007] Fam CA 795
Neat Holdings v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R v BAS [2005] QCA 97
R v Hillingdon London Borough Council; Ex p. Puhlhofer [1986] AC 484
R v Revesz (1996) 88 A Crim R 253
R v Tait (1979) 46 FLR 386
Re Bromfield SM; Ex p. West Australian Newspapers Ltd (1991) 6 WAR 153
Re H and ors (minors) [1996] AC 563
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Reference of a Question of Law (No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408
Reynolds v Panten [No 1] [1999] WASCA 89; (2000) 23 WAR 215
Reynolds v Panten [No 2] [2000] WASCA 412; (2000) 23 WAR 238
Russell v Russell (1976) 134 CLR 495
TK v Australian Red Cross Society (1989) 1 WAR 335
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78

WHEELER JA: I agree with Buss JA.
BUSS JA: The Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) prohibits a person from being employed in 'child‑related work' unless the person has a current 'assessment notice'.
The respondent applied to the appellant for an assessment notice, stating that he was engaged in child‑related work as a volunteer T‑ball coach. He was issued with a 'negative notice'. The respondent applied to the State Administrative Tribunal (the Tribunal) for a review of that decision. On 22 May 2007, the Tribunal, which was constituted by the President, Barker J, allowed the review application, set aside the appellant's decision and, in essence, ordered the appellant to cause the respondent to be issued with an assessment notice in accordance with the Tribunal's reasons.
On 8 June 2007, the appellant filed an appeal notice in this court, pursuant to s 105(1) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act), against the Tribunal's decision. The appellant requires leave to appeal. If leave is granted, the appeal can be brought only on a question of law. See s 105(1) and (2).

The relevant provisions of the WWC Act

According to the long title, the WWC Act, relevantly:
(a)provides for procedures for checking the criminal record of people who carry out, or propose to carry out, 'child‑related work'; and
(b)prohibits people who have been charged with or convicted of certain offences from carrying out that work.
Section 4 defines various terms and expressions used in the Act. Relevantly, for present purposes, s 4 provides that in the Act, unless the contrary intention appears:
'approved' means approved by the CEO;
'assessment notice' means a written notice issued by the CEO under section 12(1)(a);
'CEO' means the chief executive officer of the Department;
'charge' means a non-conviction charge or a pending charge;
'child' means a person who is under 18 years of age;

'child care service' has the meaning given in the Child Care Services Act 2007 section 3;
'child-related business' means child-related work carried out by an individual for gain or reward otherwise than in the course of child-related employment;
'child-related employment' means -
(a)child-related work carried out by an individual under a contract of employment or apprenticeship (whether written or unwritten);
(b)child-related work carried out on a voluntary basis by an individual under an agreement (whether written or unwritten) with another person; or
(c)child-related work carried out by an individual as a minister of religion or in any other capacity for the purposes of a religious organisation;

'child-related work' has the meaning given to that term in section 6;
'Class 1 offence' has the meaning given to that term in section 7(1);
'Class 2 offence' has the meaning given to that term in section 7(2);
…
'contact' includes -
(a)any form of physical contact;
(b)any form of oral communication, whether face to face, by telephone or otherwise; and
(c)any form of electronic communication,

but does not include contact in the normal course of duties between an employer and an employee or between employees of the same employer;
'conviction' has the meaning given to that term in section 8;
'criminal record', in relation to a person, means -
(a)every conviction of the person of an offence, in Western Australia or another jurisdiction; and
(b)every charge made against the person for an offence, in Western Australia or another jurisdiction;

'criminal record check' means the procedures set out in section 34 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain details of that criminal record;
'Department' means the department of the Public Service principally assisting the Minister in the administration of this Act;
…
'interim negative notice' means a written notice issued by the CEO under section 13;
'negative notice' means a written notice issued by the CEO under section 12(1)(b);
'non-conviction charge' means a charge of an offence that has been disposed of by a court otherwise than by way of a conviction;
…
'pending charge' means a charge of an offence that has not yet been disposed of by a court;
'specified', in relation to a notice, means specified in the notice;

Section 3 states that, in performing a function under the Act, the CEO or the Tribunal is to regard the best interests of children as the paramount consideration.
Section 6 defines the term 'child‑related work'. The term includes, relevantly for present purposes, work if the usual duties of the work involve, or are likely to involve, contact with a child in connection with a coaching or private tuition service of any kind (but not including an informal arrangement entered into for private or domestic purposes) and a club, association or movement (including of a cultural, recreational or sporting nature and whether incorporated or not) with a significant membership or involvement of children (but not including an informal arrangement entered into for private or domestic purposes).
Section 7 defines the meaning of 'Class 1 offence' and 'Class 2 offence'. It provides:
(1)A 'Class 1 offence' is -
(a)an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 1 offence;
(d)an offence that, at the time it was committed -
(i)was a Class 1 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
(2)A 'Class 2 offence' is -
(a)an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule relating to the age of the victim);
(b)an offence under a law of another jurisdiction the elements of which, if they had occurred in Western Australia, would have constituted an offence of a kind referred to in this subsection;
(c)an offence under a law of another jurisdiction that is prescribed by the regulations to be a Class 2 offence;
(d)an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in this subsection or subsection (1);
(e)an offence that, at the time it was committed -
(i)was a Class 2 offence for the purposes of this Act; or
(ii)in the case of an offence committed before the commencement of this section - was an offence of a kind referred to in this subsection.
It is unnecessary to reproduce the offences described in each of Sch 1 and Sch 2. The offences in Sch 1 relate, in general, to sex offences against children under the age of 13 years. The offences in Sch 2 include various sex offences against children and also offences which do not necessarily involve children but would ordinarily be regarded as rendering a person who has committed them (or, probably, has been charged with them) unsuitable to carry out work involving, or likely to involve, contact with children. I note, for present purposes, that the 'Class 2 offences' include the offence of indecently dealing with a child under the age of 13, contrary to s 320(4) of the Criminal Code 1913 (WA).
By s 9(1), a person who is, or is proposed to be, employed in child‑related employment by another person (the employer) may apply to the CEO for an assessment notice. On receiving the application, the CEO is empowered, by s 9(4), to ask the applicant to provide any further information or documents that the CEO reasonably needs to establish the applicant's identity or for a proper consideration of the application.
Section 12, which is concerned with the CEO's decision on an application for an assessment notice, is of central importance in the present case. It provides, relevantly:
(1)The CEO is to decide an application under section 9 … in accordance with this section -
(a)by issuing an assessment notice to the applicant; or
(b)by issuing a negative notice to the applicant.
(2)The CEO is not to decide the application unless the CEO has made a criminal record check in respect of the applicant.
(3)If the CEO is not aware of -
(a)any offence of which the applicant has been convicted; or
(b)any offence (other than an offence that is neither a Class 1 offence nor a Class 2 offence) with which the applicant has been charged,
the CEO is to issue an assessment notice to the applicant.
(4)If the CEO -
(a)is not aware of any offence of which the applicant has been convicted; and
(b)is aware that the applicant has a non-conviction charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(5)If the CEO is aware of an offence (other than a Class 1 offence or a Class 2 offence) of which the applicant has been convicted, the CEO is to issue an assessment notice to the applicant unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to the applicant.
(6)If the CEO -
(a)is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted;
(b)is aware of a Class 2 offence of which the applicant has been convicted; or
(c)is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the exceptional circumstances of the case, an assessment notice should be issued to the applicant.
(7)If the CEO is aware of a Class 1 offence (other than a Class 1 offence committed by the applicant when a child) of which the applicant has been convicted, the CEO is to issue a negative notice to the applicant.
(8)If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to -
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child-related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
(9)On deciding the application -
(a)the CEO is to issue the assessment notice or the negative notice, as the case requires, to the applicant; and
(b)if the CEO is aware that that applicant is, or is proposed to be, employed in child-related employment by another person - the CEO is to give a copy of the notice to the other person.
(10)When a negative notice is issued to an applicant, the CEO is to provide with it a written notice that -
(a)states the reasons for the CEO's decision on the application;
(b)states that the applicant may apply to the State Administrative Tribunal, within 28 days after the date of the negative notice, to have the decision reviewed; and
(c)explains how the application for the review is made.
By s 13(1)(a), if the CEO proposes or is required to decide an application under s 12 by issuing a negative notice to the applicant, the CEO is to give the applicant a written notice that informs the applicant of the proposal or requirement, states the information about the applicant's criminal record of which the CEO is aware, and invites the applicant to make a submission to the CEO, in writing or in another form approved by the CEO, within a specified time about the information and about the applicant's suitability to be issued with an assessment notice. Section 13(7) provides that, before deciding the application, the CEO is to consider any submission made by the applicant within the specified time.
By s 14(1), an assessment notice has effect for 3 years unless sooner cancelled under the Act. Section 14(2) provides that a negative notice continues to have effect unless it is cancelled under the Act.
Section 19 is concerned with applications for cancellation of negative notices.
By s 24, a person who does not have a current assessment notice must not be employed in child‑related employment or carry on a child‑related business. The penalty for a breach of s 24 is a fine of $60,000 and imprisonment for 5 years.
Section 26(2) provides, relevantly, that within 28 days after the date of a negative notice issued by the CEO to a person, the person may apply to the Tribunal for a review of the decision to issue the negative notice.

The respondent's 'non‑conviction charges'

On 1 April 1997, the respondent was charged, on indictment, with four counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code. Three of the counts concerned complainant A, who was a girl then aged 6 years. The other count concerned complainant B, who was complainant A's twin sister.
When the complainants' evidence was pre‑recorded, complainant A gave evidence about only two incidents of indecent dealing, and complainant B did not give any evidence about the count in the indictment concerning her. A new indictment was then presented which alleged only two counts of indecent dealing in relation to complainant A. The second indictment alleged that the indecent dealing was constituted, in each case, by the respondent having kissed complainant A. It was accepted, however, at the trial that the indecency in question comprised the respondent having allegedly kissed complainant A on the mouth and, in the course of doing so, putting his tongue in her mouth.
The negative notice issued in respect of the respondent under the WWC Act related to the two counts in the second indictment.
The respondent was tried in the District Court before a judge and jury on the two counts in the second indictment. The jury, by a majority verdict, found him guilty on both counts. The trial judge sentenced the respondent to a community based order for a term of 18 months and required him to perform 100 hours of community work.
The respondent appealed against his convictions and, on 8 June 1999, the Court of Criminal Appeal allowed his appeal, and ordered a retrial. The appeal was allowed on the ground that the trial judge had made an inadequate inquiry under s 106B of the Evidence Act 1906 (WA) as to whether complainant A understood that the giving of evidence was a serious matter and that she had an obligation to tell the truth over and above the ordinary duty to be truthful.
On 15 September 1999, the Crown entered a certificate of nolle prosequi, declining to proceed further on the two counts in question. The reasons for entering the nolle prosequi were that it was not in the public interest to proceed with the retrial in that it was necessary to call complainant A to give evidence, she was then aged only 9 years and a significant period had elapsed since the commission of the alleged offences.
Complainant A was born on 31 May 1990. The alleged offences occurred on 22 February 1997. Complainant A made a complaint to her mother on 25 February 1997. The respondent was interviewed by police on 28 March 1997 at his home, and later that day in a video‑recorded interview.

When the respondent was interviewed by police at his home, he told them, relevantly:
(a)He had kissed complainant A and her twin sister, complainant B, on the mouth, but he did not put his tongue in their mouths.
(b)Each complainant had slept with him in his bed.
(c)Each complainant wore a T‑shirt to bed.
(d)He wore boxer shorts and nothing else to bed.
(e)He kissed each complainant in his bed, while she was lying next to him.
(f)He also kissed complainant A on her mouth while she sat on his knee watching football.
A caution was not administered to the respondent before he made those statements. They were, in consequence, not led in evidence at his trial.
When the respondent was interviewed by police in the video‑recorded interview, he was cautioned. He then told the police that he did not wish to answer any questions.
The complainants' mother gave evidence at the trial, relevantly, as follows:
(a)In 1994, she and her family were living in Newman. Her children comprised complainant A, complainant B and a son, Matthew. She hired the respondent as a nanny on two occasions to care for her children. On both occasions, the respondent cared for the children at their home.
(b)In 1996, she separated from her husband, and moved to Perth with the children. She hired the respondent to care for her children on the weekend of 22 ‑ 23 February 1997. The respondent suggested to her that he care for the children at his house in Beckenham. On Friday, 21 February 1997, the respondent collected the children and took them to his house.
(c)The respondent returned the children to their mother on Sunday afternoon, 23 February 1997.
(d)The following night, her son, Matthew, told her that it was not fair that the respondent had permitted his sisters to stay up later than him, and that the children who were permitted to sleep in the respondent's bed were permitted to stay up late. Matthew said that complainant A had slept in the respondent's bed on one night of the weekend, and complainant B had slept in his bed on the other night.
(e)The next night, Tuesday, 25 February 1997, she spoke to complainant A, who told her that she had slept in the respondent's bed on the weekend and he had kissed her, put his tongue in her mouth, and tickled and rubbed her. When this conduct occurred she was wearing a nightie without underpants.
Complainant A gave evidence at the trial (which, as I have mentioned, was pre‑recorded), relevantly, that:
(a)On the first night in question, she slept in a room with the other children.
(b)On the second night, the respondent permitted her to stay up after the other children went to bed. She wore one of the respondent's T‑shirts and nothing else. The respondent wore boxer shorts.
(c)She sat on the respondent's lap, he kissed her on the lips and he put his tongue in her mouth.
(d)After this conduct, she went with the respondent to his bed. The respondent tickled her under the arms and on the stomach. He again kissed her on the lips and put his tongue in her mouth.
The respondent gave evidence at the trial, relevantly, that:
(a)He looked after the children at his house on the weekend in question.
(b)At night, each of the complainants did not 'settle'. They repeatedly got out of bed and hid from him.
(c)On the first night, he separated the complainants by placing complainant B in his bed.
(d)On the second night, complainant A repeatedly got out of bed. She watched football with him. He placed her in his bed and spoke with her for a while. He must have fallen asleep. When he awoke, a few hours later, he placed her in another room. He then returned to his bed.
(e)He kissed the children goodnight, but did not kiss complainant A with an open mouth, and he did not put his tongue in her mouth.
(f)At the material time, he usually wore boxer shorts to bed with a matching shirt or singlet. On the weekend in question he definitely wore boxer shorts, but he could not recall what top he was wearing.
(g)He usually kisses children on the cheek, but sometimes they move their heads and, as a result, kisses could connect with their mouths.
(h)Complainant A could have worn a T‑shirt on the relevant night. Her underpants were being laundered.
(i)When he placed complainant A in his bed, he did not intentionally kiss her on the mouth, but his kiss may have inadvertently connected with her mouth.

The respondent's application to the appellant, and the appellant's decision to issue a negative notice

On 1 January 2006, the WWC Act was proclaimed, and the Director of the Working with Children Screening Unit of the Department for Community Development was delegated all of the powers and duties of the CEO under that Act.
On 5 April 2006, the respondent applied to the Director of the Screening Unit for an assessment notice.
On 21 April 2006, the Screening Unit received details of the respondent's history in relation to criminal proceedings.
Between May and August 2006, the Screening Unit obtained additional information from the Director of Public Prosecutions in relation to the charges concerning complainants A and B.
By letter dated 15 August 2006, the Director of the Screening Unit informed the respondent that she was proposing to issue a negative notice, and invited the respondent to make a submission concerning the history of criminal proceedings against him and his suitability to be involved in child‑related work, before a final decision was made.
By letter dated 19 September 2006, the respondent, by his solicitors, made written submissions to the Director.
On 17 October 2006, the Director issued the respondent with a negative notice.

The nature of the proceedings before the Tribunal

In the present case, the proceedings before the Tribunal were within its review jurisdiction: s 17(1) of the SAT Act and s 26 of the WWC Act. By s 27(1) of the SAT Act, the review of a reviewable decision is to be by way of a hearing de novo. Section 29(1) of the SAT Act provides:
The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision.

The Tribunal's reasoning and decision: its general approach to s 12(4)

The Tribunal examined the provisions of the WWC Act, with particular emphasis upon s 12.
The Tribunal said, at [42], that because a decision‑maker should not issue a negative notice under s 12(4) unless satisfied that 'the particular circumstances of the case' require such a notice, there was a 'practical obligation' on the decision‑maker 'to show cause' why an assessment notice should not issue. The Tribunal added:
This means the decision‑maker should be able to point to relevant or material circumstances that are sufficiently cogent to justify the issuing of a negative notice. This reasonably follows, given the significant consequences for an applicant not obtaining an assessment notice, which may deprive him or her of an employment opportunity or otherwise limit their capacity to engage in the life of the community, and otherwise to have their reputation blackened, perhaps permanently [42].

The Tribunal's reasoning and decision: s 12(8)(a)

The Tribunal referred, at [45], to s 12(8)(a) which provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'the best interests of children'.
The Tribunal then said:
This may suggest this factor ranks equally with the other factors which are listed after it. However, nothing in s 12(4) or s 12(8) qualifies the principle set out in s 3 of the Act … that the best interests of children are 'the paramount consideration' when the CEO or the State Administrative Tribunal performs a function under the Act. It follows that while all the factors listed in s 12(8) must be regarded when the s 12(4) decision‑making function is exercised, the best interests of children are, and remain, the paramount consideration [45].
The Tribunal noted:
The paramount consideration established by s 3 of the Act reminds a decision-maker that factors personal to an applicant - for example, the fact that to deny an applicant an assessment may prejudice the applicant in their employment prospects or engagement in community affairs, or affect their reputation - cannot be relied on to outweigh the best interests of children. Put another way, the paramount consideration means that, if having regard to the particular circumstances of the case there is a wellfounded concern that the best interests of children might be put at risk if an assessment notice were to be issued, then a negative notice should be issued notwithstanding the adverse effect it may have on the applicant.
However, as the Minister's second reading speech recognises, in weighing the civil right of an applicant to receive an assessment notice against the particular circumstances of the case which might suggest otherwise, the decision-maker has the obligation to be satisfied - 'show cause' why, as the Minister put it - a negative notice should be issued. In other words, an applicant does not primarily have to prove that an assessment notice should be issued, rather the decision-maker must be satisfied, because of the particular circumstances of the case, that a negative notice should be issued [46] ‑ [47].
After reviewing the evidence before it in relation to the alleged offences, the Tribunal said:
… the Tribunal [cannot] reasonably conclude anything about what the jury would have decided if either an adequate enquiry had been conducted under s 106B [of the Evidence Act] and a finding of competency made, or if the child's testimony were conducted under s 106C [of the Evidence Act]. Nor can any safe findings be made on the strength of the varying accounts [86].
And it then said:
We are simply left with the account given by complainant A at the trial as to what occurred on the occasion of the applicant caring for her and her siblings, and the applicant's accounts at his trial and when interviewed at his home on 28 March 1997. On both these occasions, he denied that he had put his tongue in her mouth. The main difference in his two accounts is that the applicant initially accepted he kissed the girls on the mouth - something he said he always does with children.
Based on this information, it is difficult to find, as a particular circumstance of the case, that the applicant put his tongue in the mouth of complainant A.
In proceedings in the Tribunal, the civil standard of proof - proof on the balance of probabilities - ordinarily applies: McDonald v DirectorGeneral of Social Security (1984) 1 FCR 354 per Woodward J at 358. In a case such as the present, where the facts alleged against the applicant would amount to a criminal offence if those facts were proved, it is also appropriate to adopt what is commonly called the Briginshaw approach: see Briginshaw v Briginshaw (1938) 60 CLR 336 … [87] ‑ [89].
The Tribunal said, as to the making of findings of fact against the respondent in relation to the alleged offences:
It follows that the Tribunal should not lightly make a finding that, on the balance of probabilities, the applicant is guilty of the conduct of putting his tongue in the mouth of complainant A, as alleged against him. Given the quality of the accounts before the Tribunal, it is difficult to make any finding on this allegation. The task is made no less easy when regard is had to the prosecution history referred to above which shows that of an initial five complaints made against the applicant, only two proceeded to trial.
From the applicant's point of view, there will always be a concern expressed by people who are acquainted with complainant A's account of events, that the applicant indeed acted as she said he did. From the Tribunal's point of view, however, in the face of all of the evidence, the manner in which it is presented to the Tribunal, and its evidentiary status, it would not be reasonable to find that the applicant put his tongue in the mouth of complainant A when he kissed her.
Indeed, to find otherwise would not be to act according to equity, good conscience and the substantial merits of the case, as s 32(2)(b) of the SAT Act requires of the Tribunal [91] ‑ [93].
The Tribunal concluded, at [95], that it was not satisfied, as a matter of fact, that the respondent did put his tongue in the mouth of complainant A when he kissed her. It did accept, however, that the respondent had kissed her on the mouth.

The Tribunal's reasoning and decision: s 12(8)(b)

Section 12(8)(b) provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to 'when the offence was committed or is alleged to have been committed'.
The Tribunal observed that the alleged conduct occurred between 21 ‑ 23 February 1997; that is, some 10 years before the application for review. According to the Tribunal:
On one view, this is a reasonable length of time; on another, it is not so long ago. It is not a consideration that on its own determines the application [98].

The Tribunal's reasoning and decision: s 12(8)(c)

Section 12(8)(c) provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'the age of the applicant when the offence was committed or is alleged to have been committed'.
The Tribunal addressed this factor:
The applicant was born on 19 February 1963. Thus, at the time of the conduct alleged against him, he had just turned 34 years of age - indeed just two or three days earlier. He is now 44 years of age.
The age of a person at the time an offence was committed or was alleged to have been committed may reasonably be considered relevant on the basis that, amongst other things, if the applicant were relatively young at the time, he or she may have outgrown a certain immaturity they then had and may possibly be considered, taking into account other factors, unlikely to engage in such conduct again.
In this case, at the time, the applicant was a person who was no longer 'young' - he was 34 years of age. However, maturity does not always sit comfortably on the shoulders of 34-year-olds. The applicant has produced a number of references to support his personal and professional character, which suggest that, at least in recent years, a range of people appear to consider him to be mature enough to work with children.
What perhaps can be said is that there is some difference between a 44‑year-old man - who is properly to be referred to as approaching 'middle age' - and a 34-year-old man, who is still gaining experience in life, even if no longer 'young and immature'. This is a factor, but not one that on its own determines the application [100] ‑ [103].

The Tribunal's reasoning and decision: s 12(8)(d)

Section 12(8)(d) provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'the nature of the offence and any relevance it has to child‑related work'.
The Tribunal said that the nature of the charges against the respondent was highly relevant to child‑related work in that the incidents in question:
•occurred in the course of child-related work (babysitting or child minding service referred to in s 6(1)(a)(xiv));
•involved allegations of indecently dealing with a six-year-old girl;
•involved a substantial age difference between the applicant and complainant (34 years and six years respectively, at the time);
•involved an alleged breach of trust by the applicant by, at the very least, acting in an overly familiar way with the child; and
•occurred in a situation where no other adults were present [105].

The Tribunal's reasoning and decision: s 12(8)(e)

Section 12(8)(e) provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'any information given by the applicant in, or in relation to, the application'.
The Tribunal noted that the solicitors for the respondent had supplied various written references as to the respondent's character. The Tribunal also noted that the submissions from the respondent's solicitors made these points:
•The applicant has not only the knowledge and experience but he also has a flair for working with children, and therefore it is in the best interests of children that he be allowed to continue his 'child-related work'.
•As early as 1989, the applicant worked with children in a child care centre for a period of six months. In 1989 the director described the applicant as having 'an excellent rapport with children of all ages'.
•In 1994 the applicant worked for a mother of two children aged two-and-a-half and four years as a full-time caregiver. In 1994 she described him as having 'proved himself to be very capable and professional, and he showed commitment in his work with children as well as enjoyment'.
•The applicant has worked with the Scout Association as a Cub Scout Leader alongside a woman who has known him for 14 years both personally and professionally. In August 2006, she described the applicant as showing 'the utmost care and consideration for the children'.
•The applicant has assisted in running the graduation for a modelling school twice a year for the past 10 years. In 1994 the principal described the applicant as having 'a wonderful rapport with children' and in August 2006 she crystallised her praise for him by describing him as 'a gem who should be working with children'.
•The applicant has worked in Dial a Nanny for over 10 years as a nanny who has worked with children from two to 12 years of age. In August 2006 the manager described the applicant as having a 'natural flair and disposition in dealing with children'.
•In the tee-ball season prior to August 2006, the applicant joined a club [as] coach of the under 13s mixed tee-ball team. In August 2006 the President, whose own granddaughter participated in the team, and who had known the applicant for about 10 years, acknowledged his knowledge of and accreditation regarding tee-ball.
•The applicant is a member of the Tee-Ball Association of Western Australia and currently holds a coaching position, and his duties include not just training coaches but also coaching children. In September 2006 an official described him as a 'friendly and obliging member' of the committee.
•The applicant's sister, who has known him for 42 years, and left her children from eight-weeks-old to 12-years-old in his care, in August 2006 described her brother as 'highly respected by children of all ages' and as having 'a wonderful nature, caring, and has a very good relationship with [her] children'.
•The applicant was employed as a coach driver and had been for the three months before September 2006. His duties included driving international students who were mostly 18 years of age or older but were occasionally as young as 12 years of age, from the airport to their homes and at times from their homes to university and back.
•The character references demonstrate the applicant's trustworthiness and talent in working with children.
•The applicant has a long history of reliably and responsibly caring for and working with children and deserves to continue his child-related work in which he clearly excels.
•It would be both unjust and harsh to deprive the applicant of his livelihood as well as to deny him the opportunity to continue contributing to the wellbeing of children.
•The applicant may be subjected to a high degree of financial difficulty if he was issued with a negative notice as it would place his current employment in jeopardy.
•If the applicant is not issued an assessment notice he would be permanently barred from returning to his previous employment in childcare, in which he has more than 20 years' experience.
•The applicant would be disadvantaged in retraining for re-employment in the workforce and would suffer an onerous diminution in his earning capacity [115].

The Tribunal said that the references as to the respondent's character supported a view that he had a rapport with children and was not self‑conscious with them. The references assisted in addressing a concern that the respondent may currently have no greater insight 'into what is acceptable conduct when looking after children than he may be said to have had in 1997' [121].

The Tribunal's reasoning and decision: s 12(8)(f)

Section 12(8)(f) provides, relevantly, that if s 12(4) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case, having regard to 'anything else that the CEO reasonably considers relevant to the decision'.
The Tribunal concluded, at [123], that the various circumstances of the case had been dealt with adequately in the context of the other factors identified by s 12(8), and there were no particular additional factors to be given separate consideration.

The Tribunal's reasoning and decision: ultimate findings of fact and conclusion

The Tribunal then returned to the paramount consideration, namely, the best interests of children. It noted that reference to the paramount consideration 'cannot turn a mere concern for which there is no proper foundation into a fact or a probability' [126]. The Tribunal then gave the following example:
… in this case the paramount consideration cannot be relied on to support a finding that in all probability the applicant did put his tongue into the young girl's mouth when he kissed her [126].
The Tribunal's ultimate findings of fact are set out below:
In the end, having regard to the particular circumstances of the case - especially the Tribunal's conclusion that it cannot find that the applicant put his tongue into the mouth of the young girl when he kissed her - and regarding also the factors made relevant by s 12(8) of the Act, the Tribunal is not satisfied that a negative assessment should issue under the Act.
After the allegation that the applicant put his tongue in complainant A's mouth when he kissed her is put to one side as something that cannot be relied on when assessing the particular circumstances of the case, I do not think that the evidence that shows the applicant was overly familiar with his young charges when he cared for them in 1997 is a sufficient basis, 10 years after the event, for supporting a belief that the best interests of children would be put at risk if the applicant were now given an assessment notice under the Act to work with children in the future.
The applicant's own account at the time of what happened in 1997 plainly raises a concern that he may not now fully and properly appreciate how he is required to conduct himself when working with children. Against that concern, however, is the fact that the events in question, which gave rise to the allegations against the applicant, occurred 10 years ago. While the applicant was not necessarily a 'young and immature' man then, he is now 44 years of age. Nothing new has been raised against him.
The persons who have provided references for the applicant suggest he has a very good manner when working with children and they have seen no reason to be concerned that he lacks maturity in his dealings with children, such that he would breach the trust he owes to children when they are in his care.
As explained earlier, the decision-making function under the Act in a case such as that of the applicant is premised on the acceptance of the Parliament that a person is entitled to have an authorisation under the Act to work with children unless, in the case of non-conviction offences, the particular circumstances of the case require a negative assessment. The Tribunal is not satisfied that the particular circumstances of the case justify the issue of a negative assessment notice [129] ‑ [133].
The Tribunal therefore decided that the respondent's application for review should be allowed, and that an assessment notice should be issued under s 12(4).

The proper construction of the relevant provisions of the WWC Act and the CEO's function

It is convenient now to examine the proper construction of the relevant provisions of the WWC Act and the CEO's function.
The critical provisions, for present purposes, are s 3 and s 12(4) and (8).
In the present case, the respondent had two 'non‑conviction charges' in respect of a Class 2 offence. Section 12(4) applies if the CEO is not aware of any offence of which the applicant has been convicted and is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence. Section 12(8) provides, relevantly, that if s 12(4) applies 'in respect of an offence', the CEO is to decide whether he or she is satisfied in relation to the particular circumstances of the case having regard to the criteria in pars (a) ‑ (f) of s 12(8). Plainly, the reference in s 12(8) to s 12(4) applying 'in respect of an offence' is, relevantly, to a Class 1 offence or a Class 2 offence in respect of which the applicant has a non‑conviction charge.
By s 12(4), read with s 12(8), the CEO was obliged to issue an assessment notice to the respondent 'unless the CEO is satisfied that, because of the particular circumstances of the case, a negative notice should be issued to [him]'. Three aspects of s 12(4) should be noted. First, the provision is concerned with the CEO's state of mind; that is, his or her satisfaction. Secondly, the requisite satisfaction must be attained because of the particular circumstances of the case; that is, the particular circumstances of the applicant's application by reference to the criteria in pars (a) ‑ (f) of s 12(8). Thirdly, the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
What is the significance of the words, 'the CEO is satisfied', in s 12(4)?
As Gummow J explained in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, in the context of s 65 of the Migration Act 1958 (Cth), which entitled the respondent in that case to the grant of a visa only if the Minister were 'satisfied' that the respondent answered the description in s 36(2) of that Act:
The 'jurisdictional fact', upon the presence of which jurisdiction is conditioned, need not be a 'fact' in the ordinary meaning of that term. The precondition or criterion may consist of various elements and whilst the phrase 'jurisdictional fact' is an awkward one in such circumstances it will, for convenience, be retained in what follows. In Bankstown Municipal Council v Fripp [(1919) 26 CLR 385 at 403], Isaacs and Rich JJ pointed out that, with the object of preventing litigation on questions of jurisdictional fact, the legislature may introduce into the criterion elements of opinion or belief by the decision-maker (651) [130].
In my opinion, s 12(4) imposes on the CEO an obligation, relevantly, to evaluate whether or not, because of the particular circumstances of the case, a negative notice should be issued to the applicant. It is the existence of the CEO's satisfaction which enlivens the power to issue a negative notice. Compare Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, 302 ‑ 303 (Dawson, Gaudron, McHugh, Gummow and Kirby JJ); Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1999) 46 NSWLR 78, 90 ‑ 91 [38] ‑ [43].
I turn next to examine the meaning of the expression 'because of the particular circumstances of the case', in s 12(4).
Each of s 12(4) and s 12(5) refers to 'the particular circumstances of the case'. Those subsections are to be compared to and contrasted with s 12(6), which refers to 'the exceptional circumstances of the case'.
The criteria in pars (a) ‑ (f) of s 12(8) to which the CEO must have regard are:
(a)the best interests of children;
(b)when the offence was committed or is alleged to have been committed;
(c)the age of the applicant when the offence was committed or is alleged to have been committed;
(d)the nature of the offence and any relevance it has to child‑related work;
(e)any information given by the applicant in, or in relation to, the application;
(f)anything else that the CEO reasonably considers relevant to the decision.
It is apparent from the language of s 12(8) (in particular, the command that the CEO 'is to decide whether he or she is satisfied in relation to the particular … circumstances of the case having regard to' pars (a) ‑ (f), and the breadth of the criterion in par (f), namely, 'anything else that the CEO reasonably considers relevant to the decision'), that the criteria in pars (a) ‑ (f) constitute an exhaustive statement of the factors which the CEO is entitled and bound to take into account in deciding whether he or she has attained the requisite satisfaction. In other words, the CEO is bound to take into account each of the criteria in pars (a) ‑ (f), and is not entitled to take into account any other factors.
Although the CEO must give separate consideration to each of the criteria in pars (a) ‑ (f) of s 12(8), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. Section 3 states, relevantly, that in performing a function under the Act, the CEO (or the Tribunal) is to regard the best interests of children as 'the paramount consideration'. It follows from s 3 that the CEO, in performing the function conferred on him or her by s 12(4) and (8), must regard the criterion in par (a) of s 12(8), namely, the best interests of children, as the paramount consideration. If and to the extent that, in any case, a criterion in pars (b) ‑ (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) ‑ (f) must yield.
The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (b) ‑ (f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case. In some cases, for example, some of the criteria in pars (b) ‑ (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children.
I turn now to examine the requirement, in s 12(4), that the CEO must issue an assessment notice to the applicant unless the CEO is satisfied that a negative notice should be issued.
Section 12(4) is to be compared to and contrasted with s 12(5), (6) and (7). For example, s 12(6) provides that if the CEO is aware of a Class 1 offence (committed by the applicant when a child) of which the applicant has been convicted, or is aware of a Class 2 offence of which the applicant has been convicted, or is aware that the applicant has a pending charge in respect of a Class 1 offence or a Class 2 offence, the CEO is to issue a negative notice to the applicant unless the CEO is satisfied that, because of the 'exceptional circumstances' (as distinct from the 'particular circumstances') of the case, an assessment notice should be issued to the applicant.
In my opinion, if s 12(4) applies, the question for the CEO, in every case, is whether on the information and other material properly before the CEO, and having regard to the criteria in pars (a) ‑ (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), the CEO is satisfied affirmatively that a negative notice should be issued to the applicant. If the CEO attains the requisite satisfaction then a negative notice must be issued. Otherwise, the CEO must issue an assessment notice. It is unnecessary and, in my opinion, potentially conducive to error, to gloss that description of the statutory task by asserting that the CEO bears an onus or burden of proof, or that the CEO must show cause why an assessment notice should not be issued. Compare the observations of the Tribunal at [41] and the comments of the Honourable Ms S M McHale, the Minister for Community Development, Women's Interests, Seniors and Youth, in her second reading speech (Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947).
Although s 12(8) specifies the factors which the CEO is entitled and bound to take into account in deciding whether he or she is satisfied, for the purposes of s 12(4), that, because of the particular circumstances of the case, a negative notice should be issued to the applicant, neither of those subsections expressly states what finding, if any, the CEO must make in order to reach that satisfaction. What finding then, if any, must the CEO make in order to attain the requisite satisfaction?
The subject matter and scheme of the WWC Act reveal that the Act is concerned to ensure that children are not put at risk of sexual or physical harm through contact with people who work in child‑related employment and have been convicted of, or charged with, (including charged with and acquitted of) specified criminal offences. The evident legislative purpose is to protect children by reducing the risk that they may suffer harm as a result of contact with people engaged in child‑related employment who pose or may pose a potential threat. The Act does not have a punitive or disciplinary purpose even though, in its application or implementation, the civil rights of applicants who are issued with a negative notice will be affected adversely and, in some circumstances, those applicants with non‑conviction charges may suffer serious or even irretrievable damage to their reputations or a significant diminution in their earning capacity.
In my opinion, the Parliament has adopted a precautionary approach, relevantly, to the issue of a negative notice to an applicant who has not been convicted of a Class 1 offence or a Class 2 offence, but has a non‑conviction charge in respect of such an offence. The adoption of this approach is discernible from the following:
(a)the CEO in performing, relevantly, the function under s 12(4) and (8), is to regard the best interests of children as 'the paramount consideration';
(b)whether or not a negative notice is to be issued under s 12(4) depends upon the CEO's 'satisfaction' (that is, his or her state of mind) in relation to the particular circumstances of the case, rather than upon the existence of an objective 'fact', as ordinarily understood; and
(c)the CEO may decide an application under s 12 by issuing a negative notice to the applicant after, relevantly, inviting the applicant to make a submission to the CEO about information concerning the applicant's criminal record of which the CEO is aware and about the applicant's suitability to be issued with an assessment notice (s 13(1)(a)), without any provision for or contemplation of a hearing for the purpose of determining facts or any other question.
The existence of a precautionary approach generally in relation to protecting children from the risk of sexual or physical harm is also apparent from the Minister's second reading speech:
The Working with Children (Criminal Record Checking) Bill 2004 will mean that persons employed, or who volunteer to work with children, or who are in business, must have extensive checks of any criminal records. If they have certain convictions or charges assessed as putting children at risk of sexual or physical harm they will be barred from starting or continuing to work with children.
The working with children Bill is part of a suite of complementary legislation by this Government to protect children: the Children and Community Services Bill, which is twenty‑first century legislation to promote the wellbeing, including the protection, of children; the Acts Amendment (Family and Domestic Violence) Bill 2004, which will afford greater protection to victims of family and domestic violence, with a particular focus on the needs and protection of children; the Community Protection (Offender Reporting) Bill, which is currently before the House and will enable the whereabouts and circumstances of child sex offenders to be monitored and conditions to be placed on aspects of their lives that bring them in contact with children; and this Bill, which will deter and prevent people who have particular types of criminal history from seeking work or volunteering in situations in which harm can be done to our children.
In developing this legislation we have assessed the strongest elements of schemes in Queensland and New South Wales. We have also consulted with the Criminal Records Bureau in the United Kingdom. The chief and deputy chief executives of the CRB shared with me their expertise particularly in the light of the Bichard inquiry into the sexual assault and murder of two schoolgirls by Ian Huntley, a caretaker in their school. This Bill is more far reaching than the legislation in Queensland or New South Wales.
The intention of the Bill is to introduce a high standard of criminal record screening into areas of child‑related work. The legislation aims to protect children from harm by: deterring people from applying to work with children if they have criminal records that indicate they may harm children, preventing people with such criminal records who do apply from gaining positions of trust in certain paid and unpaid employment, establishing consistent standards for criminal record screening for working with children and the ethical use of such information; and contributing to awareness that keeping children safe is a whole‑of‑community responsibility. [emphasis added]
(Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6946.) Also see the Minister's comments in relation to cl 7(4) of the Bill which, upon enactment, became s 12(4) of the WWC Act:
The Bill provides that certain charges are to be checked. Not all offences against children result in convictions. Therefore, the Government has resolved that charges will be assessed also. We will not tolerate paedophiles who have escaped conviction for various reasons working with our children.
Charges related to class 1 and 2 offences will be assessed. These include those charges that did not result in a court conviction - known as non‑conviction charges - and pending charges yet to be decided by a court. This will enable consideration to be given to sexual and violent offences that have been dismissed on a technicality or have not proceeded because of the impact on the victim - particularly children - and the reliability of the evidence. It includes also cases that are awaiting a decision, during which time the risk is too high to allow persons to work with children. Queensland, New South Wales and the United Kingdom also assess charges for child‑related work.
(Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2004, 6947.)
Section 19(1) of the Interpretation Act 1984 (WA) permits a court to refer to extrinsic material, in the interpretation of a provision of a written law, if the material is capable of assisting in ascertaining the meaning of the provision, in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, or to determine the meaning of the provision when the provision is ambiguous or obscure or when the ordinary meaning conveyed by the text of the provision, taking into account its context in the written law and the purpose or object underlying the written law, leads to a result that is manifestly absurd or unreasonable. By s 19(2), the extrinsic material that may be considered in accordance with s 19(1) includes, relevantly:
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House;
Although my construction of s 12(4) and (8) and the other provisions of the WWC Act does not depend on any extrinsic material, I have considered the extrinsic material which I have set out at [78] above for the confirmatory purpose permitted by s 19(1)(a) of the Interpretation Act.

In my opinion, it is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in pars (a) ‑ (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child‑related employment.
The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other. It embodies the precautionary approach that I have mentioned.
'Unacceptable risk' is a familiar concept in the context of family law disputes in relation to parenting (custody or access) matters. In M v M (1988) 166 CLR 69, the High Court held that, in considering an allegation of sexual abuse in custody or access contexts, the Family Court should not make a positive finding that the allegation is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation: Briginshaw v Briginshaw (1938) 60 CLR 336, 362. The High Court also held, however, that custody or access should not be granted to a parent if it would expose the child to an 'unacceptable risk' of sexual abuse. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a 'risk of serious harm' (A v A [1976] VR 298, at p 300), 'an element of risk' or 'an appreciable risk' (Marriage of M (1987) 11 Fam LR 765, at pp 770, 771 respectively), 'a real possibility' (B v B (Access) [1986] FLC 91‑758, at p 75, 545), a 'real risk' (Leveque v Leveque (1983) 54 BCLR 164, at p 167), and an 'unacceptable risk': In re G (A minor) [1987] 1 WLR 1461, at p 1469. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access (78).
The High Court dismissed an appeal from the majority judgment of the Full Court of the Family Court, which had affirmed Gun J's decision. Also see Fardon v Attorney‑General for the State of Queensland [2004] HCA 46; (2004) 223 CLR 575, 657 [225] (Callinan and Heydon JJ); Murphy & Murphy [2007] Fam CA 795, [243] ‑ [305] (Carmody J).
It is not the CEO's function (under s 12(4)) or the Tribunal's function (on a review application) to adjudicate upon whether the applicant is, in fact and at law, guilty or not guilty of the non-conviction charge in question. The relevant function involves an analysis and evaluation of risk. It is not concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm.
The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child‑related employment. The risk in question has to be unacceptable, not likely. Even if the information and other material properly before the CEO does not establish according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw, that the applicant has previously caused sexual or physical harm to, or engaged in misconduct in relation to, a child or children, any material before the CEO which bears upon that issue does not, as a result, become irrelevant to the performance of his or her function. The critical question remains to be answered, namely, whether, on all the information and other material properly before the CEO, there is an 'unacceptable risk' of the kind I have described. Compare M v M (76 ‑ 78); Re H and ors (minors) [1996] AC 563, 572 ‑ 573 (Lord Browne‑Wilkinson, dissenting) and 576 ‑ 577 (Lord Lloyd of Berwick, dissenting); Murphy [243] ‑ [305] (Carmody J).
The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f), as the case may be) include, for example:
(a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);
(b)the apparent strength or weakness of the case against the applicant in relation to the non‑conviction charge in question;
(c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child‑related employment; and
(d)the likelihood of any such future risk materialising.
The analysis and evaluation of risk must be based on all the information and other material properly before the CEO. That material may include, in a particular case, the depositions and evidence of witnesses at a trial. It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.

Is the CEO empowered to issue an assessment notice subject to conditions?

A question arose, in the course of argument before this court, as to whether the CEO was empowered to issue an assessment notice, subject to conditions. The WWC Act does not make provision for the issue of an assessment notice (or any other notice) subject to conditions. Section 50(2)(b) of the Interpretation Act provides:
Without prejudice to the generality of subsection (1), where a written law confers power -
…
(b)to grant a licence, registration, lease, right, permit, authority, approval, or exemption, such power includes power to impose reasonable conditions subject to which such licence, registration, lease, right, permit, authority, approval or exemption may be granted;
…
By s 50(3) of the Interpretation Act, subject to s 3(3) of that Act, s 50 applies to written laws passed or made after the commencement of the Interpretation Act.
Section 3(3) of the Interpretation Act provides, relevantly, that a reference in s 50 to a written law passed or made after the commencement of the Interpretation Act shall be construed so as not to include any enactment which continues or directly amends, but does not repeal entirely, the text of an existing written law.
By s 3(1) of the Interpretation Act:
The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law -
(a)express provision is made to the contrary;
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c)in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.
Section 50(3) of the Interpretation Act provides, relevantly, that s 50 applies to written laws passed or made after the commencement of the Interpretation Act. Section 3(1) provides, relevantly, that, subject to the exceptions in pars (a), (b) and (c) of that subsection, the Interpretation Act applies to every written law passed or made before or after the commencement of the Interpretation Act. It is apparent from s 50(3), read with s 3(1), that s 50 does not apply to written laws passed or made before the commencement of the Interpretation Act.
Also, it is apparent that the statement in s 50(3) of the Interpretation Act that, relevantly, s 50 applies to written laws passed or made after the commencement of the Interpretation Act, is subject to the exceptions in pars (a), (b) and (c) of s 3(1). In other words, s 50 applies to a written law passed or made after the commencement of the Interpretation Act unless in relation to that written law:
(a)express provision is made to the contrary;
(b)in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c)in the case of subsidiary legislation, the intent or object of the Act under which that subsidiary legislation is made is inconsistent with such application.
I will assume, for present purposes, that an assessment notice is a 'right' or an 'authority' within s 50(2)(b) of the Interpretation Act. It is unnecessary to decide that issue.
In my opinion, the WWC Act reveals a Parliamentary intention that s 50(2)(b) of the Interpretation Act should not apply to the issue of an assessment notice. I am of that opinion for these reasons. First, the WWC Act is concerned with the prohibition of people who have been charged with or convicted of certain offences from carrying out child‑related work, as distinct from the general regulation of the carrying out of that work by such people. See, for example, the long title to the Act, the prohibitions embodied in ss 22 ‑ 24 concerning child‑related work, and the absence of any statutory framework for regulating, on an ongoing basis (for example, by supervision or by monitoring compliance with conditions) the carrying out of child‑related work by people who have been issued with conditional assessment notices. Secondly, the WWC Act makes provision in ss 14(1), 20 and 21 for the cancellation of an assessment notice. There is no provision, however, for the cancellation, variation or addition of conditions with respect to an assessment notice. Thirdly, the WWC Act does not differentiate, or make provision for differentiation, between the various categories of 'child‑related work', as defined in s 6(1), in the context of the issue of assessment notices or at all. The definition of 'child‑related work' has an extremely broad connotation. For example, it contemplates work which may or may not be performed by a person with or without supervision by adult persons with assessment notices (who have not been charged with or convicted of any of the offences with which the Act is concerned). The Act does not make provision for the issue of an assessment notice in relation to some categories of 'child‑related work', but not others.

Grounds of appeal

The appellant's grounds of appeal are these:
1.The learned President erred in law in determining, on a true construction of ss 12(4) and 12(8) of the Working with Children Act 2004 (the Act), that whether the respondent put his tongue into the mouth of the young girl when he kissed her (Reasons at [129]), that he was guilty as charged, was a relevant and critical issue to be determined by the Tribunal as part of the particular circumstances of the case in assessing whether or not to issue a negative notice.
2.The learned President erred in law in concluding at [130]:
'After the allegation that the applicant put his tongue into complainant A's mouth when he kissed her is put to one side as something that cannot be relied on when assessing the particular circumstances of the case … '
when the allegation remained a relevant matter in the particular circumstances of the case.
3.The learned President erred in law, having found that he was not satisfied that the [respondent] was, in effect, guilty as charged in failing to consider as relevant and part of the particular circumstances of the case all other matters in the criminal proceedings.
4.The learned President erred in law, in failing to consider whether or not there was a risk that the respondent may have been guilty as charged and the extent of that risk. Alternatively, the learned President failed to assess the risk to children of the unsubstantiated allegation.
5.The learned President erred in law in his assessment of the complainant's evidence at the trial of the respondent by stating at [79] that:
' … the Tribunal is bound to have regard to the fact that the courts have always weighed the evidence of children with caution. A similar caution is required of the Tribunal, especially in light of the requirement in s 32(2)(b) of the SAT Act, that the Tribunal act with equity, good conscience and according to the substantial merits of the case.
6.The learned President erred in law in concluding in all the circumstances that the respondent be issued with an assessment notice in that no Tribunal acting reasonably could have come to that conclusion.

The merits of grounds 1, 2, 3 and 4

It is convenient to deal with grounds 1, 2, 3 and 4 together.
The Tribunal's reasons reveal, relevantly:
(a)The Tribunal raised the following question for its consideration:
… what weight should the Tribunal now give the statements of complainant A and how does one weigh them against those of the applicant? [79].
According to the Tribunal, that issue was important because the respondent had never accepted that he put his tongue in complainant A's mouth when he kissed her. Further, the Tribunal noted that, at trial, the respondent said that he had accidentally kissed her on the mouth.
(b)The Tribunal said, at [89], that the facts alleged against the respondent, if proved, would constitute a criminal offence and it was therefore appropriate to adopt 'the Briginshaw approach'.
(c)The Tribunal said that, applying the 'Briginshaw approach', it should not 'lightly make a finding that, on the balance of probabilities, the [respondent] is guilty of the conduct of putting his tongue in the mouth of complainant A, as alleged against him' [91].
(d)The Tribunal concluded, at [92], that it would not be reasonable to find that the respondent had put his tongue in complainant A's mouth when he kissed her. It also concluded, however, at [95], that the respondent did, in fact, kiss her on the mouth.
After considering each of the criteria in pars (a) ‑ (f) of s 12(8), the Tribunal then turned its attention to the paramount consideration of 'the best interests of children' and said, at [126], that the paramount consideration could not be relied upon to support the finding that 'in all probability' the respondent put his tongue in complainant A's mouth when he kissed her. It observed that there must be a 'reasonable basis for a belief that the best interests of children would not be secured if the [respondent] were to be issued with an assessment notice' [127]. The Tribunal then said that, bearing this in mind, 'all factors should be considered in making a final determination' [128].
The Tribunal's ultimate finding (which was, at least, a material consideration in its decision to allow the review application, and set aside the CEO's decision to issue a negative notice), was made on the express basis that the allegation that the respondent had put his tongue in complainant A's mouth, when he kissed her, should be disregarded. In particular, the Tribunal said:
In the end, having regard to the particular circumstances of the case - especially the Tribunal's conclusion that it cannot find that the applicant put his tongue into the mouth of the young girl when he kissed her - and regarding also the factors made relevant by s 12(8) of the Act, the Tribunal is not satisfied that a negative assessment should issue under the Act.
After the allegation that the applicant put his tongue in complainant A's mouth when he kissed her is put to one side as something that cannot be relied on when assessing the particular circumstances of the case, I do not think that the evidence that shows the applicant was overly familiar with his young charges when he cared for them in 1997 is a sufficient basis, 10 years after the event, for supporting a belief that the best interests of children would be put at risk if the applicant were now given an assessment notice under the Act to work with children in the future [129] ‑ [130].
In my respectful opinion, the Tribunal acted erroneously in making its ultimate finding on the premise that the material before it in relation to the alleged act of indecency should be disregarded. It failed to address the respondent's review application in the manner I have described at [85] ‑ [87] above. As a result of that failure, the Tribunal did not take into account, as it was bound to, the following matters, in determining whether there was an 'unacceptable risk' of the kind I have described:
(a)the complaint which complainant A made immediately to her mother;
(b)the recent complaint evidence which the mother gave by way of deposition and at trial;
(c)the coherence of complainant A's evidence at trial, to the extent that this could be ascertained reliably from the transcript;
(d)the consistency between complainant A's evidence and her mother's evidence, and the extent to which complainant A's evidence differed from the respondent's evidence;
(e)at least 10 members of the jury accepted that complainant A's evidence was truthful and reliable at the trial, in that the jury returned majority verdicts of guilty on two counts of indecent dealing;
(f)the respondent did not allege, in his appeal, that the verdict was unreasonable or not supported by the evidence;
(g)the trial miscarried because the trial judge failed to comply with a statutory requirement concerning the oath sworn by complainant A, but otherwise there was no attack on the quality or probative value of her evidence;
(h)in allowing the appeal and quashing the convictions, the Court of Criminal Appeal did not enter a verdict of acquittal, but ordered a retrial, thereby accepting there was sufficient evidence that was capable of sustaining a conviction; and
(i)the retrial did not proceed because the Director of Public Prosecutions entered a nolle prosequi on the grounds that it was necessary to call complainant A to give evidence, she was then aged only 9 years and a significant delay had elapsed since the commission of the alleged offences.
The matters I have enumerated are not intended to be exhaustive.
The error which I have identified in the Tribunal's approach is attributable to a misconstruction of the CEO's function under s 12(4) and (8) of the WWC Act, and its function on a review application. Grounds 1, 2, 3 and 4 allege, at least to that extent, an error of law, and the appeal is therefore brought 'on a question of law' within s 105(1) of the SAT Act. The relevant error has been made out.

The merits of ground 5

The Tribunal said that the Tribunal was bound to have regard to 'the fact that courts have always weighed the evidence of children with caution' [79].

In my view, the regime provided by s 12 is clear. Under s 12(3), if the CEO is not aware that the applicant has any conviction or has been charged with a Class 1 or a Class 2 offence, an assessment notice is required to be issued. At the other end of the scale, by s 12(7), if the CEO is aware of a conviction, other than as a child, of a Class 1 offence, a negative notice is required to be issued. In these cases, therefore, the only relevant circumstance is the presence of or the lack of a conviction or charge. No decision as such about whether or not to issue an assessment notice or a negative notice is required of the CEO.
Such a decision is, however, required if s 12(4), (5) or (6) applies to the case, and it will be seen that in the various circumstances described in those subsections, the Act leans towards either the issue of an assessment notice or, under subsection (6), a negative notice. If s 12(6) applies, a negative notice is to be issued unless the CEO is satisfied that an assessment notice should be issued 'because of the exceptional circumstances of the case', which obviously then must be the subject of inquiry, having regard to the matters listed in s 12(8).
A similar approach is to be taken if subsection (4) or (5) applies and, as has been seen, it was s 12(4) which applied to this case. In these cases, the Act leans towards the issue of an assessment notice, but not so strongly as it leans towards the issue of a negative notice in a case to which s 12(6) applies. In a case to which subsection (4) or (5) applies, an assessment notice is to be issued unless the CEO is satisfied that a negative notice should be issued, 'because of the particular circumstances of the case'. Again, however, it seems to me to be clear that an inquiry is to be made into the circumstances.
In this case, the inquiry was to be made into the circumstances which illuminated the significance of the non‑conviction charges in respect of the decision whether, as in the ordinary case, an assessment notice should issue, or whether there were particular circumstances which, having regard to the matters listed in s 12(8), dictated that a negative notice was required. It would be rare indeed, I think, that the mere fact of the existence of a non‑conviction charge could have any bearing upon the decision of the case beyond determining the general statutory framework in which, under s 12, the decision was to be made.
I note that under s 34(4), the criminal record check to be made by the CEO may include a request 'for information about the circumstances of a conviction or charge mentioned in the criminal record'; ie: the facts of the case.
As to the matters to which s 12(8) refers, and to which the decision‑maker is to have regard in the inquiry about the relevant circumstances of the case, it is evident, I think, that the matters set out, apart from the reference to the best interests of children in s 12(8)(a), are matters concerned with the circumstances which illuminate the nature and circumstances of the offence committed or charged, bearing upon the question whether, to serve the paramount consideration of the best interests of children, it is necessary despite the fact that the statute points to the conclusion that an assessment notice will issue, that a negative notice should be issued.

Did the Tribunal err in law generally?

In my opinion, the Tribunal proceeded exactly as the Act required and no error of law was made in relation to the matters considered. The existence of the non‑conviction charges having been established, the mere fact that they existed said nothing about the relevant circumstances of the case to determine whether the best interests of children would justify the issue of a negative notice.
As to the circumstances, as a matter of fact, not law, it was open to the Tribunal to decline to be persuaded, on the balance of probabilities, that the respondent put his tongue into the mouth of the child on two occasions when kissing her on the mouth. The act was therefore devoid of the sexual connotation which that would entail, and the Tribunal was left with the inappropriate behaviour which it found, the kissing on the mouth itself, and bringing the child into the respondent's bed to sleep.
It is not suggested that any error of law was made in having regard to when this occurred, the age of the respondent at the time, the period of time which had elapsed since, and the significance of the testimonials to indicate that the respondent had acquired some maturity and proper judgment about the way to deal with small children which he may have lacked 10 years earlier. As a matter of fact, in my opinion, the conclusion of the Tribunal that a negative notice was not required and therefore that an assessment notice should issue, was well open.
With respect to Wheeler and Buss JJA, while I think it may be useful to place a gloss on the statutory language by saying that the CEO or the Tribunal was required to consider whether there was an unacceptable risk of harm to the best interests of children (relying on the decision of the High Court in a quite different context in M v M (1988) 166 CLR 69 at 78), I am unable to discern that in any respect the Tribunal made an error of law in its decision about the circumstances of the case bearing on the question whether, in the best interest of children, a negative notice should be issued.
While the Tribunal noted the way in which the charges had been dealt with and how they resulted in being no more than non‑conviction charges within the meaning of the Act, its focus was rightly on what it was able to find had occurred, what it concluded were the circumstances of the case, before applying the paramount consideration as required by the SAT Act, s 27(2) as 'at the time of the decision upon the review'.
In concluding his discussion of grounds 1 ‑ 4, Buss JA sets out a number of matters which he says the Tribunal was bound to take into account but did not. In my respectful view, the Tribunal did not overlook these matters. Indeed, it mentioned, in the published reasons, many of them, and it was clearly aware of all of them. They were matters not given particular prominence as assisting to establish the relevant circumstances of the case by either party before the Tribunal, and in my opinion it is clear that they were simply not accorded weight in the decision reached by the Tribunal upon the review. If the Tribunal erred in that regard, its error was one of fact.
I refer to matters such as the fact that the charges, originally four in number, resulted from complaints elicited by the twins' mother when she questioned them about the events of the weekend. There were apparently, originally three charges laid in respect of the particular complainant with which the case is now concerned. The story changed and two only went to trial. There was, however, a certain consistency between the child's initial complaints to her mother and her evidence at the trial, which no doubt bolstered her credibility, but in my view could not be legitimately used at the trial or before the Tribunal as corroborative of the accuracy and reliability of the account given by the child.
Buss JA refers to the consistency of the child's evidence in that regard, and contrasts it to the different evidence given by the respondent, which itself had points of general consistency with, but also points of difference from, the things he said when he was interviewed by the police at his home. These matters were all noticed by the Tribunal, which commented upon the difficulty in sorting out which was the accurate and reliable account on documentary material alone.
It did not help that task to note that there had been majority verdicts of guilty returned by a jury, and it did not help that there was evidence which the jury might accept which was capable of supporting those verdicts. Nor did it help to establish the circumstances of the case to consider why the convictions were quashed by the Court of Criminal Appeal, that the proper decision of that court was to order a re‑trial, and why the DPP entered nolles prosequi. However that may be, in my view there was no error of law by the Tribunal of the kind identified in grounds 1 ‑ 4.

Did the Tribunal err in law in considering the weight to be given to the evidence of the child?

Ground 5 complains of an error in law by the Tribunal in its assessment of the weight to be accorded to the child's account of what occurred. The ground identifies a passage in [79] of the Tribunal's reasons, where it made the observation, in discussing the weight to be placed on the account given by the child, that, 'the Tribunal is bound to have regard to the fact that courts have always weighed the evidence of children with caution'. Buss JA points out, rightly, that under the relevant provisions of the Evidence Act, and having regard to the discussion of law in Reference of a Question of Law (No 1 of 1999) [1999] WASCA 53; (1999) 106 A Crim R 408, children are no longer generally classified as a matter of law as unreliable witnesses, although it is recognised that in some cases the evidence of an individual child witness may need to be approached with caution. The Tribunal pointed out that under the SAT Act, s 32(2), the Evidence Act does not apply to the Tribunal's proceedings, and the Tribunal is not bound by the rules of evidence.
I do not see the observation made by the Tribunal as one involving a material error of law, although taken at face value one may doubt its accuracy as a statement of the approach to be taken to the evidence of children generally. The observation was made in the course of that part of the reasons in which the Tribunal expressed its concern about the incapacity to resolve conflicting evidence of the child and the respondent. In the end, upon the state of the evidence before it, as has been seen, the Tribunal found that it could not resolve that conflict against the respondent so as to make the finding that in kissing the child on the mouth the respondent put his tongue into the child's mouth. That was not a decision reached by according to the information coming from the child less weight than was given to that emanating from the respondent. The Tribunal simply found itself incapable of resolving the conflict, and to that extent the observation of which complaint is made was unnecessary and immaterial. I would not uphold ground 5.

Wednesbury unreasonableness

Ground 6 assets that the Tribunal's decision to allow the review application to set aside the decision of the delegate of the CEO and to order the issue of an assessment notice under s 12(4) of the WwC Act involved an error of law, 'in that no tribunal acting reasonably could have come to that conclusion'. As the argument was presented, the ground relies upon unreasonableness in the sense of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. There is no doubt that a decision tainted in that way involves an error of law because it is ultra vires the statutory grant of power (in that case, an unfettered power to impose conditions on the grant of a licence). When what is done cannot, in the Wednesbury sense, reasonably be taken to be an exercise of the power granted, then the nature of the power has been misconceived and an error of law has been made.
But it is important to understand what is meant by unreasonableness in this doctrine. The passage generally relied upon is that found in the judgment of Ld Greene MR at 230, where his Lordship said:
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … [The] proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable, a different thing altogether.
What must be established, therefore, if this ground is to be made out, is that the decision of the Tribunal, having regard to the particular circumstances of the case as they are known, and as they were presented to the Tribunal, that it was not persuaded that a negative notice should be issued to the respondent and therefore that an assessment notice was to issue in accordance with the statutory scheme, was so unreasonable, so insupportable, that no reasonable tribunal understanding the nature of the decision to be made could possibly have come to it.
In my opinion, this is a case where it is apposite to bear in mind the remarks of Ld Brightman in R v Hillingdon London Borough Council; Ex p. Puhlhofer [1986] AC 484 at 518. His Lordship concluded his judgment on an unsuccessful appeal against the provision by the local government of allegedly inadequate accommodation to homeless persons by pointing out that the grant of a remedy by way of judicial review was discretionary, and he sought to discourage applications for such relief by saying:
The ground upon which the courts will review the exercise of administrative discretion is abuse of power - eg, bad faith, a mistake in construing the limits of the power, a procedural irregularly, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity. Where the existence or non‑existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision‑making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.
I have said enough about the particular circumstances as they were presented to, and as found by, the Tribunal. It is sufficient, in relation to this ground, to express the view that there was an ample basis within the proper exercise of the decision‑making power entrusted to the Tribunal for the decision it made. This ground cannot succeed and I would therefore dismiss the appeal to this court.

Suppression of the respondent's name

In view of the nature of its decision, the Tribunal thought it right in the interests of justice to make two orders; firstly, that the name of the respondent should not be published, and secondly, that the materials received by the Tribunal in support of his application should not be published. There is nothing to indicate that the Tribunal's hearing of the review application was held in private or in the presence of only specified persons, although such an order may be made under s 61 of the SAT Act. The powers exercised by the Tribunal are those provided by s 62(1)(b) and (c), and s 62(3) of the SAT Act.
The Tribunal's reasons are contained in its decision at [146] ‑ [150] which have been set out by Buss JA and need not be repeated here. It is clear that the Tribunal was moved by the consideration that the legitimate public interest in the outcome of the case was in knowing the decision made and the reasons for it, rather than having particulars identifying the respondent. The Tribunal thought this to be an exceptional case where the general principle that its hearings were to be held in public and published to the world at large should give way to the interests of justice which dictated that the applicant's identifying particulars should not be published.
Of course, that was in the context of the decision not to issue a negative notice to prevent the respondent working with children, a decision which I would not upset. I note also that there is no appeal against the orders so made.
As to the question whether this court should exercise its inherent power to suppress or restrict publication of the particulars capable of identifying the respondent, I consider that the same principle should be applied as by its statute guided the decision of the Tribunal. Particulars identifying the respondent should be published no more widely than is required to secure the effective operation of the final order of the court and the attainment of the paramount principle of the best interests of children.
So far as this court is concerned, hearing the appeal, I take the principles to be applied to be those adumbrated in Re Bromfield SM; Ex p. West Australian Newspapers Ltd (1991) 6 WAR 153. The fundamental principle is the principle of open justice. Proceedings should take place in open court or at least be accessible to the public at large so that the court or tribunal remains accountable and its processes subject to public scrutiny. But it must never be forgotten that the court or tribunal has the paramount duty to administer justice according to law, and it therefore has inherent jurisdiction to make orders in appropriate terms to modify the application of the principle of open proceedings where it is necessary in the interests of justice that that be done.
In other words, the principle of open justice may not be allowed to operate in a way which threatens the attainment of just process and a just result. The orders which may be made may include closing the court, generally or to specified persons, for all or some part of the proceedings or, without so doing (as in this case), restricting publication in some manner. It is important, however, that the court or tribunal should bear firmly in mind that no greater derogation from the principle of open justice than is required to advance the interests of justice in the particular case should be permitted.
In this case it seems to me, with respect, that the Tribunal was right to observe that the public interest lies in having access to the proceedings both before the Tribunal and in this Court in such a way as to make clear the manner in which the WwC Act is being administered in the Tribunal and by the Court, so that there may be public confidence that the best interests of children are being served and the Act is operating as was intended.
But in this case publication of the material under discussion, whether the proper decision is the issue of an assessment notice or the issue of a negative notice, has a potential to interfere with the ordinary rights of the respondent, as well as the child in question, by exposing them to unfair criticism or notoriety in the community, and so far as the respondent is concerned, by interfering with his privacy and preventing him, in a practical sense, from participating in the affairs of the community in a full and useful way.
I remind myself that by s 12(9), where an assessment notice or negative notice is issued to the applicant, if that person is known by the CEO to be or proposes to be employed in child‑related employment by another person, the CEO is to give a copy of the notice to that other person. Further, under s 22, offences are committed by a person who employs or proposes to employ another person in the performance of child‑related work in connection with a child care service if the person does not have a current assessment notice or at least a pending application for such a notice.
Finally, ss 23 and 24 provide offences committed by persons who are employed in child‑related employment or carry on a child‑related business who have had negative notices issued to them or who do not have a current assessment notice. Therefore, wide publication in the community would seem to be unnecessary for the proper enforcement of the Act and to secure the best interests of children in respect of persons convicted of or charged with the relevant offences.
I note that in making the submissions invited by the Court as to whether any order restricting publication should be made, the appellant said it 'has no interest in whether or not the respondent's name is published'. To do so now, it observes, 'would be to subvert orders of the Tribunal which have not been the subject of an appeal'. On the other hand, I appreciate the force of the submissions in support of the principle of open justice and, referring to the position adopted by the courts, that derogation from that principle will only be permitted in exceptional cases where there are cogent reasons to suppose that if a suppression order is not made, harm may be done to the interests of justice in a way which is not necessary to the attainment of justice in the particular case.

If the final outcome of these proceedings is the issue of an assessment notice, in my opinion, substantially for the reasons given by the Tribunal, the Court should continue in relation to the proceedings on the appeal the suppression of publication ordered by the Tribunal. The respondent should not be identifiable or identified and the materials before this Court which may have that effect should be suppressed from publication.
In my opinion also, that should be the result if the final outcome of these proceedings is the issue of a negative notice. Wide publication is not necessary for the effective operation of such a notice, and publication of identifying particulars may do harm to the respondent in his participation in the affairs of the community in ways which have nothing to do with the attainment of the objects of the Act and the issue of such a notice.
In any event, in my opinion, not only should the documents before the Court not be published, but the reasons for decision of the judges of this Court should be published in a way which does not identify either the respondent or the child or children involved in the proceedings. In my opinion, to take that course by making appropriately worded orders would in no way derogate from the right of the community to know how proceedings under the Act were being dealt with by the courts, would in no way harm the effective operation of either an assessment notice or a negative notice and would be calculated to serve the interests of justice arising in the case in respect of the preservation of the privacy of the respondent and the children involved.