DARLOW and MANAGER, SCREENING & ASSESSMENT, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES - [2025] WASAT 10

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKING WITH CHILDREN (SCREENING) ACT 2004 (WA)
CITATION:   DARLOW and MANAGER, SCREENING & ASSESSMENT, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES [2025] WASAT 10
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   4 FEBRUARY 2025
DELIVERED          :   4 FEBRUARY 2025
PUBLISHED           :   7 FEBRUARY 2025
FILE NO/S:   VR 21 of 2024
BETWEEN:   ANTHONY DARLOW
Applicant
AND
MANAGER, SCREENING & ASSESSMENT, WORKING WITH CHILDREN SCREENING UNIT AS THE DELEGATE FOR THE CHIEF EXECUTIVE OFFICER, DEPARTMENT OF COMMUNITIES
Respondent

Catchwords:

Working with Children (Screening) Act 2004 (WA) - Application for an assessment notice - Negative notice issued - Offence under a law of another jurisdiction - Offences of 'knowingly possess child pornography' committed in 2001 and 2006 in Victoria - Whether Class 1 or Class 2 offences - Construction of s 7(1)(c) and s 7(1)(d) - Whether 'of a kind' to offence of 'possession of child exploitation material' under s 220 of the Criminal Code (WA) - Meaning 'of a kind' - Whether s 12(7) applies - Construction of s 12(7) including whether there is discretion to issue an assessment notice - Applicable law - Whether proceeding misconceived or lacking in substance - Proceeding dismissed under s 47(2) of the State Administrative Tribunal Act 2004 (WA)

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), (repealed), s 60
Crimes Act 1958 (Vic) (repealed), s 67A, s 70, s 70(1)
Criminal Code Act Compilation Act 1913 (WA), s 217A, s 220
Sex Offenders Registration Act 2004 (Vic)
State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 47(2)
Working with Children (Criminal Record Checking) Act 2004 (WA)
Working with Children (Criminal Record Checking) Amendment Act 2022 (WA)
Working with Children (Screening) Act 2004 (WA), s 7(1)(c), s 7(1)(d), s 7(3), s 7(3)(a), s 7(3)(b), s 12(3), s 12(7), s 26(2), s 62, s 63, Sch 1
Working with Children (Screening) Regulations 2005 (WA), Sch 2

Result:

Proceeding dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) because it is misconceived or lacking in substance

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms M Jones

Solicitors:

Applicant	:	N/A
Respondent	:	Department of Communities - Legal Practice

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

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Laurent and Commissioner of Police [2009] WASAT 254
Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard and an oral decision was delivered on 4 February 2025. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and setting out).

Introduction

The Working with Children (Criminal Record Checking) Act 2004 (WA) (WWC Act) was enacted to reduce the risk of harm to children by persons who work with them.
The WWC Act was amended by the Working with Children (Criminal Record Checking) Amendment Act 2022 (WA). The amendments commenced on 1 July 2023. The legislation is now called the Working with Children (Screening) Act 2004 (WA). I will refer to this current legislation as the Act.
The WWC Act implemented a screening process whereby a person must pass a compulsory working with children check before they can work with children. The screening process is administered by the Respondent. That screening process continues in the Act.
If a person passes the screening process, they will receive an 'assessment notice' approving them to work with children. They will also be issued with what is commonly known as a working with children card.
If the person does not pass the screening process, for example because they have a conviction or have been charged with an offence which indicates they pose, or may pose, a risk of physical or sexual harm to children, the person will be issued with a 'negative notice'. The effect of the negative notice is that the person will not be able to work with children.
The Respondent issued Mr Darlow with a negative notice on 23 February 2024, together with reasons. The negative notice barred him from being able to work with children.
The basis for the negative notice was that Mr Darlow has two convictions for the offence of 'knowingly possess child pornography' in Victoria.
The first 'knowingly possess child pornography' offence was committed on 28 June 2001, and Mr Darlow was convicted of that offence on 22 February 2002.
The second 'knowingly possess child pornography' offence was committed on 5 March 2006, and he was convicted of that offence on 30 November 2006.
Mr Darlow agrees with the dates for the first offence but believes that the second offence was committed in 2004, and that his court date was delayed due to his having an accident. However, the court records, and information from the Victorian police state an offence date of 5 March 2006. This would likely be, as the Respondent has pointed out, the date police found the child pornography in his possession, although he may have possessed it from an earlier date in 2004.
For reasons I will explain below, the date of the offence does not make any difference to the outcome of this proceeding.
On 2 March 2024, Mr Darlow applied to this Tribunal for a review of the Respondent's decision to issue him with the negative notice.

This proceeding

The Respondent has asked the Tribunal to dismiss Mr Darlow's application under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) on the ground that it is lacking in substance.
The Respondent says that Mr Darlow's application is lacking in substance because s 12(7) of the Act, which requires the CEO to issue a negative notice, applies. That is, the Respondent says that there was no discretion but to make that decision because Mr Darlow's offences are Class 1 offences, and consequently s 12(7) of the Act requires a negative notice to be issued.
Mr Darlow disputes that his offences are Class 1 offences. He says that at the time he committed the offences, they were classified as Class 2 offences. He says that the WA Act was amended in 2023 to change offences of possession of child pornography from Class 2 offences to Class 1 offences, and as his offences were committed before the 2023 amendments, they continue to be Class 2 offences. On the other hand, he says that the law of Victoria should prevail, and that the Sex Offenders Registration Act2004 (Vic), classifies 'possession of child abuse material' as a Class 2 offence. He also says that, with respect to the first of the offences, that s 60 of the now repealed Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (Classification Act), which the Respondent relied on in one of their submissions as an equivalent WA offence, was not in force at the time he was convicted of the first offence. Mr Darlow also thought that the Respondent relied on a Commonwealth offence concerning possessing child pornography through a postal or carriage service, which he says is not equivalent to the elements of his 'knowingly possess child pornography offences' because there was no element of a postal or carriage service.
The Respondent says that, applying the relevant provisions of the Act, the offences are Class 1 offences, despite the offences being committed prior to the 2023 amendments. They do not rely on any Commonwealth offence (as set out in Sch 2 of the Working with Children (Screening) Regulations 2005 (WA)). They primarily rely on Mr Darlow's offences being 'of a kind' to the current offence of 'possession of child exploitation material' in s 220 of Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code (WA)) in accordance with s 7(1)(c) and s 7(1)(d) of the Act.

The issues

Thus, the issue before me is essentially one of statutory construction.
I must decide whether either or both of Mr Darlow's offences are Class 1 offences and whether s 12(7) of the Act applies. If it does, a negative notice must be issued, and there is no discretion to consider otherwise. That would mean that Mr Darlow's application should be dismissed on the basis that it is 'misconceived or lacking in substance' because it would be untenable, manifestly groundless and could not possibly succeed if it progressed to a hearing.
I will now work through the relevant statutory framework as it applies to Mr Darlow's situation.

Are Mr Darlow's Victorian convictions Class 1 offences under the Act?

The provision under which Mr Darlow was convicted, which has now been repealed, was s 70(1) of the Crimes Act 1958 (Vic) (Crimes Act). That section provided:
70.Possession of child pornography
(1)A person who knowingly possesses child pornography is guilty of an indictable offence.
Section 7(1)(c) of the Act (that is, the WA Act), defines a 'Class 1 Offence' to include:
an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; …
Section 7(1)(d) of the Act provides an alternative definition of a Class 1 offence to include:
an offence committed, or alleged to have been committed, before 1 January 2006 that is an offence of a kind referred to in this subsection; …
The offences of 'a kind referred to in this subsection' are Class 1 offences which are set out in Sch 1 of the Act.
The Respondent says that the offences that Mr Darlow was convicted of were 'offence(s) of a kind' to the WA offence of 'child pornography' in s 220 of the Criminal Code (WA), which is listed in Sch 1 as being a Class 1 offence. Section 220 of the Criminal Code (WA) provides:
220.Possession of child exploitation material
A person who has possession of child exploitation material is guilty of a crime and is liable to imprisonment for 7 years.
The Respondent's written submissions also referred to s 60 of the now repealed Classification Act. At the hearing today, the Respondent confirmed that they did not rely on s 60 because the definition of 'child pornography' in the Classification Act had some slightly different elements to the offences Mr Darlow was convicted of.
In my view, s 7(1)(c) of the Act is the applicable provision to Mr Darlow's situation because it refers to offences committed in another jurisdiction. I therefore need to consider if Mr Darlow's offences under s 70(1) of the Crimes Act are 'of a kind' to the offence of 'possession of child exploitation material' in s 220 of the Criminal Code (WA).
The wording 'of a kind' indicates that the elements of each offence do not need to be identical. Having regard to the ordinary or natural meaning of the word, 'kind', in my view, the elements of each offence need to be common in their essential characteristics.
The Respondent has helpfully set out the elements of the offences in written submissions dated 16 September 2024.
The elements of the offence of 'knowingly possess child pornography' under s 70 of the Crimes Act, that applied on 28 June 2001 and 15 March 2006 when the offences were committed can be summarised as:
•a person possesses a thing;
•the thing is child pornography; and
•the person possesses the child pornography knowingly.
At the time of the 2001 offence, 'child pornography' was defined in s 67A of the Crimes Act as:
a film, photograph, publication or computer game that describes or depicts a person who is, or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context.
That definition was substantially similar at the time of the 2006 offence. It read:
a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context.
The key difference in the definition in 2006 was that a minor was defined as a person under the age of 18.
With respect to s 220 of the Criminal Code (WA), the elements are:
•a person possesses material; and
•that material is child exploitation material.
The definition of 'child exploitation material' is in s 217A of the Criminal Code (WA) to include 'child pornography' which is defined as:
… material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child —
(a)engaging in sexual activity; or
(b)in a sexual context; …
In my view, the first two elements of the Victorian offence and the WA offence are substantially similar. The first elements involve possession. The second element involves child pornography being possessed.
I note that the Crimes Act contains the word, 'knowingly', but in my view that does not preclude a comparison being drawn and it merely suggests that the offence may be more difficult to prove in Victoria. For completeness, in my view Mr Darlow's situation is different from Lu and Chief Executive Officer, Department for Child Protection [2013] WASAT 69 (Lu). In Lu, the WA offence had the element of consent, whereas the offence committed by Mr Lu did not. That is, in Lu, it was the WA offence that was more onerous to prove, and not the interstate offence, meaning that it was not sufficient for that offence to fall within the relevant Schedule as if it had been committed in WA.
Further, the definition of 'child pornography' in the Crimes Act is substantially similar to the definition of 'child exploitation material' in the Criminal Code (WA), which includes 'child pornography'. The definitions in both Acts refer to minors who are engaging, or appear to be engaging, in sexual activity. Both otherwise refer to minors being depicted or represented in a sexual context.
The main difference with respect to the 2006 offence, was that the Crimes Act defined a minor as being under the age of 16. Given the overwhelming similarities between the other elements of the Victorian and WA offences, I do not think that difference prevents them from being 'of a kind'.
If that conclusion is incorrect, Mr Darlow's 2001 offence under the Crimes Act and the Criminal Code (WA) both define a minor as being a person under 16 years of age. In summary, even if the 2006 offence cannot be considered as 'of a kind', the 2001 offence certainly would be.
Nevertheless, I am satisfied, and I find, that the elements of the offence of 'knowingly possess child pornography' under s 70 of the Crimes Act in both 2001 and 2006, if they occurred in WA, are of a kind to the offence of 'possession of child exploitation material' in s 220 of the Criminal Code (WA).

Do the offences fall within s 7(3) of the Act?

Schedule 1 of the Act lists s 220 of the Criminal Code (WA) as a Class 1 Offence. It contains the condition that 'the offence does not fall within the ambit of s 7(3) of the Act'. Section 7(3) provides that:
For the purposes of Schedules 1 and 2, an offence falls within the ambit of this subsection if —
(a)the victim of the offence is a child who has reached 14 years of age; and
(b)the age difference between the victim and the offender does not exceed 5 years.
Mr Darlow was born in 1976. He was therefore approximately 25 years old at the time of the first offence and 30 years old at the time of the second offence. I am unsure if s 7(3)(a) of the Act applies because I do not have a statement of facts which outlines the ages of any victims. Nevertheless, with respect to s 7(3)(b) I can infer that Mr Darlow was more than five years older than any victims under the age of 16 or 18.
Therefore, I am satisfied, and I find, that both offences do not fall within the ambit of s 7(3) of the Act.
Consequently, both of Mr Darlow's 'knowingly possess child pornography' offences are Class 1 offences in accordance with Sch 1 of the Act.

Is there any discretion concerning the negative notice?

Section 12(3) of the Act provides that if one or more conditions set out in the Table in s 12(3) of the Act applies, the CEO is to decide the application in accordance with the applicable provision to that condition.
The applicable condition to Mr Darlow's situation is set out in item 11 of the Table. The condition is:
The CEO is aware of a Class 1 offence (that was not committed by the applicant when a child) of which the applicant has been convicted, other than where the applicant has been granted a pardon in respect of that offence.
As I have found above, Mr Darlow has been convicted of a Class 1 offence. I am also satisfied (based on his age at the time of the offences), and find, that he was not a child at the time of either offence. He was not granted a pardon.
Returning to item 11 of the Table, the applicable provision for that condition is stated to be s 12(7) of the Act. Section 12(7) of the Act provides that:
If this subsection applies, the CEO is to issue a negative notice to the applicant. (emphasis added).
The wording 'is to issue' is mandatory and denotes an absence of any discretion.
Consequently, I am satisfied, and I find, s 12(7) of the Act applies. It requires that a negative notice be issued to Mr Darlow and does not give the CEO the discretion to issue an assessment notice. Put simply, due to the lack of discretion in s 12(7) of the Act, the only outcome if the matter were to proceed to a hearing would be that the reviewable decision to issue Mr Darlow with a negative notice would be affirmed.
I understand that Mr Darlow took issue with the fairness of the operation of s 12(7) of the Act, because he says that the offences were committed a long time ago, and he has evidence of his rehabilitation. However, the words, 'is to issue' mean that the negative notice must be issued, and there is no scope for the CEO (or the Tribunal) to consider issuing an assessment notice.

Applicable law

The applicable law is the Act, and I have therefore proceeded with these reasons on that basis. I will now explain why, and at the same time address some of Mr Darlow's submissions about the applicable law.
The Act is the applicable legislation to Mr Darlow's application. He applied for a working with children check under the Act. A decision to issue a negative notice was made under the Act. Section 26(2) of the Act gives this Tribunal jurisdiction to review a decision by the CEO to issue a negative notice to a person.
Mr Darlow submitted that Victorian law applies and that the Act cannot override Victorian law. As I have mentioned, he referred to his offences being classified as Class 2 offences in the Sex Offenders Registration Act 2004 (Vic). That Act does not concern working with children. It concerns the registration of persons on a sex offender register if they have committed a registerable offence (which includes a Class 2 offence). Thus, the classification of offences under the Victorian sex offenders' legislation is for a different statutory purpose than the Act and is not relevant to the Act.
As I mentioned earlier, the Act was amended on 1 July 2023. Those amendments included making the offence of 'possession of child exploitation material' under s 220 of the Criminal Code (WA) a Class 1 offence, whereas it was previously a Class 2 offence.
Accordingly, there are transitional provisions in the current Act. The relevant section is s 63 of the Act. Section 63 applies if a person has a 'pre-commencement assessment application'. If they do, the former classification provisions will continue to apply.
A 'pre-commencement assessment application' is defined in s 62 of the Act as 'an application for an assessment notice that is pending immediately before commencement day'.
The Act commenced on 1 July 2023. Mr Darlow made his application for an assessment notice on 10 January 2024, that is, after the commencement day.

This means that the current classification provisions in the Act apply to Mr Darlow. Mr Darlow submitted that this is unfair because if he had applied earlier, the former classification provisions would have continued to apply. However, the Parliament has determined, by enacting s 63, that the current version of the Act applies to Mr Darlow.

Outcome

For the reasons set out above, I am satisfied, and I find, that:
•Both Mr Darlow's offences are Class 1 offences;
•Section 12(7) of the Act applies; and
•Therefore, Mr Darlow must be issued with a negative notice. There is no discretion in s 12(7) of the Act to consider issuing, or to issue, an assessment notice.
Accordingly, I am satisfied, and I find, that Mr Darlow's application is misconceived or lacking in substance, as contemplated by s 47(1)(a) of the SAT Act because it is untenable, manifestly groundless and could not possibly succeed if it progressed to a hearing (see for example, Laurent and Commissioner of Police [2009] WASAT 254 at [23]; and Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8]).
Proceeding to a hearing would be futile because the only possible outcome would be for the Tribunal to affirm the decision to issue the negative notice to Mr Darlow.

Decision

The proceeding is dismissed pursuant to s 47(2) of the SAT Act because it is misconceived or lacking in substance.

Orders

The Tribunal orders:
1.The proceeding is dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) because it is misconceived or lacking in substance.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR M EVANS-BONNER, SENIOR MEMBER
7 FEBRUARY 2025