DFJ v Secretary to the Department of Justice
[2012] VSCA 177
•14 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCI 2011 0003
| DFJ | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF JUSTICE | |
| Respondent |
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| JUDGES | WEINBERG, HARPER and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 June 2012 |
| DATE OF JUDGMENT | 14 August 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 177 |
| JUDGMENT APPEALED FROM | DFJ v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 2039 (Judge Lacava V-P) |
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ADMINISTRATIVE LAW — Working with Children Act 2005 — Refusal by Secretary to the Department of Justice to give appellant assessment notice — Appellant thereby precluded from child-related work — Affirmation of decision by Victorian Civil and Administrative Tribunal (‘VCAT’) — Appeal on question of law — Residual discretion vested in Secretary — Statutory preconditions to exercise of discretion — Appellant previously charged with and found guilty of having left his children unattended in 2002 — Whether decision-maker erred in law in finding existence of significant link between that offending and risk to safety of children — Whether VCAT impermissibly restricted regard to circumstances surrounding appellant’s offending — Residual discretion not enlivened — Appeal allowed — Working with Children Act 2005 s 17 considered.
STATUTES — Interpretation — Requirement to interpret statutes so as to avoid manifestly absurd or unreasonable result — Whether determination of a ‘significant link’ between ‘finding of guilt’ and ‘risk to the safety of children’ requires regard to be had to circumstances of offending — Purposive interpretation —Interpretation of Legislation Act 1984 s 35(a), Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr S Holt | Victoria Legal Aid |
| For the Respondent | Ms D Mortimer SC and Mr E Nekvapil | Victorian Government Solicitor’s Office |
THE COURT:
This appeal concerns a refusal by the Secretary to the Department of Justice to provide the appellant with an assessment notice under the Working With Children Act 2005 (‘the Act’). This legislation describes its ‘main purpose’ as being
to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body.[1]
[1]Working With Children Act 2005 s 1(1).
The ‘check’ is referred to in the Act as a ‘working with children check’, and is defined in s 3(1) as ‘the process under Part 2 [which is headed ‘Working With Children Check’] for assessing or re-assessing whether a person is suitable to work in child-related work’. The responsibility for making the assessment is conferred upon the Secretary to the Department of Justice, to whom a person may apply ‘for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check.’[2]
[2]Ibid s 10(1).
The Act provides, in Pt 2, for three categories of application, and for the different approach which the Secretary must take to each.[3] The appellant, however, fell into none of these categories. The only basis upon which the Secretary could lawfully have refused him an assessment notice was that contained in s 17(1A). That section conferred upon the Secretary a discretion to refuse such a notice, but only if the statutory preconditions set out therein were all met.
[3]Ibid ss 12-14.
The appellant needed an assessment notice because he had applied for a job as a gardener at a local primary school. The Secretary’s decision to refuse him that notice effectively bars him from obtaining any employment which might involve contact with children.
The Secretary’s decision in this case was affirmed, on appeal, by the Victorian Civil and Administrative Tribunal (VCAT). The order made by VCAT was in the following terms:
Pursuant to s 51 of the Victorian Civil and Administrative Tribunal Act 1998 and s 26(5)(c) of the Working With Children Act 2005, the decision of the Secretary dated 31 December 2009 to issue a negative notice to the applicant is affirmed.
The appellant now appeals, on a question of law, from that decision.[4]
[4]The appeal is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’). The appeal is to this Court, rather than to the Trial Division, because the decision under challenge was made by a Vice President of VCAT.
The question to be determined is one of statutory construction. It concerns the meaning to be given to s 17(1A) of the Act. That subsection must be read in context. It is therefore necessary to set out s 17 at length, omitting only irrelevant parts.
17 Outcome of application
(1)Subject to sections 12(2) and (3), 13(2) and 14(2) and subsection (1A), the Secretary must give an assessment notice on an application.
(1A) The Secretary may refuse to give an assessment notice if—
(a)the applicant has at any time (whether before, on or after the commencement of this section) been charged with, convicted or found guilty of an offence (other than a relevant offence); and
(b)the Secretary is satisfied that—
(i)exceptional circumstances exist with respect to the applicant that justify the refusal of the notice; and
(ii)there is a significant link between the charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant.
(1B)In considering whether it is appropriate to refuse to give an assessment notice in the circumstances referred to in subsection (1A), the Secretary must have regard to—
(a)whether because of that charge, conviction or finding of guilt, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and
(b)in the case of an applicant who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1A) applies, the period of time between the commission, or alleged commission, of each of the offences.
…
(3)The Secretary must give a negative notice on an application that is a category 1 application or to an applicant who is otherwise refused an assessment notice.
Section 13(2) of the Act, to which s 17(1B)(a) refers, relevantly provides:
(2) The Secretary must refuse to give an assessment notice on a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to:
(a) the nature and gravity of the offence or alleged offence and its relevance to child related work; and
(b) the period of time since the applicant committed, or allegedly committed, the offence; and
(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d) the sentence imposed for the offence; and
(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and
(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and
(g) the applicant's behaviour since he or she committed, or allegedly committed, the offence; and
(h) the likelihood of future threat to a child caused by the applicant; and
(i) any information given by the applicant in, or in relation to, the application…
There is no dispute that in February 2003 the appellant pleaded guilty to a charge of having left a child unattended, contrary to s 262(1) of the Children and Young Persons Act 1989 (‘CYP Act’). The section has since been repealed. However, in 2005 it was re-enacted in identical terms.[5]
[5]Children, Youth and Families Act 2005 s 494(1).
As at 2002, when the offence was committed, s 262(1) relevantly provided:
Offence to leave child unattended
262.(1) A person who has the control or charge of a child must not leave the child without making reasonable provision for the child’s supervision and care for a time which is unreasonable having regard to all the circumstances of the case.
Penalty: 15 penalty points or imprisonment for 3 months.
The section was previously to be found in Pt 5 Div 1 of the CYP Act. It appeared under the heading ‘Division 1 – Offences relating to the Protection of Children’. It was an essential element of that offence that the person charged did ‘leave’ a child without making ‘reasonable provision’ for that child’s ‘supervision and care’.
The circumstances surrounding the appellant’s contravention of s 262(1) were as follows. On the morning of Saturday 11 May 2002, the appellant was minding his two children, then aged two and four. It seems that he fell asleep whilst watching the cricket on television. Somehow, the children managed to open the front door of the housing commission flat in which the family then resided, and make their way onto a busy suburban road. Fortunately, they were seen by a passer-by who took charge of them and contacted police. The appellant did not wake until several hours later. Upon discovering that his children were missing, he contacted the police and was told that they were safe, and in their care.
As previously indicated, the appellant was charged with an offence under s 262(1) of the CYP Act. Unsurprisingly, he received a 12 month good behaviour bond, without conviction. It seems that he was represented by a solicitor at the time, and that, in pleading guilty, he acted upon legal advice.
It is strongly arguable that the appellant should not have pleaded guilty to this offence. It is difficult to see how his having fallen asleep in front of a television set, while watching the cricket, could possibly have given rise to the offence under s 262(1). The offence requires proof of an act or omission which must be conscious, voluntary and deliberate. Falling asleep would not, ordinarily, constitute an act or omission of that kind.[6]
[6]See Jiminez v The Queen (1992) 173 CLR 572, 577 where the High Court observed that actions done while asleep cannot be described as conscious or voluntary.
Moreover, the offence is one of leaving a child ‘unattended’.[7] It is at least open to question whether, in the circumstances of this case, the appellant ever actually left his children unattended as a result of a conscious or voluntary act, or omission. True he was asleep whilst the children were unsupervised in the flat, but they were, at all times, in close proximity, and not, at that stage, unattended. He did nothing personally to cause them to leave the flat.
[7]It is so designated in the heading to s 262 and, pursuant to s 36(1) of the Interpretation of Legislation Act 1984, a heading is deemed to be part of the Act.
It would be odd to think that someone who did nothing more than fall asleep would be liable for an offence that carries, as a maximum penalty, a significant term of imprisonment.[8] That is not to excuse what the appellant did. At the same time, he was clearly not the first father to fall asleep whilst minding his children.
[8]The provision appears more apt to catch conduct such as deliberately leaving a child unattended in a car on a hot day. Conduct of that kind may well attract a significant term of imprisonment if sufficiently serious.
The fact that the appellant could conceivably have mounted a defence to the charge under s 262(1) is, of course, irrelevant so far as s 17(1A) is concerned. He chose to plead guilty to that offence, and was dealt with on that basis. Relevantly, he was ‘charged with’ and ‘found guilty’ of an offence, thereby triggering the operation of s 17(1A)(a). The fact that he was ultimately given a non-conviction bond does not disturb that conclusion.
The Secretary, having satisfied herself that the first limb of s 17(1A) was met, went on to consider s 17(1A)(b). In that regard, she had to be satisfied that the conditions specified in both s 17(1A)(b)(i) and s 17(1A)(b)(ii) were also met. Otherwise, she had no power to embark upon a consideration of whether to exercise
the discretion conferred upon her by s 17(1A) to refuse to give the appellant an assessment notice.
The VCAT decision
Judge Lacava commenced by noting that the Secretary’s decision to refuse the appellant an assessment notice was made pursuant to s 17(3) of the Act. It was not a decision based upon a ‘category 1’, ‘category 2’ or ‘category 3’ offence. No offence of that kind had been committed. Rather, the Secretary’s decision involved a finding on her part that an offence within s 17(1A) had been committed, which in turn triggered the exercise of her discretion under s 17(1B).
His Honour referred to several VCAT decisions concerning the interpretation of various provisions of the Act. He observed, however, that they all involved applicants who had previous convictions for ‘category 2’ or ‘category 3’ offences. Apparently, according to Judge Lacava, this was the first case involving the exercise of the Secretary’s residual discretion under s 17(1A).
The hearing of the matter before VCAT lasted nearly three days. The applicant gave evidence, and was cross-examined. He also called various witnesses and tendered a number of documents obtained from the files of the Department of Human Services. The Secretary also tendered a number of documents obtained from those files.
Judge Lacava recognised that his task was largely one of statutory construction involving the interpretation of s 17(1A). He referred in that regard to s 1(1) of the Act which sets out, expressly, its ‘main purpose’.[9]
[9]See [1] above.
His Honour then set out briefly the circumstances surrounding the appellant’s offending. He noted, correctly, that the Secretary was legally obliged to give an assessment notice unless satisfied that each and every one of the conditions set out in ss 17(1A)(a), 17(1A)(b)(i) and 17(1A)(b)(ii) was made out. Unless all of those conditions were met, the Secretary’s discretion to refuse an assessment notice was not enlivened.
Judge Lacava went on to observe that even if all three conditions contained within s 17(1A) were met, that would only empower the Secretary to consider the exercise of her discretion. It would not, of itself, justify a refusal to give the relevant notice. He then noted that s 17(1B) sets out, in terms, a number of the factors that the Secretary had to take into account in the exercise of that discretion.
In his reasons for decision, his Honour remarked upon the fact that the language used in s 17(1B)(a) differed in several key respects from that adopted in s 17(1A)(b)(ii). Whereas the precondition to the exercise of discretion specified in s 17(1A)(b)(ii) spoke merely of a ‘risk to the safety of children’, the factor relevant to the exercise of discretion specified in s 17(1B)(a) referred to ‘an unjustifiable risk to the safety of children’. Moreover, the exercise of discretion, once enlivened, was specifically linked by s 17(1B)(a) to a series of matters set out in s 13(2)(a)-(i) of the Act. That was so despite the fact that s 13 as a whole dealt only with ‘category 2’ offences, whereas the residual discretion under s 17(1A) operated only where the application did not fall within any of the categories specified by the Act.
His Honour next set out, briefly, something of the appellant’s history and background. He noted that the appellant was born in September 1964. He is the sole parent of two children, a boy and a girl, and is of Aboriginal descent. The children’s mother had died of a drug overdose in about 2000, leaving the appellant as the sole carer of his children. Although he had a number of convictions for minor offences dating back to 1981, they were irrelevant so far as s 17(1A) was concerned.
The appellant’s primary submission before his Honour was that the Secretary’s discretion had not been enlivened because she had no justification for finding that there existed a ‘significant link’ between his offending under s 262(1), and any risk that he might pose to the safety of children. Indeed, it was submitted that the Secretary would not have been entitled to find that there was a link of any kind between the offending and any such risk.
Judge Lacava properly noted that if he were not satisfied that a ‘significant link’ existed, that would be the end of the matter. It would not then be necessary to consider whether there were ‘exceptional circumstances’ of a kind that might justify the refusal to give an assessment notice. It followed that if no such significant link existed, an assessment notice would have to issue.
His Honour then considered the meaning of the term ‘significant’ in the context of s 17(1A). He concluded that the word was used in its ordinary and natural sense. He reasoned that whether or not a ‘significant link’ had been established was a question of fact. He formulated the issue which he had to determine as follows:
It depends upon it being established that there is a significant link between the type of offence for which the applicant has been charged, convicted, had a finding of guilt made or been finally dealt with, and a risk to the safety of children posed by the applicant.
It is at the next stage in his reasons that the appellant contends his Honour erred in law. Judge Lacava stated that, in his opinion, s 17(1A)(b)(ii) should be construed without any consideration being given to the ‘facts and circumstances’ surrounding the commission of the offence.
Judge Lacava arrived at that conclusion upon the basis that such ‘facts and circumstances’ were specifically required to be taken into account in the exercise of the discretion under s 17(1B)(a) (albeit through the avenue of the s 13(2) matters incorporated into the exercise of that discretion). His Honour considered it unlikely that Parliament would have expected the self-same task to be performed twice, once when determining whether the discretion was enlivened, and again when considering how the discretion should be exercised. Indeed, he went so far as to observe that were such an approach to have been contemplated, s 17(1B) ‘would be rendered otiose’.
His Honour next set out what he considered to be the correct approach for a decision-maker faced with an application raising s 17(1A) issues. He said that such a decision-maker must:
(a)be satisfied the applicant has at any time been charged with, convicted or found guilty of an offence (other than a relevant offence) or has had a charge dealt with; and
(b)be satisfied exceptional circumstances exist with respect to the applicant; and
(c)be satisfied there is a significant or important or notable link between the offence for which the applicant has at any time been charged with, convicted or found guilty of or has been dealt with and a risk posed by the applicant to the safety of children because of the nature of the offence.[10]
[10]DFJ v Secretary to the Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Judge Lacava, 17 December 2010) [44] (emphasis added).
He then turned to the offence of leaving a child unattended, in breach of s 262(1) of the CYP Act. He observed that that offence did not ‘in terms cover a situation where a person in charge of a child falls asleep in the presence of the child and the child then leaves whilst that person is asleep’. Rather, ‘it covered a situation where a person having care and control of a child physically leaves the child with the consequence [that] the child then remains unattended.’[11]
[11]Ibid [53].
It is perfectly clear, from his Honour’s observations, that he had the gravest doubts whether the appellant had, indeed, committed an offence under s 262(1).
It was at this stage of his Honour’s reasons for decision that he explained why he had concluded that there was a ‘significant link’ between the appellant’s offending and the relevant risk to children. He said:
I am satisfied there is a significant, important or notable link between the offence for which the applicant pleaded guilty to and was dealt with, namely leaving a child unattended, and a risk posed by him to the safety of children. The whole purpose of the statutory offence for which the applicant was dealt with is to protect the safety of children. A finding of guilt for that offence prima facie shows a person charged and dealt with for that offence must pose some risk to the safety of children.[12]
[12]Ibid [54].
What this passage reveals is that Judge Lacava did exactly what he had earlier foreshadowed he would do when he outlined the nature of the task to be performed under s 17(1A). He considered ‘the nature of the offence’ simpliciter, and the purpose for which that offence had been created. In approaching the matter in that way, he deliberately paid no regard at all to the particular facts and circumstances surrounding the commission of the offence. He regarded these as relevant only at the separate stage of the exercise of the discretion.
Judge Lacava then considered, and rejected, an alternative submission put forward on behalf of the appellant, namely that there did not exist ‘exceptional circumstances’ that justified refusal of the notice.
Curiously, when dealing with that submission, his Honour appeared to take a somewhat different approach to the construction of s 17(1A)(b)(i). He had regard, on that issue, to a body of material, most of it emanating from the Department of Human Services, that he considered showed that the appellant had, in the past, been unable satisfactorily to manage and care for his children. That material also showed a history of alcohol abuse and anger management problems.
The balance of his Honour’s reasons consists of a detailed and, with respect, thorough analysis of material of this nature. It must be said that most of the Department of Human Services file goes to the question whether the appellant is, in fact, a suitable parent.
It should be noted that the appellant, in his evidence, claimed that between 2006 and 2008 he had had no ongoing supervision relationship with the Department of Human Services. His Honour doubted that claim. However, the appellant went on to say that he had obtained employment as a gardener in 2008 at a school, and that this was what had motivated him to make the application for a Working with Children assessment. Prior to that, he had been out of work for some 12 years. He had been encouraged to apply for an assessment as a way of making himself more attractive to a prospective employer.
It is fair to say that his Honour’s conclusion that the appellant is far from an ideal parent was supported a substantial body of evidence. Of course, that, of itself, would not entitle the Secretary to refuse him an assessment notice. In the final analysis, Judge Lacava was persuaded that ‘exceptional circumstances’ within s 17(1A)(b)(i) of the Act had been demonstrated.
Having arrived at that conclusion, his Honour turned to what he described as the ‘s 17(1B) analysis’. When dealing, at that stage, with the significance of the appellant’s having been found guilty of leaving his children unattended in 2002, he concluded that the giving of an assessment notice would pose an unjustifiable risk to the safety of children, having regard to the matters set out in s 13(2)(a)-(i) of the Act.
It was at this point that his Honour turned to consider the actual facts and circumstances surrounding the commission of the offence. He had previously deliberately avoided doing so in the context of s 17(1A). He began by setting out the appellant’s account of the incident in question, which was in the following terms:
The ‘leave child unattended’ charge was merely an accident. The kids had worked out how to unlock the front door. The police were called when someone saw them unattended and they found them before I did. The next day I put a slide bolt at the top of the door – problem solved.
By this stage, his Honour appeared to have become somewhat sceptical as to whether any offence under s 262(1) had ever in fact been committed. He said:
There was no evidence anywhere that I can see that showed the applicant left his children unattended at any stage. I accept the applicant was legally represented and pleaded guilty to the charge. The plea of guilty represents an admission of all the facts necessary to prove the charge. This tribunal cannot ignore the fact the applicant pleaded guilty to the charge.[13]
[13]Ibid [108].
He noted that, on any view, the level of offending had to be ‘at the very bottom end of the scale’.[14] He further noted that counsel for the appellant had submitted that the offence should be viewed as nothing more than a ‘lapse in normal
human behaviour undeserving of censure and inapposite for use as the basis for a Negative Notice’.
[14]Ibid [111].
Judge Lacava rejected that submission. His reasons for doing so require careful consideration. He said that the offence had to be seen in the context of everything else that was ‘going on in the life of the [appellant] and his children in May 2002 when the offence occurred’. He accordingly took into account all of the surrounding circumstances that existed at the time of the offence, and later, including the history of the appellant’s issues with the Department of Human Services. He described the offence as ‘closely related to child-related work’ because it involved the appellant’s ‘failure to ensure the protection and safety of his children by allowing himself to fall asleep, effectively leaving them unattended and unsupervised’.[15]
[15]At [115].
Judge Lacava gave little weight to the evidence given by Dr Paul Grech, a clinical psychologist, to the effect that the appellant posed no discernable risk in relation to the purpose of the Working with Children application. He was, on the other hand, prepared to accept the evidence of an employment consultant to the effect that a positive assessment would greatly enhance the appellant’s prospects of obtaining employment in the future. He did not treat that factor as dispositive.
In these circumstances, his Honour affirmed the Secretary’s decision to issue a negative notice.
The appellant’s submissions
By notice of appeal dated 21 March 2011, the appellant posited three questions of law, and formulated three grounds of appeal, in challenging Judge Lacava’s decision. These were as follows:
Q1 Did the Tribunal err in its construction of section 17(IA)(b)(ii) of the Act?
Ground 1: The Tribunal (at paragraphs 40-46 of the Reasons for Decision) erred in concluding that in assessing whether there is a ‘significant link between the relevant charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant’ the only matter to be assessed is the type of offence not the facts and circumstances surrounding the charge, conviction or finding of guilt.
Q2. Did the Tribunal err in its construction of the phrase ‘exceptional circumstances’ in section 17(1A)(b)(i) of the Act?
Ground 2: The Tribunal failed to adequately consider the meaning of ‘exceptional circumstances’ in the context of the Act, the interests of the parties and of the community and, as a result, applied a threshold that is inappropriately low.
Q3. Did the Tribunal err in its construction of the phrase ‘charge, conviction or finding of guilt, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) - (i) of the Act’ in section 17(1B)(a) of the Act?
Ground 3: The Tribunal erred in its application of section 17(1B)(a) of the Act in that the Tribunal:
i.Failed to follow the primary direction of the section which is that the ‘unjustifiable risk’ to children must be ‘because of’ the ‘charge, conviction or finding of guilt’.
ii.Impermissibly over-weighted the conduct of the applicant since the offence by counting it as a factor in relation to its assessment under each of sections 13(2)(a), (2)(g) and (2)(h)
iii.In assessing the ‘charge, conviction or finding of guilt’ impermissibly took into account matters unrelated to the offence (paragraph 114 of the Reasons for Decision).
iv. Applied a threshold of ‘unjustifiable risk’ that is inappropriately low.
In his oral submissions, counsel for the appellant relied almost exclusively upon ground 1. He submitted that the expression ‘charge, conviction or finding of guilt’ in s 17(1A)(b)(ii) had to be read in context, being linked textually to the first precondition in s 17(1A)(a).
Counsel then submitted that the word ‘offence’ in s 17(1A)(a) should not be read as meaning the ‘bare statutory offence’, but rather as encompassing the conduct that was said to have constituted the offence. That would include the particular circumstances in which the offence came to be committed.
In support of that submission, counsel relied upon the Explanatory Memorandum to the Working With Children Amendment Bill 2007. The Memorandum says of the situation which the provision was intended to catch:
… where it is demonstrated that a significant link exists between the offending behaviour and risk to the safety of children.[16]
[16]Explanatory Memorandum, Working With Children Amendment Bill 2007 (emphasis added).
In further support of his primary submission, counsel referred to the stated object of the Act, as set out in s 1(1), to which we have earlier referred.[17] He submitted that the statutory scheme balanced ‘this protective goal with the desire not to exclude people from employment without good reason’. He further submitted that the balance was struck differently throughout the Act, depending upon context, and that s 17(1A) was the part of the Act that provided the ‘greatest protection against excluding people from employment’.[18]
[17]See above [22]
[18]Appellant’s Outline of Submissions, [7].
Counsel next referred to the history leading up to the enactment of s 17(1A). That section was introduced to allay concern ‘that some criminal offending did not qualify by virtue of the offence’[19] (i.e. the offending did not bring the application within categories 1, 2 or 3) but should, nonetheless, trigger the possible application of a discretionary refusal to grant an assessment notice. Here, it was the actual conduct involved that would be pivotal, not the nature of the offence in the abstract.
[19]Ibid [8].
Counsel submitted that even allowing for this extended capacity to refuse permission to work with children, the power to issue a negative notice was restricted, in such cases, by a series of considerable statutory hurdles. Thus, s 17 speaks, at various points, of ‘significant risk’, ‘exceptional circumstances’ and ‘unjustifiable risk’. It was submitted that the need for such high hurdles was all the greater because s 17 represents the only provision in the Act under which a negative notice can be issued based solely upon an unproved charge.
Counsel contended that Judge Lacava had erred in failing to approach the matter on this basis. His Honour had required nothing more than a significant link between what might be termed ‘the bare statutory offence’ and a ‘risk to the safety of children posed by the applicant’.
It was submitted that if Parliament had intended an offence such as leaving a child unattended, pursuant to 262(1) of the CYP Act, to engage the operation of the discretion to refuse an assessment notice, it would presumably have included that offence, or its modern counterpart, within the list of offences set out in ss 12, 13 or 14 of the Act. The fact that the offences listed in categories 2 and 3 were amended at the same time as s 17(1A) was introduced was said to make it even clearer that the Secretary was expected to focus upon the actual conduct said to have given rise to the offence, rather than some broad appraisal of its general nature.
That contention was said to be strengthened by the fact that there are many offences that do not, by their nature, suggest any danger to children, but might, in the particular circumstances of a given case, qualify as the basis for a refusal to give an assessment notice.
It was submitted that Judge Lacava’s reasoning that, if surrounding circumstances were able to be taken into account in dealing with s 17(1A), s 17(1B)(a) would be rendered ‘otiose’, should not be accepted. While counsel acknowledged that there was undoubtedly some degree of overlap between the questions under s 17(1A)(b)(ii) and s 17(1B)(a), he submitted that there were also important differences between them. Section 17(1A)(b)(ii) involved a threshold condition linking an offence with a risk to children. That section operated as an addition to the ‘list of offences’ approach taken in categories 1, 2 and 3. Section 17(1B)(a) performed a completely different role. It required the Secretary to consider whether, in the light of the matters set out in s 13(2)(a)-(i), the offence in question gave rise to ‘an unjustifiable risk to the safety of children’.
It was submitted that the threshold question might reasonably be answered affirmatively, while the discretionary question might, at the same time, be answered negatively, and vice versa.
It was further submitted that the Secretary’s position had changed throughout this proceeding. In her initial written submission before Judge Lacava, she had acknowledged that there was some measure of overlap between the test under s 17(1A)(b)(ii) and that under s 17(1B)(a). She had also accepted that neither question should be considered in isolation, without regard to the surrounding circumstances. Notwithstanding that this was the Secretary’s original position, Judge Lacava had adopted a more rigid test, requiring the offence referred to in s 17(1A)(b)(ii) to be considered without any regard to its particular circumstances.
In further developing that submission, counsel argued that Judge Lacava’s somewhat narrow approach to the construction of 17(1A)(b)(ii) had been ‘only lightly defended’ by the Secretary.[20] In that regard, counsel submitted that the Secretary’s notice of contention showed that she had little or no confidence in his Honour’s analysis of the problem.
[20]Ibid [17].
By that notice of contention, the Secretary submitted that the Secretary was required, under s 17(1A)(b)(ii), ‘to assess the relevant charge, conviction and/or finding of guilt’. That assessment required consideration to be given, inter alia, to:
(a)the details of the charge, including the elements of the offence and the factual circumstances alleged by the prosecution against the Appellant; and
(b)whether, and why, the Appellant was convicted or otherwise found guilty of the charge.[21]
[21]Notice of Contention dated 20 September 2011 (emphasis added).
The notice of contention goes on to say that even if his Honour erred in his construction of s 17(1A), and the correct construction is that which is set out above, the only order that could properly have been made, in the circumstances of this case, was to affirm the refusal to give an assessment notice.
Counsel attacked the construction proffered in the notice of contention as being, if anything, less tenable than the approach adopted by Judge Lacava. That construction was said to artificially and unjustifiably limit the material to which the decision-maker could have regard by confining it to the allegations made by the prosecution. Any such limitation would be unjust and irrational. Counsel asked rhetorically, what if the appellant had been charged, but acquitted? Would his explanation or denial have to be ignored by the decision-maker? If the notice of contention were to be accepted, that question would have to be answered affirmatively. That would be absurd.
In short, counsel submitted that his Honour, having made a series of unimpeachable findings regarding the circumstances surrounding the commission of the offence, ought to have taken those matters into account in determining the threshold question under s 17(1A)(b)(ii). He had expressly declined to do so. That was because he had misconstrued the provision. That, of itself, it was submitted, should lead to this appeal being allowed.
Finally, counsel submitted that the Secretary’s argument, in the notice of contention, that the only conclusion available from the facts surrounding the commission of the offence was that there was a significant link between that offence and the risk posed to children, was simply untenable. Indeed, counsel went further. He submitted that when one had regard to the surrounding facts and circumstances, no link at all could be shown between the offence and any risk that the appellant might pose to children.
Counsel for the appellant did, in his written submissions, briefly address grounds 2 and 3. However, it is fair to say that these grounds were barely pressed, and almost entirely abandoned during the course of oral submissions. They are, in any event, devoid of any merit.
The respondent’s submissions
Senior Counsel for the respondent referred firstly to the Second Reading Speech of the Working With Children Bill 2005. She noted that its key provisions were intended to put barriers in the path of those ‘who would, given the opportunity, harm children’.[22] She submitted that after the 2007 amendments, which included the introduction of s 17(1A), there were four categories whereby assessment notices could be refused. These included the commission of category 1, 2 and 3 offences, but also the commission of any offence that fell within the residual category dealt with in s 17(1A).
[22]Victoria, Parliamentary Debates, Legislative Assembly, 21 July 2005, 2002.
Senior Counsel submitted :
In all four of these categories then, the legislative scheme exhibits an intention that persons who fall into these categories are seen, by virtue of the fact they do fall into the categories and nothing more, as posing a risk to the safety of children which warrants their applications being securitised more closely, and warrants placing barriers in the way of them being given an assessment notice.[23]
[23]Outline of the Respondent’s Submissions, [9].
She then turned to ground 1. She submitted that the issue to be resolved was one of construction, namely whether the precondition in s 17(1A)(b)(ii) focused only on the relevant charge, conviction or finding of guilt (which she described as the ‘Secretary’s construction’), or whether the reference to an offence within that provision should be read more broadly to include all of ‘the surrounding facts and circumstances’ (the ‘appellant’s construction’).
Senior Counsel contended that the Secretary’s construction should be preferred having regard to the text, context, and purpose of ss 17(1A) and (1B), and the Act as a whole.
In summary form, she submitted that:
·the Secretary’s construction involved ‘respecting the distinction in language employed by s 17(1A)(a) — which speaks of an offence — and by s 17(1A)(b) - which speaks of a charge, conviction or finding of guilt’;
·the ‘link which needs to be identified is between more than the bare statement of the offence in the statute book and a risk to the safety of children’;
·more than the ‘bare words of the offence on the statute book are available’ to provide the basis for that link. The required link is between the ‘particulars of any charge, conviction or finding of guilt … and a risk to the safety of children’. In that way, ‘some limitation is placed on the material which the Secretary can examine to find a link’; and
·the ‘lack of limitation’ in the appellant’s construction makes it ‘uncertain in application’.[24]
[24]Ibid [14]-[22].
Senior Counsel further submitted that Judge Lacava had correctly applied the Secretary’s construction, and that no error of law was therefore disclosed.
Alternatively, if his Honour had erred by applying a different and narrower construction than that put forward by the Secretary, it would have made no difference to the ultimate result. Whether by applying the Secretary’s construction, or the alternative construction put forward in the notice of contention, the result would inevitably have been to refuse the appellant an assessment notice.
Finally, and for the sake of completeness, we note that Senior Counsel submitted that grounds 2 and 3 did not involve any questions of law, and simply invited merits review. Given that these grounds were not seriously pressed, we need not say anything further regarding that submission.
Conclusion
As we said at the outset of these reasons for judgment, the issue raised in this appeal is purely one of statutory construction. The task of interpreting any statutory provision involves a search for the meaning of a text. It is the meaning of the words used by Parliament which must be ascertained. What matters is the meaning of what the legislature has said, not the state of mind, even if it could be discovered, of whoever may have contributed to the choice of language.
The words used should generally be given their ordinary and natural meaning. They must, of course, be understood in context. As French CJ and Bell J said in Minister for Immigration and Citizenship v SZJGV:
The [task of construction] begins with the ordinary and grammatical sense of the words having regard to their context and legislative purpose…[25]
[25](2009) 238 CLR 642, 649 (‘SZJGV’).
Section 35(a) of the Interpretation of Legislation Act 1984 relevantly provides that ‘a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object’. As we have noted, the main purpose of the Act is stated in s 1(1). It is ‘to assist in protecting children from sexual or physical harm by ensuring that people who work with … them have their suitability to do so checked by a government body.’
The concern is with protecting children from ‘sexual or physical harm’. The appellant’s offence, in 2002, plainly did not involve any sexual impropriety on his part. Nor, relevantly, did he inflict any actual physical harm upon his children. To the ordinary bystander, it would be odd to think that merely because, on one occasion, many years ago, he fell asleep while caring for his children, he poses a threat, in the future, of ‘physical harm’ to other children.[26]
[26]That would be so even if the position he was seeking involved the actual care of children, rather than merely being the gardener at a school.
If Parliament truly intended to prevent someone who had done nothing more than what the appellant did in 2002 from ever working with children, then this Court would, of course, give effect to that intent.[27] However, it seems to us highly unlikely that the legislature would ever have contemplated any such outcome. To deny someone the right to obtain gainful employment is a serious matter, as s 17 plainly recognises. We frankly doubt that the residual discretion introduced into the Act to deal with offences other than those specifically identified as ‘category 1’, ‘category 2’ or ‘category 3’ offences was ever intended to bring about such a disproportionate result as that for which the Secretary contends. To construe the section in that way would give it a scope that goes far beyond overcoming any mischief at which the amending provision might be thought to have been aimed.[28]
[27]Francis Bennion, Bennion on Statutory Interpretation (LexisNexis, 5th ed, 2008) 995.
[28]The residual discretion was plainly directed at relevant ‘offending behaviour’ that might have escaped the list of offences contained in categories 1, 2 and 3. The Explanatory Memorandum makes that clear.
It should be remembered that the common law has long set its face against interpreting a provision in a way that leads to a result that is manifestly absurd or unreasonable. In Bennion on Statutory Interpretation, the principle is explained as follows:
The Court seeks to avoid a construction that creates an anomaly or otherwise produces an irrational or illogical result.[29]
[29]Bennion, above n 27, 986.
In SZJGV, French CJ and Bell J emphasised the need to avoid a construction of a legislative provision which would lead to an ‘irrational’ result.[30] In support of that approach, their Honours cited a passage from Maxwell’s On the Interpretation of Statutes where the principle is explained as follows:
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.[31]
[30]238 CLR 642, 651-2.
[31]Maxwell on the Interpretation of Statutes (12th ed, 1969) 228. See also Grey v Pearson (1857) 6 HLC 61, 106; 10 ER 1216, 1234 (Lord Wensleydale), cited with approval by Higgins J in Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311, 341-2. The same rule was referred to by Dixon J in Broken Hill South Ltd v Commissioner of Taxation(NSW) (1937) 56 CLR 337, 371.
Parliament is taken to expect its legislation to be applied with common sense.[32] Courts prefer to avoid coming to a decision which involves creating or accepting an anomalous legal rule or doctrine.[33]
[32]Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231.
[33]Bennion, above n 27, 993.
It is difficult to believe that the legislature, which provided a thorough and comprehensive list of offences that can trigger the refusal of an assessment notice, in three separate, carefully considered categories, would have omitted an offence such as that contained in s 262(1) of the CYP Act had it been thought that such an offence could conceivably be linked to any future risk of physical harm to children. After all, the existence of a provision such as s 262(1) could hardly have escaped unnoticed. It was contained as one of the centrepiece provisions of the very Act that deals expressly with the protection of children in this State.
Section 17(1A) must be read against the background of ss 12, 13 and 14. The section embodies a clear intent to limit the circumstances in which, absent an offence which would trigger the application of categories 1, 2 or 3, an assessment notice can be refused.
The structure of s 17 is of vital importance in its interpretation. The Secretary cannot embark upon an exercise of discretion unless and until all the conditions stipulated in ss 17(1A)(a) and 17(1A)(b) are met.
The appellant was ‘found guilty’ of an offence when he pleaded guilty in 2003. Section 17(1A)(a) was therefore satisfied. However, that is not sufficient. Both ss 17(1A)(b)(i) and 17(1A)(b)(ii) must also be met. There must be a ‘significant link’ between the ‘finding of guilt and a risk to the safety of children posed by’ the appellant.
It is impossible to conceive of such a link being demonstrated merely because a person happened to have been ‘charged with’[34] such an offence without ascertaining the facts and circumstances surrounding that charge. It must surely be a complete answer to a refusal to grant an assessment notice that the applicant for such a notice had been acquitted at his or her trial. Otherwise, the legislature would be sanctioning the impugning of even a jury verdict. It would take clear and unmistakable language to that effect before we could be persuaded that this was indeed Parliament’s intention.
[34]Working with Children Act 2005 s 17(1A)(a).
Self-evidently, the language of s 17(1A), on its proper interpretation, cannot allow a circumstance such as an acquittal to be taken into account while at the same time preventing other key facts and circumstances surrounding the commission of an offence from being considered. In the absence of specific textual support, Parliament would not be expected to have permitted surrounding facts and circumstances to be taken into account for one aspect of s 17(1A)(a), but not another.
No doubt, the appellant’s behaviour towards his children over the years has been a source of concern to various government authorities. With great respect, however, that has nothing whatever to do with whether the statutory discretion under s 17(1A) could be engaged, as a matter of law. That question is to be resolved by considering only whether there was, relevantly, a ‘significant link’ between the ‘finding of guilt’ of the offence in question, and ‘a [future] risk to the safety of children’. In our view, the ‘finding of guilt’ to which the section refers includes more than just the broad description of the offence, and extends to all of its surrounding circumstances.
We consider that Judge Lacava erred in law in construing s 17(1A) as preventing him from considering any such circumstances. His findings of fact, which we regard as unimpeachable, made it clear that no such ‘significant link’ had been demonstrated. The only reason that his Honour found that the assessment notice should not issue related to the exercise of discretion under s 17(1B). That was in no way based upon the circumstances in which the offence was committed, but rather upon his Honour’s acceptance of a body of evidence relevant to the exercise of a statutory discretion which was never lawfully engaged. Pursuant to the relevant provisions of the Act, his Honour was not entitled to get to that point without first being satisfied of the precondition as to significant link. Upon a proper construction of s 17(1A), and on the material before him, he could not be so satisfied.
We would dismiss the notice of contention. There is no basis whatever, in our view, for construing s 17(1A) as allowing the Secretary to consider untested, or unproven, prosecution allegations without paying any regard to either the findings made by the magistrate or judge in relation to the offence, or any incontrovertible evidence shedding light upon that offence adduced by the defence. Nothing in the section suggests that a grossly unfair and one-sided approach of that kind should be adopted.
It was submitted on behalf of the Secretary that, if we concluded that his Honour had misconstrued the relevant provision, we should simply remit the matter to be heard and determined again, according to law.
In our opinion, that would be wrong. The evidence placed before Judge Lacava, and his own findings, admit of only one conclusion. No ‘significant link’ of the kind required as a precondition to the exercise of the discretion was demonstrated. The case occupied several days before VCAT, and there has been extensive delay. We do not think that the appellant poses any danger to children from working in their vicinity based upon his 2002 offence. We see no reason why the Secretary should now be permitted to present additional evidence, or a different case, relating solely to that offence. Anything that she wished to say about that offence could have been said during the earlier hearing.
Pursuant to s 148(7) of the VCAT Act, this Court has the power to make, inter alia, an order ‘setting aside the order of the Tribunal’[35] and ‘an order that the Tribunal could have made in the proceeding’.[36] Under s 26 of the Act, VCAT has power, on an application made under s 26(5)(c), to set aside the Secretary’s decision and to give an assessment notice.[37]
[35]VCAT Act s 148(7)(a).
[36]Ibid s 148(7)(b).
[37]See the explanatory note to s 26 of the Act and s 51 of the VCAT Act.
We would allow the appeal, set aside Judge Lacava’s order affirming the Secretary’s decision, and order that an assessment notice be given to the appellant.
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