DFJ v Secretary to the Department of Justice

The appellant in this case, DFJ, sought to challenge the Secretary to the Department of Justice’s decision to refuse to provide an assessment notice under the Working with Children Act 2005. This refusal effectively barred the appellant from engaging in any child-related work. The decision was affirmed by the Victorian Civil and Administrative Tribunal (VCAT). DFJ appealed to the court on a question of law, asserting that the Secretary had erred in determining that there was a significant link between a previous conviction for leaving children unattended and the risk to the safety of children. DFJ argued that the tribunal had restricted its consideration of the circumstances surrounding the offence, which was an error of law.

The central legal issues in this appeal revolved around whether the Secretary had correctly exercised their discretion under the Working with Children Act 2005 and whether VCAT had properly interpreted the statutory criteria for making such a determination. Specifically, the court had to determine if the decision-maker was required to consider the circumstances of the appellant’s previous conviction when assessing the risk to children. The appellant contended that the tribunal had applied an incorrect legal standard, which had led to an erroneous conclusion about the existence of a significant link.

The court found that the Secretary’s decision was flawed because it did not adequately consider the circumstances surrounding the appellant’s previous conviction. The court emphasised the importance of interpreting the Act in a way that avoided a manifestly absurd or unreasonable result. By applying a purposive interpretation, the court concluded that the circumstances of the offending should indeed be considered when determining the risk to children. The tribunal’s failure to do so constituted an error of law. Therefore, the appeal was allowed, and the original decision was set aside.

The court ordered that the Secretary to the Department of Justice must reconsider the appellant’s application for an assessment notice, taking into account the full circumstances of the previous conviction. This reconsideration was to be done in light of the court’s findings on the correct interpretation of the statutory criteria.