DVL v Department of Justice and Attorney-General

The appellant, DVL, challenged the respondent’s refusal to issue a working with children clearance (commonly referred to as a blue card) under the Working with Children (Risk Management and Screening) Act 2000. The dispute arose after DVL was acquitted of criminal offences on the ground of mental impairment, but the respondent refused to issue a blue card, citing concerns about DVL’s ability to exercise restraint and judgment. The respondent argued that the acquittal did not negate the occurrence of the conduct, which warranted refusal of the clearance. DVL sought judicial review of the respondent’s decision in the Administrative Appeals Tribunal, which was ultimately dismissed. DVL appealed to the Supreme Court of Victoria.

The central legal issue was whether the respondent was required by law to issue a blue card to DVL under section 221 of the Act. DVL argued that the respondent was mandated to issue the clearance, given the acquittal on mental impairment grounds. Another issue was whether the respondent considered all relevant considerations, including the acquittal, in making its decision. The respondent contended that the statutory language imposed a discretion, not a mandatory obligation, to issue clearances and that the term "charge" in section 221 did not exclude acquitted charges.

The Court found that the respondent was indeed mandated to issue a blue card to DVL. The statutory language indicated that a clearance must be issued if certain conditions were met, and DVL’s acquittal did not disqualify him from meeting those conditions. The Court also found that the respondent had not considered the acquittal as a relevant factor in its decision-making process, which was a mandatory consideration under the Act. The Court held that the respondent’s failure to consider the acquittal appropriately was a ground for setting aside the decision. Consequently, the appeal was allowed, and the Tribunal’s decision was set aside, with a direction for the respondent to issue a working with children clearance to DVL.

The final orders included setting aside the Tribunal’s decision and the respondent’s refusal to issue a blue card to DVL. The Court directed the respondent to issue a working with children clearance to DVL, effective from the date of the decision. The Court also outlined a process for the parties to submit and respond to submissions on costs, with a final decision on costs to be made by the Appeal Tribunal after 49 days from the date of the decision.