GHJ v Secretary to the Department of Justice and Community Safety (No 2)

[2019] VSC 411

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02397

GHJ	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2019
DATE OF JUDGMENT:	20 June 2019
CASE MAY BE CITED AS:	GHJ v Secretary to the Department of Justice and Community Safety (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 411 – First Revision 25 June 2019

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JUDICIAL REVIEW — Working with children check — Application not a category A, B or C application — Charges heard in Children’s Court — Diversion program — Charges discharged — Whether Secretary had power to issue a negative notice — Whether Secretary obliged to issue assessment — Paramount consideration — Protection of children from sexual and physical harm — Working with Children Act 2005 ss 1A, 12, 13, 14, 17.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Latif	Victorian Legal Aid
For the Defendant	Mr P Panayi and Mr A Sim	Working with Children Check Unit, Department of Justice and Community Safety

HIS HONOUR:

1. The plaintiff, GHJ[1], seeks judicial review of a decision by the Secretary[2] of 22 August 2018 refusing to issue him an assessment notice and issuing him instead with a negative notice under the Working with Children Act 2005 (‘the Act’). He seeks an order quashing the decision and an order in the nature of mandamus requiring the Secretary to issue him an assessment notice in accordance with the Act or declaratory orders.

   [1]The reasons for the orders requiring that the plaintiff be referred to this pseudonym are contained in GHJ v Secretary to the Department of Justice and Community Safety [2019] VSC 89.

   [2]The decision was made on behalf of the Secretary by a Deputy Secretary.

1. The plaintiff sought a working with children assessment because he volunteered in activities involving children. He initially applied for an assessment notice and was refused, then later re-applied on the basis of a relevant change of circumstances, being the completion of a diversion program.[3]

   [3]Working with Children Act 2005, s 25(2). He had previously been issued a negative notice.

1. The proceeding concerns the power of the Secretary to issue a negative notice to GHJ and therefore requires statutory interpretation. The role of the Court in this proceeding is not to consider the merits of GHJ’s application, but only to consider whether Parliament had given the Secretary the power to issue a negative notice to GHJ.

The Secretary’s decision

1. In a letter to the plaintiff explaining the decision to issue him with a negative notice, the Deputy Secretary stated that:

In assessing your application, and having regard to all of the material, I have determined that:

·giving you an assessment notice would not meet the requirement that the protection of children from sexual and physical harm must be the paramount consideration; and

·giving you an assessment notice would pose an unjustifiable risk to the safety of children; and

·a reasonable person would not allow his or her child to have direct contact with you while you were engaged in any type of child–related work; and

·your engagement in any type of child–related work would pose an unjustifiable risk to the safety of children.

1. In the reasons for decision, the Deputy Secretary described the plaintiff’s conduct and background. Those reasons also referred to evidence from the plaintiff’s general practitioner and treating psychiatrist and the information provided in the Children’s Court Youth Diversion Completion Report, as well as that provided by the plaintiff, by a case worker, by a care–support worker, by a life–saving club for which the plaintiff had volunteered and by the organiser of a children’s camp at which the plaintiff had been a volunteer.

The grounds of the application

1. The grounds of the plaintiff’s application are found in the following text, which also contains matters by way of background and some submissions:

(1) In refusing to issue an assessment notice and issuing a negative notice to the Plaintiff on 22 August 2018, the Defendant acted ultra vires.

(a) On 13 December 2017, the Plaintiff made an application to the Defendant for an assessment notice under s 10 of the Act.

(b) At the time of the application and also at the time of the Defendant’s decision, the Plaintiff did not have any pending charges and had no finding of guilt for the purposes of the Act. As a result, the Plaintiff’s application did not fall within the ambit of sections 12, 13 and 14 of the Act, or using the language of the Act, was not a Category A, B or C application.

(c) Section 17(1) of the Act states that ‘subject to section 12(2) and (3), 13(2) and 14(2), the Secretary must give an assessment notice on an application’.

(d) The Act does not confer power on the Defendant to refuse to issue an assessment notice that is not within the ambit of sections 12(2) or (3), 13(2) or 14(2) of the Act.

(e) As the Plaintiff’s application did not fall within the ambit of sections 12(2) or (3), 13(2) or 14(2) of the Act, the Defendant was required to issue the Plaintiff with an assessment notice.

(f) There was no statutory power for the decision of the Defendant made on 22 August 2018 to refuse to issue an assessment notice and issue the Plaintiff with a negative notice.[4]

[4]Plaintiff’s amended originating motion.

Background

1. In December 2017, when he was seventeen years old, the plaintiff was charged with two counts of ‘Transmit Objectionable Material’. The Children’s Court heard the charges because the plaintiff was still in law a child. It ordered that the charges be dealt with by a youth diversion order. Following the plaintiff’s completion of the youth diversion program, the charges were discharged by the Court and a note ‘Diversion completed’.

1. The plaintiff first sought review of the negative notice by the Victorian Civil and Administrative Tribunal (‘VCAT’), but after the Secretary contended that VCAT lacked jurisdiction to hear the matter, the proceeding was struck out by consent with the right of reinstatement. VCAT’s jurisdiction is confined to determining category A applications and reviewing the Secretary’s issue of negative notices in category B and C applications. The plaintiff then commenced this judicial review proceeding.

The legislation

1. Part 2 of the Act deals with the working with children check. Its purpose is stated in s 8(1):

(1)The purpose of this Part is to establish a process to screen persons engaging in or intending to engage in child–related work.

…

Division 2 of Part 2 contains ss 10 to 16 and deals with applications for working with children checks. Division 3, which contains ss 17-19, deals with the outcome of applications for working with children checks. Division 4, which contains ss 19A–20A, deals with further applications for working with children checks. Division 5, which contains ss 21–21AF, deals with re–assessments. Division 6, which contains ss 21A–21C, deals with revocation and suspension of assessment notices. Division 7, which contains ss 22–26C, deals with general matters, including the jurisdiction of VCAT.

1. The particularly relevant provisions of the Act are:

1 Purpose

(1) The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them are subject to a screening process.

1A      Protection of children to be paramount

When the Secretary or VCAT makes a decision or takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.

14       Category C application

(1)An application is a category C application for the purposes of this Act if it is in respect of a person—

(a)who has at any time (whether before, on or after 3 April 2006) been subject to—

(i)a finding of a prescribed kind made by, or on behalf of, or referred to the Secretary by, a prescribed body; or

(ii)a determination by VCAT under section 77(4)(g) or (h) or 77(5)(e) or (f) of the Health Professions Registration Act 2005 as in force immediately before its repeal; or

(iii)a determination under section 196(2)(d) or (e) or section 197(2)(b) of the Health Practitioner Regulation National Law by VCAT or by another responsible tribunal within the meaning of that Law; or

(b)who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category B offence specified in clause 2, 8, 9 or 14A of Schedule 2 if the conduct constituting or alleged to constitute that offence occurred when the person was a child; or

(c)who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence other than a category A offence or category B offence; or

(d)who has at any time (whether before, on or after the commencement of this section) been charged with an offence specified in clause 2 of Schedule 3 if the charge has been finally dealt with other than by way of a conviction or a finding of guilt.

Note

For examples of the ways a charge may be finally dealt with, see section 6(1).

…

17       Outcome of application

(1)Subject to sections 12(2) and (3), 13(2) and 14(2), the Secretary must give an assessment notice on an application.

(2)       An assessment notice must—

(a)state that the person in respect of whom it was issued has passed a working with children check; and

(b)if given on an application that did not specify an intention to engage in child-related work for profit or gain, state that the notice cannot be used in respect of child-related work engaged in for profit or gain.

(3)The Secretary must give a negative notice on an application that is a category A application or to an applicant who is otherwise refused an assessment notice.

(4)If the Secretary gives a negative notice to an applicant, he or she must give to the applicant with that notice a written notice that—

(a)       states the reasons for the decision on the application; and

(b)informs the applicant that he or she may apply to VCAT to have the decision reviewed or, in the case of a category A application, to have VCAT consider whether an assessment notice is to be given; and

(c)       explains how an application may be made to VCAT.

…

The plaintiff’s submissions

1. The plaintiff described the Act as containing a tightly controlled process for the granting of assessments. He submitted that the Secretary had to identify whether the application was a category A, B or C application. If it fell into none of those categories then the Secretary had to issue an assessment notice. As s 17(1) states, ‘subject to sections 12(2) and (3), 13(2) and 14(2), the Secretary must give an assessment notice on an application’. Words could not be read into s 17(1) altering its effect. The Secretary had no power to refuse to issue the plaintiff with an assessment notice.

1. The plaintiff was not ‘under a charge at the operative time’, nor found guilty of an offence to which ss 12, 13 or 14 of the Act applied, and there was no mechanism contained in the Act to otherwise categorise the matter as an A, B or C application. The plaintiff submitted that a diversion outcome was not a finding of guilt. He referred to extrinsic material associated with amendments to the Act in 2010 to establish that, when a charge was no longer pending because a diversion order had been completed, the Secretary could not consider the conduct that had given rise to the charge. Thus, the explanatory memorandum to the Working with Children Amendment Bill 2010 stated:

The references to final dealing and finally dealt with are deleted from section 17 in order to clarify that the Secretary cannot consider matters finally dealt with in deciding whether to refuse to give an assessment notice, as this is not considered to be a proper basis for a refusal to give an assessment notice. The Secretary may still have regard to charges, convictions or findings of guilt.[5]

[5]Explanatory Memorandum, Working with Children Amendment Bill 2010, 7.

1. The second reading speech for that Bill stated:

The Bill now amends the Act to clarify that charges that have been finally dealt with, such as by way of being withdrawn or dismissed, cannot be considered by the secretary in assessing an application or in deciding whether to revoke an assessment notice.

Further to this, the Bill clarifies the Act to recognise that a charge is no longer pending once a diversion order is completed under the Criminal Procedure Act 2009 and thus does not form part of the secretary’s consideration in respect of some applications.[6]

[6]Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2010, 2208 (Rob Hulls, Attorney-General).

1. In fact, the parties accepted that the plaintiff’s application did not come within categories A, B or C because he had been discharged without conviction after completing a diversion program.

1. The plaintiff described the scheme of the Act as providing for the issue of a negative notice was based on established conduct and not a prediction of future behaviour and there was not to be a wholesale inquiry into an applicant’s conduct. The Act provided a screening process, not a comprehensive system of vetting an applicant’s suitability.

1. The plaintiff submitted that there was a clear Parliamentary intention to confine the power to issue negative notices to category A, B and C applications, and re–assessments, and to enshrine a safeguard for persons aggrieved by the exercise of this power by giving a right of review to VCAT.

1. The plaintiff placed importance on the circumstances in which the Act provided a review process by VCAT of negative notices issued in respect of category A, B and C applications. He submitted that the scheme of the Act made it unlikely that Parliament had intended that the Secretary could issue a negative notice without giving an aggrieved applicant a right of review. The second reading speech of the Act supported that conclusion. In this case, when issuing the negative notice, the Secretary had informed the plaintiff of his rights to seek review before VCAT, although it was agreed that no such right existed because the application was not a category A, B or C application. The Secretary had so acted because of the terms of s 17(4).

1. The parties devoted much attention to s 1A of the Act, which I will repeat for ease of reference:

Protection of children to be paramount

When the Secretary or VCAT makes a decision of takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.

1. The plaintiff submitted that this paramount consideration could only be taken into account in the exercise of powers that the Act otherwise gave the Secretary or VCAT, being the determination of category A, B or C applications. There was no provision in the Act for the issue of a negative notice outside those categories and any such negative notice would not be subject to review by VCAT. The Act contained a complete statement of power to issue a negative notice.

1. The plaintiff submitted that the words ‘otherwise refused’ in s 17(3), on which the Secretary relied, were not a source of power but instead referred only to refusals based on provisions relating to category A, B or C applications. He submitted that the words in section 1A ‘makes a decision or takes an action’ referred only to circumstances where the Secretary or VCAT had some power of decision, and that such power existed, for present purposes, only in the determination of category A, B or C applications.

The Secretary’s submissions

1. Whereas the plaintiff contended that no power existed in the Act to issue a negative notice other than to applications that fell within categories A, B and C, the Secretary contended that such power was not so limited. She contended that she could issue a negative notice for an application that did not fall within categories A, B or C. She had made a decision and provided reasons, and was therefore making a decision within the meaning of s 1A and had to take the paramount consideration into account. The VCAT Act defines the word ‘decision’ widely.[7]

   [7]Victorian Civil and Administrative Tribunal Act 1998, s 4.

1. Whatever decision was being made in issuing the plaintiff with a negative notice, the Secretary had to apply s 1A. Therefore, she had a positive obligation to issue a negative notice unless, applying the paramount consideration under s 1A, she decided that the issue of the assessment notice would not expose children to a risk of sexual or physical harm. The source of that power was the words ‘or otherwise’ contained in s 17(3).

1. While s 1A was not a positive conferral of power on a decision maker, it contained a consideration that had to be taken into account in making a decision. It was mandatory and applied to all decisions or actions taken. Because of it, when making a decision, the Secretary had to place the protection of children above all other things.

1. If, as in this case, an application could not be categorised as a category A, B or C application, the Secretary still had to consider the application based on the information before her. If, after considering the application and the information before her, the Secretary formed the view that granting the application might expose children to an unjustifiable risk of sexual or physical harm, then applying the consideration in s 1A, a negative notice had to be issued.

1. The Secretary could not ignore the information received or obtained under s 11 in considering the application. The Act did not intend to oblige the Secretary to issue an assessment notice although she was aware of information that suggested that the applicant might harm children. The plaintiff’s submissions would have unintended consequences, for instance the Secretary would have no power to issue a negative notice to an applicant who had a mental illness which could contribute to the applicant’s conduct harming children.

1. The Secretary had lawfully obtained information that the plaintiff posed an unjustifiable risk to the safety of children. That risk was not reduced because he had completed a diversion program following his acknowledgement of responsibility for the conduct with which he had been charged. In those circumstances, to grant the plaintiff’s application would have been fundamentally inconsistent with, and would have struck at the heart of, the purpose and object of the Act. It would have placed at risk the very class of people whom the Act sought to protect.

1. While there was no finding of guilt, the plaintiff’s acknowledgement of responsibility in the Children’s Court was an admission of the general facts of the offending. It could be used by the Secretary as a relevant consideration in applying s 1A when determining the plaintiff’s application.

1. The Secretary relied on the decision of Garde J in Secretary for the Department of Justice v McIntyre[8] as to the meaning of s 1A. His Honour decided that s 1A had to be applied in making a decision in a category A, B or C application and stated:

   [8][2019] VSC 105.

Applying the paramount consideration and the public interest test

It is notable that the unjustifiable risk test applies to all categories of applications under the WWC Act. There are a total of 12 relevant considerations that apply to the unjustifiable risk test in each category.

The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad, and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration – the protection of children from sexual and physical harm - is at the very core of the public interest test.

Summary

The protection of children from harm is the paramount consideration. Essentially, this means that after considering all of the relevant matters, the risk to children posed by the applicant as assessed by the Tribunal or Secretary must be found to be negligible or nil, as any higher assessment of the level of risk to children will offend the paramount consideration and will be unjustifiable. The need of the applicant to obtain employment will be overridden by the legislative direction to protect children from an unjustifiable risk of harm arising from the applicant.[9]

[9]Ibid [82]-[84] (citations omitted).

1. Section 17(3) made clear that the Secretary had to give a negative notice to an applicant who was ‘otherwise’ refused an assessment notice. Section 17(1) required the Secretary to issue an applicant with an assessment notice save for the exceptions to which it referred. But that did not exhaust the Secretary’s powers under the Act. The requirement to issue an assessment notice contained in s 17(1) applied only to category A, B or C applications.

1. There was no dispute between the parties that because the plaintiff, had completed the diversion program ordered by the Children’s Court, his application did not fall within categories A, B or C.

1. In addition, the Secretary had no discretion to give an assessment notice in respect of category A applications. The Secretary had to refuse such applications, although the applicant had a right to apply to VCAT in its original jurisdiction for the issue of an assessment notice. The Tribunal was empowered to undertake the first assessment of a category A application. In the case of category B and C applications, an applicant given a negative notice could seek review by VCAT in its review jurisdiction. Accordingly, category A applicants had, in effect, only one chance, that is before the Tribunal, of persuading a decision maker to issue an assessment notice. Therefore, the plaintiff‘s complaint that the Secretary’s decision to issue a negative notice was not open to merits review in VCAT had no substance. The plaintiff was in no different position than category A applicants and in any event could, and had, exercised his rights of judicial review.

Analysis

1. In my opinion, the plaintiff’s submissions accurately describe the effect of the Act and should be accepted. The Act has a vital public function but it is written to give the Secretary power only in specified circumstances, which for present purposes are category A, B and C applications. The Act does not permit the Secretary to give a person a negative notice in applications that are not category A, B or C applications.

1. Those categories cover a wide range of conduct that may indicate that the person is a risk of harm to children. They have been extended and can be further extended if Parliament considers that to be appropriate. Category C includes actions and conduct that are not criminal conduct.

1. In my opinion, s 1A does not confer power but rather states a mandatory primary consideration that must be taken into account when power, otherwise conferred by the Act, is exercised. The Secretary and VCAT must then give paramountcy to the particular consideration of the protection of children from sexual and physical harm. But s 1A does not alter the effect of the other provisions of the Act especially s 17(1), which require the Secretary to give an assessment notice unless the applicant’s conduct falls into categories A, B or C.

1. Sections 1A and 17(3) of the Act, whether taken separately or jointly, do not empower the Secretary to issue a negative notice to a person whose application does not fall within categories A, B or C.

1. Section 17(3) refers to an applicant ‘otherwise’ being refused an assessment notice, but when read with s 17(1), it refers only to situations where the Secretary refuses to give an assessment notice in accordance with the statutory discretions relating to categories B and C. Section 17(3) does not give the Secretary any residual power to refuse applications.

1. This result follows from s 17(1), which in effect provides that ‘the Secretary must give an assessment notice on an application’ unless the Secretary refuses to give such a notice under the powers relating to one of the three categories.

1. As is mentioned in the plaintiff’s written submissions, this interpretation of s 17(1) is supported by the Explanatory Memorandum to the relevant Bill:

Clause 17(1) states that the Secretary must grant an assessment notice to all applications that fall outside categories 1, 2 and 3. People with no relevant criminal record or relevant disciplinary findings will receive an assessment notice. Applications that fall within categories 2 or 3 and result in the Secretary using his or her discretion in favour of the applicant, will also result in an assessment notice.[10]

[10]Explanatory Memorandum, Working with Children Bill 2005, 8 (emphasis added).

1. This interpretation of the effect of the Act and especially s 1A is consistent with the view of Bell J in Secretary to the Department of Human Services v Sanding,[11] given in a slightly different context, that ‘[t]he principle of the best interests of the child cannot override a legislative prohibition’.[12] If Parliament has established a defined decision making structure, the statutory decision maker must abide by that structure even if the primary value underpinning the statute would, if considered in isolation, favour a different outcome.[13]

   [11](2011) 36 VR 221.

   [12]Ibid 255 [147] (Bell J).

   [13]An analogy may perhaps be drawn with statutory objects clauses, which themselves embody values underpinning the legislation. An objects clause ‘cannot cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear’: S v Australian Crime Commission (2005) 144 FCR 431, 439 [22] (Mansfield J). And, again, ‘whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, or command a particular outcome of exercise of discretionary power’: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31, 78 (Cole JA) cited in D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8^th ed, 2014), 195-197 [4.51].

1. The Secretary stressed the ‘absurd’ results that would follow if the plaintiff’s interpretation were accepted. But those consequences follow from the scheme of the Act that Parliament has adopted. Parliament can alter that scheme if its considers it to be appropriate. Working with children checks are not intended to be an exhaustive verification by the Government of a person’s suitability to work with children.

Conclusion

1. For those reasons, the plaintiff is entitled to a declaration that the Secretary had no power to refuse to give him an assessment notice under the Working with Children Act 2005 in respect of his application dated 13 December 2017. The plaintiff’s application will be referred back to the Secretary to be dealt with in accordance with the declaration and these reasons for decision.