L and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION

[2010] WASAT 82

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) ACT 2004 (WA)

CITATION:   L and CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION [2010] WASAT 82

MEMBER:   JUDGE J PRITCHARD (DEPUTY PRESIDENT)

MR T CAREY (MEMBER)

HEARD:   21 APRIL 2010

DELIVERED          :   11 JUNE 2010

FILE NO/S:   VR 226 of 2009

BETWEEN:   L

Applicant

AND

CHIEF EXECUTIVE OFFICER, DEPARTMENT FOR CHILD PROTECTION
Respondent

Catchwords:

Working With Children (Criminal Record Checking) Act 2004 (WA) - Application for assessment notice - Negative notice - Criminal record check - Class 2 offences - Non-conviction charges - Exceptional circumstances - Whether unacceptable risk that the applicant will cause sexual or physical harm to children in the course of carrying out child­related work - Section 12(8) criteria - Best interests of children paramount consideration

Legislation:

Children and Community Services Act 2004 (WA), s 6(1)(a)(v), s 6(1)(a)(vi), s 6(1)(a)(xiv)
Criminal Code (WA), s 324B, s 324C
State Administrative Tribunal Act 2004 (WA), s 27, s 29
Working with Children (Criminal Record Checking) Act 2004 (WA), s 3, s 4, s 6(1)(a), s 7, s 9(1), s 12(2), s 12(4), s 12(6), s 12(8), s 12(9), s 24, s 26

Result:

Application dismissed and respondent's decision affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr S O'Sullivan

Respondent:     Mr P Urquhart

Solicitors:

Applicant:     Tan & Tan Lawyers

Respondent:     P Dixon, Department for Child Protection

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

Briginshaw v Briginshaw (1938) 60 CLR 336

Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39

Chief Executive Officer, Department for Child Protection v Scott [No 2] [2008] WASCA 171; (2008) 38 WAR 125

D and Department for Community Development [2007] WASAT 154

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Working With Children (Criminal Record Checking) Act 2004 (WA) prohibits a person from being employed in 'child-related work' unless the person has a current 'assessment notice'.

2. The applicant, Mr L, has been working as a patient care assistant at a public hospital since 2004. In October 2008, Mr L made an application for an assessment notice pursuant to the Act, and in November 2008 the Director of the Working with Children Screening Unit within the Department for Child Protection decided not to issue an assessment notice, and to instead issue Mr L with a 'negative notice' pursuant to s 12(9) of the Act. This decision was made on the basis that Mr L had four convictions for 'Class 2 offences', and three 'non-conviction charges' under the Act. Those convictions and non­conviction charges related to sexual abuse by Mr L against his two young daughters over a number of years. Mr L applied to the Tribunal for a review of the respondent's decision.

3. Mr L argued that exceptional circumstances existed that warranted a decision to issue an assessment notice to him. Mr L submitted that having regard to the factors listed in s 12(8) of the Act, there did not exist an 'unacceptable risk' that he might in the future cause sexual or physical harm to children if he was permitted to engage in child-related work. In particular, Mr L relied upon the nature of the offences, the passage of time since the offences were committed, the views of the victims of the offences that Mr L had changed, Mr L's age and the fact that Mr L was unlikely to have contact with children in his work. Mr L also submitted that he was prepared to give an undertaking to the respondent's Department that he would give notice of any change in his employment, to demonstrate his commitment to remaining in one place of employment where there was a very low likelihood of his coming into contact with children.

4. The Tribunal considered that there remained an unacceptable risk that Mr L might in the future cause sexual harm to children, were he permitted to engage in child-related work.  It found that this risk existed having regard to the nature of Mr L's convictions and of the non­conviction charges against him, the relevance of that offending conduct to child-related work, his mature age at the time of his offending conduct, the disparity between his age and that of his victims, the gross breach of trust that his offending conduct represented in relation to his daughters, and the sustained period of offending.  In addition, the Tribunal relied on the evidence given by Mr L at the hearing in relation to the explanations he gave to the police for his offending conduct at the time, his reflections on those explanations now, and his understanding of why the offending conduct was wrong.

5. The Tribunal found that there were a number of factors in s 12(8) which provided support for Mr L's claim that exceptional circumstances exist, including the substantial time which had passed since the offending behaviour, Mr L's current age, the support of Mr L's family, the limited contact Mr L has with children in the course of his employment and Mr L's intention to remain in that employment. However, these factors were secondary to the paramount principle, set out in s 12(8)(a), of the best interests of children. The Tribunal therefore determined that exceptional circumstances did not exist such as to warrant the grant of an assessment notice to Mr L. Accordingly, the Tribunal dismissed the application for review and affirmed the decision of the respondent to issue Mr L with a negative notice.

Introduction

1. Mr L is a 58­year­old man, who is married with four adult children, including two adult daughters.

2. On 7 December 1992 Mr L was convicted in the District Court, following his plea of guilty, of two counts of unlawfully and indecently dealing with one of his daughters, whom we have identified in these reasons as M1, contrary to s 324B of the Criminal Code (WA). These charges were counts 4 and 5 on the indictment presented against Mr L.

3. Also on 7 December 1992, Mr L was convicted, following his plea of guilty, of two counts of unlawfully and indecently dealing with his other daughter, whom we have identified in these reasons as M2, who was a person under the age of 16 years, contrary to s 324C of the Criminal Code (WA). These charges were counts 6 and 7 on the indictment presented against Mr L.

4. Mr L was sentenced to a period of three years' probation in respect of the counts of which he was convicted.

5. Mr L was also charged, on the same indictment, with a further three counts (counts 1 to 3 on the indictment) which alleged that he unlawfully and indecently assaulted M1.  In these reasons, we refer to these charges as the non­conviction charges.  The Crown presented a nolle prosequi in relation to counts 1 to 3 on the indictment, because the Crown had been advised by M1 that she could no longer recall the events giving rise to those charges.

6. We have set out below the facts in relation to counts 4 to 7 on the indictment, and the alleged facts in relation to counts 1 to 3.

7. Since 2004, Mr L has been working as a patient care assistant (that is, an orderly) at a public hospital, and is attached to the orthopaedic surgery section of the hospital.  He works predominantly at one branch of the public hospital, and works one day per fortnight at another branch of the public hospital.  His work primarily involves taking patients to and from the operating theatre.  This involves collecting them from the ward, pushing them to the theatre on a trolley, assisting to place them on the operating table, and assisting to clean up after the surgery is completed.  Generally Mr L does not have to lift the patients onto the trolley as they can ordinarily get onto the trolley by themselves.  The exception to this is where he needs to pick up patients from a spinal injury ward.  In that case, four assistants are required to transfer patients at the same time.  In his evidence in chief, Mr L said that in the seven years he has worked in his present employment he was not aware that he had taken a patient who was under 18 years of age to theatre.  Mr L said that most patients he comes across are older than twenty years of age.  However, he accepted that occasionally children have surgery at the hospital, and that sometimes he would have to take them to theatre.

8. On 25 October 2008 Mr L applied for an assessment notice pursuant to s 9(1) of the Working With Children (Criminal Record Checking) Act2004 (WA) (WWC Act). A person who is employed in child­related employment, as that term is defined in s 4 of the WWC Act, is required to have a current assessment notice. A person who does not have such a notice and who is employed in child­related employment commits an offence: s 24 of the WWC Act.

9. On 13 November 2009, the Director of the Working with Children Screening Unit within the Department for Child Protection decided to refuse Mr L's application for an assessment notice, and instead to issue Mr L with what is called a 'negative notice', pursuant to s 12(9) of the WWC Act. The decision to issue a negative notice was made pursuant to s 12(6) of the WWC Act. That subsection required the respondent to issue a negative notice to Mr L unless the respondent was satisfied that 'because of the exceptional circumstances of the case' an assessment notice should be issued to Mr L. In deciding whether the respondent was so satisfied, the respondent was required to have regard to various factors set out in s 12(8) of the WWC Act. Subsection 12(8) of WWC Act is in the following terms:

   (8)If subsection (4), (5) or (6) applies in respect of an offence, the CEO is to decide whether he or she is satisfied in relation to the particular or exceptional circumstances of the case having regard to ­

   (a)the best interests of children;

   (b)when the offence was committed or is alleged to have been committed;

   (c)the age of the applicant when the offence was committed or is alleged to have been committed;

   (d)the nature of the offence and any relevance it has to child­related work;

   (e)any information given by the applicant in, or in relation to, the application;

   (f)anything else that the CEO reasonably considers relevant to the decision.

10. Mr L now seeks a review of the respondent's decision, pursuant to s 26 of the WWC Act. That review is conducted in the exercise of the Tribunal's review jurisdiction: see s 27 and s 29 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

11. The issue at the heart of the review is whether, on all of the information and material before us, we are satisfied that there are 'exceptional circumstances' which warrant a decision to issue an assessment notice to Mr L. In determining whether we are so satisfied, we must have regard to the criteria in s 12(8) of the WWC Act and in particular, to the best interests of children (s 12(8)(a)).

12. In considering whether exceptional circumstances exist which warrant a decision to issue an assessment notice to Mr L, we need to determine whether there exists an 'unacceptable risk' that Mr L might, in the future, cause sexual or physical harm to children in the course of carrying out child­related work:  Chief Executive Officer, Department for Child Protection v Grindrod [No 2] [2008] WASCA 28; (2008) 36 WAR 39 at [85] (Grindrod) (Buss JA, Wheeler JA agreeing).

13. In order to deal with these issues, our reasons for decision address the following matters:

    1.'Unacceptable risk' of future sexual or physical harm to children;

    2.The basis for the respondent's decision to refuse Mr L's application for an assessment notice;

    3.The facts and alleged facts in relation to counts 1 to 7 on the indictment;

    4.Assessment of 'exceptional circumstances' having regard to the factors in s 12(8) of the WWC Act.

    5.Whether there exists an 'unacceptable risk' of future sexual or physical harm to children, having regard to:

    (i)the criteria in s 12(8)(b) ­ (f) of the WWC Act;

    (ii)the criterion in s 12(8)(a) of the WWC Act; and

    6.Conclusion:  whether we are satisfied that exceptional circumstances exist, so as to warrant the grant of an assessment notice to Mr L.

14. We note, for completeness, that on 22 December 2009, the President of the Tribunal ordered that Mr L's name, and the names of his daughters, not be published.  It is for that reason that references to them in these reasons have been anonymised.

'Unacceptable risk' of future sexual or physical harm to children

1. Nothing in the WWC Act expressly suggests that the risk of harm to children is relevant to determining whether an assessment notice should issue to an applicant.  However, it is implicit in the purpose and scheme of the WWC Act that the risk of harm is relevant.  In Chief Executive Officer, Department for Child Protection v Scott[No 2] [2008] WASCA 171; (2008) 38 WAR 125 (Scott), at [19] ­ [21], McLure JA identified the basis for this implication, at least in relation to convictions, as being that:

   … The legislature regards a conviction of a criminal offence as rendering that person actually (Class 1 offence), prima facie (Class 2 offence) or possibly (any other offence) unsuitable to work with children. That can only be because the applicant, solely by reason of one or more convictions, poses a risk of repeating the type of criminal conduct in which they have previously engaged. The legislation identifies all offences which actually or prima facie require the issue of a negative notice. Under s 12(6), the exceptional circumstances must be such as to negative the risk that the legislature itself deemed to be unacceptable, namely the risk of repetition.

   In the case of other offences to which s 12(5) applies, the [CEO] must first examine the nature and circumstances of the offence to determine whether repetition of that conduct (the risk of which one must draw from the fact of conviction alone) would harm, or give rise to a risk of harm, to children.  …

   This construction is consistent with the specific mandatory considerations in s 12(8)(b) ­ (d). Paragraph (d) of s 12(8) is concerned with the nature and circumstances of the applicant's offending and their relevance to children. The matters in pars (b) and (c) of s 12(8) are relevant to negativing the risk arising from the prior offending.

2. The risk which will warrant the refusal of an assessment notice has been described as an 'unacceptable risk' that an applicant might cause sexual or physical harm to children in the course of carrying out child­related work.  In Grindrod, at [81] ­ [87], Buss JA (with whom Wheeler JA agreed) concluded:

   [i]t is implicit in s 12(4) and (8), in the context of s 3 and the WWC Act as a whole, that the CEO is not entitled to issue a negative notice under s 12(4) unless the CEO finds, on the basis of the information and other material properly before him or her, and after having regard to the criteria in paras (a) ­ (f) of s 12(8) (including, in particular, the paramount consideration of the best interests of children), that there is an 'unacceptable risk' that the applicant might cause sexual or physical harm to children, in the course of carrying out child­related employment.

   The notion of 'unacceptable risk' reflects the evident policy of the WWC Act in balancing the risk of harm to children on the one hand with the civil rights of an applicant on the other.  It embodies the precautionary approach that I have mentioned.

   …

   The critical question for the CEO under s 12(4) is whether, on all the information and other material properly before him or her, there is an 'unacceptable risk' that the applicant might, in the future, cause sexual or physical harm to children, in the course of carrying out child-related employment.  The risk in question has to be unacceptable, not likely. …

   The factors which bear upon risk (and which should be taken into account under s 12(8)(a), (d), (e) or (f) as the case may be) include, for example:

   (a)the circumstances which culminated in the charge of an offence being disposed of by the court otherwise than by way of a conviction (for instance, the death or unavailability of a material witness);

   (b)the apparent strength or weakness of the case against the applicant in relation to the non­conviction charge in question;

   (c)the degree and seriousness of any future risk to children if the applicant were to be engaged in child-related employment; and

   (d)the likelihood of any such future risk materialising.

   … It will be necessary, no doubt, for the CEO, in deciding whether, for the purposes of s 12(4), there is an 'unacceptable risk', to rely partly on facts and partly on reasonable suspicions. The weight to be accorded to particular facts or reasonable suspicions will depend on all the circumstances, including the apparent probative value of those facts or suspicions.

3. Although Grindrod was a case concerning s 12(4) of the WWC Act, the views expressed by Buss JA in relation to the relevance of 'unacceptable risk' and its assessment under s12(8) of the WWC Act are equally applicable in relation to the present case.

The basis for the respondent's decision to refuse Mr L's application for an assessment notice

1. Before making a decision on an application for an assessment notice, the respondent must make a criminal record check in respect of the applicant: s 12(2) of the WWC Act. In Mr L's case, that criminal record check revealed that Mr L had convictions for the offences the subject of counts 4 to 7 on the indictment, that he had been charged with counts 1 to 3 on the indictment but that those counts had been the subject of a nolle prosequi, and that Mr L also had three convictions for traffic offences.

2. The manner in which the respondent is required to deal with applications for assessment notices depends upon whether an applicant has a criminal history and, if so, the nature of the offences with which he or she has been charged or convicted. The WWC Act distinguishes between five kinds of offending behaviour: 'Class 1 offences', 'Class 2 offences' (both of which are defined in s 4 and s 7 of the WWC Act), offences which are neither Class 1 nor Class 2 offences, Class 1 or Class 2 offences with which an applicant has been charged but which are not resolved at the time of the application, and 'non­conviction charges' which are charges for offences that have been disposed of by a court otherwise than by way of a conviction (s 4 of the WWC Act).

3. Mr L's convictions for the offences in counts 4 to 7 of the indictment were convictions for Class 2 offences under the WWC Act.  Counts 1 to 3 on the indictment, which were the subject of the nolle prosequi, were non­conviction charges for Class 2 offences.  The traffic offences were neither Class 1 nor Class 2 offences.  The respondent did not regard Mr L's traffic convictions as relevant to his child­related work, and did not seek to rely on them in relation to the application.  That concession was correctly made.

4. The respondent was required to deal with Mr L's application for an assessment notice pursuant to s 12(6) of the WWC Act because that subsection applies when the respondent is aware of a 'Class 2 offence' of which an applicant has been convicted. Although the existence of non­conviction charges in respect of Class 2 offences is a prerequisite for the application of s 12(4) of the WWC Act, that subsection only applies if the respondent is also not aware of any offence of which an applicant has been convicted. Because Mr L had been convicted of offences, and the respondent was aware of that fact, s 12(4) was inapplicable.

5. The respondent determined that a negative notice should be issued to Mr L because the information before the respondent did not suggest that exceptional circumstances existed which might warrant the grant of an assessment notice.  The grounds for that conclusion were:

   •The extremely serious nature of the offences of which Mr L was convicted, involving Class 2 offences against his two daughters, and the similarity of the offending behaviour involved in the non­conviction charges;

   •The position of authority and trust held by Mr L at the time of the alleged commission of the offences and the breach of that trust;

   •Mr L was an adult at the time of the offences and there was a considerable age difference;

   •There was an ongoing pattern of abuse rather than one or two isolated incidents when considering the period of time over which the Class 2 convictions occurred; and

   •The nature and seriousness of the harm inflicted on the children demonstrates that the risk to children is unacceptable.

The facts and alleged facts in relation to counts 1 ­ 7 on the indictment

1. The respondent filed copies of all documents relevant to the decision to issue the negative notice.  Those documents included a copy of the transcript of the sentencing hearing in the District Court on 7 December 1992 when Mr L was convicted, and sentenced, for counts 4 to 7 on the indictment.  The documents provided by the respondent also included witness statements made by M1 and M2 which outlined their allegations in relation to counts 1 to 7, and outlined background factual material relating to the duration and pattern of the offending behaviour, witness statements by two police officers which record admissions made by Mr L in a record of interview with them, and copies of two statements signed by Mr L, containing admissions in relation to the allegations made by his daughters.

2. Counsel for Mr L initially submitted that the facts set out in the witness statements of M1 and M2, which pertained to the non­conviction charges and background facts, should be given little weight, and submitted that the statements provided by Mr L would not be admissible in criminal proceedings, so that we should give them no weight.  However, in his evidence, Mr L accepted the accuracy of all of the allegations made in the witness statements of M1 and M2, and confirmed the accuracy of his own written statements to police.  Counsel for Mr L therefore did not maintain his submission that we should not rely on this material.  Counsel for Mr L submitted that we should treat Mr L as having convictions, and with a background, that involved serious offending.

3. The respondent submitted that the counts on the indictment were representative of a course of conduct in which Mr L had engaged in relation to each of his daughters over a number of years.  In cross­examination, Mr L accepted that for 10 years from when M1 was six years of age, until when she was 16 years of age, he repeatedly interfered with her in a sexual way, and that he repeatedly sexually interfered with M2 for approximately two years.  In view of Mr L's evidence, we did not understand counsel for Mr L to dispute that the counts on the indictment were representative counts.

4. We now turn to consider in greater detail the Class 2 offences for which Mr L was convicted, before considering the circumstances of his non­conviction charges in respect of Class 2 offences and other background factual allegations.  In relation to the latter charges and allegations, Mr L's counsel initially indicated that objection was taken, on admissibility and relevance grounds, to a consideration of any material which did not result in convictions.  However, in view of Mr L's evidence at the hearing, which we discuss below, that objection was not pressed at the hearing.

(a)     Class 2 offences of which Mr L was convicted

1. We have set out below the facts in relation to counts 4 to 7 on the indictment.  Those facts are drawn from the facts provided to the learned sentencing judge in the course of the sentencing proceedings in the District Court of Western Australia on 11 November 1992.  Those facts were, in turn, drawn from the witness statements provided by M1 and M2.  Those facts are also confirmed by the written statements provided by Mr L to the police.

2. Under cross­examination in these proceedings, Mr L confirmed that he had engaged in the conduct alleged by M1 and M2 in their witness statements, and we set out below the nature of his admissions, which pertain to both the conviction and non-conviction charges.

•  Count 4

1. The facts in respect to count 4 are that in about February or March 1992, Mr L was at home with his daughter M1 who was 16 years of age at the time.  M1 was in her bedroom laying face up on the floor listening to music.  Mr L came into her room and lay down on top of her.  Both M1 and Mr L were fully clothed.  Mr L then began to rub his body against M1's body.  M1 screamed and said, 'I will tell on you'.  Mr L then got off her and left the room. 

•  Count 5

1. The facts in respect of count 5 are that towards the end of March 1992, Mr L was again at home with M1, as were other members of the family.  It was about 6 pm in the evening and Mr L was in his bedroom.  M1 went into his room and asked him if he wanted a cup of tea.  She sat on the bed whilst she was speaking to him.  Mr L agreed and M1 began to get up from her sitting position.  Before she was able to do so, Mr L grabbed her arm and pushed her down onto the bed.  He then lay on top of her and rubbed himself against her, whilst holding down her hands.  Both Mr L and M1 were dressed at the time.  M1 kicked at Mr L and told him to get off her.  Mr L then said to her, 'wait there a minute', because he loved her.  M1 said that she did not care and that her back was hurting.  Mr L then got off her and M1 got up and left the room.

•  Count 6

1. In relation to count 6, the facts are that on a date unknown, when M2 was 10 years old, she was at the family home when her father called her into his bedroom.  M2 recalled that it was early in the morning and that she still had her pyjamas on.  Mr L was lying on his bed fully clothed.  He invited M2 to lie next to him, which she did.  He then rolled on top of her and began to move his body up and down on top of hers.  After a short while he stopped doing this and rolled off her.  M2 then got up and left the room.

•  Count 7

1. Count 7 relates to an incident that occurred about a week after the incident described in count 6.  Mr L and M2 were again at home together and Mr L called her into his room to lie down with him.  It was again early in the morning and M2 was in her pyjamas.  Mr L was dressed and lay on top of her and moved up and down on her.

(b)     The non­conviction charges

1. The WWC Act permits the respondent, and the Tribunal, to take into account non­conviction charges in determining whether an assessment notice should be granted to an applicant: see, for example, s12(4) of the WWC Act.

2. The evidence in relation to the non­conviction charges is set out in M1's statement to the police, which was before us in the hearing.  The allegations made by M1 in her statement are also supported by the written statements Mr L provided to the police.  In his evidence, Mr L accepted the accuracy of the witness statement made by M1 in relation to the conviction charges, the non­conviction charges and the background facts referred to in M1's statement.  He also accepted that the statements he made to police in relation to the allegations made by M1 and M2 were accurate.  In addition, in his evidence before us in these proceedings, Mr L made admissions concerning his conduct towards his daughters.

3. Accordingly, the evidence before us is strongly probative of the occurrence of the offending which was the subject of the non­conviction charges.  Bearing in mind the seriousness of the allegations concerning the non­conviction charges, and the principle in Briginshaw v Briginshaw (1938) 60 CLR 336, we are persuaded that the conduct the subject of the non­conviction charges actually occurred.

4. The facts set out below in relation to each of the non­conviction charges are drawn from M1's witness statement.  We have also set out the admissions made by Mr L in his statements to the police, together with his evidence before us in these proceedings.  Finally, we have noted the other allegations made by M1 in her witness statement, which constituted background facts in relation to the non-conviction charges.

•  Count one

1. In about January 1982, when M1 was six years old, Mr L called her into the lounge room.  Her mother was not around.  Mr L started kissing M1 on the cheek.  He then pulled her tracksuit pants and knickers down.  He knelt in front of M1 and started licking her vagina.  He did this for a little while before he stopped and pulled her pants up.

•  Count two

1. When M1 was nine years old she was watching television when she was called by Mr L into his room.  Her mother was out at the time.  M1 went into Mr L's room and complied with his request to lock the door.  He told her to lie on the bed with him.  After she had been lying next to Mr L for a while, he reached over and undid a cord on the body suit she had on.  He started kissing her breasts, which had not fully formed at that time.  He knelt over her with his knees on both sides of her body, pulled her body suit down to her ankles, moved her legs apart and moved down and started licking her vagina.  He did this for about 10 minutes.  Finally he got off her and kept rubbing all over her body and vagina.  She escaped by expressing her need to go to the toilet.

•  Count three

1. Still while M1 was nine, Mr L was driving M1 home from Sunday school when he stopped the car near a park.  Mr L pushed M1 down on the long bench­style seat.  He started kissing her on the lips.  He made a comment that he needed to teach her for when her boyfriend would do this.  He pulled her up after he had touched her breasts under her blouse.

•  Background facts in relation to the counts on the indictment

1. In addition to the incidents particularised in counts 1 to 3, M1's statement referred to Mr L touching her vagina, licking her vagina and touching her breasts when her mother was not home, once or twice a week.  In addition, from the age of about seven, Mr L would sometimes take his penis from his pants and rub it between M1's thighs. He ejaculated on a couple of occasions.

(c)      L's evidence before the Tribunal in relation to the conviction and non­conviction charges

1. In cross­examination, Mr L was questioned about whether he had engaged in the various types of conduct alleged by M1 in her witness statement.  Mr L confirmed that he had kissed M1 on the lips, licked M1's vagina, kissed M1's breasts, rubbed his groin against M1, rubbed his penis between M1's thighs and, on occasion, ejaculated.  He accepted that he engaged in this behaviour with M1 on repeated occasions.

2. In cross­examination, Mr L was questioned about whether he had engaged in the various types of conduct alleged by M2 in her witness statement.  Mr L confirmed that his conduct included lying on top of M2, touching her breasts and touching her bottom under her underwear.  He accepted that he engaged in this behaviour on numerous occasions within a period of two years.

Assessment of 'exceptional circumstances' having regard to the factors in s 12(8) of the WWC Act.

1. As we have noted, s 12(6) of the WWC Act requires the respondent to issue a negative notice to an applicant who has criminal convictions, or pending charges, of the kind specified in the subsection, unless the respondent is satisfied that because of the exceptional circumstances of the case, an assessment notice should be issued to that applicant.

2. In D and Department for Community Development [2007] WASAT 154 at [19] ­ [21] (D and Department for Community Development), Deputy President Judge Chaney (as he then was) discussed the meaning of the word 'exceptional' in s 12(6). His Honour said:

   The Act does not define 'exceptional circumstances'.  The Australian Concise Oxford Dictionary (2nd ed), Oxford University Press, Melbourne, 1992 defines exceptional as 'forming an exception; unusual; not typical'.  In Baker v The Queen (2004) 223 CLR 513 at 573 [173], Callinan J referred with approval to the approach of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198 at 208 to the expression 'exceptional circumstances' in s 2 of the Crime (Sentences) Act 1997 (UK) where he said:

   'We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art.  It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.  To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

   In Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26], Rares J after referring to the observations of Griffiths v R (1989) 167 CLR 372 at 379 by Brennan and Dawson JJ that 'although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances', said:

   'Exceptional circumstances … can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional …

   It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be.  Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation.  The ordinary and natural meaning of 'exceptional circumstances' in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.'

   Although those observations were made in the context of different statutory provisions, they are, in my view, equally applicable to the expression as it appears in the Act.

   The circumstances enumerated in s 12(8)(b), (c) and (d) are unlikely, by themselves, to be capable of categorisation as 'exceptional'. Section 12(8) must, therefore, contemplate that the circumstances enumerated in the subsection will be considered in combination to determine whether they might be regarded as exceptional.

3. We respectfully agree with the views expressed by his Honour in this passage from D and Department for Community Development.

4. Whether exceptional circumstances exist is to be assessed having regard to the criteria in s 12(8) of the WWC Act. Although the respondent (and the Tribunal) must give separate consideration to each of the factors in paras (a) ­ (f) of s 12(8), each factor is not of equal significance in the overall evaluative exercise which the respondent is required to perform: Scott at [105]. The best interests of children in s 12(8)(a) is the paramount consideration: s 3 of the WWC Act. As a result, if a factor in s 12(8) is inconsistent with the best interests of children, the relevant factor in s 12(8)(b) ­ (f) must give way: Scott at [105] (Buss JA, Wheeler JA agreeing). The weight to be given to the factors in (b) ­ (f) will depend on all the facts and circumstances of the case. In some cases, some of the factors in (b) ­ (f) may be of little practical significance, when compared with the paramount consideration of the best interests of children: Scott at [106] (Buss JA, Wheeler JA agreeing).

5. Counsel for Mr L submitted that a number of matters demonstrated that there did not exist an 'unacceptable risk' that Mr L might, in the future, cause sexual or physical harm to children in the course of carrying out child­related work, and also rendered the circumstances of Mr L's case exceptional so as to warrant the issue of an assessment notice to Mr L.  In summary, the matters relied on by Mr L were the nature of the offences, including the isolated nature of the circumstances and time in which they occurred, the passage of 18 years since the offences were committed, the view of the victims of the offences that Mr L had changed, Mr L's age, the fact that Mr L is, and has been, working outside the home since the offences were committed so that if there was a propensity on his part to commit further offences, that would have manifested itself by now, the fact that it was unlikely that Mr L would have contact with children within his working environment, the fact that he has no qualifications which would permit him to work in areas of child­related work generally, the fact that it was unlikely that Mr L would change employment in the future and the fact that Mr L was prepared to give an undertaking that he would advise the respondent's Department if he changed his employment.

6. We have discussed these matters in more detail in the course of our examination of the factors set out in s 12(8) of the WWC Act. We deal first with the factors in s 12(8)(b) ­ (f) before turning to consider the paramount criterion of the best interests of children in s 12(8)(a) of the WWC Act.

Application of the criteria in s 12(8)(b) ­ (f) of the WWC Act, having regard to all of the material before the Tribunal

•  Section 12(8)(b):  when the offence was committed or is alleged to have been committed

1. Counsel for Mr L relied on the fact that a very lengthy period ­ some 18 years ­ has passed since the most recent conduct of which Mr L was convicted, and that during this time there has been no suggestion of any repetition of similar conduct on his part.  Counsel for Mr L submitted that if Mr L had had a propensity to re­offend, it is very likely that that would have manifested itself by now.

2. Ordinarily, the passage of such a substantial period of time, with no re­offending, would be a significant factor in Mr L's favour.  However, the strength of this factor is lessened by two considerations.  First, the sexual abuse by Mr L took place over a period of approximately 10 years, and involved more than one child.  In a case involving a lengthy period of repeated sexual offending, against more than one victim, a very lengthy period would ordinarily be required to pass before the circumstances might be described as 'exceptional' so as to warrant the grant of an assessment notice.  In a case involving an isolated offence, even of a serious nature, involving one child, a lesser (but still significant) period would ordinarily be required to pass.  The present case falls within the former, rather than the latter, category of cases.

3. Secondly, the evidence was that, at least in his most recent employment, Mr L has had virtually no contact with children.  Accordingly, this is not a case like Scott, for example, where the applicant had been working with children, without incident, for many years since his last offending.  Because he has not worked with children, any propensity that Mr L might have, or might have had, to engage in sexual conduct with children has not been tested within his working environment.

4. Nevertheless, the fact remains that 18 years is a considerable period of time in which there has not been any report that Mr L has engaged in sexual contact with children.  That fact does provide some support for the grant of an assessment notice, subject to other factors, but it would not suffice on its own to constitute exceptional circumstances.

•  Section 12(8)(c):  the age of the applicant when the offence was committed or is alleged to have been committed

1. Mr L was aged between 28 or 29 years of age, and 39 years of age, when the conduct the subject of his convictions, and of the non­conviction charges, took place.  Counsel for Mr L submitted that we should take into account the fact that Mr L was clearly a person of limited understanding at the time of committing the offences.

2. Mr L's age when the conduct the subject of his convictions, and of the non­conviction charges, took place does not support Mr L's claim that exceptional circumstances exist.  Mr L was not a young man at the time of his offending behaviour, but a mature adult who had lived in Australia, and had been in the workforce here, for some years, and who was supporting a wife and family.

3. It is also relevant in the present case to note the disparity in age between Mr L and his daughters at the time of his offending behaviour.  The non­conviction charges against Mr L related to offending which is alleged to have commenced when M1 was six years old, and Mr L was 29 years of age.  The offending against M1 continued until M1 was 16 years old.  The offending against M2, which was the subject of counts 6 and 7 on the indictment, commenced when M2 was 10 years old.  The offending was thus committed against very young girls, and involved a gross violation of the trust which children are entitled to expect of their parents.

•  Section 12(8)(d):  the nature of the offence and any relevance it has to child­related work

1. Counsel for the respondent submitted that the conduct involved in the non­conviction charges would have been classified as involving Class 2 offences, but arguably aspects of that conduct would now be treated, by the criminal law, as involving the sexual penetration of a child, and would therefore be considered a Class 1 offence.  Although that may be so, we do not approach this case on that basis.

2. It suffices to say that the offences of which Mr L was convicted were sexual offences of a serious nature against children.  The non­conviction charges involved conduct which was much more serious, and represented a very serious and sustained course of sexual abuse against Mr L's female children.  We accept the submission of counsel for the respondent that Mr L had been engaged in entrenched, serious, and continuing acts of sexual abuse against his elder daughter and, to a lesser extent, against his younger daughter.

3. Counsel for the respondent submitted that the nature of Mr L's offending behaviour was relevant to specific categories of child­related work under the WWC Act, including an arrangement for the accommodation or care of children, whether in a residential facility or private resident (s 6(1)(a)(v)), a placement arrangement under the Children and Community Services Act 2004 (WA) (s 6(1)(a)(vi)) and a babysitting or child minding service (s 6(1)(a)(xiv)).

4. Counsel for Mr L submitted that although the nature of the offences committed by Mr L was very serious, and the conduct endured for an extended period of time, the offending was also highly specialised in that it involved sexual offences against his own female children.  There was nothing in the evidence to suggest that Mr L had ever interfered with male children and no suggestion that his offending had ever involved persons outside his home.  Counsel for Mr L submitted that there was nothing to suggest that there was any likelihood that Mr L's offending behaviour would manifest itself at work.  In his evidence, Mr L accepted that it was possible that he might come into contact with children in the course of his employment, although this was likely to be a very rare occurrence.  He said that he is never alone with any patients.  In addition, counsel for Mr L highlighted the fact that although Mr L is currently engaged in work which, strictly speaking, is considered to fall within the definition of child­related work under the WWC Act, he rarely has any contact with children in the course of his work, and he is very unlikely to ever engage in any other child­related work as he has no qualifications to do so.  Implicit, if not explicit, in these submissions was the contention that in the context of Mr L's present employment, the nature of Mr L's convictions, and the non­conviction charges, have no relevance to child­related work.

5. We are unable to accept this submission, for three reasons.  First, the starting principle is that the prior commission of sexual offences against children is highly relevant to the question of whether an applicant poses a risk to the safety of children if engaged in child­related work.  While Mr L currently has very little contact with children in his day­to­day work, the evidence established that the possibility exists that Mr L may have contact with children, if a child was being operated on in either branch of the public hospital at which he presently works.  In addition, Mr L accepted in cross­examination that it was possible that he could be transferred to another public hospital, so his present conditions of work are not determinative of the work he may be required to perform while employed by his present employer.

6. Secondly, work is 'child­related work' if the usual duties of the work involve, or are likely to involve, contact with a child in connection with a variety of types of work: s 6(1)(a) of the WWC Act. We do not consider that the relevance of particular offences or alleged offences to child­related work is to be determined by reference to the circumstances surrounding an applicant's current employment. Although the extent to which a person's work involves working with children is relevant to the threshold question of whether that person needs to obtain an assessment notice in order to avoid the contravention of s 24 of the WWC Act, it is difficult to see its relevance to the question for determination under s 12(6) of the WWC Act. That is because the grant of an assessment notice permits the holder of that notice to work in any child­related work contemplated by the WWC Act. Consistent with this view of the WWC Act is the fact that the Act does not permit conditions to be imposed on the grant of an assessment notice which would restrict the application of that notice to a particular employment situation or type of child­related work: Grindrod at [94] (Buss JA, Wheeler JA agreeing).

7. Thirdly, the considerations in s 12(8), which are relevant to determining whether exceptional circumstances exist, appear to be directed to the question whether an applicant should be permitted to work in child­related work generally. That much is made express in s 12(8)(d), insofar as it directs attention to the relevance of the offence to child­related work, rather than to the particular child­related work in which an applicant is engaged at the time of his or her application.

8. Although Mr L does not have qualifications which may be required to engage in certain kinds of child­related work, the definition of child­related work is very broad, and encompasses a range of occupations for which no, or minimal, formal qualifications may be required before a person is placed in an environment where he or she may come into contact with children.  Examples of those occupations include work for religious organisations and for cultural, recreational and sporting clubs or associations.  The grant of an assessment notice permits an applicant to work in any child­related work (subject of course to other factors, such as educational or employment qualifications).

9. Accordingly, we consider the nature of the convictions, and of the  non­conviction charges, together with the alleged background facts in relation to those charges, remain highly relevant to child­related work generally.

•  Section 12(8)(e):  any information given by the applicant in, or in relation to, the application

1. There were three other matters to which Mr L pointed as being relevant to the question whether exceptional circumstances exist in this case:  his age and domestic environment, his relationship with the victims of his offending behaviour and the financial impact of re­offending were he to be given an assessment certificate now.

2. As to the first of these matters, Mr L is now 58 years old.  He is married and lives in a stable domestic environment with his wife and his adult male children who live at home.  He has the support of his wife.

3. Secondly, Mr L has the support of the victims of his offending.  Mr L's evidence was that he has regular contact with M1, who lives interstate, and with M2, who lives in Perth.  He speaks with M1 by phone and has spent holidays with her, and in 2009 she stayed at his home with Mr L and his wife.  He speaks with M2 by phone almost every day and sees her on the weekends.  M1 and M2 exchange cards and presents with their parents for birthdays and Christmas, and Mr L and his wife have dinners with M2 to celebrate family events and birthdays.

4. Both M1 and M2 provided witness statements in these proceedings attesting to their love for their parents.  M1 stated:

   [A]t the time of the offences and several years afterwards, I thought I would never find forgiveness for my father.  I saw a really big change in my father's demeanour and I would just call and talk to him.  I would call him and talk to him about my problems.

5. M1 described her parents' presence at her wedding, their support for her when she lost a baby, and their support for her when her marriage broke down.  She stated:

   I have completely forgiven my father.  A lot of professional people say that people never change.  I see my dad and do not see a monster.  I see my dad as a kind, compassionate person who will give his life to protect his children. … My dad is a changed man and I feel his pain.

6. In her witness statement, M2 stated:

   [M]y dad is a completely new person.  He has tried so hard to correct the errors of his past to an extent that he has now become an integral part of my nuclear family including my 2 year old daughter … My father has unsupervised access to my daughter.

7. She further stated:

   My dad has expressed remorse so much.  There are so many ways in which he has tried to repay his 'debt'. … He has changed so much and I have completely forgiven him a long time ago. … Considering the time that has elapsed, the massive improvement he has made and the support he has been for my family and the remorse he has expressed, my dad is a change (sic) man.

8. M2 also gave evidence at the hearing.  She confirmed that Mr L has regular contact with her two­and­a­half­year­old daughter, including periods where he looks after her without any other adult being present.  M2 said that she has no difficulty leaving her daughter with Mr L.

9. It is certainly unusual for the perpetrator of sexual offences against children to have maintained good relationships with his victims once they reach adulthood and have the opportunity to reflect on the conduct engaged in towards them.  Mr L is very fortunate indeed to have the continued support of his daughters, and to have received their forgiveness for his conduct towards them.  However, at least insofar as they suggested in their evidence that their father was a changed man, it was not entirely clear that this change pertained to Mr L's attitudes to sexual offending against children.  During cross­examination, M2 was asked about her statement that her father was a changed man, and how he had changed.  She said that her father 'had been a very strict person, but after everything happened with this we became more friends'.  She said that he showed that he had changed in that he became a less strict Sri Lankan male and he learned to trust her.  That is, M2's evidence did not substantiate that Mr L had changed in ways which involved a full appreciation and acceptance, by him, of the moral turpitude of his conduct.  These two factors provide some support for Mr L's claim that exceptional circumstances exist.

10. Thirdly, in his witness statement in these proceedings, Mr L noted that both he and his wife work, and they would not be able to make the mortgage repayments on their home 'if one of us is not working'.  He also stated that he did not know what he could do if he could not work at his present job, as he does not have any other skills, and without his present job he would very likely be unemployed.  The adverse consequences for an applicant of the issuing of a negative notice, including adverse financial consequences, are not relevant considerations in the exercise of the respondent's (and therefore the Tribunal's) determination as to whether exceptional circumstances exist so as to warrant the grant of an assessment notice:  Scott at [109] (Buss JA, Newnes AJA agreeing). However, counsel for Mr L submitted that the evidence was provided not for the purpose of demonstrating financial hardship, but for the purpose of demonstrating that it is unlikely Mr L would re­offend, because if he did so, he would undoubtedly be prohibited from working in his current employment, with the financial hardship for him and his family that that would entail. We do not give this factor much weight. It does not set Mr L apart from any other person who has previously offended.

•  Section 12(8)(f):  anything else that the CEO reasonably considers relevant to the decision

1. There were two other matters raised in the evidence before us which were said to be relevant to the decision whether exceptional circumstances exist.  We did not consider these matters to be relevant, for the following reasons.

2. First, in cross­examination, Mr L was asked whether he would have continued to engage in the sexual abuse of his daughters if his offending behaviour had not come to the attention of the police.  He said that he could not answer the question because he did not know whether he would have stopped or not, but suggested that he would have stopped when his daughters 'reached a certain age' (which he did not seek to specify).  Counsel for the respondent sought to suggest that had Mr L's conduct against his daughters not been detected, it would have continued on, unabated, for some time.  That suggestion was entirely speculative, and we do not place any weight on it.

3. Secondly, in his evidence to the Tribunal, Mr L indicated that he has no present intention of changing his job, and that he was prepared to give an undertaking to the Tribunal that he would tell the respondent's Department if he changed his job, if he changed the location where he worked or if he changed employer.  Counsel for Mr L submitted that Mr L's preparedness to give such an undertaking was a sign that he is a changed person, and demonstrated his commitment to remaining in the one place of employment where there is a very low likelihood of his coming into contact with children.

4. In some respects this undertaking was tantamount to a submission that the Tribunal should grant the assessment notice, but on conditions.  The WWC Act does not permit assessment notices to be granted on conditions:  Grindrod at [94] (Buss JA, Wheeler JA agreeing). From this perspective, no weight should be afforded to this aspect of Mr L's evidence.

The criterion in s 12(8)(a) of the WWC Act ­ the best interests of children

1. Counsel for the respondent submitted that had the only evidence of offending against children been that relating to counts 4 to 7 on the indictment, the respondent would not have refused Mr L's application for an assessment notice.  We note that that approach was consistent with the view expressed by the learned sentencing judge in the sentencing hearing.  Her Honour expressed the view that she believed it was unlikely that Mr L would repeat, against his daughters, the behaviour of which he had been convicted.  Her Honour was, however, dealing only with the conduct which constituted counts 4 to 7 in the indictment, counts 1 to 3 having been the subject of a nolle prosequi.

2. Counsel for Mr L submitted that any risk that Mr L once posed to children (and specifically to his daughters alone) was now reduced to nil.  He submitted that the risk was eliminated by virtue of the isolated nature of the offending (in that the offending was committed against his daughters in a domestic setting) and the events which have followed.  We are unable to accept the submission that an unacceptable risk does not exist, for three reasons.

3. First, we take into account the conclusions we reached in relation to s 12(8)(b) ­ (f), and in particular our conclusions that the nature of Mr L's convictions, and of the facts and background facts in relation to the non­conviction charges against him, remain highly relevant to child­related work generally, Mr L's mature age at the time of his offending conduct, the disparity between his age and that of his daughters when the offending behaviour occurred, and the fact that his conduct involved a gross violation of the trust which children are entitled to expect of their parents.  These factors tend to support the conclusion that Mr L poses a continuing risk of sexual harm to children.

4. Secondly, as we have explained above, we do not accept the characterisation of the offending behaviour which was urged upon us by counsel for Mr L.  To the contrary, we accept that the evidence established that Mr L was engaged, for a period of 10 years, in continued, very serious acts of sexual abuse towards his elder daughter, and to a lesser extent, towards his younger daughter.  Although the non­conviction charges were not pursued because M1 advised that she could no longer recall the incidents, Mr L's confirmation of the accuracy of her statement, and his evidence before us which confirmed what conduct had taken place, strongly support the conclusion that Mr L engaged in the alleged acts which were the subject of the non­conviction charges.  Although there has been no suggestion that Mr L has engaged in any similar conduct in the past 18 years, the fact that he previously engaged in such serious behaviour, which involved sexual harm to two children, and for such an extended period of time, makes it difficult to avoid the conclusion that, even after 18 years, Mr L poses a continuing risk of sexual harm to children.

5. Thirdly, for the reasons set out below, the evidence given by Mr L in the hearing led us to the view that Mr L's attitudes to his offending at the time, his reflections on those attitudes now, and his limited insight into, and understanding of, what was wrong about his conduct, suggest that there remains an unacceptable risk that Mr L might in future cause sexual or physical harm to children in the course of child­related work.

6. In cross examination, Mr L was asked about the explanations he gave for his offending at the time of his apprehension by the police.  Mr L's explanations for his offending behaviour were patently implausible.  In essence, Mr L's evidence was to the effect that when he engaged in the offending behaviour, he had not appreciated that conduct of that kind was wrong.  Mr L claimed that he had had no education in Sri Lanka, and that he had been brought up like this.  Mr L accepted that he had not thought that any of his Australian­born friends at the time would have been engaging in similar conduct with their children, because 'their culture is completely different'.  Mr L also told us that this was part of a normal life, and that he had had no intention of doing anything wrong.  Mr L denied that in engaging in the sexual abuse of his daughters, he was responding to 'urges' to touch them.  He denied having had any urges, but said that his behaviour was 'just natural'.  He said that the reason why he behaved in this way was 'nature'.  Mr L also told us that he had thought his conduct was acceptable because he thought he was teaching his daughters sexual things.

7. In our view, it must have been very clear to Mr L, when he committed the offences, and engaged in the conduct which was the subject of the non­conviction charges and the background to those charges, that he knew that his conduct was entirely wrong.  Following his apprehension by the police, Mr L provided statements to the police.  He admitted that he knew at the time of his offending that his conduct was wrong, and that that was what he thought at the time.  He also admitted that he engaged in the conduct to satisfy his own sexual desires.  Mr L acknowledged that he had never told his wife about his behaviour, because he knew she would not approve of it, and he accepted that he had told his daughters not to tell anyone else about what had occurred, because he knew his conduct was wrong.  Mr L's evidence suggested that when he was apprehended, he had sought to minimise the gravity of his conduct and his level of criminal responsibility.

8. Under cross­examination, Mr L confirmed that the explanations for his conduct which he had given to the police at the time of the offending reflected the beliefs he held at the time.  However, in giving this evidence, Mr L did not seek to disavow the validity of those beliefs in any way, other than to say that he now accepts that what he did was wrong.  Consequently we were not convinced that in looking back on those explanations, some 18 years later, Mr L wholly rejects the views he once held.

9. Furthermore, Mr L's evidence as to the views he now holds about his offending conduct, left us in doubt as to whether he really accepts and understands what was wrong about his conduct.  Although Mr L's evidence was that he accepted that what he did was wrong, when we asked him what was wrong about his conduct, Mr L answered 'not giving them [that is, his daughters] privacy, not giving them space, touching them, kissing them'.  Mr L's response did not suggest that he had a real insight into the physical and emotional harm which is caused to children who are the victims of sexual abuse, particularly sexual abuse by family members.

1. In addition, during his examination in chief and in response to our own questions, Mr L said that he had some counselling by a psychologist following his apprehension for the offences.  He told us that he saw a psychologist twice a week for approximately three months, and that as part of his probation he saw a counsellor once a week for a year.  He said that he had learnt at lot as a result of this counselling.  However, the apparently limited nature of what Mr L claims to have learned through counselling was telling.  He said that the counselling assisted him, in particular, by allowing him, for the first time, to '… get away from my background to the Australian way of life'.  When cross­examined as to what he meant by this, Mr L said that he learnt about the 'dos and dont's' of being a parent in Australia, and of the need to give children space and love without physical interference.  Mr L said that he is now aware that when it comes to a certain age, it is necessary to show respect to children.

2. Accordingly, we have reached the conclusion that there is an unacceptable risk that Mr L might in future cause sexual or physical harm to children in the course of child­related work.

Conclusion:  whether we are satisfied that exceptional circumstances exist, so as to warrant the grant of an assessment notice to Mr L

1. As we have noted above, some of the factors to which Mr L pointed provided support for his claim that exceptional circumstances exist.  These included the substantial period since the offending behaviour in which no repetition of his previous conduct has occurred, his current age, his family support, the limited conduct he has with children in his present employment, and his intention to remain in that employment.  However, given the other factors to which we have referred as giving rise to an unacceptable risk that Mr L might cause sexual harm to children if permitted to engage in child­related work, we are not satisfied that exceptional circumstances exist so as to warrant the grant of an assessment notice to Mr L.

Conclusion and Orders

1. As we are not satisfied that exceptional circumstances exist to warrant the grant of an assessment notice, s 12(6) of the WWC Act requires that a negative notice be issued to Mr L. The correct and preferable decision is therefore that a negative notice should be issued to Mr L. That is what the respondent did.

2. We make the following orders:

   1.The application for review is dismissed.

   2.The decision of the respondent dated 13 November 2009 is affirmed.

I certify that this and the preceding [97] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J PRITCHARD, DEPUTY PRESIDENT