Maleckas (LKQ) v Secretary, Department of Justice
[2011] VSC 227
•31 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2010 05456
| JURGIS MALECKAS (‘LKQ’) | Plaintiff |
| v | |
| SECRETARY, DEPARTMENT OF JUSTICE | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 23 May 2011. Written submissions received on 30 May 2011. | |
DATE OF JUDGMENT: | 31 May 2011 | |
CASE MAY BE CITED AS: | Maleckas v Secretary, Department of Justice | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 227 | |
JUDGMENT APPEALED FROM: | LKQ v Secretary, Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Steele DP, 10 September 2010) | |
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ADMINISTRATIVE LAW – Victorian Civil and Administrative Tribunal – Appeal from an order of the VCAT affirming a decision to give a negative assessment notice under the Working with Children Act 2005 – Whether the plaintiff proposed to engage in ‘child-related work’ within the meaning of s 9 of the Act – Whether the VCAT misconstrued s 13(2) – Meaning of ‘unjustifiable risk’ to the safety of children in s 13(2) – Meaning of ‘the likelihood of future threat to a child’ in s 13(2)(h) – Alleged failure to take into account relevant considerations – Whether the plaintiff’s insight into his prior offending is a relevant consideration – Victorian Civil and Administrative Tribunal Act 1998 sch 1, cl 102 – Meaning of ‘it is in the public interest to give an assessment notice’ – Whether the plaintiff’s rehabilitation is relevant to the public interest – Appeal allowed – Proceeding remitted to the VCAT.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms H Spowart with Mr C Horn | Victoria Legal Aid |
| For the Defendant | Ms D Mortimer SC with Mr P Panayi | Victorian Government Solicitor’s Office |
TABLE OF CONTENTS
Introduction and summary........................................................................................................ 1
Facts............................................................................................................................................. 2
Relevant statutory provisions................................................................................................... 3
The VCAT proceeding............................................................................................................... 7
Evidence before the VCAT.................................................................................................... 7
The VCAT’s decision............................................................................................................. 9
Questions of law........................................................................................................................ 9
Question 1 – misconstruction of the test in s 13(2) of the WWC Act................................. 10
Meaning of the test in s 13(2) of the WWC Act................................................................. 10
‘No appreciable risk’ to the safety of children as distinct from ‘no risk’........................... 12
Onus of proof....................................................................................................................... 14
Absence of evidence of the plaintiff being a ‘positive influence’ on ‘young people’........ 16
Conclusion in relation to question 1................................................................................... 17
Question 2 – misconstruction of s 13(2)(g) of the WWC Act............................................... 18
Question 3 – misconstruction of s 13(2)(h) of the WWC Act............................................... 18
Question 4 – whether engagement in child-related work is a precondition..................... 19
Question 5 – relevant and irrelevant considerations under s 13(2) of the WWC Act...... 20
Taking into account irrelevant considerations................................................................... 20
Failing to take into account relevant considerations......................................................... 21
Question 6 – misconstruction of public interest considerations......................................... 22
Conclusion................................................................................................................................. 25
Proposed order.......................................................................................................................... 25
HIS HONOUR:
Introduction and summary
This is an appeal by the plaintiff from an order made by a deputy president of the Victorian Civil and Administrative Tribunal (‘VCAT’) on 10 September 2010 affirming the decision of the defendant, the Secretary to the Department of Justice (‘Secretary’), dated 17 July 2009 to give to the plaintiff a negative assessment notice under s 13(2) of the Working with Children Act 2005 (‘WWC Act’).[1]
[1]LKQ v Secretary, Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Steele DP, 10 September 2010) (‘Reasons’). The VCAT made an order permitting the plaintiff to make an application for review under the pseudonym ‘LKQ’. At the hearing of the appeal, I refused to make a similar order.
I will refer to the Secretary’s decision as ‘the Secretary’s decision’ and the VCAT’s order as ‘the VCAT’s order’.
Under s 33 of the WWC Act, it is an offence for a person to engage knowingly in ‘child-related work’ without a ‘current assessment notice’. Under s 13(2), where an applicant for an assessment notice has been charged with, or convicted of, an offence specified in s 13(1), the Secretary must refuse to give an assessment notice ‘unless satisfied that doing so would not pose an unjustifiable risk to the safety of children’. An application for an assessment notice that is governed by s 13(2) is described as a ‘category 2 application’.
The plaintiff is a member of the committee of management of a voluntary organisation called ‘Straight Arrows’, which provides support to heterosexual individuals who are HIV positive. The committee requested that he obtain an assessment notice because his work as a volunteer brings him into contact with the children of members. As the plaintiff was convicted on 19 September 1990 of manslaughter, an offence specified in s 13(1)(b) of the WWC Act, his application for an assessment notice was governed by s 13(2).
Following the making of the Secretary’s decision, the plaintiff applied to the VCAT for a review of that decision. The review was governed by cl 102 of sch 1 to the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), which provides that, on a review of a decision to give a negative notice on a category 2 application, the VCAT must have regard to the matters set out in s 13(2) of the WWC Act and to ‘whether, in all the circumstances, it is in the public interest to give an assessment notice.’
The VCAT decided that it was not satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. It also decided that, as the plaintiff’s proposed activities did not involve child-related work, it was not in the public interest to give an assessment notice.
For the reasons set out below, I have concluded that the VCAT misconstrued s 13(2) of the WWC Act and failed properly to take into account the public interest as required by cl 102 of sch 1 to the VCAT Act. The appeal will be allowed and the proceeding will be remitted to the VCAT.
Facts
The facts set out below are largely based on the VCAT’s findings.
On 13 November 1988, the plaintiff, who was then 28 years of age, attended a party that was also attended by his male victim, SH, who was then 27 years of age. The plaintiff left the party with Ms E, who had been in a relationship with SH. The plaintiff and Ms E went to her flat where they took drugs and had sexual intercourse. When SH arrived, the plaintiff left to obtain takeaway food. When the plaintiff returned, he and SH had an altercation at the front door of Ms E’s flat. They then went inside the flat where the plaintiff fatally stabbed SH several times.
The plaintiff was charged with murder. At trial, he and Ms E gave different accounts of the events inside the flat. Ms E gave evidence that SH was sitting in a chair when he was stabbed by the plaintiff. On 19 September 1990, the jury found the plaintiff not guilty of murder, but guilty of manslaughter. In his sentencing remarks, Southwell J accepted that Ms E’s account was the most likely explanation of what had occurred.
In 1988, the maximum sentence for manslaughter was 15 years. On 20 September 1990, Southwell J sentenced the plaintiff to six years’ imprisonment with a non-parole period of five years. In his sentencing remarks, Southwell J said, ‘I accept that your record shows that you are unlikely to commit further crimes of violence.’
While the plaintiff was in prison, he commenced a Bachelor of Arts degree. He was released from prison six months early on ‘pre-release’ and, after his release, he completed the degree. In 2006, he completed the Honours component of the degree.
In 1994, the plaintiff pleaded guilty to possessing and using amphetamines while he was on parole.
In 2005, the plaintiff was convicted of obtaining financial advantage by deception regarding Centrelink payments and was placed on a good behaviour bond.
The plaintiff currently attends a ‘school of philosophy’ that offers, among other things, meditation. He also practices yoga at another school.
In his application for an assessment notice, the plaintiff described his child-related work as follows:
First, I’m on the committee of Straight Arrows, a HIV positive heterosexual support group and they have decided that all committee members should have a Working With Children Check because they run weekend seaside camps, where children may be present and also because you don’t know just who is going to come into the office.
Second, I’ve completed an honours degree in Community Development and it’s often a requirement to have a [Working With Children Check] to obtain jobs in that area.
Relevant statutory provisions
The main purpose of the WWC Act is ‘to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body.’[2] The WWC Act gives effect to this purpose by creating an offence of knowingly engaging in ‘child-related work’ without a ‘current assessment notice’.[3]
[2]Section 1(1) of the WWC Act.
[3]Section 33 of the WWC Act. Part 3 of the WWC Act contains a number of exemptions that are not relevant to this appeal.
Section 9 of the WWC Act contains a detailed definition of ‘child-related work’. The provisions of s 9 that are relevant to this appeal are as follows:
9What is child-related work?
(1)For the purposes of this Act, child-related work is—
(a)work engaged in—
…
(iii)as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or
…
(c)work engaged in as a volunteer … other than unpaid work engaged in for a private or domestic purpose—
that usually involves, or is likely usually to involve, regular direct contact with a child in connection with a service, body, place or activity specified in subsection (3) in circumstances where that contact is not directly supervised by another person.
…
…
(3)The services, bodies, places or activities in connection with which regular direct contact with a child may result in work … of a kind referred to in subsection (1) being child-related work are—
…
(o)overnight camps for children regardless of the type of accommodation or of how many children are involved; …
Although the WWC Act requires a person who applies for an assessment notice to set out in the application form ‘the type of child-related work in which the applicant is engaged or intends to engage’,[4] an assessment notice is not tied to any particular child-related work. In other words, if the Secretary gives an assessment notice to an applicant, he or she can lawfully engage in any child-related work for the duration of the notice[5] and is not confined to the child-related work set out in the application form.
[4]Section 10(2A)(e) of the WWC Act.
[5]Section 19(1) of the WWC Act provides that an assessment notice remains in force for five years.
Further, the Act contemplates that an assessment notice may be given to an applicant even though he or she does not plan to engage in any specific child-related work within a defined timeframe after receiving the notice.
The WWC Act provides for four classes of applications for an assessment notice and assigns different criteria for their determination.
The first class is a ‘category 1 application’, which applies to applicants that have been convicted of certain sexual or pornography offences. In relation to category 1 applications, subject to the narrow provisions of s 12(3) of the WWC Act, s 12(2) provides that the Secretary ‘must refuse to give an assessment notice’.
The second class is a ‘category 2 application’, which applies to applicants that have been charged with, or convicted of, violent offences (such as murder or manslaughter) or certain other serious offences. In relation to category 2 applications, s 13(2) provides:
The Secretary must refuse to give an assessment notice on a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to—
(a)the nature and gravity of the offence or alleged offence and its relevance to child-related work; and
(b)the period of time since the applicant committed, or allegedly committed, the offence; and
(c)whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d) the sentence imposed for the offence; and
(e)the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and
(f)whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and
(g)the applicant's behaviour since he or she committed, or allegedly committed, the offence; and
(h) the likelihood of future threat to a child caused by the applicant; and
(i)any information given by the applicant in, or in relation to, the application; and
(j)any other matter that the Secretary considers relevant to the application.
The third class is a ‘category 3 application’, which applies to applicants that have been charged with, or convicted of, certain less serious offences. In relation to category 3 applications, s 14(2) provides that the Secretary must give an assessment notice ‘unless satisfied, in the particular circumstances, that it is appropriate to refuse to do so.’
The fourth class comprises applications that do not fall into the other classes. Section 17(1) of the WWC Act provides that, subject to limited exceptions, the Secretary must give an assessment notice.
Section 17(3) relevantly provides that the Secretary must give a negative assessment notice to an applicant who is refused an assessment notice.
Section 26(5)(b) of the WWC Act confers jurisdiction on the VCAT to review a decision by the Secretary to give a negative assessment notice. Clause 102 of sch 1 to the VCAT Act relevantly provides:
102 Review of category 2 application
If the proceeding relates to the giving of a negative notice on a category 2 application within the meaning of the Working with Children Act 2005 the Tribunal must have regard to—
(a)any matter to which the Secretary may have regard under section 13(2) of that Act; and
(b)whether, in all the circumstances, it is in the public interest to give an assessment notice.
The VCAT proceeding
Evidence before the VCAT
According to the VCAT’s reasons, at the hearing of the plaintiff’s application for review, evidence in support of the application was given by the plaintiff; the plaintiff’s current partner, Ms KC; a friend and former workmate of the plaintiff, JC; and a psychologist, Mr Cummins. The plaintiff, KC and JC provided witness statements and were cross-examined. Mr Cummins provided a report and was cross-examined. In addition, the plaintiff relied on his application for an assessment notice and on letters in support from friends.
The plaintiff was cross-examined about his proposed child-related work, as set out in his application for an assessment notice,[6] in the context of the VCAT’s consideration of whether it was in the public interest to give him an assessment notice. He agreed that, in his various roles, he did not have regular direct contact with children.
[6]See above [16].
In his application for an assessment notice, the plaintiff described his behaviour on the night of the manslaughter offence as a ‘self defence response’. He said that, of the seven stab wounds that he inflicted on SH, most were minor and only one was life threatening. In cross-examination, the plaintiff maintained that he and SH were in a fierce physical altercation.
The transcript of the committal proceeding was tendered. The medical practitioner who attended SH gave evidence that, of the seven wounds, two were five centimetres deep, one was five to 10 centimetres deep, one was 10 centimetres deep, the life threatening wound was 15 to 20 centimetres deep and that the other two wounds were minor. When the plaintiff was cross-examined about this evidence, he accepted what he had been told about the wounds, but said that he did not recall them as being severe.
The documentary evidence before the VCAT included details of a telephone discussion between the plaintiff and the police officer investigating the death of SH. The plaintiff was reported to have said the following to the police officer: ‘There was only ever one life-threatening wound, there were other nicks and incisions … I think there were seven individual wounds. I don’t dispute I inflicted them.’ In cross-examination, the plaintiff said that that is how he remembered the incident.
In his witness statement, the plaintiff said that, on the night of the offence, he ‘handed himself in’ to the police. In cross-examination, it emerged that he was arrested at his home. He stated that he had intended to hand himself in.
The plaintiff agreed that he used amphetamines between 1994 and 1997.
In relation to the plaintiff’s conviction in 2005 for obtaining financial advantage by deception regarding Centrelink payments, the plaintiff relied on a letter from a physician. The letter stated that medication that the plaintiff was then taking for serious medical conditions may have caused some cognitive impairment that affected his ability to comply with Centrelink’s requirements.
The plaintiff’s partner, Ms KC, gave evidence that she and the plaintiff have been in a stable relationship for almost five years. She said that the plaintiff was a kind and caring person, and was a good son to his mother and a good father to his adult children.
Mr Cummins gave evidence that, although the plaintiff had a mildly narcissistic personality style with a bohemian presentation, he did not have a personality disorder. He said that the plaintiff’s personality style did not indicate that he was more likely to be a threat to others than persons with other personality styles. He said that the plaintiff did not have any current problems with alcohol, drug use or impulsivity and that he had developed insight.
Mr Cummins gave evidence that the plaintiff ‘held himself responsible’ for the manslaughter of SH. He said that, in his opinion, the plaintiff did not ‘minimise’ the offence when he described it. He accepted as ‘probably correct’ the evidence that Mr Walton, a psychologist, had given at the plaintiff’s murder trial that the plaintiff was ‘vulnerable to threats of violence’ at the time that he committed the offence.
The VCAT’s decision
Set out below are the VCAT’s conclusions:
44.In summary, the factors indicating that the applicant should not be granted an assessment notice were as follows: the offence committed by the applicant was a serious violent offence, the applicant was the sole perpetrator, he was an adult at the time it was committed, he received a relatively severe sentence indicating that the court regarded the offence seriously, he has committed some minor offences since being released from prison, including drug use.
45.In favour of granting the assessment notice were the following factors: the offence in question was committed 22 years ago, the applicant has since obtained a university degree and has a stable life and personal relationships, he follows constructive pursuits such as philosophy and yoga and is a contributor to the community by his involvement in an organisation which supports people who are HIV positive. There was no additional evidence that he is likely to be a threat to children. Neither however was there any positive evidence to dispel the possibility, given his past offence, that he may be a threat to children.
…
47.The standard set by section 13(2) is high. I must refuse the assessment notice unless satisfied that the applicant would not pose an unjustifiable risk. I can not be satisfied of that. The applicant committed a serious crime, albeit a long time ago, and some smaller offences since then. There is insufficient positive evidence before me about his life to establish that he is unlikely on the balance of probability to pose a risk to the safety of children or to establish that any risk is a justifiable one.
These conclusions, and the VCAT’s reasons for them, will be discussed in detail under each of the questions of law set out in the notice of appeal.
Questions of law
The notice of appeal sets out the following questions of law:
1.Whether the Tribunal misdirected itself and erred in the construction it placed on the threshold test contained in s 13(2) of the [WWC Act], namely, that it was required to be satisfied that to give an assessment notice ‘would not pose an unjustifiable risk to the safety of children’.
2.Whether the Tribunal misdirected itself and erred in the construction it placed on s 13(2)(g) of the [WWC Act] in construing the statutory matters there provided for by, in effect, inserting the words ‘towards children’ after ‘behaviour’ and requiring the applicant in meeting the threshold test required under s 13(2) to establish and prove the requisite standard of satisfaction by reference to the applicant’s behaviour towards children.
3.Whether the Tribunal misdirected itself and erred in the construction it placed on s 13(2)(h) of the [WWC Act] (having regard to ‘the likelihood of future threat to a child’) being a matter it was required to take into account in determining whether the requisite standard of satisfaction had been reached in order to give an assessment notice.
4. Whether the Tribunal misdirected itself and erred in the construction it placed on the legislative scheme and purpose of the [WWC Act] in requiring as a precondition to the operation of the [WWC Act] and the issue of an assessment notice that an applicant demonstrate and prove the precise child-related work that he or she is presently engaged in or proposes to be engaged in before he or she is eligible to have an assessment notice issue[d].
5.Whether the Tribunal erred in failing to properly apply the test contained in s 13(2) [of the WWC Act] and failing to reach the required state of satisfaction to issue an assessment notice having regard to the matters contained in paragraphs 13(2)(a) to (j).
6.Whether the Tribunal misdirected itself and erred in placing a limited construction on the definition of public interest in restricting its analysis to a consideration of whether the activities undertaken by the appellant amounted to child-related work, and failed to take into account relevant factors including the importance of rehabilitation.
Question 1 – misconstruction of the test in s 13(2) of the WWC Act
Meaning of the test in s 13(2) of the WWC Act
Before I examine the parties’ submissions in relation to the first question of law, I will set out my understanding of the opening words of s 13(2) of the WWC Act, which set out the test for determining a category 2 application for an assessment notice. The test is that the Secretary and, on the hearing of an application for review, the VCAT ‘must refuse to give an assessment notice … unless satisfied that doing so would not pose an unjustifiable risk to the safety of children’.
A number of propositions may be stated about this test. Those propositions apply equally to an assessment performed by the Secretary and by the VCAT. For simplicity, I will only refer to an assessment performed by the Secretary. The propositions are as follows:
(a)The starting position is that a category 2 application will be refused. There can be a departure from the starting position only if, on the basis of the material before the Secretary, he or she is satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.
(b)While s 13(2) does not impose any formal onus of proof on an applicant, as a matter of practical reality, it is difficult to see how an applicant could succeed in satisfying the Secretary that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, unless the applicant provides to the Secretary probative evidence going to that issue.[7]
(c)If the Secretary is not satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, he or she must refuse to give an assessment notice. Satisfaction that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children is a condition precedent to the Secretary’s power to give an assessment notice. If the condition precedent is not met, the Secretary does not have any power, let alone any discretion, to give an assessment notice.
(d)The expression ‘an unjustifiable risk’ does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.
(e)What constitutes ‘an unjustifiable risk to the safety of children’ will depend on the circumstances of each case, having regard to the matters set out in s 13(2)(a) to (j) of the WWC Act and the main purpose of that Act as set out in s 1(1).
(f)Although the WWC Act does not define the expression ‘safety of children’, it is apparent from the reference to ‘protecting children from sexual or physical harm’ in s 1(1) of the Act that the expression means ‘sexual or physical safety of children’. That is not to say, however, that the risk of non‑sexual and non-physical harm to children will always be irrelevant. Depending on the circumstances of a particular case, such a risk may be relevant to public interest considerations under cl 102 of sch 1 to the VCAT Act.
[7]See further below at [56].
The question of what is relevant to the public interest under cl 102 of sch 1 to the VCAT Act will be discussed separately below.
The plaintiff submitted that the VCAT had misconstrued the test in s 13(2) of the WWC Act. There were three limbs to the plaintiff’s submissions. Each limb will be considered in turn.
‘No appreciable risk’ to the safety of children as distinct from ‘no risk’
The first limb of the plaintiff’s submissions was that the VCAT interpreted s 13(2) as meaning that an assessment notice could not be granted unless the VCAT, which stood in the shoes of the Secretary in a review proceeding, was satisfied that there was a guarantee that the plaintiff did not pose a risk to the community. In support of this submission, the plaintiff relied on the following statement in the VCAT’s reasons:
In sentencing the applicant to six years in prison following his trial, Justice Southwell said that the offence was a case of manslaughter ‘more serious than most’. Later, apparently considering factors relevant to imposing a less severe sentence, he said, ‘I accept that your record shows that you are unlikely to commit further crimes of violence’. Given the context, I am not able to treat this as anything other than a reflection on the applicant’s record at that point as it affected his sentence. It is not a guarantee that the applicant poses no risk to the community.[8]
[8]Reasons, [35].
The plaintiff also relied on the VCAT’s statement at para 45 of its reasons that there was no ‘positive evidence to dispel the possibility, given [the plaintiff’s] past offence, that he may be a threat to children.’[9] The plaintiff submitted that s 13(2) contemplated the existence of justifiable risks to the safety of children and that the imposition of a requirement on the plaintiff to guarantee that there was no possibility that he may be a threat to children made it impossible for him – and any other category 2 applicant – to succeed. This is because, so it was said, it is not possible for anyone to prove the negative proposition that there is no possibility that they may be a risk to children.
[9]Para 45 of the Reasons is set out above at [39].
The Secretary submitted that the plaintiff’s contentions were misconceived for two reasons. The first reason was that the contentions failed to recognise that, prima facie, s 13(2) requires the Secretary to refuse to give an assessment notice. The second reason was that the contentions failed to consider the context in which the VCAT’s statements were made.
In relation to the VCAT’s statement that Southwell J’s sentencing remarks did not constitute ‘a guarantee that the applicant poses no risk to the community’, the Secretary submitted that, in its proper context, the statement meant no more than the sentencing remarks were not conclusive about whether the plaintiff posed no risk to the community.
I agree with the Secretary’s submission that the VCAT did not use the expression ‘not a guarantee’ literally, but in the sense of ‘not conclusive’. Read in this sense, the VCAT said that Southwell J’s sentencing remarks were not conclusive ‘that the applicant poses no risk to the community’. In doing so, the VCAT misconstrued s 13(2) in two respects. First, the reference to ‘no risk’ was used in substitution for the statutory test of ‘unjustifiable risk’. Secondly, the expression, ‘risk to the community’ was used in substitution for the statutory expression, ‘the safety of children’.[10]
[10]See also para 31 of the VCAT’s reasons below at [58] where the VCAT referred to the likelihood of the plaintiff committing ‘any offences’ as distinct from any offences affecting the safety of children.
The above departures from the language of s 13(2) were not isolated. As submitted by the plaintiff, at para 45 of the VCAT’s reasons, the VCAT referred to the absence of ‘positive evidence to dispel the possibility … that [the plaintiff] may be a threat to children.’[11] At para 24 of the VCAT’s reasons, the VCAT described the fact that the plaintiff had been to prison for a violent offence as ‘a public and incontrovertible fact’, and said that there was ‘little public evidence’ to support the plaintiff’s assertion that ‘he poses no risk to children’. Not only did the VCAT repeat the notion of ‘no risk’ as distinct from no ‘appreciable risk’, it also apparently proceeded on the basis that the plaintiff must adduce ‘public and incontrovertible’ facts in order to persuade the VCAT to give an assessment notice. There is no such requirement in s 13(2).
[11]Emphasis added. Para 45 is set out above at [39].
It is true that, in other parts of its reasons, the VCAT set out the precise requirements of s 13(2) of the WWC Act. The references in the VCAT’s reasons to the notion of ‘no risk’, however, indicate that the VCAT regarded that notion and the notion of no ‘appreciable risk’ as interchangeable. This is demonstrated by the statement at para 47 of the VCAT’s reasons that there was ‘insufficient positive evidence … about [the plaintiff’s] life to establish that he is unlikely on the balance of probability to pose a risk to the safety of children or to establish that any risk is a justifiable one.’[12] In my opinion, the VCAT failed to recognise properly the nature and scope of the legal test that it was required to apply under s 13(2) and consequently did not apply that test.
[12]Para 47 of the Reasons is set out above at [39].
Onus of proof
The second limb of the plaintiff’s submissions in relation to the first question of law is that the VCAT erroneously imposed on the plaintiff an onus of proving, on the balance of probabilities, that he did not pose an unjustifiable risk to the safety of children. The plaintiff relied on the statement at para 47 of the VCAT’s reasons that there was ‘insufficient positive evidence … about [the plaintiff’s] life to establish that he is unlikely on the balance of probability to pose a risk to the safety of children or to establish that any risk is a justifiable one.’[13]
[13]Para 47 of the Reasons is set out above at [39].
The plaintiff submitted that the WWC Act does not impose an onus of proof on either party and does not require the Secretary to be satisfied, on the balance of probabilities, that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. The plaintiff relied on the following statement of Morris P in PJR v Secretary, Department of Justice:[14]
Section 26(2) of the [WWC] Act requires the tribunal to be satisfied that the giving of notice would not pose an unjustifiable risk to the safety of children. If the tribunal is not so satisfied it must not make an order for the giving of an assessment notice. Further, the tribunal may order the giving of an assessment notice if it is satisfied that, in all the circumstances, it is in the public interest to do so. The language used in these sub-sections does not impose any onus of proof, as such, on the applicant; rather the proceeding is inquisitorial. But, as the Court of Appeal has observed in an analogous context, because the tribunal needs to be satisfied as to specified matters, this inevitably imposes a challenge to an applicant to show why the tribunal should be so satisfied. Nevertheless it is inappropriate to characterise the matter as subject of proof ‘on the balance of probabilities’, or by reference to the principles in Briginshaw v Briginshaw, or any other similar test used in civil proceedings.[15]
[14][2006] VCAT 2455 (4 December 2006) (‘PJR’).
[15][2006] VCAT 2455 (4 December 2006) [17] (citations omitted). Morris P referred to s 26(2) of the WWC Act because PJR concerned a category 1 application.
The Secretary submitted that, even though the WWC Act does not impose an onus of proof and does not refer to the balance of probabilities, the VCAT did not make an error of law by considering whether it had reached the level of satisfaction required by s 13(2) on the balance of probabilities. The Secretary relied on the following statement by Woodward J in McDonald v Director-General of Social Security[16]:
If the [Commonwealth] AAT finds itself in a state of uncertainty after considering all the available material, unable to decide a question of fact either way on the balance of probabilities, it will be necessary for it to analyse carefully the decision it is reviewing.[17]
[16](1984) 1 FCR 354.
[17](1984) 1 FCR 354, 358.
I agree with the observations of Morris P in PJR. As I intimated at [43](b) above, however, while the Act does not impose any onus of proof on an applicant and does not specify any standard of proof, as a matter of practical reality, it is difficult to see how an applicant could succeed in satisfying the VCAT that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, unless the applicant adduces probative evidence going to that issue. As a matter of common sense, the more objective, direct and unequivocal is the evidence before the VCAT on the question of risk to the safety of children, the greater the prospects of the VCAT being satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.
It is true, as I have said, that the WWC Act does not require the VCAT to be satisfied, on the balance of probabilities, that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. However, in the light of the subject matter with which s 13(2) deals, namely, the safety of children, it is difficult to see how the VCAT could properly give an assessment notice if its level of satisfaction is less than on the balance of probabilities. Accordingly, the VCAT’s reference to the balance of probabilities did not, of itself, constitute an error of law.
Absence of evidence of the plaintiff being a ‘positive influence’ on ‘young people’
The plaintiff submitted that the VCAT erred in construing s 13(2) by taking into account the absence of evidence that the plaintiff had been a ‘positive influence’ on children. The plaintiff relied on para 31 of the VCAT’s reasons. After commenting at para 30 of the VCAT’s reasons that the applicant in MH v Department of Justice[18] had been working with youths with the specific aim of helping them to avoid the errors of judgment which had led him to commit the offence of manslaughter, the VCAT said the following at para 31:
None of the evidence before me presented that sort of positive view of the applicant in this case. There was no evidence for example that he is a positive influence on any young people. That sort [of] evidence if it existed might tend to dispel any fears that he is still likely to commit any offences, or might tend to justify any risk he poses. In MH, the applicant was supported by evidence from the manager of a centre where he had worked for seven and a half years with young people. In her decision, Her Honour Judge Harbison referred to the manager’s evidence that the applicant MH had actually handled violent incidents in an impeccable way. There was no such positive evidence in the present case.
[18][2008] VCAT 1514 (22 July 2008) (‘MH’).
The plaintiff submitted that, as s 13(2) does not require the VCAT to take into account whether an applicant had engaged in activities that were a positive influence on young people, the VCAT had taken into account an irrelevant consideration.
The Secretary submitted that, read in context, the VCAT’s statement that there was no evidence that the plaintiff had a ‘positive influence on any young people’ was an accurate observation based on a comparison of the evidence in the present case and the evidence in MH.
If the VCAT intended to convey that the absence of evidence that the plaintiff engaged in activities that were a positive influence on children was relevant to the question of whether the VCAT was satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, then it would have fallen into error. As a matter of logic, the presence or absence of such evidence cannot affect the question of whether those activities pose an unjustifiable risk to the safety of children for the purposes of s 13(2). The presence or absence of such evidence may, however, be relevant to public interest considerations under cl 102 of sch 1 to the VCAT Act.
In my opinion, the VCAT’s statement that the existence of evidence that the plaintiff was a positive influence on any young people ‘might tend to dispel any fears that [the plaintiff] is still likely to commit any offences, or might tend to justify any risk he poses’ demonstrates that the VCAT linked that type of evidence to the question of whether it could be satisfied that the giving of an assessment notice to the plaintiff would not pose an unjustifiable risk to the safety of children. In making that link, the VCAT fell into error.
I note, in passing, that the VCAT inappropriately used the expression ‘young people’, which is not found in the WWC Act, for the defined expression ‘child’.
Conclusion in relation to question 1
For the reasons stated at [50] to [52] and [62] above, I am satisfied that the VCAT made errors of law in construing s 13(2) of the WWC Act.
Question 2 – misconstruction of s 13(2)(g) of the WWC Act
Section 13(2)(g) of the WWC Act required the VCAT to have regard to the plaintiff’s ‘behaviour since he … committed … the offence’. In its reasons, the VCAT stated that the plaintiff had presented little evidence about his behaviour ‘towards children’.[19]
[19]Reasons, [29].
The plaintiff submitted that the VCAT’s reference to his behaviour ‘towards children’ demonstrated that it had misconstrued s 13(2)(g) by confining itself to the plaintiff’s behaviour towards children since he committed the offence, rather than considering the plaintiff’s behaviour generally since he committed the offence.
The Secretary submitted that the VCAT correctly considered all the evidence that the plaintiff adduced about his behaviour since the commission of the offence, including his behaviour towards children. I agree. Section 13(2)(g) required the VCAT to have regard to any relevant aspects of the plaintiff’s behaviour since the commission of the offence, including any relevant behaviour towards children. Self-evidently, the plaintiff’s behaviour towards children is a significant consideration.
Accordingly, no error has been demonstrated in relation to question of law 2.
Question 3 – misconstruction of s 13(2)(h) of the WWC Act
Section 13(2)(h) of the WWC Act required the VCAT to have regard to ‘the likelihood of future threat to a child caused by the applicant’. In its reasons, the VCAT stated that there was no ‘positive evidence to dispel the possibility, given [the plaintiff’s] past offence, that he may be a threat to children.’[20]
[20]Reasons, [45]. See above [39].
The plaintiff submitted that the VCAT’s use of the expression ‘possibility’, rather than the expression ‘probability’, demonstrates that it misconstrued s 13(2)(h). The plaintiff relied on RJE v Secretary, Department of Justice[21] in which it was held that the expression ‘likely to commit a relevant offence’ in s 11(1) of the Serious Sex Offenders Monitoring Act 2005 meant ‘more likely than not to commit a relevant offence’.[22]
[21](2008) 21 VR 526 (‘RJE’).
[22]RJE (2008) 21 VR 526, 533 [21].
The Secretary submitted that RJE was distinguishable because it dealt with an entirely different statutory scheme. The expression ‘the likelihood of future threat’, according to the Secretary, meant no more than ‘the chance of future threat’.
I agree with the Secretary’s submissions. If the plaintiff’s interpretation of the expression ‘likelihood’ were to be accepted, it would mean that a significant chance of a threat to a child that fell below a 50 per cent probability threshold could not be taken into account under s 13(2)(h). That cannot be correct. A chance of a future threat, irrespective of its magnitude, is a relevant consideration under s 13(2)(h). Clearly, where the chance is minimal, the consideration may favour the applicant. The greater the chance, the less favourable is the consideration from the applicant’s perspective.
Accordingly, no error has been demonstrated in relation to question of law 3.
Question 4 – whether engagement in child-related work is a precondition
Under cover of question of law 4, the plaintiff submitted that the VCAT erred in treating the engagement in ‘child-related work’ as a precondition to the giving of an assessment notice under s 13(2) of the WWC Act and in concluding that the plaintiff’s proposed activities with children did not satisfy the definition of ‘child‑related work’ in s 9 of the WWC Act.
As I have stated at [20] above, it is not a precondition to the giving of an assessment notice under s 13(2) that an applicant demonstrate that he or she proposes to engage in specific child-related work within a defined timeframe after receiving an assessment notice. Had the VCAT construed s 13(2) as imposing such a precondition, it would have fallen into error.
However, the VCAT did not impose such a precondition. It considered the issue of whether the plaintiff’s proposed activities constituted child-related work in the context of public interest considerations. The VCAT erroneously stated that it was not mandatory for it to consider the public interest in relation to category 2 applications. It considered the public interest under s 13(2)(j) of the WWC Act, rather than under cl 102 of sch 1 to the VCAT Act, because it was not aware of cl 102. I will discuss the public interest under question of law 6, below.
In relation to whether the VCAT fell into error in concluding that the plaintiff’s proposed activities did not satisfy the definition of ‘child-related work’, the plaintiff relied on s 9(3)(o) of the WWC Act, which refers to ‘overnight camps for children’. In my opinion, no such error has been demonstrated. The conduct of weekend seaside camps for HIV positive individuals who may attend with their children does not constitute ‘overnight camps for children’.
Question 5 – relevant and irrelevant considerations under s 13(2) of the WWC Act
Under cover of question of law 5, the plaintiff submitted that the VCAT took into account some irrelevant considerations and failed to take into account some relevant considerations. I will consider these in turn.
Taking into account irrelevant considerations
I have already dealt with two of the three alleged irrelevant considerations under other questions of law. The third alleged irrelevant consideration was the plaintiff’s attitude to his offence. The plaintiff relied on statements at paras 36 to 39 of the VCAT’s reasons to the effect that the plaintiff had a tendency to ‘minimise’ some details of his offence and to gloss over the seriousness of the offence, and that he may not have faced the worst aspects of the offence.
Under s 13(2)(j) of the WWC Act, the VCAT is required to have regard to ‘any other matter that [the VCAT] considers relevant’. In my opinion, the questions of whether the plaintiff has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under s 13(2)(j). As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.
Accordingly, the VCAT did not err in taking into account evidence about the plaintiff’s insight into his offence.
Failing to take into account relevant considerations
The plaintiff submitted that the VCAT failed to take into account numerous relevant considerations or to give sufficient weight to those considerations. Most of these considerations have already been discussed in the context of the other questions of law. Save for one exception, I agree with the submission of the Secretary that the plaintiff’s real complaint is not that the VCAT failed to take into account the considerations upon which he has relied, but that the VCAT has not given them sufficient weight. Error of law is not demonstrated by the mere fact that the VCAT gave to a matter more or less weight than the plaintiff would have liked the VCAT to give to that matter.
The exception relates to the ages of the plaintiff and SH at the time the offence was committed. Section 13(2)(e) of the WWC Act required the VCAT to have regard to the ages of the plaintiff and SH at the time of the offence. In its reasons, the VCAT stated:
The applicant and the victim were both adults at the time the offences were committed, so their ages relative to each other are not relevant to my decision. It is of some relevance however that the applicant was not a youth when he committed the offence. He was 28 years old.[23]
[23]Reasons, [19].
In my opinion, the VCAT would have erred in law if it had treated the age of SH as irrelevant. As the Act is concerned with unjustifiable risks to the safety of children rather than members of the community generally, the fact that SH was an adult rather than a child was a relevant consideration and the VCAT would not have been justified in ignoring it. It is clear from the VCAT’s earlier statement that ‘the offence was not related to children in any way’,[24] however, that the VCAT did not ignore the fact that SH was an adult rather than a child.
[24]Reasons, [14].
It follows that the VCAT did not err in relation to question of law 5.
Question 6 – misconstruction of public interest considerations
Under cover of question of law 6, the plaintiff submitted that the VCAT misdirected itself in relation to the scope of the public interest considerations by restricting itself to the question of whether the plaintiff’s proposed activities constituted child-related work and by failing to take into account the importance of an assessment notice to the plaintiff’s rehabilitation.
The VCAT said the following in relation to the public interest:
40.Pursuant to section 13(2)(j), I am also to consider any other matters I find relevant. I am not required, as I would be in considering an application under section 26(1) of the Act, to consider the public interest in the granting of an assessment notice. However, it is in my view still relevant for me to consider whether it is in the public interest to give the applicant an assessment notice. I agree with the submission made for the applicant that there is an advantage to the community (and hence a public interest) in people participating as volunteers in community activities. The applicant works as a volunteer at an organisation which supports people who are HIV positive and that is valuable work. However, there was very little evidence about the applicant’s work there. It was not possible for me to conclude that the applicant’s position at that organisation involves him in engaging in child-related work.
41.‘Child-related work’ is defined relevantly in section 9(1)(c) as ‘work engaged in as a volunteer … that usually involves, or is likely usually to involve, regular direct contact with a child in connection with a service, body, place or activity specified in subsection (3) in circumstances where that contact is not directly supervised by another person’. It was not at all obvious to me that the organisation with which the applicant is involved falls within any of the descriptions in sub-section (3). The most applicable paragraph of that sub-section appeared to be paragraph (h):
clubs, associations or movements (including of a cultural, recreational or sporting nature) that provide services or conduct activities for, or directed at, children or whose membership is mainly comprised of children
42.Even that paragraph may not apply to the organisation with which the applicant is involved as it is not clear to me that it provides services or conducts activities for children. However, I will assume it does fall within that definition. Then, under section 9(3), the work engaged in by the applicant is only child-related work if it is work ‘that usually involves or is likely usually to involve regular direct contact with children’. The only evidence about this was the applicant’s statement, which I do not doubt, that the organization asked him to obtain an assessment notice because it has some association with children. That does not amount to regular direct contact with children, so that it appears on the evidence before me that the applicant is not required by the Act to hold an assessment notice in order to carry out his current activities. That in my view weakens to the point of irrelevance any argument that there is a public interest in his having an assessment notice in order to continue his volunteer work.
43.The applicant also stated that since he has completed his degree with a thesis on community development he wishes to work in the area of community development and might require an assessment notice for that work. Again, unless he is working directly with children unsupervised, as described in section 9 of the Act, he is not required to have an assessment notice.
It is clear from the above statements that the VCAT was unaware of cl 102 of sch 1 to the VCAT Act and that the VCAT purported to take into account public interest considerations under s 13(2)(j) of the WWC Act. It is also clear that the only public interest consideration that the VCAT took into account was whether the plaintiff’s work with children satisfied the definition of ‘child-related work’ in s 9 of the WWC Act so that, in order to continue to perform that work, he required an assessment notice. In effect, the VCAT concluded that the plaintiff did not require an assessment notice and therefore there was no public interest in giving him one.[25]
[25]Although the VCAT stated that there is a public interest in people participating as volunteers in community activities, it also said that the absence of regular direct contact with children in the plaintiff’s volunteer work ‘weakens to the point of irrelevance any argument that there is a public interest in his having an assessment notice in order to continue his volunteer work.’
In my opinion, the public interest considerations that are potentially relevant to cl 102 of sch 1 to the VCAT Act are not confined to the question of whether the applicant’s current or proposed activities constitute child-related work. As the WWC Act contemplates that an assessment notice may be given to an applicant notwithstanding that the applicant does not plan to engage in specific child-related work within a defined timeframe after receiving an assessment notice, it would be erroneous to construe cl 102 of sch 1 to the VCAT Act as mandating, as a matter of public interest, the rejection of a category 2 application where the applicant does not have any such plans.
However, cl 102 of sch 1 to the VCAT Act does contemplate that, notwithstanding that a category 2 applicant may satisfy s 13(2) of the WWC Act, public interest considerations may justify the rejection of his or her application. For example, evidence that an applicant was dishonest, or suffering from a serious mental illness, or had problems with drugs or alcohol could be taken into account adversely to the applicant under cl 102. Conversely, evidence that the applicant had skills that could benefit children or that he or she was a positive role model for children could be taken into account in favour of the applicant under cl 102.
Where the VCAT determines that a category 2 applicant does not satisfy s 13(2) of the WWC Act, it is difficult to envisage how the VCAT could find, pursuant to cl 102 of sch 1 to the VCAT Act, that it is in the public interest to give an assessment notice.
In the present case, the VCAT may have adopted an overly narrow view of the scope of the public interest because it considered the public interest only within the framework of s 13(2)(j) of the WWC Act, and not directly under cl 102 of sch 1 to the VCAT Act. In any event, in adopting that narrow view, the VCAT failed to consider properly whether, in all the circumstances, it was in the public interest to give to the plaintiff an assessment notice. This failure constituted an error of law.
There is no doubt that an offender’s rehabilitation is a relevant consideration – in the sense that it must be taken into account[26] – under s 5(1)(c) of the Sentencing Act 1991 when he or she is sentenced. In the present case, the plaintiff was sentenced over 20 years ago and completed his sentence over 15 years ago. In these circumstances, the plaintiff’s rehabilitation was not a consideration that the VCAT was bound to take into account under s 13(2) of the WWC Act or cl 102 of sch 1 to the VCAT Act. Accordingly, the VCAT’s failure to do so did not constitute an error of law.
[26]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42.
Conclusion
For the reasons set out above, the VCAT misconstrued s 13(2) of the WWC Act and failed properly to take into account the public interest as required by cl 102 of sch 1 to the VCAT Act.
It was common ground before me that, if I were to find that the VCAT had erred in law, it would not be futile to remit the proceeding to the VCAT.
Proposed order
The appeal will be allowed. The VCAT’s order dated 10 September 2010 will be set aside and the proceeding will be remitted to the VCAT to be heard and decided again. I will hear from the parties on the precise form of the order, including whether the VCAT should be constituted by a different member and on the question of costs.
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