Or142023 v Commissioner for Fair Trading (Occupational Discipline)

[2024] ACAT 5

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OR142023 v COMMISSIONER FOR FAIR TRADING (Occupational Discipline) [2024] ACAT 5

OR 14/2023

Catchwords:             OCCUPATIONAL DISCIPLINE – statutory interpretation – applicant pleaded guilty to an offence that meant section 42A applied – the applicant can be registered for working with vulnerable people but condition was disputed – whether the phrase ‘regulated activity involving children’ in section 42A includes emergency services and firefighting – the phrase does encompass emergency services and firefighting work and activities where these involve contact with children that is more than incidental.

Legislation cited: Working with Vulnerable People (Background Checking) Act 2011 ss 6A, 7, 9, 10, 42A, Sch 1

Working with Vulnerable People (Background Checking) Amendment Act 2020

Legislation Act 2001 ss 139, 140, 141, 142

Emergencies Act2004

Subordinate

Legislation cited:     Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2021 (No 1) s 148

National Standards for Working with Children Checks

Cases cited:Singh v Commissioner for Fair Trading [2021] ACTSC 324

List of Text /Papers: ACT Government Community Services Directorate, Legislative Review of the WWVP (Background Checking) Act 2011 (Report, 2017)

Revised Explanatory Statement, Working with Vulnerable People (Background Checking) Amendment Bill 2020

Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report (Report, 2015)

Tribunal:Senior Member L Beacroft

Date of Orders:  18 December 2023

Date of Reasons for Decision:   19 January 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 14/2023

BETWEEN:

OR142023

Applicant

AND:

COMMISSIONER FOR FAIR TRADING

Respondent

TRIBUNAL:Senior Member L Beacroft

DATE:18 December 2023

ORDER

The Tribunal orders:

1.The decision of the Respondent made on 20 June 2023 to issue the Applicant a Working with Vulnerable People registration with a condition “May only engage in regulated activities or services with disadvantaged adults” is varied in that the condition is replaced with a condition as follows:

“The Applicant/Registrant is issued a Working With Vulnerable People registration under the Working With Vulnerable People (Background Checking) Act 2011 subject to a condition that they must not engage in regulated activities involving children and that they may engage in regulated activities or services with disadvantaged adults.

Note: This condition does not exclude the Applicant/Registrant from engaging in regulated activities or services under Schedule 1, Part 1.2 or Part 1.3, of the Working With Vulnerable People (Background Checking) Act 2011 which includes firefighting, so long as the activities or services do not involve more than incidental contact with children.”

The Tribunal notes:

Orders in this matter dated 24 August 2023, 30 August 2023 and 7 September 2023 remain relevant and that these Orders include:

(a)the applicant is to be referred to as ‘Applicant 142023’,

(b)there is not to be publication of the applicant's name, the applicant's wife's name, or the names of the applicant's children,

(c)there is no public access to the file and the audio and written records of the proceedings pursuant to the ACT Civil and Administrative Tribunal Act 2008 and the Children and Young People Act 2008 except by Order of the Tribunal, and

(d)the Tribunal documents filed and served by the respondent will be securely destroyed by the Applicant, their solicitor and counsel or otherwise returned to the ACT Government Solicitor at the conclusion of the proceedings and expiration of the relevant time for any appeal.

………………Signed…………..

Senior Member L Beacroft

REASONS FOR DECISION

Background:

1.The matter is a review of a decision (the reviewable decision) made on 20 June 2023 by the Commissioner for Fair Trading (the respondent) under section 46(1) of the Working with Vulnerable People (Background Checking) Act2011 (the WWVP Act). The decision was to issue the applicant with a Working with Vulnerable People registration with a condition as follows (the WWVP registration): “May only engage in regulated activities or services with disadvantaged adults” (the condition).[1] The applicant is employed as a firefighter by ACT Fire and Rescue (the employer) which is a type of emergency service. It is a decision reviewable under section 63 and Schedule 2 of the WWVP Act. The applicant applied to the ACT Civil and Administrative Tribunal (the tribunal) on 25/7/2023 for review of the reviewable decision. Under section 68 of the ACT Civil and Administrative Tribunal Act2008 (the ACAT Act) the tribunal “stands in the shoes” of the decision-maker.

Agreed Facts and Timeline

[1] Tribunal documents, pages 16-17

2.The agreed facts and timeline are as follows:

(a)In 2017, the applicant pleaded guilty to a charge of Actual Occasioning Actual Bodily Harm where a relative then aged 17 years was the victim (the offence). A conviction was not recorded, and the applicant received a Good Behaviour Order for 1 year that they successfully completed.[2] Related to this incident, there was a substantiated appraisal of physical abuse of a child in 2017 and the applicant then completed a parenting course[3];

[2] Tribunal documents, pages 169-175

[3] Tribunal documents, pages 100-140

(b)The applicant has had no further findings of guilt or convictions in criminal matters or substantiated child abuse appraisals;

(c)In 2019, the applicant applied to become a firefighter and in 2020 they were accepted and undertook training. They are currently employed as a firefighter, although on the date of the hearing they were on unpaid leave due to issues that arose from the reviewable decision;

(d)On 5 December 2019, the applicant was issued the WWVP registration with the condition[4];

[4] Tribunal documents, pages 100-101

(e)The Working with Vulnerable People(Background Checking) Amendment Act 2020 (the amending Act) was passed in response to various matters. This included recommendations of the ACT Government’s Legislative Review of the WWVP Act Report[5] (the Legislative Review Report) which in turn responded to a range of issues including recommendations of the Australian Government’s Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) in its Working with Children Checks Report (the Royal Commission Report)[6];

[5] ACT Government Community Services Directorate, Legislative Review of the WWVP (Background Checking) Act 2011 (Report, 2017)

[6] Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report (Report, 2015)

(f)In a letter dated 28 January 2021, the applicant was notified by the respondent that their then WWVP registration would be subject to reassessment. This was followed by a letter dated 16 March 2023 which notified them that it was cancelled;

(g)On 27 April 2023, after some email communications with the respondent, the applicant applied for a new WWVP registration and ticked the option contact with “vulnerable adults” and did not tick the option for contact with children;[7]

(h)Following the respondent’s assessment of the applicant’s application, in a letter dated 20 June 2023 the respondent issued the applicant with the WWVP registration, with the condition set out above that is the subject of this review.[8] The issuing letter stated that the applicant had applied for a “registration restricted to engage with disadvantaged adults only” and that they were “ineligible to hold or apply for a WWVP registration allowing [the applicant] to engage in regulated activities involving children or NDIS activities…due to the identification of a Class A disqualifying offence in previous National Police History Check”[9]

(i)At the date of the hearing, the applicant was on unpaid leave. Following a series of communications with the applicant’s employer, on 12 September 2023, the applicant was notified by their employer that “you are no longer an eligible person for your employment”.[10]

Proceedings

[7] Tribunal documents, page 53

[8] Tribunal documents, pages 16-17

[9] Tribunal documents, page 16

[10] Applicant’s witness statement dated 28 September 2023 at [68]

3.The applicant lodged their application for review of the reviewable decision on 25 July 2023, which was some days out of time. The applicant stated that this was because they did not at first understand the position their employer would take and the potential adverse impact on their employment of the reviewable decision.[11] In an Order dated 30 August 23, the Tribunal extended the time for the applicant to lodge their Application  given the circumstances.

[11] Applicant’s application dated 25 July 2023

4.Tribunal Orders dated 24 August 2023, 30 August 2023 and 7 September 2023 remain relevant and are referenced in the Note to the final Order, and include that:

(a)the applicant is to be referred to as ‘Applicant 142023’,

(b)there is not to be publication of the applicant's name, the applicant's wife's name, or the names of the applicant's children,

(c)there is no public access to the file and the audio and written records of the proceedings pursuant to the ACT Civil and Administrative Tribunal Act 2008 and the Children and Young People Act 2008 except by Order of the Tribunal, and

(d)the Tribunal documents filed and served by the respondent will be securely destroyed by the Applicant, their solicitor and counsel or otherwise returned to the ACT Government Solicitor at the conclusion of the proceedings and expiration of the relevant time for any appeal.

5.A hearing was conducted on 29 November 2023. At the hearing, the parties submitted as Exhibit 1 an agreed wording for a clarification of any condition to the applicant’s registration should it be relevant to the Tribunal’s decision as follows:

This condition does not exclude the registrant from engaging in regulated activities or services under Schedule 1, Part 1.2 or Part 1.3 of the WWVP Act, which includes firefighting, so long as the activity does not involve more than incidental contact with children.

6.The above agreed wording of a clarification, to any varied condition of the applicant’s registration, is substantively reflected in the final Order.

7.Given the reviewable decision raised pressing issues about the applicant’s capacity to work in their current employment, the Tribunal endeavoured to be very prompt and delivered its decision and final Order orally on 18 December 2023. For public interest reasons, the Tribunal is publishing written reasons here.

Law

8.The key provision in this case is section 42A of the WWVP Act as follows:

42A   Conditional registration—class A disqualifying offence

A registration of a person who has an adult conviction or finding of guilt for a class A disqualifying offence is automatically subject to the condition that the person must not engage in—

(a)     a regulated activity involving children; or

(b)     an NDIS activity.

9.It is not disputed that the offence in this case is a class A disqualifying offence for the purposes of section 42A. Conditions imposed pursuant to and consistent with section 42A of the WWVP Act are automatically and mandatorily imposed and not able to be varied. The key issue in this case is the meaning of the phrase ‘regulated activity involving children’ (the phrase) in section 42A. The phrase is not defined in the WWVP Act.

10.Also relevant to this matter is Schedule 1 of the WWVP Act which has three parts with different headings and content as summarised below:

Schedule 1: Regulated activities
Part 1.1, Activities or services for children [which includes activities and services such as] “Childcare service”;
Part 1.2, Activities or services for vulnerable people [which includes activities and services such as] “1.12: Justice facilities”, “1.17: Disability services”, “1.19: Emergency services personnel”;

Part 1.3, Other activities or services for vulnerable people [which includes activities and services such as] “1.20: Transport”, “1.23: Religious organisations.”

11.Determining the meaning of the phrase, given it is not defined, required the application of statutory interpretation principles, including those set out in the Legislation Act 2001, particularly Part 14.2 and including the following:

139   Interpretation best achieving Act’s purpose

(1)     In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

140   Legislative context
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.

141   Non-legislative context generally

(1)     In working out the meaning of an Act, material not forming part of the Act may be considered.

142   Non-legislative context—material that may be considered

(1)     In working out the meaning of an Act, material mentioned in table 142, column 2 may be considered.

…

(3)     This section does not limit the material that may be considered in working out the meaning of an Act or statutory instrument.

12.It was not disputed that the above provisions allow the Tribunal to consider in this case the Royal Commission Report and the Legislative Review Report, indeed that it was important for the Tribunal to do so.[12]

[12] Submissions of the applicant dated 28 September 2023 at [48]

13.Relevant to the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2021 (No 1)  is section 148 of the Legislation Act 2001:

148   Terms used in instruments have same meanings as in authorising laws

Terms used in a statutory instrument have the same meanings as they have, from time to time, in the Act or statutory instrument (the authorising law), or the relevant provisions of the authorising law, under which the instrument is made or in force.

14.The parties referred the Tribunal to many cases which the Tribunal has considered. A key case is Singh v Commissioner for Fair Trading [2021] ACTSC 324 (Singh) which is about the application of section 42A. The applicant contended that it can be distinguished from this case, and the Tribunal agrees. In Singh, the ACT Supreme Court found that “the effect of the law is to deny [the applicant in that case] a public taxi driver licence and thereby render any conditional WWVP registration of no practical effect” and for this reason, the applicant’s appeal was dismissed.[13] The circumstances of Singh were such that the meaning of the phrase in section 42A that is at issue in this case was not fully canvassed or considered. Also, in contrast to Singh, in this case, the applicant has provided evidence that their employment may be able to continue if they have a WWVP registration and condition consistent with section 42A. Therefore, unlike Singh, in this case, there is a practical benefit in the Tribunal considering whether the reviewable decision should be varied.

Applicants’ Contentions:

[13] Singh at [32]

15.The applicant sought to have the Tribunal vary the condition of the WWVP registration.[14] The applicant claimed that the respondent “erred by issuing the applicant with the WWVP registration with the condition ‘[m]ay only engage in regulated activities or services with disadvantaged adults’ and contended that the respondent “should have issued the applicant with a conditional WWVP registration with the condition ‘[m]ay only engage in regulated activities or services as a firefighter’”.[15] In the alternative and if the latter is not accepted by the Tribunal, the applicant sought a registration “subject to the condition that [they] work in specifically stated conditions under s42 …, or in specifically stated roles under s42B … subject to consultation with [their] employer”.[16] Regarding the latter alternative arguments, the applicant agreed to the wording of a clarification that could be included with any condition, as set out in Exhibit 1 and above. During the hearing, the applicant agreed that Orders under section 42B required the employer to do certain tasks for e.g., “to provide a health and safety management plan”[17] which the employer has not done, so the applicant did not press for these Orders[18].

[14] Applicant’s application dated 25 July 2023

[15] Applicant’s application dated 25 July 2023 at [14]

[16] Submissions of the applicant 28 September 2023 at [68]

[17] Transcript of proceedings dated 29 November 2023, page 13

[18] Transcript of proceedings dated 29 November 2023, page 19

16.Considering the applicant’s main contention, this was initially set out succinctly in a letter to the respondent from a representative of the applicant as follows:

We observe that the WWVP distinguishes being engaging in a “regulated activity” and engaging in a “regulating activity involving children”. In particular, an activity or service that is provided by an emergency service … is a “regulated activity” by operation of cl 8(a)(i) of the WWVP Act and [Schedule 1.19].

This can be distinguished from, for example, an activity that is conducted or service provided under the Children and Young People Act 2008 (ACT) for a child or young person, which is an “activity or service for children” by operation of [Schedule 1.1] … and therefore a “regulated activity involving children”.[19]

[19] Tribunal documents, pages 44-47 at [19]-[20]

17.During the proceedings, the applicant re-iterated the contention that the phrase “should be construed as referring only to ‘child-related work’ ” and does not include emergency services type work:

‘[R]egulated activity involving children’ should be construed as referring only to ‘child-related work’… As emergency services personnel (as defined in Schedule 1), and specifically firefighting , is not a regulated activity that is ‘child-related work’, the Applicant is eligible to work as a firefighter.[20]

[20] Submissions of the applicant dated 28 September 2023 at [19]-[21]

18.The applicant contended that their construction of the phrase “is to be preferred having regard to the plain text of ss42A and 17(1) of the WWVP Act, the Act as a whole and the legislative context, the legislative history to the Act, and proper principles of construction.”[21] The applicant relied on their analysis of various Explanatory Statements including that of the amending Act (the ES), other provisions of the WWVP Act, the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2021 (No 1) (the Guidelines), the Legislative Review Report, the Royal Commission Report, and the Legislation Act 2001.

[21] Submissions of the applicant dated 28 September 2023 at [20]; [22]-[58]

19.The applicant disputed that the phrase refers to “any regulated activity to the extent it may involve children”, which the applicant aptly referred to as the “broader construction” of the phrase.[22]

[22] Submissions of the applicant dated 28 September 2023 at [37]

20.The applicant claimed that it is unnecessary to use the phrase when children are “already encompassed under the definition of engaging in a regulated activity [under sections 7, 9 and 10]” – section 42 could have simply relied on or referenced these provisions but it did not.[23] The applicant contended that if the phrase is to do any work, then it must be that it was intended to refer only to ‘child-related work’ as set out under Schedule 1.1. The applicant pointed out that Schedule 1.1 sets out the ‘regulated activities for children’, and this category of regulated work is clearly delineated from other regulated activities, for e.g., emergency services which are set out in Schedule 1.2 and are not ‘regulated services for children’.[24] The preferable construction of the phrase is that it is a “specific reference to ‘child-related work’ rather than a new element for the …Tribunal to consider”.[25]

[23] Submissions of the applicant dated 28 September 2023 at [35]-[39]

[24] Submissions of the applicant dated 28 September 2023 at [27]

[25] Transcript of proceedings dated 29 November 2023, page 17

21.The applicant contended that the broader construction “leads to an outcome that is unreasonable and excessively onerous” in that “no emergency personnel (including those previously registered to work under the WWVP regime) are eligible to work if they have contact with children, regardless of whether their work is child-related work”.[26]

[26] Submissions of the applicant dated 28 September 2023 at [42]

22.Relevant to the above contentions, the applicant contended that as a firefighter the applicant “does not have contact (as defined in ss 9 and 10 of the WWVP Act) with vulnerable persons as part of engaging in this activity [and the] application of ss17(2) and s42A do not render [them] ineligible”.[27] Any contact with children is “incidental”, “occasional”, and “takes place during the course of the Applicant performing duties that are not child-related”.[28]

Respondent’s Contentions:

[27] Submissions of the applicant dated 28 September 2023 at [67]

[28] Submissions of the applicant dated 28 September 2023 at [66]

23.The respondent relied on the broader construction. In a letter to a representative of the applicant dated 26 May 2023, a delegate of the respondent contended:

I acknowledge that Part 1.1 of the Schedule is headed ‘[a]ctivities or services for children’. I do not agree that the [latter] reference in Schedule 1 … means that the regulated activities in Part 1.2 relating to ‘vulnerable people’ do not involve children. Such an interpretation would directly contradict the definition of ‘vulnerable people’ as set out in section 7(a) of the WWVP Act [which states that a ‘vulnerable person’ includes a ‘child’]. Therefore, given that emergency services fall within the category of ‘[a]ctivities or services for vulnerable people’, absent of any other condition on the registration, a registration to engage in emergency services is a registration to engage in a regulated activity involving children ....[29]

[29] Tribunal documents, pages 31-32

24.At the hearing the respondent re-iterated this view in some detail as follows:

[W]e disagree that regulated activity involving children is ‘child-related’… [P]art 1.1 [says] it’s a regulated activity ‘for’ children, and then the wording of [section 42A] says ‘involves’ children and I think the deliberate difference in the word ‘for’ and ‘involves’ involves being a bit more broad … [and] cannot be ignored … You just cannot read out ‘children’ for Part 1.2…[Due to s42A] the applicant definitely cannot work in regulated activities under part 1.1, but [they] may engage in regulated activities under part 1.2 and 1.3 because [they] are for vulnerable people and even though ‘vulnerable people’ includes children, there are ways of customising certain roles such that you don’t enliven the contact with children provisions … Asking the tribunal to endorse ‘firefighting’ is not something … within the powers or knowledge of what the tribunal … can do because we ae not experts in that role. We have no way of seeing what that role could morph into in the future … It’s not as straightforward as saying ‘Oh, because firefighting doesn’t fall under part 1.1, therefore there is no instance where contact with children will be more than incidental’. If we say that, it would likely have the inevitable result of [those responsible] … not turning their minds to whether a particular activity in their employment may violate the condition or not … We want the employer and the WWVP holder to constantly turn their minds to whether certain things, activities, may involve more than incidental contact with children.[30]

[30] Transcript of proceedings dated 29 November 2023, pages 21-22

25.The respondent acknowledged that there was evidence that there were roles in firefighting work that do not involve more than incidental contact with children. But the respondent emphasized that there are other roles that do, for example delivering ACT Fire & Rescue approved fire education programs to schoolchildren as part of the school’s fire awareness curriculum, which the applicant referred to in an email to the respondent dated 30 March 2023.[31]

[31] Transcript of proceedings dated 29 November 2023, page 31 referring to the Tribunal documents at page 83

26.During the proceedings, the respondent contended that varying the condition would serve little practical effect:

[I]t is inconsequential to the Tribunal’s consideration of the matter whether firefighting is a ‘regulated activity involving children’. Regardless of the outcome of such a determination, there is no material change to the fact that the Applicant must be subject to at least one condition on his WWVP registration pursuant to section 42A of the WWVP Ac t... The Applicant is free to engage in any regulated activity, including as a firefighter, provided the specific role/s he is engaged in does not involve ‘contact’ with children pursuant to section 10 of the WWVP Act.[32]

Findings:

[32] Submissions of the respondent dated 19 October 2023 at [33]-[34]

27.In summary, the applicant’s main contention was that emergency services including firefighting is not a category of work intended to be encompassed by the reference in section 42A to the phrase ‘regulated activity involving children’. Rather, the applicant contended that what is intended to be captured by this phrase is ‘child-related work’ as set out in Schedule 1.1 being the list of “child-related vocations”, except that “where contact is more than incidental, then you engage in a regulated activity, and plainly the mandatory disqualification provisions in s42A comes into effect.”[33] By way of example, the applicant contended as follows:

[I]n the firefighter’s context, if they were to engage a child liaison officer, even though we say emergency services is not child-related work, plainly a role that specific and where the involvement with children is that inherent and more than incidental would be caught, would be child-related work. You could not have a condition that said [the applicant] is subject to the mandatory section 42A disqualification but can also work as a child liaison officer, self-evidently, but nothing in section 42A prohibits a condition that [the applicant] works as a firefighter.[34]

[33] Transcript of proceedings dated 29 November 2023, page 33

[34] Transcript of proceedings dated 29 November 2023, page 18

28.The applicant agreed that they must be subject to a section 42A registration, but that any condition should be worded to reflect that they can work as a firefighter and the current wording of the condition does not. This was the main issue for determination by the Tribunal. It is an issue of public interest because it can impact a person’s employment.

29.The Tribunal does not agree with the applicant that the phrase refers to only engaging in ‘child-related work’ as set out in Schedule 1.1. The Tribunal finds that the phrase does encompass engaging in regulated activities including emergency services set out in Schedule 1.2 depending on the manner of contact with children. If the applicant’s narrow construction of the phrase was the intention of the provision, section 42A could have simply explicitly referred to Schedule 1.1, and/or explicitly excluded Schedule 1.2, but it does not. The applicant pointed out that section 42A does not explicitly refer to sections 7, 9 or 10. But in the Tribunal’s view, this does not lead to the conclusion that the phrase refers to ‘chid-related services’ as set out in Schedule 1.1 - the operation of the Act as a whole, especially sections 7, 9 and 10, apply to support the broader construction of the phrase. For example., the words ‘engaged in’ in section 42A require the application of section 9 and section 10. The word in the phrase ‘involving’ children is not defined, so the ordinary definition is relevant –it is commonly understood to mean ‘include as a necessary part’. This ordinary meaning is consistent with the approach in sections 9 and 10, which is that a person is only ‘engaged’ with a child in a ‘regulated activity’ where the ‘contact’ “would reasonably be expected as a normal part of engaging in the activity and is more that incidental to engaging in the activity.” The Tribunal also agrees with the respondent that if it were to accept that Schedule 1.2 does not encompass ‘child-related services’, this contradicts the definition of ‘vulnerable people’ which includes a child, as set out in section 7(a) of the WWVP Act.

30.Considering the Guidelines, the applicant contended that their narrow construction of the phrase is adopted in the Guidelines. In summary, they contended that the Guidelines “define” the phrase as “WWCC work”[35] and that the Guidelines “adopt” the phrase as a “reference to … work that is ‘child-related’”.[36] The Tribunal notes that the Guidelines cannot override the meaning of the phrase in the Act, which the Tribunal finds supports the broader construction as set out above. In any case, the Tribunal does not agree with the applicant and finds that the Guidelines support the broader construction. The Guideline’s Preamble supports the broader construction in that it states: “it is not possible for the Guidelines to create a risk assessment framework that takes into account every possible scenario. The Guidelines outline the minimum mandatory considerations … [R]equirements…differ”.[37] Further, the Guidelines do not “define” ‘regulated activity involving children’ as ‘WWCC’, rather the latter is an acronym used in parts of the Guidelines for this phrase and the phrase is not defined in the Guidelines. The part that sets out the impact of section 42A uses the acronym ‘WWCC’ in relevant headings and the body of that part uses the phrase ‘regulated activities involving children’ which is not inconsistent with the broader construction.[38] Other parts of the Guidelines specifically refer to ‘child-related work’ but this term in not used in the part about section 42A, again demonstrating that the Guidelines do not conflate these terms and that they support the broader construction.[39]

[35] Submissions of the applicant dated 28 September 2023 at [45]

[36] Submissions of the applicant dated 28 September 2023 at [47]

[37] Guidelines, pages 4-5

[38] Guidelines, page 16,17

[39] Guidelines, page 6

31.Considering the ES for the amending Act, the Tribunal finds that it supports the broader construction of the phrase. It stated that the amending Act gives effect to the National Standards and implements recommendations of the Royal Commission Report specifically that a person will be automatically excluded from participating in a regulated activity involving children if they have committed a class A disqualifying offence.[40] As set out later below, the Tribunal finds that the National Standards and the Royal Commission Report both support the broader construction. Section 42A is explained in the ES in a manner consistent with the broader construction as follows: “Section 42A establishes that a person who has a class A disqualifying offence is registered [sic], they must not engage in a regulated activity involving children”.[41] Relevant to the applicant’s contention that the broader construction delivers unintended consequences, the ES stated that the amending Act was a “significant bill” because of its impact on human rights. It acknowledged that one of the rights limited is the right to work:

[C]ertain individuals will be excluded from child-related work … as a direct result of their criminal history … will be treated differently … and may be limited in their choice of work but not unjustly deprived of work … To achieve the purpose and intent of the Bill … certain people will be considered an unacceptable risk of harm and must be excluded from working with children …[42]

[40] Tribunal documents, page 1920; Revised Explanatory Statement, Working with Vulnerable People (Background Checking) Amendment Bill 2020, page 2

[41] Tribunal documents, page 1937; Revised Explanatory Statement, Working with Vulnerable People (Background Checking) Amendment Bill 2020, page 19

[42] Tribunal documents, pages 1926-1927; Revised Explanatory Statement, Working with Vulnerable People (Background Checking) Amendment Bill 2020, pages 8-9

32.In the Tribunal’s view, the ES makes it clear that the WWVP Act as amended by the amending Act may adversely impact a person’s employment, as is the case here, and that this is not an unintended consequence.

33.The Tribunal agrees with the applicant that in this case, it is particularly relevant to consider the non-legislative history to inform the construction of the phrase and that it may be considered under the Legislation Act 2001[43]. The amending Act led to the reviewable decision with a different condition to that in the applicant’s previous WWVP. The amending Act was in part a response to the Legislative Review Report, which in turn responded in part to the recommendations of the Royal Commission Report. Considering the Royal Commission Report, the applicant contended that it recommended that ‘child-related’ work should be defined consistent with a list of work set out in that Report and this list did not include “emergency services”.[44]

[43] Submissions of the applicant dated 28 September 2023 at [48]

[44] Submissions of the applicant dated 28 September 2023 at [52], [55]

34.The Tribunal has reviewed the Royal Commission’s Report and does not agree with the applicant’s assessment of relevant recommendations of the Royal Commission Report. The Royal Commission Report stated it is important to overcome “long, complex and often ambiguous descriptions of work and roles that are designated as child-related”[45] and this is reflected in its recommendations about implementing nationally standards on this issue (Royal Commission Standards). The Royal Commission Standards included one that is a list of “categories of work or roles that are indicative of child-related work.”[46] However, the Royal Commission Report also recommended a nuanced approach to defining ‘child-related work’ when it cautioned that categorising work may be indicative of being child-related but it was not “a determining factor”[47]:

[T]he nature and amount of contact with children should be the key factor in determining who needs [a WWVP registration]. This is because the risk factor of sexual abuse in institutional contexts derives mainly from the manner in which adults interact with children and the opportunities their specific work or role affords to access children. We do acknowledge that certain work and roles provide greater opportunities for offending (for example, providing services to children with disabilities …) and can, therefore, see the value of listing certain categories of work and roles … [W]e are concerned that prescribing certain work and roles as child-related runs the risk of excluding work and roles that involve regular contact with children but which fall outside those prescribed by law.[48]

[45] Tribunal documents, page 1666; Royal Commission Report, page 71

[46] Tribunal documents, page 1603; Royal Commission Report, Standard 12

[47] Tribunal documents, page 1667; Royal Commission Report, page 72

[48] Tribunal documents, page 1667; Royal Commission Report, page 72

35.The Royal Commission Report and its Standards therefore recommended WWVP laws set out “categories of work or roles that are indicative of child-related work” and also “a general category for other work or roles that traditionally are not considered to be child-related but still involve the required amount of contact with children”, with clear nationally consistent definitions of key terms such as ‘contact’.[49] The nuance is that ‘child-related’ activities does not refer only to the category of work listed in Standard 12 of the Royal Commission Standards, but it also refers to other work, even roles/activities within a type of work, that might require a WWVP registration due to the manner in which an adult interacts with children. The Royal Commission Standard 12(a)(xiii) reflects this nuance: “other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles”.[50] The broader construction of section 42A reflects this nuance in that it encompasses any regulated work or activity or role, including emergency services, to the extent that it may involve children.

[49] Tribunal documents, page 1667; Royal Commission Report, page 72

[50] Tribunal documents, page 1603; Royal Commission Report, Standard 12

36.In the Tribunal’s view, this nuanced approach in the Royal Commission Report and its Standards is reflected in the Legislative Review Report, the ES, the amending Act and WWVP Act. This nuanced approach is consistent with a key provision in the WWVP Act, which is that “the best interests of vulnerable people” is the “paramount consideration” (see section 6A WWVP Act). It ensures that a person seeking a WWVP who is subject to section 42A, where risk levels are higher than general applicants, will have a condition imposed that is not based on an assessment against rigid categories of work. Under the WWVP Act as amended, to determine the practical effect of the phrase in a work context requires a careful application of all the provisions of the WWVP Act to determine what work, activities and/or roles are encompassed by section 42A, and which are not.

37.The Royal Commission Report stated that state and territory governments are best placed to define the categories of work or roles that require a WWVP registration.[51] In the ACT, what occurred is that the Legislative Review Report guided the ACT response and informed the amending Act. The applicant contended that the latter Report made clear that the amending Act was intended to adopt the recommendations of the Royal Commission Report including its Standards about what is ‘child-related work’ and that this is set out in Schedule 1.1. The applicant pointed out that it stated that the previous WWVP Act including Schedule 1 was partly aligned with the Royal Commission Report recommendations and its Standards about what is ‘child-related work’, and contended that for this reason, the amending Act did not incorporate Royal Commission Standard 12(a)(xiii) into the WWVP Act (i.e. “other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles”).[52]

[51] Tribunal documents, page 1669; Royal Commission Report, page 74

[52] Submissions of the applicant dated 28 September 2023 at [53]

38.The Tribunal does not agree with the applicant’s contentions on this issue. While the amending Act did not include some elements of the Royal Commission standards in Schedule 1.1 of the WWVP Act, these elements are included in other parts of Schedule 1. For example, the work type “religious organisations” that is part of the Royal Commissions standards for what is child-related (Standard 12(a) (ii)) is not in Schedule 1.1 of the WWVP Act, however, it is included in Schedule 1.3 and in this manner it is incorporated into the WWVP Act. The work type “Disability services for children” in the Royal Commission standards (Standard 12(a)viii) is not in Schedule 1.1 of the WWVP Act, however, it is included in Schedule 1.2 and in this manner it is incorporated into the WWVP Act. Finally, in the Tribunal’s view, while Standard 12(a)(xiii) of the Royal Commission’s standard for ‘child-related work’ is not verbatim included in Schedule 1 (i.e. other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles), it is incorporated into the WWVP Act by virtue of the operation of the whole Act and its Schedules. In this manner, the WWVP Act incorporates the Royal Commission standards about what is child-related work by incorporating them across the three parts of Schedule 1, supporting the broader construction of the phrase.

39.In 2019, all governments agreed to the National Standards which are based on the Royal Commission Report and its standards. The National Standards refine the Royal Commission’s approach including its standard about ‘child-related work’, for example and relevantly, Standard 12(a)(xiii) in the Royal Commission standards is replaced in the National Standards by: “other work specified by the legislative framework to be child-related work” (Standard 2(xiv), National Standards). The National Standards are referenced in the ES and are stated to be minimum standards that all governments will implement. Relevant to this case, emergency workers are not listed in the exempt category of workers requiring WWVP registration under the National Standards (Standard 6), whereas police are. Likewise, they are not listed as an exempt activity in the WWVP Act whereas police are (section 12(2)(i)). The WWVP Act complies with the National Standards about what is ‘child-related work’, but not by simply listing categories of work in Schedule 1.1. Some National Standards (e.g., National Standard 2(c)(iii)) are included in Schedule Part 1.1 e.g., “Childcare service” (see Schedule 1.3). But some (e.g., National Standard 2(c)(ix)) are included in Schedule Part 1.2 e.g., “Disability Services” (see Schedule 1.17), and some (e.g., National Standard 2(c)xiii) are in Schedule Part 1.3 e.g., ‘Transport” (see Schedule 1.20). The latter further supports the Tribunal’s finding that ‘work involving children’ is not only ‘child-related work’ as set out in Schedule 1.1, but refers to child-related work that may exist in a wide range of work including emergency services depending on the manner of interaction with children.

40.The applicant referenced and presented evidence in support of their contention that the applicant’s employment involves “no more than incidental contact with children”.[53] This evidence included reference to the Emergencies Act2004 that sets out the functions of Fire and Rescue, evidence from an office-bearer of the Firefighters Union of Australia (ACT Branch) and who has supervised the applicant in their employment, and the ACT Public Sector ACT Fire and Rescue Enterprise Agreement 2020-2024 (EA).[54]  Based on this evidence, the Tribunal agrees that there is a practical benefit in making the Orders as made in that there appears to be potential for the applicant to work as a firefighter in certain roles that do not breach the WWVP registration.

[53] Transcript of proceedings dated 29 November 2023, page 23

[54] Tribunal documents, pages 1286-1472

41.For the reasons above, the Tribunal declines to make the Orders sought by the applicant because the proposed condition/s are not consistent with section 42A and the Act as a whole and the circumstances of this case. However, the Tribunal finds that the condition should be varied, re-worded, in regards to the scope of work, roles and activities not allowed and allowed under the applicant’s WWVP registration in order to better reflect section 42A and the application of it and the Act as a whole. The WWVP registration condition is varied to read as follows:

“The Applicant/Registrant is issued a Working With Vulnerable People registration under the Working With Vulnerable People (Background Checking) Act 2011 subject to a condition that they must not engage in regulated activities involving children and that they may engage in regulated activities or services with disadvantaged adults.

Note: This condition does not exclude the Applicant/Registrant from engaging in regulated activities or services under Schedule 1, Part 1.2 or Part 1.3, of the Working With Vulnerable People (Background Checking) Act 2011 which includes firefighting, so long as the activities or services do not involve more than incidental contact with children.”

42.For the purpose of clarification, the Tribunal notes that if there is a declared state of emergency then no WWVP registration is required for emergency services personnel dealing with such an emergency.[55]

[55] WWVP Act s 12(2)(n)

………………………………..

Senior Member L Beacroft

Date of hearing:

29 November 2023

Counsel for the Applicant:

Mr J Tierney

Solicitor for the Applicant:

Ms T Davies, Davies Lawyers

Solicitor for the 

Respondent:

Ms S Ng, ACT Government

Solicitor