OUX v Victorian Civil and Administrative Tribunal

The appellant, OUX, sought a review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) that upheld a decision by the Secretary to refuse OUX an assessment notice under the Working with Children Act 2005. OUX, who had a conviction for sexual penetration of a child aged between 10 and 16 years, applied for an assessment notice, which was categorised as a ‘Category A application’ under the Act. The Secretary issued a ‘negative notice’ refusing OUX’s application, and VCAT subsequently upheld this decision. OUX sought judicial review on the basis that VCAT had conflated the ‘public interest test’ with the ‘unjustifiable risk test’ and had subsumed the ‘unjustifiable risk test’ within the ‘reasonable person test’.

The primary issue was whether VCAT had correctly applied the statutory provisions when assessing the ‘unjustifiable risk test’ and whether VCAT had conflated the ‘public interest test’ with the ‘unjustifiable risk test’ in the context of OUX’s application. The appellant contended that VCAT failed to adequately distinguish between the statutory tests and thereby misapplied the statutory framework. The respondent, VCAT, argued that the Tribunal had properly considered the statutory criteria and had correctly interpreted the relevant provisions.

The court held that VCAT had conflated the statutory tests and erred in its interpretation of the ‘unjustifiable risk test’. The court found that VCAT had not properly distinguished between the ‘unjustifiable risk test’ and the ‘public interest test’, resulting in an incorrect application of the statutory provisions. The court further held that VCAT had subsumed the ‘unjustifiable risk test’ within the ‘reasonable person test’, which was not consistent with the statutory framework. Consequently, the court found that VCAT’s decision was flawed and remitted the matter back to VCAT for reconsideration in light of the court’s findings.

The court’s decision resulted in the quashing of VCAT’s determination and the remittal of the matter back to VCAT for reconsideration in accordance with the court’s findings. The court did not make any further orders as to the substantive merits of the application, leaving that to VCAT on its reconsideration of the matter.