JUDGE:	Bell J
WHERE HELD:	Melbourne
DATES OF HEARING:	22 February 2017
DATE OF JUDGMENT:	26 September 2017
CASE MAY BE CITED AS:	PQR v Secretary, Department of Justice and Regulation (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 514

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APPEAL – Victorian Civil and Administrative Tribunal – applicant studying to become an exercise physiologist and intending sometimes to work with children in sporting and like contexts – application for working with children check – decision of deputy president refusing to grant assessment notice – applicant on parole for serious drug offences but found to be rehabilitated and of no direct risk of harm to children – application refused because of indirect risk to children generally should applicant relapse into drug-related activity – whether deputy president properly evaluated nature and extent of that risk – whether properly or at all considered whether giving an assessment notice would not pose an unjustifiable risk to safety of children – whether considered necessary causal connection between any such generalised risk and child-related work that applicant might lawfully perform by reason of being given the notice – delay in instituting application for leave to appeal – whether time should be extended – relevant considerations – ‘unjustifiable risk to the safety of children’, ‘pose’, ‘giving the assessment notice’ – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1), (2) and (5), Working with Children Act 2005 (Vic) ss 13(2), 26B(1).

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms K Walker QC with Ms J Taylor	Victoria Legal Aid
For the respondent	Mr W Alstergren QC with Mr P Panayi	Solicitor for the Department of Justice and Regulation

HIS HONOUR:

Introduction

The Working with Children Act 2005 (Vic) establishes a process for screening persons engaging or intending to engage in child-related work. On pain of criminal penalty, such persons must apply for a working with children check and obtain an assessment notice permitting them to do so. Consistently with s 17(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and international human rights,[1] the paramount consideration in determining such applications is the protection of children from sexual and physical harm.[2]
[1]See International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 24(1); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1).
[2]For discussion of the paramount consideration of the best interests of the child generally, see Secretary, Department of Human Services v Sanding (2011) 36 VR 221, 227–30 [11]–[23] (Bell J); ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013) [54]–[71] (Bell J) (‘ZZ’); Certain Children v Minister for Families and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PQR v Secretary, Department of Justice and Regulation (No 2)

Details

AGLC: PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514
Case: [2017] VSC 514
Decision Date: 26 September 2017

CaseChat Overview and Summary

The applicant, PQR, sought judicial review of a decision by the Victorian Civil and Administrative Tribunal (VCAT) that refused to grant an assessment notice for a working with children check. PQR, who was studying to become an exercise physiologist and intended to work with children in sporting and similar contexts, applied for a working with children check. The application was refused due to an indirect risk to children should PQR relapse into drug-related activity. PQR had a history of serious drug offences but was found to be rehabilitated and posed no direct risk of harm to children.

The primary legal issues before the court were whether the deputy president correctly assessed the nature and extent of the risk, whether the deputy president appropriately considered whether granting an assessment notice would pose an unjustifiable risk to children's safety, and whether a necessary causal connection existed between any generalised risk and the child-related work PQR might lawfully perform. The court also had to consider whether the delay in seeking leave to appeal should result in the time being extended, taking into account relevant factors.

The court found that the deputy president did not properly evaluate the risk posed by PQR's potential relapse, did not adequately consider whether granting an assessment notice would pose an unjustifiable risk to children's safety, and did not establish a necessary causal connection between any generalised risk and the child-related work PQR might perform. Consequently, the court quashed the VCAT's decision and remitted the matter for reconsideration. Given the particular circumstances of the case, including the delay in seeking leave to appeal, the court did not extend the time for the application.

The court's final order was to quash the decision of VCAT and remit the matter to VCAT for reconsideration in light of the court's findings. The court did not extend the time for the application, considering the specific circumstances of the case.

Orders