Secretary, Department of Justice v LMB; Secretary, Department of Justice v PMY
[2012] VSCA 143
•29 June 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0070
| SECRETARY, DEPARTMENT OF JUSTICE | Applicant |
| v | |
| LMB | Respondent |
S APCI 2011 0096
| SECRETARY, DEPARTMENT OF JUSTICE | Applicant |
| v | |
| PMY | Respondent |
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| JUDGES | WARREN CJ, OSBORN JA and CAVANOUGH AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 24 May 2012 |
| DATE OF JUDGMENT | 29 June 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 143 |
| JUDGMENT APPEALED FROM | LMB v Secretary to Department of Justice [2011] VCAT 595 PMY v Secretary to Department of Justice [2011] VCAT 968 |
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ADMINISTRATIVE LAW – Occupational licensing – Working with children checks – Category 1 application – Where applicants convicted of sexual offences against children - Public interest – Whether Tribunal improperly restricted its view of the public interest – Whether Tribunal bound in considering public interest to have regard to public confidence in the working with children check system – Working with Children Act 2005 s 26.
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| Appearances: | Counsel | Solicitors |
| For Secretary, Department of Justice | Mr R Niall SC with Ms R Ellyard | Victorian Government Solicitor’s Office |
| For LMB | Dr S Donaghue SC with Ms C A Boston | Holding Redlich |
| For PMY | Mr E Nekvapil | Kenna Teasdale Lawyers |
WARREN CJ
OSBORN JA
CAVANOUGH AJA:
Introduction
The Secretary to the Department of Justice seeks to bring these appeals pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 against two decisions of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) directing her to give assessment notices pursuant to the Working with Children Act 2005 (‘the Act’) in favour of the two respondents.[1]
[1]Leave to appeal has been granted in the case of LMB and by consent the question of whether leave to appeal should be granted in the case of PMY has been heard together with the substantive argument upon the questions that would arise in the proposed appeal.
The appeals raise sensitive and potentially significant questions concerning the nature of the ‘public interest’ which the Tribunal must consider when determining whether an assessment notice is to be given in relation to what are known as category 1 applications. Before going to these questions, it is desirable to say something about the broad scheme of the Act and the nature of the applications before the Tribunal.
The main purpose of the Act is stated in s 1(1):
(1)The main purpose of this 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]
[2]Act, s 1.
The general scheme of the Act was described by the Attorney-General, the Hon Rob Hulls, in the second reading speech relating to the Bill for the Act:[3]
In brief, this Bill sets out criteria for who should be allowed to work with children. It envisages that the Secretary of the Department of Justice, through an agency, will vet people’s criminal records and consider them against these criteria. This agency will issue ‘assessment notices’ to those who are not judged unsuitable, and ‘negative notices’ to those who are considered unsuitable to work with children. It will then be a criminal offence for a person without an assessment notice to work with children. It will also be a criminal offence for an employer or organisation to engage a person to work with children if that person does not have an assessment notice. Those who have a negative notice are prohibited from even applying to work with children. All these offences carry a maximum penalty of two years imprisonment.
Of course, once a person receives a negative notice, he or she will be precluded from many fields of employment and community involvement. This is a significant restriction to place on a person. To ensure that no-one is unfairly treated, this Bill provides for a full range of appeal rights. A person who is issued with a negative notice and feels aggrieved can appeal this decision to the Victorian Civil and Administrative Tribunal.
[3]Victoria, Parliamentary Debates, Legislative Assembly, Thursday 21 July 2005, 1998.
The principal procedural mechanism by which the scheme described by the Attorney is implemented is the working with children check. As the Attorney indicated, it is an offence to knowingly engage in child-related work without a current assessment notice (ss 33 and 34). It is also an offence to knowingly employ another person in child-related work if that person does not have a current assessment notice (s 35).
Part 2 of the Act provides for the working with children check procedure and the purpose of that Part is stated to be:
… to establish a process for assisting in determining whether a person is suitable to work in child-related work.[4]
[4]Act, s 8(1).
Part 2 of the Act defines child-related work (s 9). Section 10 provides that a person may apply to the Secretary for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check. Section 11 prescribes procedures for the consideration of applications.
Part 2 creates a hierarchy of categories of applications.
Category 1 applications can be made by persons convicted or found guilty as an adult of any one of a range of specified sex offences committed against a child, or of a child pornography offence (s 12). The Secretary must refuse to give an assessment notice to such persons. However, there is a right of appeal to the Tribunal granted to a sub-category of such offenders in respect of the Secretary’s mandatory refusal. The present cases fall within this sub-category. The provisions governing the terms of the Tribunal’s discretion are critical to this appeal. However, it is worth noting that there are two further categories of application.
Category 2 applications may be made by, in substance, persons with convictions or findings of guilt for specified sexual offences against adults (s 13). The category also includes those with convictions or findings of guilt for serious violence or drug offences. In such cases, the applicant is presumed to be unsuitable to work with children. However, a discretion is given to the Secretary to give an assessment notice. Section 13(2) provides that the Secretary must refuse to give an assessment notice on a category 2 application unless satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, having regard to ten criteria specified in paragraphs (a)-(j) thereof. In turn, there is a right to apply to the Tribunal for a review of the Secretary’s decision. No express public interest test applies.
There is a further category of application – category 3 (s 14), which relates to persons who have been the subject of adverse findings or determinations by professional registration bodies, persons who have committed offences against the Act itself and persons who have committed certain other specified offences. In the case of category 3 applications, the Secretary must give an assessment notice unless satisfied in the particular circumstances of the case that it is appropriate to refuse to do so. The Act again sets out the criteria which the Secretary must have regard to and does so in terms which are in substance identical to the criteria relating to assessments of category 2 applications. Again, no express public interest test applies.
Subject to s 17(1A), the Secretary must grant an assessment notice to all other applicants (s 17). Under s 17(1A), the Secretary may refuse to give an assessment notice to an applicant if exceptional circumstances exist and the applicant has been charged with, convicted or found guilty of an offence not previously categorised where there is a significant link between that charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant.
The Secretary must give a ‘negative notice’ on a category 1 application or to an applicant who is otherwise refused an assessment notice (s 17(3)).
We turn to the present cases. LMB had pleaded guilty and had been convicted in May 1997 of one count of sexual penetration of a child between the age of 10 and 16 years. PMY had pleaded guilty and been convicted in March 2006 of one count of indecent assault relating to a 16 year old male victim.
In consequence, when the applicants applied for assessment notices under the Act, each application constituted a category 1 application and the Secretary was required to refuse each application and to give a negative notice without undertaking an assessment of the risk that the applicant might pose or considering any other matters at all.
In turn, each applicant was entitled to apply to the Tribunal ‘for an assessment notice to be given to him or her’ (s 26(1)) or (as the same process is described in s 17(4)(b)), ‘to have VCAT consider whether an assessment notice is to be given’.
The jurisdiction of the Tribunal
Section 26 of the Act relevantly provides:
(1)A person who is refused an assessment notice on a category 1 application (other than a person referred to in paragraph (a) or (b) of section 12(1)) may apply to VCAT for an assessment notice to be given to him or her.
…
(2)VCAT must not make an order for the giving of an assessment notice on an application under subsection (1) unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to—
(a)the nature and gravity of the offence and its relevance to child-related work; and
(b)the period of time since the applicant 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 the offence; and
(f)whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and
(g)the applicant's behaviour since he or she 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 VCAT considers relevant to the application.
(3)Subject to subsection (2), VCAT may by order direct the Secretary to give an assessment notice to an applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.[5]
[5]Act, s 26.
The criteria set out in s 26(2) are in substance identical to the criteria applicable in relation to category 2 applications and category 3 applications. However, in relation to category 1 applications, a different starting point applies. The Tribunal must not order the giving of an assessment notice unless it is satisfied that giving a notice would not pose an unjustifiable risk to the safety of children having regard to the criteria. Nor is that the end of the matter. If satisfied that there is no unjustifiable risk, the Tribunal may only direct the giving of an assessment notice if it is satisfied that, in all the circumstances, it is in the public interest to do so: s 26(3).
In both the case of LMB and the case of PMY, the Tribunal (in each case constituted by a Vice Presidential member, being a County Court judge) determined after hearing evidence and submissions that the Secretary should give an assessment notice.
The Secretary now submits that the Tribunal in each case erred in law in its reasoning. In each case, the Secretary raises a question of general principle together with alternative arguments in respect of the specific reasons given by the Tribunal in the particular case.
The question of principle
The question of general principle is whether, upon reviews of the type in question, where the Tribunal is positively satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children, the Tribunal must or may further consider, when it comes to s 26(3), whether nevertheless the giving of an assessment notice will be contrary to the public interest by reason of its effect upon public confidence[6] in the assessment system.
[6]The Secretary’s argument assumes that the effect will be detrimental.
The Secretary submits principally that the nature and gravity of an applicant’s prior offence and its relevance to child-related work must or may bear on the consideration of the public interest, even if the Tribunal was satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. That is to say, the Secretary submits that the Tribunal must or may take into account the effect upon public confidence in the assessment system of the giving of an assessment notice, as distinct from simply assessing the objective merits of the application. In addition, the Secretary would have it that any other negative aspects of the applicant’s case should be brought to account again in considering the matter of public confidence in the assessment system for the purposes of the public interest test.
This submission was not raised at all before the Tribunal in the case of PMY and was not raised in the terms in which it is now articulated in the case of LMB. Nevertheless, it is convenient to address it in general terms before returning to the bases of each of the specific decisions in issue.
The public interest
As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[7]
The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[8]
[7](2009) 240 CLR 140, 162 [20].
[8]Citing O’Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch (2011) 243 CLR 506, [31]-[32] (French CJ), [69] (Gummow, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary Department of Justice No 2 (2010) 241 CLR 320, [13].
In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[9] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[10]
[9]Act, s 1(1).
[10]Ibid.
The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.
Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act.
In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because:
(a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;
(b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;
(c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;
(d) Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.
In our view, for reasons we shall come to, a fair reading of the Tribunal’s reasons shows that in neither case did the Tribunal improperly restrict in any way the range of matters potentially relevant to determining what was in the public interest.
Thus, it is not sufficient for the Secretary to hypothesise a factor which might be potentially relevant to the Tribunal’s decision and then show that the Tribunal did not consider it. The Secretary must demonstrate that the Tribunal was bound to have regard to the factor identified by her and that it failed to do so.[11]
[11]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-42, 55; Foster v Minister for Customs (2000) 200 CLR 442, 452 [22]-[23].
In the present cases, it cannot be said that the factor of ‘public confidence in the assessment of persons as suitable for child-related work’[12] necessarily required consideration once it was concluded that the applicants did not objectively pose an unjustifiable risk to the safety of children.
[12]Outline of submissions on behalf of the Secretary in the case of LMB, [13].
First, the perception, as distinct from the fact, of risk is not a factor specifically identified as relevant by the Act, nor can it be said to be imperatively relevant to the achievement of the purpose of the Act.
Secondly, the fact that the Act gives the Tribunal a discretion with respect to the giving of notices of assessment to offenders of the class in question counts strongly against the conclusion that mere categorisation by reference to the offence in issue (or any other negative matter able to be taken into account under s 26(2)) is a proper basis for concluding that the public interest requires refusal.
Thirdly, it is implicit in the Secretary’s submission that the Tribunal may conclude that it would be objectively just to give a notice having regard to the circumstances of an applicant, but not in the public interest to do so because of the probable popular perception of an objectively just decision. It would, in our view, ordinarily require a clear mandate for the Tribunal to regard itself as bound to proceed on the basis of its view of probable public perceptions rather than its view of the objective justice of the situation. We will expand on this matter in a moment.
Fourthly, there was no evidence before the Tribunal in either of the present cases of public perceptions of the working with children check system nor any evidence of the likely impact of the giving of the notices in question upon public perceptions. The factor put forward by the Secretary is essentially one of no more than a speculative risk of adverse public perceptions.
Fifthly, insofar as it was hypothesised that the Tribunal should have regard to likely public perceptions of the exercise of its discretion without any public knowledge of the facts of the case or the reasons of the Tribunal, we do not see how such a consideration could rationally be given weight.[13] Such an approach would require the Tribunal to effectively disregard its own view of the merits of the case upon the evidence for fear of uninformed public sentiment.
[13]Cf Director of Public Transport v XJF [2011] VSCA 302, [58]-[59] (Maxwell P with whom Mandie and Harper JJA agreed).
Sixthly, in any event, why should the Tribunal be required to assume that the ultimate public reaction to a carefully reasoned, just and objectively sound decision to grant an assessment notice would or might be a negative or critical reaction? On the contrary, it might well be considered that, at least in the long term, public confidence in the system is better served by rational decision making based on objective evidence rather than by avoiding such decision-making out of fear that the public will think ill of it. This is the view which underpins the rule of law generally in our society and we can see no basis for concluding that such an approach would not be open to the Tribunal. Why should the Tribunal effectively ignore the point made by the Attorney in the second reading speech that, because a negative notice will place significant restrictions on a person’s employment and community involvement, a ‘full range of appeal rights’ is provided in order to ‘ensure’ that no-one is unfairly treated.
In McGarry v State of Western Australia,[14] in considering whether a State statute which provided for judicially imposed indefinite detention subject to a power of release vested in the Executive was constitutionally invalid on Kable[15] grounds, Wheeler JA[16] said:
It is not in my view appropriate for a court to assume, in considering the validity of legislation, that a Minister would, in effect, refuse to recommend release where release was appropriate for “no other reason than to gratify public clamour against release of a member of an unpopular minority”, as the appellant submits.
[14][2005] 31 WAR 69, [37].
[15]Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
[16]With whom Roberts-Smith and McClure JJA agreed.
Similarly, though contained in a dissenting judgment,[17] the following words of Brennan J relating to contempt of court constituted by ‘trial by media’ have resonance here:
[The judge’s] function is not to be usurped by a public prejudgment. I would adopt with respect that passage in Lord Reid’s speech in the Times Newspapers[18] case where he saw that, if any other view were taken, ‘unpopular people and unpopular causes will fare very badly’.
[17]In Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25, 167.
[18][1974] AC 273, 300.
To the same effect is the observation of Harper JA in Director of Public Transport v XFJ:[19]
A decision maker’s apprehension of misleading headlines should never stand in the way of decisions otherwise properly reached.
[19][2011] VSCA 302, 83.
In our view, the following remarks made by Sir Gerard Brennan on the occasion of his swearing in as Chief Justice of Australia on 21 April 1995 are also of relevance to the Tribunal in relation to the exercise of its jurisdiction under the Working with Children Act 1995:
Judicial method is not concerned with the ephemeral opinions of the community. The law is most needed when it stands against popular attitudes, sometimes engendered by those with power, and when it protects the unpopular against the clamour of the multitude. But judicial method is concerned with the equal dignity of every person, his or her capacity to participate in the life of the community, to contribute to society and to share in its benefits; it is concerned with the powers entrusted to governments and the manner in which those powers are exercised. Judicial method starts with an understanding of the existing rules; it seeks to perceive the principle that underlies them and, at a deeper level, the values that underlie the principle. At the appellate level, analogy and experience, as well as logic, have a part to play. Judgments must be principled, reasoned and objective, as Sir Anthony Mason said yesterday. And, most significantly, each step in the reasoning must be exposed for public examination and criticism.[20]
[20][1995] HCA Trans 118 (21 April 1995).
Seventhly, if those matters of high principle be not enough, there are pragmatic reasons for not imposing what are, or may be perceived as, disproportionate and individually unjust consequential penalties upon offenders convicted of sexual offences. The most obvious of these is the risk that such consequential penalties may be a disincentive to pleas of guilty. A risk of this type is recognised in the Law Reform Commission’s recent report with respect to the Sex Offenders Register. That report records that both the Director of Public Prosecutions and the judges of the County Court accept that it is possible that the current regime with respect to the Register has led to a highly undesirable reduction in pleas of guilty.[21]
[21]Victorian Law Reform Commission, Sex Offenders Registration Final Report (2011), 5.33-5.35.
The relevant principles and pragmatic arguments of the kind mentioned above mean that it cannot be regarded as self-evident that the Tribunal was bound to treat the requirements of the public interest as going beyond what was objectively just and appropriate in the circumstances of the case.
For the above reasons, we do not accept that the Tribunal was required as a matter of law to have regard to the effect of a decision to grant an assessment notice upon public confidence in the assessment system, once it was satisfied not only that the giving of an assessment notice would objectively involve no unjustifiable risk to the safety of children but also that the giving of the notice would otherwise be in the public interest.
LMB
In May 1997, LMB pleaded guilty to taking part in an act of sexual penetration with a child aged between 10 and 16 years. At the date of the offence in 1996, LMB was an adult aged 30 and the victim 14 years of age. LMB was sentenced to nine months’ imprisonment the whole of which term was suspended for two years.
The offence occurred in a public toilet block after LMB had observed the victim masturbating and reached a financial arrangement with him for his prostitution. LMB persisted in sexual activity when the victim attempted to push him away. The offence was described by the sentencing judge as involving a brutal attack. Nevertheless the judge accepted that at the time LMB was clinically depressed and had taken, for the first time, prescribed medication which had the effect of disinhibiting him. He imposed a totally suspended sentence of imprisonment.
LMB has been employed as a teacher at a university since 2003. He is a qualified nurse with post-graduate qualifications in education and has worked both as a nurse and a nurse educator for the last 20 years. The university at which he works offers courses in the TAFE sector. Some students he teaches could be under 18. His employer will not permit him to teach students under 18 without an assessment notice.
Before the Tribunal, LMB adduced evidence of professional achievement, good character since the offence 15 years previously, community support, insight into his offending and positive psychiatric opinion from Dr Shum and Dr Walton as to the low likelihood of further offending.
The Tribunal considered each of the factors set out under s 26(2) and concluded with respect to the nature and gravity of the offence and its relevance to child-related work as follows:
18The offence, sexual penetration of a child aged between 10 and 16 is a very serious offence and I consider the gravity of the offence to be serious. This was an approach to a 14 year old and engaging in a sexual act with the child at times over his protests or resistance. It is clear, as LMB ultimately acknowledged in cross-examination, that although he was aware the child was at times saying no, he continued until he had done what he wanted to do.
19The objective gravity of the offence, seen in terms of the impact on the child and the nature of the offence, is clearly significant. In terms of the gravity of the offending, there are some significant mitigating factors. The account consistently given by LMB was that he had taken Duramine, an appetite suppressant tablet, for the first time. It had aroused in him a sense of hyperactivity and hyper-arousal and it had disinhibited him. He described conduct other than the conduct with the child that was consistent with that reaction to the Duramine and that would be unlikely to be able to be made up and to be carried out by somebody who had been plotting an offence. Many of the manifestations occurred before the sexual assault on the child rather than after, which is also consistent with this being related genuinely to Duramine and it not being used later as an excuse.
20The fact that it was an opportunistic offence; is not any comfort to the victim, but in terms of assessing the seriousness of the offending conduct of LMB, I consider that to be a factor that affects how I regard the seriousness of his circumstances of committing the offence. So, the Duramine; the fact that it was opportunistic; the fact that it was a single offence and that although it was continued until LMB had finished, stopped at that stage and was not repeated, all are relevant, in my view, to assessing the gravity of the offending conduct so far as making an assessment of the moral culpability of the offender as opposed to the gravity so far as the victim is concerned.
21It is clear that this offence was not committed because LMB had access to a child or to young people in the course of his work. Therefore, there was not an additional factor which can be real concern, where the offending arises out of the proximity to children by reason of the work. So the offence was not committed at work; it was not committed by reason of access to children through work and is very different in circumstance from the circumstances where LMB now has contact with young people under 18 in a work capacity. I do not consider that there is any relevance between the offending and child related work.[22]
[22]LMB v Secretary to Department of Justice [2011] VCAT 595, [18]-[21].
Her Honour also considered the sentence imposed for the offence.
23The gravity of the offence was recognised by the sentencing judge by convicting and imposing a sentence of imprisonment. The personal circumstances of LMB and the unusual circumstances relevant to an assessment of moral culpability were also reflected by the fact that the sentence was fully suspended. That seems to me to be consistent with what I have said earlier in respect of the assessment of nature and gravity of the serious offence warranting conviction and term of imprisonment, and the circumstances of offending by the offender such as to justify a much more lenient sentence than would otherwise be expected for an offence of that nature.[23]
[23]LMB v Secretary to Department of Justice [2011] VCAT 595, [23].
Having gone through each of the other matters specifically identified under s 26(2), the Tribunal concluded:
31I do not consider there are any other matters relevant to the application. I have already taken into account the evidence from the other witnesses in making my assessments on the earlier matters. I am satisfied that giving a notice would not pose an unjustifiable risk to the safety of children. Despite the seriousness of the offence itself, the circumstances of the particular offence and the circumstances of LMB as they have been presented before me, both at the time, and more importantly, since then, satisfy me that he does not pose an unjustifiable risk to the safety of children.
32That is not the end of the matter. The next matter that I need to consider is whether it is in the public interest to direct the Secretary to give an assessment notice.[24]
[24]LMB v Secretary to Department of Justice [2011] VCAT 595, [31]-[32].
The Tribunal went on to deal with the submissions of the parties with respect to the public interest. It first accepted the submission made on behalf of LMB that there was a public interest in recognising and encouraging the rehabilitation of offenders by permitting them to pursue their careers where there was no unjustifiable risk to the safety of children.
The Tribunal then rejected the proposition that the nature of the offence alone raised a consideration of the public interest adverse to LMB and concluded that the question whether the public would be amazed if an assessment notice were granted to a person with a prior conviction for a serious sexual offence was irrelevant.
The Tribunal went on to consider whether it was not in the public interest to direct the giving of an assessment notice because such a notice was not on analysis needed for the purposes of LMB’s employment. The Tribunal concluded (without deciding the point) that it may be that, on strict legal analysis, an assessment notice was not needed, but it recognised the practical consequences which LMB faced in his employment as a result of the issue of a negative notice by the Secretary. In the circumstances, the Tribunal concluded that the public interest considerations in favour of granting the notice were not negated merely ‘because it is not or may not be necessary to have a certificate for the work that LMB does’.[25]
[25][42].
We turn then to the grounds of appeal.
(a)The Learned Vice President erred by refusing and/or failing, to take into account the severity of the Respondent’s offence in considering the ‘public interest’ under s 26(3) of the Working with Children Act 2005
(b)Further or alternatively to ground (a), if the Learned Vice President held that the Tribunal was entitled to take into account the severity of the Respondent’s offence in considering the ‘public interest’ under s 26(3) the Tribunal erred in holding that it could only do so:
(i) For the purposes of assessing risk of offending; and
(ii) In exceptional cases.
It can be seen that the grounds do not squarely confront the question of general principle which was argued before us. This is hardy surprising. As we have noted, it was submitted to the Tribunal on behalf of the Secretary that the general public would be amazed to think that someone with a prior conviction for the sort of offending in issue would be in a position to teach children.[26] The Tribunal rejected this submission for entirely unexceptional reasons.
36I also do not consider it appropriate to think of whether the public would be amazed if the certificate were granted to a person with a prior conviction for a serious sexual offence. Unfortunately, often public amazement is based on lack of full information provided to the public and public amazement might not be so if the process under s 26 were properly explained and the matters that had to be canvassed under it were properly explained to the public. In any event, when I raised my concerns with Mr Burns he did not pursue that basis…[27]
[26]T69.
[27]LMB v Secretary to Department of Justice [2011] VCAT 595, [36].
Nevertheless, the Secretary submits in respect of the specific grounds set out above that the Tribunal erred by holding that the nature and gravity of LMB’s offence were irrelevant to the public interest because they had already been taken into account in its assessment of risk. This submission misstates the Tribunal’s reasons.
The Tribunal stated that it must take into account other matters ‘in addition to’ the factors under s 26(2) when considering the public interest. It did not exclude as potentially relevant the 26(2) factors but went on to say that ‘generally’ it would not be appropriate to double count them.
The observations of the Tribunal as to the general situation do not demonstrate error. It did not, as the Secretary submits, regard the s 26(2) factors as necessarily irrelevant to the judgment required under s 26(3). Nor can it be said that it was not open to conclude that the fact of the offence alone in the case before it did not preclude the issue of an assessment notice in the public interest.
The Secretary submits that the Tribunal did not give full effect to the notion of the public interest by reason of the observation that:
There may well be some cases at the edge, some extreme cases, or unusual or extraordinary cases, where the nature of the offence might be such despite the fact that there is no unjustifiable risk to the safety of children as to justify not granting an assessment notice.
We disagree with the Secretary’s submission. The Tribunal’s observation reflects the main purpose of the Act and the purpose of the working with children check provisions under the Act. The purpose of the working with children check provisions is to establish a process for assisting in determining whether a person is suitable to work in child-related work. Once the Tribunal is satisfied that that purpose is achieved, in the sense that the applicant poses no unjustifiable risk to the safety of children, it will necessarily be an unusual case in which the public interest nevertheless requires that no assessment notice be given.[28] The Tribunal’s observations demonstrate that the Tribunal recognised that nevertheless there might, in a particular case, be a factor of the public interest which justified refusal of an assessment notice despite satisfaction of the s 26(2) criteria. The fact that in the Tribunal’s view such cases would be ‘unusual’ does not demonstrate error of law with respect to the present case.
[28]Cf Re PJR v Department of Justice (2006) 25 VAR 336, 345 [45] (Morris J).
(c)The Learned Vice President erred in holding that the public interest favoured directing the Appellant to issue an assessment notice to allow the Respondent to use his professional skills and talents as a teacher in circumstances where the Act did not prevent him from working in his employment nor did it require an assessment notice in order for him to continue to perform his employment.
(d)Further or alternatively to (c), if the Learned Vice President failed to determine whether or not an assessment notice was required in order for the Respondent to continue in his current position this constituted a failure to have regard to a relevant consideration, namely whether or not the Respondent was engaged in or intended to engage in child related work.
(e)The Learned Vice President should have held that for the purpose of s 26(3) of the Act the public interest did not include overcoming any adverse employment consequences sustained by the Respondent because he did not hold a current assessment notice in circumstances where:
(i)the Act did not prohibit him from performing the duties of his employment without holding a current assessment notice;
(ii)a current assessment notice was not required in order for him to continue to perform his duties of employment;
(iii)the respondent did not intend to engage in child related work for which the Act required the holding of a current assessment notice; and
(iv)the application was being used in effect as a de facto character clearance.
The Secretary submits that the public interest cannot include overcoming adverse treatment by an employer if an assessment notice is not in strictness required by an applicant for the work he or she does.
The Tribunal proceeded on the basis that such a notice may not be necessary in LMB’s case, but did not resolve this issue.[29] In our view, it was open to the Tribunal to accept the application as one made in good faith and as raising more than a hypothetical issue with respect to the employment of LMB. The Act does not limit the category of persons who may apply for a notice. In our view, it was not an impermissible consideration that the giving of a notice would acknowledge and assist LMB’s rehabilitation and further his right to employment. The evidence disclosed a sufficient factual basis to make the factor of LMB’s future employment potentially relevant. By reason of the limitation on repeat applications following negative assessments, this consideration was logically relevant if the University might constitute an ‘educational institution’ within the following five years.[30] It was well open to the Tribunal to regard these matters as supporting the view that the grant of a notice was in the public interest.
[29]The question whether the TAFE section of the relevant university fell within the definition of ‘educational establishment’ under the Act turned on the unresolved question whether it ‘provides a program of study or training primarily for, or directed at, children and that leads to the award of a Senior Secondary Certificate of Education that is recognised by the AQF within the meaning of the Education and Training Reform Act 2006’ (s 3 definition of educational institution).
[30]Section 25(1).
It was for the Tribunal to decide whether it accorded the applicant’s actual and potential employment limitations any weight. If it made an error that error was not an error of law.
(f)The learned Vice President misdirected himself as to the meaning of paragraph (a) of sub-s 26(2) of the Act by limiting the circumstances in which an offence can be relevant to child-related work to offences that occur out of the proximity to children by reason of the work.
In the course of addressing the factors identified by s 26(2)(a) of the Act the Tribunal stated:[31]
It is clear that this offence was not committed because LMB had access to a child or to young people in the course of his work. Therefore, there was not an additional factor which can be real concern, where the offending arises out of the proximity to children by reason of the work.
[31]Reasons, [21].
The Tribunal did not limit itself in the manner suggested in ground (f). It simply identified the absence of an additional potential factor of real concern, namely the committing of an offence in the context of working with children.
None of the specific grounds raised with respect to LMB are made out.
PMY
In March 2006, PMY pleaded guilty before the Magistrate’s Court to one count of indecent assault and was convicted and fined $1,500. The offence occurred in December 2005. The 16 year old victim was staying with his mother in the bed and breakfast establishment run by PMY. They were in separate rooms. During the night, PMY entered the victim’s bedroom via the office. He placed his hand under the doona and over the victim’s shorts and touched the victim’s penis. The victim woke up and challenged PMY who left the room. The victim reported the incident to his mother and later that day PMY attended the police station at the request of police and made full admissions concerning the incident.
PMY and one of his sisters gave evidence at the Tribunal. Evidence was also called from two psychologists, Mr Bernard Healey and Dr Aaron Cunningham. PMY also produced evidence relating to requirements for an assessment notice in respect of potential positions he may wish to apply for in the hospitality industry.
After completing Year 12 and further qualifications, he had worked as a hotel manager, food and beverage manager and night manager at hotels both in Australian and overseas. He had led a department of hospitality at a training college for some years before running his own bed and breakfast. Since the offence, he had worked largely in customer service with a hotel and a catering company. He wanted to return to working in the administrative and training side of hospitality but required an assessment notice in order to get work with training organisations.
The Secretary submitted to the Tribunal that it should not be satisfied that PMY did not pose an unjustifiable risk to the safety of children, because the offence had occurred only five years before, it was of a predatory nature and it constituted a gross breach of trust. It was also submitted that the psychologists’ evidence did not make out PMY’s case because they had scored him in the low-moderate risk of offending on one of the scales they applied, the Static-99 Evaluation for Risk of Sexual Re-offending.
The Secretary further submitted to the Tribunal that it was not in the public interest for the assessment notice to be given, because PMY did not need the assessment notice in that he was not intending to work with children in his proposed capacity as a trainer or administrator in the hospitality industry. If, in fact, some institutions were requiring an assessment notice when the Act did not require an assessment notice, this did not establish a public interest in the giving of the assessment notice.
The question of public confidence in the system was not raised at all before the Tribunal.
We turn then to the specific grounds on which the Secretary seeks leave to appeal.
(a)The Learned Vice President misdirected herself as to the meaning of paragraph (a) of sub-s 26(2) of the Act by limiting the circumstances in which an offence can be relevant to child-related work to offences that occur out of the proximity of children by reason of the Respondent’s work.
The Tribunal directly addressed s 26(2)(a):
11The indecent assault did not arise out of the proximity to children by reason of the applicant’s work. I accept that the offence of indecent assault is a serious offence, and that it constituted a breach of trust in the circumstances. However, it was an isolated incident. The applicant was immediately remorseful, made full admissions, told his sister of the incident on the night, and has remained very ashamed of his conduct. I consider on the evidence before me that he was depressed at the time, withdrawn and isolated, and suffering after the break up of his first homosexual relationship. He had no prior convictions for any sex offences, nor any later ones. The penalty imposed suggests that this offence was not of the most serious kind in the range of indecent assaults.[32]
[32]PMY v Secretary to Department of Justice [2011] VCAT 968, [11].
Although read in isolation the first sentence of this paragraph is open to criticism, we do not take it to reflect a misunderstanding of the circumstances of the offending which the Tribunal set out in full at the outset of its decision. Rather, it must be taken to mean that PMY was not involved in child-related work at the date of the offence.
When the decision is read as a whole, we are not persuaded that the Tribunal failed to have regard to the nature and gravity of the offence and its relevance to child-related work. The Tribunal expressly found that the offence was a serious offence and that it constituted a breach of trust. It went on to consider at some length whether PMY was likely to represent a future threat to children. The assessment of that factor included recognition of the predatory nature of the offending and the opinions of Mr Healey and Dr Cunningham as to the significance of this. We are not persuaded that the Tribunal failed to take into account the factor listed under s 26(2)(a). It did not improperly limit its consideration of the circumstances of the offence.
(b)The Learned Vice President failed to determine whether the conduct of the bed and breakfast facility operated by the Respondent was child-related work.
The Tribunal was not required to determine whether the conduct of the bed and breakfast facility operated by PMY was child-related work. There was no submission by the Secretary before it that it was. The Tribunal was required to have regard to the nature and gravity of the offence and its relevance to child-related work which it plainly did.
(c)The Learned Vice President misdirected herself as to the meaning of sub-s 26(2) of the Act by equating unjustifiable risk with a low risk of offending.
After canvassing the evidence, the Tribunal concluded its consideration of the question whether PMY was likely to represent a future threat to a child (s 26(2)(h)) as follows:
27I accept the applicant’s evidence as to the circumstances of the offence, his mental state at the time, as well as his lack of confidence about his sexuality. I acknowledge his shame, remorse and empathy for his victim. It is clear that he has come to terms with his sexual identity, learned how to deal with the break up of a relationship, and learned to remain involved with friends and family. His depression has resolved, he has been accepted by friends and family, and he has been working consistently. I consider that his life circumstances are very different to what they were at the time of the offence. I accept the expert psychological evidence that the applicant presents a low risk of re-offending.[33]
[33]PMY v Secretary to Department of Justice [2011] VCAT 968, [27].
There is nothing inconsistent between this intermediate finding and the Tribunal’s ultimate finding under s 26(2) as follows:
30I have taken into account all the relevant matters under s 26(2) of the Act. I am satisfied for the reasons outlined above that giving an assessment notice would not pose an unjustifiable risk to the safety of children.[34]
[34]PMY v Secretary to Department of Justice [2011] VCAT 968, [30].
There is no basis for concluding that the Tribunal failed to properly reach a conclusion as to the question of unjustifiable risk by reference to all the factors stipulated under s 26(2). The Tribunal clearly distinguishes between a finding relating to risk of reoffending as a factor going to s 26(2)(g) and the broader question of unjustifiable risk under s 26(2).
The Tribunal decision on this issue was one of fact and demonstrates no error of law.
(d)The Learned Vice President misdirected herself as to the meaning of paragraph (e) of sub-s 26(2) of the Act by treating the age of the victim as being relevant to the offence and by holding that less weight is to be given to offending against older children when compared with offending against children who are ‘very young’.
The Tribunal said in respect of the s 26(2)(e) consideration:
15The victim was 16 at the time of the offence and the applicant was 45 years old. Although the age gap is significant, it is also relevant that the victim was not a very young child, which would exacerbate the offence.[35]
[35]PMY v Secretary to Department of Justice [2011] VCAT 968, [15].
We are unable to see that the Tribunal’s observations demonstrate any error of law. It had regard to the relevant circumstances. Those circumstances were factors relevant to the overall judgment required by s 26(2).
(e)The Learned Vice President erred by refusing and/or failing to take into account the severity of the Respondent’s offence in considering the ‘public interest’ under sub-s 26(3) of the Act.
(f)The Learned Vice President erred in holding that the Act required or permitted the VCAT to start from the premise that once a finding is made that an applicant does not pose an unjustifiable risk, it would usually be in the public interest to direct the Applicant to give an assessment notice.
The Tribunal stated at [35]:
35Firstly, the notion of ‘public interest’ is broad. It includes the central consideration which is the need to protect children from sexual or physical harm. But it also embraces other considerations, including, for example, the right of a person to engage in work or in community affairs or the right of person who has rehabilitated himself to be permitted to re-enter the work force in an area in which they have qualifications and experience. In the circumstances of this case, this does not mean a return to a profession involving working with children; but it may involve a return to training activities which may involve the training of apprentices in the hospitality industry. The public interest may also include the interest in not unnecessarily restricting the employment prospects of older workers, such as the applicant, who have considerable experience in their chosen occupations.
36Usually, one would expect that it will be in the public interest to direct the Secretary to give an assessment notice to an applicant if the Tribunal is satisfied that the giving of the notice would not pose an unjustifiable risk to the safety of children.[36]
[36]PMY v Secretary to Department of Justice [2011] VCAT 968, [35]-[36] (citations omitted).
We do not accept that the Tribunal refused or failed to take into account the severity of the respondent’s offence in considering the public interest. The Tribunal made clear that in its view the notion of ‘public interest’ included the central consideration which is the need to protect children from sexual or physical harm. It had previously addressed the gravity of the offence in this connection. Insofar as this ground is intended to agitate the question of public perceptions, that argument was not raised for the consideration of the Tribunal. For the reasons we have already given, we do not accept that the consideration of such perceptions was mandatory.
Insofar as the Tribunal expressed an expectation as to the usual consequence of the conclusion that giving an assessment notice would not pose an unjustifiable risk to the safety of children, we do not accept that the Tribunal’s observations demonstrate an error of law. As we have explained, such a conclusion is, in effect, one that the giving of an assessment notice would accord with the stated purpose of the working with children check procedure. It follows that usually it will be in the public interest in these circumstances to give an assessment notice. The Tribunal’s reasons make clear, however, that it accepted that the notion of ‘public interest’ is broad and that it did not close out the possibility that, despite a positive finding pursuant to s 26(2), it might not be satisfied that the giving of an assessment notice was in the public interest.
(g)The Learned Vice President erred in holding that the public interest favoured directing the Applicant to issue an assessment notice to allow the Respondent to use his professional skills and experience in hospitality administration and training to seek employment in circumstances where the Act did not prevent him from applying for employment nor did it require an assessment notice in order to perform employment.
(h)Further or alternatively to (g), if the Learned Vice President failed to determine whether or not an assessment notice was required in order for the Respondent to apply for employment using his professional skills and experience in hospitality administration and training, this constituted a failure to have regard to a relevant consideration, namely whether or not the Respondent was engaged in or intended to engage in child-related work.
(i)The Learned Vice President should have held that for the purpose of sub-s 26(3) of the Act the public interest did not include overcoming any adverse employment consequences sustained by the Respondent because he did not hold a current assessment notice in circumstances where:
(i)the Act did not prohibit the Respondent from using his professional skills and experience in hospitality administration and training without holding a current assessment notice;
(ii)the Respondent did not intend to engage in child-related work for which the Act required the holding of a current assessment notice; and
(iii)the application was being used in effect as a de facto character reference.
The Tribunal made the following findings with respect to the relevance of the giving of an assessment notice to PMY’s future employment.
37Secondly, even if it is the case that the Act does not require the applicant to have a WCC to do the work he wishes to do with adults in the training or hospitality sector, it is clear on the material tendered by the applicant that some institutions require the WCC. The material tendered shows that the WCC is required for positions including: student enrichment programs adviser at La Trobe University; part-time catering assistant at Mannix College in Clayton; hospitality trainer with Hospitality Training Australia; and positions as trainers or assessors for BEST.
38Having applied for the WCC in good faith, he cannot apply for the positions requiring the WCC without receiving an assessment notice. This is the case notwithstanding the fact that he has never worked with children or sought to work with them, nor seeks to work with them in the future. Although s 15(1) of the Act allows an applicant to withdraw an application for a WCC, an application cannot be withdrawn after an interim notice has been given. The applicant has continued to believe that the WCC is required for some training and hospitality positions. The respondent raised the concern that the Act was being misused by institutions who required the WCC as a matter of policy when the Act did not require it, and by applicants who mistakenly believed that the Act required them to have one.
39I acknowledge that this is a matter of concern which may be able to be addressed by the respondent, whether by the amendment of the legislation or by other measures. However, I do not consider that this concern should be visited against the applicant in this case. Having applied for the WCC in good faith, and, having received a negative notice, he is caught by the policies of institutions to which he wishes to apply to for employment in that they require the WCC (even if the Act, in its terms, does not require one).[37]
[37]PMY v Secretary to Department of Justice [2011] VCAT 968, [37]-[39] (citations omitted).
It was open to the Tribunal to regard difficulties relating to PMY’s future employment as raising a consideration relevant to the public interest. At the very least the evidence demonstrated that the application was made bona fide.
The Tribunal analysed the facts of the case before it and reached conclusions with respect to them which were open to it. It may be that PMY’s case disclosed no more than that he would in practice suffer adverse consequences in his employment if he did not obtain an assessment notice and might, as a matter of law, require one. Nevertheless, these factors were capable of being regarded as relevant by the Tribunal when considering the public interest. Further, and contrary to the submission made on behalf of the Secretary to the Tribunal, it was not incumbent upon PMY to positively establish that he would require an assessment notice within the subsequent five years in order to satisfy the Tribunal that the giving of an assessment notice would be in the public interest.
Accordingly, the specific grounds advanced with respect to PMY fail.
Conclusion
For these reasons we would dismiss the appeal in LMB. In the matter of PMY the Secretary seeks leave to appeal. We would not be satisfied that a sufficiently arguable error of law could be made out for the reasons we have stated. However, on the basis of the test in Department of Premier and Cabinet v Hulls[38] it might have been sufficient for the Secretary to identify a question of law and its general public importance to satisfy a grant of leave.
[38](1999) 3 VR 331, 335-6.
However, if we were satisfied that it would be appropriate to grant leave we would require an undertaking for PMY’s costs. This is because the Secretary seeks to argue a test case. As observed in Secretary to the Department of Justice v XQH,[39] sometimes a respondent should not carry the burden where the Secretary seeks to clarify legislation. We think that this is such a case. As also stated in Secretary to the Department of Justice v XQH, the answer does not lie in the grant of a certificate under the Appeal Costs Act 1998.[40] Senior Counsel for the Secretary informed us that if we required an undertaking from the Secretary to indemnify PMY for his costs as a condition for the granting of leave she would not proffer such. As the Secretary declined to proffer an undertaking we would not grant leave.
[39][2012] VSCA 72 [14]- [15] citing examples from the High Court in Maurice Blackburn Cashman v Brown (2011) 242 CLR 647, [43]; Amaca Pty Ltd v Booth 283 ALR 461, [150]; Australian Crime Commission v Stoddart [2011] HCA 47, [42]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [45].
[40]Ibid [16].
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