Secretary of the Department of Justice and Community Safety v LRB

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01619

SECRETARY OF THE DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY	Plaintiff
v
LRB	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2019
DATE OF JUDGMENT:	2 May 2019
CASE MAY BE CITED AS:	Secretary of the Department of Justice and Community Safety v LRB
MEDIUM NEUTRAL CITATION:	[2019] VSC 277

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ADMINISTRATIVE LAW – Working with Children Check – Category A application – VCAT decision to grant an assessment – Secretary’s application for leave to appeal – Whether Court had power to revoke the assessment notice if appeal successful – Tribunal’s consideration of the nature and gravity of the offences – Tribunal’s consideration of reasonable person/parent test – Tribunal’s consideration of public interest test – Whether Tribunal applied the paramount consideration of protection of children from sexual and physical harm - Working with Children Act 2005 ss 1A and 26A; Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Panayi and Mr A Sim	Working with Children Check Unit, Department of Justice and Community Safety
For the Defendant	Mr S Hay with Ms N Papaleo	Thomson Geer

HIS HONOUR:

This judgment arises from an application for a working with children check under s 10 of the Working with Children Act 2005 (Vic) (‘the Act’) by a man who will be referred to as LRB.[1] The Secretary of the Department of Justice and Community Safety (‘the Secretary’) seeks leave to appeal orders of the Victorian Civil and Administrative Tribunal (‘the Tribunal’),[2] including the order she provide LRB with an assessment notice, in place of her decision to issue him with a negative assessment because of the effect of his criminal offending within the provisions of the Act.
[1]Pursuant to separate orders of this Court and the Victorian Civil and Administrative Tribunal.
[2]LRB v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 1351 (‘LRB’) (Lulham DP).

The task of this Court is not to rehear or redetermine the issue of whether LRB should be issued with an assessment notice, but to determine whether the Tribunal made an error of law as the Secretary contends in making the orders that it did.

The application for leave to appeal is made under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). If leave is granted, the Secretary seeks orders:

(a) setting aside the Tribunal’s order and making, in its place, an order pursuant to s 148(7)(b) of the VCAT Act and s 26A of the Act that LRB be refused an assessment notice; or

(b) in the alternative, remitting the proceeding to the Tribunal, differently constituted, to be heard and determined again.

History of the proceeding

LRB’s offending occurred when he was 18 years old and still at school in Year 11, having had to repeat a year in kindergarten and Year 11.

LRB said that he had been bullied by his fellow classmates for his perceived sexuality and had no friends his own age. Due to problems with his parents LRB was staying at the house of one of his younger friends, who was 14 at the time and in Year 8 (‘the victim’). He and LRB had delivery jobs at a shop. LRB and the victim had sexual relations between August and October 1997. The victim felt that he had been manipulated by LRB into these sexual relations, which caused him severe emotional distress. LRB too reported confusion and depression and sought help from the school counsellor, in the course of which he disclosed his sexual relations with the victim. The counsellor reported the matter to the police under a mandatory reporting regime, and on 15 November 1997 LRB was removed from school by police.

LRB was charged with 10 counts of indecent assault under s 39(1) of the Crimes Act 1958, and 6 counts of indecent act with/in the presence of a child under 16 years of age under s 47(1) of that Act. He does not appear to have had legal representation when he spoke to the police or the counsellor.

LRB pleaded guilty to all charges, and was sentenced on 26 February 1998 in the Magistrates’ Court at Ringwood. He was convicted and placed on a 12-month long Community Based Order with the condition that he complete 175 hours of unpaid community work. His appeal to the County Court was allowed and he was sentenced without conviction, again to a Community Based Order under which he was required to complete both 175 hours of unpaid community work and to participate in psychological counselling with respect to sexual issues as directed.

He completed the required community work and also complied with an individual management plan prepared by the counsellor, as well as a four-day ‘Men’s Action Program’. A registered psychologist with the Victorian Institute of Forensic Mental Health discharged him, saying there was no need for him to continue attending. In a report to the correctional authorities this psychologist gave the opinion that:

The impression gained is of a young man who clearly identifies himself as having a homosexual gender orientation and (who) committed the offences in the context of the establishment of that identity. There is no evidence that [LRB] has any paedophilia interests and it was noted that he has since had sexual relationships with appropriate aged males.

Since 1998 LRB has not been charged with any offences. He has been involved in two lengthy relationships.

Application to the Secretary

On 27 February 2018, more than 20 years after his offending, LRB applied for a working with children check and assessment notice under the Act. He applied because he is a volunteer in the Country Fire Authority (‘CFA’), which has foreshadowed a change in policy which will require its volunteers to hold such a check.

The Director of the Working with Children Check Unit conducted a national criminal records check and learned of LRB’s criminal record. The Director issued an interim negative notice and invited LRB to make submissions. In response LRB wrote that:

At the time of the offence, I was 18 and still attending high school. Over a period of time I developed a relationship with a 14-year-old male of whom I lived with for a short period of time. I was young and naïve and struggling with sexual identification issues. I was completely ignorant to the laws around age of consent. I sought help and guidance from the school counsellor and it was during my conversations with them that it was identified I was committing an offence. I am and never have been a threat or risk to children and it is unfortunate that there can be no separation between Criminal Intent and Immaturity at such a young age with teenage sexual exploration.

However, the Director formed the view that LRB’s criminal history meant that his application was classified as a ‘category A application’, and that he therefore had no choice but to refuse LRB’s application. He issued a negative assessment notice to LRB on 3 April 2018.

The legislation

The provisions of the Act that the Director, on behalf of the Secretary, and later the Tribunal had to apply were as follows:

1. Purpose
(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 are subject to a screening process.

…
1A. Protection of children to be paramount
When the Secretary or VCAT makes a decision or takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.

10. Application for working with children check
(1)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.
…

11. Consideration of application
(1) In considering an application made under section 10, the Secretary—
(a)must arrange for the conduct of a police record check on the applicant; and
(b)may have regard to any notice given to the Secretary by, and make enquiries to, any relevant prescribed body; and
(c)may make any other enquiries to, or seek advice or information on the application from, the Director of Public Prosecutions or any other person or source that the Secretary thinks fit and any employee within the meaning of the Public Administration Act 2004; and
(d)may require the applicant to provide any further information that the Secretary thinks fit in the manner required by the Secretary within 28 days or any longer period that the Secretary determines.

(2)Despite sub-section (1)(a), the Secretary is not required to arrange for the conduct of a police record check on an applicant if—
(a)a check of a prescribed kind has previously been conducted on the applicant otherwise than under this Act; and
(b)notice of the result of that check has been provided to the Secretary in accordance with the regulations.

(3)A person in responding to an enquiry or a request for advice or information from the Secretary under sub-section (1) does not contravene any duty of confidentiality imposed on the person by or under any Act or agreement, despite anything to the contrary in that Act or agreement.
…
(6)If a person who has been given a negative notice applies for an assessment notice, the Secretary must not consider the application further unless the Secretary has been notified in writing that there has been a change of circumstances within the meaning of section 25 relating to the issue of the negative notice.

12. Category A application
(1)An application is a category A application for the purposes of this Act if it is in respect of a person—
(a)who is subject to reporting obligations imposed on him or her by Part 3 of the Sex Offenders Registration Act 2004; or
(b)who is subject to an extended supervision order under the Serious Sex Offenders Monitoring Act 2005; or

(c) who is subject to a supervision order or a detention order; or
(d)who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category A offence specified in clause 1 or 2 of Schedule 1 if the conduct constituting or alleged to constitute that offence occurred when the person was an adult; or
(d)who, as an adult, has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a child pornography offence.
(e)who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category A offence other than an offence specified in clause 1 or 2 of Schedule 1.

(2)The Secretary must refuse to give an assessment notice on a category A application.
(3)Despite subsection (2), the Secretary may give an assessment notice on a category A application if—
(a)the application is in respect of a person who has at any time been given an assessment notice because of an order made by VCAT under section 26A(5); and
(b)a relevant change in circumstances (as defined in section 20(2)) has not occurred with respect to the person; and
(c)the Secretary is satisfied that exceptional circumstances do not exist with respect to the person that justify the refusal of the notice.

Appeal to the Tribunal

LRB sought review of the Director’s decision in the Tribunal under s 26A(1) of the Act, which provides that:

26A Jurisdiction of VCAT—category A
(1)A person who has been given a negative notice—
(a)on a category A application (other than a person referred to in paragraph (a), (b) or (c) of section 12(1)); or
(b)because of a decision of the Secretary under section 21C(1) to revoke an assessment notice following a category A re‑assessment (other than on the ground that the circumstances that required the re‑assessment are those referred to in paragraph (a), (b) or (c) of section 21AB(1))—
may apply to VCAT for an assessment notice to be given to him or her.

(2)Pending the final determination of an application under subsection (1), VCAT may—
(a)make an order staying the operation of the Secretary's decision; and
(b) make any other order it considers appropriate having regard to the matters set out in subsection (3).

(3)VCAT must not make an order for the giving of an assessment notice on an application under sub-section (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.

(4)For the purposes of subsection (3), in satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that—
(a)a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and
(b)the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

(5) If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.
(6)The Secretary must comply with an order made by VCAT under subsection (5).
…

LRB gave evidence at the hearing, as did three of the witnesses who had provided evidence about him.

The Tribunal’s decision

The Deputy President who heard the application commenced his reasons by setting out the terms of ss 1 and 1A of the Act and then referred to the judgments of Bell J in PQR v Secretary, Department of Justice and Regulation (No 2)[3] and ZZ v Secretary, Department of Justice and Regulation,[4] stating that:

His Honour said that the WWC Act implicitly recognised the importance of work to individuals and families, and that the screening process for applicants in Part 2 of the WWC Act represented the balance that was carefully struck by Parliament between those two competing rights and the fundamental values and interests that they represent, remembering that the protection of children is paramount. Whilst the Applicant [is] concerned to continue his voluntary activities with the CFA, I consider Bell J’s comment above to be equally applicable to volunteers.[5]
[3][2017] VSC 514 (‘PQR’).
[4][2013] VSC 267 (‘ZZ’).
[5]LRB [2018] VCAT 1351 [33] (citations omitted).

Section 26A(3)

The Deputy President then turned to the matters listed in s 26A(3), which were relevant to the question of whether providing LRB an assessment notice posed an unjustifiable risk to the safety of children. He considered whether each of the relevant factors had any bearing on the application, and if so whether it was a factor in favour of granting the application or refusing it.

Paragraph (a)

The Deputy President considered that ‘the nature of the offence [was] clear and it was somewhat grave’,[6] especially when regard was had to the offending’s effect on the victim and the influence that LRB may have had over the victim. Further, sexual abuse by an eighteen year old of a fourteen year old was directly and obviously relevant to child-related work. However, he found that the offending was less grave than if sexual penetration had occurred, as that would have constituted a more serious offence under the Crimes Act. He concluded that this factor weighed against granting LRB’s application.

Paragraph (b)

[6]Ibid [52].

The period of time since the offence was committed favoured the applicant. The offending occurred 21 years ago and LRB has had no criminal history since then.

Paragraphs (c) and (d)

The Deputy President considered that neither the sentence imposed for the offence, nor the conviction recorded in the Magistrates’ Court and but not recorded in the County Court, weighed for or against LRB.

Paragraph (e)

The Deputy President considered the age gap between the parties – about 4 years, as they were aged 14 and 18 years respectively – to be significant, and considered the applicant’s description of himself as ‘young and naïve’ at the time of the offending to be ‘rather self-serving’.[7] Despite other Tribunal decisions, which suggested that similar age gaps were a mitigating factor,[8] the Deputy President considered that this factor weighed neither for nor against LRB’s application.[9]

Paragraph (f)

[7]Ibid [67].

[8]JGF v Secretary to the Department of Justice [2013] VCAT 1728 [13] (‘JGF’).

[9]LRB [2018] VCAT 1351 [70].

As the offences that LRB had been charged with had not been decriminalised since he had been charged, this factor was irrelevant.

Paragraph (g)

LRB’s behavior since committing the offence favored him. This was in partly due to his absence of criminal history since the offences,[10] and partly due to his history of volunteering with the CFA.[11] LRB submitted, and the Tribunal recorded, evidence on this point regarding the effect that the convictions and inability to attain an assessment notice had had on him, though it did not consider such evidence especially relevant.[12]
[10]Ibid [72].
[11]Ibid [79].
[12]Ibid [78].

The Deputy President also considered the evidence of LRB’s character witnesses. ‘James’, Acting Operations Manager in the CFA, considered that LRB had shown remorse for his actions and was not a risk to children. ‘Marlene’ gave evidence that she had been friends with LRB for at least 11 years and had shared a house with him. He had disclosed his offending to her within 6 months of their meeting, and she would have no reservations with leaving her 10 and 11 year old daughters unsupervised with him. ‘Philip’, captain of the suburban CFA brigade with which LRB volunteers, considered LRB to be a good person to whom children looked up and treated as a role model. Philip would let LRB have unsupervised contact with children, and said that until the CFA had begun reviewing its policies, LRB had trained two 16 year olds without supervision or incident.

The Deputy President noted the limits on the weight that could be given to the character evidence. He recognized that none of the character witnesses purported to give expert evidence, but rather had provided statements based on first-hand observation.[13] He acknowledged that Marlene’s evidence was not directly relevant to child-related work, and that the evidence of James and Phillip, though work-related, did not concern their own children.[14] He criticized the evidence of the character witnesses where they seemed to imply that there had been, or could have been, consent between LRB and the victim, but considered that those matters did not diminish the credibility of their evidence with regard to LRB’s behavior since the offending.[15]

Paragraph (h)

[13]Ibid [108].

[14]Ibid [116].

[15]Ibid [100].

The Deputy President was satisfied that LRB posed no future threat towards children, a factor which favored his application. He referred to the psychiatrist report of Dr WG, who stated that the plaintiff did not represent any appreciable risk of recidivism and that there was ‘no evidence of a significant underlying sexual deviation or of any future danger to the community at large.’

The Deputy President also referred to the report of a psychologist, Ms AC, who examined LRB in June 2018 and reported that:

29.Having assessed (the Applicant), it is my clinical opinion that there is nil detectable risk of sexual misconduct – particularly towards persons under the age of 16.
31.Now 20 years (after the offences), multiple factors suggest that (the Applicant) poses no risk to children or others in the community, including:
(a) his criminal record outlines charges from when he was a teenager; he has subsequently demonstrated a clean record.
(b) Although he was unclear about his sexual identity and legalities around age of consent when he was a young man, he has developed a secure sexual identity evidence by two long-term stable homosexual relationships and awareness of the law.
(c) During his 15 years of volunteering with the CFA, he has developed an excellent reputation among colleagues [evidenced by his character references] and to my knowledge has never acted outside of the law.
(d) He has clearly matured to be a highly insightful man of sound judgment and moral standing, evidenced by his lieutenant status within the CFA, character references, past fundraising involvement, and decade-long commitment to his current fiancé.
(e)Despite feeling ashamed of his criminal record, he has demonstrated a pattern of being upfront with potential employers and members of the CFA, demonstrating honesty and an ability to face past mistakes.
(f) There is positively nil evidence of psychological problem that would place him at greater risk of offending, including bipolar disorder, psychosis, and antisocial personality disorder.

34....(I)t is respectfully my opinion that he poses no risk to children and the community at large.

Paragraphs (i) and (j)

The Tribunal noted that no matters were raised under s 26A(3)(i), or (j).

Section 26A(4)

The Deputy President then considered the operation of s 26A(4).

Section 26A(4)(a) – Reasonable person test

Paragraph (a) required that the Tribunal be satisfied that a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work. The Deputy President adopted the reasoning of Judge Macnamara on the nature of that reasonable person in two decisions. First, in JGF v Secretary to the Department of Justice[16], his Honour stated:
[16][2013] VCAT 1728.

A reasonable person would be acquainted with the truism… ago that there are no risk-free encounters in human life. A reasonable person would, in considering the situation of JGF, wish to acquaint himself or herself with the full range of material that has been placed before me including the character evidence, the history of his good character during his adult life and the expert opinions. A reasonable person would retain a measure of scepticism and caution but would not approach an issue such as this with the thought that once a person had, if you will, shown the cloven hoof, albeit decades ago and as a very young man, that he could never be redeemed.[17]

Secondly in VQB v Secretary to the Department of Justice[18], his Honour stated:

The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.[19]

[17]JGF [2013] VCAT 1728 [25].

[18][2013] VCAT 789 (‘VQB’).

[19]VQB [2013] VCAT 789 [36].

The Deputy President referred to the evidence of LRB’s character witnesses on this point. As previously mentioned, James said that he would allow LRB unsupervised contact with young people. Philip had in fact allowed such unsupervised contact. Marlene, with whom LRB had shared a house, had regularly allowed LRB unsupervised contact with her own daughters, which contact the Deputy President considered to be a ‘significant example relevant to the Applicant’. Having considered that evidence, the Deputy President was satisfied that a reasonable person would allow their children unsupervised contact with LRB while he engaged in child-related work.

Section 26A(4)(b) – Unjustifiable risk to the safety of children

The Deputy President then considered s 26A(4)(b), which required that the Tribunal be satisfied the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. He noted that, as the provision is directed towards any child-related work, it imposes a significant barrier to applicants. He referred to decisions that confirmed the overlap between the two paragraphs of s 26A(4),[20] and which established that ‘unjustifiable risk’ is a concept to be applied in all the circumstances of each case, with specific regard to sexual or physical safety but perhaps extending to other forms of harm.[21]
[20]Secretary to the Department of Justice and Regulation v OUX (a pseudonym) [2018] VSCA 178 [38] (Priest, Beach and Weinberg JJA).
[21]Maleckas (LKQ) v Secretary, Department of Justice (2011) 34 VR 23; ZZ [2013] VSC 267.

The Deputy President considered that LRB’s engagement in any form of child-related work would not pose an unjustifiable risk to the safety of children. This was because on the evidence he was not a paedophile, was not sexually deviant, had not reoffended and showed no risk of reoffending.

Section 26A(5) – consideration of the public interest

Taking into account the matters referred to in s 26A(3) and (4), the Deputy President stated that he was satisfied that giving an assessment notice to LRB would not pose an unjustifiable risk to the safety of children.[22] Accordingly, s 26A(5) allowed the Tribunal to direct the Secretary to give LRB an assessment notice if it considered that doing so would be in the public interest.
[22]LRB [2018] VCAT 1351 [132].

The Deputy President referred to several public interest factors that he considered weighed in favor of granting LRB an assessment notice. These were the public interest in the CFA having a body of enthusiastic and willing volunteers, the public interest against LRB being excluded from the workforce by his inability to hold an assessment notice, and the public interest in recognizing that LRB could be redeemed and did not need to be punished again by the operation of the Act. He also took into account LRB’s good character as described by his three character witnesses, and the lack of any evidence that he abused alcohol or drugs, had any thoughts of suicide or self-harm, or had anything describable as a psychiatric condition. The Deputy President considered that it was in the public interest to direct the Secretary to grant LRB an assessment notice.[23]
[23]Ibid [133].

The Tribunal’s conclusion and the Secretary’s application to the Court

Accordingly, the Tribunal ordered the Secretary to grant LRB an assessment notice.

As previously mentioned, the Secretary now seeks leave to appeal the Tribunal’s orders to this Court under s 148(1) of the VCAT Act.

The Court’s power to revoke the assessment notice

As a preliminary to the substantive arguments about the validity of the Tribunal’s orders, LRB first argued that the Court had no power to make the orders that the Secretary sought.

LRB’s submissions

LRB argued that the legal effect of the Tribunal’s decision ended when the Secretary complied with its direction to issue an assessment notice to LRB. The assessment notice would thereafter remain valid under the Act for a period of five years, unless it was either revoked under s 21C or surrendered under s 24. However, as outlined in ss 21A and 21C, an assessment notice can only be revoked by the Secretary, and then in limited circumstances, which did not exist in the present case.

Accordingly, LRB submitted that once the Secretary complied with the Tribunal’s decision and granted him an assessment notice, that notice was no longer governed by the Tribunal’s order, but rather by the regime in the Act. Therefore, the orders sought by the Secretary in her summons would be futile even if her appeal succeeds. The legal effect of the Tribunal’s decision was spent and the assessment notice would remain valid. As the Tribunal’s decision has no continuing legal effect, a remedy in the nature of certiorari was not available.[24]
[24]LRB relied on the statement of the majority in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 (French CJ, Crennan, Bell, Gageler and Keane JJ), Ainsworth v Criminal Justice Commission (1992) 175 CLR 149, 159 (Brennan J) and Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149,159 (Brennan CJ, Gaudron and Gummow JJ).

While this case involved an attempt to set aside the Tribunal’s orders using the statutory mechanism of s 148, rather than the writ of certiorari, LRB submitted that the Court could not set aside a decision to which administrative effect had been given.

LRB suggested that the Secretary should have instead sought a stay of the Tribunal’s orders pending this appeal, rather than complying with the orders that it would later challenge. However, he contended that the time to seek a stay had passed.

Furthermore, LRB submitted that s 148(7) of the VCAT Act did not enable the orders sought. [25] That sub-section provides for the following orders on appeal:
[25]LRB referred to Osland v Secretary to the Department of Justice (2010) 241 CLR 320; Walia v Staycool Heating & Air Conditioning [2010] VSC 565 (Osborn J) and Maund v Racing Victoria [2015] VSCA 276 (Cavanough AJA).

(a) an order affirming, varying or setting aside the order of the Tribunal;
(b) an order that the Tribunal could have made in the proceeding;
(c) an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;

(d) any other order the court thinks appropriate.

LRB argued that the power contained in s 148(7)(d) was confined to ancillary orders that facilitate or implement a substantive decision. The power it conferred was not at large and did not extend to interfering with an instrument that is governed by another Act.

The Secretary’s submissions

The Secretary submitted that the Court possessed power to make the orders she seeks under s 148(7)(a) of the VCAT Act. She submitted that the issue of the assessment notice to LRB was the legal consequence or effect of the Tribunal’s decision. That assessment notice was in effect the grant of a right, as it gave LRB the right to undertake child-related work. LRB’s right to hold an assessment notice, and therefore participate in child-related work, flowed from the orders of the Tribunal that she challenged. If they were set aside, then the assessment notice would also fall.

Accordingly, the orders of the Tribunal do continue to have continuing effect or consequence so that an order in the nature of certiorari would be available, if her arguments succeeded.[26] As those orders were affected by the errors of law alleged by the Secretary, they should be set aside. That would remove the legal foundation for LRB’s current assessment notice, as his power to hold that notice stems only from the Tribunal’s orders.
[26]Applicant’s submissions in reply [65].

Analysis

Because I decide later in this judgment that leave to appeal should be refused, it is unnecessary to decide this point. However, if it had been necessary for me to decide the point, I would have accepted the Secretary’s submissions. I consider that the effect of s 148(7)(a) and (d) is sufficiently wide to permit the orders sought and that they would be associated with or incidental to the determination of the appeal. In my opinion, they permit the setting aside of a notice that has been issued on the authority of a Tribunal decision, where that decision has itself has been set aside. In Osland v Secretary, Department of Justice,[27] French CJ, Gummow and Bell JJ stated that s 148(7) did not enlarge the Tribunal’s jurisdiction, but conferred powers on the court in aid of its exercise[28], while Hayne and Kiefel JJ stated that:

Paragraph (b) of s 148(7) provides that the Court may make an order that the Tribunal could have made in the proceeding. The power to make such an order, or the other orders listed in s 148(7), arises only following review of the Tribunal's decision for legal error. Section 148(7) does not operate to expand the jurisdiction given by s 148(1)(a). Although expressed in wide language, the powers given by s 148(7) are only to be exercised as a remedial consequence of dealing with an error of law.[29]

[27](2010) 241 CLR 320.

[28]Ibid 332 [19].

[29]Ibid 353 [78] (citations omitted).

Any other conclusion would undermine the capacity of the Court to give effect to a successful appeal, and it is most unlikely that Parliament would have intended that outcome.

Substantive submissions

The Secretary‘s notice of appeal contained three questions of law:

1.In respect of a Category A application, when the Tribunal is determining ‘the nature and gravity of the offences and its relevance to child-related work’ pursuant to s 26A(3)(a) of [the Act], whether the Tribunal should have regard to a more serious offence of a similar character (an offence that LRB was not charged with) and accordingly determine that the offences to which LRB were found guilty were “less grave” than other sexual offences.
2.In respect of a Category A application, when the Tribunal is considering the ‘reasonable person/parent test’ at s 26A(4)(a) of [the Act], whether the Tribunal is to equate the ‘reasonable person/parent’ with the views and opinions of a character witness called by LRB?
3In respect of a Category A application, in considering whether the ‘public interest test’ pursuant to s 26A(5) of [the Act], whether the Tribunal made an error of law by taking into account irrelevant or incorrect considerations when applying the public interest test.

The Secretary’s proposed grounds of appeal in connection with those questions of law were lengthy. They are summarised below where the questions of law to which they relate are discussed.

The first question of law – the nature and gravity of LRB’s offences

The first question of law and related grounds of appeal concerned the Tribunal’s consideration of the factor contained in s 26A(3)(a) of the Act: ‘the nature and gravity of the offence and its relevance to child-related work’. This consideration was dealt with in paragraphs [37] to [52] of the Tribunal’s reasons. The Secretary submitted that the Tribunal particularly erred in the following passage:

Having regard to the above evidence, the nature of the offence is clear and it was somewhat grave. I consider that, even though the sexual acts committed by the Applicant on the boy make this proceeding a “Category A” matter for the purposes of the WWC Act, they were less grave than had the Applicant sexually penetrated the boy. I take this view because the Crimes Act puts criminal sexual acts in a hierarchy, with rape (intentional sexual penetration of another without consent and without a reasonable belief of consent) at a greater level of gravity than sexual assault and associated sexual offences.[30]
[30]LRB [2018] VCAT 1351 [52].

The Secretary’s submissions

The Secretary submitted that in paragraphs [37]-[52] the Tribunal took an irrelevant consideration into account, being the gravity of LRB’s offending as considered in the legislative scheme of the Crimes Act. Had it not taken this factor into account it would have considered that LRB’s offences, as they fell into the most serious category identified by the Act, were ‘very grave’.

The proposed grounds of appeal included that it was not open to the Tribunal to consider the nature and gravity of the offences that LRB had been found guilty of, all of which were category A offences, and then seek to lessen their gravity by referring to another offence in the Crimes Act that the Tribunal considered to be ‘at a greater level of gravity’ than the offences of which LRB had been found guilty. The Secretary submitted that Tribunal in considering the criterion in s 26A(3)(a) took an irrelevant consideration into account by finding that the offences of which LRB had been found guilty were less serious ‘than had [LRB] sexually penetrated the boy’.[31]
[31]Proposed grounds of appeal 1.6-1.9.

The Secretary submitted that the only relevant scale of gravity for the Tribunal was that provided by the Act itself, namely its division of offences into categories A, B and C. As there was no sliding scale within each of these categories, Parliament must have intended for each offence in the same category to be considered equally grave.

Therefore, while the Secretary acknowledged that the Tribunal was obliged to consider the facts and circumstances of LRB’s offending, it could not assess the gravity of his offending by reference to a scale of offences based on the seriousness attached to them by the Crimes Act. However, the Secretary accepted that the Tribunal was allowed to compare different conduct that constituted the same offence, but could not compare the seriousness of different offences.

LRB’s submissions

LRB submitted that the Secretary had not established that the alleged irrelevant consideration, being the comparison of LRB’s offending with different offences, was, on the proper construction of the Act, one which the Deputy President was bound to ignore.[32]
[32]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

Secondly, LRB submitted that upon the proper construction of the Act, the gravity of the offence as indicated by the different penalties imposed by the Crimes Act could be taken into account. Section 26A(3)(a) required an evaluation of the gravity of offending. As the Crimes Act rendered LRB’s conduct criminal offences, it was reasonable to use the penalty range imposed by that Act for other offences as a measure of the gravity of his offences.

Thirdly, he submitted that the adoption of the Secretary’s submission would remove the effect of s 26A(3)(a). The assessment of the gravity of the offences committed by an applicant required by s 26A(3)(a) only occurred after an application was placed into category A. If the Act only permitted the gravity of the offence to be assessed by its category A, B and C classification system, then the assessment of gravity under s 26A(3)(a) could only ever produce a conclusion that it involved category A offending. The same would hold true for category B applications and category C applications.[33] Parliament could not have intended this result as there were other measures of the nature and gravity of the offending.
[33]This is because the assessment of the nature and gravity of offending required under s 26B(1) read with s 13(2)(a) only occurs after an offence is categorised as a category B application, and the assessment of the nature and gravity of offending under s 26C(1) when read with s 14(3)(a) only occurs after an application is categorised as a category C application.

Fourthly, LRB denied that the Tribunal used the scale of gravity in the Crimes Act to lessen the gravity of LRB’s offending. Rather, the Tribunal emphasised the seriousness of LRB’s offending, and indeed concluded that its gravity weighed against his application. Therefore, even if the Tribunal had erred as the Secretary alleged, the error was not material, because the Tribunal would have reached the same decision in any event and therefore relief should be refused.

Analysis

I do not accept the Secretary’s submission that the Tribunal’s decision involved the error raised in the grounds of appeal related to the first question of law. I consider that the Tribunal took into account the nature and gravity of the offences and was permitted to consider aspects of LRB’s offences beyond their categorisation as category A, B or C matters.

The words ‘nature and gravity’ are wide and entitled the Tribunal to consider the details and circumstances of the offences, including the penalties that the Crimes Act provided for those offences compared with other offences. That is what the Tribunal did. But it also considered a number of other circumstances, such as the psychological effect of the offending on the victim at the time,[34] the power dynamic between LRB and the victim,[35] the victim’s lack of consent even considered separately from his legal inability to consent,[36] and LRB’s concession that there was a ‘large age difference’ between him and the victim.[37]
[34]LRB [2018] VCAT 1351 [42].
[35]Ibid [49].
[36]Ibid [50].
[37]Ibid [51].

Section 26A and paragraph (3)(a) applies only to the consideration of applications involving category A offending. The consideration of the nature and gravity of such offences must extend beyond the fact that they are category A offences, because each of the three categories contain many different offences.

The argument that it was not open to the Tribunal to consider that LRB had not committed a more serious category A offence ignored the requirement that the decision maker consider the ‘nature and gravity of the offence’. The Tribunal did consider those matters.

The second question of law – the application of the ‘reasonable person’ test

The second question of law and associated proposed grounds of appeal concerned s 26A(4)(a) of the Act, and its requirement that in making an assessment under s 26A(3) the Tribunal must be satisfied that ‘a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work’. The Secretary took issue with paragraph [116] of the Tribunal’s decision where, after referring to the decisions of JGF and VQB, it stated that:

As to section 26A(4)(a), Marlene gave evidence that she had allowed the Applicant to have contact with her 2 daughters when they were aged 10 and 11 years. Because Marlene and the Applicant had shared a house for a period of 3-4 years, the Applicant’s contact with Marlene’s daughters had been regular and of long standing. James said that he “would” – but not that he “had” – let the Applicant have unsupervised contact with his 3 children. Philip said he had observed the Applicant interact with children, who I gather to include the two 16-year-olds in the Brigade, and saw the Applicant as a role model and a person who acts in the best interests of the children. Clearly, because Philip had not prevented this, when he had the authority to do so, he had allowed it. The two 16-year-olds were children in the Brigade, but not Philip’s own children. Nevertheless as a legal practitioner Philip would be well aware of the CFA’s duty of care and in this respect I would say that he would treat his own children in the same manner as the two 16-year-olds. Put together, I have actual evidence of at least one reasonable person, Marlene, who did allow her children to have direct contact with the Applicant, although not on an occasion when the Applicant was engaged in child-related work. Meanwhile, I have evidence from James and Philip about their attitudes to the Applicant when engaged in child-related work, but not in relation to their own children.[38]
[38]Ibid [116].

The Secretary’s submissions

The Secretary argued that paragraph [116] contained an error of law by the Tribunal, as it had substituted Marlene, one of LRB’s character witnesses, in place of the hypothetical reasonable person whose response was to be applied.

The Secretary submitted that the reasonable person was to be taken as having all the materials that the Tribunal had and as having a reasonable degree of scepticism and caution but still an open mind about the possibility of rehabilitation. Further, the reasonable person test encompassed a wide range of possible fact situations and possible ages of the hypothetical child who may have contact with the applicant. It applied to employment as varied as an assistant teacher in a classroom, undertaking unsupervised homecare of a three year old, or accompanying 14 year olds on an otherwise unsupervised overnight camp. But, the Tribunal, by viewing the reasonable person test through the prism of one particular person, who may or may not have been reasonable, ignored these complexities.

The Secretary submitted that the Tribunal erred by not determining the question from the perspective of the hypothetical reasonable person on an objective basis. The Tribunal did not have regard to the personal characteristics of the reasonable person’s own child (other than age) in deciding whether he or she would allow the child to have direct contact with LRB. The Tribunal did not consider the full aspect and application of the test in s 26A(4)(a) as it must be applied to ‘any type of child-related work’ and in respect of a hypothetical reasonable person who is a parent in a broad range of situations.[39]
[39]Proposed grounds of appeal 2.7-2.11.

If the test had been properly applied the Tribunal’s decision could have been different, as a reasonable person might not allow his or her child direct contact with LRB once they knew of the number and nature of his offences.

LRB’s submissions

LRB denied that the Tribunal had wrongly applied the reasonable person test. The Tribunal set out and adopted two statements of Judge Macnamara, in JGF[40] and VQB,[41] both of which dealt with the objective nature of the reasonable person test. Additionally, the Tribunal stated its conclusions as ‘I am satisfied that a reasonable person would allow his or her child to have direct contact with the Applicant…’.[42] Although it explained that the evidence regarding Marlene’s daughters was ‘a significant example relevant to the Applicant,’[43] the Tribunal emphasized that Marlene’s evidence was used as no more than an example.
[40][2013] VCAT 1728 [25].
[41][2013] VCAT 789 [36].
[42]LRB [2018] VCAT 1351 [119].
[43]Ibid [118].

LRB emphasized that that an error of law requires more than ‘looseness in the language of the Tribunal’ or ‘unhappy phrasing of the Tribunal’s thoughts’, and that the Tribunal’s reasons should not be scrutinised ‘minutely and finely with an eye keenly attuned to the perception of error’.[44] He contended that the Secretary’s submissions relied on exactly this sort of loose language and unhappy phrasing, and should therefore be disregarded.
[44]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

Secondly, LRB submitted that even if the Secretary’s submissions about the second question of law established an error by the Tribunal, the outcome of the case would have been no different, as the Tribunal found that LRB did not pose an unjustifiable risk to children, a finding that is not under challenge. Given that finding, any correct reapplication of the reasonable person test would inevitably result in a conclusion that a reasonable person would allow their children to have direct contact with LRB, while he was engaged in child-related work. Accordingly, even if the Secretary established an error of law, relief should be denied.

Analysis

It is well established that the reasons of a Tribunal should not be scrutinised too closely for error. In Secretary to the Department of Justice and Regulation v OUX (a pseudonym),[45] the Court of Appeal recently stated that:

Under s 148 of the VCAT Act, this Court’s jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a ‘significant constraint’ upon the role of the Court in reviewing a Tribunal’s decision. This ‘practical as well as principled restraint’ means that the Court ‘will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts’. Hence, the reasons of the Tribunal for the decision under review ‘are not to be construed minutely and finely with an eye keenly attuned to the perception of error’. The reality is ‘that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’. We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal’s reasons, bearing the foregoing principles steadily in mind.[46]

[45][2018] VSCA 178.

[46]Ibid [36] (citations omitted).

A fair reading of the Tribunal’s reasons does not permit the conclusion that it equated the test in s 26A(4)(a) with Marlene’s views or those of any other character witness. The Deputy President referred to much evidence in considering the proper application of s 26A(4)(a). He took into account the overlap of s 26A(4)(a) with s 26A(4)(b), an overlap which he would not have needed to note had he equated the test in s 26A(4)(a) with Marlene’s views.

The Deputy President noted the objective nature of the reasonable person test and correctly applied it. He made a detailed analysis of the character witness evidence, and noted its limitations. He did not base his assessment of the ‘reasonable person’ test in s 26A(4)(a) solely on that evidence. He would have erred had he not taken the character evidence into account, as long as he did not substitute it for the proper application of the reasonable person test. I do not consider that the Deputy President made any such error. There was no objection to that evidence being led and it is commonly led in such cases. For instance, the applicant in LLF v Secretary to the Department of Justice and Regulation (Review and Regulation)[47] led evidence from four character witnesses,[48] a fact noted without criticism by the Court of Appeal.[49] In VTN v Secretary to the Department of Justice and Regulation (Review and Regulation⁾[50] the Tribunal reported having ‘read a number of very positive references and heard character evidence’.[51] In JGF, the Tribunal heard evidence of character from the applicant’s then employer, his wife, his father-in-law and from a friend of the family.[52] And in McIntyre v Secretary to the Department of Justice and Regulation (Review and Regulation)[53], the Tribunal considered that ‘the reasonable person would be impressed by the evidence of Mr McIntyre’s character witnesses. They would consider those witnesses to be sensible, evenhanded and representative of the general community.’[54] This Court dismissed an appeal from that decision.[55]
[47][2017] VCAT 1371.
[48]Ibid [38]-[45].
[49]Secretary to Dept of Justice and Regulation v LLF (A Pseudonym) [2018] VSCA 155 [13].
[50][2018] VCAT 54.
[51]Ibid [88].
[52]JGF [2013] VCAT 1728 [7].
[53][2018] VCAT 1041.
[54]Ibid [84].
[55]Secretary to the Department of Justice and Regulation v McIntyre [2019] VSC 105 (Garde J).

The third question of law – the public interest test

The Secretary’s third question of law concerned the Tribunal’s application of s 26A(5), which provides that:

If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.

In support of this third question of law, the Secretary referred to paragraphs of the Tribunal’s reasons, in which it considered some of the public interest factors relevant to LRB’s application. I will set out those paragraphs in full:

First, there is a public interest in The Country Fire Authority having a body of enthusiastic and willing volunteers. Philip has observed that the Applicant ‘always’ volunteers for activities in the CFA, which he said cannot be said for all CFA participants. The activities in which the Applicant participates in the CFA supports the community.
Secondly, Bell J has said that the right of persons to work and to exercise freedom of choice of work, and to engage in other civil activity, such as volunteering in a community organisation are legitimate interests worthy of protection. It is in the public interest for the Applicant, an adult of 39 years, not to be excluded from a wide range of employment opportunities. In practical terms, a person seeking employment has very little prospect of convincing a potential employer that the proposed job does not require the employee to have an assessment notice under the WWC Act, even if objectively that is so. The Applicant has given evidence that the WWC Act has limited his employment prospects in the past, and there is a public interest against the Applicant being excluded from the workforce.
Thirdly, there is a public interest in recognising, consistently with the comments made by Judge Macnamara in relation to the thinking of a reasonable person, that once a person has offended, he or she can be redeemed. The offences were committed around 21 years ago and the Applicant has been dealt with by the criminal law. There is a public interest in enabling the Applicant not to be punished again by the WWC Act.
Fourthly, the Applicant has been recognised by his three witnesses of displaying good character in the various periods they have known him. There is no evidence that the Applicant abuses alcohol or drugs, that he has thoughts of suicide or self-harm, or has anything that could be described as a psychiatric condition.[56]
[56]LRB [2018] VCAT 1351 [135]-[136].

The Secretary’s submissions

In support of the third question of law and associated grounds of appeal, the Secretary submitted that LRB’s evidence revealed that it was his criminal record, and not his inability to acquire a working with children’s check, that had prevented him finding work. She stated that the Tribunal erred by conflating these two reasons for LRB’s inability to find work. LRB’s evidence that ‘he cannot now even secure a basic job in the security industry because of [the] Act’ was unsubstantiated, and he had not detailed his efforts to gain work. The Tribunal erred in applying the public interest test in s 26A(5) by equating LRB’s previous adverse employment experiences due to his criminal history with him not having an assessment notice under the Act.[57]
[57]Proposed ground of appeal 3.6.

Secondly, she submitted that the Tribunal’s statement that there was ‘a public interest in enabling LRB not to be punished again’[58] by the Act misunderstood and misapplied its purpose, which was to protect children from sexual or physical harm and not to punish offenders. In its focus on the ‘punishment’ inflicted on LRB the Tribunal had erred, because the correct approach would have been to instead apply the public interest test through the prism of ss 1(1) and 1A, giving the protection of children paramountcy. [59]
[58]LRB [2018] VCAT 1351 [136].
[59]Proposed grounds of appeal 3.7-3.8.

The Secretary submitted that the Tribunal was not permitted to strike a balance between various considerations under s 26A(5), but that s 1A instead required that the protection of children ‘be considered above each, every and all other considerations’ and ‘expressly operates to prevail over any and all considerations, including an individual’s right to work’. She referred to the second reading speech of the Working with Children Amendment (Ministers of Religion and Other Matters) Bill 2014, in which the Attorney-General stated regarding s 1A that:

The introduction of this principle will put beyond doubt that the protection of children is a more important consideration than any other consideration, such as the individual’s right to work.[60]

[60]Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2653 (Robert Clark, Attorney-General).

The Secretary submitted that Bell J’s judgement in ZZ[61] was delivered before, and had been superseded by, the introduction of s 1A. She did however refer to his Honour’s decision in Secretary, Department of Human Services v Sanding[62] where, in considering the paramountcy provisions contained in the Children Youth and Families Act 2005, he stated that:

The best interests of the child is a long-standing principle of the parens patriae jurisdiction of the courts. The history of that jurisdiction was examined extensively by Lord Guest in J v C, which concerned 1925 guardianship legislation. His Lordship said the “dominant consideration has always been the welfare of the infant” and cited with approval this statement by Danckwerts LJ in the case of Re Adoption Application 41/16: “there can only be only one ‘first and paramount consideration’, and other considerations must be subordinate”.[63]
…
While the best interests of the child may be the paramount consideration, there may be other relevant interests to consider, such as the interests of parents. When that is so, the other interests are ultimately subordinate to the child’s interests. Thus, in AMS v AIF, Kirby J described the best interests of the child as “the touchstone for the ultimate decision”. His Honour said the touchstone was “not, as such, the wishes and interests of the parents”. In U v U, a child relocation case, Gummow and Callinan JJ (Gleeson CJ and McHugh J agreeing) said the objective is always to achieve the child’s best interests and that was the “overarching issue”. Their Honours held that “whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration of the welfare of the child if that were to be adversely affected by a movement of a parent”. As we have seen, to like effect was Re K (Infants). There the House of Lords held that, where the interests of the parents and the child conflicted, “the welfare of the child must dominate”.[64]

[61][2013] VSC 267.

[62](2011) 36 VR 221 (‘Sanding’).

[63]Ibid 227 (citations omitted).

[64]Ibid 255 (citations omitted).

The Secretary made detailed submissions regarding the legal concept of parens patriae and its interaction with the paramount consideration in s 1A, arguing that the Act was part of a ‘protective jurisdiction’ in which the paramountcy principle should be uniformly applied. She referred to other authorities that had considered the meaning of paramountcy. She submitted that there could be no balancing of factors or interests under the Act, and that the wishes of the applicant must always be overridden by any need to protect children from an unjustifiable risk of harm.

When asked upon what evidence the Tribunal could have relied to establish that LRB posed any risk to children, counsel for the Secretary submitted that the very fact of LRB’s offending constituted evidence of that risk in the following responses to questions asked during submissions:

HIS HONOUR: But what was the evidence that the tribunal could have assembled or relied on to say that this man posed any risk to children?
COUNSEL: The offending and the facts surrounding the offending.
HIS HONOUR: Yes.
COUNSEL: Those facts – and certainly time, the passage of 20 years is one factor. But the offending are the facts. And that had to be balanced against the expression of the applicant and his two friends that that wasn't so.[65]

[65]Transcript of Proceedings, Secretary of the Department of Justice and Community Safety v LRB (Supreme Court of Victoria, Ginnane J, 11 February 2019), 30 (‘T’).

The Secretary’s approach was that although there was no specific evidence of any risk of future harm by LRB to children, criminal offences committed 21 years ago meant that he was nevertheless too great a risk to children to be given an assessment notice.

LRB’s submissions

LRB first argued that the Tribunal had heard evidence regarding the effect of the Act on his ability to find employment. This evidence was referred to in the following passage:

In his evidence in chief the Applicant said that obtaining a working with children’s check was absolutely critical to him. He said that currently and in the current climate – by which he expressly meant the climate created by the exposure of churches and other organisations in the Royal Commission into Institutional Responses to Child Sexual Abuse – many organisations and employers require a working with children check when considering a person’s application for employment. The Applicant said he has been unemployed since November 2017, and that whilst he had had secure employment in the past, he cannot now even secure a basic job in the security industry because of the WWC Act. He has been denied employment with the Metropolitan Fire Brigade. He has been denied employment in the call centre in the Emergency Services Telecommunications Authority (“ESTA”) which administers the 000 telephone call facilities for emergency services, because the employer had concerns around the security of its database, a matter seemingly far removed from the objects of the WWC Act. The Applicant said he thought obtaining a working with children check would show potential employers that he was not a threat. Further, the Applicant wrote of these job applications, in his letter to the Tribunal dated 6 July 2018, that, “There has always been a fear in the back of my mind that my past will continue to follow me and prevent me from doing what I love, no matter what time passes and what employment I attempt to gain”.[66]

[66]LRB [2018] VCAT 1351 [77].

LRB submitted that the Tribunal had referred to his statement that his employment prospects had been limited, and considered three examples of that limitation. Viewed in context, the Tribunal had the necessary evidence before it to find as it did.

Secondly, LRB submitted that the Tribunal clearly understood that the Act’s purpose was protective rather than punitive, and set out the pertinent provisions of the Act that made that clear.

Thirdly, LRB submitted that the paramountcy given under the Act to the protection of children did not mean that the Tribunal was barred from considering other relevant factors. There was a public interest in allowing people to work and volunteer as recognized by Bell J in ZZ[67] The Tribunal did not err by giving weight to this factor as one among many, while still giving paramountcy to the protection of children. Further, as the Tribunal found that LRB was not a danger to children, it is unclear how any error associated with the third question of law could have led it to a different result. LRB said that the Tribunal’s finding had the effect of foreclosing any other decision on the public interest, referring to Morris J’s statement in PJR v Secretary to the Department of Justice (Occupational and Business Regulation)[68] that:

It is not appropriate to seek to define the boundaries of what is in the public interest. But I do think it will usually be the case 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.[69]
[67][2013] VSC 267.
[68][2006] VCAT 2455, approved by Bell J in ZZ [2013] VSC 267 at [199]-[201].
[69]Ibid [45].

Analysis

Before this Court, the Secretary’s overriding challenge to the decision of the Tribunal was that it had failed to properly take s 1A of the Act into account, especially with regard to its application of the public interest test in s 26A(5). I will therefore consider the case law regarding the manner in which the Tribunal must take s 1A into account, and the way in which the Tribunal did take it into account in this matter, before dealing with other matters that the Secretary advanced in respect of the third question of law.

In the recent judgment of Secretary to the Department of Justice & Regulation v McIntyre[70], Garde J, after reviewing the relevant second reading speech, came to the following important conclusions regarding the operation of s 1A of the Act:

(a)The ‘paramount consideration’, expressly operates to prevail over any and all other considerations, specifically including an individual’s right to work;
(b) The ‘paramount consideration’ is of the same genus of ‘protective legislation’ that protects children, such as the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’);
(c) The protective nature of the purpose and language of the WWC Act, together with the paramount consideration, have resulted in a ‘protective jurisdiction’ created by [the] Act, for the protection of children in the context of persons who wish to work with them; and
(d) This legislative development reflects the historic evolution of the English common law doctrine of parens patriae, where the State assumes a protective responsibility for vulnerable children.[71]

[70][2019] VSC 105 (‘McIntyre’).

[71]Ibid [62].

His Honour also referred to the reasons of Richards J in Secretary to the Department of Justice and Regulation v VTN[72] in which the Secretary submitted that there had been a failure to consider and apply s 1A of the Act. Her Honour stated that:

Again, I must read the Reasons fairly, in context and as a whole, and should not be overzealous in searching for error. Taking that approach, it is clear that the Deputy President’s attention was properly focused on the protective purpose of the legislation and that she gave genuine and realistic consideration to the protection of children from harm.
It would perhaps have been preferable for the Reasons to have referred to s 1A, but the provision is not a verbal formula that must be recited like a mantra in reasons for decision. What matters is that VCAT does, in substance, give paramount consideration to the protection of children from harm.
Further, s 1A does not exclude matters other than the protection of children from consideration in assessing unjustifiable risk and the public interest. Indeed, [the] Act requires that a range of other considerations be taken into account, relevantly here the matters set out in s 26A(3), (4) and (5). Section 1A was inserted into [the] Act to make it clear that ‘the protection of children is a more important consideration than any other consideration, such as the individual’s right to work’. Other considerations may still bear on the assessment of whether an identified risk is or is not unjustifiable and whether, in all the circumstances, it is in the public interest to direct that a notice be given. In this regard it is important to recall that a key finding of VCAT in this case was that ‘VTN poses a low threat to children’.[73]

[72][2018] VSC 296 (‘VTN’).

[73]Ibid, [43]–[46] (citations omitted) (emphasis in original), quoted in McIntyre [2019] VSC 105 at [108].

In McIntyre, Garde J acknowledged that the Tribunal in that case had not expressly referred to s 1A in its consideration of the public interest test, but stated that ‘what matters most is that the Tribunal does, in substance, give paramount consideration to the protection of children from harm.^’[74] His Honour examined the Tribunal’s reasons and found that they ‘considered children and their protection and safety at every turn’,[75] concluding that:

In my view, on a fair reading of the Tribunal’s reasons, it is plain that the predominant concern of the Tribunal was the protection of children from sexual and physical harm. It was not overlooked. The paramount consideration in s 1A of the Act was examined by the Tribunal and given effect from a number of different standpoints. It pervades the Tribunal’s reasons. It is woven into the Tribunal decision. The paramount consideration was at the very heart of the Tribunal’s decision.[76]

[74]McIntyre [2019] VSC 105 [112].

[75]Ibid [113].

[76]Ibid [118].

Accordingly, his Honour held that the failure of the Tribunal to mention s 1A specifically, or even implicitly, when applying the public interest test was not an error.[77]
[77]Ibid [118]-[119].

In this case, although the Deputy President did not consider s 1A expressly when applying the public interest test, he devoted much of his decision to considering whether giving LRB an assessment notice would pose an unjustifiable risk to the safety of children.[78] For example:
[78]LRB [2018] VCAT 1351 [34]-[132]

(a) The Deputy President identified and set out the terms of ss 1 and 1A of the Act;[79]
[79]Ibid [29]-[31].

(b) The Deputy President noted that LRB had not committed any similar offences since his offending, nor had he any subsequent criminal history whatsoever;[80]
[80]Ibid [56].

(c) The Deputy President stated that ‘the evidence does not suggest that there is any likelihood of future threat to a child caused by the applicant’;[81]
[81]Ibid [103].

(d) The Deputy President examined the evidence of Dr WG, who said that LRB showed no ‘sexual deviation’ nor ‘any future danger to the community at large’;[82]
[82]Ibid [104].

(e) The Deputy President considered the opinion of the psychologist Ms AC, including the Secretary’s submissions that her opinion should be given little weight,[83] who wrote that LRB ‘poses no risk to children and the community at large’;[84]
[83]Ibid [131].
[84]Ibid [105]-[106].

(f) The Deputy President considered the evidence of Philip and Marlene, that from their first-hand observations they did not consider LRB to be sexually deviant;[85]
[85]Ibid [108].

(g) The Deputy President again stated that he was ‘satisfied that there is no likelihood of future threat to a child caused by the Applicant’;[86]

(h) The Deputy President summarised the evidence from Dr WG, the Victorian Institute of Forensic Mental Health and Ms AC, from which he concluded both that ‘the Applicant is not a paedophile’, and that his engagement in child-related work would not pose an unjustifiable risk to the safety of children;[87]

(i) The Deputy President summarised his conclusions and, having regard to the relevant considerations set out in s 26A(3) and (4), as well as the Act as a whole, stated that he was satisfied that the giving of an assessment notice to the Applicant would not pose an unjustifiable risk to the safety of children.[88]

[86]Ibis [110].

[87]Ibid [129].

[88]Ibid [132].

Reading the Deputy President’s reasons as a whole reveals that he did give paramountcy to the matters contained in s 1A. He focused on the centrality of both s 1A in particular and the protection of children in general.

It is also relevant to refer to the judgment of Maleckas (LKQ) v Secretary, Department of Justice,[89] in which Kyrou J described ‘a chance of future threat’ posed by the applicant as a relevant consideration.[90] This consideration was clearly present in the Deputy President’s reasoning and it can also be concluded that he undertook his assessment in a rational, objective and evidence based manner. The following passage from McIntyre could apply equally to the Tribunal’s decision in this case:

In terms of the indicia discussed in ZZ v Secretary Dept of Justice, the Tribunal’s evaluation of risk was rational, objective and evidence based. It was not arbitrary, and it was a proportionate decision in the circumstances. The risk which arose from Mr McIntyre’s past criminal behaviour was offset by the positive factors which the Tribunal listed. The Tribunal’s risk assessment was an evaluative judgment that the giving of the notice would not pose an unjustifiable risk to the safety of children.[91]

[89](2011) 34 VR 23.

[90]Ibid 36, considered in McIntyre [2019] VSC 105 at [38].

[91]McIntyre [2019] VSC 105, [97] (citations omitted).

Finally, it is important to note that the public interest test in s 26A(5) was only applied after the Deputy President was satisfied that giving an assessment notice to an applicant would not pose an unjustifiable risk to the safety of children. This was the sequence of consideration required because of the terms of s 26A(5):

(5)If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.

The structure of s 26A therefore ensures that the paramount consideration of the protection of children will substantially influence the eventual determination of the application. It does so by ensuring that any consideration of the public interest test occurs only after the Tribunal has considered the protection of children from sexual and physical harm, and has decided that giving an assessment notice will not pose an unjustifiable risk to the safety of children. If there is an unacceptable risk then an assessment notice will not be provided.

I now turn to the remaining matters arising in respect of the third question of law and its associated grounds of appeal. The Tribunal’s reasons demonstrate that it understood the protective purpose of the Act. I have set out above how the Tribunal’s reasons identify the centrality of that purpose. I add that I do not consider that the Tribunal’s statement that ‘there is a public interest in enabling the Applicant not to be punished again by [the] Act’ revealed a misunderstanding of the protective purpose of the Act. Read in context the passage expressed, perhaps loosely, the Tribunal’s consideration that the effect of a negative assessment on LRB was one matter of the public interest. While his negative assessment notice was not intended as a punishment, it could nonetheless have a significant adverse effect on him and his community work. The Tribunal was entitled to take this factor into account as an aspect of the public interest.

Finally, it is clear that the Tribunal had sufficient evidence to conclude that the lack of an assessment notice would have an adverse effect on LRB. Most of the employment events he described were connected to the disclosure of his convictions,[92] but it cannot be said that they all were. The Tribunal was entitled to state that ‘The Applicant has given evidence that the WWC Act has limited his employment prospects in the past, and there is a public interest against the Applicant being excluded from the workforce.’ This evidence concerned matters of fact which were for the Tribunal to assess.
[92]Transcript of Proceedings, LRB v Secretary to the Department of Justice and Regulation (Review and Regulation) (Victorian Civil and Administrative Tribunal, Deputy President Lulham, 15 August 2018), 45.

Conclusion

The plaintiff has not established error in the Tribunal’s orders or reasons.

Leave to appeal is refused and the proceeding is dismissed.

[2019] VSC 277

2 May 2019