Secretary to Department of Justice and Regulation v CZQ (No 1) - [2018] VSC 760

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 02376

Secretary to the Department of Justice and Regulation	Applicant
v
CZQ (a Pseudonym)[1]	First Respondent
and
Victorian Civil and Administrative Tribunal	Second Respondent

[1]To ensure there is no possibility of identification of the First Respondent’s family members, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the First Respondent.

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JUDGE:	Priest JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2018
DATE OF JUDGMENT:	7 December 2018
CASE MAY BE CITED AS:	Secretary to Department of Justice and Regulation v CZQ (No 1)
MEDIUM NEUTRAL CITATION:	[2018] VSC 760

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ADMINISTRATIVE LAW — Working with Children Act 2005 — Application for assessment notice — Appeal against orders of Victorian Civil and Administrative Tribunal — Whether denial of procedural fairness — Whether failure to have adequate regard to respondent’s criminal history — Leave to appeal refused — Working with Children Act 2005 ss 9, 10, 11, 14, 26C — Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Hanks QC with Mr P Panayi	Working with Children Check Unit, Department of Justice and Regulation
For the First Respondent	No appearance

HIS HONOUR:

The nature of the case

CZQ applied to the Secretary to the Department of Justice and Regulation (‘the Secretary’) on 14 February 2017 for an assessment notice under the Working with Children Act 2005 (‘the Act’), so as to permit him to perform child-related work.[2]
[2]The meaning of ‘child-related work’ is discussed at [10] below.

On 30 October 2017, the Secretary issued CZQ with a negative notice, the practical effect of which was to prevent him from performing child-related work.[3]
[3]See [12]–[13] below.

CZQ applied to the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘the Tribunal’) for a review of the Secretary’s decision to issue him with a negative notice. Despite the application being opposed by the Secretary, on 24 May 2018 a Deputy President of VCAT made orders setting aside the Secretary’s decision.[4] The Secretary was directed to provide CZQ with an Assessment Notice pursuant to s 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) and ss 26C(2) and (3) of the Act.
[4]CZQ v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 798 (‘Reasons’).

Under s 148 of the VCAT Act, the Secretary now seeks the leave of this Court to appeal on a question of law.[5] Two questions of law are set out in the Notice of Appeal, formulated as follows:
[5]Although named as second respondent, adopting the usual course the Tribunal submitted to such order as the Court might make (save as to costs). See R v Australian Broadcasting Tribunal; ex parte Hardiman and Ors (1980) 144 CLR 13, 35-36.

1.In the review of the Secretary’s decision to give a negative notice…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: Secretary to Department of Justice and Regulation v CZQ (No 1) [2018] VSC 760
Case: [2018] VSC 760
Decision Date: 7 December 2018

CaseChat Overview and Summary

The applicant, the Secretary to the Department of Justice and Regulation, sought leave to appeal from the Victorian Civil and Administrative Tribunal (VCAT) in relation to a decision regarding an application for an assessment notice under the Working with Children Act 2005. The respondent, identified as CZQ, was challenging the VCAT’s orders which denied procedural fairness and failed to give adequate consideration to their criminal history. The Court of Appeal was tasked with determining whether the VCAT's decision contained errors of law that warranted an appeal.

The legal issues before the court centred on whether the VCAT had erred in its application of the principles of procedural fairness and in its assessment of the respondent's criminal history. Specifically, the applicant argued that the VCAT had failed to properly consider the respondent's criminal background, which was a relevant factor in determining the risk they posed to children. The court had to assess whether the VCAT had applied the correct legal standards and whether there had been a sufficient regard for the relevant statutory provisions.

The Court of Appeal found that the VCAT had not erred in its decision. The court held that the VCAT had adequately considered the statutory provisions and the principles of procedural fairness. The evidence presented demonstrated that the VCAT had properly weighed the respondent's criminal history against the statutory requirements. The court also found that the VCAT had not failed to give adequate consideration to the criminal history as argued by the applicant. Consequently, the appeal was dismissed, and leave to appeal was refused.

No further orders were made by the court beyond the refusal of leave to appeal. The decision of the VCAT was upheld, and the orders made by the tribunal remained in place. The court’s decision confirmed the VCAT's assessment and the manner in which it had exercised its discretion under the Working with Children Act 2005.

Orders