Secretary to the Department of Justice and Community Safety v Loos
[2025] VSC 107
•17 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01459
| Secretary to the Department of Justice and Community Safety | Applicant |
| v | |
| Gerald Loos | First Respondent |
| Victorian Civil and Administrative Tribunal | Second Respondent |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 December 2024 |
DATE OF JUDGMENT: | 17 March 2025 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v Loos |
MEDIUM NEUTRAL CITATION: | [2025] VSC 107 |
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ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal — Historic allegations of sexual misconduct — Referral by Commissioner for Children and Young People to Secretary to the Department of Justice and Community Safety (‘Secretary’) of ‘substantiated finding’ in investigation — WWC category C reassessment — Where Secretary issued WWC exclusion — Where Tribunal on review issued WWC clearance — Whether Tribunal reversed onus of proof —Whether Tribunal could look behind the finding of substantiated conduct in undertaking its statutory review task —Whether Tribunal misdirected itself as to statutory task — Intersection between s 102 and general procedure of Tribunal under ss 97 and 98 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) — Where witnesses not made available for cross‑examination — Weight to be given to evidence where witness not called — Whether Tribunal denied Secretary procedural fairness — Practice and procedures of Tribunal — Whether material error by Tribunal — Leave to appeal granted — Appeal refused — Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98, 102, 148 — Workers Screening Act 2020 (Vic) ss 65, 78, 86–88, 91, 102, 108 — Child Wellbeing and Safety Act 2005 (Vic) Pt 5A ‘Reportable conduct scheme’ — Secretary to the Department of Justice and Community Safety v TXD [2024] VSCA 169; Craig v South Australia (1995) 184 CLR 163; Patsuris v Gippsland and Southern Rural Water Corporation (2016) LGERA 167; Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178; Maleckas (LKQ) v Secretary, Department of Justice (2011) 34 VR 23; Magee v Boroondara City Council (2011) 182 LGERA 227; Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295; Aldi Foods Pty Ltd v Brimbank City Council [2013] VSC 294, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Panayi Ms S. Tatas | Office of the General Counsel, Department of Government Services |
| For the First Respondent | Ms J. Zhou | Alphastream Lawyers |
| For the Second Respondent | No appearance |
TABLE OF CONTENTS
Introduction
Background and context
Rev Loos
Legislative and procedural basis for the complaints process
The investigation
Allegations of historical misconduct surface
Rev Loos’ suspension process
Kooyoora Investigation Report
Disciplinary processes
Church’s internal disciplinary process
Suspension hearing and determination
Misconduct and fitness for ministry hearing and determination
Assessment by Secretary of Rev Loos’ suitability for WWC clearance
Application for review before the Tribunal
Application to the Supreme Court of Victoria
Questions of law and grounds of review
Statutory context and applicable principles on review
WS Act
VCAT Act
Leave to appeal
The appeal
Question 1: Did the Tribunal create an onus on the Secretary?
Secretary’s submissions
Rev Loos’ submissions
Consideration
Question 2: Did the Tribunal fail to take into account the nature and gravity of the conduct?
Question 3: Did the Tribunal fail to accord procedural fairness to the Secretary?
Secretary’s submissions
Rev Loos’ submissions
Consideration
Dr Young’s report
Character evidence
Conclusion
Orders
HER HONOUR:
INTRODUCTION
The Secretary to the Department of Justice and Community Safety (the ‘Secretary’) applies for leave to appeal and, if leave is granted, to appeal the orders made by the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) on 27 February 2024 in proceeding number Z885/2022 (the ‘Tribunal’s Orders’).[1] The application is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).
[1]The orders and reasons are recorded in the published decision of Loos v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2024] VCAT 167 (‘Tribunal’s Decision’).
The proceeding before the Tribunal was an application for review by Reverend Gerald Loos (‘Rev Loos’) of a decision by a delegate of the Secretary on 8 November 2022 to issue him with a WWC exclusion pursuant to s 91 of the Worker Screening Act 2020 (Vic) (‘WS Act’).
The Tribunal’s Orders set aside the decision of the Secretary and directed the Secretary to issue a WWC clearance to Rev Loos pursuant to the WS Act.[2]
[2]The Tribunal’s Orders are extracted in full at [74] below.
BACKGROUND AND CONTEXT
I set out below a summary of the background to this proceeding, noting that a detailed chronology is also recorded in the Tribunal’s Decision.
Rev Loos
Rev Loos is an Anglican Priest who was born in Sri Lanka and worked there as a priest until early 1997 when he emigrated to Australia. Since 1997, Rev Loos has worked as a priest for the Anglican Church in Victoria (the ‘Church’).
Rev Loos held WWC clearances from 2007 to 2022. He obtained his first WWC clearance in 2007 under the (now repealed) Working with Children Check Act 2005 (Vic). His WWC clearance was renewed on 12 November 2012 and again on 5 December 2017 which he held until the Secretary issued him with a WWC exclusion in November 2022.
The WWC exclusion arises from allegations or reports of historic sexual abuse during Rev Loos’ time studying for the priesthood in Sri Lanka between around 1984 and 1994. These allegations were brought to the attention of the Church’s professional standards office when Rev Loos made an application on 10 July 2019 to carry out the role of incumbent priest at a Victorian parish.
Rev Loos denies all allegations of sexual abuse made against him. No criminal prosecution has been brought. He has, however, been subject to an investigation and disciplinary process conducted by the Church’s Professional Standards Board (the ‘PS Board’) between 2019 and 2022. The clear outcome of the PS Board’s disciplinary process exonerated Rev Loos from all of the allegations in respect of sexual abuse, finding them to be unsubstantiated. The PS Board, chaired by an eminent and experienced Senior Counsel, after a contested hearing in which Rev Loos gave evidence, found that on the balance of probabilities the allegations came to nothing and many appeared to be far‑fetched and absurd.[3] The PS Board found the evidence highly implausible and found no credibility could be given to any part of it.
[3]The Board’s determination came after it conducted a hearing in which both the Professional Standards Committee and Rev Loos were represented by counsel. The PS Board approached its task of assessing the evidence applying the standard of proof, based on the test taken from Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’), that is to establish an allegation that is of reasonable satisfaction on the balance of probabilities.
However, as a consequence of the initial decision by the Church’s Professional Standards Director (the ‘PS Director’) that there was reportable conduct for the purposes of a scheme established under the Child Wellbeing and Safety Act 2005 (‘CWS Act) (the ‘Reportable Conduct Scheme’), a parallel but consequential process was instituted which led to the Secretary issuing a WWC exclusion under the WS Act. The report made to the Commissioner for Children and Young People (‘the Commissioner’) by the initial decision by the PS Director to consider the allegations of such severity set this course. This initial decision by the PS Director, ultimately discredited both in process and substance, has had significant adverse consequences professionally and personally for Rev Loos.
Despite the contested process which critically examined the evidence against Rev Loos (that being the PS Board’s hearing and determinations) found no credible evidence of sexual misconduct, Rev Loos was unable to return to ministry as there is a requirement for him to hold a WWC clearance. It is the Church’s processes under the Reportable Conduct Scheme which enlivened the referral to the Commissioner and then to the Secretary which led ultimately to the issuance of a WWC exclusion.
Whilst the key focus of the proceeding before this Court is whether there is any material legal error in the Tribunal’s decision, given the basis of the Secretary’s appeal, it is relevant to consider the pathway which led to the Secretary’s decision. The Secretary alleges that the Tribunal made a jurisdictional error in failing to properly apply s 108 of the WS Act. In this regard, the manner in which the Tribunal dealt with the evidence of allegations made against Rev Loos is challenged.
Both before the Tribunal and in argument before me, the Secretary maintained that there was ‘substantiated’ sexual misconduct which disentitled Rev Loos from a WWC clearance. This ‘substantiated’ misconduct was the adverse finding made in the Commission for Children and Young People (the ‘Commission’ or ‘CCYP’) investigation report dated 17 March 2021 prepared as a result of the Church’s professional standards investigation, referred to as the ‘Kooyoora Report’ or ‘CCYP Report’ (the efficacy and reliability of which is dealt with in more detail below).
Legislative and procedural basis for the complaints process
The process which deals with professional conduct matters at the Church is prescribed by the Professional Standards Uniform Act 2016 (the ‘PSU Act’). The PSU Act is legislation enacted by the Synod of the Diocese of Melbourne (the ‘Diocese’) which establishes a framework for reporting and investigating complaints made against a Church worker.
Under the PSU Act, Kooyoora Ltd (‘Kooyoora’) is the entity responsible for investigating allegations of sexual abuse concerning Church workers.[4] Kooyoora is employed by the Anglican Diocese of Melbourne and Bendigo to provide professional standards services to the Church. These services include investigation of complaints of misconduct alleged against Church workers and conducting clearance applications for Church workers.
[4]PSU Act s 3 defines Kooyoora as the Scheme Corporation. The Scheme Corporation provides professional standards services to the Diocese and has responsibilities which includes constituting the Office of Professional Standard and appointing members of the Professional Standards Committee and the Director of Professional Standards of the Diocese. See PSU Act ss 124, 133.
The CWS Act established the Commission. The Commission administers the Reportable Conduct Scheme established by the CWS Act[5] and that scheme requires organisations such as the Church to report, investigate and respond to allegations of child abuse. The CWS Act requires investigation of a reportable allegation by the relevant entity and to provide to the Commission a copy of the findings of the investigation and the reasons for those findings.[6]
[5]Child Wellbeing and Safety Act 2005 Pt 5A.
[6]Child Wellbeing and Safety Act 2005 s 16N.
The CWS Act’s purposes are set out in s 1 and include:
(a)to establish principles for the wellbeing of children; and
…
(fa)to provide for a scheme for the reporting to the Commission … of allegations of reportable conduct or misconduct that may involve reportable conduct committed by employees within or connected to certain entities, the oversight by the Commission of investigations of those allegations and the administration of the scheme by the Commission …
‘Reportable allegation’ and ‘reportable conduct’ are defined in s 3(1) of the CWS Act.
‘Reportable allegation‘ means (emphasis added):
any information that leads a person to form a reasonable belief that an employee has committed —
(a) reportable conduct; or
(b) misconduct that may involve reportable conduct —
whether or not the conduct or misconduct is alleged to have occurred within the course of the person’s employment …
‘Reportable conduct’ means:
(a) a sexual offence committed against, with or in the presence of, a child, whether or not a criminal proceeding in relation to the offence has been commenced or concluded; or
(b) sexual misconduct, committed against, with or in the presence of, a child; or
(c) physical violence committed against with or in the presence of, a child; or
(d) any behaviour that causes significant emotional or psychological harm to a child; or
(e) significant neglect of a child …
The Reportable Conduct Scheme provisions are found in Part 5A of the CWS Act. The ‘fundamental principles’ of the Reportable Conduct Scheme are set out at s 16B which provides that:
(a)the protection of children is the paramount consideration in the context of child abuse or employee misconduct involving a child;
…
(d) the Commission and others involved in the reportable conduct scheme should work in collaboration to ensure the fair, effective and timely investigation of reportable allegations;
(e)employees who are the subject of reportable allegations are entitled to receive natural justice in investigations into their conduct … [emphasis added]
The objectives of the Commission under Part 5A are found at s 16F and include:
(a) to improve the ability of entities to identify reportable conduct and to report and investigate reportable allegations; and
(b) to ensure that reportable allegations are properly investigated; and
(c) to protect children by working with entities, regulators and other relevant bodies to prevent reportable conduct from occurring in entities; and
(d) to share information with the Secretary to the Department of Justice and Community Safety for the purpose of WWC checks.
Pursuant to s 16ZD(1) of the CWS Act, if a finding is made by the Commission that an employee of an entity has committed reportable conduct, the Commission must notify the Secretary of the fact that the finding has been made and the reasons for the finding.[7]
[7]Section 16ZD(1) is to be read subject to s 16ZD(2) which provides that the Commission may but need not notify the Secretary of a finding if the reportable conduct would be better addressed through training or supervision, or has already been referred to the Department of Justice and Community Safety or for any other reason it is not appropriate to give the notification.
The referral to the Secretary pursuant to s 16ZD of the CWS Act triggers a WWC category C reassessment pursuant to s 86(1)(a) of the WS Act. The reassessment is triggered by the person becoming subject to a relevant disciplinary or regulatory finding.[8]
[8]A ‘relevant disciplinary or regulatory finding’ is defined in s 3 of the WS Act to include a finding of a prescribed kind made by or on behalf of, or referred to the Secretary by, a disciplinary or regulatory entity.
The investigation
Allegations of historical misconduct surface
Rev Loos applied for ministry clearance to be promoted to a new position of incumbent priest on 10 July 2019. His application was referred to Ms Patrice Galgano, the PS Director, to report on whether there were any professional standards concerns in relation to him.
In October 2018, historic allegations concerning child sexual abuse of children in Sri Lanka involving Rev Loos had been raised with the Church by way of an email raising concerns from two separate sources from within the Church. The email was recorded in the Church records.
In the course of her review in respect of Rev Loos’ ministry clearance application, the PS Director became aware of the historic allegations made against Rev Loos and engaged in her own enquiries. Her search of the Church files located an email raising ‘concerns/rumours’ reportedly raised with an Assistant Bishop at the Church from two Sri Lankan origin clergy that Rev Loos was rumoured to have had ‘illicit relationships with men if not minors’ in earlier days in Sri Lanka. Ms Galgano sought a police check of Rev Loos from Sri Lankan police on 26 September 2019 which was conducted in Sri Lanka on 7 October 2019 and returned no adverse outcome.
Rev Loos’ suspension process
On 25 October 2019, Rev Loos was asked to attend a meeting with the PS Director at the Kooyoora offices. There has been much valid criticism with respect to procedural fairness in this process. This includes criticism by the PS Board in its determination and by the Senior Member at the Tribunal[9] of the processes engaged in by the PS Director utilising the pre-emptive powers, and in the conduct of this meeting. Rev Loos’ affidavit dated 17 March 2023 at [28]–[35], which was before the Tribunal, documents the issues, including that he was given no notice of the subject matter of the meeting.[10]
[9]Tribunal’s Decision, [174].
[10]Criticism of the conduct by the PS Director (Director at Kooyoora) is also set out in some detail in the affidavit of Sarah Verstak, the solicitor for Rev Loos, dated 22 March 2023 filed in the VCAT proceeding at [5]–[14].
On 11 October 2019, the PS Director formed the view that Rev Loos should be suspended without notice. This pre-emptive power, whilst available to the PS Director, is expressed to be utilised in exceptional circumstances. Her purported reasons were that the allegations amounted to reportable conduct within the meaning of the CWS Act and, as such, was ‘misconduct’ within the meaning of the PSU Act.[11]
[11]PSU Act s 5(1)(f) sexual abuse and (p) or any other conduct that is unbecoming or inappropriate to the role, office or position of the Church worker or their duties and functions.
On or around 17 October 2019, the PS Director made a complaint of misconduct to the Professional Standards Committee (the ‘PS Committee’) pursuant to s 21 of the PSU Act.
On 24 October 2019, Rev Loos underwent surgery for a suspected cancer diagnosis. That afternoon he received a call from the PS Director asking him to attend a meeting the next day at 9:00am. No indication of the reason or subject matter of the meeting was given, save that it was a serious matter.
On 24 October 2019, the PS Committee decided, pursuant to s 37 of the PSU Act, to make an urgent recommendation to the Church authority to suspend Rev Loos which was approved by the Archbishop. On the same day, notification was made to the Commissioner on behalf of the Church of the allegations (being characterised by the PS Director as reportable allegations pursuant to the Reportable Conduct Scheme pursuant to the CWS Act).
On 25 October 2019, Rev Loos attended the meeting unaccompanied. As the Tribunal noted, the meeting arranged between the PS Director and Rev Loos on 25 October 2019 was without notice that he was suspended as a priest in relation to the alleged historic sexual abuse. No further detail was given to him about any allegations.
The meeting then became an evidence gathering interview during which Rev Loos mentioned the names of two males he had associated with in Sri Lanka. The notes of the meeting also record what were taken to be certain ‘admissions’ of sexual abuse. These ‘admissions’ are denied by Rev Loos.
After Rev Loos was questioned at the meeting by the PS Director, he was informed that he was immediately suspended. An email and accompanying letter was sent to Rev Loos on that same day following the meeting. The letter informed Rev Loos that on 24 October 2019 the PS Committee decided, pursuant to s 37 of the PSU Act, to suspend him from duties or functions of any role, office or position held by him pending the outcome of the professional standards process. It confirmed that a report to the Commissioner had been made following the PS Director issuing a PS Director complaint pursuant to s 21 of the PSU Act. The letter informed him that the investigation was ongoing and that he was unable to be provided with further particulars of the allegations made against him.
Kooyoora also notified Victoria Police.[12] The Department of Families, Fairness and Housing were also alerted and conducted an interview with Rev Loos’ teenage child.[13]
[12]Victoria Police advised that it would be taking no action to investigate the allegations on the basis that it did not have jurisdiction because the alleged conduct occurred overseas.
[13]This investigation led to no action being undertaken against Rev Loos but no doubt was extremely distressing for him and his family.
Kooyoora Investigation Report
The PS Director initially had carriage of the investigation. However, in response to Rev Loos’ solicitors’ objections regarding the conduct of the PS Director in the investigation, she was replaced by a second investigator, Mr Chriss Pegg.[14] Accordingly, the Kooyoora Report was prepared by Mr Pegg.
[14]On 27 February 2020, the investigation was handed over to Mr Pegg. Tribunal’s Decision, [24].
The Kooyoora Report considered five ‘reportable allegations’ involving child abuse.
In the course of the investigation, two interviews of Rev Loos were conducted; the first on 11 December 2020, the second on 21 January 2021.
The Kooyoora Report included statements by 14 witnesses and a description of other inquiries made and conclusions reached. The material included correspondence, Sri Lankan church documents, social media, text and email messages, banking records and a transcript of the first interview with Rev Loos.
As noted at [12] above, the Kooyoora Report was completed on 17 March 2021.
Of the five reportable allegations investigated, all bar one were found to be ‘unsubstantiated’.
The one ‘substantiated’ allegation related to alleged conduct between 1988 and 1994 of grooming and sexual assault of a child under the age of 18 referred to as ‘Person 1’. The finding was made despite Person 1 having ceased to engage with the investigator during the investigation, not providing a sworn statement and seeking payment both from Rev Loos and the Kooyoora investigator for his participation in the investigation.
The Tribunal noted that the Kooyoora investigators found little information of evidentiary value. The two most significant matters subsequently relied on by the Church and the Secretary against Rev Loos derived from information provided by Rev Loos to the investigators himself.
Disciplinary processes
The Kooyoora Report was referred to the Commission for the purposes of the Reportable Conduct Scheme under the CWS Act.
On 30 April 2021, the Commission referred the matter to the Secretary pursuant to s 16ZD of the CWS Act for the purposes of reassessing Rev Loos’ suitability to hold a WWC clearance. This referral triggered a WWC category C reassessment pursuant to ss 78 and 86 of the WS Act.
The Kooyoora Report was also provided to the Church as part of its internal disciplinary process to determine Rev Loos’ fitness for ministry in accordance with the PSU Act.
Accordingly, there were two separate and independent processes which occurred concurrently:
(a) first, a WWC category C reassessment by the Secretary of Rev Loos’ suitability to hold a WWC clearance under the WS Act, being the proceeding which has culminated in the review before me in this Court; and
(b) secondly, the Church’s internal disciplinary process under the PSU Act which looked into the Kooyoora Report’s substantiated finding regarding Person 1 and other allegations, including an allegation that Rev Loos’ interfered with Kooyoora’s investigation.
While both processes occurred concurrently, the Church’s internal disciplinary process was fully completed on 15 July 2022, before the Secretary’s decision to issue Rev Loos with a WWC exclusion on 8 November 2022.
Church’s internal disciplinary process
On 5 August 2021, four disciplinary allegations were brought against Rev Loos by the Church, including the sexual abuse allegation in respect of Person 1.
Under the laws and procedures applied by the Church, the four disciplinary allegations were referred to the PS Board. The PS Board conducted hearings and made determinations concerning the suspension of Rev Loos, the findings on the allegations and a determination as to whether he should be given clearance to serve as a priest.
The Board conducted two hearings. The first was a suspension hearing in October 2021 and the second a misconduct and fitness for ministry hearing in April 2022.
The outcome of the Church’s disciplinary process was that Rev Loos was exonerated and found to be fit to remain a priest. The only charge found proved (to which Rev Loos had pleaded guilty) did not relate to child abuse but to a charge relating to payment of money to Person 1. The Tribunal noted that the information underpinning this allegation was volunteered by Rev Loos to the Kooyoora investigators himself.
Suspension hearing and determination
Rev Loos had remained suspended as a result of the PS Director’s suspension decision made in October 2019 and he sought review of that decision.
On 21 October 2021, the PS Board conducted the suspension hearing in accordance with s 41 of the PSU Act. This hearing dealt with whether Rev Loos should remain suspended. Section 43 of the PSU Act sets out the matters the Board and the PS Committee are required to take into account, which included the seriousness of the alleged misconduct, the nature of the material to support or negate the allegations, the specific duties, role or position held by the church worker, the extent to which any person is at risk of harm if a recommendation for action is not made, and any other relevant matter.
On 17 November 2021, the Board published its determination relating to the suspension. The PS Board summarised the four allegations in the complaint made against Rev Loos by the PS Director. The Board noted that none of the allegations in the complaint had been made at the time Rev Loos was suspended and the evidence supporting them was not in the possession of the PS Committee. The Board noted that, for the purposes of determining the complaint and the application for clearance for ministry, it would be necessary for the Board to decide on the balance of probabilities to the Briginshaw standard as required by the PSU Act whether the allegations in the complaint were true. However, it was not necessary for that decision to be made in order to deal with the suspension.
The PS Board noted that Rev Loos informed it that he was willing to submit to conditions if his suspension was lifted.
The central question before the PS Board was whether Rev Loos posed an unacceptable risk of harm to any person. The PS Board formed the view that, having given full consideration to the matter and taking into account all of the material before it, Rev Loos ‘may or may not have been guilty of sexual misconduct, even criminal sexual misconduct, in Sri Lanka, well over 25 years ago.’ However, since then Rev Loos had been in Australia ‘for nearly 25 years without any complaint at all about his conduct here (apart from the evidently malicious and groundless allegation about him running a “homosexual and paedophile house” near Ballarat)’. Having considered that ‘[a]fter 25 years of acting as a priest in Victoria apparently with complete sexual propriety’ during which time he has married and has a family, the PS Board concluded was there was not ‘any significant risk of him committing such misconduct in the course of carrying out his priestly duties’.[15]
[15]PS Board’s Determination and Recommendation dated 17 November 2021, cited in the Tribunal’s Decision, [89].
The PS Board was highly critical of the procedure that was followed in suspending Rev Loos, noting there were two possible procedures which could have been followed. The first is the normal procedure, which requires that the PS Committee refer the matter to the PS Board and give Rev Loos notice of the allegations made against him and invite him to show cause why suspension is not appropriate. The procedure that was followed, however, was the exceptional procedure which allowed the PS Committee to bypass the requirement to notify Rev Loos as to the allegations against him and thus any opportunity for him to respond to those allegations. The process meant that the PS Director made recommendations directly to the Archbishop. The PS Board said there was no good reason why the usual procedure had not been followed, stating at [47] of its determination:
Frankly, we are surprised that the [PS Committee] thought it appropriate to act without notice to the Respondent and without reference to this Board in circumstances where the only allegations against the Respondent related to conduct in Sri Lanka over 20 years earlier, the allegations were very vague and supported by no direct evidence, and the Respondent had been ministering to congregations in Australia without complaint for over 20 years. We think the Respondent should have been given notice of the allegations against him and given a chance to respond to them, and that the matter should have been referred to this Board in accordance with the normal procedure laid down by the Act.
This criticism is relevant to the rigour and fairness involved in the underlying investigation which led to the questionable finding of substantiation in respect of the alleged abuse of Person 1. In this proceeding, the Secretary has sought to contain the Tribunal’s assessment of the seriousness of the alleged conduct to that which it says was ‘substantiated’. I will return to this issue in my assessment of the Grounds.
Misconduct and fitness for ministry hearing and determination
The second disciplinary hearing conducted by the PS Board was the misconduct and fitness for ministry hearing. The PS Committee had made four allegations of misconduct which were to be determined by the PS Board. On 23 March 2022, the month prior to the misconduct hearing being conducted, allegations 1, 2 and 3 against Rev Loos were withdrawn. These encompassed the allegations in respect of Person 1. The allegations were withdrawn because there was a lack of persuasive evidence. Person 1 did not give a sworn or signed statement and did not participate in the hearing and thus never made himself available for cross‑examination. At [57]–[65] of the PS Board’s determination of 15 July 2022, the PS Board makes reference to the implausibility of the contents of Person 1’s statement, including that the dates and times provided in the statement did not match up. In addition, Person 1 had requested payment from the investigator (and Rev Loos) for his involvement in the investigation. The request for payment to Rev Loos was, when seen in context, characterised by the PS Board as in the nature of blackmail.
Allegation 3 was not pursued as it was accepted that Rev Loos did not understand that the questions he answered in the form extended to allegations which had been investigated and dismissed, and in light of the explanation and the surrounding circumstances it was no longer appropriate to pursue this allegation.
By the time of the misconduct hearing, the only remaining allegation before the Board was allegation 4, which was an allegation that Rev Loos had paid money to Person 1 in the course of the Kooyoora investigation to which Rev Loos pleaded guilty.
On 6 April 2022, the PS Board conducted the hearing in respect of the misconduct complaint and whether Rev Loos should be granted clearance for ministry.
On 15 July 2022,[16] the PS Board issued its findings and determinations. The PS Board found that allegation 4 (to which Rev Loos had pleaded guilty) was substantiated. However, the Board ultimately decided that in the circumstances, Rev Loos’ actions demonstrated ‘understandable human weakness’ and did not find him to be unfit for priesthood. The Board directed the Office of Professional Standards to grant Rev Loos clearance for ministry pursuant to s 81 of the PSU Act.
[16]On 1 September 2022, the Board issued the Amended 2nd Determination and Recommendations (which is the version referred to in the Tribunal proceeding).
Rev Loos attended all of the hearings and was cross‑examined, as he was at VCAT. He was believed on his explanation as to why he had made payment to Person 1 and he was cleared and found fit to remain a priest for the purposes of the Church’s internal processes under the PSU Act. The Church, having conducted a formal investigation and a contested professional disciplinary process spanning almost three years, cleared Rev Loos for ministry.
Consequent upon the PS Board’s decision, Rev Loos returned to work as a priest on 15 September 2022. This reinstatement, however, was short lived due to the Secretary’s decision to issue Rev Loos with a WWC exclusion on 8 November 2022 following the parallel process triggered by the Kooyoora Report.
Assessment by Secretary of Rev Loos’ suitability for WWC clearance
As noted at [45] above, on 30 April 2021, the Commission referred the matter to the Secretary pursuant to s 16ZD of the CWS Act on the basis that Rev Loos was the subject of ‘substantiated reportable conduct’, that being the Kooyoora Report’s ‘substantiated’ finding as to the allegation concerning Person 1.
This triggered a WWC category C reassessment under the WS Act as the Secretary had been notified that Rev Loos had ‘become subject to a relevant disciplinary or regulatory finding’.[17] Section 87 of the WS Act provides that the Secretary must not revoke a WWC clearance on a WWC category C reassessment unless satisfied of the tests specified in that section.
[17]WS Act s 86(1)(a).
On 24 February 2022, the Secretary issued Rev Loos with a WWC interim exclusion pursuant to s 88 of the WS Act. Rev Loos was given an opportunity to make written submissions in response. Rev Loos’ responses were provided on 12 April and 20 May 2022.
On 31 May 2022, he was requested to provide a response to further information the Secretary would seek to rely on in giving him a WWC interim exclusion. His response was provided on 21 June 2022.
On 8 November 2022, two months after the Church’s exoneration of Rev Loos, the Secretary gave Rev Loos a WWC exclusion pursuant to s 91 of the WS Act.
This notification enclosed a statement of reasons for the decision which stated that the substantiated finding underpinning the decision to issue the WWC exclusion was the allegation of misconduct committed against Person 1 as per the Kooyoora Report, including ‘the alleged victim’s evidence that’ Rev Loos had paid money to Person 1 during Kooyoora’s investigation.[18] The reasons state that the Secretary was satisfied as to the considerations in s 87(1)(a) or (b) having regard to the factors set out in s 87(2) of the WS Act.
[18]Court Book (filed in 7 November 2024 in S ECI 2024 01459, Supreme Court of Victoria) 464–84 (‘Court Book’).
Application for review before the Tribunal
On 17 November 2022, Rev Loos applied to the Tribunal for review of the Secretary’s decision in accordance with the Tribunal’s review jurisdiction set out in s 108 of the WS Act.
On 27 February 2024, the Tribunal published its reasons for decision and made the following orders:
1.The decision of the [Secretary] of 8 November 2022 to issue a WWC exclusion to the applicant is set aside.
2.The [Secretary] is to issue a WWC clearance to the applicant.
Orders had also been made by the Tribunal under the Open Courts Act 2013 (Vic) in the proceeding and continue in force.
In accordance with the Tribunal’s Orders, the Secretary issued Rev Loos with a WWC clearance.
Application to the Supreme Court of Victoria
By way of its notice of appeal filed 26 March 2024, the Secretary now applies to this Court for leave to appeal and, if leave is granted, to appeal the Tribunal’s Orders pursuant to s 148 of the VCAT Act.
The Secretary seeks orders setting aside the Tribunal’s Orders and, in its place, order that Rev Loos be refused a WWC clearance pursuant to s 108 of the WS Act or otherwise be remitted to the Tribunal for rehearing.
QUESTIONS OF LAW AND GROUNDS OF REVIEW
The notice of appeal raised four questions of law.
Questions 1 and 2 concern the approach that the Tribunal took to the evidence and its application to the relevant considerations required to be taken into account. The allegation is that the Tribunal fell into jurisdictional error by its approach to the task at hand.
Question 3 alleges a denial of procedural fairness relating to the Secretary’s complaint that it was not allowed access to witnesses for the purposes of cross‑examination.
Question 4, which concerned the Tribunal’s application of the onus of proof, was abandoned.[19]
[19]Transcript of Proceedings, Secretary to the Department of Justice and Community Safety v Loos (Supreme Court of Victoria, Quigley J, 6 December 2024), 4 (‘Supreme Court Transcript’).
Questions 1 to 3 and the grounds in support of them are set out in full in my discussion of the merits of the appeal later in this decision.
STATUTORY CONTEXT AND APPLICABLE PRINCIPLES ON REVIEW
The Tribunal’s jurisdiction to review the Secretary’s decision must be exercised in accordance with s 108 of the WS Act. It requires the Tribunal to make its own decision on the evidence in accordance with the tests prescribed.[20]
WS Act
[20]Secretary to the Department of Justice and Community Safety v TXD [2024] VSCA 169, [15] (‘TXD’).
One of the main purposes of the WS Act is ‘to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children’.[21] Section 11 provides that when the Secretary or the Tribunal makes a decision or takes action under the WS Act in relation to an applicant for a WWC check or the holder of a WWC clearance, ‘the protection of children from sexual or physical harm must be the paramount consideration.’
[21]WS Act s 1(b).
The WS Act establishes a process for the Secretary upon receiving an application to assess or reassess whether a person may engage in child‑related work.
The circumstances which apply here categorised the application as a WWC category C application. WWC category C applications fall to be considered under s 65 of the WS Act by the Secretary.
In a review of a decision to give a WWC exclusion on a WWC category C application, or in relation to a WWC category C reassessment, the Tribunal must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance having regard to any matters to which the Secretary must have regard under s 65(2). This assessment is to be undertaken within the framework of s 108, which requires consideration of each of these mandatory factors. It is a matter for the Tribunal to determine what weight it gives to the individual factors in s 65(2) and form its own view as to the evidence which supports each of these matters. The Tribunal is also required to refuse to give a WWC clearance in accordance with the conditions set out in ss 108(2) and (3). There often will be (but not impermissibly) some matters and evidence which are relevant to multiple factors in this assessment. I set out these legislative provisions below.
Section 108 of the WS Act provides as follows:
108 Jurisdiction of VCAT—WWC category C
(1) In a review of a decision to give a WWC exclusion on a WWC category C application or in relation to a WWC category C re‑assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2).
(2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that—
(a) a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child‑related work; or
(b) the applicant's engagement in any type of child‑related work would not pose an unjustifiable risk to the safety of children.
(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.
Section 65(2), which lists the matters the Tribunal must have regard to, provides as follows:
(2) For the purposes of subsection (1)(a), the Secretary must have regard to—
(a) the nature and gravity of the conduct and its relevance to child‑related work; and
(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct; and
(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and
(d) in the case of an offence, the sentence imposed for it; and
(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct; and
(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it; and
(g) the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct; 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 the Secretary considers relevant to the application.
Section 109 grants information gathering powers in aid of Tribunal proceedings and provides as follows:
Secretary may request information for purposes of VCAT proceeding:
The Secretary, for the purposes of assisting VCAT in relation to the determination of an application made under this Part, may make enquiries to, or seek information from, any person or source that the Secretary thinks fit, including but not limited to—
(a) the Director of Public Prosecutions and any employee within the meaning of the Public Administration Act 2004; and
(b) any disciplinary or regulatory entity.
VCAT Act
The Tribunal’s powers, including upon WWC category C reassessment under the WS Act, are also governed by the VCAT Act. In this regard, several provisions have bearing on considerations relevant in this proceeding. These include ss 97, 98 and 102, which are extracted below:
97 The Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98 General procedure
(1) The Tribunal—
(a) is bound by the rules of natural justice;
(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non‑compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.
(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.
(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding.
Example
Section 85 provides that evidence of anything said or done in the course of a compulsory conference is not admissible except in certain circumstances.
(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.
…
102 Evidence
(1)The Tribunal must allow a party a reasonable opportunity—
(a) to call or give evidence; and
(b) to examine, cross‑examine or re‑examine witnesses; and
(c) to make submissions to the Tribunal.
(2) Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
(3) Evidence in a proceeding—
(a) may be given orally or in writing; and
(b) if the Tribunal requires, must be given on oath or by affirmation or by affidavit.
(4) A member of the Tribunal may administer or cause to be administered an oath or affirmation or take or cause to be taken an affirmation for the purpose of taking and receiving evidence at a hearing.
It follows that the jurisdiction of the Tribunal must be exercised in accordance with the test set out in s 108. Pursuant to s 97, the Tribunal must act fairly and according to the substantial merits of the case in accordance with principles of general procedure set out in s 98.
LEAVE TO APPEAL
An appeal to the Supreme Court is available on a question of law, with leave of the Court pursuant to s 148(1).
For leave to appeal to be granted, the Court must be satisfied that the application identifies a question (or questions) of law and that the question (or questions) has (or have) a real prospect of success.[22]
[22]VCAT Act s 148(2A).
In order to succeed in obtaining leave (and on appeal), the Secretary needs to establish an error which goes to a fundamentally important aspect of the Tribunal’s decision.[23] The requirement to identify a question of law confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[24]
[23]Craig v South Australia (1995) 184 CLR 163 (‘Craig’); TXD.
[24]Patsuris v Gippsland and Southern Rural Water Corporation (2016) LGERA 167, 180 [43]–[44] (Garde AJA, Tait and Kyrou JJA agreeing) cited with approval in TXD, [21] (McLeish and Lyons JJA).
An appeal under s 148 is in the nature of judicial review and does not confer a general right of appeal on the merits of the case.
The limitation imposed by s 148 has been said to impose a ‘significant constraint’ upon the role of the Court in reviewing the decision and reasons of an administrative Tribunal.[25] In Secretary to the Department of Justice and Regulation v OUX (‘OUX’),[26] the Court of Appeal said at [36] (citations omitted):
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.’[27]
[25]Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (‘OUX’).
[26][2018] VSCA 178.
[27]I note this passage was cited with approval by the Court of Appeal in TXD, [22].
I am satisfied that the three questions raised by the applicant (set out in the following section) are questions of law for the purposes of s 148 of the VCAT Act. Each question is important and goes to the proper interpretation and application of the WS Act. Whilst ultimately I have determined none of the questions of law are made out, they are of sufficient importance to the interpretation and administration of the WS Act that I will grant leave to appeal on questions 1–3. As noted above, question 4 was abandoned at trial.
THE APPEAL
I now deal with each question in turn.
Question 1: Did the Tribunal create an onus on the Secretary?
Question 1 in the notice of appeal is:
In the review of the [Secretary]’s decision to give a Working With Children Clearance (WWC Exclusion) to [Rev Loos], did the Tribunal make an error of law that was jurisdictional in nature, in failing to correctly apply s108 of the [WS Act], by creating an onus on the [Secretary] to prove the factual allegations against [Rev Loos] and address ‘gaps’ in the evidence?
Question 1 is supported by the following grounds of review:
(a) Pursuant to s 108 of the WS Act, in a review of a decision by the Secretary to give a WWC exclusion to Rev Loos in a WWC category C matter, the Tribunal must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to matters in s 65(2) of the WS Act.
(b) The matters, factors or considerations that the Tribunal must have regard pursuant to s 65(2) are mandatory and do not require the Secretary to lead evidence or prove them.
(c) In its reasons, the Tribunal:
(i) at [56] stated that the Secretary ‘led no evidence’ and made ‘no attempt to supplement any “gaps” in the evidence in support of the allegations against the applicant’;
(ii) at [58] stated that only one alleged victim was able to be contacted;
(iii) at [111] observed that Person 1’s draft statement was not finalised or signed but failed to give proper consideration to the fact that it had been drawn up by a Church‑appointed investigator who had conferred with Person 1, that Person 1 had subsequently agreed with the investigator that the statement was correct, and that Person 1 agreed for its use in the inquiry; and
(iv) at [284] failed to appropriately consider the repercussions of there being no psychological assessment of Rev Loos’ risk of engaging in sexual abuse of children by merely relying on the absence of recent reports of sexual misconduct concerning Rev Loos.
(d) The Tribunal’s findings demonstrate that it created an onus on the Secretary to positively satisfy the Tribunal as to the existence of a state of facts, rather than apply the legislative considerations in s 65(2) of the WS Act, and this was an error of a jurisdictional nature.
Secretary’s submissions
The Secretary submitted that, in the review of its decision to give a WWC exclusion to Rev Loos, the Tribunal made an error of law that was jurisdictional in nature in failing to properly apply s 108 of the WS Act by creating an onus on the Secretary to prove the factual allegations against Rev Loos and address gaps in the evidence.
The Secretary argued that the Tribunal reversed the onus on the Secretary to adduce sufficient evidence. This was based on the fact that there was ‘reportable conduct’ in accordance with Part 5A of the CWS Act because it was conduct that fell within the Reportable Conduct Scheme. The CWS Act defines ‘reportable conduct’. The submission to the Court was that the definition of what threshold it reaches was not relevant but the fact that it had been reported to the Secretary makes it reportable conduct. That gives rise to the trigger in the WS Act.
It was submitted the reportable conduct should have been taken by the Tribunal as it is and applied to the provisions of ss 108 and 65(2), and not by the Tribunal engaging in a fact‑finding exercise to determine whether each and every allegation was true or not, or there was sufficient evidence to prove it or not. A distinction was drawn between the requirements under the CWS Act and under the WS Act, which sets out a legislative framework that differs from the procedures and framework used by the PS Board under the CWS Act.
That the reportable conduct is that which was reported to the Secretary and which contains allegations needs to be distinguished from the task of the Tribunal in ss 108 and 65(2). It was submitted that the use of the term ‘conduct’ in the criteria to be applied in s 65(2) calls up relevant conduct pursuant to the sub‑cls of ss 65(2)(a), (b), (e), (f) and (g) and other matters are relevant under ss 65(2)(h) and (j).
It was argued that the Tribunal departed from its core task which is to go to s 65(2) and apply the ‘reportable conduct’ as is to the provisions, without assessing the credibility of the allegation or investigation supporting it. It was suggested that this picks up the intention of the legislation which is to consider the allegation as a serious matter and then consider the conduct pursuant to the sub‑sections of s 65(2). The applicant submitted that each of those matters needs to be considered and that each matter need not be ascribed individual weight and added up like some form of mathematical equation to determine whether the threshold is reached or not, as the jurisprudence in Craig and TXD make abundantly clear.
Counsel for the Secretary submitted that what the Tribunal should have done was taken the reportable allegation at face value and not look behind those allegations to see whether or not there was any substance to it.[28] The Secretary said what the Tribunal ought to have done was to ascribe a degree of weight to the reportable conduct and, because of its seriousness, there should be significant weight ascribed to that factor. In the overall balancing exercise of looking at all the factors in s 65(2), that factor ought to weigh very significantly against the application being granted. This was an error which could have resulted in a different outcome.
[28]Supreme Court Transcript, 7.
The Secretary identified four places in the Tribunal’s Decision that it argued demonstrated the Tribunal had created an onus on it to prove the allegation to be true.
The first paragraph the Secretary referred to was [56]:
56The Secretary led no evidence, but relied on the material in the Tribunal Book, mainly comprising the documentation from the Church’s disciplinary process. That is, there was no attempt to supplement any ‘gaps’ in the evidence in support of allegations against [Rev Loos].
It was suggested that the language demonstrates an onus was placed on the Secretary to fill the gaps by producing evidence to support the allegations.
The second paragraph referred to was [58]:
58As noted, there is no direct and reliable evidence of [Rev Loos] having engaged in sexual abuse of children. Only one alleged victim was able to be contacted. The two most significant evidentiary issues for consideration here relate to [Rev Loos’] communications with, and payments to, Person 1, and the ‘admissions’ he is said to have…made on 25 October 2019.
It was submitted that the Tribunal did not accept Person 1’s assertion as to the conduct and, because of that, did not exercise the correct function of ss 108 and 65(2). What it did instead was a fact‑finding exercise and, as a result, closed its mind and turned away from its proper function.
The third paragraph referred to was [111]:
111The Board then analysed the evidence concerning the draft witness statement by Person 1. This had been drawn up by Mr Pegg and sent to Person 1 on 10 January 2021. As noted by Mr Pegg in his report, Person 1 then sent this to [Rev Loos] on 12 January 2021 ‘and used it to demand a response from [Rev Loos] otherwise he would send it to ‘all Anglican Churches in Australia’. Mr Pegg said that then, on that same day, 12 January 2021, Person 1 told him in an email that the draft statement was correct and he agreed for it to be disclosed as part of this inquiry. However, from then onwards, Person 1 ceased his involvement in the investigation. So, his draft witness statement was never finalised (it was not in final form), never signed, and he did not give evidence at the Board’s hearings.
The Secretary submitted that here the Tribunal acknowledges that Person 1 told the investigator that the draft statement was correct and agreed to that being disclosed as part of the enquiry. The Tribunal acknowledges that the statement was never finalised, never signed and Person 1 did not give evidence at the PS Board’s hearings. It was submitted that when the paragraph was considered in that context, what it means is that none of the allegations made by Person 1, the primary victim, were considered as part of the mandatory analysis in s 65(2).
The fourth paragraph referred to was [284]:
284This conclusion takes into account the paramount consideration…of the protection of children, under s 11 of the WS Act. It also takes into account the fact that there is no psychological assessment of [Rev Loos’] risk of engaging in sexual abuse of children. In my view, while such a report, if it had been positive, might have bolstered [Rev Loos’] case, in this case, the fact there have been no reports of any sexual misconduct since [Rev Loos] arrived in Australia speaks more powerfully than any such report is likely to do.
This addresses that there was no psychological assessment of Rev Loos’ risk of engaging in sexual abuse of children. It was submitted that the absence of a psychological report could not be a positive factor in favour of the applicant and the problem of going behind the reportable conduct in engaging in a fact‑finding exercise is demonstrated by this passage.
The Secretary submitted that the consequence of the approach taken by the Tribunal by looking behind the reportable conduct and the substantiated finding was that the Tribunal was, in effect, saying that it had no work to do under s 108. That is that its jurisdiction was not enlivened because the reportable conduct has to be proven and there is no proof of it. It was submitted that s 108 would have no work to do and this is a fundamental error in the Tribunal’s reasoning.
Rev Loos’ submissions
The respondent submitted that the background that led to the findings by the Church investigator of reportable conduct commenced with the disciplinary process within the Church. The investigation carried out by the Church and which was reported to the Commission led to the notification to the Secretary.
The respondent drew attention to the interrelationship between the Church disciplinary processes and the Reportable Conduct Scheme as carried out by the Church under the CWS Act and the WS Act.
There were two concurrent processes and this explained the apparent dissonance that the Court has in this proceeding where, on the one hand, there are findings from an investigation which were dropped and never pursued because of lack of evidence and, on the other hand, the same investigator’s findings were used by the Secretary to justify her decision to issue the WWC exclusion. The Secretary relied on the investigator’s report and revoked Rev Loos’ WWC clearance on the basis of that investigation.
It was submitted that Rev Loos had been subject to cross‑examination in the Church disciplinary hearings and before VCAT and was believed by every decision‑maker at every point. It was submitted that whilst Rev Loos’ credibility is not in issue in this appeal, the history is important because it explains the context of the Tribunal’s comments about the evidence.
It was submitted that, as a general principle, reasons given by a tribunal should not be read with an eye keenly attuned to perception of error. The Tribunal’s reasons should be read fairly, starting with the way in which the Tribunal framed the task. It was important to consider the Tribunal’s reasons as a whole. It was submitted that selectively reading a few paragraphs and then relying on those paragraphs to create a perception of error is exactly what the High Court warns against when it comes to avoiding over‑zealous judicial review.[29]
[29]OUX, [36] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Consideration
The proposition that the Tribunal misapplied s 108 of the WS Act by creating an onus on the Secretary is misconceived. It mischaracterises the Tribunal’s reasons. It also ignores the manner in which the case below was argued by the Secretary.
I do not accept that the manner and process by which the Tribunal undertook the task of review under s 108 can be fairly categorised in the way that the Secretary suggests. The Tribunal standing in the shoes of the Secretary on review is entitled to look at all of the material that was before the Secretary and make an assessment of it. The Tribunal formed a different view of the seriousness of the allegation and this was a matter which was open to it to evaluate. The Secretary’s argument conflates the trigger for the process which led to the Secretary’s decision with the merits of the decision.
In issue, for the purposes of addressing the mandatory requirements under s 108 of the WS Act, was the ‘conduct’ in question.
The Secretary submitted that the Kooyoora Report contained a finding of substantiated conduct for the purposes of a WWC category C reassessment and, thus, the Tribunal was not permitted to look behind the Kooyoora Report’s ‘finding’ or the substantiation of the alleged conduct in its assessment of the s 108 criteria. The Secretary treated the alleged conduct as being proven and it is clear from the submissions made to the Tribunal that the Secretary ran its case commencing from this position.
The manner in which the Secretary ran its case at the Tribunal was to forcefully put that the alleged conduct was proven.[30] The Secretary’s submissions to the Tribunal equated the ‘substantiated’ finding in the Kooyoora Report as being the foundation upon which the Tribunal should be satisfied that the alleged conduct was established and its assessment based on that proposition. When challenged about this proposition, the Secretary submitted that the evidence the Tribunal should take into account included the statements obtained by the investigators (notwithstanding that they were unsworn, often unsigned, incomplete and untested) and the two sworn statements of the investigators as to their investigation.
[30]For example, in its submissions to the Tribunal at [3], the Secretary asserts that ‘Between 1988 and 1994, the Applicant sexually assaulted a child who was under 18 years of age (Child), in that he sexually penetrated the Child on a number of occasions after grooming him as an altar boy’. I note the Tribunal’s stinging criticism of the Secretary at [241] of the Tribunal’s Decision that the allegations made as to paedophilia ‘should not have been made.’
As the Tribunal noted in its reasons, the Secretary called no evidence. None of the individuals whose statements were included in the Kooyoora Report, nor either of the investigators, were called to give evidence at the Tribunal. The case for the Secretary was based on the documents which were produced in the Tribunal Book. Rev Loos was cross‑examined at length, taking almost one full day to do so. A character witness was also called by Rev Loos who was also cross‑examined. The comments by the Tribunal that the Secretary called no evidence to fill the ‘gaps’ garners a different complexion when the manner in which the Secretary put its case below is considered.
When squarely pressed by the Tribunal as to how the Tribunal should consider the Kooyoora Report’s ‘findings’, the Secretary submitted that it would be wrong of the Tribunal to consider or adopt the determination of the Board, but should take all of the evidence before the Tribunal[31] and treat that evidence holistically.
[31]Being the whole of the Tribunal Book which included the PS Board’s determination and the associated documents and all of the material in the Kooyoora Report.
In my view, this submission effectively conceded that the content and processes of the disciplinary processes and the Board’s determination was material which was relevant to the Tribunal’s assessment.
The Tribunal accepted that the Church’s disciplinary process, and the legislation and procedure it followed, was a different exercise under different statutory provisions to that which applies to a review of the Secretary’s decision to issue a WWC exclusion. However, it was that very process and the information gathered as part of that process which put in train the referral to the Commission under the CWS Act and consequently the referral to the Secretary under the WS Act.
I also accept that the processes affecting Rev Loos under the Church’s disciplinary process and those relevant to the review of his WWC clearance under the WS Act have a different policy and legislative basis. It is the intersection of the investigation material and its reliability which has an overlapping consequence in the circumstances of this case.
The pathway which led to the Secretary’s reassessment in this case was through the disciplinary route rather than through a criminal charge or prosecution. That the considerations required to be taken into account by s 65(2) are applied to all types of conduct that fall within the WWC category C categorisation is noted. In my view, that each of the considerations to which the Secretary must have regard in s 65(2) is to be applied to the particular circumstances of the conduct in question must be understood to allow the Tribunal on review, in forming its own view of the evidence to which it must apply the statutory tests, to look at the conduct, including whether it comes before it through the disciplinary pathway or as a result of a conviction or charge.[32]
[32]WS Act s 64 specifies which types of conduct falls within a WWC category C application. Section 64(1)(a) is the relevant provision being where a person ‘who has at any time been subject to a relevant disciplinary or regulatory finding.’
I accept from a procedural point of view that the finding of substantiation in the Kooyoora Report is the trigger for the commencement of the process which led to the WWC category C reassessment. I do not, however, accept that the quality and efficacy of the Kooyoora Report’s finding is out of evidentiary or relevance bounds on a review under s 108 of the WS Act.
I also do not accept that the Tribunal was not entitled to look at the PS Board’s determinations made in respect of the disciplinary process to which Rev Loos was subject. That is not to say that it would be correct just to adopt the PS Board’s findings and conclusions but, rather, these determinations and the process engaged in by the PS Board is relevant material for the Tribunal to consider in forming a view about its satisfaction of the s 108 considerations, including the nature and gravity of the conduct and its relevance to child‑related work.[33]
[33]WS Act s 65(2)(a).
The status and veracity of the evidence referred to in the Kooyoora Report was the subject of discussion between the Tribunal Member and counsel for the Secretary. The Tribunal raised its scepticism about the quality of the evidence which formed the basis of the ‘substantiated’ allegation in the Kooyoora Report. Therefore, in this regard there can be no surprise that the Tribunal was not satisfied that the ‘substantiated’ allegation was to be taken at face value as the Secretary submitted to me in this Court.
That the Secretary took a different view of the reliability, substance and rigour of the procedures adopted in forming her own view is not determinative of the Tribunal’s assessment. The Tribunal must consider the evidence before it in the framework provided by s 108. I cannot agree this limits or confines the Tribunal to a bald acceptance of the allegations made in the context of the process which led the Secretary to her decision.
Further, I do not agree, in any event, in considering the seriousness of the ‘conduct’ as required by s 65(2)(a), that the Tribunal erred. It made what was a patently correct observation that the allegations made ‘if such conduct had been engaged in’ was ‘of course extremely serious’.[34] The framing of s 65(2) picks up consideration of conduct for which a person has been convicted, charged (but not convicted), and alleged conduct, such as in the circumstances here, which arise out of a professional conduct process. As a consequence, the seriousness or, to use the words of the subsection, ‘nature and gravity of the conduct’ must be read widely enough to include that the ‘conduct’ in question here was an ‘allegation’ and the process by which the reportable conduct and the process for substantiation of the allegation came to be notified to the Secretary.
[34]Tribunal’s Decision, [257]–[258].
The pathway to the Secretary exercising its obligation to reassess Rev Loos’ eligibility under s 78 of the WS Act to hold a WWC clearance is based on the referral to the Secretary by the Commission of its information that Rev Loos was the subject of a relevant disciplinary or regulatory finding.[35] The relevant disciplinary or regulatory finding is that which was triggered by the PS Director’s pre-emptive report in October 2020. The subsequent Kooyoora investigation report formed the basis of both Church disciplinary proceedings and the process under the CWS Act and the WS Act.
[35]WS Act s 86. I note that the statutory process is recorded by the Secretary in its reasons for decision. See Court Book, 462.
At [14] of the Tribunal’s Decision, the Tribunal framed its statutory task and said it is considering similar issues to the Church’s disciplinary process but for a different purpose under a different statutory regime. The Tribunal’s task was, in effect, to analyse the strength of the evidence concerning the allegations and, in light of that, to determine the extent of the risk which Rev Loos poses of causing sexual or physical harm to children. The Tribunal stated that this was to be done in the framework as set out in s 108 of the WS Act. The articulation of the task before it was correctly stated by the Tribunal.
The Secretary’s analysis of the Tribunal’s Decision seeks to characterise this observation of the Tribunal at [14] as a reversal of onus when, if read fairly and as a whole, the Tribunal’s observations are merely an observation about the positive state of the evidence in Rev Loos’ favour.
Insofar as the Secretary refers to particular passages of the Tribunal’s Decision, I disagree that they demonstrate a reversal of onus or a misconception of the Tribunal’s task. The decision of the Tribunal must be read fairly in its entirety and in context. It should not be read with an eye finely attuned to error. The selected passages referred to by the Secretary (being [56], [58], [111] and [284]), when read fairly, do not demonstrate a reversal of onus but rather a summary of Tribunal’s assessment of the evidence before it. It is clear that the onus of demonstrating that he should be given a WWC clearance was on Rev Loos. I consider the comments made by the Tribunal demonstrate nothing more than its assessment of the evidence and an explanation why he accepted that evidence in the face of nothing to the contrary.
I note that s 109 of the WS Act empowers the Secretary to make enquiries or seek information from any person or source that the Secretary thinks fit for the purposes of assisting the Tribunal in relation to its determination. In making its own forensic assessment of the evidence, it is clearly open to the Secretary to provide additional evidence but that is not because there is a reversal of onus. Rather, the tactical onus may well shift depending on the state of the evidence relied upon by the applicant.[36]
[36]Maleckas (LKQ) v Secretary, Department of Justice (2011) 34 VR 23, 34 [56] (Kyrou J).
The assessment of an allegation to be a ‘reportable allegation’ must be based on information which leads a person to form a reasonable belief that the person has committed reportable conduct or misconduct which may involve reportable conduct. The formation of that reasonable belief ought not be done in a partisan or biased manner and must be based on reliable information. This must mean that there is something more than innuendo or rumour. To require credible evidence assessable on the balance of probabilities is not inconsistent with s 16B(1) of the CWS Act, which states that the Reportable Conduct Scheme is based on the protection of children as the paramount consideration in the context of child abuse or employee misconduct involving a child. This is made clear by the other fundamental principles in s 16B(1)(d) and (e) of the CWS Act which exhort the Commission and others involved in the Reportable Conduct Scheme to work in collaboration to ensure the fair, effective and timely investigation of reportable allegations, and that the employees who are subject of reportable allegations are entitled to receive natural justice in investigations into their conduct. The consequences for an individual are grave.
In the circumstances of the investigation of the allegations against Rev Loos, the chain of events commenced poorly with a pre-emptive decision to suspend him. This decision was criticised, rightly in my view, by the PS Board in its decision to reverse the suspension determination. However, by the time this suspension review was before the PS Board, the allegations had been reported to Victoria Police and to the Commission.
The Kooyoora Report which was provided to the Commission on 17 March 2021 was not provided to Rev Loos until some time later and then only after many requests by his solicitor. The Kooyoora Report was before the Secretary when she made her decision. As it was material which was relied upon by the Secretary, it clearly was material to which the Tribunal could and should have regard. The determination of the Board was also material before the Secretary and the Tribunal. Again, this material was both relevant to the Tribunal’s review of the Secretary’s decision as it clearly forms part of the ‘particular circumstances’ and relevant to the considerations in each subsection of s 108.
It was appropriate and necessary ‘in the particular circumstances’ for the Tribunal to consider the process which led to the ‘substantiated’ allegation. The allegations made against Rev Loos are not and have never been subject to police investigation let alone any criminal charges. It is relevant for the Tribunal to look at the background and material which was relied upon by the Commission and the Secretary.
The Tribunal’s Decision at [56] should be read in light of what the Tribunal says earlier, in particular at [50], where the Tribunal notes in addition to one disciplinary allegation proved against Rev Loos of bribing a witness, the Secretary relies on all the allegations mentioned in the Kooyoora Report. This includes allegations by Person 1 which were withdrawn and the allegations in relation to which charges were never formulated. In my view, the comment of the Tribunal at [56] was not demonstrative of the Tribunal placing any kind of onus but merely summarising the evidence that was before it in circumstances where some of those allegations have been withdrawn.
I accept there is no obligation on the Secretary to produce any evidence. There was a forensic choice and she chose to rely on the material in the Kooyoora Report to support her case. There are consequences to the forensic choice and those consequences here are that Rev Loos was believed and the weight of evidence was found to be in his favour. This is hardly surprising given the paucity and unreliability of the evidence against him. There was nothing further before the Tribunal to persuade it to arrive at a different view. That is not the same as saying the Tribunal was placing any kind of evidentiary burden on the Secretary. It was merely the Tribunal summarising the state of the evidence and alluding to those forensic consequences of the way the Secretary conducted its case.
At [58] of the Tribunal’s Decision, it was submitted the Tribunal notes that there was no direct or reliable evidence of Rev Loos having engaged in sexual abuse of children and only one alleged victim was able to be contacted, and then notes some significant evidentiary issues that it then goes on to make factual findings about. This is a neutral statement of the state of the evidence before the Tribunal and not a statement that the Secretary failed to adduce direct or reliable evidence. The Tribunal was merely noting the unsatisfactory state of evidence against Rev Loos.
At [111], the Tribunal summarises the PS Board’s determination. The Tribunal is merely stating for context what actually happened and what the PS Board found. This paragraph does not demonstrate a placing of onus on the Secretary.
The Secretary’s complaint in relation to [284] relates to there being no psychological assessment of Rev Loos’ risk of engaging in sexual abuse of children. This paragraph does not place any onus on the Secretary.
The Tribunal’s reasons show an acute awareness by the Senior Member that while there was a paucity of evidence against Rev Loos, the Tribunal must nonetheless apply the factors in s 65(2).
From [257] of the Tribunal’s Decision onwards, the Tribunal applies the factors under s 65(2). The Tribunal says the alleged conduct, which is the sexual abuse of Person 1, as a child is of course ‘extremely serious and clearly relevant to child‑related work’. The Tribunal then goes on to express reservations about whether the events alleged in fact happened and concludes at [259] by saying ‘[t]hat falls to be considered under other heads of analysis’.
Insofar as question 1 is advanced on the basis that the Tribunal placed an onus on the Secretary, it is not borne out by a fair reading of the reasons. The characterisation of the extracts referred to above as demonstrating a reversal of the onus of proof is to unfairly characterise and fail to read the Tribunal’s decision in its context, including the manner in which the Secretary cast its case before the Tribunal.
Accordingly, I find that question 1 is not made out.
Question 2: Did the Tribunal fail to take into account the nature and gravity of the conduct?
It was accepted by the parties that question 2 substantially overlaps with question 1. I will consequently deal with this question briefly.
Question 2 in the notice of appeal is:
Did the Tribunal fail to correctly apply s 108 of the WS Act by failing to properly consider and apply s 65(2)(a) of the WS Act, in that it failed to take into account the nature and gravity of the conduct?
Section 65(2)(a) of the WS Act provides:
(2)For the purposes of subsection (1)(a), the Secretary must have regard to—
(a) the nature and gravity of the conduct and its relevance to child‑related work …
Question 2 seeks to amplify the submissions made in respect of question 1, but specifically addresses how the Tribunal allegedly erred in applying s 65(2)(a), that is, it failed to consider the nature and gravity and relevance of the conduct and its relevance to child‑related work.
Question 2 is supported by the following grounds of review:
(a) Section 65(2)(a) of the WS Act required the Tribunal to take into account the nature and gravity of the conduct and its relevance to child‑related work. This provision does not require a factual assessment of the conduct, rather it is an objective assessment of the conduct.
(b) At [257] to [259] of its reasons, the Tribunal was not satisfied that the evidence was sufficient to prove the conduct, and therefore failed to consider and properly take into account the nature and gravity of the conduct. In doing so, it committed a jurisdictional error in that it misapplied s 65(2)(a).
As stated above, it is difficult to commence from the proposition that the Tribunal must accept as a given that the conduct alleged occurred.
The Tribunal does acknowledge at [257] that the allegation, if it had substance, is a serious allegation.
It was submitted that failing to properly consider the nature and gravity of the reportable conduct was a jurisdictional error because it went directly to the Tribunal’s core task. It was submitted that because the Tribunal qualified the basic statement at [258] where it said:
258If such conduct had been engaged in, or there was a reasonable basis for concluding that it had, in the face of the applicant’s denials, that would weigh heavily against him, albeit that it is alleged to have occurred between 1988‑1994, being 30‑36 years ago.
It was submitted that by determining that either of the allegations did not occur, or that the reportable conduct had no proper basis in fact, the Tribunal did not undertake its task of considering the mandatory considerations of the nature and gravity of the offence and its relevance to child‑related work.
The Secretary conceded that the Tribunal started on the correct approach in [257] but departed from it in a way that is extremely serious and clearly relevant because it ultimately found that there was insufficient evidence to support the allegation had in fact occurred.
The Secretary complains that throughout the decision the Tribunal qualifies the seriousness of the conduct using the words ‘if the conduct occurred’.
In my view, what the Tribunal communicates is a high degree of scepticism that the Kooyoora Report, which set in train the disciplinary process and WWC category C reassessment, had any substance.
The consideration in s 65(2)(a) of ‘the nature and gravity of the conduct and its relevance to child related work’ was properly considered by the Tribunal. I note that this subsection refers to ‘the conduct’, not to an allegation of conduct. This is in contradistinction to the terminology used in sub‑ss (b), (e), (f) and (g), which are all expressed in terms of ‘engaged or allegedly engaged in the conduct.’ For the reason already given, it is unnecessary to consider this further, but in my view this difference in phrasing additionally provides a rationale for the Tribunal to consider the background, circumstances and process which led the Secretary to exercise her power but also importantly to form a qualitative view of the conduct. This analysis is reinforced by the presence of s 65(2)(j) which requires the Tribunal to have regard to ‘any other matter’ it considered relevant, which demonstrates a legislative intention for the Tribunal, when carrying out its statutory role, to turn its mind to all relevant factors, including the credibility of the underlying allegation(s) which triggered the WWC category C reassessment in the first place.
The Tribunal refers to the consideration of s 65(2)(a) as follows:
[257]The alleged conduct as described in the CCYP Referral (adopting the Kooyoora Report) namely, sexual abuse of Person 1 as a child, is of course extremely serious, and clearly relevant to child‑related work.
[258]If such conduct had been engaged in, or there was a reasonable basis for concluding that it had, in the face of the applicant’s denials, that would weigh heavily against him, albeit that it is alleged to have occurred between 1988‑1994, being 30‑36 years ago.
[259] The issue here, of course, in relation to this category C application, is the extent to which there can be confidence that this alleged conduct occurred, in light of all of the paucity of evidence to support that proposition. That falls to be considered under other heads of the analysis.
These three paragraphs demonstrate clearly that the Tribunal understood the nature of the task before drawing an appropriate distinction in relation to the origin of a process whereby the alleged conduct had come to be considered as a WWC category C application by reassessment of the Secretary.
At [15]–[16], the Tribunal gave a high‑level overview of its factual findings. It found that the evidence concerning Person 1 was weak and so unreliable that the risk posed by Rev Loos is low. This is an entirely correct approach to both the law and the facts at a high level and consistent with s 108 of the WS Act given the origin of the reassessment to be conducted by the Secretary.
At [140], the Tribunal looks at the allegations made by Person 1 as well as the sequence of events around the payment to Person 1 and takes into account the Secretary’s submissions at [140] and [141].
At [142], the Tribunal notes that implicit in the case put on behalf of the Secretary is that the allegations in the draft statement are credible. It then considers the evidence of Rev Loos and the submissions made on his behalf about why the draft statement of Person 1 was not credible in the ensuing paragraphs.
The Tribunal then finds at [155]–[157] that the evidence including all the texts and emails is consistent with the narrative that Rev Loos started out believing the word of his long‑term friend and then over time feeling cheated. The Tribunal notes that it was Rev Loos who volunteered the names of persons who then became the alleged victims in the case against him and he finds that compelling.
At [157], the Tribunal finds that Rev Loos was somewhat naïve and gullible but was not acting under the influence of a strong instinct for self‑preservation. The Tribunal accepts the evidence of Rev Loos in terms of his dealings with Person 1. It was submitted that that is merely a fairly standard case of fact‑finding and findings on credibility.
The reasoning engaged by the Tribunal in the process is entirely orthodox. The sum total of evidence concerning Person 1 was a statement of Rev Loos for which he was cross‑examined, a draft statement and no other evidence from the Secretary other than a general reliance of the material (including the Kooyoora investigation documents) which were in the Tribunal Book. Thus, in circumstances where Rev Loos was believed and the draft statement against him was found to be unreliable, the Tribunal relied upon those findings in its application of s 108 and the factors under s 65 of the Act.
The Tribunal is required to be satisfied of the mandatory matters set out in s 108. The Tribunal may inform itself as it sees fit, subject to the rules of natural justice, and is not bound by the rules or practices and procedures of the superior courts except to the extent that it chooses to impose them. It is well‑established that the Tribunal’s role on review is inquisitorial in nature and that the Tribunal is to make the correct or preferable decision on the material before it.[37]
[37]Bausch v Transport Accident Commission (1996) 11 VAR 117, 137.
Section 108 of the WS Act requires the Tribunal to determine in its review of the decision to give a WWC exclusion that ‘in the particular circumstances, it would be appropriate to refuse to give a WWC clearance having regard to any of the matters to which the Secretary must have regard under s 65(2)’. The Tribunal must then consider the requirements set out in ss 108(2) and (3). Thus, the parameters set by the legislation require the Tribunal to form its own view of the material before it.
I am not persuaded that there is any substance to question 2. The Tribunal clearly acknowledged that the allegation was serious at [257]. As I have set out in relation to question 1, in my view, s 65(2)(a) allows the Tribunal to consider all of the material before it and form its own view of it. The decision on review for the Tribunal is one which is risk based and, in making its decision as required by s 108(1), the Tribunal must determine ‘whether in the particular circumstances’ it would be appropriate to refuse to give a WWC clearance having regard to each of the s 65(2) factors. This includes s 65(2)(j), which requires the Tribunal to have regard to ‘any other matter’ that it considered relevant to the application.
That, of course, is not the whole of the exercise as the Tribunal also needs to consider the ‘reasonable parent test’ and the ‘no unjustifiable risk test’ in s 108(2) and the ‘public interest test’ in s 108(3). Ascribing weight to each factor and in the assessment overall as to risk to the safety of children is an evaluative task for the Tribunal and is not a mathematical test but a qualitative one.
The Tribunal’s task in the statutory context of s 108 of the WS Act is to weigh the risk to children posed by an applicant having regard to their previous behaviour. The centrality of future risk to children and the Tribunal’s role in forecasting it is reflected in the tests contained in the subsections of s 108. The nature of the evidence or material to be relied upon in making its decision is very much within the Tribunal’s power and discretion, subject to the Tribunal’s obligation to act in accordance with natural justice.[38]
[38]TXD, [103].
The Tribunal has addressed each of the considerations set out in the WS Act and made observations as to its conclusions on the material that was before it. I consider the manner of expression to be no more than the Tribunal identifying that it was satisfied on the material relied upon by Rev Loos of each of the considerations the Tribunal was bound to consider. Essentially, the Tribunal was satisfied on the merits of the material actually before it that it was appropriate and in the interests of justice to make the decision that it did.
There is no error identified as raised by question 2.
Question 3: Did the Tribunal fail to accord procedural fairness to the Secretary?
This question of law is based on a claim of breach of procedural fairness by the Tribunal in not allowing the Secretary to test evidence upon which it said the Tribunal relied.
Question 3 in the notice of appeal is:
Did the Tribunal fall into error by acting contrary to s 102(1)(a) of the VCAT Act, in accepting and placing significant weight on the evidence of witnesses that were not made available for cross‑examination?
Question 3 is supported by the following grounds of review:
(a) Section 102(1)(b) of the VCAT Act provides that the Tribunal must allow a party a reasonable opportunity to cross‑examine a witness.
(b) The Tribunal permitted Rev Loos to give evidence in relation to his application.
(c) The Tribunal relied on evidence provided by Rev Loos, namely, evidence relating to Dr Richard Young and various parishioners, referred to by the Tribunal in its reasons at [245]–[253]. The Tribunal then relied on this evidence at [284] and [299] respectively.
(d) However, and contrary to s 102(1)(b) of the VCAT Act, the Secretary was not afforded an opportunity to cross‑examine Dr Young or the various parishioners in relation to the evidence relied upon by the Tribunal in making its determination.
(e) The Tribunal relied on this unsworn and untested evidence to make findings of fact which it took into consideration when applying the statutory tests in s 108 as well as the mandatory factors in s 65 of the WS Act.
(f) Had the Secretary had an opportunity to cross‑examine these witnesses, it would have explored certain propositions relating to risk.
(g) By relying on this evidence, the Tribunal committed a jurisdictional error as it denied the Secretary procedural fairness.
Secretary’s submissions
It was acknowledged that in the Tribunal the rules of evidence do not apply and the Tribunal can inform itself any way it deems fit.[39] It was accepted that the jurisprudence, particularly Craig and TXD, supports the proposition that administrative tribunals are by their nature very busy and that the legislation is structured to give timely, efficient access to justice.
[39]VCAT Act s 98(1).
It was also acknowledged that the jurisdiction was one where counsel do not take objections to evidence admissibility, that the rules of evidence do not apply and the standard procedure is to admit all evidence, then for the Tribunal to determine what weight to ascribe to the material received. It was further acknowledged by the Secretary that there is no obligation on counsel to object to evidence, ask for a ruling or if did not do that then counsel would be estopped from raising the question of evidence on appeal.
The Secretary submitted that it was not suggesting that these appeals should run like a Supreme Court trial. However, it was submitted that the parties are nonetheless entitled to procedural fairness and part of procedural fairness is allowing a party to test the evidence upon which the Tribunal will reach its decision.
The specific complaint as to procedural fairness was two‑fold. The first related to a petition signed by parishioners supporting Rev Loos. No issue was taken that the petition was received by the Tribunal. The Secretary argued that there was an inconsistent approach to the weight given to unsworn and/or untested evidence by discounting the validity of the allegations contained in the unsigned statement from Person 1, whereas the Tribunal gave weight to a petition where no parishioners were called to swear up to their belief or opinion or be available for cross‑examination. However, it was also conceded by the Secretary that there is no rule of law which says what is ‘sauce for the goose is sauce for the gander’ when it comes to the Tribunal’s treatment of witness evidence. In other words, the applicant accepted that the weight ascribed to the different pieces of evidence was, in principle, a matter for the Tribunal.
However, the inconsistency in approach was said by the Secretary to be demonstrative of a lack of procedural fairness because the trustworthiness of Rev Loos was a pivotal matter and the Tribunal’s resolution of this issue was affected by a denial of natural justice and the Secretary was adversely affected as the acceptance of this evidence was not made obvious by the Tribunal.
The complaint made by the Secretary is that if the Tribunal had raised with it that it was going to rely on the petition significantly, then it could have dealt with the issue differently. This went to the materiality of the omission.
The second procedural fairness matter was in respect of the inability to cross‑examine Dr Young. This proposition was pursued despite the reality that Dr Young’s report went to Rev Loos’ fitness to return to parish work after suffering depression and anxiety as a result of the professional conduct investigation, and did not relate to Rev Loos’ risk of harm to children; the Secretary wanted to cross‑examine him.
The Secretary argued that they had put Rev Loos on notice that all witnesses would be required for cross‑examination, in particular Dr Young and the parishioners.[40]
[40]Supreme Court Transcript, 17–19.
The Secretary submitted that the inability to cross‑examine Dr Young and the character evidence of the parishioners went to mandatory considerations of the Tribunal under s 108, in particular ss 65(2)(g)–(i) and 108(2), (3).
Rev Loos’ submissions
It was argued by Rev Loos that there are a number of unfounded assumptions raised by this question.
The witnesses and the material that was before the Tribunal in relation to those witnesses included a petition by some 57 parishioners that was annexed to the affidavit of Rev Loos before the Tribunal. There were two letters of support, one from a colleague and another from a petitioner.[41] There was also the report of Dr Young.[42]
[41]Court Book, 1086–8.
[42]Court Book, 1089.
The respondent submitted that question 3 fails on three bases.
First, there was no request to cross‑examine any of those witnesses. In this respect, the parties had corresponded about what witnesses were going to be called. The legal representative for Rev Loos had conveyed to the Secretary the only witness who would be called would be Rev Loos. One character witness gave evidence and was cross‑examined. There were two other character witness reports that had been included as part of the Tribunal Book but they were included because they were annexures to Rev Loos’ evidence before the Board. They were not specifically tendered before VCAT nor relied upon as part of Rev Loos’ evidence before VCAT. Counsel for Rev Loos emphasised that there is no obligation by a party to call a particular witness so that another party may cross‑examine them.[43]
[43]Magee v Boroondara City Council (2011) 182 LGERA 227, 246 [82].
Second, there was no objection taken to the Tribunal considering the evidence of those witnesses. It was accepted that the rules of evidence do not apply but the Tribunal is bound by the principles of procedural fairness. A party can request that certain evidence be excluded because of the unavailability of a particular witness for cross‑examination.[44]
[44] See Secretary to Department of Justice and Regulation v CZQ (No 1) [2018] VSC 760.
The Tribunal asked the parties whether there is any objection to any component of the Tribunal Book and counsel for the Secretary confirmed there was none and stated that
[f]or the sake of completeness of the record it’s important that [it] remains part of the record as the entire information you have at your disposal so no one can say that you didn’t take any relevant matters into account or anything like that.[45]
[45]Transcript of Proceedings, Loos v Secretary to the Department of Justice and Community Safety (Victorian Civil and Administrative Tribunal, Z885/2022, Senior Member Smithers, 17 May 2023), 179.
It was submitted in effect the situation here is exactly what the Court was talking to in CZQ.
Third, the evidence was immaterial to the decision. In respect of Dr Young’s report, the Tribunal refers to it at [235] and it was used to reassure to the Church and the PS Board of Rev Loos’ fitness to return to work rather than to provide any assessment of risk which he might pose to children. It was not a report done for the purposes of assessing the substance of any sexual abuse allegations or predilection.
Counsel for Rev Loos referred to [242] where the Tribunal considers the Secretary’s submission that Dr Young did not seek to address any issues associated with possible sexual offending. The Tribunal found that it would have been positive for Rev Loos had there been some kind of assessment in this regard. That being the only mention of the report demonstrates that the Tribunal’s conclusions go no further than to acknowledge it was not a report done for the purposes of assessing risk of sexual misconduct. It might have been helpful if there had been a report of that nature, but that is not the case here and there is otherwise minimal, if any, weight placed by the Tribunal on Dr Young’s report.
In terms of other character evidence, that was summarised at [250]–[253] where the Tribunal notes that there was a petition and a character reference from another parishioner. The Tribunal also notes a reference to a letter from a colleague. The Secretary complained that the evidence did not demonstrate the character witnesses were aware of the specific nature of the allegations as to the alleged conduct. Counsel for Rev Loos emphasised that the Tribunal was satisfied, however, that the witnesses were aware of the general nature of the conduct which is from the face of the evidence.
Consideration
Upon examination of the way in which the question of the evidence to be relied upon was before the Tribunal, the proposition that the Tribunal made an error as to procedural fairness is without substance.
The Secretary claims that it has been denied procedural fairness by not having the opportunity to cross‑examine Dr Young and all those who provided testimonials in favour of Rev Loos. However, when the way in which this issue was run before the Tribunal is examined, this proposition is specious.
Prior to the hearing, there was correspondence between the parties, and the Secretary was informed that only Rev Loos, a character witness and his lawyer were intended to be called. The response from the Secretary was that each of those individuals were required for cross‑examination ‘as well as any other witnesses that the applicant wishes to rely upon.’[46] This issue was revisited by the Tribunal in the hearing, the Tribunal questioning the extent to which the Secretary was submitting that ‘dozens’ of witnesses be called in respect of the character evidence.[47]
[46]First Respondent’s Outline of Submissions (filed 13 September 2024 in S ECI 2024 01459, Supreme Court of Victoria), [51]–[52].
[47]Transcript of Proceedings, Loos v Secretary to the Department of Justice and Community Safety (Victorian Civil and Administrative Tribunal, Z885/2022, Senior Member Smithers, 7 August 2023), 97–100 (‘VCAT Transcript of 7 August 2023’).
The Tribunal discussed with the Secretary the issues relating to the logistics of dealing with the request to make the witnesses, including the parishioners, available for cross‑examination.[48]
[48]VCAT Transcript of 7 August 2023, 97 referred to at Supreme Court Transcript, 18–19.
The Secretary was critical of the fact Dr Young had not been called in its cross-examination of Rev Loos, and in its written and oral submissions to the Tribunal. I deal with the relevance and the Tribunal’s views of Dr Young’s evidence separately.
At the Tribunal, the Secretary submitted that Dr Young’s evidence was of no relevance and weight as he did not conduct any psychological assessment of Rev Loos that went to risk of offending. Correctly, the Secretary identified that the report dealt with Rev Loos’ anxiety and depression and fitness to return to work.
It lies ill in the mouth of the Secretary to now argue that, on the one hand, the evidence of Dr Young was irrelevant to an issue relevant to the statutory task under s 108 for the Tribunal, then insist that there is a failure of procedural fairness that he was not available for cross‑examination.
In respect of the ‘character’ witnesses, the only character witness called was cross‑examined. The Tribunal specifically raised with the Secretary what it was to make of the parishioners not being called.[49] The response from the Secretary was that this evidence should be given little or no weight. There was no submission that it was not relevant, rather, that the material should be given little weight. The Secretary criticised more generally the state of the character evidence and submitted that it was pertinent that Rev Loos’ wife, child, members of the congregation and anyone who provided references had not been called.
[49]VCAT Transcript of 7 August 2023, 97–8.
These submissions are not complaints about procedural fairness but rather the quality of the evidence that the Tribunal had before it.
I note also that it was the explicit submission to the Tribunal by the Secretary that the whole of the material in the over 6,000‑page Tribunal Book be admitted into evidence.[50] There was no carve‑out of the character testimonials or the parishioners’ petition.
[50]VCAT Transcript of 7 August 2023, 43–4, 48.
I observe at the outset that it is a matter for a party as to the evidence and submissions that it makes in order to establish their case. There is no obligation to call a particular witness. The obligation on the Tribunal is to allow a party a reasonable opportunity to call or give evidence and to examine, cross‑examine or re‑examine witnesses. It is not an open‑ended opportunity. The obligation on the Tribunal to accord procedural fairness is given specific statutory acknowledgement by s 102 of the VCAT Act. The ambit of s 102(1) is constrained by the ordinary requirements of relevance.[51] The procedural obligation must be considered in the context of what issues are in dispute.
[51]Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295, [9].
In the context of the statutory function of the Tribunal under s 108 of the WS Act, issues relating to the protection of children from sexual or physical harm and the likelihood of future threat to children are the matters of central relevance to the Tribunal’s statutory function.
The Tribunal has the power to require a witness to be called and compel a party to be cross‑examined.[52]
[52]Spano v Business Licensing Authority [2000] VCAT 2320, [2].
The critical question is whether there is a procedural failure in the manner in which the issue of cross‑examination was dealt with by the Tribunal in the context of relevance to the critical or pivotal issues to be determined.
Dr Young’s report
In relation to Dr Young, the Tribunal deals with this evidence at [232]–[244] of the Tribunal’s Decision. The report expressed the opinion that Rev Loos was suffering an adjustment disorder and anxious and depressive mood, which was a psychological reaction to the serious allegations of misconduct made against him and the loss of his employment. As previously noted, the Tribunal records that the purpose of the report appears to have been to reassure the Church that Rev Loos was fit to return to work rather than to provide any assessment of risk which he may pose to children.
In my view, when properly assessed Dr Young’s evidence was not relevant to the pivotal or central question of risk. This report does not go to an issue in dispute and as a consequence the complaint by the Secretary, that they gave notice he should be made available for cross‑examination and that he was not made available for cross‑examination is a denial of procedural fairness and is contrary to s 102 of the VCAT Act, is unsustainable.
I note the adverse comment of the Tribunal at [238]–[241] that there was no evidence at all in the materials concerning paedophilia, that it appeared only in the Secretary’s submissions, and that the submission in this regard ‘should not have been made’ by the Secretary.
The Tribunal accepted the Secretary’s submission that Dr Young did not apply any diagnostic tool or seek to address any issues associated with possible sexual offending against a child. However, the Tribunal rejected the submission by the Secretary that the lack of psychological risk assessment is a matter which is adverse to Rev Loos’ case. Rather, as the Tribunal noted, it was ‘more correct to say that his case does not include what might have been a positive component, rather than a negative factor’.
The Tribunal addressed the issue of the availability of Dr Young as being of ‘not great significance’ as there was no apparent basis on which Dr Young’s conclusions of a previous adjustment disorder and anxious and depressed mood could be usefully challenged, and he did not deal with the issue of psychological risk assessment at all.
There is no mandatory requirement for a psychological risk assessment though, as the Tribunal rightly opined, such an assessment may be a positive component of an applicant’s case.
The Secretary submitted that Rev Loos’ trustworthiness with children was a ’pivotal’ matter. To use the language of the WS Act, the pivotal issue is whether he would ‘not pose an unjustifiable risk to the safety of children’. The factors set out in s 108 is the framework for that assessment.
How a person seeks to convince the Tribunal to the requisite state of satisfaction cannot be dictated by the other party to the proceeding. The Secretary was entitled to make submissions of what she saw as an inadequacy of evidence in relation to risk and that, in the absence of cross‑examination, the weight to be given to Dr Young’s report was reduced or even not admissible. However, it appears that these submissions were not made, and instead all that was argued before the Tribunal was that Dr Young’s observations ought to be given little or no weight and any psychological report relied on by the Rev Loos will require the author to be provided for cross‑examination.[53]
[53]Court Book, 511.
Objectively, considering the content of the evidence in light of the issues in dispute (and the other evidence before the Tribunal including the extensive cross‑examination of Rev Loos), this complaint as to availability for cross‑examination is sterile.
I agree with the observation of the Tribunal at [244] that
there is no apparent basis … on which Doctor Young’s conclusions of a previous adjustment disorder, anxious and depressed mood could be usefully challenged, and as stated, he did not deal with the issue of psychological risk assessment at all.
His evidence just did not go to the matter sought to be raised by the Secretary and seems a somewhat desperate attempt to conjure some evidence where there was none.
Character evidence
The second category of evidence about which the Secretary claims a breach of procedural fairness and breach of s 102 is in respect of the character evidence, including the parishioners’ petition. The Secretary had requested all 57 parishioners who gave character evidence be made available for cross‑examination. The logistics of this demand was raised directly with counsel for the Secretary by the Tribunal.[54]
[54]VCAT Transcript of 7 August 2023, 97–9.
The Tribunal set out how it dealt with the character evidence at [245]–[253]. The Tribunal noted that the only witness called, apart from Rev Loos himself, was a member of the parish council who had known him for over eight years. The witness swore an affidavit dated 16 March 2023 to which was exhibited a letter from the seven members of the parish council to the Bishop of the relevant Anglican diocese expressing support for Rev Loos whilst the Kooyoora investigation was ongoing.
The Tribunal recorded that the witness was clearly a loyal supporter of Rev Loos. The Tribunal commented that she tended to be fairly dogmatic in her evidence and she was vague about the nature of the allegations or reports against him, apparently basing her information on his response to matters set out in one of his affidavits. However, the Tribunal said that it was clear that the witness knew the applicant well from his work at the parish and had great confidence in his trustworthiness with children.
The Tribunal recorded that the petition addressed to VCAT, signed by 57 parishioners between November and December 2020, stated he was a valuable and trusted member of the clergy and that they did not have any concerns about him being in contact with children in the parish. There were other letters, including from a colleague who had known Rev Loos from around 1997 saying that ‘he could not believe the truth of the allegations against the applicant.’[55]
[55]Tribunal’s Decision, [252].
The Tribunal recorded the Secretary’s submission that it was not demonstrated that the character witnesses were aware of the specific nature of the allegations made in Sri Lanka. However, the Tribunal said that it was satisfied that they are aware of the general nature of the allegations of sexual abuse of children.
In my view, the absence of parishioners to cross‑examine was raised, and the Tribunal, in addressing the case management of the hearing, dealt with this issue. Calling 57 parishioners would be excessive and unreasonable. The Tribunal is entitled to exercise its judgement in respect of extent of cross‑examination. The requirement of s 102(1)(b) is to allow a party a reasonable opportunity to cross‑examine witnesses. It is appropriate in the aid of timely and efficient resolution of disputes for the Tribunal to avoid irrelevant or repetitive evidence.
In this regard, it is highly relevant to consider the manner in which the hearing was run, the lack of objection taken to the receipt of the petition and the other letters of support as being admissible, and the submissions made on behalf of the Secretary as to the admissibility and thus reliance on any of this material.
The suggestion that the Tribunal was required to bring to the parties’ attention what weight it was going to ascribe to any particular piece of evidence is not a foundation for the claim of breach of procedural fairness. It would require the Tribunal to effectively give a quote in advance of the opportunity to consider the evidence as a whole. This is inconsistent with the Tribunal’s ability to inform itself as it sees fit.
The corollary, that the Tribunal may identify evidence to which it will discard as having either no relevance or such little weight so to discard it, is not uncommon and if some evidence were to be flagged as of this calibre, that may be of assistance to the parties. Effectively, what the Secretary is saying is the breach of procedural fairness is that the Tribunal did not, in advance of the Secretary closing its case, give a quote on where or what weight the Tribunal was taking into account. To establish this as requirement in default of which the Court would be required to find a breach of procedural fairness would be inconsistent with the role, function and approach established by the legislature to enable the Tribunal to proceed in a less legalistic and formal manner and to undermine its power and function established by the VCAT Act.
In Von Hartel v Macedon Ranges Shire Council,[56] Justice Emerton held that the Tribunal failed to accord natural justice by failing to give notice at the hearing of the importance of certain facts on which the Tribunal then placed significance on in its reasons for deciding against the applicants. Reference was made to the High Court decision in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[57] as authority for the following propositions:
[56](2014) 48 VR 632.
[57](2006) 228 CLR 152.
(a) the rules of procedural fairness would ordinarily require the Tribunal to give a party adversely affected by this order the opportunity of ascertaining the relevant issues and be informed of the nature and content of adverse material;
(b) this right extends to require the Tribunal to identify to the person affected any issue critical to its decision which is not made apparent from its nature or the terms of the statute under which it is made; and
(c) procedural fairness does not however require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence.
In Aldi Foods Pty Ltd v Brimbank City Council,[58] Justice Emerton confirmed that procedural fairness does not normally require a Tribunal to disclose its thinking processes or its proposed conclusions.[59] Whilst it has been held that parties should be notified of ‘surprising conclusions’, or conclusions that could not be easily anticipated, in that decision, her Honour held that an erroneous conclusion based on facts that were fully exposed during the course of the hearing was not a surprising conclusion.
[58][2013] VSC 294, [62].
[59]Citing Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489, 505.
It is clearly set out in the legislation that the rules of evidence do not apply and the rules of natural justice do. The jurisprudence in respect of the practices and procedures of the Tribunal are well established and the Secretary conceded that this was so. It is abundantly clear that what weight the Tribunal gives to the relevant factors is a matter for the exercise of the Tribunal’s discretion.
Considering the reasons as a whole, the evidence challenged was not relied on to any material extent by the Tribunal in coming to its conclusions. The evidence was not objected to by the Secretary and it was evidence that the Secretary was free to make submissions as to weight, and the Secretary did so. The weight given by the Tribunal to this material is not a question of law.
This is not a circumstance where the material referred to and relied upon by the decision maker came out of the blue or where reliance by the decision-maker was not in the anticipation of the parties. Submissions were made by the Secretary as to the weight to be given to the petition and other letters of support and the report of Dr Young. The Secretary agreed that the entirely of the Tribunal Book was before the Tribunal.
I am not persuaded that the availability of these witnesses for cross‑examination is, in all of the circumstances of this case, a denial of natural justice or of materiality that affects the Tribunal’s decision.
I am not persuaded that question 3 is made out.
CONCLUSION
The WS Act and CWS Act have, at their core, the protection of children and young people from sexual and physical abuse. Such protection is expected in modern Australian society. However, an approach to prosecuting an allegation against an individual must properly and fairly apply the law, including in the conduct of review processes.
It is clear from the reasons given by the Tribunal that the Tribunal found the evidence to support the allegations manifestly unreliable. As a consequence, the Tribunal’s conclusion that there was negligible risk, if any, to children posed by Rev Loos being granted a WWC clearance was open to it. On review, I have no hesitation in finding that it was open to the Tribunal to form the view that to grant a WWC clearance was the correct and preferable decision.
A fair reading of the Tribunal’s reasoning demonstrates the Tribunal correctly identified its task on review and was satisfied that Rev Loos sufficiently met the criteria set out in the WS Act, and it was in the interests of justice that a WWC clearance be issued to him. It is as simple as that.
Acceptance that the allegation was made and was the trigger to commence the chain of events which followed is not the same as acceptance of the truth or substance of the allegation for the purpose of the assessment to be made by the Tribunal under ss 108 and 65. This would be a false construct.
The length of time since the commencement of this saga in October 2019 is highly regrettable. The background to this matter is mired in controversy and innuendo and Rev Loos has been subjected to investigations adversely affecting his health and reputation, not universally conducted with sensitivity and procedural fairness. This is aptly put by the Tribunal at [307]:
These are not easy matters to deal with. However, in my view, as is apparent from the narrative above, there are clearly aspects of the conduct of these processes, by multiple agencies, which could have been done much better.
ORDERS
Given the importance of the questions to the proper interpretation and application of the WS Act and processes, I grant leave to appeal on the first three questions of law raised in the notice of appeal. However, in accordance with the above reasons, I will refuse the appeal.
I will make orders accordingly and provide the parties with an opportunity to make submissions as to any application for costs.
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