Secretary to the Department of Justice and Community Safety v TXD

The case of Secretary to the Department of Justice and Community Safety v TXD involves an application for a Working with Children Check (WWC) under the Worker Screening Act 2020. The applicant sought the check in light of charges laid against the first respondent, who was found not guilty of grooming in 2015. Separate allegations of sexual misconduct made by a child in 2011 were also considered, with interviews conducted in 2019 regarding these allegations. The Victorian Civil and Administrative Tribunal (VCAT) excluded these interviews, finding they lacked sufficient probative weight. The applicant contested this decision, arguing that the Tribunal erred by ignoring relevant material and by failing to properly consider certain factors. The issues before the court were whether the Tribunal erred in excluding the interviews and in its consideration of prescribed factors.

The court examined whether the Tribunal had erred by excluding the 2019 interviews. It noted that the interviews had significant limitations that impacted their probative value and weight. The court found that no additional factual matters relevant to the allegations were presented in the interviews beyond what was already before the Tribunal. Furthermore, the interviews were not considered an essential feature of or centrally important to the Tribunal's statutory task. Consequently, the court determined that the Tribunal had not erred in excluding the interviews. Regarding the consideration of prescribed factors, the court found no jurisdictional error in the Tribunal's decision. It held that the Tribunal had properly considered the relevant factors and had not taken into account irrelevant considerations or failed to consider mandatory factors.

The appeal was dismissed by the court, and leave to appeal was granted only in relation to the exclusion of the 2019 interviews. The court concluded that there was no jurisdictional error in the Tribunal's decision to exclude the interviews or in its consideration of prescribed factors. The court's decision reinforces the importance of the probative value and relevance of material presented to the Tribunal in making its determinations.