Secretary to the Department of Justice v NJI
[2014] VSC 531
•22 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 01861
| SECRETARY TO THE DEPARTMENT OF JUSTICE | Applicant |
| V | |
| NJI | Respondent |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 September 2014 |
DATE OF JUDGMENT: | 22 October 2014 |
CASE MAY BE CITED AS: | Secretary to the Department of Justice v NJI |
MEDIUM NEUTRAL CITATION: | [2014] VSC 531 First Revision: 17 November 2014 |
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APPEAL – Appeal from decision of Victorian Civil and Administrative Tribunal – Appeal on a question of law – Statutory interpretation – Jurisdiction of Victorian Civil and Administrative Tribunal to review decision of Secretary to the Department of Justice – Working with children – Whether Category 1 or Category 2 application – Meaning of ‘who, as an adult … convicted or found guilty’ – Working with Children Act 2005 (Vic) ss 3, 12, 13, 17, 26, 29 – Children, Youth and Families Act 2005 (Vic) s 3.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K E Judd QC and Mr E M Nekvapil | Victorian Government Solicitor |
| For the Respondent | Dr R L Dean | Skinner & Associates |
HIS HONOUR:
The main question in this appeal is whether the application by the respondent, NJI,[1] an 18 year old male, for a working with children check had to result in a negative notice being given by the Secretary to the Department of Justice (‘the Secretary’) because he had been found guilty in the Children’s Court of sexual offences committed when he was 17 years of age. The answer to the question turns on whether, in the language of the legislation, the application was a ‘Category 1 Application’ or was a ‘Category 2 Application’. It was a Category 1 Application if NJI had been found guilty ‘as an adult’ of certain sexual offences, specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (Vic), against a child. The Secretary was required to refuse to give an assessment notice on a Category 1 Application, but NJI could then apply to the Victorian Civil and Administrative Tribunal (‘the Tribunal’) in its original jurisdiction for an assessment notice to be given to him.
[1]By an order dated 5 December 2013, the Tribunal ordered that the name of the respondent be anonymised and that he be referred to as ‘NJI’, in accordance with s 17 of the Open Courts Act 2013 (Vic). On 3 September 2014, this court ordered that documents on the court file in this proceeding remain confidential and not be available for inspection or copying, pursuant to r 28.05(2)(a) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).
NJI’s application would be a Category 2 Application if he had been convicted or found guilty of a sexual offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (Vic), in circumstances which did not make the application a Category 1 Application, for example, he was a child when convicted of the offence.
Category 2 Applications must first be determined by the Secretary with a right of review of the Secretary’s decision to the Tribunal. The considerations to which the decision-maker must have regard are identical in Category 1 and Category 2 Applications.
The significance of this issue to NJI is whether he was entitled to have his application determined, at least initially, by the Secretary, which was the case if his was a Category 2 Application, or whether he was obliged to take his case to the Tribunal, because the Secretary had validly decided that his application was a Category 1 Application.
Procedural history
The Secretary seeks leave to appeal, pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), against an order of the Tribunal made on 7 March 2014.[2] Written reasons for the order were given by the Tribunal on 20 March 2014. In the event that leave is granted, the Secretary seeks to have the Tribunal’s order set aside by this court, pursuant to s 148(7)(a) of that Act.
[2]Lambrick DP.
On 7 October 2013, the respondent, NJI, applied for a working with children check under s 10 of the Working with Children Act 2005 (Vic) (‘the Act’). Under s 33 of the Act, it is an offence to engage in child-related work without an assessment notice. In a practical sense, the effect of an ‘assessment notice’ is that you may lawfully work with children.
On 4 November 2013, the Secretary refused NJI’s application and issued a negative notice.
The Secretary refused NJI’s application because he considered that his application was a Category 1 Application, as he considered that NJI was an adult for the purposes of the application of the Act.
As previously indicated, the Act establishes categories for applicants who have been subject to orders because of criminal behaviour. This case concerns the meaning of two categories: Category 1 and Category 2.
A Category 1 Application is defined in s 12(1)(c) of the Act as one involving an applicant who has, as an adult, been convicted or found guilty of an offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (Vic) (‘Schedule 1 Offence’). Schedule 1 lists ‘Serious Offender Offences’ including sexual offences. The Secretary must refuse a Category 1 Application and issue a negative notice.[3]
[3]Sections 12(2) and 17(3).
A Category 2 Application is defined in s 13(1)(a) of the Act as being in respect of a person who has at any time been convicted or found guilty of a Schedule 1 Offence, ‘other than in circumstances referred to in section 12(1)(c) or 12(1)(d)’. The Secretary has power to give an assessment notice on a Category 2 Application. However, he must not do so unless satisfied that doing so would not pose an unjustifiable risk having regard to specified considerations: s 13(2). If the Secretary decides not to issue an assessment notice on a Category 2 Application, the applicant can apply to have the Tribunal review that decision.
The Secretary decided that NJI’s application was a Category 1 Application because he considered that NJI had been found guilty, as an adult, of relevant offences. On 24 September 2013, when NJI was aged 18, he was found guilty, pursuant to s 45(1) of the Crimes Act 1958 (Vic), in the Children’s Court of Victoria of three counts of sexual penetration of a child under the age of 16. That offence is a Schedule 1 Offence. The offences took place between 15 September 2012 and 18 November 2012, when NJI was aged 17 years of age. Criminal proceedings were commenced against him on 12 June 2013. The sentence imposed was that, without conviction, the charges were adjourned to 23 September 2014. NJI was released upon entering a good behaviour bond in the amount of $200.00 to be of good behaviour during the period of the bond.
The Tribunal application
NJI lodged an application with the Tribunal in respect of the Secretary’s decision to give him a negative notice. In effect, NJI, under s 26(1) of the Act, applied for an order directing the Secretary to issue him with an assessment notice.
In his application to the Tribunal, NJI stated:
Upon court appearance it was noted by the magistrate that I was to go ahead with application for the Working with children.
It must also be noted that at the time of the offence I was under 18 but due to hold ups with police, the case did not get to court until I had turned 18. The matter was held in the childrens court…
NJI’s application then explained why he required a working with children check to pursue his chosen career.
As NJI was born on 18 July 1995, as previously stated, he was 17 years of age at the time of both the commission of the offences and the commencement of criminal proceedings. He was 17 years and one month at the time of the first offence and 17 years and three months at the time of the last offence.
NJI sought a jurisdictional hearing to argue that his application was a Category 2 Application and not a Category 1 Application. He argued that this followed from the fact that he committed the offences when he was a ‘child’, within the meaning of the Act, and he was dealt with as a child by the criminal justice system, having been sentenced in the Children’s Court.
The Tribunal listed the application to hear and determine that issue. In my opinion, the Tribunal acted appropriately in conducting a preliminary jurisdictional hearing. The Tribunal, as a statutory tribunal, has the initial jurisdiction to determine if a matter is within its jurisdiction.[4] This function has been described as the ‘first duty’ of a court and that same duty applies to a Tribunal.[5] That is not to say that in all cases the existence of jurisdiction can be determined as a preliminary issue. In some cases, findings as to jurisdiction will depend on the facts found and may only be able to be made after evidence has been received.
[4]See J Pizer, Pizer’s Annotated VCAT Act (JNL Nominees, 4th ed, 2012) 116, referring to Re Boulton; Ex Parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129, 133.
[5]Hazeldell Ltd v Commonwealth (1924) 34 CLR 442, 446, referred to in M Leeming, Authority to Decide: the Law of Jurisdiction in Australia (Federation Press, 2012) 35.
The Secretary submitted that a Category 1 Application was one where the applicant’s conviction or finding of guilt occurred when he or she was an adult, regardless of the date of the offence. He submitted that the Act identifies two classes of person: ‘adult’ and ‘child’. Whilst ‘adult’ is not defined in the Act, s 3(1) defines ‘child’ as ‘a person under 18 years of age’, and the Secretary submitted that an ‘adult’ is any person who has turned 18.
The Tribunal rejected the Secretary’s submissions and found that NJI’s application had been incorrectly classified by the Secretary as a Category 1 Application. The Tribunal found that NJI had been found guilty and sentenced as a child in the Children’s Court and that that court had determined that NJI was a ‘child’ as defined in s 3(1) of the Children, Youth and Families Act 2005 (Vic) (‘CYF Act’). Accordingly, NJI was not convicted or found guilty ‘as an adult’, notwithstanding that he was 18 years of age when found guilty. His application should therefore have been classified as a Category 2 Application, that is, an application to which s 13(1)(a) of the Act applies. The Tribunal stated in the course of argument:
It seems to me to be a very straightforward question of fact, ‘Was there a finding of guilt as an adult or was there a finding of guilt as a child’?[6]
[6]CB 114.
The Tribunal’s reasoning is contained in the following passage:
NJI was found guilty and sentenced as a child in the Childrens’ Court. He was not found guilty as an adult. He had not reached the age of 19 years. The fact that the Act defines ‘child’ to mean ‘a person under 18 years of age’ does not mean that contrary to the Children, Youth and Families Act 2005 NJI was found guilty and sentenced as an adult.[7]
[7]CB 93.
Under s 26(1) of the Act, the Tribunal has original jurisdiction to hear an appeal from the Secretary’s decision to issue a negative notice, because the application has been classified as a Category 1 Application and the Secretary cannot assess the merits of the application against the considerations specified in s 13(2). This is to be contrasted with the Tribunal’s review jurisdiction, established in s 26(5)(b), under which the Tribunal may review a decision by the Secretary not to issue an assessment notice for other categories of application, including a Category 2 Application.
There is a significant difference between the task facing a Category 1 Applicant and that facing other applicants. The Category 1 Applicant must apply to the Tribunal and that process may require obtaining legal assistance, and involve greater cost and time. In contrast, a Category 2 Applicant receives the Secretary’s decision on his or her application and only if the application is refused does he or she have to consider seeking a review of that decision by the Tribunal. Parliament has established two categories of application not merely for the purpose of administrative efficiency, but to enliven two distinct Tribunal jurisdictions: a Category 1 Application is considered in the original jurisdiction whereas a Category 2 Application is determined by the Secretary in the first instance and on review by the Tribunal.
The Tribunal accepted the parties’ joint submission about the order that it should make following its findings. The Tribunal dismissed NJI’s ‘substantive application’ on the understanding that the Secretary would either categorise it as a Category 2 Application or, as occurred, seek to appeal the Tribunal’s ruling.
Appeal by the Secretary
The incongruity in the Secretary appealing an order that dismissed an application brought against him is explained by the fact that the Tribunal dismissed the application on a ground that the Secretary contends was incorrect. He contended, and it was not argued to the contrary, that he is able to appeal the order of the Tribunal if he can establish an error of law arising out of it, by which he is aggrieved. I accept that to be the case, at least where the error of law may have impeded the performance of the Secretary’s statutory responsibilities.
The Secretary relies upon three grounds of appeal relating to the following question of law, set out in his Proposed Notice of Appeal:
Is a person aged 18 at the time of being found guilty by the Children’s Court of Victoria of an offence an ‘adult’ within the meaning of s 12(1)(c) of the Working with Children Act 2005 (Vic) (the WWC Act)?
The legislation
The relevant provisions of the Act in this appeal are ss 3(1), 12(1)(c), 13(1)(a) and 29, which provide as follows:
3 Definitions
(1) In this Act—
child means a person under 18 years of age; …
12 Category 1 application
(1) An application is a category 1 application for the purposes of this Act if it is in respect of a person—
…
(c)who, as an adult, has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence (other than a child pornography offence or carnal knowledge offence) specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences) in circumstances where the person against whom the offence is committed is a child; …
13 Category 2 application
(1) An application is a category 2 application for the purposes of this Act if it is in respect of a person—
(a)who has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences) other than in circumstances referred to in section 12(1)(c) or 12(1)(d); …
29 Children
(1) A child is exempt from a working with children check.
(2)An adult who has not attained the age of 20 years and who is a student at an educational institution is exempt from a working with children check in respect of any work engaged in as a volunteer at that institution or outside that institution under an arrangement entered into by that institution.
The grant of leave to appeal on the question of law, under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), was not opposed. The issue of whether leave to appeal should be granted was heard together with the proposed grounds of appeal. Having heard the substantive argument, and for the reasons that follow, I consider that there is a real or significant argument that error exists in the Tribunal’s decision, and that the Secretary’s grounds of appeal are sufficiently arguable to justify the grant of leave to appeal.[8] Leave is granted.
[8]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331.
Ground 1: Construction of s 12(1)(c)
The first ground upon which the applicant relies is as follows:
The Tribunal erred in its construction of s 12(1)(c) of the WWC Act by holding that the Respondent was not a person who fell within the scope of s 12(1)(c) notwithstanding that he was 18 years of age at the time of being found guilty of three counts of sexual penetration of a child under 16 years of age pursuant to s 45(1) of the Crimes Act 1958.
The Secretary’s Submissions on Ground One
The Secretary submitted that the plain words of s 12(1)(c) require that an application be considered as a Category 1 Application where the applicant was an adult at the time when he or she was convicted or found guilty of a Schedule 1 Offence. An adult is a person 18 years or above. This plain reading of s 12(1)(c) was to be preferred to the interpretation, proposed by NJI before the Tribunal, ‘that transplants jurisdictional definitions’ of the term ‘child’ from the CYF Act.
The jurisdiction of the Children’s Court Criminal Division is to hear and determine specified charges against children. Its jurisdiction depends on an alleged offender being above the age of 10 years and being under the age of 18 years at the time of the alleged commission of the offence, but not of or above the age of 19 years when a proceeding for the offence is commenced in the court.[9] Unlike the Act, s 3(1)(a) of the CYF Act defines ‘child’ with reference to the offender’s age at the time the offence was committed, rather than the offender’s age at the time of conviction or a finding of guilt.
[9]Section 516 of the Children, Youth and Families Act 2005 (Vic).
To decide whether a person comes within s 12(1)(c), the Secretary or the Tribunal is required to determine, as a question of fact, the age of the applicant at the time of being convicted or found guilty of a relevant offence and, as a question of law, whether the person is a ‘child’ (under 18) or an ‘adult’ (not under 18). The Tribunal conflated these two questions by correctly determining NJI’s age at the date upon which he was found guilty, but then relying on the definition of ‘child’ in the CYF Act, rather than the definition contained in the Act, to determine whether NJI was an ‘adult’ for the purposes of s 12(1)(c).
The Secretary submitted that if Parliament had intended that s 12(1)(c) be interpreted in accordance with the jurisdictional provisions of the CYF Act, it would have said that in order for s 12(1)(c) to apply, the Schedule 1 Offence must have been committed as an adult.
The Secretary also submitted that principles of statutory interpretation do not permit the interpretation of a term in one Act by application of the definitions contained in other legislation,[10] in this instance, the CYF Act. The definition of ‘child’ in s 3(1) of the Act is ‘fundamental to the operation of the Act’. Therefore, it is inappropriate to ‘transplant’ into the Act the definition of ‘child’ in the CYF Act, for the purpose of modifying the definitions of ‘child’ or ‘adult’ in the Act.
[10]Citing Austwide Institute of Training Pty Ltd v Dalman (2009) 23 VR 45, 56 [46].
The Secretary submitted that the two Acts had different purposes. The Working with Children Act 2005 (Vic) focuses on ‘protecting children from sexual or physical harm by the offender’ whereas the CYF Act, and other Acts relating to the criminal jurisdiction of sentencing courts, ‘focus on the offender’ including special penal and rehabilitative sentencing considerations applicable to child or other non-adult offenders.
The Secretary relied on the plain words of s 12(1)(c) and cited authorities concerning statutory interpretation, including a passage from Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) which stated:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. [11]
[11](2009) 239 CLR 27, 46–7 [47].
In oral submissions, counsel for NJI noted that the above passage from Alcan is immediately followed by reference to the context and purpose of the provision in question in the following terms:
The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[12]
[12]Ibid.
The Secretary submitted that the term ‘adult’ is used in a number of places in the Act, including in provisions in which the terms ‘adult’ and ‘child’ are used oppositionally, and should be construed so as to have the same meaning in each instance.[13]
[13]The Secretary relied on Doughty v Martino Developments Pty Ltd (2010) 27 VR 499, 508 [19].
The Secretary relied on s 29 of the Act, which provides for limited exemptions from working with children checks. Section 29(1) exempts a child from having to obtain a working with children check, while s 29(2) exempts an adult who has not attained the age of 20 years, and who is a student, from a working with children check in respect of certain voluntary work.[14] The Secretary submitted that s 29(2) indicates that persons aged 18 or 19 are included within the general definition of ‘adult’, for the purposes of the Act, as they are there specifically identified as being adults.
[14]See also Explanatory Memorandum, Working with Children Bill 2005 (Vic) 13.
The Secretary also relied on s 3(1)(a) of the Age of Majority Act 1977 (Vic), which states that ‘for all the purposes of the laws of the State … a person who … attains the age of 18 years, attains full age and full capacity on attaining that age’. That was a provision of general application and suggested that in Victoria an adult is a person of 18 years and over.
NJI’s Submissions
NJI submitted that the words of s 12(1)(c) implicitly refer to the age of a person when he or she commits the relevant offence under the criminal law. The provision refers to Schedule 1 of the Sentencing Act 1991 (Vic), which in turn refers, and relates, to other criminal law legislation setting out the elements involved in the commission of relevant offences. Schedule 1 forms part of the broader jurisdictional and procedural criminal law regime in which a finding of guilt or conviction occurs. The Sentencing Act 1991 (Vic) only applies once a conviction or finding of guilt is made.
The essential elements of s 12(1)(c) are that a Category 1 Application is one where:
(a) the applicant is an adult;
(b)as an adult, the applicant committed an offence specified in clause 1 of Schedule 1 of the Sentencing Act 1991 (Vic);
(c) the applicant committed the offence against a child; and
(d) the applicant has been found guilty or convicted of that offence.
As the commission of an offence is a necessary precondition to a finding of guilt or conviction in relation to that offence, the words of s 12(1)(c) should be read as not extending to Schedule 1 Offences committed by a ‘child’, regardless of whether he or she was an ‘adult’ when convicted or found guilty. The commission of a relevant offence by an adult against a child is the gravamen of s 12(1)(c). Therefore, the phrase ‘as an adult’ is principally concerned with the classification of the offender at the time the offence was committed, rather than when the offender was convicted or found guilty. The procedure by which the conviction occurred was relevant and the phrase ‘has at any time’ in s 12(1)(c) was ‘linked directly’ to the commission of the offence.
Further, the comprehensive criminal law regime, of which the Sentencing Act 1991 (Vic) is part, consistently distinguishes between adults committing criminal offences and non-adults. NJI was aged 17 at the time the offences were committed and at the time the criminal proceedings against him were commenced. The Children’s Court had jurisdiction to hear and determine the charges against him. The Children’s Court had, in effect, determined that NJI was not an ‘adult’ and it was inappropriate that an administrative decision-maker should apply a different categorisation.
NJI submitted that the Secretary’s reading of s 12(1)(c) penalised an applicant under the Act solely on the basis of his or her age at the date when he or she was convicted or found guilty. The Secretary’s suggestion that his interpretation provided ‘certainty for bureaucrats in making a quick and easy decision’, was not likely to have been the legislative intent underpinning such an important matter as the categorisation of applications. That categorisation should not depend on ‘how long the police take to get an action up before the court’ or ‘how busy the court’s timetable is’, or be the result of ‘sheer bad luck’.
Thus, NJI submitted that his trial before the Children’s Court took place after his 18th birthday solely as a result of administrative processes beyond his control. The only factor that distinguished his case from another applicant who had committed the same offence on the same day and been found guilty or convicted prior to turning 18, was a delay in the administration of justice.
The court system treated him as a child and not as an adult, because he had not yet reached sufficient maturity (19 years of age) to handle a charge transferred to the adult courts.
The Secretary’s construction of s 12(1)(c), which resulted in NJI’s application being classed as a Category 1 Application, had the potential to infringe his common law right to ‘contract with people and work with whom he wishes’. NJI’s desired vocation involved working with children. Parliament had not clearly abrogated his fundamental common law right to work. [15]
[15]Potter v Minahan (1908) 7 CLR 277; Coco v R (1994) 179 CLR 427; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309.
The Secretary’s Submissions in Reply
The Secretary referred to the recent judicial consideration and qualification of an individual’s right to work with children, by the Victorian Court of Appeal in WBM v Commissioner of Police.[16]That case considered the constraints imposed under the Sex Offenders Registration Act 2004 (Vic), including a registered offender’s ability to obtain a working with children assessment notice. Warren CJ stated:
While there may be a common law right to carry on a business or to work in a trade of one’s choosing, such a right has now been qualified across the States and Territories by the introduction of legislation requiring checks and certificates to work with children in Australia. Working with children has become a “privilege” rather than a right. It is true that the restrictions created by the [Sex Offenders] Registration Act can affect those who have not committed sexual offences against children. They probably also interfere with the rights even of those who worked or were planning on working in employment that may not in reality ever involve an offender actually coming into contact with children. Many jobs nowadays require these checks even where there is no actual work with children or only minimal contact with children. However, these latter considerations are extraneous to the [Sex Offenders] Registration Act. The [Sex Offenders] Registration Act in and of itself only abrogates the right of a person to work with children.[17]
[16][2012] VSCA 159.
[17]Ibid [87], Hansen JA agreeing (citations omitted).
The Secretary submitted that s 12(1)(c) cannot be said to ‘strongly engage the principle of legality’ and, in any event, its impact on NJI’s right to work may not be as significant as first appeared.
The Secretary also relied on the fact that an applicant who has received a negative notice has an automatic right of appeal to the Tribunal. The same considerations are to be applied by the Tribunal in Category 1 Applications (s 26(2)) and by the Secretary and the Tribunal on review when dealing with Category 2 Applications (s 13(2)).
However construed, s 12(1)(c) of the Act is capable of applying differently to two people born on the same day, who committed an offence on the same date, and who are aged 17 years, depending on the way in which the matter came before and was conducted in the criminal court.
Consideration of Submissions
Ground 1
The starting point for the interpretation of s 12(1)(c) is the plain words of the provision. I have set out earlier in this judgment passages from the High Court decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory).[18]
[18](2009) 239 CLR 27,46-7 [47].
Warren CJ summarised the relevant principles in WBM v Chief Commissioner of Police as follows:
Statutory construction begins with considering the text of the provision. Ordinarily, but not always, the natural and ordinary and grammatical meaning of the words of a statutory provision should and will correspond with its legal meaning. However, the natural and grammatical meaning of almost any given phrase may alter by virtue of its context in a sentence, a section or an Act. In such cases, without referring to the wider context, even the natural or strict grammatical meaning of a phrase might be ambiguous or misleading.[19]
[19][2012] VSCA 159 [31] (citations omitted).
The issue is the meaning of the words at the commencement of s 12(1)(c), ‘a person … who, as an adult, has at any time … been convicted or found guilty of an offence’. The key word in that phrase is the word ‘as’.
The word ‘as’ has a range of meanings. The most apt for present purposes are: ‘in the manner in which, as if, as though or when or while’.[20]
[20]Macquarie dictionary online (2003–) < meanings 4, 6 and 7.
For the reasons that I give below, I consider that the phrase ‘as an adult’ means ‘as though an adult’ and not ‘when an adult’.
I do not consider that either interpretation proposed by the parties provides greater certainty to the public servants who administer the working with children process. Under both proposed interpretations, they will need to read court orders made in respect of offences committed by applicants to ascertain either the age of the offender when convicted or found guilty or whether he or she was treated as a child when convicted or found guilty.
The expression ‘as an adult’ is ambiguous and could be read in the manner advanced by the Secretary or by NJI. However, in my opinion, the interpretation adopted by the Tribunal best promotes the purpose of the Act: s 35(a) of the Interpretation of Legislation Act 1984 (Vic).
The main purpose of the Act is ‘to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body’.[21]
[21]Section 1(1) of the Act.
It is common for legislation to refer to a child found guilty of a serious criminal offence as being tried as an adult or sentenced as an adult.[22] Those expressions mean that the child is tried or sentenced applying the procedures that apply to the trial of, or sentencing of, an adult.
[22]See R, JM v Police (2012) 113 SASR 9, considering s 31(4) of the Criminal Law (Sentencing) Act 1988 (SA) and R v OQ [2011] QCA 348, considering s 144 of the Youth Justice Act 1992 (Qld).
I prefer the Tribunal’s interpretation of the phrase ‘as an adult’ as it captures the manner in which the criminal justice system treats an offender. Category 1 persons are those who have been treated by, or dealt with by, the criminal justice system as adults. The purpose of Category 1 classifications is to classify offenders who have been convicted or found guilty as adults of serious offences.
Determining whether an applicant for an assessment notice is a Category 1 or Category 2 Applicant by reference to the applicant’s age when he or she was convicted or found guilty does not directly advance the purpose of the Act. The applicant’s age when convicted or found guilty is dependent on contingencies such as when an offender’s charges are heard and determined.
I consider that reading the words ‘as an adult’ as meaning ‘as though an adult’ rather than ‘when an adult’ does promote the purposes of the Act. It looks at the procedure that the administrators of the criminal justice system, including the courts, have considered appropriate to apply to the applicant. Reading the words as referring to the age when the applicant was convicted or found guilty tells little of the nature of the offending or the risk that the applicant poses to children.
It is noteworthy that when the Act sets out the considerations relevant to whether the giving of an assessment notice ‘would not pose an unjustifiable risk to the safety of children’, it states that one relevant consideration that must be considered is:
(e)the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence.[23]
[23]Sections 13(2)(e) and 26(2)(e).
Within the criminal justice system, a person who committed an offence when aged less than 19 years may be treated in a number of ways. One is by their charges being heard and determined in the Children’s Court. That court has criminal jurisdiction, as set out in s 516 of the CYF Act, over a person who is between 10 and 17 years of age at the time of the commission of an offence. Once a person is within the court’s jurisdiction, he or she remains so, even if he or she is 18 years of age at the commencement of a proceeding in relation to that offence. If a person is of, or above, the age of 19 years before, or during, the hearing of that offence, the court must hear and determine the matter unless exceptional circumstances exist, such as would warrant the transfer of the matter to another court.[24] When a person’s charges are heard and determined in the Children’s Court, they are not treated as an adult and a conviction or finding of guilt in respect of those charges is not made against them as an adult.
[24]See s 516(5) of the CYF Act.
Another way in which a person may be convicted or found guilty other than as an adult is when the sentencing court applies a sentencing option that is not available to adults under the relevant criminal statute. For example, under the Sentencing Act 1991 (Vic), certain sentencing conditions can only be imposed on a ‘young offender’, which term is defined as a person who, at the time of being sentenced, is aged under 21 years.
I accept the Secretary’s submission that the policy for treating a person as a ‘child’ for sentencing purposes, which include penal and rehabilitative purposes and focus on the offender, is very different from the policy underlying the Act, which focuses on protecting children from sexual or physical harm by an offender. But it does not follow from that conclusion that the treatment of an offender by the criminal justice system cannot be the reason for determining whether they have been treated as an adult and, if the charges against them are proved, convicted or found guilty ‘as an adult’.
I do not base my interpretation of s 12(1)(c) of the Act on the provisions of the CYF Act, but on the manner and process by which NJI was found guilty. That finding followed the procedures of the children’s criminal justice system and his sentence was also a product of that system.
It is therefore appropriate to conclude that NJI was found guilty as a child.
I do not accept NJI’s submission that the words ‘convicted or found guilty’ are to be read as including reference to the date of the commission of the offence. Whilst s 12(1)(c) refers expressly to the Sentencing Act 1991 (Vic), to imply a reference to the age of the offender when he or she committed the offence would be to substitute one point in the criminal process for another and to add words to the section.
Nor do I accept NJI’s submission that s 12(1)(c) unlawfully interferes with his right to work. The reasoning in WBM v Chief Commissioner of Police[25] provides the answer to that proposition.
[25][2012] VSCA 159.
Extrinsic materials can be referred to in order to resolve the ambiguity present in s 12(1)(c). In this regard, the Secretary took the court to the Act’s Explanatory Memorandum,[26] and NJI referred to the Minister’s Second Reading Speech of the Working with Children Bill 2005 (Vic).[27]
[26]Explanatory Memorandum, Working with Children Bill 2005 (Vic).
[27]Victoria, Parliamentary Debates, Legislative Assembly, 21 July 2005 (Rob Hulls, Attorney-General).
The Secretary relied upon the Explanatory Memorandum’s discussion of the effect of s 29 of the Act, in excluding certain 18 and 19 year olds from working with children checks.
Counsel for NJI referred to the Second Reading Speech, and submitted that the Minister had clearly distinguished between ss 12(1)(c) and 13(1)(a) on the basis of an offender’s status as an ‘adult’ or a ‘child’ at the time when he or she committed a Schedule 1 Offence against a child. The Second Reading Speech does provide some support for that construction in the following passage:
The next category of offenders are those with convictions or findings of guilt for serious sexual offences against an adult or against children committed when the offender was a child … In all of these cases the applicant is presumed to be unsuitable to work with children. However, this is a presumption rather than a hard and fast rule, and there will be a discretion to grant an assessment notice to a person who falls within this category.
The discretion is given to the Secretary of the Department of Justice. The secretary may only grant an assessment notice if she is satisfied that the person does not pose an unjustifiable risk to the safety of children, having regard to a number of factors. These factors include the age of the offence, the seriousness of the offence, the ages of the applicant and the victim at the time of the offence, and the applicant’s behaviour since the offence was committed.[28]
[28]Ibid 2000.
However, for the reasons I have given, I consider that the interpretation of s 12(1)(c) adopted by the Tribunal best promotes the purposes of the Act.
The Secretary’s reliance upon the Age of Majority Act1977 (Vic) is of limited assistance. That Act does not define ‘adult’, but rather the age at which a person obtains ‘full legal capacity’. Further, s 3(2) of that Act limits the application of this definition of full legal capacity to legislation in which there is no reference to ‘an age expressed in years’.
Section 12(1)(c) is one of an extensive list of provisions, in Part 2 of the Act, which place applicants for assessment notices into categories based on the nature of their criminal offences and the conditions of their sentence, including conditions such as being placed on a Register and being subject to monitoring. These provisions again focus on how the applicant has been treated by the justice system, rather than focusing on the sole criterion of their age when convicted or found guilty.
The Secretary submitted that it was significant that the word ‘adult’ was used uniformly throughout the Act and that on basic principles of statutory interpretation, the same meaning was to be given to a word wherever it appeared in the Act.
The qualified description of ‘adult’ contained in s 29(2) occurs in the context of an exemption section headed ‘Children’. That section exempts from the Act’s general regulatory regime all children and certain 18 and 19 year olds. Section 29(2) throws some doubt on the suggestion that the term ‘adult’ has a uniform meaning throughout the Act.
The dichotomy between ‘child’ and ‘adult’ that the Secretary contends is present within the Act, is not evident in s 12(1)(c) and its companion provision, s 13(1)(a). Section 13(1)(a) is silent on the status of the persons to whom it applies. The interaction of ss 12(1)(c) and 13(1)(a) indicates a dichotomy between ‘adult’ and ‘non-adult’, with the latter being a person who has not been convicted or found guilty ‘as an adult’. While s 13(1)(a) applies to a ‘child’, as defined in the Act, it is not limited to such persons. I do not consider that the scheme of the Act supports the suggestion that, in all circumstances when it refers to an ‘adult’, it is referring to persons aged 18 years or over. I do not consider that ‘adult’ bears that meaning in the phrase ‘as an adult’.
Ground of Appeal 1 has not been established.
I add that I raised with the parties whether issues arose of the limitation of NJI’s rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Neither party sought to raise Charter arguments. I would have thought that there may have been an argument that the human rights contained in ss 23(2) and (3), dealing with the rights of children in the criminal process, and the interpretative principle contained in s 32 required consideration. Sections 23(2) and (3) provide that:
(2) An accused child must be brought to trial as quickly as possible.
(3)A child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.
The Charter defines a ‘child’ as a person under 18 years of age: s 3(1).
However, the issue not having been raised, I will not express an opinion on it.
Ground 2: Categorisation of NJI’s Application
The second ground of appeal is related to, and consequential upon, the first ground:
The Tribunal erred in holding that the application for a working with children check was a ‘category 2 application’ rather than a ‘category 1 application’.
For the reasons I have given in respect of Ground 1, Ground 2 is also not established.
Ground 3: The Tribunal’s Jurisdiction
The third ground of appeal was as follows:
The Tribunal erred in concluding that it had no jurisdiction to hear the application for an assessment notice.
Because I have decided that NJI’s application was a Category 2 Application, but was incorrectly treated by the Secretary as a Category 1 Application, I do not consider that the Tribunal had jurisdiction to hear NJI’s application as it was unable to hear a Category 2 Application in its original jurisdiction. The Tribunal made the appropriate order by dismissing the application.
Ground 3 is not established.
Conclusion
Leave to appeal is granted but, as I consider that NJI’s application was a Category 2 Application, the appeal is dismissed.
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