ZZ v Secretary, Department of Justice

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2011 00318

No. S CI 2011 00968

ZZ	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF JUSTICE	Defendant

ZZ	Plaintiff
v
SECRETARY TO THE DEPARTMENT OF TRANSPORT	Defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2012, 20 March 2013
DATE OF JUDGMENT:	22 May 2013
CASE MAY BE CITED AS:	ZZ v Secretary, Department of Justice & anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 267

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ADMINISTRATIVE LAW – appeal – applicant with convictions for serious offences (not child or sex related) wanted to be bus driver – Victorian Civil and Administrative Tribunal refused to give assessment notice – finding that giving notice might put children ‘at risk’ – whether tribunal erred in law in failing to apply test of ‘unjustifiable risk’ – alternative finding that not in public interest to give notice – whether available where ‘unjustifiable risk’ test misapplied – whether ‘all the circumstances’ considered – tribunal refused driver accreditation – of several statutory criteria, only public interest test applied – whether tribunal erred in law – human rights – right of children to protection from harm – right of persons to work and chose their work – scope of ‘unjustifiable risk’ and ‘public interest’ tests – Working with Children Act 2005 (Vic) s 13(2), Transport (Compliance and Miscellaneous) Act 1983 (Vic) s 169N(3), Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 and cl 102 of sch 1, Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 13(a) and 17.

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr Z Partos	Gary Prince
For the defendant in first appeal	Ms D Mortimer SC with Mr P Panayi	Katie Miller, Victorian Government Solicitor’s Office
For the defendant in second appeal	Mr E Nekvapil	Bill Jeppesen, Department of Transport

HIS HONOUR:

INTRODUCTION

The protection of children from sexual and physical harm wherever they are is of fundamental importance. The main purpose of the Working with Children Act 2005 (Vic) is to give children that protection. The Transport (Compliance and Miscellaneous) Act 1983 (Vic) has similar protective purposes in relation to the travelling public.

The scheme is that someone who has committed serious crimes wanting to work with children must obtain an assessment notice under the Working with Children Act and, if driving a bus is involved, driver accreditation under the Transport (Compliance and Miscellaneous) Act. Under the legislation, the applications must be refused unless giving the notice and granting the accreditation would not pose an ‘unjustifiable risk’ to the safety of children or the travelling public.

ZZ committed criminal offences (not sex or child related) some ten years ago, including incitement to murder his wife, for which he was sentenced to imprisonment for six years with a non-parole period of three years and six months. He had been in no further trouble with the police since being released from prison on parole in 2006. His intended work as a bus driver would put him into unsupervised contact with children. He therefore applied for an assessment notice and driver accreditation.

The Secretaries to the Department of Justice and the Department of Transport, and then the Victorian Civil and Administrative Tribunal, refused his applications. In refusing to give an assessment notice, the tribunal decided that giving a notice would put the safety of children ‘at risk’ and, in any event, would not be in the public interest. In relation to driver accreditation, it decided only that it was not in the public interest to grant it.

On grounds of error or law, ZZ now appeals to this court from the tribunal’s decisions. He contends that, in determining whether any risk was ‘unjustifiable’, the tribunal was required to assess the nature and degree of the risk, which it did not do.

ORDERS OF TRIBUNAL AND GROUNDS OF APPEAL

The tribunal was constituted by Deputy President Aird, who made these orders:

2The application that the Secretary to the Department of Justice be directed to give an assessment notice to the applicant pursuant to s 26(3) of the Working with Children Act 2005 is refused.
3The application that the Director of Transport be directed to issue the applicant with driver accreditation is refused.
4The applicant is disqualified from applying for driver accreditation for a period of 5 years from the date of this order.

ZZ brings his two appeals under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Under that provision, appeals can only be made ‘on a question of law’. Although ZZ initially relied on a number of such grounds, he narrowed his appeal to focus on two. They were specified in his expanded outline of submissions as follows:

Question 2: Whether the Tribunal misapplied, misinterpreted, or failed to apply the test in section 13(2) of the Working with Children Act 2005 … by failing, in effect, to consider or decide whether the Plaintiff was an ‘unjustifiable risk’ to the safety of children.
Question 5: Whether the learned Deputy President failed to consider ‘all the circumstances’ relevant to ‘whether it was in the public interest to give an assessment notice’ as provided for by section 102(b) [of] Part 23 of the Schedule to the VCAT Act 1998.

On those main grounds, ZZ contends that the appeals should be allowed and that the court should set aside the orders of the tribunal and remit the matters back for reconsideration according to law.

It is common ground that paragraph 2 of the orders of the tribunal was a mistake and that it should have ordered that ZZ’s application under s 26(5)(b) of the Working with Children Act was to be refused. Under s 148(7)(a) of the Victorian Civil and Administrative Tribunal Act, I will make orders substituting the mistaken order with the correct order. With the other orders, the fate of that order (as corrected) will then depend on the outcome of the appeals.

QUESTIONS ARISING UNDER CHARTER

Initially ZZ served notices under s 35(2)(a) and (b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on the Attorney-General and the Human Rights and Equal Opportunity Commission of questions arising under the Charter. At the hearing, he did not press those questions or rely on the notices.

Very much against my better judgment, I allowed the hearing to proceed without the human rights issues being fully addressed. When I came to write the judgment, I found it impossible to avoid those issues, especially as the interpretative principle in s 32(1) of the Charter is mandatory.

While the human rights issues were not fully addressed in argument, it seemed to me that the oral submissions of the Secretary to the Department of Justice on the proportionate application of the unjustifiable risk test did cover the essential aspects. I considered those submissions to be of importance in the preparation of a draft judgment which dealt with the human rights issues. Because I was not sure that I had properly understood those submissions or that the parties had appreciated that I might use them in that way, I distributed the draft and asked the parties whether or not they wished to make further submissions. When I did so, I made clear that I reserved the right to revise it.

The Secretary to the Department of Justice informed the court that further submissions would be made. By that time, it was clear that notices under the Charter were necessary. As the course of events had overtaken ZZ’s earlier notices, I directed him to file and serve notices in the following terms:

(1)When identifying the proper interpretation of the words ‘unjustifiable risk’ in s 13(2) of the Working with Children Act 2005 (Vic) and s 169N(3)(a) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic):
(a)does s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) require the human rights of the applicant under the Charter to be taken into account and if so what human rights and how must they be taken into account;
(b)must other human rights under the Charter be so taken into account (for example the human rights of children) and if so what other human rights and how should they be taken into account;
(c)if the human rights of the applicant and other human rights under the Charter must be so taken into account, in what manner must they be taken into account in the event of any conflict; and,
(d)what is the proper interpretation of the words ‘unjustifiable risk’ in the provisions which is to be adopted in accordance with s 32(1) of the Charter?

(2)In determining whether giving an assessment notice would not pose an unjustifiable risk as mentioned in s 13(2) of the Working with Children Act and whether granting driver accreditation would not pose an unjustifiable risk as mentioned in s 169N(3)(a) of the Transport (Compliance and Miscellaneous) Act:
(a)does s 38(1) of the Charter require the human rights of the applicant under the Charter to be considered and if so what human rights and how must they be considered;
(b)must other human rights under the Charter be so considered (for example the human rights of children) and if so what other human rights and how must they be considered; and,
(c)if the human rights of the applicant and other human rights under the Charter must be so considered, in what manner must they be considered in the event of any conflict?

In response to the notices, the Secretary to the Department of Justice made submissions in writing clarifying his position in relation to the human rights issues.[1] The Secretary to the Department of Transport made written submissions supporting those submissions and making other points of specific concern. At a further oral hearing, the Secretary to the Department of Justice relied on, and the Secretary to the Department of Transport supplemented, their written submissions. I address those submissions below. ZZ made neither written nor oral further submissions. Neither the Attorney-General nor the Commission elected to participate in the proceedings.
[1]Those submissions were subject to an overriding submission which is not for me to determine.

After considering the submissions of the Secretary to the Department of Justice, I accept that the application of s 38(1) does not arise and the questions posed in paragraph (2) need not be answered. The Charter is only involved in the appeals to the extent of the application of s 32(1).

In determining the grounds of appeal, I will first describe the assessment notice provisions of the Working with Children Act and the driver accreditation provisions of the Transport (Compliance and Miscellaneous) Act. That will lead me to the proper interpretation of the ‘unjustifiable risk’ and (later) the ‘public interest’ tests in that legislation. Lastly, I will apply the conclusions I reach in relation to the proper interpretation of those provisions to the determination of the grounds of appeal, in which context I will examine the reasons for decision of the tribunal.

ASSESSMENT NOTICES UNDER WORKING WITH CHILDREN ACT
Consideration by Secretary to Department of Justice

As specified in s 1(1), the main purpose of the Working with Children 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.

In pursuance of that purpose, pt 2 establishes a process for assisting in determining whether a person is suitable for ‘child-related work’ (s 8(1)).

Under s 9(1), work is ‘child-related’ if it

usually involves, or is likely to usually involve, regular direct[2] contact with a child … in circumstances where that contact is not directly supervised[3] by another person.

[2]‘Direct contact’ is defined in s 3(1) to mean:

contact between a person and a child that involves –

(a) physical contact; or

(b) face to face oral communication; or

(c) physically being within eyeshot …

[3]Section 9(2) provides:

For the purposes of this Act, direct supervision of a person requires immediate and personal supervision but does not require constant physical presence.

Child-related ‘work’ is work of that nature which is engaged in under a contract of employment or for services (s 9(1)(a)(i)) or as a volunteer ((s 9(1)(c)) in connection with a broadly defined range of services, bodies, places and activities (s 9(1) and (3)).

By s 10(1), persons wanting to engage in child-related work may apply to the Secretary to the Department of Justice ‘for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check’. In considering the application, the Secretary must arrange for the conduct of a police record check on the applicant (s 11(1)(a)), may make other inquiries (s 11(1)(b) and (c)) and can require the applicant to provide further information (s 11(1)(d)).

Section 17(1) provides:

Subject to sections 12(2) and (3), 13(2) and 14(2) and subsection (1A) [of s 17], the Secretary must give an assessment notice on an application.

Thus there is a positive statutory requirement to give the notice, subject to those sections, which create a mandatory category-based scheme requiring applications to be considered against specified criteria. Depending on the category of application, different consideration is required.

Sections 12(2) and (3) apply to a ‘category 1 application’, being an application where, for example, the applicant is subject to reporting obligations under pt 3 of the Sex Offenders Registration Act 2004 (Vic) (s 12(1)(a)), has been convicted or found guilty of certain sexual offences against a child (s 12(1)(c)) or a child pornography offence (s 12(1)(d)). The Secretary must refuse such applications (s 12(2)). Some persons in this category may be eligible to apply to the tribunal for an assessment notice (s 26(1)). Category 1 did not apply to ZZ or his application. (As we will see, a similar category and procedure applied to his application for driver accreditation under the Transport (Compliance and Miscellaneous) Act.)

Section 13(2) applies to a ‘category 2 application’, being an application where, for example, the applicant has been convicted or found guilty of a violent offence specified in cl 2 of sch 1 of the Sentencing Act 1991 (Vic).Incitement to murder is one of those offences. Therefore ZZ’s application fell into category 2.

By s 13(2), the Secretary

must refuse to give an assessment notice on a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to –
(a)the nature and gravity of the offence or alleged offence and its relevance to child-related work; and
(b)the period of time since the applicant committed, or allegedly committed, the offence; and
(c)whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d)the sentence imposed for the offence; and
(e)the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and
(f)whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and
(g)the applicant’s behaviour since he or she committed, or allegedly committed, the offence; and
(h)the likelihood of future threat to a child caused by the applicant; and
(i)any information given by the applicant in, or in relation to, the application; and
(j)any other matter that the Secretary considers relevant to the application.

This is the main provision which had to be applied by the tribunal in the consideration and determination of ZZ’s application for an assessment notice. An important issue in the appeal is whether the tribunal properly applied the test of ‘unjustifiable risk’ which this provision specifies.

Section 14(2) applies to a ‘category 3 application’, being an application where, for example, the applicant has been the subject of negative professional findings (s 14(1)(a)(i)) or been convicted or found guilty of certain lesser offences against s 19 of the Summary Offences Act 1966 (Vic) (s 14(1)(bb)).ZZ had been found guilty of committing such offences. Therefore this category applied to his application.

By s 14(2), the Secretary ‘must give an assessment on a category 3 application unless satisfied, in the particular circumstances, that it is appropriate to refuse to do so’. In considering that question, the Secretary must have regard to the considerations as specified in s 14(3). The considerations specified in s 14(3) are virtually the same as those specified in s 13(2) but tailored to encompass conduct, offences and charges coming within category 3.

It can be seen that, in category 3 applications, the Secretary is required to determine whether he or she is positively satisfied that it is appropriate to refuse to give the notice, having regard to the specified considerations. Technically, the criterion in s 14(2) also had to be applied by the tribunal in the consideration and determination of ZZ’s application for an assessment notice. The application of this criterion is not an issue in the appeal because the outcome of the proceeding in the tribunal turned on the more onerous criteria which apply in relation to category 2 applications.

There is a fourth category (not numbered as such) which applies where the applicant has at any time ‘been charged with, convicted or found guilty of an offence (other than a relevant offence)’ (s 17(1A)(a)). In such cases, s 17(1A)(b) gives the Secretary residual discretion to refuse to give an assessment if

(b) the Secretary is satisfied that—
(i)exceptional circumstances exist with respect to the applicant that justify the refusal of the notice; and
(ii)there is a significant link between the charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant.

In deciding whether it is appropriate to refuse to give a notice, s 17(1B) requires the Secretary to have regard to:
(a)whether because of that charge, conviction or finding of guilt, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and
(b)in the case of an applicant who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1A) applies, the period of time between the commission, or alleged commission, of each of the offences.

The matters in s 13(2)(a) to (i) have already been set out.

Once granted, an assessment notice remains in force for five years (s 19(1)). Persons who are refused an assessment notice must wait five years before they can reapply (s 25(1)).

As Kyrou J noted in Maleckas v Secretary, Department of Justice,[4] ‘an assessment notice is not tied to any particular child-related work’.[5] Once granted, it applies universally to any and all such work in which the holder may engage, even where the applicant’s declared intention is to engage in particular work, such as bus driving. It follows that, while the child-related work specified in the application will be a relevant consideration, the statutory criteria must be applied on the basis that the notice, if given, will not be confined to that work.
[4][2011] VSC 227 (31 May 2011) [19] (‘Maleckas’).
[5]Ibid [19].

Consideration by Victorian Civil and Administrative Tribunal

Where the Secretary to the Department of Justice refuses an application for an assessment notice, the applicant has certain rights to appeal, depending on the category of their application. As ZZ came under category 2, s 26(5)(b) of the Working With Children Act gave him the right to apply to the tribunal for review of the refusal decision. The tribunal’s jurisdiction in such cases is review jurisdiction.[6]
[6]Victorian Civil and Administrative Tribunal Act s 42(1).

In such applications, cl 102 of sch 1 of the Victorian Civil and Administrative Tribunal Act specified[7] considerations to which the tribunal must have regard. Those considerations are:

(a)any matter to which the Secretary may have regard under section 13(2) of [the Working with Children Act]; and
(b)whether, in all the circumstances, it is in the public interest to give an assessment notice.

[7]The Act was later amended by the Working with Children Amendment Act 2012 (Vic) to include the considerations now specified in cl 102 of sch 1 of the Victorian Civil and Administrative Tribunal Act.

Some applicants in category 1 may apply to the tribunal for review of a decision of the Secretary to the Department of Justice to refuse to give a notice (s 26(1)). As Morris J held in Re PJR and Secretary, Department of Justice,[8] the jurisdiction of the tribunal in such cases is original jurisdiction.[9] In exercising this original jurisdiction, s 26(3) of the Working with Children Act provides that, subject to other provisions, the tribunal may direct the Secretary to give an assessment notice to an applicant ‘if it is satisfied that, in all the circumstances, it is in the public interest to do so’. This did not apply to the present case. It was this provision which the tribunal mistakenly applied.
[8](2006) 25 VAR 336, 339 [9] (sitting as the President) (‘PJR’).
[9]See also Victorian Civil and Administrative Tribunal Act ss 41 and 43(a).

DRIVER ACCREDITATION UNDER TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT
Consideration by Secretary to Department of Transport

Division 4 of pt VI of the Transport (Compliance and Miscellaneous) Act creates a scheme for the accreditation of participants in the taxi industry. The purpose of accreditation is ‘to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations’.[10] This general purpose encompasses, but is not confined to, ensuring the safety of children and protecting them from harm. In various ways, the provisions relating to driver accreditation give effect to those child-related purposes (see below).
[10]Transport (Compliance and Miscellaneous) Act s 130.

Under s 165(1), it is an offence to drive a ‘commercial passenger vehicle’[11] or bus used to provide a commercial or local bus service[12] unless the driver holds ‘driver accreditation’. ‘Driver accreditation’ means accreditation under s 166.[13] Section 166 confers discretion on the licensing authority to accredit a person to drive a vehicle or bus. ZZ needed that accreditation to obtain employment to drive a bus.
[11]The definition of ‘commercial passenger vehicle’ relevantly includes ‘any motor vehicle … which is used or intended to be used for carrying passengers … but does not include a bus used to provide a bus service’ Transport (Compliance and Miscellaneous) Act s 86(1).
[12]Section 165(1)(b) applies to commercial or local bus services within the meaning of the Bus Safety Act 2009 (Vic): Transport (Compliance and Miscellaneous) Act s 86(1).
[13]‘Driver accreditation’ is so defined in s 86(1) of the Transport (Compliance and Miscellaneous) Act.

Driver accreditation remains in force for a term of three years (s 168(1)) and may be renewed on application (s 168(2)). If the licensing authority refuses to issue or renew accreditation, it may, at its discretion,[14] disqualify the applicant from applying for accreditation for up to five years (s 169C(1) and (2)). I will refer later to the consideration which must be taken into account in exercising that discretion. Section 169E(1) and (2) contain a mandatory power of cancellation which, subject to a limited exception, must be exercised where the holder of driver accreditation has been found guilty of a category 1 offence or (by the reference to s 169(2)(c)) becomes subject to reporting obligations under s 12(1)(a) or orders under s 12(1)(b) of the Working with Children Act.
[14]This discretionary power to disqualify from applying is to be contrasted with the mandatory disqualification for up to five years which must be imposed on someone whose accreditation is cancelled (s 169C(1A) and (2)).

Like the Working with Children Act, the Transport (Compliance and Miscellaneous) Act specifies different procedures and conditions for determining applications for driver accreditation depending on the category into which the applicant falls (s 169(1), (2), (3) and (4)).

For applicants in the residual category, s 169(1) provides:

the licensing authority may grant the application if [it] is satisfied –
(a)that the issuing of accreditation is appropriate having regard to the public care objective; and

(b) that the applicant–
(i)is technically competent and sufficiently fit and healthy to be able to provide the service; and

(ii) is suitable in other respects to provide the service; and

(c) that the applicant has complied with the application requirements …

The public care objective is an important component of the statutory scheme. According to s 164(1):

The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of commercial bus services, commercial minibus services and local bus services–
(a)be provided–
(i)with safety; and
(ii)with comfort, amenity and convenience–

to persons using the services and to other persons, particularly children and other vulnerable persons; and
(b)be carried out in a manner that is not fraudulent or dishonest.

There is no equivalent to the public care objective in the Working with Children Act.

For applicants (among others) who have been found guilty of a category 1 offence,[15] s 169(2)(b) provides that the authority ‘must not issue or renew a driver accreditation’. By s 169(2)(c)(i) and (ii), this prohibition also applies to applicants who are subject to aforementioned reporting obligations or orders under the Working with Children Act. ZZ’s conviction for incitement to murder his wife was a category 1 offence within s 169(2)(b). Therefore the Secretary to the Department of Transport had to refuse his application for the issue of accreditation, which he did.
[15]‘Category 1 offence’ is defined in s 86(1). Paragraph (d) of that definition includes ‘an offence specified in clause 3 of Schedule 1 to the Sentencing Act 1991’. By cl 3(a) and (d), this includes incitement to commit murder.

Subsections 169(3) and (4) make provision for two other categories which are not here relevant.

Unlike the Working with Children Act, the Transport (Compliance and Miscellaneous) Act confers power to impose conditions on a driver accreditation, either at the time it is issued or renewed, or at any time during the course of driver accreditation (s 169A(1)). In doing so, the authority must have regard to the public care objective (s 169A(2)).

Consideration by Victorian Civil and Administrative Tribunal

Like the Working with Children Act, the Transport (Compliance and Miscellaneous) Act creates a category-based regime for decision-making and review by the tribunal.

As you have seen, ZZ’s conviction for incitement to murder brought him into category 1, which meant his application had to be refused by the Secretary under s 169(2)(b)). Section 169N(1) gives a person whose application for accreditation has been mandatorily refused under s 169(2)(b) or (c) the right to ‘apply to VCAT for an order that the licensing authority issue … the driver accreditation’.[16] On such an application, the tribunal has original[17] jurisdiction ‘by order [to] direct the licensing authority to … issue a driver accreditation to the applicant’ (s 169N(2)(a)).[18] Therefore the tribunal, and only the tribunal, had the authority to make an order for ZZ’s accreditation. The Secretary must comply with any such order (s 169N(5)).
[16]Section 169O(1) confers review jurisdiction on the tribunal in other circumstances which are not relevant to this case. This review jurisdiction does not apply where the original jurisdiction in s 169N applies (s 169O(2)).
[17]Victorian Civil and Administrative Tribunal Act ss 41 and 43(a); for the analogous position under the Working with Children Act, see PJR (2006) 25 VAR 336, 339 [9] (Morris J, sitting as the President).
[18]Under s 169N(1)(a), (b) and (c), persons whose driver accreditation has not been issued or renewed under 169(2)(b) or (c) or cancelled under s 169E, or who have been disqualified from applying for accreditation under s 169C(1A), may apply to the tribunal for renewal or reinstatement of the accreditation or cancellation of the disqualification (as the case may be). Section 169N(2) confers power on the tribunal to make such orders.

Section 169N(3) imposes threshold conditions on the exercise of the tribunal’s jurisdiction to make an order under s 169N(2). Here is 169N(3):

[The tribunal] must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless–
(a)[it] is satisfied of the matters set out in section 169(1)(b); and
(b)the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective; and
(c)[it] is satisfied that–
(i)the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to–
(A)the matters set out in section 169C(3)(b)(i) to (x); and
(B)any other matter that [it] considers relevant to the application; and

(ii)in all the circumstances, it is in the public interest to make the order.

As you have seen, s 169(1)(b) specifies matters with respect to the technical competence, fitness, health and suitability of the applicant for providing the service. Section 169N(3)(b) mirrors the public care objective consideration in s 169(1)(a).

As you can now see, s 169N(3)(c)(i) specifies an ‘unjustifiable risk’ test in the same terms as s 13(2) of the Working with Children Act except that it is directed to the safety of the travelling public and the relevant matters reflect the public transport context.

As specified in s 169C(3)(b)(i) to (x), those relevant matters are:

(i)the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and
(ii)the period of time since the applicant committed the offence; and
(iii)whether a finding of guilt or conviction was recorded; and
(iv)the sentence imposed for the offence; and
(v)the age of the applicant when the offence was committed; and
(vi)in relation to any sexual offence, the age of any victim; and
(vii)whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and
(viii)the applicant’s behaviour since committing the offence; and
(ix)the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and
(x)any information given by the applicant; …

Section 169C(3)(b)(xi) specifies ‘any other matter the licensing authority considers relevant’. Section 169N(3)(c)(i)(A) does not include that in the list of matters which must be taken into account by the tribunal in determining an application under s 169N. But s 169N(3)(c)(i)(B) enables it to have regard to ‘any other matter’ which it considers to be relevant to the application.

It was the enactment of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008 (Vic) which incorporated an unjustifiable risk test into the Transport (Compliance and Miscellaneous) Act. That was done in the form of s 169N(3)(c). The incorporation of that test into the Transport (Compliance and Miscellaneous) Act brought that enactment into line with the Working with Children Act in that respect.

As submitted by counsel for the Secretary to the Department of Transport, the terms of the amending legislation support the statements made in the second reading speech that the legislation was intended to ‘strengthen public confidence in the safe operation of Victoria’s public transport system’.[19] There is considerable emphasis in the speech on ‘the safety of the travelling public’.[20] The Minister for Public Transport stressed that that interest must be given great weight:
[19]Victoria, Parliamentary Debates, Legislative Assembly, 3 December 2008, 4848 (Ms Lynne Kosky, Minister for Public Transport).
[20]Ibid.

The rights of an individual applicant cannot be the prime consideration in deciding who is a suitable person to be accredited to drive a taxi.
Greater weight must be given to the rights of the many people who need to use taxi services, particularly the disadvantaged or vulnerable and those who have little or no alternative means of transport. Considerable weight must also be given to the importance of maintaining public confidence in the safety of taxi travel.[21]

The Minister then spoke of the new category-based application system, which I have already described. After explaining mandatory refusal for category 1 applications, she drew attention to the availability of review in the tribunal in all refusal cases:
However, the avenue of VCAT review remains available for all administrative decisions made by the accreditation regulator, both discretionary and mandatory.
The bill also strengthens the test to be applied by VCAT to refusals of accreditation taken on review by providing that VCAT can only grant accreditation where it is satisfied that:
granting accreditation does not pose an unjustifiable risk: and
in all the circumstances, it is in the public interest to grant the accreditation.[22]

[21]Ibid.

[22]Ibid 4849.

The Minister’s emphasis on the safety of the travelling public and maintaining public confidence in the transport system must be noted. The terms of the amended legislation reflect strengthened protective policies of that nature. However, the Minister did not deny that the individual rights of applicants are relevant and the key regulatory test is expressed in terms of unjustifiable risk, not a, any or no risk. To that subject I will return.

That completes my description of the provisions of the Working with Children Act and the Transport (Compliance and Miscellaneous) Act. The first ground of appeal is whether the tribunal properly applied the test of ‘unjustifiable risk’ in s 13(2) of the Working with Children Act and s 169N(3)(c)(i) of the Transport (Compliance and Miscellaneous) Act. To determine that question, it is necessary to identify the proper interpretation of that test.

‘UNJUSTIFIABLE RISK’ TEST
Human rights
Protection of children

The main purpose of the Working with Children Act (and a purpose embraced by the Transport (Compliance and Miscellaneous) Act) is the protection of children from physical and sexual harm. The Act seeks to achieve this purpose by (among other things) establishing mechanisms for preventing certain persons from performing work which is likely to bring them into unsupervised contact with children, whether on a paid or voluntary basis. These mechanisms protect and promote the human rights of children in significant ways.

Historically, the human rights of children were first recognised in an international instrument in 1924 in the Geneva Declaration of the Rights of the Child of the League of Nations.[23] The preamble states with memorable simplicity that ‘mankind owes to the Child the best that it has to give’.[24] Therefore (among other things) the child ‘must be protected against every form of exploitation’.[25] As Van Bueren explains, this need for protection was based on the ‘vulnerability and immaturity’ of children.[26]
[23]Geneva Declaration of the Rights of the Child, League of Nations OJ Spec Supp 21 (26 September 1924) 43.
[24]Ibid.
[25]Ibid, art 4.
[26]Geraldine Van Bueren, The International Law on the Rights of the Child (Martinus Nijhoff, 1995) 262.

The Universal Declaration of Human Rights,[27] which was proclaimed by the United Nations in 1948, states principles incorporating the rights of children. For example, art 25(2) provides:

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

[27]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948).

Then came the Declaration of the Rights of the Child,[28] which was proclaimed by the United Nations in 1959. The preamble states that ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection’.[29] The Declaration goes on to state a series of principles, including protection. This is principle 2:

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

Principle 9 states that the ‘child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form’.[30]

[28]Declaration of the Rights of the Child, GA Res 1386 (XIV), UN GAOR, 14^th sess, 841^st plen mtg, Supp No 16, UN Doc A/4354 (20 November 1959).

[29]Ibid.

[30]Ibid.

The principles of protection that were proclaimed in the Declarations flowered into a right to protection in the International Covenant on Civil and Political Rights,[31] which entered into force in 1976. Australia is a party to this Covenant. Article 24(1) provides:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Section 17(2) of the Charter is derived from this right.

[31]International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

In his analysis of the development of the right of the child to protection, Nowak[32] emphasises the context of the correlative duty of the state to fulfil the right:

Pursuant to Art. 24(1), the State is under a comprehensive duty to guarantee that all children subject to its jurisdictional authority are afforded protection, whether this be through support for the family, through support for corresponding private facilities for children (kindergartens, orphans’ homes, etc.) or through its own measures. Comprehensive protection means, on the one hand, that the State must prevent interference by its authorities and private parties alike, including a child’s own parents (e.g. in the event of child abuse or neglect), and, on the other hand, that it also enact positive statutory, administrative or other measures in all culpable or non-culpable situations in which a child requires special protection (e.g. death or disappearance of the parents, poverty and hunger, physical or mental disability, etc.).[33]

This analysis is consistent with art 26 of the Vienna Convention on the Law of Treaties,[34] which entered into force in 1980.[35] Australia is a party to this Convention. Article 26 provides that ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’.[36]

[32]Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (NP Engel, 2^nd revised ed, 2005) 544-5 [1]-[3].

[33]Ibid 546 [5] (footnote omitted).

[34]Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

[35]Article 4 of the Vienna Convention on the Law of Treaties limits its temporal application to treaties enacted after 1980 (when it entered into force). The International Covenant on Civil and Political Rights entered into force in 1976. However, the Vienna Convention on the Law of Treaties is understood to represent a codification of existing customary international law, which also binds Australia: Fisheries Jurisdiction (United Kingdom v Iceland) (Jurisdiction) [1973] ICJ Rep 3, 19; Gabčíkovo-Nagymaros Project (Hungary v Slovakia) (Judgment) [1997] ICJ Rep 7, 38, 62. See also Sir Robert Jennings QC and Sir Arthur Watts KCMG QC (eds), Oppenheim’s International Law (Longman, 9^th ed, 1992) vol I, 1199; Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2006) [9.9].

[36]This is the principle of pacta sunt servanda (contracts are to be kept).

The provisions of the International Covenant on Civil and Political Rights also encompass the human right of children to bodily integrity and personal security. [37]
[37]See arts 7 (cruel, inhuman and degrading treatment), 9(1) (liberty and security of the person) and 17(1) (privacy).

The human rights of children are included in the generality of several provisions of the International Covenant on Economic, Social and Cultural Rights,[38] which also entered into force in 1976. Australia is a party to this Covenant. The general provisions encompassing children include those requiring state parties to afford the ‘widest possible protection and assistance … to the family, which is the natural and fundamental group unit of society’ (art 10(1)). More specifically, the Covenant provides that ‘[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons’ and they ‘should be protected from economic and social exploitation’ (art 10(3)).
[38]International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

The rights of children were specifically and comprehensively set out in the Convention on the Rights of the Child,[39] which entered into force in 1990. Australia is a party to this Convention. Of cardinal importance, it is now the primary source of international law on the human rights of children. Van Bueren describes the Convention as being

concerned with the four ‘P’s: the participation of children in decisions affecting their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs.[40]

[39]Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[40]Van Bueren, above n 26, 15.

The Convention on the Rights of the Child specifies the principle of the best interests of the child and also a duty on the part of the state to protect. This is done in art 3, as follows:

1.In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2.States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3.States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

A later provision extends the duty of the state to protect children to protection from physical or mental violence or abuse and sexual abuse. This is art 19:

1.States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2.Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

Further, art 34 specifically requires the state to protect children from sexual abuse:

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a)The inducement or coercion of a child to engage in any unlawful sexual activity;
(b)The exploitative use of children in prostitution or other unlawful sexual practices;
(c)The exploitative use of children in pornographic performances and materials.

Article 36 provides that ‘States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare’.

Independently of the Charter, under the ordinary principles of interpretation it is established that Australia’s international obligations, although not incorporated into domestic law, may inform the interpretation of statutory provisions.[41] By reference to the leading High Court authorities, the general common law principle was succinctly expressed by Maxwell P in Royal Women’s Hospital v Medical Practitioners Board:[42]

the provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State) should be interpreted and applied, as far as its language permits, so that it conforms with Australia’s obligations under a relevant treaty.

[41]See generally Tomasevic v Travaglini (2007) 17 VR 100, 114-15 [73] (Bell J).

[42](2006) 15 VR 22, 39 [75] (‘Royal Women’s Hospital’).

When interpreting the provisions of s 13(2) of the Working with Children Act, this principle makes relevant the international covenants and conventions in relation to the protection of children which I have examined. The interpretation which is consistent with Australia’s obligations under them is one which positively ensures protection of children from harm. An interpretation which would deny a person access to their chosen field of employment when there was no real risk of harm to children is not indicated by those obligations.

Coming to the Charter, s 32(1) provides:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

I would not want to overlook the human rights in ss 10(b) (prohibiting treatment which is cruel, inhuman or degrading), 13(a) (prohibiting unlawful and arbitrary interference with privacy) and 21(1) (right to liberty and security) which, like the International Covenant on Civil and Political Rights, encompass the human right of children to bodily integrity and personal security.[43] But, more directly, s 17 specifies the human right to protection of families and children:

(1)Families are the fundamental group unit of society and are entitled to be protected by society and the State.
(2)Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

[43]Stubbings v United Kingdom (1997) 23 EHRR 213 considers and applies human rights in the context of the failure by the respondent state to protect the applicant from sexual abuse as a child.

The human right to protection in s 17(2) is engaged in the interpretation of the provisions of s 13(2) of the Working with Children Act. Again, the interpretation which is compatible with that human right, and which is consistent with the purpose of the provisions, is one which positively ensures protection of children from harm, but an interpretation which would deny a person access to their chosen field of employment when there was no real risk of harm to children is not indicated.

Right to work

It is also necessary to consider the right to work and freedom of choice in work.

The right to work is recognised in the common law for certain purposes. A notable example is Nagle v Feilden[44] where the Court of Appeal held that a horse trainer denied a licence because she was a woman could bring an action in the courts even in the absence of a contract of employment between her and the jockey club. Lord Denning MR said ‘a man’s right to work at his trade or profession is just as important to him as, perhaps more important than, his rights of property. Just as the courts will intervene to protect his rights of property, they will also intervene to protect his right to work’.[45] Danckwerts and Salmon LJJ held to the same effect.[46]
[44][1966] 2 QB 633 (Lord Denning MR, Danckwerts and Salmon LJJ) (‘Nagle’); see also Lee v The Showmens’ Guild of Great Britain [1952] QB 329, 343 (Denning LJ) (‘Lee’).
[45]Nagle [1966] 2 QB 633, 646.
[46]Ibid 650, 655.

Nagle was approved by the High Court of Australia in Buckley v Tutty,[47] which held that the rules of a football league were in unreasonable restraint of the trade of a professional footballer. Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ granted relief because the footballer’s ‘right to work’[48] was affected by the rules in question.
[47](1971) 125 CLR 353, 381 (Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ) (‘Buckley’).
[48]Ibid 382.

In doing so, their Honours said the public interest rationale of the doctrine extended to protecting trades, professions and callings of all kinds, including employment.[49] Consequently, disproportionate restraints were invalid. The Court approved[50] the test of invalidity which was laid down in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd.[51] That test, stated by Lord Macnaghten, examines whether the restraint represents a reasonable reconciliation of the interests of the upholding party and the interests of the public in freedom of trade and employment. [52]
[49]Ibid 371-2, 375-6.
[50]Ibid 376.
[51][1894] AC 535.
[52]Ibid 565.

I am not suggesting that the right to work is an independent cause of action. As Barwick CJ held in Forbes v New South Wales Trotting Club Ltd,[53] the right to work is not legally enforceable as such.[54] But Buckley and the cases like it demonstrate that, in certain circumstances, the courts will take account of or protect the right to work as a recognisable legal category and that the right to work engages the public interest. As Barwick CJ said in Forbes, there is a ‘public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit’ and ‘[i]t is in the public interest that a man should be able to exercise his capacity to work’.[55]
[53](1979) 143 CLR 242 (‘Forbes’).
[54]Ibid 260 (dissenting, but not relevantly). Citing Barwick CJ in Forbes, Meagher, Handley and Cripps JJA said in Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 346 that there was ‘no such right [as the right to work] in the strict sense, merely a liberty’.
[55]Forbes (1979) 143 CLR 242, 260.

Work is not just an expedience or a way of earning a material living. It has great personal and social importance to individuals. An underlying rationale of human rights is enhancing respect for human dignity. Work is an aspect of human dignity. There is a close relationship between private life and work. Therefore, it can readily be appreciated why the right to work is a human right, why it incorporates freedom of choice of work and why it is intimately connected with other human rights. So much was eloquently explained by Owens and Riley in their leading text:

It is largely through work that we become who we are: work is central to personhood, to identity. And because work is intricately entwined in the creation of our sense of self, it has an infinitely complex meaning for us as human beings. Work is intimately linked with human dignity. Work is the primary means by which most people secure their own livelihood and very often that of their families too. The income derived from their work provides access to food, shelter and the other goods and services necessary for the sustenance and enjoyment of life. However, work also often provides much more than the satisfaction of the material fundamentals of life. Human beings commonly invest in their work much of the purpose and meaning of their lives. At work people grow in a very personal way by expressing themselves, developing new skills, gaining new knowledge and contributing to their community. … Through work human beings cooperate and connect with others. The social networks established through work often extend beyond it. Indeed, because the social status of individuals is frequently determined very largely by the work they do, work tends to mediate all social relations.[56]

[56]Rosemary Owens and Joellen Riley, The Law of Work (Oxford University Press, 2007) 3.

The foundational standard of the human right to work was set in the Universal Declaration of Human Rights,[57] which explicitly proclaims the right to work in art 23(1):

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

[57] Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948).

That standard flowered into a suite of rights in the International Covenant on Economic, Social and Cultural Rights.[58] Australia is a party to that Covenant. Article 6(1) provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

[58]International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

The Committee on Economic, Social and Cultural Rights has considered the scope and content of art 6 in its General Comment No 18.[59] Among the principles which it states is that individuals should be free to choose their own work.[60] It explains the importance of the right to work by reference to the connection between it and other human rights:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.[61]

[59]Committee on Economic, Social and Cultural Rights, General Comment No. 18: Article 6 of the International Covenant on Economic, Social and Cultural Rights, 35^th sess, Item 3 of the provisional agenda, UN Doc E/C.12/GC/18 (6 February 2006).

[60]Ibid [4].

[61]Ibid [1].

Earlier I referred to the interpretive principle stated by Maxwell P in Royal Women’s Hospital that, subject to any clear contrary intention, statutory provisions are to be interpreted consistently with Australia’s international obligations under treaties and covenants, as far as language permits. When interpreting the provisions of s 13(2) of the Working with Children Act, the principle makes relevant the articles of the International Covenant on Economic, Social and Cultural Rights concerning the right to work. Having regard to the purpose and language of the provisions of s 13(2), the interpretation which is consistent with Australia’s obligations under that Covenant is one which ensures children are protected from harm but which takes due account of the right to work.

Neither the International Covenant on Civil and Political Rights nor the Charter specifies a human right to work as such.

But, art 17 of the International Covenant on Civil and Political Rights specifies a negative right to privacy (among other things). It provides:

1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2.Everyone has the right to the protection of the law against such interference or attacks.

Reflecting that article, s 13(a) of the Charter provides:

A person has the right –
(a)not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; …

As to what is arbitrary interference, in PJB v Melbourne Health (Patrick’s Case)[62] I referred to international cases and commentary discussing the word ‘arbitrary’ in relation to the rights found in the International Covenant on Civil and Political Rights.[63] On that basis I decided that the right in s 13(a) of the Charter

extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.[64]

In WBM v Chief Commissioner of Police,[65] Warren CJ (Hansen JA agreeing) (without finally deciding the point) said that the word ‘arbitrarily’ in s 13(a) bore that ‘human rights’ meaning.[66] As a member of that bench, I followed[67] my judgment in Patrick’s Case, as I will in this case.

[62][2011] VSC 327 (19 July 2011) (‘Patrick’s Case’).

[63]Ibid [80]-[83].

[64]Ibid [85].

[65][2012] VSCA 159 (30 July 2012) (Warren CJ, Hansen JA and Bell AJA).

[66]Ibid [117].

[67]Ibid [202].

Whether art 17 and s 13(a) apply to restrictions upon employment is an unresolved question. As the Secretary to the Department of Justice submits, the Human Rights Committee of the United Nations has not yet applied the right in art 17 of the International Covenant on Civil and Political Rights to restrictions upon employment. Likewise, the scope of the right in s 13(a) of the Charter has not been determined in that context. However, the general nature and content of the right in s 13(a) has been considered in a way which is not inconsistent with incorporating a right to work of some kind and in some circumstances.[68]
[68]See Re Kracke and Mental Health Review Board (2009) 29 VAR 1, 131 [619]-[620] (Bell J); Director of Housing v Sudi [2010] VCAT 328 (31 March 2010) [64]ff (Bell J); Castles v Secretary, Department of Justice (2010) 28 VR 141, 162-3 [77]-[79] (Emerton J).

Because of the intrinsic connection between employment, dignity and the private life of individuals, especially as regards their relationships with other people, a substantial argument can be advanced that, in certain circumstances at least, the rights in art 17 and s 13(a) do apply to restrictions upon employment. That conclusion is supported by the approach taken in the United Kingdom and the European Court of Human Rights to the interpretation of the right to respect for private life.

The right to respect for private life is specified in art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[69] in these terms:

1.Everyone has the right to respect for his private and family life, his home and his correspondence.
2.There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This right was domesticated in the United Kingdom by the Human Rights Act 1998 (UK) c 42.[70]

[69]Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

[70]Schedule 1, pt 1, art 8.

According to the leading judgments of the European Court of Human Rights, private life ‘encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature’.[71] Article 8 of the Convention thus ‘protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world’.[72] The notion of ‘private life’ does not in principle exclude ‘activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity of developing relationships with the outside world’.[73]
[71]C v Belgium (2001) 32 EHRR 2, 33-4 [25].
[72]Pretty v United Kingdom (2002) 35 EHRR 1, 36 [61].
[73]Volkov v Ukraine [2013] ECHR 32 (9 January 2013) [165], citing Niemietz v Germany (1993) 16 EHRR 97, 111 [29].

Therefore, a work security check procedure,[74] ‘lustration’ restrictions on the employment of former members of security forces,[75] restrictions imposed on access to a profession[76] and a dismissal from office[77] have been found to interfere with ‘private life’. Issues of honour and reputation are also raised in this context.[78]
[74]Leander v Sweden (1987) 9 EHRR 433, 450 [48].
[75]Turek v Slovakia (2007) 44 EHRR 43, 879-80 [110]-[111].
[76]Sidabras v Lithuania (2006) 42 EHRR 6, 118 [47] (‘Sidabras’); Bigaeva v Greece (European Court of Human Rights, First Section, Application No 26713/05, 28 May 2009) [22]–[29]. In R (Countryside Alliance) v Attorney General [2008] 1 AC 719, 745 [15(4)] Lord Bingham of Cornhill described Sidabras as a ‘very extreme case on its facts’ (‘Countryside Alliance’).
[77]Ozpinar v Turkey (European Court of Human Rights, Second Section, Application No 20999/04, 19 October 2010) [43]-[49].
[78]Pfeifer v Austria (2009) 48 EHRR 8, 182-3 [35]; A v Norway [2009] ECHR 580 (9 April 2009) [63]-[64].

Drawing on that jurisprudence, courts in the United Kingdom have identified the purpose of art 8 as being to ensure that, without good reason, the state cannot interfere with ‘the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose’.[79] Respect for private life ‘comprises, to a certain degree, the right to establish and develop personal relationships with other human beings’.[80] Article 8 applies to ‘[e]xcluding a person from employment in her chosen field’.[81] That is because the exclusion ‘is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private live’.[82]
[79]Countryside Alliance [2008] 1 AC 719, 743 [10] (Lord Bingham of Cornhill).
[80]R (L) v Commissioner of Police of the Metropolis [2010] 1 AC 410, 426 [24] (footnotes omitted) (Lord Hope of Craighead DPSC, Lord Saville of Newdigate JSC, Lord Brown of Eaton-under-Heywood JSC and Lord Neuberger of Abbotsbury MR agreeing) (‘R (L)’).
[81]Ibid.
[82]Ibid.

Therefore, work restrictions have been held to involve interference with private life in the context of asylum seekers applying for permission to work,[83] the preparation and administration of statutory lists of persons precluded from working with children and vulnerable adults,[84] the disclosure of information by the police in respect of applications by persons for employment involving contact with children and vulnerable adults,[85] the indefinite notification requirements of sex offender registration legislation[86] and the decision of a statutory safeguarding authority not to remove someone from a barred employment list.[87]
[83]Tekle v Secretary of State for the Home Department [2009] 2 All ER 193, 205 [35]-[36] (Blake J); leave to appeal was granted but this point was not determined: R (ZO (Somalia)) v Secretary of State for the Home Department [2009] 1 WLR 2477, 2485 [29] (Hooper LJ, Keene and Laws LJJ agreeing).
[84]R (Wright) v Secretary of State for Health [2009] 1 AC 739, 753-4 [34]-[36] (Baroness Hale of Richmond, Lord Phillips of Worth Matravers, Lord Hoffmann, Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood agreeing). Their Lordships upheld the decision of Stanley Burnton J that, while art 8 did not confer any right to engage in a chosen profession or to challenge a particular dismissal, suspension or disqualification from particular employments, listing on the basis that the worker posed a risk to vulnerable people was calculated to interfere with the worker’s relationships with colleagues, the vulnerable people with whom she worked and others: 753 [34].
[85]R (L) [2010] 1 AC 410, 426 [24] (footnotes omitted) (Lord Hope of Craighead DPSC, Lord Saville of Newdigate JSC, Lord Brown of Eaton-under-Heywood JSC and Lord Neugberger of Abbotsbury MR agreeing).
[86]R (F (A Child)) v Secretary of State for the Home Department [2011] 1 AC 331, 348 [41] (Lord Phillips of Worth Matravers PSC, Lord Hope of Craighead DPSC, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Clarke of Stone-cum-Ebony JJSC agreeing).
[87]K v Independent Safeguarding Authority [2012] UKUT 424 (AAC) (14 November 2012) [56] (Judges Williams and McKenna and Member Wakefield) (the Upper Tribunal decided that administrative or legislative listing under the Safeguarding Vulnerable Groups Act 2006 (UK) c 47 which prevented or impeded disproportionately the practice of a chosen profession would engage art 8, but the applicant had only a remote and hypothetical interest in the work concerned: [57]).

Substantial arguments against the application of the European and United Kingdom jurisprudence to the interpretation of art 17 of the International Covenant on Civil and Political Rights and s 3(a) of the Charter can also be advanced. As submitted by the Secretary to the Department of Justice, art 17 and s 3(a) specify a right in negative terms not to have one’s privacy ‘unlawfully or arbitrarily interfered with’. By comparison, art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms specifies a right in positive terms to ‘respect’ of one’s private life. These and the other competing arguments were recently canvassed in MA v Director of Immigration[88] by the Court of Appeal of the High Court of the Hong Kong Special Administrative Region, where s 14 of the Bill of Rights Ordinance (Hong Kong) cap 383 is in the same terms as art 17 of the International Covenant on Civil and Political Rights. In view of the importance of the question, the court preferred to decide the case before it without determining the question. I propose to adopt a similar course here.
[88][2012] HKCA 514 (27 November 2012) [58]-[67] (Fok JA, Stock VP and Kwan JA agreeing).

I will assume without deciding that the right to privacy in art 17(1) of the International Covenant on Civil and Political Rights and s 13(a) of the Charter are engaged where employment restrictions impact sufficiently upon the personal relationships of the individual and otherwise upon his or her capacity to experience a private life. In my view, the refusal decision under the Working with Children Act has that impact here. ZZ has a definite intention and desire to work as a bus driver. For him, obtaining that employment is not a remote or hypothetical prospect. Putting aside the matters at issue in the present case, he appears to be suited and qualified for that employment. His personal circumstances are such that not many fields of employment are open to him. Being a bus driver is one of them. Without employment, he risks becoming welfare dependent and socially isolated. Those impacts are highly personal in nature and operate together (on the assumed position) to bring his kind of case, which would not be unique, into the scope of art 17(1) and s 13(a).

If that assumption and reasoning are correct, the interpretive principle stated in Royal Women’s Hospital would apply to the interpretation of the provisions of s 13(2) of the Working with Children Act. Consistently with Australia’s obligations under art 17(1) of the International Covenant on Civil and Political Rights, and subject to the purpose and language of the unjustifiable risk provisions, the provisions would be interpreted such that arbitrary interference with ZZ’s right to privacy was not imposed. Further, s 32(1) of the Charter would apply to the interpretation of those provisions. Therefore, so far as possible consistently with their purpose, the provisions would be interpreted in a way that did not produce arbitrary interference with ZZ’s right to privacy. In both instances, ‘arbitrary’ is to be understood in the human rights sense.

That brings me to a review of the authorities on the interpretation and application of the unjustifiable risk test.

Review of authorities

The interpretation of the ‘unjustifiable risk’ test was considered by Morris J in PJR, [89] the first case decided by the tribunal under the Working with Children Act. Sitting as the President and exercising original jurisdiction, his Honour directed the Secretary to give an assessment notice to an applicant who came within category 1.
[89](2006) 25 VAR 336.

In doing so, Morris J discussed the concept of ‘unjustifiable risk’ as expressed in s 26(2), which is not materially different to s 13(2). His Honour said that, in determining whether giving a notice would not pose an unjustifiable risk to the safety of children, the tribunal had to make ‘a judgment about whether the risk is unjustifiable’.[90] With respect, that is more than a statement of the obvious. My conclusion in the present appeal is that his Honour’s injunction should be followed. Morris J went on to emphasise the evaluative nature of that function:

Although we often use binary language to describe a risk to safety (such as ‘safe’ or ‘unsafe’), in truth there is an infinite gradation of circumstances from absolutely safe to absolutely unsafe; and a judgment will be required to identify what is ‘safe’ and what is ‘unsafe’. By using the adjective ‘unjustifiable,’ the parliament has recognised this gradation of risk and has rightly put the focus on whether the risk is unjustifiable, having regard to specified matters.[91]

[90]Ibid 339 [10].

[91]Ibid.

I agree with Morris J. Moreover, the evaluative nature of this judgment about unjustifiable risk can be understood by examining the way in which Morris J assessed the competing facts and circumstances in the case before him.[92] It is clear from his Honour’s analysis that he was satisfying himself that granting the assessment would not pose an unjustifiable risk, not whether it would pose a, any or no risk or put children at risk. Further, applying the test in this way is consistent with taking proper account of human rights.
[92]Ibid 344-5 [39]-[43].

In other cases, the tribunal has applied the ‘unjustifiable risk’ test under the Working with Children Act by expressly taking into account the need to balance protecting children from harm (which is the main purpose of the Act) with the right to work and freedom of choice of work. For example, Macnamara DP saw the tribunal’s function in that way in AZD v Secretary, Department of Justice.[93] He asked: ‘How then do I strike the balance between the two interests’[94] which are at stake? The legislation treats that as a very important question. By reference to the terms of s 13(2), the answer I would offer is: by applying the unjustifiable risk test, which involves (among other things) evaluating the nature and degree of any risk. Applying the test in that way itself ensures that the balance between those interests will be properly struck.
[93][2009] VCAT 977 (5 June 2009) (Macnamara, Deputy President).
[94]Ibid [14]; see also MH v Department of Justice [2008] VCAT 1514 (22 July 2008) [33] (Judge Harbison) (‘MH’).

The approach of Morris J in PJR to the concept of ‘unjustifiable risk’ was followed by Kyrou J in Maleckas.[95] That was a case like the present in which a ground of appeal was whether the tribunal had misinterpreted the statutory tests. Kyrou J upheld the appeal. In the present case, ZZ relies on, and the Secretary to the Department of Justice seeks to distinguish, his Honour’s judgment.
[95][2011] VSC 227 (31 May 2011).

The facts of Maleckas were that the applicant was a member of the committee of management of a voluntary organisation which supported heterosexual people who were HIV positive. The committee required him to obtain an assessment notice because his work as a volunteer brought him into contact with the children of members. In 1990 he had been convicted of manslaughter, which brought him into category 2 of applications under the Working with Children Act, the same as ZZ in the present case.

In deciding whether the tribunal had misapplied the unjustifiable risk test, Kyrou J made (with respect) many valuable statements about the determination of category 2 applications. In particular, his Honour said:

(d)The expression ‘an unjustifiable risk’ does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.
(e)What constitutes ‘an unjustifiable risk to the safety of children’ will depend on the circumstances of each case, having regard to the matters set out in s 13(2)(a) to (j) of the [Working with Children Act] and the main purpose of that Act as set out in s 1(1).[96]

With respect, I agree with those statements.

[96]Ibid [43]; see also Secretary, Department of Justice v Yee [2012] VSC 447 (26 September 2012) [29]-[30] (Kyrou J).

Kyrou J also said in paragraph (f) that non-sexual and non-physical harm to children may be a relevant public interest consideration under cl 102(b) of sch 1 of the Victorian Civil and Administrative Tribunal Act. I note that the Working with Children Act does not define the expression ‘safety of children’ which is used in s 13(2). It may be that the word ‘safety’ should be given its ordinary meaning of ‘exemption from hurt or injury’ and ‘freedom from danger’.[97] So interpreted, ‘safety of children’ is not confined to sexual or physical harm but includes emotional and psychological harm. Children are especially vulnerable to emotional and psychological harm which can have long-term physical consequences for them. I think Parliament would probably have intended this legislation to assist in protecting children from such harm and it is not inconsistent with the purposes in s 1(1) to interpret s 13(2) in this way. I therefore agree with Kyrou J in Maleckas that non-sexual and non-physical harm must be considered when relevant, although it may be more accurate to say that this was relevant directly to ‘the safety of children’ under s 13(2) and not only as a public interest consideration under cl 102(b). I note that this issue does not directly arise in the present case.
[97]JA Simpson and ESC Weiner, The Oxford English Dictionary (Clarendon Press, 2^nd ed, 1989) vol 14, 358.

In Maleckas, Kyrou J held that justifiable risk does not mean ‘no risk’.[98] For the reasons which his Honour gave, in my view it follows that ‘unjustifiable risk’ does not mean ‘a risk’ or ‘any risk’ or putting children ‘at risk’. Further, as his Honour held,[99] the relevant risk in an application under the Working with Children Act is to ‘the safety of children’ (s 13(2)). Under the Transport (Compliance and Miscellaneous) Act, it is ‘to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services’ (s 169N(3)(c)(i)). The subject of those expressions is specific and not the same as, for example, ‘the general community’.
[98]Maleckas [2011] VSC 227 (31 May 2011) [50] (Kyrou J).
[99]Ibid.

Kyrou J rejected the plaintiff’s submissions that ‘likely’ in s 13(2)(h) meant ‘more likely than not’. His Honour held, with respect correctly, that a chance of a future threat was a relevant consideration, by which I take his Honour to mean that the probability of that threat occurring must be assessed in the particular circumstances. Thus, as his Honour held, a minimal chance of such a threat might favour the applicant, whereas a greater one might not.[100]
[100]Ibid [72]; followed in ETA v Secretary, Department of Justice [2013] VCAT 418 (19 April 2013) [48] (Garde J, President) (‘ETA’) (his Honour took into account in the applicant’s favour that it was ‘highly unlikely’ that the applicant would pose a future threat to a child: [50]).

In its reasons for decision, the tribunal in Maleckas had referred to the absence of positive evidence ‘dispel[ling] the possibility … that [the applicant] may be a threat to children’.[101] It repeatedly referred to the question of whether the applicant posed ‘no risk’ to the safety of children. Kyrou J held this to be an error of law. In his Honour’s view, the adoption of this reasoning meant that the tribunal had ‘failed to recognise properly the nature and scope of the legal test that it was required to apply under s 13(2) and consequently [it] did not apply that test’.[102] That conclusion is consistent with the judgment of Morris J in PJR.
[101]LKQ v Secretary, Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Steele DP, 10 September 2010) [45] (‘LKQ’).
[102][2011] VSC 227 (31 May 2011) [52]. As we will see, I think the tribunal committed a similar error in the present case.

With respect, the conclusion of Kyrou J is correct when those provisions are interpreted with the human rights which are engaged. In particular and as relevant to the present case, the proper evaluation of the nature and degree of the risk on which his Honour insisted is consistent with Australia’s international obligations and compatible with the human rights in the Charter (including s 13(a) if it applies).

In Maleckas, the tribunal also took into account the attitude of the applicant to the offences which he had committed. It was concerned that he had a tendency to minimise some details of the manslaughter offence and gloss over how serious it was.

Both Secretaries respectively submitted that the ‘unjustifiable risk’ test and the ‘public interest’ test in the Working with Children Act and the Transport (Compliance and Miscellaneous) Act were independent and had their own separate sphere of operation.

The Secretary to the Department of Justice submitted that any mistake by the tribunal in applying the ‘unjustifiable risk’ test did not undermine the validity of its application of the ‘public interest’ test. The tribunal clearly decided that, even if giving ZZ an assessment notice would not pose an unjustifiable risk to the safety of children, it was not in the public interest to do so. Before the tribunal, ZZ had to succeed under both tests. Therefore, before this court, he has to succeed on both grounds of appeal.

It was submitted that the decision of Morris J in PJR[150] was distinguishable. The decision of Kyrou J in Maleckas[151] was more apposite because the kinds of public interest factors which were set out indicatively by his Honour were applicable here. The decisions of the Court of Appeal in XFJ[152] and LMB[153] were both inconsistent with a prescriptive approach to the application of the public interest test.
[150](2006) 25 VAR 336.
[151][2011] VSC 227 (31 May 2011).
[152][2011] VSCA 302 (11 October 2011) (Maxwell P, Mandie and Harper JJA).
[153][2012] VSC 143 (29 June 2012) (Warren CJ, Osborn JA and Cavanough AJA).

The Secretary to the Department of Transport submitted that the tribunal could, as it did, decide ZZ’s application under the Transport (Compliance and Miscellaneous) Act on the sole ground that it was not in the public interest to grant him driver accreditation, which was the criterion specified in s 169N(3)(c)(ii). The tribunal was not required to go through the other criteria, which were specified in s 169N(3)(a), (b) and (c)(i), and it did not do so. That was not an error of law. The word between paragraphs (a), (b) and (c), and between sub-paragraphs (c)(i) and (ii), is ‘and’. Therefore, all the specified criteria had to be independently satisfied. Further, once the tribunal reaches a state of satisfaction that any of the criteria in those paragraphs are not met, it can refuse to grant accreditation without considering the other criteria. It followed that, if the applicant did not satisfy the public interest test, it was fruitless to examine and apply the other criteria.

It was submitted that the tribunal’s concerns in relation to ZZ’s lack of insight and real remorse, and his anger management problems, were relevant and material to the public interest. Applying the principles stated by the High Court in Osland v Secretary, Department of Justice [No 2],[154] there was material before the tribunal which was capable of supporting the formation by it of an opinion that the public interest required accreditation not to be granted and the tribunal was actually not satisfied that it was in the public interest to make the order. If the factual substratum for the tribunal’s decision existed, the court could not interfere because it would have decided the public interest question differently.[155]
[154](2010) 241 CLR 320, 328-9 [12] (French CJ, Gummow and Bell JJ).
[155]Ibid 351 [73] (Hayne and Kiefel JJ).

To determine those submissions, it is necessary to identify the proper interpretation of the public interest test in the relevant provisions of the Working with Children Act and the Transport (Compliance and Miscellaneous) Act. The issue has been considered by the tribunal and this court, in authorities which I will now review.

Review of authorities

The public interest test in the Working with Children Act was discussed by Morris J in PJR.[156] His Honour said ‘the notion of “the public interest” is broad’ and it was ‘not appropriate to seek to define the boundaries of what is in the public interest’.[157] Among the relevant considerations, he identified as ‘central’ the ‘need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm’.[158] On the other hand, also relevant was ‘the right of a person to engage in work’.[159] In reaching that conclusion, his Honour referred with approval to the New South Wales decisions of R[160] and V.[161] His Honour also held that ‘[a] similar contention might be advanced to the effect that a person has a right to engage in community affairs’.[162]
[156](2006) 25 VAR 336.
[157]Ibid 345 [45].
[158]Ibid.
[159]Ibid.
[160][2002] NSWIR Comm 101 (16 May 2002).
[161](2003) 56 NSWLR 476, 483 [38].
[162](2006) 25 VAR 336, 345 [45].

Morris J also discussed how the public interest should be considered when the tribunal has decided that giving a notice would not pose an unjustifiable risk to the safety of children. His Honour said that the public interest criterion still had to be applied but, in such a case, ‘it will usually … be in the public interest to direct the Secretary to give an assessment notice’.[163]
[163]Ibid.

The approach of Morris J in PJR to the public interest has been followed by the tribunal in subsequent cases (both under the Working with Children Act and the Transport (Compliance and Miscellaneous) Act) and endorsed by this court.

While decisions of the tribunal have correctly emphasised that the main purpose of the Working with Children Act is the protection of children from harm, they have also acknowledged the relevance and importance of rehabilitating offenders, their right to work and other similar considerations.[164] So, in MH,[165] her Honour Judge Harbison said the Working with Children Act did not prevent all persons with a serious criminal record from ever working with children again. Rather:

It is designed so that an informed assessment can be made in every individual case of the risk of harm to children arising out of his or her past behaviour. It places a heavy burden on the decision maker, to make an assessment as to what is likely to happen in the future, based on what is known to have happened in the past. The assessment must be rigorously made, given the aim of the legislation, which is the protection of very vulnerable children from sexual harm or violence.[166]

That conclusion applies equally in the context of the Transport (Compliance and Miscellaneous) Act.

[164]See eg BGD v Secretary, Department of Justice [2010] VCAT 50 (8 January 2010) [62] (Judge Harbison, Vice-President) (‘BGD’); FC v Director of Public Transport [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP) (under the Transport (Compliance and Miscellaneous) Amendment Act) (‘FC’); WSO v Secretary, Department of Justice [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President) (‘WSO).

[165][2008] VCAT 1514 (22 July 2008).

[166]Ibid [35].

In the context of the right to work, the tribunal has (in my view, correctly) taken into account the public interest in enabling persons to engage in their chosen field of employment[167] or in the field in which they are most suited to work,[168] in not lightly turning people away from their commitment to a chosen career and in encouraging people to use their qualifications, experience and expertise for the benefit of others.[169] Those were decisions under the Working with Children Act. Decisions of the tribunal under the Transport (Compliance and Miscellaneous) Act have adopted the same approach in relation to the application of the public interest test.[170] This accords with the statement of Barwick CJ in Forbes that there is a ‘public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit’ and ‘[i]t is in the public interest that a man should be able to exercise his capacity to work’.[171]
[167]MH [2008] VCAT 1514 (22 July 2008) [33] (Judge Harbison, Vice-President).
[168]SVP v Secretary, Department of Justice [2010] VCAT 1496 (8 September 2010) [42] (Lambrick DP).
[169]LMB v Secretary, Department of Justice [2011] VCAT 595 (8 April 2011) [33]-[34] (Judge Hampel, Vice-President) (upheld on appeal in Secretary, Department of Justice v LMB [2012] VSCA 143 (29 June 2012) (Warren CJ, Osborn JA and Cavanough AJA); see also PMY v Secretary, Department of Justice [2011] VCAT 968 (2 June 2011) [35] (Judge Davis, Vice-President) (‘PMY’); KX v Secretary, Department of Justice [2010] VCAT 2023 (13 December 2010) [55] (Judge Lacava, Vice-President).
[170]See eg FC [2010] VCAT 437 (6 April 2010) [27] (Macnamara DP); BJC v Secretary, Department of Transport [2012] VCAT 316 (19 March 2012) [61] (Judge Jenkins, Vice President); SMS v Secretary, Department of Transport [2012] VCAT 1044 (10 July 2012) [111] (Lambrick DP).
[171](1979) 143 CLR 242, 260.

In relation to the public interest more broadly, the tribunal has taken into account the public interest in people with appropriate life skills and experience having contact with children,[172] in their community involvement and participation in local sporting clubs and competitions, in encouraging volunteers to train and act as mentors to younger participants,[173] in not placing unnecessary barriers in the way of employing older workers whose experience and work history outweigh their formal qualifications[174] and in giving effect to a person’s right to engage in community affairs,[175] including community-based children’s organisations.[176]
[172]MH [2008] VCAT 1514 (22 July 2008) [29], [34] (Judge Harbison, Vice-President).
[173]WSO [2010] VCAT 1522 (16 July 2010) [55] (Judge Hampel, Vice-President).
[174]Ibid.
[175]PMY [2011] VCAT 968 (2 June 2011) [35] (Judge Davis, Vice-President).
[176]BGD [2010] VCAT 50 (8 January 2010) [63] (Judge Harbison, Vice-President).

Decisions of this court have endorsed a broad and not a narrow approach to the public interest. The tribunal was criticised for adopting, atypically, a different approach in LKQ.[177] On appeal in Maleckas, Kyrou J said the tribunal’s approach was ‘overly narrow’ and mistaken.[178] His Honour held that the tribunal had committed an error of law, because ‘in adopting that narrow view, [it] failed to consider properly whether, in all the circumstances, it was in the public interest to give to the plaintiff an assessment notice’.[179] As we will see, the tribunal made a similar error of law in the present case.
[177]LKQ v Secretary, Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Steele DP, 10 September 2010).
[178]Maleckas [2011] VSC 227 (31 May 2011) [92].
[179]Ibid.

There is an extensive discussion of the public interest under the Working with Children Act in the judgment of the Court of Appeal in Secretary, Department of Justice v LMB.[180] The question at issue was whether public confidence in the assessment of persons as suitable for child-related work was a mandatory public interest consideration when the applicant did not objectively pose an unjustifiable risk to the safety of children. In rejecting that proposition, Warren CJ, Osborn JA and Cavanough AJA said:
[180][2012] VSCA 143 (29 June 2012) (Warren CJ, Osborn JA and Cavanough AJA).

As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth:[181]
[181](2009) 240 CLR 140, 162 [20].

The term ‘in the public interest’ is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[182]

In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in ‘protecting children from sexual or physical harm’.[183] The Act does this by ‘ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body’.[184]
The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest.[185]

[182]Citing O’Sullivan v Farrer (1989) 168 CLR 210, 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); see also Hogan v Hinch (2011) 243 CLR 506, 536-37 [31]-[32] (French CJ), 548 [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 329 [13] (French CJ, Gummow and Bell JJ).

[183]Working With Children Act s 1(1).

[184]Ibid.

[185][2012] VSCA 143 (29 June 2012) [24]-[26].

Applying that broad concept of the public interest, their Honours went on to explain why it would be hard to disturb a conclusion of the tribunal that it was in the public interest to give an assessment notice. That was because:

(a)a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest;
(b)the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case;
(c)the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification;
(d)Parliament vested in the Tribunal – [sic] not the Secretary nor the Minister nor this Court – the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.[186]

[186]Ibid [28].

There was an issue in the case as to whether, in assessing the public interest, the tribunal should have taken the applicant’s rehabilitation and right to work into account. In the light of evidence in the case that the applicant would need an assessment notice to work in the foreseeable future, their Honours held ‘it was not an impermissible consideration that the giving of a notice would acknowledge and assist LMB’s rehabilitation and further his right to employment’.[187]
[187]Ibid [63].

This decision also clarifies the proper approach to the public interest when the tribunal has determined that giving a notice would not pose an unjustifiable risk to the safety of children. Despite a finding that no such risk was posed, it is still necessary to consider the public interest criterion. However, endorsing the decision of Morris J in PJR,[188] their Honours held that:

Once the Tribunal is satisfied that that purpose is achieved, in the sense that the applicant poses no unjustifiable risk to the safety of children, it will necessarily be an unusual case in which the public interest nevertheless requires that no assessment notice be given.[189]

Given that the tribunal had not closed off the possibility of refusing to give a notice on public interest grounds, it was held that it did not err in approaching the public interest in that manner.[190] Their Honours explained that this conclusion is one that was consistent with ‘the stated purpose of the working with children check procedure’.[191]

[188](2006) 25 VAR 336, 345 [45].

[189][2012] VSCA 143 (29 June 2012) [61] (footnote omitted).

[190]Ibid [87].

[191]Ibid.

Now to the determination of the second ground of appeal, beginning with the Working with Children Act.

Tribunal did misapply public interest test
Decision under Working with Children Act

In relation to ZZ’s application for an assessment notice under the Working with Children Act, the tribunal applied the public interest test after it had misapplied the unjustifiable risk test. In applying the public interest test, it focused on ZZ’s lack of insight into his offending and the steps he was taking to protest his innocence, without considering other circumstances. In my view, the tribunal erred in law in both respects.

I accept the submissions made for the Secretary to the Department of Justice that the unjustifiable risk test and the public interest test in cl 102(a) and (b) respectively of sch 1 of the Victorian Civil and Administrative Tribunal Act have their independent work to do. The applicant must satisfy both tests to the satisfaction of the Secretary before an assessment notice can be given. It is not enough for the applicant to satisfy only the unjustifiable risk test. As Warren CJ, Osborn JA and Cavanough AJA held in an analogous context in LMB: ‘if satisfied that there is no unjustifiable risk, the tribunal may only direct the giving of an assessment notice if it is satisfied that, in all the circumstances, it is in the public interest to do so …’[192]
[192]Ibid [18].

While the scheme of the Working with Children Act and the relevant provisions of the Victorian Civil and Administrative Tribunal Act is for children to be protected from harm by requiring applicants to satisfy both the unjustifiable risk test and the public interest test, the public interest test is imposed by way of a final check on an applicant who has successfully passed through the unjustifiable risk stage of the assessment process. It is implicit in the legislative scheme that the applicant must have been properly assessed for unjustifiable risk before he or she can be properly assessed against the public interest.

I have discussed the central place of the unjustifiable risk test in the statutory scheme and the proper interpretation of that test. I repeat that, in my view, the function of the test is to enable the Secretary to make a balanced, objective and evidence-based assessment about the nature and degree of the risk (if any) which giving the notice would pose to the safety of children.

Once the function of the unjustifiable risk test is so understood, it can be appreciated immediately that there is no occasion for assessing an applicant who has not satisfied the unjustifiable risk test against the pubic interest and, conversely, an applicant who has satisfied the unjustifiable risk test is in a position of advantage when it comes to the public interest stage. As held by Morris J in PJR[193] and confirmed by Warren CJ, Osborn JA and Cavanough AJA in LMB,[194] it will be an unusual case in which an applicant who does not pose an unjustifiable risk will be refused a notice on the ground of the public interest.
[193](2006) 25 VAR 336, 345 [45].
[194][2012] VSCA 143 (29 June 2012) [61].

There is an inextricable relationship between these two aspects of the assessment process. Therefore, the proper application of the unjustifiable risk test is a necessary foundation for the proper application of the public interest test. In the present case, before ZZ could properly be assessed against the public interest, the tribunal had to know whether he posed an unjustifiable risk. That he did not pose an unjustifiable risk on the proper application of that test was one of the circumstances in ‘all the circumstances’ which had to be considered. The mistake made by the tribunal in the application of the unjustifiable risk test undermined the legality of the application of the public interest test. I must therefore reject the submissions of the Secretary that the tribunal’s assessment of the public interest was valid despite any error in the assessment of unjustifiable risk.

It is not strictly necessary to address the second respect in which the tribunal erred. But the matter was fully argued and I think it is desirable to do so.

There are insuperable difficulties with the way in which the tribunal dealt with ZZ’s lack of insight, complaints about the judicial process, appeals and protestations of innocence under the heading of the public interest.

First, these were not really matters which went to the public interest. As Kyrou J decided in Maleckas,[195] they went to unjustifiable risk. Outside the concept of unjustifiable risk, there was no obvious connection between the steps which ZZ was taking and the main purpose of the Working with Children Act, which is the protection of children from sexual and physical harm.
[195][2011] VSC 227 (31 May 2011) [80].

Second, the statutory requirement is to have regard to the public interest ‘in all the circumstances’. Among the circumstances to be taken into account it was necessary to consider that it is not unusual for convicted offenders to exhibit certain remorse for their ‘crime’ yet protest their innocence and seek an acquittal on appeal, hopelessly, unreasonably or otherwise. In some contexts, as in this case, it becomes necessary for a judicial officer to make a considered judgment about whether they can be reasonably confident that the offender will be law-abiding in the future. Cases vary across a wide spectrum and many are not clear-cut. In the present case, without considering other circumstances and explanations, the tribunal seems to have treated ZZ’s protestations of innocence and other steps as being a sufficient basis on which to conclude that he was not remorseful at all and lacked insight into his crimes. It just does not necessarily follow from ZZ’s complaints, protestations of innocence and appeals that he did not accept moral responsibility for the violence which he had admittedly carried or had sought to carry out or that he would not be law-abiding in the future. The tribunal did acknowledge that ZZ was entitled to protest his innocence, but its analysis on that score stopped at that point. Assessing the extent (if any) to which ZZ accepted that responsibility required consideration of all the circumstances which the tribunal did not undertake.

Third, ZZ’s right to work and choose his work, the way in which working as a bus driver would have enhanced his rehabilitation and the positive contribution which his work would have made to the community were all public interest considerations. The tribunal did not have regard to these matters in the context of the public interest.

For those reasons, I conclude that the tribunal erred in law in applying a mistaken understanding of the public interest test in cl 102(b) of sch 1 of the Victorian Civil and Administrative Tribunal Act. The mistaken understanding was the one which Kyrou J identified in Maleckas.[196] By a narrow focus on a particular consideration, the tribunal failed properly to consider whether, in all the circumstances, it was in the public interest to give ZZ an assessment notice.
[196]Ibid [92].

That brings me to the determination of the second ground of appeal in relation to the Transport (Compliance and Miscellaneous) Act.

Decision under Transport (Compliance and Miscellaneous) Act

In relation to ZZ’s application for driver accreditation under the Transport (Compliance and Miscellaneous) Act, the tribunal did not apply the unjustifiable risk test, or the other tests which were applicable under that Act, before it applied the public interest test. In applying the public interest test, it adopted the decision which it made under the Working with Children Act. In my view, it erred in law in both respects.

I accept the submissions made for the Secretary to the Department of Transport that the several tests specified in s 169N(3)(a), (b) and (c)(i) and (ii) have their independent work to do. The applicant for accreditation must satisfy all of the tests before accreditation can be granted. It follows that, if satisfied that the unjustifiable risk and other tests specified in s 169N(3)(a), (b) and (c)(i) are satisfied, the tribunal cannot grant accreditation unless it is in the public interest to do so (sub-par (c)(ii)).

The scheme of the Transport (Compliance and Miscellaneous) Act is for the safety of members of the travelling public (including children) to be protected by requiring applicants to obtain accreditation by satisfying all the specified tests. The tests in s 169N(3)(a),(b) and (c)(i) contain particular eligibility requirements. The public interest test in sub-par (c)(ii) contains a general eligibility requirement. According to the scheme, where the tribunal determines that any of the tests specified in s 169N(3)(a),(b) or (c)(i) are not satisfied, there is no requirement to consider the other tests, including the public interest in sub-par (c)(ii). As with the analogous provisions of the Working with Children Act, the public interest test in sub-par (c)(ii) is imposed by way of final check on applicants who have passed successfully through the other stages of the assessment process. It is implicit in the scheme of the Transport (Compliance and Miscellaneous) Act that the applicant must properly be assessed against the other tests, including the unjustifiable risk test, before being assessed against the public interest test.

As the submissions of the Secretary to the Department of Transport stressed, it is necessary to pay due regard to the particular mechanical features of the Transport (Compliance and Miscellaneous) Act. However, the unjustifiable risk test has the same core function in the Transport (Compliance and Miscellaneous) Act as it does in the Working with Children Act. It enables the tribunal to make a balanced, objective and evidence-based assessment about the nature and degree of the risk which granting accreditation would pose to the safety of the travelling public (including children). In my view, permitting sole resort to the public interest test as a ground for refusing to grant accreditation would subvert the intended operation of the unjustifiable risk test and, indeed, the particular eligibility requirements in the other tests.

Moreover, because the core function of the unjustifiable risk test in the two enactments is essentially the same, the principle stated by Morris J in PJR[197] and confirmed by Warren CJ, Osborn JA and Cavanough AJA in LMB[198] in reference to the Working with Children Act is equally applicable to the Transport (Compliance and Miscellaneous) Act: it will be an unusual case in which an applicant who does not pose an unjustifiable risk (and, I would interpolate, who passes the other tests) will be refused driver accreditation on the grounds of the public interest. That supplies added reason for thinking that the public interest test in s 169N(3)(c)(ii) of the Transport (Compliance and Miscellaneous) Act cannot be applied before and without the application of the other tests: it is necessary to know what the position of the applicant is under the other tests before he or she can be properly assessed against the public interest.
[197](2006) 25 VAR 336, 345 [45].
[198][2012] VSCA 143 (29 June 2012) [61].

If follows that the tribunal erred in law in applying the public interest test without first applying the other tests in s 169N(3) of the Transport (Compliance and Miscellaneous) Act.

Further, I have given my reasons for concluding that the tribunal erred in law in applying a mistaken understanding of the public interest test in cl 102(b) of sch 1 of the Victorian Civil and Administrative Tribunal Act. That same reasoning applies to the tribunal’s application of the public interest test in s 169N(3)(c)(ii) of the Transport (Compliance and Miscellaneous) Act. In relation to the decision to refuse accreditation under that Act, it erred in law in the same respect.

The second ground of appeal will also be upheld.

CONCLUSION

For the purpose of obtaining employment as a bus driver, ZZ needed an assessment notice under the Working with Children Act and accreditation to drive a commercial passenger vehicle under the Transport (Compliance and Miscellaneous) Act. He applied to the Secretary to the Department of Justice for an assessment notice under the former Act and to the Secretary to the Department of Transport for driver accreditation under the latter Act. Both applications were refused. ZZ applied to the tribunal for review of the decisions.

Under the Working with Children Act, the tribunal could give the assessment notice if it was satisfied that doing so would not pose ‘an unjustifiable risk’ to the safety of children and, in all of the circumstances, it was in the public interest. Under the Transport (Compliance and Miscellaneous) Act, the tribunal could grant the driver accreditation if satisfied that doing so would not pose ‘an unjustifiable risk’ to the safety of persons using commercial transport services and, in all the circumstances, it was in the public interest. Under that latter Act, the tribunal also had to consider whether granting the accreditation was appropriate having regard to a public care objective, whether ZZ was technically competent, physically fit and healthy to be able to provide the service and in other respects was suitable to do so.

After hearing the evidence and considering the issues, the tribunal decided to refuse the application under the Working with Children Act for the assessment notice because it could not be satisfied that giving the notice would not post ‘a risk’ to the safety of children or put them ‘at risk’ and, even if there was no such risk, it was not in the public interest to give the notice. The tribunal did not expressly consider the statutory criterion of whether giving the notice would not pose ‘an unjustifiable risk’ to the safety or children. In relation to the application for driver accreditation under the Transport (Compliance and Miscellaneous) Act, the tribunal adopted its reasons for refusing to give the assessment notice as reasons for concluding that it was not in the public interest to grant the accreditation. It did not expressly consider the ‘unjustifiable risk’ and other criteria specified in that Act. ZZ has established that the tribunal erred in law in making these decisions.

As to refusing to give an assessment notice under the Working with Children Act, the tribunal was required by the ‘unjustifiable risk’ test to assess (among other things) the nature and degree of the risk (if any) of sexual or physical harm to children which giving the notice would pose. The tribunal assessed only whether giving the notice would not pose ‘a risk’ or put children ‘at risk’, not whether the risk would not be unjustifiable. That error of law also undermined the decision of the tribunal in relation to the public interest aspect.

As to refusing to grant driver accreditation under the Transport (Compliance and Miscellaneous) Act, the tribunal was required to apply the ‘unjustifiable risk’ test before considering the public interest aspect. It was not legally open to refuse ZZ’s application on grounds of the public interest without first determining whether granting accreditation would not pose an unjustifiable risk to the safety of children.

The appeals will therefore be upheld. There will be orders under s 148(7)(a) of the Victorian Civil and Administrative Tribunal Act substituting cl 2 of the tribunal’s orders with an order that ZZ’s application under s 26(5)(b) of the Working with Children Act is refused. The orders of the tribunal (as so amended) will be set aside. Pursuant to s 148(7)(c) of the Victorian Civil and Administrative Tribunal Act, the two proceedings are remitted to be heard and decided again either with or without the hearing of further evidence as determined by the tribunal. Pursuant to s 148(8) of that Act, for the rehearing, the tribunal is to be differently constituted.

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[2013] VSC 267

22 May 2013