1. The applicant is 35 years of age. He has had a difficult life and has a history of alcohol abuse and violent behaviour. He has been found guilty of a number of criminal offences since 1993 and been sentenced to a number of terms of imprisonment, many of which were served concurrently.
2. Relevantly, the applicant has been found guilty of the following offences which are category 2 offences as defined in s13 of the WWC Act:[1]

3 years and 6 months imprisonment. Total of 4 years and 6 months with a non parole period of 3 years before being eligible for parole (sentence also related to offences which cannot be classified under the Act)

Aggregate 6 months' imprisonment. Wholly suspended for 12 months under section 27 of the Sentencing Act 1991 (sentence also related to offences which cannot be classified under the Act).

1. The applicant has also been found guilty of the following offences which are category 3 offences as defined in s14 of the WWC Act:

Aggregate 6 months' imprisonment. Concurrent (sentence also related to offences which cannot be classified under the Act)

Aggregate 6 months' imprisonment. Wholly suspended for 12 months under section 27 of the Sentencing Act 1991 (sentence also related to offences which cannot be classified under the Act).

1. Under s13(2) of the WWC Act the respondent must refuse to give an assessment notice to a person who has been found guilty of a category 2 offence unless she is satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to the factors set out in s13(2)(a) to (j).
2. Whilst in prison the applicant began studying through Northern Melbourne Institute of TAFE ('NMIT') for a Certificate IV in Community Welfare. He completed this in November 2009 and has just completed the third year of a Diploma of Community Services Work at NMIT.
3. In March 2009, whilst still in prison, the applicant applied for a WWC check. He was released from prison on 6 August 2009. For a time, he lived in community housing before he started living with his then girlfriend (who he married in February this year). He commenced employment with his current employer, who supports his application, in December 2009.
4. On 21 August 2009 a delegate of the respondent wrote to the applicant enclosing an Interim Negative Notice dated 19 August 2009, and inviting him to make submissions within 28 days (or longer, if granted an extension of time).
5. There is a file note from an office of the Working with Children Check Unit ('WWCC Unit') dated 13 November 2009 recording the applicant's advice that Box Hill Legal Service had indicated they would provide him with assistance in preparing a submission. The date for filing the submission was extended to 20 November 2009. No submission was made. Ms Kelly said her instructions were that ultimately Box Hill Legal Service had been unable to assist in the preparation of the submission.

1. The tribunal has a broad discretion whether to grant an extension of time to commence a proceeding. Section 126 of the VCAT Act provides:

(1) The Tribunal, on application by any person or on its own initiative, may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.

(2) If the rules permit, the Tribunal, on application by a party or on its own initiative, may -

(a) extend or abridge any time limit fixed by or under this Act, the regulations, the rules or a relevant enactment for the doing of any act in a proceeding; or

(b) waive compliance with any procedural requirement, other than a time limit that the Tribunal does not have power to extend or abridge.

(3) The Tribunal may extend time or waive compliance under this section even if the time or period for compliance had expired before an application for extension or waiver was made.

(4) The Tribunal may not extend or abridge time or waive compliance if to do so would cause any prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

relevant enactment means an enactment specified in the rules to be a relevant enactment for the purposes of this section.

1. The WWC Act is a relevant enactment.
2. In considering whether to extend time it is appropriate I have regard to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd and Others v Minister for Home Affairs and Environment (1984) 3FCR 344 which are helpfully summarised in Pizer's Annotated VCAT Act:[2]

1. Whether the applicant for extension can show an acceptable explanation for the delay; 2. Whether it is fair and equitable in the circumstances to extend time;

1. The applicant's actions in particular, whether the applicant has continued to make the decision-maker aware that he or she contests the finality of the decision as distinct from allowing the decision-maker to believe that the matter was finally concluded;

1. Whether the respondent has been prejudiced by the delay; 2. Whether the delay may result, if the applicant for extension is successful, in the unsettling of other people or of established practices; 3. The merits of the substantial application; and 4. Considerations of fairness as between the applicant and other persons otherwise in a like position.

I will consider each in turn although for reasons which will become apparent, in a different order.

Can the applicant show a reasonable explanation for the delay?

1. It was submitted on behalf of the applicant that he was not aware of his rights to seek a review of the respondent's decision until mid this year when, as he states in his supplementary affidavit, he sought advice from a lawyer at the First Step Program in St Kilda.
2. On the first page of the letter dated 14 January 2010 under the heading 'What if you don't agree with the decision to issue you with a Negative Notice?' the applicant's rights to seek a review of the decision in this tribunal are set out, as is the requirement that any application must be made within 28 days.
3. Following the Statement of Reasons for Decision dated 11 January 2010 is a one page information sheet entitled 'Making an Application to the Victorian Civil and Administrative Tribunal for an Assessment Notice'. In the third paragraph it is stated:

If you wish to apply to VCAT, you must do so within 28 days from the date of the decision.

1. On 15 January 2010 an officer of the WWCC unit made a file note of a telephone conversation when the applicant advised he would not be applying to the tribunal for a review of the decision to give him a Negative Notice.
2. In circumstances where the applicant has successfully completed a Certificate IV in Community Services Work, and is awaiting the results of his final examinations for the completion of a Diploma of Community Services Work, it is difficult to accept that he did not understand the very clear information contained in the letter of 14 January 2010 and the accompanying information sheet.
3. Rather, it seems, the applicant did not apply for a review at the time because he thought his chances of being successful were slim. In paragraph 7 of his first affidavit the applicant states:

I am making the Applications [the s126 application and the application for review] because I believe there has been a material change in my circumstances.

And, in paragraph 12 of his supplementary affidavit he states:

Should I have sought to appeal the Secretary's decision through VCAT at this time [February 2010] the appeal would have been futile as there was no material change to my circumstances.

Has the applicant continued to make the respondent aware that he contests the finality of the decision?

1. As evidenced by the file note dated 15 January 2010, the respondent understood the applicant did not intend applying for a review of the decision. There is no evidence the applicant advised the respondent that he would be applying for a review until the application was filed in October 2011.

1. The comments by Acting Deputy President Billings, as he then was, in LAH v Secretary to the Department of Justice[3] at [22] are apt:

...In my view prejudice to the Secretary was not the dominant consideration in the circumstances of this case, but I think that a decision-maker should generally be able to act with confidence that a matter is finalised once the statutory period for applying has passed, or at least within a reasonable time after that.

Whether other people or established practice might be upset by the granting of an extension of time? and

Considerations of fairness as between the Applicant and other persons otherwise in a like position

1. It is convenient to consider these two principles together.
2. The applicant's current circumstances are not a relevant change of circumstances as defined in s25(2):

(a) a charge that was pending at the date of the notice being finally dealt with without the person being found guilty of the offence; or

(b) a finding of guilt being quashed or set aside by a court after the date of the notice; or

(c) the person ceasing to be subject to reporting obligations imposed on him or her by Part 3 of the Sex Offenders Registration Act 2004; or

(d) the person being no longer subject to an extended supervision order or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005; or

(da) the person being no longer subject to a supervision order or detention order; or

(e) a relevant finding being quashed or set aside expressly or impliedly after the date of the notice.

1. Whilst the applicant may have taken positive steps to improve his circumstances, and is keen to work with youth who are trying to cope with issues of addiction and violent behaviour[4] this is not a reason, of itself, to allow his s126 application. This legislation clearly contemplates that all persons who have been refused an assessment notice may not apply again for a period of 5 years, unless there has been a change of circumstances within the very limited parameters as set out in s25(2).
2. In this regard I note the observations by Deputy President McKenzie (as she then was) in STO v Secretary to Department of Justice[5] at [52]:

I recognise that, under s25, STO cannot again apply for a working with children check for the next five years. Section 25(2) would permit an earlier application but only if there has been a relevant change in circumstances. That subsection does not appear to cover this case. The section does not, for example, permit an application to be made earlier if exceptional circumstances exist. It may be that the insertion of a provision of this kind might make the section more flexible.

1. Section 126 enables the tribunal to extend time where it is satisfied that an applicant would otherwise be unfairly denied an opportunity to have their case heard and determined. It would be inappropriate to extend time under s126 of the VCAT Act as a means of circumventing a statutory provision in an enabling enactment.

1. As I am not persuaded the applicant has a reasonable explanation for delay, and that time should not be extended to enable the applicant to circumvent the statutory prohibition on reapplying for an assessment notice, it is not necessary to consider the merits of the substantial application.
2. However, I consider it important to mention what appears to have been a lack of candour by the applicant. The clear impression from both of the applicant's affidavits is that he has not come to the attention of the authorities since he was released from prison on 6 August 2009. Exhibit 2 to the applicant's first affidavit is a letter dated 9 May 2011 from his treating psychologist from the First Step Program. The psychologist reports that the applicant was referred to her for counselling related to an alcohol use disorder, and it was elicited in the first session that [the applicant] was likely to benefit from treatment for anger management issues. His first session was on 7 July 2010. As this letter is addressed to the Presiding Magistrate, I enquired during the hearing whether the applicant had been before the courts in 2011.
3. Ms Kelly advised that in May 2011 the applicant had been convicted of an assault he committed in June 2010, whilst on parole, and received a three month suspended sentence. It seems that the applicant sought assistance from the First Step Program after the June 2010 assault. The failure to mention this in either affidavit, in circumstances where the applicant has applied for a review of the respondent's decision because, he says, his circumstances have changed, is incomprehensible.
4. It is irrelevant that assault is not a category 2 (or category 3) offence within the meaning of the WWC Act. Had the s126 application been successful, the applicant's behaviour since committing the category 2 offence, including the assault in June 2010, would have been a relevant consideration under s13(2)(g) of the WWC Act.

1. Whilst it is commendable that the applicant wishes to make amends with the community and make a significant contribution to young adults in the community, it would be inappropriate to extend time under s126 of the VCAT Act and allow the applicant to circumvent the statutory prohibition on reapplying for an assessment notice for 5 years. This is not a matter of the applicant being deprived of the opportunity of working with children because of what he has described in his supplementary affidavit, and which Ms Kelly referred to a number of times during her submissions as an administrative mechanism.
2. The application for an extension of time under s126 of the VCAT Act must therefore be refused.

[1] Letter from the respondent to the applicant dated 21 August 2009 enclosing Interim Negative Notice.

[3] [2010] VCAT 604

[5] [2008] VCAT 2537