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[2012] VSC 447
Supreme Court of Victoria
2012-09-26
KYROU J
Original judgment source is linked above.
YEE v Secretary to the Department of Justice [2011] VCAT 2399 (19 December 2011) (Lambrick DP)
ADMINISTRATIVE LAW - Victorian Civil and Administrative Tribunal - Appeal from an order of the VCAT directing the Secretary to the Department of Justice to issue an assessment notice under the Working with Children Act 2005 in lieu of the negative notice that the Secretary had issued - Whether the VCAT had jurisdiction to give a direction without first setting aside the Secretary's decision - Whether the VCAT misconstrued s 13(2) of the - Meaning of 'unjustifiable risk to the safety of children' in s 13(2) - Whether the VCAT's reasons were inadequate - Power of the Court to rectify a formal defect in the VCAT's order - , , .
1 This is an appeal by the Secretary to the Department of Justice ('Secretary') from an order made by a deputy president of the Victorian Civil and Administrative Tribunal ('VCAT') on 19 December 2011,[1] directing the Secretary to give to the respondent, YEE,[2] an assessment notice under the Working with Children Act 2005 ('WWC Act').
2 Under s 33 of the WWC Act, it is an offence for a person to knowingly engage in 'child-related work' without a 'current assessment notice'.
3 YEE has worked as a laboratory technician at a TAFE college for 11 years. As her duties involve frequent direct contact with students aged 15 to 17 years, she obtained an assessment notice on 20 December 2007.
4 On 22 February 2011, at the Moorabbin Magistrates' Court, YEE pleaded guilty to the offence of making a threat to kill her 13-year-old daughter and to the offence of recklessly causing injury to her daughter. YEE was found guilty but no conviction was recorded. Instead, the proceeding was adjourned for 12 months on YEE's undertaking to be of good behaviour during that period. She was also ordered to pay $400 to the court fund.
5 Under s 13(2) of the WWC Act, where an applicant for an assessment notice has been charged with, or convicted of, an offence specified in s 13(1), such as making a threat to kill,[3] the Secretary must refuse to give an assessment notice 'unless satisfied that doing so would not pose an unjustifiable risk to the safety of children'.
6 On 5 August 2011, the Secretary revoked the assessment notice dated 20 December 2007 and gave YEE a negative notice ('Secretary's Decision'). On 18 August 2011, YEE applied to the VCAT for a review of the Secretary's Decision pursuant to leave granted under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). The VCAT decided that the giving of an assessment notice to YEE would not pose an unjustifiable risk to the safety of children and made the following order ('Order'):
The Tribunal directs the [Secretary] to give an assessment notice pursuant to the Working with Children Act 2005 to [YEE].
7 The VCAT did not make an order setting aside the Secretary's Decision, as required by s 51(2)(d) of the VCAT Act, prior to making the Order.
8 For the reasons set out below, I have concluded that, while the Order contains a formal defect, the VCAT did not make any substantive legal errors. Accordingly, the Court will rectify the formal defect in the Order under s 148(7) of the VCAT Act without remitting the proceeding to the VCAT for rehearing.
9 The facts set out below are based on the VCAT's Reasons.
10 YEE was born in 1959. She is married with two teenage daughters who attend secondary school. As YEE's husband has chronic diabetes, she is the primary breadwinner for the family and is also responsible for running the household.
11 On 26 November 2010, YEE had an argument with her daughter at the family home. During the argument, YEE's hands made contact with her daughter's throat and she said words to the effect of 'I am going to kill you, I wish you were dead'. The incident resulted in YEE's daughter having bruising on her throat.
12 On 29 November 2010, YEE was charged with the offences of making a threat to kill and recklessly causing injury. Those charges resulted in the findings of guilt to which reference is made at [4] above.
13 Since 26 November 2010, there have not been any further incidents between YEE and either of her daughters.
14 As discussed below, there was evidence at the VCAT hearing that there were no difficulties in YEE's interaction with any student at the TAFE college in the 11 years in which she worked there.
15 The main purpose of the WWC 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.'[4] The WWC Act gives effect to this purpose by creating an offence of knowingly engaging in 'child-related work' without a 'current assessment notice'.[5]
16 It is common ground that YEE engaged in 'child-related work' within the meaning of that phrase in s 9 of the WWC Act.
17 The WWC Act provides for four categories of application for an assessment notice and assigns different criteria for the determination of each category. Only the second and third categories are relevant to the present case.
18 The offence of making a threat to kill falls within a category 2 application. Section 13(2) of the WWC Act provides the following in relation to such applications:
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.
19 The offence of recklessly causing injury falls within a category 3 application. Section 14(2) of the WWC Act provides that the Secretary must give an assessment notice 'unless satisfied, in the particular circumstances, that it is appropriate to refuse to do so' in relation to category 3 applications.
20 Section 17(3) relevantly provides that the Secretary must give a negative notice to an applicant who is refused an assessment notice.
21 Section 21 of the WWC Act empowers the Secretary to re-assess a person's eligibility to have an assessment notice. Section 23 enables the Secretary to revoke an assessment notice. As the parties to the present appeal focused on the Secretary's issuing of a negative notice to YEE rather than the Secretary's prior revocation of the initial assessment notice that had been issued to YEE, I will not set out the provisions of s 23.
22 Section 26(5)(b) of the WWC Act confers jurisdiction on the VCAT to review a decision by the Secretary to give a negative assessment notice. It provides:
...
(5) Subject to subsection (6), an applicant who has been given a negative notice -
...
(b) on a category 2 application or a category 3 application; or
...
may apply to VCAT for review of the decision to give the notice.
...
Note
VCAT has power, on an application under subsection (5), to affirm the decision to give the negative notice or set it aside and either give an assessment notice or send the matter back to the Secretary for re-consideration (see section 51 of the Victorian Civil and Administrative Tribunal Act 1998).
102 Review of category 2 application
If the proceeding relates to the giving of a negative notice on a category 2 application within the meaning of the Working with Children Act 2005 the Tribunal must have regard to -
(a) any matter to which the Secretary may have regard under section 13(2) of that Act; and
(b) whether, in all the circumstances, it is in the public interest to give an assessment notice.
51 Functions of Tribunal on review
...
(2) In determining a proceeding for review of a decision the Tribunal may, by order -
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
Principles applicable to s 13(2) of the WWC Act
25 A preliminary question of construction that arises in the present case is whether the word 'children' in the phrase 'would not pose an unjustifiable risk to the safety of children' in s 13(2) of the WWC Act is confined to children with whom the applicant for an assessment notice will have contact in the course of his or her 'child-related work'. This question arises because, as will be seen shortly, the Secretary has alleged in her notice of appeal that the VCAT erroneously focused on whether YEE posed an unjustifiable risk to the safety of her own children.
26 Both parties submitted that the word 'children' in the opening words of s 13(2) refers to children with whom an applicant will have contact in the course of his or her 'child-related work'. I agree with this interpretation, which arises clearly from the following:
(a) As stated at [15] above, the main purpose of the WWC 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'.
(b) As stated at [2] above, s 33 of the WWC Act makes it an offence for a person to knowingly engage in 'child-related work' without a current assessment notice.
(c) The definition of 'child-related work' in s 9 of the WWC Act covers a wide range of vocations that involve working with children. The wording of s 9 is not apt to capture the role of a parent in caring for his or her own child. For example, s 9(1)(c), which refers to 'work engaged in as a volunteer', excludes 'unpaid work engaged in for a private or domestic purpose'.
(d) The key criterion in s 13(2) of the WWC Act, namely para (a), which refers to the nature and gravity of the applicant's offence, directs attention to 'its relevance to child-related work'.
(e) Section 10(2A)(e) of the WWC Act requires an applicant for an assessment notice to include in the application form particulars of 'the type of child-related work in which the applicant is engaged or intends to engage'.
(f) In the second reading speech for the Working With Children Bill, the Attorney-General said that the Bill 'does not attempt to regulate private relationships that exist between family and friends'.[6]
27 Victoria has separate legislation to protect children from their parents.[7] Under that legislation, children can be removed from their parents if their physical safety is at risk. There is no indication in the WWC Act that it was intended to cut across more specific legislation dealing with parent-child relationships.
28 My conclusion at [26] above does not mean that the conduct of an applicant for an assessment notice towards his or her children cannot be taken into account under s 13(2) of the WWC Act. Evidence that an applicant was violent towards his or her children would clearly be a relevant consideration, as it has been in this case. Even if such conduct does not give rise to a finding of guilt for any offence, it would be relevant under s 13(2)(j) of the WWC Act.
29 In Maleckas v Secretary, Department of Justice,[8] I set out the following propositions in relation to the phrase 'would not pose an unjustifiable risk to the safety of children' in s 13(2) of the WWC Act:
(a) The starting position is that a category 2 application will be refused. There can be a departure from the starting position only if, on the basis of the material before the Secretary, he or she is satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.
(b) While s 13(2) does not impose any formal onus of proof on an applicant, as a matter of practical reality, it is difficult to see how an applicant could succeed in satisfying the Secretary that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, unless the applicant provides to the Secretary probative evidence going to that issue.
(c) If the Secretary is not satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, he or she must refuse to give an assessment notice. Satisfaction that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children is a condition precedent to the Secretary's power to give an assessment notice. If the condition precedent is not met, the Secretary does not have any power, let alone any discretion, to give an assessment notice.
(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 WWC Act and the main purpose of that Act as set out in s 1(1).
(f) Although the WWC Act does not define the expression 'safety of children', it is apparent from the reference to 'protecting children from sexual or physical harm' in s 1(1) of the Act that the expression means 'sexual or physical safety of children'. That is not to say, however, that the risk of nonsexual and non-physical harm to children will always be irrelevant. Depending on the circumstances of a particular case, such a risk may be relevant to public interest considerations under cl 102 of sch 1 to the VCAT Act.[9]
30 In the same case, I said the following about the onus of proof in hearings before the VCAT under the WWC Act:
[W]hile the [WWC] Act does not impose any onus of proof on an applicant and does not specify any standard of proof, as a matter of practical reality, it is difficult to see how an applicant could succeed in satisfying the VCAT that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, unless the applicant adduces probative evidence going to that issue. As a matter of common sense, the more objective, direct and unequivocal is the evidence before the VCAT on the question of risk to the safety of children, the greater the prospects of the VCAT being satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.
It is true, as I have said, that the WWC Act does not require the VCAT to be satisfied, on the balance of probabilities, that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children. However, in the light of the subject matter with which s 13(2) deals, namely, the safety of children, it is difficult to see how the VCAT could properly give an assessment notice if its level of satisfaction is less than on the balance of probabilities.[10]
31 At the VCAT hearing, YEE gave evidence that the marks on her daughter's throat came about as a result of her falling against her daughter, rather than deliberately grabbing her by the throat. It was common ground that some of the marks on the daughter's throat were not bruises but staining from a nickel necklace. YEE denied that her daughter had any difficulty breathing and said that the threat to kill was not intended to be serious. YEE implied that she pleaded guilty for reasons of convenience. The VCAT concluded that YEE 'significantly downplayed the incident'.[11]
32 In re-examination, YEE said that she had not had any physical altercations with her other daughter. In response to the question, 'Have you ever had any physical altercations or instances of hitting, touching or hurting any other child under the age of 18 at your place of work?', YEE said, 'No, never'.[12]
33 The VCAT had before it the Secretary's Decision, which set out the views of two staff members of the TAFE college who had worked with YEE. Both staff members said that YEE related well with students, that they were not aware of any problem with YEE's interaction with students and that YEE was suitable to work with children.
34 In a report dated 28 November 2011, YEE's general medical practitioner, Dr Eleanora Freeman, stated:
[YEE] has been extremely compliant with both pharmacotherapeutic recommendations as well as psychotherapy attendance. She is very aware these were implemented in assisting her in reduction of anxiety and stress associated with child rearing. She has developed good strategies in identifying and dealing with problem situations and is much better equipped at dealing with anger and frustration, which led to Depressive Anxiety escalation in 2010. I believe that she is quite stable, with respect to physical and mental health.
35 YEE consulted with a psychologist, Ms Faina Shapiro, over 18 sessions. In her evidence, Ms Shapiro said that her treatment of YEE included lessons in communication and stress and anger management techniques, and that she had focused on reframing and relaxation.
36 Ms Shapiro performed a personality assessment inventory on YEE and recorded the results in a report dated 16 November 2011. In the report, Ms Shapiro stated:
It has been demonstrated by the test results that the applicant is an emotionally stable individual, that she is considerate and warm in her relationships with others. In addition it has been shown by the results that the applicant exhibits reasonable control over impulses and behaviour, and has a reasonable control over the expression of anger and hostility. The applicant's results on violence potential index (VPI) suggests that there is no presence of risk factors for dangerousness.
37 Ms Shapiro gave evidence that she was confident that YEE's offending was caused by communication difficulties rather than a personality deficit.
38 YEE and her family had five collective therapy sessions through the Alfred Hospital Youth and Mental Health Service. Ms Theresa McGrane, a psychiatric nurse and YEE's daughter's case manager, gave evidence that the family situation has improved considerably and that the therapy has assisted all family members to engage with each other more effectively. She said that conflict levels have subsided.
39 The VCAT considered each of the provisions of s 13(2) of the WWC Act in turn and then discussed the public interest.
40 In relation to s 13(2)(a) of the WWC Act, which deals with the nature and gravity of the offence and its relevance to child-related work, the VCAT concluded as follows:
41 In relation to s 13(2)(b) of the WWC Act, which deals with the period of time since the commission of the offence, the VCAT concluded that '[t]he passage of one year without further incident gives some reassurance that this was a "one-off" incident, however it is not a significant period of time'.[14]
43 In relation to s 13(2)(e) of the WWC Act, which deals with the ages of the applicant and the victim at the time the applicant committed the offence, the VCAT stated that YEE was 51 years of age, the victim was 13 years of age and that '[t]he age differential is significant'.[16]
44 In relation to s 13(2)(f) of the WWC Act, which deals with whether the conduct constituting the offence has been decriminalised, the VCAT stated that the offence has not been decriminalised.
45 In relation to s 13(2)(g) of the WWC Act, which deals with the applicant's behaviour since the commission of the offence, the VCAT concluded as follows:
46 In relation to s 13(2)(h) of the WWC Act, which deals with the likelihood of future threat to a child caused by the applicant, the VCAT concluded as follows:
31. This question goes to the heart of the legislative provisions.
...
35. Risk assessment is an inexact science.
...
47 In relation to s 13(2)(i) of the WWC Act, which deals with any information given by the applicant in or in relation to the application, the VCAT referred to YEE's family circumstances and accepted that 'YEE has continued to address the personal and family issues including health issues which led to the incident the subject of this application'.[19]
48 In relation to s 13(2)(j) of the WWC Act, which deals with any other relevant matter, the VCAT stated as follows:
49 In relation to cl 102 of sch 1 to the VCAT Act, which deals with the public interest, the VCAT concluded that it is in the public interest that an assessment notice be issued to YEE. As the Secretary has not sought to impugn the VCAT's conclusion in relation to the public interest, I will not set out the VCAT's reasons for that conclusion.
50 The final two paragraphs of the VCAT's Reasons stated:
51 The notice of appeal sets out the following questions of law:
52 As the Secretary focused primarily on questions of law 4 to 6, I will consider those questions before dealing with question of law 7 and questions of law 1 to 3.
Question of law 4: Risk of harm to children in the workplace rather than at home
53 Dr Kristine Hanscombe SC, who appeared with Ms Phoebe Knowles for the Secretary, submitted that the VCAT made an error of law in its construction of 'risk' in s 13(2) of the WWC Act, in that it construed that term as referring to the risk that YEE may pose to her own children, rather than the risk she may pose to children with whom she will come into contact as part of her child-related work.
54 Mr Philip Solomon SC, who appeared with Mr Jonathan Wilkinson for YEE, submitted that the VCAT did nor err in its construction of 'risk' in s 13(2) of the WWC Act, because the VCAT expressly directed attention to the correct and proper purpose of that Act regarding 'risk' to children in YEE's workplace.
55 Dr Hanscombe SC's submissions have some force due to the disconnected drafting of the VCAT's Reasons. However, when one looks beyond the inadequacies of the drafting and focuses on the substance of the Reasons, it becomes apparent that the submissions cannot be accepted.
56 It is clear from a reading of the VCAT's Reasons as a whole that the VCAT was aware that the issue that it was required to determine was whether YEE posed an unjustifiable risk to children with whom she would be working, rather than whether she posed an unjustifiable risk to her daughters. The VCAT decided this issue by first analysing the circumstances that led to YEE's offending against her daughter and the steps taken by YEE to avoid further offending; and then assessing, with the assistance of expert evidence, the risk of YEE losing her self-control and harming a child.
57 In substance, the VCAT concluded that, as a result of the insight that YEE had gained into her behaviour with her daughter and the treatment that she had received from Dr Freeman and Ms Shapiro, there was no risk that YEE would act in a dangerous manner towards any child.
58 In para 4 of its Reasons, the VCAT stated that, under s 13(2) of the WWC Act, the question for the Secretary - and, by inference, for the VCAT - is whether allowing a person to retain an assessment notice would not pose an unjustifiable risk to the safety of children, having regard to the matters set out in that section. It is clear from this statement that the VCAT was aware that the safety risk relates to children in the workplace rather than at home.
59 The above conclusion is reinforced by the VCAT's statement in para 31 of the Reasons, that the question of the likelihood of future threat to a child caused by the applicant, 'goes to the heart of the legislative provisions'. The conclusion is also supported by the VCAT's statement in para 39 of the Reasons that 'the whole of the evidence must satisfy the Tribunal that children will be protected by ensuring that the suitability of a person to work with children is checked'. If the VCAT had erroneously focused on the risk of future harm to YEE's daughters, it would have referred to 'daughters', rather than to 'children' and 'work with children'.
60 Further support for my conclusion is in para 45 of the Reasons, in which the VCAT stated that the WWC Act 'seeks to assist in protecting children from sexual or physical harm by ensuring that people who engage in "child-related work" have their suitability to do so checked by a government body'.
61 The VCAT examined in detail the treatment that YEE had received and the views of her treating health professionals about the results of that treatment. The expert witnesses were in agreement that YEE had adopted effective strategies to manage her emotions and that there were now no risk factors for harmful conduct. In para 40 of the Reasons, the VCAT concluded that there would be no repetition of YEE's violent conduct because she had taken her offending extremely seriously and had addressed the underlying issues.
62 I accept that the VCAT's Reasons do not set out the above reasoning and conclusions in the sequential and interconnected manner in which I have done so. I also accept that the VCAT's analysis of the considerations set out in s 13(2) of the WWC Act and their relevance to the VCAT's ultimate conclusion was not particularly detailed. However, all of the elements of the reasoning and conclusions outlined above are included in the VCAT's Reasons. While the VCAT should have made a greater effort to draw the elements together and to make them more cohesive, its failure to do so does not indicate either that it misconstrued its statutory function or that it failed to perform that function.
63 As is apparent from [32] and [33] above, there was evidence before the VCAT that there had not been any difficulties in YEE's interaction with students in the 11 years in which she had worked at the TAFE college. YEE's offending against her daughter was the only reason for the Secretary's concern that YEE would pose a risk to the TAFE students. Logically, the nature of that offending and its underlying cause required close examination, in order to determine what they indicated about YEE's likely future behaviour.
64 If the cause was a personality disorder triggered by any form of stress, then there might be a risk that YEE could behave in a violent manner in her workplace if she became stressed. If, on the other hand, the cause was the dynamics in the home environment which had no equivalent in the work environment, then it would be unlikely that YEE would behave in a violent manner at work.
65 It follows that, in determining whether YEE posed an unjustifiable risk to students at the TAFE college, the VCAT had to examine the nature and cause of YEE's offending against her daughter, YEE's insight into the offending, the treatment that YEE was receiving and the expert evidence about YEE's likely future behaviour. This is precisely what the VCAT did. Moreover, this is precisely what the Secretary urged the VCAT to do. In para 33 of the Reasons, the VCAT said that the Secretary submitted that 'the level of threat can only be analysed by an examination of past behaviour and the circumstances surrounding that behaviour'.
66 In her oral submissions, Dr Hanscombe SC relied on three additional features of the VCAT's Reasons as indicating that the Order was vitiated by legal error.
67 The first feature was said to be the failure of the Reasons to acknowledge that, in a practical sense, the onus was on YEE to satisfy the VCAT that she would not pose an unjustifiable risk to the safety of children at the TAFE college. Dr Hanscombe SC relied on the fact that YEE did not call anyone from the TAFE college to give evidence about her interaction with students both before and after the incident of 26 November 2010.
68 While it is true that no one connected with the TAFE college gave oral evidence at the VCAT hearing, as noted at [63] above, there was evidence before the VCAT that YEE had never had any difficulties in her interaction with students of the TAFE college either before or after the incident of 26 November 2010. That evidence was in the form of direct oral evidence from YEE and in the form of statements from two TAFE staff members which were set out in the Secretary's Decision. It was open to the VCAT to treat this evidence as sufficient and its decision to do so cannot constitute a legal error.
69 While the VCAT's Reasons do not refer to the evidence described at [68] above, it is inconceivable that the VCAT did not take it into account, as this evidence strongly supported the VCAT's decision..
70 In para 39 of its Reasons, the VCAT stated that it must be satisfied on the basis of 'the whole of the evidence' that the requirements of s 13(2) of the WWC Act were met. The VCAT also referred to what the applicant was required 'to show'. It follows that the VCAT was aware that it would be obliged to dismiss YEE's application for review unless it was satisfied on the whole of the evidence that YEE did not pose an unjustifiable risk to the safety children. Accordingly, I reject Dr Hanscombe SC's contentions in relation to onus.
71 The second feature of the VCAT's Reasons upon which Dr Hanscombe SC relied was the alleged conflation of the criteria in s 13(2) of the WWC Act and the public interest requirement in cl 102 of sch 1 to the VCAT Act.
72 There is no substance to Dr Hanscombe SC's submission. In its Reasons, the VCAT dealt with s 13(2) of the WWC Act before considering the public interest. Para 53 of the Reasons, which is set out at [50] above, contains the VCAT's overall conclusion, first in relation s 13(2) and then in relation to the public interest. There is no conflation of the two issues.
73 The third feature of the VCAT's Reasons upon which Dr Hanscombe SC relied was the alleged inconsistency between paras 12 and 13 on the one hand and para 40 on the other hand. In para 12, the VCAT stated that YEE had 'significantly downplayed the incident' of 26 November 2010, and in para 13, the VCAT stated that 'YEE continued to consider the incident to be somewhat trivial and to attribute responsibility for the incident onto her daughter's shoulders'. By contrast, in para 40, the VCAT stated that 'YEE has taken her offending extremely seriously'.
74 I agree with Mr Solomon SC that there is no inconsistency between paras 12 and 13 of the VCAT's Reasons and para 40 of the Reasons, because they refer to different circumstances. Paragraphs 12 and 13 set out the VCAT's assessment of YEE's evidence about the incident of 26 November 2010, whereas para 40 sets out the VCAT's conclusion about the steps that YEE took after the incident - including, in particular, her consultations with health professionals - to ensure that she did not behave in a violent manner in the future.
75 In any event, inconsistencies in the VCAT's Reasons in themselves could not constitute errors of law. The inconsistencies are only relevant if they disclose an underlying error of law. For the reasons that I have already discussed, there is no underlying error in the present case.
76 It follows that the Secretary has failed to establish that the VCAT has misconstrued or misapplied s 13(2) of the WWC Act.
Question of law 5: Risk of harm to students in the workplace
77 Dr Hanscombe SC submitted that, in directing the Secretary to give an assessment notice to YEE under s 13(2) of the WWC Act, the VCAT erred by failing to properly determine whether the giving of such a notice would pose an unjustifiable risk to the safety of children, as required by s 13(2). The VCAT's Reasons, so it was said, do not demonstrate any analysis or assessment of the factors in s 13(2), and in particular, whether and if so how, any of those factors, either individually or collectively, bore on the relevant question of whether YEE posed an unjustifiable risk to the safety of children.
78 Mr Solomon SC submitted that the VCAT properly assessed the factors in s 13(2) of the WWC Act in deciding whether giving a notice to YEE under that section would pose an unjustifiable risk to the safety of children. The VCAT's Reasons, so it was contended, when read fairly and as a whole, were sufficiently detailed and the VCAT fulfilled its task under s 13(2) of the WWC Act.
79 Question of law 5 obviously overlaps with question of law 4. In my opinion, for the reasons set out at [55] to [76] above, the VCAT complied with the requirements of s 13(2) of the WWC Act in determining that YEE would not pose an unjustifiable risk to the safety of children in her place of work. Accordingly, no error of law has been demonstrated.
Question of law 6: Failure to relate YEE's offence to her child-related work
80 Dr Hanscombe SC submitted that the VCAT failed to consider the relevance of YEE's offence of making a threat to kill to her child-related work in determining whether YEE did not pose an unjustifiable risk to the safety of children, as required by s 13(2)(a) of the WWC Act. According to Dr Hanscombe SC, the VCAT considered risk exclusively, or almost exclusively, with respect to YEE's risk to her daughter in a private, family relationship. In so doing, so it was submitted, the VCAT erred by: failing to consider a matter that it was bound to consider under s 13(2) of the WWC Act; misconstruing and misapplying s 13(2)(a); and failing to determine whether the facts as found answered the statutory description in s 13(2)(a).
81 Mr Solomon SC submitted that an analysis of the risk to YEE's daughter was the only way for the VCAT to determine YEE's risk to children in the workplace. He further contended that the VCAT correctly applied s 13(2) of the WWC Act by: considering whether YEE posed an unjustifiable risk to the safety of children with whom she worked; correctly construing s 13(2)(a) of the WWC Act; and finding that the facts answered the statutory description in s 13(2)(a).
82 Question of law 6 overlaps to a certain extent with question of law 4. It does, however, focus on one of the criteria in s 13(2) of the WWC Act, namely, the nature and gravity of the offence and its relevance to child-related work.
83 In my opinion, there is no substance to Dr Hanscombe SC's submissions that the VCAT failed to relate the nature and gravity of YEE's offending against her daughter to YEE's work with students at the TAFE college.
84 In para 13 of the Reasons, the VCAT acknowledged the seriousness of the offence of making a threat to kill. Indeed, the VCAT said that '[a]ny offence against a child is serious'. In para 14, the VCAT found that the circumstances of YEE's offending were 'at the lower end of the scale' because it was highly unlikely that there was ever any intention to carry out the threat. In the same paragraph of the Reasons, the VCAT held that YEE had acknowledged that her daughter was very frightened. The VCAT also found that YEE had taken her offending extremely seriously, that she had addressed the underlying issues and that it was unlikely that there would be any repetition of her violent conduct.[22]
86 I therefore reject the contention that the VCAT failed to consider the relevance of the nature and gravity of YEE's offending to her child-related work.
Question of law 7: Inadequate reasons for decision
87 Section 117(1) of the VCAT Act requires the VCAT to provide reasons for final orders. Section 117(5) specifies that the reasons must include the VCAT's 'findings on material questions of fact'.
88 Dr Hanscombe SC submitted that s 117 of the VCAT Act imposes an obligation upon the VCAT to provide an intelligible path of reasoning by which the factors relevant to its decision are weighed and synthesised. According to Dr Hanscombe SC, the VCAT erred by merely setting out a series of factual findings in its Reasons. Although the VCAT's Reasons set out each factor listed in s 13(2) of the WWC Act, so it was said, they failed to analyse whether, and if so how, those factors bore on the question of whether YEE posed an unjustifiable risk to the safety of children. Rather, Dr Hanscombe SC contended that the VCAT reached its conclusion in para 53 of its Reasons without any explanation of why the Order should be made.
89 Mr Solomon SC submitted that the VCAT's Reasons disclosed an intelligible path of reasoning, as they acknowledged the purpose of the WWC Act, the purpose for which the evidence was analysed and the purpose with which each statutory provision was considered as a whole. Further, so it was contended, there was at least some explanation by the VCAT of the relevance of the statutory provisions upon which its decision was based. According to Mr Solomon SC, the VCAT adequately explained its reasoning on the whole, to the standard required of the VCAT and not of a court, such that it did not err in its application of s 13(2) of the WWC Act.
90 In my opinion, a failure by the VCAT to comply with its obligation in s 117(1) of the VCAT Act to provide reasons for a final order, constitutes an error of law.[23]
91 In the context of judicial reasons for decision, it has been said that the reasons must disclose 'the route that led to the answer', 'how or why the conclusion was reached', 'the process of reasoning' or 'the path of reasoning'.[24]
92 Thus, for example, in Franklin v Ubaldi Foods Pty Ltd,[25] Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
Reasons must be such as reveal - although in a particular case it may be by necessary inference - the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[26]
93 The above observations apply with equal force to reasons for decision given by the VCAT. Those reasons must sufficiently explain the basis for any findings that are made by the VCAT in reaching its decision.
94 Reasons for decision have to be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the proceeding.[27] Reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[28]
95 In general, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is insufficient to disclose a path of reasoning.[29]
96 In determining whether the VCAT's reasons are adequate, the Court does not scrutinise those reasons over-zealously with a view to finding error.[30] Nor does the Court expect the VCAT to address every issue raised in the proceeding. The reference to 'material questions of fact' in s 117(5) of the VCAT Act is to factual matters that affected the VCAT's findings or conclusions. Accordingly, under s 117(5), it is enough for the VCAT to make findings on the facts upon which its decision turns and to explain the logic of the decision. The VCAT is also expected to set out the law that it has applied in reaching its decision.
97 The VCAT's reasons must be intelligible. Reasons are not intelligible if they leave the reader to wonder about the process of reasoning that has been followed.[31]
98 The VCAT's Reasons in the present case must be considered in the light of the above principles. When this is done, it is readily apparent that, although the Reasons leave some matters to inference, they adequately convey the following path of reasoning:
(a) YEE has worked with children at the TAFE college for 11 years without any adverse incident.
(b) The Secretary's concerns about YEE posing a threat to children in her workplace arose out of the finding of guilt on 22 February 2011 in relation to the offences against YEE's daughter of making a threat to kill and recklessly causing injury.
(c) In order to determine whether it was satisfied that YEE would not pose an unjustifiable risk to the safety of children for the purposes of s 13(2) of the WWC Act, the VCAT had to consider the criteria set out in that section.
(d) The criteria in s 13(2) of the WWC Act required an examination of, among other matters, the nature, gravity and cause of the offending conduct, the insight that YEE had gained in relation to that conduct, the treatment that YEE had received to manage the cause of the offending and the health professionals' prognosis as to the risk of YEE behaving violently towards children in the future.
(e) A consideration of the matters set out in (d) above and the other matters prescribed by s 13(2) of the WWC Act indicated that YEE did not pose an unjustifiable risk to the safety of children.
(f) In all the circumstances, it is in the public interest to give to YEE an assessment notice.
99 It follows that the VCAT, either expressly or by necessary inference, articulated all the essential elements that were required to explain how and why it arrived at its decision that YEE should be granted an assessment notice.
100 As I have already explained at [55] to [76] above, in the context of question of law 4, the VCAT's Reasons are disconnected. The key problem, however, is not that key issues were not addressed. Rather, it is that those issues were not expressly and coherently brought together, but were partly left to inference. This manner of providing reasons is unsatisfactory and should be avoided by the VCAT in the future. Nevertheless, in the circumstances of the present case, it does not constitute a breach of s 117 of the VCAT Act or an appealable error of law.
Questions 1 to 3: Formal defects in the VCAT's order
101 Prior to the hearing of the appeal, the parties agreed that the Order was defective because it was not in any of the forms authorised by ss 26(5)(b) or 51(2) of the VCAT Act. These provisions are set out at [22] and [24] above respectively. The parties also agreed that, in the event that the Court did not uphold the Secretary's appeal on the basis of questions of law 4 to 7, the Court had power to rectify the defect in the Order under s 148(7) of the VCAT Act without remitting the proceeding to the VCAT for rehearing.
102 In my opinion, where the VCAT decides to alter a decision under review, it must either vary the decision under s 51(2)(b) of the VCAT Act, or set aside the decision and make another decision under s 51(2)(c), or set aside the decision and remit the matter for reconsideration by the decision-maker in accordance with the VCAT's directions under s 51(2)(d). In the present case, the Order purported to give a direction to the Secretary without first setting aside the Secretary's Decision. It follows that the Order does not comply with s 51(2) of the VCAT Act.
103 The defect in the Order, however, is one of form rather than substance. It is clear from the VCAT's Reasons that the VCAT intended to exercise the power in s 51(2)(d) of the VCAT Act to set aside the Secretary's Decision and remit the matter to the Secretary with a direction that the Secretary give to YEE an assessment notice. This is apparent from para 9 of the Reasons, where the VCAT stated that it had power to set aside the Secretary's Decision 'and either give an Assessment Notice or send the matter back to the Secretary for re-consideration'.
104 If the Secretary had been concerned only with the form of the Order, it may be that the defect could have been rectified under the 'slip rule' in s 119(1)(d) of the VCAT Act. That course, however, was not pursued because of the other alleged errors of law upon which the Secretary relied. In the circumstances, I need not decide whether the slip rule applied.
105 Section 148(7) of the VCAT Act provides that, on appeal, this Court may make any of the following orders:
(a) an order affirming, varying or setting aside the order of the VCAT;
(b) an order that the VCAT could have made in the proceeding;
(c) an order remitting the proceeding to be heard and decided again by the VCAT in accordance with the directions of the Court; or
106 Obviously, where no ground of appeal is upheld, the Court can make an order dismissing the appeal.
107 In the present case, as the Order is defective, it would be inappropriate for this Court to affirm the Order or to dismiss the appeal. However, given the formal nature of the defect, an order remitting the proceeding to the VCAT would be unwarranted.[32] In all the circumstances, the most appropriate course is to set aside the Order and to make an order under s 148(7)(b) of the VCAT Act that reflects the VCAT's obvious intention to set aside the Secretary's Decision and to remit the matter to the Secretary with a direction that the Secretary issue an assessment notice to YEE.
108 For the reasons set out above, I propose to make an order along the following lines:
(b) The order of the Victorian Civil and Administrative Tribunal dated 19 December 2011 in proceeding no. B148/2011 ('Order') is set aside.
(i) The decision of the Secretary to the Department of Justice ('Secretary') dated 5 August 2011 to give a negative notice to the person named in that notice ('Person') is set aside; and
(ii) The matter is remitted for reconsideration by the Secretary in accordance with the direction that the Secretary must issue an assessment notice to the Person.
109 I will hear from the parties on the precise form of the order to be made by this Court and on the question of costs.
[1] YEE v Secretary to the Department of Justice [2011] VCAT 2399 (19 December 2011) ('Reasons').
[2] The respondent's name has been suppressed. The proceeding before the VCAT and the appeal to this Court have been conducted using a pseudonym.
[3] See s 13(1)(b) of the WWC Act and cl 2(c)(iv) of sch 1 to the Sentencing Act 1991.
[6] Victoria, Parliamentary Debates, Legislative Assembly, 21 July 2005, 1997 (Rob Hulls, Attorney-General).
[7] See the Children, Youth and Families Act 2005.
[8] [2011] VSC 227 (31 May 2011) ('Maleckas').
[9] Maleckas [2011] VSC 227 (31 May 2011) [43] (citation omitted).
[10] Maleckas [2011] VSC 227 (31 May 2011) [56]-[57].
[12] Transcript, YEE v Secretary to the Department of Justice (VCAT, 30 November 2011, Lambrick DP) 107.
[14] Reasons, [17] (emphasis in original).
[17] Reasons, [22]-[23], [25], [27], [29]-[30].
[18] Reasons, [31], [35], [38]-[40] (emphasis in original).
[23] See Secretary, Department of Treasury and Finance v Dalla-Riva [2007] VSCA 11; (2007) 26 VAR 96, 102 [23]; Commissioner of State Revenue v Anderson (2004) 24 VAR 181, 191 [33] ('Anderson'); Victoria v Turner [2009] VSC 66; (2009) 23 VR 110, 173 [240]; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 (15 October 2010) [67]-[69] ('Paul & Paul').
[24] Transport Accident Commission v Kamel [2011] VSCA 110 (20 April 2011) [68] ('Kamel'); Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566, 584 [90] ('Church'); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 (29 February 2012) [78] ('Snibson').
[25] [2005] VSCA 317 (21 December 2005) ('Franklin'). This case has been either cited or applied in numerous subsequent decisions. See, for example, Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121 (8 June 2006) [19] ('Hesse'); ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274; (2008) 21 VR 559, 566 [20]; Kamel [2011] VSCA 110 (20 April 2011) [69]; Snibson [2012] VSCA 31 (29 February 2012) [79]; Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226 (19 September 2012) [30].
[26] Franklin [2005] VSCA 317 (21 December 2005) [38] (citation omitted).
[27] Shock Records Pty Ltd v Jones [2006] VSCA 180 (7 September 2006) [85]; Hesse [2006] VSCA 121 (8 June 2006) [3], [19]-[22]; Church [2008] VSCA 153; (2008) 20 VR 566, 585 [91]; Snibson [2012] VSCA 31 (29 February 2012) [81].
[28] Kamel [2011] VSCA 110 (20 April 2011) [86]; Snibson [2012] VSCA 31 (29 February 2012) [81].
[29] Hunter v Transport Accident Commission [2005] VSCA 1; (2005) 43 MVR 130, 140 [28]; Kamel [2011] VSCA 110 (20 April 2011) [71]; Snibson [2012] VSCA 31 (29 February 2012) [82] .
[30] Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2; Paul & Paul [2010] VSC 460 (15 October 2010) [69].
[31] Anderson (2004) 24 VAR 181, 191 [33]; Caruso v Kite [2008] VSC 207 (18 June 2008) [32]; Paul & Paul [2010] VSC 460 (15 October 2010) [69].
[32] Rumpf v Mornington Peninsula Shire Council [2000] VSC 311; (2000) 2 VR 69, 106-7 [128]-[132].
Secretary to the Department of Justice
Y E E [2012] VSC 447
(2009) 23 VR 110
(2008) 20 VR 566
(2008) 21 VR 559
(2005) 43 MVR 130
(1996) 185 CLR 259
(2000) 2 VR 69