Appellant v Respondent

1 During 2018, EDX[1] applied for an assessment notice under the Working with Children Act 2005 (Vic) (WWC Act). His application was assessed as a category C application, because he had in March 2018 been found guilty of charges of stalking and contravening a family violence intervention order, and had been placed on a community corrections order. Despite these findings, in June 2018 he was granted an assessment notice - commonly referred to as a working with children check.

2 On 26 November 2018, EDX pleaded guilty to charges of contravening a community corrections order, persistently contravening a family violence intervention order, and using a carriage service to harass. The Magistrates' Court recorded a conviction and imposed a sentence that included a further community corrections order. This conviction triggered a re-assessment of EDX's assessment notice and, on 20 March 2019, the Secretary to the Department of Justice and Community Safety revoked the assessment notice and issued EDX with a negative notice.

3 EDX applied to the Victorian Civil and Administrative Tribunal for review of the Secretary's decision to give the negative notice, under s 26 of the WWC Act. Deputy President Proctor heard the application in November 2019 and, on 11 February 2020, made an order setting aside the Secretary's decision and directing her to issue an assessment notice to EDX. The Tribunal's order was accompanied by written reasons for decision,[2] which explained why the Deputy President was satisfied that giving EDX an assessment notice, and his engagement in any type of child-related work, would not pose an unjustifiable risk to the safety of children. The reasons also expressed the Deputy President's satisfaction that a reasonable person would allow his or her child to have direct contact with EDX while he was engaged in child-related work, and that it was in the public interest to give the assessment notice.

4 In this proceeding, the Secretary applies for leave to appeal the Tribunal's orders, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). She seeks an order setting aside the Tribunal's order and remitting the matter to a differently constituted Tribunal to be heard and determined in accordance with law.

5 An appeal under s 148 of the VCAT Act may only be brought on a question of law. The Secretary's notice of appeal identified a single question of law:

Did the [Tribunal] misunderstand, or fail to properly carry out, the statutory task required of it by s 26C(3) of the [WWC Act] and thereby fail to exercise its jurisdiction or act outside of that jurisdiction?

This question, and the grounds advanced in support of it, relate to the Tribunal's application of the 'public interest test' in s 26C(3) of the WWC Act. The proposed appeal does not concern the Tribunal's conclusion that there was no risk to children in EDX providing child-related services, about which the Secretary makes no complaint.

6 For the reasons that follow, I do not consider that the Tribunal's conclusion that it was in the public interest to give EDX an assessment notice was affected by error. Leave to appeal will be granted, but the appeal will be dismissed.

7 The WWC Act was enacted with the main purpose of assisting in protecting children from sexual or physical harm by ensuring that people who work with or care for children are subject to a screening process.[3] Section 1A requires the Secretary and the Tribunal, when making a decision or taking an action under the WWC Act, to give paramount consideration to the protection of children from sexual and physical harm.

8 A person may apply to the Secretary for a working with children check to be carried out and an assessment notice to be given to him or her on completion of that check.[4] An application by a person with a criminal history falls into one of three categories of application: A, B or C. When EDX applied for an assessment notice in 2018, his criminal history put the application into category C, to be assessed in accordance with s 14 of the WWC Act.

9 Section 21 obliges the Secretary to re-assess a person's eligibility to have an assessment notice in certain circumstances. The offences of which EDX was convicted in November 2018 put his re-assessment in category C, to be determined in accordance with s 21AD of the WWC Act. Section 21C(1) provides that the Secretary may revoke an assessment notice following a re-assessment and, if that occurs, the Secretary must give a negative notice to the former holder of the assessment notice.[5]

10 A person who has been given a negative notice because of a decision of the Secretary under s 21C(1) to revoke an assessment notice following a category C re-assessment may apply to the Tribunal for review of the decision to give the negative notice.[6] The Tribunal's review of such a decision is governed by s 26C, which provides:

(1) In a review of a decision to give a negative notice on a category C application or in relation to a category C re-assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give an assessment notice, having regard to any matters to which the Secretary must have regard under section 14(3).

(2) VCAT must determine that it is appropriate to refuse to give an assessment notice unless VCAT is satisfied that -

(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; or

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give an assessment notice, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.

11 The primary consideration for the Tribunal in reviewing a category C re-assessment is whether it would be appropriate to refuse to give an assessment notice, having regard to the matters listed in s 14(3), namely:

(a) the nature and gravity of the conduct and its relevance to child-related work; and

(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct; and

(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and

(d) in the case of an offence, the sentence imposed for it; and

(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct; and

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it; and

(g) the applicant's behaviour since he or she engaged, or allegedly engaged, in the conduct; 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.

These are the same matters that the Secretary must take into account on a category C application and a category C re-assessment, in determining whether the person having an assessment notice would pose an unjustifiable risk to the safety of children.[7]

12 On an application under s 26(1), the Tribunal may affirm the decision to give a negative notice, or set that decision aside and either give an assessment notice, or send the matter back to the Secretary for re-consideration in accordance with any directions or recommendations of the Tribunal.[8]

13 The Tribunal's reasons began with a brief explanation of the background to EDX's application:[9]

EDX is 44 years old. In 1999, he commenced work as a naturopath and continues to work in that field, well regarded by his employer and others.

As in many fields of employment, in naturopathy there is an increasing requirement that employees obtain a working with children assessment notice. Also, in 2018 EDX commenced study for a Bachelor of Nursing. Therefore, in [2018] he applied to the Secretary for an assessment notice.

14 The details of EDX's offences committed in November 2017 were then set out, which involved numerous and sometimes threatening attempts to contact his former partner, from whom he had recently separated.[10] There was also reference to other information obtained by the Secretary while assessing his initial application. In February 2013, EDX had been charged with making a threat to kill, based on allegations that he had become drunk and abusive at a barbecue and later caused significant damage at his former partner's home. The charge was withdrawn.[11] The Secretary was also aware of a report received by the Department of Health and Human Services in 2012, that EDX had assaulted his 14 year old step-daughter with a punch to the face.[12]

15 The Tribunal noted that the Secretary had given EDX an interim negative notice, because these matters raised concerns about his ability to behave appropriately and manage his emotional regulation. However, after considering a submission made by EDX, supported by medical reports and references, the Secretary withdrew the interim negative notice and gave EDX an assessment notice on 27 June 2018.[13]

16 EDX's offending behaviour in September and October 2018 was then described.[14] Again, this involved repeated attempts to contact his former partner, by phone and email, in breach of an intervention order she had obtained in September 2018. In one email he threatened future harm to his partner. This offending resulted in a conviction, a further 18 month community corrections order, 100 hours of therapeutic treatment and rehabilitation, 100 hours of unpaid community work, and judicial monitoring.[15] In addition, a 12 month $500 good behaviour bond was imposed for the offence of using a carriage service to harass.[16]

17 The Tribunal noted the process that led to the Secretary giving EDX a negative notice, and her reasons for doing so. These reasons were that the persistent and threatening nature of his offending indicated a lack of judgment and impulse control, both of which are required when engaging in child-related work. Corrections Victoria's assessment that EDX was at high risk of offending was of particular concern to the Secretary.[17]

18 After setting out the procedural history of EDX's application and the relevant provisions of the WWC Act, the Deputy President turned to the s 14(3) criteria. There followed a detailed consideration of the s 14(3) matters and the evidence relevant to them, which constitutes the bulk of the Tribunal's reasons. No challenge is made to this part of the Tribunal's reasoning, and so it is sufficient to note only some aspects relevant to this appeal.

19 In relation to the nature and gravity of EDX's offending conduct and its relevance to child-related work,[18] the Tribunal said:[19]

EDX's conduct in late 2018 was totally unacceptable. Breaching an intervention order, and so flouting court orders intended to protect is always serious, as is causing distress to a former partner and children. The fact that the offending was by words, not conduct, does not lessen its seriousness. There is always the risk that words lead to physical violence. Negative impact on the children is self-evident.

While the offending was serious, the Tribunal considered that in relative terms it was not the most serious of offending. It was relevant to child-related work because it raised significant questions about his impulse control in the work environment.[20]

20 The Deputy President gave close consideration to EDX's behaviour since he engaged in the conduct,[21] and the evidence relevant to the Secretary's concern that EDX lacked insight and continued to minimise the seriousness of his offending.[22] Next, he set out the information provided by EDX,[23] including information about his relationship with his former partner, the context of his offending, and his insight into his behaviour.[24] Concerning EDX's occupation, the Tribunal noted:[25]

EDX described being a naturopath as a central part of his identity. He described his potential to contribute to society as highly dependent on him being able to continue to practice and also potentially continue his nursing studies.

He spoke of providing treatment to both adults and children over the years with no complaints against him. He spoke of his personal life not negatively impacting on his role as a professional in his work life. He provided detail about the increasing need to have an assessment notice to practice naturopathy. Not being able to treat children would create huge problems in continuing his employment and involve "huge stigma".

Before working in his current role, he ran a natural therapies business for about seven years, specialising in women's and children's health. He regularly treated children. When the business failed and he was declared bankrupt, he enrolled in a nursing course at university. Whilst studying, he worked in private practice as a naturopath and in a health food store. In mid-2018, he suspended his nursing studies when employed full-time by his Employer.

His current position primarily involves work with adults but also involves contexts where children are present together with their adult family members. He in part needs an assessment notice to obtain professional indemnity insurance and a provider number and also to continue his nursing course, if he continues with that. If he held an assessment notice, only on rare occasions would a child attend a consultation without an adult guardian present.

The Tribunal went on to record the information provided by EDX about his alcohol and drug use, his plans for the future, his response to alleged conduct in 2003 and 2012-13, and the diagnosis and treatment of his mental health conditions.[26]

21 EDX called the chief operating officer of his employer, who had known him for 14 months and had found him to be honest and dependable. As to the impact of the negative notice on EDX's employment:[27]

She considers it crucial to his role that he hold an assessment notice to consult patients, which may include children, who make up a substantial proportion of patients.

That said, since the giving of the January 2019 negative notice ..., given EDX's value to his Employer, arrangements had ensured that he had not provided services to children. The Employer decided to support EDX through the process of review of the Secretary's decision at VCAT. That said, the COO expressed significant reservations as to whether, if he failed to obtain an assessment notice, it would be feasible for his Employer to continue his employment, given the increasing need to hold an assessment notice to practice naturopathy.

22 The Tribunal noted the contents of several 'strong supportive references' provided by EDX,[28] as well as several other matters that the Secretary considered relevant.[29]

23 On the key consideration of the likelihood of future threat to a child caused by the applicant,[30] the Tribunal concluded:[31]

In my view the evidence establishes that EDX does not pose a future threat to a child in the course of him provided child-related services to that child, beyond the nominal background risk always present when adults provide child-related services.

...

There is no evidence of EDX ever having acted inappropriately in the provision of services to children during his many years in naturopathy practice. This includes during times of offending and inappropriate behaviour described above, in 2012, 2013, [2017] and 2018.

There is no evidence supporting the view that EDX lacks impulse control in times of stress, such that he would pose a risk to children to whom he was providing services. Rather the evidence is that he is able, despite great stress at times in his life, to continue to provide high quality services to clients.

...

The evidence does establish some low risk of future threat to his three younger children, if he were to again offend against his former partner. That would most likely be threat of indirect harm, him likely causing such by conduct similar to his 2018 offending. I asses this as low risk. The relationship has ended. EDX appears to have learnt the consequences of his offending. He has every motivation to no longer offend.

24 The Tribunal's conclusion concerning s 26C(1) was that in the circumstances of this case, it was not appropriate to refuse to give EDX an assessment notice.[32] The Deputy President did not accept that the evidence established any risk related to EDX providing child-related services.[33] In that context, the Deputy President found:[34]

1. Low risk of future harm to his children through risk of reoffending is properly addressed by way of other mechanisms, such as compliance with the current CCO, not through the WWC Act; and
2. Other negative aspects of his past behaviour and possible low risk of reoffending, do not cause me to determine that it would be appropriate to refuse EDX an assessment notice.

25 Next, the Tribunal turned to the 'reasonable person test' under s 26C(2)(a). It was the Deputy President's view that:[35]

... the reasonable person, understanding the background to the offending, the nature of the offending and EDX's long positive history in providing services to children would allow him to have direct contact with [their child] while the applicant was engaged in any type of child-related work. While that reasonable person would be concerned at the history of offending and the other negative elements of EDX's history, the person would on balance be persuaded by his employment history.

26 As to the 'unjustifiable risk test' in s 26C(2)(b), the Tribunal concluded that engagement by EDX in any type of child-related work would not pose an unjustifiable risk to the safety of children.[36]

27 Finally, the Tribunal considered the 'public interest test' in s 26C(3).[37] Its reasoning was brief:[38]

There is public interest in people being able to pursue employment. In my view, here there is no countervailing public interest of the protection of children in the provision of child related services that here would be a factor contrary to EDX being given an assessment notice.

I am satisfied that it is in the public interest that EDX be given an assessment notice.

28 The Deputy President therefore directed the Secretary to give an assessment notice to EDX.[39]

Did the Tribunal misapply the public interest test?

29 The Secretary submitted that s 26C(3) required the Tribunal to reach a positive state of satisfaction that it was in the public interest to give EDX an assessment notice. The Tribunal reached that state of satisfaction here by reference to only two specific aspects of the public interest - the generic 'public interest in people being able to pursue employment' and the 'countervailing public interest of the protection of children in the provision of child related services'. The Secretary argued that the Tribunal did not consider any other matters, and took an erroneously narrow approach to the determination of the public interest.

30 The submission was that the only public interest identified by the Tribunal that favoured giving an assessment notice was a generic one, applied without reference to the circumstances of EDX's employment or potential employment. Although the Tribunal had recounted the evidence of EDX and his manager as to his need for an assessment notice, it had made no finding that his employer required one. The Secretary pointed out that, under s 117(5) of the VCAT Act, the Tribunal's written reasons must include its findings on material questions of fact. She said that the lack of any express finding that EDX needed an assessment notice to continue in his employment indicated that the Tribunal did not make that finding.[40] It followed that the Tribunal did not consider how giving EDX an assessment notice would advance the public interest that it identified as decisive.

31 The Secretary argued that the only countervailing public interest identified by the Tribunal, of protection of children in the provision of child-related services, would always be outweighed by the generic public interest in the pursuit of employment. That is because the public interest test in s 26C(3) need only be considered by the Tribunal if it has already determined: first, under s 26C(1), that it would not be appropriate to refuse to give an assessment notice, having regard to the s 14(3) matters; second, under s 26C(2)(a), that a reasonable person would allow his or her child to have direct contact with the applicant while engaged in child-related work; and third, under s 26C(2)(b), that the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

32 She submitted that the Tribunal's narrow consideration of the public interest meant that it applied a test that would be satisfied each time the Tribunal considers the public interest under s 26C(3). That would leave the public interest test no work to do, which was clearly not intended. Rather, the public interest test is a final 'hurdle' that must be cleared by an applicant who asks the Tribunal to set aside a decision of the Secretary to give a negative notice. Here, the Tribunal's approach to the public interest test effectively removed the hurdle that EDX was required to clear. Hence, the Secretary argued, the Tribunal misunderstood or failed to carry out the task required of it by s 26C(3) of the WWC Act, which was an error of law.

33 I do not accept that the Tribunal took an erroneously narrow approach to assessing the public interest under s 26C(3). As the Court of Appeal explained in Secretary, Department of Justice v LMB,[41] it is a matter for the Tribunal to identify those aspects of the public interest that are salient in a particular case:

[W]here the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion 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 - 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.

It is therefore not sufficient for the Secretary 'to hypothesise a factor which might potentially be relevant to the Tribunal's decision and then show that the Tribunal did not consider it'; she 'must demonstrate that the Tribunal was bound to have regard to that factor and failed to do so.'[42]

34 LMB was decided before the amendment of the WWC Act to insert s 1A, which directs the Tribunal, when making a decision, to give paramount consideration to the protection of children from sexual and physical harm. As explained by Garde J in Secretary to the Department of Justice and Regulation v McIntyre,[43] the protection of children from sexual and physical harm is at the very core of the public interest test in the WWC Act. The paramount consideration is also a mandatory consideration under s 26C(3).

35 Equally, if the Tribunal is satisfied that an applicant does not pose an unjustifiable risk to the safety of children, the paramount consideration will rarely preclude a finding that it is in the public interest to give an assessment notice.[44] As the Secretary pointed out, the WWC Act structures the Tribunal's consideration so that it must first address whether the applicant poses a risk to children. By the time it comes to assess the public interest under s 26C(3), it will already have determined that it is not appropriate to refuse to give an assessment notice, having regard to matters including the likelihood of future threat to a child caused by the applicant, and that the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to children. If the Tribunal is not satisfied of any of these things, an assessment notice cannot be given, and there is no need to determine whether it would be in the public interest to do so.

36 One matter that is often identified by the Tribunal as relevant to its assessment under s 26C(3) is the public interest in people being able to work. As Bell J explained in ZZ v Secretary to the Department of Justice:[45]

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 or in the field in which they are most suited to work, 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. 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. 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'.

37 In this case, although the Secretary identified a number of matters that she submitted were relevant to the assessment of the public interest under s 26C(3),[46] she did not argue that any of them had imperative relevance. That is, she did not contend that the Tribunal had failed to have regard to any mandatory consideration, in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[47] in its application of the public interest test.

38 I reject the Secretary's submission that the Tribunal formulated the public interest test in a way that left s 26C(3) with no work to do. The Tribunal simply identified the two matters that were relevant to its assessment of the public interest in this case: the public interest in people being able to work, and the mandatory consideration of the protection of children. Only three other matters were put forward by the Secretary as relevant - EDX's mental health, his history of alcohol and drug abuse, and his engagement with health services.[48] These matters had already been examined closely by the Tribunal, and informed its earlier conclusions that it was not appropriate to refuse to give EDX an assessment notice and that his engagement in child-related work would not pose an unjustifiable risk to the safety of children. Consistent with the passage from LMB set out above, it was open to the Tribunal not to revisit those matters in assessing the public interest under s 26C(3).

39 As to whether the Tribunal made a finding that refusing EDX an assessment notice would adversely affect his ability to pursue employment, the Secretary accepted that the Tribunal's reasons should not be 'construed minutely and finely with an eye keenly attuned to the perception of error'.[49] It is well established that the Tribunal's reasons should be read fairly, in context and as a whole.[50] Part of the relevant context here is the way in which the parties put their cases to the Tribunal.

40 There was some question before the Tribunal whether EDX would lose his current employment if he did not regain his assessment notice. The question was explored in cross-examination of EDX and his manager.[51] However, the Secretary did not put to EDX that he did not require an assessment notice to pursue a career as a naturopath, or to work as a nurse. In submissions, EDX submitted that, while it was not a certainty, he was at real risk of losing his employment, or having it significantly curtailed, if he did not have an assessment notice. He further submitted that it would have a significant impact on his future career prospects with other employers, and would prevent him from working as a nurse.[52] The Secretary did not dispute this in her submissions to the Tribunal, noting only that the evidence did not suggest that it was final that he would not be able to work at all if his application failed.[53] She appeared to accept that his employment might be at risk, and that he had a strong desire to work with children.[54]

41 Reading the Tribunal's reasons fairly, in context, and as a whole, it appears to me that the Tribunal accepted from the outset that EDX needed an assessment notice to continue in his work as a naturopath and to become a nurse.[55] In other words, the Tribunal found that refusing EDX an assessment notice would impair his ability to pursue employment. There was ample evidence to support that finding, some of which was referred to later in the Tribunal's reasons.[56]

42 The lack of reference to this finding in the part of the Tribunal's reasons that dealt with the public interest test might be explained by an exchange that took place between the Secretary's lawyer and the Deputy President during closing submissions:[57]

MS ATSIS: His evidence in relation to his working arrangements does not suggest that it is final that he will be unable to work at all should this application fail. At the - -

DEPUTY PRESIDENT: But that is not a public interest issue, that is more of a private issue, surely?

MS ATSIS: Agreed, Deputy President. Withdrawn.

But even if his employment was at risk the Applicant's strong desire to work with children must be balanced against and is subject to the objects and purposes of the Act.

Before the Tribunal, the Secretary accepted that a finding that refusing EDX a working with children check would impair his ability to pursue employment was not critical to the public interest test. The Secretary's argument on appeal, that the Tribunal erred because it did not identify a particular public interest connected with giving EDX an assessment notice, was incongruous with her position below.

43 In any event, on a fair reading of the Tribunal's reasons, it did accept that EDX required an assessment notice to pursue a career as a naturopath, and to work as a nurse, and that was why it was satisfied that it was in the public interest to give EDX an assessment notice. The Tribunal's assessment of the public interest was not generic, it was anchored in EDX's circumstances; his private interest in pursuing employment was a facet of the public interest in people being able to pursue employment. The Tribunal did not misapply the public interest test.

If the Tribunal did misapply the public interest test, was it a vitiating error?

44 If it had been the case that the Tribunal erred by not identifying any public interest in giving EDX an assessment notice, by making no finding about its impact on his ability to pursue employment, there would have been a further question whether the error was vitiating. As the Secretary acknowledged, an error of law will not be vitiating if it would have made no difference to, or did not materially influence, the outcome.[58]

45 On the evidence before the Tribunal, the only finding that was reasonably open was that refusing EDX an assessment notice would impair his ability to pursue employment. While the evidence did not establish definitively that he would lose his current employment if a notice was refused, it was clear that his employment prospects would be harmed if he was not permitted to work with children.

(a) Over time, it will be necessary to hold a working with children check in order to practice as a naturopath, because it is becoming a requirement for professional indemnity insurance.[59]

(b) His employer has a department dedicated to helping children, particularly children with behavioural issues. He is interested in that work, and needs an assessment notice in order to do it.[60]

(c) He would not be able to work with children at his current employer without an assessment notice, and not having one would pose difficulties for seeing patients generally.[61]

(d) A working with children check is a standard requirement for employment as a naturopath with another employer.[62]

(e) He could not pursue his nursing studies or a career in nursing without a working with children check.[63]

47 The chief operating officer of EDX's employer gave evidence that holding a working with children check was crucial to his role.[64] The employer's policy was that having a valid working with children check was a requirement to work there.[65] It had made a temporary exception to that requirement while EDX contested the Secretary's decision, although it had been 'a bit of a logistical nightmare'.[66] If he did not regain a working with children check, it would be 'incredibly difficult' for his employer to maintain suitable working arrangements for him and he would be in danger of losing his job.[67] He would not be able to pursue a role as a naturopath or a nurse without a working with children check.[68]

48 This evidence was tested but not disputed in cross-examination, and there was no evidence to the contrary. The only finding that the Tribunal could make on the evidence was that refusing EDX an assessment notice would impair his ability to pursue employment.

49 The Secretary has not established that the Tribunal misunderstood or misapplied the public interest test in s 26C(3) of the WWC Act. The Tribunal's decision and order were free from error. Leave to appeal will be granted, but the appeal must be dismissed.

50 I should add that, if I had been persuaded that the Tribunal had made a vitiating error, it would have involved no more than a failure to make a finding that was open on uncontested evidence. There was no criticism of the Tribunal's conclusions that it was not appropriate to refuse EDX an assessment notice, that a reasonable person would allow their children to have direct contact with EDX while he was engaged in child-related work, and that his engagement in child-related work would not pose an unjustifiable risk to the safety of children. In those circumstances, I do not consider that remitting the proceeding to the Deputy President for further consideration would have caused any unfairness or appearance of unfairness to the Secretary.[69] On the other hand, remitting the matter to a differently constituted Tribunal would have had resourcing implications for the Tribunal, and would have added further cost and delay to an already prolonged decision-making process.

51 I will hear the parties on the question of the costs of the proceeding.

[1] On 27 August 2020, I ordered that the respondent be referred to as 'EDX'. The order complements the effect of s 166 of the Family Violence Protection Act 2008 (Vic) and a proceeding suppression order made on 11 February 2019 by the Tribunal under s 17 of the Open Courts Act 2013 (Vic).

[2] EDX v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2020] VCAT 155 (Reasons).

[3] Working with Children Act 2005 (Vic) (WWC Act), s 1(1).

[7] WWC Act, s 14(2)(a) (Category C application); s 21AD(2)(a) and (3) (Category C re-assessment).

[8] WWC Act, s 26 - Note; Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act), s 51(2).

[29] WWC Act, s 14(3)(j); Reasons, [177]-[181].

[31] Reasons, [184], [189]-[190], [193].

[37] At [228] of its Reasons, the Tribunal set out s 26B(3) instead of s 26C(3). The Secretary properly accepted that the 'public interest test' in each sub-section is the same, and that this error was not material to the discharge of the Tribunal's statutory function.

[40] Relying on Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, [69] (McHugh, Gummow and Hayne JJ).

[41] [2012] VSCA 143, [28] (LMB).

[43] (2019) 56 VR 526, [83]-[84].

[44] LMB, [61]; ZZ v Secretary to the Department of Justice [2013] VSC 267, [199]-[209].

[45] [2013] VSC 267, [203] (citations omitted).

[46] Tribunal transcript, 224:19-24; Applicant's outline of submissions dated 10 June 2020, [30].

[47] (1986) 162 CLR 24, 39-40 (Mason J).

[49] Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36].

[50] PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514, [50], citing Shock Records Pty Ltd v Jones [2006] VSCA 180, [85] (Bell AJA, Callaway and Ashley JJA agreeing); Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121, [3] (Ashley JA), [19]-[22] (Redlich JA).

[51] Tribunal transcript, 114:5-25, 168:21-169:31.

[52] Tribunal transcript, 192:12-193:5.

[53] Tribunal transcript, 224:27-225:1.

[55] Reasons, [2]-[3]; see [13] above.

[56] Reasons, [110]-[113], [151]-[152]; see [20]-[21] above.

[57] Tribunal transcript, 224:27-225:6.

1. [58] Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295; (2012) 36 VR 656, [121], [124]; Moreland City Council v Glenroy RSL Sub Branch (2018) 236 LGERA 327, [94]. See also, in relation to judicial review, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [45] (Bell, Gageler and Keane JJ); and Chang v Neill [2019] VSCA 151, [94]-[100].

[59] Tribunal transcript, 44:26-47:13, 114:5-25.

[63] Tribunal transcript, 49:9-12, 115:4-10.

[64] Tribunal transcript, 156:8-157:19.

[66] Tribunal transcript, 158:27-159:11.

[67] Tribunal transcript, 160:14-30, 168:21-169:31.

[69] See Vegco Pty Ltd v Gibbons [2008] VSC 363, [33]; SJ Beaumont Investments Pty Ltd v Warrnambool City Council (2012) 193 LGERA 335, [42]-[47].