Applicant v Respondent

Working with Children Check Unit, Department of Justice and Regulation

1 The respondent, VTN,[1] applied to the applicant, the Secretary to the Department of Justice and Regulation, for an assessment notice under the Working with Children Act 2005 (WWC Act). VTN's criminal record meant that his application was a category A application, which the Secretary was obliged by the WWC Act to refuse.

2 However, the WWC Act authorises the Victorian Civil and Administrative Tribunal (VCAT), in specified circumstances, to direct the Secretary to issue an assessment notice to a category A applicant. In December 2016 VTN applied to VCAT for an order making such a direction. In January 2018, after hearing VTN's application, VCAT made an order directing the Secretary to issue an assessment notice to VTN. VCAT gave detailed reasons for its order.[2]

3 The Secretary seeks leave to appeal from that order to this Court, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Such an appeal may only be brought on a question of law. In this case, the application for leave to appeal and the proposed appeal were argued together in one hearing.

4 For the reasons that follow, I am not satisfied that VCAT erred in law in making the order. I will grant leave to appeal in relation to one question of law, concerning the consideration and application of s 1A of the WWC Act, but will dismiss the appeal. Otherwise the Secretary's application for leave to appeal will be dismissed.

5 In March 1985, VTN pleaded guilty in the Magistrates' Court at Ballarat to two charges of carnal knowledge of a girl between the age of 10 and 16 years and one charge of unlawful and indecent assault. He was placed on a 12-month good behaviour bond. VTN was 19 at the time of the offending, and the girl involved was 14 years old. VCAT accepted VTN's evidence that he considered the victim as his girlfriend and that the relationship continued for some time after he pleaded guilty to the offences.

6 In October 2006 VTN pleaded guilty in the County Court at Melbourne to two charges of rape, committed in January 2005. The victim was VTN's former de facto wife. Judge Barnett of the County Court sentenced VTN to 4 years' imprisonment, with a non-parole period of 18 months. In his sentencing remarks the judge emphasised the serious nature of the offences committed by VTN and the severe suffering that VTN's offending had caused the victim. He also noted the following matters:

(a) VTN had co-operated with police, pleaded guilty and displayed remorse;

(b) Despite his earlier convictions, VTN had previously led a relatively blame-free life;

(c) VTN had an IQ of 66, which limited his ability to cope with many of life's demands;

(d) At the time of the offending VTN was employed with an organisation that provides employment and programs for people with intellectual disabilities, where he was a respected member of the workforce and a courteous and reliable employee. A conviction would end that employment and limit VTN's other employment opportunities;

(e) The Office of Corrections and a consultant forensic psychologist both assessed VTN as a low risk of reoffending.

7 VTN was released on parole immediately after the expiry of his non-parole period, and completed his sentence in June 2010. His discharge report records that he complied successfully with all conditions of his parole.

8 In November 2010 VTN applied for an assessment notice under the WWC Act. His criminal record put his application into the category that the Secretary was required by the WWC Act to refuse. VTN did not contest that first negative notice when it was given in February 2011. Section 25(1) of the WWC Act prevented him from making a further application until after 5 years had elapsed.

9 On 27 October 2016 VTN made a second application for an assessment notice under the WWC Act. Again, the Secretary was obliged by s 12(2) of the WWC Act to refuse the application, and did so on 30 November 2016. On 13 December 2016 VTN applied to VCAT for review of the Secretary's decision.

10 Deputy President Lambrick of VCAT heard VTN's application on 2 March and 10 November 2017. The Secretary provided VCAT with documentary evidence of VTN's criminal offending, including certified extracts of the sentences given in the Magistrates' Court in 1985, the prosecution brief of evidence in relation to the 2005 rape offences, the transcript of the County Court hearing and Judge Barnett's sentencing remarks in October 2006, and materials from Corrections Victoria about the sentence served by VTN between 2006 and 2010, including the period of release on parole. VTN provided VCAT with six character references, two letters from the chief executive officer of his employer and reports from two psychologists.

11 As mentioned above, in January 2018 VCAT made an order granting VTN's application and directing the Secretary to give VTN an assessment notice.

12 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 are subject to a screening process.[3] People who work with children must undergo this screening process because it is a criminal offence to engage in child-related work[4] without a current assessment notice under the WWC Act.[5] The protective purpose of the legislation is emphasised by s 1A, which provides:

Protection of children to be paramount

When the Secretary or VCAT makes a decision or takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.

13 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.[6] An application by a person with a criminal history falls into one of three categories of application: A, B and C. Because of VTN's serious criminal history, his application was a category A application.[7] Section 12(2) of the WWC Act requires the Secretary to refuse to give an assessment notice on a category A application.

14 A person whose category A application has been refused may apply to VCAT for an assessment notice to be given,[8] as VTN did here. Section 26A sets out comprehensive criteria for VCAT in considering such an application.

15 The central consideration for VCAT in an application under s 26A is whether it is satisfied that 'giving the notice would not pose an unjustifiable risk to the safety of children', having regard to the matters set out in s 26A(3):

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

(b) the period of time since the applicant 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 the offence; and

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and

(g) the applicant's behaviour since he or she 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 VCAT considers relevant to the application.

16 Section 26A(4) further provides that, in satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, for the purposes of s 26A(3), VCAT must be 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; and

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

17 If VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to children, it may by order direct the Secretary to give the assessment notice to the applicant. Section 26A(5) provides that VCAT may only make such an order if it is satisfied that, in all the circumstances, it is in the public interest to do so.

18 VCAT also has jurisdiction to review decisions of the Secretary to refuse category B and category C applications, against criteria set out in s 26B and s 26C respectively.

19 After briefly setting out the factual background to the application, the Deputy President summarised the provisions of the WWC Act that govern when VCAT can order an assessment notice be given:[9]

The WWC Act is protective. 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 children are subject to a screening process.

On a Category A application, the Tribunal must not make an order for the giving of an Assessment Notice unless satisfied that giving the Notice would not pose an unjustifiable risk to the safety of children having regard to factors set out in s.26A(3) of the WWC Act.

The WWC Act also requires the Tribunal to consider a separate "reasonable person test" and a "child-related work test." Finally the Tribunal must be positively satisfied that it is in the public interest to give the Notice.

20 Turning to the s 26A(3) test of unjustifiable risk, the learned Deputy President referred to Bell J's explanation of the test in ZZ v Secretary to the Department of Justice:[10]

The test of "unjustifiable risk" requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the Tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. Assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances.

21 The reasons then deal in turn, at [22] to [90], with each of the matters set out in s 26A(3). No complaint is made by the Secretary of any of the findings of fact made by VCAT in relation to those matters, and I need not set them out in detail. The following findings were significant:

(a) The sexual offences of which VTN was found guilty were directly relevant to child-related work. The rape offences committed against his former partner in 2005 were extremely serious acts of sexual violence. On one occasion a child was in close proximity to the rape of her mother, albeit not in the same room. The victim of VTN's first offences was a child, who was unable to consent, regardless of whether he regarded her as his girlfriend.[11]

(b) VTN has not, in the years since his offending in 1985, shown any propensity to reoffend against children.[12]

(c) VTN was a compliant prisoner, who successfully completed his parole, including engaging in drug and alcohol counselling with good results. He has not committed any further offences since the rape offences committed in January 2005. He has strong family supports, and is living in a house he has purchased with his current partner and her two adult children. His work is extremely important to him and he is well regarded by his employer.

(d) Dr Aleksandra Belofastov, a clinical and forensic psychologist, assessed VTN's risk of sexual offending as low-moderate. It was her opinion that VTN was probably never a risk to someone who was not in a relationship with him, and that there was no evidence that he presented a targeted risk to the safety of children or that he had any paedophiliac interest. On the basis of Dr Belofastov's evidence, VTN's demonstrated empathy for his victims and understanding that his offending was wrong, and the presence of protective factors including his dedication to his employment and family, the Deputy President accepted that the likelihood of threat caused by VTN to a child is now lower than his overall risk assessment of low-moderate.[13]

(e) Based on the references read and character evidence heard by VCAT, there are people in the community who trust VTN with their children and speak highly of his ability to relate to and look after him. Those people have no concerns about leaving him unsupervised with their children.[14]

(f) VTN is limited by his intellectual disability in the work he is able to perform.[15]

22 The Deputy President concluded, at [92] of her Reasons, that she was satisfied on the evidence before her 'that VTN does not pose an unjustifiable risk to the safety of children'. This satisfaction was reached considering all of the matters before her, including:[16]

- the significant length of time without further offending

- the deterrent impact the sentence of imprisonment has had on VTN

- VTN's immediate remorse and subsequent understanding that what he did was wrong

- the fact that VTN has never sought to minimise or deny his offending in any way

- the deterrent impact of engaging in multiple Court and Tribunal appearances and his understanding of the consequences of any further offending

- the reflection and learning that VTN has undertaken whilst in prison and thereafter which has led to a reduction in his drinking and cessation of substance abuse

- the positive protective supports which exist in his life

- [her] finding that there is no evidence that VTN is sexually interested in children; and [her] finding that VTN poses a low threat to children.

23 The Reasons then dealt more briefly with the matters set out in s 26A(4).[17] In relation to s 26A(4)(a), the Deputy President concluded that the reasonable person would allow his or her child to have direct contact with VTN while he was engaged in any type of child-related work. The Deputy President recorded her satisfaction, at [103], that VTN's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

24 Having found that giving VTN an assessment notice would not pose an unjustifiable risk to the safety of children, the Deputy President turned to whether it was in the public interest to direct the Secretary to give a notice to VTN.[18] The importance to VTN of his employment, and its identification by Dr Belofastov as a 'key protective factor' were significant to the Deputy President's satisfaction that it was in the public interest for him to be given an assessment notice. She concluded:

It is in the public interest for individuals with disabilities to be supported and encouraged in their working endeavours, where they do not pose an unjustifiable risk to children.

25 For those reasons, VCAT ordered the Secretary to give an assessment notice to VTN.

26 The Secretary has applied for leave to appeal under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act). As already noted, s 148 enables a party to appeal from an order of VCAT, with leave, on a question of law only.[19]

27 Whether leave to appeal is granted depends on the justice of the particular case. The applicant for leave must identify a question of law for which there is a real or significant argument that VCAT was in error. It is also relevant whether the question of law is one of general or public importance, and whether there is sufficient doubt attending the question of law to justify a grant of leave.[20]

28 In this case I heard full argument as to the questions of law identified in the Secretary's proposed notice of appeal, in addition to having the benefit of the parties' detailed written submissions. It is convenient to consider whether leave to appeal should be granted in light of that argument, in relation to each question of law.

Question A - Did VCAT apply the wrong test under s 26A(3) of the WWC Act?

29 The first question of law identified in the Secretary's proposed notice of appeal is whether VCAT failed to perform its statutory task under s 26A(3) of the WWC Act by failing to consider whether 'giving the notice' would not pose an unjustifiable risk to the safety of children. The Secretary submitted that VCAT made the same error in this case that was found by Bell J to have been made in PQR.[21] The error was said to be that the Deputy President considered whether VTN posed an unjustifiable risk to children, rather than whether giving an assessment notice to him would pose an unjustifiable risk to children.

30 In PQR, VCAT had refused PQR's application for an assessment notice. VCAT found that PQR was a low risk of physical harm to children, indeed was caring towards them, but that there was a potential future indirect risk of that harm should he relapse into drug-related activity. Bell J held that VCAT erred in refusing the application because of this generalised risk to children. The question that the deputy president in that case should have, but did not, address was 'whether there was a risk to the safety of children with whom the applicant might come into contact when undertaking child-related work as permitted by the giving of the notice'.[22]

31 The Secretary contended that the same error is evident in the Reasons here. Attention was drawn to:

(a) the test stated by the Deputy President at [20] - 'I turn first then to a consideration of whether taking into account the factors set out in s.26A(3) of the WWC Act, VTN poses an unjustifiable risk to children';

(b) the statement at [91], that in category A applications there is a presumption against granting a notice unless the test 'that the applicant does not provide an unjustifiable risk to the safety of children' is positively satisfied; and

(c) the conclusion at [92] - 'I am satisfied on the evidence before me that VTN does not pose an unjustifiable risk to the safety of children'.

Overall, the Secretary submitted, VCAT's findings were not connected in any way to what might be the consequential risk of 'giving the notice', which was the question that had to be addressed.

32 VTN submitted that, on a fair reading of the Reasons as a whole, VCAT did consider whether giving the notice would pose an unjustifiable risk to the safety of children, and applied the correct test. VTN further submitted that, even if VCAT had applied the wrong test, there was no material error. Any error involved imposing a higher standard on VTN than the standard set by s 26A(3) of the WWC Act, and VTN met that higher standard.

33 It is clear that an error of law involves something more than 'looseness in the language of the tribunal' or 'unhappy phrasing of the tribunal's thoughts' and that I am not to construe the Reasons 'minutely and finely with an eye keenly attuned to the perception of error'.[23] Rather, I must read VCAT's Reasons fairly, in context and as a whole.[24]

34 Taking that approach to the Reasons here, I cannot conclude that VCAT applied the wrong test under s 26A(3). At several places in the Reasons the test was set out or referred to in full:

(a) At [18], the Deputy President stated 'the Tribunal must not make an order for the giving of an Assessment Notice unless satisfied that giving the Notice would not pose an unjustifiable risk to the safety of children ...';

(b) At [21], immediately following the short hand statement of the test at [20] of which the Secretary complains, Bell J's explanation of the correct test in ZZ and PQR is quoted in full.[25] There is further reference to Bell J's consideration of the meaning of 'unjustifiable risk' in ZZ and PQR at [86];

(c) At [95] and at [104], when introducing her consideration of s 26A(4) and (5), the Deputy President reiterated that she had to be satisfied 'that giving VTN an Assessment Notice would not pose an unjustifiable risk to the safety of children.'

35 Reading the Reasons as a whole, in particular the careful weighing of the s 26A(3) factors between [22] and [90], it is apparent that the Deputy President was appropriately focused on the risk that VTN would pose to children if he were to engage in child-related work. The short hand references to whether VTN poses an unjustifiable risk are, in my view, no more than 'looseness in the language' or 'unhappy phrasing' that do not reveal an error of law.

36 On that basis, I do not consider that there is a real or significant argument that VCAT erred in assessing unjustifiable risk under s 26A(3).

37 Even if there were an argument of substance on this question, the justice of the case would be against granting leave to appeal. I accept VTN's submission that, even if the error had been made, it could not have been material to the outcome and there would therefore be no utility in granting leave. In light of the Deputy President's careful and considered conclusion at [92], 'that VTN does not pose an unjustifiable risk to the safety of children', it is not conceivable that she might nevertheless have concluded that giving a notice to VTN might pose an unjustifiable risk to the safety of children. If there was an error, it was in subjecting VTN to a more stringent test than the WWC Act prescribes, a test that he met on the evidence before VCAT.

38 I refuse leave to appeal in relation to Question A.

Question B - Did VCAT fail to consider and apply s 1A of the WWC Act?

39 Question B in the Secretary's proposed notice of appeal is 'Did the Tribunal make an error of law in its consideration and application of s 26A of the Act, by failing to, or failing to adequately, consider and apply s 1A of the Act?'

40 As noted at [12] above, s 1A of the WWC Act provides that the protection of children from sexual and physical harm must be the paramount consideration when VCAT makes a decision or takes an action under the WWC Act. Although VCAT referred to the protective purpose of [26]e WWC Act,26 there is no reference in the Reasons to s 1A.

41 The Secretary submitted that the absence of any reference to s 1A constituted a failure to take into account a relevant consideration, and hence an error of law. The error was said to be failing to give any, or any adequate, consideration to the paramountcy of the protection of children when evaluating VTN's facts and circumstances against the tests in s 26A. Alternatively, the Secretary submitted that VCAT placed excessive weight on VTN's interests and did not give any or any adequate weight to the protection of children as the paramount consideration.

42 VTN submitted that, although VCAT did not expressly refer to s 1A, the principle that the protection of children from harm is paramount is woven through the whole of its decision. The alternative submission, that VCAT placed excessive weight on VTN's interests, was said by VTN not to involve a question of law.

43 Again, I must read the Reasons fairly, in context and as a whole, and should not be overzealous in searching for error.[27] Taking that approach, it is clear that the Deputy President's attention was properly focused on the protective purpose of the legislation and that she gave genuine and realistic consideration to the protection of children from harm.

44 It would perhaps have been preferable for the Reasons to have referred to s 1A, but the provision is not a verbal formula that must be recited like a mantra in reasons for decision. What matters is that VCAT does, in substance, give paramount consideration to the protection of children from harm.

45 Further, s 1A does not exclude matters other than the protection of children from consideration in assessing unjustifiable risk and the public interest. Indeed, the WWC Act requires that a range of other considerations be taken into account, relevantly here the matters set out in s 26A(3), (4) and (5). Section 1A was inserted into the WWC Act[28] to make it clear that 'the protection of children is a more important consideration than any other consideration, such as the individual's right to work'.[29] Other considerations may still bear on the assessment of whether an identified risk is or is not unjustifiable and whether, in all the circumstances, it is in the public interest to direct that a notice be given. In this regard it is important to recall that a key finding of VCAT in this case was that 'VTN poses a low threat to children'.[30]

46 I am not satisfied that VCAT failed to give paramount consideration to the protection of children from harm. Indeed, reading the Reasons as a whole, I am positively satisfied to the contrary. The burden of establishing that there was a failure to consider and apply s 1A of the WWC Act rests on the Secretary.[31] It is not enough that VCAT's reasons were expressed so as to suggest the possibility of an error of law. The Secretary had to demonstrate that there was in fact an error of law, and did not discharge that burden here.

47 Nor do I accept the Secretary's alternative argument that VCAT gave excessive weight to VTN's interests, and inadequate weight to the protection of children as the paramount consideration. Contrary to the Secretary's submissions, VCAT did not give priority to VTN's employment interests over the protection of children; it merely considered those interests as relevant in the assessment of unjustifiable risk and the public interest in giving a notice.

48 It may be accepted that the exercise of VCAT's discretion under the WWC Act is subject to a 'statutory indication of the weight to be given to'[32] a certain consideration, namely the protection of children from sexual and physical harm. That consideration is to be treated as the 'paramount consideration'. Here, I am positively satisfied that VCAT did, in substance, give paramount consideration to the protection of children from harm. Having done so, the residual allocation of weight amongst relevant considerations was a matter for VCAT.[33] The Secretary does not submit that VCAT's allocation of weight was legally unreasonable.[34] It follows that, in this case, the Secretary's complaints about excessive or inadequate weight do not raise a question of law.

49 There was, in my view, an arguable point relating to the consideration and application of s 1A of the WWC Act, and so leave to appeal is granted for Question B. However, for the reasons I have given, I am not persuaded that VCAT failed to give paramount consideration to the protection of children from harm or that it otherwise erred in law in this regard.

Questions C, D and G - Did VCAT apply the Category C standard instead of the Category A standard?

50 Questions of law C, D and G in the Secretary's proposed notice of appeal all concern whether VCAT wrongly applied the category C test rather than the category A test. In full, those questions are:

C. Did the Tribunal make an error of law in its consideration, qualitative assessment and application of the "reasonable person" test in s 26A(4)(a) of the Act, by failing to apply the Category A standard in s 26A(a), and by instead applying the Category C standard in s 26C(2)(a)?

D. Did the Tribunal make an error of law in its consideration, qualitative assessment and application of the "any type of child related work" test in s 26A(4)(b) of the Act, by failing to apply the test at all or failing to properly apply it, and by failing to apply the Category A standard in s 26A(4)(b) and instead applied the Category C standard in s 26C(2)(b)?

G. Did the Tribunal make an error of law in its consideration, qualitative assessment and application of the "public interest" test in s 26A(5) of the Act, by failing to apply the Category A standard in s 26A(5), and instead applying the Category C standard in s 26C(3)?

51 In relation to each of these grounds the Secretary relied on two erroneous references in the Reasons to s 26C. The first is in the heading above [95], and reads 'Reasonable person test - section 26C(2) WWC Act'. The second is in the heading above [104] and reads 'Public interest test - section 26C(3) WWC Act'. The Secretary submitted that, in light of these headings, there was a risk that VCAT had applied the category C test rather than the category A test.

52 VTN submitted that reference to s 26C in the two headings is no more than a typographical error. I agree. It is plain that the Deputy President was aware that VTN's application was a category A application and fell to be considered under s 26A. The applicable tests were set out correctly in the body of the decision: the tests in s 26A(4)(a) and (b) appear at [95], and the public interest test in s 26A(5) is at [104]. The mistake was confined to the headings and is not reflected anywhere else in the Reasons.

53 There is no serious argument of error in relation to Questions C, D and E.[35] I refuse leave to appeal on those questions.

Questions E and F - Did VCAT conflate the two separate tests in s 26A(4) of the WWC Act?

54 Questions of law E and F in the proposed notice of appeal are:

E. Did the Tribunal make an error of law in its consideration and application of the "any type of child-related work" test in s 26A(4)(b) of the Act, by failing to provide a path of reasoning for the findings made under s 26A(4)(b) of the Act?

F. Did the Tribunal make an error of law by conflating the "any type of child-related work" and the "reasonable person" tests in s 26A(4) of the Act, or by subsuming the "any type of child-related work" test into the "reasonable person" test?

55 These questions concern the reasons given by the Deputy President for the conclusion, stated at [103] of the Reasons, that she was satisfied that VTN's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

56 The Secretary submitted that s 26A(4) of the WWC Act prescribes two distinct matters of which VCAT must be satisfied, the 'reasonable person' test and the 'any type of child-related work' test. No complaint is made about the first of these matters, which is dealt with at [96] to [102] of the Reasons. In relation to the second, the Secretary submitted that VCAT failed to provide a path of reasoning to its conclusion at [103], or alternatively subsumed the second test into the first.

57 VTN submitted that the two tests were separately considered by VCAT, at [96] to [102] and at [103] respectively, and that there is an intelligible path of reasoning to the conclusion expressed at [103]. That conclusion could be expressed shortly, given the detailed consideration of unjustifiable risk in the preceding paragraphs of the Reasons.

58 I accept VTN's submissions in relation to these questions. It is clear that the 'any type of child-related work' test was considered separately, albeit briefly. Reading the Reasons as a whole, there is no difficulty understanding how the Deputy President reached the conclusion at [103] that the test was satisfied.[36] It follows closely after the conclusion at [92] that VTN does not pose an unjustifiable risk to the safety of children. That conclusion was based on a detailed consideration of the evidence, at [20] to [90], with the key findings - including the finding that VTN poses a low threat to children - summarised at [93]. While the reasoning might have been reinforced by an extra heading or a cross-reference to the preceding paragraphs, it is perfectly intelligible without them.

59 I refuse leave to appeal in relation to Questions E and F.

Questions H and I - Did VCAT consider 'all the circumstances' in assessing the public interest under s 26A(5) of the WWC Act?

60 The final two questions of law identified by the Secretary concern VCAT's consideration of the public interest under s 26A(5) of the WWC Act:

H. Did the Tribunal make an error of law by failing to perform its statutory task under s 26A(5) of the Act, in that it failed to form the requisite state of satisfaction on the basis of "all the circumstances"?

I. Does the "public interest" test in s 26A(5) of the Act require an evaluative assessment to be carried [out] by the Tribunal on the basis of "all the circumstances"?

61 Having found that giving a notice to VTN would not pose an unjustifiable risk to the safety of children, the Deputy President identified, briefly, other matters of relevance to her assessment of the public interest.[37] These matters included the importance to VTN of his employment and Dr Belofastov's opinion that being able to engage in meaningful work was a key protective factor for VTN. At [111] the Deputy President expressed her satisfaction that it was in the public interest for VTN to be given an assessment notice - it being in the public interest for individuals with disabilities to be supported and encouraged in their working endeavours, where they do not pose an unjustifiable risk to children.

62 The Secretary submitted that this consideration fell short of the requirement in s 26A(5) to consider the public interest based on 'all of the circumstances', and failed to identify the countervailing factors militating against giving a notice. No specific countervailing factors were identified in submissions before me. Rather, the submission was that VCAT should have repeated, or at least referred back to, the matters taken into account in assessing whether there was an unjustifiable risk.

63 VTN relied on authorities that hold that it will usually be in the public interest to direct the Secretary to give an assessment notice to an applicant if VCAT is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children.[38] He pointed out that the Secretary did not submit to VCAT that there were additional negative factors weighing against giving a notice.[39] He also submitted that a fair reading of the Reasons discloses that VCAT took into account all of the circumstances. The phrase 'where they do not pose an unjustifiable risk to children' at the end of [111] drew in the consideration of all of the matters dealt with in the preceding paragraphs.

64 I cannot find any error in VCAT's assessment of the public interest under s 26A(5). The question of public interest only arises where VCAT is satisfied that giving a notice would not pose an unjustifiable risk. The Deputy President had made that finding in relation to VTN, and there was no need for her to repeat all of the considerations she had already taken into account in reaching that conclusion. It remained for her to identify any additional considerations that bore on her assessment of the public interest.[40] The matters she identified were all permissible considerations in the circumstances of this case. The Secretary did not identify any additional negative considerations going to the public interest, either in submissions to VCAT or in this Court.

65 Leave to appeal is refused in relation to questions H and I.

(a) Leave to appeal is granted for question of law B in the applicant's proposed notice of appeal.

(b) The appeal is dismissed.

(c) The application for leave to appeal is otherwise dismissed.

67 I will hear the parties as to the costs of this proceeding.

[1] At the commencement of the hearing on 24 May 2018 I ordered that the respondent be referred to by the pseudonym 'VTN'. VCAT made a similar order in the proceeding before it, on 16 January 2017.

[2] VTN v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 54 (Reasons).

[4] The expression 'child-related work' is defined in s 9 of the WWC Act.

[10] [2013] VSC 267 (ZZ) [13]; see also PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 (PQR) [40].

[11] Reasons [36]-[37], in relation to s 26A(3)(a) - the nature and gravity of the offence and its relevance to child-related work.

[12] Reasons [46], in relation to s 26A(3)(b) - the period of time since the applicant committed the offence.

[13] Reasons [77]-[87], in relation to s 26A(3)(h) - the likelihood of future threat to a child caused by the applicant.

[14] Reasons [89], in relation to s 26A(3)(i) - any information given by the applicant in, or in relation to the application.

[15] Reasons [90], in relation to s 26A(3)(j) - any other matter that VCAT considers relevant to the application.

[17] Reasons [95]-[103]. The heading to this part of the Reasons refers to s 26C(2) of the WWC Act, discussed at [50]-[53] below.

[18] Here also the relevant heading refers to s 26C(3) of the WWC Act, discussed at [50]-[53] below.

[19] On 1 May 2018 the Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 (Vic) inserted a new s 148(2A) into the VCAT Act, that provides that the Trial Division of this Court may only grant leave to appeal if satisfied that the appeal has a real prospect of success. The new provision applies only to applications commenced on or after 1 May 2018: VCAT Act s 170. This application was commenced on 7 February 2018 and is not subject to s 148(2A).

[20] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331, [8]-[16]; see also Garde J's summary in Zumpano v Banyule City Council [2016] VSC 420 [10].

[21] [2017] VSC 514.

[22] PQR [63]-[65], see also [44], [50].

[23] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ). See also Commissioner of State Revenue v Anderson [2004] VSC 152; (2004) 22 VAR 181, [33] and Hesse Blind Roller Company Pty Ltd v Hamitovski [2006] VSCA 121 [3] (Ashley JA), [19]-[22] (Redlich JA).

[24] See PQR [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 Hamitovski [2006] VSCA 121 [3] (Ashley JA), [19]-[22] (Redlich JA).

[25] As set out at [20] above.

[27] See [33] above and the authorities cited there.

[28] Working with Children Amendment (Ministers of Religion and Other Matters) Act 2014 s 5.

[29] Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2653 (Robert Clark, Attorney-General). See also Explanatory Memorandum, Working with Children Amendment (Ministers of Religion and Other Matters) Bill 2014 cl 5.

[31] Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing); Ta v Thompson [2013] VSCA 344; (2013) 46 VR 10, [50] (Osborne JA, Beach JA agreeing).

[32] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 40-41.

[34] Cf Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24, 40-41; Minister for Immigration and Citizenship v Li [2014] FCAFC 1; (2013) 249 CLR 332.

[35] Cf CRI026 v The Republic of Nauru [2018] HCA 19 [57].

[36] See [33] above and the authorities cited there.

[38] PJR v Secretary to the Department of Justice [2006] VCAT 2455 [45] (Morris J, President); ZZ [199].

[39] Exhibit 3 - Further Affidavit of Gordon Cooper affirmed 24 April 2018, Exhibit GC-2 - Submissions of the Respondent at [56]-[62].

[40] Secretary, Department of Justice v LMB [2012] VSCA 143 [26]-[30].