1. These Orders under the Open Courts Act 2013 operate until further order.

1. The decision of the Secretary of the Department of Justice and Regulation on 17 December 2018 to give a negative notice to the Applicant is affirmed.

Orders under the Open Courts Act 2013

1. The Applicant is self-represented. I assume that he was unaware of his right to seek the anonymization of his name in Tribunal documents. The Tribunal must give reasons for its decisions, and these are published. In many documents produced in evidence by the Secretary and by the Department of Health and Human Services, the names of victims of the Applicant's criminal conduct have been redacted. Having reviewed those documents and documents produced by the Applicant, and in particular the report of a neuropsychological service, I am satisfied that it is in the interests of justice for the Applicant's name to be de-identified. Objectively, the Applicant's neuropsychological evidence does not favour his application, and the requirement that the Tribunal give reasons necessitates extracts from that neuropsychological evidence being exposed. It serves no purpose to do so publicly whilst naming the Applicant. Further, if the Applicant's name was not de-identified, publication of the decision could lead to the identification of victims.

1. In 2018 the Applicant applied to the Secretary to the Department of Justice and Regulation ("Secretary") for a Working with Children Assessment Notice under the Working with Children Act 2005 ("WWC Act").

1. The application triggered an investigation into the Applicant's suitability to work with children. Criminal history checks were undertaken through Victoria Police and enquiries were made of the Department of Health and Human Services.

1. The criminal history check revealed a history of serious criminality on the part of the Applicant between 2008 and 2017, which included crimes of violence and drug trafficking a drug of dependence. The violent crimes included the Applicant head-butting Ms JK - the mother of his baby - on 29 June 2014, whilst the Applicant was holding the baby, in premises where the victim's other young child was present. The age of the baby is recorded as 3 and 4 weeks in different documents presented in evidence, but in his oral evidence the Applicant said the baby was only days old.

1. It is apparent from the evidence, which I will discuss in detail below, that the Applicant abused alcohol from the age of 16[1] and illicit drugs from the age of 21[2] which progressed from marijuana to amphetamines ("speed"), ecstasy, GHB when the Applicant was around 23, and eventually meth amphetamine ("ice"), and that drug use was a major factor in his criminal offending. His trafficking in June 2017 of 1-4 Butanediol, which is a Schedule 11 drug of dependence and is related to the drug GHB, was undertaken in part to support his then drug addiction. The Applicant was gaoled in November 2017 and it was during his sentence that the Applicant began ceasing to take drugs and undertook some courses which have assisted the Applicant to turn his life around. The Applicant was discharged from gaol in July 2018.

1. On 7 November 2018 the Secretary issued an interim negative notice[3] and invited the Applicant to make submissions.

1. The Applicant made a written submission by letter dated 23 November 2018[4]. In that submission the Applicant conceded that the information obtained from the Police was true and correct; that he had been a drug user for 16 years, during which he had overdosed three times and three times had been placed in induced comas by hospitals; that many of his offences were committed when he was under the influence of illegal substances and alcohol; and that as to charges of drug trafficking in 2017, he "was planning on selling this to support my habits but I was caught". The Applicant asserted that all of the criminal incidents between 2008 and 2017 were based around his addiction to drugs and alcohol, unhealthy relationships with women who were also consuming drugs and alcohol, and undiagnosed depression and post-traumatic stress disorder. He said that, by November 2018 when he made the submission, he had been clean for 16 months, and that having been able to get sober and by taking antidepressants, he had stabilised his moods and was now taking great steps towards rehabilitation.

1. On 17 December 2018 the Secretary issued a negative notice and a statement reasons[5].

1. In this VCAT proceeding the Applicant seeks a review of the Secretary's decision to issue the negative notice.

1. Both parties filed copies of documents relevant to the proceeding. Persons who gave evidence on behalf of the Applicant were the Applicant himself, his mother (who I will call "Ms CEK"), Mr MKM who acts as a mentor for the Applicant, and Mr MT who is a psychologist. The Applicant also relied on a written report by Dr S and Mr K who practice together. I identify them this way as disclosure of these professionals' names could lead to the identification of the Applicant or the victims.

1. In summary, the Applicant concedes that the records of his various charges, findings of guilt and convictions which were discovered by the Secretary are all accurate, but says that his recent personal change warrants the Secretary's decision to be overturned. Having undertaken various courses whilst in gaol - from which he was discharged in July 2018 - he has turned over a new leaf and wishes to contribute to society by working as a youth worker with troubled teenagers. For that purpose he has enrolled in a course of education which would include him being sent on a placement which would constitute child related work.

1. The Applicant's mother Ms CEK gave evidence that she had lived through the effects of 20 years of his consumption of drugs. She said she had seen how ice hijacks the brain; how the Applicant has previously thrown away his life without care; how she had been verbally abused and damaged. She said she had also seen how the Applicant was now trying to have a go, and had exhibited genuine remorse and regret for his past, and that he loves his family. She said the Applicant's desire to turn his life around was manifested by him refusing to accept parole so that he could take more personal development courses while in gaol. She said that since getting out of gaol he has changed from being dead quiet, to now interacting with others.

1. The Secretary submitted documents but did not have any witnesses. The Secretary cross-examined the Applicant and his witnesses.

1. Whilst the Applicant's efforts at ceasing to take drugs, cutting off contact with his previous drugtaking and criminal associates, and taking positive steps are to be commended, and whilst Ms CEK's support of her son is understandable, his change of direction is simply too recent to enable the Tribunal to form the view, having regard to the criteria set out in the WWC Act, that it would be appropriate that a Working with Children Check should be granted. There is also an issue with the Applicant's appreciation and characterisation of his aggravated assault of the mother of his then baby daughter, and of his conviction for trafficking a drug of dependence, which strongly suggests that the Applicant has not developed a proper insight into the nature of his offending, as could give confidence in his ability to maintain his current lifestyle.

1. I have no hesitation in dismissing the application.

1. For the purposes of the WWC Act in this proceeding, the Applicant's application for a Working with Children Check is a Category C application.

1. The relevant provisions of the WWC Act are these:

Section 1(1): The main purpose of this 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.

Section 1A: 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.

(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.

Section 14(3): ... , the Secretary must have regard to -

(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.

1. Whilst it is the words of the sections that are relevant, and paraphrasing legislation can lead to a concern that the precis rather than the legislation has been applied, it is appropriate to note that section 26C sets out three tests which must be satisfied if an applicant in a Category 3 application is to be granted a Working with Children Assessment Notice: s26A(1) which necessitates a consideration of s14(3), then s26A(2)(a) or (b) [sometimes called the 'reasonable parent test'], and then, if under subsections 26A(1) or (2) VCAT does not determine that it would be appropriate to refuse to grant an assessment notice, s26A(3) [sometimes called the 'public interest test'].

1. There have been a number of occasions on which Courts have identified important principles in the context of the above sections, and I take these principles into account.

1. In PQR v Secretary, Department of Justice and Regulation (No 2)[6] Bell J said[7] that sections 1(1) and 1A of the WWC Act were consistent with s 17(2) of the Charter of Human Rights and Responsibilities Act 2006 Charter. That section says, "Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child". By reference to his earlier judgment in ZZ v Secretary, Department of

Justice and Regulation[8] His Honour said that the WWC Act implicitly recognised the importance of work to individuals and families, and that the screening process for applicants in Part 2 of the WWC Act represented the balance that was carefully struck by Parliament between those two competing rights and the fundamental values and interests that they represent, remembering that the protection of children is paramount.[9]

1. As to the meaning of "reasonable person", which in the context of this case appear in s26C(2)(a) of the WWC Act, in JGF v Secretary to the Department of Justice[10] Vice President Macnamara said, in an oft quoted passage:

A reasonable person would be acquainted with the truism ... that there are no risk-free encounters in human life. A reasonable person would, in considering the situation of (the applicant), wish to acquaint himself or herself with the full range of material that has been placed before (the Tribunal) including the character evidence, the history of (the applicant's) good character during his adult life and the expert opinions. A reasonable person would retain a measure of scepticism and caution but would not approach an issue such as this with the thought that once a person had, if you will, shown the cloven hoof, albeit decades ago and as a very young man, that he could never be redeemed.

Judge Macnamara expressed the same view in VQB v Secretary to the Department of Justice[11] where he said this of the thought process of a reasonable person:

The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before (the Tribunal), giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some overoptimistic attempt to facilitate rehabilitation.

1. As to the words "would not pose an unjustifiable risk to the safety of children", which in the context of this case appear in s26C(2)(b) of the WWC Act, in Maleckas v Secretary, Department of Justice[12] Kyrou J set out a number of propositions in relation to the concept of "an unjustifiable risk to the safety of

children". He said the propositions applied both to the Secretary and to the Tribunal, but that for simplicity he referred only to the Secretary. Quoting from paragraph 43 His Honour said:

(d) The expression 'an unjustifiable risk' does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.

(e) What constitutes 'an unjustifiable risk to the safety of children' will depend on the circumstances of each case, having regard to the matters set out in (the relevant sections) and the main purpose of the WWC Act set out in s1(1)[13].

(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 section 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 non-sexual 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.

1. In ZZ v Secretary, Department of Justice and Regulation Bell J said that:

The performance of (the Tribunal's) function requires the Tribunal to make a rational, objective and evidence-based assessment of the nature and degree of the risk [if any] which giving the notice would pose in the given facts and circumstances. The concept of "unjustifiable risk" incorporates notions of weighing, balancing and proportionality. Taking into account the considerations specified in (the section), the seriousness of the potential harm must be assessed against the possibility of it occurring. The Tribunal's risk assessment must be an evaluative judgment about whether giving the notice would not pose an unjustifiable risk to the safety of children, not about whether giving a notice would not pose a, any or no risk or put children at risk[14].

1. In ZZ v Secretary, Department of Justice[15] Bell J discussed the concept of "unjustifiable risk" consistently with the above quote from Kyrou J in Maleckas. Bell J said that the Tribunal is not to apply a binary distinction ('safe' v 'unsafe'), but rather that it must make an evaluative judgment by examining the competing facts and circumstances in each case. The Tribunal must take into account the need to balance protecting children from harm with the right to work and freedom of choice of work, and it does so by evaluating the nature and degree of any risk. What constitutes an "unjustifiable risk to the safety of children" [the words used in 26A(4)(b)] will depend on the circumstances of each case, having regard to the matters set out in the relevant sections of the WWC Act.

1. Bell J noted that "safety of children" is not defined in the WWC Act, and if given its ordinary meaning it would not be confined to sexual or physical harm, but would include emotional and psychological harm[16]. He said that "unjustifiable risk" does not mean "a risk" or "any risk" or putting children "at risk". The relevant risk in an application under the WWC Act is to "the safety of children".[17] It is appropriate for the Tribunal to consider any tendency by the Applicant to minimise details of a relevant offence, when assessing whether there was an unjustifiable risk[18].

1. I will deal with each criterion set out in the WWC Act, in view of the above passages from Court decisions.

s26C(1)/s14(3)(a) the nature and gravity of the conduct and its relevance to child-related work

1. The Applicant's criminal history is set out over some 17 pages of documents.[19] Even those charges that do not specifically reference drugs are of the kind that suggest that substance abuse was at the root of the event. Using the dates of Court hearings rather than of the alleged incidents, amongst the charges of which the Applicant has been found guilty are these[20]:

10 April 2012 (4 counts), 19 March 2013 (6 counts), and 10 June 2014 (2 counts), contravening a Family Violence Safety Notice.

8 May 2015 contravening a Family Violence Safety Notice[21].

15 September 2015, persistently contravening a Family Violence Intervention Order.[22]

6 November 2017 the Applicant was convicted of trafficking a drug of dependence, under section 71AC of the Drugs, Poisons and Controlled Substances Act 1981.

1. The Applicant had also been charged with, but not found guilty of, trafficking a commercial quantity, and trafficking a large commercial quantity, of drugs of dependence.

1. I note that the Family Violence Safety Notice matters arise under two Intervention Orders, obtained by two different women, Ms PS in 2011 and Ms JK in 2017.

1. Ms PS made a statement to Police[23] alleging that by May 2011 she and the Applicant had been in and out of a relationship for around 18 months, and that they were not cohabiting. She said that in May 2011 the Applicant threatened to kill her in an incident in which he smashed windows of her house, damaged motor vehicles and verbally abused her in a threatening manner. Subsequently she withdrew her complaint[24], so the veracity of her statement was not tested in a Court hearing. Nevertheless, the charge arising from Ms PS's complaint of making a threat to kill, contrary to section 20 of the Crimes Act 1958, is relevant to the current proceeding. In her statement withdrawing her complaint Ms PS said that she had resolved her issues with the Applicant, that the Applicant had attended counselling and that repair of the property damage had been covered. Clearly, Ms PS did not recant from her original allegations, but merely said she did not wish to proceed. The matters she alleged are of concern in the context of this application.

1. The Applicant's many breaches of family violence Intervention Orders is a very serious matter in itself. Such Orders are issued by Courts to protect vulnerable persons, and in the case of the Applicant persons who were within his family circle and who were entitled to a trusting and supportive relationship with the Applicant. The many breaches of the Orders shows that the Applicant failed to control his impulses, was willing to disregard the vulnerability of his family members, and that he placed his own desires above the needs of his partners and children in his own family circle. As I have said, the Applicant puts these events down to his previous drug use. But these breaches continued over a period of years and the Applicant is not literally 'a different person' from when they were perpetrated.

1. All of the crimes of violence are relevant to child-related work, but the findings of guilt of unlawful assault and aggravated assault of Ms JK are of particular concern. The Applicant gave evidence that Ms JK was the mother of his then 3 or 4 week old baby. The Applicant said that the events took place when he, and the female victim, were affected by drugs and alcohol. The Applicant quibbled with the description of the incident which appears in the Police brief of evidence, but the fact that he did so does him no credit and to my mind is detrimental to his application.

1. According to the statement made by the Informant in the Preliminary Brief [25], on 29 June 2014 the Applicant was holding the baby at Ms JK's place of residence, and his mood turned bad. Ms JK became scared and asked the Applicant to leave the premises, upon which the Applicant verbally abused her and, holding the baby, head-butted Ms JK which caused her to lose balance and fall, and then followed Ms JK into another room where he pushed her to the floor. Ms JK's other young child entered the room, whereupon the Applicant verbally abused that child, placed the baby in a bouncer and left. Ms JK was screaming during this incident, understandably, and one can only imagine the fear and distress which the Applicant caused to Ms JK and her other child.

1. In a Transfer Summary sheet created by an officer of the Department of Health and Human Services ("DHHS") on 19 August 2014[26] in relation to a Supervision Order concerning the baby, that officer records information provided by Ms JK. I accept that this document is not an affidavit, and that the officer did not give evidence at the hearing, but I do give its contents some weight, given the Applicant's own evidence. The officer reports Ms JK saying that the Applicant had physically abused her during her pregnancy, that she had ended the relationship because of the violence and the Applicant's use of the drug ice, and that in the incident on 29 June 2014 whilst the Applicant was holding the baby when he head-butted Ms JK, the baby was "hanging like a rag doll" during the assault. The assault occurred when Ms JK already have an Intervention Order against the Applicant. DHHS assessed the baby as being at significant risk of emotional and physical harm and decided to issue a Protection Application in respect of the baby.

1. The substance of the Applicant's evidence to the Tribunal on this matter was that he regretted his actions but that there had been a "clash of heads" with the victim rather than him having administered a head-butt, that no harm was done to the baby because he had held her firmly so that she was supported rather than flopping around during the incident, and that this was the only incident of its kind in which a child was present. If it was said honestly this evidence reveals an appalling lack of insight into the effect of the incident on the victim Ms JK, her elder child, and the baby. The Applicant also said that he had head-butted Ms JK, but only barely. If this was said by way of argument - noting that on several occasions in the hearing the Applicant said he had never harmed a child - it is self-serving and contemptable. I note that in the above DHHS Transfer Summary sheet the DHHS officer wrote that on 4 July 2014 DHHS met with Ms JK and the Applicant in relation to the Protection Application, and that in the meeting the Applicant denied that he had head-butted Ms JK, could not remember much of what occurred, minimised his violent behaviour, denied that the incident had occurred, denied that any of the children were present, and acknowledged that he was drunk at the time. I am concerned that in his evidence in the Tribunal the Applicant gave this evidence that there had been a "clash of heads". I reject it. I record, in fairness to the Applicant, that in cross-examination he said that he admitted that the incident was terrible and that he regrets it.

1. The Applicant was convicted of "aggravated assault of female" in connection with this incident and as part of an aggregate sentence, was sentenced to imprisonment of two months.

1. The Applicant also says that his behaviour was engaged in while he was under the influence of alcohol or drugs, which is to be contrasted with his currently clean lifestyle. Nevertheless, being under the influence of substances whilst verbally and physically abusing victims would make the Applicant more frightening to the victims rather than less so. As a user of substances over many years, the Applicant would know the effect of drugs on him, and being under the influence of alcohol or drugs does not diminish his responsibility for his conduct.

1. In relation to the conviction of drug trafficking, the substance of the Applicant's evidence to the Tribunal was that he purchased a quantity of Butenyl for personal use. The Applicant said that Butenyl turns into the drug GHB once ingested in the body, but is "weaker" than GHB. He maintained that he purchased the drug for personal use, even though he said he would use up to 50 millilitres a day but that the quantity that he had been found with was 20 litres of the drug[27]. He noted that he had sent an SMS message[28] to a person stating "Got more juice coming 4

to 5 days if it gets through", but maintained that he had not sold any of the drug and said that he was not offering the drug for sale on social media. He also acknowledged that he had pleaded guilty to this charge, and said that it followed that he "accepted" the charge but that he did "not agree" with it. I consider this evidence to be self-serving and contradictory, and not credible. I do not accept that a person would purchase 400 doses of Butenyl for personal use, and I can only interpret the SMS message is promoting its availability.

1. It is not only adults who view messages on social media, and publicising the availability of drugs on social media is dangerous to those children who are exposed to it.

1. The Magistrates' Court's certified extracts of the criminal proceedings show the relevance of drugs to the offending. For example, the Court Order on 8 May 2015 in relation to contravening a condition of bail and other offences with which it was consolidated[29] imposed a sentence of imprisonment, and it records: "Custody management issues. Mental health issues - diagnosed with ADHD, may be withdrawing from alcohol. Recommend all reasonable assessment and supervision to ensure safe custody. ... Undergo assessment and treatment including testing for alcohol abuse or dependency as directed".

1. In the discussion above I have emphasised the aggravated assault of Ms JK, but this is not to diminish the importance of the other findings of guilt and convictions.

1. The Applicant also gave evidence of his drug taking generally. He said that he had overdosed three times, and been placed in induced comas in hospital: an overdose of GHB when he was 28 and had been using GHB for about 5 years; in February 2011 when he was 32; and a third time. He said that when he was first charged in 2008 he was abusing alcohol, which "did not make him violent" but during the consumption of which he had some violent outbursts. He did not ever consider how other people would react to or be affected by his use of drugs or alcohol. The Applicant said in cross-examination that he had been in rehab 3 times before being in gaol, but that it had not worked. He had also been in detox 6 times, but said that those treatments were unsuccessful because each had only lasted for around 2 weeks. A difficulty facing the Applicant from this evidence, is that it shows that on several occasions when the Applicant had already experienced very ill-effects from drugtaking, including comas, he engaged in the behaviour again. Those ill-effects, and the fact that the Applicant never considered how other people would be affected is relevant to child-related work.

1. This criterion strongly supports dismissal of the application.

s26C(1)/s14(3)(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct

1. Whilst all of the Applicant's offending is relevant, the most relevant matters are the aggravated assault of Ms JK on 29 June 2014[30]; the various contraventions of Family Violence Safety Notices which took place no later than 2 May 2014; the unlawful assault on 5 September 2014 which was heard on 8 May 2015; and the trafficking of a drug of dependence which occurred over the period 23 May 2017 to 6 July 2017.

1. The failures to answer bail on 16 September 2014 are of less relevance.

1. This criterion does not favour the Applicant. All of the relevant offending is recent. The events occurred only a few years ago. The Applicant was sentenced to an aggregate 2 months imprisonment in May 2015 in relation to the assaults, and to 12 months imprisonment (concurrent) in relation to the drug trafficking. He has only been out of gaol for around 10 months.

1. Even though the Applicant has been working on changing his lifestyle, the offending is recent.

1. This criterion does not favour the application.

s26C(1)/s14(3)(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

1. I have recorded the findings of guilt and the convictions above. There are no charges that are still pending. The findings of guilt and the convictions are serious and this criterion does not favour the application.

s26C(1)/s14(3 (d) in the case of an offence, the sentence imposed for it

1. I have recorded the sentences above. The Applicant was sentenced to terms of imprisonment. Clearly, before those sentences were imposed various non-custodial sentences were imposed, over the many years in which offences were committed.

1. This criterion does not favour the application.

s26C(1)/s14(3)(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct

1. There are several victims of the Applicant's conduct. The Applicant was born in August 1976. Ms PS, who obtained the Intervention Order in 2011, was born in 1981[31] and so she is around five years younger than the Applicant. The age of Ms JK, the victim of the aggravated assault, was redacted from the copy of her statement[32] but the Secretary submitted, without contradiction from the Applicant, that she was 38 years in June 2014 from which it would follow that she was born in 1976 and so was around the same age as the Applicant.

1. Ms JK's elder child, who was present when the Applicant head-butted her in June 2014, was eight years of age at the time of that aggravated assault, and of course the Applicant was holding their baby who was only weeks old at the time.

1. Ms PS and Ms JK, the adult female victims of the Applicant's criminal behaviour, were around the same age as the Applicant, but the eight-year-old and the baby were much younger than the Applicant.

1. There can be no doubt that the eight-year-old would have been traumatised by witnessing her mother being head-butted by the Applicant, and being verbally abused by the Applicant. Whilst there was no expert evidence on this matter, it could not sensibly be asserted that the baby would be unaffected by being present during that violent and noisy episode. As the Applicant was holding the baby, there is no doubt that he knowingly committed significant violence in the presence of children, which is inconsistent with the qualities required of a person who wishes to work with children.

1. This criterion strongly supports dismissal of the application.

s26C(1)/s14(3)(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

1. This criterion is irrelevant. Section 14(3)(f) is directed to conduct which has been decriminalised as a result of changes in community standards, such as consensual homosexual contact between adults. None of the conduct in respect of which the Applicant was charged have been decriminalised.

s26C(1)/s14(3)(g) the applicant's behaviour since he or she engaged, or allegedly engaged, in the conduct

1. This is a most relevant criterion. On the one hand, the Applicant has taken steps to turn over a new leaf, and this is the issue that he emphasised in bringing his application. Whilst in gaol he completed courses on anger management and behavioural change. Since his release, he has obtained support and counselling from Mr MKM of an organisation which supports recovering drug addicts, Mr MKM being experienced in supporting and mentoring them. He has also consulted Mr T, a psychologist.

1. On the other hand, and of compelling importance in this proceeding, the Applicant's change of lifestyle is only very recent. Objectively, the Applicant has started to turn his life around.

1. In fairness to the Applicant, I accept as truthful his evidence of his lifestyle since being imprisoned for drug trafficking. He had what he described as a 'lightbulb' moment while in gaol, which strongly motivated him to get his life into order. Since being released from gaol, the Applicant has not associated with those from his drug affected past; he has a very small group of friends focused around Mr MKM and he avoids those old friends who are still using drugs; he goes to a regular gym for health improvement and has a quiet social life. I accept as genuine the Applicant's statement that he wants to give back to the community and become a positive member of society.

1. Similarly, I accept as truthful evidence of Ms CEK, who attested to the improvement in the Applicant's outward personality since being released from gaol, evolving from being very withdrawn to becoming more connected with his family and communicative.

1. The Applicant gave evidence of the courses he had done whilst in gaol, and it is possible that this evidence was not as detailed as it might have been. That is, the Applicant may have received more benefit from the courses than he was able to describe in the hearing. One of the courses was directed to helping people, including the Applicant, identify "triggers" for bad behaviour and in cross-examination the Applicant was asked if he could identify any of them. He answered that his triggers were his domestic partners at the time of his relevant behaviour, although he did not know exactly in what way. He was asked whether there were other triggers, and he answered that he did not think so. This evidence is very damaging to the Applicant's application, because it shows that the Applicant does not take responsibility for his actions and it leaves open the possibility that the Applicant could be triggered to act inappropriately by people around him, including children.

1. In cross-examination the Applicant was directed to an assessment carried out by an officer at the gaol in May 2018, entitled "Level of Service/Risk, Need, Responsivity Summary Report".[33] The author of this assessment was not called to give evidence, and the assessment itself does not record the author's qualifications. The assessment contains a "risk and needs profile" in the form of a chart that lists 8 factors [criminal history, education and employment, family/marital status, recreational activities, companions, alcohol/drug problem, procriminal attitude/orientation and antisocial pattern] and identifies a risk from very low to very high for each factor. The author said the last factor, antisocial pattern, was "medium" but that all other factors were at least "high" and the last three factors [alcohol/drug problem, procriminal attitude/orientation and antisocial pattern] were "very high". In section 2 of the document, the author wrote "yes" against all 10 of the factors noted, which included anger management deficits, intimidating/controlling, underachievement, and assault on an authority figure. Similarly, in section 4 the author wrote "yes" against all 8 of the factors noted, which included depression, suicide attempts or threat, victim of physical assault, victim of sexual assault and victim of emotional abuse. In section 5, the author wrote that the Applicant engages in denial and minimisation. The Applicant stated that he was "honest" in giving information to the assessor, which to his mind explained why some of the factors were recorded so high, and that he did not know what was meant by "engages in denial and minimisation" but that he was "pretty honest" about what he had done.

1. This evidence from the Applicant does not support his position, as it shows that the Applicant has a long way to go to amend his patterns of behaviour over the long-term, and it strongly suggests that he will require professional support to do so.

1. The Applicant relied on a report dated 17 September 2018 from Dr S and Mr K, a neuropsychologist and a provisional psychologist respectively, who jointly run a practice. Dr S and Mr K record that the Applicant was then on a methadone program, and takes mood stabilisers and antipsychotic medication. No medical treatment plan was placed in evidence by the Applicant. Despite Dr S recommending that the Applicant engage a drug/alcohol support worker, he has not done so.

1. The Applicant said that he was taking methadone for pain relief, associated with him having two broken bones in his back. He said that he was not taking methadone to break an addiction.

1. In their summary and opinion commencing on the fourth page of the report, Dr S and Mr K wrote:

(The Applicant's) overall presentation, collateral history, and responses on a psychological distress question indicate the presence of severe depression and anxiety. This most likely explains his current cognitive symptoms, which are likely further exacerbated by side-effects of his methadone therapy. Although his history[34] includes multiple risk factors for an acquired brain injury, available neuroimaging reports and current assessment findings are not consistent with (one). It is strongly recommended that he receive mental health support (ie Psychiatry and/or Clinical Psychology). Review neuropsychological assessment at a later date, after alleviation of acute depressive and anxiety symptoms, is recommended for confirmation.

1. The Applicant focused on the positive aspect of this opinion, that he did not have an acquired brain injury. However when asked in cross-examination whether he had received mental health support as recommended by Dr S and Mr K, he answered that he had not. He also said that whilst Dr S and Mr K had written that the Applicant "is at risk of relapsing", he considered that everyone is at risk of relapsing and that Mr MKM is in effect his drug worker.

1. The Applicant conceded that around five months elapsed between Dr S and Mr K issuing their report and the Applicant consulting Mr T. He said there was no real reason for the delay, and that during that time he did not think he needed to see a psychologist. That said, having consulted Mr T he saw that as beneficial.

1. The Applicant considered that his post-traumatic stress disorder and depression were caused, at least in part, by his drug use. The Applicant said that he had ceased taking Duloxetene and had cut down an antidepressant to doses of one-half tablet.

1. In his submission to the Secretary dated 23 November 2018, the Applicant said that he had post-traumatic stress disorder, depression and anxiety, but he gave no evidence of treatment being taken in relation to them. The Applicant has seen Mr T psychologist a few times, but only recently.

1. There has been insufficient time for the Applicant to demonstrate that drug and alcohol abuse is behind him and unlikely to recur.

1. This criterion does not favour the application.

s26C(1)/s14(3)(h) the likelihood of future threat to a child caused by the applicant

1. The core of the Applicant's argument is that his previous criminal behaviour was brought about by drugs, and that as he has given up drugs he is not a threat. It is not as simple as that.

1. Objectively, I could not find that the Applicant could not relapse into drug and alcohol use, particularly given the length of time that he was a consumer of drugs and the relatively short time that he has been off drugs. On page 5 of their report of 17 September 2018, which was relied on by the Applicant, Dr S and Mr K recommended that the Applicant engage an alcohol and other drug support worker because he was at risk of relapsing back into drug and alcohol use. He has not done so. The Applicant himself says that he has depression and post-traumatic stress disorder, and those conditions could make the Applicant vulnerable to relapse. It follows that the level of risk that the Applicant poses to a child is not negligible.

1. Mr T, a psychologist, prepared a written report and gave evidence in the hearing. He verified that his written report accurately expressed his view. In giving evidence at the hearing he added that his consultations/sessions with patients are usually of a 30-50 minute duration. The first session is spent obtaining a psychosocial history, identifying major life events, traumas, mental health issues, prior diagnoses and the like. What is learned in a psychosocial history could make Mr T decide to conduct psychometric tests, but he did not do so in relation to the Applicant.

1. Mr T said that the Applicant told him in the first session that he had been diagnosed with having post-traumatic stress disorder. Mr T was considering the Applicant's history of drug and alcohol use and anger management, and considering whether he would need further treatment. Mr T concluded that most of the Applicant's issues in relation to mental health and behaviour were affected by drugs and alcohol, and that all the bad things he had done were caused by drugs and alcohol. Mr T said that he has experience working in Corrections and from his observation of the Applicant he is confident that the Applicant is not taking substances.

1. Mr T said in his assessment the Applicant is better engaging with Mr MKM rather than ongoingly seeing Mr T, in relation to his drug and alcohol issues.

1. Mr T said that the Applicant told him he had done some anger management courses in gaol, and Mr T observed that the Applicant was able to talk to him about the insights he had gained. In Mr T's view it is significant that the Applicant has insight into the assaults that he committed, and has remorse.

1. In cross-examination Mr T confirmed that the first session took around 30 minutes and that all of it was spent taking the psychosocial history. He said the second and third sessions each lasted around 30 minutes. He said the Applicant attended on Mr T in relation to drugs alcohol and anger, and that he wanted an assessment to see if he needed treatment for them. The Applicant was not seeing Mr T in relation to post-traumatic stress disorder, anxiety or depression. Mr T considers the Applicant to be in remission, because the Applicant was considering the future, engaging with his family, undertaking social pursuits, and was looking at obtaining education and employment.

1. Mr T said the Applicant told him that he had head-butted his partner, and that the Applicant had not told him who else was present. The Applicant did not tell Mr T of any history of harm to minors. Mr T does not investigate, and relies on what his clients tell him within reason. Mr T said that harm can be caused to children by seeing violence or being in close proximity to violence. A child witnessing one parent harming another would be adversely affected.

1. Mr T was asked whether having previously harmed a child was an indication of likely future harm to a child. Mr T said that the question was too broadly expressed, but that he was prepared to say that if a person had a pattern of domestic violence that person could be a future risk to children.

1. Mr MKM gave cogent evidence of his dealings with the Applicant as a mentor and support. Mr MKM has worked closely with the Applicant for some 10 months, and has experience with people gaining sobriety after drug addiction. Mr MKM sees the Applicant very regularly, often six days a week. Mr MKM can see improvement in the Applicant. Mr MKM has seen the Applicant engage with Mr MKM's eight-year-old child, and cope well with doing so. He has also seen the Applicant engage with groups of children. Mr MKM expresses confidence that the Applicant will not relapse.

1. Mr MKM was not concerned with the Applicant having previously relapsed three times, because that is not uncommon with drug addicts, and he considers that the Applicant's previous relapses were all before his decision to turn his life around.

1. In cross-examination Mr MKM conceded that he did not have significant formal qualifications, but that he relied on experience and observations. Mr MKM said that any person under the influence of alcohol or drugs could commit offences, and he said that once the person became clean their behaviour would be different. Mr MKM opined that if the Applicant again took drugs he would be a risk to children. I appreciate that Mr MKM does not purport to be an expert in relation to such predictions, but this statement is the other side of the coin of his argument that a person off drugs changes their behaviour.

1. Mr MKM said he did not go into detail with the Applicant about the offences he had committed, although he was aware that the Applicant had been gaoled for drug trafficking and also that he had been convicted of aggravated assault. Mr MKM said, in cross-examination, that the applicant had not told him that when he head-butted Ms JK he was holding their baby, that she fell to the ground, that she was screaming, or that her other child entered the room and that the Applicant verbally abused that child. Mr MKM agreed with the proposition that the Applicant had left out important details of this offence when disclosing it to him.

1. The matters that I have set out above establish that, were the Applicant granted a Working With Children Check, he would likely be a threat to children exposed to him. The Applicant has depression and post traumatic stress disorder for which he is not obtaining treatment; is at risk of relapsing into drug and alcohol use; is receiving beneficial support from Mr MKM who is not formally qualified and who was unaware of the details of the Applicant's aggravated assault of Ms JK; and had engaged in a pattern of domestic violence which Mr T said, as a psychologist, was consistent with a person being a future risk to children.

1. This criterion supports dismissal of the application.

s26C(1)/s14(3)(i) any information given by the applicant in, or in relation to, the application and s26A(1)/s14(3)(j) any other matter that the Secretary considers relevant to the application

1. There are no matters other than those listed above which arise under the subsections.

1. None of the criteria in section 14(3) of the WWC favour the application, and I can only conclude that it is appropriate to refuse to give the Applicant an assessment notice.

1. Had I been of the view that the matters referred to in section 14(3) made it appropriate to grant an assessment notice, section 26C(2) would compel me to determine that it is appropriate to refuse to give an assessment notice unless I was satisfied of either of its subsections.

1. Because of my conclusion under section 26C(1), section 26C(2) does not arise, but as a matter of completeness I deal with its to subsections. For the reasons set out below, I am not satisfied of either criteria.

S26C(2)(a) would a reasonable person allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work?

1. As is shown by the decisions in JGF v Secretary to the Department of Justice[35] and VQB v Secretary to the Department of Justice[36] referred to above, the section focuses on what a theoretical reasonable person would do, and not on what a particular witness might do. Evidence of a witness' preparedness to allow their own child to have direct contact with an applicant can be relevant, but is not determinative.

1. Some brief evidence was given by Mr MKM that he considered that the Applicant dealt appropriately with children. That evidence is not of great assistance in this case. First, Mr MKM does not have a long history with the Applicant, and for that reason his evidence is scant. Secondly, Mr MKM did not give evidence of having observed the Applicant with children for a reasonable period of time and in a number of different situations and with different types and ages of children: his evidence was simply impressionistic.

1. I do not consider that a reasonable person, with knowledge of all the matters before the Tribunal, would allow their own child to have direct contact with the Applicant whilst he was engaged in any type of child-related work. "Child" means a person of up to 18 years of age, and so clearly a person engaged in child-related work could be dealing with a great variety of types of children, from young children in a creche, to teenagers trekking on a school camp or children engaging in solo or team sports, to children with their own drug problems. The different ages and the different situations could create a very wide variety of potentially triggering events for the Applicant. That the Applicant gave evidence that his domestic partners had been triggers of his violent behaviour, but that he did not know exactly in what way, is disturbing in this context. It suggests that children engaging in normal noisy, boisterous play which disturbed the Applicant could trigger inappropriate behaviour. It suggests that children exhibiting challenging behaviours could also trigger inappropriate behaviour.

S26C(2)(b) would the applicant's engagement in any type of child-related work not pose an unjustifiable risk to the safety of children?

1. This subsection is expressed to impose an onus of sorts on the Applicant, or create a rebuttable presumption: the Tribunal "must ... refuse ... unless ..." It has a different complexion than if it was in the form of "the Tribunal may grant if ..."

1. I am not satisfied that the Applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. Section 1A of the WWC Act says that the protection of children from sexual and physical harm must be the paramount consideration when VCAT makes a decision under, amongst others, this subsection. The Tribunal must therefore proceed cautiously and conservatively.

1. Applying the principles stated in Maleckas v Secretary, Department of Justice[37] and ZZ v Secretary, Department of Justice[38] the potential harm presented by this Applicant, with his long history of criminal behaviour, his aggravated assault of a woman with a young baby, his multiple breaches of Family Violence orders, his numerous overdoses, and his conviction for drug trafficking is very considerable and I conclude without hesitation that giving the Applicant an assessment notice would pose an unjustifiable risk to the safety of children.

1. Section 1(1) of the WWC Act says the main purpose of this Act is to assist in protecting children from sexual or physical harm, but the risk of non-sexual and non-physical harm to children is not irrelevant. I have no doubt that children who saw the Applicant engage in violent conduct of the sort for which he was convicted would be harmed.

1. Because of my conclusions under sections 26C(1) and (2), section 26C(3) does not arise either, but as a matter of completeness I deal with it. For the reasons set out below, if I had not determined under subsections (1) or (2) that it would be appropriate to refuse to give an assessment notice, I would be compelled to determine that it is appropriate to refuse to give the assessment notice unless satisfied that it is in the public interest to give the assessment notice.

1. I acknowledge the good efforts made by the Applicant to turn over a new leaf, and leave his drug taking behind. There is a public interest in people who have been gaoled, and in people who have abused illicit drugs to the detriment of themselves and others, being rehabilitated. But that is not to say that it is in the public interest to give the Applicant an assessment notice.

1. The Applicant wishes to undertake a course of study to allow him to work with troubled youths, and he has been inspired by Mr MKM in this respect. The course of study would require the Applicant to have contact with children. So the Applicant is seeking to embark on a new career. It is not as if the Applicant has recognised qualifications already in a field with only few practitioners, in which case there could be a public interest in him continuing in that field. There is no particular public interest in the Applicant undertaking or completing the course of study.
2. There is a public interest in the Applicant gaining employment, but the Applicant need not engage in child-related work in order to gain employment.

1. In conclusion I am not satisfied that it is in the public interest to give the Applicant an assessment notice.

1. The Applicant has started to turn his life around after a long and unfortunate history of offending, which has had very deleterious impacts on people around him and on himself. In time he may establish himself to the extent that he can meet the criteria under the WWC Act to gain an assessment notice. But at this time, he does not meet the criteria and his application for the review of the Secretary's decision to give him a negative notice must be dismissed.

[1] Applicant's evidence in cross examination.

[2] Applicant's evidence in cross examination.

[3] Page 31 of documents submitted by the Secretary on 24 January 2019.

[4] This document is attached to the Applicant's initiating Application in this VCAT proceeding.

[5] These documents were attached to the Applicant's initiating Application in this VCAT proceeding.

[6] [2017] VSC 514.

[7] [2017] VSC 514 at para 1.

[8] ZZ v Secretary, Department of Justice [2013] VSC 267.

[9] [2017] VSC 514 at para 22.

[10] [2013] VCAT 1728.

[11] [2013] VCAT 789.

[12] [2011] VSC 227.

[13] Since Maleckas one would add "and section 1A".

[14] [2013] VSC 267 at paragraph 160. Words in [square brackets] were in the original text. His Honour was discussing s13 (2) of the WWC Act, but the words "would not pose an unjustifiable risk to the safety of children" also appear in section 26C(2)(b).

[15] [2013] VSC 267.

[18] Paragraph [110], His Honour citing Maleckas.

[19] Pages 9 - 26 of documents filed by the Secretary on 25 January 2019, in respect of the Applicant's application for a stay of the interim negative notice. The Secretary filed several bundles of documents and page numbers tend to overlap.

[20] Several cases were consolidated and the Applicant was given an aggregate sentence. The page numbers to which I referred our those in the Secretary's material filed pursuant to the Order made 11 February 2019. Other convictions included resist police on 5 September 2014 [page 297], failing to answer bail on 16 September 2014 [page 308]; contravening a condition of bail on 16 September 2014 [page 295].

[21] The Applicant was convicted of this offence. Page 294 of the Secretary's material filed pursuant to the Order made 11 February 2019.

[22] The Applicant was convicted of this offence. Page 299 of the Secretary's material filed pursuant to the Order made 11 February 2019.

[23] Pages 273 - 279 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[24] Page 281 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[25] Page 93 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[26] Page 171 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[27] 1 litre = 1,000 ml. There are 400 doses of 50 ml in 20 litres.

[28] This is stated in the Police summary, contained in the brief to a prosecutor, on page 5 of documents filed by the Secretary pursuant to an Order made 11 February 2019

[29] Page 295 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[30] The Magistrates' Court's certified extracts of the relevant order is at page 303 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[31] Pages 208 - 209 of documents filed by the Secretary pursuant to an Order made 11 February 2019 RA redacted statement of Ms PS, made in February 2013. At that date she said she was 31 years old.

[32] Page 105 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[33] Page 365 of documents filed by the Secretary pursuant to an Order made 11 February 2019.

[34] That is, the history recorded on page 1 of the report, including the history of poly-drug and alcohol misuse, overdoses of GHB, consumption of Xanax and Diazepam on prescription, and his current medications including Duloxetine, Olanzapine and methadone.

[35] [2013] VCAT 1728.

[36] [2013] VCAT 789.

[37] [2011] VSC 227

[38] [2013] VSC 267.