AZD v Secretary to the Department of Justice (Occupational and Business Regulation) [2009] VCAT 977

1. The Working With Children Act 2005 is said to have the following purpose:

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 have their suitability to do so checked by a Government body.

1. The Government body which carries out that checking process is the Secretary to the Department of Justice who is the respondent in today's application.
2. The Secretary's determination is final subject only to a review by this Tribunal under Section 28 of the Working With Children Act. The statute approaches the matter by classifying various criminal offences into Categories 1, 2 and 3. The most serious matters are placed in Category 1, the less serious but perhaps nevertheless significant matters are to be found in Category 2 which is referred to in Section 13, specifically one of the paragraphs of Section 13(1) makes reference to the offence of stalking. Contrary to Section 21A of the Crimes Act 1958 these offences are of the relevant character if committed against children. Section 13(2) provides as follows:

The Secretary must refuse to give an assessment notice on a Category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to -

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

(b) The period of time since the applicant committed or allegedly committed the offence;

(c) Whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending;

(e) The ages of the applicant and of any victim or the time the applicant committed or allegedly committed the offence;

(f) Whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed or allegedly committed the offence;

(g) The applicant's behaviour since he or she committed or allegedly committed the offence;

(h) The likelihood of future threat to a child caused by the applicant;

(i) Any information given by the applicant in or in relation to the application; and

(j) Any other matter that the Secretary considered relevant to the application.

1. The present applicant AZD was born in 1977. He was a member of a large family and had a difficult childhood. At the age of 11 he was diagnosed as suffering from Attention Deficit Disorder. He received some treatment but it is clear that that treatment was not entirely successful.
2. As a youth and young man he had a lengthy series of brushes with the law including matters such as unlawful assault, breach of bail conditions, breaches of suspended sentences, using a telecommunications instrument to make threats and so forth. That pattern was established over a number of years.
3. For present purposes the offence which has been regarded as a Category 2 offence to attract the operation of Section 13 of the Working With Children Act 2005 was a conviction in 2005 for stalking. According to the material placed before me, the victims of the stalking were aged 21, 17 and 17. The involvement of minors in the offending brings into operation Section 13.
4. AZD has for many years been a basketball referee, he has also been a football umpire. These works are largely voluntary though relatively small honorariums are paid for these services. Relatively recently AZD lost his employment as a VLine cleaner because he said as a result of a sleep disorder from which he has been suffering he was unable adequately to discharge his duty. A psychological assessment given in July 2005 by a clinical psychologist on behalf of the Government organisation Forensic care described AZD as suffering serious anger management and arousal problems having a moderate risk of re-offending and having difficulties in his relationships with children.
5. It is against this background that last week the Secretary gave a negative determination. As a result of the Secretary's determination unless it is either reversed and set aside or at the very least stayed, AZD will be precluded from undertaking umpiring and refereeing duties in the forthcoming Queen's Birthday weekend. Initially it was hoped that AZD would be in a position to prosecute a stay application relative to these matters this morning. If successful this would have enabled him to undertake certain commitments which required him to in effect give the green light by lunchtime. Regrettably because of service difficulties, the Secretary could not be represented this morning and so AZD's application has been stood over till this afternoon at which time the Secretary was represented by Mr Panayi of Counsel.
6. Aside from the general entitlement which the Tribunal is granted under Section 26 of the Working With Children Act 2005 to make a review and ultimate determination as to whether the Secretary's determination against AZD should be set aside or affirmed, the Tribunal has a further power under Section 50 of the Victorian Civil and Administrative Tribunal Act 1998. Sub-section (3) of that section says:

(3) The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

(4) The Tribunal may make an order under sub-section (3) on the application by any party or on its own initiative

(b) Whether or not it has given any person whose interest may be affected by the order an opportunity to be heard

[there remain a series of other sub-sections which are not materially relevant]

1. It is this power under Section 50(3) of the Victorian Civil and Administrative Tribunal Act that AZD invokes seeking the stay to enable him to proceed with umpiring and refereeing duties over the Queen's Birthday weekend.
2. Mr Panayi who appeared for the Secretary submitted that in circumstances such as the present I was required to strike a balance between the objective that we find enunciated in Section 1 of the Working With Children Act 2005 on the one hand and on the other hand the inherent rights of AZD to pursue what would otherwise be his lawful activities interacting and working with children. Mr Panayi observed that the work here was largely honorary and it was not paying work in the same way as a full time job would be.
3. AZD himself stressed that there is nothing sexual in any of the offences of which he has been convicted or with respect to which charges have been found proven. He says there is no evidence that he is a danger to children in any manner whatsoever and hence it is wrong not to enable him to pursue his main interest in life which is umpiring and refereeing. He stresses his long service as an umpire and referee. What then is the appropriate balance to strike?
4. Mr Panayi on behalf of the Secretary says, correctly I think, that the purpose of the statute is not confined merely to issues of actual or threatened sexual abuse, albeit that that has been the centre of attention in review applications under these provisions. Section 1 he correctly observes makes specific reference to the physical safety of children or more accurately to quote Section 1(1):

1. Mr Panayi says that a child may be exposed to physical harm not merely by the direct application of violence but by being in the vicinity where violence or threatened violence is occurring. I must say I find this a somewhat problematic proposition accepting that a child may be traumatised by being in the presence say of a vicious brawl, it is not clear to me that the trauma suffered by a child in those circumstances would properly be characterised as physical harm it might be psychological harm but unless the violence was applied directly to the child it is not evident to me that it would be physical harm. How then do I strike the balance between the two interests which I have earlier identified?
2. Section 50(3) leaves the discretion in quite an open form and really does not postulate any particular criterion to be applied. I think generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications to the Tribunal. I accept that there is nothing to indicate any sexual deviancy in the conduct of AZD and I note in the pre-sentence report or perhaps it was one of the other psychological assessments that I viewed as part of the extensive material that has been placed before me, there is an express finding that there is no evidence of sexual deviancy in his case. Certainly 17 year olds are on the cusp of adulthood according to the modern statutory regime which treats persons adults at the age of 18 and so the particular matter namely the convictions for stalking involving as they do two 17 year olds fall within the definition of Category 2 offences but are nevertheless viewed from the perspective of child involvement, less serious than at first blush they might appear.
3. For his part AZD gave an account of the events which had him as much victim in the dispute that led to the charges as villain or perpetrator, however the police he says took the opposite view, accepted the account of his antagonists and obviously the Court did too. All of this would tend to be supportive of a determination today in favour of AZD; but there are other factors, the most important of those factors is that there is a pattern in AZD's offending and a pattern that is identified in the 2005 pre-sentence report and other psychological assessments that have been put before me to the effect that AZD has what one might describe in broad terms as anger management problems. I have described the circumstances that blocked his prosecuting his stay application this morning. Whilst I was not directly present I do know that there was some sort of disturbance on the Tribunal premises, I know that Registry staff have as a result asked security to be in the vicinity of this hearing room for this afternoon's application. I know also that there is a record on the file that AZD was abusive with Tribunal officers in seeking to secure an early listing of his application. The pattern of physical violence which one finds in AZD's record of brushes with the criminal law involving actual assaults, threatened assaults and the like and his conduct in and around the Tribunal today and yesterday all to my mind give serious apprehension as to the advisability of granting a stay to extend his interaction with children in the interim period before a final determination of his claim is made. He has I think quite justifiably made a proud reference to his distinguished history as a referee in football and particularly basketball however it appears that until as recently as I think it was 28 April this year he was the subject of a lengthy 35 week suspension because of a violent outburst ironically as it would turn out at a tournament held on the Queen's Birthday weekend of last year. His suspension was it seems extended because of an outburst at the Basketball Disciplinary Tribunal.
4. In those circumstances I believe that the appropriate balance to strike is not to grant the stay application which was sought today.