For Secretary to the Department of Justice and Regulation:
[3]
Mr Barnard applied for a Working with Children Assessment in early 2014.
On the 9 April 2014, he received a Negative Notice.
Under section 26(7) of the Working with Children Act 2005, any appeal in respect to the granting of that notice must be made within 28 days of the date of the notice.
Mr Barnard considered making an appeal. He spoke to his uncle about doing so. He ultimately decided after the discussion with his uncle not to pursue the appeal. One of the significant considerations at the time was that he was not actually engaged in child-related work at the time.
He is on a disability pension and had sought the assessment in order for him to be able to be involved in volunteering in a particular hobby steam rail organisation, which may have possibly involved working with children. He did not proceed with joining this organisation. He was not interested in being involved in other child-related volunteering and so he let the matter lapse.
Over the next few years he became involved as a volunteer with a different organisation, which operated a miniature railway. At present he is a very active member of that organisation. Indeed, there were references submitted by the organisation to the effect that he had not demonstrated anything but exemplary behaviour during his time at the railway and that the railway supported his application in this case.
He does not appear to work in any child-related work at the railway. However, the railway has recently sought and received funding from its local council to upgrade its facilities.
The funding is to be provided but only on the condition (imposed by the council, not the organisation) that each member of the organisation have a positive working with children assessment.
This means that Mr Barnard is unable to continue with the railway as a member unless he obtains working with children clearance. His energy and great enthusiasm will be lost to the organisation.
He thus issued a further application in this Tribunal in April 2017.
[4]
Mr Barnard did not initially realise that the Act prevented him from issuing another application within five years. This prohibition is contained in section 25(2) of the Act.
There is nothing in the Working with Children Act 2005 itself which provides any grounds for him to issue a premature application (save for some circumstances which are not relevant to Mr Barnard's situation).
Section 25 (2) of the Act provides that an applicant can only reapply for an assessment within the period of five years following a negative notice when the applicant can show that there is a relevant change in circumstances.
None of the possible circumstances set out in section 25(2) apply to Mr Barnard. The section essentially concerns a situation where a person has been charged with an offence or subject to supervisory orders, and those charges have been dismissed or the supervisory orders have come to an end.
The only means by which the prohibition in section 25 can be circumvented is by an application under section 126 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). That section provides that the Tribunal may extend any time limit fixed by or under an enabling enactment for the commencement of a proceeding.
Thus, the application that I am to deal with today is an application by Mr Barnard that I should exercise my discretion under section 126 of the VCAT Act to extend the time for appeal against the decision of the Secretary which was made on 9 April 2014.
The section does not provide guidance as to how this discretion should be exercised. However, the respondent referred me to Hunter Valley Developments Pty Ltd & Others v Minister for Home Affairs and Environment[1] where certain principles in extending a discretion such as this was set out.
Both myself, and other Members of the Tribunal have followed these guidelines in other cases. I record that they appear to me to appropriately set out the most relevant issues which need to be taken into account in considering such an application.
The first consideration is whether an applicant for an extension of time can demonstrate an acceptable explanation for the delay.
In this case, I accept that Mr Barnard gave truthful evidence as to the reasons for his delay. However, I do not accept those reasons as being reasons which would justify such a long extension of time. Mr Barnard has an intellectual disability. However, he was able to present his case to me quite competently and accepted that he had made a choice not to proceed with the appeal in 2014.
The second principle is whether it is fair and equitable in the circumstances to extend time.
There is nothing in this principle which favours the applicant.
The third principle is whether the applicant has continued to make the decision-maker aware that the applicant contested the finality of the decision.
There is nothing in this principle which assists Mr Barnard.
The next principle is whether the respondent will be prejudiced given the delay. I accept that there will be no prejudice to the respondent and this was conceded by the respondent.
The next principle is whether extending time may result in the unsettling of other people or established practices.
The Secretary relied upon this principle. The Secretary is concerned that to effectively allow an applicant to succeed in an extension of time application using section 126 of the Victorian Civil and Administrative Tribunal Act 1998 may "open the flood gates" and thus circumvent the operation of the limitation period of five years enshrined in section 25 of the Act.
The Department submits that if this applicant is to be given an extension of time, there is no reason why any other applicant would not be entitled to do the same. This will frustrate the clear purpose of section 25 of the Act.
The next principle overlaps to some extent with the others that I have discussed so far. It is that in exercising my discretion I should be very much aware of the benefits of consistent decision-making. The Secretary submits that it would be unfair to grant this application when many other people in a like position have to wait for the statutory five year period.
[5]
I accept that each one of these principles applies in this case and that there is little in those principles which supports the applicant.
Although it may seem regrettable that an applicant wishing to do work or volunteer for the benefit of the community is prohibited from even ventilating these issues in Court, the prohibition is clearly within the scheme of the Act and should be upheld.
I accept that the applicant will suffer detriment if his application is not accepted, but I must keep in mind that the purpose of the legislation is to protect children. The disadvantage to the applicant in being unable to pursue a volunteer activity which he loves, is clear. However, it is not of such significance that it displaces the considerations that I have referred to so far.
The respondent also submitted to me that it was unlikely that Mr Barnard would succeed on the merits if he were to appeal.
I do not think it is necessary to express an opinion on that issue. All I say is that if Mr Barnard does wish to reapply at the expiration of the five-year period, then he would be well served by having some legal advice in order that the merits of his application can be comprehensively laid out before the Tribunal.