Victorian Civil and Administrative Tribunal|2010-01-08

BGD v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 50 (8 January 2010)

BGD v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 50

The decision of the Secretary made 26 July 2009 to issue a negative notice to the applicant is set aside and the Secretary is directed to give an assessment notice to the applicant.

This is an application under the Working with Children Act 2005. There have now been many applications made to this Tribunal under this Act for review of a decision by the Secretary of the Department of Justice to give a negative notice. The negative notice, once given, prevents an applicant from engaging in any child-related work or voluntary activity.
The structure of the Act has been outlined in many previous decisions. For the purposes of this case, the relevant aspect on which I will focus is that the Act classifies offences which may prevent a person from obtaining a Working with Children clearance into three separate categories.
The first and most serious category is a category 1 offence. Section 12 of the Act sets out the approach the Secretary must take to an applicant who has committed a category 1 offence. The section provides that Secretary has no discretion and must refuse to give an assessment notice to such an applicant.
If an applicant who has committed a category 1 offence appeals to VCAT against the Secretary's decision, then VCAT must apply a very stringent test which is set out in s 26(2) of the Act. As well as detailing a range of matters which the Tribunal must take into account in category 1 offences, that section provides that the Tribunal must not make an order for the giving of an assessment notice on a category 1 offence unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children.
In addition, Section 26(3) provides that the Tribunal may direct the giving of an assessment notice on a category 1 application if satisfied that in all the circumstances it is in the public interest to do so.
Category 2 offences may be described as offences which are of a serious nature, although considered by the legislation less serious than category 1 offences. If an applicant has committed a category 2 offence, the Secretary is not absolutely prevented from issuing an assessment notice. However, section 13(2) provides that she must refuse to give an assessment notice unless she is satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to various matters set out in that subsection.
If the Secretary's decision is reviewed by VCAT, the formula set out in s 26(2) does not apply, because section 26(2) is restricted to category 1 offences. The appropriate section on reviewing a decision as to a category 2 offence is section 26(3) which provides that the Tribunal may direct the Secretary to give an assessment notice to an applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so. This is a significantly less stringent standard than that which applies to category 1 applications.
I then come to category 3 applications. It is clear from looking at the scheme of the Act that category 3 offences are treated as the least serious range of offences. Section 14(2) of the Act directs the Secretary that she must give an assessment notice on a category 3 application unless satisfied, in the particular circumstances, that it is appropriate to refuse to do so.
In making a decision as to whether it is appropriate to refuse to do so, the Secretary must have regard to a range of factors set out in s 14(3) which are identical to those factors set out in the previous sections dealing with category 1 and category 2 applications. However, it is clear from the wording of s 14(2) that her consideration must start from the principle that the assessment notice must issue unless those considerations persuade her that it is appropriate that the application be refused.
When VCAT comes to review a decision on a category 3 application, the Tribunal's power also comes from section 26 (2). As I have said, that section gives the Tribunal the power to direct the Secretary to give an assessment notice to an applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.
However, there is an additional statutory provision which applies only to category 3 offences. Clause 103 of Schedule 1 of the VCAT Act provides that when the Tribunal considers a review of the Secretary's decision as to a category 3 offence, the Tribunal must have regard to

(a) any matter to which the Secretary may have regard under section 14 (3) of the Working with Children Act, and

(b) whether, in all the circumstances, it is in the public interest to give an assessment notice.

The way in which these various sections are to be reconciled was considered by Deputy President McKenzie in STO v Secretary to the Department of Justice [2008] VCAT 2537. It was suggested to her by counsel for the department in that case that the wording of clause 103 meant that she was not able to take into account the factors set out in section 14 (2). Had that been so, the Tribunal would have been restricted to considering only the section 14(3) factors and the public interest, and could not have regard to the fact that the Secretary is directed by section 14 (2) that she must give an assessment notice unless otherwise satisfied.
In response, Deputy President McKenzie pointed out that in reviewing a decision in relation to a category 3 application, the Tribunal has the functions of the Secretary of the Department of Justice under section 14(2) as well as its other functions. So, in determining this application, I need to take into account all of the matters which the Secretary is obliged to take into account in sections 14(2) and section 14(3) in making a decision and I must also have regard to the public interest considerations set out in section 26(3) and clause 103 of the VCAT Act.
From a combination of all the above sections, it seems evident to me that the circumstances to be taken into account by me must include the circumstance that the Act treats category 1, category 2 and category 3 offences in such different ways, and in what appears to be a descending order of gravity, and that the Act emphatically directs the Secretary that she must give a assessment in a category 3 application unless positively satisfied that it is appropriate to refuse to do so.
If I am correct in the above interpretation, then when approaching an application and weighing up the individual circumstances of each applicant, the Tribunal must keep clearly in mind the distinctions set out in the Act between these three categories of offences. Examples of previous cases in which an application has been refused where category 1 offences have been committed may not be strictly comparable with the approach required to be taken by the Tribunal in relation to a category 3 offence.
Having said that, it is also clear that the overriding purpose of this Act is to assist in protecting children from sexual or physical harm, and the protection of children should always be uppermost in my mind when weighing up competing considerations.

In this case the applicant has been refused a Working with Children card because he has committed a category 3 offence. In March of 1989 he was convicted of five counts of wilful and obscene exposure. Unfortunately there is very little information available to the Tribunal as to exactly what were the circumstances of this offence, or series of offences. As is usual in these cases, the Department has called for a report from the Victoria Police Working with Children Unit. Here is how the offences were described in that report -

"The applicant drove slowly past his victim, at the speed they were walking, whilst masturbating. The applicant was sometimes fully naked and other times only wearing a shirt. The applicant made no attempt to conceal himself and continues (sic) to offend with the same victim by passing them several times.

The report does not make it clear how the applicant came to be facing five charges. It is also not clear whether those charges relate to the same incident or to separate incidents, or the timeframe involved. The report identifies one of the victims as being aged 11 years and the other 13 years at the time of the offence.

Through discussions with the applicant, the Department has been able to ascertain that there were several separate occasions of obscene exposure over a period of about three months in around about late 1988. The Department has no knowledge of the circumstances of any of these incidents. All that I have been told about this incident, or incidents, comes from admissions by the applicant to the Department, albeit made haltingly and with minimal detail.
The offences were committed some 20 years ago. At that time the applicant was 26 years old and was married, with one young child and his wife expecting his second child. At the time, he was working long night shifts and was also a union delegate. In his role as a union delegate he was dealing with significant industrial unrest and his job was at risk. There was a great deal of financial pressure upon himself and his wife. It was over the summer period and he was attempting to sleep during the day in an extremely hot house. To add to the difficulties, his son had been diagnosed with Attention Deficit Disorder and was extremely difficult to control. Thus, he was surviving on little sleep in an atmosphere of constant worry. In his words, "I felt like I was going nuts."
In a bizarre attempt to cope with this level of stress, the applicant took to driving around the streets at night. On some of these occasions of driving, for inexplicable reasons, he took off his clothes while driving and exposed his genitals, apparently on at least one occasion masturbating as he did so.
The applicant told me that because of his shame, embarrassment and stress, and the length of time since the offences, he did not remember much of what he did. He did, however, describe one incident. He recalled having driven past two girls on the street and one of those girls having been on a horse. He recalled driving around the block several times and returning on each occasion to pass the girls. On passing the girls he had pulled his pants down and was masturbating as he was driving past. He said that he did not stop the car or speak to the girls or call out to them or make any contact with them at all. He thought someone else who had been on the street had reported him to the police and that the police would have identified him readily as he was driving his own car and the number plates were visible.
He said that at some time later the police came to his house and interviewed him regarding these offences. He initially denied having committed the offences but then admitted them to the police and straight away told his wife what he had done.
Apart from the offences which I have described above, the applicant has been in no other trouble with the police and, as I will describe below, has led not only a blameless but an exemplary life as a husband, father and citizen.

The factors to which the Secretary must have regard when considering an application by someone who has committed a category 3 offence are set out in s 14(3) of the Act. The first one of relevance in this case is the nature and gravity of the conduct and its relevance to child-related work.
The offences which the applicant has committed are grave and are very relevant to child-related work. I would expect that no parent would wish their child to be under the care of someone who would be likely to expose their genitalia and to masturbate in front of a child, or who has a history of having done so. Some category 3 offences are of marginal relevance to the care of children. This offence is extremely relevant. The direct potential impact on children of an offence of this kind is self-evident.
The next matter to be taken into account is the period of time since the conduct. The offence happened many years ago. The applicant is now 20 years older than he was at the time he committed the offences. Sometimes, it is true, mere length of time is not an accurate predictor as to whether conduct will be repeated. This might be so if, for instance, there has been no real opportunity for an applicant to commit a similar offence, or if an applicant has not really faced up to his criminal behaviour and has failed to seek assistance to ensure it will not be repeated.
However, in this case, the applicant obtained counselling and treatment very shortly after the offence was committed. I do not have any record from the psychologist to whom he was referred at that time, but I accept his and his wife's evidence that he received treatment from a forensic psychologist shortly after having been apprehended by the police. That psychologist produced a report which was presented to the sentencing Court and the applicant subsequently saw the psychologist on a few occasions until the psychologist told him that he did not need any further ongoing treatment.
There is now no trace of the psychologist's Court report. However, the report must have been favourable to the applicant as on the hearing of the matter at the Magistrates' Court, he was placed upon a 12 month good behaviour bond and ordered to pay $500 into the Court fund.
Section 14 (3) (d) directs me that one of the factors I must take into account in assessing this application is the sentence imposed on the applicant. This applicant received a very lenient sentence. I conclude that the sentence came about because the Magistrate accepted the applicant's account of the circumstances in which the offences came to be committed, and the psychologist's report as to the likelihood of his re-offending.
As well as obtaining help from a psychologist, the applicant made changes to his life to reduce stress. He resigned his position as a union delegate and his job. He took a new job in which he did not need to work night shifts and which was much more family friendly.
He has been continuously employed ever since, apart from a period in which he was on Workcover.
The applicant was referred to another psychologist again about five years after the incident. This was a referral by the Victorian Workcover Authority to assist him to manage work related pain and anxiety. This psychologist continued to see the applicant from 1999 until 2007, a period of 8 years. Initially the applicant would see the psychologist every week and then the treatment was tapered to once a fortnight and, in the later stages, once a month.
The second psychologist gave evidence before me. He told me that the treatment which he provided to the applicant was cognitive-behavioural treatment and supported psychotherapy, areas in which he has expertise. He said that he had diagnosed the applicant as having chronic pain, a mixed adjustment disorder, and anxiety depression and irritability.
It was clear from his evidence that the psychologist has no expertise in treating sex offenders or sexual offending behaviour. However, over the course of the many sessions with the applicant, the applicant voluntarily disclosed to him the offences which he had committed in what appears to be a very frank manner. This disclosure took place well before this Working with Children application was contemplated.
This psychologist said that the applicant had expressed great shame and remorse in relation to his behaviour, and that in his view the therapy which he has provided to the applicant over such an extended period of time has, by giving him tools to handle stress in his life, assisted in resolving the problems which led to the offending behaviour.
Other section 14(3) considerations of relevance here are the ages of the applicant and his victims. The applicant was 26 years old. He was certainly old enough to accept full responsibility for his actions, and he has not attempted to use his relative youth as any excuse for his behaviour.
In the one incident which he has described, the children were aged 11 and 13 years. I have no idea whether the other incidents were perpetrated on children or adults. It is very concerning that the victims in this incident were young girls.
I must also take into account the applicants behaviour since the offences were committed. I have earlier indicated that the applicant has led an exemplary life since the commission of these offences and has not been involved in any further illegal behaviour. He gave evidence before me about his community work. He has been very active in community affairs, particularly over the last few years. He has been active in assisting various children's and youth organisations, such as local churches, local schools, scouting movement, and local community activities. He has been the president and a management committee member of various community centres and child-related organisations. I have not reproduced the detail of this excellent record of community activity to avoid identifying the applicant through his community service.
As well as this community work he has held down a very difficult job in which he has often been called on to resolve sensitive social issues, assist psychiatric patients, and been in physically threatening situations as a result of his employment.
In support of his application I heard from a workmate of the applicant and also from his wife. His workmate was only recently told the detail of the offences which had been committed. His evidence was extremely supportive of the applicant and confirmed those matters about which the applicant gave evidence.
The evidence of his wife was also extremely supportive and confirmatory of his evidence. In particular she confirmed that the applicant had been frank with her about the detail of the offences he had committed, and had engaged in appropriate professional counselling at the time of his apprehension. Her view was that the counselling had been successful and that her husband would no longer engage in such activity.
The applicant also produced many written references attesting to the high regard in which he is held. However, none of the authors of those references appears to have any knowledge at all of the commission of these offences.
Finally section 14(3) directs me to assess the likelihood of a future threat to a child from this applicant. Predicting the future conduct of any applicant is impossible. I conclude from all the evidence I have heard that this applicant is now in a very stable domestic and employment situation and that many of the stressors which he identified as contributing to his state at the time the offences were committed now no longer apply, and that if placed under stress, as has occurred in the recent past, he now has the tools to deal with stress and anxiety without resort to offending behaviour.

The Secretary has taken a neutral role in this hearing. She does not oppose the application, and neither does she actively support it. Her counsel suggested that in making my decision I should particularly take note of the following matters.
Firstly, counsel suggested that the material showed that the applicant had not been forthcoming about the detail of these offences and that initially in his contact with the police, and in his telephone contact with the Department, he had either denied or minimised the offence. In particular, it was suggested he had minimised his culpability by not admitting to having masturbated at the same time as having exposed himself to the girls.
Of course it would be very significant if I were persuaded that the applicant had not faced up to the seriousness of his conduct. Whether this is so will always be a matter of impression formed during the giving of evidence. My impression was that this applicant was indeed very embarrassed and remorseful about this conduct and that the retelling of what he had done had been an enormously painful experience for him and for his family.
I am also satisfied that this applicant has a vivid understanding of the difficulties and pain he has caused to his victims, particularly as since the time of the incident he has himself raised a son and a daughter. He understands now the consequences of his actions in his victims' lives in a way that he did not previously comprehend.
I do not think the evidence shows deliberate prevarication or misleading by the applicant in his conversations with departmental representatives. It certainly confirms the vagueness of the applicant's account of the offences, but little else can be inferred from the incomplete record of his exchanges with the Department.
Further, counsel for the Department asked me to consider that there may be a future threat to a child from this applicant if the same stressor factors which were operating at the time were again to be repeated - that is, if he was stressed by work or tiredness or lack of sleep.
The evidence from the applicant's psychologist was reassuring in this regard.
Finally, counsel suggested to me that I should see this application in a different light than an application made for an assessment to issue because it was required for employment. This application is an application to enable the applicant to engage in volunteer work. It is not essential for his employment.
Here, although the applicant makes the application to do volunteer work, and his livelihood is not directly at stake, I am sure that the holding of a Working with Children card would enhance his prospects for employment in the next few years and I think it is reasonable to conclude from the evidence that I have heard that at some time in the future he may need to obtain employment in an area which requires an assessment as a pre-condition of employment.

I have found the decision in this case to be very difficult. The applicant is a man who not only has kept out of any trouble since the time the category 3 offences were committed, but has played a very active role in community affairs and has done many good things for various community organisations, focusing not just on children's organisations, but on the broader community. He has the support of a loving wife and the respect of many friends and associates in the community. Although it is true that apart from the one person who gave evidence in the hearing, all of the other referees are unaware of the offences which he committed, I still take those references into account as demonstrating how much the applicant is valued and the extent of his involvement in the community.
I also have quite compelling evidence from the applicant's psychologist. This evidence is not of the sort which Courts and Tribunals often receive, which is a mere description of a patient whom the therapist has met a few times for the purpose of preparing a Court report, either at the time of commission of the offences or for the application before the Tribunal. He has seen his psychologist countless times over a period of many years. Although the psychologist has no expertise in the area of sexual offending or paraphilias, he has come to know this applicant, his family circumstances, and his character very well, and has treated him at a time when this application was not even in prospect. Thus his estimate of the applicant as not likely to constitute a future threat to a child carries great weight.
I recognise that the psychologist's view must not be adopted by me as a substitute for my own enquiry into the fundamental matters at issue, but it is of great significance that even when faced with extremely difficult family issues over the last few years, there has been no suggestion at all that the applicant has been tempted to, or has engaged in any sexual offences. I have concluded from the evidence that there is very little likelihood that the applicant will engage in such offences again.
On the other hand, the offences which he did engage in were exactly the type of offence at which this legislation appears to be directed . Further, from the applicant's description of the offences it is clear that he did not simply appear naked before the children concerned. This would have been enough to have constituted the offence. However, this applicant not only appeared naked before the children but also masturbated in front of them.
I am also concerned that his description of the offence shows that it was not a single impulsive event but an event which involved planning. He drove around the streets several times, passing the children not once, but several other times. The children appear to have been targeted by him. At any point during his driving he could have decided to stop the behaviour, and yet he persisted. It is also of great importance that the children were girls of such a vulnerable age.
I have not been able to understand why it is that the applicant cannot remember any more details than he has provided to me when it is clear according to his own evidence that the offending went on over a period of some months. I saw no signs of the applicant having deliberately withheld information from the Tribunal, and yet this lack of information makes it very difficult for me to place the offence in any context. Without the context, it is extremely difficult for me to be absolutely satisfied that the same behaviour may not occur in the future, even though this behaviour has not occurred for 20 years and even though the applicant is in all other respects an upright and valued member of our community.
Should this application succeed, then this applicant would be able to work in all aspects of child-related work. There would be no means of warning any employer or voluntary organisation about the previous occurrence of these offences. The applicant would be entitled to work or volunteer with children in any capacity at all. This would include overnight access to children. There would be no way of warning a childcare provider or parents of the danger he may pose if his stress levels were not able to be controlled.
Had I been making this decision according to the principles set out in the Act relating to category one offences, there is no doubt in my mind that I would have affirmed the Secretary's decision. I would not have been able to be satisfied that the giving of the notice would not pose an unjustifiable risk to the safety of children.
However, this is a category 3 offence, and the principles which I must apply are much less onerous to an applicant. Standing in the shoes of the Secretary, The Working With Children Act tells me that I must give an assessment notice to this applicant unless I am satisfied in the particular circumstances, as I have set them out above, that it is appropriate to refuse to do so. Having weighed up all of the findings of fact which I have set out above, I am not satisfied that it is appropriate to prevent this applicant from engaging in child related work or voluntary activity.
Is it in the public interest for me to direct the Secretary to issue the assessment? Clearly there is a significant public interest in the protection of children from potential harm. There is also a public interest in the rehabilitation of offenders. Should I determine that the Secretary's decision be affirmed, this means that it is almost impossible for this applicant to ever escape from the burden of his past. This is a very harsh position to take. This man has undergone significant counselling at the time of the offence. He has also undergone over eight consecutive years under the care of a psychologist and that psychologist has given very favourable evidence in support of this application. He has committed no further offences, has led an exemplary life, has realised the enormity of his offending through bringing up young children of his own, and I formed the view that he gave evidence before me truthfully and was extremely contrite.
There is also a significant public interest in allowing this applicant to resume his community involvement with children's organisations, given his excellent record of past service.
Accepting as I do the genuineness of the evidence given by this applicant and his witnesses, and the completeness of his rehabilitation, so far as it can reasonably be ascertained, I conclude that there are no public interest considerations standing in the way of the grant of an assessment and that indeed it is in the public interest that the assessment be issued to him to allow him to resume his voluntary activity.
I so order.

BGD v Secretary to the Department of Justice

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

BGD v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 50 (8 January 2010)

Parties

Legislation Cited (1)