1. Under s 26A(3) of the WWC Act, this Tribunal must not make an order for the giving of an assessment notice on an application under subsection (1) unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to the factors set out in s 26A of the WWC Act, which I will now address in turn.

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

1. Given the length of time since the finding of guilt in this matter, the information provided by Victoria Police is limited. The Police Information Liaison Office report reads:

On 30/09/82, the eleven year old victim was dropped off by her parents at the applicant's address to be looked after. Whilst in attendance at the applicant's address, the applicant indecently assaulted her in the bathroom of his address while towelling her down after having been showered.

1. Although Mr Gibbons pleaded guilty to the offence, in his evidence before me he denied the essence of the charge. Mr Gibbons also denied that the offence took place at his own address. He said he was at the girl's home where he was babysitting her and her siblings. He denied entering the bathroom at all and said the child entered the loungeroom wearing her pyjama bottoms after washing herself. He said that he observed that the child was still wet on the top of her body so that he dried her back with a towel without touching her indecently in any way. Mr Gibbons said the girl's father was upset when he heard that Mr Gibbons dried the child's back and went to the police. Mr Gibbons said he signed a statement prepared by police without reading it and pleaded guilty so as to be able to get on with his life and avoid protracted court hearings.
2. This Tribunal cannot and must not look behind the findings of a Court. Mr Gibbons pleaded guilty to indecent assault. I considered it unlikely that Mr Gibbons would plead guilty to a charge of indecently assaulting a friend's child if he had not done so. I was surprised by his evidence that at the time he thought it was all a bit of a non-event for which he knew he would just receive a good behaviour bond. Mr Gibbons was not particularly young and/or vulnerable. He was working. He was married and was a father himself. I do not accept that he would not have taken the charges very seriously. The consequences of pleading guilty to so serious an offence must have been evident to him even in 1982.
3. The offending for which Mr Gibbons was found guilty is serious. It took place in the context of Mr Gibbons being in a position of trust whilst babysitting a child and her siblings. The child was seemingly concerned enough about his conduct to report the behaviour to a parent who was concerned enough to then report the matter to police.
4. The WWC Act is concerned with protecting children from physical and sexual harm. Any sexualised offending against a child is serious and directly relevant to child-related work.

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

1. A significant period of time has elapsed since Mr Gibbons was found guilty of the offence - some 37 years.
2. It is very significant that Mr Gibbons has not been found guilty of any further offending over this long period. Indeed, the period of time since the offending was a matter on which Dr Kennedy placed great emphasis in his assessment that Mr Gibbons posed a low risk of reoffending.
3. The passage of a significant period without further offending frequently provides this Tribunal with comfort that an individual will not reoffend.
4. However, in this case, the passage of time holds less comfort given that Mr Gibbons was, 10 years later in 1993, charged with further similar offences.
5. Under s 14(1)(d) of the WWC Act, matters which have been dealt with other than by way of a conviction or finding of guilt can be considered by the Tribunal and are classified as category C.
6. In QPS v Secretary to the Department of Justice and Community Safety [2019] VCAT 477 at [60], her Honour Judge Hampel, when hearing a category C application, said:

The starting point when considering what weight is to be given to the non-conviction charges is, at the risk of stating the obvious, that there is no conviction. The charges were dismissed. Generally, a person is entitled to the full benefit of an acquittal. Here, however, the statutory provision expressly displaces that entitlement.

1. In that matter after discussing the relevant charges, her Honour said at [67]-[68] (citations omitted):
   1. Since 2001, there have been significant changes in the way cases alleging sexual abuse are dealt with. They include arrangements for complainants to give evidence from a place other than the courtroom, away from the physical presence of an accused, greater judicial control over improper and harassing questioning, legal recognition of the irrelevance of evidence about a complainant's other sexual activity and limitations on the number of times a complainant can be required to give evidence, including by allowing for a recording of the complainant's evidence at the initial hearing to stand as their evidence at any subsequent hearing. There are mandatory directions applicable to magistrates and judges as fact finders as well as to juries, designed to dispel common misconceptions about sexual assault generally and child sexual assault in particular. They include directions that there is no typical way for a person to respond to sexual assault, that the absence of evidence of resistance, injury, forensic evidence or immediate complaint are common and that delay in disclosure and staged disclosure are common in cases of child sexual assault. These changes have been prompted by a legislative recognition that sexual assaults against women and children are prevalent, under-reported, often committed by persons known to the victim and are unlikely to leave physical signs.
   2. Although clearly, I cannot and do not give the allegations which gave rise to the charges which were found proven and then dismissed on appeal as much weight as could properly be given to them if the conviction stood, for these reasons, they are deserving of being given some weight.
2. I adopt those comments.
3. I turn then to a brief overview of the non-conviction charges.
4. On 1 April 1993 Mr Gibbons was discharged in the Geelong Magistrates' Court in relation to a charge of indecent assault. There was no police material about this charge available to the Tribunal. Mr Gibbons gave evidence that this pertained to a 15-year-old student who had cigarettes in her breast pocket and who objected to being told to remove them. He said the girl had made allegations against another teacher as well.
5. On 29 October 1993 Mr Gibbons was acquitted of two further charges of indecent assault at the Geelong County Court. The offences were alleged to have occurred in relation to two separate victims, both aged 12 in March 1992. Each complainant alleged that Mr Gibbons had lifted her up to look for missing items on top of a cabinet and, in doing so, slid his hands over her breasts. Mr Gibbons agreed he picked the girls up but denies any wrongdoing in doing so. This of course differs from the version of each of the girls in their respective statements.
6. The first complainant also said in her statement that she tried to kick Mr Gibbons to make him put her down.
7. The second complainant also said in her statement that Mr Gibbons looked down the back of her school shirt at the tag and told her what chest size she was.
8. On 9 November 1993 Mr Gibbons was acquitted of a further count of indecent assault at the Geelong County Court. This time the complainant was a 14-year-old student who alleged that Mr Gibbons asked her to enter a small storeroom. She said Mr Gibbons put his hand up her dress and when she pulled away, he grabbed her and again put his hand up her dress and moved his hand all over her body. She said that he said he was "just having a feel". When the pair were interrupted, he moved away. The complainant said Mr Gibbons later told her not to tell anybody about what had happened. She nevertheless told some friends and the matter was reported to police. Mr Gibbons gave evidence that another teacher witnessed that nothing occurred.
9. Mr Gibbons, when spoken to by police, made no comment in the record of interviews in relation to these matters.
10. In his evidence before me, Mr Gibbons said that he considered himself the victim of a bushfire effect that was occurring throughout the school at the time.
11. He totally denies any wrongdoing.
12. He said that "[d]uring this difficult time and afterwards, I was supported by both fellow teachers and other students". He emphasised that none of the charges were proven against him.
13. I am mindful that, even taking into account the further allegations, it has been 27 years since there has been any allegation of any description against Mr Gibbons.
14. I was also mindful that Mr Gibbons, given his regular involvement with children, would have had many opportunities over the years to act inappropriately and that nothing further has been reported for many years.

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and (d) the sentence imposed for the offence; and

1. Mr Gibbons was found guilty of the triggering offence. No conviction was recorded. He was placed on a $100 bond to be of good behaviour for 12 months.
2. The low sentence was arguably reflective of the times. The Courts and wider community may now view sexualised offending against a child more harshly. Certainly, for the purposes of the WWC Act with the paramount consideration being the protection of children from sexual and physical harm, any sexualised offending is of grave concern irrespective of the penalty imposed by the Court.
3. It is important to again note that no finding of guilt or conviction was recorded in relation to any of the other allegations made against Mr Gibbons. He was discharged or found not guilty of all the other charges.

(e) the ages of the applicant and of any victim at the time the applicant committed the offence; and

1. Mr Gibbons was aged 26 and the victim was aged 11 years. This is a significant age difference. Mr Gibbons by virtue of his age and the circumstances of his engagement with the child was in a position of trust which he breached.

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

(g) the applicant's behaviour since he committed the offence; and

1. On one analysis Mr Gibbons' life has been exemplary since (as it was before) he committed the triggering offence. I read several extremely positive character references and saw evidence of community awards that Mr Gibbons has obtained.
2. Mr Gibbons has been in constant employment throughout his life.
3. He was employed for many years in both secondary and TAFE colleges. During those years he engaged with students of all ages as a teacher and sports camp and tour coordinator. He was a registered runner with four clubs (at different times) competing in athletic and cross-country events. He was licensed to drive buses and, on many occasions, took students and teachers to camps, activities and excursions.
4. Following a change of career, Mr Gibbons has undertaken employment in the health industry where he has been employed for many years as a surgical theatre technician. His present role involves cleaning and setting up operating theatres for various surgeries. He is well regarded in his chosen field. There have been no incidents of concern.
5. Mr Gibbons has also been heavily involved within the community.
6. He was actively involved with the scout movement for many years - fundraising and acting as President of a Scout Parent Committee. He was a bandmaster and contributed to various fundraising events. He has housed overseas scouts. He was clearly a valued member of the scouting movement over a period of some 21 years. He has received medals from the Scouts Australia Association. He and his current wife both received an Outstanding Service Award to the Association from the then Governor General and Chief Scout of Australia, Quentin Bryce. He was thereafter also involved heavily with the venturer movement.
7. Mr Gibbons is a member of his local church in which he volunteers regularly. He was also a member of a church musical band which included children of all ages.
8. For a period of 15 years, he was a central football umpire, fielding matches with teenagers as boundary umpires and players.
9. Mr Gibbons has three children of his own and grandchildren. He gave evidence that although he currently does not see a great deal of any, they all lead very busy and successful lives. He also has three stepchildren.
10. This is all positive and a credit to Mr Gibbons.
11. However, as already discussed, after the triggering offences, Mr Gibbons was charged with four further counts of indecent assault. Concerningly those charges were of a similar character, albeit in a different context to the triggering offence.
12. The Secretary submitted that although the evidence did not, for whatever reason, meet the high threshold of beyond reasonable doubt, I should be concerned that serious allegations were made against Mr Gibbons which had common characteristics to those of the triggering offence of inappropriate touching in opportunistic circumstances.
13. The Secretary submitted that this raised concerns that Mr Gibbons may be attracted to young girls and be inclined to act on that attraction.
14. Mr Gibbons rejected this. He gave evidence that at the time, the matters were poorly investigated. He considered that the school almost invited multiple complaints after the first child made a complaint against him. He felt he was the victim of a fantasy/bushfire effect.
15. In the context of this application, it is nevertheless very concerning that several different complainants saw fit to accuse Mr Gibbons of inappropriate sexualised behaviour. It is concerning that the allegations pertained to four discrete occasions namely:

(a) the original charges relating to the 11-year-old girl (1982);

(b) the charges relating to the year 10 student (the breast pocket incident) (date uncertain);

(c) the charges relating to picking up and touching the breasts of a further two students (March 1992 - two alleged victims on the same day but different times of day); and

(d) the charges relating to the storeroom incident (July 1992 - one alleged victim).

1. I make the observation that it is rare for any individual to be repeatedly accused by various children of acting indecently towards them. Mr Gibbons would have been on very high notice about the need to conduct himself with great care around children given the finding of guilt in 1982. Four further young complainants nevertheless again reported his behaviour. Whether this was a bushfire response or not, the fact of the complaints remains. The words alleged to have been spoken by him to at least one complainant if accepted could not have amounted to a simple misunderstanding by her of the conduct taking place.
2. I was concerned that Mr Gibbons had not reflected at all on whether his own conduct may have contributed to the feelings of concern raised by the various children. He did not seem to have given any consideration at all as to why five separate girls would have got things so horribly wrong or reflected on whether his attitudes/conduct may have played any part in that. Rather, he feels victimised.
3. He gave evidence that he does not understand why his application for an assessment notice was refused based on old offences and statements from a trial that a jury found him not guilty of some 26 years ago.

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

1. At the first hearing the Secretary emphasised that I had not been provided with any psychological risk assessment. At the conclusion of the hearing Mr Gibbons indicated that he would like to have the opportunity to present such evidence.
2. I accordingly adjourned the matter to allow Mr Gibbons to obtain the report.
3. When the hearing resumed, I heard evidence from Dr Kennedy. In his consultation with Mr Gibbons, Dr Kennedy utilised the following psychological instruments:

(a) Structured Clinical Interview for DSM-5 (modified) which is essentially a tool for assessment of the existence of psychological or personality disorders. Dr Kennedy found nothing of concern. He gave evidence that the presence or otherwise of psychological conditions is an important consideration in the risk assessment for further sexual offending because, in general, repeat offenders in this area have personality/clinical disorders of some type. He considered the absence of a psychological disorder to be an important part of his findings that Mr Gibbons posed a low risk of reoffending.

(b) Mental Status Examination (MSE): The MSE is an observational recording for how an individual presents (behaviour, speech, thought processes, and appearance/cognition). The examination looks for clinical disorders in a systematised manner. Dr Kennedy found nothing remarkable.

(c) Weschler Abbreviated Scale of Intelligence - Second Edition (WASI-II): The WASI-II is a further discrete cognitive screening assessment tool which allows a determination to be made as to the cognitive profile of intelligence and look to whether there are any specific problems. Once again, there were none identified by Dr Kennedy.

(d) Risk for Sexual Violence Protocol (RSVP): Utilising the RSVP, Dr Kennedy estimated Mr Gibbons' risk for psychosexual reoffending as Low.

1. Whilst Dr Kennedy accepted that if the unproven allegations were taken into account, they could show a chronicity and escalation of sexual violence and a similarity (including physical and possibly psychological coercion), he gave evidence that the RSVP does not allow non-conviction matters to be taken into account unless a pattern of behaviour is clearly established. He said in this case it was not. A relevant pattern of behaviour had not been established because it would require evidence of multiple allegations or a constant or regular pattern of allegations or concerns. In circumstances where nothing further had been alleged against Mr Gibbons for many years, he could not find this type of chronic behaviour. Even if there was a pattern of behaviour, as of 1993 there has been nothing.
2. Dr Kennedy emphasised that it was not for him as an assessor to regard an individual as guilty of an offence which had not been proven against the individual. He emphasised that the low risk assessment gives consideration across 22 risk factors and includes matters such as time since latest allegations to reach the overall assessment of low risk.
3. Dr Kennedy emphasised that Mr Gibbons presented with nil identified attitudes that support or condone sexual violence and/or problems with self-awareness.
4. Although Mr Gibbons pleaded guilty to the 1982 offence, in his evidence before me he essentially denied the criminality of his conduct. Dr Kennedy gave evidence that he did not re-examine the truth or otherwise of what he was told by Mr Gibbons particularly in circumstances where Mr Gibbons did not deny the event but gave a different contextual explanation for it.
5. He further formed the opinion that it was unlikely that if an individual had complex issues that he would be able to engage in a responsible workplace role for a lengthy period without exposing those problematic/concerning behaviours.
6. Dr Kennedy stressed that he placed great weight in his report on the period that has elapsed during which Mr Gibbons has not demonstrated any enduring pattern of behaviour.
7. There is no doubt that for many years Mr Gibbons has worked with children without incident. He has trained them in running and sports fitness/cross-country. He has been a bus driver for students attending sporting events and camps. He has taken students camping. He has been a trade teacher. He has umpired children's sports. He was heavily involved with his own children in the scouting movement for many years. He was a badge master and president of a group. He was a coordinator for fundraising for jamborees. He has housed scouts at his own home. He has been a member of the church musical band and performed at many events with children. The list goes on.
8. In this context, in his evidence Dr Kennedy emphasised that even making an assumption of guilt, there was no ongoing concerning behaviour since the 1993 allegations.
9. Ultimately, Dr Kennedy considered that the long period without any suggestion of further offending provides confidence to his assessment. He identified time as an important issue because in his opinion, if there was no further evidence of repeat behaviour over many years, the likelihood of a spontaneous eruption of the behaviour would be very low. He considered that Mr Gibbons would be unlikely to revert to such behaviour or reoffend.
10. I largely accept the opinion of Dr Kennedy and note the length of time without further incident. I also note however that Mr Gibbons gave evidence that as he moves toward retirement, he has not been involved in working with children at all for some years.
11. Weighing all of these factors, I cautiously accept that the likelihood of future threat to a child caused by Mr Gibbons probably sits toward the lower end. I nevertheless do so with a degree of caution because I am mindful that the psychological risk assessment tools are unable (albeit for fully explicable reasons) to allow consideration of the further allegations.

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

1. I read several positive character references. I also accept that Mr Gibbons has the support of his current wife.

(j) any other matter that VCAT considers relevant to the application.

1. Mr Gibbons emphasised that he does not seek children out. He gave evidence that his employment does however sometimes require him to engage with children before an operation.

Conclusion in relation to s 26A(3) of the WWC Act

1. I must not grant an assessment notice unless satisfied that giving the notice would not pose an unjustifiable risk to the safety of children having regard to the factors set out in s 26A of the WWC Act.
2. I am ever mindful of the risk assessment of Dr Kennedy that it is unlikely given the passage of time that Mr Gibbons will reoffend, however this is not the only consideration or sole determinant when determining whether the giving of the notice would or would not pose an unjustifiable risk to the safety of children. Dr Kennedy was only able to place very limited weight on the unsubstantiated allegations in undertaking his risk assessment.
3. In considering this matter I asked myself the rhetorical question whether, even if a person can demonstrate a negligible threat to a child, and there has been a considerable passage of time since any allegations were made, it is a justifiable risk to permit an individual who has been repeatedly accused of sexual offences against different children to work with children.
4. I was ultimately not satisfied that it was a justifiable risk.
5. Non-conviction matters raise real complexities in the context of the WWC Act where the paramount consideration is the protection of children from sexual and physical harm.
6. Because of the number of similar allegations from different complainants that have been levelled against Mr Gibbons over the years, I am unable to be confidently satisfied that giving the notice would not pose an unjustifiable risk to be the safety of children having regard to the factors set out in s 26A(3) of the WWC Act. For whatever reason, multiple children have made statements or considered themselves to have been sexually violated by Mr Gibbons on different occasions.
7. I have great uncertainty as to whether Mr Gibbons has himself reflected on how/why this occurred.

SECTION 24A(4) OF THE WWC ACT - THE REASONABLE PERSON TEST

1. Under s 26A(4) of the WWC Act, for the purposes of subsection (3), in satisfying myself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, I must also be satisfied that:

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

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

1. This test is a separate and distinct test from the "unjustifiable risk test" set out in s 26A(3) of the WWC Act. There would of course be no point in the existence of the reasonable person test if it were the same test or analysis. I am further not satisfied that the "reasonable person test" is satisfied by Mr Gibbons.
2. The reasonable person test is an objective test. The reasonable person is taken to have knowledge of all the facts and surrounding circumstances.
3. In JGF v Secretary to the Department of Justice and Regulation [2013] VCAT 1728, Vice President Judge Macnamara said at [25]:

A reasonable person would be acquainted with the truism I mentioned a few moments ago that there are no risk free encounters in human life. The reasonable person would, in considering the situation of JGF, wish to acquaint himself or herself with the full range of material that has been placed before me including the character evidence, the history of his 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.

1. There is no doubt that Mr Gibbons has since 1993 frequently worked (at least voluntarily) in areas of child-related work without incident/allegation. The reasonable person must take this into account as they would the conclusions of low risk posed by Mr Gibbons as reached by Dr Kennedy. The reasonable person would be mindful that there are also no issues with respect to alcohol or drug addiction or mental health.
2. I consider however that the reasonable person would nevertheless feel great unease about allowing Mr Gibbons to have direct contact with his or her child, particularly a daughter, whilst he was engaged in any type of child-related work.
3. A reasonable person may query why Mr Gibbons would plead guilty to an offence he had not committed.
4. This may tarnish the reasonable person's perception of the weight they could give to Mr Gibbons' denials of other alleged wrongdoing.
5. In these circumstances the reasonable person may be uncertain as to whether the proven charge really was an isolated incident.
6. The reasonable parent may not accept Mr Gibbons' explanations/thoughts as to why various young girls would be prepared to make allegations against him for absolutely no reason.
7. The reasonable person/parent would be concerned that Mr Gibbons has not reflected on whether it was his conduct or behaviour that may have led them to feel that they had been violated or whether he could have acted differently or avoided such confusion.
8. The reasonable parent may be concerned that the focus of Mr Gibbons is very much on the effect the allegations has had on him personally and his standing in the community.
9. A reasonable person would be concerned about the repetitive nature of very similar allegations.
10. The reasonable person would not necessarily be comforted by a risk assessment tool which (albeit for good reason) requires little or no weight to be placed on non-conviction charges.
11. Ultimately, I consider that the reasonable person when considering whether to allow Mr Gibbons to work with their own child, particularly a daughter, would be concerned that several separate young girls had made allegations of sexualised conduct against Mr Gibbons. The reasonable person, even accepting that there were some arguably connected incidents, would remain concerned.
12. The reasonable person would not be comforted by the passage of time and may query whether he had reflected at all on any of his conduct.
13. I am not satisfied that a reasonable person would allow his or her child to have direct contact with Mr Gibbons while Mr Gibbons was engaged in any type of child-related work.
14. In light of my findings under s 26A(3) of the WWC Act, I am also not satisfied that Mr Gibbons' engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

SECTION 26A(5) OF THE WWC ACT - THE PUBLIC INTEREST TEST

1. If, in accordance with s 26A(5), I am satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, I may by order direct the Secretary to give an assessment notice to Mr Gibbons if satisfied that, in all the circumstances, it is in the public interest to do so.
2. I am not so satisfied.
3. I accept that in order to continue in his role as a theatre technician, Mr Gibbons may require an assessment notice under the WWC Act.
4. Nevertheless, I agree with the submissions of the Secretary that the public interest test requires organisations who provide services to children to have confidence that the Working with Children Check is vigilant and that the paramount consideration under the WWC Act is and must be the protection of children from sexual and physical harm.

THE OPEN COURTS ACT 2013 (VIC) ("THE OCA")

1. Mr Gibbons made a request for his name to be suppressed in order to avoid embarrassment to his employer and his own adult children (and possibly grandchildren). I have a degree of sympathy with Mr Gibbons not wishing to have matters which were finalised many years ago publicly re-aired. Nevertheless, Mr Gibbons did not provide a sufficient basis for making the order sought. I am not satisfied given the primacy of the principle of open justice and the free communication and disclosure of information referred to in s 4(a) of the OCA that the circumstances of this case make it necessary to override or displace those principles. Although the offending related to sexual offending against people who were children at the time, which will sometimes necessitate the making of orders in order to protect their privacy, I am not persuaded that identification of Mr Gibbons would lead to the identification of specific (alleged) victims or lead to an invasion of their privacy in the circumstances of this case.
2. I will however make orders under s 146 of the Victorian Civil and Administrative Tribunal Act 1998 and close the Tribunal file. I do so in order that any material contained within the file that may otherwise lead to the identity of the complainants in this matter cannot be accessed by persons other than the parties. I make the following orders.

1. The application for an assessment notice made by the applicant is refused.
2. The application made by the applicant for orders under the Open Courts Act 2013 is refused.
3. Under s 146(4)(b) of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal directs that no person other than a party to the proceedings may inspect the Tribunal file.

[1] Following amendments to the WWC Act that do not affect this application, even this Tribunal is now unable to do so except in very limited circumstances.