Gilbert v Secretary to the Department of Government Services (Review and Regulation) [2024] VCAT 1188

The respondent's decision of 18 June 2024, to revoke the applicant's WWC clearance and to issue him with a WWC exclusion, is affirmed.

1. By application dated 26 August 2024, Mr Ross Gilbert seeks review of the decision of the Secretary to the Department of Government Services ('Secretary') - made under the Worker Screening Act 2020 (Vic) ('WS Act') - to revoke his Working with Children ('WWC') clearance and issue him with a WWC exclusion ('WWC Decision').
2. The WWC Decision was made following a re-assessment undertaken by the Secretary after being notified by Victoria Police that Mr Gilbert had been found guilty of certain charges, including a 'threat to inflict serious injury' against his then partner, in October 2023.
3. Mr Gilbert seeks to overturn the WWC Decision to enable his company to continue providing pest control services in schools.
4. While the provision of such services is unlikely to represent 'child-related work', in his evidence Mr Gilbert explained that his business has been removed from 'AIMS', the system used by government schools to 'plan, manage and acquit school asset activities'.[1] He believes this is a result of being issued with the WWC exclusion (and despite the fact that he now focuses on sales and administration, while his employees provide the relevant pest services).
5. There is no financial material before the Tribunal. However, Mr Gilbert gave evidence that, since being removed from AIMS, he has lost contracts for services worth a total of $30,000. While the business has been able to continue providing pest control services to Catholic and independent schools (and in other commercial settings), Mr Gilbert believes that this is not sustainable and may lead to the business having to make one or more of its employees[2] redundant.
6. As explained in more detail below:
   • the Tribunal must determine that it is appropriate to refuse a WWC clearance unless satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children;
   • while the relevant offending did not involve violence against children, it did establish an inability on Mr Gilbert's part to regulate his behaviour which I accept poses the potential for harm to children;
   • while there is evidence from a psychologist that Mr Gilbert poses a 'low risk' of violent reoffending, the report indicates there is still a 17% chance that he may reoffend violently within 7 years and that his risk of violence may be heightened in the context of any future 'relationship instability'; and
   • while Mr Gilbert has shown some remorse and insight, and commenced a 24 week Men's Behavioural Change Program ('MBCP') to address the causes of his actions, he remains subject to a community corrections order and a family violence intervention order, and will not complete the MBCP until some time in 2025.
7. Having regard to the relevant considerations, the Tribunal is not satisfied that, at this time, Mr Gilbert does not pose an unjustifiable risk to the safety of children. For these reasons, the WWC Decision is affirmed.

1. The purposes of the WS Act include to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children.[3] A person who passes that screening may be granted a WWC clearance.
2. However, the Secretary is obliged to re-assess a person's eligibility to hold a WWC clearance in certain circumstances, including when notified by the Chief Commissioner of Police of a charge for a Category B offence or as to how the charge has been finally dealt with.[4] A finding of guilt in respect of certain charges, including specified violence offences,[5] leads to an automatic suspension of a person's WWC clearance pending that re-assessment.[6]
3. Further, under section 85 of the WS Act, in the case of a 'WWC category B re-assessment', the Secretary must revoke a WWC clearance unless satisfied that the person holding the WWC clearance would not pose an unjustifiable risk to the safety of children ('Unjustifiable Risk Test').
4. In assessing that risk, the Secretary must have regard the following factors ('Relevant Factors'):
   • the nature and gravity of the offence and its relevance to child-related work;
   • the period of time since the offence was committed;
   • whether the person was found guilty or convicted of the offence and the sentence imposed;
   • the ages of the applicant and the victim of the offence;
   • whether the offence has been decriminalised;
   • the person's behaviour since the offending;
   • the likelihood that the person poses a future threat to a child by holding the WWC clearance;
   • any information given by the person in, or in relation to, the re-assessment; and
   • any other relevant matters.
5. The Secretary must also be satisfied that:
   • a reasonable person would allow their child to have direct contact with the person while the person was engaged in any type of child-related work ('Reasonable Person Test');[7] and
   • the person's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children ('Any Child-Related Work Test').[8]
6. In undertaking the re-assessment, the Secretary (and VCAT, on review) must have regard to 'the protection of children from sexual or physical harm' as the paramount consideration.[9]
7. A decision by the Secretary to revoke a WWC clearance on a WWC category B re-assessment is reviewable by VCAT.[10] VCAT must determine it is appropriate to refuse the WWC clearance unless the Unjustifiable Risk Test is satisfied (having regard to the Relevant Factors).[11] Further, the Tribunal must be satisfied that the Reasonable Person Test and the Any Child-Related Work Tests are satisfied.[12]
8. Even if the Tribunal is satisfied that giving a WWC clearance would not pose an unjustifiable risk to the safety of children, it must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance ('Public Interest Test').[13]

Relationship between the paramount consideration and the 'right to work'

1. A WWC clearance is required to engage in 'child-related work', which is defined in section 7 of the WS Act as work at or for a specified service, body or place (including a school) that 'usually involves direct contact with children'.
2. Of course, not all work done at or for a school (or other specified service, body or place) will usually involve direct contact with children. However, in some environments - including, of relevance to the present context, in a government school environment - a WWC clearance may be required even if a person does not engage in child-related work: see EQK v Secretary to the Department of Government Services ('EQK').[14]
3. In ZZ v Secretary, Department of Justice ('ZZ'),[15] Bell J suggested that the previous WWC regime[16] implicitly recognised the importance of work to individuals and families.[17] That decision was prior to the statutory enactment of the paramount consideration.[18] However, in PQR v Secretary, Department of Justice and Regulation (No 2) ('PQR') - a decision that followed the introduction of the paramount consideration - Bell J observed that the 'various elements of the screening process [under the previous regime] represent the balance that was carefully struck by the legislature between these two competing rights' (i.e. between the protection of children from harm and a person's right to work).[19]
4. They are not, however, equal rights. As Garde J observed in Secretary to the Department of Justice & Regulation v McIntyre ('McIntyre'), the paramount consideration 'expressly operates to prevail over any and all other considerations, specifically including an individual's right to work'.[20]
5. Nevertheless, the right to work remains a relevant consideration to the extent that it 'bear[s] on the assessment of whether an identified risk is or is not unjustifiable' and whether 'it is in the public interest to direct that a notice is given': Secretary to the Department of Justice and Regulation v VTN ('VTN').[21]
6. In McIntyre, Garde J concluded that, in essence, the paramount consideration 'means that after considering all of the relevant matters, the risk to children posed by the applicant as assessed by the Tribunal or Secretary must be found to be negligible or nil'.[22] That is to say, 'any higher assessment of the level of risk to children will offend the paramount consideration and will be unjustifiable'.[23]

Relationship between family violence and risk of physical harm to children

1. There may be a direct or indirect relationship between family violence and the risk of physical harm to children.
2. An example is where the 'nature of the acts shows [an] applicant engaged in serious violence in response to a somewhat trivial complaint' in the domestic context, and aggravated when witnessed by a child.[24]
3. In a case where there is 'no immediate or obvious current risk to children', there may nevertheless be a 'consequent[ial] risk' if an applicant has 'repeatedly committed family violence-related offences', 'repeatedly breached lawful restrictions imposed' and may 'return to poor and dangerous decision making in future'.[25]
4. Even where the risk of causing intentional harm to a child can be discounted, this does not mean that VCAT can safely conclude that the 'risk of harm to others, including a child who is in [an applicant's] orbit, is negligible, not to mention nil'.[26]
5. Similarly in EDX v Secretary to the Department of Justice and Community Safety ('EDX'),[27] Deputy President Proctor observed that breaches of intervention orders (involving 'words, not conduct') that caused distress to a former partner and children was 'relevant to child-related work' and, although it 'did not directly impact children [in] the work environment, significant questions must be asked as to [the applicant's] impulse control in the work environment'.[28]

1. In the present case, Mr Gilbert remains subject to the orders made by the Magistrates' Court of Victoria in April 2024 (see [41]). I granted the parties an opportunity to file further submissions as to the relevance or otherwise of this circumstance.
2. Mr Gilbert filed his supplementary submissions on 22 November 2024 ('SSoA'), which referred to two Victorian cases - NJL v Secretary to the Department of Justice and Regulation ('NJL') and VEE v Secretary to the Department of Government Services ('VEE')[29] - and a number of decisions from other jurisdictions. However, the Victorian cases focused on the connection between the index offending and child-related work rather than the relevance of remaining under conviction. While some of the interstate decisions cited by Mr Gilbert relate to circumstances where a person remained subject to a good behaviour bond (e.g. GGM v Children's Guardian ('GGM')),[30] I accept the Secretary's submission that '[l]ooking to other jurisdictions is of little assistance where the legislation is not replicated'.[31]
3. More helpfully, the Secretary drew my attention to the Tribunal's decision in Walker v Secretary to the Department of Justice and Community Safety ('Walker').[32] In that case, the applicant was still subject to a community corrections order. Senior Member Smithers observed that the fact that the 'criminal sentence is still on foot' was 'one relevant factor', although it is 'not determinative'.[33]
4. In CGW v Secretary to the Department of Justice and Regulation,[34] Judge Jenkins (as Acting President) observed that '[m]aking an application for an Assessment Notice [now a WWC clearance] while still subject to a Sentencing Order is a strong indicator that an application is made prematurely'.[35]
5. On the other hand, in EDX, Deputy President Proctor did not accept Judge Jenkin's decision (or the case she referenced) as 'persuasive' and granted a WWC clearance to an applicant who was subject to a community corrections order yet to be discharged.[36] The Tribunal highlighted that the offending was 'toward an adult, not a child victim', there was persuasive evidence 'as to his progressive rehabilitation', and that the applicant 'continues to perform well in the work environment', including with respect to providing naturopathy services to 'all his patients including children'.[37] While there were some issues about the applicant's attitude and insight, Proctor DP was persuaded by his evidence, concluding that his ongoing 'compliance with the unpaid community work requirement is a matter for the Court'.[38]
6. Similarly, in Akoka v Secretary to the Department of Justice and Community Safety,[39] the then VCAT President (Quigley J) observed that, while it is 'unusual' to seek a positive assessment notice while still subject to a sentencing order, this is 'not a bar to a positive assessment notice', particularly where the applicant is 'an unusually dedicated and positive prospect of a reformed character'.[40]

Mr Gilbert, his criminal history and post-conviction rehabilitation

1. Mr Gilbert is 41 years' old.
2. Between the ages of 17 and 29, Mr Gilbert committed, and was subsequently found guilty of, a range of violent offences in both Victoria and Queensland. The National Criminal History Check includes the following findings:[41]
   • In 2001, 'recklessly cause injury' and 'unlawful assault' (fined $600, without conviction).
   • In 2005, 'assault police' (community-based order for nine months, without conviction).
   • In 2014, 'recklessly cause injury' (fined $2000, without conviction).
3. There is then a hiatus until April 2024, when Mr Gilbert was found guilty of the following charges:[42]
   • Charge 1: Threat to inflict serious injury.
   • Charge 2: Unlawful assault.
   • Charge 5: Unlawful assault.
   • Charge 6: Throw missile to injure/danger person.
4. The informant's statement provides the following description of the events to which the charges relate:[43]

On Tuesday the 24th of October 2023, at approximately 7:45pm, the victim [i.e. Mr Gilbert's former partner] .... and [Mr Gilbert] were in the kitchen having an argument over [the victim] asking [Mr Gilbert] if he needed help with his business. [Mr Gilbert] began verbally abusing [the victim] by calling her "stupid" and "dumb". During the argument [Mr Gilbert] was holding a glass jar and threatened to smash the jar over [the victim's] head before grabbing [the victim] and placing her in to a head-lock for approximately 30 seconds before letting go (Charge 1, 2).

[The victim] was fearful of the accused following through with the action of smashing the glass jar over her head and she exited the kitchen to defuse the situation. [Mr Gilbert] continued the abusive behaviour towards [the victim] for a short time later.

On Wednesday the 25th of October 2023, at approximately 3:30am, [the victim] and [Mr Gilbert] were in bed when she was woken by the [Mr Gilbert] sighing before he got out of bed. [The victim] asked the [Mr Gilbert] what was wrong [to] which he did not reply [and the victim] asked the question again where [Mr Gilbert] said it was a "dumb question" and told [the victim] to "shut the fuck up". [The victim] called [Mr Gilbert] out on his behaviour and he would not admit to it. Shortly later, [Mr Gilbert] returned to the bed and began using his laptop.

[Mr Gilbert] continued a short time later with his abusive behaviour towards [the victim] where she called him out for his behaviour again. ... [The victim] tried to grab her phone before running out of the bedroom to the lounge room.

Mr Gilbert grabbed his laptop and threw it at [the victim] while she sat on the couch hitting her left arm causing bruising. [Mr Gilbert] approached [the victim] before grabbing her hair and punching her in the face once while throwing her head around. (Charge 3, 4, 5 6).

[The victim] retreated to the rear bedroom, where [Mr Gilbert] followed and punched [the victim] three times in the body. [The victim] curled up on the bed where [Mr Gilbert] kicked [the victim] three - four times in the stomach and back. [Mr Gilbert] grabbed [the victim's] belongings and began throwing them at her. Telling her she had till 12pm to leave. (Charge 3, 4, 5)

On Wednesday the 25th October 2023, [the victim] attended the Geelong Police Station and reported the incident ... [The victim] had sustained minor swelling to her left facial check bone and bruising on her left arm from where [Mr Gilbert] had thrown the laptop at her....

1. When initially interviewed, Mr Gilbert denied all of the charges, other than confirming and making 'admissions that the bruising on [the victim's] right arm was due to him throwing the laptop at her'.[44] He also agreed that he knew 'she was fearful', in fact 'she was terrified'.[45]
2. Mr Gilbert was questioned about the criminal charges when giving his evidence before the Tribunal. Mr Gilbert admitted:
   • He verbally abused the victim in the kitchen on 24 October 2023 (although he said there was 'context', being the volatility of the relationship).
   • He threatened to throw a glass jar at the victim.
   • The victim had left the kitchen, but the argument continued.
   • After they had woken up overnight, the argument started again (although he could not say why).
   • The victim called him out on his behaviour, which he did not admit to, and he came back to the bedroom with his computer but continued with his abusive behaviour.
   • After the victim went to the lounge room, he threw his laptop at her.
   • He grabbed her belongings and told her she had to leave.
3. Mr Gilbert denied that:
   • He had placed the victim in a head-lock on 24 October 2023, explaining that he pleaded guilty based on advice from his lawyer that it was a 'good deal', but felt that the charges 'all blended into one' and he did not really know what he was pleading guilty to.
   • He punched the victim in the face, or punched and kicked her in the body, stomach or back, on 24 October 2023.
4. Further, while Mr Gilbert accepted that the victim had a bruise on her arm from the thrown laptop, he denied any swelling on her face (at the time or in the photo the police showed him).
5. The charges came before the Magistrates' Court of Victoria at Geelong on 22 April 2024 where Mr Gilbert:[46]
   • pleaded guilty to, and was convicted on, charges 1, 2, 5 and 6; and
   • was sentenced to a community correction order for a period of 18 months (i.e. to 22 October 2025) requiring him to:
     • - perform 100 hours of community service;
     • - be supervised by the Secretary; and
     • - undergo an offending behaviour program as directed (being the MBCP) for 50 hours.
6. In the course of the re-assessment, Mr Gilbert was asked to comment on his current attitude towards his offences. He stated that he 'accept[ed]' what he had done, and despite his frustration at himself for allowing it to happen, 'take[s] responsibility'.[47] He goes on to suggest that there are times when he feels that 'this bump in [the] road is exactly what [he] needed'. In cross-examination, he explained that he had developed an ego and become 'quite selfish' because his business was doing well and that, as a result of these events, he had been 'pulled back' and now 'realised how quickly life can change'.
7. In cross-examination, Mr Gilbert said that, while he is 'not proud' of what he did, and admits it was wrong, he did not accept the proposition put by Ms Tatas (counsel for the Secretary) that, at its root, the recent offending demonstrated an inability to regulate his emotions. To the contrary, he suggests that he can regulate himself. However, he was unable to explain why he 'acted out' given the victim did not resort to any physical violence.
8. In response to questioning, Mr Gilbert accepted that the victim would have felt 'hurt, abandoned and scared' at the time of the events, although he believes she has now 'moved on and is doing well', noting that he had spoken to her (once he was allowed to do so) and had 'tried to make her life as easy as possible'. He accepted that the MBCP was yet to cover the ongoing impacts for victims of domestic violence and that he could not comment if there had been such impacts for the victim.
9. The Tribunal Book includes records relating to Mr Gilbert's supervision by the Secretary as part of his sentence. The first case note, from an induction appointment on 23 April 2024,[48] notes that he 'appeared disinterested in conversation and at times presented as hostile toward [the case manager]'. There was also discussion around Mr Gilbert's request to travel (as he had a pre-booked holiday to Peru). When the case manager advised that he needed approval to travel and told him about the consequences of travelling without such approval, he is reported to have 'refused to listen and noted that he did not care'. He also referred to the court assessor that recommended him for the community correction order as a 'loser'. When later told that his request for permission to travel had been denied, he 'verbally advised he will still travel overseas regardless'.[49]
10. In a more recent report, from August 2024, his case manager reports that:[50]

Throughout appointments, Ross has appeared with a high level of minimisation, justification and victim blaming attitudes around his offending. He has admitted to physically hurting his partner. However, has made comments around his offending 'not being that bad'.

1. Mr Gilbert denies that he ever said that the offending was 'not that bad', suggesting it was a 'horrible thing'. He accepted that he was initially reluctant to undertake the MBCP. This was because he believed it would involve a discussion between '15 guys that beat their wives' and he did not think that was him, as he regards the events with his then partner in 2023 as being 'an isolated incident'.
2. When asked whether he had taken any other 'proactive steps to manage his anger' (i.e. apart from attending the MBCP), Mr Gilbert said he has not because he does not feel he has an 'ongoing anger problem'. However, he said that he is now involved with a motor bike group and is trying to find a business mentor.
3. Mr Gilbert suggested that, through participating in the MBCP, he had learnt to be more open with people and that he needs to be better in the way that he deals with stressors in life. In response to a question from me, Mr Gilbert indicated that he was not presently in a relationship.

1. The Tribunal Book includes an independent psychological opinion and report from Ms Clare Fercher-Barrett dated 27 October 2024 ('Psychologist's Opinion').[51] Although Ms Fercher-Barrett is not an accredited forensic psychologist, her evidence was that, since 2020, her practice has exclusively involved the provision of forensic services.
2. In her report, Ms Fercher-Barrett opines:[52]

Mr Gilbert is a 41 year old pest controller whose most recent offence occurred in October 2023, prior to which he had demonstrated a considerable period of desistance. The most recent offending occurred against a former partner in the context of their volatile relationship which has since ended.

The 2023 offending seems to have been rather out of character given there is no previous history of domestic violence and Mr Gilbert had maintained an extended period of stability in the years prior. He is currently engaged in a men's behaviour change program to address his domestic violence offending.

Having given consideration to the clinical, psychometric, and available collateral information the writer has formed the view that Mr Gilbert's risk to children is low. This low risk level does not diminish the seriousness of his offending conduct and the importance of relevant rehabilitative intervention to improve his insight and ensure he is better equipped to navigate difficult interpersonal dynamics in the future. However it seems unlikely that the situational factors which were present at the time of the offending will be present in the context of his work as a commercial pest controller. He placed a high emphasis on the importance of running a successful business and impressed as someone who is ambitious in this context.

1. Ms Fercher-Barrett maintained that opinion in her evidence before the Tribunal, noting the 'time elapsed' from the earlier period of violent offending. In cross-examination she suggested that the one-hour teleconference she held with Mr Gilbert was sufficient to conduct her assessment and identify if he was engaging in 'impression management'. She also differentiated his 'poor response' to the volatile relationship in 2023 from his (also poor response involving) binge drinking following an earlier relationship breakdown in 2010.
2. In terms of psychometric testing, Ms Fercher-Barrett assessed Mr Gilbert's 'susceptibility to reoffending' applying the Violence Risk Appraisal Guide ('VRAG'), Historical, Clinical and Risk Management Violence Assessment Scheme - Version 3 ('HCR-20v3') and the Psychopathy Checklist - Revised ('PCL-R') with the following results:
   • VRAG: score of -7 placing Mr Gilbert 'at the lowest end of the Medium risk range for future violent offences'. It is noted that '[a]pproximately 17% of offenders with this score in the normative sample reoffended violently within an average of 7 years and 31% after ten years'.
   • HCR-20v3: Mr Gilbert 'generally presents a low risk for violent recidivism' , with 'no evidence of major psychopathology' and noting there is 'no evidence to suggest previous issues with domestic violence and he is no longer in a relationship with the complainant'. The risk of violence 'would be heightened in the context of relationship instability and or if he was under the disinhibiting effects of alcohol or other drugs'.
   • PCL-R: Mr Gilbert obtained a 'total raw score of 8 which equates to a percentile rank (PR) of 6.0' which '[q]ualitatively ... can be conceptualised as a 'low' score and is reflective of a low risk for engaging in general antisocial conduct'. There is 'no evidence of elevated psychopathic traits or entrenched antisocial values'.
3. In cross-examination, Ms Fercher-Barrett was asked for comment on the Corrections Victoria assessment that, as of 22 April 2024, Mr Gilbert 'risk/need profile' was medium.[53] She indicated that, without reading the document, she was unable to say whether she agreed or disagreed with that assessment.
4. In response to questions on her observation that Mr Gilbert 'exhibited limited insight about the 2023 offending',[54] Ms Fercher-Barrett agreed that the lack of insight was 'concerning', although it was also 'not unusual'. Consistent with her report, she suggested that the purpose of the MBCP was to 'develop' that insight and 'ameliorate the risk of future domestic violence'.[55]
5. Ms Fercher-Barrett also agreed that, at least 'at that particular time and in that context', Mr Gilbert's actions in October 2023 evidenced an inability to regulate his emotions. However, she suggested that there is no evidence of an inability to do so in other environments, noting that he had been providing pest control services in schools for a number of years without incident.

1. Mr Gilbert called two character witnesses.
2. Mr James Mulhearn is a friend of some 10 years who expressed the view that the offending was out of character and that he was quite comfortable with how Mr Gilbert interacted with his own children. That said, Mr Mulhearn was not aware of all the detail of Mr Gilbert's criminal offending, including the circumstances of the 2023 offending.
3. Mr Andrew Miller is Mr Gilbert's uncle, although they share a close, almost 'brotherly', relationship as there is only a 10 year age gap between them. Mr Miller also considered Mr Gilbert's conduct to be 'out of character' and 'left field' and indicated that he was 'shocked' when Mr Gilbert told him about it.
4. Mr Miller suggested that Mr Gilbert was initially 'emotional' about the events but was now 'quite contrite' and had 'taken responsibility' for his actions. He said that, while Mr Gilbert has had a 'lot of surface success', he was now 'more open about the challenges'. Like Mr Mulhearn, Mr Miller was comfortable with Mr Gilbert's interactions with his children (observing that he had acted as a 'good guide' for one of Mr Miller's sons) and now his grandchildren.
5. Mr Miller observed that Mr Gilbert was quite remorseful and that they had often spoken about the themes emerging from the MBCP. For instance, this included the need for Mr Gilbert to adapt his communication style when dealing with different people and to recognise the 'importance of good social character'.
6. Mr Miller suggested that it was also important to focus on the positives in Mr Gilbert's life. In that regard, he observed Mr Gilbert had really developed and become a 'very resilient man', who is always 'very positive' and 'very generous' (both with his time and financially). Mr Miller said he 'enjoyed watching him grow as a person', moving on from the initial cross-roads in his youth and making a 'choice to get back on track' through work.

1. Having regard to PQR, Mr Gilbert contends that the 'primary focus' under the WS Act is on the Unjustifiable Risk Test and that that his 'historical and index offending must therefore be assessed in terms of its relevance to children and whether it constitutes an ongoing risk'.[56]
2. Mr Gilbert contends it is 'reasonable' to grant him a WWC clearance 'in all the circumstances of this case', on the basis that:[57]

there is no compelling evidence to infer that a reasonable person would not allow their child to have contact with the Applicant during when the Applicant is engaged in any type of child-related work, or that such engagement with child-related work would pose an unjustifiable risk to children.

1. Similarly, because 'there is no compelling evidence to infer otherwise', Mr Gilbert contends it is in the public interest to grant him a WWC clearance.[58]
2. In this regard, Mr Gilbert submits that he has 'demonstrated significant rehabilitation efforts, including [by his] participation in [the MBCP]' and shown 'insight into the circumstances surrounding the offending'.[59] He also submits that the offending, while serious, was:
   • 'situational and isolated';
   • 'unrelated to children'; and
   • 'unlikely to recur',

and was therefore 'akin to the circumstances in NJL' where the applicant was not found to represent an unjustifiable risk to the safety of children.[60] Further, as in:

• VEE, the offending 'does not suggest any nexus to child-related work or systemic risk to children'.[61]
• GGM, the risk assessment conducted by Ms Fercher-Barrett supports the finding that he 'pose[s] a low risk of reoffending and no appreciable risk to children'.[62]

1. Mr Gilbert also highlights the finding in NJL that it is 'in the public interest for rehabilitated individuals to re-engage fully in the community when they no longer pose a risk to children',[63] and submits that 'denying [him] the opportunity to work with children would impose a disproportionate burden without corresponding benefits to child safety'.[64]
2. Mr Gilbert concludes that his 'behaviour does not reflect an ongoing or systemic risk to children, and his exclusion from holding a WWCC imposes undue harm without corresponding benefits to child safety'.[65] Accordingly, he 'does not pose a real and appreciable risk to the safety of children' and the Tribunal 'should exercise its discretion to grant the Applicant a [WWC] clearance'.[66]

1. The Secretary opposes the application by Mr Gilbert to be granted a WWC clearance on the basis that he poses an unjustifiable risk to the safety of children having regard to the Relevant Factors.[67] In the latter regard, the Secretary contends that the following factors weigh against the grant of the clearance:
   • The nature and gravity of the offence (i.e. the 2023 offending), which is 'very serious' when 'considered in combination with the rest of [Mr Gilbert's] criminal history'.[68] Further, it is submitted that violent offences of this nature 'are relevant to child-related work, in that they show [Mr Gilbert's] inability to regulate his behaviour' and a reaction that is 'far from what is expected of a person when engaging with children'.[69] It is suggested that the nature of the offending 'raises concerns as to how [he] might manage challenging situations (such as those that arise in child-related work) in future', including whether he can 'de[-]escalate conflict without matters escalating to violence'.[70] Mr Gilbert's attempted 'minimising of his conduct' (e.g. referencing the tension in the relationship) is also said to be 'concerning'.[71]
   • The 'negligible' period of time since the offending, noting its 'relative recency', with just over 12 months having elapsed.[72] It is also said to be of concern that Mr Gilbert 'minimises his behaviour' and has not 'undertaken any general anger management [course] or implemented strategies to better manage conflict situations in [the] future'.[73] Noting that the passage of time may be positive where there has been 'the development of insight over that period', the Secretary contends '[t]hat development has yet to occur here'.[74]
   • The offences were found proven and convictions were recorded (on 22 April 2024), with the community corrections order being 'only one step below imprisonment in the sentencing hierarchy' and 'demonstrat[ing] that the sentencing court considered it necessary to mandate rehabilitation', which 'has yet to be completed'.[75]
2. On the other hand, the Secretary appears to accept that the following factors are neutral:
   • The age of the applicant and victim at the time of the offending. In this regard, the victim was 23 years' old at the time, and so not a child. However, noting that Mr Gilbert was 40 years' old, there was an 'age difference of 17 years [which] may still highlight a difference in maturity [or evidence a] power imbalance between the parties'.[76] In this regard, the Secretary notes Mr Gilbert's acknowledgement that the victim was 'so young ... and still finding herself'.[77]
   • The conduct constituting the offence has not been decriminalised.
   • That, in terms of his behaviour since committing the offence, Mr Gilbert 'appears to take some responsibility for his behaviour'. However, it is suggested this is countered by his 'demonstrable reluctance to engage in rehabilitation, and his disregard for the conditions of the [community corrections order]'.[78] In the latter regard, the Secretary points to Mr Gilbert having gone overseas without permission, knowing that it was a breach. The Secretary suggests that disregard of the order, coupled with times that he has missed (or at least needed to reschedule) appointments with his case manager for work reasons, shows he 'prioritises his wants and needs over what has been mandated of him, when it suited him to do so'.[79]
3. The Secretary identifies the likelihood of an applicant posing a future threat to children as a 'key consideration', suggesting '[a]ny chance of a future threat, irrespective of its magnitude, is relevant'.[80] While Ms Fercher-Barrett gave evidence that Mr Gilbert posed a low risk of reoffending, In closing, Ms Tatas highlighted the assessed 17% risk of violent reoffending within 7 years (based on the VRAG: see [53]). She suggested that this was not a negligible risk of the kind referred to in McIntyre. Further, she pointed to Mr Gilbert's admission during cross-examination that he is not a 'finished product', suggesting that he has a 'significant way to go on rehabilitation' (especially with respect to insight), having completed less than half of the MBCP and less than a third of the community-based order.
4. Initially, Ms Tatas contended that the impact on Mr Gilbert's business of not having a WWC clearance was 'irrelevant if there is an unjustifiable risk'. However, she later conceded that she had put the submission 'too high' and that the right to work is relevant but cannot outweigh the paramount consideration.
5. In terms of any other relevant matters, the Secretary points to:
   • Mr Gilbert's relevant criminal history between 1998 and 2013, which is said to 'establish a pattern of violent behaviour which must be considered relevant in this application'.[81]
   • The observation of the Supreme Court of Victoria that 'an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse'.[82] In this regard, while Mr Gilbert 'appears remorseful for his offending as a younger person', it is said to be 'unclear whether [he] has genuine insight into the [domestic] violence offending'.[83] In this regard, the Secretary observes that he 'minimises his responsibility for what occurred' and 'appears to hold a view that the victim shares culpability for his actions', despite his response to the verbal argument being 'disproportionate' and 'dysregulated'.[84] In this regard, he has suggested that 'he felt disrespected after providing for the victim financially' and downplayed the offending (at least at times) as being 'not ... that bad'.[85] The Secretary observes that his case manager has suggested, as recently as July 2024, that Mr Gilbert 'appeared fixed on how his offending had impacted his own life, particularly his employment'.[86] As such, it is suggested that he is yet to develop the 'nuanced understanding' required.[87]
6. In terms of the other tests, the Secretary contends that:
   • Reasonable Person Test: 'a reasonable parent apprised of all the information would not allow their child to have direct contact with [Mr Gilbert] whilst engaged in child-related work at this early stage of his rehabilitation'.[88]
   • Any Child-Related Work Test: 'Given the seriousness of [his] violent offence which occurred against a vulnerable victim, the recency of the conduct, and [his] questionable insight into his behaviour', to permit him to engage in any type of child-related work 'would pose an unjustifiable risk to the safety of children'.[89]
   • Public Interest Test: The public interest in Mr Gilbert being able to work in his desired field 'must be balanced against the risks he would pose to children in light of [his] history of violent offending'.[90] Although it 'may be in the public interest to allow [him] a WWC clearance given this would support the employment of others', the Secretary submits 'his should not occur at the expense of the safety of children'.[91]
7. In the Secretary's supplementary submissions, after referring to Walker (see [29]), the Secret[92]y contends:92

the Tribunal may take even less comfort in the present case than it could in Walker (where the application was refused), given that [Mr Gilbert] has not completed the more onerous mandated conditions of his [corrections order], in particular the [MBCP].

1. Further, the Secretary suggests that Mr Gilbert 'continues to minimise his offending, and has demonstrated little insight into the lasting impact of his offending on the victim'.[93] On that basis, the Secretary maintains the position that Mr Gilbert should be refused his WWC clearance 'at this time'.[94]

Nature and gravity of the offence and its relevance to child-related work

1. Mr Gilbert plead guilty to, and was ultimately found guilty of, violence against his then partner. That such offending is and should be viewed as being serious is reflected in its categorisation as Category B offending and the consequent and immediate suspension of his WWC clearance.
2. The circumstances of the offending and his denial of matters to which he pleaded and was found guilty, as well as Mr Gilbert's apparently defiant response to his ongoing supervision and his reported conversations with the victim since that time, suggest that the necessary rehabilitation is yet to be completed. I was concerned that some of his comments over time may betray paternalistic or even misogynistic views about women (along the lines that men are providers for which women should be grateful, rather than questioning or restricting men) and would hope and expect that, to the extent this is the case, it is addressed in the MBCP or (if not) other counselling that Mr Gilbert arranges.
3. Although the victim was not a child, I accept the Secretary's submission that Mr Gilbert's apparent inability to regulate his behaviour, and to 'act out' and respond to perceived provocations with violence, is a matter that is highly relevant to child-related work.
4. While there is no evidence of Mr Gilbert harming children when providing pest services in schools, it is unlikely that that work would have involved interactions with children which might test his ability to regulate his behaviour. Similarly, even though it is positive that both Mr Mulhearn and Mr Miller trust Mr Gilbert with their own children or grandchildren, such interactions would appear to have been limited.

1. The offending is recent, having occurred just over a year ago. It is relevant that Mr Gilbert is yet to complete his sentence and, importantly, yet to complete his MBCP.

1. As already noted, Mr Gilbert was found guilty and convicted. He remains under sentence. The length of the community corrections order and the extent of the MBCP required suggests that the Magistrate considered that Mr Gilbert's process of rehabilitation would be an extended one.

Ages of the victim and Mr Gilbert at the time the offence was committed

1. While both Mr Gilbert and the victim were adults, the significant age discrepancy is noted. Although he recognised the victim was 'so young' and 'still finding herself', instead of taking this into account in their relationship, he lashed out verbally and physically.

1. The offending has not been decriminalised. To the contrary, there has been a greater focus on the scourge of domestic violence in recent times.

1. It is positive that, despite his initial reluctance, Mr Gilbert appears to be engaging positively with the MBCP. However, it is apparent (and he appears to accept) that his rehabilitation is not complete. There remains a concerning lack of insight (i.e. his denials of the physical aspects of the offending and his reported view that it was not that bad), as well as an apparent (and problematic) focus on the impact the events have had on himself (as opposed to the emotional or psychological impact they may have had for his former partner).

1. That there is a real, rather than negligible, risk of future domestic violence is borne out by Mr Gilbert's VRAG score (see [53]) and that his insight is still developing.
2. Further, given Mr Gilbert's issues with self-regulation, I am not as confident as Ms Fercher-Barrett that the 'situational factors which were present at the time of offending' would not arise in the context of any child-related work if Mr Gilbert was to regain his WWC clearance prior to satisfactory completion of the MBCP. Indeed, Ms Fercher-Barrett expressly recognises that Mr Gilbert's risk of violent offending would be heightened by any future relationship instability (see the discission regarding the HCR-20 test at [53]).
3. For this reason, while I would accept the likelihood of a future threat to a child is lower, it is also not nil or negligible.

Whether giving clearance would not pose an unjustifiable risk to the safety of children

1. Considering all of the Relevant Factors, I am not satisfied that giving Mr Gilbert a WWC clearance would not pose an unjustifiable risk to the safety of children at this time.
2. In my view, this is a case where the application to the Tribunal is premature.
3. In forming that conclusion, I have taken account of the impact that the loss of the WWC clearance has apparently had on Mr Gilbert's business (despite the lack of financial evidence in this regard). However:
   • it is not certain that the loss of the WWC clearance, of itself, has led to his business being removed from the AIM system;
   • given the provision of pest control services is not child-related work, Mr Gilbert may be able to restructure the ownership or management of his business in a way that satisfies the school authorities and allows his business to resume its inclusion on that system; and
   • in any event, for the reasons explained in McIntyre, the paramount consideration prevails over any right to work.

1. For similar reasons, I consider that at this time:
   • a reasonable parent would not allow their child to have direct contract with Mr Gilbert if he were to engage in child-related work;
   • his engagement in 'any child-related work' (particularly work that requires more extensive interaction with children) would pose an unjustifiable risk to the safety of children; and
   • the public interest in him being able to conduct his business cannot (and does not) outweigh the paramount consideration.

[1] Information about AIMS and the requirements to register a contractor can be found at https://www2.education.vic.gov.au/pal/asset-information-management-system/advice and https://content.sdp.education.vic.gov.au/media/aims-user-guide-594.

[2] The business currently has three employees who perform the pest control services.

[5] As identified in clause 2 of Schedule 1 to the Sentencing Act 1991 (Vic).

[11] Ibid (strictly, the section refers to the factors set out in section 63(1) relating to an application for a WWC clearance; however, these are the same factors as set out in section 85(1)).

[14] [2024] VCAT 633 [168].

[15] [2013] VSC 267.

[16] Working with Children Act 2005 (Vic).

[17] [2013] VSC 267 [135].

[18] Working with Children Act 2005 (Vic), s 1A.

[19] [2017] VSC 514 [22].

[20] [2019] VSC 105 [62(a)].

[21] [2018] VSC 296 [45].

[22] [2019] VSC 105 [84].

[24] FWU v Secretary to the Department of Justice and Community Safety [2022] VCAT 491 [31].

[25] QDW v Secretary to the Department of Justice and Community Safety [2021] VCAT 1121 [153]-[155].

[27] [2020] VCAT 155.

[29] NJL [2016] VCAT 749 and VEE [2024] VCAT 693.

[30] [2024] NSWCATAD 296.

[31] Supplementary Submissions on behalf of the Respondent dated 26 November 2024 ('RSS') [5].

[32] [2022] VCAT 411.

[34] [2016] VCAT 1839.

[35] Ibid [73] (emphasis added, referencing QUK v Secretary to the Department of Justice (Unreported decision of Judge O'Neill VP, 14 October 2011, [53]).

[36] [2020] VCAT 155 [211].

[39] [2020] VCAT 1036.

[42] Charges 3 and 4 (of intentionally and recklessly cause injury) were withdrawn.

[52] Psychologist's Opinion [10.2]-[10.4].

[63] [2016] VCAT 749 [60].

[67] Respondent's Submissions dated 11 November 2024 ('RS') [4]-[5].

[74] Ibid [43] (citing VSN v Secretary to the Department of Justice and Community Safety [2023] VCAT 663).

[80] Ibid [59]-[60] (citing DBN v Secretary to the Department of Justice [2013] VCAT 143 [62]-[63] and Maleckas v Secretary, Department of Justice [2011] VSC 227 at [72]).

[82] Ibid [76] (citing LKQ v Secretary to the Department of Justice [2011] VSC 227 [80].

[86] Ibid [80] (referencing TB, 195).