1. Pursuant to s 146(4) of the Victorian Civil and Administrative Tribunal Act 1998, no person other than a party to the proceeding or their legal representatives may inspect the Tribunal file. 2. Pursuant to s 17 of the Open Courts Act 2013, the applicant in this proceeding shall be referred to as 'JDH' in documents published by the Tribunal.

1. The publication of a report of this proceeding to the extent that it would disclose the name and address of JDH or a family member of the applicant, including the applicant's former wife, current partner, and their respective children, or the publication of any information derived from this proceeding which could reasonably be expected to enable such identification, is prohibited.

1. These orders apply throughout Australia, and operate until the death of the applicant.

She called as witnesses the applicant JDH, and the applicant's partner.

1. On 13 February 2015, the applicant ('JDH') made application under the Working with Children Act 2005 ('WWC Act') for a 'working with children check' ('WWC Check') and assessment notice.
2. The Secretary to the Department of Justice and Regulation ('Secretary') determined that the application was a category B application, based on a past finding of guilt against JDH for an offence of assault occasioning bodily harm committed in 2002 when JDH was aged 27 and the victim (his then de facto partner) was 34. JDH has other relevant criminal history, including trafficking in dangerous drugs.
3. The Secretary issued a negative notice on 23 August 2015.
4. JDH has made application to VCAT for review, seeking an assessment notice that he is a person suitable to work in child-related work.

1. A person given a negative notice on a category B application has a right of review to VCAT under s 26(1)(b) of the WWC Act.
2. Section 26B(1) of the WWC Act provides that VCAT must determine that it is appropriate to refuse to give an assessment notice unless satisfied that giving the assessment notice "would not pose an unjustifiable risk to the safety of children", having regard to any matters to which the Secretary must have regard under s 13(2). In these reasons, I will deal with the matters in s 13(2) under relevant subheadings.
3. Pursuant to s 26B(2), in satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that a reasonable person would allow his or her child to have direct unsupervised contact with the applicant while the applicant was engaged in any type of child-related work (sometimes called the 'reasonable person test'), and that the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children (sometimes called the 'any work test').
4. Even if VCAT is satisfied about all these matters, s 26B(3) still requires VCAT to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.
5. The matters in ss 26B and 13(2) of the WWC Act therefore comprise the primary matters to which I must have regard in considering the application for review by JDH. Although it has been held that there is no strict onus of proof in a review proceeding such as this, the applicant effectively bears the persuasive burden, as a matter of practical reality, in satisfying VCAT that the applicant does not pose an unjustifiable risk to the safety of children, and that there is a public interest to give the applicant an assessment notice, through providing probative evidence in relation to relevant matters. Otherwise, the tests in ss 26B and 13(2) provide a statutory presumption, or starting position, that a category B application will be refused.
6. For convenience, I have set some of these matters out separately in these reasons, although I have considered them holistically in my overall assessment.

Consideration of matters in s 13(2) of the WWC Act

1. I will first address the matters to which I must have regard under s 13(2) of the WWC Act. For convenience, I deal with these matters separately in these reasons under the subheadings used in the WWC Act, although some matters necessarily overlap.

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

1. The 'triggering' offence, for the purpose of the WWC Act, was the assault occasioning bodily harm committed by JDH in 2002. I will deal with JDH's other relevant criminal history in the context of his behaviour since he committed this offence.
2. The offence occurred in Queensland in or around June 2002. One evening, JDH and his then de facto partner became involved in a heated argument. According to the victim, the argument escalated with JDH grabbing her by the hair and pulling her to the floor. Although she crouched on the floor in a defensive position, JDH punched her in the face and head at least three times with a closed fist. He also kicked her in the thigh, but then ceased his actions abruptly and left her on the floor. The victim suffered numerous injuries, including extensive swelling and bruising to the right side of her face, and bruising and swelling to the thigh area. JDH says that both he and the victim were very drunk at the time of the incident, and he remembers little of the detail. He nonetheless admits to the offence.
3. The nature of the offence was obviously serious. The fact that JDH was very drunk suggests that JDH may have been impaired by alcohol, and was not wholly in control of his actions. However, this at best provides some explanation for what occurred. It is ultimately no excuse for a vicious attack of domestic violence by JDH on his then partner.
4. The offence is not, by itself, directly relevant to child-related work, in the sense that it was an assault by one adult upon another at home, not involving children. The offending was not premeditated, and was not committed at work or in the context of JDH's access to or proximity with children through work. There were no children in the relationship and no child present at the time of the offence. However, the offence may still have some relevance to child-related work, if it reflects a propensity by JDH to be violent, or to be unable to control his actions when provoked or angry, whether or not children are around.

The period of time since the applicant committed the offence

1. The offence occurred in June 2002, almost 14 years ago.
2. I consider this to be a material factor in the assessment of whether JDH would not now pose an unjustifiable risk to the safety of children, as the elapsing of time provides some opportunity to assess JDH's future behavioural patterns beyond his initial offending. Although, in more recent times, JDH appears to have taken very positive steps to rehabilitate himself, his criminal conduct between 2002 and 2010 does not assist his cause.

Whether a finding of guilt or a conviction was recorded for the offence

1. JDH was found guilty on the charge of assault occasioning bodily harm. However, no conviction was recorded.

1. JDH was sentenced to a 12 month probation, without conviction, and required to undertake 80 hours community service.

The ages of the applicant and of any victim at the time the applicant committed the offence

1. As I have indicated, JDH was aged 27 at the time of the offence, and the victim was then aged 34. Both were adults, in a de facto relationship. Given JDH's age at the time, the offence cannot be characterised as one of youthful immaturity.

Whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it

1. The conduct that constituted the offence has not been decriminalised. Nothing material turns on this factor in this proceeding.

The applicant's behaviour since he committed the offence

1. Since the offence was committed in 2002, JDH has been convicted of three offences. Although not offences that lead to the categorisation of the WWC Act application as a category B application, these offences are nonetheless relevant to the overall assessment of whether JDH now poses an unjustifiable risk to the safety of children. In particular:
   • in October 2003, JDH was charged in Victoria with the offences of theft from a shop, and unlawful assault. He was convicted, and fined $300. The assault involved JDH punching a security guard in the face, outside a supermarket, after being apprehended for shoplifting. [There is also evidence of two prior shoplifting offences in Queensland, respectively in 1998 and 2000, where JDH was fined without conviction.]
   • in November 2004, JDH was charged in South Australia with the offence of taking part in the production of a controlled substance. He was convicted and sentenced to 15 months imprisonment, which was suspended subject to a two-year good behaviour bond. The offence involved JDH transporting hydroponic equipment to premises for use in the cultivation of a large cannabis crop. JDH says that he was only involved in the transport of the equipment, and not in the cultivation or distribution of the cannabis.
   • in November 2012, JDH was charged in Queensland with the offences of trafficking in dangerous drugs (schedule 1), trafficking in dangerous drugs (schedule 2), and possessing utensils or pipes for drug use. On the trafficking charges, he was convicted and sentenced to 6 years imprisonment, with parole eligibility in February 2014. On the possession charge, he was also convicted and sentenced to 3 months imprisonment, subject to the same parole eligibility.
2. JDH was released on parole in February 2014, and remains under the supervision of the court (with regular reporting, and drug/alcohol testing) until the end of his sentence in 2018.
3. These latter drug-related offences were particularly serious. The charges against JDH followed a large-scale police investigation across three states, targeting the trafficking and supply of a range of dangerous drugs by a syndicate that also included JDH's cousin and brother. JDH was for a time actively involved in the syndicate, and the specific charges against him related to the trafficking of methyl amphetamine (ice and speed), MDMA (ecstasy), and cannabis between April 2008 and April 2010. He says that on some occasions he was just involved in the transport of the drugs, but he admits that on other occasions he was more actively involved in the packaging, supply, and taking payments. JDH pleaded to the offences, but now says that he ceased to be part of the syndicate's operations from December 2009, rather than April 2010.
4. As I have said, the drug-trafficking offences were very serious. Although the full details were not provided to me, there are references in the material to deals involving 40 kg quantities of drugs, deals involving 4,000 tablets, and a deal involving 7½ kg of cannabis. And these are just examples.
5. JDH also admits to being an intermittent personal and recreational drug user over approximately 15 years, commencing with his use of cannabis in the mid-1990s when he was in his early 20s. He says he was introduced to methyl amphetamine (ice) by his cousin on his birthday in 2008 and, for a period in 2008 and 2009, he was using the drug almost daily. He admits to having used cocaine.
6. JDH says that he stopped using drugs in December 2009, when he found out that his then wife was pregnant with their first child, and that he has been clean since that time. He says that he still occasionally consumed alcohol until 2010, but has not consumed alcohol at all in the six years since then, including following his release from prison on parole.
7. JDH described his offending behaviour from 2002 until 2004 as mindless and stupid. It occurred during a period when he was struggling with relationship, financial and employment difficulties. Had JDH demonstrated good behaviour in the decade since 2004, the three offences within the period 2002 until 2004, although serious, may not of themselves have been of overriding concern from a WWC Act perspective. It is the more recent, and more serious offence, which remains of concern in this regard.
8. Following his conviction and suspended sentence in 2004, JDH did apparently try to turn his life around. He left South Australia within a day or so of his court appearance, and returned home to Queensland with his mother. He found employment in a motorcycle dealership, which he liked, and he became involved in a relationship and later married. He reunited with an old school friend who was also interested in motorcycles, and they became best mates. However, in 2007, this friend and another friend died in separate motorcycle accidents. JDH says he was devastated by the loss of his best friend. He found it difficult to continue working with motorcycles, and left his employment. JDH's grandmother, to whom he was close, also died within the same period. He fell in with a bad crowd that included his cousin, leading to his re-exposure to drugs in early 2008 (including his introduction to ice), and his involvement in the drug syndicate from April 2008. He led a double life, with his then wife aware of his occasional recreational use of drugs, but not his involvement in trafficking.
9. As indicated above, JDH says he ceased his use of drugs, and his involvement in the drug syndicate, when he became aware in December 2009 that his wife was pregnant with their first child. However, the police investigation into the drug syndicate was by then well advanced, leading to his arrest in 2010. Whilst on bail, he ceased his use of alcohol. Whilst in prison, he was by all accounts a model prisoner and he was released on parole at the first opportunity. Both in prison, and since, he has undertaken further study. He is currently studying to be an exercise physiologist, whilst working part-time as a personal trainer in a gym. Until required to obtain a WWC Check, he was also working at a private school in Melbourne as an assistant soccer coach, and apparently well regarded in that role.
10. Following his release from prison, JDH moved to Victoria to be closer to his children. His marriage did not survive. JDH has regular access with his children, although there are some custody and family issues still to be resolved. Within the last two years, JDH has entered into a new relationship, which appears to be serious although he and his new partner do not yet fully cohabit. His new partner has three children, and she says JDH disclosed immediately his past offending, and that he has become a real stepfather to her children, and his interaction with them is 'fantastic'.
11. At one level, the turnaround in JDH's life and behaviour in the short period of time since his release from prison is both remarkable and commendable. I was impressed with JDH's very positive attitude about his future, in terms of his relationship and career aspirations, his desire to participate fully in the lives of his children, and his desire to become a fully functioning member of his community.
12. There is perhaps one blemish, although I do not place great weight upon it. In 2015, JDH's ex-wife sought an intervention (family violence) order against him although it was later withdrawn with the allegations unproven. JDH admits to pushing his wife, although he says it was after she had first grabbed him in the groin. It occurred at a low point in their family settlement negotiations, although JDH says that the altercation did not involve the children and that he has resumed a good functional relationship with his ex-wife. His ex-wife still allows him regular access to the children, and JDH said his ex-wife would not permit this if she thought he might reoffend, or resume his use of drugs.

The likelihood of a future threat to a child caused by the applicant

1. This factor is important to any WWC Act assessment.
2. I was provided with two reports by the psychologist Jeffrey Cummins, although Mr Cummins was not called to give evidence. The Secretary had apparently asked for Mr Cummins to be called, and I agree with the Secretary that less weight can be placed on his report in circumstances where Mr Cummins' professional opinion is untested - particularly where some open questions remain. Mr Cummins' opinion is largely a qualitative medico-legal assessment, based upon his consultation with JDH. He says there are no psychometric tools which would be applicable to the circumstances of JDH's offending.
3. I have nonetheless had regard to Mr Cummins' opinion that JDH does not have a personality disorder or mental illness, that he does not have a general anger management problem, and that he is not of a high or significant risk of committing further offences of violence. Mr Cummins thought JDH's past violent offending to be 'situational' and 'stale' and, in any event, could not be generalised to indicate a propensity for violence towards children or adolescents. There is absolutely no evidence of any sexual proclivity towards children or adolescents. Mr Cummins does note that JDH was once provisionally diagnosed with depression, for which he was medicated. He also notes that during his prison term, and afterwards, JDH has obtained psychological counselling, which assisted in him changing his ways.
4. Mr Cummins was asked to reinterview JDH and provide a supplementary report, which he did in March 2016, following JDH's ex-wife seeking the intervention order. He noted that the allegations were contested by JDH, and that the order was subsequently withdrawn, and indicated that his professional opinion had not changed.
5. Mr Cummins' ultimate conclusion in both of his reports was that JDH was a fit and proper person to hold a Working with Children Check, and would remain so even after the expiration of his parole. This is of course not the test that I must consider under the WWC Act, nor is a psychologist's opinion (whilst important and helpful) a substitute for the opinion that I must ultimately form about whether an applicant poses an unjustifiable risk to the safety of children. I am also concerned that, even in some of Mr Cummins' 'opinion and conclusions', he still simply reiterated what he was told by JDH in interview without material elaboration, rather than clearly articulating the objective professional basis for the opinion - e.g. 'At interview, he stated he was emphatic he would never resume using illicit drugs, cultivating or trafficking illicit drugs' (at paragraph 39 of the January 2016 report).
6. I nonetheless accept from Mr Cummins' report, and the evidence of JDH and his new partner, that the threat that JDH poses to a child is low, in the sense of there being little likelihood of JDH physically attacking or being directly violent towards a child. Indeed, his apparently caring nature to his own children, and those of his new partner, would suggest quite the opposite.
7. In his response to the interim negative notice, JDH had stated that he had never harmed a child, and that he would never put a child in a high risk situation of drugs, violence or anything else. However, drug trafficking also leads directly or indirectly to physical harm to children. It cannot be regarded as an offence that is not child-related. Whilst I am reasonably confident that JDH, even in his drug trafficking days in 2009, would have been most unlikely to put his fist in the face of a child, he was willing to participate in something that was equally destructive of children - and in a pervasive way that many would consider much worse. Contrary to his denials, he did put children in a high risk situation of drugs. As the sentencing judge in Queensland noted in 2012, the volume of trafficking was such that there were thousands of people in the community, including thousands of young people, affected by JDH's involvement in an evil industry spreading drugs through the community.
8. JDH conceded under cross examination that some of the drugs he trafficked would have ended up in schools, and that many children and adolescents would have been victims of this. However, whilst conceding this, and demonstrating some level of remorse, there still appeared to be a level of detachment on JDH's part between his crime and its unknown impact on unknown child victims. I was not convinced about how JDH rationalises this, and there was a sense that he had focused on turning his own life around and that he sought a WWC Check to assist in that process, rather than clearly taking accountability for the damage to young lives that he had left in his wake through his involvement in serious drug trafficking. I was not satisfied from JDH's own evidence, or the psychologist's report, about whether sufficient time has passed for JDH to demonstrate a real insight or empathy into his wrongdoing. Neither JDH nor Mr Cummins dealt adequately with this issue.
9. Related to this, I am concerned whether enough time has passed to be confident that the behavioural change that JDH now demonstrates will be sustained into the medium and longer term future, particularly given the lengthy period of his past offending. His criminal record spans more than a decade, with increasingly serious offences and penalties. Whilst JDH's counsel attempted to place weight on his good behavioural record over six years since he ceased his involvement in the drug syndicate in late 2009 (and ceased using drugs and alcohol around the same time), for almost this entire period JDH has been under the supervision of the justice system -either on bail, in prison, or now on parole.
10. As I have mentioned, the evidence was that JDH had attempted to turn his life around in 2004, but fell in with a bad crowd following the death of friends and his grandmother. I agree with the Secretary that the death even of a close friend or relative is no excuse for turning to serious crime through large-scale commercial drug trafficking. But even allowing for this, what would be the situation if JDH suffered another personal tragedy in his life such as the death of a friend or relative, or the ending of a relationship? Neither JDH nor Mr Cummins dealt adequately with this issue.
11. JDH's written statement indicated that he had found the 'Getting Smart' program in prison particularly useful, being designed to teach offenders to identify risk factors, social and psychological risk factors, trigger points and a safety net management plan to prevent future offending. He says he learned that associating with negative people involved in drugs was a key trigger, and that he can now recognise social situations which could cause him to reoffend and can remove himself from them. However, apart from giving up drugs and alcohol, he did not really elaborate in evidence on his 'safety net management plan'.
12. Indeed, there was little evidence about the support networks available to JDH in a future adverse event, apart from the emerging relationship with his new partner. JDH is a mature age student, working part time. He does not yet have a stable career or long-term employment. He has yet to finally resolve financial and custody issues with his former wife. He has moved interstate on a number of occasions, and does not appear to have strong family ties or a significant network of friends or peers in Melbourne. Whilst some members of his family in Queensland are supportive, his cousin and brother (the latter of whom he still has contact with) were in part responsible for his pathway into serious crime.
13. The risk is therefore that, despite the very favourable signs of rehabilitation that JDH presently exhibits, there is still the potential that, if an adverse event arose in his life, he might revert to drugs or serious crime. Given his still relatively recent involvement in drug trafficking in the period 2008 to 2010, there is at least the potential future threat of harm to children in such event. JDH was only released from prison in 2014, and remains on parole until 2018.
14. I appreciate that I am not required to find that there is no risk at all to a child, but rather that there is no 'unjustifiable' risk to the safety of children from physical or sexual harm. I also appreciate that the more recent drug trafficking offences are not the 'triggering' offence under the WWC Act, albeit relevant to JDH's behaviour and the assessment of risk. JDH's counsel also sought to impress upon me that, although JDH remains on parole, this should not of itself be seen to be an immutable barrier to a positive assessment. If that were the intended outcome, the WWC Act would say so.
15. However, there are sufficient gaps in Mr Cummins' report, and in the broader evidence before me, such that I consider it is simply too early to have sufficient confidence in JDH's rehabilitation and behavioural changes in order to be satisfied that there is no unjustifiable risk. I am being asked to take JDH largely on trust, based on a remarkable but short-term turnaround in his behaviour, but in circumstances where there are still unstable elements or unresolved issues in his life that will be resolved only with the passage of time. In a protective jurisdiction such as that under the WWC Act, any doubt or uncertainty on this issue would tend to favour the maintenance of the starting position and statutory presumption to refuse an assessment notice. That is the situation here.
16. As I have said, Mr Cummins did not deal adequately with this issue. This is a proceeding where the opportunity to question Mr Cummins would have been useful. Moreover, although JDH has apparently received therapeutic counselling through another psychologist, that other psychologist has not been asked to provide a report on JDH's behalf or to give evidence.

Any information given by the applicant in, or in relation to, the application

1. I have already mentioned the supporting evidence and character evidence, as well as the statement and evidence from JDH himself.
2. One of the character references was from JDH's current partner, who was called to give evidence. Although their relationship is such that the partner's evidence is not truly independent, I have placed some weight on her views about JDH's positive interaction with his own children, and with her children.
3. Of the other references, three were unsigned references from former friends or work colleagues in Queensland. The other is a reference from the sports coordinator at the private school where JDH assisted as soccer coach. It is a very general reference that does not allude to JDH's background or the issues in this case. There is no strong evidence from a peer amongst JDH's current friend or employment network in Melbourne, such as one might expect in a proceeding such as this.
4. Whilst I cannot give great weight to these references, they nonetheless bolster the view that JDH has a good direct interaction with children, and would be considered a low risk of direct physical harm to children. As I have said, this is not the key issue for me. I am more concerned about the indirect risk of physical harm to children caused by drugs, if JDH was to fall back into his past behaviour, and whether there is sufficient evidence of current stability and support networks in his life to prevent this. It will be clear that I am not sufficiently satisfied on this issue on the basis of the evidence and submissions presented in this case on JDH's behalf. It is simply, in my view, a little too early to tell.
5. I was also provided with some detail as to the coursework that JDH has undertaken, particularly in exercise physiology, and his desire in the medium-term to work with young people in this area. One of the reasons he seeks a WWC Check is to facilitate placements in schools as part of his continuing coursework, although JDH indicated in evidence that there may be other alternatives if an assessment notice was not granted.
6. In similar fashion to the public interest test, JDH's own aspirations must be counter balanced with the paramount societal interest for the protection of children embodied in the WWC Act.

Any other matter that VCAT considers relevant to the application

1. There are no other material matters I consider relevant beyond those discussed elsewhere in these reasons.
2. I have had regard to the numerous authorities, including decisions of the Supreme Court and past VCAT decisions, provided to me by the Secretary in relation to the relevant factors and tests that I must consider.

Consideration of matters in s 26A(4) of the WWC Act

1. I now turn to the matters in s 26A(4) of the WWC Act. Although I have again, for convenience, dealt with these matters separately in these reasons, they are essentially matters about which I must be satisfied on the ultimate question of whether the giving of an assessment notice to JDH would not pose an unjustifiable risk to the safety of children. They are therefore matters that I have considered both separately and holistically in reaching my decision.

1. The matter in s 26A(4)(a) is referred to as the 'reasonable person test' - I must be satisfied that a reasonable person would allow his or her child to have direct contact with JDH that was not directly supervised by another person while JDH was engaged in any type of child-related work.
2. The reasonable person test is an objective test. It relies upon a 'reasonable' person having knowledge of all of the facts and surrounding circumstances.
3. I am not satisfied that a reasonable person, with knowledge of all of the matters I have outlined above would allow his or her child to have unsupervised contact with JDH in any child-related work. I consider that a reasonable person would still be concerned about the extent of JDH's past (and still relatively recent) involvement in serious commercial drug trafficking without sufficient regard to the impact on its victims, including child victims. I consider that a reasonable person would be encouraged by the steps that JDH has taken to rehabilitate himself, but would still be concerned that sufficient time has not passed to yet be fully confident about that rehabilitation.
4. In a general sense, I agree with the Secretary that, with JDH having been released from prison only two years ago following serious drug trafficking offences, and still being on parole and under the supervision of the court, it is unlikely - perhaps inconceivable - that a reasonable person would be comfortable with JDH having unsupervised contact with that person's child in any child-related work in the immediate short-term. I agree with the Secretary that it would also likely fail the 'pub test' for what might be considered reasonable in the circumstances.

1. Section 26A(4)(b) requires me to be satisfied that JDH does not pose an unjustifiable risk to the safety of children in any child-related work, and not just for the activities that have led to him seeking this WWC Check.
2. As I have said, I am not particularly concerned about the propensity for JDH to be directly violent towards children. However, it will be self-evident that I am not satisfied that JDH does not pose an unjustifiable risk to the safety of children in a general sense, given that insufficient time has elapsed, in my view, to adequately assess his rehabilitation from a long period of involvement in drugs and drug trafficking.

Consideration of matters in s 26A(5) of the WWC Act

1. Given that I am not satisfied that giving an assessment notice to JDH would not pose an unjustifiable risk to the safety of children, it is unnecessary to consider the 'public interest' test.
2. That said, the safety of children is the paramount consideration under the WWC Act, and JDH's desires and aspirations would be subservient to the public interest in the protection of children if I had any objective concern that JDH may pose an unjustifiable risk to children.

1. JDH shows good signs of rehabilitation, and his past criminal history, although serious, should not define him for life.
2. The effect of my decision to refuse an assessment notice at this time means that JDH cannot re-apply for a further WWC Check for a period of five years from the date of his last application. Over that period, there is the potential for JDH to be released from parole in 2018, to settle further into his current relationship and to resolve the issues with his former wife, to develop greater peer networks in Melbourne, and to finish his coursework and find permanent employment. All of these things will lead to much greater stability in JDH's life, and serve to give greater confidence about his rehabilitation. If JDH has an unblemished record over the next five years, there is a reasonable prospect that he will be successful in a future WWC application.
3. In my view, however, whilst the signs are good, it is still a little too early to tell.
4. Based on the evidence and submissions before me, and having regard to the relevant factors and tests under the WWC Act, I am not satisfied that JDH does not pose an unjustifiable risk to the safety of children. I therefore dismiss the application, and affirm the negative notice.