1. Pursuant to section 26 of the Working with Children Act 2005 and section 51 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal sets aside the decision of the respondent to give the applicant a Negative Notice and directs the respondent to issue an Assessment Notice to the applicant.

1. JDH wishes to hold an Assessment Notice under the Working with Children Act 2005, (the WWC Act). His application for an Assessment Notice was however refused by the Secretary to the Department of Justice and Regulation in 2015 because JDH has a serious history of criminal offending, including offences of violence and drug trafficking offences.
2. JDH has however, in recent years, sought to rehabilitate himself and become a contributing member of society. He accordingly sought a review of the Secretary's decision to this Tribunal. The hearing proceeded before Deputy President Dwyer in April 2016. Ultimately, given the serious nature of the offending, Deputy President Dwyer confirmed the decision of the Secretary - (see JDH v Secretary to the Department of Justice and Regulation (Review and Regulation) [2016] VCAT 607 - (JDH(1))).
3. In due course, JDH sought leave to appeal to the Supreme Court of Victoria against that decision. On 26 September 2017, His Honour Justice Bell upheld the appeal and remitted the case to the Tribunal, differently constituted, to be reheard (see PQR v Secretary, Department of Justice and Regulation (No. 2) [2017] VSC 514. - (PQR)).
4. The hearing took place before me on 2 November 2018, (there being some delay in the case progressing whilst JDH engaged legal representation).
5. The Secretary opposed the application and contended, as in JDH(1), that JDH's serious criminal history meant that I could not be satisfied that JDH did not pose an unjustifiable risk to children for the purposes of the WWC Act. The Secretary brought my attention to further family violence allegations made against JDH by his former partner, as well as allegations that JDH had assaulted his current partner's child.
6. JDH contended that he was rehabilitated, that he had not committed any further offences and that he did not pose a risk to children.
7. The parties agreed, given the history of the matter, that rather than repeat evidence[1] and submissions, that I should rely on the materials already provided to the Tribunal for JDH(1) together with transcripts of each of the earlier Tribunal and Supreme Court proceedings. I was accordingly provided with a refreshed folder of relevant documents and each party buttressed those materials in their submissions before me.
8. Given that much of the factual matrix surrounding the application was non-contentious, I will adopt many of the descriptive elements of JDH(1) but will bring my own analysis of that factual matrix and its connection to the application before me.
9. The legislative framework and background to these proceedings was set out by Justice Bell in PQR at [1] - [3] as follows:

[1] The Working with Children Act 2005 (Vic) establishes a process for screening persons engaging or intending to engage in child related work. On pain of criminal penalty, such persons must apply for working with children check and obtain an assessment notice permitting them to do so. Consistently with s.17(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and international human rights, the paramount consideration in determining such applications is the protection of children from sexual and physical harm.

[2] As the applicant in the present case is studying to become an exercise physiologist whose work can be child-related, he had to undertake the screening process. Where an applicant has been charged with or found guilty or convicted of certain offences, including causing injury intentionally or recklessly, an assessment notice cannot be given unless doing so would not pose an unjustifiable risk to the safety of children. The application of this condition to the applicant was triggered by him being found guilty of that offence in 2002.

[3] The applicant was also found guilty of drug related offences in 2012, including large-scale trafficking in dangerous drugs (not specifically to children). He was sentenced on conviction to imprisonment for six years but, in view of his plea of guilty and excellent prospects for rehabilitation, a minimum term of two years were set. He was a model prisoner, released on parole in 2014 and will be on that parole until 2018. The Working with Children Act permits drug-related offences not related directly to children to be taken into account in determining whether to grant an assessment notice, but these are not in the same category as the triggering offence. The Act does not prohibit persons on parole from apply for working with children check, obtaining an assessment notice and working with children.

1. The parties agreed that the application is a Category B application under the WWC Act and that I should apply the law as it stood on 16 March 2016 (version 051).
2. I turn then to a consideration of the relevant factors under the WWC Act.

SECTION 26B JURISDICTION OF VCAT - CATEGORY B APPLICATION

1. The Tribunal's jurisdiction on a Category B application is set out in s 26B(1) of the WWC Act. In a review of a decision to give a Negative Notice on a category B application, this Tribunal 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) of the WWC Act.
2. Section 13(2) of the WWC Act states that the Secretary must refuse to give an Assessment Notice on a Category B application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to the following 10 criteria, which I will address in turn:

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

1. In 2002, JDH was found guilty of the offence of assault occasioning bodily harm.[2] As has already been identified, this was the triggering offence for engaging the WWC Act.
2. In JDH(1) Deputy President Dwyer summarised the offending (from information obtained from Police) at [13] as follows:

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 left 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.

1. I adopt the following words of Deputy President Dwyer in JDH(1) at [14] - [15]:

[14] 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.

[15] 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 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.

1. I read the transcript of the evidence given by JDH before Deputy President Dwyer. In his evidence, JDH appeared to me, to cast some blame for his offending on his victim and the volatility of their relationship. He nevertheless also acknowledged his own role in the offending and gave evidence that his ability to deal with his own internal emotions had evolved and changed since that time.
2. It is critical that those who work with children do so safely.
3. A history of violent offending raises questions about an individual's ability to control his/her temper. Most people can control their temper in pleasant times when all is going well. However, such factors are not always within an individual's govern. JDH was, at the time of the commission of this offence, unable to control his temper. It does not assist his case that his former partner may have been aggravating him and/or that he was intoxicated. Children can aggravate adults as well.
4. JDH appropriately conceded that if in fact he were an individual with a tendency or propensity to violence, that this would not be consistent with engaging safely with children in a workplace. The concession was an appropriate one. Serious violent offending is clearly of relevance when considering whether an individual is suitable to work with children.
5. JDH however stressed that he has changed and that he views that part of his life with considerable regret.

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

1. It has been 16 years since JDH committed the triggering offence.
2. This was not however the only offence of violence committed by JDH.
3. In October 2003, JDH was charged in Victoria with 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, in 1998 and 2000 respectively, where JDH was fined without conviction]
4. Multiple offences of violence raises concerns, however even the 2003 offending took place some 15 years ago.
5. The lengthy period which has passed without further like offending lends support to JDH's submission that his days of violence are behind him and that he will not reoffend in a like manner.
6. This however was an area of contention between the parties.
7. The Secretary drew my attention to:

• allegations which were the subject of an application for an intervention order made by JDH's former wife that on 23 December 2015 JDH made verbal threats and "a choking gesture' before throwing his childrens' belongings onto the road, and further cross applications for intervention orders brought by JDH and his former wife in 2016; and

• further charges relating to his current partner's child in 2016 of breaching parole conditions, and reckless and unlawful assault.

1. The Secretary contended that although none of these matters resulted in any adverse findings against JDH, that I should be concerned about ongoing allegations of violence. The Secretary contended that most people do not have multiple applications for intervention orders brought against them nor do they face charges of violence. Whilst the evidence may not reach the criminal standard, it was submitted that nevertheless this material may paint a better picture of who JDH currently is.
2. Whilst I agree with the Secretary that it was open to me to investigate the intervention order applications and the assault charges levelled against JDH, upon examination I was not satisfied that I could draw any inferences adverse to him based on these matters.
3. The applications for intervention orders did not proceed to orders being made. I accept that JDH would have contested those applications. The applications were however withdrawn/not proceeded with. There is no basis upon which I could draw adverse findings against JDH in these cases.
4. The allegations relating to his stepson resulted in the case being struck out with no case to answer.
5. I agree with the submissions of JDH that these matters have been appropriately tested through the Courts with no adverse findings made against JDH.
6. In circumstances where the Courts have rejected criminal wrongdoing and have not found any basis to impose final intervention orders, it would be inappropriate for me to look and find otherwise.
7. I am accordingly satisfied that the passage of time since JDH has committed an offence of violence is significant and favours his application.

(c) whether a finding of guilt or a conviction was recorded for the offence

1. JDH was found guilty of Assault Occasioning Bodily Harm. No conviction was recorded.

1. JDH was sentenced to probation for 12 months together with a requirement that he undertake 80 hours of community service.
2. This was a reasonably light sentence given the violence of the attack. It is unlikely that JDH would have received so lenient a sentence if the matter were to come before the Court today. I nevertheless accept that JDH accepts that his conduct was completely unacceptable and that he regrets it.

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

1. The offending was not against a child. At the time of the offending JDH was aged 27 years and his victim was aged 34.
2. I adopt the observations of Deputy President Dwyer in JDH(1) that given JDH's age at the time, the offence cannot be categorised as one of youthful immaturity. Nevertheless, it was also not against a child and there is no suggestion that any child was present.

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant committed the offence

1. The offending has not been decriminalised. Family violence is a serious criminal offence.

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

1. Following the 2002/2003 offending detailed above, JDH was convicted of serious drug-related offences.
2. I adopt the following summaries and comments made by Deputy President Dwyer in JDH(1) at [22] - [33]:

• 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 and 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.

[23] 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.

[24] These latter drug-related offences were particularly serious. The charges against JDH followed 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 methamphetamine (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.

[25] 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 4000 tablets, and a deal involving 7 ½ kg of cannabis. And these are just examples.

[26] JDH also admits to being an intermittent personal and recreational drug user over approximately 15 years, commencing with his first use of cannabis in the mid-1990s when he was in his early 20s. He says he was introduced to methamphetamine (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.

[27] 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 he has not consumed alcohol at all in the six years since then, including following his release from prison on parole.

[28] 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...

[29] 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.

[30] 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.

[31] 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".

[32] 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.

[33] 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.

1. The above detailed summary and analysis remained largely accurate at the time of the hearing before me.
2. The Secretary however stressed that I should not so lightly put the 2015 incident to one side in light of further allegations made against JDH. For the reasons already discussed, I, like Deputy President Dwyer do not place great weight on those further allegations.
3. Having read the extensive Corrections material compiled during JDH's time of incarceration and subsequent parole, together with the psychological reports and character evidence given, I concur with the view expressed by Deputy President Dwyer that JDH's turnaround has been "both remarkable and commendable."
4. The material is extremely positive detailing JDH's ongoing positive commitment and engagement with study and work and abstinence from drug and alcohol abuse.
5. The parole records show that JDH has regularly and frankly engaged in discussion of his personal circumstances with his parole officer detailing the marital difficulties he faced upon release and the road to reintegration with his children.
6. Reading the reports is a telling indication of JDH's successful reintegration into society.
7. It has not been all roses. JDH has clearly faced challenges. It is clear that in the period following his attendance at the Tribunal in JDH(1) that JDH's relationship with his former wife deteriorated significantly. Ultimately his marriage broke down. He moved interstate to Victoria away from his wider support network in Queensland to be near his children. He lost work he valued because of the Negative Assessment Notice.
8. Nevertheless, despite these trials, JDH has not reverted to drug/alcohol abuse. He has not reoffended.
9. He has had to implement strategies for managing, which he appears to have done. He uses exercise as a release and has dived into his studies and work. He has formed a new mutually respectful and satisfying relationship. He has regular access with his children. He has attempted to take a less emotional approach to conflict with his former wife and deal in his interactions with her more clinically.
10. The Secretary expressed concern that JDH made no reference to the assault charges when he appeared before Deputy President Dwyer in April 2016, even though he had been interviewed in respect of them. The Secretary contended that this demonstrated a lack of transparency. In circumstances where history has shown that the allegations were not substantiated, I do not draw any adverse conclusions about JDH's conduct in the presentation of his case in JDH(1). A reading of the transcript of his evidence reveals that JDH gave extensive frank and thoughtful evidence before Deputy President Dwyer.
11. I accept that there are no current issues of concern in his life and that JDH is doing all that he can to improve his career prospects and to contribute to the raising of his children and his partner's children.
12. I accept that JDH wants to make a positive contribution to the community and has legitimate occupational reasons for wanting to work with children and obtain an Assessment Notice.
13. JDH has almost completed his Bachelor of Exercise Science and has aspirations to become a physiologist.

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

1. I adopt the following observations of Deputy President Dwyer at [34] - [41]:

[34] This factor is important to any WWC Act assessment.

[35] 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's professional opinion is untested - particularly where some open questions remain. Mr Cummins's 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.

[36] I have nonetheless had regard to Mr Cummins's 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 toward 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, JD H has obtained psychological counselling, which assisted in him changing his ways.

[37] 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.

[38] Mr Cummins's 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 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's 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 trafficking illicit drugs" (at paragraph 39 of the January 2016 report).

[39] I nonetheless except for Mr Cummins's report, and the evidence of JDH and his new partner, that the threat that JD H poses to child is low, in the sense of there being little likelihood of JDH physically attacking or being directly violent toward a child. Indeed, his apparently caring nature to his own children, and those of his new partner, would suggest quite the opposite.

[40] 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.

[41 JDH conceded under cross examination that some of the drugs he trafficked would have ended up in schools, and that many children adolescents would have been the 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...

1. Deputy President Dwyer ultimately, after discussing further issues of concern formed the view that insufficient time had passed for him to be satisfied that JDH did not pose an unjustifiable risk to children.
2. I have formed a different conclusion on the likelihood of future threat to a child caused by JDH. In forming that different conclusion, I am mindful that additional time has passed. It is now some 4 years since JDH was released on parole.
3. I have had the benefit of reading a large number of risk assessments conducted through the period of JDH's imprisonment and parole. Risk assessments will of course change when circumstances change. The risk assessments during this time have consistently placed JDH at a "low" risk of reoffending. That risk was unsurprisingly elevated to "medium" when he was charged with offences involving his stepson. He was however, as already discussed ultimately found not guilty of those offences with no case to answer. I am satisfied that JDH remains a low risk of any type of further offending.
4. I am satisfied that JDH has made significant prolonged efforts to rehabilitate himself.
5. He resolved to change his ways upon learning that his former wife was pregnant with their first child in 2009. I accept that the birth of his children changed the course of his life.
6. I accept that he has given up all forms of drug and alcohol abuse. Drug and alcohol testing has consistently shown this to be the case over several years.
7. JDH has formed a new relationship which is loving and stable.
8. JDH has developed a strong work ethic and has since his release on parole largely been in paid employment. He has undertaken extensive further study.
9. I was satisfied from reading the various Corrections reports together with JDH's own evidence and statement that he has reflected significantly on the choices he has made throughout his life and that he demonstrates insight into his offending and the precipitators for it. It seemed to me from a reading of all of the material that JDH engaged openly with the reflective programs offered within the prison/parole environment and that he is well aware of the potential triggers for relapse into drug/alcohol abuse and/or offending. He is described throughout the corrections material as co-operative and demonstrating the potential to correct his offending behaviour.
10. I accept that JDH has reflected at length on why he committed the offences he committed in the impact his offences had not only on those around him but on himself. I accept that he has now taken responsibility for his offending.
11. I accept that JDH is rehabilitated.
12. JDH has much to lose if he offends again.
13. I accept that JDH has not shown any propensity for violence toward or harming children in any way. I accept that he is a loving father toward his own children and his stepchildren.
14. The Secretary stressed the possibility that JDH could relapse into drug related activity, particularly if any of the triggers, such as deaths of loved ones which gave rise to him falling into drug use and offending were repeated. Given the passage of further time without his doing so during times which have brought these challenges, I consider this to be increasingly unlikely.
15. In any event, even if he were to do so, there is no evidence before me upon which I could find that JDH might harm any children with whom he might come into contact in child related work. Any such risk of harm would be at most indirect and not arising in any way through his working with children.
16. JDH has successfully implemented his relapse prevention plan; has the support of his family and partner; has been willing to participate fully with his parole conditions and appears to be focused on living a positive lifestyle.
17. I am satisfied that the likelihood of future threat to a child caused by JDH is low.

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

1. JDH has aspirations to work as an exercise physiologist and personal trainer in gymnasiums, to coach and support student athletic teams in schools, sporting clubs and like facilities and to teach in related areas. He has undertaken, and is undertaking, university and other education toward that goal. In doing so he wishes to contribute positively to the community.

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

1. JDH's application was supported by several references and reports.
2. His current partner gave evidence before Deputy President Dwyer and the transcript of that evidence was before me as was her statement dated 11 January 2016. The pair have been together since July 2014. She is aware of JDH's background but remains very supportive of him.

CONCLUSIONS UNDER SECTION 26B(1) OF THE WWC ACT.

1. I have not determined that it is appropriate to refuse to give an Assessment Notice to JDH. I am 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 section 13(2) of the WWC Act.
2. I am satisfied that JDH's violent offending is now well behind him and that he is unlikely to reoffend again in a violent manner. His violent offending was not in any event ever directed against children. I accept that the evidence leans the other way - that he is a person with a commitment to being a positive role model for children and who is motivated to change his ways in order to be a good role model for his own children.
3. I am also satisfied that JDH is unlikely to revert to drug/alcohol abuse. He is now well aware of the consequences of doing so in terms of its potential to spiral out of control. He has much to lose if his life were to revert in that manner.
4. JDH has had many stressors since his release from prison. His marriage has broken up; he has had Family Court issues with respect to access to his children; he has been charged with serious offences which had they been proven would have resulted in his parole being breached and his career prospects destroyed. He and his former wife have made applications for intervention orders. He has put these matters behind him without relapse. This is very encouraging and gives significant confidence that JDH's offending is behind him.
5. As Justice Bell said in PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 at [23] - [24]:

[23] The Working with Children Act is not directed at the purpose of protecting children from harm generally and in all situations. While the community expects the government of Victoria to ensure that protection (and it has an obligation to do so under the international treaties that I have mentioned), it does so through legislation and administration on a whole-of-government basis. As one part of exercising that whole-of-government responsibility, the Working with Children Act is directed at protecting children from the risk of harm caused by people who work with or care for them.

[24] That an applicant has been charged with or found guilty or convicted of certain offences will have definite consequences under the Working with Children Act because it will trigger the category into which persons fall to be assessed (see below). But the Act does not implement a system for screening persons engaging or intending to engage in child-related work by reference to a personal character or like test. Likewise, the issue for determination is not whether an applicant should be prevented from working with children by way of further detriment or penalty for having been charged with or found guilty or convicted of an offence. While the criminal antecedents of the applicant, as well as his rehabilitation, may be relevant to the application of the statutory criteria (see below), the primary function of the Secretary and VCAT is one of risk assessment.

In relation to the meaning of the terms 'unjustifiable risk' in s 13(2) and 'likelihood' in s 13(2)(h), I said:

The interpretation of s 13(2) which I have here explained is carried by the plain and ordinary meaning of the words 'unjustifiable risk'. A 'risk' is a 'hazard' or 'danger' or an 'exposure to mischance or peril' and may be great or small depending on the probability of the event occurring and the nature of the hazard or danger concerned. The legislation creates an important scheme for protecting children from the hazard or danger of being sexually or physically harmed by employees, volunteers and others. But it is not a scheme for protecting children from all hazards and dangers whatsoever, however insignificant be the nature of the potential harm or small be the degree of the probability of that harm occurring. That comes from the word 'unjustified'. Something is 'unjustified' where it is '[n]ot brought into a state of justification' or '[n]ot proved to be right or proper'. Something is justified where it is '[m]ade just or right; made or accounted righteous; warranted; supported by evidence'.

Similarly, the relevant ordinary meaning of 'likelihood' in s 13(2)(h) is 'the quality or fact of being likely or probable'. The relevant ordinary meaning of 'likely' is likewise 'probable'. This too requires an assessment, one that may count in favour of or against the applicant depending on the level of the probability.

1. JDH has at the time of writing, completed his parole. This is a significant milestone for him.
2. Whilst it is sometimes appropriate where there are concerns of a likely relapse that an individual may reoffend once the supports offered by parole cease, I do not consider that there is any basis for such concerns in JDH's case.
3. I am satisfied that JDH is well on the way to securing his future as a contributing member of the community.
4. JDH has achieved a great deal in terms of his rehabilitation. He has made good progress in his studies, made arrangements for his ongoing involvement in his children's lives, resolved many issues in his personal life having navigated difficult and stressful decisions around whether his marriage could survive his incarceration. He has established a new supportive relationship. There is no purpose to be served by awaiting a further period of time.
5. This however does not conclude the matter.

1. 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) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person 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. There is no doubt that a reasonable person would be concerned about JDH's offending history. Offences of violence and significant, repeated drug offences would send appropriate alarm bells to any person about an individual wishing to have direct contact with their child that was not directly supervised by another person while JDH was engaged in any type of child -related work. However, it has frequently been observed by this Tribunal that there are no risk-free encounters in human life and that the reasonable person is not close-minded.
2. The reasonable person must be seen to objectively consider all of the available material. Each case presents different considerations. Sometimes there is vast character evidence or psychological material which lends confidence. Conversely there may be material that raises further issues of concern.
3. In this case, the reasonable person would have the benefit of the extensive Corrections material which, read in its entirety, demonstrates an ongoing commitment by JDH to engage with rehabilitative programs, undertake work, behave appropriately and ultimately redeem himself. The reasonable person would also be mindful that JDH has re-established himself away from negative peers and that those with whom he currently mixes are supportive of him. They would read the references I read from individuals who have worked alongside JDH and have formed a favourable opinion of him. The reasonable person would be impressed by the mutually supportive relationship that JDH now finds himself in. Ultimately the reasonable person would conclude, as I have concluded, that JDH, despite his offending history poses a low risk of reoffending and that he is now safe to have direct, unsupervised contact with children in the workplace and/or in sporting/volunteering environments.
4. I am satisfied that a reasonable person would further be satisfied having viewed the material about JDH's positive engagement with children that JDH's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

Even if VCAT is satisfied under subsections (1) and (2) that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.

1. I have already made it clear that I am satisfied that giving an Assessment Notice to JDH would not pose an unjustifiable risk to the safety of children. Nevertheless, this is an additional test which requires that I refuse to give the assessment notice unless positively satisfied that it is in the public interest to do so.
2. I am so satisfied. The public interest is a broad enough concept to include the considerations which apply in this case, such as encouraging a rehabilitated person to embark on his career path of choice and re-engage with society generally. In order to become a physiologist JDH will need to complete a Master's qualification which will require him to undertake placements which in turn require an Assessment Notice. It is in the public interest for him to be able to do so.
3. The public interest also incorporates the public interest in a rehabilitated person being able to fully engage with his own/step children and participate in all activities connected with them. I consider that it is in the public interest for JDH to complete his reintegration into society.

1. Pursuant to section 26 of the Working with Children Act 2005 and section 51 of the Victorian Civil and Administrative Tribunal Act 1998, I will set aside the decision of the Secretary to give JDH a Negative Notice and direct the Secretary to issue an Assessment Notice to JDH.

[1] In the Tribunal proceedings JDH and his partner each gave evidence.

[2] The parties agreed that the conduct would have constituted the offence of causing injury intentionally or recklessly contrary to s 18 of the Crimes Act 1958 (Vic). By virtue of cl. 11(c) of Schedule Two of the Working with Children Act, his conduct therefore constituted a Category B offence under that Act.