Pursuant to Section 26(2) of the Working with Children Act 2005 the Tribunal directs the Secretary to issue an assessment to the applicant.

1. The Working With Children Act 2005 establishes a regime whereby individuals may only engage in child related work, as that expression is defined in the statute, if the relevant individual has obtained a positive assessment under the terms of the statute from the Secretary to the Department of Justice.
2. In that respect, the Secretary's consideration of applications for assessment is conditioned by a series of different regimes, having regard to whether or not an applicant for assessment has been the subject of adverse findings relative to criminal offences. These offences are categorised in a variety of ways for the purposes of the statute relative to their significance to child related work as Parliament has viewed it. The most serious matters in this regime are what are described as Category 1 offences.
3. In the present proceeding, JGF, the applicant, was born in September 1970. On 4 October 1990, he was the subject of findings of conviction in the Magistrates' Court of Victoria at Werribee on two counts of sexual penetration of a girl between the ages of 10 and 16 and one count of indecent assault. The statute treats these convictions as Category 1 offences and provides, in section 12(2) that in the face of those convictions, the Secretary is required to give a negative assessment to a person who has undergone those convictions.
4. Section 26 of the statute, however, entitles this Tribunal to review the matter and to grant a positive assessment to an applicant subject to the provisions of the section. Since there has been no exercise of discretion by the Secretary, based on the mandatory outcome required by Section 12(2) the jurisdiction that the Tribunal is now exercising is original and not review jurisdiction.
5. JGF is represented by Ms Forsyth of counsel and the Secretary to the Department is represented by Senior Legal Officer, Mr Ventrice. Mr Ventrice has said that the Secretary's position is to neither consent to the grant of an affirmative assessment nor to oppose. He has taken me to the relevant provisions and made very useful comments on the significance of these various matters and in relation to the evidence which has been placed before me. Ms Forsyth, of course, on behalf of JGF has taken me in detail to those matters.
6. JGF has made a statement explaining the circumstances of his offending and describing his life since then. He says that he wishes to have an assessment under the statute to enable him to coach his eight year old son's basketball team. His statement discloses that he has, since 1989, worked as a mortgage broker in the same brokerage. The events which led to the convictions in the Werribee Magistrates' Court in 1990 occurred in late 1989 and therefore JGF was aged 19 years at the time. He had already commenced work as a mortgage broker at the brokerage where he still operates now as a principal and he had taken up residence in a domestic relationship with a girlfriend. The girlfriend's niece visited from time to time. She was aged 14 years. It was in the course of these visits that some three sexual encounters took place. JGF says that they were all consensual, none of them involved vaginal intercourse. There is no evidence which would contradict JGF's account in this respect. The charge of indecent assault is suggestive of a non-consensual event, but as Ms Forsyth commented, or Mr Ventrice it may have been, the offence has been framed in this way, presumably on the basis that the girl in question was below the legal age of consent and so for legal purposes the encounter was deemed to be non-consensual.
7. JGF has advanced in his profession as mortgage broker and become a principal. He is now a married man with two children and he has borne a good character since the events of 1990. I have heard evidence from the gentleman who was his principal and employer in 1989; from his now wife and his father-in-law and also from a friend of the family, all of whom attest to JGF's good character. More specifically, the then employer and JGF's wife have said that he was candid in disclosing his offending at the time that the charges were laid in the case of the employer and early in the relationship in the case of his wife.
8. With that narrative it is appropriate for me now to turn to the provisions of the Working With Children Act 2005 which must inform my determination today. Section 26(1) provides that a person in JGF's situation 'may apply to VCAT for an assessment notice to be given to him or her'. Sub-section (2) sets out a series of specific criteria which the Tribunal must consider in the course of a proceeding such as this under a general obligation that an assessment is not to be given to an applicant unless the Tribunal 'is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children'.
9. I turn then to the specific criteria. The first which I am required to consider is the nature and gravity of the offence and the relevance to child related work. Mr Ventrice has referred me to the very heavy penalties which conviction of the offences in question here might have imposed. As to one set of offences, a maximum penalty of 15 years imprisonment is a possibility. As to another, imprisonment for five years. This shows that these offences are serious indeed, yet I must observe that these very heavy penalties were capable of being imposed had the matter been dealt with on presentment in the Supreme or County Court. As it was, these matters were dealt with summarily and a much lighter range of penalties was available to the Magistrate.
10. The second matter for consideration is the period of time since the applicant committed the offence. These events apparently occurred in late 1989, though there is some unclarity here. JGF was 19 at the time and given his time of birth in 1970, these events are not only a long time in the past in absolute terms, namely almost 24 years ago, but also they are more than half of JGF's life ago.
11. The next matter which I must consider is whether a finding of guilt or a conviction was recorded and convictions do seem to have been recorded and these are negative matters as far as the present application is concerned.
12. The sentence imposed for the offences is relevant too, as the next criterion, and the sentence imposed was a Community Based Order of some 150 hours of unpaid community work. This is not an insignificant sentence, however compared to the head sentences which might have been imposed on presentment, it's a relatively light one. It is consistent with the fact that the police, as prosecuting authority, saw fit to have these matters dealt with summarily, meaning that whilst they are serious, they are not of the most serious type.
13. The next criterion for consideration are the relative ages of the applicant and victim. As noted JGF was 19 at the time, the girl involved was aged 14 years. The law presumes her to have been incapable of consenting to what occurred and that is significant, yet the ages are not widely disparate as between themselves and the relative youth of JGF at the time is a matter mitigating the significance of these convictions as it seems to me. As I will note later, I have had expert reports from a consultant psychiatrist and clinical psychologist placed before me, Drs Entwhistle and Kennedy both of whom express the view that these offences were committed at least partly arising out of JGF's then immaturity.
14. The next matter for consideration is whether or not the conduct that constituted the offences has been decriminalised and the answer is it has not been. Indeed, it is fair to say that society regards these matters more seriously now than it did even in 1990 and this can scarcely be a positive as far as the present application is concerned.
15. Next, at paragraph (g) of Section 26(2), I am required to consider the applicant's behaviour since he or she committed the offence and the evidence is that JGF has borne an honourable character, has established himself as a respectable family man and business professional. These considerations are entirely positive.
16. Paragraph (h) requires a consideration of the likelihood of future threat to a child caused by the applicant. I have referred to expert opinions of Drs Entwhistle and Kennedy. Both of those gentlemen have put the risk of further offending as low, and therefore that expert opinion must render this criterion a positive as far as this applicant is concerned.
17. Paragraph (i) requires consideration of any information given by the applicant in or in relation to the application. The information in question here, is JGF's explanation of the offending itself, the character evidence to which I have made reference and the expert opinions to which I have already made reference. That additional material, as I have described it, is generally supportive of JGF's application.
18. Finally, paragraph (j) refers to any other relevant matters but in my view, in one way or another, the considerations to which I have made reference already, exhaust the universe of considerations which seem appropriate in all the circumstances based on the material that I have.
19. Having considered those matters, according to Section 26(3) I am entitled, if satisfied 'that giving an assessment notice would not pose an unjustifiable risk to the safety of children', to direct the Secretary to give the assessment notice to the applicant if I conclude 'that in the circumstances it is in the public interest to do so'. In that respect I am required to consider these matters in light of an additional sub-section added to Section 26 at the end of last year as sub-section (2A) which is in the following terms:

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;

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

This sub-section is significant, not merely because of its own terms but also because of its legislative history. It represents an addition to the legislative regime governing these matters, made quite recently. It indicates that potentially Parliament may have had some apprehension that insufficient caution was being given by the Tribunal in hearing applications such as the present. At any rate, whether that is a correct interpretation of Parliament's intention, it underlines to my mind the caution and the deliberation which I am required to bring to a determination of this present matter.

1. I was referred by Ms Forsyth to a decision of BHB v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1946 in which Vice President Judge Harbison stressed that this wasn't merely a matter of mechanically counting and weighing factors set out in the various paragraphs of Section 12(2), rather it required an assessment by the Tribunal of the situation as a whole in light of the matters in the several paragraphs. Her Honour's observations are, in my view, reinforced by the fact that since she made them, Section 2A has been added to Section 26 in the terms of which I have already quoted.
2. My narration so far entails a consideration of the various paragraphs and the narration will indicate that, whilst the convictions are very significant and very pertinent to the focus of the Working With Children Act which is particularly concerned with matters of sexual impropriety, the particular circumstances and the period of time which has ensued since the offences were committed and the good character borne by JGF will lead to the balance going down in favour of the applicant and the success of the application. More generally, it is necessary to give attention to a number of concepts which in various ways are raised in the statutory provisions which I have narrated. I am invited and required at a number of points, to consider whether there is an unjustifiable risk. In that respect, albeit that His Honour was dealing with a proceeding relative to an individual who had been convicted of what the statute describes as Category 2 offences, the observations of Kyrou J in LKQ v Secretary to the Department of Justice 2011 VSC 227 are pertinent.
3. At paragraph [43] of His Honour's judgment, in dealing with the concept of unjustifiable risk where the Secretary was required to exercise at first instance, discretion, His Honour said:

The expression 'an unjustifiable risk' does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.

1. I approach that matter, directed by His Honour's analysis as to the purport of the phrase 'an unjustifiable risk'. Here, it must be said that all adults are capable of wrongdoing, of errors of judgement, of outbursts of anger and so forth. Therefore, no interaction between an adult and a child is entirely risk free. That is why the statute requires these determinations to be made having regard to the avoidance of unjustifiable risks. Human life can never exclude risk entirely. In light of the good character that JGF has borne for most of his adult life, his present stable situation and the expert opinions to which I have referred, I am satisfied that he does not represent an unjustifiable risk to children with whom he might work.
2. It follows, therefore, that with respect to the criterion of the avoidance of unjustifiable risk to be found in Sections 26(3) and 26(2A)(b) I am satisfied that as to those matters this application should succeed.
3. As to Section 26(2A)(a): whether a reasonable person would allow his or her child to have direct contact with JGF that was not directly supervised by another person, again, I am satisfied that this matter should be resolved in favour of the applicant. A reasonable person would be acquainted with the truism I mentioned a few moments ago that there are no risk free encounters in human life. A reasonable person would, in considering the situation of JGF, wish to acquaint himself or herself with the full range of material that has been placed before me including the character evidence, the history of his good character during his adult life and the expert opinions. A reasonable person would retain a measure of scepticism and caution but would not approach an issue such as this with the thought that once a person had, if you will, shown the cloven hoof, albeit decades ago and as a very young man, that he could never be redeemed.
4. In light of those matters and having regard to the considerations which I have already narrated, I believe a reasonable person would be agreeable to a child having direct contact with the applicant without direct supervision in terms of the relevant paragraph.
5. Section 26(3) requires me also to consider whether it is in the public interest to grant the assessment notice. This is reflective, I think, of the fact that a person who has been the subject of conviction of a Category 1 offence or offences in terms of the statute, starts with a presumption that such person is unfit to carry out child related work. The statute does not explain precisely what the public interest is. Self-evidently, the public interest is concerned that unjustifiable risks not be taken by allowing children to be in the company of adults of dubious moral standing. There are other public interests as well. Public interest is not in my view served by saying once a person has taken the wrong turn, that person can never be redeemed. There is a public interest in family men being able to participate in the lives of their families and their children to the fullest extent possible which necessarily would require such persons to engage in volunteer and child related work in connection with the rearing of their own children. It is in my view in the public interest that this occur so long as no unjustifiable risk is entailed. I have already explained why in my view no unjustifiable risk is entailed here. Again, as Ms Forsyth correctly observed, there is a public interest in the encouragement of volunteer work and finally, and perhaps most importantly, there is a strong public interest in rehabilitation. Those who have offended should at all times be encouraged to accept and believe that by turning aside from wrongdoing and bearing a good character they can redeem themselves in the sight of the community and be readmitted in every respect as persons in good standing.
6. Weighing all those things together, I am satisfied that it is in the public interest to grant the assessment that is sought here and accordingly I direct in accordance with Section 26(3) of the Working With Children Act 2005 that the Secretary to the Department of Justice give an assessment notice to the applicant under the terms of the statute.