1. Upon the applicant undertaking not to engage in any work falling with the definition of 'child-related work' in the Working With Children Act 2005 except the work she now undertakes for West-Pine Pty Ltd (if that work is within the definition) the respondent's determination is stayed pending the hearing and determination of this proceeding.
2. Adjourned to a directions hearing at 9.30 am, 5 April 2013 at 55 King Street, Melbourne.

1. KVL sought an assessment under the Working With Children Act 2005 from the respondent, Secretary to the Department of Justice, by a request dated 5 August last year. The circumstances in which she came to seek that assessment arose out of her employment by a company which supplied cleaning services to a primary school in West Melton near her residence, known as Wedge Park Primary School.
2. She had worked for West-Pine Pty Ltd Cleaning Contractors for approximately two years and the principal of West-Pine, Mr Walford, and his wife, who is also a director of the company, had wrongly supposed that KVL had an affirmative assessment from the Secretary. Insofar as WestPine's principal business is supplying cleaning services to State and private schools, it is subject to a requirement of the Department of Education and Training of the State of Victoria that the cleaners which it supplies do have affirmative assessments from the Secretary under the Working With Children Act 2005. In due course the Secretary issued an interim negative notice.
3. KVL has sought a review of that negative determination and the matter has come on before me today as an application under Section 50 of the Victorian Civil and Administrative Tribunal Act 1998. Section 50 provides that, where an application for review of an administrative determination is pending before the Tribunal, the Tribunal is empowered to stay the effect of the determination pending the completion of the review application. So much is specifically catered for in Section 33 of the Working With Children Act 2005. Section 33 generally makes it an offence for a person to engage in child-related work without an assessment from the Secretary, but sub-section (2A) creates an exception where a person who has received a negative assessment has sought a review from the Tribunal. The effect of Section 33(2A) is that a person in KVL's situation, having received a negative notice and having sought review of it, will commit no offence by continuing in child-related work if she obtains a stay of that order pending the completion of the review application.
4. The matter before me today does not require me to make any final determination, merely to consider whether in the circumstances the effect of the Secretary's determination should be stayed pending a final hearing and determination of the Tribunal.
5. It is necessary at this point to turn then to some of the facts surrounding the present application. KVL was born in 1975. She is a single parent with one teenage daughter. At the age of 22 KVL fell victim to alcohol dependency. She says that she has been in that situation from the age of 22, which is presumably 1997, until approximately a year ago. Now she is a regular attender at Alcoholics Anonymous. She is confident that she will be able to maintain her situation of sobriety. She has previously been affected by depression. She says that a number of professionals, including an alcohol counsellor and one or more psychologists have diagnosed her as suffering from depression as well as obsessive compulsive disorder but, in her assessment, her sobriety has enabled her to escape from the depression.
6. Regrettably, KVL has been the subject of a lengthy history of brushes with the criminal law, admittedly not of the most serious kind. None has entailed the bringing of any prosecution for an indictable offence, all matters having been dealt with summarily in various Magistrates' Courts.
7. In 2002 KVL was charged with unlawful assault in the Melbourne Magistrates' Court. That matter was disposed of without conviction, an adjournment for 12 months and an order to pay $200 to the Court Fund. In the same year she was charged in Werribee Magistrates' Court with intentionally destroying property, again disposed of without conviction, adjourned for 12 months and ordered to pay $150 to the Court Fund. In 2004, charged in Sunshine Magistrates' Court, resisting Police, stalking another person and unlawful assault, convicted and placed on a Community Based Order for 12 months. In 2004, charged with being drunk in a public place, convicted and discharged in the Sunshine Magistrates' Court. In 2007, charged with unlawful assault, drunk in a public place, without conviction adjourned for 12 months. In the Ballarat Magistrates' Court in November 2010, charged with threat to inflict serious injury, contravening a family violence intervention order and recklessly causing injury and sentenced to two months aggregate imprisonment concurrently, sentence wholly suspended under Section 27 of the Sentencing Act. Also, on the same day in the same court, charged with wilfully damaging property, convicted and placed on a Community Based Order. Again, on the same day in the same court, convicted of criminal damage with intent to destroy. The sentence there was the same two month aggregate imprisonment to be served concurrently as to the other offence of threatening to inflict serious injury. Again, on the same day she was charged with behaving in an offensive manner in a public place, drunk in a public place, convicted and based on a Community Based Order for 12 months, to perform 60 hours of unpaid community work over six months. Finally, again on the same day in the same court, charged with a drink driving offence, convicted, placed on a Community Based Order for 12 months to perform 60 hours of unpaid community work, licence cancelled or disqualified for 18 months. Order on licence effective from 5 November 2010.
8. The scheme of the Working With Children Act 2005 is to create slightly different regimes for different classes of offence. The highest of the offences for KVL, according to the categories laid down in the Act, is a Category 2 offence under Section 13(1)(b) of the Act which categorises as Category 2 offences certain violent matters including the threat to inflict serious injury. Paradoxically, this threat of the infliction of injury ranks higher in the hierarchy of offences for the purposes of the Working With Children Act than the actual assault which was another matter for which she was convicted.
9. In addition, she has attracted the attention of the Department of Human Services in various respects relative to her parenting of her daughter and is the subject of a supervision order from the Department which will expire in August this year. It is in these circumstances that the Secretary made her determination to issue a negative notice.
10. It is appropriate also to consider a preliminary matter and that is, what is the appropriate test to apply to the adjudication both at the level of the Secretary and at the level of review in this Tribunal. KVL lodged her application for an assessment, as I previously noted, in August last year. Since that date, commencing in December, there have been amendments both to the Working With Children Act 2005 and to the Victorian Civil and Administrative Tribunal Act 1998 in its provisions specifically dealing with working with children matters which impose a higher hurdle for someone in KVL's situation.
11. Section 14(3) of the Working With Children Act 2005 now provides:

14(3) In satisfying himself or herself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Secretary 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. In the case of the Tribunal, sub-clause (3) has been added to Clause 102, Schedule 2 of the Tribunal's statute, providing:

Even if the Tribunal is satisfied under sub-clauses (1) and (2) that giving an assessment notice would not pose an unjustifiable risk to the safety of the children the Tribunal must determine if 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. Mr Panayi who appears for the Secretary has informed me that there are no transitional provisions affecting the introduction of these changes to the relevant tests. We are therefore left at large in accordance with the general principles of case law and of the Interpretation of Legislation Act 1984 as to how, if at all, those additional requirements and more rigorous tests apply to KVL. Without referring to the authorities themselves, or to the provisions of the Interpretation of Legislation Act, the general principle is that amendments to the law which are procedural take effect retrospectively. That is, they have effect upon proceedings, processes and so forth that are already in train at the time they take effect. On the other hand, changes to the law [Maxwell v Murphy [1957] HCA 7; (1956) 96 CLR 261] which are substantive are presumed not to have retrospective effect. Put another way, a person who has a pending application or a pending process is regarded as having an accrued right to have it dealt with in accordance with the old law rather than in accordance with the new law. The authorities as to the application of these relatively easily stated principles indicate that their application in practice is quite difficult. A relatively recent authority of the High Court of Australia, Esber's case, [Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430] indicates that in circumstances such as the present, it may well be that KVL is entitled to have her application dealt with in accordance with the less rigorous test rather than the more rigorous test. I pass on from that issue for a moment to observe a further complication in her application.
2. It is the contention of Mr Panayi on behalf of the Secretary, that the work which KVL does, which commences at 3.00 pm at the primary school and lasts for some hours thereafter, totalling 15 hours a week, is not child-related work within the meaning of the Working With Children Act 2005. The result then is, that to the extent that the Department of Education and Training stipulates, that the cleaning company must supply cleaners with assessments under the Working With Children Act 2005, it is requiring something which is, according to the statute, unnecessary. Mr Panayi referred me to the definition in Section 9(1) of the Working With Children Act which relevantly says:

(1) For the purposes of this Act, child-related work is -

(i) under a contract of employment or a contract for services (whether written or unwritten); or

that usually involves, or is likely usually to involve, regular direct contact with a child in connection with a service, body, place or activity specified in subsection (3) in circumstances where that contact is not directly supervised by another person.

1. Mr Panayi's submission is that the work as a school cleaner, being almost entirely after hours and not entailing any direct interaction with the children, is simply not child-related work and, to the extent that the Secretary is being pressed to provide an assessment, it is an unnecessary demand and further, that KVL should be entitled, as a matter of law, to continue in her employment without any positive assessment.
2. I turn next to the general merits of KVL's application. Since this is a purely interim application it is unnecessary for the purposes of my reasons now to go to the detail of the various matters which the Secretary and this Tribunal on review, must consider under Section 13(2) in determining whether or not to grant an assessment favourable to the applicant. These are matters of great detail. Without going to them in their extensiveness, all of the various brushes with the criminal law which KVL has had are relevant as a result of the various paragraphs as are her interactions with the Department of Human Services. Her case is that all these things have happened and, whilst she has offered various defences relative to these matters by way of explanation, she does not seek to justify them. These things happened because at the time she was in the grip of alcoholism and attention-seeking behaviour. She says that she is no longer that person and has remained sober for a period of 12 months. Further, she produces references from a number of people including the pastor of her church and the principal of her employer, Mr Walford, who has come along to give evidence today and has given a very glowing reference for her as to her reliability and the efficiency of her work.
3. She says that, unless this stay is granted and ultimately a favourable assessment is made in her favour, she will lose her present employment. Mr Walford says that, whilst there are other employment opportunities in the cleaning field for her, she is constrained as to the opportunities which she might take up because she does not drive. Presumably this flows from the problems which she has had with alcoholism in the past.
4. Mr Panayi on behalf of the Secretary has drawn attention to the fact that various of the offences that appear in KVL's history relate specifically to children as that term is understood by the Working With Children Act. One of the assaults which appears to have been quite a violent affair was inflicted on a 15 year old boy. One of the threats of violence was directed to a person under the age of 18 and therefore a child. Mr Panayi says that, in the circumstances, the prospects which the applicant has of obtaining a favourable assessment in the future are quite limited, because what is evident in the period 2002 to 2010 is a pattern of violence directed amongst other things, towards children. This is the very sort of thing that Parliament is seeking to control by the Working With Children Act and therefore, said Mr Panayi, the prospects for this applicant are quite bleak. Mr Panayi says that the determinations of the Tribunal, beginning with Bell v Liquor Licensing Victoria [2000] VCAT 214 and following on with many others in circumstances such as this, direct attention to a number of things, first, the dominant principle that a stay will be granted to an applicant whose review application would otherwise be rendered nugatory. This principle Mr Panayi says, is not favourable to KVL because first, the work that she wants to continue doing is not really child-related work. Secondly, there could be a speedy hearing of her substantive application and in any event, he says, she could obtain work cleaning premises other than schools.
5. He said a consideration of the likely outcome of the review application, would, for the reasons already mentioned, suggest failure rather than success. Thirdly, the matter of prejudice to the applicant. He said the opportunities for other employment, the lack of a strict necessity for the assessment anyway means that there is no serious prejudice to KVL if she fails in this application and, given the serious issues relative to violence towards children, the public interest pointed away from the grant of any stay. Finally, he said there is no reason to think that there cannot be a speedy hearing and therefore, that is another reason why there is no occasion to intervene here with a stay.
6. KVL might be thought at this point to be in a very difficult situation. The Crown, we are told, is one and indivisible, yet we have the Secretary of one department of the Crown in right of the State of Victoria telling us that, in the circumstances now confronting the Tribunal, no assessment is required under the Working With Children Act 2005 and in effect, she, the Secretary, is being vexed with this application which is unnecessary. On the other hand, we are told by Mr Walford, and there appears to be no reason to doubt him in this respect, that the Department of Education and Training which is an emanation of the Crown in right of the State of Victoria, insists that KVL be possessed of an assessment under the Working With Children Act 2005 or would regard her as disqualified from carrying out the work which she wants to carry out. No doubt, one should not in any way diminish the significance of the wrong that KVL has done, but the evidence clearly establishes that she is seeking to put her life in order and to do what the community wants her to do, namely to build a stable and responsible life. It seems a terrible thing that a person in that situation should be confronted by the phenomenon that I have just described.
7. Is there any practical solution to the paradox of the competing opinions between organs of government as to what is necessary for KVL? In my view, there is at least an answer for it at this interim stage. I will indicate what it is in a moment.
8. I will, however, turn first to the issue of whether failure of this application has the potential to render the entire review application nugatory. Someone with KVL's history, as I have repeated it, will not I think find it easy to obtain employment. She has the restriction of not being mobile and living in a location, namely Melton, which is not well served by public transport. This makes the matter even more difficult. As a matter of practicality, Mr Walford has said, if the application today is not successful, he will have to let her go. In those circumstances, in my view, it is appropriate to think that failure today could well render KVL's review application nugatory and that significant consideration goes in her favour. Going against her are the fact that her application faces very serious obstacles because of the significance of her criminal history, its material connection to children and its recent nature. This is not something from the dim and distant past in her life, it is quite recent and Mr Panayi is correct in observing that a year in sobriety is not a guarantee of an entire lifetime of sobriety.
9. The public interest, however, is not so manifestly contrary to the present application as Mr Panayi's application would suggest. In effect, the Secretary says that, what KVL is doing now does not amount to working with children. If I accept that submission and it is a persuasive one, then viewed from the perspective of the Working With Children Act 2005, to enable KVL to continue doing what she is doing, does not, as it seems to me, threaten the public interest in any way. In my view, the argument that KVL's application should be dealt with under the old law rather than the new law seems quite strong, albeit that I have not had the opportunity this morning to consult the standard authorities on the subject. If an arrangement could be made on an interim basis, whereby she could continue doing what she was doing but was not clothed with the legal authority to undertake anything other than what she is doing which might arguably be regarded as working with children, then there would in my view be no significant threat to the public interest. Mr Panayi has observed deficiencies in KVL's case, including the lack of evidence from a psychologist, an alcohol counsellor, or someone of that type. At a final hearing those deficiencies could conceivably be made good. Section 130 of the Victorian Civil and Administrative Tribunal Act 1998 authorises the Tribunal to make orders conditionally and subject to undertakings.
10. In those circumstances, I believe the just order today is that I stay the operation of the Secretary's negative determination subject to an undertaking on the part of KVL, that, pending the hearing and determination of her application for review, she would not engage in any work arguably falling within the definition of working with children in the Working With Children Act 2005 other than the work which she now undertakes for her present employer. She would then have the task before her of perhaps putting on a fuller and more ample case at the final hearing of her application.