Victorian Civil and Administrative Tribunal|2011-04-08

The applicant's behaviour since he committed the offence

I have already referred to some matters relating to LMB's behaviour since the commission of the offence. All of those matters relating to his behaviour or everything that I take into account in respect of LMB's behaviour since the offence indicate that he has used his time very well and demonstrated that this was a single instance, regretted and not repeated. He has been, as Mr Cash said, tremendously productive in pursuing further qualifications since the commission of the offence. He has worked as well as studied and his qualifications are extensive. It is no mean feat to be honoured by a Fellowship from the College. That reflects, in my view, the commitment to improving himself, to improving his qualifications and to committing himself to nurse education in the way he has. The fact that he has worked and studied simultaneously, sometimes doing both full time, shows a commitment to that and a placing his life on track in a way that stands in contrast with his life at the time of the commission of the offence.

Although, on the material before me, he does not seem to have a broad or extensive social life, he is not isolated. He has family support and he clearly has good friendships and relationships with students and fellow teachers at the University. Therefore, the risk factors often associated with isolation and unhappiness are, if not absent, at least significantly reduced here. Dr Walton emphasised the fact the LMB was no longer isolated or unhappy as he was at the time of the commission of the offence. I also take into account that LMB's behaviour since the commission of the offence demonstrates that he has developed insight into the effect of his conduct on the child and also into the ramifications of that wrongdoing for him in the longer term. So there is nothing in his behaviour since he committed the offence that in my view gives rise to any concern that children might be at risk.
I do not consider, on the materials before me, and by reason of the matters to which I have already referred, that there is a likelihood of future threat to a child by LMB obtaining a Working With Children certificate. It is clear that the onus is on LMB to indicate that there is no likelihood, or that the likelihood as to a future threat is such as to mean that I could reach an affirmative level of satisfaction, that there would not be an unjustifiable risk to the safety of children if a certificate were granted.

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

By reason of his history since the offence, the assessments of Dr Shum and Dr Walton at the time, the later assessment of Dr Walton, and the evidence of his work history and family contact, I am satisfied that he would not be an unjustifiable risk to the safety of children were a certificate to be granted.

Any other matter that VCAT considers relevant to the application

I do not consider there are any other matters relevant to the application. I have already taken into account the evidence from the other witnesses in making my assessments on the earlier matters. I am satisfied that giving a notice would not pose an unjustifiable risk to the safety of children. Despite the seriousness of the offence itself, the circumstances of the particular offence and the circumstances of LMB as they have been presented before me, both at the time, and more importantly, since then, satisfy me that he does not pose an unjustifiable risk to the safety of children.
That is not the end of the matter. The next matter that I need to consider is whether it is in the public interest to direct the Secretary to give an assessment notice.

In my view, when considering whether it is in the public interest, I must take into account other matters in addition to the public interest in protecting children against unjustifiable risk of harm. Because, under s 26(2), that is in effect a precondition for the making of the assessment of public interest under subs (3) of s 26. It is clear that the notion, or what is involved in the notion of public interest, is broad. The matters that were relied on by Mr Cash were these:

● that there is a public interest in ensuring that those who have properly demonstrated that they have addressed their rehabilitation seriously should be given credit for that and that rehabilitated offenders should be admitted back into society and admitted back into the working world;

● that the encouragement of rehabilitation should be encouraged by not turning people away from a career that they have chosen and demonstrated commitment to or not doing it lightly.

Mr Cash also submitted that there was a public interest in ensuring that a dedicated and highly qualified person as LMB is, be encouraged to work in his chosen field, using his qualifications, experience, expertise and skills for the benefit of others. I agree, that too, is a public interest factor which should be taken into account.
Mr Burns, on behalf the Secretary, relied initially on two grounds. The first that it was not in the public interest because of the nature of the offence. As I have already indicated, I consider that to consider the nature of the offence when considering the public interest, would be to introduce into the public interest question the matters that already have had to be considered under s 26(2). It is not appropriate generally, in my view, to double-count them. If somebody has satisfied the criteria in s 26(2) and demonstrated that they are not an unjustifiable risk to the safety of children, it seems to me that it would be wrong to rely on the offence and offence alone to demonstrate that despite that, it would not be in public interest to direct the issue of an assessment notice. There may well be some cases at the edge, some extreme cases, or unusual or extraordinary cases, where the nature of the offence might be such despite the fact that there is no unjustifiable risk to the safety of children as to justify not granting an assessment notice. That is not the case here. It is certainly not the case that one could consider, because of the nature of the offence, that of sexual penetration of a child between 10 and 16, that that alone would be one to preclude the grant of a certificate. If that were the case parliament could have said so, but parliament clearly made provision for a specific consideration of such cases on their individual merits.
I also do not consider it appropriate to think of whether the public would be amazed if the certificate were granted to a person with a prior conviction for a serious sexual offence. Unfortunately, often public amazement is based on lack of full information provided to the public and public amazement might not be so if the process under s 26 were properly explained and the matters that had to be canvassed under it were properly explained to the public. In any event, when I raised my concerns with Mr Burns he did not pursue that basis. He had a much more significant ground and that was this:

● That it was not in the public interest to direct the issue of an assessment notice because one was not needed in the circumstances.

That required an analysis of some provisions of the Act. By s 9(1) of the Act, child related work includes work engaged in under a contract of employment or a contract for services 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 contact is not directly supervised by another person.

LMB is engaged in work under a contract of employment or contract for services but Mr Burns submitted that it was not work that usually involved, or was likely usually to involve regular direct contact with a child in connection with one of the services identified in s 9(3). Section s 9(2) includes in the services bodies, places or activities in connection with which regular direct contact with children may result in work of a kind referred to in subs (1) being child related work include educational institutions. Educational institutions is defined in s 3 of the Act to mean, amongst other things, a university with a TAFE division within the meaning of the Education and Training Reform Act 2006 to the extent that the university provides technical or further education to the extent that the college, university, provider, institution or organisation provides a program of study or training primarily for, or directed at, children and that leads to the award of Senior Secondary Certificate of Education that is recognised by the AQF within the meaning of the Education and Training Reform Act 2006 but does not include - except to the extent provided by sub (b), a university within the meaning of the Education and Training Reform Act 2006; or except to the extent provided by paragraph (b) a TAFE institute or an adult education institution within the meaning of the Education and Training Reform Act 2006 - even if that university, college or institution has a student under 18 years of age.
It may be that Mr Burns' analysis is correct, that it is not necessary for LMB to have a certificate to do the work he does at the University within the TAFE sector. But I am now faced with a difficult dilemma. LMB, i the belief that it was necessary to apply for a certificate for that purpose, did so. The Secretary issued, as she must, once receiving an application in respect of a Category 1 offence, a negative notice. The effect of that negative notice in practical terms has been that LMB's employer has taken him away from any direct contact with children under 18 and that means removing him essentially from any first year or one year long course teaching loads where there are likely to be children under 18 enrolled. By children under 18, this means 17 year olds, school leavers, who are undertaking these courses. He has also been moved away from a coordinator position that might bring him into contact with children. The employer is clearly doing that under the belief that it must do so, having been notified of the negative notice. LMB cannot apply for another Working With Children notice for five years and cannot apply for any position working with children whilst he is under a negative notice. Although the Act makes provision for an applicant to withdraw their application before a decision is made, they cannot withdraw an application after an interim negative notice has been issued. Had this been a matter that the Secretary's delegate had understood to be a live issue in this case, it may well be that if LMB had been given advice at that stage, that it was believed it was not necessary for him to apply for a certificate to continue to do the work that he has done, he could have been in a position where he could have withdrawn his application and would not be as he is now, labouring under a negative notice.
And so, I consider I will have to deal with this on the basis that this is a person who, in good faith, applied for a certificate, believing it was necessary and who has now received, as he must under the Act, a negative notice, because of the Category 1 nature of the application.
Mr Burns referred me to a decision of this tribunal in OP v The Secretary:[5] a decision of Acting Deputy President Billings delivered on 9 June 2010. In that case Deputy President Billings said at paragraph [54]:

Although having an assessment notice will perhaps increase the opportunities for OP within the nursing profession, it was conceded on her behalf that she does not require it for that purpose. There is other employment that she has found before that may be available to her now. From that point of view, the public interest would not demand that she be given an assessment notice.

Clearly, the application that OP has made has special importance for her. It is to be hoped that her experience will be that she can largely if not entirely achieve what she wants to achieve without the assessment notice that she seeks.

I have now had the opportunity of reading the whole of the decision. What Deputy President Billings said in those paragraphs I have just quoted was prefaced by these remarks in paragraph [53]:

I re-state my conclusion that I am not satisfied that giving OP an assessment notice would not pose an unjustifiable risk to the safety of children. This conclusion makes it unnecessary to consider the public interest, but I make some observations about that.

So, OP had already failed to satisfy the tribunal of the matters under s 26(2). So what Deputy President Billings was saying was not strictly necessary for his decision. It was clear too that OP was not in the same position that LMB is. That is that LMB is currently working in a position where he had a belief, as did his employer, that he needed a Working With Children certificate and it was motivated by that belief that he made the application. OP on the other hand was, in effect, hoping to clear the slate or clear her name in order to be able to make fresh start and apply for positions for which she may need a Working With Children certificate. That is a very, very different situation, in my view, from the situation here.

In my view, it is perfectly correct to say as Acting Deputy President Billings did, that it is generally not desirable to deal with a Working With Children application in order to assist somebody to somehow clear the slate, clear their name or move on. There has to be some real purpose for obtaining it, either by reason of the work they are actually doing, the work they have been offered or something like the course of events that LMB has now found himself caught up in. Therefore, whilst I can understand and would agree that there would be cases where it would not be in the public interest to grant a Working With Children certificate to somebody who did not need it for the work they were actually doing or the work they were intending to apply, this is a somewhat unusual case. Therefore, I do not consider that in the circumstances of this case, it is in the public interest to refuse the application, having been affirmatively satisfied of the s 26(2) matters, because it is not or may not be necessary to have a certificate for the work that LMB does.
It does give rise to some concerns that people in LMB's position may well be making unnecessary applications. That is, that they are not required to have Working With Children certificates, that employers are not required to, or indeed entitled, to ask for Working With Children certificates and that the understandably onerous provisions of this legislation designed to make sure children are safe from people who are working with them are not extended into circumstances where parliament never contemplated they should be extended, by reason of employers having mistaken views about the application of the Act. There are some very good public policy reasons why such legislation exists but it should be kept within the constraints imposed by parliament and not be used as a defacto character clearance for anybody engaging in work in the broader sectors in my view.
So the public interest factors that I have identified, the fact there is strong evidence of rehabilitation and that should continue to be supported, that people should ultimately be able to put their offending past behind them if they show, by their subsequent conduct, they have done so, have that people who have skills and talents use them not just for themselves but for the benefits of others, and that a person who is put in a position where he may have made an unnecessary application but now is worse off by reason of having received a negative notice then he would have been had he not made it are all public interest factors that, in my view, point to it being in the public interest to allow the application. I therefore, pursuant to s 26(3), direct the Secretary to give an assessment notice to the applicant.

LMB v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 595 (8 April 2011)

LMB v Secretary to the Department of Justice

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (1)

LMB v Secretary to the Department of Justice (Occupational and Business Regulation) [2011] VCAT 595 (8 April 2011)