1. The applicant gave evidence. He told me that he had wished to appeal the respondent's decision from the time that it was made. However, he had previously appealed several years before, when the respondent had made an initial decision to refuse his Working with Children application. The fee to appeal that decision was in the region of $600.00. He had been unable to afford that amount and so had applied for waiver of the fee.
2. He was successful in obtaining a waiver, and was also successful in that initial appeal - coming then to be granted the Working with Children accreditation which he held at the time of engaging in the conduct enquired into by the Suitability Panel.
3. However, when he came to consider appealing the decision of the respondent following on from the Suitability Panel findings, he was under the misapprehension that the fee would only be waived on one occasion. He therefore felt that if he were to appeal he was facing the full cost of appealing the decision.
4. He looked at the VCAT website and from the website was also under the misapprehension that he would need a lawyer in order to bring an appeal.
5. He discussed these matters with his wife. At the time he was unemployed, having lost his previous position because of the Suitability Panel findings.
6. He was trying to survive financially and to support his wife and four young children.
7. He and his wife discussed getting a bank loan to pay this cost, but ultimately decided that it was impossible for him to afford to do so. He described those costs as being "humungous" to a man in his financial circumstances.
8. Ultimately he was able to get other employment. This employment was with the Melbourne City Mission. He was employed as a disability worker, working only with adults.
9. Once he obtained that position, approximately 4 years ago, he decided not to proceed with an appeal because, although he still believed the decision to be unjust, he no longer required the working with children accreditation in his employment.
10. Between the time the decision was made in August of 2013 and the 17 November 2016 he took no further action.
11. Effectively he was prepared to leave the decision stand because he did not think it now had any practical application to his employment.
12. However, his situation changed completely in mid-2016. This was because his employer decided that all employees, whether working with children or not, would require working with children accreditation in order to be able to maintain their employment. The applicant was therefore faced with the imminent loss of his job unless he was able to overturn the decision made on 7 August 2013.
13. It was in those circumstances that he once again approached this Tribunal and sought to appeal out of time against this decision.
14. He had been contacting the Department every few years in that intervening period to see whether he could apply again for working with children accreditation but had effectively put it on the backburner until his employers position changed and in his words "his future was on the line". All positions within his area of work, whether with his current employer or elsewhere now appear to require a working with children check.
15. Apart from working in the community services area he is unskilled and unqualified for any other occupation.
16. He has a Diploma of Community Services in disability support but this qualification will be useless if he is unable to obtain working with children clearance.

The subject matter of the withdrawal of his working with children accreditation

1. I earlier referred to the applicant's conduct in sending text messages to children under his care. This conduct occurred in August of 2012 and the child involved was 14 years of age. He was 36.
2. The details of this behaviour is set out in detail in the Suitability Panel's findings and I will not refer to it in any detail here.
3. It is sufficient for the purposes of this application to indicate that there were three sexually suggestive text messages sent. They were as follows.
4. The first was this "I did not want the other staff to know, but I think you are fucking hot".
5. The second was this "I am going to try and get a sleep over here. Would you sleep in the staff bedroom with me if I did sleep over?" The third one was this "I want to take you to meet my mum and if she likes you I will tell her that you are the one.
6. Each of those text messages seem to have been sent within a short period of time to the same girl.
7. The applicant's explanation of these texts at the time was that they were not really sexual in nature and they were just general talk, and that he was trying to support her and just "mucking around" by sending these texts. He also appeared to be saying that the texts he sent should be seen within the context of a great many texts which she had sent him and in a situation where he wanted to make sure that he did not reject her in the way in that she had been rejected by other people in her life.
8. The applicant was not the subject of any police charges in respect of the sending of these texts. He was however, as I have previously indicated, dismissed from his job because of his conduct in sending them.
9. This then is the factual background on which I must base my decision as to whether or not leave should be granted to the applicant to challenge the Department's determination.

1. The Department submitted that the circumstances put forward by the applicant did not constitute an acceptable explanation for the delay.
2. The delay is a period of almost three years. There is no doubt that the applicant knew his rights to appeal. There is no doubt that he may have had opportunity to make inquiries as to whether the financial aspects which he outlined were in fact required before an appeal could be instituted.
3. The Department submits that the very long delay is quite unacceptable and has not been explained.
4. I must say that I am not persuaded by this argument. It appeared to me that the applicant was being honest and frank in giving his explanation about the delay and his explanation has the ring of truth about it. Although he ultimately made the wrong decision in deciding not to explore the practical prospects of appealing in 2013, his explanation as to why he did not makes perfect sense. It also makes sense to me that once he obtained further employment which was not in child related area that he decided not to spend money on attempting to appeal.
5. The second issue pressed by the Department was that the real reason for this appeal was to circumvent the five year disqualification period found in the Working with Children Act.
6. In effect the Department submitted, the applicant has been the subject of an unfortunate change in his circumstances. He thought that he would no longer require working with children accreditation, and now because of a new policy of his employers he does not in fact require it.
7. The argument of the Department was that the Act is deliberately severe as to the period required before a further application can be made.
8. The Department pointed out that there may be very many changes of circumstances which may warrant revising a decision to refuse working with children accreditation. The bar has deliberately been set at five years in order to discourage multiple applications. If I was to allow this application, then there would be little reason not to allow the same flexibility to each person in the same position as this applicant, where that person has had a change in employment. .
9. It was emphasised that the applicant was only unemployed for four months altogether and had ample time over three years to make the inquiries about how to deal with the financial hurdles that he felt were in his way. He could for instance have obtained legal advice at a community legal centre, or have rung the Tribunal to make an inquiry about the application fee. He has effectively only been galvanised into action by a change in his employment circumstances.
10. It was further submitted by the Department that because there has been a lengthy delay, an applicant should be required to make out a strongly arguable case before this discretion is exercised.
11. Lastly, it was submitted that the applicant had not continued to make the Department aware that he was to appeal and in those circumstances the unravelling of the original decision would create prejudice and unfairness to the Department.
12. This was put on the basis that the Department's officers need to be confident about the stability of the decision making process so that resources can be allocated correctly and that the community can be confident that people in like circumstances are treated equally. This was said to be particularly important because the aim of the Working with Children Act is the protection of the public and both the general public and employers should be able to rely implicitly upon determinations made by the secretary. There should not be any uncertainty as to whether the time limits or procedure set out in the Act can be varied.

1. I am persuaded as I have said, I found the applicant to be an honest and frank witness. I accept his explanation as to why he did not earlier make application to set aside the Department's decision.
2. I also accept that he will suffer great hardship if he is ultimately unable to successfully challenge that decision.
3. I do not regard the administrative uncertainty argument put forward by the Department to carry much weight.
4. However, on balance, I have decided not to grant the extension of time. This is for two principal reasons.
5. Firstly, the applicant will be able to seek a review on the grounds of change circumstances from August of 2018. I do accept that the scheme of the Act presupposes that applications on the grounds of change of circumstances should not be made within the five year period from the time of refusal or cancellation of accreditation under the Act.
6. Mr Merhi is effectively bringing this appeal because his circumstances have changed. He now requires a positive assessment. He has not needed it in the last three years.
7. To refuse leave to appeal is undoubtedly a harsh result for this applicant and also for many other failed applicants who will be in exactly the same position. But I am persuaded that the Act not only has this effect on each failed applicant whose circumstances later change, but is designed to have that effect. The long time limit on making a further application is a fundamental part of the structure of the Act. I have reached the conclusion that my discretion under section 126 should not be used to circumvent this deliberately expressed legislative requirement.
8. It is still the case that hard cases make bad law. The amelioration of this problem - if it be seen to be a problem- is a matter for Parliament and not for this Tribunal.
9. Further, and of equal importance, my assessment of the merits of the applicant's case is that it is not strong.
10. I appreciate that I have not heard all of the evidence that the applicant may have been able to call on an appeal as to the circumstances of the sending of the text messages.
11. However, he has had the opportunity at the time of the hearing of the Suitability Panel, and at the time when he was contacted by the Department to provide material in response to the Suitability Panel's findings, to put his version of events. I was not persuaded that in the material which he provided then, or in the evidence he gave when this application was before me, that there was any innocent explanation put forward of a credible nature in respect of these texts.
12. At the time the texts were sent he had been through the process of obtaining a working with children clearance. He cannot have been in any doubt as to his obligations to the young girls put in his care. The texts were nonetheless sent by the applicant when he was 36 years of age to a 14 year old girl. The sending of suggestive texts is conduct directly bearing on his suitability to engage in child related work.
13. I would think his conduct in sending these texts would be a very high hurdle indeed for him to be able to overcome in any appeal.
14. As an aside, I do not agree with the submission of the Department that he had in effect conceded in his correspondence with the department that his application would have little chance of success.
15. However, I think that looked at objectively, on the basis of the materials I have before me, his prospects of success must be described as slim.
16. It is for those two principal reasons that I have determined not to allow the application.

1. I do however wish to add the following observation. There appear to be an increasing number of applications recently brought to this Tribunal made necessary by a requirement by an employer that all of their employees, not only those engaged in child related work, obtain working with children accreditation.
2. This appears to me to be unfair to persons such as those in the position of this applicant.
3. He does not work with children. He does not want to work with children. His employer does not intend for him to work with children.
4. In my view it is not appropriate for an employer to require an employee to go through this process unless employer proposes that the employee should be engaged in child related work.
5. The entire process, with its detailed categories of circumstances to be taken into account by the Tribunal, is designed to filter out persons who because of their background or circumstances are unsuitable to work with children. It is designed to provide the highest possible protection to children. It is not designed as a general integrity test, capable of weeding out unreliable or unsuitable employees. It is not designed as a substitute for a character assessment of employees generally.
6. The applicant believes that even though he does not work with children he will lose his employment if he is unable to obtain working with children accreditation. I can see no reason why an employer should dismiss an employee for not obtaining an unnecessary certificate.

1. It may well be that I am misinformed about this applicant's employment situation. All that I can say is a general proposition is that these remarks should be taken into account by employers considering making the obtaining of a working with children accreditation a condition of continuing employment.