Office of the Children's Guardian v EQE

Supreme Court of NSW|2022-06-22|Before: Davies J

on: EQE v Children's Guardian [2021] NSWCATAD 357 Date of Decision: 30 November 2021 Before: C Mulvey, Senior Member M Bolt, General Member File Number(s): 2021/87260

Judgment

On 22 February 2021 the Children's Guardian notified the defendant, who has been given the initials EQE, that he had been refused a Working With Children Check Clearance (WWCCC), under the Child Protection (Working with Children) Act 2012 (NSW) (the Act). The refusal arose as a result of EQE having been charged with four offences in relation to his stepdaughter when she was aged between 13 and 16 years. He stood trial, and on 7 December 2018 he was found not guilty on all charges.
On 29 March 2021 the defendant filed an application in the Administrative and Equal Opportunity Division of the Civil and Administrative Tribunal of New South Wales (NCAT) seeking that the Tribunal review the decision of the Children's Guardian to cancel his WWCCC.
On 30 November 2021, the Tribunal set aside the decision of the Children's Guardian and directed that it was to issue a WWCCC within 28 days from the date of the decision: EQE v Children's Guardian [2021] NSWCATAD 357.

The criminal charges

At the time of the hearing before the Tribunal, the defendant was a 51-year-old married man. He was the father of a daughter (deceased) and a son (aged 18 years) to his current wife of 21 years. He was also the stepfather of five other children. He has a son and daughter from a previous marriage and ten grandchildren.
He has been employed with NSW Corrective Services for over 35 years. He has also been involved with studying and teaching martial arts to children and adults for over 30 years.
On 30 October 2015 he was issued with a WWCCC due to his involvement in the martial arts industry.
On 25 January 2017 he was charged with four offences, being aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW), aggravated indecent assault contrary to s 61M(2) of the Crimes Act, and two counts of aggravated sexual assault contrary to s 61J of the Crimes Act. The complainant was the defendant's stepdaughter who was given the initial D in the Tribunal.
The Tribunal summarised the charges as follows: [47] The first charge between 27 February 2008 and 27 February 2009 is alleged to have involved EQE assaulting D and committing an act of indecency. D alleged, at the time she was 13 years of age, she was kept at home from school. Her mother had gone to work. She entered into the bedroom that her mother and EQE shared where EQE was still in bed. EQE is alleged to have said D felt cold and to get under the sheets. At the time D was wearing pyjamas. She got into bed with EQE who was naked as it was his custom to sleep with no clothes on. [48] While D was in the bed, EQE allegedly rubbed his hand over her body, including her legs and breasts, on the outside of her pyjamas. EQE then asked D to bite his neck, which she did. EQE is then alleged to have put his hand into her underpants and touched the area of her vagina. D said that she could feel EQE had an erection through her clothing. This continued for a few minutes. EQE is alleged to have then told D to go and eat breakfast after which he took her to the place of some family friends. [49] The second charge is alleged to have occurred between 27 February 2009 and 27 February 2010. D alleges that EQE assaulted her in that he committed an act of indecency where, on an occasion in 2009 or 2010, when D was 13 or 14, D alleges she was lying on the bed and EQE was massaging her. D was wearing a pair of red shorts, no top and lying face down on the bed. It is alleged EQE straddled her legs and rubbed massage oil into D's back, EQE then pulled her pants down to expose her buttocks and, using his thumbs, massaged between the cheeks of her buttocks towards her vagina. D said she could feel his erect penis pushing against the back of her upper leg. EQE allegedly asked her to roll over and when she did so he straddled her waist and massaged her breasts with the oil. [50] The third charge relates to allegations that between 19 August 2009 and 26 February 2010 when EQE had sexual intercourse with D without her consent in circumstances of aggravation, being that she was 14 years of age. [51] D alleges that when she returned from a trip to England with her grandmother on 19 August 2009, in the lounge room of the house, EQE asked her to come and sit on his lap which she did. EQE is alleged to have put his arm around her and then put his hand down her clothing and her underpants, rubbed her vagina with his fingers and inserted his finger into her vagina, but could not do so because it was too tight. [52] The fourth charge relates to allegations occurring between 27 February 2011 and 8 November 2011. D alleges EQE had sexual intercourse with her without consent in circumstances of aggravation, namely, that he was her stepfather. D alleges that after her 16th birthday on November 2011, EQE went into her bedroom in the morning when she was lying in her bed. He said 'Get up'. EQE is alleged to have grabbed D in the area of her breasts and whilst she pretended to be sleeping EQE got under the covers with her. He allegedly positioned himself between her legs, placed his mouth on her vagina and licked it. When D tried to push EQE's head away, he said 'Are you going to get up?'
On becoming aware of the charges on 27 January 2017, the Children's Guardian cancelled EQE's WWCCC. When EQE was acquitted of the charges he applied for a WWCCC. After undertaking a risk assessment, the Children's Guardian refused the WWCCC.

The grounds of appeal

At the hearing, the Children's Guardian was represented by Ms Roughley and Mr Pulsford of counsel. The defendant was unrepresented. The appeal to this Court is on a question of law only. The submissions of the Children's Guardian, concerning as they did the correct procedures to be adopted by the Tribunal in relation to ss 18 and 30 of the Act, were difficult for the defendant to understand and deal with. I endeavoured to explain to the defendant what the issues were on the appeal, and that any decision I made did not determine the merits of the matter, but the transcript will show that the defendant's submissions focused on the merits of the matter.
Despite there being no effective contradictor, I consider that the position is clear that the Tribunal did not adopt the correct approach to its consideration of the matter, for the reasons which follow.

Ground 1: Misconstruing or misapplying s 18(2) of the Act

The Tribunal's reasons

So that these reasons can be understood, it is necessary to set out at some length the way the Tribunal approached its task as disclosed in its judgment.
The Tribunal first set out some background and relevant legislative provisions in relation to working with children, including s 18(2) of the Act. Next, it set out some authorities in relation to the concept of assessment of "risk". It then noted the evidence that was given, including the detail of the charges brought against the defendant (set out above at [11]).
In a section headed "EQE's evidence" the Tribunal considered each of the charges brought against the defendant, as well as the transcript of a conversation lawfully recorded between the complainant and the defendant before the defendant was charged. The transcript was particularly relevant because of a number of answers the defendant gave to matters put to him by the complainant. The defendant was cross-examined about what was said in the transcript, and about his interactions with the complainant generally.
The Tribunal then said this: [61] Each of the allegations were put to EQE about the four periods in which it is alleged he sexually touched or had intercourse with, D. Despite the cross-examination and having reviewed all of the material before us, we are not satisfied we can make a positive finding that any of the circumstances relating to the four charges occurred. [62] We have taken into consideration that two of D's friends were told by D about the abuse at various times prior to her leaving the home of her mother and EQE. However, in the absence of any other corroborative evidence and given our findings with respect to D's evidence and the transcript referred to below, there is insufficient evidence in our view that could lead to a positive finding that the particular events occurred as alleged. … [75] Despite a robust cross-examination we find that EQE's evidence was not challenged to the extent that we can make a positive finding that the alleged inappropriate and sexual touching in relation to each of the four charges occurred. Having read the entire part of the transcript which has been reproduced above, EQE maintained his denial of any inappropriate touching of D on many occasions that she raised this with him. We accept EQE's explanation that he admitted to touching D for the reasons he set out and that he did not wish to call her a liar. Despite submissions of the Respondent, we find that EQE's responses to questions by D are not admissions of the allegations made against him. (emphasis added)
The Tribunal then referred to Family Court proceedings between the defendant and his first wife, where allegations of physical and sexual abuse of two of their children had been made by the former wife against the defendant. The Tribunal said: [80] In November 2002, EQE's former wife made allegations of EQE perpetrating sexual abuse on child 2. In August 2003 both child 1 and child 2 also made complaints of sexual abuse by EQE or his current wife. [81] Flohm J, after a lengthy trial consisting of more than 18 days at trial, handed down a judgement and found no evidence of physical or sexual abuse of either child 1 or child 2 by EQE or his current wife. Flohm J made it clear that the children should reconcile with their father and made orders for him to have contact with them. We have placed significant weight on the findings of the Family Court in relation to the allegations concerning the children. The Family Court has a paramount duty to ensure the best interests of children in determining litigation that proceeds before it. This is a material factor we have considered.
The Tribunal then noted, briefly, submissions made by the plaintiff and the defendant, and proceeded to deal, seriatim, with the matters required to be considered by s 30(1) of the Act. In that section of the judgment, the Tribunal said this: [84] Section 30 of the Act sets out the following mandatory factors that the Tribunal must consider in determining an application. In this matter, the facts are not disputed. (a) The seriousness of the offences to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar. [85] The four offences with which EQE was charged are extremely serious. They involve both physical and indecent and sexual assaults against children, with aggravating features. [86] We are not satisfied the facts and circumstances and all of the evidence which we have before us enables the Tribunal to make a positive finding that any of the allegations relating to the four charges occurred. We have placed particular weight on the evidence adduced in the criminal proceedings and the findings of the Jury in entering a not guilty verdict. The transcript of the meeting in the park between EQE and D is material in our finding. Despite cross-examination by Counsel for the Respondent, EQE maintained each and every denial of the allegations which we note has been consistent from the time in which police began their investigations concerning the charges. We do not accept the Respondent's argument that EQE made admissions in that conversation. On the contrary, he maintained his denial of any inappropriate conduct and we accept his evidence that where he admitted that he did touch D, he was treading cautiously so as to not upset her general mental health. [87] We have also taken into consideration the AVOs and the allegation concerning EQE sexually assaulting child 1 and child 2 in the early 2000s. Given our findings as set out above, we are not satisfied that those matters enable this Tribunal to find that EQE is a real and appreciable risk to the safety of children. [88] Irrespective of our finding in that regard, the additional allegations are of course serious and are matters we have taken into consideration. … (i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition. [97] Given our findings as set out above, we are satisfied that EQE has no likelihood of any repetition of the circumstances in which he was charged relating to children above those of a reasonable person.
Having dealt with the s 30(1) matters, the Tribunal said: Our findings [102] Having considered the mandatory factors in s30(1), we find that the circumstances with which EQE was charged did not occur on the balance of probabilities. Therefore, EQE does not pose a real and appreciable risk to the safety of children. Nor do the facts and circumstances that relate to the early 2000 events and the AVOs relating to EQE's former wife and two children of that marriage. After reviewing all of the evidence, and considering the safety, welfare and wellbeing of children and, in particular, protecting them from child abuse, he should be granted a WWCCC. (emphasis added)
Section 18(2) of the Act provides: 18 Determination of applications for clearances … (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
In M v M (1988) 166 CLR 69; [1988] HCA 68 the High Court considered the issue of sexual abuse within the context of family law disputes. The Court said: [23] No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In BKE v Office of Children's Guardian & Anor [2015] NSWSC 523, Beech-Jones J (as his Honour then was) said at [33]: The above passage from M v M contemplates a court finding that a risk of abuse exists but that the possibility of it materialising can be mitigated by measures such as supervised access, with the result that the risk is not unacceptable and the parent is not denied access. As I have observed no such mechanism is proffered by the Working with Children Act. It is not concerned with "unacceptable risks" but "real and appreciable" risks (V …). Further, in cases such as this the onus is upon the plaintiff. However subject to those two matters and the caveat about the applicability of Briginshaw noted in [29], the reasoning in M v M is applicable to fact finding and the process of risk assessment that NCAT undertakes. Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside. However, in a context where the welfare of the child is paramount and the question being posed concerns the risk of harm to children, NCAT may not be satisfied that an allegation of abuse has been made out, but nevertheless conclude that the circumstances surrounding a particular incident or course of conduct means that there is a risk to a child or, more correctly, that the existence of a risk has not been disproven. (emphasis added)
That approach in dealing with applications under the Act has been approved by the Court of Appeal in Tilley v Children's Guardian [2017] NSWCA 174 at [34], and more recently in CXZ v Children's Guardian [2020] NSWCA 338 at [7], [28] and [54]. In the latter case, Simpson AJA said at [57]: …The task of the Tribunal is, to expand on what Beech-Jones J said in BKE, to determine, even if it is unable to be satisfied one way or the other as to the truth of all or any of the allegations, whether, by reason of the possibility that the alleged conduct occurred, the applicant poses a risk to the safety of children. If so, the Tribunal must refuse to grant a clearance. Of course, in that process the Tribunal will give consideration to the strength of the evidence supporting the allegations and will, inevitably, reach conclusions about the truth or falsity of some. If it finds any allegation to be without foundation it will discard it from further consideration. If it is satisfied that the allegation is well founded, it will assign to it such weight as it sees fit, in the consideration (inter alia) of the circumstances listed in s 30. It is the allegations between those two extremes, those that are neither proved nor disproved, that the Tribunal must address in determining whether the applicant for a clearance poses a risk to children. (emphasis in original)
Justice Basten said at [7]: (c) Where a suggestion of risk is based upon allegations of past conduct which are disputed by the person claiming the clearance, there is no three-step process involved, but rather a single process in the course of which the Children's Guardian or NCAT is required to make findings with respect to allegations of past conduct. (d) Where the Guardian or NCAT is not affirmatively satisfied that the alleged conduct occurred, but is not able to dismiss the allegation as groundless, it is necessary to assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children.
It may be observed that in the Tribunal's reasons, it finds on four occasions (at [61], [62], [75] and [86]) that it could not make a positive finding that the circumstances alleged in the charges had occurred.
The Tribunal was correct in ascertaining first whether it could be satisfied that the circumstances had occurred. That accorded with what was said in BKE where Beech-Jones J said: Thus in such cases it may be that NCAT can be satisfied that an allegation of sexual abuse against an applicant is established. Equally, NCAT may be affirmatively satisfied that the relevant incident did not occur, in which case it can be put aside.
What the Tribunal then failed to do was to move to the next part of what was said in BKE (in italics at [24] above), and what was clearly expressed by Basten JA in CXZ at [7(d)]: Where the Guardian or NCAT is not affirmatively satisfied that the alleged conduct occurred, but is not able to dismiss the allegation as groundless, it is necessary to assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children.
The present case was one where the evidence need to be weighed up after the Tribunal had found itself unable to make a positive finding. There was sufficient evidence to warrant the Director of Public Prosecutions preferring the charges against the defendant and taking the matters to trial. The Tribunal needed to weigh up the evidence, including considering whether it regarded the defendant as honest (which it found), what should be made of the transcript which, prima facie, contained some ambiguous answers from the defendant, considering the evidence of the other witnesses at the trial, and considering the impact of the allegations made in the Family Court, even though that Court found in the defendant's favour.
Whilst it considered some or all of those matters, it did so as part of its initial consideration to see whether the allegations could be established. In not then moving to assess the whole of the evidence, the Tribunal failed to consider "whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children".
That the Tribunal erred in that way is made clear by two other passages in the judgment. First, the Tribunal said at [87]: Given our findings as set out above, we are not satisfied that those matters enable this Tribunal to find that EQE is a real and appreciable risk to the safety of children.
In the face of what is said in BKE, CXZ and CF1, it was an error to conclude from an inability to make a positive finding that events occurred, that the defendant was not a real and appreciable risk to the safety of children.
Secondly, and more significantly because it is the ultimate finding of the Tribunal, at [102] the Tribunal said Having considered the mandatory factors in s30(1), we find that the circumstances with which EQE was charged did not occur on the balance of probabilities. Therefore, EQE does not pose a real and appreciable risk to the safety of children. (emphasis added)
This is a troubling finding because, without considering the matter any further, the Tribunal which had, to that point, not been able to make a positive finding that the events occurred, found on the balance of the probabilities that the events did not occur. This is very similar to the error made by the Tribunal in CF1. I said at in that case at [49]: The particular significance of [90] [of the Tribunal's decision] is that everything the Tribunal had considered including the internal and external inconsistencies in the complainant's statement led only to the conclusion that the Tribunal could not be satisfied that the allegations occurred. Without anything further the Tribunal then said that for the same reasons the allegations were groundless. The two matters are not the same. The Law of the Excluded Middle does not apply. Not being satisfied that the allegations occurred is not the same as saying that the allegations did not occur (as [109] says) or that the allegations were groundless (as [90] says). (emphasis added)
In the same way, it was an error for the Tribunal to conclude from a finding that the events did not occur on the balance of probabilities, without any further consideration, that the defendant does not pose a real and appreciable risk to the safety of children. This is because there is no consideration of the possibility that the conduct, the subject of D's allegations, occurred. As I observed in CF1 at [79]: That is only a finding on the balance of probabilities and that leaves considerable scope for the possibility that the allegations were true.
On one view, the Tribunal's movement directly from the finding that the events did not occur on the balance of probabilities to a conclusion that the defendant did not pose a risk to the safety of children, leads to a view that the Tribunal regarded the allegations as groundless. That is really the basis for ground 1(c) of the appeal.
The plaintiff accepts that the Tribunal did not say that the allegations were groundless. It seems to me unlikely that the Tribunal regarded the allegations as groundless. Certainly, the Tribunal's language did not suggest that the allegations were groundless; rather the language suggested they were unproved on balance.
In Children's Guardian v CF1 [2020] NSWSC 1673, I said at [43]: What is clear from M v M and CFW [Office of the Children's Guardian v CFW [2016] NSWSC 1406] is that not being able to be satisfied that sexual abuse has taken place is not the same as a finding that allegations made are groundless. I also said at [80]: Cases where the allegation can be dismissed as groundless are not cases where there is competing evidence which has to be weighed up.
There was certainly competing evidence in the present case. In the absence of a finding by the Tribunal that the allegations were groundless, I consider that the better analysis of what the Tribunal did is that it simply failed to assess whether the possibility that the events occurred may support a view that the defendant poses a risk tro the safety of children.
Ground 1 is made out.

Grounds 2 and 3 - errors in applying s 30(1A) of the Act

Section 30(1A) of the Act provides: (1A) The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that - (a) a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and (b) it is in the public interest to make the order.

The Tribunal's reasons

After reaching its finding (at [102]) that the defendant did not pose a real and appreciable risk to the safety of children, and should be granted a WWCCC, the Tribunal said this: Section 30 (1A) consideration [103] In CTM v Children's Guardian [2016] NSWCATAD 280, at [4] and [88] to [90] the Tribunal considered the approach that is to be taken in regard to s 30(1A). As noted by the Tribunal at [4], the Victorian legislative scheme (Working with Children Act 2005 (Vic), s 13(2)) contains a similar provision. That provision was considered by the Victorian Supreme Court in ZZ v Secretary, Department of Justice [2013] VSC 267, where it was held that the matters, as prescribed in s 30(1A), only need to be considered once the risk factors in s 30(1) have been considered and a determination is made in regard to risk. [104] The uncontested evidence before the Tribunal is that EQE has been an employed officer within NSW Corrective Services for over 33 years. He has also been a martial arts instructor and educator for over 30 years. There is no evidence before us of any misconduct by EQE in him carrying out that role as a martial arts instructor that counts against him. Given our findings, the findings of the District Court of New South Wales relating to the criminal charges and the findings of the Family Court, we find that a reasonable person knowing all the facts and circumstances would allow his or her child to have direct contact with EQE whilst unsupervised by another person.
The plaintiff submitted that the Tribunal failed to undertake the task it was required to carry out by s 30(1A). The plaintiff submitted that the only interest the Tribunal considered was the interest the defendant had in continuing his career with NSW Corrective Services, and as a martial arts instructor and educator. The plaintiff submitted that a consideration of the defendant's career with Corrective Services was misconceived because he had already returned to that position at the time of the Tribunal hearing.
The plaintiff submitted that if error was shown in the manner either of grounds 1 and 2 asserted, the Tribunal's ultimate determination was irrational, illogical and/or not based on findings or inferences of fact supported by logical grounds.
In my opinion, ground 3 can be put to one side. The plaintiff accepts that it is only made out if either of grounds 1 or 2 is upheld. It would follow from upholding grounds 1 or 2 that the Tribunal had not gone about its task in the correct way, with the result that the determination of matters in s 30(1A) would have to be set aside. In that way, it is not necessary to uphold ground 3 for the appeal to be allowed.
However, the ground is expressed in such a way that the Tribunal, to which the proceedings will be remitted, may well consider that this Court has determined, on the merits, that s 30(1A) has not been satisfied. It is a subtle difference between a decision on the merits and a determination that the findings made on the s 30(1A) matters were illogical or irrational.
The real issue raised in relation to s 30(1A) is whether the Tribunal properly considered the two matters the subsection requires, although ground 2 focuses on par (b).
In ZZ v Secretary to the Department of Justice [2013] VSC 267 it was held at [213] that, [T]he public interest test is imposed by way of a final check on an applicant who has successfully passed through the unjustifiable risk stage of the assessment process. The reference to the "unjustifiable risk stage" is the Victorian equivalent of the test in s 18 of the NSW Act.
Accordingly, consideration of the matters in s 30(1A) was correctly dealt with by the Tribunal at the end of the process. However, where I have found that the earlier process was flawed because of a failure to consider certain matters, a consideration of the matters in s 30(1A) cannot properly be carried out. That is because of the width of those considerations.

Paragraph (a) - reasonable person test

In considering the Victorian equivalent of s 30(1A) (S 13(3)(a) of the Working With Children Act 2005 (Vic) (as to (a)), and cl 102(2) of Sch 2 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (as to (b)), the Victorian Civil and Administrative Tribunal said in VQB v The Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 789 at [36]: This sub-clause [cl 102(2)] and its companion sub-section in the Working With Children Act [s 13(3)] requires the application of an objective standard based upon the views of a reasonable person. The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant for a positive assessment a right to be heard, as well as considering the material gathered by the Secretary. A reasonable person would not approach the task with a closed mind, thinking that once a person has offended, he or she can never be redeemed. The reasonable person, however, would not put aside all scepticism and reasonable caution in this most difficult area in some over-optimistic attempt to facilitate rehabilitation.
This decision appears to have been followed by NCAT (although not by reference to its name) in CSW v Children's Guardian [2017] NSWCATAD 326 at [136], where a similar approach was adopted "as in the Victorian cases". In my view, the approach set out in VQB is a correct approach when considering s 30(1A)(a).
The Tribunal in the present case appears to have attempted to consider some relevant matters to reach a satisfaction about what was required. It was certainly relevant to the consideration under s 30(1A)(a) that the charges had been dismissed, that the Family Court had found as it had, and that there was no evidence of any wrongdoing as a martial arts instructor for more than 30 years.
The difficulty about it is that the Tribunal's earlier failure to go beyond examining whether the events the subject of the charges were made out (the ground 1 point), means that all relevant matters were not considered. If the Tribunal had gone on to consider what I have held they ought to have considered (that is, addressing the possibility that the allegations were true and how that impacted on the risk, even though it could make no positive finding, or even though it found on the balance of probabilities that the events did not occur), it would likely have performed the task that assisted in reaching a satisfaction that a reasonable person would allow their child to have direct contact with the defendant.

Paragraph (b) - public interest

There is some authority in relation to paragraph (b) of what constitutes public interest in this context.
In Secretary, Department of Justice v LMB [2012] VSCA 143 the Victorian Court of Appeal said of the equivalent Victorian provisions: The public interest [24] As French CJ, Gummow and Crennan JJ stated in ICM Agriculture Pty Ltd v The Commonwealth : "The term 'in the public interest' is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question." [25] In the present instance, the Act itself plainly identifies the primary public interest to which it is addressed. The main purpose of the Act is stated to be to assist in "protecting children from sexual or physical harm". The Act does this by "ensuring that people who work with, or care for [children] have their suitability to do so checked by a government body". [26] The Act grants an administrative discretion to the Tribunal which requires the Tribunal, once the discretion has been enlivened by a finding that there is no unjustifiable risk, to consider for itself whether the giving of a notice will be in the public interest. [27] Whilst it might be possible to demonstrate that the Tribunal erred in law if it took into account an extraneous factor, it will necessarily be difficult to demonstrate in this context that it misdirected itself in respect of the public interest by failing to have regard to factors which are not imperatively relevant to the achievement of the purpose of the Act. [28] In particular, where the Tribunal, as in the present case, finds that it is positively satisfied that the giving of an assessment notice is in the public interest, it will be difficult to disturb that conclusion because: (a) a vast range of considerations might rationally be thought relevant in determining whether the giving of an assessment notice is in the public interest; (b) the public interest includes matters of such potential breadth that it requires a situational definition by the decision maker having regard to the circumstances of the case; (c) the concept of what is in the public interest necessarily changes with time in response to changing economic and social circumstances and is not capable of being confined by inflexible specification; (d) Parliament vested in the Tribunal - not the Secretary nor the Minister nor this Court - the power and the responsibility to decide whether, in all the circumstances, it is in the public interest to give an assessment notice in the particular case.
In PJR v Secretary to the Department of Justice [2006] VCAT 2455; (2006) 25 VAR 336 the Victorian Civil and Administrative Tribunal said at [45]: The notion of "the public interest" is broad. Certainly I would regard a central consideration to be the need to protect children from sexual or physical harm by ensuring that people who work with, or care for, them are unlikely to inflict harm. In this regard, many of the factors that are relevant in deciding whether the giving of an assessment notice would not pose an unjustifiable risk to the safety of children are also factors that are relevant in assessing whether it is in the public interest to direct the giving of such an assessment notice. However the notion of "the public interest" might also embrace other considerations. In interpreting similar legislation in New South Wales it has been said that the right of a person to engage in work is relevant [see R v New South Wales Commission for Children and Young people [2002] NSWIR Comm 101 and Commission for Children and Young People v V (2003) 56 NSWLR 476;[2002] NSWSC 949 at [38]]. A similar contention might be advanced to the effect that a person has a right to engage in community affairs. It is not appropriate to seek to define the boundaries of what is in the public interest.
This passage was expressly approved by Bell J in ZZ v Secretary, Department of Justice [2013] VSC 267 at [199]. A similar view was expressed in ECQ v The Children's Guardian [2021] NSWCATAD 217: [44] In line with Hogan's case, this Tribunal must assess the public interest in granting an applicant a clearance by reference to the purpose of the Act as a whole. The purpose can be ascertained from the object and paramount consideration of the Act as set out in ss 3 and 4, namely, the protection of children from abuse by ensuring that those who engage in child-related employment have a WWCC clearance. [45] When assessing the public interest, priority should be given to the broader interests of the community over private interests: Smith v Commissioner of Police [2014] NSWCATAD 184; CYY's case [CYY v Children's Guardian (No 2) [2017] NSWCATAD 262] at [75]. At the same time, the Tribunal ought to also have some regard to the rehabilitation of offenders: ZZ v Secretary to the Department of Justice [2013] VSC 267 at [202] and take into consideration the right of a person to engage in work and in community affairs and to have contact with children where they possess the appropriate skills and experience: CYY's case at [75].
It was not wrong, therefore for the Tribunal in the present case to have regard to the defendant's desire to continue in his job with Corrective Services, and to continue as a martial arts instructor and educator. However, as was said in PJR and ZZ, the central consideration of public interest is the need to protect children from sexual and physical harm. No consideration of that matter appears in the Tribunal's reasons at this stage of its determination, and this stage is the "final check on an applicant": ZZ at [213].
I would uphold ground 2 because the Tribunal's consideration of both pars (a) and (b) of s 30(1A) was inadequate, and because the Tribunal's focus on assessing whether the events the subject of the charges occurred meant that it did not come to grips with the further assessment that need to be made about "risk" in s 18, which in turn meant that it could not properly assess both of these jurisdictional facts that were pre-requisites to the exercise of power the Tribunal engaged in: Children's Guardian v CVE [2017] NSWSC 1342 at [23].

Conclusion

As I explained to the defendant, and as is well understood by lawyers, the role of this Court on an appeal is not to determine the matter on the merits, nor to suggest to the Tribunal, to which the proceedings are to be remitted, what the appropriate outcome should be. The findings I have made concern only the correctness or otherwise of the process adopted by the Tribunal from which the appeal has been brought.
The plaintiff seeks costs of the appeal. The plaintiff has been successful in relation to two of the grounds of appeal, albeit that the defendant was not legally represented. The errors were those of the Tribunal, and were not contributed to by the defendant. In all the circumstances, although the defendant should pay the plaintiff's costs, the defendant should have a certificate under the Suitors' Fund Act 1951 (NSW).
Accordingly, I make the following orders: 1. The order made by the New South Wales Civil and Administrative Tribunal, Administrative and Equal Opportunity Division, granting the defendant a Working With Children Check Clearance is set aside. 2. Remit the proceedings to the Tribunal, differently constituted, to be determined according to law. 3. The defendant is to pay the plaintiff's costs of the proceedings. 4. The defendant is to have a certificate under the Suitors Fund Act 1951 (NSW).

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2022

Suitors Fund Act 1951(NSW)

Working With Children Act 2005(Vic)s 13

Children Act 2005(Vic)

Suitors' Fund Act 1951(NSW)

Crimes Act 1900(NSW)ss 61J, 61M

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