Victorian Civil and Administrative Tribunal|2010-06-09|Before: Deputy President J

The applicant can apply to the Tribunal for an assessment notice: section 26. The Tribunal must not make an order for the giving of an assessment notice unless satisfied that this would not pose an unjustifiable risk to the safety of children having regard to the following matters:
- (a) the nature and gravity of the offence and its relevance to child-related work; and
- (b) the period of time since the applicant committed the offence; and
- (c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
- (d) the sentence imposed for the offence; and
- (e) the ages of the applicant and of any victim at the time the applicant committed the offence; and
- (f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and
- (g) the applicant's behaviour since he or she committed the offence; and
- (h) the likelihood of future threat to a child caused by the applicant; and
- (i) any information given by the applicant in, or in relation to, the application; and
- (j) any other matter that VCAT considers relevant to the application.

At the end of the hearing I reserved my decision. I indicated that I understood what OP and her counsel had said about the importance of the application to her personally. I pointed out however that the question for me is whether I am satisfied that giving her an assessment notice would not pose an unjustifiable risk to the safety of children. I am not satisfied about that.

It is true that, as emphasised by Mr. Chaudhuri, a very long time has passed since OP committed the sexual offence. I have set out the evidence at some length that shows the considerable strain that OP was under at the time and probably had been for years leading up to that. Her offence however was of a particularly serious nature and committed on a number of occasions over a period of time. (The material on the proceeding file and the evidence at the hearing conflicts as to the precise number of occasions). Her emotional state and her drug taking may have clouded her judgment and impacted on her behaviour but of course would not exonerate her. In this regard I accept that the sentence reflects the gravity of the offence, notwithstanding that she was given a suspended sentence.

So far as OP's credibility is concerned, I found her to be a truthful witness for the most part, even if her history sometimes lacked coherence. In some crucial aspects, however, her evidence was unsatisfactory. I need mention only two. One was her evidence about her thinking when she allowed her children to remain in the care of her first husband. Given everything that she said in evidence about him and his unreliability and his behaviour, I am not satisfied that she did or could reasonably have left the children with him with any confidence about their welfare. (The point, incidentally, is not what may have been proven when he later went to Court. The point is what she knew or believed about his behaviour). The other aspect of OP's evidence that was unsatisfactory was her knowledge of the age of the victim at the time of the offence involving him. The disparity between what was in her affidavit and her oral evidence has been pointed out. Not only what appears in her affidavit but also her conviction, her sentence, and the general circumstances of the sexual offence lead me to say that I am not satisfied that when she committed the sexual offence she was unaware at least that the victim was under the age of 16. OP's other offences also generally detract from her credibility. With regard to the applicant in BHB v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1946, cited by Mr. Panayi, Judge Harbison said at paragraph 22 that it was her impression that the applicant was not particularly forthcoming about either the circumstances of the offence or the circumstances of him acknowledging the offence and coming to terms with it. Mr. Chaudhuri responded by saying that there were cases where the Tribunal accepted that a person's shame and the length of time may explain a poor memory: see HBC v. Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130, at paragraph 36, per Judge Harbison. In OP's case, some additional factors may have impaired her memory to a degree, but I do not accept her evidence on the subject of her knowledge of the victim's age. In the circumstances I do not need to determine whether her sexual offending was or was not ever committed in the presence of another person under the age of 18 years.

On no view could OP and the victim be regarded as being in the same age cohort and OP did not ultimately contend that there was consent in any sense that would be helpful to her case. The offence has not been decriminalised.

With regard to OP's behaviour since the sexual offence is concerned, there are various matters to consider. It is very much to OP's credit that in spite of the great challenges she has faced she has spent a significant time in the workforce. In particular she has obtained relevant qualifications and pursued her nursing career. On the other hand there are her other offences. It is not necessary to refer especially to the offences involving dishonestly. There was also her ill advised decision to leave her children in the care of her first husband. Perhaps more relevantly, given also that it has been relatively recent, was her having a very high blood alcohol reading and driving when she had the care of her granddaughter.

This last matter impacts on any assessment of risk. Dr. Strauss' report does express a positive view about OP's future behaviour. Given the whole of her history in the intervening years, however, I am unable to accept that Dr. Stauss' report should somehow be regarded as conclusive. The risk to children arising from any sexual misconduct may have diminished or even now be non-existent. Up to date expert evidence in relation to that subject may or may not have been helpful to her case. Whatever the position, the risk to children arising from the lack of judgment that OP has demonstrated is a separate concern. In my view there is a real likelihood of future threat to a child caused by the applicant. There may be no recent evidence about drug abuse but there is relatively recent evidence about alcohol abuse. If, further to that, OP has some ongoing mental health problems it is obviously to be hoped that she will receive the necessary care so that she can overcome those problems. For the present, the state of the evidence - including the absence of lay witnesses who knew of OP's offences and who could in light of that give helpful evidence about her subsequent behaviour - generally means that I cannot discount the likelihood of future threat to a child: see XD v Department of Justice (Occupational and Business Regulation) [2008] VCAT 118. It may be, as Mr. Chaudhuri said, that there was no present employer to give evidence, but there was no or virtually no evidence of the kind that was helpful.

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. In PJR v. Secretary to the Department of Justice, cited above, Morris J said this:

"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 ... 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 ..." (at paragraph 45).

Although having an assessment notice would 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. On the other hand, similar to some remarks I made in TTK v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 278 (at paragraph 46) I would say that the rights that OP has, for instance, to enjoy her aboriginal identity and culture and to maintain her kinship ties must be balanced against other considerations. It does not appear from the evidence that she has yet had the chance to progress very far in relation to that. She would not need an assessment notice to do so, given the specific purposes for which an assessment notice may be issued.

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. For the reasons that I have given, considering the question that I have to consider under the legislation, I dismiss the application for an assessment notice.

Human Rights and Responsibilities Act 2006

OP v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1054 (9 June 2010)

BHB v Department of Justice (Occupational and Business Regulation) [2008] VCAT 1946

HBC v. Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 130

TTK v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 278

XD v Department of Justice (Occupational and Business Regulation) [2008] VCAT 118

On 30 July 2009 OP applied for an assessment notice under the Working with Children Act 2005. She received an interim negative notice. She did not submit further information to the Secretary to the Department of Justice at that stage. A negative notice was issued on 5 November 2009. This was accompanied by a statement of reasons. On 24 November 2009 OP made her application to the Tribunal. By order dated 17 December 2009, the Secretary was joined as the respondent: see PJR v. Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 at paragraph 14.

OP v Secretary to the Department of Justice

At a glance

Court

Decision date

Before

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)

OP v Secretary to the Department of Justice (Occupational and Business Regulation) [2010] VCAT 1054 (9 June 2010)