1. The Secretary filed and served relevant documents pursuant to section 49 of the Victorian Civil and Administrative Tribunal Act 1998 ("section 49 documents"), and I refer to those documents by their page number in this decision.

1. This is a very sad case. OYJ has chronic, hereditary porphyria, a blood disorder which causes pain, light sensitivity that can result in skin rashes, and problems with muscles and the nervous system. In OYJ the disorder has also caused vomiting. OYJ takes prescription medication under the guidance of her General Practitioner which largely controls the symptoms, and whilst she still has some "bad days" she has not been hospitalised for the disorder in some 10 years.

1. Georgia, deceased, also had hereditary porphyria. She also abused illicit drugs and had some mental health issues. Philip was Georgia's partner. For a time Georgia and Philip lived in OYJ's home. Philip abuses alcohol and illicit drugs and has no parental role with, or interest in, Arthur.

1. Arthur was born at 28 weeks of term, around 8 weeks premature. A file note made by an officer of the Department of Health and Human Services ("DHHS") on Arthur's file suggests that Arthur was born with prenatal substance exposure[1], and that DHHS had concerns about Arthur's safety and development even before he was born.[2]

1. OYJ and Georgia had a good relationship, but OYJ and Philip did not.

1. Between giving birth to Arthur in January 2018 and her untimely death in March 2018, Georgia was ill and was hospitalised. OYJ visited Georgia daily. Philip moved out of OYJ's home.

1. DHHS placed Arthur with OYJ. In the words of section 9(6) of the WWC Act, this placement made OYJ "a family member or other person of significance" to Arthur, and Arthur was placed in the out of home care of OYJ under the Children, Youth and Families Act 2005. Accordingly, OYJ was engaged in "child-related work" for the purposes of the WWC Act[3], and so requires a Working with Children Check Assessment ("Assessment Notice") if this is to continue. Of course, as Arthur's grandmother OYJ is a family member and a person of significance to Arthur, regardless of that Act.

1. OYJ's sister also took a role in caring for Arthur, and she continues to do so.

1. On 6 March 2018, before Arthur was discharged from hospital, DHHS convened a Family Led Decision-Making Meeting[4], where an understanding was reached that when Arthur was discharged on 9 March 2018 he would be in the care of Georgia and Philip on the proviso that they continued to reside with OYJ. Reference was made to support being given by other extended family members and friends who had stated their commitment to support Arthur's health and well-being and who were prepared to intervene should they have concerns for him whilst in his parents' care. Philip did not attend this meeting, but it is minuted by DHHS that Philip subsequently had a discussion with DHHS in which he agreed with the decisions stemming from the meeting. Georgia died a bit over a week after this meeting.

1. In June 2018 DHHS recorded a Family Led Decision-Making Meeting[5], to which Philip was invited but did not attend. DHHS minuted that OYJ and her sister were continuing to care for Arthur in their respective homes; that both were committed to Arthur's ongoing care and were supportive of Philip having regular contact with Arthur.

1. In the minutes of the understanding/agreement made by DHHS after this meeting, DHSS noted that Philip understood that it was imperative for him to engage in mental health, drug and alcohol rehabilitation before any consideration could be given to him providing care for Arthur[6].

1. OYJ applied for an Assessment Notice under the WWC Act ("Assessment Notice") on 24 May 2018, because her care of Arthur fell within the definition of child-related work. This led to the Secretary making the usual enquiries and learning of OYJ's criminal history in the 1980s and 1990s, ending in her final drug charge and final Court appearance in a successful appeal in the County Court in 1995.

1. Amongst a series of convictions, findings of guilt, and good behaviour bonds relating to the use of hemp and cannabis in Courts of summary jurisdiction in New South Wales and Victoria between 1982 and 1995, were two charges heard by the Magistrates' Court on 24 January 1995 which are Category A offences for the purposes of the WWC Act, and so OYJ's application for the Assessment Notice was a Category A application. The certified extracts, issued by the Magistrates' Court on 22 November 2018[7] say that OYJ was represented by a legal practitioner and that she entered a plea of guilty on both charges.

The accused at Dandenong from 24 September 1994 to 4 October 1994 did commit a breach of Act 86/124.7 allow child to take part in prostitution.

Remarks: Plea Guilty. Consents to summary jurisdiction.

Court Order: Without conviction, adjourned to 24 January 1996. Accused released upon giving an undertaking starting on 24 January 1995 to appear before adjourned date if called upon during the period of adjournment. Accused to be of good behaviour during the period of adjournment. The accused is to pay $300.00 to the Court fund.

The accused at Dandenong from 24 September 1994 to 4 October 1994 did commit a breach of Act 86/124.8 obtain payment from child for prostitution[8].

1. The extract at page 46 recorded the appearance on 24 January 1996 when the Court, satisfied that OYJ had fully complied with the good behaviour bond, dismissed the first charge.

1. According to OYJ, the acts giving rise to the charges occurred when OYJ was the "manager" of a brothel. In the hearing before me, OYJ consistently referred to herself as the "manager", and drew a distinction between a "manager" and a "receptionist". At no time did OYJ say that she was the "proprietor" of the brothel. I would understand a manager to be an employee or contractor of a proprietor. Clearly, the offence which is the subject of the first charge could be committed by a manager. The offence which is the subject of the second charge, of obtaining payment from child prostitution and to which OYJ pleaded guilty, is wide enough to apply to the recipient of the payment whether or not the recipient ultimately kept the payment, and so could apply to both the manager and the proprietor of a brothel.

1. Both offences are relevant to OYJ's application, even though the second charge was withdrawn. Whilst both parties agreed that this proceeding concerns a Category A application I set out the relevant provisions.

1. Section 12(1)(d) of the WWC Act says that an application is a Category A application if it is in respect of a person who, when an adult, has been charged with, convicted or found guilty of a Category A offence, specified in clauses 1 or 2 of Schedule 1 of the WWC Act.

1. Section 3 of the WWC Act defines Category A offence to mean an offence specified in Schedule 1 of the WWC Act. Clause 1 of that Schedule includes an offence specified in clause 1 of Schedule 1 of the Sentencing Act 1991 (sexual offences) "in circumstances where the person against whom the offence is committed is a child"[9].

1. Clause 1(db)(iv) of Schedule 1 to the Sentencing Act 1991 captures an offence against section 11(1) of the Sex Work Act 1994, and clause 1(g) captures any other offence the necessary elements of which consist of elements that constitute - inter alia - such an offence.

1. The references in the Magistrates' Court's certified extracts to "Act 86/124.7 & 8" are to sections 7(1) and 8(1) of the Prostitution Regulation Act 1986. After various amendments and enactments that Act was repealed and the equivalent concepts and offences are now contained in sections 11(1) and 6(1) of the Sex Work Act 1994:

Section 7(1) of the Prostitution Regulation Act 1986 said:

A person who owns or occupies any premises or who manages or assists in the management of any premises must not allow a child to enter or remain on the premises for the purposes of taking part in any act of prostitution[10], whether as the prostitute or as the client or in any other capacity.

Section 11 (1) of the Sex Work Act 1994 says:

A person who owns or occupies any premises or who manages or assists in the management of any premises must not allow a child to enter or remain on the premises for the purpose of taking part in an act of sex work, whether as the sex worker or as the client or in any other capacity.

Section 8(1) of the Prostitution Regulation Act 1986 said:

A person is guilty of an indictable offence if the person receives a payment (except in the ordinary course of a business unrelated to prostitution) knowing that it or any part of it has been derived, directly or indirectly, from sexual services provided by a child.

Section 6(1) of the Sex Work Act 1994 says:

A person must not receive a payment (except in the ordinary course of a business unrelated to sex work) knowing that it or any part of it has been derived, directly or indirectly, from sexual services provided by a child.

1. Under section 12(2) of the WWC Act, the Secretary must refuse to give an Assessment Notice to the applicant in a Category A application. That refusal is communicated by issuing a Negative Notice. Section 26A(1) entitles a person who has been given a Negative Notice on a Category A application to apply to the Tribunal for an Assessment Notice. The criteria to be applied by the Tribunal are set out in subsections 26A(3), (4) and (5), and the criteria are somewhat stringent in that subsection 26A(3) says that the Tribunal "must not make an order unless it is satisfied ..." of the criteria[11].

1. I should say that even though OYJ only seeks an Assessment Notice because she wishes to care for Arthur, the WWC Act does not make provision for narrow Assessment Notices, nor for VCAT to make an applicant's receipt of an Assessment Notice conditional on the applicant only using it for a limited purpose. I take this matter into account, but I note that OYJ is in receipt of the Disability Support Pension and I am satisfied on the basis of the written and oral evidence and of my observation of OYJ in the hearing that she has no intention of using an Assessment Notice for any purpose other than facilitating her care of Arthur, and because of her age and health no reasonable prospect of being able to do so were she to change her mind.

1. Section 1(1) of the WWC Act says that the "main purpose" of the WWC Act is to "assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them are subject to a screening process", and section 1A provides that when the Tribunal makes a decision or takes an action under the Act, "the protection of children from sexual and physical harm must be the paramount consideration".

1. I will examine the matters under section 26A(3) of the WWC Act, in the light of sections 1(1) and 1A. Needless to say, each of the criteria must be considered, as the word "and" appears after each of sub paragraphs 26A(3)(a) - (j), but it is not a matter of moving through the sub paragraphs and arithmetically keeping score as to which criteria are for or against an applicant. Many of the individual criteria do not favour the giving of an Assessment Notice.

1. It is appropriate to begin by setting out the evidence of OYJ in relation to the offences. Her evidence in the hearing was unimpressive and vague, and even though I consider this to have been contributed to by OYJ's ill health, her age, her history of cannabis use and the passage of some 24 years between the commission of the offences and the Tribunal hearing, I do conclude that she sought to play down the gravity of her conduct.

1. OYJ briefly referred to the offences in her initiating Application, which she prepared herself, as follows, and whilst it referred to only one charge, her words are capable of meaning both charges:

The charge I got for underage prostitution was a non-conviction and was in 1995. I was not at fault that is why it is a non-conviction.

1. OYJ described the offences in her written witness statement as follows:

At the time of the offence I was managing a brothel ...in Dandenong. There was a 17-year-old [female] who was in a relationship with one of the employees. She used to sit out the front of the brothel where she would get her own clients or go down to St Kilda. Her girlfriend asked if she was allowed inside so she did not have to sit out on the street. I let her inside but she wasn't allowed to work.

I thought it would be better for her to be in a safe environment than being in a dangerous environment. Then while I was not there the receptionist did not do the proper checks and she went out on an intro. When I found out she was working I told the receptionist that she was not allowed on the premises until she provided proof of age. The Vice Squad came, and they asked for her name. Later that night the Vice Squad called me, and I went to Dandenong Police Station to be charged. I gave an interview and admitted I had found out the previous day that she was working under age, and that as soon as I found out I told her she was not allowed on the premises until she provided proof of age. This was three weeks before her 18th birthday. She came back to work for me after she turned 18.

At that time, if I have any queries about them being under 25 I would check their ID. After this I would ask for anyone's ID who looked less than 30 or if I had any doubt about their age. I told the receptionists to ask for anyone's ID who looked under 30. I have never hired an underage girl before and never did it again. I accept responsibility for the offence because I was the manager. I know it was my fault, but I was very sorry it happened. I was silly enough not to get an ID. At the end of the day it was definitely my responsibility. I realise how wrong I was in doing what I did and not getting the proper checks. (emphasis added)

1. Whilst in giving oral evidence OYJ said this written statement had been prepared in some haste, the following aspects are notable:

(a) The statement draws the distinction between a manager and a receptionist. It makes clear that the manager runs the brothel and so is senior to the receptionist.

(b) The statement, "Her girlfriend asked if she was allowed inside ..." reads as if an employee sex worker at the brothel asked OYJ if the girl was allowed inside. The girl, of course, is the child who was the victim of the offences in respect of which OYJ was charged.

(c) The statement, "I let her inside but she was not allowed to work" seems to be very clear, and to convey that OYJ directly allowed the girl inside. The sentence does not read as if, as manager of the brothel OYJ was simply "responsible" or "vicariously liable" for the conduct of the receptionist in letting the girl come inside. It does not say that "we" or "the receptionist" let the girl inside.

(d) The statement, "I thought it would be better for her ..." reads as a statement of OYJ's state of mind when making the decision to give permission for the girl to come inside.

(e) The statement, "When I found out she was working I told the receptionist ..." can only mean that OYJ learned that the girl was working as a prostitute in the brothel.

(f) The statement, "Later that night ... I went to Dandenong Police Station ... I gave an interview and admitted I had found out the previous day that she was working under age..." refers to 2 days: the day on which OYJ learned that the girl was working as a prostitute in the brothel, and the next day when OYJ went to the Police Station.

1. When OYJ gave evidence in chief she said the following. A woman who worked for OYJ in the brothel had a relationship with a girl in St Kilda. The girl sat outside OYJ's brothel. The Police moved her on. The next day OYJ let her in, and said you can sit in here but no work could take place. As manager OYJ was frequently on the premises, but she did not have to be there all the time, and a receptionist - not OYJ - sent the girl out for an intro, meaning that the girl went into a public area and introduced herself to a client. The Police attended to check the premises and OYJ told them she was responsible. OYJ did not know the girl was under age until the next day.

1. I must say, that last sentence of OYJ's evidence is somewhat disingenuous: OYJ says she did not "know" the girl was under age, but in her written witness statement she said required proof of age via an ID if she thought an applicant for employment may have been under 25. OYJ cannot have it both ways and she is not assisted by saying she did not know positively that the girl was under age.

1. In summary then, OYJ's evidence in chief was that she, directly, let the girl into the brothel and told her that she could sit in the premises but that no work could take place. The receptionist, not OYJ, let the girl participate in an intro. Her evidence is inconsistent with her pleas of guilt to the two charges, because merely engaging in an intro as described by OYJ is not prostitution within the

definition in the 1986 Act, and nor would it explain the receipt of payment. Because OYJ pleaded guilty to the two charges, when represented by a legal practitioner, I cannot accept that OYJ's conduct was as minimal as she describes it or that the girl only participated in an intro. I must conclude that the girl took part in an act of prostitution, and that OYJ received payment even if she passed it on to a proprietor.

1. When OYJ was cross examined she said the following. OYJ started working at the brothel when she was about 30 years of age, and whilst she was vague as to when the offence occurred she conceded that September 1994, as recorded by the Magistrates' Court, was probably correct. OYJ worked at the brothel as manager, two nights a week. As manager, she hired the workers. The receptionists would also hire workers sometimes, but they should always first obtain OYJ's approval. The worker referred to in OYJ's written statement, who had the relationship with the girl, was in her 30s. The girl was sitting outside the brothel and had nowhere else to go. She was not working outside the brothel. OYJ invited her in at the request of the worker. Even though in her written statement OYJ referred to a safe environment, she did not know what danger there was outside the brothel. OYJ let the girl in and told the girl and the receptionist that the girl was not allowed to work. The receptionist should see a new worker's ID, and then allow the worker to work if they had everything they needed. The Police telephoned OYJ, when she was at home and not at the brothel, about one hour after OYJ found out that the receptionist had let the girl work.

1. OYJ said that she let the girl in in the sense that she was the manager, but not in the sense of speaking to the girl or literally letting her in. OYJ was not at the brothel at the time, and it was the receptionist who let the girl in. OYJ told the receptionist that the girl was not allowed to work. As far as OYJ knows, the girl did not work in the sense of taking part in an act of prostitution[12] or providing a sexual service[13], but only in the sense of participating in an intro. The receptionist should not have allowed the girl to go out for an intro. OYJ confirmed she was responsible, as the manager. She did not recall having written in her VCAT Application that she was not at fault, and she accepts responsibility because as manager it was her job to get the ID of anyone wishing to work in the brothel. OYJ said she should not have got involved in the situation between the worker and the girl. She had nothing to do with the girl being outside her premises. OYJ relied on the receptionists, and in hindsight she should not have. The receptionist did not get charged.

1. OYJ said she sees the charge as a serious offence because you would not encourage anyone to put a child to work in a brothel.

1. OYJ said she pleaded guilty because she had told the receptionist that the girl could sit in the premises.

1. OYJ insisted that there was one event which led to the charges. Even though the Magistrates' Court's certified extracts specify the period "from 24 September 1994 to 4 October 1994", there were not multiple events. Because she was at the brothel two nights a week, it was not possible that the girl could have been working at the brothel without OYJ knowing. By pleading guilty OYJ was not saying that there had been multiple events.

1. OYJ also said she was not charged with obtaining payment knowing that it had been derived from sexual services provided by a child, because the girl did not work. [As I noted above, the Court's extract at page 45 says OYJ was charged, that she pleaded guilty, and that the Court's Order was that the charge was "Struck out. Withdrawn"].

1. There are a number of obvious inconsistencies in OYJ's evidence in cross-examination, including:

(a) as to whether the girl was working outside the brothel or not;

(b) as to whether OYJ directly let the girl into the brothel, or only indirectly as the manager who was responsible for the conduct of the receptionist;

(c) as to when and how OYJ learned that the girl had been taking part in any act of prostitution;

(d) as to whether OYJ directly told the girl she could not take part in acts of prostitution, or only told the receptionist;

(e) as to whether OYJ had just told the receptionist that the girl could come into the premises, or whether she also told the receptionist that the girl she could not take part in acts of prostitution.

OYJ's statement of regret was also as much about regret at having been charged rather than regret at the impact of the events on the girl.

1. When OYJ was re-examined, she said that at the time of the offence the girl's age was 17 years and 1 week (which is quite different to the written witness statement in which she said the offences occurred three weeks before the girl's 18th birthday) and that the girl came back to work for OYJ after she turned 18, at which time OYJ ensured she had her ID.

1. Having regard to OYJ's evidence and to the Magistrates' Court's records in relation to the two charges and their outcomes[14] I think it is more likely than not that the girl took part in an act of prostitution and not just an intro, and that OYJ received payment even if she passed it on to a proprietor. OYJ's conduct went further than just being the manager, and so notionally responsible, when the receptionist made a blunder.

1. Section 26A(3) says the Tribunal must not make an order for the giving of an Assessment Notice on a Category A application unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to the following criteria. I have underlined each criteria and discuss the criteria in turn:

(a) The nature and gravity of the offence and its relevance to child-related work

1. OYJ did not suggest that the offence of allowing a child to take part in prostitution [s7(1)] was not relevant to child-related work, but through her legal practitioner she submitted that the offence was of lesser seriousness than, for example, the commission of an indecent act on a child. OYJ did not concede that she had committed the other offence, of obtaining a payment from child prostitution [s8(1)] but I do not accept this in view of the Magistrates' Court's record of her having pleaded guilty. In my view OYJ sought to diminish the seriousness of the offences.

1. The Secretary, who neither consented to nor opposed OYJ's application but approached the matter as one of giving assistance to the Tribunal in reaching a legally correct decision, submitted that a Category A offence was the most serious category of offences falling to be considered under the WWC Act and which obliged the Secretary to refuse the application for the Assessment Notice. This is correct.

1. The Secretary referred to the Second Reading Speech in relation to the Prostitution Regulation Bill in October 1986, and to the Inquiry into prostitution conducted by then Professor Marcia Neave in September 1984, and her report released in December 1985. Professor Neave had recommended that adult prostitutes be permitted to work alone without restriction, and that the focus of

the criminal law should be on protecting young people from sexual abuse or exploitation and to protect adult prostitutes from violence or intimidation. The Secretary did not refer to the Second Reading Speech for the purpose of affecting the interpretation of either the Prostitution Regulation Act 1986 or the WWC Act. I do not consider it to be necessary to refer to the Second Reading Speech again.

1. I do not accept OYJ's evidence that she just permitted the girl to enter the brothel. The girl was not supported by OYJ's conduct.

1. I am satisfied that this criterion is not favourable to OYJ's application. The victim of the offence was either a little over 17 or almost 18, but in any event a child. She was in a relationship with an adult prostitute in her 30s, was engaging in street sex work, and returned to work in OYJ's brothel when she attained the age of 18.

(b) The period of time since the applicant committed the offence(s)

1. I accept OYJ's evidence that the two offences for which she was charged occurred on the one occasion, during the period 24 September to 4 October 1994, and that there were not multiple offences committed during those 10 days. The offences occurred 24 years ago, which is a long time ago.

1. This criterion is favourable to OYJ's application, when seen with OYJ's behaviour since [see section 26A(3)(g), below].

(c) Whether a finding of guilt or a conviction was recorded for the offence(s) or a charge for the offence(s) is still pending

1. I am satisfied that OYJ pleaded guilty to both charges. I prefer the Magistrates' Court's certified extracts to OYJ's evidence in this respect.

1. Section 7(1) of the Prostitution Regulation Act 1986 provided for a penalty of up to 4 years imprisonment. The sentence imposed for the offence of allowing the girl to take part in prostitution was a light sentence: a one-year good behaviour bond, without conviction, and payment of $300.00 to the Court fund.

1. The Magistrates' Court is best placed to determine the appropriate penalty in the summary jurisdiction, and the imposition of this light sentence is less adverse to OYJ's application than a heavier sentence would have been. But in no way is this criterion favourable to OYJ's application.

(e) The ages of the applicant and of any victim at the time the applicant committed the offence(s)

1. At the time of the offences, OYJ was 32 years and the girl was 17 years - a child.

1. OYJ's submission that the difference in ages is a different factor in this case to one in which the elder person has sexually abused or assaulted the child has some small merit, but not much. As a responsible adult, and indeed a person responsible enough to be the manager of a legal, regulated brothel, OYJ had the capacity and moral obligation to look out for the girl's interests and she failed to do so.

1. OYJ's evidence that she thought it would be better for the girl to be in the safe environment of the brothel than the dangerous environment outside is unconvincing, given that OYJ said she did not know what danger there was outside the brothel, and because the girl's participation in the intro apparently a short while after entering the brothel shows that it was not a safe environment for her. OYJ's expression of regret was based more on a Nixonian regret at having been caught and inconvenienced, in my view, than on a regret centred on the interests of the girl.

1. I do not consider that this criterion favours the granting of OYJ's application.

(f) Whether or not the conduct that constituted the offences has been decriminalised since the applicant engaged in it

(g) The applicant's behaviour since he or she committed the offence

1. In the context of OYJ's desire to care for Arthur, this criterion strongly favours the giving of an Assessment Notice.

1. In terms of criminal offending, OYJ's behaviour since the offence has been good. She has not had further involvement with the criminal law since 1995. After the offence under the Prostitution Regulation Act 1986, OYJ was charged with possessing, using and cultivating cannabis in June 1995. The charge of possession was withdrawn at the Magistrates' Court level. OYJ was convicted of the other two charges in the Magistrates' Court, but her appeals were allowed in the County Court in September 1995 and she was released on a 12 month good behaviour bond and I gather she complied with its terms.

1. The evidence of her "behaviour" generally is favourable, as the only evidence is that of OYJ and her witnesses Ms Matthews and Ms Flinders.

1. OYJ gave evidence that her cannabis use prior to 1995 was at least partially related to her medical condition of porphyria, because she used it to stop nausea and vomiting, and she was reluctant to use opiates for fear of addiction.

1. At some time, which she did not specify, OYJ consulted medical practitioners and for some time she has been prescribed Pethedine, Stemil and Fentanyl by her General Practitioner, which are efficacious in fighting nausea and vomiting. In her oral evidence she accepted the proposition that these prescription drugs were opiates, but she maintained that the prescribed quantities are small and that her plan was to reduce their consumption over time with advice from the General Practitioner. She safely stores these prescription drugs.

1. Ms Matthews gave evidence that she has been a friend of OYJ since 1987, having met her whilst working in the sex industry. Ms Matthews said that OYJ told her about her charge for allowing a child to take part in prostitution within weeks of their meeting, and that OYJ was horrified and upset about what had happened. OYJ introduced management procedures in the brothel to ensure that no underage prostitute would be engaged in future.

1. Ms Matthews gave evidence that she has seen OYJ engage with Ms Matthews' own children and other children, and that she behaved appropriately. Ms Matthews also observed OYJ in her relationship with Georgia, including when she visited her every day in hospital after the birth of Arthur in order to provide support. Ms Matthews gave this evidence in a written statement and expanded on it consistently in oral evidence in chief. She was not cross-examined.

1. Ms Flinders gave evidence that she has known OYJ for around nine years. Ms Flinders was a close friend of Georgia and OYJ's other daughter. She said that OYJ disclosed the charge of allowing a child to take part in prostitution very early in their friendship, and Ms Flinders attests to OYJ's kindness, patience, ability to cope with stressful situations, support and honesty. Ms Flinders has children and has had no concerns with OYJ's interactions with them. In her written witness statement she wrote that OYJ "has been a big part of my own child's life. He loves her dearly. ... I have never had concerns with her around my or any child and their safety".

1. OYJ's evidence of her medical condition and the strong drugs that she is taking on prescription, and my observation of her in the hearing, establish that OYJ is of below average health for a woman of 56 years. OYJ would be less physically resilient and strong than a 56-year-old woman of average health. However, I accept the evidence that she provided considerable support to Georgia and that her own health concerns did not diminish her willingness or ability to attend upon Georgia in hospital every day between the birth of Arthur and Georgia's untimely death, or her provision of care for Arthur before the Negative Notice was issued.

1. There is some very slight evidence about an altercation of sorts between OYJ and Philip at the hospital after Arthur's birth. The evidence is in a redacted record of file notes made by an unnamed officer of DHHS. Recording that the two had been in an argument at the hospital after Arthur's birth on 16 January 2018, the officer wrote[15] that "hospital staff suspect (OYJ) may also have been using ice". That brief note by the unnamed officer, records what an unnamed hospital staff member suspects, and it is a vivid example of hearsay evidence to be handled with caution. As the document has been heavily redacted, the word "also" in the quote may refer to Philip as a person who was suspected of using ice, rather than connoting that there was 'other conduct' of OYJ in the redacted text. In the minutes of the understanding/agreement made by DHHS after the Family Led Decision Making Meeting on 6 June 2018[16], DHSS had noted that Philip understood that it was imperative for him to engage in mental health, drug and alcohol rehabilitation. OYJ gave evidence that she does not take ice and is very disapproving of that drug. I raise this matter for the sake of completeness, and I do not make a finding that OYJ had consumed ice on or about 16 January 2018 or subsequently.

1. Whilst OYJ did not present any evidence from a psychologist, medical professional or social worker on any matters which might affect OYJ's behaviour, her offences were not to do with OYJ being sexually attracted to a child and so this omission is less serious than it may have been in different circumstances. Objectively, as OYJ has not had any involvement with the criminal law since 1995 I conclude that she has rehabilitated herself. OYJ has reflected on the outcome of the offences sufficiently to have not offended again.

1. OYJ gave evidence that she was committed to supporting Arthur and that she had done so until the issuing of the Negative Notice required her to cease having contact with Arthur alone. As OYJ left the sex industry in 2000 I conclude that there is almost no potential for her to return to the industry. I also accept her evidence that she has altogether retired and is supported by the Disability Support Pension.

1. I consider that this criterion favours OYJ's application.

(h) The likelihood of future threat to a child caused by the applicant

1. As I have said, I am satisfied that OYJ seeks an Assessment Notice to further her activities in caring for Arthur, and not because she has any intention of using an Assessment Notice to work with children. However, an Assessment Notice is not issued under the WWC ACT for specific purposes and so permits the bearer to, for example, work with babies in a creche, with toddlers in an early learning centre, with under tens in youth groups or school camps, and with teenagers. This criterion needs to be considered in that broad context.
2. I have no hesitation in saying that OYJ does not present a future threat to Arthur. The fact that DHHS placed Arthur in the care of OYJ very early in his young life, plus the evidence of Ms Matthews and Ms Flinders, compels me to reach that conclusion. Their evidence was that Arthur was thriving while in OYJ's care.

1. Looking more broadly at the future threat to children, I am satisfied that OYJ is unlikely to allow a child to take part in prostitution. I accept OYJ's evidence that she has not been engaged in any way in the sex industry since 2000, and that she has altogether retired and is financially supported by the Disability Support Pension. She takes prescription medication for her hereditary porphyria. On her own admission, she occasionally consumes cannabis but is rigorous in not doing so around Arthur. Similarly, she consumes tobacco but does not do so around Arthur.

1. In summary I consider OYJ to be an old lady with a criminal history, but one that took place long ago and which does not represent her today.

1. In Maleckas v Secretary, Department of Justice[17], Kyrou J discussed the meaning of the expression "the likelihood of future threat to a child caused by the applicant" and said the expression 'the likelihood of future threat' meant no more than 'the chance of future threat', and that "(W)here the chance is minimal, the consideration may favour the applicant. The greater the chance, the less favourable is the consideration from the applicant's perspective".

1. The long passage of time since OYJ's last involvement with the criminal law in 1995 renders the likelihood of a future threat to a child caused by OYJ, in the form of her engaging in criminal activity, to be very low.

1. OYJ is taking Pethedine, Stemil and Fentanyl on prescription by her General Practitioner. A person taking strong drugs may have side effects or, at the least, symptoms of fatigue which could in certain circumstances present a threat to a child. For example, a person taking such prescription drugs might be advised not to drive. However section 26A(3)(h) does not require there to be no chance of a future threat.

1. OYJ has not produced a report from a psychologist or the like, as sometimes occurs in the cases of persons who have been previously convicted of sexually assaulting children. However, the absence of such report is not fatal to OYJ's claim that she does not present a future threat to a child. Such a report would be more relevant to an applicant who had been charged or convicted of offences which were indicative of the person having a sexual attraction to children, which is not the case here.

1. I am satisfied that the likelihood of future threat to a child caused by OYJ is low. I do not consider that this criterion to be unfavourable to OYJ's application.

(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

1. The evidence of Ms Matthews and Ms Flinders, in generally attesting to OYJ's positive qualities and care for Arthur, which I have summarised above, is relevant here and is favourable to OYJ's application.

1. The question of whether a person who has had criminal charges or convictions has insight into their conduct is often raised in connection with these subsections. In Maleckas v Secretary, Department of Justice[18], Kyrou J said that "the questions of whether (the applicant) has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under" the equivalent of sub-section 26A(3)(j), "any other matter that VCAT considers relevant to the application". His Honour said, "As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight or remorse in relation to such an offence" (emphasis added).

1. OYJ does have an understanding that the offence she committed was wrong. I have said that part of that understanding was regret at having been caught and inconvenienced, and I have set out how OYJ has emphasised the management processes that she introduced, of always obtaining a potential employee's ID, over any other matter. OYJ has demonstrated some little insight and remorse. It is more relevant in my view that OYJ has not worked in any capacity in the sex industry since 2000 and is not in a position to influence a child to engage in it.

1. I consider these criteria to not be unfavourable to OYJ's application.

For the purposes of subsection (3), in satisfying itself that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that -

(a) a reasonable person would allow his or her child to have direct contact with the applicant 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. So, consistently with the observation that the WWC Act does not allow for "limited purpose Assessment Notices", section 26A(4) is not directed to how OYJ would be perceived when engaging with Arthur, but is directed to the much broader questions of how a reasonable person would act in relation to their own child, and the risk posed by OYJ's engagement in any type of child-related work.

1. In JGF v Secretary to the Department of Justice[19], Vice President Macnamara said, in an oft quoted passage:

A reasonable person would be acquainted with the truism ... that there are no risk-free encounters in human life. A reasonable person would, in considering the situation of (the applicant), wish to acquaint himself or herself with the full range of material that has been placed before (the Tribunal) including the character evidence, the history of (the applicant's) good character during his adult life and the expert opinions. A reasonable person would retain a measure of scepticism and caution but would not approach an issue such as this with the thought that once a person had, if you will, shown the cloven hoof, albeit decades ago and as a very young man, that he could never be redeemed.

1. Judge Macnamara expressed the same view in VQB v Secretary to the Department of Justice[20] where he said this of the thought process 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 (the Tribunal), 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 overoptimistic attempt to facilitate rehabilitation.

1. I adopt Judge Macnamara's approach in applying section 26A(4)(a).

1. Because sub-section 26A(4)(a) says "a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work" (emphasis added), and as a matter of human nature people are more cautious and concerned about their own child, than about others' children, the subsection places a more onerous test on an applicant for an Assessment Notice, than if the subsection had said a reasonable person would allow "a child to have direct contact with the applicant ...".

1. The subsection is directed to the attitude of a notional or hypothetical reasonable person, to their own child having direct contact with OYJ. But there is also some objective evidence, from Ms Matthews and Ms Flinders which I have referred to above, both of whom have children. I would not purport to say that the evidence of Ms Matthews and Ms Flinders defines what the hypothetical reasonable person would do, but it is relevant. Indeed, if I were to ignore their evidence altogether, there would be a risk of reaching a subjective view and painting it is that of the hypothetical reasonable person.

1. Again, an Assessment Notice is not issued just for a narrow purpose such as enabling a person to care for their own grandchild, but would allow the bearer to engage in child-related work as broadly defined in section 9 of the WWC Act with a broad range of children, of different ages and abilities. A hypothetical reasonable person, considering whether to allow their own child to have direct contact with an applicant for an Assessment Notice, could well take a different view if their child was very young and it was proposed that the child would be entirely alone with the applicant, than if the child was 17 years of age and was to be in contact with the applicant only at a school camp attended by many other teenage children and a number of teachers. This much is clear. But to refer to the broad range of possibilities in this way invites a misinterpretation and misapplication of the subsection 26A(4)(a), because it could create a situation where an applicant could never satisfy the test. The broader the age range of the child, and the broader the range of activities being child-related work as broadly defined, the more difficult it becomes to conclude that a reasonable person would ever allow his or her child to have direct contact with an applicant while the applicant was engaged in any type of child-related work.

1. Using an unduly broad interpretation of subsection 26A(4)(a) would contradict the purpose of the subsection, which is that it be taken into account when the Tribunal is applying section 26A(3) and considering whether it is satisfied that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children.

1. In ZZ v Secretary, Department of Justice and Regulation[21] Bell J said, of the words "would not pose an unjustifiable risk to the safety of children" that

The performance of (the Tribunal's) function requires the Tribunal to make a rational, objective and evidence-based assessment of the nature and degree of the risk [if any] which giving the notice would pose in the given facts and circumstances. The concept of "unjustifiable risk" incorporates notions of weighing, balancing and proportionality. Taking into account the considerations specified in (the section), the seriousness of the potential harm must be assessed against the possibility of it occurring. The Tribunal's risk assessment must be an evaluative judgment about whether giving the notice would not pose an unjustifiable risk to the safety of children, not about whether giving a notice would not pose a, any or no risk or put children at risk. (emphasis added)

1. A reasonable person would see that OYJ is an old lady with a criminal history, but one that took place long ago and which no longer represents the person she is. She has hereditary porphyria and takes the prescription medication that I have referred to above. I do not construe section 26A(4)(a) in a way which would have it catch such a broad age range of children and of child-related work activities as to conclude that a reasonable person would never allow his or her child to have direct contact with OYJ while she was engaged in any type of child-related work. Instead, properly construing section 26A(4)(a) I am satisfied that a reasonable person would allow his or her child to have direct contact with OYJ while she was engaged in any type of child-related work.

1. Whilst section 26A(4)(b) is separate to section 26A(4)(a), in Secretary to the Department of Justice and Regulation v OUX & VCAT[22], the Court of Appeal recently dismissed an appeal from a decision of this Tribunal, the ground of which was that the Tribunal had not considered the test in section 26A(4)(b), or had conflated it with the test in section 26A(4)(a).

1. In their joint judgment, Priest, Beach and Weinberg JJA said:[23]

It is difficult to see that any conflation or subsumption of the criterion in section 26A(4)(b) with or under the 'reasonable person test' in section 26A(4)(a) could realistically have had any influence on the assessment of the central matter on which the Tribunal needed to be satisfied under section 26A(3) - that (the applicant) would not pose an unjustifiable risk to the safety of children. For the purposes of being satisfied that (the applicant) would not pose an unjustifiable risk to the safety of children, the (WWC Act) provides that the Tribunal had to be satisfied under section 26A(4), that (a) a reasonable person would allow his or her child have direct contact with (the applicant) while he 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. At the very least, there is considerable overlap between subsections (3) and (4). But on the assumption that section 26A(4)(b) has some separate work to do, it is difficult to envisage a case where the criterion in section 26A(4)(b) will add anything of substance to the manifold criteria in section 26A(3), or to the 'reasonable person' criterion in section 26A(4)(a).

Paying due regard to the statutory formula in section 26A(4)(b), it is difficult to conceive of a situation in which the Tribunal - having found on strong and compelling evidence that (the applicant) was unlikely to pose a future threat to a child - could nevertheless have failed of satisfaction that his engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

1. Section 26A(4)(b) also uses the words "any type of child-related work".

1. In Maleckas v Secretary, Department of Justice[25] Kyrou J set out a number of propositions in relation to the concept of "an unjustifiable risk to the safety of children". He said the propositions applied both to the Secretary and to the Tribunal, but that for simplicity he referred only to the Secretary. Quoting from paragraph 60 His Honour said:

(a) The expression 'an unjustifiable risk' does not require the Secretary to be satisfied that the giving of an Assessment Notice would not pose any risk to the safety of children. The Secretary may give an Assessment Notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.

(b) What constitutes 'an unjustifiable risk to the safety of children' will depend on the circumstances of each case, having regard to the matters set out in (the relevant sections) and the main purpose of the WWC Act set out in s1(1)[26].

(c) Although the WWC Act does not define the expression 'safety of children', it is apparent from the reference to 'protecting children from sexual or physical harm' in section 1(1) of the Act that the expression means 'sexual or physical safety of children'. That is not to say, however, that the risk of non-sexual and non-physical harm to children will always be irrelevant. Depending on the circumstances of a particular case, such a risk may be relevant to public interest considerations.

1. In ZZ v Secretary, Department of Justice[27] Bell J discussed the concept of "unjustifiable risk" consistently with the above quote from Kyrou J in Maleckas. Bell J said that the Tribunal is not to apply a binary distinction ('safe' v 'unsafe'), but rather that it must make an evaluative judgment by examining the competing facts and circumstances in each case. The Tribunal must take into account the need to balance protecting children from harm with the right to work and freedom of choice of work, and it does so by evaluating the nature and degree of any risk. What constitutes an "unjustifiable risk to the safety of children" [the words used in 26A(4)(b)] will depend on the circumstances of each case, having regard to the matters set out in the relevant sections of the WWC Act.

1. In my view, the desire to care for one's grandchild is undoubtedly as important as the right to work and freedom of choice of work.

1. Bell J noted that "safety of children" is not defined in the WWC Act, and if given its ordinary meaning it would not be confined to sexual or physical harm, but would include emotional and psychological harm[28]. He said that "unjustifiable risk" does not mean "a risk" or "any risk" or putting children "at risk". The relevant risk in an application under the WWC Act is to "the safety of children"[29]. It is appropriate for the Tribunal to consider any tendency by the Applicant to minimise details of a relevant offence, when assessing whether there was an unjustifiable risk[30].

1. I have said above that I considered that OYJ's expression of regret emphasised regret at having been caught by the Vice Squad and inconvenienced. I consider that OYJ minimised details of the offence. However, I have found above that it has been some 24 years since the offences were committed, that the Magistrates' Court imposed a light sentence for the offence of allowing the girl to take part in

prostitution, and that OYJ's conduct since committing the offences has been good. Those findings, their Honours' above observations, the evidence presented and my observations of OYJ in the hearing, lead me to conclude that OYJ's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

1. For the reasons set out above, having regard to the criteria set out in sections 26A(3)(a) - (j) and (4)(a) and (b) of the WWC Act as a whole, I am satisfied that giving an Assessment Notice to OYJ would not pose an unjustifiable risk to the safety of children.

If, in accordance with this section, VCAT is satisfied that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the Assessment Notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.

1. In this case "all the circumstances" includes matters relating to the public, to OYJ, and undoubtedly to Arthur who has lost his mother and who currently receives no care or support from his biological father.

1. In Maleckas v Secretary, Department of Justice[31], Kyrou J said that the public interest considerations were not confined to the question of whether the applicant's current or proposed activities constituted child-related work. Evidence that an applicant was dishonest, suffering from a mental illness or had problems with drugs or alcohol could be taken into account as adverse to the applicant, and conversely evidence that the applicant had skills that could benefit children or that the applicant was a positive role model for children could be taken into account as favourable. An offender's rehabilitation was a relevant consideration. His Honour also repeated the words from the section, the Tribunal had to consider "all the circumstances".

1. I am satisfied that it is in Arthur's interests to have as much contact as possible with OYJ, and other members of his family who are committed to him, and that this includes the possibility of OYJ being able to provide out-of-home care. Whilst I do not have evidence from OYJ's sister, who is also providing care to Arthur, it stands to reason that she must be of a similar age to OYJ and

accordingly that she would benefit from being able to share the load with OYJ, and that Arthur would therefore benefit from the support being provided by both OYJ and her sister. It would not be to the point that, if OYJ was unable to provide out-of-home care because she could not be granted an Assessment Notice, that Arthur could receive institutional care or foster care.

1. It is in the public interest for Arthur to have the best childhood possible in his difficult circumstances of having lost his mother and having no support or input from his biological father. Receiving care and support from his grandmother, OYJ, will assist Arthur. The Australian public will be better served if Arthur is able to thrive.

1. It is in OYJ's interests to have as much contact as possible with Arthur, in her capacity as his grandmother. There is a public interest in grandmothers contributing to the upbringing of the grandchildren.

1. I am satisfied that, in all the circumstances, it is in the public interest to give an Assessment Notice to OYJ.

1. In the words of section 26A(1) of the Working with Children Act 2005 I will order that OYJ be given an Assessment Notice, and in the words of section 26A(5) I will direct the Secretary to issue that Assessment Notice.

[1] Page 72 of the section 49 documents.

[2] Page 78 of the section 49 documents.

[3] Section 9(3)(e) provides that out of home care is a type of child-related work.

[4] The Minutes are at pages 60 and 61 of the section 49 documents.

[5] Page 53 of the section 49 documents. It was the third such meeting.

[6] Page 53 of the section 49 documents.

[7] Pages 44, 45 and 46 of the section 49 documents.

[8] As is shown by the quotation of section 8(1) of the Prostitution Regulation Act 1986 below, this is an incorrect precis of the offence. The word "for" is there in error and the text should say "obtain payment from child for prostitution".

[9] The exclusions in Schedule 1 are irrelevant.

[10] Section 3 of that Act says: "'Prostitution' means the provision by one person to another (whether or not of a different sex) of sexual services such as - (a) the taking part by those persons in an act of sexual penetration...; or (b) the performance by one of those persons of masturbation of the other - in return for payment or reward".

[11] That form of words, "must not ... unless" can be contrasted with, for example, the formulation in section 14(2) which relates to category C applications and says that the Secretary 'must give an Assessment Notice unless'.

[12] The words used in the Prostitution Regulation Act 1986.

[13] The words used in the Sex Work Act 1994.

[14] Pages 44 - 46 of the section 49 documents.

[15] Page 77 of the section 49 documents.

[16] Page 53 of the section 49 documents.

[17] [2011] VSC 227.

[18] [2011] VSC 227 at paragraph 60.

[19] [2013] VCAT 1728.

[20] [2013] VCAT 789.

[21] [2013] VSC 267.

[22] [2018] VSCA 178.

[23] [2018] VSCA 178 at paragraph 38.

[24] [2018] VSCA 178 at paragraph 40.

[25] [2011] VSC 227.

[26] Since Maleckas one would add "and section 1A".

[27] [2013] VSC 267.

[30] Paragraph [110], His Honour citing Maleckas.

[31] [2011] VSC 227 at paragraphs 89 and 93.