P Q R v Secretary, Department of Justice and Regulation

Supreme Court of Victoria|2017-09-26|Before: Bell J

APPEAL - Victorian Civil and Administrative Tribunal - applicant studying to become an exercise physiologist and intending sometimes to work with children in sporting and like contexts - application for working with children check - decision of deputy president refusing to grant assessment notice - applicant on parole for serious drug offences but found to be rehabilitated and of no direct risk of harm to children - application refused because of indirect risk to children generally should applicant relapse into drug-related activity - whether deputy president properly evaluated nature and extent of that risk - whether properly or at all considered whether giving an assessment notice would not pose an unjustifiable risk to safety of children - whether considered necessary causal connection between any such generalised risk and child-related work that applicant might lawfully perform by reason of being given the notice - delay in instituting application for leave to appeal - whether time should be extended - relevant considerations - 'unjustifiable risk to the safety of children', 'pose', 'giving the assessment notice' - Victorian Civil and Administrative Tribunal Act 1998 (Vic) , (2) and (5), (Vic) ss 13(2), 26B(1).

Solicitor for the Department of Justice and Regulation

1 The Working with Children Act 2005 (Vic) establishes a process for screening persons engaging or intending to engage in child-related work. On pain of criminal penalty, such persons must apply for a working with children check and obtain an assessment notice permitting them to do so. Consistently with s 17(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and international human rights,[1] the paramount consideration in determining such applications is the protection of children from sexual and physical harm.[2]

2 As the applicant in the present case is studying to become an exercise physiologist whose work can be child-related, he had to undertake this screening process. Where an applicant has been charged with or found guilty or convicted of certain offences, including causing injury intentionally or recklessly, an assessment notice cannot be given unless doing so would not pose an unjustifiable risk to the safety of children. The application of this condition to the applicant was triggered by him being found guilty of that offence in 2002.

3 The applicant was also found guilty of drug-related offences in 2012, including large-scale trafficking in dangerous drugs (not specifically to children). He was sentenced on conviction to imprisonment for six years but, in view of his plea of guilty and excellent prospects for rehabilitation, a minimum term of two years was set. He was a model prisoner, released on parole in 2014 and will be on that parole until 2018. The Working with Children Act permits drug-related offences not related directly to children to be taken into account in determining whether to grant an assessment notice, but these are not in the same category as the triggering offence. The Act does not prohibit persons on parole from applying for a working with children check, obtaining an assessment notice and then working with children.

4 The Secretary of the Department of Justice and Regulation refused to grant the assessment notice. The applicant then applied to the Victorian Civil and Administrative Tribunal for review of that decision. The deputy president hearing the application for review decided that the applicant was at low risk of direct physical harm to children, indeed was caring towards them, but was a potential future indirect risk of that harm should he relapse into drug-related activity.

5 There was no evidence before the deputy president that there was any risk that the applicant would sell drugs to or otherwise directly harm children, including any with whom he would come into contact during child-related work. The Secretary did not seek, and the deputy president did not make, such a finding. In determining the application for review, the deputy president did not focus upon or make express findings about how giving the assessment notice would pose an unjustifiable risk to the safety of children. Rather, he focussed upon how, and made findings that, children generally might be at potential future risk of harm if the applicant were to relapse into drug-related activity. On this basis, he upheld the Secretary's decision to refuse to grant the assessment notice. The statutory effect of this decision is that the applicant cannot make an application again for another five years.

6 The applicant appeals to this court against VCAT's decision upon grounds of error of law. He seeks leave to do so under s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), and also seeks an extension of time under s 148(5) in which to do so. By order of the court, these matters are to be heard and determined together by the judge hearing the appeal, as they now are. The main ground of the appeal is that the deputy president failed to determine whether an unjustifiable risk to the safety of children would not be posed by giving the assessment notice. The applicant asks the court to make orders remitting the case back to VCAT for a rehearing involving a proper determination of that question.

7 As found by the deputy president, the applicant was charged with and found guilty of the offence of assault occasioning bodily harm[3] in about June 2002 in Queensland on his then de facto partner during a drunken argument. A magistrate at Maroochydore Magistrates' Court sentenced the applicant without conviction to probation for 12 months and 80 hours community service. This was the offence that triggered the operation of the provisions of the Working with Children Act that are at issue in this appeal.

8 The applicant committed other relevant offending, including that, on 9 November 2004, he took part in the production of drugs by hydroponics (cannabis). He was sentenced with conviction by a judge of the District Court of South Australia to imprisonment for 15 months with a non-parole period of 9 months, which was suspended for two years subject to a good behaviour bond in the sum of $500.

9 Further and most seriously, on 23 November 2012 the applicant was found guilty on his plea of guilty of trafficking in dangerous drugs (schedule 1), trafficking in dangerous drugs (schedule 2), and possessing utensils or pipes for use in the period April 2008-December 2009. The offending related to large-scale, syndicated drug trafficking activity. In light of mitigating circumstances, on conviction he received from a judge of the Supreme Court of Queensland a merciful aggregate sentence of imprisonment for six years subject to a non-parole period of two years. The applicant's parole has been transferred to Victoria, where he will serve it until it ends in 2018. The deputy president found this offending to be very serious, which it undoubtedly was.

10 The applicant has been guilty of other offending that is relatively minor in nature and did not loom large in VCAT's consideration.

11 The applicant's personal circumstances are that he married in about 2005 in Brisbane. He and his former wife have two young children. Prior to the birth of those children, he was involved in drug-related activity that gave rise to the above offending, and also personal drug abuse. From when his wife became pregnant with the first of their children in December 2009, he ceased all involvement with drugs. His marriage subsequently broke down, but he maintains regular contact with his former wife and the two children, of whom he and she share custody.

12 From mid-2014, the applicant has been in a relationship with his present partner. She describes him to be a 'fantastic' stepfather to her three children. He lives and works in Melbourne, but most of his family are located in Queensland.

13 In the reasons for decision,[4] the deputy president acknowledged that the applicant (identified by the pseudonym 'JDH' in VCAT) appears to be rehabilitated:

At one level, the turnaround in JDH's life and behaviour in the short period of time since his release from prison is both remarkable and commendable. I was impressed with JDH's very positive attitude about his future, in terms of his relationship and career aspirations, his desire to participate fully in the lives of his children, and his desire to become a fully functioning member of his community.

14 The applicant's career aspirations are to work as an exercise physiologist and personal trainer in gymnasiums, to coach and support student athletic teams in schools, sporting clubs and like facilities and to teach in those and related areas. He has undertaken, and is undertaking, university and other education towards that goal. In doing so, he wishes to contribute positively to the community.

15 It was for these reasons that the applicant applied for the working with children check and the assessment notice. His application to the Secretary was supported by several references and reports. The reasons for refusal of the Secretary simply state that all of the information provided was considered but the Secretary was not satisfied that giving the assessment notice would not pose an unacceptable risk to the safety of children.

16 The applicant's application to VCAT was supported in the same way but included additional information and reports. His current partner gave evidence in support of his application, which was strongly opposed by the Secretary. The reasons for the decision of the deputy president made many findings that were favourable to the applicant and others that were not favourable. To assist in understanding the decision, I will set out the main findings in this regard.

17 On the favourable side, the deputy president found:

the applicant stopped involvement in all drug-related activity in December 2009 and has not consumed alcohol since 2010
he was a model prisoner in Queensland and both inside prison and since being released on parole has undertaken extensive study programs and rehabilitative courses
he has good relations with his former wife and their two children and has a strong relationship with his current partner, becoming a 'fantastic' stepfather to her three children
the turnaround in the applicant's life is 'remarkable and commendable' (see further above)
there is 'absolutely no evidence of any sexual proclivity towards children or adolescents'
in the sense of being directly violent towards a child, the threat that the applicant poses is low, indeed quite the opposite
the applicant wants to make a positive contribution to the community and has legitimate occupational reasons for wanting to work with children and obtain an assessment notice

the triggering offence was 'a vicious attack of domestic violence'
the 2012 drug-related offences were particularly serious
drug trafficking leads to physical harm of children and the applicant's crimes put children in the high risk situation of drugs:

As the sentencing judge in Queensland noted in 2012, the volume of trafficking was such that there were thousands of people in the community, including thousands of young people, affected by JDH's involvement in an evil industry spreading drugs through the community.

insufficient time has passed for the applicant to demonstrate a fully insightful response to this issue:

whilst conceding this, and demonstrating some level of remorse, there still appeared to be a level of detachment on JDH's part between his crime and its unknown impact on unknown child victims.

there was a potential future risk that the applicant might relapse into drug-related activity, especially if he suffered personal tragedy, taking into account his lack of family and social ties in Melbourne, which gave rise to a 'potential future threat of harm to children' of an indirect kind
it was 'simply too early' to be sufficiently confident in the applicant's rehabilitation and behavioural changes, to be satisfied that there was no unjustifiable risk, which could only be resolved through the passing of time

there was a risk that the applicant might harm, directly or indirectly, children with whom he might come into contact in any child-related work, including if he were to relapse into drug-related activity
there was any correlation between giving an assessment notice and the risk of indirect harm arising out of the applicant's possible relapse into drug-related activity

21 The main purpose of the Working with Children Act is (s 1(1)) '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'. It implements this purpose by requiring persons engaging in child-related work to comply with the requirements of pt 2. In particular, the person must make application for a working with children check (s 10(1)). If the check is positive, the applicant must be granted an assessment notice stating that he or she has passed a working with children check (s 17(2)(a)). This notice is valid for all child-related work and not just work that the applicant presently intends to undertake.[5] If the check if negative, the applicant must be given a negative notice (s 17(3)). It is an offence knowingly to engage in child-related work without a current positive notice (s 33(1)).

22 As I discussed in ZZ v Secretary, Department of Justice, the Working with Children Act gives effect to the paramount consideration of the protection of children from sexual and physical harm (now expressly specified in s 1A) whilst also implicitly recognising the importance of work to individuals and families.[6] In that judgment is to be found an analysis of the right of children to be protected from harm[7] and the right of people to work (subject to law),[8] which it is unnecessary here to repeat. The various elements of the screening process in pt 2 of the Working with Children Act represent the balance that was carefully struck by the legislature between these two competing rights and the fundamental values and interests that they represent, remembering that the protection of children is paramount.

23 The Working with Children Act is not directed at the purpose of protecting children from harm generally and in all situations. While the community expects the government of Victoria to ensure that protection (and it has an obligation to do so under the international treaties that I have mentioned), it does so through legislation and administration on a whole-of-government basis. As one part of exercising that whole-of-government responsibility, the Working with Children Act is directed at protecting children from the risk of harm caused by people who work with or care for them.[9]

24 That an applicant has been charged with or found guilty or convicted of certain offences will have definite consequences under the Working with Children Act because it will trigger the category into which persons fall to be assessed (see below). But the Act does not implement a system for screening persons engaging or intending to engage in child-related work by reference to a personal character or like test. Likewise, the issue for determination is not whether an applicant should be prevented from working with children by way of further detriment or penalty for having been charged with or found guilty or convicted of an offence. While the criminal antecedents of the applicant, as well as his rehabilitation, may be relevant to the application of the statutory criteria (see below), the primary function of the Secretary and VCAT is one of risk assessment.

25 The central feature of the screening process is the working with children check that is activated by an application under s 10(1). Such an application is assessed against different criteria depending on the category into which it falls. The categories are:

26 Category A is the most serious category. By s 12(1)(a)-(e), it applies where the applicant is (for example) subject to reporting obligations under the Sex Offenders Registration Act 2004 (Vic) (para (a)) or has been charged with, convicted or found guilty of certain serious offences against children and sex-related offences (including child pornography offences and rape) (paras (d) and (e), read with sch 1).[10] Section 12(2) requires the Secretary to refuse applications from persons in this category, although some have certain appeal rights to VCAT (ss 26(1)(a) and 26A).

27 Category B is the middle category. It was the category into which the applicant in the present case fell. By s 13(1)(a)-(c), it applies where the applicant has (for example) as an adult been charged with or found guilty or convicted of a sexual offence as defined in specified provisions of the Sentencing Act 1991 (Vic) (para (a), read with cl 1 of sch 2), violent offences as specified in certain provisions of the Sentencing Act other than murder or attempted murder, trafficking or supplying drugs to a child (para (b), read with cl 5 of sch 2) or (as in the present case) an offence under a non-Victorian jurisdiction that is the equivalent of the offence of intentionally or recklessly causing injury contrary to s 18 of the Crimes Act (para (b), read with cl 11(c) of sch 2). Section 13(2) requires the Secretary to refuse to give an assessment notice on a category B application 'unless satisfied that doing so would not pose an unjustified risk to the safety of children' (emphasis added) having regard to certain specified considerations. Applicants coming within category B, such as the applicant here, who receive a negative notice may apply to VCAT for a review of the decision (s 26(1)(b)). Section 26B(1) requires the same test to be applied, taking into account the same considerations. Section 26B(2)(a) specifies an additional 'reasonable person' test and s 26B(3) requires the Secretary to be satisfied that the applicant would not pose an unjustifiable risk when engaged in 'any ... child-related work' (see below).

28 Category C is the lowest category. By s 14(1), it applies where the applicant is (for example) the subject of certain regulatory findings or determinations (s 14(1)(a)) or has been charged with, convicted or found guilty of 'an offence' other than one covered by category A or category B (s 14(1)(c)). Section 14(2)(a) requires the Secretary to give an assessment notice on a category C application unless the Secretary is satisfied that giving the notice would pose an unjustifiable risk having regard to the factors set out in s 14(3). Sections 14(2)(b) and (c) repeat the same 'reasonable person' and 'any ... child-related work' tests (see below).

29 Such is the general scheme of the screening process in pt 2 of the Working with Children Act. I turn now to the 'unjustifiable risk' test that is at issue in the present case.

30 Under the provisions of pt 2 of the Working with Children Act, VCAT may give an assessment notice in respect of category A applications (s 26A(3)); the Secretary (s 13(2)) or (on review) VCAT (s 26B(1)) may give an assessment notice in respect of category B applications; and the Secretary (s 14(2)) or (on review) VCAT (s 26C(1)) may give an assessment notice in respect of category C applications. In all cases, the Secretary or VCAT is required to apply an unjustifiable risk test having regard to specified considerations. In all cases, the focus is on whether giving the notice would pose an unjustifiable risk. Depending upon the category of application, the test is expressed in terms of a positive or negative state of satisfaction.

31 In relation to category A applications, s 26A(3) requires VCAT not to make an order for the giving of an assessment notice 'unless it is satisfied that giving the notice would not pose an unjustifiable risk' (emphasis added) having regard to the specified considerations. The 'reasonable person' test and 'any ... child-related work' test are also applicable (s 26A(4)(a) and (b)) (see below). A 'public interest' test is also applicable: the tribunal must be positively satisfied that 'it is in the public interest' to give the notice (s 26A(5)).

32 In relation to category B applications, s 13(2) requires the Secretary to refuse to give an assessment notice 'unless satisfied that doing so would not pose an unjustifiable risk to the safety of children' (emphasis added) having regard to the same considerations. The 'reasonable person' test and 'any ... child-related work' test is also applicable (s 13(3)(a) and (b)) (see below). Section 26B(1) requires VCAT (on review) to refuse a notice 'unless satisfied that giving the assessment notice would not pose an unjustifiable risk' (emphasis added) having regard to those considerations. Again, the 'reasonable person' test and 'any ... child-related work' test are applicable (s 26B(2)(a) and (b)) (see below), as is the 'public interest' test (s 26B(3)).

33 In relation to category C applications, s 14(2) requires the Secretary to give the notice unless 'satisfied that giving the notice would pose an unjustifiable risk' (emphasis added) having regard to the specified considerations. Section 26C(1) requires VCAT (on review) to determine whether 'it would be appropriate to refuse' to give a notice having regard to the specified considerations. The 'reasonable person' test and 'any ... child-related work' test are applicable (s 26C(2)(a) and (b)), as well as the 'public interest' test (s 26C(3)).

34 Focusing now on the provisions which governed determination of the applicant's application in the present case, which came within category B, s 13(2) of the Working with Children Act provides as follows:

(2) The Secretary must refuse to give an assessment notice on a category B application unless satisfied that doing so [emphasis added] would not pose an unjustifiable risk to the safety of children, having regard to -

(a) the nature and gravity of the offence or alleged offence and its relevance to childrelated work; and

(b) the period of time since the applicant committed, or allegedly 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, or allegedly committed, the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and

(g) the applicant's behaviour since he or she committed, or allegedly 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 the Secretary considers relevant to the application.

As can be seen, the question for determination is whether the Secretary is satisfied that giving the notice would not pose an unjustifiable risk having regard to the specified considerations.

(3) In satisfying himself or herself that giving an assessment notice [emphasis added] would not pose an unjustifiable risk to the safety of children, the Secretary 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.

As can be seen, these provisions require that, when determining whether giving an assessment notice would not pose an unjustifiable risk, the Secretary must be satisfied of the 'reasonable person' test and the 'any ... child-related work' test.

36 Section 26B(1) requires VCAT to apply the provisions of s 13(2) in determining applications for review. Section 26B(2) likewise requires VCAT to be satisfied of the 'reasonable person' and 'any ... child-related work' tests in determining whether giving an assessment notice would not pose an unjustifiable risk.

37 In cases before VCAT, s 26B(3) also states an additional 'public interest' test:

(3) Even if VCAT is satisfied under subsections (1) and (2) that giving an assessment notice [emphasis added] would not pose an unjustifiable risk to the safety of children, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.

This additional 'public interest' test for category B applications applies 'even where' VCAT is satisfied under s 26B(1) and (2) that giving a notice would not pose an unjustifiable risk to the safety of children. It is implicit in s 26B(3) that VCAT will first have properly applied s 26B(1) and (2) and taken this into account when considering the additional 'public interest' test.

38 In ZZ, I considered the proper interpretation and application of the 'unjustifiable risk' test having regard to the provisions of s 13(2) and other provisions of the Working with Children Act and the human rights in the Charter.[11] Although that Act has since been amended, it was accepted by senior counsel for the applicant and the Secretary in the present case that the analysis in that judgment was still applicable and both relied upon it in one way or another. At the risk of burdening the reader, I can do no better that repeating the relevant passages with the additional emphasis called for in the present appeal.

39 In relation to the scheme of the Working with Children Act, I said:

The scheme of the Working with Children Act is to prohibit and criminalise engaging in child-related work unless the person has been given an assessment notice (s 33(1)). The threshold test applying in cases like the present is whether giving a notice 'would not pose an unjustifiable risk to the safety [of] children' having regard to particular considerations (s 13(2)). Making an unjustifiable risk assessment involves high stakes on all sides and the focus in the legislation is on balance, objectivity and methodological rigour.[12]

40 In relation to the consideration required by the 'unjustifiable risk' test, I said:

The test of 'unjustifiable risk' requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. The assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances. As the Secretary to the Department of Justice ... submitted, if s 13(2) is so applied, it will be a proportionate decision in the circumstances under the provisions of the Working with Children Act ...[13]

41 In relation to the balance to be struck in the 'unjustifiable risk' test between protecting children from harm and denying someone access to his or her work of choice, I said:

The protection of children wherever they are is of fundamental importance. Infliction of harm upon them produces severe and long-lasting consequences. At the same time, work has great significance to the individual, his or her family and the community. It is therefore a serious thing to deny someone access to their chosen field of employment. Recognising the fundamental importance of protecting children from harm and how serious it is to deny someone access to their chosen field of employment, s 13(2) of the Working with Children Act states a threshold test in terms of 'unjustifiable risk' for determining when that step can, indeed must, be taken. The test requires the assessment notice to be refused unless the Secretary (or the tribunal) is satisfied that giving it would not pose that risk.[14]

42 In relation to the individual application of the 'unjustifiable risk' test, I said:

As submitted by the Secretary to the Department of Justice, when administering the test, it is not necessary for the Secretary (or the tribunal) expressly to balance the potentially competing interests which are represented by the right of children to be protected from harm and the right of persons to work and to exercise freedom of choice of work, and to engage in other civil activity, such as volunteering in a community organisation. The terms of s 13(2) represent the policy choice made by Parliament with respect to the balancing of those rights and interests. The expectation is that, by properly applying the threshold test in s 13(2), those rights and interests will be appropriately balanced and addressed. To repeat, if s 13(2) is properly applied, that will occur.[15]

43 In relation to the meaning of the terms 'unjustifiable risk' in s 13(2) and 'likelihood' in s 13(2)(h), I said:[16]

The interpretation of s 13(2) which I have here explained is carried by the plain and ordinary meaning of the words 'unjustifiable risk'. A 'risk' is a 'hazard' or 'danger' or an 'exposure to mischance or peril'[17] and may be great or small depending on the probability of the event occurring and the nature of the hazard or danger concerned. The legislation creates an important scheme for protecting children from the hazard or danger of being sexually or physically harmed by employees, volunteers and others. But it is not a scheme for protecting children from all hazards and dangers whatsoever, however insignificant be the nature of the potential harm or small be the degree of the probability of that harm occurring. That comes from the word 'unjustified'. Something is 'unjustified' where it is '[n]ot brought into a state of justification' or '[n]ot proved to be right or proper'.[18] Something is justified where it is '[m]ade just or right; made or accounted righteous; warranted; supported by evidence'.[19]

Similarly, the relevant ordinary meaning of 'likelihood' in s 13(2)(h) is 'the quality or fact of being likely or probable'.[20] The relevant ordinary meaning of 'likely' is likewise 'probable'.[21] This too requires an assessment, one that may count in favour of or against the applicant depending on the level of the probability.[22]

44 As this analysis makes clear, the focus of the test of 'unjustifiable risk' in s 13(2) is whether a consequence of giving the notice is to (or to put it in the negative, is not to) 'pose' that risk. The word 'pose' is a word of causal connection between the giving of the notice and the risk. I emphasised this requirement in several places.[23] To repeat, I particularly emphasised that proper consideration of the test in s 13(2) required the Secretary (and VCAT) 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'[24] and the assessment must be rational in the sense of balanced and not arbitrary and 'refusing to give a notice must be a proportionate decision in the circumstances'.[25]

45 The error of law about the interpretation and application of s 13(2) that was identified in ZZ was that VCAT failed to make 'the required evaluative judgment about whether giving the notice would not pose an "unjustifiable risk" of harm to the safety of children'.[26] In that case, the tribunal failed to conduct an assessment of the seriousness of the harm identified against the probability of it occurring.[27] It focussed on whether there was 'a risk' without evaluating the nature and degree of the risk.[28]

46 Under s 13(2), there is a connection between the necessary evaluative assessment about the seriousness of the harm identified and the probability of it occurring (ie the nature and degree of the risk), on the one hand, and the required causal connection between the relevant risk and the giving of the assessment notice on the other. Unless the focus is upon the risk (if any) that arises from the giving of the notice, it is not possible to properly determine whether it is unjustifiable by evaluating its nature and degree. There is a real danger of a determination being made by reference to some other risk, which is not what s 13(2) stipulates and the statutory function of VCAT requires. That, in the end, is the error of law that, on the analysis that follows, was committed in the present case.

Did VCAT properly interpret and apply the unjustifiable risk test?

47 It was submitted for the Secretary that VCAT did properly interpret ss 13(2) and 26B(1) of the Working with Children Act and applied the 'unjustifiable risk' test as it legally should be. That test, and the 'reasonable person' and 'any ... child-related work' tests in s 26B(2)(a) and (b), were correctly set out and considered in turn. The deputy president properly considered the level of risk posed to the safety of children by the applicant's engagement in child-related work and properly found it to be 'unjustifiable'. In doing so, he placed weight upon both the severity of the applicant's triggering offence and drug trafficking offences and his low risk of directly harming children, but was entitled to conclude that it was too early to have confidence in his lasting rehabilitation. Findings of fact made by the deputy president were open upon the evidence and pertinent to his statutory function. There was a logical and clear nexus between granting an assessment notice and the risk to children by reason of the applicant's actual past and potential future drug-related activity.

48 These submissions must be rejected. As submitted for the applicant, VCAT did not apply the 'unjustifiable risk' test in ss 13(2) and 26B(1) by reference to a risk to the safety of children arising from the giving of an assessment notice.

49 This conclusion emerges clearly from the reasons for decision. While the test in ss 13(2) and 26B(1) is initially correctly stated in terms of whether 'giving the assessment notice' would not pose an unjustifiable risk, the test is then consistently incorrectly stated in terms of whether 'the applicant does not pose an unjustifiable risk', and 'whether JDH would not now pose an unjustifiable risk'. Even the conclusion is expressed in these incorrect terms:

Based on the evidence and submissions before me, and having regard to the relevant factors and tests under the [Working with Children Act], I am not satisfied that JDH does not pose an unjustifiable risk to the safety of children. I therefore dismiss the application, and affirm the negative notice.

50 I have carefully considered the possibility that VCAT was simply using shorthand language to describe the correct test and that I should infer that that test was actually applied. Reading the reasons fairly, in context and as a whole as I must,[29] I cannot reach this conclusion. Giving an assessment notice would permit the applicant to perform child-related work. There is practically no analysis in the reasons of the subject of the risk of harm to children posed by the applicant in that setting. The reasons reveal that the analysis was focussed on the potential risk of future indirect harm to children that the applicant represented generally if he were to relapse into drug-related activity, rather than the risk of harm to children that might be posed by giving the notice.

51 The generalised focus that was adopted can be illustrated by reference to three passages in the reasons for decision. In the first passage, the deputy president finds:

I nonetheless accept from Mr Cummins' report, and the evidence of JDH and his new partner, that the threat that JDH poses to a child is low, in the sense of there being little likelihood of JDH physically attacking or being directly violent towards a child. Indeed, his apparently caring nature to his own children, and those of his new partner, would suggest quite the opposite.

The risk is therefore that, despite the very favourable signs of rehabilitation that JDH presently exhibits, there is still the potential that, if an adverse event arose in his life, he might revert to drugs or serious crime. Given his still relatively recent involvement in drug trafficking in the period 2008 to 2010, there is at least the potential future threat of harm to children in such event.

Related to this second passage is the third passage:

However, there are sufficient gaps in Mr Cummins' report, and in the broader evidence before me, such that I consider it is simply too early to have sufficient confidence in JDH's rehabilitation and behavioural changes in order to be satisfied that there is no unjustifiable risk. I am being asked to take JDH largely on trust, based on a remarkable but short-term turnaround in his behaviour, but in circumstances where there are still unstable elements or unresolved issues in his life that will be resolved only with the passage of time. In a protective jurisdiction such as that under the [Working with Children Act], any doubt or uncertainty on this issue would tend to favour the maintenance of the starting position and statutory presumption to refuse an assessment notice. That is the situation here.

52 I accept the submissions made for the applicant that, in these and other passages in VCAT's reasons for decision, the issue of risk, on the one hand, is not related to child-related work that the applicant might perform in consequence of being given the notice, on the other. The first passage expresses a conclusion that is favourable to him, and the second and third passages express conclusions that are unfavourable. But all concern indirect risk to child safety that potentially arises in relation to children generally. I am not suggesting that the considerations discussed in these passages are not relevant and could not properly be taken into account when applying the 'unjustifiable risk' test in ss 13(2) and 26B(1), but it is that test that must be applied, and according to its terms.

53 It is also clear that VCAT did not properly evaluate the nature and degree of even the generalised risk of relapse that was identified. For example, the reasons for decision speak of 'the potential' that the applicant might revert to drug-related activity, and that there is 'at least the potential future threat of harm to children in such event' (emphasis added). As the judgment in ZZ shows (see above), answering the question whether giving an assessment notice would not pose an unjustifiable risk requires more than identification of a potential risk. It is necessary to evaluate the nature and degree of the risk and then consider whether that risk is not unjustifiable,[30] which the deputy president did not do even in relation to the generalised risk.

54 These are not minor criticisms in the context of the present case. The applicant was positively found to pose a low risk of harming children directly, and indeed was caring towards them. If VCAT had connected this finding to the child-related work that he would likely perform if given an assessment notice, it would have been beneficial to his case. But the deputy president counter-posed this finding with the finding of a generalised 'potential future threat of harm to children' in the event of a relapse into drug-related activity. The nature and degree of this 'potential future threat' was not evaluated in terms of whether giving the notice would not pose an unjustifiable risk or indeed any risk at all. If, on such an evaluation, the nature and degree of this risk was assessed as also low, and this was then related to the child-related work that the applicant would likely perform if given the notice, the outcome of the application could have been different. All of this was, of course, entirely a matter for VCAT to consider.

55 The difficulties with VCAT's reasoning were revealed in argument in the appeal in this court. Senior counsel for the Secretary attempted strenuously to point to consideration by the deputy president of the necessary causal connection between giving the notice and the risk of harm to children, that is, to children with whom the applicant might come into contact during child-related work. Counsel was not able to do so because VCAT did not do so. There was some suggestion that the applicant might, if he were to relapse into drug-related activity, sell drugs to children under his care at work. But there was no foundation for any such suggestion and no finding to that effect by VCAT. Understandably, senior counsel for the applicant protested and the suggestion was eventually disavowed (see above).

56 The penultimate sentence in the third passage of VCAT's reasons set out above also suggests that it did not properly interpret and apply the 'unjustifiable risk' test in s 13(2). While the Working with Children Act is 'protective' legislation, the formulation of that test reflects a careful balancing by the legislature of the rights and interests that are at stake for individuals (children and applicants) and the values that they represent, remembering that the paramount consideration is the protection of children from sexual and physical harm. The test in s 13(2) for category B cases is more strongly protective than the one in s 14(2)(a) for category C cases because it requires the formation of a negative state of satisfaction. But the test in s 13(2) is not stated in terms of a 'starting position' to be maintained or a 'statutory presumption' to be displaced and, although this issue was not fully addressed in argument, I think it is probably legally erroneous to interpret and apply the test in that way. What is clear is that, under s 13(2), VCAT's function is to determine whether it is 'satisfied that [giving the notice] would not pose an unjustifiable risk to the safety of children'. To repeat what I said by way of summary in ZZ:

the performance of [this] 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 s 13(2), the seriousness of the potential harm must be assessed against the probability 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 ...[31]

Despite the strong submissions to the contrary made for the Secretary, I consider that VCAT did not perform this function in the present case.

57 I have therefore concluded that, in the applicant's case, VCAT committed an error of law in its interpretation and application of the 'unjustifiable risk' test in ss 13(2) and 26B(1) of the Working with Children Act. The consequences of this error were not cured or made immaterial by rejection of the application under the 'reasonable person' test in ss 13(3)(a) and 26B(2)(a) and the public interest test in s 26B(3) because the proper administration of both of these tests was undermined by the error made in relation to the 'unjustifiable risk' test. However, in relation to VCAT's consideration of the former, I have strong reservations with the proposition that the reasonable person test can be equated with a '"pub test" for what might be considered reasonable in the circumstances', as submitted for the Secretary and accepted by the deputy president. Having regard to the nature and gravity of the issues involved, I think that, at best, it is a distraction to apply the reasonable person test by reference to what people in a pub might consider to be reasonable in the circumstances. As was correctly stated earlier in the reasons of the deputy president, the 'reasonable person test is an objective test ...[that] relies upon a "reasonable" person having knowledge of all of the facts and surrounding circumstances', and it is safer simply to apply the test upon this basis.

58 Under s 148(2)(a) of the Victorian Civil and Administrative Tribunal Act, a party has no more than 28 days in which to institute an application for leave to appeal to this court from an order of VCAT. Under s 148(5), the court has discretion to grant an extension of time in which to seek that leave. As has been determined, the overriding principle in exercising this discretion is what the interests of justice require, as to which various matters are to be considered, including the desirability of finality; the desirability of correcting errors of law; the length of the delay; the reasons for the delay; whether there has been a material alteration of the facts on the ground during the period of the delay; whether there is an arguable case; the nature of the issues involved; what is at stake for the applicant for leave; and whether and how other parties may be prejudiced if time were to be extended.[32]

59 The date of VCAT's order was 21 April 2016. The applicant was notified on 22 April 2016, but he did not appreciate that he had a right to seek leave to appeal to this court. By acknowledged administrative error, VCAT did not notify Victoria Legal Aid, the applicant's then solicitors, until 1 June 2016.

60 The application for leave to appeal should have been filed by 20 May 2016 (if the applicant is taken to have been notified of the decision on 22 April 2016) or 29 June 2016 (if he is taken to have been notified on 1 June 2016). The application was filed on 19 August 2016. The delay is at most 91 days or at least 51 days, depending on which notification day is chosen. As the applicant was actually notified of the decision on 22 April, the longer delay is applicable. That he did not appreciate he had a right to seek leave to appeal and that his solicitors were not notified until 1 June 2016 are matters to be taken into account in determining whether to extend time.

61 When VLA was notified of the decision on 1 June 2016, it immediately took steps to communicate with the applicant, who gave instructions to consider whether or not to seek leave to appeal. Counsel was briefed and advised that arguable grounds of appeal were available. Before deciding to seek leave, the applicant wanted to be confident that he could participate in the proceeding anonymously in order to protect the privacy of his family. An application for a pre-commencement pseudonym order was made and then granted by Ginnane J on 5 August 2016,[33] after a hearing in which the Secretary participated. The application for leave to appeal was instituted on 19 August 2016.

62 In my view the interests of justice require that time be extended. It is desirable that proceedings in VCAT are final, but the length of the delay here is modest and has been reasonably explained. The applicant has an arguable case of legal error, which I will uphold. He has important personal and occupational interests at stake, and the issues in the case are important and consequential. VCAT can conduct a remitted rehearing efficaciously despite the delay. The Secretary will not be prejudiced beyond the need to participate in that rehearing. While not undervaluing the significance of this consideration, I do not think it is a sufficient basis upon which to refuse the application. The time in which to seek leave to appeal will therefore be extended to 19 August 2016.

63 The applicant in this appeal is studying to become an exercise physiologist and wants to undertake work that includes working with children. In order to do so, the Working with Children Act first required him to apply for a working with children check and obtain an assessment notice permitting him to undertake child-related work. Because he had previously been convicted of serious offences including drug-related offences, the deputy president hearing the application was required to determine whether he was satisfied that 'giving the assessment notice would not pose an unjustifiable risk to the safety of children'.

64 The applicant was on parole for the drug-related offences but was found by VCAT to be rehabilitated and of low indirect risk of harming children, indeed to be caring toward them. The deputy president refused the application because of the generalised risk to children that would be posed were the applicant to relapse into drug-related activity. He did not assess the nature and extent of this generalised risk and did not focus upon whether giving the assessment notice would not pose an unjustifiable risk to the safety of children with whom the applicant would come into contact when undertaking child-related work.

65 After considering the submissions made on behalf of the applicant and the Secretary, I have concluded that VCAT erred in law in doing so. Proper administration of the test specified in the legislation required determination of whether 'giving the assessment notice would not pose an unjustifiable risk to the safety of children', which the deputy president did not undertake. The question that had to be addressed, and was not addressed, was whether there was a risk to the safety of children with whom the applicant might come into contact when undertaking child-related work as permitted by the giving of the notice. Under the legislation, the applicant was entitled to have his case that no such risk was posed properly addressed; yet it was not. The appeal will be upheld and the case remitted to VCAT constituted differently to be reheard according to law so that the applicant's case can be so addressed. The ultimate determination of this issue is entirely a matter for the member conducting the rehearing to determine.

[1] See International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 24(1); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1).

[2] For discussion of the paramount consideration of the best interests of the child generally, see Secretary, Department of Human Services v Sanding (2011) 36 VR 221, 227-30 [11]-[23] (Bell J_); ZZ v Secretary, Department of Justice_ [2013] VSC 267 (22 May 2013) [54]-[71] (Bell J) ('ZZ'); Certain Children v Minister for Families and Children [2016] VSC 796 (21 December 2016) [144]-[146] (Garde J_); Certain Children v Minister for Families and Children (No 2)_ [2017] VSC 251 (11 May 2017) [259]-[270] (Dixon J).

[3] The applicant's conduct would have constituted the offence of causing injury intentionally or recklessly contrary to s 18 of the Crimes Act 1958 (Vic). By virtue of cl 11(c) of schedule 2 of the Working with Children Act, his conduct therefore constituted a Category B offence under that Act.

[4] JDH v Secretary, Department of Justice and Regulation [2016] VCAT 607 (21 April 2016) (Deputy President Mark Dwyer).

[5] Maleckas v Secretary, Department of Justice [2011] VSC 227 (31 May 2011) [19] (Kyrou J) ('Maleckas'); ZZ [2013] VSC 267 (22 May 2013) [30] (Bell J). Consideration of whether to grant an assessment notice must take this into account: Working with Children Act ss 13(3)(b), 14(2)(b)(ii), 26B(2)(b).

[6] [2013] VSC 267 (22 May 2013) [135].

[9] See the definition of 'child-related work' in s 9(1) and (3) and 'work' in s 3(1), which covers paid and voluntary work involving direct contact with a child not directly supervised by other persons.

[10] The elements of this category are detailed and need not be set out here. Certain elements do not apply where the applicant was relevantly charged with, found guilty of or convicted of a relevant offence as a child.

[11] [2013] VSC 267 (22 May 2013).

[17] JA Simpson and ESC Weiner, The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) vol 13, 987.

[22] Maleckas [2011] VSC 227 (31 May 2011) [72] (Kyrou J); ETA v Secretary, Department of Justice [2013] VCAT 418 (19 April 2013) [48] (Garde J).

[23] ZZ [2013] VSC 267 (22 May 2013) [132], [134], [135], [160].

[28] Ibid [162]-[163], [167], [169].

[29] Shock Records Pty Ltd v Jones [2006] VSCA 180 (7 September 2006) [85] (Bell AJA, Callaway and Ashley JJA agreeing); Hesse Blind Roller Company Pty Ltd v Hamitoski [2006] VSCA 121 (8 June 2006) [3] (Ashley JA), [19]-[22] (Redlich JA).

[30] In the context of ss 13(2) and 26B(1), the test is stated in terms of negative satisfaction that giving the notice would not pose the risk.

[31] [2013] VSC 267 (22 May 2013) [160].

[32] Edwards v Transport Accident Commission [2013] VSC 557 (18 October 2013) [35]-[38] (Derham AsJ); Vimplane Pty Ltd v Cirss [2005] VSC 45 (14 April 2005) [29] (Habersberger J); Chen v Kevin McNamara & Son Pty Ltd [2013] VSC 539 (11 October 2013) [38]-[42] (Croft J).

[33] See further PQR v Secretary, Department of Justice and Regulation (No 1) [2017] VSC 513 (26 September 2017) (Bell J).

Civil and Administrative Tribunal Act 1998

Human Rights and Responsibilities Act 2006

Offenders Registration Act 2004

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (1)