Patient Review Panel v ABY & ABZ [2012] VSCA 264

1 The respondents, ABY and ABZ, are a married couple seeking to use IVF treatment. Such treatment is regulated by the Assisted Reproductive Treatment Act 2008 ('the Act').

2 The Act is structured so that, relevant to this matter, there are two ways by which a woman may undergo an assisted reproductive treatment. Under the first way, a woman and her partner may receive treatment if:

• a doctor is satisfied, on reasonable grounds, that certain criteria for treatment are met;

• a provider or doctor has not refused to carry out treatment; and

• no presumption against treatment arises.[1]

3 Among other things, a presumption against treatment will arise if the woman seeking treatment, or her partner (if any) has committed a certain type of offence.[2]

4 Under the second way, a woman may receive treatment if:

• the Patient Review Panel ('the Panel') has decided there is no barrier to the woman undergoing that treatment procedure.[3]

5 The Panel may conduct a review and consider whether a barrier to treatment exists under three circumstances:

15. Application for review

(1) A person may apply to the Patient Review Panel for a review if-

(a) under section 14, a presumption against providing a treatment procedure to a woman applies to the person; or

(b) under section 10(2)(a) the person is ineligible for treatment; or

(c) a registered ART provider or a doctor has refused to carry out a treatment procedure on a woman because the provider or doctor reasonably believes that a child that may be born as a result of a treatment procedure carried out on the woman would be at risk of abuse or neglect.

6 We will refer to these three circumstances as the 'initial obstructions to treatment'.

7 ABY is now 34 years old. He has a past history of poly-substance abuse which he reported as ending in his mid-20s. ABY and ABZ met in 2006 and were married in 2007. In 2007/2008, the couple sought IVF treatment under the Infertility Treatment Act 1995. After one round, the treatment was then interrupted. In January 2009 ABY pleaded guilty to three counts of sexual penetration of a 16/17 year old under his care, supervision or authority and was subsequently sentenced and imprisoned.

8 At the time of offending ABY was 29 years old and working as a martial arts instructor and teachers' aide at a special needs school. The victim was a 16 years old student with cognitive, learning and behavioural difficulties and under his supervision and authority. As part of the background to the sexual penetration, ABY had been engaging in an exchange of inappropriate and sexually explicit text messages with his victim. As a result of the three charges ABY was convicted as a serious sexual offender and placed on the Sex Offenders' Register for 15 years. He was sentenced to three years' imprisonment, with two years' suspended.[4]

9 In January 2010 ABY was released from prison and the couple sought to resume IVF treatment. However, on 1 January 2010 the current Act commenced and therefore a presumption against ABZ receiving assisted treatment arose as a result of ABY's criminal record.

10 After the presumption against treatment arose the couple completed a Presumption Against Treatment application to go before the Panel for a review.[5] Where a presumption against treatment arises, the Panel must consider whether a barrier to treatment exists.[6]

11 Section 15(3) of the Act sets out what the Panel must have regard to when considering an application for review:

(3) In deciding the application for review, the Patient Review Panel must have regard to-

(a) the guiding principles referred to in section 5; and

(b) whether carrying out a treatment procedure, whether generally or of a specified kind, on the person-

(i) is for a therapeutic goal; and

(ii) is consistent with the best interests of a child who would be born as a result of the treatment procedure.

(emphasis added)

5. Guiding principles

It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act-

(a) the welfare and interests of persons born or to be born as a result of treatment procedures are paramount;

...

13 Section 91(2) reiterates that, in making a decision under s 15, the Panel must have regard to the guiding principles set out in s 5.

14 The Panel was not satisfied, applying ss 15(3)(b)(ii) and 5(a) of the Act, that the welfare of a child born to ABY would be protected. Accordingly, the Panel found that a barrier to treatment existed.

15 The Panel which conducted the application for review consisted of a former judge of the Family Court of Australia, a researcher in female infertility and related fields, a clinical psychologist/paediatric clinical neuropsychologist, an IVF clinician and a member of the Social Security Appeals Tribunal.

16 The Panel's decision made reference to the extremely serious nature of ABY's offending and his lack of insight, the fact that the sexualised behaviour commenced while ABY and ABZ were on their honeymoon, the vulnerability of the victim and ABY's status as a registered sex offender. The Panel described ABY as presenting as immature and lacking significant insight into his behaviour.

17 The couple then made an application to the Victorian Civil and Administrative Tribunal for a review of the Panel's decision that a barrier to treatment existed.[7]

18 The majority, including the President,[8] held that there was no barrier to treatment, set aside the decision of the Panel and also ordered that ABY complete 12 counselling sessions before ABZ could have access to treatment.[9] The Panel now appeals the decision of VCAT that there is no barrier to treatment.[10] The Panel is ultimately seeking that the respondents' application be remitted for rehearing including, if appropriate, the hearing of further evidence.

19 This appeal is concerned with the correct interpretation of ss 15(3)(b)(ii) and 5(a) of the Act. The Panel has argued that the Tribunal incorrectly interpreted the expressions 'best interests of a child' and 'welfare and interests of persons born' in ss 15(3)(b)(ii) and 5(a) of the Act and thus applied the wrong test when deciding whether there was a barrier to treatment. Specifically, the Panel is submitting that the Tribunal erred in finding that those two matters were to be limited to an evaluation of the risk factors relating to the presumption against treatment and that the Tribunal erred in finding that these matters require a focus on whether the matter giving rise to the presumption against treatment creates a risk of harm to the child to be born.

20 As such, the Panel submitted the following question of law to the Court:[11]

Are the expressions "best interests of a child" and "welfare and interests of persons born" in s 15(3)(b)(ii) and s 5(a) respectively of the Assisted Reproductive Treatment Act 2008 limited to an evaluation of the risk factors relating to the matter which gave rise to the presumption against treatment and an assessment of whether the matter which gave rise to the presumption against treatment creates a risk of harm to the child to be born?

21 For the reasons that follow, the answer is 'No. The expressions 'best interests of a child' and 'welfare and interests of persons born' in s 15(3)(b)(ii) and s 5(a) respectively of the Act require an evaluation of any identifiable and established risk factors to the child to be born (including, but not limited to, risk factors relating to the matter which gave rise to the presumption against treatment and whether the matter which gave rise to the presumption against treatment creates a risk of harm to the child to be born).'

22 The hearing before VCAT took place over three days and was followed by further written submissions. Written and oral evidence was received from a number of witnesses including ABY, ABZ, character witnesses, an expert psychiatrist (Dr Sullivan) and psychologist (Professor Ogloff) who gave evidence on sexual offending and the risk of ABY re-offending and a clinical psychologist (Ms Mynard) with expertise in substance use and clinical disorders.

23 The Panel submitted to VCAT that 'the terms "welfare", "interests of the child" and "best interests of the child" are broad, flexible expressions which are often used interchangeably to comprehend considerations that affect the physical, sexual, emotional and developmental well-being generally of a child.'[12] The Panel referred to and drew upon the interpretation of similar expressions in other statutory contexts, in the areas of family law, adoption and child protection.

24 The Panel, in written submissions before VCAT, submitted that s 15(3) required (but was not limited to) looking at ABY's capacity to exercise sound judgment at all times and, in particular, with respect to his future child, his capacity to abstain adequately from abuse of alcohol and drugs, his capacity to place a child's interests before his own, his capacity to provide moral guidance or function satisfactorily as a role model and his capacity to provide limit setting or suitable discipline. The Panel further submitted that it was relevant that limitations would be placed upon ABY as a sexual offender for the next 13 years.[13]

25 After considering ABY's offending and all the expert evidence, the Tribunal made the following findings of fact:

(i) ABY is not a paedophile or hebephile. The victim of these offences was a sexually mature minor and there is no information suggesting any deviant sexual preference and, in particular, ABY has no sexual arousal to children.

(ii) ABY has been able to reflect upon his wrongdoing with reasonable insight. He is much more insightful now than he had been when he was assessed by Mr Cummins.[14] He understands that his behaviour was wrong and knows how to avoid it in the future.

(iii) ABY's risk of reoffending generally is low.

(iv) It is extremely unlikely that ABY would have difficulty discerning the boundaries between parent and child such that he would not have the skills or moral understanding to prevent inappropriate sexualised behaviour with a child.

(v) There is no cogent evidence to suggest that ABY poses a risk of sexually offending against a biological child.

(vi) ABY would benefit from offence specific treatment from a practitioner with expertise in dealing with sex offending issues. [15] (footnote added)

26 The Tribunal held that the scope of the inquiry required by ss 5(a) and 15(3)(b)(ii) was limited to an evaluation of the risk factors relating to the matter which gave rise to the presumption against treatment (the initial obstruction). In ABY's case this was his sexual offending. The decision-maker's role under s 15 was not to conduct a general enquiry into the parental capabilities of ABY and ABZ.[16]

27 In coming to this conclusion, the Tribunal noted that the expressions 'welfare and interests' and 'best interests of the child' appear in other legislative contexts but found that those cases were of limited assistance, pointing out that it would be impossible to predict what would be in the best interests of a child who has yet to be conceived and that, for example, in family law and adoption cases there are 'comparators'. The Tribunal commented that it could not engage in a comparison between non-existence and a life in which there is a real risk of physical or emotional harm, citing wrongful life cases.[17]

28 The Tribunal concluded that the 'apparent scope' of the provision was limited by its context in the Act.[18] It observed that one of the initial obstructions was where a woman was found to be ineligible for treatment - meaning that a doctor was not reasonably satisfied per s 10(2)(a) that the woman seeking treatment met at least one of three criteria. These criteria provide:

(i) in the woman's circumstances, the woman is unlikely to become pregnant other than by a treatment procedure; or

(ii) the woman is unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure; or

(iii) the woman is at risk of transmitting a genetic abnormality or genetic disease to a child born as a result of a pregnancy conceived other than by a treatment procedure, including a genetic abnormality or genetic disease for which the woman's partner is the carrier.

29 The Tribunal used the example of a woman who made an application for review to the Panel under s 15(1)(b) because her doctor was not satisfied on reasonable grounds that she was unlikely to carry a pregnancy or give birth other than by a treatment procedure. The Tribunal commented:

In such circumstances it must be the case that the only issue relevant to the Panel's decision is whether or not the woman concerned was 'unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure'. There is no legislative warrant for a broader inquiry into the parenting capacity of the woman concerned or her partner. To embark on such a broader enquiry would be manifestly unfair. It would treat the review applicant differently from a person who had been assessed as being eligible for treatment (ie. as having met the criteria in s 10(2)), for no good reason.

Similar constraints arise in the context of a review from a presumption against treatment.

In our view the focus for assessing the 'best interests of a child who would be born as a result of the treatment procedure', within the context of s 15(3)(b)(ii), and the child's 'welfare and interests' within the meaning of s 5(a), must be on whether the matter giving rise to the presumption against treatment creates a risk of harm to the child to be born. In the context of this case the issue becomes whether ABY's past sexual offending gives rise to a risk of harm to a child conceived through ART.[19] (emphasis added)

30 The Tribunal commented that its construction was supported by the following extract from the second reading speech to the Assisted Reproductive Treatment Act Bill:

The presumption against treatment provides a system ... to investigate concerns about risks to children on a case-by-case basis and according to identifiable and established risk factors.[20]

is apparent that the focus of the investigation was to be on 'identifiable and established risk factors'. This is clearly intended to be a reference to the risk factors arising from the offending which has given rise to the presumption against treatment.[21]

32 The Tribunal found this to be supported by the work of the Victorian Law Reform Commission ('VLRC') in its Assisted Reproductive Technology & Adoption: Final Report ('the VLRC report'). The VLRC report was highly relevant and significant in contributing to the Act.[22] The VLRC report said that the recommendation for the inclusion of the relevant presumption in the Act was justified based on the research into people convicted of serious sexual offences re-offending.[23]

33 Applying its test to the findings of fact, the Tribunal concluded that there was no barrier to treatment. The questions submitted by the Panel are addressed to this test.

34 However, the Tribunal did not end its assessment there. The Tribunal also went on to consider the 'broader' test urged for by the Panel:

We also accept that an assessment of whether ABY's past sexual offending gives rise to a risk of harm to a child conceived through assisted reproductive treatment is not necessarily limited to the risk of ABY offending against his biological child. Were ABY to reoffend against another child that would also have adverse consequences for ABY's biological child. Such reoffending may also reflect a profound lack of judgment and a tendency to put his interests before those of a child. Risk assessment in this context is not necessarily a clear cut exercise.[24]

35 The broader test concerned an examination of ABY's capacity to discharge parental functions based on VCAT's assessment of ABY as a witness and the expert evidence as to ABY's maturity, judgment and insight into his offending.

36 The Tribunal held that it did not draw an adverse inference as to ABY's potential parenting capacity based on 'the inherent difficulty in assessing potential parental capacity' and because 'the evidence [did] not support such an inference.'[25] The Tribunal also noted that none of the evidence before VCAT directly related to ABY's potential parental capacity.[26] The evidence examined by the Tribunal included that of ABY, ABZ, the expert witnesses and the lay witnesses and specifically addressed five matters of concern raised by the Panel: ABY's poly-substance abuse; ABY's admission that he lied to Mr Cummins about committing the contact offences; ABY's denial of the contact offending;[27] the motivation for ABY's offending; and ABY's status as a 'registrable sex offender'.

37 On appeal, the Panel now submits that the broader test applied by the Tribunal is also the wrong test.

38 The Panel has submitted that the expressions 'best interests of a child' and 'welfare and interests of persons born' should not be limited to a consideration of matters relating to the initial obstruction to treatment and it relies on a plain reading of the words of the Act. The Panel has argued that the Tribunal gave too much primacy to the extrinsic materials and also misinterpreted those same materials.[28]

39 Additionally, the Panel criticised both the limited and broader tests applied by the Tribunal, submitting that the Tribunal's assessment of risk failed to incorporate an evaluation of the gravity of the harm should the risk eventuate and that the Tribunal erred by focusing on the parents rather than the risk to the child.

40 The respondents rely on the decision and reasoning of the Tribunal. The respondents further submitted that if things such as integrity and candour were intended to be taken into account as to whether a child was at risk, then offences such as dishonesty offences would trigger the presumption.[29] The respondents submitted that Parliament would have expressly legislated if the welfare and best interests of the child were to encompass a wide range of considerations.

41 Yet, in argument, counsel for the respondents appeared to concede that the limited test of the Tribunal was too narrow and the matters which could create a barrier against treatment might not be limited to the matters giving rise to the initial obstruction.

42 Alternatively, the respondents submitted that, even if the limited test is incorrect, the Court should uphold the Tribunal's finding under the broader construction that there is no barrier to treatment.

43 For the reasons that follow we conclude that the 'limited' test was not the appropriate test to decide whether there was a barrier to treatment.

44 To reiterate, the limited test was that, when considering the applications of some persons applying for review under s 15, the Panel would only need to consider the particular factor/s which created the initial obstruction to the applicant from receiving treatment. If the Panel did not consider these initial obstructions to exist, after giving consideration to ss 15(3) and 5, then it could decide that treatment should be granted. Indeed, this is what the Tribunal suggested and demonstrated using its example of an application under s 15(1)(b). Alternatively, in some situations, such as in the case of an application under s 15(1)(a), the Panel would have to look at the 'policy' behind the obstructions and decide whether that obstruction, or matters pertaining to it, should be considered a barrier to treatment, by giving consideration to the factors set out in ss 15(3) and 5. This was the test that the Tribunal applied in relation to the respondents.

45 On a plain reading of s 15 the Panel is required to consider the 'welfare and interests of [the] child to be born' and the 'best interests of a child' when deciding whether a 'barrier against treatment' exists.[30] It is sufficient to say that the limited test must restrict the meaning of these expressions by preventing the Panel from considering these factors except in relation to the initial obstruction to treatment. However, the Act does not expressly equate the initial obstruction with the 'barrier against treatment'. The Tribunal was in error in finding that the Act implicitly did so.

46 At the outset we make the following observations about the Act. First, the Guiding Principles themselves state:

It is Parliament's intention that the following principles be given effect in administering this Act, carrying out functions under this Act, and in the carrying out of activities regulated by this Act.

47 Thus, an interpretation of a part of the Act which would fail to give effect to the Guiding Principles, as opposed to an interpretation which would promote the Guiding Principles, would inevitably be flawed as it would be contrary to Parliament's clear and unambiguous purpose.[31]

48 Secondly, arising from s 91, under all circumstances where the Panel is required to make a decision under the Act, it must have regard to the Guiding Principles set out in s 5 and any other relevant criteria specified in the Act. Section 91(1) individually lists each of the initial obstructions and also other circumstances where the Panel is required to make a decision being: approving surrogacy arrangements, applications for posthumous use of gametes and embryos and their storage and removal. Thus, no matter what causes the Panel to make a decision, and these causes may be quite diverse, its paramount consideration must be the welfare and interests of the person to be born as a result of the treatment.

49 Thirdly, there is the constitution of the Panel. The Act provides that three of the members of the Panel are appointed on a case-by-case basis from a list of approved names.[32] This allows the Panel to be comprised of persons with knowledge and experience most relevant to the matters coming before the Panel. However, pursuant to s 83(3), at least one member of the Panel (which consists of five members) must have expertise in child protection matters. This further demonstrates that the welfare and interests of the child are relevant to all of the decisions the Panel is required to make.

50 Guidance as to the way the Act is intended to function is found in the VLRC report. The VLRC was asked to require and report on (among other things) changes to the Infertility Treatment Act 1995 as to expanding the eligibility criteria for assisted treatment and to recommend amendments. The VLRC engaged in an extensive process of consultation and research, taking over four and a half years, and its report and recommendations were tabled in the Victorian Parliament in June 2007 and contributed to the original Assisted Reproductive Treatment Bill.

51 The original 2008 Bill underwent much discussion and revision. Nevertheless, it is clear that the VLRC report and its recommendations formed the basis of the new Act. The relevant provisions of the Act that arise in this case plainly adopt the relevant parts and related recommendations of the VLRC. The VLRC report is clearly relevant and useful in interpreting the relevant provisions of the Act. As such, the VLRC report was considered by the Tribunal. In the course of oral submissions before this Court the VLRC report was also focused on and considered extensively for the purposes of interpreting the Act. Several of the studies and reports referred to in the VLRC report were provided after the hearing for the Court's consideration.[33]

52 There are some observations to be made about the VLRC report.

53 First, the VLRC, after examining existing legislation and arguments both for and against its inclusion, maintained that the best interests of the child were to be the paramount consideration of any regulation of assisted reproductive treatment.[34]

54 Secondly, the VLRC rejected an approach where assisted persons were treated the same as those conceiving naturally. The VLRC examined the argument that it would be unfair to apply this standard as no restrictions of that kind applied to people who conceive without assistance and '[i]f the child is at risk of harm after they are born an application can be made for a child protection order.'[35] The VLRC disagreed with this view and commented that:

Assisted reproduction is regulated and supported by the state and we therefore believe that the [S]tate has a responsibility to identify cases where there is an unacceptable risk of harm. [36]

55 Thirdly, the VLRC also rejected an approach where assisted persons were treated the same as those applying for adoption.

56 Instead, the VLRC recommended an approach which implemented 'a fair and transparent process that enables a [decision-maker] to investigate concerns about risks to children on a case-by-case basis and according to identifiable and established risk factors.'[37] The VLRC said:

There should be a process for decision-making about where the past behaviour of prospective parents suggests there may be an unacceptable risk of harm. This process should provide a transparent and fair way of making decisions about treatment. There is a substantial body of research on the parental factors which place children at risk of harm.[38]

57 The VLRC also described its approach to presumptions against treatment as being:

We firmly believe the assessment of the best interests of children should be based on objective and verifiable risk factors. People convicted of sexual or violent offences or who have previously had a child removed from their care should not be able to receive treatment unless an independent review panel is satisfied a future child would not be at risk of harm.[39]

58 The risk factors expressly targeted in the VLRC report are essentially the same as those which now give rise to the presumption against treatment in the Act.

59 Where a decision to refuse or grant treatment is based on a doctor's concern that the health and well-being of a child would be at risk, the VLRC recommended that such a decision-making process should be transparent, procedurally fair, consistent and rely on 'disciplinary expertise in assessing risks' to a child's health and well-being, as opposed to 'medical factors or personal value judgments', in order to avoid discriminatory assumptions.[40]

60 Having considered the relevant provisions, their context, the structure of the Act and the intention of Parliament as revealed by the Act itself and necessarily supported in the extraneous materials, we consider that the limited test - which only permits the Panel solely to consider whether the initial obstruction is also a barrier to treatment and nothing else - is not compatible with the scheme established by the Act.

61 The limited test would result in situations where, even when the Panel is aware that a future child will be at grave risk if assisted treatment is given, it could not find there was a barrier to treatment unless that risk directly relates to the initial obstruction to treatment. To demonstrate, consideration can be given to a scenario where a doctor refuses to treat a woman because, at that time, she is a severe drug addict and her doctor is concerned that the health and welfare of her potential future child would be at risk. If the woman subsequently applies for a review under s 15(1)(c) the Panel may find a barrier against treatment exists at that time because of her addiction. However, if a severe drug addict applied for a review under ss15(1)(a) or (b), and the Panel only became aware of her drug addiction during the course of the review, it could not find that there was a barrier to treatment despite any disciplinary expertise that a child to be born from the treatment would be at an unacceptable level of risk.

62 This approach would seem to prioritise the rights of the mother over the best interests of the child, despite the fact that the child's interests are to be the paramount consideration.

63 A key part of the Tribunal's reasoning was that, in relation to a woman who needed to apply for a review under VCAT, it would be manifestly unfair to subject her to a 'parental capacity' test when the only known obstruction to her receiving treatment was that she had failed to convince a doctor, for example, that she was unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure. This type of unfairness would require s 15(3) to be read in a more limited way.

64 Thus, the Tribunal concluded, in order to decide whether there was a barrier against treatment, that the correct test was to consider only the factor that was preventing a woman from receiving treatment: 'it must be the case that the only issue relevant to the Panel's decision is whether or not the woman concerned was "unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure".'[41]

65 Ambiguous provisions in an Act may be read down to avoid results which are irrational, capricious or unreasonable.[42] However, seen in the light of the observations made at [46]-[62], applying a 'best interests' test in any matter before the Panel which was not confined to the consideration of the initial obstruction, would not be irrational, capricious or unreasonable. It would also be difficult to discern any ambiguity in the relevant provisions.

66 Additionally, the Tribunal's test promotes unfairness and inequity insofar as it prevents women who seek to use reproductive treatment for reasons other than inability to conceive or carry a child from receiving treatment under the Act.[43] The VLRC acknowledged that in some situations providing such a woman with treatment might be desirable.[44]

67 Finally, it would appear that the Tribunal has misinterpreted the role and practical function of s 10(2)(a)(ii) (combined with s 15(1)(b)) and also, presumably, s 10(2)(a)(i). These provisions must implement VLRC's recommendation to allow some woman who can conceive or carry a child naturally to receive treatment. Realistically speaking, s 10(2)(a)(ii) could not have been included in the Act to serve the purpose which the Tribunal assumed it did (to allow a woman who has not convinced a doctor she is unlikely to carry a pregnancy or give birth to a child naturally, to seek review from the Panel). This is because, generally speaking, the first step for any woman who has not satisfied her doctor that she unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure would most likely be to seek a further medical opinion, not to seek a decision for review from the Panel. Even if a woman were to argue that she was unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure then she would require medical evidence to that effect to present before the Panel. In other words, she would have already satisfied a doctor that she was unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure. Thus, the hypothetical posed by the Tribunal would not seem ever to realistically occur under the Act and therefore cannot affect its interpretation.

68 Nevertheless, even if the hypothetical situation came to pass and such a woman were to come before the Panel, not only does the Act specify that the same criteria apply as for the other initial obstructions, the Act would still require a person with expertise in child protection matters to sit on the Panel. Thus, even in such a scenario, the Act dictates that the best interests of the child to be born must be considered. As the initial obstruction itself is not relevant to the best interests of a child or their health and welfare, this requirement under the Act would seem to demonstrate that the Panel is required to look beyond the initial obstruction.

69 The true purpose behind the grant of review under s 15(1)(b) under such circumstances is to assist women who simply do not meet the required criteria for treatment, as opposed to women who would argue that they do meet that criteria. A woman may have a number of reasons for seeking to conceive through assisted treatment, even though she can conceive or carry the child naturally.[45] For example, such assisted treatment may lower or eradicate the risk of the woman or her partner passing on an inheritable disease or genetic disorder. So striking is this example that it is essentially an express exception to the requirement that a woman who can conceive or carry a child without treatment must seek review from the Panel before obtaining treatment.[46] However, there are other examples and doubtless there will be more as the technology develops.

70 However, even if we have misunderstood the Tribunal's position a difficulty remains. In relation to persons against whom a presumption to treatment arises on the basis of their criminal record, the Tribunal clearly considered that the Panel could base its decision on what the Tribunal considered to be something akin to the 'policy' behind the presumption. That is, the risk that the woman or her partner will re-offend.

71 Thus the limited test might also allow for the Panel to examine the reasons why an initial obstruction arises in relation to women who are capable of carrying a child or giving birth naturally and to see whether they are relevant in an individual's case. Such policy reasons might include minimising health risks to the child and mother, to spare the expense to the State of assisted reproductive treatment and to not use the State's limited resources where it would be otherwise unnecessary. Asking whether the applicant could carry or give birth to a child naturally would be the obvious question to ask in order to examine whether these policy reasons could amount to barriers to treatment in the Tribunal's hypothetical example.

72 Thus, on this amended interpretation of the limited test, while the Panel might consider whether or not the woman concerned was 'unlikely to be able to carry a pregnancy or give birth to a child without a treatment procedure', this would not be its only consideration. It would also consider the reasons why, despite the fact that she could carry a pregnancy or give birth to a child unassisted, the woman was seeking treatment and whether this reason was sufficient to remove the barrier to treatment.

73 This amended test is more consistent with the wording of the Act. Section 15(3)(b)(ii) provides that the Panel must consider whether treatment is for a 'therapeutic goal' when making its decision and s 5(d) requires that the health and well-being of persons undergoing treatment must be protected. However, the Panel cannot pick and choose which factors it will consider under s 15(3), it must consider them all. So much is demonstrated and supported by the requirement of a child protection expert on the Panel. It is also the approach recommended by the VLRC.[47] It may be that in a given case certain factors can be effectively ignored. However, the Act is clearly structured in such a way that in no situation can the best interests and the welfare of a child be ignored. In some cases it may support a woman's therapeutic goal; the Panel suggested in submissions that in some cases it will be in the best interests or welfare of a child to be born 'sooner rather than later' or at a more certain point in time.

74 In some situations the best interests of the child may run counter to the therapeutic goal. However, the Act does not even allow for a balancing act in this regard - the best interests of a child are to be paramount. One clear example, considered by the VLRC, where the best interests of the child may run counter to a woman's therapeutic goal is the case of 'saviour siblings'.[48]

75 These situations arise where a mother has a living child suffering from a genetic disease or disorder and wishes to conceive a child who is a genetic match for her living child in order to be a donor. To maximise the chances of the conceived child being a donor match she will require assisted reproductive treatment.

76 The limited test would mean that the Panel would be limited to examining the policy reasons that are giving rise to the barrier to the applicant's treatment - her fertility. Given her therapeutic goal and the need for assistance to fulfil it, once these factors are demonstrated this would presumably remove the barrier to treatment. However, this approach neglects what should be the paramount consideration - the welfare and interests of the child to be born. Whether it is in the best interests of the child to be born will very much depend on the particular circumstances he or she will be born into. Such circumstances will vary from case to case and will necessarily involve a close examination of the applicant and their partner. The VLRC report specifically envisages such an approach. [49]

77 That is not to say that the initial obstruction is not in some way relevant. It will necessarily provide some guidance to the decision-maker. The example of a woman who has not satisfied her doctor that it is unlikely she will conceive without assistance but wishes to receive assisted treatment in any case might be considered. All other things being equal, the Panel may focus on whether the woman has a therapeutic goal for the treatment and be satisfied, given the absence of any evidence to the contrary, with very little evidence as to whether providing the woman with treatment will be in the best interests of her child.

78 Thus the initial obstruction can guide the decision-maker more broadly as to what concerns might be raised as to the welfare and well-being of the child. Similarly, where a presumption against treatment arises as a result of sexual or violent crimes committed by a woman or her partner, while the inquiry might be triggered by the presumption, it is not limited by it. This type of offending can bring to light other factors which may affect the well-being of a child. Presumably, the Panel may be satisfied on the lack of evidence before it to the contrary that it need not be concerned with other factors and focus on the behaviour that triggered the presumption. However, should such risk factors be identified in the evidence before the Panel, they would need to be satisfied that they are not a barrier to treatment.

79 It is clear that the Act was not designed to require that every applicant seeking treatment be investigated, or that the Panel go on a 'fishing expedition' every time an application for review comes forward. Yet, if evidence comes before the Panel of something adverse to the best interests of a child, even if that factor is not directly related to the initial obstruction to treatment, the Panel has the power to investigate it further and must be satisfied that neither the new factor, nor the initial obstruction, presents a barrier to treatment. This is the responsibility that has been accepted by the State.

Was the Tribunal's broader, 'parental capacity' test the correct test?

80 As the Tribunal pointed out, there was little direct evidence before it as to ABY and ABZ's parental capacity. However, there was some indirect evidence which positively suggested ABY and ABZ would be good parents.

81 In its original written submissions to the Court, the Panel focused on whether the Tribunal erred in holding that assessing the expressions 'best interests of the child' and 'welfare and well-being of the child' concerned whether the matter giving rise to the presumption against treatment creates a risk of harm to the child to be born. The Respondent submitted that even if the Tribunal erred in this regard, the Tribunal nevertheless correctly applied the Panel's broader test and therefore there was no real issue for determination on appeal.

82 The Panel then filed submissions to the effect that the Tribunal's broader test also failed to properly address the s 15(3) considerations. It was difficult to determine exactly what criticism the Panel was making of the broader test or what exactly they were alleging the correct test to be. In its written submissions the Panel identified at least two factors of the test that were to be applied when a presumption against treatment arose: That there must be evidence of a sufficiently probative kind to overcome the presumption and that the decision was to be based on the whole of the evidence before the decision-maker. In its oral submissions, the Panel also appeared to be arguing that indirect harm to the child should be considered (for example, if a parent harmed a friend of the child), the focus should be on the child rather than the parent, the gravity of the harm to the child should the risk eventuate needed to be considered and also the matter of candour (that is, the history of the offending).

83 The question therefore arises as to what exactly is meant by the terms 'best interests' and 'welfare and interests' of a child. Thus far we have concluded that the expressions are not to be limited by only applying to matters arising from the initial obstruction to treatment. It is difficult to see how, if the words are simply given their dictionary meanings, any decision-maker could properly apply such a test.

84 As the Tribunal considered, what makes this situation unique, and distinct from custody cases and adoption cases, is the impossibility of comparison. When a question arises whether it would be in the best interests of a child for a particular order to be made, such as to be in the dominant or sole or shared care of a parent, or the State, those making the decision can use the information before them to explore all the potential scenarios and determine which would indeed be in the best interests of the child. The decision-makers can determine what risks may or may not exist and the advantages and disadvantages of every scenario.

85 Here, the only choices are life or non-existence. Counsel for the respondents suggested that these two states were comparable and that a reasonable determination could be made as to whether a child's quality and condition of life and well-being (even if, hypothetically, he or she were ultimately taken into State care) was better than that child not existing. We do not see how such a comparison could be made.[50] Under the Act what constitutes the 'best interests of the child' is not achieved by comparing the two possibilities. Nor could it possibly mean something akin to 'the best parenting possible' or some other ideal standard. Common sense and experience dictate that no person can expect to have a perfect childhood and no person is capable of proving that they would be a perfect parent. These matters or perceptions are relative.

86 Developing an understanding of what Parliament intended by these criteria is assisted by the Act's historical materials. In our view, if anything, it would appear to be the case that the Tribunal's 'parental capacity' test, adopted as the broader test by the Tribunal, in the event a broader test was intended, went beyond what was required under the Act when considering the best interests of the child and the welfare of the child.

87 The VLRC report referred to arguments criticising the consideration of 'the best interests of children' in the context of assisted reproductive treatment. Such arguments were the fact that it is contestable, subjective and indeterminate, it is unpredictable and impossible to apply and its application is unfair to those using the treatment as the standard is not imposed on those who can conceive naturally. Nevertheless, after consideration of all the arguments the VLRC chose to recommend that the consideration remained paramount.[51]

88 There is little discussion in the VLRC report as to what the 'best interests' of a child might consist of but the VLRC report equates the expression 'best interests of the child' with 'welfare', 'welfare and interests', 'best interests' and 'health and wellbeing'. It relies on the articulation of the guiding principle in the International Convention on the Rights of the Child,[52] and assisted reproductive treatment, child welfare and care and protection legislation in Victoria, South Australia, Western Australia, the United Kingdom and Canada.[53] The Statement of Compatibility[54] filed with the Assisted Reproductive Treatment Bill 2008 noted that the purpose of the presumption against treatment:

is to protect children born through ART, which is a clear and reasonable purpose consistent with the principles of the charter, in particular, the best interests protected in section 17 of the charter.[55]

89 When referring to the type of harm a child might suffer the VLRC did not limit itself to research as to physical or sexual abuse but also examined harm such as emotional abuse and neglect. Thus the Panel is correct in submitting that a broad enquiry is appropriate.

90 It is significant that, as already mentioned, the VLRC rejected the 'first approach' which treated assisted reproduction in a similar way to conventional conception. It also rejected a second approach which treated assisted reproduction in a similar way to adoption of children, requiring people to be assessed according to a set of criteria aimed at ascertaining whether they would be fit and proper parents.[56]

91 The third approach, which was the approach preferred by the VLRC and on which the provisions in the Act are clearly based is: 'to implement a fair and transparent process that enables a clinic to investigate concerns about risks to children on a case-by-case basis and according to identifiable and established risk factors.'[57] The Panel submitted that the approach adopted by the legislature was a hybrid of the second and third approaches.[58] It seems to us that the better view is that the legislature more or less adopted the approach recommended by the VLRC.

92 This is evident when comparing the content and structure of the eligibility scheme under the assisted reproductive treatment legislation to the more rigorous, extensive and detailed scheme found in Victoria's adoption legislation. Under the assisted reproductive treatment legislation, it will be sufficient for many applicants to simply demonstrate the unlikelihood of carrying a child or giving birth naturally to receive assistance. In contrast, as well as adoptions being refused recognition on the basis of the 'best interests' of the child, the Adoption Act 1984 provides that every applicant must meet a 'fit and proper person' test. The Adoption Regulations 2008 (which commenced operation earlier in the same year as the Assisted Reproductive Treatment Bill 2008 was drafted, amended and ultimately assented to), specifically provides a list of criteria for what meets the 'fit and proper person' test (Regs 35 and 37). These criteria include, among other things, factors such as: suitable financial circumstances, age and maturity, health and ability to provide a stable, secure and beneficial emotional and physical environment for the child. These are far more specific than the criteria a decision-maker under the assisted reproductive treatment legislation must consider and clearly serve a different purpose as they apply to every applicant, not ones 'targeted' for policy reasons.

93 The VLRC report repeatedly considers and makes reference to the 'risk of harm' to the child or 'unacceptable risk of harm', and the assessment of that risk of harm as pertaining to the best interests of the child. It seems that the repeated focus of the VLRC on 'identifiable and established risk factors' and 'objective and verifiable risk factors' provides the best guidance as to what the Act envisages the decision-maker must consider when examining the best interests of a child in relation to an application under s 15(1)(a).

94 The matters giving rise to the presumption against treatment were targeted as identifiable and established risk factors to children by the VLRC. However, we do not accept the Tribunal's finding that in any given case, identifiable and established risk factors are limited to those types of matters that give rise to a presumption against treatment. The VLRC report also made reference to persons or couples 'who may have a physical or psychiatric illness, an intellectual disability, or some other problem that raises a doctor's concern about their capacity to care for a child.'[59] The VLRC report mentioned these, and possibly other factors, that might be identified by a doctor as posing a risk to the health and well-being of a child. The VLRC report made reference to research relating to these factors. It was noted that such persons may be excellent parents but should doubt arise 'there should be a process for decision-making which allows proper assessment of the risk'.[60] Such a decision-making process should be transparent, procedurally fair, consistent and rely on 'disciplinary expertise in assessing risks' as opposed to 'medical factors or personal value judgments' to avoid discriminatory assumptions.[61] The VLRC report referred to the 'substantial body of research on the parental factors which place children at risk of harm.'[62]

95 The respondents submitted that if there were factors other than the initial obstructions to be considered by the Panel, the Act would have expressly said so. However, it is clear that the Act was not designed to work this way. The Act identified what it considered to be the most significant indicators of risk to a child but its 'catch-all' provision in the Guiding Principles remained flexible enough for a broader test to be applied on a case-by-case basis as required.

96 The VLRC report carefully considered studies and research identifying factors important to an assessment of risk to a child such as child abuse being committed by a person previously, a violent relationship between the parents, drug and alcohol abuse and serious mental illness.[63] Some factors which did not necessarily indicate risk to a child but to which particular attention might need to be paid in some cases included intellectual and physical disabilities and non-serious mental illness.[64] Some factors cannot be considered by the Panel. The Act does not allow for the Panel to discriminate based on sexual orientation, marital status, race or religion.[65]

97 The concern was raised in the respondents' submissions that the broad parental capacity test will involve the Panel identifying factors such as financial status when considering the best interests of the child. It seems to us that factors such as poverty would fall outside the real indicators of risk the statutory scheme imagined the Panel considering.[66] This is not to say the Panel is necessarily limited to those matters raised in the VLRC reports referred to in the VLRC report should new evidence and studies arise, but of course the members of the Panel could not simply rely on personal value judgments or community values in a case such as this.[67] One reason for the decision of the Panel being made transparent and the establishment of the appeals process in the Act is to minimise the potential risk arising from the Panel engaging in such behaviour.

98 Some of the other factors identified by the Panel might be relevant in cases such as adoption or custody where the aim is to determine which of two alternatives is preferred. It is clear that the recommendations of the VLRC were based on the view that persons seeking treatment should not be treated exactly the same as those applying for adoption and that these recommendations were implemented in the Act.

99 The Tribunal did not apply the correct test. The limited test it applied had the defects we have outlined and the broader test, adopted in the alternative (the 'parental capacity' test), was also wrong, for the reasons given. Subject to what we say below, it is possible that an application of the correct test would have in any event yielded the same result. However, the counselling order to which we refer below, and the matters set out in paragraphs [115] and [116] below, lead us to be cautious in reaching any such conclusion. We turn now to those matters.

100 On the final day of the VCAT hearing, the respondents' counsel addressed the fact that VCAT had the power to impose conditions on any decision it makes in this matter, should they be necessary and reasonable, pursuant to s 91(3) of the Act. Counsel proposed ABY undertaking treatment. Written submissions by the Panel were filed as to the desirability of ABY undergoing counselling with regards to his past offending and written and oral evidence was provided by three experts: Dr Sullivan, a psychiatrist, Professor Ogloff, a psychologist and Ms Mynard, a psychologist.

101 The Tribunal ordered that ABY engage in sex offender specific treatment, in the form of 12 counselling sessions. Therefore it must have considered the order to be both 'necessary and reasonable'. This would suggest some lingering concern by the Tribunal as to the risk of ABY re-offending. However, the Tribunal clearly accepted the evidence that the risk of ABY re-offending generally was low and there was no cogent evidence to suggest that ABY poses a risk of sexually offending against a biological child. In relation to the order, the Tribunal said that:

We accept Dr Sullivan's evidence that because ABY already has a low risk of reoffending treatment is unlikely to reduce that risk significantly. However, treatment would assist ABY to gain greater insight into his offending.[68]

102 Moreover, the Tribunal did not require any 'follow-up' on the treatment. That is, it was only concerned that the specific treatment was satisfactorily engaged in, and not its actual efficacy.

103 It seems to us that the order made by the Tribunal is inconsistent. Either ABY presented a concern to the Tribunal or he did not. If he did, then the situation could be re-visited after ABY received treatment. If he did not, then such an order was not 'necessary and reasonable' even though such treatment may have been desirable and the order may have increased the Tribunal's confidence in its decision that there was no barrier for treatment.

104 Turning to the evidence pertaining to ABY's need for treatment, at the time of ABY's sentencing plea, he engaged a psychological report from a Mr Cummins. That report recommended ABY be required to participate in a sexual offender treatment program to address issues of victim empathy and related issues. At the time of the hearing before VCAT, ABY had not engaged in any treatment or counselling with regards to his offending.

105 Written and oral evidence was given by a psychologist for the Sex Offender Program who stated that based on the nature and seriousness of his offending ABY would ordinarily have access to the Program, that ABY was ineligible to access the Program due to the brevity of his prison sentence, that ABY was not invited to participate in the program and that the witness did not know whether ABY had asked to participate in the program.[69]

106 Evidence was also given by Professor Ogloff and Dr Sullivan:

DR SULLIVAN: It would be our opinion that the treatment would be beneficial in this case ... sex offender specific treatment, so aimed at drilling down into all of the potential causes, helping him gain a greater insight, helping him to develop some strategies not to replicate the sorts of situations or triggers which are involved ...

HIS HONOUR: Is your conclusion dependent on him undergoing such treatment, your conclusion as to the risk?

DR SULLIVAN: I think our current conclusion is not dependent on that but it would enhance the satisfaction of the decision making body and enhance I think the satisfaction of the community that appropriate treatment had been undertaken.

...

PROFESSOR OGLOFF: I think, Your Honour, just to reiterate what Dr Sullivan said, and this is something we discussed. It's our opinion that the way he sits now and into the future the risk is low. This would simply be a benefit I think to give him assurances and understanding which I think he still struggles with and I would imagine his partner struggles with and others, including probably the victim. So that would be a benefit but I don't see it as a necessary component, certainly with respect to risk. In many, many cases that I see the risk is elevated and we can't make a prediction of what the risk will be like in the future without knowing that there will be a course of treatment. In this case I don't have that concern.[70] (emphasis added)

107 Thus Dr Sullivan and Professor Ogloff were clear that ABY undergoing counselling was not a barrier or a precondition to their conclusion that ABY's risk of reoffending was low. In that sense counselling would be gratuitous or superficial. Rather, their conclusion that counselling would be beneficial was that it would 'enhance the satisfaction' of interested parties and provide 'assurances and understanding' to ABY.

108 Ms Mynard, a clinical psychologist with expertise in complex clients who have forensic issues, drug/alcohol histories and mental illness also gave evidence in relation to counselling for ABY:

COUNSEL: What's been proposed by those other practitioners is specifically therapy in relation to his sex offending, is it not?

MS MYNARD: Yes, yes. I mean I think that, you know, cognitive distortions and his issues of denial and (indistinct) and other issues around offending and difficulties need to be addressed and I think there can also be other issues around drug and alcohol and information (indistinct) those sort of things can also be addressed in therapy along with the offending behaviour.

COUNSEL: So it is your professional view that it really is important that ABY address those matters so that he can redress the maturity deficits which he continues to exhibit?

MS MYNARD: Yes, yes. I agree, yes.[71]

109 Views from Ms Mynard's report as to ABY's minimising behaviour and likelihood of re-offending were put to Professor Ogloff and Dr Sullivan. They disagreed with her conclusion as to the seriousness of ABY's minimising behaviour.[72]

110 The Tribunal disavowed the submissions made by the Panel that ABY needed to engage in therapy beyond treatment for his sex offending, such as that described by Ms Mynard, because the need for such therapy was not demonstrated on the evidence.[73]

111 The Tribunal agreed with the submission by the Panel that ABY engage in the counselling sessions before ABY was given access to treatment. However, the only reason the Tribunal gave for agreeing was 'If ABZ was granted access to ART before ABY had completed the 12 counselling sessions proposed it would be difficult to enforce compliance with the treatment condition.'[74] Again, the Tribunal did not appear concerned as to the treatment's efficacy or demonstrable impact on ABY.

112 ABY and ABZ have not appealed that order and ABY has already completed the counselling sessions. On the one hand, it seems arguable that the order was made unnecessarily, indeed inappropriately, and does not indicate that the Tribunal had any real remaining doubts about ABY and its findings of fact as to the likelihood of his re-offending.

113 Nevertheless, it remains that the Tribunal ultimately made the order as to counselling. Thus, it must have retained some lingering doubt as to ABY's risk of reoffending such that it felt it was necessary for ABY to engage in counselling. As such, the Tribunal should have proceeded on the basis that it would receive further evidence as to ABY's risk of reoffending after the counselling sessions before making its final decision. Thus, particularly in light of the appropriate test now having been clarified, the matter should be remitted on that basis.

114 This is not to say that a condition as to counselling or treatment could never be viewed as reasonable and necessary. For example, an applicant who has satisfied the decision-maker that there is no barrier to treatment at the time of their application but is concurrently undergoing relevant psychological or pharmaceutical treatment. In combination with the right circumstances the decision-maker might fairly impose as a condition of a decision in favour of granting assisted reproductive treatment that the applicant must continue their psychological or pharmaceutical treatment until their treating practitioner deems otherwise.

115 Reference was also made in an extract of a statement by ABY, and in the decision of the dissenting member of VCAT, to ABY being charged with four counts of either wilfully committing an indecent act with a child aged 16 years and/or indecent assault which were subsequently dropped. Although there is some indication that this refers to the exchange of text messages between ABY and his victim,[75] and thus a matter considered by the Tribunal and the experts, it is ultimately unclear as to what the content of these charges were or whether they were accepted as part of the background to the three convictions.

116 It is therefore unclear whether they were considered in the assessment of the psychological or psychiatric reports or considered by the Tribunal. Depending on the circumstances and evidence related to these charges, it may be that the allegations could have proven relevant under the appropriate test and on the matter being remitted they might be appropriately considered by VCAT. It would be a matter for VCAT as to whether further evidence is required or the existing evidence stands.

117 The Tribunal was in error in applying the limited test. The test as preferred by the Tribunal is not the appropriate test under ss 15(3)(ii) and 5(a) and a broader test is required. The broader test does not mean that the Panel is required in every case to examine the overall parental capacity of the applicant and/or their partner (if any). The test will require the Panel to be satisfied that granting treatment will be in the best interests of any child to be born as a result of the treatment. This decision will be based on all the evidence that comes before it, including any evidence of factors potentially adverse to the well-being or best interests of the child that is not directly related to the initial obstruction to treatment. A consideration of what constitutes the best interests of a child could include the physical, sexual, emotional and developmental well-being of a child. The part of the decision which pertains to considering the best interests of the child will first involve recognising, on the evidence before the decision-maker, any potential identifiable and established risk factors as supported by research and expertise in the field. Secondly, it must be decided either that these factors present a real risk of harm when applied to all of the circumstances in an individual case, and therefore a barrier to treatment arises, or that they do not, and therefore no barrier exists insofar as ss 15(b)(ii) and 5(a) are concerned.

118 It follows that the question of law is answered as:

'No. The expressions 'best interests of a child' and 'welfare and interests of persons born' in s 15(3)(b)(ii) and s 5(a) respectively of the Assisted Reproductive Treatment Act 2008 require an evaluation of any identifiable and established risk factors to the child to be born (including, but not limited to, risk factors relating to the matter which gave rise to the presumption against treatment and whether the matter which gave rise to the presumption against treatment creates a risk of harm to the child to be born).'

119 The matter should be remitted to VCAT to be heard and determined by a differently constituted Tribunal. It may be that additional evidence may be introduced before VCAT on the re-hearing. This is a matter for VCAT.

120 Finally, in the procedural sense, this was an unusual appeal. The appellant was the original decision-maker seeking to uphold its own decision at VCAT and then to overturn its review by VCAT. There would be much to be said for the relevant Minister, or Secretary of a government department, to bring any review or appeal. In this way the Court and VCAT would have the benefit of a true contradictor.

[1] Sections 10(1)(a), 10(1)(b)(i), 10(2) and implicit in s 15(1)(c). Specifically, a doctor must be satisfied of at least one of three criteria set out in s 10(2)(a).

[2] Section 14(1)(a). Such offences are those sexual offences listed in clause 1 of Schedule 1 to the

Sentencing Act 1991 and those violent offences listed in clause 2 of Schedule 1 to the

Sentencing Act 1991.

[3] Sections 10(1)(b)(ii), 15(1).

[4] His suspended sentence has now expired.

[5] Pursuant to s 15(1)(a) of the Act

[6] Section 85(b) of the Act.

[7] Per s 96 of the Act. The original application included other grounds which are not relevant here.

[8] Henceforth the majority will be described as 'the Tribunal'.

[9] ABY, ABZ v Patient Review Panel (Health & Privacy) [2011] VCAT 1382 ('Reasons'). ABY has since completed those 12 counselling sessions.

[10] Pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.

[11] Pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998.

[13] For example, while he remains a registered sex offender, ABY would be unable to volunteer at his child's school.

[14] The assessment of Mr Cummins took place at about the time of ABY's sentencing plea.

[16] Reasons [49]-[50]. Member Harper agreed with the majority as to the appropriate test [223] but concluded that a barrier to treatment existed.

[20] Reasons [39] citing Second Reading Speech 'Assisted Reproductive Treatment Bill' Legislative Assembly (Attorney-General (Vic) Robert Hulls) 10 September 2008, p 3451.

[22] See [50]-[51] below.

[25] Reasons [128]. See also [129]-[181].

[27] In his evidence before VCAT and during his sessions with the expert witnesses, ABY stated that, notwithstanding his plea of guilty, he did not engage in any 'contact offending' with his victim but did engage in an inappropriate and sexualised series of exchanges with the victim via text and picture messages.

[28] The Panel also said that the limited test was problematic as it excluded a consideration of the effects of ABY's lack of candour on a child who would be born as a result of the treatment procedure. However, in oral submissions in this Court, counsel stated that lack of candour was not related to ABY's parenting skills per se but rather was used as an example of ABY's lack of remorse, insight and victim empathy and how that would potentially affect his child. We would interpret the submission as being that these matters pertained to the likelihood of ABY's re-offending.

[29] At the VCAT hearing, the Panel submitted under the 'broader' construction that ABY's capacity to provide moral guidance to a child or function in a satisfactory way as a role model was relevant. As discussed above at fn [28], it would appear counsel did not appear to ultimately rely on ABY's lack of candour except insofar as it related to the likelihood of his re-offending.

[30] For reasons we explain below, we find these expressions to be virtually interchangeable and will treat them as such unless otherwise indicated.

[31] Interpretation of Legislation Act 1984, s 35(a).

[33] Being: Danya Glaser, 'Emotional Abuse and Neglect (Psychological Maltreatment): A Conceptual Framework' (2002) 26 Child Abuse & Neglect 697; Victorian Department of Human Services, An Integrated Strategy for Child Protection and Placement Services (September 2002); The Allen Consulting Group, Protecting Children: The Child Protection Outcomes Project: Final Report for the Victorian Department of Human Services (September 2003); Victorian Office for Children, 'Risk Assessment: Policy Advice and Practice Guidelines for Protective Workers' (1996) in Protecting Children: Volume 3 - Policy Advice and Practice Guidelines: Part 2, available at at May 2006.

[34] See, eg, Report pp 6, 9, 46, 59, 61.

[42] Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of The Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297.

[43] See Reasons [64]-[66], set out in [29] above.

[44] Report, 68 and reflected in recommendations 29-31. This included a consideration of, but was not limited to, the matter arising in s 10(2)(a)(iii).

[45] See Second Reading Speech 'Assisted Reproductive Treatment Bill' Legislative Assembly (Attorney-General (Vic) Robert Hulls) 10 September 2008, p 3451 stating that the Panel can determine 'applications for ART that fall outside the standard eligibility requirements, such as using [assisted reproductive treatment] to create a saviour sibling to provide compatible tissue for an existing child or relative who is seriously ill'. (Emphasis added)

[46] Assuming, of course, a doctor is satisfied that the risk exists per s 10(2)(a)(iii). If the doctor is not so satisfied, she may seek review from the Panel although, for the reasons outlined at [67] above, it is difficult to imagine a realistic scenario where this might occur.

[47] See, eg, Report, 68 'Only treatment for a therapeutic goal which is consistent with the best interests of the child should be permitted by the review panel.'

[50] See also Reasons [55]-[56] and citing Harriton v Stephens [2006] HCA 15; (2006) 226 CLR 52 [252] (Gleeson CJ with Crennan J, Gummow and Heydon JJ agreeing). We note this approach was expressly rejected by the VLRC: Report, 63.

[52] 1577 UNTS 3 (20 November 1989).

[54] Filed in accordance with the Charter of Human Rights and Responsibilities 2006.

[55] Statement of Compatibility 'Assisted Reproductive Treatment Bill 2008', Legislative Assembly (Attorney-General (Vic) Mr Hulls) 10 September 2008, p 3438.

[56] See, eg the criteria set out in r 35 Adoption Regulations 1998 (now repealed but similarly in r 35 Adoption Regulations 2008) which expressly includes matters such as suitable financial circumstances, stability of character as going towards assessment.

[58] The approaches were discussed above at [54]-[59].

[65] Section 5(e).

[66] See paras [91]-[92] above.

[67] This is not to say other factors such as social, ethical and moral issues might not prove to be relevant in certain situations when the Panel is making a decision under the Act. For example, where the Panel is considering an application under s 28(2)(b) because an applicant/ couple wants a child of a specific gender, then these factors may prove to be significant.

[69] Statement of Simon James Candlish dated 17 February 2011, transcript of 28 June 2011 before VCAT pp 112-4.

[70] Transcript of 28 June 2011 before VCAT pp 136-138.

[71] Transcript of 28 June 2011 before VCAT p 156.

[72] Transcript of 28 June 2011 before VCAT pp 141-143.

[73] Reasons [207]-[209], see also [217].

[75] This explanation appeared in ABY and ABZ's Submissions for Hearing before VCAT. However, the reference to 'indecent assault' and the fact that ABY has always admitted to exchanging the text messages makes this uncertain on the evidence presented to this Court.