Plaintiff v First Defendant

2 In 2005, Mr McIntyre was given full custody of his five children, and became their full time carer. The children are now adults or teenagers. Mr McIntyre wishes to re-join the workforce and become a landscape gardener with a tourist railway. His employer requires an assessment notice under the Working with Children Act 2005 (Vic) ('WWC Act') for him to be able to do so. Mr McIntyre's application is a category A application under the WWC Act because 28 years ago when he was aged 19, he was found guilty of sexual penetration with a child between 10 and 16 (two charges).

3 The Secretary is required by law to refuse to give an assessment notice on a category A application, and did so. Mr McIntyre applied to the Tribunal for an assessment notice. Following a hearing, the Tribunal made orders directing the Secretary to give an assessment notice to Mr McIntyre.[1]

4 Subsequently, the Secretary applied for a stay of the Tribunal's orders. The stay application was dismissed on 12 September 2018.

5 Section 1A of the WWC Act provides for the protection of children to be the paramount consideration:

When the Secretary or VCAT makes a decision or takes an action under this Act, the protection of children from sexual and physical harm must be the paramount consideration.

6 Section 26A of the WWC Act sets out the requirements that must be satisfied before the Tribunal can order the giving of an assessment notice in a category A application:

(1) A person who has been given a negative notice -

(a) on a category A application ...;

...

may apply to VCAT for an assessment notice to be given ...

...

(3) VCAT must not make an order for the giving of an assessment notice ... unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to -

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

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

(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and

(d) the sentence imposed for the offence; and

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

(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and

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

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

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that VCAT considers relevant to the application.

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

(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and

(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

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

...

7 After setting out preliminary matters, the Tribunal observed that the Tribunal could not make an order for the giving of an assessment notice on a category A application unless satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children having regard to the factors set out in s 26A(3)-(5) of the WWC Act.[2]

8 The Tribunal then successively had regard to the considerations listed in s 26A(3):

(a) As to para (a), the Tribunal noted that when aged 18, Mr McIntyre had sex with a 13 year old girl who he considered to be his girlfriend, setting out the sentencing judge's remarks at some length.[3] The Tribunal described the offending as serious, and the offences as obviously related to child-related work.

(b) Under para (b), the Tribunal noted that it was now 28 years since Mr McIntyre committed the offence. While there had been no further offending of a like manner, Mr McIntyre had committed a number of additional relevant offences.[4]

(c) As to paras (c) and (d), the Tribunal observed that Mr McIntyre had made full and immediate admissions to the police. He pleaded guilty to the charges and was placed on a 3-year, $300 good behaviour bond without conviction. The Tribunal observed that this was a lenient sentence as the maximum penalty at the time for this offence was 10 years imprisonment.[5]

(d) Para (e) requires the ages of the applicant and the victim at the time of the offence to be taken into account. The Tribunal noted that Mr McIntyre was 18 and his victim 13 years. The sentencing court found that the relationship was genuine and non-coercive and that the pair considered themselves as boyfriend and girlfriend.[6]

(e) As to para (f), the conduct had not been decriminalised.[7]

(f) As to para (g), the Tribunal reviewed Mr McIntyre's behaviour since he committed the offence. He had a criminal history extending up to 2004. It then stopped. Since 2004, his conduct had been exemplary. He had not reoffended. He had had sole custody for, and had raised five children largely by himself. There had been no further issues of concern to the Department of Health and Human Services ('DHHS').[8]

9 Prior to 2004, the Tribunal found that Mr McIntyre's conduct and behaviour had been far from exemplary. He had a criminal history which disclosed offences of violence, including violence against a child.[9]

10 The Tribunal then set out the offences that Mr McIntyre had committed dating back to 1990, and reviewed the nature and circumstances of each offence and the penalty imposed. The offences committed by Mr McIntyre ranged from recklessly causing injury to his daughter in September 2004 for which he was sentenced to six months imprisonment served by way of an intensive correction order, to cultivating cannabis, unlawful assault, assaulting police, wilful damage and theft.[10]

11 The Tribunal described the incident involving Mr McIntyre's daughter as serious offending. Mr McIntyre had picked up his daughter and thrown her onto a mattress on a steel-framed bed. The daughter suffered a fracture of the right femur, resulting in hospitalisation and surgery.[11]

12 In his evidence to the Tribunal, Mr McIntyre described what had happened. Four of his children had plastered make up over themselves and over the bedroom. He had flung two of his children onto the bed with his daughter falling short of the bed, and breaking her leg.[12] A DHHS note at the time described Mr McIntyre as very remorseful about what had occurred and genuine in his concerns about his actions.[13]

13 A case manager at Corrections Victoria reported that Mr McIntyre had problems with anger control, and was expected to commence an anger management course soon.[14] After Mr McIntyre completed the anger management course, the case manager observed that there was nothing further to be gained from ongoing supervision.[15]

14 DHHS placed the children in Mr McIntyre's care on a 12 month supervision order with regular contact with their mother. They have remained in his care ever since. On the expiry of the supervision order, DHHS closed the case. Mr McIntyre was caring for the children with the support of their maternal grandfather. They were providing a secure and stable environment for the children. Regular contact with their mother was not occurring. However, they had involvement with their extended family and were doing well at school. There was no physical abuse occurring, and the children were happy and content. There were no protective concerns.[16]

15 Mr McIntyre gave evidence that he and his former wife had arguments when their children were very small. He described a chaotic household where he was working shift work, there were several children under the age of five, his wife was suffering post-natal depression and the family was not coping. The Tribunal noted that this was 22 years ago. In relation to a 1996 offence of unlawful assault, Mr McIntyre agreed that it probably related to an incident where he threw his wife on the bed after an argument about one of the children.[17]

16 The Tribunal referred to offences committed by Mr McIntyre as far back as 1991−1994 when he caused damage to property and assaulted police while intoxicated, acted in breach of an intervention order, and committed theft. The Tribunal discussed and took into account the individual circumstance of these offences and the reasons for them.[18]

17 Mr McIntyre gave evidence that much of his criminal history occurred when he was younger and during a period when he was dealing with an unwell, abusive mother in the context of a troubled home life, or during periods of homelessness.[19] Mr McIntyre's mother suffered from Huntington's Chorea disease affecting her balance, memory and ability to cope. After his parents split up, Mr McIntyre provided support as her condition deteriorated. She would have hysterical mood swings, abusive one minute, loving the next, throwing the children out, and then not allowing them to visit their father.[20]

18 The Tribunal described Mr McIntyre's present situation in these terms:

Mr McIntyre is now in a supportive and loving relationship. I read a reference and heard evidence from his current partner, in which she described him as 'nothing but respectful caring and someone who puts everyone else first before himself.' She spoke in her evidence with pride of the way in which he has brought up his children. She knew the detail of his prior criminal history and the DHHS interventions and gave evidence in support of him. She said he has, through this process, had the negative aspects of his entire life examined and she emphasised the many good and positive features of his personality and his dedicated role bringing up his children. I accepted her evidence.[21]

19 In considering the likelihood of future threat to a child under s 26A(3)(h) of the WWC Act, the Tribunal considered:

(a) Mr McIntyre's past offending and criminal history;

(b) the lack of expert opinion and psychological assessment;

(c) the absence of further offending for many years;

(d) the nature of Mr McIntyre's sexual offending;

(e) conclusions reached and documented in DHHS reports and material; and

(f) whether there was any evidence that there was a likelihood of future threat posed by Mr McIntyre towards a child.[22]

20 The Tribunal found that all of Mr McIntyre's offending took place many years ago. The sexual penetration charges were 22 years ago and the most recent offence of recklessly causing injury to his daughter 14 years ago.[23]

(a) Mr McIntyre's offending occurred over a 15 year period;

(b) there was no evidence before the Tribunal that should alleviate its concerns about the likelihood of repetition of the offence; and

(c) there was no expert opinion as to future threat to a child caused by Mr McIntyre had been provided.[24]

22 Responding to these submissions, the Tribunal said:

(a) it agreed that Mr McIntyre's criminal history was an unenviable one and of great concern;

(b) nevertheless, there had been a very lengthy period with no offending during which he had almost single-handedly raised five children;

(c) he had demonstrated over some years that he could control his temper;

(d) he was mortified that he had harmed his daughter and had learned a salutary lesson;

(e) the lack of a psychological assessment was not fatal to Mr McIntyre's application, and the Tribunal must make its own assessment;

(f) the Tribunal accepted Mr McIntyre's evidence that he was unable to afford the cost of a report;

(g) where an individual had a history of offending against children, great caution must be exercised by the Tribunal;

(h) there had been no further offending of any description for many years; and

(i) the Tribunal was satisfied that Mr McIntyre did not pose a future threat.[25]

23 As to whether Mr McIntyre posed a threat to a child as a result of this offending, the Tribunal held:

(a) Mr McIntyre's sexual offending was in the context of a relationship - albeit an impermissible one. It was not predatory and was not repeated;

(b) the serious offence of recklessly causing injury to his seven year old child was a reckless rather than a deliberate act which Mr McIntyre immediately regretted;

(c) Mr McIntyre took positive action, co-operating with police, anger management counselling, and engagement with DHHS;

(d) even at the time of the offending DHHS were confident that there would be no repeat and were supportive of Mr McIntyre having children placed in his care;

(e) Mr McIntyre had been positively and actively involved with his own children, the children of his partner and the children of his sister. He had been an active parent in his children's school; and

(f) Mr McIntyre's conduct over the last 14 years had been blameless.[26]

24 Weighing up the material, the Tribunal was satisfied that there was no evidence upon which it could find that there was a likelihood of future threat posed by Mr McIntyre towards a child.[27]

25 The Tribunal then considered a number of references provided by Mr McIntyre. Those given by his children painted a picture of a dedicated, active and caring father. A reference from his best friend and the godfather to his children was also supportive.[28]

26 The Tribunal then stated its conclusion as to whether there was an unjustifiable risk to the safety of children under s 26A(3). It was satisfied that Mr McIntyre did not pose an unjustifiable risk to the safety of children referring to the positive evidence of his behaviour in recent years, and the passage of time since he last offended.[29]

27 In addition to being satisfied that Mr McIntyre would not pose an unjustifiable risk to the safety of children under s 26A(3), the Tribunal must also 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.[30]

28 As to the reasonable person test, the Tribunal held that while the reasonable person would be concerned when reading Mr McIntyre's criminal history, the reasonable person would be impressed by the prolonged and demonstrable change in Mr McIntyre. The reasonable person would consider that he was now a role model for other fathers and would not hesitate to allow his or her child to have direct contact with Mr McIntyre while he was engaged in any type of child-related work. The reasonable person would be impressed by the character witnesses.[31]

29 The Tribunal was also satisfied that Mr McIntyre's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. He had been praised by DHHS and schools for his efforts with his own children, and by family members and close friends. He had turned his life around from dysfunctional beginnings to be an individual warranting admiration within the community.[32]

30 Mr McIntyre was required to satisfy the Tribunal that it was in the public interest that he be given an assessment notice.[33]

31 As to this requirement, the Tribunal held that Mr McIntyre put his career on hold in 2004 onward to be the sole parent to his five children. His children were nearly grown-up, and it was appropriate that he be able to work outside the home. It was in the public interest for him to engage in meaningful work which he enjoyed and to contribute to the community.[34]

32 Parliament has enacted the WWC Act to protect children from sexual or physical harm by ensuring that people who work with, or care for them are subject to a screening process. This is its main purpose.[35] The protection of children from sexual and physical harm is the paramount consideration when the Secretary or the Tribunal makes a decision or takes an action under the WWC Act.[36]

33 Category A offences are the most serious offences and include offences against children, child pornography, and rape whether with or without aggravating or mitigating circumstances.[37] Any application for an assessment notice by any person who is charged with or found guilty of a sch 1 offence must be refused by the Secretary.[38] Only the Tribunal can grant an assessment notice to a category A applicant.

34 In addition to the paramount consideration, the Tribunal must take into consideration 10 different matters before it can be satisfied under s 26A(3) of the WWC Act that giving the notice would not pose an unjustifiable risk to the safety of children. However, favourable consideration of the 10 listed matters in s 26A(3), and satisfaction that giving the notice would not pose an unjustifiable risk to the safety of children is not enough.

35 The Tribunal must then be satisfied as to two further tests. It must be satisfied that 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 that the applicant's engagement in any type of child related work would not pose an unjustifiable risk to the safety of children.[39]

36 In ZZ v Secretary, Department of Justice ('ZZ'), Bell J described the test of 'unjustifiable risk' as requiring the specified considerations to be addressed.[40] This required a rational, objective and evidence-based assessment of the nature and degree of the risk which the notice would pose.[41] The decision must be balanced, and not arbitrary, and refusing to give a notice must be a proportionate response.[42]

37 As to the meaning of the expression 'unjustifiable risk', his Honour described a risk as a 'hazard' or 'danger', or an 'exposure to mischance or peril' that may be great or small depending on the probability of the event occurring and the nature of the hazard or danger concerned.[43]

38 In Maleckas (LKQ) v Secretary, Department of Justice, Kyrou J described 'a chance of a future threat' as a relevant consideration under s 13(2)(h) of the WWC Act.[44] If the chance is minimal, the consideration may favour the applicant.[45] The greater the chance the less favourable the consideration from the applicant's perspective.[46]

39 Section 1A makes the protection of children from sexual or physical harm the paramount consideration. The existence of a paramount consideration raises the question as to the weight to be given to the paramount consideration as against all of the other considerations.

40 There is limited jurisprudence as to how s 1A is to be applied. When determining the meaning of a statutory provision, context, general purpose, policy and fairness of a statutory provision are all guides to its meaning.[47] Context includes the existing state of law and the mischief to which the legislation is addressed,[48] the legislative history,[49] and structure of the legislation,[50] judicial decisions about antecedent legislation,[51] and extrinsic materials.[52] But context can only be used to interpret, not depart from, the text of the statute.[53]

United Nations Convention on the Rights of the Child

41 The United Nations Convention on the Rights of the Child,[54] ('the Convention') was ratified by the Commonwealth Executive in 1991. The Convention provides a contemporary statement of the legal standard existing at international law as to the rights of a child.

(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of their parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

(3) States Parties shall ensure that the institutions, service and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health and in the number and suitability of their staff, as well as competent supervision.

43 It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into domestic law by statute.[55] It is also accepted that Australia's international obligations, although not incorporated into domestic law, may inform the interpretation of statutory provisions.[56]

44 Maxwell P summarised the leading High Court authorities and expressed the general common law principle in Royal Women's Hospital v Medical Practitioners Board:

The provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State) should be interpreted and applied, as far its language permits, so that is conforms with Australia's obligations under a relevant treaty.[57]

Charter of Human Rights and Responsibilities Act

45 The Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter Act') sets out the basic rights, freedoms and responsibilities of people in Victoria. The Charter Act operates to require public authorities such as Victorian State and Local Government agencies, and people delivering services on behalf of the government, to act consistently with the human rights set out in the Charter Act.

Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgements of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right;

(b) a subordinate instrument or provision of a subordinate instrument that is compatible with a human right and is empowered to be so by the Act under which it is made.

47 Section 17(2) of the Charter Act, relevantly provides:

Every child has the right, without discrimination, to such protection as is in his or her interests and is needed by him or her by reason of being a child.

48 While there is no comparable 'right to work' specifically provided for in the Charter Act, common law still recognises the 'right to work' for certain purposes, as considered by Bell J in ZZ.[58] Bell J stated:

I am not suggesting that the right to work is an independent cause of action. As Barwick CJ held in Forbes v New South Wales Training Club Ltd, the right to work is not legally enforceable as such. But Buckley and the cases like it demonstrate that, in certain circumstances, the courts will take account of or protect the right to work as a recognisable legal category and that the right to work engages the public interest. As Barwick CJ said in Forbes, there is a 'public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit' and '[i]t is in the public interest that a man should be able to exercise his capacity to work.'[59]

49 ZZ was however, decided in 2013, and prior to the introduction of the paramount consideration.

50 The protective nature of the WWC Act and the paramount consideration, results in a 'protective jurisdiction' created by the WWC Act.[60] This area of legislative development extends the common law doctrine of parens patriae, where the State assumes a protective responsibility for vulnerable children.

51 The doctrine of parens patriae evolved in the common law and stems from the ancient jurisdiction of wardship. In the Court of Appeal decision of Re Z (a minor)(freedom of publication), Ward LJ said:

In Re L, Lord Denning MR referred to the jurisdiction of the Court of Chancery, which ‑‑-

derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves ... The child was usually made a ward of Court, and therefore no important step in the child's life could be taken with the court's consent; but that was only machinery. Even if there was no property and the child was not a ward of court, nevertheless the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate.[61]

52 In Re Beth, a case dealing with the question of the disability of a child, Osborn JA noted that the parens patriae jurisdiction of the court is directed to the protection of children who are not legally competent to look after themselves.[62] Citing Brennan J in Marion's case, his Honour said:

The nature of the jurisdiction was stated by Lord Esher in Reg v Gyngall:

The Court is placed in a position by reason of the prerogative of the Crown to act as supreme parent of children, and must exercise that jurisdiction in the manner which a wise, affectionate, and careful parent would act for the welfare of the child.

As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind. So the courts can exercise jurisdiction in cases where parents have no power to consent to an operation, as well as cases in which they have the power.[63]

53 In Re Tilly v Minister for Family & Community Services, Brereton J sets out how decisions as to working-with-children clearances are informed by the parens patriae jurisdiction of the Court, and that protection of children from harm or the risk of harm is at the forefront of the exercise of the protective jurisdiction.[64] The jurisdiction of the Tribunal is protective and not punitive in nature.[65]

54 The doctrine of parens patriae is foundational and relevant as a question of statutory interpretation of the 'paramount consideration'. It is now incorporated by legislation into family law, guardianship, child welfare and child protection jurisdictions across Australia.[66]

55 As Lord Justice Ward observed in Re Z, 'the law does not stand still' and by the evolutionary process, these concepts have developed and been codified as statutory principles, tests, and considerations in these protective jurisdictions; concerned with an overarching objective to protect the welfare or best interests of the child.[67]

56 Mr McIntyre submitted that the expression 'paramount consideration' meant 'more important' or 'to be given priority' rather than 'determinative' or 'overriding.' This was a consequence of the statutory provision and context of the WWC Act. It was not enough to look to other statutes and case law to find how the phrase had been defined. Words did not necessarily have consistent or harmonious definitions across different areas of law.

57 In support of this submission, it was said that the WWC Act required a balancing of the protection of children from physical and sexual harm with the right to work and the freedom of choice of work. The balancing of these competing interests was a very important question. Work was of great significance to an individual, his or her family, and community. It was a serious thing to deny someone access to their chosen field of employment.[68]

58 It was also submitted that the WWC Act accepted that some degree of risk to children was permissible, so long as it was not an 'unjustifiable risk.'[69] Reliance was placed on the decision in Re PJR and Department of Justice, where Morris J said that there was:

an infinite gradation of circumstances from absolutely safe to absolutely unsafe, and a judgment will be required to identify what is 'safe' and what is 'unsafe'. By using the adjective 'unjustifiable', the parliament has recognised this gradation of risk and has rightly put the focus on whether the risk was unjustifiable, having regard to specified matters.[70]

59 While this decision preceded the introduction of s 1A by Parliament, Mr McIntyre argued that the protection of children from physical and sexual harm should not be construed so as to require the refusal of an assessment notice if there is any risk at all to children. If there is a small, but not unjustifiable risk to children, the public interest favours the grant of an assessment notice.

60 In the second reading speech to the Working with Children Amendment (Ministers of Religion and Other Matters) Bill 2014, the Attorney General said as to s 1A:

The High Court has made clear that where legislation is intended to prioritise one right above another, this must be explicit in the legislation. The bill introduces an overarching principle that specifies that the protection of children is to be the paramount consideration when a decision-maker under the act (namely, the secretary or VCAT) is assessing an application or reassessing an individual. The introduction of this principle will put beyond doubt that the protection of children is a more important consideration than any other consideration, such as the individual's right to work.

This will bring the act into line with other legislation that protects children, such as the Children, Youth and Families Act 2005 (Vic), which states at section 10 that 'for the purposes of this act the best interests of the child must always be paramount'.[71]

61 Relevant passages as to the 'paramount consideration' found in the second reading speech are:

(a) The 'paramount consideration' provision is compatible with human rights pursuant to s 28 of the Charter Act;[72]

(b) The effect of the working-with-children provisions is not to punish persons for a criminal offence but to protect children;[73]

(c) The introduction of an over-arching principle was to ensure the protection of children was the paramount consideration when making a decision or acting pursuant to the WWC Act, and it is also consistent with, and promotes, the protective rights of a child set out in s 17 of the Charter Act;[74] and

(d) The purpose and objective of the protection of children was to be the 'paramount consideration'.[75]

62 Review of the second reading speech leads to a number of conclusions:

(a) The 'paramount consideration', expressly operates to prevail over any and all other considerations, specifically including an individual's right to work;

(b) The 'paramount consideration' is of the same genus of 'protective legislation' that protects children, such as the Children, Youth and Families Act 2005 (Vic) ('CYF Act');

(c) The protective nature of the purpose and language of the WWC Act, together with the paramount consideration, have resulted in a 'protective jurisdiction' created by the WWC Act, for the protection of children in the context of persons who wish to work with them; and

(d) This legislative development reflects the historic evolution of the English common law doctrine of parens patriae, where the State assumes a protective responsibility for vulnerable children.

Children, Youth and Families Act

63 The terms of the second reading speech make plain, that the 'paramount consideration' is analogous to that found in the CYF Act, which provides at s 10 that 'for the purpose of this act the best interests of the child must always be paramount'.[76]

64 Section 10 of the CYF Act falls within Division 2 of Part 1.2 thereof, and is entitled 'Best Interest Principles':

(1) For the purposes of this Act the best interests of the child must always be paramount.

(2) When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.

65 The relationship between the doctrine of parens patriae and its subsumption into, or effect on, the 'paramount consideration' in the CYF Act was considered by Bell J in Secretary, Department of Human Services v Sanding.[77] Referring to the paramount consideration of the welfare of the child and an extensive line of authority, Bell J said:

The best interests of the child is a long-standing principle of the parens patriae jurisdiction of the courts. The history of that jurisdiction was examined extensively by Lord Guest in J v C, which concerned 1925 guardianship legislation. His Lordship said the 'dominant consideration has always been the welfare of the child' and cited with approval this statement by Danckwerts LJ in the case of Re Adoption Application 41/16: 'there can only be only one "first and paramount consideration", and other considerations must be subordinate.'[78]

66 In the Federal family law jurisdiction, s 60CA of the Family Law Act 1975 (Cth) ('the Family Law Act') provides:

Child's best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

67 This provision is reiterated in s 65AA of the Family Law Act, in relation to the making of a parenting order.

68 The High Court has held in MW v Director-General of the Department of Community Services, that in questions of custody the paramount consideration, to which 'all others yield', is the welfare of the child.[79]

69 In U v U, the High Court considered s 65E of the Family Law Act which provides in the context of parenting orders, that a court must regard the best interests of the child as paramount.[80] The plurality of the High Court said:

whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.[81]

70 Hayne J, with whom Gleeson CJ and McHugh J agreed, added:

In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular 'proposals' that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.[82]

71 The Family Court, when assessing the correct approach to the Family Law Act has said:

In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.[83]

72 In Smythe, which also considered the Family Law Act, Gee J said:

'[P]aramount' is not equivalent to 'sole'. I agree, with respect to his Honour, that the very use of the word 'paramount' and the phrase 'paramount consideration' implies that there may be other considerations, although, of course, they must be subordinated to the interests of the children.[84]

73 In Priest v Priest, Herring CJ said as to a provision in the Matrimonial Causes Act 1959 (Cth) that 'the Court shall regard the interests of the children as the paramount consideration.'[85] His Honour said:

The fact that the interests of the child are to be the paramount consideration does not mean that his welfare is to be the only consideration. The very use of the word 'paramount' shows that other considerations are not excluded. They are only subordinated.[86]

74 In Patient Review Panel v ABY and ABZ, the Court of Appeal considered a provision in the Assisted Reproductive Treatment Act 2008 (Vic) that 'the welfare and interests of person born or to be born as a result of treatment procedures are paramount.'[87] As to a submission that the panel should be confined to considering whether the initial obstruction was a barrier to treatment, the Court said that '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.'[88]

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'.

...

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.[89]

76 In the Western Australian Court of Appeal decision of Chief Executive Officer, Department for Child Protection v Grindrod (No 2), concerning the equivalent Working with Children registration in that state, Wheeler and Buss JJA said:

Although the CEO must give separate consideration to each of the criteria in pars (a) - (f) of s 12(8), each criterion is not of equal significance in the evaluative exercise which the CEO is required to perform. Section 3 states, relevantly, that in performing a function under the Act, the CEO (or the Tribunal) is to regard the best interests of children as 'the paramount consideration'. It follows from s 3 that the CEO, in performing the function conferred on him or her by s 12(4) and (8), must regard the criterion in par (a) of s 12(8), namely, the best interests of children, as the paramount consideration. If and to the extent that, in any case, a criterion in pars (b) - (f) conflicts with the criterion in par (a), the relevant criterion in pars (b) - (f) must yield.

The criterion in par (a) of s 12(8) will always be relevant and paramount. The other criteria in pars (b)-(f) must always be taken into account, but the weight to be accorded to them will vary, depending on the facts and circumstances of the particular case. In some cases, for example, some of the criteria in pars (b)-(f) may be of little practical significance, when compared with the paramount consideration of the best interests of children.[90]

77 In the later Western Australian Court of Appeal decision of Chief Executive Officer, Department for Child Protection v Scott (No 2), McLure JA said as to the same provision:

Further, the best interests of children in s 12(8)(a) is not just one of a number of mandatory relevant considerations to be taken into account when making the discretionary judgment. The best interests of children is, by virtue of s 3, paramount. In my view that has the following consequence in relation to the discretionary judgment under s 12(4) and (5): the appellant must issue a negative notice if satisfied that the issue of an assessment notice would not be in the best interests of children. This is deliberately phrased in the negative rather than the positive because I do not discern a legislative intention that an assessment notice should not be issued unless the appellant is satisfied that it was in the best interests of children, which suggests advancing their interests.

...

Moreover, I am not persuaded that the risk of harm to children is to be balanced against the civil or other rights of the applicant... The ultimate issue when making a judgment under s 12(4), (5) and (6) is whether the issue of an assessment notice would not be in the best interests of children. In my respectful opinion, the prejudice to an applicant is not a relevant consideration.[91]

78 The foundational authority examining the meaning of 'paramount' is the decision of Lord MacDermott in J v C, where the House of Lords was called to determine the requirement in the Guardianship of Infants Act 1925 (Eng) to regard the welfare of the child as the 'first and paramount consideration' in a decision made under that Act. [92]

Reading those words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules on or determines the course to be followed.[93]

80 In Australia, this was considered by Hallen J in Director General Department of Human Services; Re M:

Of course, and unsurprisingly, there is no definition of either of the terms 'the best interests' or 'the paramount consideration' in the Act. However, judicial statements as to the meaning of the latter term abound. The thrust of Australian authority is that 'paramount' means 'overriding'... The word does not indicate exclusivity.[94]

81 In In the Marriage of B, the Full Court of the Family Court considered the operation of this principle in family law proceedings.[95] The Court set out the steps to be taken under the applicable legislative scheme. The Court started from the essential premise that the best interests of the child is the paramount consideration.[96] The wording of the provisions makes clear that the Court 'must consider' various matters, as set out in the subsection, which the Court is required to consider to the extent that they are relevant to the particular case.[97] Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the child. [98]

Applying the paramount consideration and the public interest test

82 It is notable that the unjustifiable risk test applies to all categories of applications under the WWC Act.[99] There are a total of 12 relevant considerations that apply to the unjustifiable risk test in each category.

83 The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad, and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration - the protection of children from sexual and physical harm - is at the very core of the public interest test.[100]

84 The protection of children from harm is the paramount consideration. Essentially, this means that after considering all of the relevant matters, the risk to children posed by the applicant as assessed by the Tribunal or Secretary must be found to be negligible or nil, as any higher assessment of the level of risk to children will offend the paramount consideration and will be unjustifiable. The need of the applicant to obtain employment will be overridden by the legislative direction to protect children from an unjustifiable risk of harm arising from the applicant.

85 Under s 148(2A) of the VCAT Act, leave to appeal from a decision of the Tribunal can be granted only if the Court is satisfied that the appeal has a real prospect of success.[101]

86 In an amended notice of appeal, the Secretary relies on two grounds of appeal. They are in substance that:

(a) When considering whether it was satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children under s 26A(3) of the WWC Act, the Tribunal asked itself the wrong question and did not assess the likelihood of future threat to a child by analysing the chance and nature of any future threat; and

(b) The Tribunal misconstrued the paramount consideration as applying only to the Secretary; failed in substance to give paramount consideration to the protection of children, and to have regard to a mandatory relevant consideration.

87 In reviewing a Tribunal decision, the Court should adopt a 'practical as well as principled restraint'. As the Court of Appeal said in a recent decision under the WWC Act:

Under s 148 of the VCAT Act, this Court's jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a 'significant constraint' upon the role of the Court in reviewing a Tribunal's decision. This 'practical as well as principled restraint' means that the Court 'will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts'. Hence, the reasons of the Tribunal for the decision under review 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. The reality is 'that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'. We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal's reasons, bearing the foregoing principles steadily in mind.[102]

Ground 1 - the likelihood of a future threat to a child

88 The Secretary submitted that the Tribunal had misconstrued and misapplied s 26A(3)(h) of the WWC Act in summary for the following reasons:

(a) the Tribunal failed to assess the likelihood, in terms of chance, of a future threat to a child;

(b) the Tribunal was unable to weigh the potential harm to a child against the probability of that harm occurring;

(c) the Tribunal failed to assess the chance of future threat caused by Mr McIntyre or the seriousness of the potential harm;

(d) the Tribunal incorrectly framed the question whether Mr McIntyre posed a future threat to a child in a binary way;

(e) the Tribunal misconstrued the test by addressing whether the Tribunal considered that there was 'a likelihood' of future threat rather than 'the likelihood' of a future threat to a child;

(f) the Tribunal did not properly assess whether any risk posed by Mr McIntyre was an unjustifiable one within the meaning of s 26A(3) and in its application of the 'public interest' test in s 26A(5) of the WWC Act; and

(g) the Tribunal could not as a matter of logic have assessed the level of future threat to a child as zero.[103]

(a) the Tribunal did not apply the wrong test under s 26A(3)(h) of the WWC Act;

(b) the Tribunal engaged in a careful and comprehensive assessment of all of the evidence before it to determine the likelihood or chance of future harm to children, including the seriousness of the potential harm;

(c) the Tribunal was not required to assess the threat level as 'low', 'medium' or 'high';

(d) the Tribunal did not make its assessment of likelihood on the balance of probabilities; and

(e) even if there was error, it was not material to the outcome.

90 The Tribunal's path of reasoning shows that the Tribunal did actively address, and turn its mind to whether Mr McIntyre posed any risk to children.

91 Under the heading '(h) the likelihood of future threat to a child caused by the applicant', the Tribunal discussed the evidence and stated its conclusions.[104] It also considered whether there was an unjustifiable risk to the safety of children as required by s 26A(4) of the WWC Act.[105]

92 The Tribunal referred to his criminal history as 'an unenviable one', and 'of great concern'.[106] It said that when an individual has a history of offending against children, 'great caution must be exercised by the Tribunal'.[107]

93 These statements make clear that the Tribunal did consider that in the absence of countervailing circumstances, there was a likelihood or chance that a future threat to a child might be caused by Mr McIntyre.

94 There were however, countervailing circumstances that in the Tribunal's view operated to mitigate the risk. They were:

(a) the offending took place between 27 and 14 years ago;[108]

(b) there had been a very lengthy period with no offending;[109]

(c) over this period, Mr McIntyre almost single-handedly raised five children;[110]

(d) despite stressors, he did not reoffend;[111]

(e) he had now demonstrated that he can control his temper;[112]

(f) he was mortified about what he had done to his daughter and had learnt a salutary lesson;[113]

(g) his sexual offending was properly characterised by Judge Villaneuve-Smith, the sentencing Judge, as the product of mutual affection, and was not a case of exploitation. It was not predatory;[114]

(h) there had been no further offending of any description for many years;[115]

(i) DHHS was confident that there would be no repeat of the reckless offending that caused injury to his seven year old daughter;[116]

(j) DHHS recorded that significant safety had been demonstrated, and the child did not feel scared to be at home;[117]

(k) the children's schools raised no concerns about the children's safety in their father's care, and provided consistent feedback that the father was highly supportive of his children;[118]

(l) Mr McIntyre had been positively and actively engaged with his own children, the children of his partner and those of his sister;[119]

(m) his own conduct over the last 14 years had been blameless;[120]

(n) he was in a supportive and loving relationship, and was respectful and caring putting others first;[121] and

(o) he presented a number of references and had a supportive character witness.[122]

95 In simple terms, the Tribunal found that the inherent risk to a child resulting from Mr McIntyre's conviction in 1991, and subsequent criminal history was negated by the positive factors that it listed.

96 As to the submissions made by the Secretary, it is not correct to say that the Tribunal failed to assess the likelihood of a future threat to a child. It did so, and concluded that the countervailing circumstances lessened and ultimately cancelled out the inherent risk associated with Mr McIntyre's past criminal behaviour. The Tribunal was able to weigh the potential harm to a child against the responsibility of that harm occurring.

97 In terms of the indicia discussed in ZZ, the Tribunal's evaluation of risk was rational, objective and evidence based.[123] It was not arbitrary, and it was a proportionate decision in the circumstances.[124] The risk which arose from Mr McIntyre's past criminal behaviour was offset by the positive factors which the Tribunal listed. The Tribunal's risk assessment was an evaluative judgment that the giving of the notice would not pose an unjustifiable risk to the safety of children.[125]

98 I reject the submission that the Tribunal approached its task in a binary fashion. The Tribunal correctly stated that it must make its own assessment of the threat caused by Mr McIntyre based on all the material before it.[126] Its decision was evaluative and multi-factorial. It highlighted its concern about his criminal history, and the caution needed because of his history of offending.[127] However, the mitigating factors listed above negated the risk in the Tribunal's view.

99 I also reject the Secretary's submission that the use by the Tribunal of the indefinite article 'a' rather than the definite article 'the' to qualify the word 'likelihood' found in s 26A(3)(h) of the WWC Act showed that it had erred.

100 The Tribunal correctly set out the consideration found in s 26A(3)(h).[128] It held that it must make its own assessment of 'the threat caused by Mr McIntyre', and that it had 'concerns about the likelihood of repetition'.[129]

101 While the Tribunal was satisfied that 'Mr McIntyre does not pose a threat', and that there was no evidence on which it could find that there was 'a likelihood of future threat posed by Mr McIntyre towards a child,' this did not mean that the Tribunal adopted the wrong test. Rather, it represented a conclusion following the evaluative process adopted by the Tribunal. After taking into account the countervailing circumstances, the Tribunal determined that Mr McIntyre did not pose a threat, and that there was no evidence before the Tribunal from which the Tribunal was able to conclude that there was a likelihood of future threat. Much more important than the use of the definite or indefinite article is the intellectual process adopted by the Tribunal.

102 As I have said, the Tribunal weighed up the conflicting factors ultimately concluding that Mr McIntyre did not pose a future threat to the safety of children and that his engagement in child-related work did not pose an unjustifiable risk to the safety of children.

103 It is well established that the decision of an administrative decision maker such as the Tribunal should not be 'construed minutely and finely with an eye keenly attuned to the perception of error,'[130] nor be 'scrutinised upon over-zealous judicial review'.[131] Rather, the Court must read the Tribunal's reasons fairly, in context and as a whole.[132] A court 'should not expect the degree of exactitude of language which might be found in the reasons for judgment of a court',[133] and should 'avoid overly pernickety examination' of the tribunal's reasons.[134] Nor should the court examine briefly stated reasons by an expert tribunal 'in an overzealous drawing of inferences in order to disclose some supposed error'.[135]

104 For the reasons given, I reject the Secretary's submission that the Tribunal asked the wrong question or did not assess the likelihood of future threat to a child. The Tribunal engaged in a detailed assessment of the evidence before it to determine the likelihood of future threats. It was satisfied that there was no evidence before it upon which it could find that there is a likelihood of future threats posed by Mr McIntyre towards a child. Ultimately it was satisfied that Mr McIntyre did not pose a threat to children, and that there was no unjustifiable risk to children if he were to work and contribute to the community.[136]

Ground 2 - The Tribunal misconstrued the paramount consideration; failed to give paramount consideration to the protection of children from harm; and failed to have regard to a mandatory relevant consideration

106 The Secretary submitted that the Court should conclude that the Tribunal failed to give effect to the paramount consideration set out in s 1A of the WWC Act for the following main reasons:

(a) the Tribunal did not consider the predominant purpose in its reasons;

(b) the Tribunal did refer to the predominant purpose in its decision , but only to say that it bound the Secretary; and

(c) the Tribunal did not state in its decision that the predominant purpose bound the Tribunal.

107 Mr McIntyre submitted that the Tribunal did have regard to the predominant purpose set out in s 1A of the WWC Act for the following reasons:

(a) the predominant purpose is woven through the whole of the decision; and

(b) the Tribunal's attention was focused on the predominant purpose and gave it genuine and realistic consideration.

108 In Secretary to the Department of Justice and Regulation v VTN ('VTN'), Richards J refused an appeal from the Secretary in which the Secretary alleged an error of law by failing to consider and apply s 1A of the WWC Act, and said:

Again, I must read the Reasons fairly, in context and as a whole, and should not be overzealous in searching for error. Taking that approach, it is clear that the Deputy President's attention was properly focused on the protective purpose of the legislation and that she gave genuine and realistic consideration to the protection of children from harm.

It would perhaps have been preferable for the Reasons to have referred to s 1A, but the provision is not a verbal formula that must be recited like a mantra in reasons for decision. What matters is that VCAT does, in substance, give paramount consideration to the protection of children from harm.

Further, s 1A does not exclude matters other than the protection of children from consideration in assessing unjustifiable risk and the public interest. Indeed, the WWC Act requires that a range of other considerations be taken into account, relevantly here the matters set out in s 26A(3), (4) and (5). Section 1A was inserted into the WWC Act to make it clear that 'the protection of children is a more important consideration than any other consideration, such as the individual's right to work'. Other considerations may still bear on the assessment of whether an identified risk is or is not unjustifiable and whether, in all the circumstances, it is in the public interest to direct that a notice be given. In this regard it is important to recall that a key finding of VCAT in this case was that 'VTN poses a low threat to children'.

I am not satisfied that VCAT failed to give paramount consideration to the protection of children from harm. Indeed, reading the Reasons as a whole, I am positively satisfied to the contrary. The burden of establishing that there was a failure to consider and apply s 1A of the WWC Act rests on the Secretary. It is not enough that VCAT's reasons were expressed so as to suggest the possibility of an error of law. The Secretary had to demonstrate that there was in fact an error of law, and did not discharge that burden here.[137]

109 The Tribunal stated that when the Secretary makes a decision about whether or not to grant an assessment notice, the protection of children from sexual and physical harm is the paramount consideration. While accurate, the statement was inapposite, as Mr McIntyre had committed a Category A offence, and the Secretary was required by law to refuse to give an assessment notice.[138] In addition, the statement was incomplete and omitted to state that the paramount consideration applies to the Tribunal itself. The Tribunal was required to treat the protection of children from sexual or physical harm as the paramount consideration in its decision making.[139]

110 None of this means however that when the Tribunal made its decision it did not act on the basis that protection of children from sexual and physical harm was the paramount consideration. As will be seen from what follows, in fact it did.

111 It is well established that not everything relevant that a decision maker omits to refer to, is to be taken as having been overlooked. However, if something which should have been considered is not referred to, and the nature of the decision suggests that an error is made due to that matter not having been considered, the court may properly draw that inference.[140]

112 While as Richards J said in VTN, it would have been preferable for the reasons to have referred to s 1A and that the paramount purpose applied to the Tribunal, s 1A is not a verbal formula that must be recited like a mantra in reasons for decision.[141] What matters most is that the Tribunal does, in substance, give paramount consideration to the protection of children from harm.[142]

113 The Tribunal's reasons show the Tribunal considered children and their protection and safety at every turn:

(a) the Tribunal's review of Mr McIntyre's criminal history pays particular attention to Mr McIntyre's conduct as it involved a child victim;[143]

(b) the Tribunal gave particular attention to Mr McIntyre's contribution to the nurture and the development of his own children, and those of his sister, partner and friend and his ongoing relationship with them;[144]

(c) the Tribunal carefully considered and gave weight to the reports and assessments made by DHHS, Corrections Victoria and school officers concerning Mr McIntyre's capacity and relationships with children;[145]

(d) the Tribunal noted Mr McIntyre's successful completion of further education, employment and an anger management course;[146]

(e) the Tribunal had the benefit of seeing Mr McIntyre and his partner, a human resources manager, give evidence and be cross-examined as to Mr McIntyre's past and likely future conduct towards children; and

(f) the Tribunal had the benefit of the written statements and views of a number of other witnesses including two of Mr McIntyre's children and his sister.

114 The Tribunal's scrutiny and analysis extended to the comprehensive documentation from DHHS which included:

(a) active consideration of protective concerns about Mr McIntyre;

(b) DHHS assessments of the best interests and safety of his own children including his daughter;

(c) reports including a Child Well Being Report from 2008, which is the last DHHS involvement;

(d) DHHS's assessment of the lack of likelihood of any risk of harm posed by Mr McIntyre to his children and general support;[147] and

(e) the praise of Mr McIntyre by DHHS and schools for his efforts with his own children and engagement with them.[148]

115 I accept as submitted on behalf of Mr McIntyre, that the Tribunal's attention was firmly focussed on the protective purposes of the legislation. The Tribunal gave active, genuine and realistic consideration to the protection of children from harm drawing on the evidence and cross-examination of Mr McIntyre and his partner, and decades of documentary evidence from the police, DHHS and Corrections Victoria.

116 The Tribunal actively reviewed the sentencing remarks of Judge Villeneuve-Smith as to the gravity of Mr McIntyre's conduct in the context of the protection of a young girl, and the mitigating factors relating to the offending.[149]

117 The Tribunal found that there was no evidence upon which it could find that there was a likelihood of future threat posed by Mr McIntyre toward a child.[150] It found that:

(a) the reasonable person would consider that Mr McIntyre was now a role model for other fathers;[151]

(b) the reasonable person would not hesitate to allow his or her child to have direct contact with Mr McIntyre whilst he was engaged in any type of child-related work;[152]

(c) the reasonable person would be impressed by the evidence of Mr McIntyre's character witnesses;[153]

(d) Mr McIntyre's engagement would not pose an unjustifiable risk to the safety of children;[154]

(e) Mr McIntyre has turned his life around, from dysfunctional beginnings to be an individual warranting admiration within the community;[155]

(f) it is in the public interest for Mr McIntyre to engage in meaningful work which he enjoys and to contribute to the community;[156] and

(g) Mr McIntyre does not pose a threat to children and there is no unjustifiable risk to children in his doing so.[157]

118 In my view, on a fair reading of the Tribunal's reasons, it is plain that the predominant concern of the Tribunal was the protection of children from sexual and physical harm. It was not overlooked. The paramount consideration in s 1A of the Act was examined by the Tribunal and given effect from a number of different standpoints. It pervades the Tribunal's reasons. It is woven into the Tribunal decision. The paramount consideration was at the very heart of the Tribunal's decision.

120 For the reasons given, both grounds relied on by the Secretary fail. I will allow leave to appeal on both grounds, but dismiss the appeal.

[1] McIntyre v Secretary to the Department of Justice and Regulation [2018] VCAT 1041 (DP Lambrick) ('the Tribunal decision').

[40] [2013] VSC 267 [134] ('ZZ').

[44] [2011] VSC 227; (2011) 34 VR 23, 36 [72].

[47] AB v Western Australia (2011) 244 CLR 390, 398 [10], citing Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390, 397 (Dixon CJ), quoted in A_&B v Children's Court of Victoria_ [2012] VSC 589 [74].

[48] Ibid, citing CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408.

[49] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 516-521 [41]-[52] (French CJ and Crennan J), 525-536 [72]-[106] (Gummow and Hayne JJ).

[50] H v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393, 406-407 [50]-[51] (Moore, Kenny and Tracey JJ) (citations omitted).

[51] Acts Interpretation Act 1901(Cth) s 15AB; Interpretation of Legislation Act 1984 (Vic) s 35(b); Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16; (2012) 286 ALR 466, 472 [22], 480 [52] (French CJ, Crennan and Kiefel JJ); K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237 CLR 501, 521-522 [50]-[53] (French CJ).

[52] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, 518-521 [47]-[52] (French CJ and Crennan J) 525-536 [72]-[106] (Gummow and Hayne JJ); Australian Finance Direct Ltd v Director of Consumer Affairs Victoria [2007] HCA 57; (2007) 234 CLR 96, 108-109 [19]-[22] (Gleeson CJ, Gummow, Hayne and Crennan JJ); AB v Western Australia (2011) 244 CLR 390, 398 [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ) (Citations omitted).

[53] AB v Western Australia (2011) 244 CLR 390, 398 [10] (French CJ, Gummow, Hayne, Kiefel and Bell JJ) (Citations omitted); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, 264-265 [31] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193, 206-208 [30]-[34] (Gleeson CJ, Gummow, Hayne and Heydon JJ); H v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393, 406 [50] (citations omitted).

[54] United Nations Convention on the Rights of the Child ('the Convention') entered into force on 20 November 1989, ratified by Australia on 17 December 1990 (entered into force 16 January 1991).

[55] Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[56] DPP v Kaba [2014] VSC 52; (2014) 44 VR 526, 555 [93] (Bell J).

[57] [2006] VSCA 85; (2006) 15 VR 22, 39 [75]; quoted in Medical Board of Australia v Kemp [2018] VSCA 168; A B v C D [2017] VSCA 338; Kemp v Medical Board of Australia [2017] VSC 691; Arora v Melton Christian College [2017] VCAT 1507; Tikiri Pty Ltd v Fung (2016) 50 VR 786; Holloway v Commonwealth of Australia (2016) 50 VR 417; Ryan v State of Victoria [2015] VSCA 353.

[60] See PQR v Secretary, Department of Justice and Regulation (No 2) [2017] VSC 514 [56] (Bell J).

[61] [1995] 4 All ER 961, 968, citing Re L [1968] 1 All ER 20, 24.

[62] [2013] VSC 189; (2013) 42 VR 124, 147 [115].

[63] [2013] VSC 189; (2013) 42 VR 124, citing Secretary, Department of Health and Community Services v JWB ('Marion's case') [1992] HCA 15; (1992) 175 CLR 218, 279-80.

[64] [2015] NSWSC 1208 [52]-[53].

[65] Commissioner for Children and Young People v FZ [2011] NSWCA 111 [61] (Young JA). See also CGB v Children's Guardian [2018] NSWSC 776 [32] (Harrison AsJ).

[66] See AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69 [75].

[67] [1995] 4 All ER 961 [972] (citations omitted).

[69] See Maleckas v Secretary, Department of Justice [2011] VSC 227 [43] (Kyrou J).

[70] [2006] VCAT 2455; (2006) 25 VAR 336, 339 [10].

[71] Victoria, Parliamentary Debates, Legislative Assembly, 7 August 2014, 2651, 2653 (Robert Clark, Attorney-General).

[74] Ibid 2653. Section 17(2) provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

[76] Parliamentary Debates (n 71) 2653.

[77] [2011] VSC 42; (2011) 36 VR 221.

[79] [2008] HCA 12; (2008) 82 ALJR 629 (Gummow, Heydon and Crennan JJ), citing McKee v McKee [1951] AC 352, 365 (Lord Simonds for Lords Merriman, Simonds, Morton, Radcliffe and Tucker)

[80] [2002] HCA 36; (2002) 211 CLR 238 (this provision has now been repealed).

[81] Ibid 262 [89] (Gummow and Callinan JJ; Gleeson CJ, McHugh and Hayne JJ agreeing).

[82] Ibid 284-285 [171] (emphasis in original).

[83] In the Marriage of B (1997) FLR 11, 72 (Nicholson CJ, Fogarty and Lindenmayer JJ).

[84] In the marriage of Smythe [1983] FamCA 27; (1983) 48 ALR 677, 687-688_._

[85] [1965] VicRp 71; [1965] VR 540.

[86] Ibid 547 (Herring CJ in dissent. See also Dean J 554-555; and Gowans J 560).

[87] [2012] VSCA 264; (2012) 37 VR 634. See Assisted Reproductive Treatment Act 2008 (Vic) s 5(a).

[89] Ibid 648-649 [74], [76] (citations omitted).

[90] [2008] WASCA 28; (2008) 36 WAR 39, 55-56 [70]-[71].

[91] [2008] WASCA 171; (2008) 38 WAR 125, 130-131 [17], [23] (citations omitted).

[92] [1969] 1 All ER 809.

[94] [2011] NSWSC 369, [89] (citations omitted).

[95] (1997) FLR 11.

[99] For category A applications, the test is applied by the Tribunal under s 26A(3) and (4). For category B applications, the Secretary applies the test under s 13(2)-(3) of the WWC Act, while the Tribunal does so under s 26B(1)-(2). For category C applications, the Secretary applies the test under s 14(2)-(3), and the Tribunal does so under s 26C(1) and (2) of the WWC Act.

[100] Secretary to the Department of Justice v LMB [2012] VSCA 143, [25], [28] (citations omitted); PJR v Secretary to the Department of Justice (2006) VAR 336, 339 [9].

[101] Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017 (Vic) s 31(3) commenced 1 May 2018 superseding the test in Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.

[102] Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36] ('OUX') (citations omitted).

[103] Relying on Williamson v the Director of Public Prosecutions [2001] 1 Qd R 99; New South Wales v Nason (No 2) [2016] NSWSC 1804, [41] (Batton J).

[104] Tribunal decision [61]-[75].

[125] Tribunal decision [67], [75], [87], [89].

[130] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 ('Wu Shan Liang'); OUX (n 102) [36].

[131] Wu Shan Liang (n 130) 272; Caruso v Kite [2008] VSC 207, [32] (Kyrou J) (citations omitted).

[132] Shock Records Pty Ltd v Jones [2006] VSCA 180, [85] (Bell AJA, Callaway and Ashley JJA agreeing).

[133] Dudas v Monash City Council [2012] VSC 578, [106] (Kaye J) (citations omitted).

[134] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 136 [64] (Kirby J).

[135] Vegas Nominees Pty Ltd v Werribee Sports and Community Club Inc (1994) 14 AATR 73 (Ashley J).

[137] Secretary to the Department of Justice and Regulation v VTN [2018] VSC 296, [43]-[46] ('VTN') (citations omitted) (emphasis in original).

[140] Charnley Glen v Boroondara City Council [2000] VSC 340 (Balmford J); referring to Yendall v Smith Mitchell & Company Ltd [1953] VicLawRp 35; [1953] VLR 369, 379 (Sholl J); Harrison v Mansfield [1953] VicLawRp 38; [1953] VLR 399, 404 (Sholl J); B. Marsh Nominees Pty Ltd v City of Moonee Valley & Ors [2004] VSC 237, [25] (Osborn J).

[143] Tribunal decision [9]-[11], [16].

[144] Ibid [1], [19], ]20], [23], [26]-[30], [34], [51], [60], [74], [76], [77], [84]-[86].

[145] Ibid [27], [30], [32], [33], [35], [50], [53]-[55], [71]-[75], [88].

[146] Ibid [1], [56], [58], [59], [90].

[147] Ibid [19], [27]-[30], [50]-[56].

[149] Ibid [8]-[10], [45], [65], [69].