Unfairness to the Applicant: an unnecessary application

1. The Applicant has made an application for an assessment notice because some schools, including government schools, have made it a condition of engagement that he have, or be accompanied and supervised by a person who has, a "working with children check" (that is, an assessment notice). In the course of the hearing, he noted that no such requirement has been imposed by DHHS.
2. Although the Applicant said he has been frank about the fact he does not have an assessment notice and has been able to arrange, if necessary, to be accompanied by his partner or a friend who do have assessment notices, it is an inconvenience he would prefer to avoid. He says he has no interest in obtaining an assessment notice for any other purpose. He does not want, or intend, to engage in child-related work. I have no reason to doubt what he says about this.
3. It is acknowledged by the Respondent that the Applicant's work, as described in paragraph 2, is not child-related work, as that terms is defined in s 9 of the WCA:
   • _(1) For the purposes of this Act, child-related work is work - _
     • (a) at or for a service, body or place, or that involves an activity, specified in subsection (3); and
     • (b) that usually involves direct contact with a child.

(1A) For the purposes of this Act, work is not childrelated work by reason only of occasional direct contact with children that is incidental to the work.

1. The Applicant's snake catching activities do not fall within the services, bodies, places or activities listed in the twenty subcategories specified in s 9(3). None of the other specific exemptions or inclusions in subsections (4) - (9) apply to the Applicant.
2. Parliament, through the WCA, sets a very high bar for suitability to work with children if an applicant has been charged with sexual offences against children, even if, as was the case here, the charges were ultimately dismissed. In such a case, a person cannot receive an assessment notice if the Secretary is satisfied that giving them a notice would not pose an unjustifiable risk to the safety of children, having regard to their past conduct.
3. In considering whether a person poses an unjustifiable risk to the safety of children, it is necessary to consider whether a reasonable person would allow his or her child to have direct contact with them whilst they were engaged in child related work.[1] This test, and the unjustifiable risk test more broadly, is not limited to the type of child-related work an applicant intends to engage in. An assessment notice, once granted, is a clearance for engaging in any child-related work. Conditions cannot be put on an assessment notice limiting the contact with children to particular types of work, even if applicants have identified a very limited scope of the type of child-related work as that they wish to engage in. Again that means the test is very stringent. An assessment notice cannot be granted unless the Secretary is satisfied an applicant does not pose an unjustifiable risk to children if engaging in any type of child-related work.[2]
4. For people convicted of sexual offences, whether against children or adults, or serious violent or drug offences, the burden is even higher. It is not enough for the Secretary to be satisfied they do not pose an unjustifiable risk to children if engaged in any type of child-related work. They cannot receive an assessment notice unless they establish that giving them an assessment notice would not pose an unjustifiable risk to the safety of children, having regard to their past criminal conduct and their conduct and circumstances more generally.[3]
5. Whilst a person's criminal history may well be a relevant consideration for those responsible for deciding whether to retain a person to engage in non-child-related work, working with children assessment notices should not be used as a means of establishing "good character" for non-child-related work. If a person is refused an assessment notice and issued with a negative notice, that is not simply because they have a criminal history. The criminal history triggers an enquiry. But the refusal of an assessment notice is the product of a finding of unjustifiable risk to the safety of children, made in accordance with the statutory criteria under the WCA. A refusal of an assessment notice does not amount to a finding that a person is unsuitable for employment in non-child-related work. An assessment notice should not be used as a precondition to employment generally, or as an arbitrary barrier which prevents a person from being considered for employment in non-child-related work.
6. Section 1(1) declares the main purpose of the WCA to be:

"to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them are subject to a screening process."

"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."

1. They are clear, and laudable purposes. Those responsible for administering the Act should not allow an assessment notice to be used, or stand by as the requirement to produce it is imposed, for non-child-related work purposes.
2. The process for applying for an assessment notice, the time and cost involved, not only to applicants but also to Respondents, is considerable.
3. The financial cost to the Department of Justice and Community Safety, and so, to the community, of assessing and processing applications is significant. That is particularly so in cases where applicants have a criminal record, or a history of involvement by DHHS with their families and where, as a consequence, criminal records, police briefs and DHHS files must be examined.
4. Although the financial cost for an applicant may not be as high, there is an emotional or social cost involved. Again, that is particularly so for applicants who have a history of involvement with the criminal law, or with DHHS and who, as a result, risk being refused an assessment notice and being issued instead with a negative notice.
5. The legal consequences of the issue of a negative notice are significant. A person cannot apply for, or engage in, child-related work if they have been issued with a negative notice. It is an offence to do so.[4] They cannot reapply for five years after a refusal.[5]
6. As was the case with this Applicant, a person may not be aware that they do not need an assessment notice for the work they are, or are contemplating, doing until they have been issued an interim negative notice. They cannot then withdraw their application. It must proceed to determination. If that results in the issue of a negative notice, they are prohibited from working with children, or re-applying for an assessment notice for 5 years.[6]
7. For these reasons, people should not be required to apply for an assessment notice if the work they are doing is not child-related work. If it appears to the Respondent that an applicant does not need an assessment notice because the work they have identified in their application as the reason for applying is not child-related work, the Respondent should advise them that an assessment notice is not required for their stated purpose and allow them the opportunity to withdraw their application before facing the consequences flowing from the issue of an interim negative notice.
8. Similarly, if a person makes an application where they are not engaged in child-related work but it appears they want an assessment notice as a form of "good character certificate", whether for their own purposes or at the request of an employer, or prospective employer, they too should be advised that an assessment notice is not required for their stated purpose and be allowed to withdraw their application without penalty, before risking receiving a negative notice.
9. It is, in my view, quite wrong for a school, or any person or organisation, to require a person to have an assessment notice for any activity that does not fall within the definition of child-related work.
10. It is particularly concerning to be told, as I was in this hearing, that the Respondent is aware it is standard practice in some schools, including some government schools, to require an assessment notice for non-child related work. It is reassuring, but perplexingly inconsistent, to hear that not all schools require prospective employees or contractors to provide a legally unnecessary certificate in respect of non-child-related work. It is equally reassuring, but perplexing, to be told the Applicant has not been asked to produce an assessment notice when tasked with removing a snake from DHHS homes.
11. Citizens are entitled to expect consistency, transparency and fairness in their dealings with government departments and institutions such as schools which receive substantial government funding. People are entitled to expect that all government departments and institutions receiving government funding should not impose a condition to have an assessment notice if it is not required by law.
12. Although the Applicant does not need an assessment notice for his snake catching activities, he is nonetheless disadvantaged, and unnecessarily so, by these proceedings. The Applicant has had to go through a protracted and costly process, applying for an assessment notice he did not need. For the reasons set out below, I have refused his application for review. He now has the stigma of a refusal of an application and is the holder of a negative notice. In my opinion, he should not have been put in this position by schools under the authority of the Department of Education and Training and he should have been advised by the Respondent, before his application proceeded to the Interim Negative Notice stage, that he did not need an assessment notice and been given an opportunity to withdraw his application.

1. The Applicant made his initial application for an assessment notice on 5 March 2018.
2. Upon receiving the application, the Respondent conducted a police records check pursuant to s 11(1)(a). That revealed that he had been charged with five charges of indecent assault. The offences were alleged to have occurred in 1990 and 1991, in respect of a single complainant. The complainant was the younger sister of the Applicant's then partner. She was aged between 12 and 13 and the Applicant was aged between 22 and 23 at the time of the conduct complained of. Charges were not laid until 2001. Following a contested hearing, the Applicant was convicted on four of the charges by the Geelong Magistrates' Court on 16 August 2001 and sentenced to a total effective sentence of 2 months imprisonment wholly suspended for 18 months and fined a total of $2,500. The fifth charge was dismissed.
3. On appeal in the Geelong County Court on 18 December 2001, the orders of the Magistrates' Court were set aside and the four charges in respect of which the Applicant had been convicted by the Magistrates' Court were dismissed.
4. This made the application a Category C application, by reason of the operation of s 14(1)(d). It provides:
   • _(1) An application is a category C application for the purposes of this Act if it is in respect of a person - _

(d) who has at any time (whether before, on or after the commencement of this section) been charged with an offence specified in clause 2 of Schedule 3 if the charge has been finally dealt with other than by way of a conviction or a finding of guilt.

1. The charges of indecent assault are offences specified in clause 2 of Schedule 3 of the WCA. The dismissal of the charges on appeal by the County Court constitute a final dealing with the charges other than by way of a conviction or finding of guilt.
2. The police record check also revealed a charge of breaching an intervention order had been found proven in 2008. The Applicant was fined $100 without conviction.
3. The Applicant responded to the invitation to make a written submission. He advised that the indecent assault charges were dismissed as a result of the repeated failure of the complainant to attend the appeal. He asserted the allegations were false and were made many years after the event in order to prevent him having contact with his children. He said he had been involved, at the time the charges were laid, in protracted and acrimonious Family Court proceedings with his former partner, the complainant's sister, in relation to contact with his children.
4. The Respondent conducted further inquiries. It requested further information on the indecent assault charges from the Office of Public Prosecutions (OPP), pursuant to s 11(1)(c) and s 21AA(1)(b) of the WCA. No information was available, as the OPP advised the file had been destroyed seven years after the conclusion of the proceedings, in accordance with internal OPP policy.
5. Information was also sought on any child protection involvement with the Applicant from DHHS, pursuant to s 11(3).
6. DHHS advised there was "extensive child protection involvement with the Applicant and his five children and three step children due to his history of sexual offending". It outlined a number of allegations that he was a risk to his children and had assaulted the children or exposed them to inappropriate material but advised there was "no current child protection involvement" with the Applicant.
7. On 17 August 2018, the Respondent issued the Applicant with an 'Interim Negative Notice' and invited him to respond by 23 September 2018.
8. One day after the deadline to respond, the Applicant emailed the Respondent saying that he had run out of time as he had been waiting for psychological assessments which were difficult to obtain.

1. On 25 September 2018, the Respondent issued the Applicant with a Negative Notice.
2. The Respondent's assessment was that there was an appreciable level of risk associated with the non-conviction matters. It noted the allegations were of indecent assault of a pre or early adolescent girl in 1990 or 1991 and, following a hearing in the Magistrates' Court, the Applicant was convicted and sentenced to a term of imprisonment. Noting that the County Court appeal was later successful, the Respondent took into account that there was no hearing on the merits, as the complainant did not attend. There was conflicting material about the reason for the complainant's non-attendance. The Applicant, in his submission to the Secretary, said that it was because the complainant was aware she would have been confronted with contradictory evidence adduced in the Family Court proceedings. The DHHS file recorded the complainant did not attend the County Court because she was heavily pregnant.
3. The Respondent also relied on the following DHHS assessments. First that, following an investigation after the Applicant was charged and convicted of the indecent assault charges in the Magistrates' Court, protective concerns in relation to the Applicant's own children were substantiated and he was not allowed to have unsupervised access with the children born of the relationship with the complainant's sister. Secondly, multiple other reports between 2004 and 2010, some of which alleged sexual penetration and indecent assault of the Applicant's children and stepchildren and of the Applicant viewing pornography with the children. It was noted that, whilst the children did not, when questioned by police of DHHS workers, disclose sexual penetration, they did report being exposed to pornographic or inappropriate material whilst in his care. There were various periods when the Applicant was not permitted to have unsupervised contact with some or all of the children.
4. The Respondent took into account the Applicant's response, detailing what he said was a long history of having to fight false allegations made against him by each of his former partners to deny him access to his children, in addition to the dismissal of charges in the County Court. He said, after protracted Family Court proceedings relating to access to his oldest children (those of the relationship with the complainant's sister), he had been assessed as not posing a risk to his children by a court-appointed psychologist and had been permitted to have contact with them. He said the DHHS reports had not resulted in the laying of any other charges or adverse findings. He said he had been compliant with all requirements of courts and DHHS and ultimately was permitted to have unsupervised contact with all his children. Although he indicated he was seeking reports of psychological assessments from the previous Family Court proceedings which indicated he did not pose a risk to children, ultimately he was unable to provide any such reports in time.
5. Notwithstanding the matters advanced by the Applicant, the Respondent concluded that he was satisfied that giving the assessment notice would pose an unjustifiable risk to the safety of children, that a reasonable person would not allow his or her child to have contact with the Applicant if 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 pose an unjustifiable risk to the safety of children. It based its conclusion on the nature and gravity of the indecent assault charges, the fact the charges were dismissed without a hearing on the merits, the number and nature of the protective concerns investigated by DHHS and the fact that, despite there not being any adverse findings about the Applicant from those protective investigations, they were resolved by their mothers agreeing not to allow the Applicant to have unsupervised contact with the children.

1. On 17 October 2018, the Applicant filed an application for review of the Respondent's decision at the Tribunal, stating in his reasons for application that:

"The decision that WWC made was made on incorrect information and does not help my business.

I have better proof now that came in to support my case."

1. The test for determining a Category C application is set out in s 14(2) and (3). It provides:

_(2) The Secretary must give an assessment notice on a category C application unless - _

(a) the Secretary is satisfied that giving the notice would pose an unjustifiable risk to the safety of children having regard to the factors set out in subsection (3); or

(i) a reasonable person would not allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; or

(ii) the applicant's engagement in any type of child-related work would pose an unjustifiable risk to the safety of children.

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

(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct; and

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

(d) in the case of an offence, the sentence imposed for it; and

(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct; and

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it; and

(g) the applicant's behaviour since he or she engaged, or allegedly engaged, in the conduct; and

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

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

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

1. On reviewing a decision to give a negative notice on a Category C application, the Tribunal must determine the application in accordance with s 26C:

(1) In a review of a decision to give a negative notice on a category C application or in relation to a category C re-assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give an assessment notice, having regard to any matters to which the Secretary must have regard under section 14(3).

_(2) VCAT must determine that it is appropriate to refuse to give an assessment notice unless VCAT is satisfied that - _

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

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

(3) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give an assessment notice, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.

1. The test for the Secretary when assessing a Category C application is framed differently from that which applies to Category A and B applications.
2. For a Category C application, the Secretary must grant an assessment notice, unless the conditions set out in s 14(2)(a) and (b) are met. By contrast, for a Category B application, the Secretary must refuse to give an assessment notice unless satisfied that in so doing it would not pose an unjustifiable risk to the safety of children, having regard to the factors set out in s 13(2)(a) - (j). The Secretary must refuse a Category A application unless the conditions in s 12(3) have been met.
3. The conditions set out in s 14(2)(a) and (b) are in the alternative. For a Category C application, the Secretary must give an assessment notice unless the Applicant fails:

1. the unjustifiable risk test set out in subparagraph (a), having regard to the factors set out in s 14(3) relating to the conduct that brought the application within category C in the first place (here the non-conviction charges); or 2. the reasonable parent test set out in s 14(2)(b)(i); or

1. a broader unjustifiable risk test, set out in s 14(2)(b)(ii), that is one not limited to consideration of the factors specifically identified by s 14(3) as relating to the conduct that brought the application within Category C.
2. However, on review to the Tribunal, the criteria by which the Tribunal assesses a Category C application are different. In determining whether it would be appropriate to refuse to give an assessment notice, having regard to the s 14(3) matters relating to the conduct that brought the application within Category C in the first place, the Tribunal must determine that it is appropriate to refuse to give an assessment notice unless satisfied a reasonable person would allow the child to have direct contact with the Applicant whilst engaged in any type of child-related work or the Applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
3. It is also important to bear in mind that, when considering the factors I must take into account under s 26C(2), I must not limit my consideration to the Applicant's current work. I have already noted that he simply wants to keep on catching snakes when requested to do so. He has no intention of engaging in any child-related work and seeks an assessment notice solely for the purpose of being able to satisfy the (unwarranted) requirements of some schools seeking to retain his services to remove snakes. But s 26C(2) requires consideration of the risk were the Applicant to engage in any type of child-related work.
4. This I was told was the first application for review of a Category C application where the Respondent relied on charges finally dealt with other than by way of a finding of guilt or conviction. I was assisted by the provision of the second reading speech of the Attorney General, Mr Pakula, when introducing the amendments that included non-conviction charges as a relevant consideration when assessing an application for an assessment notice.[7] Of assistance for these purposes are the following passages:

"in August 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse tabled its report on 'Working with Children Checks' in the Commonwealth Parliament. This report made 36 recommendations for strengthening and improving the effectiveness of working with children regimes across Australia. Two key aspects of the report's recommendations are that the Commonwealth government facilitating national model, and that consistent standards for working with children checks be adopted by all states and governments.

The Royal commission identified a key limitation in Victoria's scheme was that, unlike all other jurisdictions, Victoria does not consider non-conviction charges

As a non-conviction charge is material that in and of itself may be less credible in nature than a conviction or finding of guilt, the amendment restricts the use of non-conviction charges to the most serious offences listed in clause 2 of schedule 3 to the act and classifies them in category C. This is lowest threshold category, under which the presumption is that working with children check will be granted unless the secretary of the Department of Justice and Regulation is satisfied that giving the working with children check would pose an unjustifiable risk to the safety of children, having regard to the various risk assessment criteria under the act.

The criminal justice system is not infallible, and, as the Australian Institute of Criminology observes, sexual offending against children has one of the highest rates of attrition of any offence, meaning a relatively small proportion of cases progress successfully through the courts. The accepted body of knowledge surrounding abusive behaviours toward children further demonstrates utility of this amendment. The ability for example to consider such charges for very serious offences that may have been dismissed on a technicality, or may not have proceeded because of the impact on the victim, will assist in a more informed assessment of the risk of person may pose to a child.

1. In approaching the evidence therefore in respect of the non-conviction charges, my starting point is that the evidence concerning them may be less credible in nature than would flow from a conviction or finding of guilt. It is important to bear in mind the circumstances which resulted in the charges being non-conviction charges.

1. In addition to s 49 material, which contained all materials relied upon by the Respondent in making the original decision, the Respondent filed further material obtained from DHHS and in relation to the Applicant's criminal history. These materials provided more detail than that available to the Secretary at the time of the decision to issue the Negative Notice, but did not include any new or further allegations.
2. The Applicant filed a report of an assessment conducted by Dr Michael Greenbaum as part of the Family Court proceedings dated 18 August 2004 and a further report from Dr Greenbaum dated 27 September 2018. In his original report, Dr Greenbaum noted he had interviewed the Applicant and his former partner and subjected them to psychological tests. His assessment was based on those interviews and tests. He concluded:

"I was unable to find any evidence from the interviews or psychological testing which would corroborate any paedophilic tendencies.

Without having personally interviewed the children, or having access to information regarding the interviews they have undergone, I am unable to make any judgments on the allegations per se."

1. In his 2018 report, he noted he had not seen the Applicant since the 2005 assessment and had no information as to how he has coped and functioned in the intervening years. Although Dr Greenbaum concluded he did not have any evidence that would preclude the Applicant from having what he described as a "safe working with children's card" he qualified that conclusion by specific reference to the absence of any other information about the Applicant since 2005. In those circumstances, the reports are of limited value. In the Applicant's favour, they contain no affirmative adverse finding. Against that, Dr Greenbaum had none of the DHHS material available to me, nor any information about the Intervention Order breach proceedings. And of course, his report does not address the matters which make this a Category C application, or the test in s 26C which I must apply.
2. At the hearing, the Applicant elaborated on the matters he had previously submitted to the Respondent before the decision to issue the Negative Notice was made. I will refer to these matters below.
3. The allegations on which the indecent assault allegations were based were described in the Victoria Police summary in these terms:

"In April 1990 and March 1991 the victim was staying at her sister's address when she stayed overnight at the address she was indecently assaulted by her sister's boyfriend (applicant). Applicant allegedly touched victim on breasts and has held victim down on floor and pulled his penis out and placed it over her face."

1. The certified extracts from the Magistrates' Court and County Court provided formal proof of the matters outlined by the Secretary when giving the Applicant the opportunity to respond before making the decision to issue a Negative Notice, namely that:

1. the Applicant was convicted of four of the five charges; 2. a total effective sentence of 2 months imprisonment suspended for 18 months and total fines of $1,500.00 were imposed; and

1. on appeal, the Crown having led no evidence, the charges were dismissed.
2. There is conflicting material before me as to why the complainant did not attend the County Court for the appeal. The Applicant asserts it was because she would have been confronted with evidence from the Family Court proceedings which would have challenged the truthfulness of her account. The Respondent points to material from the DHHS file which records the complainant was not prepared to go to court at that time due to the advanced stage of her pregnancy. This was a contemporaneous record.
3. I cannot resolve the conflicting accounts as to why the complainant did not attend court. We will never know what the complainant would have said or how the judge hearing the appeal would have regarded her evidence. We will never know what the Applicant would have said had he chosen to give evidence on the appeal or how the judge hearing the appeal would have regarded his evidence. Nor will we know what the judge would have made of his submissions about the complainant's credibility including her motivation to make false allegations against him. I cannot speculate about what might have happened had the complainant given evidence on the appeal.

1. The starting point when considering what weight is to be given to the non-conviction charges is, at the risk of stating the obvious, that there is no conviction. The charges were dismissed. Generally, a person is entitled to the full benefit of an acquittal. Here, however, the statutory provision expressly displaces that entitlement.
2. The Applicant maintains his denial that the conduct ever occurred.
3. The material before me confirms there were protracted, and apparently acrimonious, Family Court proceedings between the Applicant and the complainant's sister at the time of the conduct alleged. That establishes a temporal, but not a causal connection, between the proceedings and the allegations. It neither proves nor disproves the Applicant's assertion that the complainant made, and maintained on oath, false allegations of such gravity to advance her sister's interests.
4. The Applicant was denied, on a rehearing, the opportunity to challenge the complainant's evidence and have a judge make an assessment of her credibility.
5. Weighing against these considerations are the following. There was a hearing on the merits in the Magistrates' Court. The complainant gave evidence and was cross examined. The Applicant's defence to the allegations, that they were falsified in order to support the complainant's sister in her attempts to deny the Applicant access to the children, was rejected. Or, to put it in terms of the onus of proof, the Applicant's defence did not create a reasonable doubt as to the truthfulness and reliability of the complainant's account in respect of the four charges. The court extract records the fifth charge was dismissed because there was no evidence led in support of it. In other words, it was dismissed due to absence of evidence, not due to an adverse credit finding in respect of the complainant's evidence.
6. It is proper to have regard to the sentence imposed as a measure of the gravity of the conduct. The Applicant was sentenced to a term of imprisonment. A suspended sentence is properly to be regarded as a term of imprisonment. Imprisonment is the most serious punishment available and can only be imposed if all other sentencing options have been considered and rejected as insufficient to mark the gravity of the conduct.
7. Although the complainant did not attend the appeal, she was prepared to and did attend the Magistrates' Court and give evidence. That is relevant, in itself, and also because it is now recognised that many of the practices and procedures of the criminal law then in operation acted as positive disincentives to complainants giving evidence in cases of sexual assault. This last point ties in with the explanation given by the Attorney General when introducing the amendments to the WCA to allow non-conviction charges to be taken into account, to which I have earlier made reference.
8. Since 2001, there have been significant changes in the way cases alleging sexual abuse are dealt with. They include arrangements for complainants to give evidence from a place other than the courtroom, away from the physical presence of an accused, greater judicial control over improper and harassing questioning, legal recognition of the irrelevance of evidence about a complainant's other sexual activity and limitations on the number of times a complainant can be required to give evidence, including by allowing for a recording of a complainant's evidence at the initial hearing to stand as their evidence at any subsequent hearing.[8] There are mandatory directions applicable to magistrates and judges as fact finders as well as to juries, designed to dispel common misconceptions about sexual assault generally and child sexual assault in particular. They include directions that there is no typical way for a person to respond to sexual assault, that the absence of evidence of resistance, injury, forensic evidence or immediate complaint are common and that delay in disclosure and staged disclosure are common in cases of child sexual assault.[9] These changes have been prompted by a legislative recognition that sexual assaults against women and children are prevalent, under-reported, often committed by persons known to the victim and are unlikely to leave physical signs.[10]
9. Although clearly, I cannot and do not give the allegations which gave rise to the charges which were found proven and then dismissed on appeal as much weight as could properly be given to them if the convictions stood, for these reasons, they are deserving of being given some weight.

1. The DHHS records reveal allegations of child abuse including sexual abuse, grooming, exposure to pornography and family violence in respect of the Applicant's children. He has three daughters of his relationship with the complainant's sister, a fourth daughter, born of a subsequent relationship and a son, born of a further subsequent relationship. There were 12 separate notifications by DHHS between January 2001 and February 2011. One of those, an allegation of animal cruelty soon found to be unwarranted, can be put aside. So, too can one where an accidental injury to the Applicant's youngest child was satisfactorily explained.
2. Of the remaining ten notifications, the first four, between January 2001 and June 2004, related to the Applicant's three eldest daughters. One, the next in time, in March 2005, concerned the Applicant's youngest, as well as his three older daughters. Three further notifications, in February 2007, June 2007 and June 2008 concerned the youngest daughter only. The remaining three notifications, between July 2007 and February 2011 related to the Applicant's son. The relevant parts are summarised below.

1. January-July 2001: DHHS was notified that the Applicant had been charged with indecent assault (the non-conviction charges discussed above). There was also an allegation the three eldest daughters were behaving inappropriately due to the Applicant's parenting. No evidence of abuse by the Applicant was found. Protective measures, given the nature of the indecent assault allegations, were addressed sufficiently by the mother's assurance she would, consistently with Family Court orders to that effect, not permit the Applicant to have unsupervised access to his daughters and DHHS closed the case. 2. October 2001: A notification was received that the three eldest daughters were not being supervised while having access with their father, as required by the Family Court orders, and were at risk of sexual abuse. DHHS found there was no information to suggest that the children were at an immediate risk of harm as they were with their mother.

1. November 2001: DHHS received a notification that the Applicant had been convicted of the indecent assault charges. Two separate notifications were received concerning disclosure by two of the elder daughters that the Applicant had been touching them inappropriately and sleeping with them. The children were interviewed by Victoria Police's Sexual Offences and Child Abuse Unit (SOCAU), and assessed as "bright and authentic". No charges were laid. The mother advised she had terminated contact between the children and the Applicant pending determination of the Family Court proceedings. DHHS concluded in those circumstances there was no immediate risk of harm and closed the file.

1. May-June 2004: A further notification was received that the same two daughters had disclosed that the Applicant had penetrated them and exposed them to pornography and other inappropriate material. When questioned by police, one child disclosed further inappropriate touching. Investigations revealed some information of concern about touching, grooming and exposure to pornography. The Applicant was interviewed and denied any wrongdoing. Police considered that there was insufficient evidence to charge him. Again, the mother terminated all contact between the children and the Applicant and DHHS closed the file. 2. March-July 2005: DHHS was notified that the three elder daughters and the youngest had been exposed by the Applicant to pornography. The Applicant was interviewed by DHHS, denied deliberately exposing the children to pornography but stated that he "did not know how to stop things popping up on his computer." The mother of the youngest daughter reported observing sexualised behaviour by her daughter and inappropriate touching by the Applicant. The child disclosed being exposed to violence by the Applicant towards her mother but did not disclose any exposure to pornography. DHHS closed the case after the mother undertook not to allow any unsupervised contact between the Applicant and her daughter. 3. February-March 2007: DHHS received a notification that the youngest daughter had disclosed being touched by the Applicant. The mother immediately terminated the Applicant's access to her daughter. The child was interviewed, but made no disclosure to authorities of touching by the Applicant. The Applicant denied the allegations. He again admitted he "might have accidentally" exposed his children to inappropriate material. He revealed he had agreed not to see the children after being told that they had told a court-appointed mediator that they didn't want to see him. As access to the children had been denied by their mother, DHHS determined there were no concerns for the immediate safety of the children and closed the file. 4. June-July 2007: A further notification of sexual abuse of the youngest daughter was received. Investigation revealed the Applicant had not had access to his daughter since the last notification. The child's mother advised that her daughter had, since the previous investigation had been closed, disclosed she had been inappropriately touched by the Applicant. That apparently did not result in further police or DHHS investigation. DHHS concluded there were no current protective concerns and closed the file. 5. June 2008 (1): A notification of exposure of the Applicant's youngest child, his son, to a 'significant' domestic violence incident between the Applicant and his ex-partner, while the Applicant was retrieving belongings from her. No family violence report was made to DHHS and the file was closed. 6. June 2008 (2): A notification was received of concerns that the Applicant might attempt to have unsupervised access with his youngest daughter, as her mother could no longer supervise contact between the Applicant and their daughter. The Applicant had been prohibited from contact with the child's mother by an intervention order, following an instance of family violence (presumably the one referred to in the previous notification). DHHS assessed that there was insufficient information to intervene and closed the file. 7. June-August 2010: A further notification was received concerning the Applicant's son. The child was referred to CASA. He displayed inappropriate sexualised behaviour and disclosed fear of, and inappropriate behaviour by, the Applicant when in bed with him. This included the Applicant not being clothed and the child engaging in some sexualised activity with a 5 year old girl in his father's presence. Despite concerns the Applicant may have been grooming and desensitising the child, as DHHS was satisfied there was no evidence of sexual abuse and the mother was taking steps to protect the child and stop unsupervised contact, the file was closed. 8. August 2010-February 2011: A further notification concerning the Applicant's son was received. This alleged the child was being exposed to and exhibiting inappropriate sexual behaviour and that the mother was actively allowing unsupervised access between the two. The mother stated the Applicant saw pornography as "bonding time" and maintained the Applicant slept in his boxers, not in the nude. The Applicant gave consent for the child to attend CASA for counselling. Contact was suspended while the child attended CASA. The child did not make any disclosure of sexual offending by the Applicant, but did reveal he had been exposed to pornography by the Applicant. Access was discontinued as the child had said he did not want to stay with his father and the file was then closed.
2. The Applicant submits there have been no adverse findings against him by DHHS, that he was cleared each time. He also submits that he has been subjected to unfounded allegations of sexual misconduct by each of his former partners in order to deny him access to his children. He submitted that the first partner had, in effect, shown his subsequent partners that making allegations of sexual misconduct with the children would ensure he was denied access or unsupervised access.
3. The Applicant noted he had obtained Family Court orders requiring his first partner to bring the children back to Melbourne after she had taken them to Perth and gone into hiding with them. He relied on his five year battle through the Family Court as evidence of his determination to see his children and in support of his contention he had not harmed them. He asked, rhetorically, would he have fought so hard to see them if he had been harming them. He said he had ultimately won the right to have unsupervised access to all his children, despite periods where he had been subjected to supervised access by reason of what he said were the false allegations. He noted that, despite court orders for supervised access, or undertakings given by the mothers of his younger children to DHHS to ensure he had supervised access, he had in fact been permitted by them to have unsupervised access.
4. So far as exposure to pornography is concerned, the Applicant acknowledged it had occurred, but maintained that it was inadvertent and of no concern. He said the children might have interrupted him from time to time when he was watching it on his computer or on TV, or seen magazines or topless calendars he usually kept in the shed. He said there was nothing unusual or remarkable about possessing the sort of magazines he had, or displaying calendars with topless photos in a shed. Although he did not use this language, the effect of his submission was that it was orthodox adult heterosexual images of sexual activity and did not involve bestiality or sexual abuse of children and was not inappropriate if accidentally seen by the children.
5. On inquiry, he acknowledged that, despite the court orders, he had had no contact with any of his children for a considerable time, as none of them wanted to have contact with him. He expressed resentment at the behaviour of the mothers of his children, who he believed (or blamed) for poisoning the children against him and putting them up to making false allegations.
6. The allegations made on repeated occasions by the Applicant's children have some common features. All five children allege they were exposed to pornography. The Applicant admits they were, or could have been exposed to it. He minimised both the nature of the exposure and the nature of the content. He expressed no concerns or insight about the inappropriateness of exposing children, including very young children, to images of sexual activity. Even on his own account of how the children were exposed to the pornography, he took no responsibility as the adult for preventing inadvertent exposure. If anything, he normalised exposing his children to viewing pornography.
7. It is not correct to say, as the Applicant did, that he was cleared by DHHS in respect of each notification. Whilst it is correct to say no adverse findings were made by the Children's Court or protective proceedings issued by DHHS, on many occasions the allegations were not found to be baseless. Police, when involved, did not lay charges, but that was because a judgment was made that there was insufficient evidence to do so. DHHS recorded concerns on a number of occasions, but considered the concerns were adequately addressed by the actions of the mothers, in preventing the Applicant having access, or unsupervised access, to the children. As safety of the children from immediate or future risk is the basis for DHHS intervention, the closing of the files cannot be seen, in those circumstances, to be an exoneration.
8. The Applicant could be, as he believes, the victim of successive malicious ex partners, all of whom decided to deny him access to their children and all of whom decided to do so by putting their children up to make false allegations of touching, or inappropriate behaviour, interspersed with embellished allegations of admitted exposure to pornography. His first partner could have shown the way, and provided a template for the others to follow and he could be unlucky enough that each child agreed to collude with their mothers and concoct stories of sexual impropriety.
9. On the other hand, there could be substance to all or some of the matters recorded in the notifications. The number of separate notifications, the nature of the allegations, the fact they concern different children at different times, the overlap or common features of alleged misconduct in some of the notifications, the history of police investigations and the Applicant's admissions in relation to the exposure of all of the children to pornography in combination lead me to conclude they must be considered when determining whether it is appropriate to refuse to give an assessment notice. Of course, the matters recorded in the notifications cannot be given as much weight as they would were any of them found to have been established.

1. In November 2008, a charge of breach of an intervention order was found proven and the Applicant was, without conviction, fined $100.00. No police brief or summary was produced by the Respondent. It would appear that it relates to the instance of family violence referred to in the DHHS Notifications of June 2008. The Applicant, in his submission, said it concerned "an x girlfriend situation had to get my belongings and agreed to have that order on me as no need to fight it." Again, the Applicant's submission is at odds with the DHHS Notification material. Again, it appears the Applicant is minimising and excusing his conduct. Again, I consider the finding, and the Applicant's explanation, relevant to my determination of whether it is appropriate to refuse to give an assessment notice.
2. While the Respondent's material also refers to two Children's Court and two Magistrates' Court hearings relating to offences committed in the 1980's, they are minor and occurred a long time ago. The Children's' Court matters, being more than 10 years old, could not be relied on as part of the Applicant's criminal history. I do not consider there is anything in the nature of the charges to justify giving them any weight in this application. Similarly, the age and nature of the Magistrates' Court conviction do not warrant consideration in this application.

Application of fact findings in relation to non-conviction charges, DHHS notifications and intervention order finding

1. For the following reasons, I am satisfied it is appropriate to refuse an assessment notice.

Weight to be given to non-conviction charges[11]

1. Although the four indecent assault charges were dismissed on appeal, in determining the weight to be given to them, it is proper to take into account that, at first instance, the complainant's evidence was accepted and the magistrate was satisfied beyond reasonable doubt of the guilt of the Applicant. The original finding of guilt was followed by a sentence of imprisonment, reflecting the magistrate's assessment of the gravity of the offending. The charges were dismissed on appeal without a re-hearing on the merits. Although proper to regard the non-conviction charges as allegations, not convictions, the original finding of guilt and the circumstances in which the charges were ultimately dismissed, give them greater weight than charges dismissed on the merits.

Nature and gravity of the conduct and its relevance to child related work[12]

1. The conduct alleged is a serious violation of trust, a significant sexual violation of a child in her sister's home, a place where she should have been safe. There was a significant age disparity between the Applicant and the complainant. She was a child, only 12 or 13, the Applicant a young adult, with all the difference in experience of life that brings with it. She was the younger sister of the Applicant's partner. That made him an adult in her family, adding to the power imbalance which already existed because of their relative ages and experience of life.

Period of time since the Applicant allegedly engaged in the conduct, and his conduct since, taking into account matters advanced by the Applicant and the Respondent[13]

1. The conduct alleged dates back to 1990 and 1991. It was not reported and charges were not laid until 2001. The Applicant has not been charged with any other like offences. Generally, the greater the time which has elapsed since a person engaged in, or is alleged to have engaged in, conduct relevant to an assessment of the risk to the safety of children if they engaged in child-related work, the less that past conduct would bear on an assessment of the risk they pose to children today. However, other allegations of concern have arisen in the intervening time, which bear on the assessment of risk. Ten separate relevant notifications to DHHS were made in the ten years following the laying of the charges. The number of notifications, the nature of the allegations, the recurrent themes of misconduct in them, the Applicant's acknowledgement of his exposure of his children to pornography, his minimising of the conduct, his failure to acknowledge the risk of harm flowing from the exposure and the removal of the children from unsupervised contact with the Applicant all point to a continuing concern about the likelihood of risk.
2. I also take into account the allegations of exposure of one of the Applicant's children to his assault of the mother of another of his children. This conduct occurred after the dismissal of the indecent assault charges.

1. In combination, these matters satisfy me it is appropriate to refuse to give an assessment notice.
2. In coming to that conclusion, I have considered whether a reasonable person, aware of the matters I have detailed, would allow his or her child to have direct contact with the Applicant while he was engaged in child-related work.[14]
3. The WCA does not permit me to confine my consideration to a particular type of child-related work or to grant a limited assessment notice, permitting a person to engage in a specified type of work only or restricting a person from engaging in specified types of child-related work.
4. I cannot confine my consideration to snake catching on school grounds. I must consider whether that reasonable person would allow his or her child to have direct contact with the Applicant while he was engaged in any type of child-related work.
5. I do not consider the Applicant would pose an unjustifiable risk to children if engaged in snake catching on school grounds and doing staff and student presentations on snake safety. I consider a reasonable person would allow their child to have supervised contact with the Applicant when engaged in snake catching on school grounds and doing staff and student presentations on snake safety. However, having regard to the conduct alleged in the non-conviction charges and the DHHS notifications, I do not have the same degree of comfort that a reasonable person would allow their child to have direct contact with the Applicant in child-related work.
6. It follows from the findings I have made in respect of the reasonable person test that I am not satisfied that the Applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.[15]
7. The findings I have made make it unnecessary to consider whether, in accordance with s 26C(3), it is in the public interest to give an assessment notice.
8. The application for review is refused.

1. It would appear that the Applicant was deemed to have applied for a volunteer notice. Under s 17(2), an Applicant who did not specify in their application that they intended to engage in child-related work for profit or gain, is issued an assessment notice that specifies it cannot be used for engaging in child-related work for profit or gain. As the Applicant is engaged in snake removal for reward (although he says it is not a lucrative or full time pursuit), an issue arose at hearing in respect of the applicability of a volunteer notice.
2. The Respondent submitted that, even if I were satisfied it was appropriate to give an assessment notice, I should decline to do so as a volunteer notice would have no utility for snake catching for gain. The Respondent submitted that if the Applicant wanted an assessment notice for non-volunteer work, he should resubmit a for profit or gain application. However, as Ms Ellyard acknowledged, if I refused this application because it was a volunteer, not a for profit or gain application, the Applicant would still carry the stigma of a refusal and be precluded by s 25 from applying for a for profit or gain assessment notice for 5 years. That is not an attractive submission and does not sit comfortably with model litigant principles.
3. Again, it appears to me that if it appears to the Secretary an applicant has mistakenly applied for a volunteer assessment when he or she identifies a need for a for profit or gain certificate, the Secretary should bring this to an applicant's attention, before there is a prospect of the issue of an Interim Negative Notice or a Negative Notice.
4. I request that the concerns I have raised about the failure of the Secretary to inform an applicant, before an Interim Negative Notice is issued, that an application is unnecessary or mistakenly limited to a volunteer application be brought to the attention of the Secretary.
5. I request also that the Secretary bring to the attention of the Secretary of Department of Education and Training the concerns I have raised about the inappropriate imposition of a requirement by schools to produce an assessment notice for non-child-related work.

[3] See WCA, ss 12, 13, 26, 26A and 26B.

[8] See, for example, Criminal Procedure Act 2009 (Vic) Part 8.2.

[9] See, for example, Jury Directions Act 2015 (Vic) Divisions 2 and 3 of Part 5.

[10] Crimes Act 1958 (Vic), s 37B; Criminal Procedure Act 2009 (Vic), s 338.

[11] WCA, s14(3)(c), (d).

[13] WCA, ss 14(3)(b), (g) and (i).