Secretary to Department of Justice and Regulation v CZQ

1 CZQ applied to the Secretary to the Department of Justice and Regulation ('the Secretary') on 14 February 2017 for an assessment notice under the Working with Children Act 2005 ('the Act'), so as to permit him to perform child-related work.[2]

2 On 30 October 2017, the Secretary issued CZQ with a negative notice, the practical effect of which was to prevent him from performing child-related work.[3]

3 CZQ applied to the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal') for a review of the Secretary's decision to issue him with a negative notice. Despite the application being opposed by the Secretary, on 24 May 2018 a Deputy President of VCAT made orders setting aside the Secretary's decision.[4] The Secretary was directed to provide CZQ with an Assessment Notice pursuant to s 51(2)(c) of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act') and ss 26C(2) and (3) of the Act.

4 Under s 148 of the VCAT Act, the Secretary now seeks the leave of this Court to appeal on a question of law.[5] Two questions of law are set out in the Notice of Appeal, formulated as follows:

1. In the review of the Secretary's decision to give a negative notice on a Category C application, when the Tribunal is determining under s 26C(1) of the Working with Children Act 2005 (Vic) (the WWC Act) whether in the particular circumstances it would be appropriate to refuse to give an assessment notice, is the Tribunal required to have regard to all of the offences which the applicant for an assessment notice has been charged, convicted or found guilty when considering the factors set out in s 14(3) of the WWC Act?
2. Is the Tribunal permitted, in making findings of fact when reviewing the Secretary's decision to give a negative notice to an applicant for an assessment notice, to rely on that applicant's unsworn evidence, thereby:

2.1 denying the Secretary a reasonable opportunity to cross-examine the applicant:

(a) in breach of s 102(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the VCAT Act); and

(b) denying the Secretary procedural fairness; and

2.2 failing to give effect to the paramount consideration, articulated in s 1A of the WWC Act - namely, the protection of children from sexual and physical harm?

5 In my view the grounds of appeal set out in the Notice are unsatisfactory, being somewhat discursive and extravagant in length. As I raised with senior counsel for the Secretary - he did not accept my assessment of them - rather than each ground embodying a discrete complaint of error of fact or law, the grounds are largely in narrative form. I consider, however, that the following complaints can be distilled from them:

• when addressing the factors in s 14(3) - and s 26C(1) - of the Act, 'the Tribunal failed to have regard to all of the offences with which CZQ had been charged, convicted or found guilty', such failure being an error of law and the equivalent of jurisdictional error;[6]

• in contravention of s 102(1)(b) of the VCAT Act, the Tribunal denied the Secretary an opportunity to cross-examine CZQ on his unsworn evidence (or otherwise), thereby denying the Secretary procedural fairness;[7]

• the Tribunal made findings of fact which in effect were not open given that CZQ's unsworn evidence was not tested by cross-examination;[8] and

• the failure of the Tribunal to exclude CZQ's unsworn evidence breached s 1A of the Act.[9]

6 CZQ, who was unrepresented in the hearing before VCAT, did not appear at the hearing of the application before me. Instead, he sent an email at 10.10 am on the morning of the hearing to my chambers, seeking to 'point out some issues in dispute before any hearing can take place'. He did not 'copy' the email to the Secretary's counsel or solicitors, but apparently 'blind copied' the email to the Registrar of the High Court of Australia. It is beyond argument that it was wholly inappropriate that CZQ should have sought to make such private communication; and, upon my drawing the email and its contents to the attention of counsel for the Secretary, counsel made an application that I disqualify myself. I refused that application.[10] In the result, the hearing of the application proceeded without the benefit of any submissions being advanced orally or in writing by CZQ.

7 In my opinion - and notwithstanding the absence of submissions by or on behalf of CZQ - the application for leave to appeal should be refused. My reasons follow.

8 Before turning to the circumstances of the present application, it is convenient to set out aspects of the applicable statutory regime.

9 Section 1(1) of the Act provides that its main purpose is 'to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them are subject to a screening process'. By s 1A, when the Secretary or VCAT makes a decision under the Act, 'the protection of children from sexual and physical harm must be the paramount consideration'.[11]

10 Part 2 of the Act establishes a process to screen persons engaging or intending to engage in 'child-related work'.[12] Child-related work is work at or for a service, body or place, or that involves an activity, specified in s 9(3), that usually involves 'direct contact'[13] with a child.[14] Section 9(3) sets out a number of relevant services, bodies and places, including 'providing, on a publicly-funded or commercial basis, a transport service specifically for children'.[15] Work is not childrelated work, however, by reason only of occasional direct contact with children that is incidental to the work.[16]

11 Section 10(1) of the Act provides that a person may apply to the Secretary for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check. By virtue of s 11(1), when considering an application under s 10, the Secretary must arrange for the conduct of a police record check on the applicant and may make certain specified enquiries.[17]

12 Among other charges that he has faced, CZQ has been convicted of contravening a family violence interim intervention order[18] (and at the time of the hearing before VCAT he had a further identical charge which had yet to be determined by a court). Such an offence is a 'category C' offence, falling within the least serious of the three categories of offences provided for under the Act.

13 Section 14 of the Act is concerned with category C applications. Subsections (2) and (3) provide:

...

(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

(b) the Secretary is satisfied that -

(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.

(3) For the purposes of subsection (2)(a), the Secretary must have regard to -

(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.

14 Section 26C of the Act sets out VCAT's jurisdiction to deal with decisions to give a negative notice on a category C application:

26C Jurisdiction of VCAT - category C

(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 engaged 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.

Denial of procedural fairness - Grounds 2.1 to 2.7

15 It is convenient to turn first to grounds 2.1 to 2.7, which appear to advance three principal complaints - first, that in contravention of s 102(1)(b) of the VCAT Act the Tribunal denied the Secretary an opportunity to cross-examine CZQ, thereby denying the Secretary procedural fairness; secondly, that certain of the Tribunal's findings of fact were not open given that CZQ's unsworn evidence was not tested by cross-examination; and, thirdly, the failure of the Tribunal to exclude CZQ's unsworn evidence breached s 1A of the Act.

16 Before considering the merits - or, perhaps, lack of merits - in these grounds, however, it is necessary to set out several provisions of the VCAT Act.

17 Sections 97, 98 and 100(2) respectively provide:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(1) The Tribunal -

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.

(2A) Without limiting subsection (1), at the hearing of a proceeding the Tribunal may admit into evidence any material put before the Tribunal at an earlier stage of the proceeding, or any material put before the Tribunal in another proceeding, if the Tribunal considers it desirable to do so.

...

(2) If the parties to a proceeding agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses.

18 The Secretary relied specifically on s 102(1)(b) of the VCAT Act in support of his grounds. Section 102 provides:

(1) The Tribunal must allow a party a reasonable opportunity -

(a) to call or give evidence; and

(b) to examine, cross-examine or re-examine witnesses; and

(c) to make submissions to the Tribunal.

(2) Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.

(3) Evidence in a proceeding -

(a) may be given orally or in writing; and

(b) if the Tribunal requires, must be given on oath or by affidavit.

(4) A member of the Tribunal may administer or cause to be administered an oath or take or cause to be taken an affirmation for the purpose of taking and receiving evidence at a hearing.

19 None of the complaints embodied in grounds 2.1 to 2.7 has substance. In the hearing before the Tribunal, counsel for the Secretary neither sought to cross-examine CZQ, nor suggested that his client had been denied procedural fairness by the reason of the process adopted. Moreover, counsel did not seek to have any aspect of CZQ's 'evidence' excluded; and he made no complaint to the Tribunal at any stage about the manner in which the hearing was conducted. Indeed, as will appear, counsel for the Secretary fully acquiesced in the procedure adopted by the Deputy President.

20 CZQ was, as I have said, unrepresented before VCAT. Thus, at the commencement of the hearing before the Tribunal, the Deputy President explained the relevant process to him. She told him that she would invite counsel for the Secretary to give 'an overview of the Secretary's position', and, given that CZQ was 'self-represented', an overview of the relevant legislative provisions, so that he would 'have a better understanding of how to present [his] case'. There was then the following telling exchange:

DEPUTY PRESIDENT: There are a couple of things that you'll need to decide and one is whether you give evidence. If you're giving evidence it's normally given from the witness box and you can be asked questions by the Tribunal, me, but also by [counsel] on behalf of the Secretary. I can see that there's an outstanding warrant for a matter that hasn't yet been prosecuted, is that right?

[CZQ]: That was a full contested hearing.

DEPUTY PRESIDENT: Okay. So what I will say is you can also be asked questions about that even though it's still outstanding.

[CZQ]: That's all right, that's fine.

DEPUTY PRESIDENT: You can be asked questions and I will also say that in this Tribunal you're still required to answer questions but if you're concerned that the answer could incriminate you, you can also give an indication of that before you answer the question and in those circumstances your answer can't be used in other proceedings.

[CZQ]: That's okay, I don't intend to appear on [sic] the witness box.

21 Not one word was heard from counsel for the Secretary in opposition to the course proposed by the Deputy President. He raised no question about the appropriateness of the Tribunal receiving 'unsworn evidence' - I therefore need not pause to do so - and he made no complaint about the course proposed by the Deputy President. He certainly did not invoke s 102(1)(b) and submit that he should be able to cross-examine CZQ. And he certainly did not suggest that the Secretary would be denied procedural fairness or his case otherwise compromised.

22 After the Deputy President announced the course to be adopted, counsel for the Secretary opened the case. Following counsel's opening, there was the following - also telling - exchange:[19]

DEPUTY PRESIDENT: Thank you very much. [CZQ], it's now your opportunity to address me. You can address me exactly how you want with material that you've prepared but once again I'll just ask the question to clarify. You said at the start that you don't propose to give evidence from the witness box.

[CZQ]: That's correct.

DEPUTY PRESIDENT: Which means that you can't be asked questions on oath by the other side.

[CZQ]: That's correct.

DEPUTY PRESIDENT: What that does mean is that to pre-empt what [counsel for the Secretary] is likely to say to me is that I should put less weight on what you say when it can't be tested. I take it that that's the submission that you would be making [counsel]?

[COUNSEL]: Yes. I would be saying because the material is untested and not subject to cross-examination you should place less weight on it than would it have been tested, yes.

DEPUTY PRESIDENT: And I'll just explain to you how courts and tribunals view evidence. There's all different sort of types of evidence that can be given by a person. One is what you're telling me you propose to do and that is make a statement from the Bar table. Of course I listen to that and I take that into account and I look at it together with all of the material.

The other way that evidence can be given and it's considered higher quality evidence is evidence under oath and the reason it's considered higher quality evidence is because it can be tested. You can be asked a lot of questions around evidence that has been given and so that considered [sic] to be a better quality of evidence. It's entirely up to you which course you adopt. It's just my responsibility to let you know that greater weight can be given to evidence that has been tested than it can be given to untested evidence.

[CZQ]: Well on that note one of my submissions will be the weight to the other party.

DEPUTY PRESIDENT: Yes.

[CZQ]: The evidence that they've submitted and haven't produced - haven't even called a witness in. It's going to be one of my submissions.

DEPUTY PRESIDENT: Open to you [sic] to present your case how you feel comfortable.

23 Hence it is quite plain that, when the Deputy President asked counsel for the Secretary whether he would be submitting that less weight should be placed on evidence that was not tested by cross-examination, counsel agreed unequivocally that that would be his approach. Once more, however, counsel did not seek an opportunity to cross-examine, let alone raise any possibility of the denial of procedural fairness flowing from the refusal of such opportunity.[20]

24 CZQ then presented his case. In the course of doing so, he was asked a substantial number of questions by the Deputy President about his criminal history, counsel for the Secretary at times intervening. CZQ also elicited evidence in a conventional form from two witnesses[21] - generally as to his character and interactions with children - who were cross-examined in moderate depth by counsel for the Secretary.

25 The Deputy President then invited counsel for the Secretary to make his 'closing submissions'. At no point during those submissions did counsel complain that he should have been permitted to cross-examine CZQ - he had made no request to do so - or that his client had been denied procedural fairness. Indeed, in the course of his submissions counsel seemed to accept that the Tribunal had adequately tested what he had said about his criminal history in the course of CZQ's presentation of his case. Counsel submitted:[22]

This is a Tribunal ... in a protected jurisdiction [sic] and the Tribunal is not limited to just the convictions that were recorded. You have to take into account under the scheme, under the legislation, every relevant factor of his background whether he wants you to or not. Where there [is] a matter of law it can be - is [sic] shows up on a police search for an interview or otherwise so you can fully inform investigative views and make an assessment about risk.

My submission is that this in relation to that attitude incensed about non recorded convictions being brought up. When you were asking him questions about things that he was convicted of, you were asking him if the facts were of the conviction, I misunderstood, I thought you were informing yourself but I clearly see now in hindsight you were comparing perhaps what has been alleged by the police or the courts against what he has to say.

That was an important thing to do because I can't cross-examine him about it he's not giving evidence but you need to understand or form a view about whether he has some insight into his offending. ...

26 The Secretary's counsel also made submissions about CZQ's candour and demeanour when answering the Tribunal's questions - for example, 'if you notice his demeanour all way through these proceedings he wouldn't be completely transparent with the Bench when asked questions', and '[h]ow could that demeanour and attitude give the Tribunal comfort that you've got an applicant who has been utterly transparent' - and advanced detailed arguments about how the evidence relating to CZQ's conduct should be analysed.

27 In those circumstances, I consider that it is fanciful to suggest that the Secretary was denied 'a reasonable opportunity ... to examine, cross-examine or re-examine witnesses'. No such opportunity was sought.[23]

28 Before I leave these grounds, I should state specifically that I consider 'ground' 2.7 to be wholly devoid merit. It was formulated as follows:

2.7 The failure, on the part of the Tribunal to exclude CZQ's unsworn evidence when assessing the mandatory criteria in s 14(3) of the WWC Act was not merely a breach of s 102(1)(b) of the VCAT Act and of procedural fairness, but a failure to conform to s 1A of the WWC Act, which required the Tribunal to ensure, when making a decision under the WWC Act, that 'the protection of children from sexual and physical harm must be the paramount consideration'.

29 At the risk of repetition, counsel for the Secretary did not seek exclusion on CZQ's unsworn evidence. As I have said, he acquiesced in its reception, subject only to considerations of weight. There can thus be no question of a breach of s 102(1)(b) or a denial of procedural fairness.

30 Subject to the constraints that the Tribunal 'must act fairly and according to the substantial merits of the case', and in accordance with 'the rules of natural justice', the Tribunal 'is not bound by the rules of evidence or any practices or procedures applicable to courts of record' and 'may inform itself on any matter as it sees fit'. I am unable to see that the procedure adopted in the present case - in which in the course of hearing before her the Deputy President tested various statements made by CZQ, and counsel for the Secretary was given full opportunity to make submissions on the material put before the Tribunal - was in any way anathema to the need to regard the protection of children from sexual and physical harm as the paramount consideration in the decision-making process. Indeed, how it was claimed that the procedure adopted by the Tribunal constituted 'a failure to conform to s 1A' of the Act was not articulated with any clarity (if at all).

31 Counsel for the Secretary only faintly argued grounds 2.1 to 2.7 orally. Given their perspicuous lack of substance, it might well have been expected that the grounds would not have been relied on at all.

32 Leave to appeal must be refused on grounds 2.1 to 2.7.

Failure to have regard to all of the offences of which the applicant was charged, convicted or found guilty - Grounds 1.1 to 1.6

33 As I have indicated, I consider the formulation of the grounds of appeal to have been unsatisfactory.

34 When dealing with grounds 1.1 to 1.6, counsel for the Secretary submitted orally that the 'gravamen' of the complaint sought to be agitated by this collection of paragraphs was to be found in 'ground' 1.5, which was in the following terms:

1.5 The Tribunal's failure to take the other offences into account when addressing the criteria prescribed by s 14(3)(a)-(h) of the WWC Act, set out in paragraph 1.4 above, amounted to an error of law because the Tribunal failed to have regard to mandatory matters that the Tribunal was required to address pursuant to s 26C(1) and s 14(3) of the WWC Act.

35 CZQ's criminal history was set out in 'ground' 1.3, containing the following charges and results (which for the sake of ease of reference I have set out in the following table):

Behave in a riotous manner in a public place[25]

Use indecent language in a public place[26]

Contravene an interim family violence intervention order

Contravene an interim family violence intervention order[27]

Convicted and fined $500 (on appeal to the County Court)

36 The charges of behaving in a riotous manner and using indecent language (and the charges of making a threat to kill) were all dealt with at the Sunshine Magistrates' Court on 9 February 2015. On each of the riotous manner and indecent language charges, CZQ received an adjourned undertaking. Ultimately those charges were struck out on 8 February 2016 (presumably because CZQ observed the conditions of the undertaking).[28] It appears that there was no adjudication on the charges of making a threat to kill, those charges simply having been withdrawn by the prosecuting authorities - the materials indicate because of a lack of evidence - and struck out by the Court.[29]

37 Although there were two charges of contravening a family violence intervention order, one of those had not been determined by a court. The other, dealt with by the County Court on appeal on 19 October 2016, resulted in a conviction and fine of $500 (the fine originally imposed in the Magistrates' Court on 18 November 2015 being $1,500).

38 So far as penalty is concerned, objectively the most serious of the charges against CZQ were the two charges of harassing a witness, which resulted in a conviction and an aggregate fine of $2,000.

39 It will be seen that 'ground' 1.5 picks up 'ground' 1.4. Ground 1.4 asserts that in addressing the criteria in s14(3)(a), (b), (e), (f) and (g) of the Act, 'the Tribunal considered the two charges of "contravene interim family violence order" ... but failed to consider the other five offences set out in paragraph 1.3 above': see ground 1.4(a), (b), (d), (e), (f) and (g). (Although the arithmetic seems awry, I take the reference to 'the other five offences' to be a reference to two charges of harassing a witness; one charge of behaving in a riotous manner; one charge of using indecent language; and three charges of making a threat to kill; since, besides the family violence order charges, they are the only other offences referred to in ground 1.3.)[30]

40 Ground 1.4(c) complains that in addressing the criteria in ss 14(3)(c) and (d) of the Act, 'the Tribunal considered only the one charge of "contravene interim family violence order" ... and ignored the other six charges' in ground 1.3. (Once more the arithmetic seems awry.) The ground also asserts that 'the County Court convicted CZQ on the charge of "contravene interim family violence order" on 19 October 2016, but the Tribunal erroneously found that no conviction was recorded for that charge'.

41 Senior Counsel put the last-mentioned complaint at the forefront of his oral submissions. Relying on Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[31] counsel submitted that the Tribunal had failed to take in to account a mandatory consideration which could have materially affected the decision.[32] He contended that VCAT 'simply failed to address the statutory task set for it by the provisions' of the Act. Another way of putting it, counsel submitted, is 'the failure to take into account the relevant considerations in the Peko-Wallsend sense, considerations that the Tribunal was directed that it must take into account by the statute'. That meant that the Tribunal had 'not discharged its statutory task'. Hence, the decision 'is bad in law and the appropriate remedy is to set aside the decision and to remit the matter to the Tribunal'.

42 By way of analysis, it is indeed correct to say that the Deputy President wrongly thought that no conviction was recorded in the County Court. Thus, in dealing with the criteria in ss 14(3)(c) and (d) she said:[33]

On 18 November 2015, CZQ was found guilty in the Melbourne Magistrates' Court. A conviction was imposed and he was fined $1500 with $77.50 statutory costs for the offence of 'Contravene Family Violence Interim Intervention Order'. On appeal, the order of the Magistrates' Court was set aside.

Although CZQ was found guilty, on appeal, no conviction was recorded and his fine was reduced to $500.

CZQ challenged the 'without conviction' finding being placed before me. I reiterate at this juncture my earlier comments that such material is open to the Tribunal to consider in the protective environment of the WWW Act.

I note that the sentence imposed was a relatively lenient one which perhaps reflected the complex circumstances surrounding the offending.

43 But although it is plain that the Deputy President laboured under the misapprehension that no conviction was recorded in the County Court - the transcript from VCAT reveals that she may have been labouring under the same misapprehension when questioning CZQ about this sentence[34] - she was also of the view that the relatively lenient penalty substituted for the original 'perhaps reflected the complex circumstances surrounding the offending'. Beyond assertion, little or no attempt was made in oral submissions (or, for that matter, in the written submissions filed) to flesh out the proposition that the 'finding' (if it be such) that no conviction was recorded was one that may have materially affected the Tribunal's decision. It was left to the Court to point out that a conviction after plea or finding of guilty is part of the punishment meted out to an offender.[35] When the Court observed that the Tribunal's mistake might be considered 'de minimis', counsel put the matter this way:

It's a failure to take into account a mandatory consideration. And that's a legal deficiency in the way the Tribunal dealt with it. You would only be justified, may I say, in discounting its significance if Your Honour were persuaded that it could not have made a difference if the Tribunal had not made the mistake. We note that the Tribunal has recorded in its reasons that on appeal no conviction was recorded.

It must a matter that the Tribunal saw as relevant. If the Tribunal had properly instructed itself, and noted that a conviction was recorded, it could have made a difference.

44 I do not accept these submissions. As was made clear by Mason J in Peko-Wallsend, insignificant errors which could not have affected the outcome of a decision will not invalidate it.[36] In my view, there is no possibility that the Tribunal's error might have affected the outcome.[37] Undertaking the necessary evaluative task, I do not consider that the Tribunal's error would have deprived the Secretary of the possibility of a successful outcome. It is plain, in my view, that the aspect that impressed itself on the mind of the Deputy President was the 'relatively lenient' nature of the sentence imposed by the County Court, 'which perhaps reflected the complex circumstances surrounding the offending'. In those circumstances (and at the risk of repetition), I consider that there is no possibility that, had the Tribunal taken into account that the 'relatively lenient' fine of $500 was imposed with - rather than without - conviction, the outcome would have been different.

45 As to the threat to kill charges which were apparently withdrawn by the prosecuting authorities on 9 February 2015 because of a lack of evidence (and thus struck out by the Court), counsel for the Secretary submitted in oral argument that 'it cannot be ignored': 'The statute says it must be ... addressed'. When the Court asked why one would look at the underlying facts in those circumstances, Senior Counsel's response was: 'Because the statute demands it'.

46 These submissions are without substance. Having read the transcript of the hearing before VCAT, my very strong impression - notwithstanding the submissions advanced in this Court - is that the withdrawn threat to kill charges played no role whatsoever in the Secretary's case before the Tribunal. They were only briefly mentioned and received scant attention; and so far as I can tell, it was not put to the Tribunal by counsel for the Secretary that they had any relevance to the issues. Certainly they did not form the distinct foundation of any discrete argument put to the Tribunal with respect to the considerations spelled out in s 14(3) of the Act. Indeed, as the transcript reveals, although counsel for the Secretary referred to the convictions (or findings of guilt) and dispositions for harassing a witness, behaving in a riotous manner in a public place and using indecent language in a public place, with respect to the threat to kill charges he simply observed: 'There was a threat to kill but those charges were withdrawn'.

47 Section 14(3)(c) of the Act required the Tribunal, 'in the case of an offence', to have regard to 'whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending'. Quite plainly, in circumstances where the charges were withdrawn for lack of evidence, there was no 'offence' to which the Tribunal could have had regard. No charge was pending, let alone there being any finding of guilt or conviction. Since the Secretary did not seek to rely on the withdrawn charges in VCAT, it is unsurprising that they were not the subject-matter of the Tribunal's reasoning.

48 Turning to the charges of harassing a witness, behaving in a riotous manner in a public place and using indecent language in a public place, I note that, in one sense, the charges arose out of a single set of circumstances. From what CZQ told the Tribunal, this brace of charges arose out of what he believed were 'false allegations' and charges against his father, CZQ 'vehemently believ[ing] in his father's innocence'.[38]

49 When dealing with the criterion in s 14(3)(h) of the Act - 'the likelihood of future threat to a child caused by the applicant' - the Tribunal said:[39]

... CZQ's 2012 and 2014 offending against potential witnesses was extremely serious.

Their very commission threatens the basis of the criminal justice system. If witnesses cannot attend their homes without being approached about their evidence, they may be reluctant to participate in the criminal justice system. The same can be said if they are harassed over the telephone.

However, once again I am satisfied that CZQ will not reoffend. He will not feel the need again to defend his father's honour. His father is old. He has been sentenced. The case is over. It was a highly unusual situation.

Despite CZQ's offending, I was not satisfied that, when analysed, his offending history could lead to a conclusion that he posed a threat to children.

There was no evidence before me that he has ever harmed a child directly. To the contrary, there was evidence before me of his endeavours to be a very good parent.

The Secretary submitted that CZQ refused to take responsibility for his behaviour and lacked insight into his offending. Whilst to some extent I agree with the submission. I did not, on the facts of this case, consider that it translated into considering that he posed a threat to children.

50 In this Court, Senior Counsel for the Secretary criticised the manner in which the Tribunal dealt with the charges that had arisen out of CZQ's belief that his father had been wrongly accused.[40] He submitted that:

... my non-rhetorical point is that the fact recorded in the reasons that the Tribunal had regard to the harassment of witnesses charge in addressing paragraph (h), likelihood of future threat to a child caused by the applicant, highlights its failure to have regard to that offence and to other charges and other conduct in dealing with every other lettered paragraph.

51 I approach the current task taking into account the observations of the Court of Appeal in Secretary to Department of Justice and Regulation v OUX (A Pseudonym):[41]

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.[42] 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'.[43] 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'.[44] 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'.[45] 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.

52 In my view, it is unrealistic to contend that the Tribunal ignored the considerations in s 14(3) (other than the criterion in s 14(3)(h)) when considering the charges of harassing a witness, behaving in a riotous manner in a public place and using indecent language. The Tribunal recited the date that CZQ was charged;[46] the penalties imposed;[47] the circumstances of the offences' commission;[48] the objective seriousness of the offending;[49] any risk of repetition;[50] and any threat posed to children.[51] Hence, the Deputy President can be seen to have adverted to most (if not all) of the subject-matter embraced by the relevant criteria set out in s 14(3) when she was considering the charges now under discussion. Indeed, a review of the Deputy President's reasons reveals that - with, perhaps, one exception relating to a relatively minor matter[52] - the Tribunal's analysis was careful and painstaking.

53 No part of grounds 1.1 to 1.6 has been made out.

54 The Secretary's application for leave to appeal the Tribunal's decision of 24 May 2018 must be refused.

[1] To ensure there is no possibility of identification of the First Respondent's family members, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the First Respondent.

[2] The meaning of 'child-related work' is discussed at [10] below.

[3] See [12]-[13] below.

[4] CZQ v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 798 ('Reasons').

[5] Although named as second respondent, adopting the usual course the Tribunal submitted to such order as the Court might make (save as to costs). See R v Australian Broadcasting Tribunal; ex parte Hardiman and Ors [1980] HCA 13; (1980) 144 CLR 13, 35-36.

[10] See Secretary to Department of Justice and Regulation v CZQ (No 2) [2018] VSC 761.

[13] Section 3(1) provides a definition:

direct contact means any contact between a person and a child that involves -

(c) contact by post or other written communication; or

(d) contact by telephone or other oral communication; or

(e) contact by email or other electronic communication; ...

[14] By s 3(1) a 'child' is a person under 18 years of age.

[18] Family Violence Protection Act 2008, s 123.

[20] Cf Leon Holdings v O'Donnell [2009] VSC 430; (2009) 25 VR 569, 590 [97] (Habersberger J). In that case - unlike the present - a witness gave oral evidence and was cross-examined, but the cross-examination was wrongly curtailed by the Tribunal.

[21] The witnesses gave their evidence via telephone.

[23] Cf Mayor, Councillors and Citizens of City of Brighton v Selpam Pty Ltd [1987] VicRp 5; [1987] VR 54 (Vincent J), in which counsel for the Council, supported by a number of objectors, had sought an opportunity - which was refused - to cross-examine a town planner who had provided a letter supporting the case of a property developer in the Planning Appeals Board.

[24] See Summary Offences Act 1966, s 52A. The penalty is 120 penalty units or imprisonment for 12 months.

[25] Summary Offences Act 1966, s 17(1)(d). The penalty for a first offence is 10 penalty units or imprisonment for two months.

[26] Summary Offences Act 1966, s 17(1)(c). The penalty for a first offence is 10 penalty units or imprisonment for two months.

[27] See Family Violence Protection Act 2008, s 123. The maximum penalty is 2 years' imprisonment or a fine of 240 penalty units (or both).

[28] See Sentencing Act 1991, s 75(6).

[30] In oral argument, Senior Counsel for the Secretary sought to rely on the Tribunal's failure to deal with two charges on 11 November 2013 of using a carriage service to harass (which had been withdrawn and struck out). He abandoned such reliance, however, when the Court pointed out that those charges were not embraced by any ground of appeal.

[31] [1986] HCA 40; (1986) 162 CLR 24 ('Peko-Wallsend').

[33] Reasons, [109]-[112] (emphasis added).

[34] I note, however, that at one point the Deputy President remarked (emphasis added):

... So the only matter that's been dealt with in the ... Melbourne County Court where they reduced your sentence, you were successful, you got a different sentence.

There was some suggestion that you had been - no, it's your appeal, you initiated the appeal and instead of a quite heavy fine you were either given a non-conviction, I've got contradictory material there. I've got one document that says one thing and another document that says another but there was a fine of $500.

[35] See Sentencing Act 1991, s 8. See also R v Sessions [1998] 2 VR 304, 312-3 (Hayne JA).

[36] Peko-Wallsend, 40 (Mason J). See also Lansen v Minister for Environment and Heritage [2008] FCAFC 189; (2008) 174 FCR 14, 40 [121]-[122] (Moore and Lander JJ).

[37] Lu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 340; (2004) 141 FCR 346, 348 [5] (Black CJ), 359-60 [62]-[64] (Sackville J), 369 [104] (Sundberg J).

[40] I note that counsel for the Secretary had also sought to rely on VCAT's failure to deal with a withdrawn charge of 'using a carriage service to harass', but abandoned such reliance when the Court pointed out that the charge was not the subject of any ground of appeal.

[41] [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (citations in original).

[42] Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 286 (Neaves, French and Cooper JJ) ('Pozzolanic').

[43] Pozzolanic, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) ('Wu Shan Liang').

[44] Pozzolanic, 287; Wu Shan Liang, 272. See also Politis v Federal Commissioner of Taxation [1988] FCA 446; (1988) 16 ALD 707, 708 (Lockhart J).

[46] Reasons, [33], [36]. See s 14(3)(b) of the Act.

[47] Reasons, [35], [39]. See ss 14(3)(c) and (d) of the Act.

[48] Reasons, [34], [37], [40]. See s 14(3)(a) of the Act.

[49] Reasons, [132]-[133]. See s 14(3)(a) of the Act.

[50] Reasons, [134]. See s 14(3)(h) of the Act.

[51] Reasons, [135]. See s 14(3)(h) of the Act.

[52] See [40]-[44] above.