ADMINISTRATIVE LAW - Worker Screening Act 2020 - Working with children check ('WWC') application - 'WWC category C application' due to grooming charges being laid in 2015 against first respondent that did not result in conviction - Separate 2011 allegations of sexual misconduct made by child 1 against first respondent - Tribunal excluded interviews conducted in 2019 relating to 2011 allegations involving child 1 on basis they did 'not have sufficient probative weight' - Whether Tribunal erred by failing to exercise its review jurisdiction by ignoring material relevant to statutory task - Interviews had serious limitations that affected probative value and weight - No additional factual matters relevant to allegations in interviews beyond material already before Tribunal - Interviews not an essential feature of or centrally important to Tribunal's statutory task - No jurisdictional error - Leave to appeal granted - Appeal dismissed.

ADMINISTRATIVE LAW - Worker Screening Act 2020 - WWC application - Mandatory consideration of factors prescribed under s 65(2) - Whether Tribunal erred by taking into account irrelevant consideration - Whether Tribunal erred by failing to take into account mandatory consideration - No jurisdictional error established - Leave to appeal refused.

Worker Screening Act 2020, ss 11, 64, 65, 108; Victorian Civil and Administrative Tribunal Act 1998, ss 97, 98, 102, 148.

Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, applied.

1. The Secretary to the Department of Justice and Community Safety ('the Secretary') seeks leave to appeal and (if leave is granted) to appeal from a decision of the then President of the Victorian Civil and Administrative Tribunal ('VCAT' or the 'Tribunal'). The Tribunal, in effect, overturned the Secretary's refusal to grant TXD (the first respondent), who is a qualified teacher, a volunteer working with children clearance ('WWC clearance') under the Worker Screening Act 2020 ('WS Act').[2] As a result, the Tribunal made orders on 19 April 2023 setting aside the Secretary's decision and directing the Secretary to give TXD a WWC clearance (the 'orders'). The Secretary now seeks to set aside the orders and, in their place, have the proceeding remitted to a differently constituted Tribunal. The second respondent to this application is VCAT which did not take an active role in the proceeding.[3]
2. The Secretary had refused to give TXD a WWC clearance in light of evidence of alleged events in 2011 involving three children ('Child 1', 'Child 2' and 'Child 3') and events in 2014 involving a fourth child ('Child 4').
3. The first proposed ground relates to whether the Tribunal failed to exercise its review jurisdiction under s 108 of the WS Act by ignoring or overlooking material that was relevant to its statutory task of assessing whether giving TXD a WWC clearance would pose an unjustifiable risk to the safety of children, namely a recorded interview of a child made in early 2019 who had made allegations against TXD in 2011 ('Child 1' and the 'Child 1 interview'). The Secretary submitted that this material was 'centrally relevant' to the Tribunal's statutory review task (proposed ground 1). Relatedly, the Secretary made an application to this Court to adduce by way of fresh evidence the Child 1 interview and that of his sister (also made in early 2019) relating to Child 1's allegations (the '2019 interviews'). The fresh evidence application also included transcripts of the 2019 interviews, which were prepared for this Court and were not available to the Tribunal (the 'transcripts').
4. The other two proposed grounds assert that the Tribunal fell into jurisdictional error, either:

(a) by taking into account an irrelevant consideration that it was bound not to consider or, alternatively, misconstruing a statutory provision, namely s 65(2)(e) of the WS Act which prescribes a mandatory consideration (proposed ground 2); and/or

(b) by failing to take into account a consideration it was statutorily bound to consider by ss 108(1) and 65(2)(h) of the WS Act (proposed ground 3).

1. TXD submitted that the proposed grounds of appeal have no real prospect of success, or if they do, the alleged errors of law would not have had sufficient force to have caused the Tribunal to reach a different conclusion. As a result, TXD submitted that, if leave to appeal is granted, the appeal must be dismissed with costs. TXD also opposed the Secretary's application to adduce fresh evidence.
2. For the reasons that follow we would:

(a) grant leave to appeal on proposed ground 1 but dismiss the appeal;

(b) refuse leave with respect to proposed grounds 2 and 3; and

(c) refuse the application to adduce fresh evidence.

The statutory regime and applicable principles

1. Before considering the circumstances of the present application, it is appropriate to discuss the applicable legal framework: the WS Act, the Victorian Civil and Administrative Tribunal Act 1998 (the 'VCAT Act'), and the circumstances in which leave to appeal and, if leave is granted, an appeal may be allowed from VCAT.
2. One of the main purposes of the WS Act, which repeals the previous Working with Children Act 2005 ('WC Act 2005'), is 'to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children'.[4] Section 11 of the WS Act provides that when the Secretary or the Tribunal makes a decision or takes action under the WS Act in relation to an applicant for a WWC check[5] or the holder of a WWC clearance 'the protection of children from sexual or physical harm must be the paramount consideration'.[6]
3. Chapter 3 of the WS Act establishes a process for the Secretary, upon receiving an application, to assess or re-assess whether a person may engage in 'child-related work' ('WWC check').[7] In brief, a successful WWC check entitles the person to be issued with a WWC clearance, permitting that person to engage in child related-work.[8] Conversely, the Secretary must give a WWC exclusion to an applicant who is refused a WWC clearance,[9] or whose WWC clearance has been revoked,[10] which prohibits that person's engagement in such work.[11]
4. The WS Act requires certain categories of WWC check applications to be assessed according to different and more stringent legal tests under that Act. Relevantly, one such category is 'WWC category C applications'.[12] Section 64(1)(e) of the WS Act provides that an application for a WWC check is a category C application if it is in respect of a person 'who has at any time been charged with an offence specified in clause 2 of Schedule 5', which includes sexual offending against a child,[13] if the 'charge has been finally dealt with other than by way of a conviction or a finding of guilt'.
5. WWC category C applications fall to be considered under s 65 of the WS Act. Given its centrality to this application for leave to appeal, we will set out that provision in full:

65 Determination of WWC category C application

(1) The Secretary must give a WWC clearance on a WWC category C application unless -

(a) the Secretary is satisfied that giving the WWC clearance would pose an unjustifiable risk to the safety of children having regard to the factors set out in subsection (2); or

(b) the Secretary is satisfied that -

(i) a reasonable person would not allow their 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.

(2) For the purposes of subsection (1)(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 the applicant 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. The relevant 'conduct' to which the decision-maker must have regard for the purpose of ss 65(2)(a), (b), (e), (f) and (g) is the conduct that caused the WWC check application to be a WWC category C application. While most of the matters in s 65(2) relate to that conduct, other matters must also be considered. Most relevantly, regard must also be had to the likelihood of future threat to a child caused by the applicant (s 65(2)(h)) and any other matter that the Secretary considers relevant to the application (s 65(2)(j)).
2. We pause to note that, in this case, the relevant 'conduct' is TXD's conduct in 2014, which resulted in charges being brought against him in 2015 for the offence of 'grooming for sexual conduct with a child under the age of 16' and 'using a carriage service to "groom" persons under 16 years of age' (the '2015 charges'). We will address this alleged conduct further below.
3. If the Secretary refuses to give a WWC clearance pursuant to s 65 of the WS Act, the Secretary must instead give a WWC exclusion.[14] Pursuant to s 105(1)(b) of the WS Act, VCAT has jurisdiction to review decisions of the Secretary to give a WWC exclusion on a WWC category C application.
4. VCAT's jurisdiction to review such a decision, which must be exercised in accordance with s 108 of the WS Act, requires the Tribunal to make its own decision on the evidence and law, in accordance with the test prescribed. Section 108 provides:

108 Jurisdiction of VCAT - WWC category C

(1) In a review of a decision to give a WWC exclusion on a WWC category C application or in relation to a WWC category C re-assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2).

(2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that -

(a) a reasonable person would allow their 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 a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.

1. In the course of argument, possible disharmony between the operation of ss 108 and 65 of the WS Act was raised. Relevantly, under s 108(1), the Tribunal is directed to have regard to the s 65(2) factors in determining whether 'in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2)'. However, due to the disjunctive nature of ss 65(1)(a) and (b) and the opening words of s 65(2), it appears that the Secretary does not need to have regard to the s 65(2) factors in circumstances where s 65(1)(b) was satisfied. A subsidiary issue is whether the Tribunal ought consider the s 65(2) factors only under s 108(1) or whether they are also relevant to s 108(2).
2. Counsel for the Secretary suggested that this inconsistency may be the result of the apparently different presumptions between s 65 and s 108: namely, s 65 is premised on the assumption that the Secretary must give the WWC clearance unless certain tests are satisfied; whereas at least s 108(2) requires that VCAT must determine it appropriate to refuse WWC clearance unless certain matters are satisfied. However, counsel for the Secretary interpreted s 108 as allowing the Tribunal to have regard to the s 65(2) factors alongside the s 108(2)(a)-(b) factors, even if it is not required to do so under the WS Act.
3. A reading of ss 108 and 65 that would reconcile any disharmony between them is for the Tribunal to first address s 108(2) and then, only if satisfied of either ss 108(2)(a) or (b), to consider s 108(1). In doing so, the Tribunal must have regard to each of the mandatory considerations under s 65(2) when performing its task under s 108(1) and may have regard to them for the purpose of s 108(2). In this regard, we note that the factors listed under s 65(2) may provide a framework for the Tribunal to reach a state of satisfaction as to ss 108(2)(a) or (b). It is, however, unnecessary for us to express a concluded view on these matters.
4. VCAT's powers including upon re-assessment under the WS Act are also governed by the VCAT Act, several provisions of which have bearing on the present application. Sections 97, 98 and 102 relevantly 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.

(2B) Subsection (2A) is subject to any other provision of this Act, an enabling enactment or any other law that provides that evidence or material is not admissible in a proceeding.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.

...

102 Evidence

(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.

1. As to applications for leave to appeal to this Court, first, pursuant to s 14C of the Supreme Court Act 1986, this Court can only grant such an application if it is satisfied that the appeal has a real, as opposed to fanciful, prospect of success.[15] Even if the Court is so satisfied, there remains a residual discretion to refuse leave.[16]
2. Second, under s 148(1)(a) of the VCAT Act, this Court's jurisdiction is limited to the resolution of questions of law. As was put by Garde AJA (with whom Tate and Kyrou JJA agreed) in Patsuris v Gippsland and Southern Rural Water Corporation:

Section 148 does not confer a general right of appeal on the merits of a case. If no threshold question of law can be identified, the case is not suitable for the type of restricted appeal that s 148 provides.

The 'question of law' requirement in s 148 confers a limited capacity on the Court to review findings of fact made by a Tribunal member. The requirement in s 148 to state a question of law is germane to the capacity of the Court to review findings of fact made by a Tribunal member. The identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[17]

1. Third and relatedly, the limitation imposed by s 148 has been said to impose a 'significant constraint' upon the role of the Court in reviewing the decision and reasons of an administrative tribunal.[18] As this Court said in Secretary to the Department of Justice and Regulation v OUX (A Pseudonym) ('OUX'):

This 'practical as well as principled restraint' means that the Court 'will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts'. Hence, the reasons of the Tribunal for the decision under review 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'. The reality is 'that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'.[19]

1. It is necessary to set out in some detail the work history of TXD, the allegations made against him and the investigations undertaken as a result.
2. TXD is currently 36 years old and residing in Tasmania with his wife and step-child.
3. In 2006, TXD applied for and successfully obtained the equivalent of a WWC clearance under the WC Act 2005, being an 'assessment notice' and a 'working with children card'. In 2009, his assessment notice and working with children card were renewed. On 28 May 2010, TXD was provisionally registered as a teacher with the Victorian Institute of Teaching (the 'VIT').[20] He was granted full registration on 10 November 2011.

The 2011 allegations concerning Child 1, Child 2 and Child 3

1. On 1 February 2011, TXD commenced teaching at a primary school in Mt Eliza. He taught grades 1 and 2. During his employment at this school, three allegations of inappropriate physical contact were made against TXD (collectively, the '2011 allegations').
2. First, on 29 November 2011, an allegation was made that TXD had inappropriately touched a student (i.e. Child 1) in the classroom, with about 18 to 20 students present, including Child 1's twin sister. More specifically, Child 1's allegation was that TXD had touched his back, stomach and groin area through Child 1's pants between one and five times between 27 April and 23 September 2011.[21] On each occasion it was alleged that Child 1 was standing at TXD's desk while TXD was seated at his desk. We will refer to the allegations of Child 1 as the 'Child 1 allegations'. From the day that the Child 1 allegations were made, TXD was suspended from teaching on full pay by the Department of Education and Training ('DET').
3. On 7 December 2011, Victoria Police commenced an investigation into the Child 1 allegations. As part of this investigation, it appears Child 1 was interviewed by police on 29 November and 5 December 2011 and Child 1's mother made two statements to police on 2 December and 9 December 2011. These contemporaneous documents did not form part of the material before the Tribunal. The investigation concluded around 6 February 2012, without any charges being laid against TXD. This is said to be because the family of Child 1 did not want to put their son through a court process and were relocating overseas.[22]
4. Second, on or about 6 December 2011, an allegation regarding a second student (i.e. Child 2) was made against TXD. A witness alleged they had seen TXD sitting in a chair with his legs spread wide, allowing Child 2 to stand between his legs, close to TXD's groin and inner thigh.[23]
5. Third, on or about 7 December 2011, an allegation regarding a third student (i.e. Child 3) was made against TXD. A witness alleged they had seen TXD during either Term 2 or 3 of 2011 rubbing Child 3's stomach while Child 3 was seated in a chair and TXD was crouched down beside him.[24] The identity of Child 3 was never determined.

1. In early 2012, the DET conducted a review into the 2011 allegations. Elaine Vitale of the DET prepared an initial report (the 'Vitale report'). It contained a number of annexures including a statement made to the police by Child 1's mother and a summary of the disclosure by Child 1 made on 29 November 2011 written by Detective Senior Constable Henry.
2. As to the summary of Child 1's disclosure, the Vitale report records, among other things, that:

(a) during Terms 2 and 3 of 2011, TXD put his hand on Child 1's 'private parts' on around five occasions;

(b) it happened in the classroom when TXD called Child 1 up to the front of the class;

(c) TXD would put his hand on Child 1's back or shoulder, then 'rub [his] tummy' then put his hand on Child 1's groin; and

(d) Child 1 had seen TXD touch another child 'down by the groin' but did not know if TXD had made contact with this other child's groin.

1. The Vitale report also records TXD's response to the Child 1 allegations: TXD denied touching Child 1's groin and said that the only time he made physical contact with Child 1 was when he patted Child 1's shoulders in the library in Term 2. Ms Vitale's report records that TXD later admitted that there may have been other occasions that he touched TXD, namely there 'may have been times when we have put my hand on [Child 1's] head or back too', for example when indicating for students to move aside.
2. The Vitale report concluded, in substance, that although the evidence was inconclusive, it was 'more likely than not' that Child 1's allegations were supported by evidence. The Vitale report found the Child 2 and Child 3 allegations were both supported on the evidence.[25] The Vitale report (without any annexures) was part of the material before the Tribunal.

1. The Vitale report was reviewed in May 2012 by Peter Greenwell (the Regional Director for the DET's southern metropolitan region and the ultimate decision-maker) (the 'Greenwell report'). We have assumed Mr Greenwell reviewed the full Vitale report (i.e. with annexures). In contrast to Ms Vitale, Mr Greenwell found that only the Child 2 and Child 3 allegations were substantiated.[26] Most relevantly, Mr Greenwell found that the Child 1 allegations were not substantiated by the evidence. This conclusion was based primarily on the fact that Mr Greenwell was not prepared to find that the Child 1 allegations were proven to the required standard on the strength of Child 1's allegations alone, in circumstances where the Child 1 allegations were very different to the Child 2 and Child 3 allegations and TXD consistently denied the Child 1 allegations. We note that the Greenwell report records both the substance of Child 1's allegations (i.e. TXD touched him on more than five occasions between 2011 on Child 1's 'hips, stomach and penis') and TXD's response (i.e. that TXD denied that he touched Child 1 on the penis outright but that he only recalled touching him on the shoulders).
2. No disciplinary action was ultimately taken against TXD.
3. No police investigation was conducted regarding the Child 2 or Child 3 allegations.

1. On 16 July 2012, TXD's suspension was lifted, and he commenced teaching at a primary school in Hampton.
2. On 21 February 2014, TXD applied for a renewal of his assessment notice and working with children card, as his were about to expire. On 11 March 2014, TXD's application was successful, and he was given an updated assessment notice and received his working with children card. In late 2014, during TXD's employment at this school, Child 4 made allegations against TXD (the 'Child 4 allegations'), which resulted in criminal charges being laid. These charges led to TXD's present application being a WWC category C application. The background to the Child 4 allegations is as follows.
3. Child 4 was a student of the primary school TXD taught at throughout 2013, but was not taught by TXD. After the conclusion of the school year in December 2013, TXD commenced a mentoring relationship with Child 4. Child 4's mother requested the mentoring relationship, as a consequence of Child 4's behavioural issues. In 2014, Child 4 commenced at a different school.
4. TXD's mentoring of Child 4 involved providing gifts pursuant to a system that rewarded good behaviours (including a PlayStation, clothes and a teddy bear), TXD taking Child 4 on social outings and, on three occasions, overnight stays with TXD in TXD's home, all of which occurred with the full knowledge and approval of Child 4's mother. TXD has admitted to Facebook conversations in which TXD referred to wanting to hug Child 4 and sending Child 4 messages saying he 'loved' him.[27] We will refer to this conduct as the '2014 conduct'. During the relevant period, TXD was aged between 26 and 27 years old and Child 4 was aged between 11 and 12 years old.
5. In September 2014, contact between TXD and Child 4 ceased after Child 4 made allegations regarding TXD (i.e. the Child 4 allegations) to his mother, who subsequently reported those allegations to Victoria Police.
6. On 6 October 2014, as a consequence of the Child 4 allegations, TXD was once more suspended from teaching duties by DET.

The 2015 charges concerning the Child 4 allegations

1. On or about 10 August 2015, as noted above, police charged TXD with two sexual offences: 'grooming for sexual conduct with a child under the age of 16' and 'using a carriage service to "groom" persons under 16 years of age' (i.e. the 2015 charges).
2. Between 12 and 17 August 2015, police informed the Secretary of the Child 4 allegations and the 2015 charges. As a consequence of the 2015 charges, the following actions were taken against TXD:

(a) on 19 August 2015, he was issued an 'interim negative notice' under the WC Act 2005 (equivalent to an interim WWC exclusion under the WS Act);[28]

(b) on 4 September 2015, his employment was terminated by DET;

(c) on 9 September 2015, his assessment notice and working with children card were revoked by the Secretary and he was issued with a 'negative notice' (equivalent to a WWC exclusion); and

(d) on 10 September 2015, his teacher registration was suspended by VIT.

1. On 10 June 2016, after a committal hearing, TXD was committed to stand trial on one of the charges: the charge of grooming for sexual conduct with a child under the age of 16. The other charge was struck out. The trial took place in the County Court of Victoria from 7 to 22 February 2017. On 22 February 2017, TXD was acquitted by a jury, following 20 minutes of deliberations.
2. We pause to note that the material before the Tribunal included a portion of the transcript of the County Court proceedings, including the evidence of the mother of Child 4, and teachers Stacey Weston and Sally Newport (but excluding the evidence of Child 4) and also a summary of the evidence of those same witnesses (i.e. also excluding Child 4). The Tribunal also had before it the County Court judge's reasons for ruling that the transcript of Child 4's evidence in the criminal trial against TXD ought not be released to TXD.
3. On 28 February 2017, VIT revoked the suspension of TXD's teacher registration.
4. On 2 March 2017, TXD made another application to the Secretary for an 'assessment notice'. His application was successful and on 7 March 2017 he was given an assessment notice and received his working with children card.

VIT's further investigations into the Child 1 and Child 4 allegations

1. In addition to the criminal proceedings, VIT commenced its own investigations into TXD's conduct in relation to Child 1 and Child 4.
2. First, on or about 5 July 2017, VIT commenced an investigation into the Child 4 allegations. During the course of this investigation, TXD was assessed by a psychiatrist at VIT's request. The psychiatrist's report dated 28 April 2018 found that TXD had no mental impairment. Additionally, TXD was assessed by Dr Lisa Warren, a forensic psychologist, also at the request of VIT. In her report dated 19 June 2018, Dr Warren recommended, among other things, that:

[T]he reinstatement of TXD's teaching registration not be considered as he would be an unacceptable risk to vulnerable primary school children until [he] undertakes supervision and the supervisor reports to the VIT they are satisfied that any deficiets [sic] in his insights and professional boundaries and ethics have been sufficiently addressed.[29]

1. Dr Warren's ultimate conclusion in relation to the Child 4 allegations was that TXD had:

at best engaged in misguided goodwill and overstepped ethical boundaries by engaging in his relationship with [Child 4]. The lack of insight is the greatest risk factor discoverable, our opinion is for [TXD] to undergo extensive training before being re-evaluated for any teaching role.

1. On 6 July 2018, the VIT issued TXD with an interim suspension to his teacher registration. On 24 October 2018, VIT referred the Child 4 allegations to a formal hearing.
2. Between April and December 2018, TXD undertook professional development training with regard to professional boundaries and ethical decision-making. This training was conducted under the supervision of TXD's colleague, Pamela Munro-Smith. At the conclusion of this training, Ms Munro-Smith reported to VIT that TXD was ready for reinstatement of his teacher registration, noting TXD's commitment to implementing the insights he had obtained.[30]
3. Second, on 2 October 2018, VIT commenced its own investigation into the Child 1 allegations. For the purpose of the investigation, TXD was assessed by a different forensic psychologist, Pamela Matthews. By report dated 8 March 2019, Ms Matthews concluded that TXD did not present a sufficient risk to children to warrant him being prevented from teaching. VIT conducted the 2019 interviews being the interview with Child 1 on 25 January 2019 (i.e. the Child 1 interview) and with his twin sister on 13 February 2019 (the 'sibling interview'). Both of Child 1's parents participated in the Child 1 interview and Child 1's father participated in the sibling interview.
4. On 18 April 2019, the VIT revoked the interim suspension of TXD's teacher registration (effective 23 April 2019), stating that TXD did 'not pose an unacceptable risk of harm to children' and that 'the interim suspension was no longer necessary to protect children'. However, VIT also stated that this did 'not affect the [VIT's] current inquiry into [TXD's] alleged conduct'.
5. On 10 June 2019, TXD moved to Tasmania. Earlier in 2019, he had applied to the Teachers Registration Board in Tasmania (the 'TRB') for registration as a teacher in that State. This application was refused on 8 October 2019, on the basis of the allegations that have been made about TXD in Victoria. On 13 October 2019, TXD appealed the TRB's decision to the Magistrates' Court of Tasmania. On 16 November 2020, the Magistrates' Court of Tasmania affirmed the TRB's decision.
6. On 15 November 2019, VIT issued TXD with notification of a formal hearing which would consider the Child 1 allegations, the Child 4 allegations and whether TXD was fit to teach. The formal hearing commenced on 22 April 2022 and is ongoing.

1. As noted above, on 10 January 2022, TXD applied under the WS Act for a WWC clearance, which, on account of the 2015 charges, was a WWC category C application. This categorisation had not been applicable to his previous applications.
2. On 8 March 2022, the Secretary gave TXD an interim WWC exclusion and, as a result, VIT once again suspended his teacher registration on 31 March 2022. Subsequently, on 6 May 2022, the Secretary gave TXD a WWC exclusion, causing VIT to cancel TXD's teacher registration on 9 May 2022.
3. On 31 May 2022, TXD made an application to VCAT for review of the Secretary's decision to give TXD a WWC exclusion and for a stay of that WWC exclusion (the 'VCAT application').
4. On 21 September 2022, the Tribunal made orders to compel the VIT to produce certain materials ('21 September orders'). We will discuss this further in relation to the fresh evidence application and proposed ground 1.
5. The final hearing of the VCAT application was on 1 December 2022 (the 'VCAT hearing'). Only TXD gave evidence and was cross-examined. TXD admitted that in 2011 he may have touched children on the chest to calm them down but that TXD had since changed this practice. As to Child 1, TXD denied ever touching Child 1's genitals. However, he did say that Child 1 was an emotional child who had difficulties with his parents and his friends and that Child 1's mother would come into the classroom on a 'daily basis' because she was not happy with the education system and 'abused [TXD] in front of people, to the extent that we had to have a second teacher in the classroom to deal with her when she came into the classroom'.

1. At the outset, it is appropriate to summarise the Tribunal's key findings. We will then discuss the parts of the reasons relevant to the proposed ground of appeal under which they are challenged.
2. Consistently with s 108 of the WS Act, the Tribunal stated that in order for TXD to succeed in his review of the Secretary's decision (i.e. the decision to give him a WWC exclusion), the Tribunal needed to:

(a) have regard to the matters to which the Secretary must have regard under s 65(2) ('s 65(2) factors');

(b) be satisfied that a reasonable person would allow their child to have direct contact with the applicant (i.e. TXD) while the applicant was engaged in any type of child-related work (s 108(2)(a)); and

(c) be satisfied that the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children (s 108(2)(b)); and

(d) be satisfied that it is in the public interest to give the clearance (s 108(3)).[31]

1. The Tribunal canvassed the submissions and evidence in relation to each of these matters.[32] Ultimately it concluded that it was not appropriate to refuse to give a WWC clearance having regard to the s 65(2) factors.[33] So too, the remaining matters outlined above at [65] were also resolved in fa[34]ur of TXD.34
2. The Tribunal considered the nature of TXD's conduct that was the subject of the 2015 charges and the 2011 allegations. As to the 2015 charges, it observed that one of the charges was struck out or withdrawn at committal and one proceeded to trial, where TXD was acquitted.[35] The Tribunal also gave 'significant weight' to the nature and circumstances of the acquittal: it occurred after a full trial of the evidence and the jury returned a verdict within 20 minutes.[36]
3. The Secretary urged the Tribunal to find that the Child 4 allegations underlying the charges were not without foundation,[37] particularly in light of TXD's admissions in respect of some of the 2014 conduct (which was the subject of the 2015 charges).[38] However, the Tribunal considered that TXD had 'plausible and persuasive' responses to each specific matter raised against him.[39] For example, the Tribunal had regard to the full knowledge of Child 4's mother of the mentoring arrangements and found that the modest nature of most 'rewards' (the gifts provided to Child 4) indicated that they were in line with a behavioural management system.[40] For this reason, it ultimately concluded that, in light of the portions of the available transcript of the County Court proceeding, the VIT investigation and the cross-examination of TXD before VCAT, there 'is a likely and innocent alternative characterisation of the relationship'.[41]
4. As to the Child 1 allegations, after having reviewed all the material before the Tribunal, it was satisfied by TXD's explanation in relation to Child 1.[42] The Tribunal noted that, while the Secretary submitted Child 1 was a 'credible complainant', there was also evidence to demonstrate the credibility of TXD (who gave evidence before the Tribunal denying that he ever inappropriately touched Child 1).[43] The Tribunal noted that there was the explanation of TXD 'as to a different version of events' based on the evidence of TXD as to the issues he had with Child 1's mother.[44] The Tribunal also relied on the fact that no criminal charges were laid and that the DET ultimately found that the Child 1 allegations were unsubstantiated.[45] For these reasons, the Tribunal concluded that it was satisfied with TXD's explanation of the Child 1 allegations.[46]

Fresh evidence application and proposed ground 1

1. There is much overlap between the issues for consideration in relation to proposed ground 1 and the fresh evidence application. It is convenient to consider them together.
2. Proposed ground 1, and the question of law on which it relies, are in the following terms:
   1. Did the Tribunal fail to exercise its review jurisdiction by ignoring or overlooking material that was relevant to its statutory task of assessing whether giving [TXD] a WWC clearance would pose an unjustifiable risk to the safety of children?

...

1. As to Question A:

(a) By order dated 24 November 2022, and before the hearing of the review, the Tribunal directed that a recorded interview was not to be relied upon the hearing because it did not have 'sufficient probative weight.' The relevant interview was between a Child who had made allegations about TXD and a Victorian Institute of Teaching Investigator.

(b) The recorded interview was relevant to the Tribunal's task of review under s 108 of the WS Act.

(c) By excluding the recorded interview, the Tribunal failed to fulfill its statutory review task by failing to evaluate all of the material that was centrally relevant to its task.

1. The point of law raised by proposed ground 1 is whether the Tribunal 'failed to exercise its review jurisdiction' by not having regard to the Child 1 interview, which was relevant to its statutory task. Further, relying upon the affidavit of Kate Ashdown, affirmed 4 October 2023, the Secretary sought to adduce and rely upon the following evidence:

(a) the audio file of the interview between officers of the VIT and Child 1 dated 25 January 2019 (i.e. the Child 1 interview);

(b) the video file of the interview between officers of the VIT and Child 1's sister dated 13 February 2019 (i.e. the sibling interview); and

(c) the transcripts of the 2019 interviews.

1. The Secretary submitted that, if the Court were to conclude that the 2019 interviews were fresh evidence because they were not relevantly 'before' the Tribunal for the purpose of the Tribunal's substantive consideration of the VCAT application, this Court ought to have regard to the 2019 interviews and the transcripts to determine whether the Tribunal erred in the manner alleged by proposed ground 1.

1. Before dealing with the substance of either the fresh evidence application or proposed ground 1, it is convenient to set out how the 2019 interviews came to be in the Tribunal's possession and then excluded from the substantive review.
2. As noted at [62] above, the Tribunal made the 21 September orders compelling the VIT to produce certain materials, which included the 2019 interviews, by no later than 5 October 2022. The 21 September orders contained a section entitled 'Remarks' which noted that:

(a) the application for this material was made by the Secretary;

(b) TXD did not consent to the 21 September orders;

(c) in making the orders, the Tribunal had considered the powers conferred upon it by ss 108 and s 65(2) of the WS Act and ss 51 and 130 of the VCAT Act and noted that the Tribunal can take into account any matter it considers relevant; and

(d) '[o]nce the Tribunal has received the requested documents, the Tribunal will assess the relevance of and any weight to be given to the documents'.

1. On 3 November 2022, the Tribunal released recordings of the 2019 interviews to the parties and ordered that the Secretary and TXD file and serve submissions about the 'relevance and admissibility' of those recordings for the purpose of the VCAT application.
2. In response, TXD and the Secretary produced detailed written submissions, spanning 12 and nine pages, respectively. The Secretary submitted that the Child 1 interview should be admitted: it was directly relevant to the Tribunal's task, being a direct account from the child who had made allegations against TXD; it would always be open to the Tribunal to review the Child 1 interview and afford it no weight. The Secretary did not submit that the Tribunal should have regard to the sibling interview.
3. TXD submitted, in substance, that the 2019 interviews should not be admitted for several reasons: the Child 1 allegations (to which the 2019 interviews related) were not 'the conduct' under s 64 of the WS Act (to which s 65 is directed); they were conducted seven years after the Child 1 allegations were made and contained substantial involvement from the children's parents; the evidence was untested; and admitting the 2019 interviews would be highly prejudicial given that TXD could not rely upon Child 4's evidence in the County Court trial in which TXD was acquitted and Child 1 would not be cross-examined. However, TXD submitted that if the Tribunal did have regard to the Child 1 interview, it should also have regard to the sibling interview.
4. The Tribunal made an order on 24 November 2022 that the 2019 interviews were not to be relied upon at the VCAT hearing ('24 November order'). The 24 November order provided as follows:

Having reviewed the submissions filed by the parties in accordance with the orders of the Tribunal dated 3 November 2022, and having been satisfied that the recorded [2019] interviews referred to in those orders do not have sufficient probative weight, the Tribunal directs that the recorded [2019] interviews are not to be relied upon at the hearing in this matter.

1. The Secretary requested written reasons for the 24 November order. The Tribunal refused to provide them. The 24 November order is not the subject of this application.
2. We pause to note that the Secretary submitted that there is no evidence that the Tribunal viewed or listened to the 2019 interviews prior to making the 24 November order.

1. As noted above, the VCAT hearing was held on 1 December 2022. The Secretary did not call any witnesses. As set out above, there was information presented to the Tribunal relating to the Child 1 allegations. Most relevantly:

(a) the Vitale report summarised at [31] to [34] above, which was based upon, among other things, the summary of the disclosure by Child 1 to police on 29 November 2011 prepared by Detective Senior Constable Tony Henry and the statement to police made by Child 1's mother. These last documents were exhibited to the Vitale report, but were not in the version before the Tribunal;

(b) the Greenwell report summarised at [35] above;

(c) the opening submissions before the VIT hearing, which commenced on 22 April 2022, which recorded in relation to the Child 1 allegations that:

(i) on the evening of 29 November 2011, Child 1 was interviewed by police in a VARE (video and audio recorded evidence);

(ii) Child 1 described a repeated process in which TXD, while sitting at his desk, would call Child 1 over to him and touch his genitals with his hand; and

(d) the Secretary's determination.

1. The Tribunal also had the expert reports, including the evidence of the professional development training undertaken by TXD since 2011 with regard to professional boundaries and ethical decision making. As noted above, TXD gave evidence and was cross-examined.
2. As noted above, after having reviewed all the material before the Tribunal, the Tribunal was satisfied by TXD's explanation in relation to Child 1[47] and formed the view that TXD did not pose an unjustifiable risk to the safety of children.[48] The Child 1 allegations were primarily considered under ss 65(2)(h) and (j) of the WS Act.

1. The Secretary's primary position was that the fresh evidence application was unnecessary. The Secretary contended that the 2019 interviews were before the Tribunal because they formed part of the Tribunal's file at the time the substantive decision on the VCAT application was made, noting that the Tribunal distributed the material to the parties and the parties made submissions in relation to its relevance and admissibility. However if leave is required, the Secretary contended that the 2019 interviews are relevant to this Court's task in assessing the application for leave to appeal (and if leave is granted, the appeal). This is because, by proposed ground 1, the Secretary is asserting that the Child 1 interview was relevant to the Tribunal's statutory task and by excluding the Child 1 interview in particular, the Tribunal failed to exercise its review jurisdiction. As to the transcripts, the Secretary submitted that they were prepared for the Court's convenience and do not constitute a discrete piece of evidence.
2. The Secretary made several submissions regarding the substance of proposed ground 1, which are also relevant to whether the fresh evidence ought be admitted.
3. First, the Secretary contended that the review jurisdiction conferred on the Tribunal by ss 105 and 108 of the WS Act required it to take into account evidence before it that rationally bore on the state of satisfaction required by s 108.
4. Second, the Secretary submitted that, having regard to the statutory task under the WS Act and the nature of the 2019 interviews, the Child 1 interview was 'centrally relevant' on the basis that it was a direct, recent account of Child 1's allegations against TXD. While proposed ground 1 only related to the Child 1 interview, counsel for the Secretary also relied upon the sibling interview as 'there's nothing the sister says that detracts from what Child 1 says'.
5. As to the statutory task, the Secretary submitted that s 108 is concerned with forecasting risk and that, having regard to the nature, purpose and scope of the WS Act, the Tribunal's decision to ignore the 2019 interviews meant that it failed to fulfil its statutory review task. In this regard, the Secretary referred to various provisions of the WS Act, including ss 1(b), 11, 65(2) and 108(1)-(2). The Secretary submitted that the central issue in the VCAT application was what weight the Tribunal should give to the various allegations against TXD in assessing future risk; the past being a guide to the future.
6. Third, the Secretary contended that the Tribunal could not exclude the 2019 interviews before having appraised all the other relevant material, and particularly the cross-examination of TXD. In part, it was submitted that this is due to the significance of the Child 1 interview (i.e. being a direct account), which meant this evidence could not be rejected at an interlocutory stage. At the hearing of this application, counsel for the Secretary was asked whether it is correct to say that the Tribunal ignored the Child 1 interview in circumstances where submissions were received and the Tribunal decided it was not sufficiently probative. Counsel's response was that the Tribunal needed to consider this question in combination with the other pieces of evidence: whether the material was probative depended upon the other material adduced.
7. Fourth, to address TXD's contention that other relevant material existed, counsel for the Secretary submitted that the Secretary is not obliged to seek material from the VIT or anywhere else as there is no obligation on it to make enquiries. Further, the 2019 interviews were more centrally relevant because they were 'before' the Tribunal and the other material was not.
8. Fifth, the Secretary accepted that the Child 1 allegations did not form part of the 'conduct' that is the primary focus under s 65(2) (i.e. the 2014 conduct which led to the 2015 charges), but submitted they were relevant to other matters, namely s 65(2)(j), which may be decisive, having regard to the purpose of the WS Act.
9. Finally, as to the test for materiality, the Secretary submitted that the question is whether the outcome could realistically have been different if the 2019 interviews were admitted (not whether they would have led to a different outcome). It was submitted that this test was satisfied because the 2019 interviews would have raised issues about the credibility of both TXD and Child 1.
10. TXD also advanced similar submissions with respect to the fresh evidence application and the substance of proposed ground 1.
11. First, TXD submitted that the Tribunal had acted consistently with s 98 of the VCAT Act in relation to the 2019 interviews. This was because it afforded the parties procedural fairness by seeking submissions on whether to have regard to the 2019 interviews and it was clear that making the 24 November order was within the Tribunal's powers (referring to ss 97, 98, 102 and 107 of the VCAT Act). TXD submitted that the Tribunal is not required to consider every piece of evidence (whatever its probative value).
12. Second, TXD submitted that although the Tribunal was not required to give reasons for the 24 November order, the following matters may be relevant to this Court's assessment of proposed ground 1 and the fresh evidence application: the 2019 interviews were unsworn evidence; Child 1 was not, and has never been, cross‑examined; Child 1's parents were freely making comments during the 2019 interviews; the 2019 interviews took place seven years after the relevant events; and, after participating in the 2019 interviews, the relevant VIT investigator concluded that TXD did not pose an unacceptable risk to children.
13. Further, TXD submitted that admitting the 2019 interviews would have extended the VCAT hearing substantially, in circumstances where the Child 1 allegations were not the relevant 'conduct' for the purposes of ss 64 and 65 of the WS Act.
14. Third, TXD submitted that the Secretary elected not to adduce into evidence and rely upon other material relating to the Child 1 allegations, including several documents listed in the index for the VIT hearing, including affidavits of Child 1 and Child 1's family and copies of the police interviews with Child 1. TXD submitted that the Secretary could have, but did not, call Child 1 to give evidence at VCAT. Further, TXD observed that the VIT index reveals that the Child 1 interview and the sibling interview were not provided to the VIT hearing. TXD submitted that this is because the VIT had considered that they were not relevant or admissible. In all these circumstances, TXD asserted that it was 'not essential' for the Tribunal to have regard to the 2019 interviews.
15. Fourth, if this Court is of the view that the 2019 interviews were 'before' the Tribunal, TXD submitted that the Tribunal assessed the recordings and was satisfied they did not have 'sufficient probative weight' and should not be relied upon. As a result, TXD submitted that it was open to the Tribunal to reach its conclusion with respect to the Child 1 allegations on the material before it in the substantive hearing of the VCAT application. So too, if it is determined that they were not 'before' the Tribunal, TXD relied upon authority to the effect that evidence not before a primary decision maker is not generally admissible in judicial review proceedings.[49] TXD further submitted that the 'particular circumstances of the case' do not favour putting the recordings before the Court. This is because, as noted above, the Secretary had options available to obtain evidence relating to the Child 1 allegations, which the Secretary chose not to pursue.
16. Finally, TXD submitted that the transcripts, which were not before the Tribunal or the subject of the 24 November order, should not be used by the Court, even for convenience. This is because they were said to lack the nuances of the recordings and may be misleading.

1. Ignoring relevant material in a way that affects the exercise of a decision-maker's power constitutes jurisdictional error and will vitiate the relevant decision, as it amounts to a failure to perform the statutory function. This principle was summarised by this Court in Chang v Neill ('Chang') as follows:

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.[50]

1. Thus, the fundamental question is whether the relevant material is an 'essential feature of',[51] or 'centrally important to'[52] the valid exercise of the statutory function, having regard to the subject matter, scope and purpose of that statutory function. This is a significant hurdle; clearly 'essential' and 'centrally important' connote something more than mere relevance.
2. To consider this proposed ground, it is first necessary to consider the subject matter, scope and purpose of the statutory function imposed on the Tribunal pursuant to s 108 of the WS Act. Based on the provisions of the WS Act set out above:

(a) the subject matter of s 108 is that the Tribunal is vested with the power to review decisions of the Secretary related to WWC category C applications, being a special category of application where the applicant meets certain criteria (which relevantly include having been charged with a sexual offence against a child which has been finally dealt with other than by way of conviction or finding of guilt);

(b) the purpose and scope of s 108 are interrelated, namely VCAT must determine whether, in the particular circumstances, it would be appropriate to refuse a WWC clearance for such an applicant;

(c) in forming its view with respect to (b), the 'paramount consideration'[53] is the protection of children from sexual or physical harm. One of the main purposes of the WS Act is 'to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children';[54]

(d) the Tribunal's task in this statutory context is to weigh the risk to children posed by an applicant, having regard to their previous behaviour. The centrality of future risk to children (and the Tribunal's role in forecasting it) is reflected in the tests contained in the subsections of s 108: s 108(1) specifically incorporates the s 65(2) factors (where each is relevant to the likelihood or risk of future sexual or physical harm to a child caused by the applicant); s 108(2)(a) (which focuses on what a reasonable parent would do); and s 108(2)(b) (which focuses on whether there is an unjustifiable risk to the safety of children); and

(e) the nature of the evidence or material to be relied upon in making its decision is very much within VCAT's power and discretion, subject to VCAT's obligations to act in accordance with natural justice. We will discuss this further below.

1. In Chang, the Tribunal failed to take into account material that was before the Tribunal on its substantive review. By contrast, in the present case the Tribunal determined not to have regard to certain material after considering the parties' submissions in relation to the nature of that material, its admissibility and weight.
2. As noted above, the Tribunal is given power under the VCAT Act to decide what evidence it should receive, and it is not bound by the rules of evidence. The Tribunal is not bound by s 56 of the Evidence Act 2008, which provides, in substance, that all relevant evidence is prima facie admissible in a proceeding. The breadth of the Tribunal's powers in relation to the receipt of evidence is also reflected in s 102(2) of the VCAT Act which provides that the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers there is already sufficient evidence on that matter before the Tribunal. In this context, the Secretary did not suggest that the Tribunal acted other than in accordance with ss 97, 98 and 102 of the VCAT Act.
3. Reading these provisions of the VCAT Act together with the nature of the Tribunal's statutory task under s 108 of the WS Act (as set out at [103] above), it is not the case that the Tribunal is only able to perform its statutory task if it exhaustively considers every available piece of evidence that conceivably may be relevant to weighing the future risk to children. Indeed, s 102(2) of the VCAT Act expressly militates against such a conclusion in circumstances where the Tribunal already has sufficient evidence available on a topic; to admit further evidence in such circumstances would be redundant. Further, certain evidence, while relevant, may be of little cogency or may be attended with such flaws as to make it counter-productive to or of little utility for the purpose of the Tribunal's task. Considering these questions and determining probative value is a matter of judgment, which is reposed in the Tribunal.
4. In this context, it is important to recall that a court will not interfere with an evidentiary ruling of the Tribunal unless satisfied that the discretion of the Tribunal exercised in respect of that evidence wholly miscarried. As Maxwell P said in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd ('Christian Youth Camps'):

Decisions about whether particular parts of the evidence should be admitted - and, if so, for what purpose - were matters for the judgment of the Tribunal. After all, the Tribunal is not bound by the rules of evidence and may inform itself in any way it sees fit, subject always to its obligation to act fairly and 'according to the substantial merits of the case'. Breaches of natural justice aside, appellate intervention in relation to an evidentiary ruling would only ever be warranted if it could be shown that the Tribunal's discretion had wholly miscarried - for example, because of a misapprehension of the matters in issue.[55]

1. In a case such as the present, where it is said by reference to the test in Chang that the Tribunal's exclusion of material from evidence caused it to fail to fulfil its statutory review function, nothing is added by asking the more confined question whether the actual discretionary decision to exclude the material wholly miscarried. Of course, the Secretary did not mount an interlocutory challenge against the 24 November order, pursuant to which the Tribunal determined not to have regard to the 2019 interviews.[56] Nor does the Secretary seek directly to challenge that ruling now. Had the Secretary done so, applying Christian Youth Camps, this Court would only interfere with the ruling if it was satisfied that the Tribunal's discretion wholly miscarried. It is unnecessary to address that issue independently, however, because in this case at least it is subsumed in the Chang question. In other words, the Secretary does not submit that, if it is found that, having excluded the 2019 interviews, the Tribunal fulfilled its statutory function, the exclusion of the interviews impugned the Tribunal's ultimate decision on the review application on some other basis.
2. The issue is therefore whether the Tribunal failed to exercise its jurisdiction by failing to take account of material that the Secretary put before it for consideration as part of the review application. It is the wider failure to exercise jurisdiction, rather than the specific ruling, that is the subject of challenge. In our view, in order to determine that challenge, the Secretary was entitled to put before the Court the material that was available to the Tribunal but was not taken into account, relevantly the 2019 interviews. For that reason, the fresh evidence application, in so far as it concerned the 2019 interviews, was misconceived. In so far as it concerned the transcripts, which were not before the Tribunal at any stage, the material was proffered by way of an aide to understanding the content of the 2019 interviews (and we have read them for that purpose). We do not think that this needed to be the subject of a fresh evidence application either. That application was therefore unnecessary and it should be refused.
3. The critical issue in relation to proposed ground 1 is therefore whether the 2019 interviews were an essential feature of (or centrally important to) the valid exercise of the statutory function of VCAT under s 108 of the WS Act. If the Secretary can demonstrate that the excluded material was 'essential' or 'of central importance' to the Tribunal's statutory task, a jurisdictional error of the kind described in Chang will be established despite the fact that the interlocutory order is not directly challenged.
4. For the reasons that follow, applying the principles elucidated in Chang, we are not satisfied that the 2019 interviews were an essential feature of (or centrally important to) the valid exercise of the statutory function under s 108 of the WS Act.
5. As noted above, in substance, the Secretary contended that the 2019 interviews were of 'central relevance' to the issue whether TXD posed a risk of harm to other children and thus essential to the statutory function of the Tribunal under s 108 of the WS Act.
6. However, 'central relevance' is not the test set out in Chang: rather the test in Chang is whether the material is an 'essential feature of', or 'centrally important to' the valid exercise of the statutory function. We accept that issues relating to the protection of children from sexual or physical harm and the likelihood of a future threat to children caused by TXD were of relevance to the statutory function of VCAT under s 108 of the WS Act, and that the Child 1 allegations were of central importance to that function. However, the Secretary has not satisfied us that the 2019 interviews themselves were of such central importance. This is for a number of reasons.
7. First, there was other material before the Tribunal relating to the Child 1 allegations. We refer to the material set out at [82] above, and in particular, to the details set out in the Vitale report. For the reasons set out below, this material was more than adequate for the Tribunal to perform its statutory task of considering the Child 1 allegations, having regard to the subject matter, purpose and scope of that task as defined by the WS Act. The Tribunal considered and weighed all this material in reaching its ultimate conclusion.
8. Second, there were serious limitations to the material in the 2019 interviews, which affected their probative value and the weight to be given to them, namely:

(a) the 2019 interviews were not sworn evidence;

(b) those interviews were conducted seven years after the relevant events,

(c) the parents of Child 1 took an active role in the 2019 interviews with the result that the interviews were potentially infected by their involvement; and

(d) there was no intention on the part of the Secretary to call Child 1 (or make him available for cross examination).

1. Third, it was not suggested by the Secretary that the 2019 interviews (in particular the Child 1 interview) contained any new information in relation to TXD's conduct with Child 1.
2. We are conscious that the Secretary submitted that the Child 1 interview was relevant to the 'credibility' of Child 1. However, in light of the limitations set out in [115], the 2019 interviews were of very little probative value - as the Tribunal itself concluded - even for that limited purpose.
3. As mentioned above, we have read the transcripts of the 2019 interviews. Having done so, we are satisfied that there were no additional factual matters relevant to the Child 1 allegations raised in the Child 1 interview that were not referred to in the material already before the Tribunal. To the extent that it is relevant, we are also satisfied that the sibling interview contains no additional factual matters relevant to the Child 1 allegations. Child 1's sister did not purport to have witnessed any of the alleged events: she merely commented generally upon Child 1's relationship with TXD.
4. As a result of the foregoing analysis, while we would grant leave to appeal with respect to proposed ground 1, we would dismiss the appeal.
5. To the extent it is relevant, by reason of the matters set out in [114] to [118] above, we also consider that there were very good reasons for the Tribunal to exclude the 2019 interviews on the basis that they were not of sufficient probative value. As a result, we are far from satisfied that the Tribunal's discretion in making the 24 November order wholly miscarried.

1. Proposed ground 2, and the question of law on which it relies, are in the following terms:
   1. Did the Tribunal fall into jurisdictional error by taking into account a consideration that it was bound not to consider alternatively by misconstruing and/or misapplying s 65(2)(e)?

...

2. As to Question B:

(a) At [87] of its reasons the Tribunal noted:

I observe from the evidence from the committal, especially that of the child's mother, that the child was not an immature or naïve and closeted child unfamiliar with sexualised behaviour and was in a domestic environment which was somewhat challenging.

(b) By implication from the nature, purpose and text of the WS Act, the matters adverted to in [87] by the Tribunal were an irrelevant consideration that must not be taken into account in the discharge of its review function.

(c) Alternatively, by considering the matters that are set out in [87], it can be inferred that the Tribunal misconstrued and/or misapplied s 65(2)(e) of the WS Act.

1. As set out above at [11], s 65(2)(e) provides that the decision-maker must have regard to the ages of the applicant and any alleged victim. In considering this matter, the Tribunal made several observations with respect to the age and maturity of both TXD and Child 4. It is appropriate to set out these paragraphs in full:
   1. At the time of the alleged conduct, [TXD] was aged 26 to 27 years old. The child was between 11 and 12 years old. The [Secretary] alleged that this age difference is significant with [TXD] being well into adulthood, having commenced a professional career and should have known better, weighs against [TXD] as it aggravates the power imbalance identified.
   2. I observe from the evidence from the committal, especially that of the child's mother, that the child was not an immature or naive and closeted child un-familiar with sexualised behaviour and was in a domestic environment which was somewhat challenging.
   3. In my view, a young man aged middle to late 20s still has a level of maturity to attain. That said there is a difference between a child of 12 and a grown man of 27. Additionally, his status as a teacher and as a man of this age compared to a child finishing primary school is one of obvious power imbalance. Nonetheless, in the circumstances a young man who is prepared to take on a troubled young child and provide some mentoring and guidance is something which should be encouraged. There is little doubt that the child's mother was grateful for the guidance and assistance [TXD] gave her with respect to her child.

1. In summary, the Secretary submitted that, in having regard to s 65(2)(e), the Tribunal was bound not to consider any matter beyond the ages of TXD and Child 4. In support of this contention, the Secretary submitted that Parliament has specified that only the ages are to be considered under s 65(2)(e). The Secretary asserted that the test and regime of the WS Act would be distorted if victims' personal attributes beyond age may also be considered under this limb.
2. As a result, the Secretary submitted that the matters referred to and taken into account in [87] of the Tribunal's reasons - being Child 4's maturity, familiarity with sexualised behaviour and domestic environment - were irrelevant. Alternatively, it was submitted that the Tribunal misapplied s 65(2)(e) by considering these matters.
3. However, at the hearing of this application, counsel for the Secretary accepted that the matters discussed in [87] of the Tribunal's reasons could have been taken into account under s 65(2)(j) and also that it would have been 'harder to cavil with' if this impugned paragraph was placed under the headings of ss 65(2)(i), (h) or (a).
4. TXD submitted, in short, that [87] of the reasons should not be read in isolation from its context. TXD contended that the surrounding paragraphs reveal that the Tribunal did have regard to the ages of TXD and Child 4, as well as considering the power imbalance between them, and referring to the mentoring and guidance that TXD gave to Child 4.
5. TXD rejected the Secretary's assertion that the Tribunal diluted the age test. Rather, TXD submitted that [87] of the Tribunal's reasons was included to demonstrate why Child 4's mother asked TXD to mentor her son and this paragraph should be read in conjunction with the second half of [88]. Further, TXD contended that this paragraph contains mere observations (rather than findings).
6. Finally, TXD submitted that this Court's comments in OUX are pertinent in this proceeding, in relation to both proposed grounds 2 and 3.[57]

1. Proposed ground 2 has no real prospect of success. In short, the Secretary's contentions place too much emphasis on the fact that [87] of the Tribunal's reasons was recorded under the heading of s 65(2)(e), and remove [87] from its surrounding context.
2. Significantly, the Secretary did not dispute that the matters referred to in [87] (being Child 4's maturity, naivety, familiarity with sexualised behaviour or domestic environment) could properly be taken into account under several s 65(2) factors, namely:

(a) section 65(2)(j): any other matter the Secretary considers relevant to the application;

(b) section 65(2)(h): the likelihood of future threat to a child caused by the applicant; and

(c) possibly s 65(2)(a): the nature and gravity of the conduct.

1. In our view, the matters referred to in [87] are not irrelevant to these statutory factors.
2. Analysis of those factors may be considered in a discrete manner (having regard to one particular factor in s 65(2)) or in conjunction with other relevant matters under that section. Indeed, it appears the thrust of the Secretary's argument was that this paragraph should have been set out under a different heading in the reasons. With respect, the Secretary's submission is premised on construing the reasons minutely and finely with an eye keenly attuned to the perception of error, and is thus inconsistent with the principles in OUX set out in [22] above.
3. In all these circumstances, proposed ground 2 has no real prospect of success and we refuse the application for leave to appeal with respect to it.

1. Proposed ground 3, and the question of law on which it relies, are in the following terms:
   1. Did the Tribunal fall into jurisdictional error by failing to take into account a consideration that it was bound to consider by s 108(1) and s 65(2)(h)?

...

3. As to Question C:

(a) At [101]-[107] the Tribunal set out competing evidence relevant to the question of whether TXD presented a likelihood of a future threat to a child.

(b) The Tribunal did not reject any of that evidence (one way or the other). It follows that there was evidence before the Tribunal that had not been rejected that demonstrated the presence of a future threat to a child.

(c) By [108], it can be inferred that the Tribunal did not give any weight to the likelihood of a future threat to a child presented by TXD.

(d) It follows that the Tribunal failed to take into account the consideration required by s 65(2)(h).

1. As set out above at [11], s 65(2)(h) provides that the decision-maker must have regard to the 'likelihood of future threat to a child' caused by the applicant. The Tribunal dealt with this factor when addressing the s 65(2) factors pursuant to s 108(1) of the WS Act.
2. The Tribunal referred to Kyrou J's explanation of this phrase in Maleckas (LKQ) v Secretary, Department of Justice ('Maleckas').[58] In short, any chance of future threat - regardless of magnitude - is relevant for this factor.[59] Where that chance is assessed to be minimal it will favour TXD; so too, if the chance is assessed to be greater, it will favour the Secretary.[60]
3. The Tribunal referred to the contention of the Secretary that the nature and number of complaints relating to inappropriate touching of children demonstrated the likelihood of future threats to a child if TXD was to engage in child-related work.[61]
4. The Tribunal then set out the following pieces of competing evidence, which the parties relied upon in relation to this factor:

(a) the competing psychological evidence of Dr Warren and Ms Matthews obtained for the purpose of the VIT investigations (see above at [51]-[52] (Dr Warren) and [[[62]](#_Ref158 (b) the recommendation of Ms Munro-Smith (see above at [54]) that TXD was ready for reinstatement of his teacher registration following completion of professional developme[63] training;63

(c) the favourable report provided by TXD's treating psychologist, Tara Couzens in support of his character;[64] and

(d) the Magistrates' Court of Tasmania's finding that TXD's actions in inappropriately crossing teacher-student boundaries would be unlikely to change in the future.[65]

1. The Tribunal canvassed the parties' submissions in relation to this evidence, namely:

(a) the Secretary submitted that Dr Warren's opinion should be preferred, on the basis that the methodology adopted by Ms Matthews was limited, noting that Ms Matthews' report observed that the allegations against TXD were 'thoroughly investigated unsubstantiated allegations'. The Secretary maintained that this observation could readily be discredited, relying on the findings of Ms Vitale (see above at [31]) and admissions of TXD in the County [66]urt trial;66

(b) the Secretary contended that Ms Munro-Smith lacked objectivity, referring to the Magistrates' Court of Tasmania's decision not to accept her evidence;[67] and

(c) the Secretary criticised Ms Couzen's evidence because she treated TXD for anxiety and depression, rather than in relation to child-related risks.[68]

1. The Tribunal concluded this discussion at [108] of the reasons by simply stating 'I am not satisfied that this factor [i.e. s 65(2)(h)] is adverse to [TXD]'.[69]
2. However, the Tribunal further considered the likelihood of future threat to a child caused by TXD when considering ss 108(2)(a) and (b).[70]

1. The Secretary submitted that the reasons disclose legal error on the basis that the Tribunal failed to reject or articulate a basis for discounting the evidence relied upon by the Secretary. Counsel for the Secretary submitted:

(a) the Tribunal's conclusion at [108] must be read as the Tribunal concluding that the magnitude of threat was zero;

(b) 'to get to zero' is a substantial task in light of the evidence pointing in both directions, including towards a degree of future risk, which had not been rejected;

(c) as a result, the Secretary submitted that there was at least some likelihood of a future threat, which was not taken into account; and

(d) consequently, the Tribunal erred by failing to take into account a mandatory relevant consideration.

1. TXD submitted that there was no error of law in the Tribunal's approach. TXD submitted that the terms of s 65(2)(h) do not require the Tribunal to accept or reject evidence: they require the decision-maker to have regard to the factor. TXD contended that the Tribunal complied with this obligation by setting out the competing evidence between [101]-[107] before reaching its ultimate conclusion on the factor at [108] of the reasons.
2. Further, TXD submitted that the Tribunal's consideration of the evidence relied upon by the Secretary should not be viewed in isolation, noting that relevant matters were dealt with elsewhere in the reasons. In this regard, TXD contended that there is a nexus between s 65(2)(h) and the other statutory considerations: TXD referred to ss 65(2)(a), (b), (e), (g), (i) and (j), and the tests under s 108.
3. Finally, TXD asserted that there is always a chance of future threat to a child, which cannot be fully eliminated. Relying on Maleckas, TXD submitted that if the chance of a future threat to a child is minimal, this factor may favour an applicant.[71]

1. Proposed ground 3 has no real prospect of success.
2. The true character of the Secretary's complaint appears to be that the Tribunal did not give sufficient weight to the evidence relied upon by the Secretary. As a result, this proposed ground does not raise a proper question of law.
3. In any event, to the extent that a question of law is raised by this proposed ground, we accept TXD's submission that the text of s 65(2) does not require the Tribunal to accept or reject evidence relied upon in relation to the s 65(2) factors. As outlined above, the Tribunal is directed to have regard to the s 65(2) factors by s 108(1), which provides that VCAT must determine whether it would be appropriate to refuse a WWC clearance 'having regard to any matters to which the Secretary must have regard under section 65(2)'. Having regard to the text of these provisions and the nature of the obligations they impose upon the Tribunal, the Secretary's contention that the Tribunal was required to accept, reject or discount certain evidence is misconceived. No such obligation exists. The Tribunal is merely required to have regard to each s 65(2) factor to reach its ultimate state of satisfaction in s 108(1).
4. Further, we reject any submission to the effect that the Tribunal did not give any weight to or failed to take into account the s 65(2)(h) factor. As noted above, there is much overlap between the statutory tests in s 108. The substance of s 65(2)(h) is likely to be relevant to other factors in s 65(2) (such as ss 65(2)(b) and (g)) and to the tests in s 108(2)).We refer to our comments in [18] above.
5. As a result of this interrelationship, in our view, it is significant that the Tribunal explained elsewhere in the reasons why it did not consider TXD posed a risk to children. By way of example, in the context of s 108(2)(b), the Tribunal concluded that:

In weighing up the evidence, emphasis must be placed on the nature and gravity of the conduct considered in the context of [TXD]'s child-related work as a teacher at that time. Furthermore, a significant period has now passed and in the intervening years [TXD] has educated himself by undertaking professional development training. Therefore, I am satisfied that [TXD] does not pose an unjustifiable risk to the safety of children.[72]

1. The Tribunal made similar comments when considering ss 108(2)(a),[73] 65(2)(b)[74] and 65(2)(g),[75] including when discussing the material relied upon by the Secretary set out in [101]-[107] of the reasons (see above at [138] and [139]). In these circumstances, in our view, it cannot be maintained that the Tribunal erred by failing to take into account a mandatory consideration.
2. Accordingly, proposed ground 3 has no real prospect of success and we refuse the application for leave to appeal with respect to it.

1. I have had the considerable benefit of reading in draft the reasons for judgment of McLeish and Lyons JJA. I entirely agree with the conclusions they have reached and, subject to one minor qualification, their reasons for reaching them. I therefore agree that leave to appeal should be granted, but the appeal dismissed, in relation to proposed ground 1; leave to appeal should be refused in relation to each of the other proposed grounds of appeal; and the application to adduce fresh evidence should be refused.
2. The minor qualification is that, in my view, it is unnecessary to read the transcripts of the 2019 interviews to form an opinion on the merits of the Secretary's proposed ground 1 and the related application to introduce 'fresh evidence'. That is to say, it is unnecessary to read the transcripts to conclude that the 2019 interviews were not an essential feature of (or centrally important to) the valid exercise of the statutory function of VCAT under s 108 of the WS Act. That is because:

(a) a significant body of relevant and contemporaneous material concerning Child 1's 2011 complaint was received into evidence and considered by the Tribunal;

(b) as stated at [116] above, it was not suggested that the 2019 interviews contained any new information in relation to TXD's conduct with Child 1;

(c) as a means of throwing light on the credibility of Child 1's 2011 complaint, the 2019 interviews were inherently flawed (as identified at [115] above);

(d) the Tribunal was vested with the discretion to determine what evidence it should receive; and

(e) after hearing detailed submissions, the Tribunal ordered that the 2019 interviews not be admitted into evidence because they were of insufficient probative value, and that order has not been challenged.[76]

1. Combined, those circumstances make it sufficiently clear, to dispose of proposed ground 1, that the 2019 interviews fell far short of being evidence of such central importance to the Tribunal's statutory task that it could not perform its task without taking that evidence into account.
2. For this reason, I have formed the view that proposed ground 1 must fail without finding it necessary or appropriate to read the transcripts of the 2019 interviews. It follows that I reject the application to adduce fresh evidence.

[1] To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the first respondent.

[2] TXD v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 420 (Quigley J) ('Reasons').

[3] 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 [1980] HCA 13; (1980) 144 CLR 13, 35 (Gibbs, Stephen, Mason, Aickin and Wilson JJ); [1980] HCA 13.

[4] Worker Screening Act 2020, s 1(a)-(b) ('WS Act').

[5] Defined below at [9].

[7] Ibid s 3 (definition of 'WWC check').

[12] There are three categories - A, B and C - with category C being assessed according to the least stringent legal test.

[13] WS Act, sch 5, cl 2. See also, Reasons, [27].

[15] Metricon Homes v Softley [2016] VSCA 60; (2016) 49 VR 746, 748 [5], 755 [22] (Warren CJ, Tate JA and Robson AJA agreeing); [2016] VSCA 60.

[16] Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).

[17] [2016] VSCA 109; (2016) 218 LGERA 167, 179 [43]-[44] (Garde AJA, Tate and Kyrou JJA agreeing); [2016] VSCA 109. See also Fraser v Sperling [2017] VSCA 53 [55]-[56] (Maxwell P, Santamaria and McLeish JJA).

[18] Secretary to the Department of Justice and Regulation v OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) ('OUX') citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, 286 (Neaves, French and Cooper JJ); [1993] FCA 456.

[19] OUX [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA) (citations omitted). See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

[20] The VIT is an independent statutory authority for the teaching profession, whose primary function is to regulate members of the teaching profession to ensure quality teaching, and provide for the safety and wellbeing of children.  The VIT was established by the Victorian Institute of Teaching Act 2001 in December 2002 and undertakes its functions in accordance with the Education and Training Reform Act 2006.

[32] As to the s 65(2) factors: ibid [72]-[137]; as to s 108(2)(a): ibid [138]-[147]; as to s 108(2)(b): ibid [148]-[149]; as to s 108(3): ibid [150]-[154].

[37] Relying upon MDE v Department of Justice and Community Safety (Review and Regulation) [2022] VCAT 742, [48] (Senior Member Billings).

[49] Relying upon Chandra v Webber [2010] FCA 705; McCormack v The Commissioner of Taxation (2001) 114 FCR 574; [2001] FCA 1700; Attorney-General (NT) v Minister for Aboriginal Affairs [1989] FCA 202; (1989) 23 FCR 536.

[50] [2019] VSCA 151; (2019) 62 VR 174, 200 [92] (Maxwell ACJ, Beach and Kyrou JJA); [2019] VSCA 151 ('Chang').

[51] Ibid citing Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, 451 [64] (Kenny, Griffiths and Mortimer JJ); [2013] FCAFC 114.

[52] Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67, 80 [56]-[57] (Katzmann, Griffiths and Wigney JJ); [2014] FCAFC 16.

[55] [2014] VSCA 75; (2014) 50 VR 256, [258]; [2014] VSCA 75 (citations omitted).

[56] It is unnecessary to decide whether the 24 November order was an 'order' within the meaning of s 148 of the VCAT Act. That section provides for an appeal from an order of VCAT, but not from a mere ruling: State of Victoria (Dept of Education) v Turner [2007] VSC 362; (2007) 17 VR 217, 219-20 [9] (Warren CJ); [2007] VSC 362.

[57] [2018] VSCA 178, [36] (Priest, Beach and Weinberg JJA). See [22] above.

[58] [2011] VSC 227; (2011) 34 VR 23, 36 [72]; [2011] VSC 227 ('Maleckas').

[60] Ibid. See Reasons, [97]-[100].

[71] Maleckas [2011] VSC 227; (2011) 34 VR 23, 36 [72] (Kyrou J).

[76] Whether or not the 24 November order could have been challenged, see footnote 56 above.