1. In June 2007, STO applied for a working with children check under the Working with Children Act 2005 (the Act). He was then undertaking a bachelor's degree in early childhood education. The course involved (among other things) practical placements at kindergartens, primary schools and early learning centres. These practical placements clearly constitute child-related work within the meaning of the Act.
2. The Secretary to the Department of Justice (the Secretary) issued him with an assessment notice under the Act in September 2007. Later, after receiving a notification from the Chief Commissioner for Police, the Secretary reassessed STO's continuing eligibility to hold the assessment notice. On 28 July 2008, the Secretary revoked the assessment notice and issued a negative notice, with reasons for that decision given on 28 July 2008. The Secretary classified the matter as a category 3 matter. Relevantly, under s14(1)(bb) of the Act, an application for a working with children check is a category 3 application if it is in respect of a person who has been found guilty or convicted of an offence under s19 of the Summary Offences Act 1996 (wilful and obscene exposure in public). That section makes it an offence (punishable by a maximum term of imprisonment of two years) to wilfully and obscenely expose the genital area of the body in a public place. Section 14(2) obliges the Secretary to give an assessment notice on a category 3 application unless satisfied that, in the particular circumstances, it is appropriate to refuse to do so.
3. Under s26(5) of the Act, among other things, a person given a negative notice following a reassessment may apply to VCAT for review of that decision. This is what STO has done.
4. STO applied for a stay of the operation of the Secretary's decision pending final determination of his application for review. The stay was refused. It is common ground (and it is mentioned in the decision on the stay application) that the review application was made within the time set by s26.
5. In November 2007, STO entered a plea of guilty to a charge for an offence under s19 of the Summary Offences Act 1966. The court, without recording a conviction, adjourned the matter to August 2008 on STO's undertaking to be of good behaviour during the period of adjournment, and ordered that STO must pay $400.00 into the court fund and attend six sessions of counselling with Professor C, a neuropsychologist, that attendance to be confirmed to the court by 1 May 2008.

1. The purpose of the Act is stated in s1(1) to be 'to assist in protecting children from sexual or physical harm by ensuring that people who work with or care for them have their suitability to do so checked by a government body'. The Act sets out the procedure by which a person can apply to the Secretary for a working with children check. The Act permits the Secretary to make enquiries of various persons and bodies in connection with the application. These include a police check. The Act categorises applications. Those categories include category 1, category 2 and category 3. The Act sets out matters to be taken into account in determining applications in each category. The Act then deals with the circumstances in which an assessment notice (which effectively indicates that a person is not unsuitable to do child-related work) may or must be given or may or must be refused.
2. It is an offence for a person to do child-related work where the person's assessment notice has been revoked or the person has been given a negative notice. The purpose of the working with children check is to assess a person's suitability to do child-related work. Child-related work is defined in s9. It is very broad. It covers, for example, paid or unpaid work, work as an employee or under a contract for services, and practical training. It is work that usually involves, or is likely usually to involve, regular direct contact with a child in connection with a service, body, place or activity listed in the section, in circumstances where the contact is not directly supervised by another person.
3. Section 21 relates to the reassessment, by the Secretary, of a person's continuing eligibility to hold an assessment notice. Among other things, the Secretary is required to conduct a reassessment if he or she receives notification from the Chief Commissioner of Police under s41. Section 41 requires the Chief Commissioner of Police to give that notification if the Chief Commissioner becomes aware that the holder of an assessment notice has been charged with a relevant offence. Section 3(1) defines 'relevant offence' as (among other things) an offence mentioned in s14(1)(bb). As I have said, s14(1) explains what are category 3 applications. Under s14(1)(bb), an application is a category 3 application if it is in respect of a person who has at any time (whether before or after the commencement of the section) been convicted or found guilty of an offence against s19 of the Summary Offences Act 1966. Here, the Secretary received notification under s41 from the Chief Commissioner of Police concerning STO, and because the notice concerned an offence mentioned in s14(1)(bb) the Secretary treated the matter as a category 3 matter.
4. Under s21(3), the Secretary may, on a reassessment, do anything he or she has power to do under s11. Section 11 concerns the enquiries and other procedures the Secretary is to follow in considering an initial application for a working with children check. Section 21(3) also provides that the Secretary is not required to consider any matter other than the matter that gave rise to the reassessment. I take this to mean that the Secretary may, if he or she wishes, consider other matters, but is not obliged to do so.
5. Section 21(5) applies, to a reassessment, various provisions of the Act applying to initial applications. They include ss16 to 18, which deal with submissions by the applicant, the outcome of the application and the circumstances in which the Secretary is to give notice of the giving of an assessment notice or of a negative notice to the applicant's employer or certain agencies. Section 21(5) also applies s26 - the provision that gives the right to apply to VCAT.
6. Since s17(3) applies to reassessments, it means that, if the Secretary reassesses the holder of an assessment notice as not being eligible to continue to hold that notice, the Secretary must revoke that assessment notice and issue a negative notice. Section 23 reinforces this position. It gives the Secretary express power to revoke an assessment notice after reassessing the holder's eligibility to hold that notice. Section 23(2) provides that, if the Secretary revokes an assessment notice, the Secretary must give the former holder of the assessment notice a negative notice.
7. In my view, s21 contemplates that the Secretary will reassess a holder's eligibility to continue to have an assessment notice in the same way as he or she would assess an initial application. The categorisation of the application is determined by what brought about the reassessment. So, in this case, because what gave rise to the reassessment was an offence mentioned in s14(1)(bb), the provisions about category 3 applications govern the reassessment. In this case, the Secretary must take into account the matters in s14(3), and must, under s14(2) continue the assessment notice unless satisfied that in the particular circumstances it is appropriate to revoke that notice.
8. I note here that, in my view, the Act contemplates that category 1, 2 and 3 applications relate to matters in descending order of gravity. I say this because of the different ways in which the Act deals with each category. Broadly speaking, under s12(2), the Secretary must refuse to give an assessment notice on a category 1 application. On a category 2 application, the Secretary (under s13(2)) must refuse to give an assessment notice unless doing so would not pose an unjustifiable risk to the safety of children, having regard to a number of specified factors. On a category 3 application, under s14(2), the Secretary must give the assessment notice unless satisfied that in the particular circumstances it is appropriate to refuse to do so. In the scale of categories, then, category 1 is at the top and category 3 at the bottom.
9. This application is made under s26(5) of the Act. Among other things, that permits an applicant who has been given a negative notice because of a decision under s23(1) to revoke an assessment notice to apply to VCAT for review of the decision to give that notice. This right to apply for review is also reinforced by s21(5) of the Act. That provision applies s26 to reassessments in the same way as it applies to an application. Its effect may well be to give a person who has been issued with a negative notice after reassessment a right to apply to have that decision reviewed under s26(5)(b). That provision gives an applicant given a negative notice on a category 3 application a right to apply to VCAT for review of that decision.
10. Clause 103 of Schedule 1 of the VCAT Act provides -

If the proceeding relates to the giving of a negative

notice on a category 3 application within the meaning of

the Working with Children Act 2005 the Tribunal must

(b) whether, in all the circumstances, it is in the

1. It was submitted for the Respondent that this clause means that I could only have regard to s14(3) and not s14(2) of the Working with Children Act. The Applicant made a contrary submission. I agree with the Applicant's submission. Clause 103(a) requires VCAT to take s14(3) into account, but does not require it only to take account of that subsection. Section 14(3) sets out the factors to be taken into account in considering whether it is appropriate to refuse (or on reassessment revoke) an assessment notice. Sections 14(2) and (3) are inextricably linked and must be read and applied together. I also bear in mind that the Tribunal has the function of the decision-maker - here, the Secretary. In my view, since s21(5) of the Working with Children Act applies s26 of that Act to reassessments in the same way as it applies to initial applications, and clause 103 of Schedule 1 of the VCAT Act was inserted by the Working with Children Act into the VCAT Act, Parliament meant that in clause 103 the words 'a proceeding that relates to the giving of a negative notice on a category 3 application' covered not only an initial category 3 application but also a reassessment which, had it been an initial application, could have been characterised as a category 3 application. To put it another way, it is my view that, when s21(5) of the Working with Children Act says that s26 of that Act applies to reassessments in the same way as to applications, it means that those provisions of the VCAT Act that are integral to applications for review under s26 of the Working with Children Act also apply. Clause 103 of Schedule 1 is one of these. It would be a strange result if, on a category 3 application, VCAT must take into account the public interest but, on a reassessment characterised as category 3, it does not have to do so. I do not believe that Parliament intended this result. The parties did not dispute that I should have regard to clause 103.
2. The effect of s51 of the VCAT Act is relevantly this. In reviewing a decision, the Tribunal has the functions of the decision-maker (here, the Secretary), as well as its other functions. In determining a review proceeding, it may affirm the decision under review, vary it, or set it aside and either make a decision in substitution for it or remit the matter for reconsideration by the decision-maker. The Secretary, in making the decision now under review, had regard to s14(2) and (3). Given my view of clause 103 of Schedule 1 of the VCAT Act, so must I. I must also have regard to the public interest.
3. I have mentioned s14(2) already. Section s14(3) is very similar but not identical to s26(2) of the Act. Section 14(3) provides

(3) In considering whether it is appropriate to refuse to give an assessment notice, 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.

1. There are two key differences between s14(3) and s26(2). While ss14(3) and 26(2) are framed in terms of 'offence', s14(3) also speaks of 'conduct'. Unlike s26(2), s14(3) is not framed in terms that the giving of an assessment notice would pose 'an unjustifiable risk to the safety of children'. However, both ss26(2) and 14(3) require the likelihood of any future threat to a child caused by the applicant to be considered.
2. Most of the decided cases under the Act have dealt with category 1 applications. Because of the similarities of s14(3) of the Act and clause 103 of Schedule 1 of the VCAT Act (on the one hand) and s26(2) and (3) of the Act on the other, these cases can provide some general guidance in dealing with category 3 applications and reassessments. But the differences in the respective provisions cannot be forgotten.
3. The decided cases can provide general guidance, but each case must turn on its own facts.[1] One must be cautious before formulating any principles of general application or drawing analogies between the facts of one case and another. The cases demonstrate the care which must be taken in weighing factors required to be taken into account by the Act, in the circumstances of the particular case. This is not a mechanical process. Some of those factors involve the prediction of risk - a heavy and difficult task for the Tribunal.[2]
4. The public interest is a broad concept which the Tribunal should not attempt exhaustively to define. Given that the purpose of the Act is to protect children from sexual or physical harm by ensuring the suitability of those who care for or work with them, this factor must be a primary aspect of the public interest. But there are others, such as not unfairly constraining employment prospects, not discouraging participation in employment or in volunteering in connection with community activities.[3] However, what I have called the primary aspect of the public interest is not automatically determinative and should be weighed with other competing aspects of the public interest. It would be hard to think of a circumstance where the public interest would justify the giving of a negative notice to a person whom the Tribunal was satisfied posed no likelihood of future threat to a child. On the other hand, it would be hard to think of an aspect of the public interest that might override the primary public interest served by the Act - that is, protecting children from sexual or physical harm by ensuring the suitability of those who care for or work with them.[4]
5. Some of the cases suggest that the burden of proof is on the applicant. Others suggest that concepts of burden of proof are inappropriate in this context. In this case, counsel for the Secretary argued that, at the least, the applicant for review bears an evidentiary burden. Counsel for STO argued that, given s14(2) which requires the Secretary to give an assessment notice unless satisfied in the particular circumstances that it is appropriate to refuse to do so, the burden is on the Secretary to show why in this case it was appropriate to revoke STO's assessment notice and give him a negative notice.
6. My approach is this. STO applies for review of the Secretary's decision. Since is it STO's application, STO will need to place before VCAT the evidence on which he relies when he asks VCAT to set the Secretary's decision aside. VCAT then determines the review looking at all the evidence before it, including what is before it from the Secretary and the applicant.

1. I have before me the Secretary's decision and various material on which that decision was based. That material includes what various people said on the telephone to the Secretary's officers. Those people include Ms A (the manager of a school holiday program at a community centre), and a neuropsychologist, Professor C. The material also includes a short report from Professor C written in March 2008, and a letter from Mr D, a friend of STO, and letters from STO himself. I also have an affidavit from STO. That affidavit exhibits another report from Professor C written in September 2008, and letter from Professor E who is in the faculty in which STO studies early childhood education.
2. I have heard oral evidence from STO, Professor C and Dr F (a psychologist specialising in sexual paraphilias). All these witnesses were called on behalf of STO. The Secretary called no evidence but the Secretary's counsel cross-examined the witnesses extensively. The Secretary opposes the application. STO asks the Tribunal to set aside the Secretary's decision and substitute for it a decision that he be given an assessment notice.
3. I found the witnesses both truthful and reliable. I am not prepared, as counsel for the Secretary urged me to do, to place great weight on the fact that STO did not call to give evidence the supervisors of his various practical placements, his academic supervisors, representatives of the organisations where he had worked as a volunteer, his family members, or his friend, Mr D. I accept STO's evidence as truthful, and the letters from Mr D are in the material before me.
4. I also have written and oral submissions from the parties. The evidence was this.
5. STO is in the final year of a four year bachelor's degree in early childhood education, at a Victorian university. That course involves a number of practical placements at kindergartens, primary schools and child care or early learning centres. STO has completed seven of the eight required practical placements. He completed five before the incident which I shall shortly describe, and two afterwards. He has one more placement to complete before he can be awarded his degree. Because of the issue of the negative notice to him, he is unable to complete that placement because it involves child-related work within the meaning of the Act. This means that he cannot complete his degree. His evidence is that is it essential that he complete his degree this year because, from next year, the structure of the course will change or it will not be offered. He gave compelling oral evidence about his enjoyment of the course, his enjoyment of working with children and helping them to learn and his desire to be a teacher. He is currently aged 22.
6. In July 2007, STO went by train from one station to another. He was on his way to attend a community centre, to assist in supervising children attending a holiday program. When he reached the station near the place where the centre is located, it was between 9 and 10.00 am. He entered the station toilet, undressed, and then opened the door leading to the platform. The only person who saw him naked was the station master. The station master was in his late 30s to early 40s. STO later wrote an apology to the station master.
7. STO then went to the community centre at which the children's holiday program was held. He supervised a children's excursion which was part of that program. It seems that the station master informed the police about the incident on the station platform. The police then contacted STO by telephone. It is unclear how the police became aware of his contact details.
8. Later that day, STO told the manager of the children's holiday program about the incident on the platform. It is unclear from the evidence whether he did this before or after he received the telephone call from the police. The manager immediately terminated his employment.
9. STO was charged with an offence under s19 of the Summary Offences Act 1966 (wilful and obscene exposure in public). In November 2007, before the Magistrates' Court, he entered a plea of guilty. The charge was adjourned without conviction and STO was ordered to pay $400 to the court fund and to undertake six sessions of counselling with the neuropsychologist, Professor C.
10. I accept STO's evidence that the only person he has voluntarily told about the incident was Mr D, a longstanding friend from secondary school days. He has not felt able to tell his family about the incident. He has told them that he is attending a VCAT hearing, but not why.
11. STO's evidence was that, before the incident, he had accessed an internet 'chat room' and 'conversed' with a person about exhibitionism. STO understood 'exhibitionism' to mean being naked outdoors. He said that he had then researched exhibitionist sites on the internet for about a month. Professor C's report indicates that STO told him that he had researched exhibitionist sites for three months, and this is consistent with STO's submission to the Secretary. I accept that he researched these sites for three months before the incident. He found them sexually arousing. His behaviour at the station in July 2007 was an impulsive 'acting out' of what he had seen on those sites. I accept his evidence that he did not intend to hurt anyone. But it is clear from the evidence that he appeared naked on the platform without considering who might be there or about any possible consequences of his conduct. While I accept that he is remorseful about the incident, the bulk of his evidence concerned remorse and embarrassment, not so much about what he did, but about its consequences - the charge, the court hearing, the negative notice and the disruption to his course and his potential career. On the whole of the evidence, I am satisfied that STO tends to downplay the seriousness of the incident himself. In cross-examination, he said that, reflecting back, he would agree with Mr D's description of his conduct, as thrill-seeking and no worse than streaking or urinating in public.
12. I am satisfied that STO has not, since the incident, exposed himself naked in public again and has not been charged with any further offences. I accept his evidence that he does not now access exhibitionism-related websites. I accept STO's evidence (which is consistent with what Professor E says in a letter in the material before me) that he has not behaved inappropriately to children during any of his course placements. I accept STO's evidence that he has not behaved inappropriately to children during any of his volunteer work with them.

1. I have before me two reports from Professor C, dated March 2008 and September 2008 respectively. Professor C saw STO for six sessions from October 2007 to March 2008, and for two more sessions in August 2008. Each session lasted approximately an hour.
2. In late August 2008, Professor C referred STO to Dr F. STO has had six sessions with Dr F, from September 2008 to November 2008. Each session lasted approximately an hour.
3. Each of these witnesses is an expert. There is no doubt that Professor C regards Dr F as an expert in the field of sexual paraphilias, which both experts recognise as the area relevant to STO. The evidence of these experts conflicts in one essential respect. It was submitted for STO that I should prefer the evidence of Dr F. It was submitted by counsel for the Secretary that I should prefer, or at least give equal weight to, the evidence of Professor C. I have given equal weight to the evidence of both experts. Although Professor C referred STO to Dr F, there is no doubt that Professor C was qualified to assess STO. Professor C has treated STO for a longer (although not continuous) period, commencing closer in time to the incident. I am not prepared to ignore, or give less weight to, Professor C's expertise or evidence.
4. There is a four month gap between the end of the sixth session of Professor C's treatment in March 2008 and the seventh and eighth sessions in August 2008. STO's evidence was that he did not attend during this four month period because he had examinations and he lacked the finance to pay for the sessions. In a submission to the Secretary made in June 2008, he said that he believed that by that time the 'minor' issues in his life had been 'sorted out'. In his oral evidence, he said that he would continue to attend sessions with Dr F until he and Dr F considered they were no longer necessary. While I accept that STO genuinely believes and intends to do this, I am not prepared to find that it is certain that he will continue to attend Dr F. He has stopped attending Professor C once before, when he did not have the finances to do so and when he believed that the issues were 'sorted out'. He may stop treatment again.
5. Professor C's reports indicate his opinion that STO suffers from emotional deprivation and, before the incident, was suffering from a significant degree of stress. STO has responded to therapy positively, consistent with insights he has gained into his emotional and sexual identity. The Professor's view is that, while STO continues to have psychological support structures, STO is not at risk concerning the maintenance of appropriate behaviour with underage children. In a telephone conversation with an officer of the Secretary in May 2008, at a time when STO had ceased to attend treatment with the Professor, Professor C expresses the negative side of this opinion- that is, at that time, the Professor was not confident that STO was a suitable person to work with children. Professor C considered that STO would need psychological treatment for approximately two years to address his underlying maturity issues. Professor C's oral evidence was that his opinion is still the same. In his reports and evidence, Professor C mentions a number of factors that, in his view, made STO vulnerable - family factors, the impact on him of his father's death, and emotional withdrawal, immaturity and naivety. The Professor's opinion was that, if psychological treatment ceased, the risk factors would still remain. If treatment continued, and progress to maturity continued, the Professor's concerns about STO's vulnerability would lessen. He considered that, the more positive the impact of psychological treatment on STO, the more likely he would be to continue to attend.
6. Dr F's opinion is similar to Professor C's in relation to issues concerning STO's emotional and sexual identity and vulnerability, and the benefit of continued psychological treatment for his personal issues. However, he considered that, whether or not STO undertook psychological treatment, he was no risk to children. He considered that the incident represented a response to constraint or inhibition.

Applying s14(2) and (3) of the Act and clause 103 of Schedule 1 of the VCAT Act

1. I first consider the particular factors listed in s14(3). I do this under three general headings - nature of the conduct/offence, subsequent behaviour, and likelihood of future threat to a child. I then consider the public interest. Finally, I consider the question whether it was appropriate to revoke the assessment notice.

1. This conduct, while not being minor, is not at the most serious end of the scale. It occurred once. It occurred in the presence of an adult but not of a child. However, it was by chance that no children were present on the platform at that time. The platform is a public place and children of all ages use the train. The maximum penalty which Parliament has, under s19 of the Summary Offences Act 1966, imposed for the offence constituted by this conduct is, while significant, not at the highest end of the scale. The offence carries a maximum sentence of two years imprisonment. The conduct did not involve a child, although it could potentially have done so. It did not occur in the course of child-related work, although it occurred when STO was travelling to do child-related work. The conduct was engaged in relatively recently - some 16 months ago.
2. No conviction was recorded for the offence. No charge is pending. The way in which the court dealt with the offence is at the very low range of sentencing options. The conduct has not been decriminalised.

1. STO has not committed any later offences and has not since engaged in behaviour similar to that which is the subject of this proceeding. However, he has been unable to tell his family about the incident. In my view, he has not come to terms with the incident itself, and tends to downplay it. He has sought psychological treatment and remains under treatment.

Likelihood of future threat to a child caused by STO

1. Predictions are difficult. The psychological expert evidence conflicts about the degree of future risk to children. There is insufficient evidence before me to enable me to resolve the conflict. In these circumstances, I am not prepared to say that there is no likelihood of future threat to a child caused by STO if he has ceased psychological treatment. Nor am I satisfied that it is certain he will continue treatment. He has before stopped treatment where he considered the issues 'sorted out' and where he could not financially afford treatment. If he were to cease treatment and to engage again in the same behaviour as in July 2007, it is probable that there would be children on the platform and that some or all of them would see the behaviour. It is only by chance that this was not the case in July 2007. Because the behaviour was impulsive, there is no guarantee that it will only occur on a station platform. It could, for example, occur while STO was undertaking child-related work. Given all this, I am not prepared to say that the likelihood of a future threat to a child from STO is fanciful or remote. It is real.

Is it appropriate to revoke the assessment notice and issue a negative notice?

1. On the evidence, and taking into account the factors I have just mentioned, I am satisfied that it was appropriate to do so. The conduct was recent. Some of the expert psychological evidence indicates that it is only if psychological treatment continues that STO will be suitable to work with children. STO has not yet fully come to terms with the gravity of his conduct.

1. The primary aspect of the public interest must be the protection of children from sexual or physical harm caused by those who work with or care for them. Given what I have said earlier, I am satisfied that it was in the public interest to revoke the assessment notice given to STO and to issue him with a negative notice. I am not satisfied that there is any other aspect of the public interest that would outweigh this one.

1. The Secretary's decision should be affirmed.
2. I recognise that this outcome is unfortunate for STO, from the point of view of his university studies and his potential career. But I must consider this matter in the light of the Act and its purposes.
3. It may be that, with the passage of time, and after further psychological treatment, it will be possible to give unequivocal psychological evidence that STO's emotional development and maturity have reached a stage where he is suitable to work with children. It will be for his treating practitioners to determine when that stage has been reached. I recognise that, under s25, STO cannot again apply for a working with children check for the next five years. Section 25(2) would permit an earlier application but only if there has been a relevant change in circumstances. That subsection does not appear to cover this case. The section does not, for example, permit an application to be made earlier if exceptional circumstances exist. It may be that the insertion of a provision of this kind might make the section more flexible.

[1] See ATC v Secretary to the Department of Justice [2007] VCAT 471

[2] See generally ATC's case cited above; BHB v Secretary to the Department of Justice [2008] VCAT 1946

[3] See generally PJR v Secretary to the Department of Justice [2006] VCAT 2655; XD v Secretary to the Department of Justice [2007] VCAT 118

[4] See generally XD's case, cited above; TK v Secretary to the Department of Justice (unreported, VCAT, 7 September 2007, Judge Harbison VP)