Victorian Civil and Administrative Tribunal|2013-06-13

TLM v Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 1000 (13 June 2013)

Review and Regulation List; Working With Children Act 2005, Section 14 Category 3 application, applicant with lengthy criminal record, respondent's determination affirmed

Mr Panayi of counsel, instructed by Maria-Elena Bravo, Senior Legal Officer, Department of Justice

TLM was born in Western Australia in 1972. In recent years he has lived in a number of different towns in country Victoria. He lodged an application dated 4 April 2012 with the respondent Secretary to the Department of Justice, seeking a 'check' under the Working With Children Act 2005.
By letter dated 5 November 2012 a delegate of the Secretary issued a negative notice. The affect of the negative notice under the terms of the statute was that TLM was prohibited from undertaking child related work, including volunteer work and work which is directly supervised. He was not entitled to make a further application for a period of five years.
On 7 November 2012 the Tribunal accepted an application for review lodged by TLM seeking review of the Secretary's negative determination against him. In his application TLM explained that he sought to do child related work on a volunteer basis providing an advocacy service.
The Secretary's consideration of TLM's application brought forth a lengthy history of offences as follows:

The offence which was of principal significance for the purpose of the Working With Children Act was the 'assault occasioning bodily harm' of 14 November 1991 dealt with in the Maroochydore Magistrates' Court on 24 March 1992. TLM was placed on a recognisance of $200 to be of good behaviour for 12 months under the Queensland Criminal Code; ordered to pay compensation of $48.70 with an order for imprisonment in default of four days. He was given two months to pay.
The Working With Children Act 2005 categorises applications into Categories 1, 2 and 3 having regard to the criminal history of applicants. The Secretary categorised TLM's application as a 'Category 3' under Section 14 of the Working With Children Act 2005. There has been no challenge to the Secretary's characterisation by virtue of Section 14(2). In those circumstances the Secretary must give an affirmative assessment notice 'unless satisfied, in the particular circumstances, that it is appropriate to do so'.
During his childhood TLM was struck as a pedestrian by a police vehicle and suffered traumatic brain injury as a result. He now suffers from frontal lobe syndrome. He says that he does not suffer any psychiatric disorder. He points out that none of the matters in his criminal history pertains in any way to an offence against a child. He was generally unwilling to discuss the items in the criminal history obtained by the Secretary. Whilst not directly denying the matters recorded, he said that the mere documentary record could be highly misleading. He felt that to be required to go over the matters in any detail was offensive to the principle of double jeopardy.
TLM says he has severed all connections with his biological family. He is married for the second time and says he has had a completely satisfactory relationship with his various step-children and other children such as his niece.

I have already stated the major consideration stated by Section 14(2) which guides the Secretary in a case such as this and this Tribunal on review. In making his or her determination the Secretary is required to consider a number of matters stipulated in Section 14(3) of the Act as follows:

(3) Subject to subsection (2A), 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;

(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.

There is a supplementary set of criteria now prescribed by Section 14(2A) of the Act with effect from 31 December 2012. TLM's initial application to the Secretary and his review application were made prior to the commencement date for this sub-section, namely 31 December 2012. That further set of criteria does not apply to this proceeding. See Esber v The Commonwealth of Australia [1992] HCA 20; (1992) 174 CLR 430.
I should also consider Section 103 Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 making special provision for matters under the Working With Children Act as it stood immediately before the recent amendment and being the version of the clause applying to this proceeding:
1. Review of category 3 application

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 have regard to -

(a) any matter to which the Secretary may have regard under section 14(3) of that Act; and

(b) whether, in all the circumstances, it is in the public interest to give an assessment notice.

TLM represented himself. He gave evidence and called evidence from his present wife, who is his second and the mother of his stepchildren. She told me that she had been married to TLM for some three years. She has three girls and

the focus has been that basically [TLM] looks after their wellbeing, health and safety and would do anything to protect them.

had a lot of frustration with the Department of Human services, because well, there were conflicting issues between my ex-defacto and all that and welfare just seemed to think that somethings weren't relevant to protecting the children so, of course, you know, [TLM's] view was, well, if a child is getting assaulted shouldn't that become a child protection matter, shouldn't the child be protected, so, of course, it caused a bit of a - how can I say it. Well, [TLM] wouldn't accept what they would say so because of his brain injury he would get - well, he would speak loudly not aggressive or anything, it's not meant to be in a harmful way that people misunderstand him because of his traumatic brain injury. They think that he's threatening and getting abusive but he's not like that. He's just trying to get his point across as to why a child should be protected.

She said she had the opportunity of observing TLM resolving conflict situations in the course of his volunteer advocacy work.
She said that TLM had known a Senior Sergeant Desmond Wright for four years and that the Senior Sergeant had been 'like a mentor' to TLM.
TLM gave evidence himself, describing how he has become active in the Anglican Church and acts as an usher at his local church. He will be taking up studies at university in July, studying, amongst other things, units of theology. He said he has been in discussion with his local Anglican Bishop about ordination to the Anglican priesthood.
TLM says that his commitment is to social justice and as a result of this commitment he has been misunderstood by many people. It is fundamentally unjust to define him by reference to his disability.
TLM relied on a testimonial from Senior Sergeant Wright, addressed 'to whom it may concern' which confirmed that the Senior Sergeant had acted as TLM's mentor. The Senior Sergeant said, inter alia:

[TLM] is a person who may come across as being very eager and talkative depending on the situation. He is a young man who I believe has the best of intentions towards others and as such is very willing to help others if he can.

[TLM] has not had the advantage of a good education, which is plainly evident from letters he has written to various people, and Email messages he has sent. Despite that, [TLM] has still managed to obtain a good knowledge of most life problems and situations and also relevant procedures he must undertake.

A person who first meets with [TLM] may not understand at first that he has the best of intentions and a caring heart. He is a person who could be relied upon to undertake a task which would require his constant application and effort. I know him to be the type of person who would complete any reasonable task given to him with honesty and thoroughness. This is a trait which is sadly lacking in many people in today's society. Too often I have heard managers and employers lamenting that it is hard to find good help nowadays.

I can assure others that [TLM] is a person who can be trusted to carry a task to its completion and to thoroughly report back if required.

He also referred to and relied on a letter dated 10 May 2013 from the Commercial Property Division of Stockland Wendouree where the centre manager, presumably of a shopping centre, noted that TLM 'had also been helpful in stopping a possible shop theft'. He also produced records from the Charles Stuart University indicating his enrolment in the Degree of Bachelor of Theology undertaking two units, namely 'Intro New Testament Studies' and 'Being the Church'.

TLM also placed extensive reliance on the Charter of Human Rights and Responsibilities Act 2006. He relied, for instance, on Section 10 of the Act which prohibits treatment or punishment that is cruel, inhumane or degrading. He said it was:

Degrading to be told you can't be trusted around children or work with children and it's inhumane and it's cruel when the Working With Children Commission has no evidence.

He said that his exclusion from working with children was also in contravention of Section 18 of the Charter which gives every person in Victoria the right to have the opportunity, without discrimination, to participate in the public affairs of the State. He said that bringing up the history of old offences was inconsistent with Section 26 of the Charter which gave him a right not to be tried or punished more than once for the same offence. Any limitations on these rights must, he said, be the least restrictive available to achieve the purpose which is being sort. He referred to Section 7 of the Charter. He also contended that his right to freedom of expression under the Charter was constrained by the negative determination. His privacy and reputation is being interfered with, he said, contrary to Section 13. He noted that by virtue of Section 32 of the Charter, all statutory provisions were to be interpreted in a way that was compatible with human rights. He also referred to a right of freedom of movement which he said was granted to him by the Commonwealth Constitution.
TLM also complained that he was being subjected to either direct or indirect disability discrimination contrary to the Disability Discrimination Act 1992 of the Commonwealth of Australia.
As to the assault conviction, he said:

When they are talking about this triggering offence, that's 20 years ago. I'm now 40, I've matured a lot. I know right from wrong and that was just a neighbourhood dispute. And, at that time of being 19 years of age, about a triggering offence, in 1991 I married [he named an individual] - 13 April 1991. The women next door there was some sort of conflict. There was some sort of neighbourhood dispute. At that time in 1991, April 1991, there were some issues. There was no fence between us. We had Channel 10 helicopters fly over, we had Channel 9, Channel 7, we had the local papers, we had all sorts of things going on. I am not a person to go and assault anyone. I would prefer to communicate by talking and continue to talk till we solve a matter. I'm not going to resolve a matter with thing.

Mr Panayi on behalf of the Secretary had drawn attention to the conviction for arson in the County Court in 2007. TLM responded:

The matter that they've also brought up about the good - my good friend has brought up about arson, I'm not an arsonist and never will be. William Rourke [perhaps Rook] is the person that was living at the unit. William Rourke also had a friend that lived there as well. I know who William Rourke is. I've talked to William Rourke before. We know one another. Lisa McArthur as known, which eventually I did marry, she set me up. But as William Rourke would say even today '[TLM], I've got no issues with you. I will come and have a cup of coffee with you. I will do whatever. You know, I don't really see you the problem. I know what happened. I'm not happy about it.' and, as I said, I know right from wrong but there was no intention to - there was no intention to actually cause anyone any harm and there was no intention to do anything wrong.

He conceded, though, that what he had done relative to this event was 'wrong'.

As a result of the extensive reliance placed by TLM on the Charter, I stood the matter over so that notice could be given to the Attorney-General to enable the Attorney to make any submissions which might be thought appropriate as to the operation of the Charter.
Mr Panayi on behalf of the Secretary made no submissions as to the application of the Charter other than to say that in his submission no Charter right was engaged.
In the absence of detailed submissions from any quarter as to the operation of the Charter, I proceed on the following basis. First, that the Working With Children Act 2005 must be construed in a manner which renders it consistent with the various rights protected by the Charter. See Section 32 of the Charter. Secondly, the rights protected by the Charter are not absolute but may be restricted. The need to protect children is, in my view, a ground which justifies the restriction even of Charter rights. When construed in the least restrictive manner, in my view, there is no inconsistency with the Charter.
In any event, it is not immediately obvious that any of the Charter rights asserted to be relevant by TLM are in fact engaged here.

The Commonwealth of Australia Constitution

TLM referred to a right to freedom of movement guaranteed under the Commonwealth of Australia Constitution. The only right in this respect that I am aware of is under Section 92 of the Constitution which guarantees absolute freedom of 'trade, commerce and intercourse' between the States. So far as I can see, the restrictions imposed by the Working With Children Act are intra-state in their operation and therefore, would not appear to be affected by Section 92.

The Disability Discrimination Act 1992 of the Commonwealth of Australia

This Tribunal is not a court under Chapter III of the Commonwealth of Australia Constitution, therefore, it has no jurisdiction to make authoritative determinations of Federal questions as any issue under a Federal statute must be. Nevertheless, the Tribunal, like every other person natural or legal in the Commonwealth of Australia is bound by the Commonwealth of Australia Constitution and Commonwealth law. It would seem, therefore, that it would be competent for the Tribunal to take cognisance of Federal law insofar as it impinged upon a State question which the Tribunal was empowered to determine: ABY, ABZ v Patient Review Panel [2011] VCAT 905; Sunol v Collier [2012] NSWCA 14; (2012) 81 NSWLR 619. Approaching the matter in this way, I do not believe that the Secretary's determination could, in the circumstances, constitute either direct or indirect discrimination under the Commonwealth Act. The Secretary and this Tribunal on review are required to determine this proceeding principally upon what TLM has done or has not done with particular reference to his commission of what is characterised by the statute as a 'Category 3' offence.
Direct discrimination under the Disability Discrimination Act, the disability referred to by TLM, as I understand it, is traumatic brain injury. Section 5 of the statute defines disability discrimination viz. direct discrimination in the situation which arises:

If, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

Indirect discrimination occurs as provided by Section 6 where:

On the ground of a disability of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:

(a) With which a substantially higher proportion of persons without the disability comply or are able to comply;

(b) Which is not reasonable having regard to the circumstances of the case; and

The definitions of discrimination and indirect discrimination in Sections 5 and 6 were amended in 2009 so as to add an additional concept. Discrimination may take place if an alleged discriminator fails to make reasonable adjustments for the aggrieved person. If that failure:

would have the effect that the aggrieved person [was because of the disability], treated less favourably than a person without the disability would be treated in circumstances that are not materially different

the requirement for adjustment is, for the purposes of this provision, not to be treated as making a material difference. The definition of indirect discrimination is also broadened. It occurs if the aggrieved person

would be able to comply with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so.

The burden of proving that a requirement or condition is reasonable lies upon the person seeking to impose it. In the present case a favourable notice is either given or refused and the issue of reasonable adjustments does not seem to arise.
Here, there could be no question of direct discrimination according to the definition. There is no suggestion that the Secretary or this Tribunal will treat TLM less favourably than it would treat someone else with his history but without the disadvantage of his traumatic brain injury.
Insofar as a certain standard of confidence is required relative to the conduct of child related work, there is no question that such requirement would be regarded as 'not reasonable'.
I therefore put to one side and reject the suggestion that the determination of this matter could entail either direct or indirect discrimination under the Commonwealth Act.

I agree with TLM's contention that the 'triggering offence' is not a matter of great seriousness. He was placed on a Good Behaviour Bond, therefore the gravity of the conduct for the purposes of Section 14(3)(a) was not great. The length of time since that conduct occurred is more than 20 years: Section 14(3)(b). There is no charge still pending, Section 14(3)(c) and the sentence imposed was a quite light one, Section 14(3)(d). TLM was much younger then than he is now, Section 14(3)(e). Section 14(3)(f), the relevant behaviour, viz. assault, has not been decriminalised. What is significant however, is Section 14(3)(g) which invites consideration of TLM's behaviour since the relevant offence. The list placed before me shows a continuing pattern of wrongdoing, most recently in 2007 with the conviction for arson. Under cross-examination, TLM agreed that he threw a 'fire bomb' at the door of a residence and that someone was inside the residence. The matters recorded since 1992 show a continuing pattern of anti-social behaviour including most seriously the arson matter. There are also convictions for theft and reckless conduct endangering life. I accept the submission made by Mr Panayi that this represents an escalation in violence. The most recent convictions are as recent as 2011. Whilst they do not entail any violence, the use of a telecommunications system 'to menace, harass or cause offence' is anti-social.
In short, TLM has a significant history of anti-social behaviour which he has certainly not 'lived down'. It is not in the distant past.
Even although, as he correctly submits, these various offences were not in any instance directed against children, there is no reason why one would necessarily be confident that such anti-social behaviour as is recorded here, would not in the future be directed against children or be carried out in the presence of children and therefore be to their disadvantage. Whilst an unsavoury history of brushes with the law can be 'lived down' by a lengthy pattern of law abiding conduct, one searches in vain for such a pattern in TLM's life up to 2013.
The primary concern under the Working With Children Act is the protection of children. The understandable interest that TLM has in not being constrained by or being besmirched by a negative notice must yield to the community's wider interest in administering this statute with the utmost prudence.
Mr Panayi submitted that TLM had shown no remorse for his wrongdoing. TLM in submissions in reply asserted that he did know right from wrong and that he did express remorse. In my view, Mr Panayi's submission was correct despite the generalised assertions of remorse; when one looked at TLM's response to a particular court finding, there was no particular expression of remorse. I have quoted at length what TLM said about the 'triggering offence'. There is no remorse there. Again, as to the arson in 2007, TLM has said no more than Mr Rook or Mr Rourke, the intended target would, after the passage of years, 'understand' TLM's side and in effect would not hold it against him. The existence of remorse or lack of it is a significant consideration in sentencing in criminal matters. This is not a criminal matter and the significance of lack of remorse is rather different. Here, TLM presents with a history of anti-social behaviour. It is imprudent to place minors in the care and control of those who have a tendency or propensity to engage in anti-social behaviour. Remorse for past behaviour may be good evidence that it will not be repeated in the future. Lack of remorse leads to a lack of confidence that the anti-social behaviour will not be repeated.
Mr Panayi was also critical of the lack of any expert evidence, for instance, from a psychologist as to TLM's likely future disposition. TLM responded that he simply did not have the funds to obtain such a report. He denied the suggestion that he could easily have obtained a one page report from his general practitioner at no cost. I accept that the likely cost, for instance, of a psychologist's report would be prohibitive for TLM. On the other hand, aside from TLM's wife, there was a generalised lack of testimonials relied upon. I have quoted extensively from the letter 'to whom it may concern' from Senior Sergeant Desmond Wright which TLM relied upon. This seems to have been a reference given in support of an application for employment rather than with respect to TLM's suitability to work with children. I accept it as far as it goes; but it does not deal with the crucial questions which need to be dealt with in this proceeding.
In all these circumstances the proper order is that the respondent's determination should be affirmed.

Discrimination Act 1992

TLM v Secretary to the Department of Justice

At a glance

Court

Decision date

Source

Judgment (55 paragraphs)

TLM v Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 1000 (13 June 2013)

Parties

Legislation Cited (2)

Cases Cited (2)