ZZ v Secretary, Department of Justice & Anor [2013] VSC 267

Supreme Court of Victoria|2013-05-22|Before: BELL J

The application that the Secretary to the Department of Justice be directed to give an assessment notice to the applicant pursuant to s 26(3) of the Working with Children Act 2005 is refused.
The application that the Director of Transport be directed to issue the applicant with driver accreditation is refused.
The applicant is disqualified from applying for driver accreditation for a period of 5 years from the date of this order.

7 ZZ brings his two appeals under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). Under that provision, appeals can only be made 'on a question of law'. Although ZZ initially relied on a number of such grounds, he narrowed his appeal to focus on two. They were specified in his expanded outline of submissions as follows:

8 On those main grounds, ZZ contends that the appeals should be allowed and that the court should set aside the orders of the tribunal and remit the matters back for reconsideration according to law.

9 It is common ground that paragraph 2 of the orders of the tribunal was a mistake and that it should have ordered that ZZ's application under s 26(5)(b) of the Working with Children Act was to be refused. Under s 148(7)(a) of the Victorian Civil and Administrative Tribunal Act, I will make orders substituting the mistaken order with the correct order. With the other orders, the fate of that order (as corrected) will then depend on the outcome of the appeals.

10 Initially ZZ served notices under s 35(2)(a) and (b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on the Attorney-General and the Human Rights and Equal Opportunity Commission of questions arising under the Charter. At the hearing, he did not press those questions or rely on the notices.

11 Very much against my better judgment, I allowed the hearing to proceed without the human rights issues being fully addressed. When I came to write the judgment, I found it impossible to avoid those issues, especially as the interpretative principle in s 32(1) of the Charter is mandatory.

12 While the human rights issues were not fully addressed in argument, it seemed to me that the oral submissions of the Secretary to the Department of Justice on the proportionate application of the unjustifiable risk test did cover the essential aspects. I considered those submissions to be of importance in the preparation of a draft judgment which dealt with the human rights issues. Because I was not sure that I had properly understood those submissions or that the parties had appreciated that I might use them in that way, I distributed the draft and asked the parties whether or not they wished to make further submissions. When I did so, I made clear that I reserved the right to revise it.

13 The Secretary to the Department of Justice informed the court that further submissions would be made. By that time, it was clear that notices under the Charter were necessary. As the course of events had overtaken ZZ's earlier notices, I directed him to file and serve notices in the following terms:

(1) When identifying the proper interpretation of the words 'unjustifiable risk' in s 13(2) of the Working with Children Act 2005 (Vic) and s 169N(3)(a) of the Transport (Compliance and Miscellaneous) Act 1983 (Vic):

(a) does s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) require the human rights of the applicant under the Charter to be taken into account and if so what human rights and how must they be taken into account;

(b) must other human rights under the Charter be so taken into account (for example the human rights of children) and if so what other human rights and how should they be taken into account;

(c) if the human rights of the applicant and other human rights under the Charter must be so taken into account, in what manner must they be taken into account in the event of any conflict; and,

(d) what is the proper interpretation of the words 'unjustifiable risk' in the provisions which is to be adopted in accordance with s 32(1) of the Charter?

(2) In determining whether giving an assessment notice would not pose an unjustifiable risk as mentioned in s 13(2) of the Working with Children Act and whether granting driver accreditation would not pose an unjustifiable risk as mentioned in s 169N(3)(a) of the Transport (Compliance and Miscellaneous) Act:

(a) does s 38(1) of the Charter require the human rights of the applicant under the Charter to be considered and if so what human rights and how must they be considered;

(b) must other human rights under the Charter be so considered (for example the human rights of children) and if so what other human rights and how must they be considered; and,

(c) if the human rights of the applicant and other human rights under the Charter must be so considered, in what manner must they be considered in the event of any conflict?

14 In response to the notices, the Secretary to the Department of Justice made submissions in writing clarifying his position in relation to the human rights issues.[1] The Secretary to the Department of Transport made written submissions supporting those submissions and making other points of specific concern. At a further oral hearing, the Secretary to the Department of Justice relied on, and the Secretary to the Department of Transport supplemented, their written submissions. I address those submissions below. ZZ made neither written nor oral further submissions. Neither the Attorney-General nor the Commission elected to participate in the proceedings.

15 After considering the submissions of the Secretary to the Department of Justice, I accept that the application of s 38(1) does not arise and the questions posed in paragraph (2) need not be answered. The Charter is only involved in the appeals to the extent of the application of s 32(1).

16 In determining the grounds of appeal, I will first describe the assessment notice provisions of the Working with Children Act and the driver accreditation provisions of the Transport (Compliance and Miscellaneous) Act. That will lead me to the proper interpretation of the 'unjustifiable risk' and (later) the 'public interest' tests in that legislation. Lastly, I will apply the conclusions I reach in relation to the proper interpretation of those provisions to the determination of the grounds of appeal, in which context I will examine the reasons for decision of the tribunal.

ASSESSMENT NOTICES UNDER WORKING WITH CHILDREN ACT

Consideration by Secretary to Department of Justice

17 As specified in s 1(1), the main purpose of the Working with Children Act is:

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.

In pursuance of that purpose, pt 2 establishes a process for assisting in determining whether a person is suitable for 'child-related work' (s 8(1)).

usually involves, or is likely to usually involve, regular direct[2] contact with a child ... in circumstances where that contact is not directly supervised[3] by another person.

19 Child-related 'work' is work of that nature which is engaged in under a contract of employment or for services (s 9(1)(a)(i)) or as a volunteer ((s 9(1)(c)) in connection with a broadly defined range of services, bodies, places and activities (s 9(1) and (3)).

20 By s 10(1), persons wanting to engage in child-related work may apply to the Secretary to the Department of Justice 'for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check'. In considering the application, the Secretary must arrange for the conduct of a police record check on the applicant (s 11(1)(a)), may make other inquiries (s 11(1)(b) and (c)) and can require the applicant to provide further information (s 11(1)(d)).

Subject to sections 12(2) and (3), 13(2) and 14(2) and subsection (1A) [of s 17], the Secretary must give an assessment notice on an application.

Thus there is a positive statutory requirement to give the notice, subject to those sections, which create a mandatory category-based scheme requiring applications to be considered against specified criteria. Depending on the category of application, different consideration is required.

22 Sections 12(2) and (3) apply to a 'category 1 application', being an application where, for example, the applicant is subject to reporting obligations under pt 3 of the Sex Offenders Registration Act 2004 (Vic) (s 12(1)(a)), has been convicted or found guilty of certain sexual offences against a child (s 12(1)(c)) or a child pornography offence (s 12(1)(d)). The Secretary must refuse such applications (s 12(2)). Some persons in this category may be eligible to apply to the tribunal for an assessment notice (s 26(1)). Category 1 did not apply to ZZ or his application. (As we will see, a similar category and procedure applied to his application for driver accreditation under the Transport (Compliance and Miscellaneous) Act.)

23 Section 13(2) applies to a 'category 2 application', being an application where, for example, the applicant has been convicted or found guilty of a violent offence specified in cl 2 of sch 1 of the Sentencing Act 1991 (Vic). Incitement to murder is one of those offences. Therefore ZZ's application fell into category 2.

24 By s 13(2), the Secretary

must refuse to give an assessment notice on a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to -

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

(b) the period of time since the applicant committed, or allegedly committed, the offence; and

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

(d) the sentence imposed for the offence; and

(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and

(f) whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and

(g) the applicant's behaviour since he or she committed, or allegedly committed, the offence; 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.

This is the main provision which had to be applied by the tribunal in the consideration and determination of ZZ's application for an assessment notice. An important issue in the appeal is whether the tribunal properly applied the test of 'unjustifiable risk' which this provision specifies.

25 Section 14(2) applies to a 'category 3 application', being an application where, for example, the applicant has been the subject of negative professional findings (s 14(1)(a)(i)) or been convicted or found guilty of certain lesser offences against s 19 of the Summary Offences Act 1966 (Vic) (s 14(1)(bb)). ZZ had been found guilty of committing such offences. Therefore this category applied to his application.

26 By s 14(2), the Secretary 'must give an assessment on a category 3 application unless satisfied, in the particular circumstances, that it is appropriate to refuse to do so'. In considering that question, the Secretary must have regard to the considerations as specified in s 14(3). The considerations specified in s 14(3) are virtually the same as those specified in s 13(2) but tailored to encompass conduct, offences and charges coming within category 3.

27 It can be seen that, in category 3 applications, the Secretary is required to determine whether he or she is positively satisfied that it is appropriate to refuse to give the notice, having regard to the specified considerations. Technically, the criterion in s 14(2) also had to be applied by the tribunal in the consideration and determination of ZZ's application for an assessment notice. The application of this criterion is not an issue in the appeal because the outcome of the proceeding in the tribunal turned on the more onerous criteria which apply in relation to category 2 applications.

28 There is a fourth category (not numbered as such) which applies where the applicant has at any time 'been charged with, convicted or found guilty of an offence (other than a relevant offence)' (s 17(1A)(a)). In such cases, s 17(1A)(b) gives the Secretary residual discretion to refuse to give an assessment if

(b) the Secretary is satisfied that -

(i) exceptional circumstances exist with respect to the applicant that justify the refusal of the notice; and

(ii) there is a significant link between the charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant.

In deciding whether it is appropriate to refuse to give a notice, s 17(1B) requires the Secretary to have regard to:

(a) whether because of that charge, conviction or finding of guilt, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and

(b) in the case of an applicant who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1A) applies, the period of time between the commission, or alleged commission, of each of the offences.

The matters in s 13(2)(a) to (i) have already been set out.

29 Once granted, an assessment notice remains in force for five years (s 19(1)). Persons who are refused an assessment notice must wait five years before they can reapply (s 25(1)).

30 As Kyrou J noted in Maleckas v Secretary, Department of Justice,[4] 'an assessment notice is not tied to any particular child-related work'.[5] Once granted, it applies universally to any and all such work in which the holder may engage, even where the applicant's declared intention is to engage in particular work, such as bus driving. It follows that, while the child-related work specified in the application will be a relevant consideration, the statutory criteria must be applied on the basis that the notice, if given, will not be confined to that work.

Consideration by Victorian Civil and Administrative Tribunal

31 Where the Secretary to the Department of Justice refuses an application for an assessment notice, the applicant has certain rights to appeal, depending on the category of their application. As ZZ came under category 2, s 26(5)(b) of the Working With Children Act gave him the right to apply to the tribunal for review of the refusal decision. The tribunal's jurisdiction in such cases is review jurisdiction.[6]

32 In such applications, cl 102 of sch 1 of the Victorian Civil and Administrative Tribunal Act specified[7] considerations to which the tribunal must have regard. Those considerations are:

(a) any matter to which the Secretary may have regard under section 13(2) of [the Working with Children Act]; and

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

33 Some applicants in category 1 may apply to the tribunal for review of a decision of the Secretary to the Department of Justice to refuse to give a notice (s 26(1)). As Morris J held in Re PJR and Secretary, Department of Justice,[8] the jurisdiction of the tribunal in such cases is original jurisdiction.[9] In exercising this original jurisdiction, s 26(3) of the Working with Children Act provides that, subject to other provisions, the tribunal may direct the Secretary to give an assessment notice to an applicant 'if it is satisfied that, in all the circumstances, it is in the public interest to do so'. This did not apply to the present case. It was this provision which the tribunal mistakenly applied.

DRIVER ACCREDITATION UNDER TRANSPORT (COMPLIANCE AND MISCELLANEOUS) ACT

Consideration by Secretary to Department of Transport

34 Division 4 of pt VI of the Transport (Compliance and Miscellaneous) Act creates a scheme for the accreditation of participants in the taxi industry. The purpose of accreditation is 'to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations'.[10] This general purpose encompasses, but is not confined to, ensuring the safety of children and protecting them from harm. In various ways, the provisions relating to driver accreditation give effect to those child-related purposes (see below).

35 Under s 165(1), it is an offence to drive a 'commercial passenger vehicle'[11] or bus used to provide a commercial or local bus service[12] unless the driver holds 'driver accreditation'. 'Driver accreditation' means accreditation under s 166.[13] Section 166 confers discretion on the licensing authority to accredit a person to drive a vehicle or bus. ZZ needed that accreditation to obtain employment to drive a bus.

36 Driver accreditation remains in force for a term of three years (s 168(1)) and may be renewed on application (s 168(2)). If the licensing authority refuses to issue or renew accreditation, it may, at its discretion,[14] disqualify the applicant from applying for accreditation for up to five years (s 169C(1) and (2)). I will refer later to the consideration which must be taken into account in exercising that discretion. Section 169E(1) and (2) contain a mandatory power of cancellation which, subject to a limited exception, must be exercised where the holder of driver accreditation has been found guilty of a category 1 offence or (by the reference to s 169(2)(c)) becomes subject to reporting obligations under s 12(1)(a) or orders under s 12(1)(b) of the Working with Children Act.

37 Like the Working with Children Act, the Transport (Compliance and Miscellaneous) Act specifies different procedures and conditions for determining applications for driver accreditation depending on the category into which the applicant falls (s 169(1), (2), (3) and (4)).

38 For applicants in the residual category, s 169(1) provides:

the licensing authority may grant the application if [it] is satisfied -

(a) that the issuing of accreditation is appropriate having regard to the public care objective; and

(b) that the applicant-

(i) is technically competent and sufficiently fit and healthy to be able to provide the service; and

(ii) is suitable in other respects to provide the service; and

(c) that the applicant has complied with the application requirements ...

39 The public care objective is an important component of the statutory scheme. According to s 164(1):

The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of commercial bus services, commercial minibus services and local bus services-

(a) be provided-

(i) with safety; and

(ii) with comfort, amenity and convenience-

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

40 There is no equivalent to the public care objective in the Working with Children Act.

41 For applicants (among others) who have been found guilty of a category 1 offence,[15] s 169(2)(b) provides that the authority 'must not issue or renew a driver accreditation'. By s 169(2)(c)(i) and (ii), this prohibition also applies to applicants who are subject to aforementioned reporting obligations or orders under the Working with Children Act. ZZ's conviction for incitement to murder his wife was a category 1 offence within s 169(2)(b). Therefore the Secretary to the Department of Transport had to refuse his application for the issue of accreditation, which he did.

42 Subsections 169(3) and (4) make provision for two other categories which are not here relevant.

43 Unlike the Working with Children Act, the Transport (Compliance and Miscellaneous) Act confers power to impose conditions on a driver accreditation, either at the time it is issued or renewed, or at any time during the course of driver accreditation (s 169A(1)). In doing so, the authority must have regard to the public care objective (s 169A(2)).

Consideration by Victorian Civil and Administrative Tribunal

44 Like the Working with Children Act, the Transport (Compliance and Miscellaneous) Act creates a category-based regime for decision-making and review by the tribunal.

45 As you have seen, ZZ's conviction for incitement to murder brought him into category 1, which meant his application had to be refused by the Secretary under s 169(2)(b)). Section 169N(1) gives a person whose application for accreditation has been mandatorily refused under s 169(2)(b) or (c) the right to 'apply to VCAT for an order that the licensing authority issue ... the driver accreditation'.[16] On such an application, the tribunal has original[17] jurisdiction 'by order [to] direct the licensing authority to ... issue a driver accreditation to the applicant' (s 169N(2)(a)).[18] Therefore the tribunal, and only the tribunal, had the authority to make an order for ZZ's accreditation. The Secretary must comply with any such order (s 169N(5)).

46 Section 169N(3) imposes threshold conditions on the exercise of the tribunal's jurisdiction to make an order under s 169N(2). Here is 169N(3):

[The tribunal] must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless-

(a) [it] is satisfied of the matters set out in section 169(1)(b); and

(b) the applicant has demonstrated that the issue, renewal or reinstatement is appropriate having regard to the public care objective; and

(c) [it] is satisfied that-

(i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to-

(A) the matters set out in section 169C(3)(b)(i) to (x); and

(B) any other matter that [it] considers relevant to the application; and

(ii) in all the circumstances, it is in the public interest to make the order.

47 As you have seen, s 169(1)(b) specifies matters with respect to the technical competence, fitness, health and suitability of the applicant for providing the service. Section 169N(3)(b) mirrors the public care objective consideration in s 169(1)(a).

48 As you can now see, s 169N(3)(c)(i) specifies an 'unjustifiable risk' test in the same terms as s 13(2) of the Working with Children Act except that it is directed to the safety of the travelling public and the relevant matters reflect the public transport context.

49 As specified in s 169C(3)(b)(i) to (x), those relevant matters are:

(i) the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and

(ii) the period of time since the applicant committed the offence; and

(iii) whether a finding of guilt or conviction was recorded; and

(iv) the sentence imposed for the offence; and

(v) the age of the applicant when the offence was committed; and

(vi) in relation to any sexual offence, the age of any victim; and

(vii) whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and

(viii) the applicant's behaviour since committing the offence; and

(ix) the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and

(x) any information given by the applicant; ...

Section 169C(3)(b)(xi) specifies 'any other matter the licensing authority considers relevant'. Section 169N(3)(c)(i)(A) does not include that in the list of matters which must be taken into account by the tribunal in determining an application under s 169N. But s 169N(3)(c)(i)(B) enables it to have regard to 'any other matter' which it considers to be relevant to the application.

50 It was the enactment of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008 (Vic) which incorporated an unjustifiable risk test into the Transport (Compliance and Miscellaneous) Act. That was done in the form of s 169N(3)(c). The incorporation of that test into the Transport (Compliance and Miscellaneous) Act brought that enactment into line with the Working with Children Act in that respect.

51 As submitted by counsel for the Secretary to the Department of Transport, the terms of the amending legislation support the statements made in the second reading speech that the legislation was intended to 'strengthen public confidence in the safe operation of Victoria's public transport system'.[19] There is considerable emphasis in the speech on 'the safety of the travelling public'.[20] The Minister for Public Transport stressed that that interest must be given great weight:

The rights of an individual applicant cannot be the prime consideration in deciding who is a suitable person to be accredited to drive a taxi.

Greater weight must be given to the rights of the many people who need to use taxi services, particularly the disadvantaged or vulnerable and those who have little or no alternative means of transport. Considerable weight must also be given to the importance of maintaining public confidence in the safety of taxi travel.[21]

The Minister then spoke of the new category-based application system, which I have already described. After explaining mandatory refusal for category 1 applications, she drew attention to the availability of review in the tribunal in all refusal cases:

However, the avenue of VCAT review remains available for all administrative decisions made by the accreditation regulator, both discretionary and mandatory.

The bill also strengthens the test to be applied by VCAT to refusals of accreditation taken on review by providing that VCAT can only grant accreditation where it is satisfied that:

granting accreditation does not pose an unjustifiable risk: and

in all the circumstances, it is in the public interest to grant the accreditation.[22]

52 The Minister's emphasis on the safety of the travelling public and maintaining public confidence in the transport system must be noted. The terms of the amended legislation reflect strengthened protective policies of that nature. However, the Minister did not deny that the individual rights of applicants are relevant and the key regulatory test is expressed in terms of unjustifiable risk, not a, any or no risk. To that subject I will return.

53 That completes my description of the provisions of the Working with Children Act and the Transport (Compliance and Miscellaneous) Act. The first ground of appeal is whether the tribunal properly applied the test of 'unjustifiable risk' in s 13(2) of the Working with Children Act and s 169N(3)(c)(i) of the Transport (Compliance and Miscellaneous) Act. To determine that question, it is necessary to identify the proper interpretation of that test.

54 The main purpose of the Working with Children Act (and a purpose embraced by the Transport (Compliance and Miscellaneous) Act) is the protection of children from physical and sexual harm. The Act seeks to achieve this purpose by (among other things) establishing mechanisms for preventing certain persons from performing work which is likely to bring them into unsupervised contact with children, whether on a paid or voluntary basis. These mechanisms protect and promote the human rights of children in significant ways.

55 Historically, the human rights of children were first recognised in an international instrument in 1924 in the Geneva Declaration of the Rights of the Child of the League of Nations.[23] The preamble states with memorable simplicity that 'mankind owes to the Child the best that it has to give'.[24] Therefore (among other things) the child 'must be protected against every form of exploitation'.[25] As Van Bueren explains, this need for protection was based on the 'vulnerability and immaturity' of children.[26]

56 The Universal Declaration of Human Rights,[27] which was proclaimed by the United Nations in 1948, states principles incorporating the rights of children. For example, art 25(2) provides:

Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

57 Then came the Declaration of the Rights of the Child,[28] which was proclaimed by the United Nations in 1959. The preamble states that 'the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection'.[29] The Declaration goes on to state a series of principles, including protection. This is principle 2:

The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

Principle 9 states that the 'child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form'.[30]

58 The principles of protection that were proclaimed in the Declarations flowered into a right to protection in the International Covenant on Civil and Political Rights,[31] which entered into force in 1976. Australia is a party to this Covenant. Article 24(1) provides:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

Section 17(2) of the Charter is derived from this right.

59 In his analysis of the development of the right of the child to protection, Nowak[32] emphasises the context of the correlative duty of the state to fulfil the right:

Pursuant to Art. 24(1), the State is under a comprehensive duty to guarantee that all children subject to its jurisdictional authority are afforded protection, whether this be through support for the family, through support for corresponding private facilities for children (kindergartens, orphans' homes, etc.) or through its own measures. Comprehensive protection means, on the one hand, that the State must prevent interference by its authorities and private parties alike, including a child's own parents (e.g. in the event of child abuse or neglect), and, on the other hand, that it also enact positive statutory, administrative or other measures in all culpable or non-culpable situations in which a child requires special protection (e.g. death or disappearance of the parents, poverty and hunger, physical or mental disability, etc.).[33]

This analysis is consistent with art 26 of the Vienna Convention on the Law of Treaties,[34] which entered into force in 1980.[35] Australia is a party to this Convention. Article 26 provides that '[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith'.[36]

60 The provisions of the International Covenant on Civil and Political Rights also encompass the human right of children to bodily integrity and personal security. [37]

61 The human rights of children are included in the generality of several provisions of the International Covenant on Economic, Social and Cultural Rights,[38] which also entered into force in 1976. Australia is a party to this Covenant. The general provisions encompassing children include those requiring state parties to afford the 'widest possible protection and assistance ... to the family, which is the natural and fundamental group unit of society' (art 10(1)). More specifically, the Covenant provides that '[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons' and they 'should be protected from economic and social exploitation' (art 10(3)).

62 The rights of children were specifically and comprehensively set out in the Convention on the Rights of the Child,[39] which entered into force in 1990. Australia is a party to this Convention. Of cardinal importance, it is now the primary source of international law on the human rights of children. Van Bueren describes the Convention as being

concerned with the four 'P's: the participation of children in decisions affecting their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs.[40]

63 The Convention on the Rights of the Child specifies the principle of the best interests of the child and also a duty on the part of the state to protect. This is done in art 3, as follows:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

64 A later provision extends the duty of the state to protect children to protection from physical or mental violence or abuse and sexual abuse. This is art 19:

States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

65 Further, art 34 specifically requires the state to protect children from sexual abuse:

States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials.

66 Article 36 provides that 'States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare'.

67 Independently of the Charter, under the ordinary principles of interpretation it is established that Australia's international obligations, although not incorporated into domestic law, may inform the interpretation of statutory provisions.[41] By reference to the leading High Court authorities, the general common law principle was succinctly expressed by Maxwell P in Royal Women's Hospital v Medical Practitioners Board:[42]

the provisions of international treaties are relevant to statutory interpretation. In the absence of a clear statement of intention to the contrary, a statute (Commonwealth or State) should be interpreted and applied, as far as its language permits, so that it conforms with Australia's obligations under a relevant treaty.

68 When interpreting the provisions of s 13(2) of the Working with Children Act, this principle makes relevant the international covenants and conventions in relation to the protection of children which I have examined. The interpretation which is consistent with Australia's obligations under them is one which positively ensures protection of children from harm. An interpretation which would deny a person access to their chosen field of employment when there was no real risk of harm to children is not indicated by those obligations.

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

70 I would not want to overlook the human rights in ss 10(b) (prohibiting treatment which is cruel, inhuman or degrading), 13(a) (prohibiting unlawful and arbitrary interference with privacy) and 21(1) (right to liberty and security) which, like the International Covenant on Civil and Political Rights, encompass the human right of children to bodily integrity and personal security.[43] But, more directly, s 17 specifies the human right to protection of families and children:

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

71 The human right to protection in s 17(2) is engaged in the interpretation of the provisions of s 13(2) of the Working with Children Act. Again, the interpretation which is compatible with that human right, and which is consistent with the purpose of the provisions, is one which positively ensures protection of children from harm, but an interpretation which would deny a person access to their chosen field of employment when there was no real risk of harm to children is not indicated.

72 It is also necessary to consider the right to work and freedom of choice in work.

73 The right to work is recognised in the common law for certain purposes. A notable example is Nagle v Feilden[44] where the Court of Appeal held that a horse trainer denied a licence because she was a woman could bring an action in the courts even in the absence of a contract of employment between her and the jockey club. Lord Denning MR said 'a man's right to work at his trade or profession is just as important to him as, perhaps more important than, his rights of property. Just as the courts will intervene to protect his rights of property, they will also intervene to protect his right to work'.[45] Danckwerts and Salmon LJJ held to the same effect.[46]

74 Nagle was approved by the High Court of Australia in Buckley v Tutty,[47] which held that the rules of a football league were in unreasonable restraint of the trade of a professional footballer. Barwick CJ, McTiernan, Windeyer, Owen and Gibbs JJ granted relief because the footballer's 'right to work'[48] was affected by the rules in question.

75 In doing so, their Honours said the public interest rationale of the doctrine extended to protecting trades, professions and callings of all kinds, including employment.[49] Consequently, disproportionate restraints were invalid. The Court approved[50] the test of invalidity which was laid down in Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd.[51] That test, stated by Lord Macnaghten, examines whether the restraint represents a reasonable reconciliation of the interests of the upholding party and the interests of the public in freedom of trade and employment. [52]

76 I am not suggesting that the right to work is an independent cause of action. As Barwick CJ held in Forbes v New South Wales Trotting Club Ltd,[53] the right to work is not legally enforceable as such.[54] But Buckley and the cases like it demonstrate that, in certain circumstances, the courts will take account of or protect the right to work as a recognisable legal category and that the right to work engages the public interest. As Barwick CJ said in Forbes, there is a 'public interest in the exercise of knowledge and skills, the use of which may conduce to the public benefit' and '[i]t is in the public interest that a man should be able to exercise his capacity to work'.[55]

77 Work is not just an expedience or a way of earning a material living. It has great personal and social importance to individuals. An underlying rationale of human rights is enhancing respect for human dignity. Work is an aspect of human dignity. There is a close relationship between private life and work. Therefore, it can readily be appreciated why the right to work is a human right, why it incorporates freedom of choice of work and why it is intimately connected with other human rights. So much was eloquently explained by Owens and Riley in their leading text:

It is largely through work that we become who we are: work is central to personhood, to identity. And because work is intricately entwined in the creation of our sense of self, it has an infinitely complex meaning for us as human beings. Work is intimately linked with human dignity. Work is the primary means by which most people secure their own livelihood and very often that of their families too. The income derived from their work provides access to food, shelter and the other goods and services necessary for the sustenance and enjoyment of life. However, work also often provides much more than the satisfaction of the material fundamentals of life. Human beings commonly invest in their work much of the purpose and meaning of their lives. At work people grow in a very personal way by expressing themselves, developing new skills, gaining new knowledge and contributing to their community. ... Through work human beings cooperate and connect with others. The social networks established through work often extend beyond it. Indeed, because the social status of individuals is frequently determined very largely by the work they do, work tends to mediate all social relations.[56]

78 The foundational standard of the human right to work was set in the Universal Declaration of Human Rights,[57] which explicitly proclaims the right to work in art 23(1):

Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

79 That standard flowered into a suite of rights in the International Covenant on Economic, Social and Cultural Rights.[58] Australia is a party to that Covenant. Article 6(1) provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

80 The Committee on Economic, Social and Cultural Rights has considered the scope and content of art 6 in its General Comment No 18.[59] Among the principles which it states is that individuals should be free to choose their own work.[60] It explains the importance of the right to work by reference to the connection between it and other human rights:

The right to work is essential for realizing other human rights and forms an inseparable and inherent part of human dignity. Every individual has the right to be able to work, allowing him/her to live in dignity. The right to work contributes at the same time to the survival of the individual and to that of his/her family, and insofar as work is freely chosen or accepted, to his/her development and recognition within the community.[61]

81 Earlier I referred to the interpretive principle stated by Maxwell P in Royal Women's Hospital that, subject to any clear contrary intention, statutory provisions are to be interpreted consistently with Australia's international obligations under treaties and covenants, as far as language permits. When interpreting the provisions of s 13(2) of the Working with Children Act, the principle makes relevant the articles of the International Covenant on Economic, Social and Cultural Rights concerning the right to work. Having regard to the purpose and language of the provisions of s 13(2), the interpretation which is consistent with Australia's obligations under that Covenant is one which ensures children are protected from harm but which takes due account of the right to work.

82 Neither the International Covenant on Civil and Political Rights nor the Charter specifies a human right to work as such.

83 But, art 17 of the International Covenant on Civil and Political Rights specifies a negative right to privacy (among other things). It provides:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
Everyone has the right to the protection of the law against such interference or attacks.

84 Reflecting that article, s 13(a) of the Charter provides:

A person has the right -

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; ...

85 As to what is arbitrary interference, in PJB v Melbourne Health (Patrick's Case)[62] I referred to international cases and commentary discussing the word 'arbitrary' in relation to the rights found in the International Covenant on Civil and Political Rights.[63] On that basis I decided that the right in s 13(a) of the Charter

extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.[64]

In WBM v Chief Commissioner of Police,[65] Warren CJ (Hansen JA agreeing) (without finally deciding the point) said that the word 'arbitrarily' in s 13(a) bore that 'human rights' meaning.[66] As a member of that bench, I followed[67] my judgment in Patrick's Case, as I will in this case.

86 Whether art 17 and s 13(a) apply to restrictions upon employment is an unresolved question. As the Secretary to the Department of Justice submits, the Human Rights Committee of the United Nations has not yet applied the right in art 17 of the International Covenant on Civil and Political Rights to restrictions upon employment. Likewise, the scope of the right in s 13(a) of the Charter has not been determined in that context. However, the general nature and content of the right in s 13(a) has been considered in a way which is not inconsistent with incorporating a right to work of some kind and in some circumstances.[68]

87 Because of the intrinsic connection between employment, dignity and the private life of individuals, especially as regards their relationships with other people, a substantial argument can be advanced that, in certain circumstances at least, the rights in art 17 and s 13(a) do apply to restrictions upon employment. That conclusion is supported by the approach taken in the United Kingdom and the European Court of Human Rights to the interpretation of the right to respect for private life.

88 The right to respect for private life is specified in art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[69] in these terms:

Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This right was domesticated in the United Kingdom by the Human Rights Act 1998 (UK) c 42.[70]

89 According to the leading judgments of the European Court of Human Rights, private life 'encompasses the right for an individual to form and develop relationships with other human beings, including relationships of a professional or business nature'.[71] Article 8 of the Convention thus 'protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world'.[72] The notion of 'private life' does not in principle exclude 'activities of a professional or business nature. It is, after all, in the course of their working lives that the majority of people have a significant opportunity of developing relationships with the outside world'.[73]

90 Therefore, a work security check procedure,[74] 'lustration' restrictions on the employment of former members of security forces,[75] restrictions imposed on access to a profession[76] and a dismissal from office[77] have been found to interfere with 'private life'. Issues of honour and reputation are also raised in this context.[78]

91 Drawing on that jurisprudence, courts in the United Kingdom have identified the purpose of art 8 as being to ensure that, without good reason, the state cannot interfere with 'the private sphere within which individuals expect to be left alone to conduct their personal affairs and live their personal lives as they choose'.[79] Respect for private life 'comprises, to a certain degree, the right to establish and develop personal relationships with other human beings'.[80] Article 8 applies to '[e]xcluding a person from employment in her chosen field'.[81] That is because the exclusion 'is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of her private live'.[82]

92 Therefore, work restrictions have been held to involve interference with private life in the context of asylum seekers applying for permission to work,[83] the preparation and administration of statutory lists of persons precluded from working with children and vulnerable adults,[84] the disclosure of information by the police in respect of applications by persons for employment involving contact with children and vulnerable adults,[85] the indefinite notification requirements of sex offender registration legislation[86] and the decision of a statutory safeguarding authority not to remove someone from a barred employment list.[87]

93 Substantial arguments against the application of the European and United Kingdom jurisprudence to the interpretation of art 17 of the International Covenant on Civil and Political Rights and s 3(a) of the Charter can also be advanced. As submitted by the Secretary to the Department of Justice, art 17 and s 3(a) specify a right in negative terms not to have one's privacy 'unlawfully or arbitrarily interfered with'. By comparison, art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms specifies a right in positive terms to 'respect' of one's private life. These and the other competing arguments were recently canvassed in MA v Director of Immigration[88] by the Court of Appeal of the High Court of the Hong Kong Special Administrative Region, where s 14 of the Bill of Rights Ordinance (Hong Kong) cap 383 is in the same terms as art 17 of the International Covenant on Civil and Political Rights. In view of the importance of the question, the court preferred to decide the case before it without determining the question. I propose to adopt a similar course here.

94 I will assume without deciding that the right to privacy in art 17(1) of the International Covenant on Civil and Political Rights and s 13(a) of the Charter are engaged where employment restrictions impact sufficiently upon the personal relationships of the individual and otherwise upon his or her capacity to experience a private life. In my view, the refusal decision under the Working with Children Act has that impact here. ZZ has a definite intention and desire to work as a bus driver. For him, obtaining that employment is not a remote or hypothetical prospect. Putting aside the matters at issue in the present case, he appears to be suited and qualified for that employment. His personal circumstances are such that not many fields of employment are open to him. Being a bus driver is one of them. Without employment, he risks becoming welfare dependent and socially isolated. Those impacts are highly personal in nature and operate together (on the assumed position) to bring his kind of case, which would not be unique, into the scope of art 17(1) and s 13(a).

95 If that assumption and reasoning are correct, the interpretive principle stated in Royal Women's Hospital would apply to the interpretation of the provisions of s 13(2) of the Working with Children Act. Consistently with Australia's obligations under art 17(1) of the International Covenant on Civil and Political Rights, and subject to the purpose and language of the unjustifiable risk provisions, the provisions would be interpreted such that arbitrary interference with ZZ's right to privacy was not imposed. Further, s 32(1) of the Charter would apply to the interpretation of those provisions. Therefore, so far as possible consistently with their purpose, the provisions would be interpreted in a way that did not produce arbitrary interference with ZZ's right to privacy. In both instances, 'arbitrary' is to be understood in the human rights sense.

96 That brings me to a review of the authorities on the interpretation and application of the unjustifiable risk test.

97 The interpretation of the 'unjustifiable risk' test was considered by Morris J in PJR, [89] the first case decided by the tribunal under the Working with Children Act. Sitting as the President and exercising original jurisdiction, his Honour directed the Secretary to give an assessment notice to an applicant who came within category 1.

98 In doing so, Morris J discussed the concept of 'unjustifiable risk' as expressed in s 26(2), which is not materially different to s 13(2). His Honour said that, in determining whether giving a notice would not pose an unjustifiable risk to the safety of children, the tribunal had to make 'a judgment about whether the risk is unjustifiable'.[90] With respect, that is more than a statement of the obvious. My conclusion in the present appeal is that his Honour's injunction should be followed. Morris J went on to emphasise the evaluative nature of that function:

Although we often use binary language to describe a risk to safety (such as 'safe' or 'unsafe'), in truth there is an infinite gradation of circumstances from absolutely safe to absolutely unsafe; and a judgment will be required to identify what is 'safe' and what is 'unsafe'. By using the adjective 'unjustifiable,' the parliament has recognised this gradation of risk and has rightly put the focus on whether the risk is unjustifiable, having regard to specified matters.[91]

99 I agree with Morris J. Moreover, the evaluative nature of this judgment about unjustifiable risk can be understood by examining the way in which Morris J assessed the competing facts and circumstances in the case before him.[92] It is clear from his Honour's analysis that he was satisfying himself that granting the assessment would not pose an unjustifiable risk, not whether it would pose a, any or no risk or put children at risk. Further, applying the test in this way is consistent with taking proper account of human rights.

100 In other cases, the tribunal has applied the 'unjustifiable risk' test under the Working with Children Act by expressly taking into account the need to balance protecting children from harm (which is the main purpose of the Act) with the right to work and freedom of choice of work. For example, Macnamara DP saw the tribunal's function in that way in AZD v Secretary, Department of Justice.[93] He asked: 'How then do I strike the balance between the two interests'[94] which are at stake? The legislation treats that as a very important question. By reference to the terms of s 13(2), the answer I would offer is: by applying the unjustifiable risk test, which involves (among other things) evaluating the nature and degree of any risk. Applying the test in that way itself ensures that the balance between those interests will be properly struck.

101 The approach of Morris J in PJR to the concept of 'unjustifiable risk' was followed by Kyrou J in Maleckas.[95] That was a case like the present in which a ground of appeal was whether the tribunal had misinterpreted the statutory tests. Kyrou J upheld the appeal. In the present case, ZZ relies on, and the Secretary to the Department of Justice seeks to distinguish, his Honour's judgment.

102 The facts of Maleckas were that the applicant was a member of the committee of management of a voluntary organisation which supported heterosexual people who were HIV positive. The committee required him to obtain an assessment notice because his work as a volunteer brought him into contact with the children of members. In 1990 he had been convicted of manslaughter, which brought him into category 2 of applications under the Working with Children Act, the same as ZZ in the present case.

103 In deciding whether the tribunal had misapplied the unjustifiable risk test, Kyrou J made (with respect) many valuable statements about the determination of category 2 applications. In particular, his Honour said:

(d) The expression 'an unjustifiable risk' does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.

(e) What constitutes 'an unjustifiable risk to the safety of children' will depend on the circumstances of each case, having regard to the matters set out in s 13(2)(a) to (j) of the [Working with Children Act] and the main purpose of that Act as set out in s 1(1).[96]

104 Kyrou J also said in paragraph (f) that non-sexual and non-physical harm to children may be a relevant public interest consideration under cl 102(b) of sch 1 of the Victorian Civil and Administrative Tribunal Act. I note that the Working with Children Act does not define the expression 'safety of children' which is used in s 13(2). It may be that the word 'safety' should be given its ordinary meaning of 'exemption from hurt or injury' and 'freedom from danger'.[97] So interpreted, 'safety of children' is not confined to sexual or physical harm but includes emotional and psychological harm. Children are especially vulnerable to emotional and psychological harm which can have long-term physical consequences for them. I think Parliament would probably have intended this legislation to assist in protecting children from such harm and it is not inconsistent with the purposes in s 1(1) to interpret s 13(2) in this way. I therefore agree with Kyrou J in Maleckas that non-sexual and non-physical harm must be considered when relevant, although it may be more accurate to say that this was relevant directly to 'the safety of children' under s 13(2) and not only as a public interest consideration under cl 102(b). I note that this issue does not directly arise in the present case.

105 In Maleckas, Kyrou J held that justifiable risk does not mean 'no risk'.[98] For the reasons which his Honour gave, in my view it follows that 'unjustifiable risk' does not mean 'a risk' or 'any risk' or putting children 'at risk'. Further, as his Honour held,[99] the relevant risk in an application under the Working with Children Act is to 'the safety of children' (s 13(2)). Under the Transport (Compliance and Miscellaneous) Act, it is 'to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services' (s 169N(3)(c)(i)). The subject of those expressions is specific and not the same as, for example, 'the general community'.

106 Kyrou J rejected the plaintiff's submissions that 'likely' in s 13(2)(h) meant 'more likely than not'. His Honour held, with respect correctly, that a chance of a future threat was a relevant consideration, by which I take his Honour to mean that the probability of that threat occurring must be assessed in the particular circumstances. Thus, as his Honour held, a minimal chance of such a threat might favour the applicant, whereas a greater one might not.[100]

107 In its reasons for decision, the tribunal in Maleckas had referred to the absence of positive evidence 'dispel[ling] the possibility ... that [the applicant] may be a threat to children'.[101] It repeatedly referred to the question of whether the applicant posed 'no risk' to the safety of children. Kyrou J held this to be an error of law. In his Honour's view, the adoption of this reasoning meant that the tribunal had 'failed to recognise properly the nature and scope of the legal test that it was required to apply under s 13(2) and consequently [it] did not apply that test'.[102] That conclusion is consistent with the judgment of Morris J in PJR.

108 With respect, the conclusion of Kyrou J is correct when those provisions are interpreted with the human rights which are engaged. In particular and as relevant to the present case, the proper evaluation of the nature and degree of the risk on which his Honour insisted is consistent with Australia's international obligations and compatible with the human rights in the Charter (including s 13(a) if it applies).

109 In Maleckas, the tribunal also took into account the attitude of the applicant to the offences which he had committed. It was concerned that he had a tendency to minimise some details of the manslaughter offence and gloss over how serious it was.

110 Kyrou J held, and I again respectfully agree, that the tribunal was right to consider these matters in assessing whether there was an unjustifiable risk:

In my opinion, the questions of whether the [applicant] has insight into his offence, has accepted responsibility for the offence and has demonstrated remorse are relevant considerations under s 13(2)(j). As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such an offence.[103]

111 In the present case there were also issues about ZZ's insight into his offending. As you will see, the tribunal took that consideration into account under the public interest test. However, it seems to me that such issues more naturally fall to be considered under the heading of unjustifiable risk.

112 I turn now to the judgment of the Court of Appeal in Director of Public Transport v XFJ,[104] which concerned the power of the Director (who was the predecessor of the Secretary) to accredit drivers under the former provisions of the Transport Act 1983 (Vic). Maxwell P (Mandie and Harper JJA agreeing) upheld a judgment of Ross J.[105] In that judgment, his Honour dismissed an appeal from a decision of the tribunal[106] granting driver accreditation under s 166 of that Act to an applicant who wanted to be a taxi driver. The applicant had been charged with and acquitted on grounds of insanity of murdering his wife, a category 1 offence.

113 The tribunal's decision contains a careful consideration of the circumstances in which the applicant killed his wife and his mental health at the time. There was a substantial body of medical evidence, which the tribunal accepted, that there was a very low risk of the applicant reoffending. The tribunal held that, even though the applicant had engaged in serious violence almost 20 years earlier, he had established that he was suitable to be a taxi driver in the relevant respects.[107]

114 At the time of the decision, s 169(1)(a) of the Transport Act 1983 provided that accreditation could not be granted unless the Director was satisfied that it was 'appropriate having regard to the public care objective'. The public care objective was that the service be provided with 'safety' and 'comfort, amenity and convenience' (definition in s 164(1)). It was not until the enactment of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008 (Vic) that an unjustifiable risk test was incorporated into the legislation. As submitted by the Secretary to the Department of Transport, that was probably in response to the decision of the tribunal in XFJ. Nevertheless, under the former legislation, the tribunal was concerned with the level and nature of any risk to passenger safety and the decision remains of relevance to that extent here.

115 The concern of the tribunal with the nature and degree of any risk to passenger safety was evident in the reasons for decision where, in the conclusion, it analysed whether accrediting the applicant would pose a risk to the safety of passengers:

The safety issue really turns upon whether there is an appreciable risk, or a risk special to XFJ putting him in a category different from other members of the community, that some violent outburst, such as occurred in 1990, would recur and would be directed against the passengers. I note that an apprehension of a violent attack upon a passenger in a taxicab is a significantly different scenario from the one which occurred in 1990. There, the victim of the attack was a very close personal family member, namely an estranged wife. This is a significantly different event from violence directed indiscriminately to strangers, or relative strangers, which passengers in the taxicab would be.
Secondly, the emphatic psychiatric opinion, which I quoted earlier in these reasons, leaves me to conclude that there is no serious safety issue. Needless to say, neither of the psychiatrists could offer any cast iron assurances as to what XFJ might do in the future, any more than they could offer any cast iron assurances as to what I might do, or what either of the learned members of counsel who appeared in this proceeding before me might do. The strongest concession was the reference to a lifelong vulnerability to depression. I note, however, that XFJ has been living in the community for some 10 years, and upon all indications, has kept good psychiatric health through that period without the support of medication.[108]

It is to be noted that this analysis focuses on whether there was any 'appreciable risk' and any 'serious safety issue' and involved a careful assessment of the applicant's individual facts and circumstances. The analysis does not focus on whether there was a, any or no risk.

116 On appeal to Ross J, the Director contended that the tribunal had erred in law in failing to include community expectations and public confidence in the accreditation process among the relevant considerations. Ross J rejected that contention and decided that the public care objective and suitability provisions (s 169(1)(a) and (b)(ii) of the Transport Act) related to the suitability of the applicant to provide the relevant service.[109]

117 The Director advanced the same contention in the Court of Appeal where it was also rejected. In doing so, Maxwell P (Mandie and Harper JJA agreeing) made a number of general observations about the operation of the statutory scheme. His Honour pointed out that, except with the most serious (category 1) offences, 'the accreditation scheme does not treat a prior conviction as an automatic disqualification'.[110] The finding of guilt for a relevant offence was 'the beginning, not the end, of the consideration of the applicant's suitability to be a taxi driver'.[111] His Honour emphasised the importance of provisions requiring the tribunal to take into account 'the nature and gravity of the offence and its relevance to the service to be provided by the applicant' (s 169(3)(i)). Of the function of accrediting drivers, Maxwell P said:

Parliament clearly contemplated that the decision-maker in such a case would examine all of the relevant circumstances of the offending, for the purposes of deciding whether and to what extent the offending conduct had a bearing on the applicant's suitability - as at the date of the application for accreditation - to drive taxis. These provisions expressly anticipate that, if there has been any significant lapse of time between the offending and the making of the application, it will be relevant to consider the applicant's behaviour since that time and the likelihood of his/her committing another such offence in the future.[112]

118 The point of relevance to the present case is the emphasis which Maxwell P placed on the need to assess all the relevant circumstances when deciding upon an applicant's suitability for providing the service in question. That was the approach of the tribunal which was upheld on appeal both before Ross J at first instance and then by Maxwell P, Mandie and Harper JJA in the Court of Appeal.

119 Lastly, in DFJ v Secretary, Department of Justice,[113] the Secretary had refused to grant an assessment notice under s 17(1A) of the Working with Children Act to an applicant who wanted to be a gardener at a local school. He did not fall into categories 1, 2 or 3, but had been convicted of an offence. Under s 17(1A), the Secretary had discretion to refuse to give a notice. In considering whether to exercise that discretion, the Secretary has to consider (among other things) whether, because of the conviction, 'the giving of the notice would pose an unjustifiable risk to the safety of children' (s 17(1B)(a)). The Secretary's refusal decision was affirmed by the tribunal and the applicant appealed on a question of law to the Court of Appeal.

120 The facts and circumstances of the offending were unusual. While he was asleep, the applicant's two children aged 2 and 4 years managed to open the front door of the family home and go on to a busy suburban road. They were taken into safe custody by the police with whom the applicant made contact after realising the children had gone. The applicant was charged with leaving children unattended[114] of which he was found guilty without conviction and given a 12 months' good behaviour bond.

121 Both the tribunal and the Court of Appeal doubted whether the applicant could have been guilty of the offence in the circumstances. However, the issue was whether the discretion to refuse was available. Under s 17(1A)(b)(ii), the Secretary only had discretion to refuse to give a notice if there was 'a significant link between the charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant'. The tribunal decided that, in determining that question, you took into account the nature of the offence but not the particular facts and circumstances of the offending.

122 On appeal, Weinberg, Harper and Osborn JJA held that this reasoning of the tribunal constituted an error of law. Of relevance to the present case are the remarks their Honours made about the intended purpose of the Working with Children Act:

If Parliament truly intended to prevent someone who had done nothing more than what the appellant did in 2002 from ever working with children, then this Court would, of course, give effect to that intent. However, it seems to us highly unlikely that the legislature would ever have contemplated any such outcome. To deny someone the right to obtain gainful employment is a serious matter, as s 17 plainly recognises. We frankly doubt that the residual discretion introduced into the Act to deal with offences other than those specifically identified as 'category 1', 'category 2' or 'category 3' offences was ever intended to bring about such a disproportionate result as that for which the Secretary contends. To construe the section in that way would give it a scope that goes far beyond overcoming any mischief at which the amending provision might be thought to have been aimed.[115]

123 As can be seen, in identifying the scope and application of the residual discretion to refuse, their Honours took into account the protective purposes of the legislation, the applicant's right to work and the need to avoid making decisions having a disproportionate impact on the applicant when this was not justified by those purposes. Considerations of the same kind are relevant when identifying the scope and application of the unjustifiable risk test in s 13(2), particularly as regards the need to assess the nature and degree of the risk.

124 Having decided that the tribunal had erred in law in holding that the discretion to refuse was enlivened, Weinberg, Harper and Osborn JJA refused to remit the matter back to the tribunal for reconsideration. Exercising the power in s 148(7)(a) and (b) of the Victorian Civil and Administrative Tribunal Act, their Honours set aside the order of the tribunal affirming the decision of the Secretary and, pursuant to s 26 of the Working with Children Act, ordered the Secretary to give an assessment notice to the applicant. In the present case, I will be exercising the power in s 148(7)(b) to make the correcting order to which I have referred.

125 It remains to consider cases in New South Wales where the right to work has been taken into account in determining whether an order should be made declaring that a sex offender was not a prohibited person under the former Child Protection (Prohibited Employment) Act 1998 (NSW). By s 9 of that Act, an exempting order could be made, in the exercise of a discretion, if it was considered that the person did 'not pose a risk to the safety of children'. The leading case is R v New South Wales Commission for Children and Young People.[116] Haylen J referred[117] to the right to work as expressed in art 23 of the Universal Declaration of Human Rights and as recognised in Nagle[118] and Lee.[119] His Honour held that the proper exercise of the discretion to exempt required the regulator to balance the applicant's right to work and the positive requirement to protect children:

Whether it be described as human right, or a common law right, the right to work, in a general sense, appears to be one of the civil rights considered by Parliament in enacting the Prohibited Employment Act and the associated legislative measures. Thus the legislation balances two important concepts which may come into conflict: the right to work and the requirement to protect children from sexual abuse by those in whose charge they are placed. Where it is clear, on the evidence in a particular case, that a person poses a real risk to the safety of children, then the right to work in a position or profession which creates that risk must yield to securing the safety of children. Where, however, an applicant establishes that he or she does not present a risk to the safety of children, then the important principle and human right of the right to work assumes significant proportions. In such a case, it is difficult to see why an order should not be made in favour of the applicant.[120]

126 The judgment of Haylen J in R was applied in Commission for Children and Young People v V.[121] Young CJ in Eq said Haylen J had been right to take into account the human right to work and the need to balance the protection of children and reasonable civil liberties.[122]

127 Young CJ in Eq went on to discuss the concept of 'a risk to the safety of children' in s 9 of the Child Protection (Prohibited Employment) Act. His Honour held that, because there were competing interests at stake, it was wrong to exercise the exemption power 'on the basis that the sole criterion is to protect children from any possibility of abuse from a person who has been convicted of a serious sex offence'.[123] It was not enough to point to 'minimal' risks and certainly not 'fanciful or theoretical' risks. The risk had to be 'real and appreciable'.[124]

128 I do not suggest that these New South Wales authorities are directly applicable to the Victorian legislation. It is important to note that the mandatory (not discretionary) test here is whether the Secretary is satisfied that granting the application 'would not pose an unjustifiable risk to the safety of children'[125] having regard to the specified matters. However, these authorities do highlight that an appropriate balancing of the right of children to protection from harm and the right of the individual to work in human rights terms is dependent upon a proper assessment of the nature and degree of the risk, if any. For the reasons which follow, that is relevant in the interpretation of s 13(2) of the Working with Children Act.

129 To repeat, in determining a person's application to be given an assessment notice, cl 102 of sch 1 of the Victorian Civil and Administrative Tribunal Act, requires the tribunal to 'have regard to - (a) any matter to which the Secretary may have regard under s 13(2) of' the Working with Children Act. Section 13(2) of the Working with Children Act provides that the Secretary cannot give a notice 'unless satisfied that doing so would not pose an unjustifiable risk to the safety of children, having regard to' the specified mandatory considerations.

130 Under s 169N(3)(c)(i) of the Transport (Compliance and Miscellaneous) Act, the tribunal cannot make an order granting driver accreditation unless (among other things) it

(i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to -

(A) the matters set out in section 169C(3)(b)(i) to (x); and

(B) any other matter that [it] considers relevant to the application ...

Section 169C(3)(b)(i) to (x) contains a number of specified mandatory considerations like those in s 13(2) of the Working with Children Act.

131 The Working with Children Act and the Transport (Compliance and Miscellaneous) Act are related enactments. Both specify a test in terms of unjustifiable risk. The Working with Children Act is relevantly concerned with giving assessment notices to persons wanting to work with children after conducting a working with children check. The Transport (Compliance and Miscellaneous) Act is relevantly concerned with granting driver accreditation to persons wanting to provide commercial transport services as drivers of certain vehicles, including taxis and buses. Before granting an application, both enactments require the respective Secretaries to be satisfied that doing so would not pose an unjustifiable risk to the safety of specified persons. Under the Working with Children Act, it is to the safety of children (s 13(2)). Under the Transport (Compliance and Miscellaneous) Act, it is to the safety of persons using commercial transport services (s 169N(3)(c)(i)). Bearing in mind the different statutory context, I think the core concept of 'unjustifiable risk' in the two enactments is the same.

132 The scheme of the Working with Children Act is to prohibit and criminalise engaging in child-related work unless the person has been given an assessment notice (s 33(1)). The threshold test applying in cases like the present is whether giving a notice 'would not pose an unjustifiable risk to the safety or children' having regard to particular considerations (s 13(2)). Making an unjustifiable risk assessment involves high stakes on all sides and the focus in the legislation is on balance, objectivity and methodological rigour.

133 The balance which is inherent in the legislation was explained by the Attorney-General in the second reading speech which he gave when it was originally enacted:

Developing the working-with-children scheme has been an exercise in striking the right balance. Minimising the risk of harm to children is our priority. In achieving this, however, the government is aware of the need to ensure that all applicants for an assessment notice are treated fairly, in accordance with the principles of natural justice. Also important is the need to create a scheme that does not bury employers and community organisations in red tape and responsibilities, and the need to create a scheme that does not discourage the volunteers that are to vital to Victoria's community. The government considers that the Working with Children Bill meets its aims. It creates a scheme that balances these, sometimes competing, considerations but which is aimed squarely at improving children's safety.[126]

134 The test of 'unjustifiable risk' requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. The assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances. As the Secretary to the Department of Justice (supported by the Secretary to the Department of Transport) submitted, if s 13(2) is so applied, it will be a proportionate decision in the circumstances under the provisions of the Working with Children Act, as it would be under the correlative provisions of the Transport (Compliance and Miscellaneous) Act.

135 The protection of children wherever they are is of fundamental importance. Infliction of harm upon them produces severe and long-lasting consequences. At the same time, work has great significance to the individual, his or her family and the community. It is therefore a serious thing to deny someone access to their chosen field of employment. Recognising the fundamental importance of protecting children from harm and how serious it is to deny someone access to their chosen field of employment, s 13(2) of the Working with Children Act states a threshold test in terms of 'unjustifiable risk' for determining when that step can, indeed must, be taken. The test requires the assessment notice to be refused unless the Secretary (or the tribunal) is satisfied that giving it would not pose that risk.

136 The terms of s 13(2) indicate that the legislature has given careful thought to identifying and specifying those facts and circumstances which can indicate when a given risk might be unjustifiable. It is inherent in s 13(2) that the function of carrying out an unjustifiable risk assessment is context-specific and evidence-based. It is only by assessing the specified considerations in the particular circumstances that a judgment can be made about whether the risk (if any) is not unjustifiable. The considerations are such that the judgment must necessarily be evaluative in the given facts and circumstances. The task of the tribunal is to determine whether to grant or refuse an 'assessment notice' (emphasis added).

137 As submitted by the Secretary to the Department of Justice, when administering the test, it is not necessary for the Secretary (or the tribunal) expressly to balance the potentially competing interests which are represented by the right of children to be protected from harm and the right of persons to work and to exercise freedom of choice of work, and to engage in other civil activity, such as volunteering in a community organisation. The terms of s 13(2) represent the policy choice made by Parliament with respect to the balancing of those rights and interests. The expectation is that, by properly applying the threshold test in s 13(2), those rights and interests will be appropriately balanced and addressed. To repeat, if s 13(2) is properly applied, that will occur. As submitted by the Secretary to the Department of Transport, the position is the same with the interpretation and administration of the unjustifiable risk provisions of the Transport (Compliance and Miscellaneous) Act.

138 The interpretation of s 13(2) which I have here explained is carried by the plain and ordinary meaning of the words 'unjustifiable risk'. A 'risk' is a 'hazard' or 'danger' or an 'exposure to mischance or peril'[127] and may be great or small depending on the probability of the event occurring and the nature of the hazard or danger concerned. The legislation creates an important scheme for protecting children from the hazard or danger of being sexually or physically harmed by employees, volunteers and others. But it is not a scheme for protecting children from all hazards and dangers whatsoever, however insignificant be the nature of the potential harm or small be the degree of the probability of that harm occurring. That comes from the word 'unjustified'. Something is 'unjustified' where it is '[n]ot brought into a state of justification' or '[n]ot proved to be right or proper'.[128] Something is justified where it is '[m]ade just or right; made or accounted righteous; warranted; supported by evidence'.[129]

139 Similarly, the relevant ordinary meaning of 'likelihood' in s 13(2)(h) is 'the quality or fact of being likely or probable'.[130] The relevant ordinary meaning of 'likely' is likewise 'probable'.[131] This too requires an assessment, one that may count in favour of or against the applicant depending on the level of the probability.[132]

140 This interpretation is consistent with Australia's international obligations (including art 17 of the International Covenant on Civil and Political Rights if it applies) and the human rights in the Charter (including s 13(a) if it applies). When applying the unjustifiable risk test in s 13(2), the Secretary (and the tribunal) must objectively assess the nature and degree of any risk of harm to children in the particular facts and circumstances. Conducting such an assessment is necessary if the right of children to protection from harm and the right or individuals to work and chose their work are properly to be included in the frame of consideration. This interpretation is consistent with the purpose of s 13(2) and the Working with Children Act because preventing persons from working with children who would pose no real risk of causing them sexual or physical harm does not serve the purpose of protecting children from that harm.

Question 2: Whether the Tribunal misapplied, misinterpreted, or failed to apply the test in section 13(2) of the Working with Children Act 2005 ... by failing, in effect, to consider or decide whether the Plaintiff was an 'unjustifiable risk' to the safety of children.

143 The ground relates only to the tribunal's consideration of the 'unjustifiable risk' test in s 13(2) of the Working with Children Act when determining ZZ's application under that Act. The tribunal did not apply the equivalent test in s 169N(3)(c)(i) of the Transport (Compliance and Miscellaneous) Act when determining ZZ's application under that Act.

144 I will begin with the tribunal's reasons for decision on this point.

145 The tribunal gave its reasons for making the decisions in writing.[133] Early in those reasons, it correctly referred to the applicable provisions of the Working with Children Act and the Transport (Compliance and Miscellaneous) Act. It set out the provisions requiring a consideration of whether giving an assessment notice or granting driver accreditation 'would not pose an unjustifiable risk' to the safety of children[134] or the travelling public.[135] It set out the provisions requiring a consideration of 'whether, in all of the circumstances, it [was] in the public interest' to give an assessment[136] or grant accreditation.[137] It also set out the provisions containing the further criteria in relation to the application for accreditation.

146 Although the tribunal referred in this way early in its reasons to the 'unjustifiable risk' criterion, it did not again do so.[138] All subsequent references to the applicable test were to children being put 'at risk', there being 'a risk' and ZZ posing 'a threat' to children. As will be seen, the tribunal never actually expressed a conclusion that giving an assessment or granting accreditation would 'not pose an unjustifiable risk to the safety' of children or the travelling public.

147 The tribunal ordered that ZZ's applications under the Working with Children Act and the Transport (Compliance and Miscellaneous) Act be heard together, which I do not criticise. However, in determining the applications, the tribunal adopted the course of focusing entirely on the 'unjustifiable risk' and 'public interest' issues in relation to the application under the Working with Children Act. In determining the application for driver accreditation under the Transport (Compliance and Miscellaneous) Act, the tribunal simply adopted the conclusions which it reached in relation to the application for an assessment under the Working with Children Act and did not address the other criteria which applied. It did not refer to the different nature of the jurisdictions which the tribunal possessed - review jurisdiction in the application under the Working with Children Act and original jurisdiction in the application under the Transport (Compliance and Miscellaneous) Act. This may have contributed to the mistake which was made in the tribunal's order.

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