Two cases involving volunteers with Victoria’s CFA raise the issue of the relevance of past misbehaviour and current risk, in this case to children.
Both UYU and LRB are CFA volunteers. Both have extensive criminal records. Both required ‘Working with Children’ clearances to continue their volunteer and other work.
UYU v Secretary to the Department of Justice and Regulation
In UYU v Secretary to the Department of Justice and Regulation  VCAT 182 UYU had been convicted of manslaughter and attempted murder. He was sentenced for those offences in 1991. Subsequent to his release from prison he had obtained an Assessment Notice under the Working with Children Act 2005 (Vic).
In 2012 UYU had been refused an Assessment Notice but this had been set aside by VCAT. An assessment notice, valid for 5 years was issued. UYU had applied for a further notice. By legislative change it was now the case that only VCAT could issue an appropriate working with children clearance (), that is this was not an appeal from a refusal to issue a notice, VCAT was being called upon to make the initial decision. In deciding whether to issue an assemment notice, ‘the paramount consideration in all applications is the protection of children from physical and sexual harm’ ().
In trying to predict the risk of future harm, the tribunal had 28 years of past behaviour to review. At - Deputy President Lambrick said:
I accept that since the last hearing, UYU has not been questioned in relation to, nor has he been charged with or found guilty of any further offences. He has continued to be employed in the same company he worked for in 2012 and has continued to remain involved with his local CFA. He has two children of his own and is happily married. He remains actively involved in the lives of his wife and children and regularly volunteers at school for umpiring duties.
Importantly, for the past five years, UYU has held an Assessment Notice and has from time to time engaged in child related work without incident.
In considering the possible risk, the Deputy President heard from witnesses regarding UYU’s behaviour. One witness (at ):
… was a fire brigade captain who had observed UYU training junior firefighters. He did not have any concern for the safety of those junior officers. He was apparently aware of UYU’s prior offending, the surrounding circumstances and the seriousness of those offences. Nevertheless, the positive experiences he had had interacting with UYU over the years allowed him to support UYU continuing in his role at the fire brigade including anything that may involve working with children.
In conclusion, Deputy President Lambrick said (- emphasis added):
I am satisfied that giving an Assessment Notice would not pose an unjustifiable risk to the safety of children. I am also satisfied that in all the circumstances it is in the public interest to grant the Assessment Notice.
It is clear that UYU is a person who through his volunteer work at the CFA is likely to provide benefit and advantage to junior firefighters as volunteers in the community. It is in the public interest that UYU continue to utilise his skills to volunteer in the community and to continue his employment. It is in the public interest for him to continue to supervise young firefighters and continue to engage in paid employment, where his doing so poses no risk to children.
In NJL v Secretary to the Department of Justice and Regulation (Review and Regulation)  VCAT 749 at , I observed that it is in the public interest for an individual to engage fully in the workplace and broader community. It is in the public interest for a rehabilitated person to engage fully in the community when he or she does not pose a threat to children and there is no unjustifiable risk to children in their engaging with them. In HUD v Secretary to the Department of Justice (Review and Regulation)  VCAT 331 at , the Tribunal found that there is public interest in permitting an individual to engage in paid employment, noting that engaging in work brings not only economic benefits, but reduces idleness, increases community participation and reduces social exclusion.
LRB v Secretary to the Department of Justice and Regulation
In LRB v Secretary to the Department of Justice and Regulation  VCAT 1351 Deputy President Lulham had to consider LRB’s application for an assessment notice. The Tribunal said (at ):
Between August and October 1997, when he was just over 18 and a half years of age but still attending secondary school in Year 11, he had sexual relations with a 14-year-old boy who was in Year 8 in the same school.
LRB was charged and entered guilty pleas to 10 charges of indecent assault and 6 charges of committing an indecent act with or in the presence of a child under 16. He was (at ) ‘convicted of all charges, and was ordered to perform 175 hours of unpaid community work and to participate in psychological counselling as directed in respect of sexually related issues, under a community-based order’. On appeal, the County Court allowed the appeal and imposed the same sentence but without recording a conviction (). LRB complied with all the orders of his sentence. In 1998 a Forensic Mental Health unit psychologist reported (at ) that there was no further risk and that LRB was no longer required to report to the unit for counselling.
The nature of the offences meant that the Secretary was required to refuse an assessment notice which was done. LRB then applied to VCAT which does have the power to issue a notice. At :
… VCAT must not order that such an assessment notice be given unless satisfied, first, that giving the notice would not pose an unjustifiable risk to the safety of children, and, secondly, that all the circumstances it is in the public interest to do so.
The Deputy President considered the factors of LRBs offending and found that those factors were not to be trivialised or downplayed. There had been serious offending with dramatic consequences for the young victim.
In LRB’s favour was his conduct in the subsequent 21 years – ‘The Applicant has had an unblemished history, in the context of the criminal law, since the offences’ (). Further (-):
… in about 2008 he sought employment with the Country Fire Authority and voluntarily disclosed his criminal history. He was not offered employment, which he put down to the disclosure. He then conducted some research and concluded, correctly, that his criminal history was not a barrier to volunteering with the Authority. He has now spent some 15 years as a volunteer with the CFA. During 2018 he was advised that the CFA was considering implementing a mandatory working with children’s check policy, and it was this that led the Applicant to apply for the working with children’s check and then to bring this VCAT application.
The Applicant wants to continue volunteering with the CFA and if he does not receive a working with children’s check his ability to do so will be severely curtailed.
In his evidence in chief the Applicant said that obtaining a working with children’s check was absolutely critical to him. He said that currently and in the current climate – by which he expressly meant the climate created by the exposure of churches and other organisations in the Royal Commission into Institutional Responses to Child Sexual Abuse – many organisations and employers require a working with children check when considering a person’s application for employment. The Applicant said he has been unemployed since November 2017, and that whilst he had had secure employment in the past, he cannot now even secure a basic job in the security industry because of the WWC Act. He has been denied employment with the Metropolitan Fire Brigade. He has been denied employment in the call centre in the Emergency Services Telecommunications Authority (“ESTA”) which administers the 000 telephone call facilities for emergency services, because the employer had concerns around the security of its database, a matter seemingly far removed from the objects of the WWC Act. The Applicant said he thought obtaining a working with children check would show potential employers that he was not a threat. Further, the Applicant wrote of these job applications, in his letter to the Tribunal dated 6 July 2018, that, “There has always been a fear in the back of my mind that my past will continue to follow me and prevent me from doing what I love, no matter what time passes and what employment I attempt to gain”.
The Tribunal has said in a number of previous decisions that the practice of employers seeking working with children checks as almost a default step in the recruitment process is inappropriate…
The tribunal went through evidence regarding LRB’s conduct to determine ‘that giving the notice would not pose an unjustifiable risk to the safety of children’ (Working with Children Act 2005 (Vic) s 26A(3) cited at ). When it come to the public interest the Tribunal said -:
First, there is a public interest in The Country Fire Authority having a body of enthusiastic and willing volunteers. Philip has observed that the Applicant “always” volunteers for activities in the CFA, which he said cannot be said for all CFA participants. The activities in which the Applicant participates in the CFA support the community.
In Maleckas v Secretary, Department of Justice  VSC 227 Kyrou J said, at paragraph 90, that an applicant’s skills being of benefit to children could be taken into account as a public interest.
Secondly, Bell J has said that 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 are legitimate interests worthy of protection. It is in the public interest for the Applicant, an adult of 39 years, not to be excluded from a wide range of employment opportunities. In practical terms, a person seeking employment has very little prospect of convincing a potential employer that the proposed job does not require the employee to have an assessment notice under the WWC Act, even if objectively that is so. The Applicant has given evidence that the WWC Act has limited his employment prospects in the past, and there is a public interest against the Applicant being excluded from the workforce.
Thirdly, there is a public interest in recognising, consistently with the comments made by Judge Macnamara in relation to the thinking of a reasonable person, that once a person has offended, he or she can be redeemed. The offences were committed around 21 years ago and the Applicant has been dealt with by the criminal law. There is a public interest in enabling the Applicant not to be punished again by the WWC Act.
Fourthly, the Applicant has been recognised by his three witnesses of displaying good character in the various periods they have known him. There is no evidence that the Applicant abuses alcohol or drugs, that he has thoughts of suicide or self-harm, or has anything that could be described as a psychiatric condition.
In the case of both LRB and UYU the Victorian Civil and Administrative Tribunal (VCAT) took seriously the obligation to consider the potential risk to children by allowing the applicants to obtain a working with children clearance. Serious past offending is a concern but after 21 and 28 years respectively, a person is entitled to point to their post offending behaviour and have that considered when deciding whether they pose ‘an unjustifiable risk to the safety of children’. If there is no appreciable risk then there is value for everyone in allowing them to contribute to the community in employment and in volunteer work, in both of these cases by continuing to volunteer with the CFA.