I have previously reported on the decision in LRB v Secretary to the Department of Justice and Regulation (see Past misbehaviour and current risk (November 30, 2018)).  To recap, the issue was that LRB ‘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.’  These offences occurred in 1997.   21 years later, with no subsequent offending, he applied for a working with children check to allow him to continue volunteering with Victoria’s Country Fire Authority (CFA).

The nature of LRB’s prior offending meant that the matter had to be determined by Victoria’s Civil and Administrative Tribunal (VCAT).  Deputy President Lulham considered LRBs past offending, his subsequent good conduct, the need to protect young persons and the public interest in both granting and refusing LRB’s application. Taking all that into account the Deputy President concluded that ‘giving an assessment notice to the Applicant would not pose an unjustifiable risk to the safety of children’.  The Tribunal ordered that LRB be issued with ‘an assessment notice under the Working with Children Act 2005’ (LRB v Secretary to the Department of Justice and Regulation [2018] VCAT 1351, [132] and [140]).

In Secretary of the Department of Justice and Community Safety v LRB [2019] VSC 277 the Secretary appealed to the County Court arguing that Deputy President Lulham had made errors of law when making the orders described above.  Ginnane J dismissed the Secretary’s appeal.  There were a number of issues of law raised that I won’t report because of their technical aspects.  Critical however was the Secretary’s submission, summarised by the Judge (at [83]) as:

The Secretary’s approach was that although there was no specific evidence of any risk of future harm by LRB to children, criminal offences committed 21 years ago meant that he was nevertheless too great a risk to children to be given an assessment notice.

(Although not part of the judgement, if it is my view that If accepted that claim would have denied any aspect of possible rehabilitation or consideration of the circumstances of the offence.  If it was intended that any offence, regardless of how long ago was a bar to the assessment, the legislation could say that. It would not be difficult for the legislature to set out that some convictions meant that an assessment could never be issued, rather than provide that a Tribunal is to make the decision but then say there is no room for the Tribunal to exercise discretion.)

In any event Ginnane J found that there had been no error.  He said (at [93]-[94])

[The Deputy President] … devoted much of his decision to considering whether giving LRB an assessment notice would pose an unjustifiable risk to the safety of children…

Reading the Deputy President’s reasons as a whole reveals that he did give paramountcy to the matters contained in s 1A [that is ‘the protection of children from sexual and physical harm’]. He focused on the centrality of both s 1A in particular and the protection of children in general.

Finding that the Deputy President had correctly applied the law, the Secretary’s appeal was dismissed and LRB retains his assessment notice under the Working with Children Act 2005 (Vic).

As I said when concluding my earlier post:

Serious past offending is a concern but after 21 … years …, 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 … by continuing to volunteer with the CFA.