VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
Administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No Z273/2022	
CATCHWORDS	
Review and Regulation List – Worker Screening Act 2020 (Vic), section 108 – application for review of a decision to issue a WWC Exclusion – offending involving significant drug trafficking in the context of addiction – whether the applicant posed a risk of causing harm to a child in the context of her past trafficking – whether appropriate to refuse to give a WWC clearance.	

APPLICANT	OOP	
RESPONDENT	Secretary to the Department of Government Services	
WHERE HELD	Melbourne	
HEARING TYPE	Zoom hearing 	
DATE OF HEARING	4 and 19 April 2023	
Final date for reply	11 September 2023	
DATE OF ORDER and reasons 	5 December 2023	
CITATION	OOP v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2023] VCAT 1316	

Orders
1	The proper respondent is the Secretary to the Department of Government Services.  The principal registrar is directed to amend the register accordingly.
2	The decision of the respondent to refuse to grant a WWC Clearance and instead to issue a WWC Exclusion is affirmed.
3	Subject to order 3 below, under section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the applicant in this proceeding is to be known as ‘OOP’. 
4	If the respondent objects to the anonymisation order, it must write to the Tribunal and the applicant within 14 days.  If there is an objection, further orders for written submissions will be made (unless either party seeks a hearing on the question). 
5	Under s 146(4)(b) of the VCAT Act, VCAT directs that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.

A Dea
Senior Member 	

APPEARANCES:		
For Applicant	In person	
For Respondent	Ms G Rhodes, counsel	

Reasons

1	This proceeding concerns an application by the person known as OOP in this proceeding made on 15 April 2021 for a volunteer WWC Clearance under the Worker Screening Act 2020 (Vic) (WSA).  For ease of reading OOP is referred to as ‘the Applicant’ in these Reasons.
2	On 10 January 2022, the Secretary to the (now) Department of Government Services gave the applicant a WWC Exclusion as required by section 67 of the WSA, as she had failed to respond to the Interim Exclusion.
3	The Applicant’s criminal history check disclosed that, on 8 May 2015, she had been found guilty of the offence of ‘Traffick Methylamphetamine Commercial Quantity’.  That record was incorrect.  The Applicant had been found guilty of a number of drug related offences including three charges of traffick drug of dependence under section 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (Drugs and Poisons Act).  Each charge related to a different drug of dependence, being methylamphetamine, amphetamines and cannabis.
4	For the purposes of the WSA, the Applicant’s offending falls within Category C.
5	The Applicant was released from prison in November 2018.  She was subject to an intensive parole period until February 2019 and completed her parole in June 2020.
6	After the Applicant was issued with a WWC Exclusion, she applied to the Tribunal for review of that decision.  The Applicant wishes to have a WWC Clearance as that is required for her to complete her studies in the alcohol and other drugs and mental health sectors.  While the Applicant’s focus is not on working with children, she is required to hold a WWC Clearance to undertake placements necessary to complete her studies and commence a career in those sectors. 
7	The Secretary opposed the Applicant’s application, contending that she did not meet the applicable criteria for granting a WWC Clearance.
8	In this case, the sole conduct which led to the WWC Exclusion was the Applicant’s drug related offending.  
9	At the end of the hearing, I made orders allowing the Applicant to have time to consider obtaining a risk assessment report for my consideration.  While it took some time, the Applicant obtained a report of that kind from psychologist Luke Lawrence.  Lawrence produced a report dated 21 July 2023 (the Lawrence Report).  On 25 August 2023, the Secretary sent its written submissions on that Report (the August 2023 Submissions).  As the Secretary did not seek to cross-examine Lawrence and, on 11 September 2023, the Applicant gave notice she was content for me to make my decision having regard to all of the evidence heard and other material before me (including the Lawrence Report), without a further hearing, I have done so. 
10	The paramount consideration for granting a WWC Clearance is the protection of children from sexual or physical harm.  The Tribunal’s overarching task is to identify and weigh the risk the relevant applicant may present to children based on their past conduct (criminal or otherwise) and all other available information.  
11	The onus of proving that a WWC Clearance ought to be issued falls on the Applicant.
12	After considering the available material about the Applicant’s criminal convictions and imprisonment in 2015, her attitudes towards the convictions and her current circumstances, I have concluded that is not appropriate to grant her a WWC Clearance at this time.
13	I have reached that view despite considering that the Applicant has made very impressive steps in her recovery from addiction and is in the process of rehabilitation.  In the Applicant’s favour is the strong relationship she has with her daughter and others close to her, including her support group of former prisoners.  I accept that, in future, would likely have much to offer to others who have suffered from addiction and engaged in criminal activity.  
14	I am well aware that my decision will cause great disappointment.  It is my hope that it will not deter the Applicant from continuing to maintain her recovery from addiction and to find ways to use her training and life experience to benefit the community. 
15	As I have made an order that the Applicant be known by an acronym, to avoid identifying her, I have not identified others by name.  The reasons for making that order are given below.  
The applicable law
16	The Tribunal has jurisdiction to review the Secretary’s decision to give an applicant a WWC Exclusion under section 105(1)(b) of the WSA. 
17	Under section 108 of the WSA, when exercising its jurisdiction, the Tribunal must determine whether in the circumstances it would be appropriate to refuse to give a WWC Clearance, having considered: 
A	Any matters to which the Secretary must have regard under section 65(2) of the WSA;
B 	Whether a reasonable person would allow their child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; 
C 	Whether the applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children; and 
D 	Whether it is satisfied that it is in the public interest to give the WWC Clearance.
Section 108(1) – the unjustifiable risk test
18	When considering the factors in section 65(2)(a) to (f) of the WSA, they are to be assessed against the whole of the evidence.  The Secretary referred to the following from BHB v Secretary to the Department of Justice: 
It is . . . not simply a matter of looking at each of the elements . . . and adding up those which are positive, and subtracting those that are negative.  The whole of the evidence must satisfy [the Tribunal] that the giving of a notice to [the applicant] would not pose an unjustifiable risk to the safety of any children placed in his care.  In weighing up this evidence, it is important not to focus solely on the present personal circumstances of an applicant, or the characteristics of child-related work in which an applicant wishes to engage, as once the assessment is issued, it is effective for any child related work of any description in which the applicant might be engaged in the future.
The nature and gravity of the offence and its relevance to child-related work – section 65(2)(a) 
Background and circumstances relevant to the offending
19	Before addressing the above factor, I set out relevant aspects of the Applicant’s background and how she came to engage in the offending.
20	The Applicant grew up as an only child and has no contact with extended family members.  She reported to Lawrence that she ‘never had a close relationship with her parents and was brought up in a dysfunctional family environment’.  The Applicant told Lawrence she was raised on a farm and, as her parents were very busy most of the time, she was left alone in the house. Her parents were described as being ‘generally emotionally unavailable to her’.  The Applicant was not taken out very often and could not remember having a lot of fun or receiving many gifts for birthdays. 
21	While she told Lawrence she felt emotionally neglected as a child, the Applicant was never physically, psychologically or sexually abused.
22	The Applicant described her time at primary school as ‘OK’.  
23	When she was 11 years old, the Applicant was sent to a private secondary school of the Jewish faith.  Her parents were said to have decided to send the Applicant there to ‘have her brought up in a Jewish context (which included the language and religion)’ because her parents had a Jewish background but did not practice or associate themselves with the community.  As the school was some distance from her home, the Applicant stayed with various other families over the years.  The Applicant only referred to one of those families as appearing to like her.  The Applicant reported that she had been physically and psychologically bullied over the whole six years she was at the school.  She did not do well academically, completing year 12 but only passing three subjects.
24	In about 1986, the Applicant effectively left home, aged 18 years.  She reported to Lawrence that, when she was older, she did not feel comfortable going to her parents for support (for instance financial or emotional).  Her mother passed away when the Applicant was in her late 20’s and a few years later, her father died.
25	The Applicant first smoked cannabis (with her first boyfriend) when she was 19 years old.  When giving her history to Lawrence, the Applicant stated that she had only ever used drugs when she was with a boyfriend or intimate partner.  In her evidence before me, the Applicant stated that she had been addicted to cannabis for around 20 years, smoking it throughout each day.  
26	After leaving school, the Applicant completed a legal secretarial course and worked in law firms for three years.  She did some work as a private investigator and also waitressed.  In her early 20’s the Applicant worked as a stripper from time to time.  
27	The Applicant commenced a relationship with her now Former Husband in 1994. 
28	In around 1998, the Applicant purchased a pet food and accessory shop.  The business was not viable and closed after around eight months.  At the hearing, the Applicant’s evidence was that the previous owners had mislead her about the amount of money it would bring in.  After that, the Applicant undertook studies and then worked in the aged care sector.
29	The Applicant’s Daughter was born around that time.
30	In 2005, the Applicant and the Former Husband established a legal brothel.  
31	The Applicant started using methylamphetamine (known colloquially as ‘ice’) at the time she and her Former Husband were operating a legal brothel.  The drug was offered to her by a woman who worked at the brothel.  The Applicant told Lawrence that, at that time, she was using ice recreationally but also noted there were benefits to using the drug, such as being able  to work longer hours.  She also liked the feeling of getting high and noticed that, when she used drugs, others would be more inclined to spend time with her
32	In around 2009, the Applicant and her Former Partner decided to sell the business because they did not have enough sex workers available to service their clientele and it had become too stressful.  She referred to the pressure which came with their $780,000 loan to buy the building from which the brothel operated.  The Applicant stated that all loan repayments were met and up to date at the time of the sale.  After the sale of the business, they repaid all of their debts, including the mortgage securing the building.  
33	In late 2009 to early 2010, the Applicant’s marriage broke down due to her drug use.  
34	The Applicant commenced a relationship with the Partner soon after.  She became addicted to ice after her marriage broke down and when she commenced a relationship with the Partner.  He was also addicted to ice. 
35	In about March 2010, the Applicant started to deal in ice, cannabis and amphetamines (colloquially known as ‘speed’) to fund her and her Partner’s drug habits.  
36	In late 2010, the Applicant began a business importing and distributing gift-wrapping paper.  In her evidence the Applicant confirmed that, consistent with material in the Tribunal Book, she stopped using ice from around December 2010 to November 2011.  The Applicant recommenced using ice at the end of November 2011 and, as I understood it, continued to operate the gift-wrapping business until around when she was arrested in 2014. 
37	The relationship with the Partner ended in around October 2013, however he continued to live in her home for a time.
38	The Applicant’s Daughter lived with the Applicant from around 12 to 16 years old.
39	When asked about her relationship with the Applicant at the time of the offending, the Daughter gave evidence that the Applicant had always been a good mother who looked after her, loved her and provided for her.  Further evidence of that kind is set out below.  The Daughter also referred to the Applicant being stressed and upset at times and, while she did not always understand what was happening, especially when she was younger, she was aware of those stresses making their relationship more difficult.  The Daughter referred to times when the Applicant, and it seemed she, were a little unstable.  She also referred to arguments between the Applicant and the Partner.  She said there were times when she did not want to be at that house and felt unsafe.  When an opportunity came up for her to move to her father’s home, she took it.
The arrest, charges and conviction 
40	The Applicant was arrested in June 2014 after police searched her semi-rural property.  She exercised her right to silence when arrested.  
41	In July 2014, the Applicant’s home was invaded by a number of men wearing balaclavas.   The Applicant and the Partner were physically attacked and struck by a wooden club.  A gun was held to the Applicant’s  head and money was demanded.  The Partner was hospitalised after the attack due to the injuries he suffered.  
42	A couple of weeks after the home invasion, the Applicant made significant admissions to police in a long interview.  
43	The criminal charges to which the Applicant pleaded guilty were as follows:
•	Charge 1: Trafficking in a drug of dependence (Methylamphetamine) under section 71AC of the Drugs and Poisons Act.  Penalty, level 4 – 15 year’s imprisonment; 
•	Charge 2: Trafficking in a drug of dependence (Cannabis L) under section 71AC of the Drugs and Poisons Act.  Penalty, level 4 – 15 year’s imprisonment
•	Charge 3: Trafficking in a drug of dependence (Amphetamine) under section 71AC of the Drugs and Poisons Act.  Penalty, level 4 – 15 year’s imprisonment;
•	Charge 4: Possessing a drug of dependence (Alprazolam- Xanax) under section 73 of the Drugs and Poisons Act.  Penalty, level 8 – 1 year’s imprisonment;
•	Charge 5: Possessing a drug of dependence ( MMDA-Ecstasy) under section 73 of the Drugs and Poisons Act.  Penalty, level 8 – 1 year’s imprisonment;
•	Charge 6: Handling Stolen Goods under section 88 of the Crimes Act1958 (Vic) (arising from two stolen hot water systems found on the property).  Penalty, level 4 - 15 year’s imprisonment; and 
•	Charge 9: Dealing with property suspected of being proceeds of crime under section 195 of the Crimes Act 1958 (Vic) (arising from $1,390).  Penalty, level 7 – 2 year’s imprisonment.
44	The Applicant was convicted of all charges and, as stated earlier, was sentenced to a total effective period of five years and one month’s imprisonment.  
45	The Sentencing Judge, Chettle J found that the Applicant engaged in the criminal conduct motivated by ‘a desire to make money’.  The summary to which the Applicant’s counsel agreed at the time was that she was making around $4,000 a week, every week for four and a half years.  
46	Chettle J’s remarks about the nature of the offending are below. 
The unsuccessful appeal on sentence
47	The Applicant unsuccessfully appealed her sentence relying on three grounds.
48	The first was a claim that the sentencing judge failed to treat the home invasion as a mitigating factor.  That ground was rejected.
49	The second ground was said to be an error as to the extent of the trafficking.  While the Applicant’s counsel had originally intended to ‘traverse’ the factual basis for the trafficking charge, during the plea, he agreed that it amounted to $4,000 a week for four and a half years.  The Court of Appeal concluded that, whether or not one could argue about Chettle J’s calculations, the Applicant’s counsel could not quibble with the findings that:
•	The ‘trafficking extended over a period of four and half years (whether subject to any hiatus or not)’; 
•	The Applicant’s ‘was not an isolated act of trafficking’; 
•	A ‘substantial amount of methylamphetamine was trafficked over that time’; 
•	The Applicant was ‘motivated by a desire to make money’; and 
•	The Applicant ‘clearly profited substantially from [her] drug dealing business’.
50	The second ground was dismissed.
51	The third ground of appeal was that the sentence was manifestly excessive.  In its reasons for dismissing that ground of appeal, Priest JA’s reasons (with which President Maxwell agreed) stated: 
Making proper allowance for the applicant’s personal circumstances, in the circumstances of this case any sentence other than an immediate sentence of imprisonment of the order imposed by the sentencing judge would have been insufficiently punitive.  It is plain that the applicant was the enthusiastic proprietor of a profit-driven business in illicit drugs.  Her offending was serious and protracted.  In my view, it cannot reasonably be contended that the sentence is manifestly excessive.
The pecuniary penalty order
52	As a consequence of the offending and convictions, a Pecuniary Penalty was imposed requiring the Applicant to pay $1.58 million to the State.  
53	According to the Court of Appeal judgment, the Applicant’s counsel informed Chettle J that the Applicant owned three properties subject to mortgages totalling $640,000 and that she spent the proceeds from trafficking on living expenses.  While I did not have full details before me, I understood that two of the properties were sold and the mortgages were paid out. As I understood it, the Applicant was also able to apply some of the sale proceeds to the Pecuniary Penalty.  The Applicant’s evidence was that the outstanding debt was later reduced to be around $434,600.  
54	In order to pay that remaining amount to the State, the Applicant borrowed the sum of $370,000 (the Loan) from a person she had formed a personal relationship with after her release from prison (the Friend).  The Applicant’s further evidence was that she was able to repay some of what was owed to the State from savings.  After all payments were made, the Applicant retained ownership of one of her properties but is still repaying the Loan.  I return to the repayments arrangements later in these Reasons.
The evidence regarding the Applicant’s attitude towards the offending
55	In various documents, including in responses to the Secretary and at the hearing, the Applicant described the circumstances which led to the trafficking.  
56	In a report prepared by Corrections Victoria in late November 2018 in the context of her being paroled, the Applicant was described as saying the following as to her understanding of why she had trafficked drugs at the time she was doing so: 
I wouldn’t say that [the Partner] made me do it, it was my choice, but there was pressure from my partner to sell drugs to support our habit.
Our relationship wasn’t good.  He didn’t treat me very well.  When we used, it's like things were better.  So I found myself using to keep my relationship going.
I thought because I just broke up with my husband, that I couldn't let another relationship fail. 
I started selling to support me and my partner’s drug habits.
Over time some of the people I sold to I considered friends, I would invite them over to smoke with us.
I just continued to sell, I had some periods where I stopped because my friends got to me, but I always ended up getting back into it.
Thoughts 
These people needed me, [I] wanted to feel needed or wanted.
I thought I would never get caught, and if I did I thought I would just get a CCO or something. 
57	The document also described her view of the offending as at November 2018 including that after she was arrested she knew she would be going to prison and was ‘terrified’.  She also stated that she realised ‘those people’ were not her friend and were ‘just there for the drugs’.  She said she wanted people to ‘need me for something other than drugs’.   
58	In a response to the Secretary sent on 4 September 2021 (the September 2021 Response), the Applicant explained the ‘circumstances surrounding’ the offending as follows: 
I was in a state of depression and tried to commit suicide on two occasions.  My marriage had broken down after being together for 15 years and bearing one child.  I had never used drugs until my marriage fell apart.  I met [the Partner] before my marriage broke down and he knew some unsavoury characters.
After [the Former Husband] and I separated I started to spend time with [the Partner].  He used drugs and introduced me to other people who used drugs.  He introduced me to smoking ice and I smoked ice with him and his friends.  I started smoking cannabis as well. I found that smoking the drugs took my mind off the breakup with my ex-husband. I thought I felt better mentally. The people I started associating with encouraged me to smoke more ice.  [The Partner] ended up moving in with me and we were both smoking Ice, every day.  He suggested that we buy a little bit extra ice and sell it, so that we didn’t have to pay for it out of our own pockets. We began to buy ice to support our habit.
. . .
I started using ice in 2010.  When I started dealing ice I used to meet people anywhere on the streets.  In the last month I got lazy and let my friends who bought the ice, come to my house.  I lost all of my friends and using ice made me feel wanted and I sought comfort for my sadness.
59	In her evidence-in-chief, the Applicant spoke about her childhood and school life and then:
My social skills were just so inadequate and yeah, I got bullied at school.  I really didn’t have much confidence at all.  And yeah, I had this stupid idea that, yeah, dealing with drugs and having a few people come over, that that was like oh, yeah, I’m popular and they want me, they like me.  But I don’t think like that anymore because I have a good set of friends now and I don’t feel that need, social network.  
60	In the September 2021 Response, the Applicant described the 2014 home invasion and then said the following about the police interview she gave soon after:
When the police persuaded me to make another statement, I was under the influence of drugs and was experiencing post traumatic stress.  I should have told the police I was under the influence of drugs and alcohol, but I lied to them, as I thought I would be charged for using illicit drugs.  I was in a very vulnerable position and when I gave my statement I lied and exaggerated, left important information out, which made my statement very inaccurate.  My conviction was based on this statement.  I should have never made this statement.  I made out that I wasn’t a big ice user because I didn’t want the police to think I was a ‘junkie’.  I was ashamed that I had become the person I thought I would never be – a full on drug user.
61	At the hearing before me, the Applicant confirmed the above and was asked what she had exaggerated about.  She said:
It was an exaggeration that I wasn’t using very much ice.  That was the exaggeration.  I tried - - I didn’t - - I don't know why.  I didn’t want them to think that like I was like a junkie, a full-on drug user.   To me that - -  like, that shameful, so I exaggerated that I used so much less than what I actually did.
62	Questions about the quantities of drugs the Applicant bought and then sold followed.  Chettle J’s judgment referred to the quantities sold by reference to the term ‘points’.  That refers to 0.1 gram of ice.  The judgment also refers to the Applicant selling 70 points each week, being the equivalent of 70 instances of dealing each week.  The Applicant’s evidence was that she in fact sold larger amounts to each customer each time and so the money she made was not as great as the $1.58 million referred to by the sentencing judge.  The Applicant’s evidence was that, because she sold more to each person, her profit was less and so overall she did not earn around $4,000 a week for the relevant four and a half years.
63	As I understood it, once she became addicted, the Applicant used ice daily.   At the hearing, the Applicant was then asked whether she had not told police the actual amount she used and sold because she did not want them to think of her as a junkie and so she would rather that they thought of her as a dealer.  When asked to explain further, the Applicant said:
Because I had a good upbringing and my parents never associated with drugs - -  not that they really associated with anybody really, but I mean I had a morally good upbringing and it’s a shameful thing.  To me it’s very shameful, it’s disgusting that I would be an ice user and use that much ice.  Yeah, it’s not a thing to be proud of.
64	At the hearing, the Applicant was asked about statements in communications with the Secretary to the effect she only sold drugs to friends and a July 2018 Corrections record which said she had reported that she started selling to friends and then broadened ‘her services to others within the community’.  The Applicant did not recall making those comments to Corrections and then explained her position by saying:
It’s - -  how it worked is like it all starts, you know, introduced - - like, [the Partner] introduced me to his friends and then as it goes along, I became friends with those people, and then they say that they know somebody and then I become friends with them.  I basically become friends with everybody.  Everybody that I ended up dealing with, I became friends with.
65	The Applicant gave some evidence about the impact of her offending on the Daughter who was living with her at relevant times.  The Applicant referred to the impact of the marriage break up and the fact the Partner had moved into the home as a ‘bit of a double whammy’, saying the Daughter was not happy with that.  She then said the Daughter had ‘isolated herself more’, spending more time in her room and on her computer.  She referred to not spending enough time with her daughter and said it was not ‘a family environment for her’.
66	When asked if she and the Daughter had spoken about the Applicant’s behaviour at the time, the Applicant said she recalled the Daughter saying ‘oh, mum, you know, I told you to stop.  Why didn't you stop?  Why didn't you listen to me?  Why did you keep going?’.  The Applicant referred to the Daughter being upset when she was not there for her first day of high school.  
67	I next recount some evidence the Daughter gave at the hearing.  It was clear that the Daughter loves and supports her mother.  While at times her evidence about her mother’s current circumstances and prospects for the future might have been overly optimistic, I found her to be a thoughtful and careful witness on many other topics.  Generally speaking, that included her evidence about how she saw the offending.  
68	When I asked the Daughter some more questions about her years in the house while the Applicant was trafficking, she said the Applicant drove her to school every morning (with a lunch box) and often picked her up.  She made the Daughter dinner every night.  The Applicant washed the Daughter’s clothes and did ‘all the things that a normal mother would do.’
69	As to the atmosphere in the house, she referred to the fact the property was very large and so, as I understood it, she did not come into contact with the people the Applicant trafficked with much.  She said there were not wild parties every night and that often the drug related behaviour occurred at night when she was in her bed.  She was aware of people coming and going and being in a carport/pergola area.  She could hear music and the like. She said no one was ever obviously drug affected and they did not usually come into the house. She seemed to indicate the Partner was more drug affected at times in her presence.
70	In her evidence, the Daughter also spoke of worrying the Applicant would be caught and being concerned about the harm being done to her mother.  She referred to the Applicant trying to hide what was happening from her. 
71	The Daughter was asked about what she thought led to the Applicant’s offending.  When responding, the Daughter suggested there were multiple reasons and referred to the following:
•	The Applicant’s past issues with anxiety in respect of friendships and relationships;
•	The Applicant being influenced by the people she was with at the time  and their drug use;
•	The social aspect of drug use;
•	The Applicant’s longstanding preference to be ‘in control of finances’ and the fact that she was ‘fantastic with money’.  Reference was made to how she was ‘always super frugal’;
•	Her opinion that ‘there was a financial element to it as well’; and 
•	Selling drugs to others being an easy way to support the drug habit. 
72	The Daughter concluded by saying she considered the offending to have been mainly connected with the social aspect and ‘having people close’.  She said she knew the Applicant had been dealing to her friends and that she was also paying for her drug habit. 
73	The Daughter was asked about a document which recorded a discussion about the plan for the Applicant to live with her on her release from prison in November 2018.  The Corrections officer made notes about a range of matters and wrote that the Daughter:
reported an understanding of the current offences and circumstances leading up to the offending and she stated her mother had been greedy and become consumed by the financial benefits of trafficking drugs.
74	At the hearing, the Daughter said she had no memory of making that comment and did not agree with it.  She said she did not believe the ‘financial element’ was a risk of reoffending.
75	The Daughter was taken to another part of the same document which said she reported that:
at the time of the offending her mother was indulged by the lifestyle and large amounts of money associated with drug trafficking and anticipates this will be a risk factor upon her release into the community.
76	The Daughter did not recall making that comment either and did not believe money was a risk factor.  She added that being in prison was the hardest thing the Applicant had ever had to deal with and she did not believe she would want to go through that again and so she did not believe the Applicant would re-offend.
The submissions and other evidence 
77	The Secretary submitted that the offending is relevant to child-related work referring to previous decisions of the Tribunal.  It was submitted that, although there was no direct intentional offending against a child when engaging in activity involving quantities of illicit drugs, the probable result is that children will suffer both directly and indirectly because of this provision of drugs into the community.
78	In its 23 March 2023 written submissions (March 2023 Submissions), the Secretary placed particular emphasis on the following parts of the Summary of the Prosecution Opening: 
•	Police located 12.3 grams of methylamphetamine, 5.8 grams of amphetamine and 519.7 grams of cannabis, in the Applicant’s home;
•	The Applicant admitted to 4 years of continuous drug trafficking between March 2010 and 30 June 2014 (save for two month period around April – May 2014);
•	The trafficking was principally in ice methylamphetamines, but also amphetamines and cannabis;
•	The Applicant told police she sold a quarter of an ounce of methylamphetamine each week, which worked out to be 70 ‘points’ or 70 deals of 0.1 gram each at $100 a point.  Therefore, receiving approximately $7,000 a week;
•	After costs the prosecution calculated the Applicant would make $4,046 a week (for every 70 points sold);
•	The Applicant admitted to growing three cannabis plants during July and November 2013.  The yield was 2 pounds of cannabis which she sold for $5,200 in November and December 2013.  She also sold cannabis ‘here and there’ between March 2010 and June 2014; 
•	Various items were located in the Applicant’s house, including scales, counter weights, resealable bags, handwritten notes, and records of sale were located.  The Applicant admitted she possessed those items for use in trafficking drugs; and 
•	Police also found cash, stolen property, and other drugs including MMDA-Ecstasy and Alprazolam-Xanax. 
79	Relevant to the relationship between the offending and harm to children, in his sentencing remarks, Chettle J stated: 
5. 	All of the offences to which you pleaded guilty are serious. However, clearly charge 1, the charge relating to your four and a half year ice trafficking activity is the most serious charge. Methamphetamine or ice is destroying the lives of many people in our community. This court sees on a daily basis the damage caused by ice. The lives of young people in particular are ruined by ice, virtually every serious crime dealt with by this court over the time that I have been in [regional town] has been fuelled by the use of methylamphetamine.
6. 	There is truly an ice epidemic in Victoria and your crime of dealing in ice for such an extended period strikes at the fabric and at the heart of our society.  You recognised the damage ice causes when you spoke to the police in your record of interview.  You said, ‘I have to say that, you know, a couple of people that I have sold to, they have really gone off the tracks.  Just bad.  And I know it is a bad drug.  I know, yeah, it causes so much conflict within families and friends so I feel bad.  I feel bad that - well, yes, I suppose, because I was the one that sold it to them and that is the reason why their behaviour is as it is. I feel remorse for the people that have been badly affected for the gear that I’ve sold’.
80	The Secretary submitted that the offending was serious drug offending, and its gravity was high.  It contended that the effect of the type and quantity of drugs the Applicant facilitated into the community has effects on the children within the community.  It referred me to Judge Chettle’s finding that the Applicant knew the damage ice caused to the community but nevertheless continued to traffick a substantial amount of methylamphetamine for over four years.   
81	The Secretary further submitted that the offending demonstrated an ‘egregious falling short’ of the type of conduct and decision making that is required of a person who is engaged in child-related work and so the section 65(2)(b) factor weighed heavily against granting a WWC Clearance. 
82	I have referred above to the Applicant’s appeal and the way in which she has viewed the offending for some time.  I discuss other matters related to the Applicant’s insight into the offending below when addressing future risk of harm to children.
83	The Court of Appeal did not accept the Applicant’s submissions about the effect of the home invasion on her, the extent of her trafficking and the length of sentence imposed.  
84	It is not possible for me to reach any firm view about the extent of the Applicant’s trafficking on the evidence before me.  Even if I accept that the Applicant preferred to have herself seen as a dealer rather than as a ‘junkie’, her appeal on the issue was unsuccessful and so the factual findings made by Chettle J stand.  It is not for me to go behind the findings made, including as to the Applicant’s motivation, when making my decision. 
85	I had real difficulty with the way in which the Applicant framed her offending.  Accepting that her drug use and dealing made her feel more secure within herself and allowed her to socialise and feel accepted and needed by others, the overall flavour of the evidence minimised the extent of the trafficking.  
86	I had regard to a statement in the Tribunal Book which was made to police by a person who had purchased drugs from the Applicant.  The statement was made around the time of the Applicant’s arrest and, relevantly, said that:
•	He had purchased speed from the Applicant for around four years;
•	He would purchase bags of speed up to two or three times a week and pay $100 for 0.1 grams;
•	He would telephone the Applicant and meet with her at her home; and 
•	‘It was common knowledge around [the town] that she was the local drug dealer’.
87	As is apparent from the information about the Pecuniary Penalty, the Applicant owned three mortgaged properties.  As touched on earlier, she had operated a number of businesses, albeit with mixed success.  During part of the period of offending, she operated a gift-wrapping business from home.  I have presumed the latter business was insufficient to fund her and the Partner’s personal drug use.  
88	I cannot accept that it was necessary to fill the financial gap by trafficking the quantity of drugs which were the subject of the criminal convictions.  I had regard to Chettle J’s sentencing remarks including that the offending was ‘sustained and prolonged’, ‘motivated by a desire to profit’ and the Applicant ‘clearly made substantial profit’ from her drug dealing business.  
89	The Court of Appeal described the Applicant’s offending as a ‘serious example of drug trafficking, which extended over an extended period of time’.  As set out earlier, it also described the Applicant as being successful in the business and as the ‘enthusiastic proprietor of a profit-driven business in illicit drugs’.  
90	Even if the amount of the profits were somewhat inflated, the fact that it was necessary for the Applicant to sell two houses and pay the State part of the proceeds and then pay a further sum of around $434,600, indicates that the Applicant sold a very significant quantity of drugs.  Noting the criminal findings, that conduct was engaged in not only to fund the Applicant and the Partner’s addictions but was also motivated by the Applicant’s desire to make large amounts of money over the four year period. 
91	Whether or not the Applicant formed real or only surface friendships with the people she sold to, the descriptor of ‘local drug dealer’ was a fair one as at the time of the offending.  
92	The offending the Applicant engaged in was extremely grave.  I have no doubt it led to adverse consequences for those to whom she sold drugs and likely ruined some lives.  It would also have damaged the user’s family and other relationships.  Some harm may well have come to children.  The offending would have also caused the broader harm to the community, including through increased criminal activity (as referred to by Chettle J).
93	I am not satisfied that, as at the time of the hearing before me, the Applicant had fully faced up to the gravity of her offending.  Taking the evidence overall, it seemed to me that, even at the time of the hearing, the Applicant continued to minimise her role in what was a significant criminal enterprise. 
94	I agree with the Secretary’s submission that the matters the subject of section 65(2)(a) weigh against the Applicant. 
The period of time since the applicant engaged in the conduct – section 65(2)(b) 
95	The offences were committed over a period from 2010 to 2014.  Approximately nine years have elapsed since the offending occurred and it is nearly eight years since the Applicant was imprisoned (on 8 May 2015).
96	The Applicant remained on parole until 3 June 2020, close to three years ago. 
97	During her parole period, the applicant was subject to a number of conditions including electronic monitoring, drug testing, assessment and treatment drug dependence, or medical, psychological or psychiatric treatment, and residential and curfew conditions.
98	The Secretary submitted that history indicated that, although the offending occurred about nine years ago, the applicant has been heavily supervised by the State up until around three years ago. 
99	The Secretary then submitted that around three years was an insufficient amount of time for the Tribunal to view this factor as supporting the grant of a WWC Clearance, particularly in the context of:
•	The seriousness of the applicant’s offending;
•	The applicant’s 20 year poly-substance abuse history; and
•	Her history of relapse.
100	The Applicant has not used drugs since her incarceration in May 2015 other than one brief re-lapse in May 2020.  As discussed further below, the Applicant no longer associates with people who use or are otherwise involved in illicit drugs and has developed a strong support network.
101	In her evidence-in-chief, the Applicant queried what amount of time was required to pass before she would be ‘recognised as a worthy person?’  She asked if there was ‘a magic number?’  The Applicant referred to the Secretary’s submission to the effect that she was still in the early stage of her ‘rehabilitation journey’.  She said she did not realise that was the case as she felt that three years was a fairly decent amount of time.  
102		 As discussed below, I have concluded that, in the past nine years the Applicant has made impressive progress on her drug and offending rehabilitation in many respects.
103	However, I accept that the fact she has only been unsupervised in the community for around three years is of concern.  I link that concern with the Applicant’s incomplete insight into the gravity of the offending, the future financial pressures she may face and, as described below, her continued reliance on sex work for income given its past connection to her drug use.  
104	I find the time since the offending weighs only slightly in favour of the Applicant. 
Whether a conviction was imposed; the sentence imposed – section 65(2)(c) and (d) 
105	On 8 May 2015, the Applicant was convicted of the offences charged.  She was given a total effective sentence of five  years and one month imprisonment (only one month did not relate to trafficking charges).  The Applicant was ordered to serve a minimum term of three years and six months of imprisonment before she was eligible for parole. 
106	The March 2023 Submissions referred to the comments made by the Court of Appeal set out above at [89].  The Secretary submitted that the sentence imposed on the Applicant was significant given her lack of prior convictions.  As a result it submitted that these factors weighed against the granting of the Application. 
107	I agree with the Secretary’s submissions.  
The ages of the Applicant and any victim – section 65(2)(e) 
108	In this case, there was no identified person who was a victim, rather the Applicant breached the law. 
109	At the time of her arrest the Applicant was 46 years old but she was approximately 42 years old when the offending began. 
110	The Secretary submitted that, at the time of the offending, the Applicant was a mature woman who was responsible for her own actions and not a youthful offender.  It submitted that this factor does not favour the Applicant. 
111	In her evidence-in-chief, the Applicant said:
It was stated yeah, that when I was trafficking drugs I was a mature woman.  I wasn’t a young person and I totally agree, I wasn’t.  And it’s usually you see young people getting into crime but yeah, I was mature but I was using drugs on a daily basis, and just due to [bad] judgement, led to very, very poor decisions, even though I was mature, but that didn’t warrant where I was using drugs.
112	Given the above discussion of the gravity of the offending, I do not give particular weight to the fact the Applicant was using ice when she started trafficking.  I give some weight to the evidence before me as to the Applicant’s difficult and challenging childhood and teenage years. I have had regard to the evidence about the Applicant’s past social unease as a factor in her drug use and the trafficking.  
113	Overall though, at the time of the offending, the Applicant was mature and had a large amount of life experience. 
Whether the conduct has been decriminalised – section 65(2)(f) 
114	The conduct has not been decriminalised. 
The Applicant’s behaviour since the offence – section 65(2)(g) 
115	There was a range of information available to me concerning the Applicant’s post offending behaviour. 
The Applicant’s rehabilitation 
116	The Secretary noted that the Applicant had successfully completed her parole order on 3 June 2020 and that the Tribunal has previously regarded successful compliance with a CCO (where the offending did not involve drug addiction) as favourable to an Applicant.
117	In its March 2023 Submissions, the Secretary drew my attention to the following matters relevant to the Applicant’s behaviour since she was convicted:
•	While in prison, the Applicant participated in a number of programs including offender programs, relationship programs, alcohol, and other drug (AOD) programs, and educational programs.  Corrections’ records indicate that majority of those programs were short courses and were completed in preparation for the Applicant’s release; 
•	In relation to AOD programs the Applicant completed, the ‘24 Hour Relapse Prevention Program’, which was an 8 session program conducted between 10 October – 28 November 2016.  At the end of the program, the program facilitator recommended that the Applicant be provided further drug and alcohol treatment once released in the community to help implement the strategies learned in the program;
•	In February 2018, the Applicant completed another AOD program which ran for 12 hours over January and February 2018; and 
•	The Applicant commenced a comprehensive AOD program on 9 February 2018.  However she was exited early from the program due to not complying with the requirements of the program, , only completing 21 of the required 40 hours.
118	Relevant to her rehabilitation, the Secretary also drew my attention to the information provided by the Applicant including that she has stated that, since the offending, she:
•	No longer associates with drug users;
•	Has not used substances since she was remanded on 5 May 2015;
•	Attends a Recovery Group via Zoom meetings (since October 2020), and Narcotics Anonymous;
•	Exercises if she is feeling stressed; and 
•	Is monitoring her mental health conditions and treatment.
•	Engaged in further studies;
•	Started a dog grooming business; and 
•	Maintains a good relationship with the Daughter.
119	As to the prison programs mentioned by the Secretary, the Applicant gave evidence that, at times, she did not participate because she was embarrassed or ashamed or because she did not like the particular facilitator.  She said looking back she realised she should have committed to the programs more and, as needed, got past her feelings about a particular facilitator.  She also explained that at times she felt it was inappropriate for her to speak because some of her fellow prisoners had suffered more than her as a result of physical and other violence.  She felt what she had experienced was nothing compared to them and that it was embarrassing.  
120	Reference was made above to the Recovery Group which the Applicant attends and relies on.  It is an informal group of former prisoners which is convened by a Corrections officer (the Facilitator).  The Applicant gave evidence that she was now one of the longest standing members of the Recovery Group and that, over time, she had developed through it by speaking more and finding others ‘even look up to me’.  She gave evidence that members undertake social activities together.  She described how the Facilitator seeks her views on how the Recovery Group is working and how activities went.
121	The Facilitator provided an undated letter on Prison Network letterhead.   She is a Senior Support Worker.  In her letter she said that:
•	Her initial contact with the Applicant was at the Dame Phyllis Frost Centre when she commenced her sentence in May 2015;
•	She had regular contact with the Applicant throughout her sentence and found her to be ‘a quiet, polite and usually reserved woman who was a model prisoner’; 
•	As a result of her good behaviour, the Applicant was allowed to move to Tarrengower, the low security prison in Maldon in November 2017; and 
•	She continued to have contact with her there, where she ‘worked hard, got along well with most other prisoners and was co-operative with staff’.
122	The letter then said that the Applicant:
did not feel the need for support from Prison Network after her release in November 2018, however in October 2020, she contacted me to enquire about a new program we had recently started during the covid lockdown called the Recovery Group.  It was my understanding that [the Applicant] was doing well at this time and felt that her time of using drugs was over however, she did appear to be somewhat isolated and had a desire to connect with people.  The purpose of the Recovery Group was to provide some input around issues related to drug and alcohol addiction, domestic violence and trauma recovery for women who had been in prison, and provide peer support.  Many women who leave prison and are in recovery, struggle to find peers that have the same goals and who won’t draw them back into old habits.  The group has been highly successful in providing support for these women and only one attendee in two years has returned to prison.  The group runs on Monday nights remotely and also gets together every 5-6 weeks for social outings where the women have participated in ten pin bowling, mini golf, cooking and painting classes, stand up paddleboarding, visited galleries and restaurants, and camp weekends.  [The Applicant] has been a very committed member of the group who has only missed one outing in the past two years.  She is kind and supportive of the other women.
I have never observed [the Applicant] being under the influence of any drugs, and it is my understanding that she has only relapsed on one occasion in the 4 years since prison, when she very briefly used in May 2020.  When she shared this with me, it was obvious that she was riddled with guilt and shame about it and was very upset with herself.  I have no reason to believe that [the Applicant] has had any other involvement with drugs including dealing drugs which she has stated on several occasions was part of ‘my old life and I would never go back to that’.  It is my understanding that any drug dealing in the past was directly linked to supporting her own drug habit.  I don’t believe it is something that she would engage with again.
123	At the hearing, the Applicant gave evidence that at the time of sentencing she thought the sentence was ‘too harsh’ but that overtime her attitude changed.  She referred to people who were outside the drug world not having any sympathy and saying she deserved to go to jail and what did she expect: those kinds of statements seemed to act as something of a wake-up call.
Mental health and recovery from addiction 
124	The Applicant had been prescribed anti-depressant medication in 2013 and she was continuing to take that at the time of sentencing in 2015.  At that time, she was also having drug counselling and psychological treatment to reduce her drug use.  Some drug screens at that time showed the Applicant had used cannabis and Chettle J’s reasons stated that, at the time of sentencing, she was also still using ice ‘to some extent’.  The Applicant agreed that was the case.
125	Records from Corrections Victoria showed that the Applicant passed all screening tests after her release and while on parole in the period up to June 2020.
126	The Applicant gave evidence she attended Narcotics Anonymous weekly.
127	At the hearing, I asked the Applicant about her use of ice in May 2020.  She again used ice after being offered it by a fellow sex worker (who was working in the same brothel as her at the time).  Her evidence was that she used over a two week period.  Before then she had not used drugs during her four year term of incarceration or after her release in 2018.  
128	I asked how she managed to stop and the Applicant said that ‘there was no way’ the Friend would have anything to do with her.  She said:
If he, yeah, knew that I had taking any drugs he would just say go away.  So, he just wouldn’t want to know me, and I just thought what are you doing . . ?  And [the Friend] is everything, at that stage, yeah.   He is everything.  He’s my life.  Yeah, everything, and I thought my God, why would I risk that?  Why would I risk going back on that path of being off for so long and then why would I jump back on it?  You know, I stopped.  It was him.  I didn’t - - it was him that like emotionally and mentally kept me thinking this is ridiculous, yeah, and thank goodness, yeah, it didn’t continue.
129	When asked by the Secretary’s Counsel if there was any reason why she did not disclose that relapse in her responses to the Secretary (in September 2021 and January 2022 respectively), the Applicant responded saying ‘[b]ecause it would look bad’.  When asked further about that response and why I should accept that she was now being honest about her drug use, the Applicant said:
Well, all I can say is that I lapsed back then, and I haven’t used since.   I am doing the best I can to associate with people, only straight people that don’t use drugs.  I’m doing the best I can to work hard and try and pay the debt back to [the Friend].  I haven’t reoffended.  There’s all the statistics that, you know, a lot of people that are using, commit criminal - - do criminal activity.  I think by now that I would have reoffended.  We are talking, you know, nearly 3 years now that that happened, that there was a lapse.  All I can say is you can only go by I suppose records.  I haven’t done anything wrong.  There’s nothing that I’ve done wrong in relation to trafficking.  I haven’t gone back into prison, so I can only say that the Tribunal can only go by that.
130	The Applicant was asked if she told the Daughter about the drug use in May 2020.  The Applicant’s evidence was that she told the Daughter later but could not recall the precise time frame.  She told the Daughter that she had used ice on two occasions.  She also told the Daughter that she felt really bad about it, that she should not have done it and she apologised.  
131	As to the risk of a resumption of drug use, when answering a question at the hearing about what she had learnt from an AOD program she completed in November 2016, the Applicant explained that she was aware of the difference between ‘relapse’ and ‘a lapse’.  The former means that you go back into using on a regular basis, and a lapse is just that you might use once or twice and no more.  She was then asked what else if anything she had learnt and the Applicant replied saying:
Basically, yeah, do not associate with anybody who is using drugs or, you know, selling drugs.  It was the main thing, do not.  And strategies, if you feel like you have a craving or you feel like you want to use then you have a strategy, one or two or three strategies to stop your mind from thinking that way.  Basically, cravings, they last for about five minutes and that’s it.  So, as long as I can [distract] myself, anybody can distract themselves from thinking oh my God, I feel like I want to have some, then yeah, like I said, exercise - - that’s my main go to, exercise.  Exercise, you know, call a friend.  [Name of the convenor of the Recovery Group], she’s a really good support person for me.  Any of the girls in the [Recovery Group], either, you know, on the computer, to contact them with Messenger or WhatsApp or just their phone number, to talk to them, yes, but that's mainly - - they are my two strategies.
132	The Daughter gave evidence about her mother’s May 2020 relapse.  She stated that her mother told her soon after, referring to that disclosure as being instant.  The Daughter said for a week or so she had a sense there was something the Applicant needed to tell her.  When she put that to the Applicant, the Applicant told her what had happened and was ‘very remorseful’.  The Daughter described the relapse as very brief.  She said the Applicant told her she had ‘used’ once or twice and that she was ‘very ashamed’.  She said the Applicant:
came to me and told me and obviously she was scared, very frightened of what I was going to say, and she was aware of how I feel about that and our relationship and yeah, she basically said that like she hated it, she didn’t like it, she didn’t like the way that she felt.  You know, she was probably guilty and yeah, she hasn’t used again.
133	At the time she was assessed by Lawrence, the Applicant told him that she was ‘very aware that relapsing will lead to bad things, as nothing good has ever come from doing drugs’.  
134	As to her mental health, in her evidence before me, the Applicant confirmed she continued to take anti-depressant medication.  The Applicant’s treating general practitioner wrote a letter dated 10 January 2022 confirming she had been diagnosed with depression and had been taking the relevant medication for nine years.  The practitioner stated that the Applicant’s depression was ‘stable’ and expressed the view that she was ‘suitable for unsupervised child related work’.  I have proceeded on the basis the Applicant’s previous thoughts of suicide are no longer current.
135	The Daughter described the Applicant’s mental health as ‘better than it’s been in a long time’.  She accepted that people sometimes have poor mental health and that could present a risk but she maintained, in her opinion, that was not the case for the Applicant.
The Applicant’s other sources of support 
136	The Daughter is in her 20’s and lives independently from the Applicant, about an hour away.  It was apparent that she and the Applicant have a very close and loving relationship.  They see each other very regularly and speak often.  As discussed below, the Daughter gave evidence that, despite her drug use and dealing, the Applicant had still been a good mother to her, taking her to school and ensuring she had all that was needed.  
137	The Daughter provided a reference and gave evidence at the hearing.  As indicated above, I accept her evidence might have been over optimistic at times, it was apparent that she had a deep and respectful relationship with the Applicant and believed she had changed her life in important ways.
138	At the commencement of her evidence-in-chief, the Daughter stated that she was very proud of her mother.  She described her as having ‘progressed a long way from who she was before she was convicted’.  She described their current relationship as ‘fantastic’.  She stated that they had always had a good relationship but there had been stresses from the life that she was leading before her conviction but that the Applicant had made every effort to change her life.  She said the Applicant was very supportive of everything she does.  She described the Applicant as having worked very hard to make sure they had a good, strong relationship.  She described her mother as patient and someone who does not ‘hold any judgment for anyone’.  She said the Applicant was a ‘fantastic human being’ and that she was ‘very glad’ the Applicant is her mother.  She confirmed they see and speak to each other very regularly.
139	The Daughter gave evidence about taking calls from and visiting the Applicant while she was in prison.  Her evidence was that towards the end, their relationship improved considerably and, ever since, it had been great. 
140	The Daughter expressed trust that the Applicant would not go back to the lifestyle that led to the criminal convictions and her prison sentence.  The Daughter explained that, when the Applicant was in prison, she told her mother that, if the Applicant wanted to live like ‘that’ again on her release, the Daughter would not want to be a part of her life.  She said she knew she was a ‘very, very big’ part of the Applicant’s life and that she had confidence the Applicant would not want to jeopardise the relationship by going back to what she had been doing. 
141	The Daughter referred to how hard the Applicant had worked when undertaking her studies and expressed the opinion that her mother would be a fantastic support worker.
142	A personal reference was provided by someone who said he has known the Applicant for two years.  The 12 September 2022 reference described the Applicant as ‘a hard working person who is well advanced in getting her life back together after a recent custodial sentence’.  That referee considered the Applicant to be a friend, of good character and someone willing to help others in need.  The referee described the Applicant as being good at starting conversations with others and putting others at ease. 
143	As noted above, the Applicant relies on exercise and she is a member of a sporting group.  She socialises with others from that group as well as the Recovery Group members. 
The Applicant’s studies
144	The Applicant produced a letter from the relevant university dated 11 January 2022 that confirmed the Applicant was enrolled in Certificate IV courses in Mental Health and Mental Health Peer Work.  The letter confirmed the Applicant had not completed required placement units. 
145	The letter ended saying that the Applicant:
has proven to be an eager, highly reliable student who communicates regularly with the teacher and has an outstanding record of submission of assignments within due dates or extended due dates.  [The Applicant] makes her studies a priority and has regular class attendance also. She contributes strongly to her study groups and is well respected and accepted as a class member.
The Applicant’s work and financial issues 
146	After being released from prison on parole in late 2018, the Applicant worked as a sex worker in a legal brothel until the COVID-19 pandemic intervened.  As at the time of the hearing, she was legally working as a private sex worker.  
147	The Applicant’s relationship with the Friend is relevant to her repayment of the Loan and her ongoing stability.  
148	The Friend did not attend the hearing to give evidence but provided a letter dated 12 September 2022.  The letter said they had known each other for three years and they had much in common to talk about.  The letter also said:
I feel and believe that [the Applicant] has managed to bounce back to a fulfilling life after her time in prison and with a little help she will continue to move forward with her life.  In the time that I have known her she has only said positive things to the people that she meets and has the ability to make people feel at ease around her.
I regard [the Applicant] as a good friend who I am willing to help in this matter.
149	Given the Applicant’s evidence about her discussions with the Friend, I have proceeded on the basis that the Friend is aware of the nature and extent of her past drug use and offending.
150	As to the Loan advanced by the Friend, the Applicant produced a document containing the Loan agreement which was undated but indicated it was prepared in 2023.  The Applicant’s evidence was that it had been signed in June 2023.  It provided that the Friend was to loan the Applicant the sum of $370,000 payable to a Department of Justice and Community Safety account.  The applicable interest rate was expressed to be at the Commonwealth Bank standard variable rate or such other rate as agreed.  The Friend was entitled to be granted a charge over the Applicant’s property and had the right to lodge a caveat.  Capital and interest was to be paid at the minimum rate of $1,000 per week or such other amount as directed in writing by the Friend.
151	The Loan agreement contained no term and the Applicant stated in her evidence that there was no time limit.  She said she did not like owing money and so the sooner she paid it back, the better for her.
152	At the hearing, the Applicant gave evidence that she had by then repaid the Friend around $18,000 in principal.  The Applicant produced a text message to her from the Friend that stated the amount of ‘interest’ for the month of February 2023 was $1,251.32.  
153	The Applicant gave evidence that the reason she was working as a sex worker was to repay the Loan and she could earn a ‘lot of money’ in that industry. 
Findings on the Applicant’s behaviour since the offending
154	As stated before, the Applicant has made an impressive recovery from her past drug addiction.  
155	I do not place a great amount of weight on the one relapse in May 2020 given it was short lived whether she used over a two week period or twice), she was able to stop any further use and told her Daughter about it.  Relapses are not uncommon for people recovering from addiction and so ought not to detract from the strength the Applicant has demonstrated after using cannabis and then ice over a 20 year period.  
156	I accept that the Applicant is well placed to support and provide guidance to other members of the Recovery Group.  I accept her experience in recovering from addiction and her experience in prison would, in the context of her studies and planned career, assist her to effectively engage with clients.
157	I accept and give weight to the Applicant’s current expressions of determination not to return to criminal conduct.  I accept the circumstances which led to the offending and the entire criminal process were extremely difficult for her.  I accept she spoke honestly about what she intends for the future.
158	Like the Applicant’s supporters and referees and taking account of the somewhat unnatural hearing environment, I found the Applicant to be an engaging woman who was respectful of not only myself but also the Secretary’s representatives.   When the hearing was cut short due to technical problems she was patient and flexible.  
159	The warmth and affection between the Applicant and her Daughter were very apparent.  I have not entirely accepted the Secretary’s submission that the Daughter’s evidence ought to be given little weight.  That is because, while it was somewhat biased, on critical issues the Daughter was clear eyed and gave evidence which did not help her mother’s case.  It appeared that the strength of their current relationship allowed for both forms of evidence to be given.  The Daughter struck me as a mature and capable person who had overcome the challenges she faced in her teenage years and is a credit to her parents. 
160	I have given weight to the reference written by the Facilitator given her professional knowledge and experience and her substantive dealings with the Applicant over some eight years.  
161	As is apparent, the Applicant made concessions, including when they did not reflect well on her and did not assist her case.  I was satisfied she was attempting to give her evidence honestly and openly, even though I held concerns about the effect of some of that evidence.
162	I now turn to those aspects of the evidence which are of concern.
The likelihood of a future threat to a child – section 65(2)(h) 
163	In the Secretary’s March 2023 Submissions, reference was made to past cases where the Tribunal has described section 65(2)(h) as containing ‘the key consideration’ in making decisions under the WSA and confirming that it is for applicant to show that they are not a risk rather than for the Secretary to show that they are a risk.
164	The Submissions referred me to Maleckas  v Secretary to the Department of Justice.  Kyrou J found that the ‘likelihood of future threat’ means no more than ‘the chance of future threat’. Any chance of a future threat, irrespective of its magnitude, is relevant for the purposes of this factor.
165	At the hearing, I asked the Secretary’s Counsel, to specify the particular risk I was required to consider.  She referred to a range of risks of concern, including the Applicant relapsing into drug use as a result of mental health deterioration or resuming drug trafficking for financial reasons, including in order to repay the Loan.  Concerns were expressed about the risk of a relapse given the Applicant currently works (legally) in her own small business as a sex worker, largely to allow her to repay the Loan.  That working environment was relevant given it was where she first started using ice and it was through that work that she obtained the ice in May 2020. 
166	The Secretary’s Counsel confirmed that the possibility of the Applicant trafficking drugs again was the primary concern given that was the Category C offending which led to the WWC Exclusion.  She confirmed that the potential harm the Secretary said the Applicant posed to a child was not direct physical or sexual violence but rather the wider societal harm caused by drug trafficking. 
167	In order to assess the risk of future threat to a child, I have considered the following matters.
The Lawrence Report and the future risk of substance abuse
168	The Secretary submitted that the Tribunal must consider the question of risk taking into account expert evidence and non-expert evidence.  Psychological reports were described of being of potential great assistance to the Tribunal in its assessment of the likelihood of future threat caused by an applicant.
169	The Lawrence Report was prepared following the Applicant attending several sessions with Lawrence.
170	It stated that the Report was sought to obtain ‘a psychological assessment and report concerning the risk of substance misuse’.  While reference was made to the offending, the focus was on the risk of the Applicant relapsing into drug abuse.  That is of particular assistance because it was addiction which triggered the Applicant’s drug trafficking. 
171	The Report contained a detailed personal history with a focus on the Applicant’s past drug use.  
172	Lawrence found that the Applicant was at low risk of alcohol use.
173	The Applicant told Lawrence that she had not sought help during periods of drug misuse because:
- ‘No one told me I had a problem with drugs or encouraged me to seek help’.
- ‘I didn’t think I had a serious problem with drugs’.
- “I thought I could handle it on my own”.
- ‘I didn’t want to be told to stop using drugs’.
- ‘I thought I’d lose my friends if I went for help’.
- ‘Using drugs was a way of life for me’.
- ‘There seemed to be more good than bad about drugs for me’.
- ‘I thought that “help” was for people with more serious problems than me’.
174	Lawrence identified and applied a range of tests to assess risk.  Results of particular note were as follows:
Depression Anxiety and Stress Scale: the Applicant ‘reported normal levels of depression, anxiety and stress’.
Drug Use Disorders Identification Test: the Applicant ‘scored zero, reporting that she has not used drugs in the past year’.
Inventory of Drug Use Consequences: The Applicant’s ‘results indicated she was most concerned about the negative intrapersonal consequences of drug use (high degree of concern), compared with those related to physical, interpersonal, impulsivity and social responsibility matters’.
Personal Wellbeing Index: The Applicant ‘reported normal levels of subjective wellbeing’.
Subjective Experience Questionnaire: the Applicant ‘reported no implicit or explicit motivation to use drugs’.
Acceptability of substance use: the Applicant ‘reported that she does not consider drug and alcohol use to be acceptable in terms of her social, psychological and physical wellbeing’.
175	The Lawrence Report said the following about the offending:
When asked about the events that led to her incarceration, [the Applicant] reported that she had just separated from [the Former Husband], which was due primarily to his opposition to her drug use.  She had also met another man whom she started seeing intimately, and it was at this time she started using ice regularly (prior to this, it had been occasional/recreational use only). Eventually, she was introduced to buying and selling ice and marijuana, for which she was eventually arrested.  [The Applicant] reflected that meeting this man was ‘a pivotal moment in her life’.  Prior to that, she had owned a brothel with her husband, and things were relatively stable despite the fact she had been using (‘dabbling’) ice on occasion with one of the staff employed by their business.
176	I pause to note that the above description of the Applicant’s role in the trafficking and the circumstances in which the charges for which she was convicted and sentenced, had the minimising features discussed earlier.
177	Lawrence assessed relevant predisposing, perpetuating factors and protective factors.  
178	The Lawrence Report stated that the Applicant ‘acknowledged the negative health and moral impacts of drug use and reported that she does not feel a need to conform with others’.  She was said to have reported that she did not consider drug and alcohol use to be ‘acceptable in terms of her social, psychological and physical wellbeing’.
179	The substance of the risk assessment was as follows:
In considering the evidence-based risk factors that contribute to the likelihood of substance misuse, and a thorough assessment of [the Applicant’s] history, behaviour, and personal circumstances, there may be a low to medium risk level for substance abuse. Several key factors influenced this conclusion, notably:
- Her current working environment.
- Personal history of addiction.
- Social disconnection (while she has not reportedly engaged in substance misuse for a period of 3 years, a tendency towards using drugs was historically motivated by the opportunity to improve her social standing).
- A history of trauma.
- Underachievement at school.
- Low parental modelling and/or discipline.
That said, [the Applicant] has demonstrated several important protective factors which serve to reduce the likelihood of her mis-using substances, including:
- A commitment to tertiary studies and future vocational goals.
- Access to healthcare and medications.
- Engagement in a community-based support group.
- Healthy coping habits.
- Low impulsivity.
- Normal subjective wellbeing.
- A positive self-esteem.
To mitigate the risk of further substance misuse, ongoing psychological counselling and continued engagement in rehabilitation support groups is recommended.  [The Applicant] may also benefit from expanding her social network, as this has been proven to benefit personal wellbeing.
180	I record that the Lawrence Report included disclaimers (which appeared to be standard form) to the effect that interpreting the results of the self-report screening tools used above must be done with ‘due consideration of a respondent’s tendency to manage a positive impression’. 
181	When the prospect of her obtaining a risk assessment report was discussed at the hearing, the Applicant was grateful for the opportunity to do believing it would show more precisely how her mental state was.  She made additional comments which showed she was aware of the past recommendations that she continue counselling but that she thought engaging in that kind of activity might suggest that she was not fit to work with children.
182	In the Secretary’s August 2023 Submissions, emphasis was placed on Lawrence’s conclusion that there ‘may be a low to medium risk level for substance abuse’.  It contended that even that conclusion ought to be treated with caution because:
•	The conclusion is based solely on the Applicant’s self-reporting; 
•	Of the provisos contained in the Report, particularly concerning a respondent’s tendency to manage a positive impression;
•	There is evidence before the Tribunal that the Applicant has previously provided false or incomplete information about her drug use to various authorities including Police, Corrections and the Secretary in order to improve her standing; and
•	It did not appear that Lawrence had access to the evidence before the Tribunal when he made his assessment, including the contents of the Tribunal Book which contains details of the offending, reasons for the Applicant’s drug use and previous risk assessments undertaken by psychologists, counsellors and Corrections officers. 
183	The Secretary also noted that the Lawrence Report did not refer to the Applicant’s financial position and the risk of relapse due to financial stress.   The Secretary considered that to be problematic in terms of the accuracy of Lawrence’s opinions as to the risk of substance misuse because:
•	There was sufficient evidence before the Tribunal that one of the factors in the Applicant’s offending and drug use was financial strain/stress;
•	The Applicant is currently paying back the Loan (which was for the total sum of $370,000) with interest at the rate of a minimum of $1,000 per month; 
•	The Applicant gave evidence that that she is working in the sex-industry in order to repay the Loan;
•	In cross-examination, the Applicant admitted that she would not be able to meet her loan repayments on the wage of an entry level social worker and that she makes a lot more money in the sex-industry than any other job she is qualified for.  Therefore she was likely to continue in that work to repay the debt, which is an identified risk of relapse;
•	The Applicant is repaying the Loan to a person with whom she is ‘maintaining a casual, intimate relationship’; 
•	There was evidence before the Tribunal that the Applicant’s drug use is affected by the relationship she is in (referring to the Applicant’s September 2021 Response which referred to the Partner’s role in her using ice).  That was said to be of concern given Lawrence noted the Applicant was ‘most concerned about negative intrapersonal consequences of drug use (high degree of concern).  The risk of the Applicant’s relationship with the Friend breaking down was seen as a risk of relapse.
184	I have summarised above evidence the Applicant gave about her relapse in May 2020 and her views about the future risk of a relapse (see [130] above) 
185	In addition to the evidence the Daughter gave about the consequences of the Applicant resuming drug use and the views of the Friend on that matter, the Applicant gave evidence that she does not associate with anyone who uses drugs, explaining that, in prison it was ‘really drilled into us’ that ‘if you wanted to change your life you do not associate with the old associates that used to hang around with’.  She added they were told that, ‘if you go back to that, you end up using drugs again and you will go back into that pathway again’. 
186	As discussed above, I do not discount the skills and strategies the Applicant has developed and no doubt used since she entered prison and left in late 2018.  The evidence before me indicates those have served her well and have been effective, so far. 
187	On my observation, Lawrence was right to place reliance on the Applicant’s strong relationship with her Daughter as a protective factor.  The same may be said of the relationship with the Friend to a point.
188	I say to a point because I agree with the Secretary’s submission that the personal relationship with the Friend and the financial relationship both present as risk factors for the Applicant.  Neither were considered by Lawrence.
Risks associated with relationship breakdown 
189	I have set out evidence above which shows that the Applicant’s drug use was closely tied to her wish to be known and liked by others.  The evidence she gave demonstrated she places substantial reliance on her relationship with the Friend for her sense of wellbeing and also that the Friend’s disapproval of drug use assists her to abstain.
190	While it is to be hoped that relationship continues, it may not and that may risk the Applicant relapsing into drug use.  If the Applicant had a more significant relapse than that in May 2020, she may lose the support of her Daughter.  
191	While the Applicant appears to have absorbed some of her own risk factors and may now be better placed to seek help from the Recovery Group, the Facilitator or her other friends, if she could not call on her Daughter or the Friend, that group of people appear to be her only other options.  
192	That leads to the fact that the Applicant has not taken up the many recommendations made, to continue with counselling or psychological treatment.  While it may be accepted that the group therapy in prison was not for the Applicant, the recommendations have been for one-on-one therapy which would, presumably, assist the Applicant to lay even stronger foundations for abstinence and stability including in respect of financial matters.  It seemed that the Applicant elected not to pursue that treatment in case it showed she was not suitable for a WWC Clearance. 
193	Concerningly, at the time she saw Lawrence, while the Applicant was said to be ‘very aware that relapsing will lead to bad things, as nothing good has ever come from doing drugs’, she also told Lawrence that she was not aware of any current risk factors that could increase the likelihood of a relapse.
Risk arising from financial pressure and associated with sex work
194	The Secretary’s March 2023 Submissions contended that financial problems were a contributing factor to the Applicant’s offending and a risk factor of re-offending.  
195	Reference was made to the Daughter’s evidence on the link between the Applicant’s offending and money.  While the Daughter denied financial pressure was a risk factor for the Applicant, the Secretary placed weight on  what the Daughter was said to have reported around the time of the Applicant’s release: that is, that the Applicant was ‘indulged by the lifestyle and large amounts of money associated with drug trafficking’ and she anticipated that as a risk factor upon her release. 
196	As set out earlier, the Applicant’s position was that the Loan was flexible as to its term and, as she was more than meeting the repayment requirements, it was not a source of pressure for her.
197	As indicated by the Secretary’s August 2023 Submissions, at the hearing, the Applicant was asked about how she would repay the Loan if she was in receipt of a lesser income, such as one from her work in the alcohol and drugs or mental health sectors.  The Applicant’s evidence was that she would not be able to make the repayments on such an income.  On the one hand she stated that she expected to have to work around once a week in the ‘adult industry’ and on the other hand also said: 
I’m over it, I’ve had enough of that industry so realistically really I would give it up, and it’s not - -  it’s probably - -  it’s not an appropriate thing probably to be doing while working in that sector, so realistically, I would stop.  I have saved a lot of money.  A lot of money like I’ve saved doing this work. 
198	The Daughter was asked about her current assessment of the risk relating to financial pressures.  It was her evidence that the Applicant was financially stable and that, as she was good at being frugal, there would be no need for her to offend again.  She again referred to the fact that, if her mother resumed offending, the Daughter would not have the Applicant in her life. 
199	The Secretary referred to material in which the Applicant’s Parole Officer noted her desire for a high income as a possible reason for her return to sex work.  That work was said to be a concern given that area of work leads to greater exposure to negative peers and drug use.  The Applicant did not agree with the Parole Officer’s concerns and continued in that work until mid-2020 when COVID-19 restrictions closed brothels.  
200	The Applicant’s evidence was that there was no real risk of her coming into contact with illicit drugs again through the sex work.  She indicated that she does not and would not see a client who uses or wishes to use drugs with her.
201	The Daughter was asked about whether she considered the Applicant’s work in the sex industry presented a risk of re-offending.  It was the Daughter’s view that, given the Applicant was working privately and not in a brothel, there was no risk relating to drug use connected with that work.
202	Given Chettle J’s findings as to the link between the trafficking and a wish to make money, I am not persuaded that the Applicant’s history of frugal living can be relied on.  As much as it is understandable for the Applicant to wish to repay the Loan as soon as possible, she does not appear to have considered the possibility that the Friend may require greater or faster repayments in future in the event their relationship breaking down or because financial pressures of his own. 
203	It appears to me that the Applicant’s pattern has been to rely on sex work to earn significant amounts of money, rather than other work she may be suitable for which pays less (including in aged care, as a private investigator, as a secretary and in animal care, including dog grooming or in a veterinarian clinic).  If the pressure to repay the loan were to increase or another form of financial pressure arise, it seems quite possible that the Applicant may prefer to return to work in a brothel.  That might well raise a risk of her returning to drug use.  
204	The evidence (and the Court of Appeal’s comments) led me to view the Applicant as a competent business person who could manage business operations and others well.  Coupled with the lack of insight I discuss below, it seems to me that there is a risk the Applicant may return to trafficking or other criminal conduct if her financial position came under significant pressure. 
Insight and remorse 
205	I have already set out the evidence and expressed views about how the Applicant has consistently minimised her criminal offending.  
206	Also relevant is what has seemed to me to be the Applicant’s limited understanding of how her criminal conduct may have impacted children.  
207	In the September 2021 Response, the Applicant responded to a question about her understanding of the impact of illicit drugs on children and the wider community, saying:
Illicit drugs are never safe and the impact on a child’s health and life can be harmful.  Taking drugs, whether it is a child or an adult, can mean that the person will turn to crime, to support his/her habit.  Innocent people will get hurt physically and mentally during criminal activity.  Death may even occur due to the drug induced state of the perpetrator.  Crime costs the community money as innocent victims may require hospital treatment or mental health treatment.
If children take illicit drugs, it will affect their health, social life, school, work friends and family.  Drugs affect your central nervous system.  When you are a young person the brain is still growing and won’t be formed until your midtwenties.  Taking drugs affects your developing brain by damaging connections with the brain.  Reducing your ability to experience pleasure or reward.  Causing memory and learning problems.  Making it hard to control impulses.  Taking drugs is damaging your health and you are breaking the law.  If you commit a crime or crimes, then you will end up in legal trouble and will have to serve time in a youth prison.  You will have a criminal record and it will affect you as an adult as to obtaining work.
Illicit drugs ruin friendships and families.  Families are put through immense stress when illicit drugs are being used. Parents of children who use illicit drugs can neglect their children, physically and mentally hurt their children.
208	Although the above answer was comprehensive, in the same Response, the Applicant said the following (italics my emphasis):
Question: 9. In light of your offending behaviour, explain why you do not pose a risk to children.
Answer: I do not pose a risk to children because I do not have anything to do with illicit drugs.  When I was offending, I never sold drugs to children.  My drug taking and selling had no impact on children.  The people I sold drugs to were already using drugs.  I never sold to anyone I was not friends with at the time.
209	When asked at the hearing about her contradictory answers, the Applicant said:
It - - it - - I’m trying to think, you know, the people that I sold to, if they had had children.  Like before, anybody who had children, yes, it would have impacted them.  So, I don’t know why I said that.  I shouldn’t have said it.
210	The Applicant also gave this evidence as to her increased understanding about the gravity of her offending and the potential impact on children: 
Look, it’s been - - I suppose it’s been slow, but I think, like I said, it was pretty much when I started a relationship with [the Friend], and I, you know, spoke to him about everything I’d done and he pointed out a lot of factors to me, and that just led on from - - I don’t know if it did lead on from the programs that I did [in prison].  I mean, the programs that I did, it didn’t really speak much - -  it didn’t speak much about children as per se, but I think that, yeah, it was when I started a relationship with [the Friend] that that’s when it really hit me and it was like well, yeah, of course it wasn’t - - it was indirectly affecting children, not directly.  It’s not like I was selling drugs to children, but, parents of children would be affected no matter what.
211	The Applicant gave evidence that the Friend had put her straight, apparently telling her that she deserved to be imprisoned, that the offending was serious and that it could have affected children. 
212	The Secretary’s March 2023 Submissions referred to the importance the Tribunal places on remorse.
213	At the hearing, I asked the Applicant how she looked back on the offending (in the context of evidence concerning the circumstances in which she made admissions to police).  She responded as follows:
Look, I’m happy that I made the admissions.  Because, it’s like well, that’s it.  I’m coming clean, that’s it.  It’s over, it’s finished with, and yes, you know, I do take responsibility.  I do own it now but, you know, back when some of those things were quoted in that document, that’s years’ ago, that’s what I had said, and that’s what I thought back then, but now I totally understand that yes, of course, that ice would affect children.  Parents that to use it and don’t look after their children, they neglect them.  All they care about is getting their - -  whether they inject or whether they smoke it, just for them to get high, and the children suffer terribly, they suffer, you know, emotionally, physically and, yeah it's a bad thing.
.  .  .  I do take full ownership but yes, my crime was - - well, pretty much horrendous because it affected people and in a bad way and I remember at the time I think I said oh, I only sold to people that, you know, that I was friends with but I didn’t really know a lot about them and some of them, they did have children, but you know, when you are using ice you are not thinking rationally and you make very, very, poor decisions, so I wouldn't have at that time, I wouldn’t have had the rationale to think beyond, that children could be affected, but I totally understand that now, but I regret, I regret what I did.  I’m ashamed of it.  
214	I agree with the Secretary’s submission that the insight the Applicant has gained is comparatively recent and seems to have been strongly influenced by the Friend’s views.  While the development of insight is welcome, it seems to me the link with the Applicant’s dependence on the Friend makes it less reliable.  
215	I add that the recitation of the kinds of risk arising from drug use which was contained in the Applicant’s September 2021 Response seemed to be more the product of rote learning or from a source other than the Applicant’s own understanding based on reflection.
216	I agree with the Secretary’s submission that, while objectively the Applicant has demonstrated remorse, through her admissions to police and plea of guilty to the offences, her remorse as to the harm done to others seems to be limited.  The above evidence reflected some understanding but still appeared to be based on an incomplete acceptance of the extent and gravity of the offending.
217	Relevant to that conclusion are the findings I have made about the Applicant’s tendency to minimise and her lack of insight.  
Findings on the likelihood of the Applicant posing a threat to a child
218	Having regard to all of the matters discussed above and taking into account the matters in the Applicants favour, I consider the Applicant poses some future risk to a child in the form of a resumption of trafficking illicit substances or like conduct in connection with a significant relapse of her addiction or if there was a significant increase in financial pressures.
219	That finding has been significantly influenced by the fact that it is only three years since the Applicant has been subject to the supervision of the State and where she has yet to demonstrate full insight into the offending and the current risks to her currently stable health. 
Any information given by the Applicant – section 65(2)(i) 
220	I have already referred to the bulk of the information provided by the Applicant.  I add the following.
The Applicant’s purpose in seeking a WWC Clearance 
221	I mentioned earlier the studies the Applicant has been undertaking.  As to her wish to complete her studies and take up a career in that sector, the Applicant said:	
I still believe that I would be a good person to help people with their mental health issues, and if I got the opportunity to work in the [AOD] sector, again, that I would be a good person, a good support peer person to be able to relate to clients, and I’ve been in their shoes and I would have an understanding and empathy towards them, and of course I would be guided by whatever company I would work for, what their policy and procedures are in relation to working with clients.  I have full insight of how it feels at different stages, and even if, you know, I work with people that have been in prison - - unless you've been imprisoned you cannot understand it.  You can only imagine.  
And I - - in relation to [the Secretary’s Counsel’s] comments that it’s secondary that my interest in the care for children, my interest is only to be able to gain the [WWC Clearance] so I can finish the course and unfortunately that is the process, that is how it is.  If I don’t get the [WWC Clearance] I can’t finish the course and then I can’t work [in] that particular field.  So, of course my main interest is to care for whether it be children or adults that I would be working with because that is my job.  That is my, you know, profession, to care and help these people, and of course I wouldn't want any of them, you know, to be in any kind of danger, whether it's physical or mental.  The reason I want to help people is to help them better their lives and to feel better about themselves and to be happier.
222	Throughout the process, the Applicant has been open in stating that she had no experience working with children and, further, that she did not intend to do such work.  
Any other matter the Tribunal considers relevant – section 65(2)(j) 
223	There are no other matters.
Conclusions under section 108(1)
224	I have expressed my views above about the range of matters relevant to the considerations under section 65(2) of the WSA.
225	For those reasons, I have concluded that it is appropriate to refuse to give a WWC Clearance.  
226	I emphasise my concerns about the possible harm the Applicant may do to a child arise only in respect of the potential for her to again engage in criminal activity such as trafficking.
227	Given that conclusion, it is not strictly necessary for me to consider the remaining criteria under the WSA.  I do so below briefly, for completeness.
Section 108(2)(A) – the ‘reasonable person test’

228	In VQB v Secretary to the Department of Justice, Judge Macnamara described the reasonable person test as follows:
The reasonable person would, in reaching his or her conclusions, acquaint himself or herself with all of the matters that have been placed before me, giving an applicant … a right to be heard, as well as considering the material gathered by the Secretary.  A reasonable person would not approach the task with a closed mind thinking that once a person has offended, he or she can never be redeemed.  The reasonable person however, would not put aside all scepticism and reasonable caution in this most difficult area in some over optimistic attempt to facilitate rehabilitation.
229	As set out in the Secretary’s March 2023 Submissions, the reasonable person test is an objective one, which relies on a reasonable person having knowledge of all facts and surrounding circumstances.  The Tribunal has found it significant that this section requires a reasonable person to allow contact not with just a child, but with the person’s own child.  It has remarked that because ‘as a matter of human nature people are more cautious and concerned about their own child, than about others’ children’ the test is a more onerous one. 
230	Taking into account the matters discussed in the context of the unjustifiable risk test under section 108(1) of the WSA and also the matters in favour of the Applicant (including her wish to complete her studies and commence a new career), I am not satisfied that a reasonable person would allow their child to have direct contact with the Applicant while engaged in child-related work.  
231	For the reasons as set out above, I agree with the Secretary’s submissions that a reasonable parent, well informed and fair-minded would consider a three year period of abstinence to be insufficient, against an entrenched history of substance abuse, relapse, and the serious and prolonged nature of the Applicant’s offending.
Section 108(2)(B) – the ‘any type of child-related work’ test
232	A WWC Clearance is given without restriction or condition.  As a consequence, my assessment must be made understanding that, even though the Applicant does not currently intend to work with children, the grant of a WWC Clearance would allow her to do so without further enquiry. 
233	Taking into account the matters discussed in the context of the ‘unjustifiable risk’ test under section 108(1) of the WSA, I am not satisfied that the Applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
Section 108(3) – the ‘public interest’ test
234	In Secretary to the Department of Justice and Regulation v McIntyre, Garde J confirmed the importance of the paramount consideration and its application to the public interest test, saying: 
The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad, and it is not appropriate to seek to define the boundaries of the public interest test, the paramount consideration – the protection of children from sexual and physical harm – is at the very core of the public interest test. 
235	The Secretary drew my attention to a range of matters often considered relevant to the public interest test: 
•	The evidence that is both favourable and adverse to the applicant may overlap with considerations relevant to the ‘unjustifiable risk’ test;
•	Where the Tribunal could not find that an individual satisfied factors under section 62(2) of the WSA in the context of section 108(1), it is difficult to envisage how it could then find that it was in the public interest to give a WWC Clearance; and 
•	Evidence that an applicant is dishonest, or suffering from a serious mental illness, or had problems with drugs or alcohol, can be considered adversely under this test, while evidence that an applicant has skills that could benefit children or that they are a positive role model for children can be taken into account in favour of an applicant.
236	The Applicant gave the following evidence at the hearing:
I know the gist of the whole case is it wouldn’t be in the public’s interest to have me work with children, but I actually think that I would be a really good person to help people with mental health issues or drug and alcohol issues . . .  often these people choose and I can really understand and feel their pain and struggles and what they’re going through.  I’d love to be able to guide them, you know, to a better life to help, you know, recommend to other support professionals that they might need, organisations . . .  I’ve heard many people say that they have had a counsellor that was a textbook person, that's all they are.  They have no insight as to how people feel when they're in that situation and how they think, and I believe, yeah, I would be a great support person, and support worker.  
237	I accept that the Applicant has demonstrated she has knowledge and a level of understanding which would make her a good support worker in future.  The letter from her educational provider was very positive and showed she has aptitude for the studies and the work.
238	I have noted and give weight to the responsible way she has engaged in treatment for her mental health and her continuing efforts to remain abstinent.  The evidence showed that she has taken very significant steps to change her life and her environment.
239	However, until the Applicant is able to fully come to the terms of the gravity of her offending and engage in a meaningful process to assess the risks before her (relating to her financial position, her current work and her dependence on the Friend for much of her stability), I cannot be satisfied that it is in the public interest for her to be granted a WWC Clearance.  
Pseudonym order
240	At the hearing, I raised the possibility of making an order anonymising the Applicant given the matters canvassed at the hearing.  The Secretary’s Counsel sought an opportunity to make submissions if I intended to take that route referring to the Open Courts Act 2013 (Vic) (OCA).  Her  instructions were to seek an opportunity make short submissions on the requirements of orders under the OCA but that otherwise the Secretary was content to leave the decision to the Tribunal.
241	As is apparent from page 1 of these Reasons, I made that order in the interests of efficiency but have made provision for the Secretary to give notice of any objection and to be given the chance to make submissions.  
242	The following discussion draws on QDP v Victorian Institute of Teaching, a decision which considered the relationship and differences between pseudonym orders and suppression order under the OCA. 
243	Section 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) gives the Tribunal power to give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.  That provision has been relied on as a basis for a pseudonym or anonymity order.
244	Pseudonym orders alone are not suppression orders under the OCA.  As a consequence, such an order will de-identify a person but allow full reporting of all evidence and other matters in the proceeding.  In some circumstances, a pseudonym order can be an appropriate means by which a person’s identity is protected on proper grounds but the substance of the proceeding may be published.
245	I have concluded that it is not necessary to make a suppression order under the OCA as the making of a pseudonym order and closing the Tribunal file to inspection are sufficient to protect the interests I discuss below.
246	The well established principles for making pseudonym orders come from ABC v D1 & Ors Ex Parte the Herald & Weekly Times Limited (ABC).  Those same principles were approved by the Court of Appeal in Secretary, Department of Justice and Regulation v Zhong (No 2) (Zhong) and are as follows.
247	First, the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting.  This is a fundamental precept underpinning the administration of justice.
248	Second, in certain circumstances the administration of justice requires a qualification of the general rule.  There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated.  These exceptions are many and varied and cannot be prescriptively identified.
249	Third, the test to be applied by the court in making a pseudonym order is whether it is necessary to do so in order not to prejudice the administration of justice.
250	Fourth, a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order.  Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties.  Also relevant is the real risk of a party not proceeding with an action in the event that they or another person is identified.   
251	Fifth, in certain circumstances, particularly those involving sexual assaults, it may be appropriate to not only suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.  This factor is not relevant in this case.
252	Sixth, in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
253	Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary.  However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences. 
254	Not every one of the above factors will be relevant in every case and they have some level of overlap. 
255	The Tribunal Book contains documents that show that, in early 2019, the Applicant told her parole officer she wished to change her surname.  She did so because a google search of her name produced results about her being a drug dealer and she was concerned about employers and others ‘looking her up’.  As I understand a document in the Tribunal Book, Corrections’ procedures were that, if the name change was approved by the Registrar of Births, Deaths and Marriages, the Adult Parole Board is notified and records, including parole orders are updated. 
256	As the Applicant’s name was changed, I have proceeded on the basis that it was approved by the Registrar and that relevant changes were made in the Board and Correction’s records.  I record my further understanding is that police record checks include former names as well as current names and so the change in name will mean the offending discussed in this proceeding remains attached to the Applicant’s current name.
257	If the Applicant’s name was published through these Reasons, that would undermine the change of name which has been completed and has legal effect.
258	As is apparent, these Reasons contain a large amount of information about the offending but also about the Applicant’s personal circumstances.  Those circumstances include her past and current work as a sex worker.  While that work is legal, there is a continuing stigma attached to that work and, as indicated in the Lawrence report, workers can feel unsafe.  Although I do not have evidence to demonstrate that the Applicant would be placed in physical danger or be at risk of mental health related harm arising from that work if her name was disclosed, I anticipate that may well be so given the history before me. 
259	These Reasons also include personal information about the Daughter, the Friend and, to a slighter lesser degree, the Former Husband.  While the Daughter gave evidence, none of the others mentioned did so.  If the Daughter was identified, so would the Applicant.  Further, as is plain, the Reasons include information about the Daughter’s life as a child.
260	At present and subject to any objection by the Secretary, having had regard to the principle of open justice as an aspect of the proper administration of justice, I concluded a pseudonym order ought to be made.  I concluded that it was in the interest of the administration of justice to do so while, through the publication of these Reasons, ensuring the substance of the proceeding and its outcome is public.  That course of action appears to me appropriate to protect the very specific interests of the Applicant and the Daughter.  
261	I have ordered under section 146(4)(b) of the VCAT Act that no person other than a party to the proceeding or their legal representatives may inspect the VCAT file.  That order is appropriate given the anonymisation order I have made. 

A Dea
Senior Member