VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
review and regulation LIST	
VCAT REFERENCE NO. Z611/2018	
CATCHWORDS	
Review and Regulation List - Working with Children Act 2005 s 26B – category B offending – long history as referee – long criminal history – whether applicant should be given a working with children assessment notice.
	
APPLICANT	GXW	
RESPONDENT	Secretary to the Department of Justice and Community Safety	
WHERE HELD	Melbourne	
BEFORE	Deputy President I. Proctor	
HEARING TYPE	Hearing	
DATE OF HEARING	30 January 2019	
DATE OF ORDER & written reasons	9 April 2019	
CITATION	GXW v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2019] VCAT 510	
Order

The decision of the Respondent dated 13 June 2018 is affirmed.

Ian Proctor
Deputy President			
APPEARANCES:		
For Applicant:	In Person	
For Respondent:	Ms D. Price of Counsel

Reasons
1	GXW arrived in Australia as a young boy. He says life was hard and he made serious mistakes.  Now 58 years old, he finds himself as a retired man with adult children and grandchildren. He wants to continue a long, paid and volunteer football (soccer) umpiring career. He seeks to continue as a mentor to the sport. GXW has been involved with football for 38 years and was a soccer umpire for 31 years. 
2	Relatively recently, Football Victoria required him to obtain a working with children assessment notice to continue his work as an umpire and umpire mentor. He had not previously held an Assessment Notice.
3	GXW applied for a volunteer Assessment Notice under the Working with Children Act 2005 (the WWC Act) from the Secretary to the Department of Justice and Community Safety (the Secretary).
4	Under the WWC Act, GXW’s application is a Category B application, because in 2007, without conviction he was fined for recklessly causing injury (punching a teenager) and in 1995, he was convicted and fined $1,000 for intentionally or recklessly causing injury (concerning a young woman). Apart from those matters, GXW also has a long criminal history. The Secretary was aware that in 2005 GXW was acquitted concerning alleged sexual offending against a child.
5	The Secretary refused his application.
6	GXW applied to VCAT for review of the refusal. VCAT has jurisdiction to hear Category B review applications under section 26B of the WWC Act.
7	The main purpose of the WWC Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with children, or care for them, are subject to a screening process. When VCAT makes a decision under the WWC Act, the protection of children from sexual and physical harm must be the paramount consideration.
8	On 30 January 2019, the matter came before me for hearing. The Secretary opposed GXW’s VCAT application. While GXW had been assisted by Victoria Legal Aid in preparing for the case, apparently including the drafting of some documentation on his behalf, he represented himself and gave evidence. The Secretary largely relied on documentary evidence, and cross-examination of GXW and of GXW’s referees. At the end of the hearing, I reserved my decision.
9	I turn to the relevant criteria for making this decision under sections 26B(1), 26B(2) and 26B(3) of the WWC Act. 

Section 26B(1)
10	Section 26B(l) of the WWC Act says:
In a review of a decision to give a negative notice on a category B application or in relation to a category B re-assessment, VCAT must determine that it is appropriate to refuse to give an assessment notice unless satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children, having regard to any matters to which the Secretary must have regard under section 13(2).
11	Therefore, on the question of whether I am satisfied that giving an assessment notice to GXW would not pose an unjustifiable risk to the safety of children, I turn to the s 13(2) criteria.
The nature and gravity of the offence and its relevance to child-related work 
12	Drawing from the Secretary’s description of the 2007 offence concerning punching the young man:
At approximately [1 am] GXW attended the address of the victim looking for his 18-year-old daughter who was dating the victim. GXW demanded to know the whereabouts of his daughter. GXW punched the victim with a clenched fist to the mouth until the victim disclosed the whereabouts of his daughter.
13	Drawing from the Secretary’s description of the 1995 offending toward the young woman, to which GXW pled guilty:
The victim attended a nightclub with two female friends. A male kept harassing her by asking her to dance, to which she kept refusing. 
The victim left the nightclub at approximately 2:30 am [and after getting fast food], left on her own to go to her boyfriend’s residence. On parking in front yard of [the boyfriend’s] premises, the victim got out of her car, and was grabbed by GXW from behind; covering her mouth with his hand and telling her not to scream. GXW removed his hand, and the victim screamed. GXW then replaced his hand over her mouth and threatened to kill her. He then removed his hand again. The victim then screamed again, broke away and entered boyfriend’s premises. 
By this time the boyfriend had heard the screams and was heading outside when the victim passed him inside hall of the premises in a hysterical condition.
Boyfriend has had a discussion with GXW who claimed the victim had caused an accident on the way home and his car was damaged. GXW claimed he wanted the victim’s details for insurance. The victim was quite hysterical, boyfriend was unaware of the true story. GXW requested to use phone inside the premise. This was refused by the boyfriend. GXW then left in vehicle. 
14	During the Police interview with GXW, he denied assaulting the victim stating it was self-defence and denied punching; only fending off. The Secretary’s report also states that when the matter was heard before the court, GXW said he had no recollection of the offending. 
15	According to a police record in the hearing before the Court, GXW said the offending related to when he was working in security and the assault was in self-defence as the victim produced a beer bottle as a weapon when he was asking the victim to move away.
The period of time since the applicant committed the offence
16	The punching offence occurred 12 years ago and the assault on the woman occurred 24 years ago.
Whether a finding of guilt or a conviction was recorded for the offence and the sentence imposed for the offence
17	In 2007, GXW was fined $500 without conviction for recklessly causing injury; the punching offence.
18	In 1995, GXW was convicted of intentionally or recklessly causing injury concerning the woman and was fined $1,000.
The ages of the applicant and of any victim at the time the applicant committed the offence
19	At the time of the punching offence in 2007, GXW was 45. The victim was 15.
20	At the time of the assault on the woman in 1995, GXW was 34. The victim was 22.
Whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it
21	The conduct has not been decriminalised. 
The applicant’s behaviour since he committed, or allegedly committed, the offence 
22	I have analysed this criterion concerning GXW’s behaviour since the punching offence in 2007.
23	With reference to the criminal history and information provided to the Secretary by Victoria Police, Corrections Victoria and the Department of Health and Human Services, the following describes GXW’s criminal history.
24	In 2009, GXW was convicted and sentenced to 15 months imprisonment and ordered to pay $85,887 in compensation concerning attempt to obtain financial advantage by deception concerning over $100,000, handling/receiving and disposing of stolen goods and obtaining financial advantage by deception. GXW confirmed his imprisonment and that he subsequently served a term of home detention.
25	A 5 March 2010 home detention assessment report addressed to the Adult Parole Board which recommended home detention provides a snapshot of GXW:
Police summary of charges indicate that [in 2008] he entered the home of [his] brother-in-law and stole various documents …, attended [a bank] where he applied for a personal loan in his [brother-in-law’s name], initially for $60,000. [He then] changed the loan amount to $80,000 [then to $200,000] … upon attending the bank to formally sign the documents previously supplied he was arrested by police. [GXW] has appeared before several Magistrates Courts receiving community-based dispositions for similar charges.
Before being incarcerated [GXW was spending equal time between his] family in which there are nine adult children from two separate marriages. [He] states that he has a good relationship with his ex-wife’s and good support from his children. [He] stated that due to financial problems of some of his children he returned to gambling, in an effort to help, of course this did not work, thus finding himself in his current situation.
[GXW] was educated to grade 6 … and completed qualifications as a chef in the Australian Army. [His] previous work history is driving a bus for over a decade before moving to sporadic work in 2008 in the concreting industry. [He] also worked with one of his sons in a logistics company. [GXW says] he will be dependent on Centrelink and the support of his children to help finance his home detention …
26	The report went on to describe GXW’s good health, good behaviour in prison, and the good support anticipated from his family if he was placed on home detention. However, the author regarded GXW as answering many questions untruthfully. While GXW would have been assessed as posing a low risk of not complying with conditions or reoffending, concern about the history of eight intervention orders taken out against him, with one then still current, with GXW declining to give information about the intervention orders (see below), resulted in him being assessed as presenting “medium risk to the program”.
27	On 29 March 2010, while he was in prison, GXW was convicted and sentenced to nine months imprisonment concerning theft and perjury. According to the County Court of Victoria Reasons for Sentencing, this related to GXW in 2005 buying and operating a fish and chip shop for $140,000, persuading a person to make a false statutory declaration, failing to make payments towards the purchase, and in the process of vacating the shop, stealing equipment. The Court regarded the offending as most serious with delay in dealing with the charges a significant factor in a lesser sentence being imposed. The Court said:
I consider from your history that you have a strong tendency towards attempting to get yourself out of difficulties by resorting to dishonesty. It is to be hoped that your current sentence has brought home to you the consequences of dishonestly offending. I also note that you have family support from your sons.
28	GXW served home detention from 1 July to 4 November 2010.
29	In 2014, GXW was convicted of theft, placed on a one-year Community Correction Order (CCO) and ordered to undertake 80 hours of community work. He had been found in possession of a stolen iPad and some other equipment. He claims he found them and had not stolen them.
30	I deal with other aspects of GXW’s life since the offending in question when recounting his evidence in this proceeding.
Any information given by the applicant in, or in relation to, the application and any other matter that VCAT considers relevant to the application 
Earlier criminal history
31	I turn to GWX’s criminal history before the 2007 offence.
32	In 1973, there was a matter of schoolhouse break and steal, which was adjourned for 12 months. In 1978, GXW was placed on probation for two years concerning a burglary. GXW says he was young and naive, his judgment was ‘clouded’, and he had ‘poor decision-making skills’.
33	In 1986, GXW was convicted and ordered to perform 200 hours of community services over 40 weeks concerning 9 charges of Make False Statement. GXW provided no information about this apart from acknowledging his conviction.
34	In June 2000, he was convicted of charges of burglary and theft, fined $500 and ordered to pay compensation of $5,500.
35	In December 2000, he was convicted, fined $500 and ordered to pay $1,017 compensation concerning three charges of fraudulently obtaining any benefit.
36	Concerning the theft and burglary offences, GXW said a business partnership deal went wrong and the business collapsed where he had provided a substantial amount of money. The other party had replaced the locks to the property not allowing him to retrieve equipment he felt he was entitled due to his financial contribution. Concerning the fraud offences, he explained this was due to financial hardship he was experiencing in raising a large young family.
37	In 2004, GXW was fined $300 without conviction concerning failure to store ammunition correctly.
Intervention orders
38	The 2010 home detention report noted GXW had had eight intervention order applications against him and at the time an active current order concerning a family member had not been served on him due to him being in prison. The report’s author wrote of GWX being unwilling to provide information about this and only when probed, admitted to three such orders, one being current “but none of these were his fault and a misunderstanding”.
39	During the hearing there was evidence that there were or are nine intervention orders made against GXW. In giving evidence and during cross-examination, GXW described intervention orders taken out by family members, saying none had been taken out since he left prison.
Historic sexual offence charges - acquitted
40	In August 2005, GXW was acquitted of conduct from 1979 (GXW was 18) to 1984 resulting in charges of attempted rape (4 charges), gross indecency (person under 16), indecent assault (2 charges) and unlawful/indecent assault of a young girl. The details of the alleged offending are most disturbing.
41	GXW says the circumstances of the allegations never occurred. He stated he was in a relationship with the alleged victim’s older sister, and that the younger sister had a fixation for years.  A record of interview from June 2004 records that when first interviewed by Victoria Police, he denied all allegations. He maintained his complete denials in cross-examination.
GXW’s evidence
42	GXW gave evidence of him living a hard life as a child, of joining the army aged 12 (he says he lied that he was 18), of his service in the Army, and explanations of financial hardship and being done wrong by others being a context for at least some of his offending.
43	GXW gave evidence about him successfully raising a “blended family of nine children”. He spoke of learning to appreciate and understand the individual needs of each child. He wrote of always holding “myself in high regard in relation to upholding a positive and integral image of myself and to stress the importance of positive leadership and social image to my children”.
44	Concerning his career in refereeing and working with children through his 38-year career with Football Victoria, he spoke of maintaining a clear and respectful relationship with all those involved including parents, coaches and players. He claimed to have over his career worked with some of the most talented players/referees in the state and country and to have coached them into pursuing professional careers in football.
45	He spoke of having to confront the evidence in this proceeding about his past conduct making him sick to the stomach.
46	Concerning his history of offending generally, GXW expressed shame and remorse, especially as it has affected his family, mentally, emotionally and financially. He referred to “my gambling flaws and poor behaviour during the timeframe of 1973 and 2014” as limiting his ability to achieve his dreams and aspirations as a father and as a referee.
47	Concerning the 2007 punching offence, GXW explained that on the night he confronted the boyfriend attempting to find his young daughter, being concerned for her welfare. He spoke of the boyfriend being known to sell drugs, the fault of his then wife in letting their daughter go out with the boyfriend, his daughter being drugged at the time and that relationship ending at that time. He denied punching the boy, saying he shook him. He said these days he would call the police about such a situation.
48	Concerning the 1995 offence of intentionally or recklessly cause injury to the young woman, GWX described defending himself when working as a security guard when she produced a bottle as a weapon when he asked her to move on after a night out. During cross-examination, he provided further explanations amounting to denial of his offending.
49	In cross-examination, GXW gave detailed explanations related to the circumstances of past offending, in part acknowledging guilt, in part contesting guilt and in part explaining extenuating circumstances explaining his guilt. While I have taken his evidence into account (see below), it is not necessary to detail that evidence here.
50	Concerning intervention orders taken out against him, GXW provided some explanation as to the circumstances of these orders taken out against him by family members during difficult times. His evidence was no intervention orders have been in place since he came out of prison.
Referees
51	Before describing evidence of GXW’s referees, I record that before they gave evidence, GXW said that each referee knew “100%” about his past offending. This was soon proven incorrect. After two referees had given evidence, during cross-examination GXW agreed he should not have said the colleague referee knew 100% of his history. He said he assumed her to have some understanding as she was present during a conversation with others, which he assumed she would have overheard. He said he should have said she understood “60%”.
52	One of GXW’s sons wrote a reference for his father, speaking of his father coaching him to a national level and to pursue an Olympic and A League career, followed by the son holding positions in soccer. He described his father as a trustworthy, courageous and determined man with exemplary leadership skills, refereeing adults and children.
53	Giving evidence at the hearing, in response to leading questions from GXW, his son spoke of GXW always supporting him, making him a better man who believes in working hard to achieve goals, that he simply raised his other children and that the son knew all about GXW’s past. During cross-examination, his son spoke of his father being a reformed person and provided further confirmation as to his father’s long productive career as a referee, sometimes paid and sometimes not. While GXW’s son had a reasonable knowledge of his father’s past offending, there were some significant gaps in that understanding. He had seen and read documentation related to this case.
54	The colleague in refereeing for the past three years wrote of the privilege of being coached and mentored by GXW. She described him as hard-working, trustworthy and passionate about his positions within the referee world and, after 38 years in that world, being held in high regard.
55	During cross-examination, the colleague spoke highly of the respect for GXW as a referee with decades of experience, respected by other referees and players. While she was aware of rumours about GXW, she had very little knowledge of his criminal history and of any intervention orders against him. She was aware that he had been acquitted with respect to the alleged sexual offending. In her view, a person should not be judged on his or her past and “can earn his or her stripes back”.
56	A friend and colleague, a Litter Investigation Officer with a local council, wrote a reference regarding his involvement with GXW in a security business, as part of the business conducting underage discos and officiating football matches with GXW. He referred to GXW’s service in the army. This referee said he would have no hesitation in supporting GXW in any type of application for which he may be applying. The reference gave no indication that the referee was aware GXW was seeking an assessment notice, nor his history of offending. GXW did not make this referee available for cross-examination, saying he was unavailable.
The likelihood of future threat to a child caused by the applicant 
57	GXW says he has never hurt a child in his care. There is no basis to find that he has, and I do not make such a finding. 
58	However, I do not regard GXW as a reliable witness. He claimed before calling his referees that each of them knew 100% about his past. It quickly become evident that his relatively recent colleague knew virtually nothing about his past, beyond the last few years. His son has significant gaps in his knowledge. This undermines GXW’s reliability as a witness. His claims as to his innocence in the face of the history of convictions further undermines his reliability, as does his preparedness to largely explain away his offending. He has been convicted of dishonesty offences over a span of years.
59	Therefore, I do not regard his evidence concerning risk to children as supporting his case.
60	GXW provided no expert evidence, such as a forensic psychological report assessing risk to children. This lack of evidence does not assist his case.
61	Concerning his criminal history, I prefer the independent evidence that he physically assaulted a teenager, only 11 years ago. He was prepared, under stress, to take the law into his own hands through physical aggression. GXW was 45 years old.
62	While the evidence of his assault on the young woman in 1995 as contained in the records before me, which I prefer to GXW’s evidence, concerns events over 20 years ago, his preparedness to act in this way, as found by the Court is concerning.
63	While the now long-ago history of intervention orders is not a major factor in assessing risk in 2019, it is of some concern.
64	Concerning GXW’s long history of offending, it cannot be said to be a thing of the past. His last conviction was in 2014, only five years ago.
65	That said, there is independent evidence as to the contributions he has made as a referee over decades. 
66	His three referees attest to high regard of GXW and his long-standing good reputation in playing, coaching, mentoring and refereeing in football over the last 38 years. However, that evidence can be given limited weight here.
67	Meaning no criticism of his son, it is difficult for the son of a father in these circumstances to be regarded as an independent witness.
68	The evidence of his recent colleague was striking. While during cross-examination she learnt for the first time of details of his criminal history, she did not pause to consider the implications before confirming her full support for GXW. That lack of preparedness to reflect on the implications of the criminal history undermines the weight of her evidence.
69	The third referee, who had provided a short reference and was, for reasons unexplained, unavailable to give oral evidence, can be given no weight given the uncertainty about his knowledge of this VCAT proceeding and how his reference was being used and of GXW’s history.
70	Finally, on the issue of the evidence before me, the Secretary submitted the charges of sexual offending against the young girl of which GXW was acquitted should be taken into account. 
71	In my view while the evidence is potentially relevant, in the absence of any contemporary further evidence, any probative value is outweighed by the presumption of innocence, acquittal and GXW’s denial of the offending at the time and now, even in the context of my doubt of his credibility as a witness.
72	Given what I regard as the lack of reliable evidence put by GXW supporting his application to VCAT, in the context of the more reliable adverse evidence, while I do not regard the likelihood of GXW harming a child in the provision of child -related services as significant, neither can I regard the likelihood as negligible or low.
Conclusion concerning s 26B(1)
73	To give GXW an assessment notice is to provide him with the ability in the next five years to engage in any type of child-related work.
74	As Bell J said in ZZ v Secretary to the Department of Justice [2013] VSC 267 at [134]:
The test of ‘unjustifiable risk’ requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. The assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances.
75	As Kyrou J said in Maleckas v Sec, Department of Justice [2011] VSC 227:
… while the Act does not impose any onus of proof on an applicant and does not specify any standard of proof, as a matter of practical reality, it is difficult to see how an applicant could succeed in satisfying the VCAT that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children, unless the applicant adduces probative evidence going to that issue. As a matter of common sense, the more objective, direct and unequivocal is the evidence before the VCAT on the question of risk to the safety of children, the greater the prospects of the VCAT being satisfied that the giving of an assessment notice would not pose an unjustifiable risk to the safety of children.
76	I determine that it is appropriate to refuse to give an assessment notice to GXW. I am not satisfied that giving the assessment notice would not pose an unjustifiable risk to the safety of children. 
77	This relates to GXW’s willingness to assault a teenager, years before that to assault a young woman, in the context of a history of dishonesty and a lack of probative evidence that he has changed his ways. I do not regard his apparent contributions in soccer, confined to that area is life to be a reliable predictor as to how he will act in the future in other areas of his life.

Section 26B(2)
78	Under s 26B(2) of the WWC Act, if I was otherwise satisfied that giving GXW an assessment notice would not pose an unjustifiable risk to the safety of children, I would have to also be satisfied that-
a)	a reasonable person would allow his or her child to have direct contact with GXW while the he was engaged in any type of child-related work; and
b)	GXW’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
The ‘reasonable parent test’
79	In JGF v Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 1728 at [25] Macnamara J, said:
a reasonable person would be acquainted with the truism ... that there are no risk-free encounters in human life. A reasonable person would in considering the situation of JGF wish to acquaint himself or herself with the full range of material that has been placed before me including the character evidence, the history of his good character during his adult life and the expert opinions. A reasonable person would retain a measure of scepticism and caution but would not approach an issue such as this with the thought that once a person had, if you will, shown the cloven hoof, albeit decades ago and as a very young man, that he could never be redeemed.
80	While the reasonable person may allow GXW to have direct contact with his or her child during soccer refereeing, I am not satisfied in the context of GXW’s offending as described above, some of it relatively recently, a reasonable person would allow his or her child to have direct contact with GXW while he was engaged in any type of child -related work.
 ‘Unjustifiable risk test’
81	For the reasons given above, I am not satisfied that GXW engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
Section 26B(3) criteria
82	Section. 26B(3) of the WWC  Act says:
Even if VCAT is satisfied under subsections (1) and (2) that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must determine that it is appropriate to refuse to give the assessment notice unless it is satisfied that it is in the public interest to give the assessment notice.
83	As I am not satisfied under s 26B(1) and s 26B(2)  ) that giving GXW an assessment notice would not pose an unjustifiable risk to the safety of children, I have not considered this issue. 
Conclusion
84	For the above reasons, I have affirmed the Secretary’s decision under review, such that GXW will not be given an assessment notice.

Ian Proctor
Deputy President