Applicant Charged with Unlawful Assault Seeks Child-Related Work Employment

EDO v Secretary to the Department of Justice and Community Safety (Review and Regulation) [2021] VCAT 936 (17 August 2021)

The applicant EDO seeks child-related work employment. However, he was charged with unlawful assault involving his 16-year-old daughter. The Secretary to the Department of Justice and Community Safety (“the Secretary”) revoked EDO’s WWC assessment notice and he was given a negative notice under the Working with Children Act 2005 (Vic) (“the WWC Act”). 

Facts:

EDO wishes to work with children in the setting of Sunday school.  He held working with children assessment notices. EDO was granted his most recent assessment notice under the WWC Act on 31 May 2019.  However, on 11 May 2020, he was charged with one charge of “recklessly cause injury” and one charge of “unlawful assault” in relation to incidents involving his 16-year-old daughter which took place in February 2020 and April 2020 respectively.  Family violence intervention orders were also put in place in favour of both of EDO’s daughters.   

The “recklessly cause injury” offence gave rise to a category B reassessment under the WWC Act.  On 29 July 2020, the Secretary to the Department of Justice and Community Safety (“the Secretary”) revoked EDO’s WWC assessment notice and he was given a negative notice under the WWC Act.  On 1 February 2021 the WWC Act was repealed. It was substantially re-enacted in Chapter 3 of the Worker Screening Act 2020 (“the WSA”).

As a result, EDO’s negative notice essentially became a “WWC exclusion” under the WSA.  On 7 May 2021, the charges of “recklessly causing injury” and “unlawful assault” were brought before the Magistrates’ Court. The charge of “recklessly causing injury” was “struckout/withdrawn” and EDO pleaded guilty to the “unlawful assault” charge.  The Secretary contends that EDO is unable to establish that he is a suitable person to work in any type of child-related work.

Issue:

Whether or not the Secretary's decision should be set asi

Applicable law:

Worker Screening Act 2020 s 108 - sets out the Tribunal’s jurisdiction with respect to WWC category C reassessments as follows:

(1) In a review of a decision to give a WWC exclusion on a WWC category C application or in relation to a WWC category C re-assessment, VCAT must determine whether in the particular circumstances it would be appropriate to refuse to give a WWC clearance, having regard to any matters to which the Secretary must have regard under section 65(2).

(2) VCAT must determine that it is appropriate to refuse to give a WWC clearance unless VCAT is satisfied that—

(a) 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; or

(b) the applicant’s engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.

(1) Even if VCAT does not determine under subsection (1) or (2) that it would be appropriate to refuse to give a WWC clearance, VCAT must determine that it is appropriate to refuse to give the clearance unless it is satisfied that it is in the public interest to give the clearance.

Worker Screening Act 2020 s 11 - provides that when the Tribunal makes a decision or takes an action under that Act, the protection of children from sexual or physical harm must be the paramount consideration.

McNamara VP in VQB v Secretary to the Department of Justice [2013] VCAT 789 at [36] - approached the "reasonable person test" as follows:

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.

Analysis:

The protection of children is a more important consideration than any other consideration, including as to the individual’s right to work.  In the context of child-related work, the offending is serious, involving, as it did, direct physical harm against a child in front of a younger sibling.  A father has a special relationship of trust with his children. He is expected to be a protector rather than the person from whom the children need to be protected. If a person’s own children are not safe from him, real concerns arise with that person engaging in child-related work.

However, after being referred to the police, EDO immediately engaged in counselling.  Those closest to him including family members and members of his church became involved in a joint endeavour to heal the damage done and rehabilitate EDO.  EDO’s deep self-reflection since the offending has changed him as there is no evidence that he has committed further instances of family violence. 

Conclusion:

The Court ordered to set aside the decision of the Secretary to the Department of Justice and Community Safety (“the Secretary”) to give EDO a negative assessment notice under the Working with Children Act 2005. The Secretary is directed to give EDO a WWC clearance under the Worker Screening Act 2020.