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Feature Articles

Cite as: (2007) 81(3) LIJ, p. 56

While its aims are valid, the Working with Children Act needs amending to improve the quality of justice it delivers.

By Christien Corns

While its aims are valid, the Working with Children Act needs amending to improve the quality of justice it delivers.
By Christien Corns

Any person who engages in “child-related work” is required by the Working with Children Act 2005 (Vic) (the Act) to hold an assessment notice issued by the Secretary to the Department of Justice. An assessment notice is required by, among others, child protection workers, community service workers, employees at hospital paediatric wards, commercial babysitters and foster parents.

A person who has been convicted of a prescribed child sex offence will be refused an assessment notice, and instead will be issued with an interim negative notice. With very limited exceptions (such as the misidentification of an applicant), when the interim negative notice expires, the Secretary must issue the applicant with a negative notice.

Without an assessment notice, a person cannot engage in child-related work. The holder of a negative notice cannot continue in or apply for child-related work.

The only recourse for a typical child-related worker who has been issued with a negative notice is an application to the Victorian Civil and Administrative Appeals Tribunal (VCAT) pursuant to s26(1) of the Act, by which the applicant must demonstrate that:

  • based on the statutory criteria they do not pose an “unjustifiable risk” to the safety of children; and
  • it is in the “public interest” for the Secretary to give the applicant an assessment notice.

If satisfied of the above, VCAT is empowered by the Act to order the Secretary to give the applicant an assessment notice.

PJR v Department of Justice[1]

In late November 2006, in PJR v Department of Justice VCAT president Justice Stuart Morris heard and determined the first application for an assessment notice under the Act.

Facts

In mid-2006 PJR applied for an assessment notice to enable him to continue his work as a foster carer. The application was refused on the basis of prior convictions in 1974, for which he received a $100 fine and a good behaviour bond. However, PJR’s convictions are prescribed by the Act as requiring the Secretary to issue an interim negative notice. The Secretary gave PJR an interim notice and later, inevitably, a negative notice. Having received the negative notice, PJR would be committing an offence if he returned home to his foster children.

Application to VCAT

After receiving the negative notice, PJR immediately made an urgent s26(1) application to VCAT for an assessment notice.

The application did not seek a review of the Secretary’s “decision” to issue the negative notice because under the Act that decision must be made. The application was therefore made in VCAT’s original jurisdiction, where a stay of the negative notice cannot be obtained. Fortunately for PJR, VCAT was able to hear and determine the application the day the negative notice was issued. Had it not been able to hear the application that day and deliver a favourable result, it is likely under the Act that PJR would not have been able to return home to his foster children.

To this extent, Justice Morris in his judgment suggests there should be explicit provision for the making of an interim, or holding, order in cases under s26(1) of the Act [13]. I do not disagree; however, there may be an alternative solution. It is submitted that the Act could fairly be amended to better protect child-related workers whom the Secretary believes do not pose a risk to the safety of children.

Suggested amendment

When an application for an assessment notice is made, the Secretary checks the applicant’s criminal history and immediately becomes aware of any findings of guilt for relevant offences. The Secretary is also likely to have at his or her disposal the factual background to the convictions, from the Office of Public Prosecutions or Victoria Police.

It is therefore submitted that where the Secretary (or delegate) is satisfied on the basis of the checks performed by the Department that the applicant does not pose an unjustifiable risk to the safety of children, he or she ought to be empowered to give the applicant an assessment notice forthwith. This would prevent persons convicted many years ago of offences of a class which is considered by Parliament to pose a risk, but the details of which suggest an absence of real risk to children, having to plead that their application to VCAT should be heard on the day the negative notice is received.

Notwithstanding the Secretary’s newfound discretion, if he or she is not satisfied that the applicant does not pose an unjustifiable risk to the safety of children, the negative notice ought to be given to the applicant and have the same force and effect as it currently does under the Act. An application could then be made to VCAT, and, as the matter would then be in VCAT’s review jurisdiction, a stay applied for in appropriate circumstances (such as where VCAT cannot complete the hearing on one day but is likely to conclude that the applicant does not pose the statutory risk to children).

Conclusion

The Act is a useful statute and serves a noble purpose. Its apparent flaw has, however, the real potential to cause harm to foster parents and children who risk being separated for weeks, possibly longer, before VCAT can hear an application under s26(1) of the Act and make a determination.

It is hoped that the Victorian government will carefully consider the judgment of Justice Morris in PJR v DOJ, and subsequent judgments which might illuminate teething problems in the Act so as to encourage legislative reform.


CHRISTIEN CORNS is a third year litigation solicitor at Middletons, practising mainly in defamation, media, professional liability and estate litigation. The author and Mark Dobbie of Middletons acted for the successful applicant pro bono.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.


[1] PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455 (4 December 2006). Available online at http://www.austlii.edu.au/au/cases/vic/VCAT/2006/2455.html

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