Working with children checks – assessing risk and balancing competing rights

ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013)

Summary

The Victorian Supreme Court has upheld the appeals of a man who was refused an assessment notice and an accreditation that he needed to work as a bus driver. The court found that in assessing whether the man was “a risk” to children, rather than an “unjustifiable risk”, the VCAT had misapplied the statutory test. Justice Bell also found that VCAT failed to consider, among other things, the relevance of the applicant’s right to work in weighing up whether it was in the public interest for him to be given the required clearances.

Facts

ZZ wished to work as a bus driver, which would put him into unsupervised contact with children. He therefore applied for an assessment notice under the Working with Children Act 2005 (Vic) (‘WWC Act’) and a driver accreditation under the Transport (Compliance and Miscellaneous) Act 1983 (Vic) (‘TCM Act’). ZZ was refused both the assessment notice and the driver accreditation.

ZZ had committed criminal offences (which were not sex or child related) some ten years ago. The offences included incitement to murder his wife, for which he was sentenced to imprisonment for six years with a non-parole period of three years and six months. He had been in no further trouble with the police since being released on parole in 2006.

The Secretary to the Department of Justice and then VCAT, refused to give the assessment notice because they considered that it would put the safety of children at risk and would not be in the public interest. In relation to the driver accreditation, the Department of Transport decided only that it was not in the public interest to grant the accreditation.

On appeal, Justice Bell considered two main issues:

• whether the tribunal misapplied the statutory test in asking itself whether ZZ posed “a risk” rather than an “unjustifiable risk” to children; and
• whether the tribunal failed to consider “all the circumstances”, and in particular ZZ’s right to work, in evaluating whether it was in the public interest to give him an assessment notice.

Decision

Argument proceeded without consideration of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, Justice Bell stated that it was “impossible to avoid those issues, especially as the interpretive principle in section 32(1) of the Charter is mandatory”.

Thus, Justice Bell stated that in determining whether an assessment notice or driver accreditation should be granted, the relevant test is not whether the individual would pose any or no risk to children, but rather whether the individual would pose an unjustifiable risk. Discussing the decision of Justice Kyrou in Maleckas [2011] VSC 227, his Honour stated:

the proper evaluation of the nature and degree of the risk on which [Kyrou J] insisted is consistent with Australia’s international obligations and compatible with the human rights in the Charter.

In relation to the WWC Act, Justice Bell highlighted that the Act seeks to protect children from physical and sexual harm. It does this through “preventing certain persons from performing work which is likely to bring them into unsupervised contact with children”. Thus, “these mechanisms protect and promote the human rights of children in significant ways”.

Justice Bell undertook lengthy consideration of what particular rights constitute the human rights of children, quoting Geraldine Van Bueren in The International Law on the Rights of the Child as a child’s human rights being concerned with:

the four P’s: the participation of children in decisions affecting their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs.

His Honour then observed that the consideration of children’s human rights needs to be balanced against a consideration ZZ’s right to work. The right to work is recognised in article 23(1) of the Universal Declaration of Human Rights and article 6(1) of the International Covenent on Economic, Social and Cultural rights. Recognising the interdependency and connectedness of human rights, Justice Bell also found that the right to privacy in article 17 of the International Covenant on Civil and Political rights and section 13(a) of the Victorian Charter can be engaged by restriction on the right to work.

As Justice Bell stated:

An underlying rationale of human rights is enhancing respect for human dignity. Work is an aspect of human dignity. There is a close relationship between private life and work. Therefore, it can readily be appreciated why the right to work is a human right, why it incorporates freedom of choice of work and why it is intimately connected with other human rights.

Ultimately, Justice Bell found that the Tribunal had erred in law by considering whether ZZ posed a risk, rather than whether that risk was unjustifiable. The Tribunal had also erred in failing to consider all the factors pertinent to an assessment of the public interest, including ZZ’s relevant human rights as well as the rights of children.

Commentary

The case recognises the relevance of the right to work and the right to privacy in the assessment of applications under the WWC Act and the TCM Act. The tests set out in the legislation, as well as the broader consideration of the public interest, require weight to be attached to both the rights of children and the rights of applicants. Proper consideration of all relevant rights better ensures that any rights limitations are necessary and proportionate.

More generally, the decision confirms the importance of administrative decision-makers considering all, rather than just some, of the human rights implications of its decision-making – a key purpose of the Victorian Charter’s dialogue model. 

This decision is available online at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2013/267

Alex Lockie, Law Graduate, King & Wood Mallesons Human Rights Law Group