For many employers, employees may require government clearances to perform their duties. These may include licences, working with children checks, or industry specific qualifications. Difficulty may arise when such clearances become complicated by prior criminal history of employees.

Facts

In Irwin v Secretary of the Department of Justice and Regulation [2017] VCAT 1004 heard by the Victorian Civil and Administrative Tribunal, the applicant owned a business which conducted workshops for teenagers and young adults around schools and sporting clubs. These workshops promoted positive behaviours with themes of respect, drugs and non-violence.

The applicant attended the Australian Open in 2015 and by 7.45pm he had consumed up to 16 standard drinks in the heat. The applicant claims that a female patron shunted him in a queue. Consequently, the applicant said to the woman ‘this one’s got a nice rack’ and then, without consent, moved his hand over her arm and grabbed her right breast and squeezed it. At the time the applicant was 52 years old and the woman was 25 years old.

The applicant’s excessive consumption of alcohol on that day played a very large part in the verbal abuse and the commission of the offence.

Prior Legal Proceedings

In a prior criminal proceeding, the applicant was charged and convicted of indecent assault. Indecent assault is a category B offence under the Working with Children Act 2005 (VIC) (WWCA). The applicant applied for an Assessment Notice under the WWCA shortly after the conviction. However, the Secretary to the Department of Justice and Regulation issued a Negative Notice meaning that the applicant could not engage in child-related work and denied the applicant the clearance.

In this proceeding, the applicant sought a review of the decision to issue the Negative Notice.

Findings

To assess whether a Negative Notice was correctly issued to the applicant, Deputy President Lulham examined each of the criteria set out in section 13(2) of the WWCA as follows:

• Section 13(2)(a) – nature and gravity of the offence and its relevance to child-related work: It was found that while the offence was serious, neither the indecent assault or drunkenness is relevant to child-related work. The conduct did not occur in a situation where an alleged child victim or witness was under the applicant’s care. There was no evidence of the applicant having a history of assaulting women, men or children. There was also no history an alcohol dependency or misconduct in the presence of children.

• S 13(2)(b) – the period of time since the applicant committed the offence: The offence was committed 2.5 years before the applicant applied for the Assessment Notice, and the applicant had not committed any other offence since. 

• S 13(2)(e) – the ages of the applicant and victim: It was found that the age difference between the applicant and the victim (27 years) was not related to the offence and so irrelevant.

• S 13(2)(g) – the applicant’s behaviour since the offence: The applicant had been of good behaviour since the offence. 

• S 13(2)(h) – the likelihood of future threat to a child caused by the applicant: It was found that there was no evidence that the applicant presented any threat to a child. The applicant had countless opportunities to abuse children (through his business) were he prone to doing so. However, in the whole of his career there were no complaints.

Overall it was found that the applicant erred in consuming too much alcohol and committing the offence. However, he was not a hypocrite. His usual behaviour was characterised by sobriety and contributing to the community. He would not have behaved in an offensive way had he been sober.

Deputy President Lulham believed that it was in the public interest that the applicant be in a position to engage in his line of business and to make the presentations.

Result

The applicant was allowed an Assessment Notice.

Considerations for employers

This case raises some interesting issues for employers who engage employees required to seek approval for working with children (WWC) – in particular, where a person has engaged in conduct (including potentially, criminal conduct) which is undesirable from an employer’s perspective but does not void their right to WWC, and/or where a person has previously been disallowed from WWC and this is later reversed:

• To the extent you do not already do so, employers may wish to include questions in its recruitment and pre-employment process regarding whether the prospective employee has ever been precluded from engaging in child-related work (notwithstanding they may hold a current WWC check). You will need to be careful how you subsequently use that information, bearing in mind the potential issues regarding criminal record discrimination.
• The case raises an interesting question about whether a person’s activities outside of work can or should validly be taken into account where those activities have not voided their legal clearance to WWC (and this would include, for existing employees where termination may be considered).

• Where a situation such as that in the Irwin Case occurs, do you have sufficient frameworks in place (beyond reliance on the need for WWC clearance) to provide a sound legal basis for responding to the situation (including potentially termination of employment).

• If you were to terminate employment or refuse to employ a person on the basis of criminal conviction, in circumstances where the criminal conviction has not voided the person’s ability to lawfully WWC, a potential issue may arise regarding discrimination on the grounds of criminal record. It is not discrimination if a person’s criminal record means the employee is unable to perform the inherent requirements of their job, which is determined on a case-by-case basis according to the nature of the job and the nature of the criminal record. A key consideration will therefore be whether the criminal record means the person is unable to perform the inherent requirements of their role, notwithstanding they are cleared to WWC.

Do you require further advice?

For information or assistance relating to employee working with children checks or criminal record checks, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like assistance in understanding how to establish pre-employment checks or are considering termination of employment in relation to criminal history or working with children check, please contact your local Ai Group Workplace lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or by email on info@aigroupworkplacelawyers.com.au.