Charter of Human Rights and Responsibilities Act 2006 (Vic): applicability to re-assessment decision under review by the Tribunal; ZZ v Secretary to the Department of Justice [2013] VSC 267 considered.

VCAT's jurisdiction on review: Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 (Justice Quigley) considered and applied.

Effect of interim WWC exclusion: Worker Screening Act 2020 (Vic) s 88; McCall v Department of Government Services (Review and Regulation) [2023] VCAT 728 followed.

Boothey v Secretary to the Department of Government Services [2025] VCAT 332

On 8 April 2025 the Tribunal made orders under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), granting Michael Boothey's application for a stay of a re-assessment decision of the Secretary to the Department of Government Services made on 17 February 2025 under the Worker Screening Act 2020 (Vic) (WS Act) to revoke his Working with Children Clearance Number 1041478A-02 (WWC clearance) and to issue him a WWC exclusion.

By operation of that order staying the Secretary's reassessment decision of 17 February 2025, and pending final hearing and determination of Mr Boothey's review application in this Tribunal proceeding or further order, Mr Boothey's WWC clearance is in force subject to its terms and subject to the 'interim WWC exclusion' dated 27 December 2024.

The statutory effect of an 'interim WWC exclusion' pending review by the Tribunal of the Secretary's re-assessment decision is discussed in these reasons.

Because 'WWC Category C re-assessment' charges and offences (within the meaning of s 86 of the Worker Screening Act 2020) are mentioned in these reasons for interlocutory stay order granted by the Tribunal, the Tribunal warns that it is an offence under Victorian legislation for a person to identify a victim of the offences.

The Tribunal also records that subject to the provisions of s 88(5), certain information given to the Secretary under s 88(1)(a)(ii) of the Worker Screening Act 2020 is not admissible in evidence in criminal proceeding or proceeding for the imposition of a penalty.

Ms K Ashdown and Ms C O'Halloran, Office of the General Counsel for the department

1. One of the main purposes of the Worker Screening Act 2020 (Vic) (WS Act) is:[1]

to assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children.

1. The WS Act replaced the former Working with Children Check Act 2005 (Vic) which had the same legislative purpose.
2. Mr Boothey is 48 years old and has held WWC clearances for more than seven years, from 16 August 2017 to 17 February 2025. He works in coaching roles in sports - including men's and women's amateur football - and throughout his professional and sporting career has acted in volunteer and mentoring roles in and around sports. He has also held other leadership roles.
3. He obtained his first WWC clearance in 2017 under the (now repealed) Working with Children Check Act 2005 (Vic). On 30 October 2022 Mr Boothey applied to renew his clearance pursuant to the current WS Act and was granted a volunteer WWC clearance on 15 November 2022.[2] The Secretary's decision granting him his renewed WWC clearance was made taking into account Mr Boothey's police record. That record disclosed earlier 2020 charges and offences against an adult, who I shall call 'A', with whom he had previously been in a six-year relationship, living together for four, as well as two older offences, also against adults, in 1997 and 2000.[3]
4. On 17 February 2025 Secretary's delegate revoked his volunteer WWC clearance following a 'WWC Category C re-assessment' under s 87 of the WS Act triggered by advice the Secretary received from Victoria Police about further offences committed against an adult in February 2024.
5. It is that 17 February 2025 re-assessment decision that is before the Tribunal for review in this proceeding, and to which this application for stay relates pending its review by the Tribunal (which will occur at a Tribunal hearing at a later date).
6. On 14 March 2024, Victoria Police had notified the Secretary[4] of 'charges' for various offences in the period 10 - 29 February 2024.[5] The adult victim was a female - who to preserve her anonymity shall be referred to as 'C' - with whom Mr Boothey had been in a domestic relationship for approximately nine months, ending on or around 10 February 2024. They did not share children. C (who is 2 years older) has adult children from a previous relationship.
7. Because of the notification of the February 2024 charges, the Secretary was required by the WS Act to reassess Mr Boothey's eligibility to have a WWC clearance. The Secretary informed him about that on 2 April 2024,[6] inviting his response, which he subsequently provided to the Secretary in writing on 3 May 2024.[7] It appears no re-assessment decision was concluded by the Secretary. Mr Boothey therefore continued to hold his WWC clearance.
8. Four months later, on 4 September 2024, Victoria Police notified the Secretary that on 29 August 2024 Mr Boothey had been sentenced for two offences covered by the February 2024 'charges' notified to the Secretary in March 2024.[8] The Secretary was also informed that:
   1. all other charges about which the Secretary had been notified in March 2024 had, according to the Secretary's submissions, 'been withdrawn as duplicate charges that were consolidated into other charges that proceeded';[9] and that
   2. Mr Boothey had received a cumulative sentence of 150 hours community service, to be undertaken by him by the end of 2025.[10]
9. After receiving that September 2024 notification, on 27 December 2024 the Secretary sent Mr Boothey a letter advising him that, based on the offences for which he had been recently convicted on 29 August 2024 and 'other information of which the department is aware (refer attached)', that 'the department proposes to give you a WWC Exclusion'. The Secretary's letter invited him by 28 January 2025 to make a 'written submission' to the department 'if you believe you are eligible to retain your WWC clearance'.[11] The letter directed him specifically about 12 points he 'should include in [his] submission', and also told him that (underlining in the original):

References > > The department requires written references from people who have observed you with children, or working with children, and are able to comment on your suitability to work with children. > > It is preferrable, but not essential, that your referees are aware of your offence history. Please indicate if your referees are aware of your offence history and note that we may contact your referees by telephone following any written information they provide.

10. On 13 and 30 January 2025, Mr Boothey provided responses to the Secretary, which the Secretary accepts 'included both submissions and character references'.[12]
11. Mr Boothey, who was unrepresented at the stay hearing before me, informed the Tribunal that he was also unrepresented at his Magistrates' Court plea hearing in Geelong when he received his community service sentence. There is no record before the Tribunal of the Magistrates' sentencing remarks. However, as appears from the s 49 materials[13] filed with the Tribunal by the Secretary, many references of Mr Boothey's good character that were provided to the Magistrate were also given to the Secretary for her delegate's consideration on re-assessment of his WWC clearance.[14]

1. On 17 February 2025 the Secretary, through her delegate, made her reassessment decision.
2. In deciding to revoke Mr Boothey's WWC clearance and give him a WWC exclusion, the Secretary's delegate provided a written 'Statement of Reasons for Decision' dated 17 February 2025, which stated in para 18 that the re-assessment was based on the offences of which he had been 'charged' (as notified by Victoria Police 14 March 2024)[15] and concluded by informing him that:[16] (my emphasis)

1. The Secretary must determine not to revoke the WWC Clearance on a WWC category C reassessment unless satisfied as to the considerations in section 87(1)(a) or (b) of the Act.
2. Having considered the information provided in regard to the matters set out in the (a) to (j) factors above, I am satisfied that the person having the WWC Clearance would pose an unjustifiable risk to the safety of children.
3. Furthermore, I am satisfied that a reasonable person would not allow their child to have contact with the holder of the WWC Clearance while the holder was engaged in any type of child-related work.
4. Accordingly, I revoke the WWC Clearance that was given to Michael BOOTHEY on 15 November 2022 and give them a WWC Exclusion.
5. Mr Boothey applied to the Tribunal on 16 March 2025 to review the Secretary's reassessment decision revoking his WWC clearance and issuing him with a WWC exclusion.
6. Pending its review by this Tribunal, Mr Boothey seeks a stay of the Secretary's reassessment decision.

LEGAL FRAMEWORK FOR REVIEW & STAY APPLICATION TO VCAT

1. The WS Act forms part of the key legal framework under which Mr Boothey's application for review will be assessed by the Tribunal at final hearing.
2. That legal framework requires a brief explanation.
3. Section 87 of the WS Act sets out the test the Secretary and her delegate must apply in making a category C re-assessment decision at first instance. The '(a) to (j) factors' referred to in Statement of Reasons for Decision dated 17 February 2025 are those set out in s 87(2). Section 87 relevantly states: (my emphasis)

87 Determination of WWC category C re-assessment

(1) The Secretary must not revoke a WWC clearance on a WWC category C re-assessment unless -

(a) the Secretary is satisfied that the person holding the WWC clearance would pose an unjustifiable risk to the safety of children having regard to the factors set out in subsection (2); or

(b) the Secretary is satisfied that -

(i) a reasonable person would not allow their child to have direct contact with the holder of the WWC clearance while the holder was engaged in any type of child-related work; or

(ii) the holder's engagement in any type of child-related work would pose an unjustifiable risk to the safety of children.

(2) For the purposes of subsection (1)(a), the Secretary must have regard to -

(a) the nature and gravity of the conduct and its relevance to child-related work; and

(b) the period of time since the holder of the WWC clearance engaged, or allegedly engaged, in the conduct; and

(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and

(d) in the case of an offence, the sentence imposed for it; and

(e) the ages of the holder and of any victim at the time the holder engaged, or allegedly engaged, in the conduct; and

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the holder engaged, or allegedly engaged, in it; and

(g) the holder's behaviour since the holder engaged, or allegedly engaged, in the conduct; and

(h) the likelihood of future threat to a child caused by the holder; and

(i) any information given by the holder in, or in relation to, the re-assessment; and

(j) any other matter that the Secretary considers relevant to the re-assessment.

1. Before making that decision, the Secretary must comply with s 88. I set it out in full as it is relevant to this stay application. Apart from setting out the matters of which the Secretary must give a 'written notice' to the holder of a WWC clearance before 'finally deciding the re-assessment',[17] s 88 also describes what was the 'status quo' immediately before the Secretary's final decision, being the decision which is under review in this proceeding. Section 88 states: (my emphasis)

Division 4 - Intention to revoke WWC clearance

88 Submission sought from holder before determining to revoke WWC clearance

(1) If the Secretary proposes or is required under section 83, 85 or 87 to revoke a person's WWC clearance, the Secretary must, before finally deciding the re-assessment -

(a) give a written notice to the person that -

(i) informs the person of the proposal or requirement; and

(ii) states the information about the person of which the Secretary is aware; and

(iii) invites the person to make a submission to the Secretary in writing or in another form approved by the Secretary within the timeframe specified in the notice; and

(b) give an interim WWC exclusion to the person.

(2) The period specified in the notice under subsection (1) must not be less than -

(a) in the case of a WWC category A re-assessment, 14 days; and

(b) in the case of a WWC category B re-assessment or a WWC category C re-assessment, 28 days.

(3) The Secretary may extend the period specified in a notice for a WWC category A re-assessment if the person satisfies the Secretary that it is appropriate to allow the person further time to make a submission.

(4) Before finally determining whether to revoke the person's WWC clearance, the Secretary must consider any submission made by the person in response to a notice under subsection (1) within the specified period, unless the person notifies the Secretary that the person does not want to make a submission.

(5) Any information given by the person under subsection (1)(a)(iii) is not admissible in evidence against the person in a criminal proceeding or a proceeding for the imposition of a penalty, other than -

(a) a proceeding in respect of an offence against this Act; or

(b) a proceeding in respect of the falsity or misleading nature of the information.

(a) gives the person who holds the WWC clearance an interim WWC exclusion under subsection (1)(b); and

(b) finally determines not to revoke that WWC clearance -

the Secretary must give notice in writing to the person of the determination not to revoke the WWC clearance.

1. In this Tribunal proceeding, Mr Boothey seeks a review of the Secretary's 17 February 2025 re-assessment decision under s 87 of the WS Act, a review he is entitled by law to seek from the Tribunal under the WS Act and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).[18]
2. The Tribunal's jurisdiction to review the Secretary's WWC category C reassessment decision in this case must be exercised in accordance with s 108 of the WS Act. That section requires the Tribunal to make its own decision on the evidence presented to the Tribunal by the parties, in accordance with the tests prescribed.[19] It is also subject to s 11 which provides that when the Secretary or the Tribunal makes a decision under the WS Act in relation to the holder of a WWC clearance, 'the protection of children from sexual or physical harm must be the paramount consideration'.[20]
3. When conducting a review of the Secretary's administrative decision at first instance, s 108 of the WS Act sets out the 'test' which the Tribunal must apply. It states: (my emphasis)

(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.

(3) 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.

1. Section 65(2) lists the matters to which the Tribunal must have regard on review. It provides as follows:

(2) For the purposes of subsection (1)(a), the Secretary must have regard to -

(a) the nature and gravity of the conduct and its relevance to child-related work; and

(b) the period of time since the applicant engaged, or allegedly engaged, in the conduct; and

(c) in the case of an offence, whether a finding of guilt or a conviction was recorded for it or a charge for it is still pending; and

(d) in the case of an offence, the sentence imposed for it; and

(e) the ages of the applicant and of any victim at the time the applicant engaged, or allegedly engaged, in the conduct; and

(f) whether or not the conduct has been decriminalised or has ceased to be subject to disciplinary charges since the applicant engaged, or allegedly engaged, in it; and

(g) the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct; and

(h) the likelihood of future threat to a child caused by the applicant; and

(i) any information given by the applicant in, or in relation to, the application; and

(j) any other matter that the Secretary considers relevant to the application.

1. Section 109 also grants information gathering powers in aid of Tribunal proceedings and provides:
   1. Secretary may request information for purposes of VCAT proceeding

The Secretary, for the purposes of assisting VCAT in relation to the determination of an application made under this Part, may make enquiries to, or seek information from, any person or source that the Secretary thinks fit, including but not limited to -

(a) the Director of Public Prosecutions and any employee within the meaning of the Public Administration Act 2004; and

(b) any disciplinary or regulatory entity

1. The 'giving' of the 'interim WWC exclusion' that preceded the Secretary's final re-assessment decision is not under review in this Tribunal proceeding, and is not capable of being reviewed by the Tribunal. This is because the 'giving' of an 'interim WWC exclusion' is not itself a 'decision' of the Secretary, but something mandated by the WS Act in the circumstances of s 88(1).
2. As I shall discuss further in these reasons for granting a stay of the Secretary's decision pending hearing and determination of the Mr Boothey's review application, the statutory mechanism of an 'interim WWC exclusion' operates to balance the public interest of protecting children from harm against the interest of an individual to engage in community life while their WWC exclusion is under re-assessment. It is therefore an important consideration to be taken into account by the Tribunal when considering an application to stay the current decision under review.
3. I now turn to discuss the principles by which the Tribunal assesses a stay application of an administrative decision - such as the Secretary's 17 February 2025 reassessment decision - when it is under review in VCAT.

1. The discretionary principles under which the Tribunal assesses whether or not to grant a stay of an administrative decision of an earlier decision maker pending hearing of a review application by the Tribunal are well known. They are applied in the following legal context:
   1. Unless stayed by Tribunal 'order' under the s 50(3) of the VCAT Act, the bringing of a VCAT 'proceeding for review' of an administrative decision by a 'decision maker' - in this case the Secretary - does not affect the operation of that decision maker's decision that is under review, or prevent the decision maker taking of action to implement the decision: see VCAT Act, s 50(1), (2)(b) and (3).
   2. A stay 'order' by the Tribunal is, by its nature, interlocutory.[21] What that means is that it is not a final decision but temporary, often required to be made quickly and that the evidence on which the stay is assessed by the Tribunal is taken at its face value: there is not normally cross-examination on it and no findings of fact are made based on it. The evidence is necessarily incomplete: further evidence may be relied on at the hearing of the review application.
   3. Granting or refusing a stay does not in any way signal the final outcome of a review application.[22]
2. The power to grant a stay under section 50(3) of the VCAT Act is discretionary. Although the VCAT Act does not expressly stipulate any particular factors to guide the exercise of the Tribunal's discretion on an application for a stay, it is nevertheless a discretion exercised in a principled manner, and the following matters are relevant to consider:[23]
   • [1] first, whether the failure to grant a stay would render the application for review nugatory;
   • [2] second, whether there is a serious question to be tried on review;[24]
   • [3] third, whether or not a party will suffer prejudice;[25]
   • [4] fourth, whether it is in the community or public interest to grant a stay;[26]
   • [5] fifth, how long it will be before the application for review can be heard;[27] and
   • [6] sixth, in an appropriate case and as relevant:
     1. the extent to which the applicant for review has an incentive not to engage in further inappropriate behaviour for the duration of the proceeding;[28] and
     2. the relevant behaviour of the applicant for review.[29]
3. These were accepted by the Secretary in her written and oral submissions of her Counsel, who appeared at the stay hearing on 3 April 2025.
4. As Mr Boothey was unrepresented, I explained them to him at the commencement of the stay hearing.
5. At the stay hearing, Mr Boothey and Counsel for the Secretary made submissions to me, pressing the factors they considered relevant to the exercise of the Tribunal's discretion whether to grant or to refuse a stay, the Secretary opposing Mr Boothey's application on the basis that she accepted factor [2] that there is a serious question to be tried on review of her delegate's 17 February 2025 decision.
6. Her concession in this stay application before the Tribunal that there is 'a serious question to be tried on review', is an important concession.
7. It is a concession that there is a serious issue to be tried on whether the Tribunal might make a different decision to that of the Secretary's delegate at first instance applying the test VCAT must apply under s 108 of the WS Act. However, the Secretary's concession does not mean that factor can be put completely to one side.
8. The Secretary, having made the concession, also submitted that in in this case that stay factor 'does not favour the grant of a stay' because of the other stay factors she relies on.
9. As I shall discuss, the other stay factors she relies on under factor [1] are better addressed under factors [3], [4], and [6](b), where the Secretary submits that although there is a serious question to be tried on review by the Tribunal, the Secretary's decision under review should be upheld on review by the Tribunal.
10. I shall deal with each in turn.

[1] Whether the application for review would be rendered nugatory?

1. This first discretionary stay factor is the dominant consideration.[30] In this case it is also related to the third.
2. The consideration is if the administrative decision under review by the Tribunal is not stayed pending final hearing and determination, whether the continued operation of the decision during its review will cause 'irreparable' harm to the applicant. Using the language of the Secretary's written submissions at para 38: (my emphasis)

Although not the sole consideration, whether or not refusing the stay will render the application nugatory was considered in Bell & Eager to be 'the dominant principle'.[31] The 'most important consideration' is a concern to grant stays where to fail to do so would render nugatory the right of review because irreparable damage has been done by the operation of the first instance decision before the review can be completed and that damage cannot be undone even if the Applicant succeeds.[32]

41 The Secretary contends it will not, because Mr Boothey's pre-existing WWC clearance only related to volunteer work and not paid work. Therefore, she contends, he would not have been able to use it to undertake paid work anyway[33] and therefore would, in any event, have lost the employment opportunity that was to have commenced on 3 February 2025.

1. That submission is an oversimplification of what is apparent in the s 49 materials filed by the Secretary. It also does not respond to the submission Mr Boothey put to the Tribunal at the stay hearing.
2. What he was hoping to do was to be able to apply for a WWC clearance for paid work for a new role he had been offered by the Shire council, one he described to the Tribunal as a 'dream job' as sports facilities manager for the council, with its 'world class' hockey field. As the materials he had provided to the Secretary show, after he had been notified of the Secretary's re-assessment letter dated 27 December 2024 and been given an 'interim WWC exclusion' and provided his response to it on 13 January 2024,[34] a fortnight later on 30 January 2024 he had asked the department when his reassessment would be completed, explaining why he needed to know with some urgency:[35] (my emphasis)

20 January 2025 I was offered a position of employment with a government agency with a start date scheduled for 3 February 2025. Condition of employment is I must have an employee WWC Clearance. I was recently given an Interim WWC Exclusion which I submitted a written submission in response on 13 January 2025.

I would appreciate if you can advise me when a decision on my clearance can be expected to be made so I can notify HR department as there is only two working days remaining prior to my expected starting date.

On 21 January 2025, I spoke with WWCCV case officer ... who was unable to provide an estimated date of receiving a WWCC decision.

On 29 January 2025, I called the WWCCV on 1300 652 879 for further assistance and was advised to send this email to reach the appropriate department.

I am currently in the process of relocating from the ... Suburbs of Melbourne where I've lived for the past 38 years, to County [sic] Victoria, for the purpose of providing my services to the community through participation in sport.

As mentioned in my recent submission, I have an impeccable reputation throughout the community which I've sustained over a 30 year period with my position as a leader, coach and mentor to children, woman and men.

It should be noted, the eight witness statements provided, indicated full confidence in entrusting me in the care of their own children and those of others. They also mention having no reservations about endorsing myself for coaching roles or other responsibilities within the club. These statements come from prominent individuals who make reference of their full understanding of the alleged offending.

I'm aware when considering whether an individual is to be granted a WWC Clearance, the paramount consideration is the protection of children from sexual or physical harm.

My offending is all in context of adult relationships coming to an end...

1. As he said in his 30 January 2025 letter, he could not start that 'government agency' role without 'an employee WWC Clearance'. But the difficulty he faced was that while his existing WWC clearance was under re-assessment and he was subject to an 'interim WWC exclusion', he was precluded from applying for a further WWC clearance for that new role. He needed to let the 'HR department' know the outcome of his pending re-assessment.
2. The Secretary's submitted that:[36]

The power to grant a stay is not a power to remove every inconvenience, every embarrassment, or every annoyance that an applicant for review might possibly encounter. Rather it is a power in the Tribunal to balance these things off in the expectation that an applicant does have to endure some disadvantages even if that applicant is ultimately successful in the review application. That is reflected in the balancing of factors in the exercise of the Tribunal's discretion.

1. The Secretary submitted that the materials provided by Mr Boothey showed that the job reference from the club president in rural Victoria, where he was to have been the senior football coach for 2025, states that following the WWC exclusion 'The club has since made alterations relevant to the conditions of not having a WWC':

Therefore, it appears that the Applicant can remain as head coach of the senior team, but is prevented from coaching/mentoring the junior teams. The football club's ongoing support for the Applicant suggests that he will not suffer irreparable harm if the stay is not granted, and would not render the application nugatory.

1. That, again, does not fully reflect the actual position affecting Mr Boothey's ability to participate in community life, either back in Melbourne or in the country region to which he had told the department in his 30 January 2024 letter had recently moved 'for the purpose of providing my services to the community through participation in sport'.
2. What the earlier 'job' reference from the rural football and netball club president had said in late 2024 - after being informed that the Secretary was re-assessing Mr Boothey's WWC clearance - was that:[37] (my emphasis)

I am writing to provide a reference for Michael Boothey to assist him in his pursuit of new employment.

Michael was appointed as the senior football coach at our club in November 2024 after we received an outstanding application and following multiple meetings where Michael presented himself in a thorough and professional manner. I personally reached out to people associated with his previous football clubs (through contacts not listed by Michael) and received a very high level of praise and recommendation which lead to Michael's appointment at our club.

Since his appointment, Michael has provided our club with assurance and validated our appointment by showing his knowledge, experience and passion in sports by creating, providing and explaining training and game plans, recommended innovative and exciting club related activities and has already created a very positive environment with great respect from our existing playing group. His contribution to date has also had a positive impact with our netball and Auskick group with exciting organisational advice leading to some exciting changes there as well. Michael would be highly suited for employment that requires a high level of organisational skills, dedication and relationship building.

1. What the later 'character' reference from the same football and netball club president had said in March 2025, to the decision maker making the re-assessment, was simply to note the arrangements the club has been able to make to give Mr Boothey a different and more restricted role which did not require any WWC clearance. In it the club president had also given his own assessment of Mr Boothey's character to the department:[38]

I am writing to provide a reference for Michael Boothey to assist him in his application for a review of a decision in regard to revoking his WWC clearance.

Michael was appointed as the senior football coach at our club in November 2024 after we received an outstanding application and following multiple meetings where Michael presented himself in a thorough and professional manner. I personally reached out to people associated with his previous football clubs (through contacts not listed by Michael) and received a very high level of praise and recommendation which lead to Michael's appointment at our club.

Since his appointment, Michael has provided our club with assurance and validated our appointment by showing his knowledge, experience and passion in sports by creating, providing and explaining training and game plans, recommended innovative and exciting club related activities and has already created a very positive environment with great respect from our existing playing group. His contribution to date has also had a positive impact with our netball and Auskick group with exciting organisational advice leading to some exciting changes there as well.

Unfortunately for many, Michael approached me a few weeks ago to inform me that due to a situation that he had previously informed me about, his WWC pass had been revoked and that the club had to consider this with the current arrangements for him assisting younger members of our club and at this stage, Michael also provided me a 44 page WWC Exclusion letter dated 17th Feb, 2025. The club has since made alterations relevant to the conditions of not having a WWC. Thankfully for our club, by this this time Michael had shown a very high level of ability in coaching and supporting players of all ages and abilities at the club and is very much appreciated and respected by everyone there due to his fresh, modern and supportive coaching and development techniques and strategies. These attributes are very highly desired and very hard to get in remote, regional areas like ours and for our juniors to be denied Michael's coaching and mentoring abilities is devastating. Michael's support has extended well past football with Michael providing compassion and support to some of our indigenous footballers with multiple losses of indigenous elders in our community and club.

I personally have a 17-year-old son that plays in the senior team and have absolutely no issue with Michael coaching him and have seen a huge development in his own ability directly due to Michael's influence and my sons respect for him.[39]

1. What the Secretary's submission does not address at all is the impact on an individual of not being able to participate in a new community, and in community activities as a volunteer.
2. Mr Boothey told the Tribunal during the stay hearing of some of the steps he had taken since his conviction for offences on 4 September 2024.
3. He confirmed what was in his written materials, that he had moved away to the country from his home in suburban Melbourne, to start his life afresh and well away from his former partner 'C'. He also told the Tribunal that he had a lot to deal with in responding to the 27 December 2024 re-assessment notice and obtaining character references.
4. He told the Tribunal that he had now made arrangements to do his community service which was to commence shortly with an induction. He said he was hoping to complete the 150 hours during the upcoming public holiday period, taking 10 days off the 'casual' work he is currently able to do without a WWC clearance. He also explained that because of his back injury, the community service work he can perform needs to be suitable, which I interpret to mean it must take into proper account his personal situation from an occupational health and safety perspective.
5. He also told me that moving away from Melbourne has had a severe impact on him. All his friends and family are back in Melbourne. Alone, he has had to make new connections and start a new life. He told me that volunteering and community had been a big part of his life throughout his career. It is apparent from his references, which I take at face value for the purposes of this stay application, that volunteering is one of the ways that he has made a positive community contribution. I also record that the current restrictions on him arising from the Secretary's decision under review have, in Mr Boothey's words, left him feeling 'isolated' at times.
6. While I make no findings, I do record that his eight character references attest to what he has done during his life. He told me that what he was now permitted to do with his skills, with the restrictions currently in place, falls short of what he is capable of doing in executive, coaching, leadership and mentoring roles.
7. Therefore, I am quite satisfied that there is a high probability that without a stay, 'irreparable damage will be done by the operation of the first instance decision' before the review can be completed and that such damage cannot be undone even if the Mr Boothey succeeds.
8. In Arulanantham v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 124 at [17], Deputy President Macnamara (as Judge Macnamara then was), referred to his earlier statement in AZD v Secretary to the Department of Justice [2009] VCAT 977, in which he had observed:

generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications...[40]

1. I note that the Secretary accepts this proposition at para [54] of her written submissions as it affects the question of 'prejudice to the applicant'. It must follow that it also affects this first stay factor as it affects his inability to do unpaid work on a voluntary basis under the WWC clearance which was revoked by the Secretary's 17 February 2025 decision, that is under review in this proceeding.
2. Therefore, this first discretionary stay factor favours Mr Boothey.

[2] Whether there is a serious question to be tried on the review?

1. It is incumbent on the Tribunal in determining whether to permit a stay to ascertain whether there is a serious question to be tried on the review.[41] This factor is 'a matter of some importance'.[42]
2. I accept the Secretary's written submission that there is a 'serious question to be tried'.
3. I form no view, and it is inappropriate for the Tribunal to express a peremptory view on the material filed for this stay application, about the matters raised by the Secretary in para 47 and 48 of her submissions. As the Tribunal observed in Katz v Medical Board of Australia [2020] VCAT 589 at [29]:[43] (my emphasis)

In considering whether there is a serious issue to be tried, it is proper to consider the likely outcome of the review application in light of what are fundamentally uncontested matters, but it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of evidence. The Tribunal should be mindful of the fact that the evidence may be at an early stage.

1. I note, however, that the matter raised by the Secretary in para 49 of her written submissions appears to have been based on a lack of understanding by the Secretary's delegate about the Mr Boothey's compliance with 'Special Conditions' of his Community Corrections Order for an earlier 2020 sentence, about which, as I mentioned at earlier, he had previously been assessed by the Secretary and which had resulted in the Secretary issuing him with a WWC clearance on 15 November 2022.[44] The Secretary's Counsel conceded in the stay hearing that the Secretary was unaware that Mr Boothey had engaged in face to face consultations with a psychologist, something Mr Boothey told the Tribunal during the stay hearing.[45]
2. It is also not apparent that the Secretary's delegate, in making the decision[46] currently under review, has considered the potential for application of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) to either the proper interpretation of the current Act or to the Secretary's responsibilities under s 38 as a 'public authority' within the meaning of the Charter.
3. Her Counsel referred the Tribunal to a Supreme Court decision under the former Act of Justice Bell in ZZ v Secretary to the Department of Justice [2013] VSC 267 (ZZ). On instructions, but without being in a position to make any submissions about the applicability of the Charter to the current WS Act, Counsel informed the Tribunal that the Secretary's position was that Justice Bell's decision in ZZ stood for the proposition because the legislation is specific about the factors to be taken into account as a decision-maker, the Secretary or her delegates do not need to consider the Charter.
4. However, a close reading of the ZZ case shows that Justice Bell actually held the Charter was applicable to the interpretation of the former legislation and that the former Act engaged or potentially engaged the human rights promoted and protected in both s 13(a)[47] and s 17[48] of the Charter. What he appears to have held in the circumstances that arose in that case concerning a decision about an initial assessment for clearance,[49] was that the obligation on a 'public authority' under s 38 of the Charter 'did not arise' under the terms of the Charter notices that had been served in that case under s 35(2) of the Charter.[50]
5. The Secretary did not suggest that there is, and there is not, any override declaration under s 31 of the Charter affecting the new WS Act.

Relevance of the Charter to merits review of a re-assessment decision

1. In this 're-assessment decision' case there may well be a question to be considered under s 38 as well as s 32 of the Charter. That is a further serious question to be tried by this Tribunal on review of the first instance administrative decision in this case.
2. I mention briefly why that is so. The main purpose of the former WWC Act, like the current WS Act, is 'to assist in protecting children from sexual and physical harm'.[51] In examining whether the risk is an 'unjustifiable' risk, after considering the Tribunal's decision in PJR v Secretary to the Department of Justice (Occupational and Business Regulation) [2006] VCAT 2455; (2006) 25 VAR 336 (PJR) (Justice Morris, President), Justice Bell in the Supreme Court adopted the words of Justice Morris sitting as VCAT President that:

Although we often use binary language to describe a risk to safety (such as "safe" or "unsafe"), in truth there is an infinite gradation of circumstances from absolutely safe to absolutely unsafe; and a judgment will be required to identify what is "safe" and what is "unsafe". By using the adjective "unjustifiable", the parliament has recognised this gradation of risk and has rightly put the focus on whether the risk is unjustifiable, having regard to specified matters.[52]

1. Justice Bell continued at [99] - [101]: (my emphasis)

I agree with Morris J. Moreover, the evaluative nature of this judgment about unjustifiable risk can be understood by examining the way in which Morris J assessed the competing facts and circumstances in the case before him.[53] It is clear from his Honour's analysis that he was satisfying himself that granting the assessment would not pose an unjustifiable risk, not whether it would pose a, any or no risk or put children at risk. Further, applying the test in this way is consistent with taking proper account of human rights.

In other cases, the tribunal has applied the 'unjustifiable risk' test under the Working with Children Act by expressly taking into account the need to balance protecting children from harm (which is the main purpose of the Act) with the right to work and freedom of choice of work. For example, Macnamara DP saw the tribunal's function in that way in AZD v Secretary, Department of Justice.[54] He asked: 'How then do I strike the balance between the two interests'[55] which are at stake? The legislation treats that as a very important question. By reference to the terms of s 13(2), the answer I would offer is: by applying the unjustifiable risk test, which involves (among other things) evaluating the nature and degree of any risk. Applying the test in that way itself ensures that the balance between those interests will be properly struck.

The approach of Morris J in PJR to the concept of 'unjustifiable risk' was followed by Kyrou J in Maleckas.[56]

1. Maleckas was a former category 2 assessment, the same as the ZZ case before Justice Bell.[57] In examining what Justice Kyrou had said about the former Act, Justice Bell also endorsed his approach: (my emphasis)

[103] In deciding whether the tribunal had misapplied the unjustifiable risk test, Kyrou J made ... many valuable statements about the determination of category 2 applications. In particular, his Honour said:

(d) The expression 'an unjustifiable risk' does not require the Secretary to be satisfied that the giving of an assessment notice would not pose any risk to the safety of children. The Secretary may give an assessment notice even if he or she is satisfied that doing so poses a risk to the safety of children, provided that the Secretary is satisfied that any such risk is not an unjustifiable risk.

(e) What constitutes 'an unjustifiable risk to the safety of children' will depend on the circumstances of each case, having regard to the matters set out in s 13(2)(a) to (j) of the [Working with Children Act] and the main purpose of that Act as set out in s 1(1).[58]

With respect, I agree with those statements.

[104] Kyrou J also said in paragraph (f) that non-sexual and non-physical harm to children may be a relevant public interest consideration under cl 102(b) of sch 1 of the Victorian Civil and Administrative Tribunal Act. I note that the Working with Children Act does not define the expression 'safety of children' which is used in s 13(2). It may be that the word 'safety' should be given its ordinary meaning of 'exemption from hurt or injury' and 'freedom from danger'.[59] So interpreted, 'safety of children' is not confined to sexual or physical harm but includes emotional and psychological harm. Children are especially vulnerable to emotional and psychological harm which can have long-term physical consequences for them. I think Parliament would probably have intended this legislation to assist in protecting children from such harm and it is not inconsistent with the purposes in s 1(1) to interpret s 13(2) in this way. I therefore agree with Kyrou J in Maleckas that non-sexual and non-physical harm must be considered when relevant, although it may be more accurate to say that this was relevant directly to 'the safety of children' under s 13(2) and not only as a public interest consideration under cl 102(b). I note that this issue does not directly arise in the present case.

[105] In Maleckas, Kyrou J held that justifiable risk does not mean 'no risk'.[60] For the reasons which his Honour gave, in my view it follows that 'unjustifiable risk' does not mean 'a risk' or 'any risk' or putting children 'at risk'. Further, as his Honour held,[61] the relevant risk in an application under the Working with Children Act is to 'the safety of children' (s 13(2)). Under the Transport (Compliance and Miscellaneous) Act, it is 'to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services' (s 169N(3)(c)(i)). The subject of those expressions is specific and not the same as, for example, 'the general community'.

[106] Kyrou J rejected the plaintiff's submissions that 'likely' in s 13(2)(h) meant 'more likely than not'. His Honour held, with respect correctly, that a chance of a future threat was a relevant consideration, by which I take his Honour to mean that the probability of that threat occurring must be assessed in the particular circumstances. Thus, as his Honour held, a minimal chance of such a threat might favour the applicant, whereas a greater one might not.[62]

[107] In its reasons for decision, the tribunal in Maleckas had referred to the absence of positive evidence 'dispel[ling] the possibility ... that [the applicant] may be a threat to children'.[63] It repeatedly referred to the question of whether the applicant posed 'no risk' to the safety of children. Kyrou J held this to be an error of law. In his Honour's view, the adoption of this reasoning meant that the tribunal had 'failed to recognise properly the nature and scope of the legal test that it was required to apply under s 13(2) and consequently [it] did not apply that test'.[64] That conclusion is consistent with the judgment of Morris J in PJR.

[108] With respect, the conclusion of Kyrou J is correct when those provisions are interpreted with the human rights which are engaged. In particular and as relevant to the present case, the proper evaluation of the nature and degree of the risk on which his Honour insisted is consistent with Australia's international obligations and compatible with the human rights in the Charter (including s 13(a) if it applies).

1. The other important point to note, as is implicit in the above discussion, is that the role of the Tribunal in a proceeding in its 'review jurisdiction'[65] - namely in an application to VCAT to review an administrative decision made by an earlier 'decision maker'[66] - is one of 'merits review'.[67]
2. In that role the Tribunal exercises the powers of the original decision maker[68] and 'steps into their shoes', in this case taking into account the different test that the Tribunal must apply on review under s 108 of the WS Act set out earlier.
3. As was recently explained by Justice Quigley in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 at [124] - [125] (dealing with the first ground of appeal in that case about onus of proof in the review application before VCAT): (emphasis added)
   1. The proposition that the Tribunal misapplied s 108 of the WS Act by creating an onus on the Secretary is misconceived. It mischaracterises the Tribunal's reasons. It also ignores the manner in which the case below was argued by the Secretary.
   2. I do not accept that the manner and process by which the Tribunal undertook the task of review under s 108 can be fairly categorised in the way that the Secretary suggests. The Tribunal standing in the shoes of the Secretary on review is entitled to look at all of the material that was before the Secretary and make an assessment of it. The Tribunal formed a different view of the seriousness of the allegation and this was a matter which was open to it to evaluate. The Secretary's argument conflates the trigger for the process which led to the Secretary's decision with the merits of the decision.
4. Accepting at [143] that 'It is clear that the onus of demonstrating that he should be given a WWC clearance was on Rev Loos', Justice Quigley explained at [128] - [142] why the approach taken on review by the Tribunal had not been in error: (emphasis added)
   1. The manner in which the Secretary ran its case at the Tribunal was to forcefully put that the alleged conduct was proven. The Secretary's submissions to the Tribunal equated the 'substantiated' finding in the Kooyoora Report as being the foundation upon which the Tribunal should be satisfied that the alleged conduct was established and its assessment based on that proposition. When challenged about this proposition, the Secretary submitted that the evidence the Tribunal should take into account included the statements obtained by the investigators (notwithstanding that they were unsworn, often unsigned, incomplete and untested) and the two sworn statements of the investigators as to their investigation.
   2. As the Tribunal noted in its reasons, the Secretary called no evidence. None of the individuals whose statements were included in the Kooyoora Report, nor either of the investigators, were called to give evidence at the Tribunal. The case for the Secretary was based on the documents which were produced in the Tribunal Book. Rev Loos was cross‑examined at length, taking almost one full day to do so. A character witness was also called by Rev Loos who was also cross‑examined...
   3. When squarely pressed by the Tribunal as to how the Tribunal should consider the Kooyoora Report's 'findings', the Secretary submitted that it would be wrong of the Tribunal to consider or adopt the determination of the Board, but should take all of the evidence before the Tribunal and treat that evidence holistically.
   4. In my view, this submission effectively conceded that the content and processes of the disciplinary processes and the Board's determination was material which was relevant to the Tribunal's assessment.

1. The pathway which led to the Secretary's reassessment in this case was through the disciplinary route rather than through a criminal charge or prosecution. That the considerations required to be taken into account by s 65(2) are applied to all types of conduct that fall within the WWC category C categorisation is noted. In my view, that each of the considerations to which the Secretary must have regard in s 65(2) is to be applied to the particular circumstances of the conduct in question must be understood to allow the Tribunal on review, in forming its own view of the evidence to which it must apply the statutory tests, to look at the conduct, including whether it comes before it through the disciplinary pathway or as a result of a conviction or charge.
2. I accept from a procedural point of view that the finding of substantiation in the Kooyoora Report is the trigger for the commencement of the process which led to the WWC category C reassessment. I do not, however, accept that the quality and efficacy of the Kooyoora Report's finding is out of evidentiary or relevance bounds on a review under s 108 of the WS Act.
3. I also do not accept that the Tribunal was not entitled to look at the PS Board's determinations made in respect of the disciplinary process to which Rev Loos was subject. That is not to say that it would be correct just to adopt the PS Board's findings and conclusions but, rather, these determinations and the process engaged in by the PS Board is relevant material for the Tribunal to consider in forming a view about its satisfaction of the s 108 considerations, including the nature and gravity of the conduct and its relevance to child‑related work.

1. That the Secretary took a different view of the reliability, substance and rigour of the procedures adopted in forming her own view is not determinative of the Tribunal's assessment. The Tribunal must consider the evidence before it in the framework provided by s 108. I cannot agree this limits or confines the Tribunal to a bald acceptance of the allegations made in the context of the process which led the Secretary to her decision.

1. At [14] of the Tribunal's Decision, the Tribunal framed its statutory task and said it is considering similar issues to the Church's disciplinary process but for a different purpose under a different statutory regime. The Tribunal's task was, in effect, to analyse the strength of the evidence concerning the allegations and, in light of that, to determine the extent of the risk which Rev Loos poses of causing sexual or physical harm to children. The Tribunal stated that this was to be done in the framework as set out in s 108 of the WS Act. The articulation of the task before it was correctly stated by the Tribunal.
2. The Secretary's analysis of the Tribunal's Decision seeks to characterise this observation of the Tribunal at [14] as a reversal of onus when, if read fairly and as a whole, the Tribunal's observations are merely an observation about the positive state of the evidence in Rev Loos' favour.

1. I note that s 109 of the WS Act empowers the Secretary to make enquiries or seek information from any person or source that the Secretary thinks fit for the purposes of assisting the Tribunal in relation to its determination. In making its own forensic assessment of the evidence, it is clearly open to the Secretary to provide additional evidence but that is not because there is a reversal of onus. Rather, the tactical onus may well shift depending on the state of the evidence relied upon by the applicant.[69]
2. I return to the Tribunal's functions on review under VCAT Act.
3. They are set out in s 51 of the VCAT Act which as relevant states: (emphasis added)

51 Functions of Tribunal on review

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules...

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker -

(a) is deemed to be a decision of that decision-maker; and

(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

...

(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

1. What this means in this case is that VCAT is a 'public authority' under the Charter when making a decision on review and, therefore, is directly bound by s 38 of the Charter.[70] The Tribunal, like the Secretary, must also interpret the relevant provisions of the WS Act that govern the review of her re-assessment decision in compliance with s 32 of the Charter.
2. At the review hearing in this proceeding, the Tribunal will expect to receive submissions from the Secretary - also a 'public authority' under the Charter - about the implications of the Charter to the Tribunal's review of her re-assessment decision in this case.[71] Mr Boothey, being currently unrepresented before the Tribunal, may wish to obtain legal advice or representation (if he can) to be in a position to make his submissions to the Tribunal about his application for review and this legal aspect of it.
3. The Secretary submitted that the Tribunal must accept that the applicant had pled guilty to offences which are the subject of the Secretary's reassessment decision and that he is currently 'under sentence' for those offences, his current sentence is one of community service.
4. However, as the Secretary submits, the commencement date for the community corrections order was 29 August 2024, and the completion date is 28 November 2025.[72] Thus, whether or not the discussion in Gilbert v Secretary to the Department of Government Services (Review and Regulation) [2024] VCAT 1188 (Gilbert) at [27] - [33] will be relevant at all, may depend on whether Mr Boothey has completed his current sentence at the time of hearing by the Tribunal of his application for review in this proceeding.
5. I observe that one of the decisions referred to in Gilbert (at [32] - [33]) was EDX v Secretary to the Department of Justice and Regulation (Review and Regulation) [2020] VCAT 155. Referring to Gilbert, Senior Member Tang AM noted:

[31] ... The Tribunal highlighted that the offending was 'toward an adult, not a child victim', there was persuasive evidence 'as to his progressive rehabilitation', and that the applicant 'continues to perform well in the work environment', including with respect to providing naturopathy services to 'all his patients including children'.[73] While there were some issues about the applicant's attitude and insight, Proctor DP was persuaded by his evidence, concluding that his ongoing 'compliance with the unpaid community work requirement is a matter for the Court'.[74]

[32] Similarly, in Akoka v Secretary to the Department of Justice and Community Safety,[75] the then VCAT President (Quigley J) observed that, while it is 'unusual' to seek a positive assessment notice while still subject to a sentencing order, this is 'not a bar to a positive assessment notice', particularly where the applicant is 'an unusually dedicated and positive prospect of a reformed character'.[76]

1. I agree with the Secretary's submission that the fact that Mr Boothey is under sentence is a relevant but not determinative factor going to the likely merits of his review application, but put it no higher than that in assessing its weight in this application for stay.
2. Consideration of whether there is a 'serious issue to be tried' must be assessed in the context of the 'issue to be tried' in a given legal proceeding. Taking all these considerations into account, and in expressing no concluded view on the ultimate merits of the review application, on the material currently before the Tribunal it cannot be said that there is little or no prospect that Mr Boothey's review application might not succeed at final hearing, and the Secretary did not suggest otherwise.

1. The Statement of Reasons for Decision dated 17 February 2025 informed Mr Boothey what decision had been made and what it meant, which is to say, how it affected him personally in what he was lawfully permitted to do because of the Secretary's decision: (my emphasis):

Why have I been given a WWC Exclusion?

You were given an Interim WWC Exclusion on 27 December 2024 because you had been found guilty of offences (other than a Category A or B offences) under the Act.

...

The reasons for giving you a WWC Exclusion and revoking your WWC Clearance are set out in more detail in the enclosed Statement of Reasons for Decision.

There are a number of things you need to know about the consequences of being given a WWC Exclusion. Most importantly, you must not apply for or engage in child-related work including volunteer work. If you do so, you will be committing a serious offence. It is important to note that any exemptions in the Act do not apply while you are the holder of a WWC Exclusion.

The Act requires that a copy of your WWC Exclusion be provided to any organisation that engages you in child-related work. This has been forwarded (on a confidential basis) today to the Working with Children Check Coordinators at [named] FOOTBALL LEAGUE and [regional] SHIRE COUNCIL. I encourage you to make contact with them. Details of your criminal record or the Category of your reassessment have not been included in the advice to the Working with Children Check Coordinators. It is a criminal offence for an organisation to engage a person in child-related work, including as a volunteer, if the person holds a WWC Exclusion.[77]

1. On the issue of prejudice to Mr Boothey if the stay is not granted, the Secretary submitted in her written submissions that 'this factor does not favour the grant of a stay', contending:

orders staying the effect of [the Secretary's] decision will not assist the applicant with employment.

The Secretary bases that submission on the following:

The Applicant had a volunteer WWC clearance. Further, it appears that the Applicant can remain as head coach, but cannot coach the juniors. There has been no evidence provided by the Applicant as to any prejudice that he will himself suffer if he is unable to coach any particular football team this season.

1. If the tightly focussed lens through which one assesses prejudice to a person is confined to what work they can do in the immediate term in their current role, one might come to that conclusion.
2. On an application for stay, the Tribunal looks at the effect of the decision under review on the rights of whole individual.

89 The Secretary's reassessment decision under review prevents Mr Boothey from doing the volunteer work he would wish to do,[78] which has long been a part of his personal life in the community.[79] While his pre-existing WWC clearance is under re-assessment and he is subject to an 'interim WWC exclusion', he is also effectively unable to obtain an employee WWC clearance for paid work.

1. The third stay factor therefore also favours Mr Boothey.

[4] Whether it is in the community or public interest to grant a stay

1. The Secretary submits at para [56] - [60] of her written submissions: (my emphasis)

It is ... in the interests of justice that in circumstances where a risk assessment has been undertaken [by the Secretary] and the Applicant determined to be an unjustifiable risk to the safety of children, that he not be allowed to engage in child-related work until a further risk assessment has been properly undertaken by the Tribunal.

The protection of children from sexual and physical harm is the paramount consideration in determining whether to grant the stay.[80] On the material before the Tribunal, the Tribunal should find that this paramount consideration outweighs the Applicant's private interests in staying the WWC exclusion.

In HUD, the Tribunal considered the public interest principle and purpose of the WS Act together. It involves balancing the Applicant's interest in pursuing his desired vocation, with the public interest

...

Given the Applicant's significant criminal history, including recent offending for which he is still undertaking a Community Correction Order, the Respondent submits that any inconvenience caused to the Applicant's football club should not be a defining reason for granting a stay. It is therefore not in the public interest to grant a stay.

1. Again, the Secretary's submission is confined to the applicant's current 'football club'. I note, however, from the letters from the club president in the Victorian rural community, that it is both a football and netball club.
2. Also implicit in that submission is that the Secretary intends to produce to the Tribunal evidence on which the Secretary intends to rely, on which a risk assessment can be properly undertaken by the Tribunal.
3. During the course of the stay hearing, I indicated to Counsel for the Secretary that directions would be made for the filing of medical evidence to be relied on by the parties.
4. Accepting that the Secretary has no obligation[81] to call evidence,[82]through her Counsel the Secretary did inform the Tribunal that her delegate had no medical expertise and nor did her delegate rely on any psychological or psychiatric or other particular expertise in making the statements in the reasons for decision about 'insight' into recent offending, 'impulse control', 'ability to regulate emotions', or to 'understand appropriate personal boundaries'. These and the other statements in the decision letter - often prefaced by the rider 'apparent' - expressing the delegate's observations if not opinions about 'escalating conduct' or whether there is 'remorse' demonstrated, if they are to be advanced by the Secretary on review before the Tribunal, given their nature, would require a cogent and reliable evidentiary foundation on which a 'risk assessment can properly be undertaken by the Tribunal', as the Secretary submits in her stay submissions should take place on the review of the re-assessment decision by the Tribunal.[83]
5. To afford procedural fairness to the applicant, the Secretary should also properly inform him of those matters she will be pressing on review before the Tribunal to establish the nexus between the recent offences relied on against adults and the elements of s 108 and s 65(2) of the WS Act.
6. As was explained by Justice Quigley in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107, at [179] and [218]: (italics in the original, underlining added)

[179] The Tribunal is required to be satisfied of the mandatory matters set out in s 108. The Tribunal may inform itself as it sees fit, subject to the rules of natural justice, and is not bound by the rules or practices and procedures of the superior courts except to the extent that it chooses to impose them. It is well‑established that the Tribunal's role on review is inquisitorial in nature and that the Tribunal is to make the correct or preferable decision on the material before it.[84]

...

[218] ... it is a matter for a party as to the evidence and submissions that it makes in order to establish their case. There is no obligation to call a particular witness. The obligation on the Tribunal is to allow a party a reasonable opportunity to call or give evidence and to examine, cross‑examine or re‑examine witnesses. It is not an open‑ended opportunity. The obligation on the Tribunal to accord procedural fairness is given specific statutory acknowledgement by s 102 of the VCAT Act. The ambit of s 102(1) is constrained by the ordinary requirements of relevance.[85] The procedural obligation must be considered in the context of what issues are in dispute.

1. As I have just mentioned, Counsel for the Secretary informed the Tribunal that the re-assessment decision by the Secretary's delegate was undertaken entirely 'on the papers'.
2. In contrast, at a review 'hearing' before the Tribunal the procedure is very different, and is conducted in accordance with the VCAT Act, Div 7 - which relevantly includes s 97, s 98 and s 102[86] - where evidence can be and is received by the Tribunal through the testimony of witnesses as well written evidence, and parties have the opportunity to examine, cross-examine and re-examine witnesses. As I have also discussed, the function of the Tribunal in its review jurisdiction is not an appeal: it is not to examine the 'correctness' of the prior decision or find 'error' in it. The Tribunal's function on review is as set out in s 51(1)(a), (b) and (c) of the VCAT Act, applying as the criteria for its decision making on review of a re-assessment of an existing WWC clearance under the WS Act, the statutory test set out in s 108 and s 65(2) of the WS Act set out earlier.
3. On this fourth stay factor, the Secretary her Counsel also submitted orally that it is not in the public interest to grant a stay to the applicant of the Secretary's decision under review 'purely because of his character' and 'his inability to control himself'.
4. That submission must be assessed in light of the concession just mentioned by the Secretary, that her delegate decision maker had no particular medical psychiatric or psychological expertise on 'impulse control'. It also must be assessed against the eight character referees for Mr Boothey, each of whom has provided a reference of his good character to the Magistrates' Court resulting in his recent sentence for community service, the most recent one given directly to the department (stating he had received the Secretary's decision under review) from the president of the football and netball club in the rural community where Mr Boothey is now living (to which I have referred earlier).
5. The eight character references, on their face, appear to be from 'reasonable people' who have known Mr Boothey in different contexts and in different aspects his career and personal life, all of whom speak to Mr Boothey's good character and many of whom speak of the positive impact he has on children he has engaged with in both a private and public setting.
6. During the stay hearing the Tribunal examined this character reference material and discussed it with the parties. The character referees include Mr Boothey's 2024 football coach,[87] a friend and work colleague,[88] a past employer,[89] and many others who have known and observed him in different contexts, all of whom spoke about his interpersonal relationships and community contribution.
7. One character reference in particular should be noted. The person, who I shall call 'B', had been Mr Boothey's partner before he met C (against whom he committed the offences for which he was recently sentenced in 2024 that led to the 27 December 2024 reassessment of his WWC clearance and the Secretary's decision under review). Writing to the department on 8 January 2025, B says she had also been present at the Geelong Magistrates' Court to support the victim C in July 2024, in relation applications for intervention orders made against C by Mr Boothey[90] and by C against him.[91] She says as relevant:

My name is [B], I'm 49 years of age and have a [mid-teenage] son and a [younger teenage] daughter. I'm the Director of [rehabilitation business] with clinics in [Melbourne suburb] and [Melbourne suburb].

I would like to declare I have known Michael Boothey for four years and I am completely aware of Michael's recent court proceedings having being a support person for the victim ... including attending court hearings. However, things have changed in regard to my support of the victim ...

[H]e is a man of good character ...

I'm also aware of his previous offending in 2020 as I was in a relationship with Michael during the court hearings in 2022.

Michael and I started an intimate relationship late 2020 with Michael moving in with myself and my two children in 2021. This was during the COVID-19 Lockdowns in Victorian and during the period when schools were closed. I was an essential worker which allowed me to attend my clinics and treat patients on a daily basis. This left Michael home with my two children who were 11 and 13 at the time. This would be challenging for any parent dealing with life during the COVID-19 Pandemic so this was going to be extremely challenging for Michael and therefor our relationship.

To Michael's credit, he helped the children with their home schooling and made sure they completed all set tasks by their deadline. Michael would also train my son who was 13 at the time in football as well as boxing, which for a 13 year old boy increased his confidence during a period where most kids lost theirs.

My daughter was 11 at the time and was a gymnast, so she would train at home while Michael generously provided support and encouragement to her which I'm so grateful for. Having had first hand experience witnessing Michael with not only my children but with his nieces and nephews who just gravitate to Michael and both mine and Michael's friends children, I would have no reservations at all leaving my children with Michael.

There is no doubt in my mind Michael possesses a quality that makes a difference to so many peoples lives. His time is consumed by writing his players individual reviews and is constantly talking on the phone providing support to people who have trusted him with their personal struggles.

I would be more than happy to discuss any matters in relation to Michael if required.

1. There are other 'legislative' factors in this case that point against the Secretary's submission that it is in the community or public interest not to grant a stay pending review by the Tribunal.
2. The statutory purpose and legal effect of a 'interim WWC exclusion'[92] goes a long way to balancing the public and community interests of protecting children from the risk of harm and the rights of the individual affected by it, while a re-assessment of a pre-existing WWC clearance is in progress.

a As I have said, the WS Act itself requires the Secretary to notify certain people and the holder of a current WWC clearance to notify certain people about the 'interim WWC exclusion', as set out in s 92 and s 127 of the WS Act.[93]

1. The 'interim WWC exclusion' remains in place if a stay is granted, being the 'status quo' prior to the 17 February 2025 re-assessment decision under review.[94]

1. In this regard I agree with the analysis of the WS Act undertaken by Senior Member Tang AM in McCall v Department of Government Services (Review and Regulation) [2023] VCAT 728 about the effect of an 'interim WWC exclusion'. As the Senior Member observed:[95] (my emphasis)
   1. Under sections 78(1) and 86(1) of the WS Act, the Secretary is 'required to re-assess a person's eligibility to hold a WWC clearance' in various circumstances, including where 'the person has become subject to a relevant disciplinary or regulatory finding' (WWC category C re-assessment).[10] ...
   2. Section 87(1) of the WS Act provides that the Secretary must not revoke a person's WWC clearance on a WWC category C re-assessment unless satisfied that:
      • the person 'would pose an unjustifiable risk to the safety of children' (having regard to certain factors);
      • 'a reasonable person would not allow their child to have direct contact' with that person; or
      • the person's 'engagement in any type of child-related work would pose an unjustifiable risk to the safety of children'.
   3. Prior to making a final decision, the Secretary must provide the affected person with notice of any proposal to revoke the WWC clearance and invite them to make a submission, as well as give the person an 'interim WWC exclusion'.[12] There is no jurisdiction to seek VCAT review of an interim WWC exclusion; conversely, the issue of an interim exclusion does not (of itself) prevent a person working with children.[13]
   4. If the Secretary ultimately determines to revoke a person's WWC clearance under section 87, the Secretary 'must give the person a WWC exclusion'.[14]

1. As previously noted, the issue of an Interim WWC exclusion does not ordinarily have any impact on any WWC clearance held by a person and, hence, their ability to continue to work with children.
2. However, there are exceptions. For example, where a person has been charged with or convicted or found guilty of a serious offence of the kind listed in clause 2 of Schedule 5 to the Act (such as sexual assault, a Category B offence), section 79 provides that the person's WWC clearance must be suspended and that person is 'taken to not hold a WWC clearance for the period of suspension'. It follows that it would be an offence for such a person to apply for or undertake child-related work. In those circumstances, the granting of a stay might be futile.

1. As already noted, Mr McCall held a WWC clearance and was entitled to work with children immediately prior to the Decision, despite the issue of the Interim WWC exclusion.
2. That, by force of the statute governing the re-assessment in this case, the 'interim WWC exclusion' does not (of itself) prevent a person from working with children' is a highly relevant consideration in a stay application of the Secretary's decision under review. The Parliament has, by the WS Act, in effect balanced the interests legislatively pending completion of the re-assessment. The statutory protection against risk to children afforded by the WS Act pending re-assessment (subject to the exceptions mentioned by SM Tang AM, such as a Category B offence) is to maintain a pre-existing WWC clearance in place subject to the 'interim WWC exclusion'. This is made expressly clear by Parliament in s 78(3), which provides:

(3) For the purposes of Part 6.2 or 6.3, a person must be regarded as still holding a current WWC clearance if -

(a) an interim WWC exclusion has been given under section 88(1)(b); and

(b) the person's WWC clearance -

(i) has not been revoked under section 91 following the re-assessment; or

(ii) has not been surrendered under section 93; or

1. Given how the statutory scheme operates as a whole, and the legislative choice made by Parliament to balance the risk of harm to children against the rights of an individual to do child related work while a reassessment decision is made by the Secretary, when that reassessment decision is subject to merits review in this Tribunal - under a statutory right of review - logic dictates that the same balancing of interest should also prevail.
2. While not determinative in all stay applications, the fact that the 'interim WWC exclusion' will be in place pending re-assessment (in all but statutorily defined cases) under the WS Act also serves to support the conclusion that, unless there is something else to militate against granting a stay of the re-assessment decision pending its review by the Tribunal, the WWC clearance holder's engagement in any type of child-related work would not pose an 'unjustifiable' risk to the safety of children in the sense described by Bell J earlier during the re-assessment process.
3. In this case, the statutory 'risk' protection that the WS Act affords to the public, if a stay of a decision made under that Act is granted, exists through the legislative regime that requires notification of the 'interim WWC exclusion' in accordance with s 92 and s 127 of the WS Act.
4. Taking all these things into consideration, this fourth stay factor favours the applicant for stay.

[5] How long it will be before the application for review can be heard

1. At the stay hearing, the Secretary asked for eight weeks to obtain further evidence on which she intends to rely in support of the case she intends to bring on review by the Tribunal of her 17 February 2025 reassessment decision.
2. Mr Boothey is then entitled to have time to prepare his response to the case and any new evidence to be put against him. On review by the Tribunal, like the Secretary, he is entitled to produce further evidence to the Tribunal. He is also entitled to obtain legal advice about it (which would be desirable in a case such as this). Given the terms of s 108 and s 65(2) of the WS Act (set out earlier) he would be well advised to obtain legal assistance and advice.
3. The fact that the Secretary needs eight weeks cannot be held against the applicant for review. Presumably as a model litigant, the case is already under preparation by the department given that Mr Boothey made his review application to the Tribunal on 16 March 2025.
4. It is likely that the review will not be heard by the Tribunal for some time after he files his materials. That delay too would prejudice him in the work that he is permitted to do on a volunteer basis in the community.
5. This fifth factor also favours Mr Boothey as the applicant for stay.

1. As I have said, in a given case:
   1. the extent to which the applicant for review has an incentive not to engage in further inappropriate behaviour for the duration of the proceeding;[97] and
   2. the relevant behaviour of the applicant for review, can be relevant.[98]
2. In this case, Mr Boothey has a strong incentive not to engage in inappropriate behaviour. He told the Tribunal that he has moved away from Melbourne to start his life over. He said that his future is at stake, his 'entire future'. He has a strong incentive not to jeopardise that.
3. Mr Boothey told me he felt remorse. He also told the Tribunal that he had had several one-on-one sessions with a psychologist and that he found it 'beneficial' and 'took something from it'. The Secretary, by her delegate's decision under review and through her Counsel's submissions at the stay hearing, is clearly interested to see remorse and accountability demonstrated for past offending, and full insight into the impact of past conduct. I say no more.

1. It is desirable to return to the topic of the legislative regime that will remain in place pending review of the Secretary's reassessment decision by the Tribunal.
2. On 27 December 2024 the Secretary informed Mr Boothey by letter that he had been given an interim WWC exclusion and the reasons for it. The interim WWC exclusion was attached.[99]
3. It was accompanied by an Information Sheet for Organisations about the legal effect of the interim WWC exclusion.[100] I set it out below:

1. As I have already said - and as the Secretary's information sheet makes plain - an 'interim WWC exclusion' does not revoke the WWC clearance.[101]
2. In this application for review before the Tribunal, what that means in this case is that on making the stay order, the 'interim WWC exclusion' remains in place as the status quo pending review by the Tribunal.[102] The protection the Act affords to the risk of safety to children is that of notification of the interim WWC exclusion set out in s 92 and s 127.

1. For these reasons, the Tribunal has determined to grant Mr Boothey's application for a stay of the Secretary's re-assessment decision to revoke his WWC clearance and issue him a WWC exclusion on 17 February 2025.
2. The Tribunal's orders dated 8 April 2025 granting the stay of operation of the Secretary's decision under s 50 of the VCAT Act were made without condition, none being sought by the Secretary.
3. In the orders granting the stay and setting down a timetable for filing and service of evidence and submissions, I noted that it had been contemplated by Senior Member R Tang AM in McCall v Department of Government Services (Review and Regulation) [2023] VCAT 728 at [37] - [40] that further relief may be necessary from the Tribunal to give effect to a stay order. The Senior Member also noted that it is the Secretary's responsibility, as a model litigant, to actively restore an applicant to the position they were in prior to their decision to revoke the applicant's WWC clearance and issue a WWC exclusion.
4. I agree.
5. It was not traversed in the stay hearing on 3 April 2025 the full extent of the practical steps the Secretary would need to take to give effect to a stay and to put Mr Boothey in the position he was in prior to the 17 February 2025 re-assessment decision. It was not clear whether his WWC clearance 'card' has been returned, and the Secretary had it, or whether it was destroyed.
6. However, as the Tribunal stated in its stay orders, while the Secretary's decision is under review by the Tribunal, the Tribunal expects that Mr Boothey will have his WWC clearance (and card) restored by the Secretary subject to the 'interim WWC exclusion' (as that was his position immediately prior to the decision on 17 February 2025). That would mean that Mr Boothey is subject once again to the obligations and restrictions that attach to an 'interim WWC exclusion' under the Worker Screening Act 2020 (Vic).

[3] Secretary's Written Submissions para 7 - 19, which also accept that having been notified of the earlier offences in late 2020, the Secretary reassessed Mr Boothey's eligibility to retain his WWC clearance on 1 February 2021. Counsel for the Secretary confirmed at the stay hearing that those earlier decisions by the Secretary granting WWC clearance to Mr Boothey had taken all of those prior offences into account.

[7] Because information provided to the Secretary on re-assessment is subject to protection under the WS Act, I shall not directly repeat Mr Boothey's responses to the Secretary in these reasons for interlocutory ruling.

[9] See Secretary's written submissions, [26]. That appears to be correct: see S49 at p 51.

[12] Secretary's Submissions, para 28, referring to S49 p 97- 120, and p 121 - 123.

[13] 'S49' is a reference to s 49 of the VCAT Act which requires the original decision maker of the decision under review by the Tribunal to lodge with the Tribunal both the statement of reasons and 'every other document in the decision-maker's possession that the decision-maker considers relevant to the review of the decision': s 49(1).

[14] I will mention several of them below as being relevant to this application for stay.

[15] Their description matches verbatim para 20 of the Secretary's written submissions, referring to the charges for offences between 10/02/2024 and 29/02/2024 with which he had been charged on 1/03/2024: see S49 p 32.

[16] See page 34 of 35 of the Statement of Reasons at S49 p 166.

[17] By its terms, the section applies where the Secretary either proposes or is required under s 83, 85 or 87 to revoke a person's WWC clearance.

[18] Under the VCAT Act and WS Act the applicant is entitled to seek review of the decision to revoke his WWC Clearance and to issue a WWC Exclusion, but not of the 'interim WWC Exclusion' triggered under the WS Act by his re-assessment: see WS Act, Part 4.3 - VCAT review of decisions relating to WWC clearances, s 105 - s 108. Under the WS Act, WWC exclusion is defined to mean 'an exclusion given to a person under section 68(2), 89, 90, 91 or Part 4.3'. It does not mean or include an 'Interim WWC Exclusion' under s 88.

[19] See Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 (17 March 2025) (Justice Quigley), [84]; Secretary to the Department of Justice and Community Safety v TXD [2024] VSCA 169, [15].

[20] Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107, [85] - [91].

[21] Aavelaid v Dental Practice Board of Victoria [2002] VCAT 1763 (Macnamara DP).

[22] Hedger v Private Agents Registry (unreported, VCAT, Levine DP, 11 May 2000) at [7].

[23] Bell v Liquor Licensing Victoria [2000] VCAT 214 (Kellam J sitting as President) (Bell) at [12].

[28] Volziker v Secretary of the Department of Transport [2012] VCAT 402 at [8] (Judge Macnamara, Vice President).

[29] HUD v Secretary to the Department of Justice [2013] VCAT 331 at [108] (HUD) (Judge Jenkins, Vice President).

[31] Citing Bell & Eager v Liquor Licensing Victoria and Swapnil Pty Ltd [2000] VCAT 214, [12].

[32] Citing Arulanantham v Medical Board of Australia [2012] VCAT 124, [16] (Macnamara DP).

1. [33] It is to be noted that the WS Act, Part 6.2 Offences related to child-related work contains s 121, 122, 123, 124, 125, 126 and 127. Part 6.3 General contains other offences in s 128, 129 and 130. Relevantly, s 125 in Part 6.2 provides:

(1) A person must not engage in child-related work for profit or gain if -

(a) the person has a current WWC clearance that was given to the person on an application that did not specify an intention to engage in child-related work for profit or gain; and

(b) the person knows that their current WWC clearance was given on an application of a kind referred to in paragraph (a); and

(c) the person knows that, or is reckless as to whether or not, the child-related work in which the person is engaging is being engaged in for profit or gain.

[35] S49 p 123, letter dated 30 January 2025.

[38] Reference of club president referred to in the Secretary's written submissions at para 43.

[39] I note that the reference to the '44 page exclusion letter' I infer, includes the 9 pages of attachments to the 35 page Statement of Reasons dated 17 February 2024, being two letters from the Secretary to the Working with Children Check Coordinator for a named football league and the Shire Council for the region to which he had moved, their attached WWC Exclusions and 4 page 'Information Sheet for Employers and Agencies WWC Exclusions', to which I refer below.

[40] Similar observations have been made in AZD v Secretary to the Department of Justice [2009] VCAT 977 at [15], a decision of Macnamara DP dealing with the former Working with Children Act 2005 (Vic) where he said: (my emphasis)

Section 50(3) leaves the discretion in quite an open form and really does not postulate any particular criterion to be applied_. I think generally there should be a predilection in favour of not, if you will, putting people out of business until they have had the opportunity to prosecute their review applications to the Tribunal_. I accept that there is nothing to indicate any sexual deviancy in the conduct of AZD and I note in the pre-sentence report or perhaps it was one of the other psychological assessments that I viewed as part of the extensive material that has been placed before me, there is an express finding that there is no evidence of sexual deviancy in his case.

See also Volziker v Secretary to the Department of Transport [2012] VCAT 402 at [8]; HUD at [86]; MXZ v Secretary to the Department of Justice and Regulations [2016] VCAT 1543 (Judge Milane, VP) at [99].

[43] To the same effect see Aavelaid v Dental Practice Board of Victoria [2002] VCAT 1376 (McNamara DP) at [19]:

it is proper to consider the likely outcome of a review application in light of what are fundamentally uncontested matters but ... it is inappropriate to consider seriously contested matters with a view to trying to predict the outcome without the benefit of hearing the evidence.

[44] Secretary's written submissions, para 19.

[45] I also note that the Secretary's written submission at para 49 that his sentence on 28 January 2022 (for a 'charge' relating to offences between 1/9/2020 and 3/9/2020) 'required' him to enter into a Men's Behaviour Change Program was not accurate. His sentence by the Magistrates' Court on 28 January 2022 (appearing at S49 p 181) - when read according to its natural and ordinary meaning - gave Mr Boothey a choice whether to do that or otherwise engage in 'one to one counselling program' addressing the offences for which he had been charged and from which, without conviction, he had been discharged pursuant to s 19B of the Crimes Act 1914 (Cth) upon entering a $2,000 recognisance for 24 months and 'on the following conditions'.

I also record that it was conceded in argument by her Counsel, that the Secretary had between 17 September 2020 and 1 February 2021 previously re-assessed that 'charge' (relating to offences between 1/9/2020 and 3/9/2020) and had provided Mr Boothey with a WWC Clearance on 1 February 2021: see Written Submissions para 14 and S49 p 22.

[46] There is no reference to the Charter at all in the S49 bundle materials filed by the Secretary with the Tribunal for this proceeding. Nor do the Secretary's written submissions on stay pending its review address the Charter.

[49] And it does not appear to have been since cited as authority under the current WC Act on that point.

[50] See ZZ at [15]. That case concerned an 'assessment notice' requested under the former Act by ZZ, which had been refused. Question 2 of the Charter s 35(2) notice was confined to the issue whether, relevantly:

(2) In determining whether giving an assessment notice would not pose an unjustifiable risk as mentioned in s 13(2) of the Working with Children Act ....:

(a) does s 38(1) of the Charter require the human rights of the applicant under the Charter to be considered and if so what human rights and how must they be considered;

(b) must other human rights under the Charter be so considered (for example the human rights of children) and if so what other human rights and how must they be considered; and,

(c) if the human rights of the applicant and other human rights under the Charter must be so considered, in what manner must they be considered in the event of any conflict?

I note that that question is not the same issue arising in this case, in the review application before the Tribunal of the 27 February 2025 re-assessment decision of the Secretary.

I also note that Justice Bell records that ZZ had made no submissions about the Charter issues, nor had the Commission or the Attorney-General elected to participate in response to receiving the Charter s 35(2) notice. Describing what had actually occurred in the appeal from the VCAT review decision, Justice Bell candidly remarked at [10] - [11]:

[10] Initially ZZ served notices under s 35(2)(a) and (b) of the Charter ... on the Attorney-General and the Human Rights and Equal Opportunity Commission of questions arising under the Charter. At the hearing, he did not press those questions or rely on the notices.

[11] Very much against my better judgment, I allowed the hearing to proceed without the human rights issues being fully addressed. When I came to write the judgment, I found it impossible to avoid those issues, especially as the interpretative principle in s 32(1) of the Charter is mandatory.

Further submissions were then sought and a new notice served under s 35(2) of the Charter, with issue (2) above being how s 38(1) of the Charter question was framed in that case.

The difficulty in understanding what Justice Bell actually held in para [15], is that the Secretary's submissions are not set out before Justice Bell states his short conclusion.

[51] See para 1 above. The former WWC Act expressed it in the following way in its s 1:

(1) The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body.

[52] [2006] VCAT 2455; (2006) 25 VAR 336, 339 [10] adopted by Bell J at ZZ v Secretary, Department of Justice & anor [2013] VSC 267 at [98]- [99].

[53] PJR [2006] VCAT 2455; (2006) 25 VAR 336 at [39]- [43].

[54] [2009] VCAT 977.

[55] Ibid [14]; see also MH v Department of Justice [2008] VCAT 1514 (22 July 2008) [33] (Judge Harbison).

[56] Maleckas v Secretary, Department of Justice [2011] VSC 227 (31 May 2011) (Maleckas).

[57] In PJR, at para 6, Justice Morris discusses the different categories and assessment criteria for the former category 1, 2 and 3 assessments under the Working With Children Act 2005. PJR was a category 1 assessment.

[58] Ibid [43]; see also Secretary, Department of Justice v Yee [2012] VSC 447 (26 September 2012) [29]-[30] (Kyrou J).

[59] JA Simpson and ESC Weiner, The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) vol 14, 358.

[62] Ibid [72]; followed in ETA v Secretary, Department of Justice [2013] VCAT 418 (19 April 2013) [48] (Garde J, President) (his Honour took into account in the applicant's favour that it was 'highly unlikely' that the applicant would pose a future threat to a child: [50]).

[63] LKQ v Secretary, Department of Justice (Unreported, Victorian Civil and Administrative Tribunal, Steele DP, 10 September 2010) [45].

[64] Maleckas [52]. Justice Bell continuing in ZZ: 'As we will see, I think the tribunal committed a similar error in the present case'.

[65] Under s 42(1) and Part 3 Div 3 of the VCAT Act.

[66] As defined in s 3 of the VCAT Act.

[67] I recently summarised the authorities relating to a merits review application: see Tieu v Victorian Pharmacy Authority (Review and Regulation) [2024] VCAT 1157 and cases referred to in it.

[68] See VCAT Act s 51 set out below at para 77.

[70] See definition of 'public authority' in s 4(1)(j) of the Charter. See further Charter of Human Rights Bench Book, Judicial College of Victoria, 2.4. Courts and tribunals as public authorities, at [16]:

The character of VCAT's review jurisdiction is to be ascertained by reference to the jurisdiction of the original decision-maker, so it will usually be the case that VCAT's review jurisdiction is administrative (Re Kracke and Mental Health Review Board (2009) 29 VAR 1; [2009] VCAT 646 [312]).

1. [71] Justice Quigley remarked in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 (17 March 2025) at [249]:

The WS Act and CWS Act have, at their core, the protection of children and young people from sexual and physical abuse. Such protection is expected in modern Australian society. However, an approach to prosecuting an allegation against an individual must properly and fairly apply the law, including in the conduct of review processes.

That observation applies to this proceeding and to the implications of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) to the review process in this proceeding before the Tribunal.

[72] S49 p 52.

[73] EDX v Secretary to the Department of Justice and Regulation (Review and Regulation) [2020] VCAT 155 [214]-[215].

[75] [2020] VCAT 1036.

1. [77] It also explained that he must either surrender, or destroy, his WWC Check card within 14 days from the date of the letter, a failure to do so being an offence under section 91(4). If he did not have his WWC Check Card, he told to complete and return the attached Statutory Declaration stating your Working with Children Check Card has been lost or destroyed, within 14 days.
2. [78]Not only has his WWC clearance been revoked by the 17 February 2025 reassessment decision, but without a stay of the secretary's decision pending review he is subject to the 'WWC exclusion' issued to him on 17 February 2025. The restrictions that WWC exclusion imposes on him are set out in s 122 of the WS Act: (my emphasis)

122 Offence for person given WWC exclusion to apply for child-related work

(1) A person who has at any time been given a WWC exclusion and does not have a current WWC clearance must not apply for, or engage in, work that is child-related work.

Penalty: Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

(2) A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, the accused did not know that the work was child-related work.

(3) A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed -

(a) the person had been given a WWC exclusion by the Secretary and had applied to VCAT under section 106(1) for a WWC clearance; and

(b) the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.

[79] As is evident from his various character references submitted by him to the Secretary for the purposes of her reassessment decision and contained in the S49 materials filed with the Tribunal.

[80] Citing MXZ v Secretary to the Department of Justice [2016] VCAT 1543, [102].

[81] Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107, [150].

[82] Counsel for the Secretary also informed the Tribunal at the stay hearing that the Secretary has not yet identified what evidence she does intend to rely on in the review hearing but indicated that she may wish to rely on further evidence.

[83] In this regard the observations of Justice Quigly in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 at [151] and [153] - [155] are apposite. I also observe the submission made by the Secretary in that case recorded at para [191] that 'the parties are ... entitled to procedural fairness and part of procedural fairness is allowing a party to test the evidence upon which the Tribunal will reach its decision'.

[84] Bausch v Transport Accident Commission (1996) 11 VAR 117, 137.

[85] Winn v Blueprint Instant Printing Pty Ltd [2002] VSC 295, [9].

[86] As Justice Quigley recently explained in Secretary to the Department of Justice and Community Safety v Loos [2025] VSC 107 at [92] - [93]:

[92] The Tribunal's powers, including upon WWC category C reassessment under the WS Act, are also governed by the VCAT Act. In this regard, several provisions have bearing on considerations relevant in this proceeding. These include ss 97, 98 and 102 ...

[93] It follows that the jurisdiction of the Tribunal must be exercised in accordance with the test set out in s 108 [of the WS Act]. Pursuant to s 97 [of the VCAT Act], the Tribunal must act fairly and according to the substantial merits of the case in accordance with principles of general procedure set out in s 98.

[87] S49 p 113, confirming he was aware of the pending charges and stating to the Geelong Magistrates' Court:

As Michael's football coach ... in 2024, I've seen Michael on a weekly basis and have observed the way in which he conducts himself and interacts with both the men and woman of our club. I can confidently say, Michael is an outstanding individual who shows true leadership, compassion and is highly respected by his peers.

I've provided three examples of Michael's outstanding character over the past 4 months

Our community is a better place with Michael in it and if we had more people prepared to contribute their time and empathy towards others as Michael does, our communities would be a much better place.

If there is anything else I can provide to assist your Honour in any way, please don't hesitate to contact me on the details provided below.

[88] Writing on 24 January 2022 (at S49 p 114): (I have assigned letters to de-identify persons named)

I have known Michael for approximately twelve years as friends, and most recently have worked alongside Michael within his role as a Senior Football Coach in the [Club]. During this time, I have seen Michael display a tremendous amount of passion in supporting young people meet their potential on the football field, and grow as young men. This has been led by his passion and leadership.

I would like to detail how this passion to lead and support young people recently reached beyond a football club.

I have a nephew, [N], who turned 14 [in] January this year. [N] has moderate autism and lives within his family on a dairy farm in [regional Victoria]. Mid 2021, [N] advised me that he was going to play AFL for [a named club]. ...

Catching up with Michael at Christmas, I explained what [N] had said, and his lack of experience in a football environment. With this feedback, Michael offered to host [N] for a 1:1 football clinic. Speaking to [N] and his mother, this offer was met with great excitement.

Whilst most would anticipate this to be a token offer, Michael met [N] at the [suburban] Football ground at 4.30 Friday 21st January. Michael went on to spend almost 1.5 hours talking to [N] about football, conducting 1:1 skills session, taking time to "tweak" his current techniques and offer guidance and support to how to best kick, handball and mark a football.

... I witnessed [N] grow from nervous to confident, and his skills progress beyond what I would have anticipated.

At the end of the session, Michael offered to hold a further session the next time [N] was in town, offered tips on areas to focus on in practice, and gave [N] a leather Sherrin Football to keep, to ensure [N] could continue his practice with the right equipment.

Whilst I was not surprised with Michael making the offer to support [N], the ability to make [N] comfortable and tailor the session to meet his unique needs, in addition to his generosity, went beyond any expectations from [N] and his mother, considering they had never met before.

This is reflective of the respect and generosity I have seen Michael offer to other young people.

[89] Confirming he was aware of the pending charges and stating to the Geelong Magistrates' Court:

I have known Michael since the late 1990's early 2000's when we played local ... football for opposing [sic] teams. Michael is 7 years younger than me but it was obvious back then why he was a leader of his senior team even though he was only in his early 20's. His conduct on and off the field gained him a lot of respect from the football community and showed a real insight into his great character.

I have personally known Michael since 2017 when a business opportunity presented itself during a chance meeting ... Michael was the Managing Director of his company ... which he had just founded and I was and still am the Managing Director of [import export service company] which I founded in the late 1990's.

Fast forward to 2021, I became aware Michael had to close his business due to the effects of the Pandemic and was employeed [sic] as a crew leader for [plumbing business]. Requiring a manager for my business, I reached out to Michael and offered him the position as Operations Manager, which he accepted.

Michael had an immediate impact with his professionalism and his ability to create a friendly and inclusive environment. Unfortunately for my business, in early 2023 Michael accepted a position with [building company] as their National Operations Manager. However, Michael generously gave up his own time to conduct audits for my business when required.

My business has very recently been awarded a major contract... I have offered Michael the role as the Operations Manager who will oversee the operations of this contract which involves a crew of nine employees working 24hr split shifts.

Michael is respected by all that know him and those that meet him. All the years I have known Michael I'm yet to hear anyone speak a bad word about him. I've kept in regular contact with Michael and have personally witnessed the pain and suffering he is going through, although to his credit he is always positive around others which comes as no surprise to me.

To finish off, I have to say I've never met anyone more engaging towards others than Michael. He shows a genuine care for everyone he meets and will drop everything to assist others.

[90] Arising, it appears, his complaints police against C on 18 April 2024: S49 p 102.

[92] Under the WS Act:

'interim WWC exclusion' means an interim exclusion given by the Secretary under section 66 or 88.

1. [93] Section 92 creates a statutory duty on the Secretary to notify in writing certain people and provides as follows: (my emphasis)

92 Secretary to give copy of WWC exclusion to employer or agency

(a) gives the person who holds a WWC clearance a WWC exclusion under section 91 or an interim WWC exclusion under section 88; and

(b) is aware that the person is a person who -

(i) is, or is proposed to be, engaged in child-related work by another person; or

(ii) is listed with an agency -

the Secretary, if the Secretary is aware of the identity of that other person or that agency, must also give a copy of the WWC exclusion or WWC interim exclusion to that other person or that agency.

Listed with an agency is defined in section 3(2).

A different obligation is placed on the person holding a WWC clearance to notify in writing certain people, that an interim WWC exclusion has been given to them, or they commit an offence: (my emphasis)

127 Notification requirements of holder of WWC exclusion or interim WWC exclusion

If a WWC exclusion or an interim WWC exclusion is given to a person, that person must, within 7 days after being given the exclusion, give notice in writing of that exclusion -

(a) to any person by whom they are engaged in child-related work; and

(b) to any agency with which they are listed.

Penalty: Level 9 fine (60 penalty units maximum).

1. [94] As the Tribunal has found previously, and as I have noted, an 'interim WWC exclusion' is not reviewable by the Tribunal and does not form part of this application for review before the Tribunal. It is unaffected by any stay of the re-assessment decision under review. An 'interim WWC exclusion' is not reviewable by the Tribunal because it not a 'decision'; rather, it is required to be 'given' by the terms of the legislation: see s 88(1)(b).

[10] WS Act, ss 78(1)(b) and 86(1)(a).

[12] Ibid s 88(1).

[13] Ibid s 78(3) and s 121(1)(a).

[14] Ibid s 91(1).

[96] It is also to be noted that s 122 does not apply to an 'interim WWC exclusion'.

[97] Volziker v Secretary of the Department of Transport [2012] VCAT 402 at [8] (Judge Macnamara, Vice President).

1. [101] As I have said earlier, the WS Act creates a statutory obligation on the Secretary to notify certain people about the interim WWC exclusion and that a reassessment of the holder's WWC clearance is pending; it creates a separate offence for a person receiving an interim WWC exclusion if they fail to notify certain people about it in writing.

[102] As I have said, it is not a decision capable of merits review by VCAT because it is the statute that prescribes that it must be issued on a re-assessment.