prohibit certain persons from engaging in child-related work pending the outcome of the person's application for a WWC check; and

require the Secretary to suspend a person's WWC clearance in certain circumstances pending the re-assessment of the person's eligibility to hold a clearance;

...

1. The distinction between assessment and re-assessment is important. Different provisions apply.
2. The first of the two purposes noted above relates to applicants for a WWC check who do not currently hold a WWC clearance.
3. Those applications, for WWC clearance, come under Part 3.1, ss 53-71.
4. The second relates to those who have received WWC clearance but whose eligibility to hold a clearance is subject to re-assessment.
5. Re-assessments come under Part 3.4, ss 78-92.
6. The category C re-assessment of Mr Bradley's WWC clearance came under Part 3.4.
7. Before a decision was made, however, his WWC clearance expired, and he was required to apply to renew his WWC clearance. It therefore became an assessment process, under Part 3.1.
8. Because both processes were involved here, I have considered the changes to both.

1. Before the amendments, most applicants for a WWC check could work with children while their application was being assessed, or, if they held a WWC clearance, their eligibility was being reassessed by the WWC unit.
2. In either case, before a final decision was made by the Secretary, they might be issued with an interim exclusion, under s 66(1)(b) in the case of applicants for a WWC check; or under s 88(1)(b) on a re-assessment.
3. VCAT does not have jurisdiction to review an interim exclusion. As McCall noted, however (before the amendments):

...conversely, the issue of an interim exclusion does not (of itself) prevent a person working with children.[4]

1. Under s 78(3) of the WS Act, if an interim exclusion has been issued in the course of a re-assessment, the person is to be regarded as still holding a current WWC clearance:[5]

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(i) has not been revoked under section 91 following the re‑assessment; or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

(iii) has not expired.

1. So, for a person whose eligibility was being re-assessed (as was the case with Mr Bradley until his WWC clearance expired), at the point where an interim exclusion was given to them under s 88(1)(b), and provided the circumstances in s 78(3)(b) did not apply, they were to be regarded as still holding a current WWC clearance.
2. This in turn meant that they did not commit an offence under s 121(1),[6] in Part 6.2, which provides:

(1) A person must not engage in child-related work if -

(a) the person does not have a current WWC clearance; and

(b) the person engages in the work knowing that it is child-related work; and

(c) the person knows that they do not have a current WWC clearance or is reckless as to whether or not they have one.

1. A second interim exclusion was issued on 10 February 2025, after the respondent had treated the situation as changing from a re-assessment to an assessment (for the purposes of renewal of an expired WWC clearance).
2. The respondent submitted that holding an interim exclusion was previously an exception to the offence provision in s 121(1), but that after the amendment to s 121(2), holding an interim exclusion was no longer an exception.
3. Accepting that the earlier position was as submitted,[7] I turn to the changes.

1. I agree with the submission of the respondent about the relevance of the amendment to s 121(2), by the addition of a new subsection 121(2)(ab).
2. Sections 121(2) to (4) now provides (amendment in italics):

(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 -

(a) had applied for a WWC check and the application had not been finally decided or withdrawn and the person -

(i) had not at any time been given a WWC exclusion or, having been given a WWC exclusion, had subsequently been given a WWC clearance; and

(ii) was not excluded from child-related work under a corresponding working with children law; and

(iii) was not subject to an obligation or order specified in clause 1 of Schedule 5; and

(iv) was not charged with or had not been convicted or found guilty of an offence specified in clause 2 of Schedule 5; or

(ab) had applied for a WWC check and the application had not been finally decided or withdrawn and the person had not been given an interim WWC exclusion under section 66; [bold added] or

(b) was exempt from a WWC check in respect of the work under Chapter 5 and the accused was not subject to an obligation or order specified in clause 1 of Schedule 5; or

(c) unless engaging in the work as a volunteer or undertaking practical training -

(i) having applied for a WWC check and been given a WWC exclusion, had notified their employer of the giving of that WWC exclusion; and

(ii) the accused's employer was in the process of -

(A) transferring the accused to work that was not child-related work; or

(B) terminating the accused's employment in accordance with the requirements of the Fair Work Act 2009 of the Commonwealth.

(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;[8] and

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

(4) A person is not guilty of an offence against subsection (1) if -

(a) at the time the offence is alleged to have been committed, the work engaged in is child-related work described in section 7(6); and

(b) the person applies, within 21 days after first engaging in that work, for a WWC check to be carried out.

Those exceptions were narrowed as a result of the Amending Act. From 28 August 2025, a person will not be able to engage in child-related work while an application for a WWC clearance is on foot, and where they have received an interim WWC exclusion. There is no longer an exception to the offence provision at section 121(1), for a person to engage in child-related work while holding an interim WWC exclusion: section 121(2)(ab) provides an exception to applicants up until where they receive an interim WWC exclusion.

1. A closer look at s 121(2)(ab) confirms that the reference to interim exclusions is limited to interim exclusions under s 66 of the WS Act, where the person has applied for WWC clearance.
2. It does not therefore apply to interim exclusions given in the course of a re-assessment, under s 88.
3. It did apply to the second interim exclusion given to Mr Bradley under s 66 of the WS Act.
4. For completeness, I have considered the effect of other amendments on category C re-assessments.

1. The amending Act did not remove or otherwise amend s 78(3)(a), set out earlier, which provides that a person must be regarded as still holding a current WWC clearance if an interim WWC exclusion has been given under section 88(1)(b).
2. Instead, s 8 of the Amending Act introduced a new s 87A, which applies to re-assessments if the Secretary proposes to revoke the person's WWC clearance.
3. Section 87A expressly refers to s 78(3). Although the matter is not free from doubt and s 78(3) may still have work to do, s 87A(4) likely overrides s 78(3) if the circumstances set out in s 87A apply and the person's WWC clearance is suspended under that section.
4. Section 87A relevantly provides (emphasis added):

87A Power to suspend WWC clearance if intention to revoke WWC clearance related to certain charges etc. or findings

(1) Despite section 78(3), the Secretary must suspend a person's WWC clearance if -

**(a) the Secretary - **

...;

(ii) is notified of a relevant disciplinary or regulatory finding being made against the person; and

(b) the Secretary proposes to revoke the person's WWC clearance under this Division.

(2) ...

(3) If a person's WWC clearance is suspended because the Secretary was notified of a relevant disciplinary or regulatory finding being made against the person, the Secretary may reinstate the person's WWC clearance if, after the suspension, the finding is expressly or impliedly -

(a) quashed; or

(b) set aside.

(4) If a person's WWC clearance is suspended under this section, the person is taken to not hold a WWC clearance for the period of the suspension.

52 The intended effect of s 87A is described by the Attorney-General in the Second Reading Speech:[9]

Currently, Working with Children clearances can only be suspended before a re-assessment has been finalised in limited circumstances,[10] including a person being charged with or convicted or found guilty of a sexual offence.

The Bill will expand the suspension powers in the Act to allow for the suspension of a person's Working with Children clearance in circumstances where the Secretary is made aware of a charge, conviction or finding of guilt for a less serious offence, or a relevant disciplinary or regulatory finding. This will ensure that people who have been charged with a criminal offence, have a criminal record or who have been subject to a relevant regulatory or disciplinary finding are not able to work with children until after their eligibility has been rigorously assessed.

1. The effect of s 87A(4) is that if a person's WWC clearance is suspended under that section, the person is taken to not hold a WWC clearance for the period of the suspension.
2. In turn, this means, that if a person whose WWC clearance is suspended under s 87A engages in child-related work, they are doing so without a current WWC clearance for the purposes of s 121(1)(a).
3. They may, in that case, be committing an offence, depending on whether s 121(1)(b) and (c) also apply, and provided none of the exceptions in s 121(2) to (4) apply.[11]
4. The matter (of whether s 87A overrides s 78(3)) is not entirely free from doubt. There is a question about whether suspension is intended to be a substitute for interim exclusions in re-assessments; whether it is in conflict with s 78(3); or whether they operate independently and consecutively.
5. I do not need to decide the matter because the Secretary's decision was not, ultimately, made on a re-assessment. Because these are recent amendments, however, the following analysis may be helpful in other cases:
   • Section 78 is to do with re-assessments.
   • Under s 78(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); ...'.
   • Section 78(3)(a) refers to an 'interim WWC exclusion' given under s 88(1)(b)', and does not refer to 'suspension' of a WWC clearance.
   • Section 88 remains in the WS Act, and is unchanged. It provides that if the Secretary proposes or is required to revoke a person's WWC clearance, the Secretary must, before finally deciding the re-assessment give notice to the person, provide information, invite a submission, and 'give an interim WWC exclusion to the person'.
   • As noted above, s 121(2)(ab) only refers to interim WWC exclusions under s 66 and does not apply to interim exclusions given under s 88(1)(b) in a re-assessment.
   • The new s 87A does not say anything about interim WWC exclusions, under s 88 or otherwise.
   • Instead, s 87A mandates suspension of a person's WWC clearance if 'the Secretary proposes to revoke the person's WWC clearance under this Division'.
   • Suspension under s 87A is a step which must be taken at the point where the Secretary proposes to revoke the person's WWC clearance. It is not clear whether this would occur at a later time to issuing an interim WWC exclusion under s 88.
   • Section 87A(4) provides that if their WWC clearance is suspended, they are taken not to hold a WWC clearance.
   • It does not on its face change the position in s 78(3) in relation to interim exclusions given under s 88.
   • This might mean that a person who has been given an interim exclusion under s 88 will still be taken to hold a WWC clearance (for the purposes of s 121(1)), unless and until the Secretary takes the step of suspending their WWC clearance under s 87A.
   • In relation to applications to VCAT for a stay where the WWC exclusion decision preceded the amendments, if a stay were to be granted the applicant would return to the status quo before the exclusion decision, namely they would be treated as having an interim WWC exclusion and s 78(3) would apply.
   • Under the amendments, however, the Secretary would then, likely, be required to suspend the person's WWC clearance, and s 87A(4) would apply to prevent the person engaging in child-related work.

Relevance of the amendments to stay applications at VCAT involving category C decisions

1. The amendments do not seek to limit the Tribunal's power, in review applications, to order a stay under s 50 of the VCAT Act, and do not have that effect. Nor does the WS Act generally_._[12]
2. The amendments are nevertheless relevant to stay decisions in two main respects.

The position immediately before a WWC exclusion was given has changed

1. First, under the principles referred to earlier,[13] if a stay is granted, Mr Bradley will be in the position he was in immediately before the Exclusion decision was made, as varied by the amendments.
2. That position was that he had been given the second of two interim WWC exclusions. By that time the process had changed from a re-assessment of his WWC clearance to an assessment of an application for renewal of his clearance.
3. Section 121(2)(ab) operates to remove having an interim exclusion under s 66 of the WS Act as an exception to the offence provisions.
4. He would therefore not be able to engage in child-related work, even if a stay is granted.
5. For completeness, my view is that the outcome is the same for stay of WWC exclusion decisions made on a category C re-assessment, although the pathway is different.
6. A new s 161 was inserted by the Amending Act as a transitional provision. It refers to the amendments made by s 8 of the Amending Act, which in turn inserted the new sections 87A and 87B. It provides:

161 Power to suspend WWC clearance if intention to revoke WWC clearance related to certain charges etc. or findings

The amendments made to this Act by section 8 of the Worker Screening Amendment (Strengthening the Working with Children Check) Act 2025 apply irrespective of whether -

(a) the WWC clearance was given before, on or after the commencement day; or

(b) the Secretary was notified of the relevant charge, conviction or finding of guilt or relevant disciplinary or regulatory finding before, on or after the commencement day; or

(c) the Secretary proposed to revoke the person's WWC clearance under Division 4 of Part 3.4 before, on or after the commencement day.

1. If this were a re-assessment case, s 161 makes it clear that, should a stay be granted the relevant amendments would apply even if the Secretary's re-assessment was finalised by the Exclusion decision well before the amendments took effect.
2. Although the position immediately before the Exclusion decision was that the person held an interim exclusion, my view is that under s 87A the Secretary would now be required to suspend the WWC clearance; and the applicant would then be taken not to hold a WWC clearance under s 87A(4).
3. Either way, the amendments certainly reduce the benefit of a stay to an applicant. It is a separate question as to whether they render a stay futile, as the respondents submitted. I return to that question below.

The amendments themselves have a protective effect

1. Second, the amendments change the relevance of the protection of children from harm[14] as a factor to consider in individual stay applications.
2. This is because the amendments themselves provide a means of protection of children, (as they were intended to do) regardless of any risk the individual might pose.
3. Previously, a stay would enable a person who had been issued with an interim exclusion in the course of a category C re-assessment, to continue to engage in child-related work. They cannot now do so, and anyone who employed them would risk committing an offence under s 123(1).[15]
4. I come back to the relevance of this when considering the public interest.
5. I turn now to the stay application itself, starting with the guiding principles.

THE DISCRETION TO GRANT A STAY: GUIDING PRINCIPLES

The Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for review.

1. The power to grant a stay is discretionary, to be exercised after full consideration of the circumstances and facts of each particular case.
2. The effect of a stay is to restore the status quo prior to the decision until the final determination of the application for review.[16]
3. While the VCAT Act does not set out any criteria under which the discretion should be exercised, there are well-established principles which provide guidance, taken from the decision in Bell and Eager v Liquor Licensing Victoria and Swapnil:[17]

(a) whether or not the failure to grant a stay would render the application for review before the Tribunal nugatory (of no value);

(b) whether or not there is a serious question to be tried on review;

(c) whether or not it is in the public/community interest to grant a stay. This involves the balancing of private interests against the public interest; and

(d) the period of time which will elapse before the hearing of the application for review.

1. Where appropriate, the Tribunal should consider whether any stay granted be subject to conditions or acceptance of an undertaking.
2. The Tribunal will also consider whether or not a party will suffer prejudice if the application is granted or refused.[18]
3. 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.
4. In Arulanantham v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 124 ('Arulanantham') at [17], Deputy President Macnamara, as he then was, made some helpful observations about what the Tribunal is doing when it is considering whether not granting the stay would render the review application nugatory:

[Whether it would do so] 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.

1. Referring to a statement in AZD v Secretary to the Department of Justice [2009] VCAT 977, the Deputy President also 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...

1. Observing that practitioners under investigation will have an incentive to conduct themselves properly, Deputy President Macnamara stated at [19] that:

Frequently in cases of this type the Tribunal can be comforted in the knowledge that the public interest in the meantime will be catered for by the thought that a practitioner who has been found at first instance to be guilty of some type of wrongdoing, some lack of attention, some error of judgment can be thought if given a stay to have the strongest possible motives to refrain from anything that might be inappropriate, to use extra care to ensure that there is no failure to meet proper standards and generally to adopt the most cautious approach in any crises to avoid anything that might be regarded as a breach of proper judgement.

1. In Arulanantham at [18], Deputy President Macnamara said that the two considerations to be balanced were the desire not to inflict irreparable damage before a full and complete review can be completed, but on the other hand to preserve the public interest in safe treatment of patients.
2. There is a similar public interest in protecting children from the risk of harm.

WILL FAILURE TO GRANT THE STAY RENDER THE REVIEW NUGATORY?

1. The respondent submitted that refusing the stay would not render the substantive application nugatory 'ie of no or reduced value', and would in fact make no difference. Mr Bradley submits that it will make a difference.
2. The respondent submitted that whether or not the stay is granted Mr Bradley will still not be the holder of a valid WWC clearance; and will still be prohibited from engaging in child related work.
3. I agree with that conclusion.
4. The respondent further submitted that this factor weighed 'almost conclusively' against granting the stay, because it is 'the most important consideration'.
5. I disagree with that conclusion. It is the case that this factor has been described as 'the dominant principle', and an important consideration - in the sense that if failure to grant the stay will render the review application nugatory and cause irreparable harm, that will weigh heavily in favour of granting the stay.
6. It does not follow, however, that the reverse is correct - that the stay application should be refused if failure to grant the stay will not render the review application nugatory. I agree with the observation to that effect in HSK at [22], where a similar submission was rejected.
7. The decision to grant or not grant a stay involves consideration of all the relevant factors, some may favour a stay, others may not. The relative importance of this factor in a particular case will very much depend on the facts and circumstances.
8. In HSK for example,[19] Senior Member Tang described it at [22] as a neutral factor in the Tribunal's evaluation because of the matters set out at [21].
9. In RMY, in Deputy President Proctor's view, the factor was an 'important consideration' which in that case weighed against the granting of a stay because the applicant continued to be employed by a security firm, limiting his work to working with adults, albeit for lower pay and more hours to make up the difference in pay rates.
10. Relevantly, RMY's extensive and in some cases recent criminal history included findings of guilt for a series of family violence related offences, which also weighed against granting the stay.
11. In McCall at [46]-[47], Senior Member Tang accepted that the decision in that case had had a significant financial impact on Mr McCall:

And, absent a stay, that impact is likely to be compounded in the period between the date of this decision and the review being finalised.

I consider that this is a factor that points in favour of a stay.

1. In this case, Mr Bradley has suffered serious prejudice as a result of the Exclusion decision, and the preceding investigation and findings. While such prejudice has its own 'heading' in stay applications, it is relevant to refer to here.
2. He described it as 'completely destroying' his life. It has had substantial financial impacts, including having to sell his home because he has been unable to find work; impacts on his relationships; and professional reputational impacts, including because of the regional area he lives and works in, and the relatively small community of youth services.
3. He said that he had found that the Exclusion decision had had a serious impact on his ability to find employment in non-child-related work,[20] an impact discussed at the hearing, and acknowledged by the respondent (as a matter raised in several cases at VCAT).
4. It appears that some employers routinely require a WWC clearance, perhaps as a substitute for a police check, even though no child-related work (as defined) is involved. Whatever the reason, that unintended 'side-effect'[21] of a WWC exclusion can be significant, as it appears to be in Mr Bradley's case.
5. A different kind of impact has come from what I observed to be genuine shock and distress at the kinds of allegations made and the outcome - a label of 'sexual misconduct'.
6. Mr Bradley said he has always believed in the WWC regime, its importance, and the protection it provides, but for him, however, he feels it has not worked as it should.
7. The distress was, in my observation, amplified by his concerns about the fairness of the investigation and what he believes to be an injustice, in the context of the fact that he has been working with young people for 20 years, with no concerns or complaints, and no suggestion of risk. The impressive character references he provided, support that view of his career.
8. If a stay is granted, the position will be that instead of a WWC exclusion, Mr Bradley will instead have an interim WWC exclusion pending the outcome of the VCAT proceedings.
9. The respondent questioned whether that would make any difference. There is, in my view, a difference, certainly to the outside world. One suggests a final decision to exclude him from child-related work. The other signals that more needs to happen before a final decision is made, and that the decision may still be favourable.
10. Of course, as the respondent submits, granting a stay will not enable Mr Bradley to resume child-related work.
11. Granting a stay would nevertheless have utility in the circumstances here and there is likely to be some benefit: in minimising to the extent possible the continuing impact of reputational damage, and in giving Mr Bradley a better chance of obtaining work, thereby minimising the continuing financial impact of the Exclusion decision.
12. In reaching this view I am also mindful of the time it will take for the substantive review application to be heard, which increases the risk of prejudice.
13. This factor weighs towards granting a stay.

1. I am not deciding, nor predicting, whether the Exclusion decision should be set aside.
2. Nor am I deciding whether Mr Bradley is right or wrong when he contends that the investigation was flawed and biased.
3. I am considering the issues raised by Mr Bradley and evaluating whether there is a serious issue to be tried. If so, that will usually be a factor that weighs in favour of granting the stay, to be taken into account along with other factors when deciding whether to refuse or grant the stay.
4. The Exclusion decision was largely based on a reportable conduct finding made at the conclusion of an investigation carried out, under CWS Act, by a former employer of Mr Bradley.
5. The Secretary was required to conduct the re-assessment, under s 78(1)(c) of the WS Act, after being notified that 'reportable conduct findings' under the CWS Act had been made against Mr Bradley.
6. Mr Bradley submitted,[22] in summary, that:

the fundamental flaws in the initial decision, a reliance on speculative, unverified, and false evidence, and the failure to investigate material facts, provide compelling grounds for granting a stay. Doing so protects the Applicant, preserves the integrity of the review process, and ensures that the Tribunal can make a reasoned, evidence-based determination.

1. The issues to be considered in the substantive application will include whether the finding of reportable conduct in the category of sexual misconduct as constituted by 'grooming behaviour' was warranted, on a proper consideration of the relevant evidence; and whether an Exclusion decision is the appropriate decision under s 108 of the WS Act.
2. The statutory framework will be relevant.

1. The findings concern Mr Bradley's alleged conduct in relation a 13 year old girl he had worked with as part of a program to improve school attendance. Most seriously, the investigation by a former employer had concluded that he 'had engaged in a course of conduct considered grooming behaviour' or 'grooming-like behaviour' and had therefore engaged in 'sexual misconduct'.
2. The investigator concluded:[23]

Having taken into consideration all the information in regard to the allegation of Sexual Misconduct by Timothy Bradley with [redacted], I believe the evidence meets the appropriate standard set by Briginshaw V Briginshaw (1938). Whereby claims/allegations must be proved on the "Balance of Probabilities." As such, I find the behaviour fits the grooming criterion set by the Child Well Being and Safety Act 2005[24] and that the behaviours appear both intentional and seriously negligent. Therefore, I find the allegation of sexual misconduct to be - Substantiated.

Finding alleged facts proven: the required standard

1. I observe here that the investigator was right to refer to Briginshaw v Briginshaw,[25] although the summary of what the case stands for is not quite right.
2. Briginshaw confirmed that in non-criminal cases the standard of proof remains the civil standard - an alleged fact must be proved, by the person or body making the allegation, on the balance of probabilities.
3. The judgment of Dixon J addressed, however, what was required for a decision maker to be satisfied that a fact had been proved on the civil standard, where the allegation was serious or serious consequences would flow from the finding. A regulatory finding of 'sexual misconduct' is in that category.
4. The following passages from Briginshaw articulate the relevant principles:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.

But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. (italics added)

1. The italicised paragraphs are relevant to Mr Bradley's submissions about the reportable conduct finding.

Summary of the allegations and Mr Bradley's response

1. The allegations, as summarised in the respondent's Statement of Reasons, were the following:

It was alleged that Navigator Case Manager, Mr Bradley, developed an overly close relationship with the alleged victim including spending more time with the alleged victim than other clients, attended at her house after hours, visited her house in his private vehicle, purchased ice creams out of his personal money and not sought payment from the organisation for the purchase, visited her house without recording same in his work calendar and the use of a nickname. It was also alleged that after leaving his employment with the organisation, Mr Bradley continued to have contact with the alleged victim and was found at her home with no other adults present.

1. The Secretary's Statement of Reasons for the Exclusion decision referred to the findings as follows:[26]

The reportable conduct raises concern regarding a pattern to potentially groom and develop a relationship with a 13-year-old which appears to have extended beyond professional engagement.

Multiple concerns surrounding workplace behaviour and alleged inappropriate relationships casts doubt over suitability to engage in child related work.

1. The reference to workplace behaviour relates to a series of matters to do with Mr Bradley's alleged performance as an employee (in his former employment), which were given prominence in the reportable conduct report.
2. Some of the matters in dispute include the following.[27]
3. Mr Bradley says that contrary to the impression given, none of the 'performance issues' were the subject of any formal performance management; the allegations were unverified or contradicted by evidence that was ignored; and in any event were irrelevant or trivial and should not have been taken into account.
4. Further, he alleged that he had endured bullying by his former manager, and said he resigned because of that. No issues concerning his performance had been raised by his next employer.
5. He disputes the fairness and impartiality of the investigation, undertaken by the former employer. He says his contention is supported by an email from his employer at the time the allegations were made, who, based on being present at the interview the investigator conducted with Mr Bradley, expressed concerns about a perceived lack of procedural fairness on the part of the investigator.[28] I come back to that email later.
6. Among other concerns, Mr Bradley disputes that during the time he was employed by his former employer and had a professional role in relation to the girl's family, he had an 'overly close' relationship, or spent more time with her than was warranted by the needs of the family.
7. He said it was customary for workers at his former employer to buy occasional snacks or treats for their clients including ice creams, and not seek reimbursement, in part because of the complexity of the system for doing so.[29]
8. While he may not have put every visit in his work calendar, he completed a report after every visit. Before he visited, he checked that the girl's mother would be home.[30]
9. Mr Bradley does not, however, dispute the event in November 2023 that triggered the investigation. Some months after he had left the former employer, and no longer had a formal role with the family, he was present at the family's home when two case workers arrived on an unannounced visit. It is uncontentious that Mr Bradley and the girl were in the kitchen. The girl was in her school uniform.[31] They were talking. No other adults were present.
10. He agrees that he visited the home in his lunch hour on that one occasion. The purpose was to check whether she was going to school. He says that the mother knew he would be visiting but when he arrived, she wasn't there. He says he should have left straight away. Shortly after he arrived, the two case workers arrived.
11. He agrees that he stayed in contact with the family, at the mother's invitation, primarily to check on whether the girl was attending school, which had been the focus of his role.[32]
12. He agrees that it was a mistake to be there when the mother was not there, one that he deeply regrets.
13. He says, however, that the relevant evidence, properly considered, weighs against a finding of grooming.
14. That evidence included the views of the Detective Senior Constable attached to the SOCIT[33] team, who separately decided that there was no criminal conduct. He reviewed phone messages between Mr Bradley and the girl. He stated that all were about checking on the girl's attendance at school, encouraging school attendance. He also stated that at no stage did he observe any indication of possible inappropriate, grooming, or criminal behaviour by Mr Bradley.
15. Mr Bradley further relies on the fact that neither the mother of the alleged victim, nor the girl herself, have made any complaint or statement against him.
16. I say more later about the issues to be tried on the substantive application.
17. I turn now to the necessary elements for a finding of sexual misconduct where it is alleged to be constituted by grooming behaviour.

Definition of reportable conduct in the Child Wellbeing and Safety Act 2005

1. Section 3 of the CWS Act contains the definition of reportable conduct:

reportable conduct means -

(a) a sexual offence committed against, with or in the presence of, a child, whether or not a criminal proceeding in relation to the offence has been commenced or concluded; or

(b) sexual misconduct, committed against, with or in the presence of, a child; or

(c) physical violence committed against, with or in the presence of, a child; or

(d) any behaviour that causes significant emotional or psychological harm to a child; or

(e) significant neglect of a child;

1. The investigator found (b) 'sexual misconduct' substantiated.
2. No allegation was made that Mr Bradley had committed a sexual offence[34] within the meaning of (a); and it was expressly excluded by the police. It is not, however, necessary for a criminal offence to have occurred for reportable conduct under the CWS Act to occur.
3. One of the issues here, however, is whether any of Mr Bradley's conduct, established on a proper consideration of the evidence, was of a sexual nature.

sexual misconduct includes behaviour, physical contact or speech or other communication of a sexual nature, inappropriate touching, grooming behaviour and voyeurism;

1. 'Grooming behaviour' is not defined in the CWS Act, and contrary to the investigator's finding, the CWS Act does not set any criteria for it.
2. It is implicit however, from the inclusion of grooming behaviour in the definition of 'sexual misconduct' in s 3, that there be a sexual context or element.
3. I note that, in the offence under the Crimes Act, that requirement is explicit:

Grooming for sexual conduct: s 49M of the Crimes Act

(1) A person (A) commits an offence if -

(a) A is 18 years of age or more; and

(b) A communicates, by words or conduct (whether or not a response is made to the communication), with -

(i) another person (B) who is a child under the age of 16 years; or

(ii) another person (C) under whose care, supervision or authority B is; and

(c) A intends that the communication facilitate B engaging or being involved in the commission of a sexual offence by A or by another person who is 18 years of age or more.[35]

CCYP guidance on 'sexual misconduct' including grooming behaviour

1. The CCYP information sheet, included in the respondent's bundle of documents,[36] is intended to provide guidance of a general nature, to assist organisations in considering whether conduct or behaviour is considered as sexual misconduct under the Reportable Conduct Scheme.
2. The fact that the conduct or behaviour needs to be of a sexual nature is referred to in the following extracts:

This type of reportable conduct is intended to capture a broad range of misconduct of a sexual nature that can pose a significant risk to children, even if it falls below the criminal threshold.

Each allegation should be considered individually in order to determine whether the alleged conduct is sexual misconduct under the scheme. In deciding whether alleged conduct is sexual misconduct, it may be helpful to consider whether that conduct:

- amounts to misconduct

- is of a sexual nature, [37] and

- occurred against, with or in the presence of, a child.

...

While it is not possible to list all of the different types of conduct of a sexual nature, it may be helpful to have regard to following factors including:

- the area of the body involved in the conduct,

- whether at least one of the reasons for the conduct was for sexual arousal or gratification, or

- whether the conduct was overly personal or intimate.

1. Grooming behaviour is discussed under the heading 'Sexual arousal or gratification'. The heading underlines the necessary context of the behaviour:

If at least one of the reasons for the misconduct was for potential or actual sexual arousal or gratification, this can indicate that the misconduct was of a sexual nature. Such a finding should be made having regard not only to any reasons given by the worker or volunteer for their behaviour, but to all of the circumstances.

Grooming behaviour can be sexual misconduct. Grooming can involve the use of a variety of manipulative and controlling techniques used to build trust or normalise sexually harmful behaviour with the overall aim of facilitating exploitation or preventing disclosure (or both). Grooming can target those involved in gaining access to the child's life, including parents and other caregivers, colleagues and others in an organisation.

Some examples of some grooming behaviours include:

- initiating opportunities for unsupervised contact with a child or group of children

- spending inappropriate special time with a child

- inappropriately showing special favours to one child over others.

1. Under s 105 of the WS Act, VCAT has jurisdiction to hear and determine the substantive application and in doing so will have regard to the criteria in s 108 of the WS Act, which, essentially, requires an assessment of risk under specified criteria, and a decision as to whether or not an applicant poses an 'unjustifiable risk' to the safety of children.
2. In short, before confirming the Exclusion decision, the Tribunal would be required to be satisfied, to the requisite standard that:
   • it would be appropriate to refuse to give a clearance, having regard to specified criteria in s 65(2) of the WS Act, which in turn are focussed on assessing any relevant risk;[38]
   • a reasonable person would not allow their child to have direct contact with Mr Bradley (if so, VCAT must determine that it is appropriate to refuse to give a WWC clearance);[39] or
   • Mr Bradley's engagement in any type of child-related work would pose an unjustifiable risk to the safety of children (if so, VCAT must determine that it is appropriate to refuse to give a WWC clearance).[40]
3. As discussed earlier, Mr Bradley admits the event which triggered the investigation, and agrees it should not have happened. He says that he had only just arrived when the two case workers came. He recognises, however, that he should not have stayed in the house once he realised that the mother was not home.
4. It was undoubtedly reasonable for the two case workers to be concerned on that day, as they were, by walking in and finding Mr Bradley with the girl without the mother home. His presence there clearly raised questions about why he was there, and warranted further investigation.
5. I can see from the investigator's report that the investigator looked back at Mr Bradley's history of contact with the family while he had a professional role, to see if anything relevant had happened during that time. Some of the matters considered did not appear to be relevant, however, for example whether Mr Bradley had paid attention in a training session, and had looked at his phone in meetings.[41]
6. Other matters, reasonably, required investigation. For example, Mr Bradley and the girl exchanged text messages after his role finished.
7. While that fact was, of course, a concern, what was also relevant was the statement of Detective Senior Constable Brett Angell that, on reviewing all of the text messages, at no stage did he observe any indication of possible inappropriate, grooming or criminal behaviour.[42]
8. Mr Bradley contends that the opinion of DSC Angell, an experienced SOCIT team member, has weight in a decision about whether he engaged in sexual misconduct, constituted by grooming.
9. This is an issue of the weight to be given to that opinion when considering whether grooming has been established here, on the civil standard, with Briginshaw principles in mind.
10. I note that the Investigation Outcome Report refers to 'Police advice that they inspected the mobile telephone in the possession of the alleged victim and observed texts from Bradley' but does not refer to the opinion of the relevant police member that there was no indication of grooming behaviour.[43]
11. Other evidence countered what appeared to a suspicion that Mr Bradley had given the girl a phone to contact her on, and concerns about the potential content of the calls. An email in December 2023[44] recorded an update from SOCIT that:
    • The client phone belongs to Villa Maria (it has been lost for 3 years and they have continued to pay the account). It appears the phone was obtained by the clients older sister who has been using the SIM and passed it onto the client.
    • SOCIT have reviewed the phone and there is nothing to indicate any criminal activity. All correspondence between TB and the client appears to be about her engaging in school and when TB has arranged to attend the home he has asked if the clients mother would be home.

1. The question will be whether the finding made was ultimately the right one, and whether an Exclusion decision is appropriate in all the circumstances.
2. In other words, while a suspicion of grooming may reasonably have been raised (and a report necessarily made to the CCYP about it), was a finding of grooming behaviour in fact available on the relevant evidence, including evidence that countered the conclusion, under the Briginshaw principles?
3. The requirement that to constitute grooming the conduct be of a sexual nature or have a sexual purpose is likely to be relevant.
4. On the basis of Mr Bradley's responses to the investigator, the Secretary, the supporting documents, and his submissions in this proceeding, a number of other matters listed in the investigator's findings and investigation outcome report[45] are in dispute.
5. In some cases, the facts found are disputed, in other cases the conclusions drawn from the facts are disputed.
6. As to Mr Bradley's contention that the investigation was neither impartial nor objective, an email to the WWC unit, referred to earlier, provides some support and is relied on by Mr Bradley. It is from the CEO of the agency that employed Mr Bradley after he left his former employer. It is addressed to the WWC unit.[46]
7. As I understand it, it is usually the case that a person's current employer will carry out any investigation of reportable conduct allegations.[47] In this case the email notes that it was conducted and led by his former employer, but with some involvement from the current employer.
8. Specifically, a manager with his current employer supported Mr Bradley through the process, interacted with the investigator and with SOCIT, and facilitated (and attended herself at) the interview with Mr Bradley by the investigator, taking notes.
9. The email from the CEO to the WWC unit states:

I would like to note with you that [agency name]'s investigator was in our view not impartial and objective, and did not accord Timothy Bradley principles of natural justice during the investigation process and in his treatment of Timothy. Hence the interview between the investigator and Timothy was not constructive.

1. I stress that I am not deciding whether Mr Bradley is right or wrong when he contends that the investigation was biased or flawed. [48] I do not underestimate what may be the challenges in such an investigation. Grooming, if established, is a serious matter. If suspected, it requires thorough and careful investigation.
2. At the hearing of the substantive application, the reliability of the finding will nevertheless be in issue, including whether the evidence, properly considered, supports a finding of sexual misconduct, and whether irrelevant historical workplace matters were taken into account as relevant to the question of whether Mr Bradley had engaged in grooming.
3. This in turn is relevant to the Tribunal's assessment under s 108 of the WS Act and its assessment of whether WWC exclusion is appropriate or not.
4. Other issues to be considered on the substantive application include the extent to which Mr Bradley currently poses a risk to the safety of children, including considering evidence of remorse, insight, and rehabilitation.
5. The material in the bundle, including his April 2024 response to the Secretary,[49] indicates that Mr Bradley has already expressed deep remorse at his 'poor choice' not to leave the house immediately, and the consequences of the investigation on the girl and her family, which included the involvement of child protection services.[50]
6. From discussions at the hearing, it is likely that Mr Bradley will provide additional evidence, including a further report he said he would obtain.
7. The many character references provided by Mr Bradley in the investigation and to the respondent are highly favourable. They support the absence of any identified risk in those persons' experience of Mr Bradley.
8. They come from a range of experienced youth work professionals, including a senior child protection practitioner with the DFFH; parents of children he had helped; and colleagues at services offering various programs focussed on young people, including a colleague at his former employer. They speak to his professionalism, knowledge, experience, and client centred approach.
9. While character references are never determinative and will have varying weight depending on their contents and relevance, in this case the evidence of the character referees is likely to be relevant.[51]
10. Taking the above matters into account, there are a series of serious issues to be tried. This factor favours the grant of a stay.

1. As the guidance from the cases indicates, this factor involves balancing the private interests of the applicant with the public interest, with greater weight given to the public interest in most cases.
2. As noted above there is a public interest in the protection of children from harm.
3. It is an explicit objective of the WWC regime in the WS Act, and the paramount consideration under s 11 when making a decision in relation to WWC checks and clearances under the WS Act.
4. It has been an important consideration when evaluating what the public interest may require in applications to stay WWC exclusion decisions, where granting a stay would enable the person to return to child-related work.
5. The respondent submitted that:
   • A stay is inconsistent with the purposes of the recent amendments to the WS Act to prohibit persons in Mr Bradley's position from engaging in child-related work pending a thorough final determination; and
   • it is in the public interest to give effect to the recent, more stringent requirements for holding a WWC clearance and engaging in child-related work
6. I agree with the summary of the purposes of the recent amendments in the first dot point.
7. The recent amendments, however, achieve their purpose - whether or not I grant a stay, Mr Bradley will not be able to engage in child-related work pending the outcome of his substantive application.
8. The amendments themselves, therefore, provide an effective means of protection of children, (as they were intended to do) regardless of whether the individual might pose any risk.
9. Unlike previously, when a stay would enable a person issued with an interim exclusion in the course of an assessment to continue to engage in child-related work, they cannot now do so, and anyone who employed them would risk committing an offence under s 123(1).[52]
10. The public interest in the protection of children from potential harm is, in that sense, a neutral factor as a result of the amendments and neither weighs for or against granting a stay in this case.
11. I refer to without repeating the discussion earlier of prejudice Mr Bradley has experienced as a result of the Exclusion decision. The prejudice suffered by Mr Bradley and the risk of further harm to him in the interim mean that, overall, this factor tends to favour a stay.

THE PERIOD OF TIME WHICH WILL ELAPSE BEFORE THE HEARING OF THE APPLICATION FOR REVIEW

1. I advised at the hearing that the Tribunal was then listing Review and Regulation List cases, that were otherwise ready to go to a one-day hearing, in June 2026, and multi-day hearings in July 2026.
2. There is work to be done by both parties before this proceeding will be ready to be listed for hearing. By then, the delay in having matters listed for hearing may have been able to be reduced. But it will still be a significant time before the substantive application can be heard and determined.
3. The respondent submitted that this factor should not be given any weight where the applicant would not be able to engage in child-related work in any event.
4. I disagree with the submission. In circumstances where there are serious issues to be tried, and a risk of continuing prejudice and harm, this factor favours the granting of a stay.

1. As the recent amendments determine the position that Mr Bradley will not be able to engage in child-related work in any event, this is not a case where undertakings or conditions would be considered.

1. In circumstances where the relevant factors are either neutral or weigh in favour of a stay, and in the exercise of my discretion under s 50(3) of the VCAT Act, a stay will be granted.

[1] The effect of a stay is to restore the status quo prior to the decision until the final determination of the application for review_. McCall v Department of Government Services_ [2023] VCAT 728 ('McCall') at [29].

[3] Hansard, Legislate Assembly, 26 August 2025, Attorney-General, Statement of Compatibility p3166; Second Reading Speech, p3170.

[4] McCall at [12], footnoted as 'Ibid s 78(3) and s 121(1)(a)'.

[5] for the purposes of Part 6.2 (which sets out offences related to child-related work) or Part 6.3 (General).

[6] Sections 121(2) to (4) set out exceptions to the offence provision in s 121(1). Amendments to s 121(2) are noted later.

[7] Although not specified in the submissions, s 121(2)(a) appears to be relevant exception.

[8] Where a category A decision has been made under s 60 or s 82. Not applicable here.

[9] Ibid, Second Reading Speech, p 3170.

[10] Set out in s 79(1), which remains unchanged. Section 87A is an additional power to suspend.

[11] Each of which begins, 'A person is not guilty of an offence under subsection (1) if, at the time the offence is committed.

[12] See McCall at [18]. Also at [33]-[42] in relation to the question of whether a stay would be futile in that case, finding that it would not; and the discussion in RMY v Secretary to the Department of Government Services [2024] VCAT 303 ('RMY') at [35]-[38].

[14] The paramount consideration under the WS Act, under s 11.

[15] If the criteria in s 123(1) applied, and none of the exceptions in s 123(2) to (4) applied.

[17] [2000] VCAT 214 ('Bell v Eager'). See also RMY; and HSK v Secretary to the Department of Government Services [2024] VCAT 654 ('HSK').

[18] HUD v Secretary to the Department of Justice (Review and Regulation) [2013] VCAT 331 at [100].

[19] The respondent's submissions referred to HSK and RMY in this context.

[20] He gave as an example the ability to work as a pathology service driver.

[21] Unintended by the framework and purposes of the WS Act.

[23] Respondent's statement of reasons, p 5.

[24] As noted below, the CWS Act does not define 'grooming behaviour' and does not set criteria for it.

[25] [1938] HCA 34; (1938) 60 CLR 336 at p 361-2, per Dixon J.

[26] At p 7 of the Statement of Reasons.

[27] This is not intended to be a comprehensive account of the matters in dispute, what matters the investigator relied on, and what might be the evidence one way or the other. The bundle of documents is 455 pages.

[29] A letter dated 12 May 2024 from a current employee of the former employer supports Mr Bradley's contention that several of the findings relied on were incorrect. Bundle p 93.

[30] Supported by an email in December 2023: 'SOCIT have reviewed the (client) phone and there is nothing to indicate any criminal activity. All correspondence between TB and the client appears to be about her engaging in school and when TB has arranged to attend the home he has asked if the clients mother would be home'. Bundle p 262.

[31] In her interview with the investigator, she said she didn't feel comfortable going to school early. She also said he didn't go into her bedroom, they didn't play games around the house, on that day he was 'just checking up on me'. Bundle pp 276-277.

[32] In the interview with the child and her mother the mother says she knew he was coming on the day in question but forgot he was going to come; and that she knew he was no longer with his former employer but 'he just wanted to check on her... We didn't think anything of it, we thought he was being kind they had a good relationship when they were working together.' Bundle p 277.

[33] Sexual Offences and Child Abuse Investigation Team.

[34] Defined as 'an offence referred to in clause 1 of Schedule 1 to the Sentencing Act 1991'.

[36] Information Sheet 9: Sexual misconduct under the Reportable Conduct Scheme. Bundle p 272.

[37] It is not clear whether the investigator considered this aspect of the guidance.

[38] Section 108(1).

[39] Section 108(2)(a).

[40] Section 108(2)(b). Under s 108(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.

[43] The investigator's full report dated 5 February 2024 Bundle p 91-101 attaches DSC Angell's statement as attachment H.

[48] I note the investigator's final report refers to Mr Bradley raising, in the interview with him, allegations of bullying by his former manager, and Mr Bradley's concerns about a conflict of interest for the investigator. The investigator responds in the report itself, including rejecting that he had a conflict of interest, writing that he wasn't involved in performance management of Mr Bradley and had not had direct interaction with him while he was employed. Bundle pp 95-96.

[50] A closure letter dated 19 January 2024, at Bundle p 301 indicates that while the investigation was occurring, a safety plan was put in place that there be no further contact between the girl and Mr Bradley (which remains the case). As the respondent submits, child protection recorded that the case had been substantiated with Mr Bradley assessed as responsible for harm. The closure letter also noted that 'there have been no disclosures from [name], in regards to any abuse or concerning behaviours from Mr Bradley'. Closure summary 19 January 2024. Bundle p 312.

[51] As discussed at the stay hearing, if the respondent wishes to challenge that evidence, it will be necessary for the respondent to advise that the witness is required to attend for cross-examination.

[52] If the criteria in s 123(1) applied, and none of the exceptions in s 123(2) to (4) applied.