1. The applicant was married in 2014. He and his wife came to Melbourne from India in 2015. He became an Australian citizen in July 2020. He completed a Certificate 3 in aged care in Victoria.
2. Due to visa requirements, as I understand it, the applicant had to work in a regional location for two years. That is what took him to South Australia in January 2017. Initially, he worked as an office manager for a transport company.
3. The applicant was also employed casually as a carer in various nursing homes (albeit for extended periods) during his four years in South Australia. His first role was with an agency called Altaira from February to November 2017.
4. The applicant worked for Eldercare (operated by the Uniting Church) from July 2018 to November 2020.
5. He worked for Anglicare from November 2017 to 30 May 2019, the date of the alleged assault of a resident in a nursing home run by Anglicare.
6. Shortly after, the applicant was charged by police with aggravated assault of the nursing home resident. He was stood down from nursing home work. He said that when he disclosed the allegation to Eldercare, that organisation took the stance that he was a good worker, and continued to pay him for two months, even though he was not working. He said they told him he would be welcome to return - presumably on the assumption that the charge against him was not ultimately proved.
7. When the charge was dropped, in October 2019, the applicant resumed working at Eldercare.[2] He worked there until the end of November 2020, when he was preparing to return to Melbourne.
8. The applicant did not return to Anglicare. Asked why not, he said that while his co-workers supported him (with the exception of the colleague who had made the allegation against him) he did not feel comfortable about returning there.
9. Instead, from late October 2020 to late January 2021, the applicant worked in disability services for HCO Disability and Community Services Inc as a support worker. This was his first job in disability. It involved assisting residents with daily living tasks in residential units of five-ten residents. (I understand the role which he was subsequently offered to be a similar one.)
10. In January 2021, he returned to Melbourne, where he and his wife have now bought a house, and intend to remain with their growing family.

1. The three referees nominated by the applicant for the hearing listed on 19 January 2022 were his wife, her sister and her sister's husband. They all work in aged care and have all worked with the applicant on some occasions. After the applicant and those three witnesses had given their evidence and been cross-examined, I adjourned the hearing to give the applicant the opportunity to obtain any additional references he was able to, from persons not related to him.
2. However, the applicant later indicated that having moved back to Melbourne, he is no longer in contact with the people with whom he worked when he was employed in South Australia. Hence, he did not provide any further references. Nor did he ultimately provide any further written submissions after the hearing addressing the specific statutory criteria. Nevertheless, the evidence given in the hearing, and the submissions which the applicant made prior to, and during the hearing, did cover the applicable criteria. In these circumstances, the Tribunal has proceeded to make its decision on the basis of the evidence it received from the applicant and the witnesses he called, plus the submissions received from him at the hearing, as well as the Final Submissions received after the hearing from the respondent.

1. The respondent's Submissions helpfully set out the statutory framework, and context to the decision being reviewed. They state as follows, at paragraphs 19 - 40 (including footnotes):

1. Under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and the National Disability Insurance Scheme (Practice Standards - Worker Screening Rules 2018 (Cth) (NDIS Rules), registered NDIS providers are required to meet worker screening requirements, including that certain workers are subject to an NDIS check as a condition of registration. This check is intended to guarantee that key workers in roles delivering NDIS supports or specified NDIS services do not pose an unacceptable risk to the safety of NDIS participants.[3] 2. On 3 May 2018, the Commonwealth government and all States and Territories entered into an 'Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme' (the Agreement). The Agreement sets out the national policy for the NDIS worker screening. Under the Agreement all jurisdictions agreed to implement, through legislation, nationally consistent NDIS worker screening. 3. On 1 February 2021, the WS Act commenced. This legislation implements Victoria's commitment to the Agreement and sets out the legal framework for NDIS worker screening in Victoria.[4] Due to the national consistency of NDIS worker screening an NDIS clearance or exclusion is nationally portable across roles and employers within in the NDIS in all states and territories.[5]

2. An NDIS check application is made under s 15 of the WS Act. It is only mandatory for a person who has been or will be employed or engaged in a 'risk assessed role' with an NDIS provider to apply for an NDIS check.[6] A 'risk assessed role' has the same meaning under the WS Act as it has in the NDIS Rules. It means:

(a) a key personnel role of a person or an entity; as defined in s11A of the NDIS Act; or

(b) a role for which the normal duties include the direct delivery of specified supports or services to a person with disability; or

(c) a role for which the normal duties are likely to require more than incidental contact with a person with disability, which includes:

(a) physical touching a person with a disability, or

(b) building a rapport with a person with disability as an integral and ordinary part of the performance of normal duties; or

(c) having contact with multiple people with disability as part of the direct delivery of a specialist disability support or service, or in a specialist disability accommodation setting.

1. Once an application is received, the Respondent must conduct a police record check and a check of the NDIS worker screening database.[7] The Respondent must also make enquiries with the Secretary to the Department of Health and Human Services in relation to whether the applicant has previously been assessed as posing an unacceptable risk to persons with a disability or an NDIS participant.[8]
2. The Respondent must not consider an application unless he is notified by the NDIS Commission that it has verified that the applicant has been or will be employed or engaged in a risk assessed role.[9] If notification is not received then the Respondent cannot consider the application and must consider it withdrawn.[10]
3. On receipt of the police record check, the application is categorised into either a category A, B or C application. Section 23 sets out when an application is considered an NDIS category A application, s 25 sets out when an application is an NDIS category B application, and s 27 sets out when an application is an NDIS category C application. The category of the application determines how the application is assessed.[11]
4. After assessment against the appropriate tests, the Respondent will decide whether to grant an NDIS clearance or an NDIS exclusion. If the applicant receives an NDIS clearance it is in place for 5 years from the date of issuing but subject to ongoing monitoring.[12] If the applicant receives an NDIS exclusion they are barred from applying for another NDIS check for 5 years.[13]
5. If the Respondent intends to issue an NDIS exclusion the Respondent must notify the applicant of his intention, issue an interim NDIS exclusion and offer the applicant a chance to make submissions in support of their application.[14] The Respondent considers the submissions before making a final decision to issue a NDIS clearance or a NDIS exclusion.

6. Chapter 4, Part 4.1 of the WS Act provides for internal review of decisions relating to NDIS clearances, in particular the right to review the decision to issue an NDIS exclusion.[15] On review of the decision the Respondent may issue an NDIS exclusion or NDIS clearance.[16] If an NDIS exclusion is issued the applicant then has the right to apply to VCAT for a review the decision.[17]
7. VCAT's review jurisdiction is only enlivened after an internal review decision is made.[18] Section 101 of the WS Act sets out VCAT's jurisdiction.

8. The Applicant's NDIS check application was assessed as a NDIS category C application because it fall within s27(1)(c) of the WS Act. This subsection provides that an application for an NDIS check is an NDIS category C application if it is in respect of a person who has at any time been charged with an NDIS category A offence or an NDIS category B offence if the charge has been finally dealt with other than by way of a conviction or finding of guilt.
9. The Applicant's charges for the family violence complaint are category B offences pursuant to clauses 10 and 36 of Schedule 3 of the WS Act.[19] The Applicant's charge for the nursing home complaint is a category A offence pursuant to clauses 12(e) and 58 of Schedule 1 of the WS Act.[20]
10. The meaning of 'finding of guilt' is found in s 4 of the WS Act, and the meaning of 'charged with an offence' is found in s 5 of the WS Act. The Applicant was charged with the offences as defined by the WS Act, but there was no 'finding of guilt' as defined by the WS Act. The family violence complaint charges were withdrawn, and the nursing home complaint charge was 'not proceeded with'.
11. Therefore, although the Applicant was charged with category A and B offences, the offences were dealt with other than by way of a conviction or finding of guilt. As such the offences fall within s 27(1)(c) of the WS Act and the Applicant's application is an NDIS category C application.

VCAT's jurisdiction to review the Respondent's decision

12. Relevantly s 101(1)(c) of the WS Act provides that VCAT can review an NDIS category C decision. A category C decision is a decision by the Respondent on internal review, to give an NDIS exclusion on an NDIS category C application.[21]
13. Section 103 of the WS Act sets out the tests VCAT must apply when reviewing an NDIS category C decision. Section 103 states (emphasis added):

(1) On a review of an NDIS category C decision, VCAT must determine that it is appropriate to refuse to give the applicant an NDIS clearance unless satisfied that the applicant does not pose an unacceptable risk of harm to persons with a disability, having regard to the following_ - _

(a) the nature, gravity, and circumstances of the conduct;

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

(c) the vulnerability of the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(d) the applicant's relationship to the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(e) whether the applicant had a position of authority in relation to the victim at the time the applicant engaged, or allegedly engaged, in the conduct;

(f) the applicant's criminal, misconduct, and disciplinary history, including whether there is a pattern of concerning behaviour;

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

(h) all other relevant circumstances in respect of the applicant's offending, misconduct, or other relevant history;

(i) any other matter that VCAT considers relevant.

(2) Even if VCAT does not determine that it is appropriate to refuse the applicant an NDIS clearance under subsection (1), VCAT must not determine that it is appropriate to give the person an NDIS clearance unless satisfied that it would be in the public interest to do so.

Non-Conviction Charges

1. The Applicant's offences did not result in a conviction or finding of guilty, these charges are referred to as 'non-conviction charges. Non-conviction charges are not only a relevant matter for VCAT's consideration in determining the Application, but are specific mandatory considerations pursuant to s 46 of the WS Act.[22] Additionally, the factors to be considered when determining risk on an NDIS check, do not relate to the specific charge or sentencing outcome but to the 'conduct' of the Applicant and the 'vulnerability' of the victim.
2. Generally, a person is entitled to the full benefit of an acquittal, but the WS Act expressly displaces this entitlement and requires VCAT to consider non-conviction charges.[23] Non-conviction charges require VCAT to examine the conduct underpinning the non-conviction charges. VCAT does not do so to reverse or impugn the finding of a criminal court, but to undertake the mandatory, legislative risk assessment to determine whether or not a particular person can be granted an NDIS clearance.

3. In addition to the considerations and tests in s 103 of the WS Act, VCAT must also consider the purpose of the WS Act and the paramount consideration under s 10 of the WS Act.
4. One of the main purposes of the WS Act is to provide for screening of persons employed or engaged in risk assessed roles for the purposes of the National Disability Insurance Scheme.[24] In the second reading speech, the Honourable Attorney-General Jill Hennessy stated

"the commencement of the new NDIS check ... is intended to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or service under the NDIS."[25]

5. Section 10 of the WS Act provides that when VCAT makes a decision or takes an action under that Act, "the health, safety and well-being of persons with disability and in particular, the protection of persons with a disability from abuse, violence, neglect and exploitation must be the paramount consideration" (emphasis added).
6. Under s 27(1)(c), this application falls within category C. Accordingly, the Tribunal is required to apply the nine criteria in s 103(1) and the public interest test in s 103(2).

Similarities and differences with the WWC regime

1. As noted, in Victoria, the implementation of the national intergovernmental agreement to introduce the NDIS involved adding an additional parallel system of regulation for the protection of persons with a disability, to the existing scheme for the protection of children from sexual or physical harm. The former Working with Children Act 2005 (WWC Act) was repealed and re-enacted, together with the disability protection regime, in the form of the Act. The Act commenced operation on 1 February 2021.
2. There are obvious similarities between the two regimes. The basic framework of there being a requirement to obtain a NDIS/ WWC clearance, of there being different criteria for category A, B and C applications, as defined, according to differing levels of seriousness and risk, and of the Tribunal having jurisdiction to review decisions made by the agency, is broadly the same.
3. A paramount consideration is specified for each. Under s 10, the paramount consideration for an NDIS check is:

...the health, safety and well-being of persons with a disability and in particular, the protection of persons with a disability from abuse, violence, neglect and exploitation...

1. Under s 11, the paramount consideration for a WWC check is:

...the protection of children from sexual or physical harm...

1. But there are some significant differences. These include:
   • The NDIS regime is part of a national scheme, and a Victorian clearance or exclusion applies nationally.
   • There are significant differences between the lists of offences specified in the Schedules to the Act for NDIS and WWC category A and B matters, reflecting their different focus on disability and children, respectively.
   • The level of risk applicable to the consideration of NDIS and WWC applications is differently expressed. For NDIS category B applications, the decision-maker must consider whether there are 'exceptional circumstances' (ss 26, 102). For a category C application, the decision-maker must consider the issue of whether the applicant does not pose an 'unacceptable risk' of harm' (ss 28, 103). Concerning a WWS application, the decision-maker must consider the concept of 'unjustifiable risk'.
   • Although there are some similarities, the detailed criteria to be considered by the decision-maker concerning NDIS applications differ significantly from those concerning WWC applications. For category C applications, there are eight criteria set out for NDIS applications (s 28)[26] and 10 for the WWC (ss 65 and 108). Both regimes include consideration of the nature and gravity of the conduct, the period of time which has elapsed since the conduct, and the applicant's behaviour since then. But the criteria are mostly differently expressed aside from that. The NDIS regime does not include explicit reference to 'the likelihood of future threat' caused by the applicant, whereas the WWC regime does.
   • Under s 20 of the Act, the respondent must not consider an application unless he is notified by the NDIS Commission that it has verified that the applicant has been or will be employed or engaged in a risk assessed role. Otherwise, it must not consider the application and treat it as withdrawn.
2. The key criterion for consideration of NDIS applications is that VCAT must be satisfied that an applicant does not pose an unacceptable risk of harm to persons with a disability, having regard to the nine matters set out in s 103(1).
3. The Macquarie Dictionary (online edition) defines 'unacceptable' as: 'so far from a required standard, norm, expectation, etc., as not to be allowed'.
4. This indicates that, similarly to the question in the WWC jurisdiction as to whether 'unjustifiable risk' exists, the Tribunal is required to carry out an analysis of the various relevant risks and make an 'evaluative judgement'[27] as to the magnitude of the risk overall. And in particular, whether it is of such magnitude as to be 'unacceptable'. As with the WWC jurisdiction, it is not required that there be no risk at all.[28]

1. I deal with the nursing home complaint first, as this is directly relevant to the application for an NDIS clearance.
2. The South Australian police issued a single charge against the applicant in relation to the nursing home complaint. It was a charge of aggravated common assault. The aggravating factor was the age of the victim.[30] It was brought under s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLC Act).
3. The police summary of the incident on 30 May 2019 said: [31]

VICTIM

The victim is a resident at the ... nursing home and is suffering from advanced front lobe dementia as well as other behavioural issues.

The victim is unable to talk or communicate properly due to his condition and is unable to give a statement in relation to this matter.

WITNESS

The witness [in] this matter is a ...of ...[The witness] was at work at ...Nursing Home where he works as personal care worker. [The witness] has been caring for the victim as part of his duties since the victim arrived in his ward about one week before the incident.

At about 8.30pm on the 30/05/2019 [the witness] was at work and was working the shift with the accused [(DHU)] who is another personal care worker. [The witness] had only been working with the accused on a couple of occasions previous to this day.

The witness and the accused lifted the victim into his bed using the aid of a mechanical lifter.

As part of the victim's condition, he constantly puffs his cheeks up and blows air out of his mouth.

The witness states that the accused placed his hand over the victim's mouth twice during the process of getting the victim into bed. The victim stated he did not really understand why the accused did this and he did not see any reason to do this.[32]

Once the victim was in bed the accused and witness were standing on either side of the bed. They both took hold of a sheet and pulled it up to cover the victim. The victim again puffed his cheeks and began to expel air. As he did this the accused punched the victim in the left side of the face with a clenched fist.

The victim, who is unable to talk much then stated, "HE PUNCHED ME" The victim then looked at the witness and said "HE HIT ME."

The victim looked very shocked and distressed. The accused did not react, and the witness stated he was also in shock and did not know what to do.

The witness continued his duties and returned to check on the victim at about 10pm. The victim was asleep and had nil visible injuries to the face.

The witness reported the matter to the registered nurse who was the supervisor on duty. The matter was then reported to the police on the 31/05/2019.

1. In his evidence, the applicant firmly denied punching the resident, or having any contact with his face. The applicant demonstrated that he placed his flat hand at a distance which appeared to me to be between 10 and 20 cm away from the resident's mouth (not 5 cm, as the applicant said in his written statement) to prevent him blowing air into his face.
2. This occurred while he and his co-worker were changing the resident's incontinence pad. This procedure involved two carers standing on either side of the bed, and rolling him over from one side to the other.
3. The applicant said that the resident was not able to speak, so could not have uttered the words alleged. He noted that the worker who reported the incident was friendly with him for the rest of the shift, and did not raise the issue with him at the time. He could not suggest a motive for what he said was a false allegation, save that he had previously suggested to him that he needed to be kinder to the residents, after the co-worker had berated a female resident, who was particularly noisy.
4. As discussed further below, nothing arose during the course of the hearing process which caused me to question the applicant's honesty as a witness. His manner was frank and open. He made concessions where appropriate. I accept his evidence was honestly given.
5. The record of the Magistrates' Court of South Australia indicates the following: On 14 June 2019, bail conditions were imposed by the Court prohibiting the applicant from working in aged care. These were varied on 3 July 2019 so as to allow the applicant to work in aged care, except at the Anglicare home where the alleged incident occurred. On 24 July 2019, there was a mention or pre-trial conference at which it was indicated the matter would be contested. On 17 September 2019, there was a pre-trial conference at which the matter was adjourned to a one day contested hearing. Then, on 30 October 2019, the charge was dismissed following advice from the police that the matter was 'not proceeded with'. The applicant had been legally represented at the last three of these hearings. The police later indicated that the charge was withdrawn on the basis that there was no reasonable prospect of conviction.[33]

1. As noted, the South Australian police issued two charges in relation to the family violence incident. The first was aggravated assault, under s 20(3) of the CLC Act.[34] The second was 'choke, suffocate or strangle a person in domestic setting', under s 20A of the CLC Act.
2. The respondent said:

These charges relate to the same event where it was alleged that the Applicant threw a jug of water and a blanket over his wife, and further grabbed her around the throat with pressure (the family violence complaint).[35]

1. Under the heading 'Victim Version', the police summary of the incident said: [36]

The victim in this matter is ...She stated that at about 2.00pm on Monday 1st April 2019 while at her home address of ... the accused and husband of 5 years threw water over her and grabbed her around her throat using his right hand without permission. They have one (1) child together, aged twenty one (21) days.

The victim stated she was lying on her bed in the living room with their new born child who was asleep. The accused then entered the living room and dropped and threw something which made a loud noise, the victim then asked him to be [quiet].

The accused then picked up a jug of water and threw the water over the victim, child, and bed. The victim asked what he was doing, and the accused then threw a blanket over the accused.

The victim then stood up and the accused grabbed her around the throat/front of neck using his right hand. The victim stated there was pressure, not too hard or not too soft. The victim gave no permission and felt scared for her safety.

The victim mother...saw this and pulled the accused away from the victim.

The victim then attempted to contact police and dialled triple zero (000) before the accused grabbed her phone and disconnected the accused.

1. The applicant and his wife both gave evidence about this incident. The following description is drawn from the evidence of both.
2. Changes and additional pressures had arisen in their lives with the birth of their first child 21 days earlier, in March 2019. The applicant's wife had postnatal depression. Her mother had come to stay with them at the time (apparently from India).
3. Concerning the incident on 1 April 2019 itself, the applicant's wife said an argument broke out when she complained about noise made by the applicant which might disturb the baby, as he was preparing to go to work. The applicant grabbed her, and she also grabbed him. He was aggressive towards her and she was aggressive towards him. They were both angry. She said, 'We were both involved 50/50'.
4. Nevertheless, as a man, he was stronger than her, she was physically scared. She rang 000 several times. Once, her mother grabbed the phone from her, trying to stop the call. Ultimately, the police rang the applicant's wife, she did not pick up and so the police attended their house. The applicant was then taken into custody.
5. An IVO was imposed. The applicant was charged with aggravated assault against his spouse, and 'Choke, suffocate or strangle a person in a domestic setting'. He was not allowed to live at the matrimonial home. Once released from custody, he lived with his brother-in-law and sister-in-law.
6. The applicant's wife said this was the first time such an incident had occurred. After reflection, she decided to give him another chance. She said she sought to drop the charges, but the police told her the matter was 'already in court'. She said that she was aware that in Australia, she has a right to call police if anything happens to her. She gave the impression of a woman who is reasonably confident of her own security.
7. The applicant's wife said that as a result of this experience, and the classes the applicant had attended (see below) his demeanour improved. She said he has become a nicer person. He is calm now. When something happens now, instead of acting quickly, 'he just sits, smooth, not suddenly action...'
8. Asked whether, before the incident, her husband was argumentative, she said no.
9. In summary, the applicant's wife said now 'everything is pretty good'.
10. In relation to the incident on 1 April 2019 itself, Ms Rhodes, for the respondent, suggested that there were material inconsistencies between different statements made by the applicant, and between his evidence and his wife's, in relation to three aspects: the water, the blanket and the extent of physical contact by the applicant.
11. I refer first to the alleged inconsistencies in relation to the water thrown by the applicant, and the blanket. In my view, these are not significant. Some of the water landed on his wife. I accept the applicant's statement that he threw the blanket to distract her as they approached each other in anger.
12. Concerning the extent of physical contact, the brief summary drafted by police of the 'Victim Version' said that the applicant grabbed her around the 'throat/front of neck using his right hand, with pressure which was 'not too hard or not too soft'. In his oral evidence, the applicant referred to pushing her away with open hand which contacted her shoulders/chest/neck area, not her throat. I accept that there was moderate force, and the applicant's wife was physically scared.
13. In the context of the evidence overall, I do not regard what differences there were between the versions of the husband and wife about the extent of physical contact as detracting from the applicant's credit. The differences between their accounts are subtle. Neither appear to speak English as their first language. The police account appears not to be fully accurate. For example, it appears to be incorrect in that, during her oral evidence, the applicant's wife said it was her mother who grabbed the phone from her, not her husband.

Evidence of the applicant's brother-in-law and sister-in-law

1. The witness statements of the applicant's wife, brother-in-law and sister-in-law contain some identical text. The three of them all agreed that they had a three-way conversation, and between them, came up with the witness statements, which the applicant then typed up.
2. This, together with the fact of the family relationship between the applicant and those two character witnesses, which became apparent during the hearing, might give rise to concerns about the veracity or accuracy of their evidence. In this case, however, I do not regard these as matters which undermine the applicant's case, in terms of credit. It appears the applicant did not realise at the time that it would have been preferable for each witness to produce their own statement, in their own words. However, each gave their oral testimony independently, and I was satisfied that it represented their own individual evidence.
3. As persons related to the applicant through marriage, their evidence is obviously not completely objective. Hence, their evidence is not as strong as if it had come from persons who are independent of the applicant. But I do not regard the evidence of any of them as dishonest.
4. The key statement in both references is their opinion that the applicant does not pose a risk to persons with a disability or anyone. They say that in the seven years they have known him, he has been a decent, hardworking and trustworthy person.
5. Both the applicant's brother-in-law and sister-in-law have observed the applicant first-hand in a carer role, from having worked with him at the Eldercare nursing home in South Australia. Both have been working there since before the applicant started in 2018, and both were still there at the time of the hearing. Neither has worked at Anglicare.
6. The brother-in-law is an Enrolled Nurse, with responsibility for supervising carers such as the applicant, as well as giving medications. He would generally have responsibility for about 25 residents. When shifts coincided, he supervised the applicant at Eldercare. He said in oral evidence that he had never observed the applicant do anything wrong. Additionally, he had never heard anything against him from others in the workplace - 'the way you do with some'.
7. The sister-in-law has worked at Eldercare since 2012. Sometimes, she and the applicant worked as partners on shifts. She said he was good at his job. Asked if he had ever shown aggression, or lost his temper, she said no, he was very patient with residents. Nor had she heard anything bad from others about him from her discussions with staff.

1. As stated, given that criminal charges were withdrawn in relation to both of the two incidents being considered, the application falls within category C. Such charges are generally referred to as 'non-conviction charges'.
2. The respondent indicated it was not aware of any prior decisions concerning non-conviction charges in relation to applications for NDIS clearance. It referred to a number of cases in the WWC jurisdiction dealing with non-conviction charges.
3. The framework of the NDIS and WWC regimes with respect to non-conviction charges is similar. Hence, the approach taken to these in the WWC arena provides some assistance when dealing with the non-conviction charges which have triggered the refusal in this case. At the same time, there are clear differences (including differences in the wording of s 103 and s 108) which mean it would be wrong to follow the approach taken in the various WWC cases relating to non-conviction charges too closely. This is in addition to the consideration that in matters of this nature, the factual situations are so widely varying that prior cases are no more than illustrations of the way in which the regime is applied in various circumstances.

1. Vice President Judge Hampel dealt with non-conviction offences in the 2019 case of QPS v Department of Justice and Community Safety.[37] Her honour referred to the second reading speech relating to the introduction of category C offences in the old WWC Act in 2016. This followed the 2015 report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The requirement to consider non-conviction charges was introduced to bring Victoria into line with other jurisdictions. The speech went on to note that compared to other offences, a relatively small proportion of offences involving sexual offending against children are prosecuted successfully. The second reading speech went on to say:

The ability for example to consider such charges for very serious offences that may have been dismissed on a technicality, or may not have proceeded because of the impact on the victim, will assist in a more informed assessment of the risk of person may pose to a child.

In approaching the evidence therefore in respect of the non-conviction charges, my starting point is that the evidence concerning them may be less credible in nature than would flow from a conviction or finding of guilt. It is important to bear in mind the circumstances which resulted in the charges being non-conviction charges.[38]

1. In considering the weight to be given to non-conviction charges, her Honour said at [60]:

The starting point when considering what weight is to be given to the non-conviction charges is, at the risk of stating the obvious that, there is no conviction. The charges were dismissed. Generally, a person is entitled to the full benefit of an acquittal. Here, however, the statutory provision expressly displaces that entitlement.[39]

1. Judge Hampel went on to deal with the particular circumstances in QPS. In that case, four charges had been brought against the WWC applicant. There had been a contested hearing in the Magistrates' Court. The charges were found proved against him after a hearing where the complainant was cross-examined. The applicant was sentenced to a term of imprisonment.
2. However, the applicant appealed to the County Court, where the charges were dismissed after the complainant failed to attend court. In those circumstances, her Honour said that:

...it is proper to take into account that, at first instance, the complainant's evidence was accepted and the magistrate was satisfied beyond reasonable doubt of the guilt of the applicant. The original finding of guilt was followed by a sentence of imprisonment, reflecting the magistrate's assessment of the gravity of the offending. The charges were dismissed on appeal without a re-hearing on the merits. Although proper to regard the non-conviction charges as allegations, not convictions, the original finding of guilt and the circumstances in which the charges were ultimately dismissed, give them greater weight than charges dismissed on the merits.[40]

1. In the 2021 case of Wong v Secretary to the Department of Justice and Community Safety,[41] Deputy President Lambrick referred to several other cases in which she presided, which dealt with non-conviction charges:

In XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT 256, XDU had been acquitted of three charges of sexual penetration of a child under the age of 16 years. Her defence was run on the basis that, although she did sexually penetrate the child, she did not know that the child was under 16.

In that case, I found that the charges were nevertheless relevant for the purposes of the WWC clearance application, despite the acquittal. That was because "whether XDU knew it at the time or not, the end result was that XDU did have sex with a child when she was herself was a mature adult".[42]

Conversely, in JDH v Secretary to the Department of Justice and Regulation [2019] VCAT 18 (JDH) however, I adopted a different approach. I said at [30] to [34] (emphasis added):

Whilst I agree with the Secretary that it was open to me to investigate the intervention order applications and the assault charges levelled against JDH, upon examination I was not satisfied that I could draw any inferences adverse to him based on these matters.

The applications for intervention orders did not proceed to orders being made. I accept that JDH would have contested those applications. The applications were however withdrawn/not proceeded with. There is no basis upon which I could draw adverse findings against JDH in these cases.

The allegations relating to his stepson resulted in the case being struck out with no case to answer.

I agree with the submissions of JDH that these matters have been appropriately tested through the Courts with no adverse findings made against JDH.

In circumstances where the Courts have rejected criminal wrongdoing and have not found any basis to impose final intervention orders, it would be inappropriate for me to look and find otherwise_.[43]_

1. In the 2021 decision in Wong itself, a physiotherapist who was also heavily involved in church-related activities, was refused a WWC clearance. This was on the basis of 16 charges of a sexual nature having been laid against him in 2010. None of those charges proceeded to a finding of guilt.
2. Against Mr Wong was the consideration that the charges arose from complaints from nine different patients who all alleged they had been inappropriately touched on the breasts by Mr Wong during treatment.
3. However, nine charges had been withdrawn by the Director of Public Prosecutions (DPP) before the committal hearing, one was discharged at committal, and the remaining six were withdrawn after the committal by the DPP. Hence, the allegations had been thoroughly scrutinised by the DPP, Magistrates' Court, County Court and the Physiotherapy Board.
4. All the other applicable considerations under the Act ran in Mr Wong's favour. He was ordered to be given a WWC clearance.
5. In the 2021 case of WHI v Secretary to the Department of Justice and Community Safety,[44]a male applicant for a WWC clearance had 10 years earlier been charged with serious offences, following complaints made concerning four women with intellectual disabilities, in a residential facility where he was a carer. Serious criminal charges, including rape, were brought against WHI concerning resident A. The evidence was insufficient to justify charges concerning the other three residents. Two of them were non-verbal.
6. The trial against WHI in relation to resident A ran for five days in the County Court before the charges were withdrawn - a number of preliminary issues had been canvassed and Resident A and her father had completed their evidence. At the commencement of the sixth hearing day, counsel for the DPP informed the Court that he had been instructed that a notice to discontinue the proceedings had been signed. It was filed the next day and the criminal proceeding ended. Counsel for the DPP did not explain why the charges were being discontinued.
7. Ultimately, the conclusion was reached that WHI should be given a WWC clearance. Aside from a number of difficulties with the evidence concerning the complaints relating to all four residents, the applicant had excellent references and an unblemished record over the prior 10 years.
8. The 2022 decision of Kardash v Secretary to the Department of Justice and Community Safety[45], involved a female teacher who, in 1993, had sex with a 16-17-year-old male student at the end of a private student party. This only came to the notice of the police in 2016. The teacher was criminally charged and acquitted. She admitted the sexual penetration, but the prosecution did not prove the required element that the boy was 'under care, supervision or authority'.
9. Nevertheless, Ms Kardash's WWC exclusion was upheld by the Tribunal. This was primarily on the basis of the lack of insight she demonstrated in giving evidence as to the impact of her conduct. This lack of insight was sufficiently profound that the Tribunal could not be satisfied that her engagement in any type of child related work would not pose an unjustifiable risk to the safety of children.
10. In the 2022 decision of MDE v Secretary to the Department of Justice and Community Safety[46], the applicant had been charged in 2012 and later acquitted of sexual penetration of a nine-year old girl. It was alleged he had placed his finger in her vagina. In all the circumstances, the Tribunal found that while the risk of a future threat may not be great, it could not be considered minimal. The decision to refuse a WWC exclusion was affirmed.
11. As stated, these cases all concern the WWC jurisdiction.
12. I also note that the comments in the second reading speech quoted above relate specifically to sexual offences against children, for example, the statement that a relatively small proportion of offences involving sexual offending against children are prosecuted successfully.

Consideration of the non-conviction charges in the present case.

1. Here, there are two non-conviction matters to be considered: the nursing home complaint, which is denied, and the family violence complaint, which is accepted. As stated above, the nursing home complaint is the most relevant and impactful in relation to the question of whether the applicant should be issued with an NDIS clearance.
2. Similarly to the WWC jurisdiction, it is not the Tribunal's role to make any definitive ruling as to whether the alleged conduct did or did not occur. Rather, its role is to determine the level of risk which would be associated with ordering the grant of an NDIS clearance, applying the statutory criteria.[47] This does however involve consideration of the surrounding circumstances relevant to the question of whether the alleged conduct occurred. The above decisions are illustrative of this.
3. The situation in the nursing home matter is somewhat akin to JDH, and Wong: the matter did not reach the stage of being tested in court because the prosecution withdrew it before trial, on the basis that it had concluded there was no reasonable prospect of conviction. In my view, that indicates a lesser level of risk than situations such as:
   • QPS, where there had previously been an actual finding of guilt after evidence was heard,
   • MDE or WHI, where there was a contested criminal hearing, with evidence of substance going 'both ways', but ultimately, an acquittal (MDE) and a withdrawal of charges six days into the trial (WHI). [48]
   • XDU and Kardash, where sexual penetration was admitted, but there was an acquittal because a different element of the charge was not proved at trial.
4. In my view, no adverse inference should be drawn against the applicant in relation to the nursing home criminal charge. The applicant denies the allegation, and I accept that he is an honest witness (and that the evidence of the other witnesses was honestly given as well). Similarly to JDH, the allegations have been appropriately filtered through the pre-trial prosecutorial process, and not proceeded with such that no adverse findings should be made against the applicant. The police stated the charge was withdrawn on the basis that there was no reasonable prospect of conviction.
5. I take into account that the alleged victim was said by the applicant to be unable to speak, and by the police to be 'unable to talk or communicate properly due to his condition and [so] unable to give a statement'. This is obviously at odds with the statement of the witness that the victim said, 'He punched me'.
6. Further, when the surrounding circumstances are considered, they provide no additional support for any inference that the applicant might have assaulted the resident as alleged. I note for example, that where there was no sign of any physical injury suffered by the resident. There are no reports of any similar conduct towards residents at the relevant nursing home, nor of any issues of concern there, or at any other nursing home where the applicant worked. This casts further doubt on the allegation.
7. For these reasons, in my view, the non-conviction matter relating to the alleged nursing home assault is at the lower end of the spectrum of risk.
8. The other non-conviction matter which is required to be considered is the family violence incident. This is different, in that violent conduct is admitted, albeit that charges were not pressed, and hence were withdrawn shortly after being laid. I refer to my analysis above in relation to the evidence given by the applicant and his wife about this.

1. I now turn to the nine criteria set out in s 103(1) of the Act. In each case, I deal with the nursing home complaint first.

Factor (a) - the nature, gravity and circumstances of the conduct

1. Punching such a highly vulnerable patient in the circumstances alleged by the witness would, all else being equal, be conduct which would raise very serious concerns about the risks to NDIS clients.
2. In relation to the alleged placing of his hand over the resident's mouth, it is not clear exactly what was alleged. The applicant said he did so, but, according to his demonstration, with his hand some distance from the resident's mouth, to try to prevent direct transfer of germs, given the apparent prevalence of flu at the time. It might be that the allegation by the witness was that the applicant actually physically placed his hand on the resident's mouth, which would not be appropriate, but the material provided is just too vague for me to infer that is what was alleged.
3. For the reasons stated above, the non-conviction matter relating to the alleged nursing home assault is at the lower end of the spectrum of risk.
4. The respondent pointed to the fact that while the WWC check scheme requires consideration of factors such as 'whether a finding of guilt or a conviction was recorded' and 'what sentence was imposed', the NDIS criteria do not include these matters. It said this may imply that the NDIS check scheme is not concerned with the outcome of charge, but with the conduct that constituted the charges.
5. In my view, the NDIS scheme requires consideration of both these matters. As noted above, the paramount consideration under s 10 of the Act for an NDIS check is the health, safety and well-being of persons with a disability and in particular, the protection of persons with a disability from abuse, violence, neglect and exploitation. In that context, the nature, gravity and circumstances of the conduct includes both the alleged conduct itself, and what the outcomes from the criminal process indicate about it.
6. I now turn to the family violence incident. In relation to this, the respondent said as follows. This occurred shortly after the birth of the applicant's son and there was stress in his marriage. As a result of the incident, the applicant was excluded from his home for a period. The applicant and his wife both state that their situation is very different now, and their relationship has improved.
7. Family violence is a major societal issue, and the cause of substantial harm in the community. However, I must consider the impact of this particular incident, in the present statutory context. As the respondent said, the applicant's wife was not a 'vulnerable person' as defined in the Act, and hence any finding of guilt against him for the family violence matter would be a category B offence, not a category A offence (as would have been the case had there been a finding of guilt for the nursing home matter). That is a relevant consideration.
8. Within that context, the admitted use of violence in a domestic setting is a relevant matter when considering the level of risk to persons with a disability (including NDIS clients). It might indicate a lack of self-control or a propensity to resort to violence.
9. The incident itself was on 1 April 2019. As noted, the applicant threw some water and a blanket over his wife, and also grabbed her around the throat area with his right hand with pressure which was 'not too hard or not too soft'. This is a serious matter, albeit that it is not as directly relevant as violence in the work context against a resident. The effect of the evidence from the applicant's wife is that it was an isolated incident. No such conduct had occurred prior to April 2019, nor after.

Factor (b) - the period of time that has passed since the applicant engaged, or allegedly engaged in the conduct

1. The conduct the subject of the two non-conviction matters occurred in April and May 2019, over three years ago. The respondent submitted that this is 'objectively' recent, but that there are no further allegations of similar conduct since, with the applicant having 'returned to working in the aged-care and disability sector, and his family moved back to Melbourne and are having another child'.[49]

Factor (c) - the vulnerability of the victim at the time the applicant engaged, or allegedly engaged, in the conduct

1. As noted, the victim of the alleged conduct at the nursing home was highly vulnerable, and clearly fell within the definition of a 'vulnerable person' in s 3 of the Act. He is very much the kind of person whom the regime aims to protect.
2. Concerning the applicant's wife, as the respondent said: 'She is not a 'vulnerable person' as defined in the WS Act and therefore her vulnerability as a mother of a young baby is unlikely to have much weight under this factor.'[50]

Factor (d) - the applicant's relationship to the victim at the time the applicant engaged, or allegedly engaged, in the conduct, and Factor (e) - whether the applicant had a position of authority in relation to the victim at the time the applicant engaged, or allegedly engaged, in the conduct

1. The applicant was providing care to the alleged victim, who was a resident in a nursing home. As such, he held a position of authority and power in relation to the resident.
2. Concerning the family violence complaint, the respondent said: 'The victim in this matter was and still is the Applicant's wife. There does not appear to be any power imbalance within the relationship, but the conduct was a breach of trust. The Applicant was not in a position of authority over victim.'[51] That is a fair comment.

Factor (f) - the applicant's criminal, misconduct and disciplinary history, including whether there is a pattern of concerning behaviour

1. Aside from the two incidents the subject of this proceeding, there is no adverse criminal, misconduct or disciplinary history, nor any pattern of concerning behaviour.

Factor (g) - the applicant's behaviour since the applicant engaged, or allegedly engaged, in the conduct

1. There is nothing adverse to the applicant under this criterion. There have been no further allegations of violent conduct, or of any criminal or disciplinary matters since May 2019.
2. In the light of the submissions made by the applicant, and having observed him give evidence, it is clear he understands that persons with a disability, whether as a result of age or otherwise, have the right to be cared for in a way which accords them security, dignity and respect. There is no suggestion the applicant lacks insight into the way in which vulnerable persons are to be treated while in his care.
3. On the positive side, in terms of employment, the applicant returned to work at Eldercare until 30 November 2020, shortly prior to moving to Melbourne. He also obtained casual work with HCO Disability and Community Services in South Australia in late 2020 and early 2021. He was offered a role as a support worker with Scope (which is the reason for his application for an NDIS clearance). He and his wife have become Australian citizens and signed a contract for construction of a house in 2021.
4. The applicant was required to attend an Abuse Prevention Program in relation to family violence. He described this as teaching him about more understanding and respectful relationships. He said he learnt how to manage his emotions, to avoid blaming others or making excuses for his behaviour and how to have good understanding in relationship. He is now a gentler and happier person.
5. His wife said that he is now a more mature person who cares for and respects her and their infant son.

Factor (h) - all other relevant circumstances in respect of the applicant's offending, misconduct or other relevant history

1. As a result of the family violence complaint, the applicant was made subject to an interim intervention order protecting his wife, on 1 April 2019. However this was revoked shortly after, on 28 May 2019.
2. Additionally, as a result of the family violence complaint, the South Australian Child Protection Services (CPS) considered whether the applicant's child was at risk, and determined that it was not. It also indicated that CPS did not view the charges as preventing him from receiving his South Australian Working with Children Clearance.

Factor (i) - any other matter that VCAT considers relevant

1. The Applicant provided evidence that he has received the following clearances:
   • Disability Services Employment Screening clearance in South Australia as of 16 September 2020 due to expire on 16 September 2023.
   • WWC check in South Australia issued on 16 September 2020 due to expire on 16 September 2025.
   • WWC check in Victoria issued 28 September 2016, expired 28 September 2021.
   • Screening and Verification Authority Clearance Card issued by the Catholic Archdiocese of Adelaide due to expire on 16 September 2025, issuing date unknown.
2. The respondent noted that of these, the Victorian WWC check has now expired. Concerning the other three checks, all issued in South Australia, it submitted that these were granted pursuant to different legislative schemes. It said that while VCAT has to make its own assessment in relation to the present application, the fact that the applicant has received these clearances is something it may take into account.
3. In my view, the relevance of these clearances having been issued is that they give further comfort in relation to the applicant's record and conduct over the periods to which they relate. I note that the first two, at least, were issued on 16 September 2020, well after the nursing home and family violence charges had been laid, and finally dealt with. While they do not of course entail the automatic grant of an NDIS clearance here, they reflect that the applicant was deemed suitable to be issued with such clearances. But more significant in my view, is the fact that additional statutory screening processes have been carried out, and they have not revealed any issues of concern aside from the nursing home and family violence complaints. In that sense, they provide the additional reassurance of separate searches having been made, and nothing of relevance having arisen.

Finding in relation to unacceptable risk under s 103(1)

1. Weighing up the above considerations, in relation to the matters listed under s 103(1)(a)-(i), I am satisfied the applicant does not pose an unacceptable risk of harm to persons with a disability.
2. Similarly to the position in relation to WWC matters, the requirement is not that there be no risk, but rather that any risk that exists be one which is not 'an unacceptable risk'. Whatever risk there might be is in my view negligible, and clearly within the range of acceptable risk.

1. Turning to the second requirement, under s 103(2), I am satisfied that it is in the public interest to give the applicant an NDIS clearance.
2. In the WWC context, Garde J said in Secretary to the Department of Justice and Regulation v McIntyre:[52]

The paramount consideration is always of the highest importance when considering and applying the public interest test. While the notion of the public interest is broad and it is not appropriate to seek to define the boundaries of the public interest, the paramount consideration - the protection of children from sexual and physical harm - is at the very core of the public interest test.

1. In my view, this approach is equally applicable in relation to the NDIS jurisdiction, where the paramount consideration is 'the protection of persons with a disability from abuse, violence, neglect and exploitation'.
2. Similarly, the reasoning of the Court of Appeal concerning the WWC jurisdiction in Secretary to the Department of Justice and Regulation v LLF and Anor may be applied to the NDIS jurisdiction, where it said that considerations relevant to the public interest may overlap with considerations relevant to the consideration of unjustifiable risk, perhaps to a significant extent.[53]
3. That is, in the NDIS jurisdiction, considerations relevant to public interest may overlap with those relevant to consideration of unacceptable risk, perhaps to a significant extent.
4. The respondent's submissions said that matters the Supreme Court has held may be taken into account adversely under this test include whether an applicant is dishonest, or suffering from serious mental illness, or had problems with drugs or alcohol. None of these apply to the applicant.
5. On the positive side of the ledger is the benefit the community will derive from the applicant providing disability services. The respondent stated that it recognised there is a need for qualified disability carers in Victoria and this may be a factor considered by the Tribunal under the public interest test. However, the respondent said it needs to be balanced with the other factors such as the need to protect vulnerable people from abuse, violence and neglect.
6. I am satisfied that the skills and experience which the applicant has accumulated from his years of service in aged care (which has included a component of providing care to persons with a disability) together with his more recent experience in providing disability care in South Australia, when utilised in the role of a disability support worker, will be of benefit to the community.
7. And in terms of weighing up the other factors referred to by the respondent, as already stated, I am satisfied that the risk of harm to persons being cared for is very low, such that overall, there is a net public interest in the applicant being given a NDIS clearance.

1. For these reasons, I will order that the respondent's decision be set aside, and that the applicant be issued with an NDIS clearance.

1. Finally, in light of the fact that this proceeding involves a matter of family violence, and refers to the applicant's wife and children, it is appropriate to order under s 80 of the VCAT Act, that the applicant is to be referred to as 'DHU', and that the title to the proceeding be amended accordingly. Additionally, for similar reasons, an order closing the file to inspection, other than by a party or their legal representatives, should be made under s 146(4)(b) of the VCAT Act.

[2] In fact, on 3 July 2019, the applicant's bail conditions were loosened, such that he was permitted to work in aged care, save for the Anglicare nursing home where the alleged assault occurred. However, he did not return to aged care work until the charge was withdrawn, on 30 October 2019.

[3] Worker Screening Bill 2020, second reading speech, Attorney-General Jill Hennessy, 18 September 2020, Hansard 2387.

[4] Ibid. Note: the WS Act also sets out the screening process for all persons who want to engage in child-related work (the Working with Children check scheme).

[11] Determining how to assess category A, B or C applications is set out in ss 24, 26 and 28 of the WS Act (respectively).

[12] See ss 31(1) and 33 of the WS Act.

[13] See ss 31(2) and 37 of the WS Act.

[15] See ss 94(1)(a) and 95 of the WS Act.

[17] See Chapter 4, Part 4.2 of the WS Act.

[19] VCAT footnote: The first charge brought against the applicant by the South Australian police relating to the family violence incident was common assault. Under cl 10 of Schedule 3, common assault, where the victim is not 'vulnerable person' is a NDIS category B offence. (The applicant's wife was not a vulnerable person as defined in s 3 of the Act.) Under cl 36, because that offence would have constituted common assault if it had been committed in Victoria, it is included under Schedule 3 as a NDIS category B offence.

There was also a second charge brought against the applicant by the South Australian police relating to the family violence incident. This was 'choke, suffocate or strangle a person in a domestic setting'. It appears that the respondent, in processing the request, also characterised this as akin to the Victorian offence of common assault. However, it is not necessary to consider this further, as the conduct which was the subject of the common assault charge included the entire incident, including the alleged throwing of water and a blanket over his wife, as well as 'grabb[ing] her around the throat with pressure'. (Respondent's Final Submissions of 20 April 2022 at [11].)

[20] VCAT footnote: The charge brought against the applicant by the South Australian police relating to the nursing home was common assault. Under cl 12(e) of Schedule 1, common assault, where the victim is 'vulnerable person' is a NDIS category A offence. (The nursing home patient was clearly a vulnerable person, as defined in s 3 of the Act.) Under cl 58, because that offence would also have constituted common assault if it had been committed in Victoria, it is included within Schedule 1 as a NDIS category A offence.

[22] VCAT footnote: Section 46 of the Act specifies criteria applicable to NDIS category C re-assessments. It appears this should be a reference to s 28, which sets out the criteria applicable to category C applications, as that is what is being considered here. The criteria in s 28 and s 46 are relevantly the same.

[23] See QPS v Department of Justice and Community Safety [2019] VCAT 477 at [60] (QPS), noting that the WS Act also provides that when assessing working with children check applications, the Respondent and VCAT must consider non-conviction charges. This decision was followed in Gibbons v Secretary to the Department of Justice and Community Safety [2020] VCAT 838 and in XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT 256.

[25] Worker Screening Bill 2020, second reading speech, Attorney-General Jill Hennessy, 18 September 2020, Hansard 2387.

[26] On review by VCAT, there is another consideration, namely 'any other matter that VCAT considers relevant' - s 103(1)(i).

[27] PQR v Secretary, Department of Justice and Regulation [2017] VSC 514, at [45], Bell J.

[28] O_UX v Secretary to the Department of Justice and Regulation_ [2017] VCAT 1809 at [35]- [36] (Millane J).29 and the Court of Appeal's judgement affirming VCAT's decision on appeal in OUX v Victorian Civil and Administrative Tribunal [2018] VSCA 178, at [38] and [40], Priest, Beach and Weinberg JJA.

[30] In the police materials and the respondent's assessment, the victim was said to be 80 years of age. However, the record of his date of birth in the police records suggests he was 74. In any event, it is clear he had severe dementia.

[31] Tribunal Book pages 9-10. Redactions in original.

[32] This appears this sentence was intended to refer to what the witness said, rather than what the victim said.

[34] The respondent's submission said: 'Note that s 20(3) of the CLC Act relates to the charge of 'assault'. The assault becomes an aggravated assault if there are any aggravating features as set out in s 5AAA of the CLC Act. If aggravated assault the penalties are greater. In relation to the Applicant, aggravating features include circumstances where the victim is over the age of 60 years (see s 5AAA(1)(f)) or if the victim was in a relationship with the offender (see s 5AAA(1)(g)).'

[35] Respondent's Final Submissions of 20 April 2022 at [11].

[36] Tribunal Book page 6. Redactions in original.

[37] QPS v Department of Justice and Community Safety [2019] VCAT 477 at [50].

[38] QPS v Department of Justice and Community Safety [2019] VCAT 477, at [51].

[41] Wong v Secretary to the Department of Justice and Community Safety [2021] VCAT 821.

[42] XDU v Secretary to the Department of Justice and Community Safety [2021] VCAT, at [30] (emphasis in original).

[43] Wong v Secretary to the Department of Justice and Community Safety [2021] VCAT 821, at [24]-[26].

[44] WHI v Secretary to the Department of Justice and Community Safety [2021] VCAT 990, at [206].

[45] Kardash v Secretary to the Department of Justice and Community Safety [2022] VCAT 60.

[46] MDE v Secretary to the Department of Justice and Community Safety [2022] VCAT 742.

[47] See Wong v Secretary to the Department of Justice and Community Safety [2021] VCAT 821, at [34]-[35].

[48] Noting that in MDE the application for a clearance was refused, and in WHI it was granted.

[49] Respondent's Final Submissions at [60].

[50] Respondent's Submissions at [62].

[51] Respondent's Submissions at [64].

[52] Secretary to the Department of Justice and Regulation v McIntyre [2019] VSC 105, at [83].

[53] Secretary to the Department of Justice and Regulation v LLF and Anor [2018] VSCA 155, at [61].