1. The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with VCAT's requirements for the conduct of the hearing.
2. All contact with VCAT must include the VCAT case number, and the date of the administrative mention and be copied to all other parties (unless otherwise ordered).

1. By application made on 20 March 2023, HSK applied to the Secretary of the Department of Government Services ('Secretary') for a WWC (or Working with Children) check under section 53 of the Working Screening Act 2020 (Vic) ('WS Act') to enable him to volunteer with his young son's sporting teams.
2. HSK is 30 years of age. The most recent submissions filed suggest that he is currently on Centrelink payments and is looking for work with three job agencies as a forklift driver, labourer or factory worker.[1] Longer term, he aspires to an apprenticeship as a fitter and turner and also expresses a wish to be a professional cricket coach for 15 or 16 year olds.[2]
3. In 2023, he volunteered with and coached his son's cricket team. He did not hold a WWC check at the time, which is consistent with the parental exemption in section 110 from a WWC check for 'work as a volunteer in relation to an activity in which their child is participating'.
4. HSK only applied for the WWC check in March 2023 because he also wanted to volunteer to coach his son's footy team and the management of the footy club required him to have a check before doing so.
5. In the course of considering HSK's application, the Secretary became aware of his criminal history, which includes multiple convictions and periods of imprisonment for a range of matters, including making threats to kill and intentionally or recklessly causing injury.
6. Those offences are 'WWC category B offences' as specified in Schedule 4 to the WS Act. Under section 63, the Secretary must refuse to give a WWC clearance unless satisfied that doing so would not pose an unjustifiable risk to the safety of children having regard to certain specified considerations. The Secretary was not satisfied in this regard and, on 16 January 2024, determined to refuse HSK's application and (as required under section 68(2)) issued him with a WWC exclusion ('Secretary's Decision').
7. As a result of the issue of the WWC exclusion, the exemption which allowed HSK to volunteer with his son's cricket team no longer applies.[3]
8. On 9 February 2024, HSK applied to VCAT to review the Secretary's Decision. Subsequently, on 3 April 2024, HSK amended his application to seek a stay of the decision, under section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), to enable him to continue to volunteer with his son's sporting teams.
9. The stay application initially came before me on 17 May 2024. At the end of the time allocated for the hearing, I granted an adjournment to allow HSK to respond to additional material produced by the Secretary the day before the hearing (see below) and file additional material that was not to hand on the date of the original hearing. The matter came back before me on 1 July 2024.
10. The material before me now includes:
    • the material produced by the Secretary under section 49 of the VCAT Act;
    • supplementary material which the Secretary has received from the Department of Families, Fairness and Housing ('DFFH') concerning HSK's interactions with that department in respect of his son ('Child Protection Material');
    • additional material filed by HSK on 14 June 2024 ('Applicant's Additional Material'), as well as letters from the President of the cricket club dated 27 June 2024 and from his general practitioner dated 28 June 2024; and
    • written and oral submissions from each party.
11. On 12 July 2024, the applicant applied for written reasons for the decision. These reasons are an edited version of the reasons provided on 1 July 2024.

1. It is appropriate to briefly comment on the utility of granting a stay because the lack of utility was initially raised by the Secretary as the basis for its opposition to the stay.[4]
2. Ordinarily, there may be no utility in staying a refusal of an application for a WWC clearance because, even if the decision is stayed, the person would not hold a WWC clearance enabling them to engage in child-related work.
3. However, as indicated in McCall v Department of Government Services ('McCall'), the effect of a stay is to restore the status quo prior to the decision.[5]
4. In this case, if a stay of the WWC exclusion is granted, the status quo to which HSK would be returned would include his ability to rely on the exemption in section 110 of the WS Act to continue coaching his son's cricket and/or footy team. (For completeness, it would not otherwise allow him to engage in child-related work.)
5. So much is now properly accepted by the Secretary.[6]

Relevant considerations when determining whether to grant a stay

section 50(3) provides the Tribunal with a discretion to 'make an order staying the operation of a decision that is the subject of a proceeding for review'. It does not set out any particular considerations, but it is common ground that the Tribunal should have regard to the factors identified in Bell and Eager v Liquor Licensing Victoria and Swapnil (Bell Factors),[8] namely:

• Whether the failure to grant a stay would render the application for review nugatory (of no value), which is often described as the 'dominant principle'.
• Whether there is a serious question to be tried, which is described as being of some importance.
• Whether it is in the community interest to grant a stay, a matter which is 'properly to be taken into account' and involves balancing private and public interests.
• The period of time which will elapse before a final hearing.

1. I will now turn to consider each of the Bell Factors.

Does the failure to grant a stay render the review nugatory?

1. The Secretary contends that the failure to grant a stay will not render the review nugatory on the basis that:[9]
   • HSK seeks the stay to enable him to volunteer with his son's cricket team (which is not playing during winter in any event) and/or football team (which might still require a positive WWC clearance);
   • there is no suggestion that his son will cease playing before the hearing of the review (in which case, he can resume coaching if successful); and
   • at most, he will be 'disappointed'.
2. In the submissions for HSK, it is submitted that coaching his son's cricket team has been 'beneficial to his well-being' and that 'it would be most unfortunate if he were deprived of the chance to do this meaningful work'.[10] In oral submissions, his counsel (Ms Aufgang) highlighted the role that coaching played in HSK's 'ongoing rehabilitation'.
3. While I accept that the failure to grant the stay will likely disappoint HSK, I consider this falls well short of rendering the review proceeding nugatory in the relevant sense in circumstances where:
   • the cricket team is not currently playing and unlikely to resume until late 2024;
   • there is no evidence to suggest that his son's footy club would allow him to coach without a WWC clearance; and
   • there is no psychological evidence to demonstrate the link between the volunteer work and his ongoing rehabilitation.
4. However, contrary to the Secretary's submission,[11] it does not follow (from the conclusion that a review would not be rendered nugatory) that the stay application should necessarily fail. Rather, this issue is a neutral factor in the evaluation.

Is there a serious question to be tried on review?

1. The Secretary contends that '[t]here is a serious question to be tried, centring on the need to protect children from physical or sexual harm' and this 'weighs heavily against the Applicant because of the nature of his criminal history'.[12] The Secretary adds that HSK's case is 'not so strong as to show that it has good prospects of success'.[13]
2. In this regard, the Secretary identifies the 'salient matters' as being:[14]

(1) There is a lengthy, recent and significant period of criminal offending. In particular, that offending involves violent, abusive and controlling domestic abuse, failure to comply with orders directed at protecting the safety of his ex partner - and perhaps most significantly - threats to kill a child;

(2) There is a lengthy and significant period of drug abuse and terms of imprisonment;

(3) There is comparatively short periods of time of claimed rehabilitation;

(4) There is an absence of supporting material from persons who are aware of the Applicant's history;

1. For his part, HSK 'denies ever harming any child, sexually or physically'.[15] Further, while he accepts that he had a criminal history from 2007 (aged 13) to 2 September 2020 (aged 26),[16] he suggests that:
   • it was a result of his '[growing] up in a household beset by drug addiction, violence and criminal activity' (including witnessing domestic violence against his mother);[17]
   • he is 'deeply ashamed of his past behaviour';[18]
   • 'everything changed' for him after his release from prison in September 2020 and his positive engagement under a drug treatment order imposed in respect of his last offences;[19]
   • he has also engaged in counselling for approximately three years;[20] and
   • his last offending was early in 2020, over four years ago.[21]
2. Normally, the fact that there is a serious question to be tried is a positive factor in the assessment of whether a stay should be granted. However, caution is required in the context of the WS Act, which provides that VCAT should not order a WWC clearance be granted 'unless satisfied that giving the clearance would not pose an unjustifiable risk to the safety of children'.[22] In making that determination, the Tribunal needs to be satisfied that:[23]
   • a reasonable person would allow their child to have direct contact with the applicant;
   • the applicant's engagement in any type of child-related work (i.e. not limited to volunteering with his son's sporting clubs) would not pose an unjustifiable risk to the safety of children; and
   • it is in the public interest to give the clearance.
3. It may be accepted that the offences with which HSK has been charged primarily relate to domestic violence concerning former partners, rather than children per se. However, it appears from the Section 49 Material that on some occasions children have been present and, as indicated in HXI v Secretary to the Department of Justice and Community Safety,[24] a a man's 'inability to control his emotions and behaviour when under stress or after a few beers' (or, in this case, taking drugs) is nevertheless relevant to the question of whether he should be permitted to engage in child-related work.
4. Also, it is of significant concern that:
   • in November 2019, he is suggested to have verbally threatened to kill his former partner's then two year old son and also pushed that child's head towards bathwater.[25] While it is true that this did not lead to any charge and there may be questions as to the veracity of the former partner's account, it cannot be accepted on face value that the allegation was 'found to have no substance';[26] and
   • on 23 January 2020, HSK's phone was seized and later analysed and found to contain child abuse material.[27] Although he 'denied knowledge of the same' and a charges of possession and distribution of such material was later withdrawn, again it is not clear that the allegation was ever found to have no substance.
5. Further, the Child Protection Material suggests there have been incidences where HSK has been violent to his son, or otherwise exposed him to harm, with seven reports being made between 2013 and 2021 (and a further report being made on 10 March 2022).[28] The identified risk issues:[29]

included concerns regarding environmental neglect, parental substance abuse of methylamphetamine and cannabis, criminal activity, possession of firearms, parental mental health, transience, family violence and inappropriate physical discipline.

1. I note the Child Protection Material was only produced by the Secretary a day before the original stay hearing. Nevertheless, Ms Aufgang addressed me on it, highlighting that it is 'not all doom and gloom' and noting that HSK's son expresses concern about not seeing his dad, which belies a good relationship between them.
2. However, despite the adjournment of the hearing, it is surprising that HSK has not taken the opportunity to produce any evidence to explain the incidences referenced in that material or give the Tribunal comfort that they are all behind HSK.
3. On the other side of the ledger, while HSK suggests that he has turned a corner, apart from the report of his general practitioner (which I will come to), there is a lack of evidence, such as from his treating psychologist, to enable a proper assessment concerning HSK's risk of further relapse on the drug front and/or engaging in further violence in the future.
4. Of concern, the report of Associate Professor (Hon) Andrew Carroll dated 29 March 2022[30] notes that he had recently 'relapsed into cannabis use some three months ago [i.e. in early 2022] in the context of stressors to do with his son' and had 'escalated to daily usage ... [of] approximately 2g daily'.[31] While there was some suggestion of imminent detoxification, apart from his own claim that he doesn't take drugs now,[32] there is no real evidence before me to demonstrate that he was successful or that he has otherwise been able to address his response to the inevitable stressors of life (including in relation to his son) without resort to drugs.
5. HSK has provided some positive references, but the support they provide is limited. In this regard:
   • He has provided a reference dated 11 June 2024 from a Specialist Alcohol and other Drugs Counsellor[33] who supervised HSK's drug and alcohol treatment order. The counsellor states she observed 'a significant change in HSK's capacity for emotional regulation and ability to problem solve in response to stressful situations' and that he was 'highly motivated to make changes to his substance use and lifestyle to be a better parent to his son and to be a positive role model'. However, she has not had any involvement with HSK since September 2022. Further, her conclusions are hard to reconcile with Assoc Prof Carroll's report of relapsed cannabis use due to stress between January and March 2022.
   • The Section 49 Material includes a reference from the president of his son's cricket club,[34] and he has provided a further reference from the Manager and Junior coach of that club,[35] both of which are positive as to his coaching skills, rapport with children and connections with parents.

However, as Mr Brnovic (counsel for the Secretary) points out, those references do not speak to an inability on the part of the cricket club to function if HSK is unable to coach his son's team while his application is being considered.

• HSK's sister has provided a letter of support dated 30 April 2024 indicating that HSK is a 'great father, uncle, football and cricket coach' and indicates that she has no concerns leaving her two daughters in HSK's care. Of course, ultimately, the Tribunal will be called on to consider the matter from the perspective of a reasonable parent, as opposed to another family member.
• A positive (albeit handwritten and undated) reference is provided by a lady who indicates that HSK has been of great assistance to her (without reward) and who 'trust[s HSK] whole heartedly even knowing his [criminal record]'. However, it is rather unclear who the referee is and the nature of her relationship with HSK.

1. It is understood that HSK is seeking '[a]nother, more up to date psychiatric/psychological report'.[36] However, that was not available by the time the stay hearing resumed. On the Friday before the hearing resumed, HSK did file a letter from Dr Esther Bellelli who has been his general practitioner since December 2020. She suggests that HSK's prior offending 'has always been in the context of drug use of heroin and methamphetamines, from which he has now had a prolonged period of remission' and that he has now 'demonstrated appreciation of situations that are triggering for him and has insight into positive way of coping'. She concludes with the opinion that he 'would not pose a significant risk to the safety of children'.
2. While Dr Bellelli's letter is supportive of HSK's application for a stay, it is also hard to reconcile with Assoc Prof Carroll's opinion that, as recently as March 2022, he was still turning to drugs to cope with stressors in his life and 'would continue to benefit from ongoing psychological support'.
3. As is usually the case in a stay matter, neither Assoc Prof Carroll nor Dr Bellelli have been called to give evidence and so these issues have not been able to be clarified.
4. By the time the matter comes on for hearing, it is possible that HSK will have gathered further evidence to convince the Tribunal that the past is all behind him and he no longer poses an unjustifiable risk to the safety of children. However, that is not the case on the evidence currently before the Tribunal.
5. In these circumstances, I accept the Secretary's submission that at present this is a factor which (even where elements are in dispute) 'weighs against' the grant of a stay.[37]

Is the grant of a stay in the community interest?

1. The Secretary contends that the protection of children from sexual and physical harm is a paramount consideration which outweighs any private interest of HSK in being allowed to volunteer with his son's sporting clubs and is a factor that weighs against the grant of a stay.[38]
2. In support of his position, HSK relies on the benefits to his well-being and that he is said to be 'an excellent role model and great example of how a person, especially an Aboriginal Man, can be redeemed, even when they have engaged in criminal activities over a long period of time'.[39]
3. At the level of principle, I accept that it is in the community interest to have role models for young people (and particularly people from the Koori community)[40] who can share their lived experience in overcoming a traumatic childhood and putting any criminal history behind them to make a positive contribution to the community.

1. However, I consider there is insufficient evidence available at this time to support the assertion that HSK has fully 'redeemed' or that he would make an 'excellent role model' in circumstances where he has relapsed into drug use as recently as two years ago.
2. I accept that this factor also weighs against the grant of a stay at this time.

Period of time that will elapse before hearing

1. The Secretary contends this is a neutral factor given that the listing of the matter 'is in the hands of the Tribunal', albeit noting that further information as to HSK's criminal and corrections history and involvement in child protection is likely to be of assistance.[41]
2. As the parties would be aware, the Tribunal's current practice is not to list matters for hearing until all evidentiary material on which the parties seek to rely has been exchanged and compiled into a joint Tribunal Book. Ordinarily, matters are listed for hearing within six months of the Tribunal Book being filed.
3. Given the material that has already been gathered, the main outstanding material appears to be any updated psychiatric or psychological report.
4. Based on this information, it would appear that the Tribunal Book should be ready by August 2024 and the hearing is likely to be listed in early 2025.
5. While it seems likely that HSK will miss out on coaching his son's cricket team for the coming summer, he should know if he is able to get a WWC clearance before the time the next football season starts. And, of course, there is nothing that prevents him attending his son's cricket matches as a supporter (rather than as a coach).
6. In the circumstances, I agree that this is a neutral factor in the evaluation.

1. As is evident from the Tribunal's decision in Marcevski v Victorian Legal Services Board,[42] and the Supreme Court decision rejecting an appeal against the refusal of the stay sought in that case,[43] the consideration of the Bell Factors involves a difficult balancing exercise, particularly where the Tribunal has limited evidence before it.
2. In circumstances where the Bell Factors are either neutral or weigh against the grant of a stay, I am not satisfied that it is appropriate to exercise the discretion to grant a stay.

1. I will hear further from the parties as to appropriate orders to progress this matter towards hearing.

[1] Submissions on behalf of [HSK] for his Stay Application dated 21 June 2024 ('Applicant's Submissions') [62].

[4] Email from Legal Services-Worker Screening to VCAT dated 4 April 2024.

[6] Respondent's Submissions that the stay application should be refused dated 21 June 2024 ('Respondent's Submissions') [33].

[8] [2000] VCAT 214 [12]-[15] (see also Ali v Taxi Services Commission [2014] VCAT 1437 [17]).

[9] Respondent's Submissions [32]-[43].

[24] [2016] VCAT 2032 [26]-[27] (emphasis added).

[30] Part of the Applicant's Additional Material (emphasis added).

[38] Respondent's Submissions [53]-[57].

[39] Applicant's Submissions [66]-[67].

[40] Taking notice of high rights of incarceration of indigenous youth.