McCall v Department of Government Services (Review and Regulation) [2023] VCAT 728

1. The respondent's decision of 24 April 2023, revoking the applicant's WWC clearance and issuing a WWC exclusion, is stayed pending the hearing and determination of this proceeding, or further order.
2. The Tribunal has listed a directions hearing at 11:30am on 12 July 2023 for the purposes of providing directions and making orders as necessary and appropriate for the further conduct of this proceeding.
3. The parties must be available to participate in the telephone directions hearing which may start at or after the scheduled start time and must remain available until the directions hearing ends.
4. 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 directions hearing.
5. All contact with VCAT must include the VCAT case number, and the date and time of the directions hearing.

1. On 24 April 2023, a director of the Department of Government Services (Department) sent a letter to Mr Sean McCall notifying him that, following reassessment under the Worker Screening Act 2020 (Vic) (WS Act), the Secretary to the Department had given him a 'WWC Exclusion and revoked the WWC Clearance (your Working with Children Check card) that was issued on 24/05/2021' (Decision). The letter notified Mr McCall that he could apply to VCAT for review of the Decision within 28 days after the date of the exclusion. Further, it observed that:

[p]ending the final determination of an application to VCAT, you may also make an application to VCAT for an order staying the operation of the WWC Exclusion and VCAT may make any other order it considers appropriate having regard to certain factors

1. On 22 May 2023, Mr McCall lodged an application for review of the Decision with the Tribunal (VCAT Application). It is common ground that this application was made under section 105(1)(d) of the WS Act. In his application, Mr McCall ticked the box indicating that he was also applying to stay the Decision. In his application, Mr McCall indicated that he sought the stay because:

[he] is currently employed by Serco as a detainee services officer and has been employed at Serco since in or around February 2020. [His] employment requires that he have a valid WWC and if a stay is not granted, [his] ability to support himself, his partner and five (5) children aged between 6 and 16 years of age is very negatively affected. ...

1. The proceeding came before me, by way of a preliminary hearing, to consider the application for a stay. Absent any specific provision in an enabling enactment, the power of the Tribunal to stay a decision under review is found in section 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act).
2. While the Department accepts the Tribunal has the power to grant a stay,[1] its primary contention in opposing the grant of a stay is that doing so would be futile because, even if granted, Mr McCall would still be committing an offence under sections 121(1) and 122(1) of the WS Act if he applied for or engaged in child-related work.[2] By reference to the defences under the WS Act, compared to the equivalent defences under the previous regime (i.e. the Working with Children Act 2005 (Vic) (WWC Act)), the Department adds that 'Parliament clearly intended that Category B and C applicants to not be able to utilise a stay under the WS Act'.[3] The Department also opposes the grant of a stay 'on the merits'.[4]
3. Mr Panayi, who appeared as counsel for the Department, confirmed that there had not been a published decision of VCAT in relation to the utility of staying an equivalent decision of the Department. However, he conceded that, in proceeding Z379/2022 (TXD Proceeding),[5] the Tribunal (constituted by Justice Quigley, the then President of VCAT) had granted a stay of a decision to give a WWC exclusion on a WWC category C application (which is reviewable under section 105(1)(b) of the WS Act).
4. For the reasons which follow:

(a) I do not accept that the grant of a stay in this case lacks utility; and > > (b) having regard to all the facts and circumstances, it is appropriate to grant a stay of the Decision.

5. I have set the matter down for a directions hearing on the earliest available date for the making of timetabling orders to enable the substantive VCAT Application to proceed to hearing.

Background and outline of statutory framework

1. Mr McCall held an 'assessment notice' under the previous working with children regime, which allowed him to work with children between May 2011 and May 2021.[6] On reapplying in 2021, he was given a WWC clearance under the WWC Act on 25 May 2021.[7] But for the Decision, that clearance would have enabled Mr McCall to engage in child-related work until mid-2026.
2. On 17 May 2022, the Executive Officer of a Suitability Panel - a tribunal established under the Children, Youth and Families Act 2005 (Vic) (CYF Act) - sent a letter to the Department informing the Secretary of a determination made by the panel on 13 May 2022 in respect of out of home care provided by Mr McCall to certain children (CYF Determination).[8] In this regard, the Suitability Panel:
   • determined that, on the balance of probabilities, Mr McCall had 'physically abused' six children while he was working as an out-of-home carer for MacKillop Family Services. In one case, this was said to be the case because he failed to act in respect of a child that was self-harming, instead taking a video of that child. The other cases concerned the manner in which Mr McCall drove a car while transporting the children (e.g. speeding, using his mobile phone, failing to wear a seatbelt or ensure the children were wearing a seatbelt);
   • determined, again on the balance of probabilities, that Mr McCall 'poses an unacceptable risk of harm to children'; and
   • found that he should be disqualified from registration as an out of home carer under the CYF Act.

(For completeness, Mr Mwilambwe - a solicitor who appeared for Mr McCall - confirmed that Mr McCall had not exercised his right to seek review of the panel decision.[9])

1. Under sections 78(1) and 86(1) of the WS Act, the Secretary is 'required to re-assess a person's eligibility to hold a WWC clearance' in various circumstances, including where 'the person has become subject to a relevant disciplinary or regulatory finding' (WWC category C re-assessment).[10] That includes a finding that a person be disqualified as an out of home carer.[11]
2. Section 87(1) of the WS Act provides that the Secretary must not revoke a person's WWC clearance on a WWC category C re-assessment unless satisfied that:
   • the person 'would pose an unjustifiable risk to the safety of children' (having regard to certain factors);
   • 'a reasonable person would not allow their child to have direct contact' with that person; or
   • the person's 'engagement in any type of child-related work would pose an unjustifiable risk to the safety of children'.
3. Prior to making a final decision, the Secretary must provide the affected person with notice of any proposal to revoke the WWC clearance and invite them to make a submission, as well as give the person an 'interim WWC exclusion'.[12] There is no jurisdiction to seek VCAT review of an interim WWC exclusion; conversely, the issue of an interim exclusion does not (of itself) prevent a person working with children.[13]
4. If the Secretary ultimately determines to revoke a person's WWC clearance under section 87, the Secretary 'must give the person a WWC exclusion'.[14] In the Decision, the Secretary both revoked Mr McCall's WWC clearance and issued him with a WWC exclusion.
5. Following the Decision, and the revocation of the WWC clearance, Mr McCall can no longer be regarded as holding a 'current WWC clearance', such that he would prima facie commit an offence if he engages in 'child-related work' or applies for a job relating to such work.[15]
6. The jurisdiction of VCAT to review a decision of the Secretary is set out in section 105(1) of the WS Act. Relevantly, it includes a decision made under section 87 to revoke a WWC clearance following a WWC category C re-assessment.[16] Section 108 goes on to specify certain matters that the Tribunal must consider in conducting such a review.
7. Section 50 of the VCAT Act addresses the effect of a decision of a government agency pending a review. It provides that, subject to any stay, 'the commencement of a proceeding for review of a decision does not affect the operation of the decision'.[17]
8. As already noted, 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),[18] 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. The WS Act does not explicitly address the effect, if any, of a stay granted under section 50(3) of the VCAT Act in relation to a WWC category C decision.
2. This may be contrasted with the situation that applies in respect of a decision on a WWC category A application or to revoke a WWC clearance following a WWC category A re-assessment.[19] In that scenario:
   • section 106(5)(a) of the WS Act provides that VCAT may make an order staying the operation of the decision; and
   • sections 121(3) and 122(3) provide that the person will not be guilty of an offence if they apply for a job involving, or actually engage in, child related work while the decision is stayed.
3. The Department contends that, by virtue of addressing the impact of a stay in the WWC category A scenario, the 'Parliament has shown its intention that a person who has already been risk assessed by the [Department] [i.e. as is the case for a Category B and C reassessment, but not a Category A reassessment] should not be given a stay' and 'are not to work while awaiting their substantive VCAT application outcome'.[20] This is said to be supported by the repeal of section 33(2A)(b) of the WWC Act, which provided a defence to any criminal offence under the previous regime, which 'now does not exist in the WS Act'.[21]
4. Further, the Department contends that, because Mr McCall would 'not have a valid WWC clearance' even if the WWC exclusion is stayed, he would still 'commit an offence under section 121(1), if he engaged in child-related work during the period of the stay' (and similarly for applying for any child-related work).[22] In oral submissions, Mr Panayi suggested that it would be necessary for the Tribunal to have a power in the nature of mandamus in order to 're-enliven' the WWC clearance he formerly held.
5. As already indicated:
   • there has not been a previous published decision of the Tribunal that has addressed the question of the utility of a stay of a working with children decision under the WS Act; however,
   • in the TXD Proceeding, Quigley J granted a stay of a decision to issue a WWC exclusion in respect of a WWC category C application.[23]
6. In unpublished remarks dated 18 July 2022 (Stay Remarks), Her Honour outlined her reasons for granting a stay, noting that TXD had moved to Tasmania and, under the equivalent legislation in that jurisdiction, the relevant agency was required to take account of any cancellation of a working with children check under a corresponding law. While it seems that TXD's employer was supportive of him continuing to work, her Honour considered that the decision to issue a WWC exclusion 'may well have a negative impact on an application for a [working with vulnerable people] card in Tasmania' and 'flow-on effects for [TXD]'s current job'.[24]
7. Further, while Quigley J accepted the Secretary's argument that the granting of an interim WWC exclusion resulted in the automatic suspension of TXD's teaching registration, she felt this did not outweigh the factors outlined in the preceding paragraph, 'as well as the ongoing reputation damage that [TXD] suffers', noting that the interim WWC exclusion 'is very likely to be a cause of damage to one's reputation and have a serious impact on one's personal life as well as one's professional opportunities'.[25] She concluded that the continued operation of the decision 'would have a significant adverse effect which will not be ameliorated if [TXD were] ultimately successful'.[26]

(For completeness, while Secretary raised similar issues as to the utility of a stay in light of the offence provisions, her Honour did not feel it necessary to comment on those matters.)

1. In a further unpublished ruling made on 2 August 2022 (following a hearing held on 21 July 2022), Quigley J had occasion to consider the effect of the stay that she had granted (Scope of Stay Ruling).
2. The context for ruling on this point was an unresolved debate between the parties as to the effect of the stay on consequential actions taken by the Victorian Institute of Teaching (VIT). Following the Secretary's decision, VIT had cancelled TXD's teaching registration (in accordance with the relevant education legislation) and made a record of the cancellation in the Government Gazette and in the Register of Disciplinary Actions (Register). The VIT had proposed that, to give effect to the Stay, the Register be amended to record TXD's teaching registration as having been suspended (as required in the case of an Interim WWC exclusion), rather than cancelled, and that a correction notice be included in the Government Gazette. However, TXD contended that:[27]

the effect of a stay of the WWC Exclusion decision must include the operation of the Interim WWC Exclusion as this was an interlocutory step taken as part of the process and ... the final WWC Exclusions inevitably incorporated the preliminary or interlocutory exclusion.

1. Ultimately, Quigley J was not persuaded that the Tribunal's jurisdiction 'extends, or has the effect that the stay made ... includes the operation of the Interim WWC Exclusion' or that the stay 'causes a reversal or inoperability of the suspension of [TXD's teaching] registration'.[28] This was because the decision under review was the decision to issue the (final) WWC exclusion, rather than the Interim WWC exclusion (with the latter the cause of the automatic suspension of TXD's teaching registration).[29]
2. It ought to be noted that the Secretary did not appeal the stay decision (although I am aware there is an appeal from Quigley J's subsequent decision to grant TXD a WWC clearance).
3. Arguably, the VIT's proposal - and Quigley J's actual or implied acceptance of it - are consistent with a view that when a stay of a WWC exclusion is granted, the WWC exclusion ceases to have effect and the position of the party is restored to the 'status quo' before the decision was made, namely the person's WWC clearance is restored, albeit subject to an Interim WWC exclusion. The consequential impacts will depend on what, if anything, flows from the existence of the Interim WWC exclusion.
4. As previously noted, the issue of an Interim WWC exclusion does not ordinarily have any impact on any WWC clearance held by a person and, hence, their ability to continue to work with children.
5. However, there are exceptions. For example, where a person has been charged with or convicted or found guilty of a serious offence of the kind listed in clause 2 of Schedule 5 to the Act (such as sexual assault, a Category B offence), section 79 provides that the person's WWC clearance must be suspended and that person is 'taken to not hold a WWC clearance for the period of suspension'. It follows that it would be an offence for such a person to apply for or undertake child-related work. In those circumstances, the granting of a stay might be futile.
6. Indeed, this was the conclusion of Senior Member Wentworth in a stay decision made on 29 April 2022 in proceeding Z237/2022, involving Mr Heidarikakolaki.[30] In reaching that decision, Senior Member Wentworth observed that, as a result of the suspension under section 79:[31]

staying the decision would not therefore restore the applicant's WWC, which is what he seeks by his stay application, because the status quo prior to the decision was that his WWC was suspended. Pending the re-assessment decision, (and even if the decision is stayed) he could not engage in child-related work. This is a relevant consideration when considering whether failure to grant the stay would render the review application nugatory (of no value).

(For completeness, Senior Member Wentworth did not specifically address the Secretary's arguments as to the operation of the offence provisions in the WS Act.)

1. In the present case, I consider the granting of a stay would not be futile for the reasons that follow.
2. First, the WS Act does not prevent a person applying for a stay. So much was acknowledged in the Secretary's correspondence to Mr McCall (see [1]). If the Parliament had wished to prevent a person obtaining a stay, or from working with children, while awaiting a substantive VCAT application outcome on any WWC category C matters, it could have been expected to expressly provide as much, either in the WS Act itself or in Schedule 1 to the VCAT Act (which provides for 'variations' to the VCAT Act as it applies to certain enabling enactments). In this regard, it is relevant that:
   • other enabling legislation specifically provides that section 50(3) does not apply;[32] and
   • the legislature has turned its mind to the variation of the VCAT Act as it applies to WS Act proceedings, but only so far as it relates to the constitution of the Tribunal.[33]
3. Second, in enacting section 79 of the WS Act, the Parliament has turned its mind to the circumstances where it is necessary to automatically prevent a person working with children pending a reassessment in order to protect children from sexual or physical harm. However, despite the CYF Determination, Mr McCall was entitled to work with children under his existing WWC clearance during the eleven-month period between May 2022 (when the Secretary was notified of the CYF Determination) and April 2023 (when the Decision was made). In my view, it is incongruous to suggest that following the reassessment, and despite the legislation providing a right to Tribunal review of that decision, Mr McCall poses such a serious risk to children that he should be automatically prevented from continuing to work with children in the period between the date of the Decision and completion of the review.
4. Third, I do not accept the Secretary's submission that it would be necessary for the Tribunal to have a power in the nature of mandamus in order to restore the effect of the WWC clearance held by Mr McCall.
5. In my view, that submission is inconsistent with the ordinary understanding of the effect of a stay, supported by the decisions in both the TXD Proceeding and in relation to Mr Heidarikakolaki: namely, the effect of a stay is to restore the 'status quo' immediately prior to the decision under review.
6. It is not, in my view, necessary for the Tribunal to make further orders to achieve this. Just as the VIT indicated it would amend the Register and Government Gazette in the TXD Proceeding to give effect to the stay ordered by Quigley J, it seems to me to that, if and when a stay of a WWC exclusion is granted by the Tribunal, it is incumbent on the Secretary (as a model litigant) to restore an applicant to the position they were in prior to the decision, which might include steps such as reissuing any WWC clearance they held and notifying the person's employers that they are no longer subject to a WWC exclusion (although still subject to any Interim WWC exclusion).
7. As already noted, Mr McCall held a WWC clearance and was entitled to work with children immediately prior to the Decision, despite the issue of the Interim WWC exclusion.
8. For completeness, even if I was wrong in this regard, it is relevant to observe that the Tribunal does have power:
   • to make further ancillary orders that may be necessary or appropriate, to give effect to any stay decision;[34] or
   • to grant an injunction compelling the Secretary to take specified actions in aid of its stay decision.[35]
9. Lastly, like TXD, Mr McCall now lives interstate and so, even if he is not permitted to work in Victoria by virtue of section 121(1) of the WS Act, I accept that failure to grant the stay may still have an adverse impact on his reputation, ability to work and/or personal life that cannot be readily ameliorated if he is successful in his review application.
10. In this regard, I note that the issue of the WWC exclusion has already resulted in Mr McCall losing his position as a detainee services officer with Serco, despite it being unclear to me that this would be child-related work (at least so far as defined in Victoria)[36] or that the issue of a WWC exclusion under the WS Act (a Victorian law) has any application to a facility operated by the Commonwealth of Australia in another state.[37]

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

1. In its submissions, the Secretary submits that there is 'no information about [Mr McCall's] employment to determine that the failure to grant a stay will make the substantive application futile or render it nugatory'.[38] In oral submissions, Mr Panayi added that if the Decision were to be set aside on review, Mr McCall's WWC clearance would be reinstated and he could be re-employed.
2. In his written submissions, Mr McCall suggests that this Bell Factor is '[n]ot applicable'.[39] However, in oral submissions, Mr Mwilambwe contended that the Decision has an impact on Mr McCall's ability to obtain a 'Blue Card' (the Queensland equivalent to a WWC Check). He explained that this is because the Queensland regulator wants the Victorian process to be 'resolved' before making a decision in that regard. Mr Mwilambwe added that it was necessary for Mr McCall to 'demonstrate progress' in this respect in order for Mr McCall to 'have a chance of getting employment'. Mr Mwilambwe also emphasised the 'significant financial implications' for Mr McCall from the Decision, being that he has had to resign from his role with Serco and this has impacted on his ability to satisfy his financial obligations to his (many) children.
3. Where a person is an employee rather than the owner of a business, the failure to grant a stay of a WWC exclusion is unlikely to result in their review application being rendered entirely nugatory. This is because the person ought to be able to return to child-related work if and when a favourable decision is made.
4. However, as was the case in the TXD Proceeding, I also accept that the Decision has 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.
5. I consider that this is a factor that points in favour of granting a stay.

Is there a serious question to be tried on review?

1. The Secretary submits that there is a serious question to be tried in that the 'Suitability Panel found that [Mr McCall] poses an unacceptable risk of harm to children' and that the 'issue of risk is one for the Tribunal to determine after hearing all available evidence at final hearing'.[40] In oral submissions, Mr Panayi highlighted the 'paramount consideration' in section 11 of the WS Act (i.e. the protection of children from sexual or physical harm) and submitted that there is 'no basis to look behind [the Suitability Panel's findings]'.
2. Mr McCall also submits that there is a serious question to be tried, although presumably to argue in favour of the Decision being set aside (and, as such, to support the grant of a stay until that can be resolved).
3. It is apparent from Mr McCall's written submissions that the 'serious question' relates to a number of the specific findings of the Suitability Panel which he denies. For example, he contends that he 'did everything within his power to assist [the child that was self harming] and prevent further harm'.[41]
4. While the Tribunal must ordinarily make the correct and preferable decision having regard to the evidence before the Tribunal, there may well be a question as to whether Mr McCall's attempt to challenge the findings of the Suitability Panel in this proceeding is appropriate, in circumstances where he chose not to seek review by VCAT of those findings.
5. However, even if the findings of the Suitability Panel are unable to be challenged, they represent a determination made under different legislation (i.e. the CYF Act), by a different body (i.e. the Suitability Panel) at a different point in time (i.e. May 2022). Further, the findings relate to Mr McCall's provision of out of home care during the period between April 2016 and November 2019.
6. In due course, it will be necessary for the Tribunal to consider any evidence as to Mr McCall's remorse, insight and rehabilitation since the events in question. While some evidence has already been provided by Mr McCall in this regard, including a number of references and a forensic psychologist report, one might expect further evidence to be produced in due course. As such, the mere fact that the CYF Determinations are serious, does not mean that Tribunal will, by the time the matter comes on for final hearing, be satisfied - to the requisite standard - that:
   • Mr McCall poses an unjustifiable risk to the safety of children;
   • a reasonable person would not allow their child to have direct contact with Mr McCall; or
   • Mr McCall's engagement in any type of child-related work would pose an unjustifiable risk to the safety of children.
7. Accordingly, in my view, there remains a serious question to be tried and this points in favour of the grant of stay.

Is the grant of a stay in the community interest?

1. The Secretary submits that it is not in the public interest to grant a stay, given the 'protective jurisdiction' under the WS Act, in circumstances where 'there have been five substantiated findings of reportable conduct' and the Suitability Panel found that Mr McCall 'poses an unacceptable risk of harm to children'.[42]
2. By contrast, Mr McCall submits that it would be in the public interest to stay the decision, so that he could 'recommence his employment at Serco as a detainee services officer' and 'provide necessary services to those in and around immigration detention centres and immigration transit accommodations'.[43]
3. While it has been suggested that there is a 'public interest in ongoing community engagement in employment',[44] the ability to work is more commonly regarded as a private interest. Furthermore, it does not displace the need to have regard to the paramount consideration under the WS Act, namely the protection of children from sexual or physical harm.
4. None of the findings made by the Suitability Panel suggest that Mr McCall poses a risk of causing sexual harm to children. However, I accept that Mr McCall's apparently cavalier approach to the road rules when driving children under his care posed some risk that they may suffer physical harm, although there is nothing to suggest that any physical harm resulted.
5. In my view, the most serious finding against Mr McCall is that he failed to act appropriately when a child under his care was self-harming and instead recorded the incident on his mobile phone and then shared that video with another person. Again, on the basis that this has already been found to have been established by the Suitability Panel after a duly convened hearing, it suggests Mr McCall may also pose some risk of permitting children under his care to suffer physical harm.
6. Of course, irrespective of whether or not a stay is granted, Mr McCall would not be permitted to engage in out of home care (at least in Victoria) by reason of the CYF Determinations. Further, it does not seem likely Mr McCall would have occasion to drive any children or otherwise have responsibility for children at risk of self-harming if he returned to his position as a detainee services officer.
7. Ultimately, I consider that when balancing the public interest with Mr McCall's private interests in obtaining employment, this Bell Factor points (marginally) away from the grant of a stay.

Period of time that will elapse before hearing

1. The Secretary did not address this consideration. In his submissions, Mr McCall suggests that while it is 'uncertain' when the proceeding can be listed for final hearing, he is 'minded to resolve the matter as soon as possible' and as such, it is 'unlikely that [there] would be an extensive period of time' before the hearing.
2. However, under the Tribunal's current processes, proceedings are not listed for final hearing until the parties have filed a joint Tribunal Book containing all of the information upon which they seek to rely and provided their available dates to the Tribunal. Further, due to resourcing constraints, even if the Tribunal Book were ready today, the proceeding would be unable to be listed for a number of months. In the circumstances, it is most unlikely that this matter will be listed for final hearing until early 2024.
3. This Bell Factor also points in favour of a stay.

1. In circumstances where:
   • the majority of the Bell Factors point in favour of the grant of a stay;
   • Mr McCall continues to be prevented from working in out of home care, as a result of the CYF Determinations;
   • there is no suggestion or evidence that Mr McCall engaged in any further conduct which put children at risk of physical harm during the lengthy period between November 2019 and April 2023; and
   • Mr McCall has every incentive to conduct himself appropriately in the intervening period, in order to improve his prospects of setting aside the Decision,

I consider that it is appropriate to grant the stay until the hearing and determination of the proceeding or further order.

1. I will make orders to this effect and list the proceeding for a directions hearing for the purposes of providing directions and making orders as necessary or appropriate for the matter to progress to final hearing at the earliest possible time.

[1] Submissions of the Respondent dated 13 June 2023 (ROS) [16].

[5] The stay decision has not been reported, but on completion of the review, VCAT set aside the decision and that decision was published: TXD v Department of Justice and Community Safety: [2023] VCAT 420.

[6] Documents filed on behalf of the respondent, pursuant to section 49(1) of the VCAT Act (Section 49 Material), 5-6 and 9-10.

[11] Ibid s 3(1) (definition of 'relevant disciplinary or regulatory finding') and r 9(2)(b) of the Worker Screening Regulations 2021.

[18] [2000] VCAT 214 [12]-[15] (see also Ali v Taxi Services Commission [2014] VCAT 1437 [17]).

[19] Category A represents the most serious kinds of offending which may result in a person being issued with a WWC exclusion or having their WWC clearance revoked.

[23] Order 4 of the Tribunal's orders dated12 July 2022.

[28] Scope of Stay Ruling [21]-[22].

[30] While that decision was unreported, the final review decision was published: see Heidarikakolaki v Secretary to the Department of Justice and Community Safety [2023] VCAT 566.

[31] Order 1(d) of the orders dated 29 April 2022.

[32] For example, see Firearms Act 1996 (Vic), s 112L(2) in relation to an application for review of a firearm prohibition order

[33] VCAT Act, s 64(3) ordinarily provides that the President of the Tribunal determines how the Tribunal is to be constituted for the purposes of a proceeding. However, cl 101 of Schedule 1 to the VCAT Act varies this to require the Tribunal to be constituted by a Presidential Member or Senior Member.

[36] WS Act, s 7. Child-related work is work that 'usually involves direct contact with a child' and 'occasional direct contact with children' that is incidental to the work is disregarded.

[37] See Australian Constitution, s 52 which grants the Commonwealth 'exclusive power' to make laws concerning 'all places acquired by the Commonwealth for public purposes'.

[39] Written Submissions for the Applicant (AOS) [11].

[44] MXZ v Secretary to the Department of Justice and Regulation [2016] VCAT 1543 [107].