Tran v Secretary to the Department of Education (Review and Regulation) [2025] VCAT 419

1. The respondent's decision of 21 August 2024, to prohibit the first applicant from providing education and care to children for any service, from being an educator or carrying out any other activity relating to an education and care service ('prohibition decision'), is affirmed.
2. The respondent's decision of 25 September 2024, refusing to cancel the prohibition decision, is affirmed.
3. The respondent's decision of 18 November 2024, cancelling the second applicant's approval to operate Smart Children Early Learning Centre, is affirmed.
4. The application(s) for review are otherwise dismissed.

1. In this proceeding, Ms Huong Vi Thi Tran (who is commonly known as Vi Tran) and Vi and Nhat Pty Ltd ('VNPL') (collectively, the 'Applicants') seek review of certain decisions of the Secretary to the Department of Education ('Secretary'), made under the Education and Care Services National Law (Victoria) ('National Law'),[1] concerning the Smart Learning Early Learning Centre ('Centre') formerly operated by VNPL in Burden Street, Springvale, as well as Ms Tran's role(s) with the Centre.
2. Ms Tran is the sole director and secretary of VNPL and owns 50% of the company, with her husband (Mr Nhat Minh Ta) owning the other 50%.
3. As explained in more detail below, by the time the matter came before the Tribunal, there were two main decisions in contention, being the Secretary's decisions on:
   • 21 August 2024: prohibiting Ms Tran from providing education and care to children for any service, from being engaged as an educator or staff member of any education and care service or carrying out any other activity relating to an education and care service ('Prohibition Decision') and/or a related decision, made on 25 September 2024 ('Refusal Decision'), refusing to cancel the Prohibition Decision; and
   • 18 November 2024: cancelling VNPL's approval to operate the Centre ('Cancellation Decision').

(Collectively, these are referred to as the 'Decisions under Review'.)

1. As explained in more detail below, a result of those decisions (and an earlier decision of the Tribunal, reported as Tran v Secretary to the Department of Education ('Stay Decision')[2] refusing to stay their operation), the Centre ceased to operate on 29 November 2024.
2. In broad terms, Ms Tran contends that the Decisions under Review should be set aside on the basis that she and VNPL have always sought to comply with the National Law and, in any event, the Secretary's decisions are unfair and a result of alleged 'corruption' between the Secretary and her sister (who owns the land on which the Centre is situated) and brother-in-law.
3. There is no evidence of such corruption. Further, as explained to Ms Tran at the end of the hearing, the role of the Tribunal on review of a decision of the Secretary does not include investigation of any allegation(s) of corruption and the Tribunal's powers on review do not include the power to charge people involved in any act of corruption.[3] Her reliance on these matters to justify her actions and to seek that the Decisions under Review be set aside are misconceived.
4. The Secretary submits that the decisions should be affirmed on the bases that:
   • neither Ms Tran nor VNPL are fit and proper persons to carrying on or be involved with an education and care service; and/or
   • their operation of, or involvement in, the Centre may or would constitute an unacceptable risk to the safety, health or wellbeing of any child being educated or cared for by the Centre.
5. The Secretary relies on the following matters in support of those submissions:
   • Ms Tran's and VNPL's 'flagrant disregard' of the National Law: This is based on the contention that VNPL continued to operate the Centre while it was suspended, and Ms Tran continued to provide education and care services and/or engage in other activities at or for the Centre when prohibited from doing so. Further, the Secretary contends that Ms Tran obstructed authorised officers of the Department of Education ('Department') who were trying to assess the Centre's compliance with the National Law during the period of suspension.
   • Ms Tran's dishonesty: The Secretary submits that Ms Tran 'intentionally lied' in giving evidence before the Tribunal that she believed she was entitled to continue to operate the Centre while it was suspended and/or after the Prohibition Decision, as well as in her evidence as to her reasons for preventing the Department's authorised officers from entering the Centre.
   • The adverse early learning teacher decision relating to Ms Tran: The Secretary submits that VCAT's decision in Tran v Victorian Institute of Teaching ('VIT Decision')[4] affirming the decision of the Victorian Institute of Teaching ('VIT') to refuse to register Ms Tran as an early childhood teacher is consistent with the Secretary's submissions that she is not a fit and proper person for the purposes of the National Law. The Secretary submits that the Tribunal can and should take account of the findings made in that case, in the absence of any evidence being put forward by Ms Tran to 'discount' the findings.
   • VNPL's failure to comply with the National Law (and associated regulations) in the operation of the Centre: The Secretary relies on contraventions identified during compliance inspections in January and March 2023, as well as a further instance of non-compliance identified when the authorised officers attempted to enter the Centre in September 2024. The Secretary concedes that the contraventions would not, of themselves, support the Prohibition (or Refusal) Decision or Cancellation Decision, but submits it is part of the 'factual matrix' to support the decisions made.
6. For the reasons which follow, I am comfortably satisfied that the evidence before the Tribunal establishes the matters relied upon by the Secretary and that neither Ms Tran nor VNPL are fit and proper persons to provide education and care services and that, if they were permitted to resume the operation of the Centre, this would constitute an unacceptable risk to the safety, health or wellbeing of children at the Centre.
7. As such, I have affirmed the Decisions under Review.

1. The objective of the National Law is to 'establish a national education and care services quality framework for the delivery of education and care services to children' (being children who are under the age of 13 and not in school).[5]
2. One of the objectives sought to be achieved by that framework is 'to ensure the safety, health and wellbeing of children attending education and care services'.[6] With that in mind, a guiding principle is that 'the rights and best interests of the child are paramount'.[7]
3. An entity that has functions under the National Law is required 'to exercise its functions having regard to [these] objectives and guiding principles'.[8] This includes the Secretary as the 'Regulatory Authority' in Victoria.[9]
4. Part 2 of the National Law deals with approval of providers of education and care services. Among other things, that Part provides the Secretary may:

• at any time reassess 'whether an approved provider continues to be a fit and proper person to be involved in the provision of an education and care service' or 'a person with management or control of an education and care services operated by an approved provider continues to be a fit and proper person to be involved' in that service;[10]
  • suspend a provider approval if, amongst other things, 'any other circumstances indicates that the approved provider may not be a fit and proper person to be involved in the provision of an education and care service' or 'the approved provider has failed to comply with [the National Law]'.[11] Normally this requires a show cause process, unless there is an 'immediate risk to the safety, health or wellbeing of a child or children';[12] and/or
  • cancel a provider approval (after a show cause process)[13] if, among other things, the Secretary is satisfied that:[14]

(a) ... the approved provider or a person with management or control of an education or care service operated by the approved provider is not a fit and proper person to be involved in the provision of an education or care service; or > > (b) ... the continued provision of education and care services by the approved provider would constitute an unacceptable risk to the safety, health or wellbeing of any child ...; or

...

(e) the approved provider has breached a condition of the provider approval ...

1. The effect of a suspension includes that 'all service approvals held by the provider are also suspended for the same period'.[15] Similarly, an effect of cancellation of a provider approval is that 'all service approvals held by the person ... are also cancelled'.[16]
2. Part 3 of the National Law addresses service approval for an education and care service (i.e. a particular child care centre). Unsurprisingly, it is an offence for a person to provide an education and care service unless the person is an approved provider and the service is an approved service.[17]
3. Part 6 of the National Law establishes various offences related to the operation of an education and care service. Of relevance to this proceeding, an approved provider commits an offence if it:
   • operates a service 'unless there is at least one nominated supervisor for that service';[18]
   • operates a service unless an appropriate person (being a nominated supervisor, a person with management or control or a person in day-to-day charge of the service) 'is present at all times that the service is educating and caring for children';[19]
   • fails to 'ensure that every reasonable precaution is taken to protect children being educated and cared for by the service from harm and from any hazard likely to cause injury'.[20] This also applies to the nominated supervisor; or
   • fails to ensure that 'the relevant number of educators educating and caring for the children is no less than the number prescribed for this purpose' (being one educator to 4 children for children where the centre includes children below 2 years of age).[21] This also applies to the nominated supervisor.
4. It is also an offence, under section 207 of the National Law, to obstruct an authorised officer exercising powers under the National Law.
5. Part 7 of the National Law addresses compliance with the law. Among other things, it provides the Secretary may issue a compliance notice to an approved provider to address a failure to comply with a provision of the National Law and it is an offence for the approved provider to fail to comply with that notice (within the time specified in the notice).[22]
6. Section 182 of the National Law (within Division 3 of Part 7) provides that the Secretary may (after a show cause process)[23] issue a prohibition notice 'to a person who is in any way involved in the provision of [a service]' (including as nominated supervisor, an employee or volunteer or 'in any other capacity') if the Secretary considers that there may be 'an unacceptable risk of harm to a child or children' if the person were allowed:

(a) to remain on the education and care service premises; or

(b) to provide education and care to children.

1. The Secretary may (after a show cause process) also issue a prohibition notice to a person to 'prohibit the person from being ... a nominated supervisor if [the Secretary] considers the person is not a fit and proper person to be nominated'.[24]
2. The prohibition notice must state what the person is prohibited from doing being one or more of the following:[25]

(a) providing education and care to children ...

(b) being engaged as an educator ... employee, contractor or staff member of, or being a volunteer at, an education and care service;

(c) carrying out any other activity relating to an education and care service.

1. It is an offence for a person to contravene a prohibition notice while it is in force[26] and for the approved provider to engage such a person (whether as an educator, employee or volunteer).[27]
2. A person subject to a prohibition notice may apply for its cancellation and the Secretary must cancel the notice if 'satisfied there is not a sufficient reason for [the] prohibition notice to remain in force for [the] person'.[28]

1. A person who is subject of a 'reviewable decision' (which includes a decision to cancel a provider approval, to give a prohibition notice or to refuse to cancel a prohibition notice)[29] may apply to VCAT for review of the decision.[30]
2. On review, the Tribunal may confirm, amend or substitute the decision of the Secretary.[31]
3. The Tribunal's task is to determine 'what the correct and preferable decision is, having regard to the material before it'.[32] This 'may include new or additional material that was not before the original decision-maker'.[33] Relevantly, the process by which the Secretary's decision was reached and any deficiencies that may be identified in that process 'are neither here nor there'.[34] Further, in undertaking the review, the Tribunal 'must be guided by the objectives and guiding principles in s 3 in determining whether [it] should confirm the decision of the regulatory authority, amend it or substitute another decision for it'.[35]

1. The Tribunal Book for this proceeding includes:
   • The material compiled by the Secretary in relation to the Decisions under Review.[36]
   • Transcripts of the stay hearings relating to a working with children ('WWC') exclusion issued to Ms Tran and in relation to the Decisions under Review and the reasons for VCAT's decisions concerning those stays: Tran v Secretary to the Department of Government Services [2024] VCAT 1044 ('WWC Stay Decision') and Tran v Secretary to the department of Education [2024] VCAT 1101 ('DoE Stay Decision').[37]
   • The material provided by and relied upon by the applicants,[38] as well as two videos taken by Mr Ta of a compliance visit by the Department to the Centre on 26 September 2024 ('Applicants' Video Evidence').
   • Statutory Declarations or Affidavits from:
     • - Ms Ngoc Hanh Thi Tran, the sister of the first applicant (who I refer to, without intending any disrespect, as 'Hanh'), dated 11 July 2022.[39]
     • - Hanh's husband, Mr Chinh Ta (who I refer to, without intending any disrespect, as 'Chinh'), dated 9 August 2022.[40]
     • - Mr Dung Ta and Ms Luyen Nguyen (the parents of Mr Ta and Chinh) dated 11 July 2022.[41]
     • - Ms Julie Campbell, an authorised officer from the Department, dated 30 January 2025 ('Campbell Affidavit') concerning her observations during a compliance visit to the Centre on 26 September 2024;[42]
     • - Ms Therese Collings, an authorised officer from the Department, dated 30 January 2025 ('Collings Affidavit') concerning her observations during a compliance visit to the Centre on 25 September 2024;[43]
     • - Ms Sharon Baster, an authorised officer from the Department, dated 30 January 2025 ('Baster Affidavit') concerning her observations during compliance visits to the centre on 3 September and 26 September 2024;[44] and
     • - Ms Megan Leslie, an authorised officers from the Department, dated 3 February 2025 ('Leslie Affidavit') concerning her observations during compliance visits to the Centre on 16 January and 2 March 2023.[45]
2. In the lead up to the hearing, the Secretary provided two further affidavits[46] from:
   • Ms Liahao Gong, who undertook a student placement at the Centre in 2024, dated 12 February 2025 ('Gong Affidavit'); and
   • Mr Adam Creed, a senior program officer at the Department regarding the nominated supervisor for the Centre, dated 13 February 2025.

1. Ms Tran and Mr Ta each gave evidence before the Tribunal and were cross-examined by Mr Stoller (counsel for the Secretary).
2. The applicants summonsed Hanh and Chinh to attend the hearing and asked each them a small number of questions focused on the transfer of the Centre to VNPL.
3. The Department called Ms Campbell and Ms Baster and they were subject to some limited cross-examination by Ms Tran.

1. Hanh was initially granted approval to operate the Centre from October 2018. The land on which the Centre operated is owned by Hanh.
2. In December 2019, Ms Tran submitted a form to the Department for transfer of the approval to operate the Centre from Hanh to VNPL.[47] Based on the VIT Decision, it seems that Ms Tran was still a secondary school teacher at a college at the time.
3. However, in June 2020, Ms Tran's position at the college was terminated by the Department.[48] In the VIT Decision, Deputy President Proctor and Member Gysslink concluded that her performance as a teacher was 'in multiple respects alarmingly below required standards',[49] including 'failing to teach to the curriculum and failing to teach with sufficient knowledge skills and understanding of the relevant subject, to the high detriment of multiple students'.[50] The panel found that it was not in the public interest to allow Ms Tran to teach in an early childhood service because of 'alarming aspects to her character' (as discussed further at [86(b)]). The Tribunal ultimately affirmed the VIT's decision to refuse her application for registration as an early childhood teacher.

(For completeness, the Tribunal understands that Ms Tran has re-applied for registration as an early childhood teacher, but there is no evidence in relation to that application before the Tribunal and, in any event, it is not relevant to the present proceeding).

1. In June 2022, Hanh submitted a 'Petition' (via a lawyer) to the Department seeking the cancellation of VNPL's service approval on the basis of an allegation that the transfer of the service approval in December 2019 was 'bogus and fraudulent'.[51] The document, which was signed by various people (purportedly staff and parents from the Centre), also alleged that Ms Tran was not a fit and proper person to manage and operate a childcare centre because:
   • '[she] was terminated as a Secondary School Teacher by her previous employer ... due to serious misconduct and unsatisfactory performance in 2019'; and
   • the signatories had 'observed many instances where [she] ... bullied and shouted at educators and children ... and excused herself by saying she had to leave the centre immediate[ly] because of appointments'.
2. The Department investigated the complaint and found that Hanh's allegations of forgery could not be established. However, a recommendation was made that the Secretary find that a breach of section 295 of the National Law (relating to the provision of false and misleading information or documents) be substantiated.[52] However, it does not appear that any specific action was taken by the Secretary at that time.
3. In 2023, the Secretary undertook two compliance visits to the Centre, on 16 January 2023 and 2 March 2023. On each visit, a number of non-compliances with the National Law and Regulations were identified.[53]

1. On 8 July 2024, Ms Tran's WWC clearance was revoked and she was issued with a WWC exclusion.[54]
2. The Prohibition Decision was communicated to Ms Tran by way of a prohibition notice issued on 21 August 2024 ('Prohibition Notice'). The notice records that the Secretary was satisfied that 'there may be an unacceptable risk of harm to a child or children if [Ms Tran] were allowed: a. to remain on the education and care service premises; or b. to provide education and care to children'.[55] That was said to be based on the WWC exclusion issued to Ms Tran and that the VIT had 'refused registration on two applications ... on the basis that [she] posed a risk to children'.[56]
3. On 27 August 2024, Ms Tran sent an email to an officer of the Department[57] asking about the progress of the 'Prohibition Cancellation application' (i.e. her request that the Prohibition Decision be cancelled) and indicating that she had been 'so stressed since the Prohibition [Notice] as [she had] been unable to be present at the [Centre]' and that '[e]ducators and parents have become very anxious since the non-presence of [her]self at the centre'.
4. On 3 September 2024, Ms Baster undertook a compliance visit to the Centre. In a statement recording her observations surrounding that visit, Ms Baster says that nobody answered the door when she (and a colleague) arrived, but that '[a]fter several minutes nominated supervisor Vi Tran arrived at the service appearing from down the side of the building via an external public footpath'.[58] She records that Ms Tran indicated it was her service and that, after she had reminded Ms Tran of the restrictions under the Prohibition Notice, Ms Tran indicated that she would 'come in and do admin[inistration] at the front desk' (and then proceeded to enter the Centre).[59]
5. On 18 September 2024, the Secretary immediately suspended VNPL's service approval to operate the Centre for a period of three months ('Suspension Decision').[60] That notice was sent to Ms Tran by email the same day, including the following warning:[61]

Take note that you must immediately cease providing education and care at Smart Children Early Learning Centre from the date of this notice and for 3 months from the date of this notice.

1. On 23 September 2024, Ms Tran filed an Application for Directions Hearing or Orders with the Tribunal, seeking an injunction in relation to the Prohibition Decision and/or the Suspension Decision. By VCAT's orders made on 8 October 2024,[62] that application was treated as an application for review by both Ms Tran and VNPL of the Prohibition Decision, the Suspension Decision and the Secretary's decision of 25 September 2024[63] refusing to revoke the Prohibition Notice ('Application'). Further, VCAT granted an interim stay of those decisions until the hearing of the application for an ongoing stay.
2. On 25 September 2024, a compliance visit to the Centre was undertaken by Ms Collings. In a statement regarding her observations, Ms Collings indicates that she saw various adults (who are unidentified, but generally female and Asian) enter the Centre with a child or children and depart without that child or children.[64] Further, Ms Collings records a telephone conversation with Ms Tran in the afternoon, indicating that Ms Tran:[65]
   • identified herself as the 'centre director';
   • confirmed that the Centre was still operating;
   • (when asked why the Centre was operating while the service was suspended) replied 'I thought that was about my [WWC] Check, and that was all cleared';
   • (when told that it was a serious breach of the law for the Centre to continue to operate) replied '[w]e will close tomorrow, that's our plans'; and
   • confirmed that she had been present at the Centre 'earlier this morning' and (when told that was also a serious breach of the law) responded that 'there was a misunderstanding and that that was to do with [her WWC] check'.
3. A further compliance visit was undertaken by Ms Campbell and Ms Baster on 26 September 2024. In a statement regarding her observations, Ms Campbell indicates that she saw a group of children in the outdoor area, although it was difficult to determine how many children were there.[66] She says that they saw a female moving through the foyer, which Ms Baster identified as being Ms Tran and, later, Ms Tran was standing on the inside of the premises at the front door and told Ms Campbell and Ms Baster to wait outside.[67] She records that Ms Tran and Mr Ta then joined them outside the Centre and refused them entry, indicating Mr Ta said 'you are not coming in now and you are never coming in'.[68] When she told Mr Ta that obstructing an officer was an offence under the National Law, he reiterated that the Department are never going to go into the Centre.[69]
4. The stay application came on for hearing on 13 November 2024. On 20 November 2024, Deputy President Bisucci published reasons her Stay Decision, namely to:
   • summarily dismiss the Application to the extent it related to the Suspension Decision, by reason of the failure to seek internal review before applying to the Tribunal; and
   • refusing to stay the Prohibition Decision or the Refusal Decision and setting aside the interim stay orders with effect from 6 December 2024.
5. The Cancellation Decision was made on 18 November 2024 under section 33 of the National Law.[70] In the decision letter, the Secretary indicated he was satisfied that the approval to operate the Centre should be cancelled under sections 31(a), (b) and (e) of the National Law having regard to an earlier 'Show Cause Notice' issued on 4 October 2024 including the following reasons:

On 3 September 2024, authorised officers attended the [Centre] and found [Ms Tran] on the service premises, in contravention of section 187 of the National Law.

...

On 25 September 2024, an authorised officer observed children entering the [Centre]. A phone call to [Ms Tran] confirmed that the service was operating with 14 children in attendance, in contravention of section 103 of the National Law.

On 26 September, authorised officers attended the [Centre]. [Ms Tran] was in attendance at the education and care service premises and was operating the service, with children in attendance, in contravention of section 103 and section 187 of the National Law. [Ms Tran] did not allow authorised officers to enter the service premises.

1. By further VCAT orders made on 28 November 2024, the Cancellation Decision was added to the decisions under review, but the Tribunal declined to grant an interim stay of that decision.[71]
2. As already noted, the Centre ceased to operate on 29 November 2024.
3. On 20 December 2024, Deputy President Proctor delivered his oral reasons for, and made an order, refusing a stay of the Cancellation Decision.[72]

1. At the conclusion of the hearing, I granted leave for the parties to file closing submissions that included reference to the evidence given at the hearing.
2. In accordance with those orders, the Secretary filed the Summary of Respondent's Closing Submissions on 14 March 2025 ('Secretary's Closing Submissions' or 'SCS').
3. Ms Tran sent the Tribunal a series of emails after the hearing, culminating with a Word document headed 'Vi Tran Final Submission' filed on 28 March 2025 ('Applicants' Closing Submissions').
4. These submissions are summarised or set out below.

1. The Applicants' closing submissions are almost entirely irrelevant (because they seek relief that the Tribunal cannot provide) or misconceived (because they fail to address the substance of the allegations put against them by the Secretary). Nevertheless, I set them out in their entirety:

The first thing is we want to offer again to buy the land [on which the Centre is located] following market price from the landlord [Hanh].

Secondly, the landlord [Hanh] at the hearing on 18th February 2025 as witness ... confirmed that the signature on the statutory declaration that our company [VNPL] is allowed to operate the childcare centre continuously on the land [in] Burden Street SPRINGVALE is her signature, and [Hanh] also confirmed that the signature of the transfer of provider approval to [VNPL] is also her signature, in opposition to what the [Department] states that we faked [Hanh]'s signature, to start the reassessment of [VNPL] and to start the reassessment of Fitness and Propriety [of] the person [with] management and control [being Ms Tran]. Hence, in the reassessment we are in the right, and the [Department] has no reasons to cancel the person of management and control [of Ms Tran] and [the Centre's] service ... and provider approval [for VNPL]. We want our [Centre] to reopen at the earliest [date] as possible. We want the prohibition of [Ms Tran] and the service and provider approval of [VNPL] to be all restored. We also want the working with children check for both my husband [Mr Ta] and myself [Ms Tran] to be restored (no exclusion). We also want [Ms Tran's] VIT registration as a Kindergarten Teacher to be approved. Also, for the [Department] to compensate for all of the financial losses of our [Centre] from the closure of our centre (Childcare Subsidy was cut from Monday 18th November 2024). The [Department] also needs to compensate for all of our financial losses when we reopen as well because we need to reestablish all of our customers again. The cost of all of these financial losses will be provided as a statement by an external company.

The Landlord [Hanh] also needs to compensate all of the financial losses she and her husband [Mr] Chinh Ta caused to our [Centre] from June 2022. The reasons are:

• [Hanh] in June 2022 sent emails, text messages, letters to all of our customers incorrect information about us, causing our [Centre] to lose a lot of our customers.
• Many times, [Hanh] caused problems at our [Centre], making fake reports to the Springvale Police and both [Hanh] and [Mr] Chinh Ta have many times come to our centre whilst we are working to disrupt our centre. These include breaking our childcare locks twice, causing us to temporarily close the centre during these times. The dates when they broke our locks are 16th July 2022 and 21st October 2023. During these times they stole and damaged many of our centre's items including toys, food and computers, trashing the centre, and we had to clean up the centre due to the damages they caused.

1. As already noted at [8], the Secretary identifies 'four overarching submissions in support of its contention that the grounds in s 31(a), (b), and/or (e) of the National Law [for the Cancellation Decision] are made out' and submits that 'any one of these matters provides, in and of itself, a basis upon which the grounds are made out' and that 'any combination of those matters compels that conclusion'.[73]
2. The Secretary contends that, if the Tribunal 'draws any or all of those conclusions', then it should affirm the decision and 'exercise its discretion to cancel [VNPL's] provider approval', having regard to the 'paramount consideration of the protection of children'.[74] In the latter regard, the Secretary highlights:[75]

the National Law and Regulations require strict compliance in order to ensure the safety, health, and wellbeing of the inherently vulnerable children educated and cared for by services such as that operated by the Applicants. The Applicants' demonstrated unwillingness and/or inability to comply with the requirements, and their failure to remedy non-compliances of which they are notified, compel the conclusion that the Applicants are unlikely to strictly comply with the regulatory requirements in future.

1. The Secretary further submits that the first three of those submissions are 'also relevant to the decision to affirm the Prohibition Decision and the Refusal Decision'.[76] For those reasons, the Secretary contends the Tribunal 'should also conclude that there may be an unacceptable risk of harm to children if [Ms Tran] were allowed to remain [at the Centre] or to provide education and care to children'.[77]
2. Accordingly, the Secretary contends that the Prohibition Notice 'should stand' and the Prohibition and/or Refusal Decision should be affirmed.[78]
3. While the Secretary accepts that, in some cases, it might be appropriate to vary a Prohibition Notice, here the complete set of prohibitions are 'necessary because [Ms Tran] has shown an unwillingness to comply with the requirements of the National Law' and, as such, the Tribunal 'could not safely conclude that, were [Ms Tran] to be permitted to undertake some types of activities' at the Centre, 'she would limit herself to any permitted activities'.[79]

1. The Secretary submits that the findings in the VIT Decision 'demonstrate that the First Applicant (and, thus, the Second Applicant) is not a fit and proper person to be involved in the provision of an education and care service'.[80]
2. The specific findings relied upon[81] are Ms Tran's:
   • 'cavalier approach' toward educational requirements;[82] and
   • 'volatile behaviour' in an educational setting.[83]
3. The Secretary submits these findings 'warrant a conclusion that [Ms Tran] is not a fit and proper person', particularly when considered in the context of the following matters:[84]

(a) the long period of time over which that conduct occurred;

(b) the Tribunal's concerns about her lack of insight into her shortcomings;[85]

(c) the lack of credibility of her evidence in the earlier Tribunal proceeding;[86] and

(d) the Tribunal's findings as to the relevance of the [Ms Tran's] conduct in the secondary school environment to assessing her ability to work in the early childhood environment.[87]

1. The Secretary goes on to contend that, having regard to those findings and 'the principles underpinning the National Law', the Tribunal might also conclude that:[88]

the continued provision of education and care services by [VNPL] (given [Ms Tran]'s role with [VNPL]) would constitute an unacceptable risk to the safety, health or wellbeing of any child being educated and cared for [at the Centre] so as to compel the conclusion that the Prohibition Decision should be affirmed.

1. Insofar as Ms Tran's shortcomings relate to the secondary school environment, the Secretary suggests the Tribunal may conclude the lack of insight continues[89] given her evidence during this hearing indicating:
   • that she does not accept the VIT Decision, but rather considers the outcome to be the result of 'corruption' and 'false' evidence of a former principal;[90] and
   • her inability to 'detail any reflection into her own conduct' or identify 'changes she had made' arising from the VIT Decision.[91]
2. In submitting that the Tribunal should 'place significant weight on the earlier findings [in the VIT Decision]', the Secretary observes those findings are recent, have not been appealed by Ms Tran and there is 'no evidence of any relevant change in factual circumstances since that date'.[92] The Secretary contends that '[a]ny other approach risks inconsistency suggestive of an arbitrariness'.[93]

Applicants' flagrant disregard for the requirements of the National Law (and regulations)

1. The Secretary submits the Tribunal 'should conclude that the Applicants have demonstrated a flagrant disregard for the requirements of the National Law and Regulations', identifying the following three issues:[94]

(a) [Ms Tran] breached the terms of the Prohibition Notice, between 23 August 2024 and 8 October 2024, by:

(i) providing education and care to children [at the Centre]; and/or

(ii) being engaged as an educator and/or staff member at [the Centre]; and/or

(iii) carrying out other activities relating to the education and care service provided by [the Centre],

and she did so knowing that she was prohibited from engaging in such activities.

(b) [VNPL] continued operating an education and care service when its provider approval to do so was suspended, between 13 September 2024 and 8 October 2024 and that it did so in circumstances where it knew that it was not permitted to operate and/or was reckless in respect of that fact.

(c) [Ms Tran] unlawfully refused Authorised Officers [from the Department] entry to [the Centre] on 26 September 2024.

1. The evidentiary foundation for Ms Tran having knowingly breached the terms of the prohibition notice are set out in detail at [15] of the Secretary's Closing Submissions, referencing a witness statement from Ms Huynh Kim Anh (a placement student at the Centre between 27 August and 20 September 2024),[95] the Gong Affidavit, the Collings Affidavit, the Campbell Affidavit, the Baster Affidavit and the Applicants' Video Evidence.[96] In broad terms, their evidence is that they observed Ms Tran 'engaging in work' at the Centre on various dates after the Prohibition Notice was issued (Mr Gong, Ms Anh, Ms Baster, and Ms Campbell) or 'were told by [Ms Tran] herself that she had done so' (Ms Collings).[97]
2. The Secretary submits that the Tribunal should reject Ms Tran's evidence 'to the effect she undertook no work at the [Centre] after the Prohibition Notice was served' because it should prefer the evidence outlined in the preceding paragraph, noting that her evidence is 'irreconcilable' with the Secretary's witnesses and, as such, either Ms Tran or the Secretary's witnesses 'are not telling the truth'.[98] The Secretary adds that there has been 'no suggestion' by the Applicants that the Secretary's witnesses could be 'mistaken' in their evidence and it is 'unlikely that each of those witnesses is mistaken'.[99]
3. The Secretary also submits that:[100]
   • Ms Tran's allegation of 'some conspiracy between her sister and the Department' is not supported by any evidence and is 'a nonsense which should be rejected by the Tribunal', noting that 'no motive to lie has been established in respect of the [Secretary's] witnesses'; and
   • 'even if there were some conspiracy, this would not explain why Mr Gong and Ms Anh [i.e. the two witnesses who are not employed by the Department] ... would have given false accounts of [Ms Tran's] role during their time working as student-educators with [the Centre]'.
4. The Secretary contends there is 'real cause for concern as to the credibility of [Ms Tran]'s evidence', and suggests the Tribunal 'should conclude that she intentionally lied to the Tribunal when she denied working at [the Centre] in breach of the Prohibition Order between 21 August 2024 and 8 October 2024'.[101]
5. Apart from the irreconcilability between her account and that of the Secretary's witnesses, the Secretary points to the following factors impacting on Ms Tran's credibility:[102]

(a) critically, the implausibility and lack of credibility in respect of [Ms Tran]'s evidence that she held the honest but mistaken view that [the Centre] was permitted to continue operating even after the Suspension Decision ... [Ms Tran]'s willingness to attempt to mislead the Tribunal in respect of this evidence bears adversely on her credibility more broadly;

(b) her ... evidence about the 25 September 2024 phone call with Ms Collings, in which [Ms Tran]:

(i) first said "it might have been from a no caller ID... so I wasn't really sure who I was speaking to";

(ii) appeared to acknowledge the phone call may have occurred, stating "if I called back, then it might be the education number";

(iii) initially claimed not to be able to remember the conversation.

(iv) then (as the import of the conversation became clear) said "I'm not even sure I even had a conversation with" Ms Collings; and

(v) then said "I don't think T[h]erese Collings ever called me";

(c) [Ms Tran]'s evasive and non-responsive answers to certain to the questions asked of her in cross-examination, in that [Ms Tran]:

(i) in respect of the question of why [VNPL] continued operating between 18 September 2024 (the date of the suspension) and 23 September 2024 (the date of the VCAT application) [Ms Tran]:

(A) was initially evasive ("I already answered that question" when she had not); and

(B) then unresponsive (giving answers that did not address the question);

(ii) refused to answer the question of what her claimed belief that the VCAT application operated as a stay was based on;

(iii) failed to give a responsive answer to many questions;

(d) [Ms Tran]'s initial refusal to make a proper and obvious concession, that the metal barbeque being used to cook food [on 26 September 2024 while children were running about] was hot, stating "I don't know, I'm not sure";

(e) the fact that [Ms Tran] gave categorical and unconditional evidence that the Authorised Officer's evidence that a two-to-three-year-old child was within 20-30cm of the hot barbecue, unsupervised was "not true" before later being forced to concede she could not know whether the allegation was true or not, because she was outside the [Centre] at the relevant time; and

(f) the lack of credibility in respect of [Ms Tran]'s evidence as to the reasons she refused the Authorised Officers entry on 26 September 2024 ...

74 Even if the Tribunal were to find Ms Tran was not physically present at the Centre after the Prohibition Notice was issued, the Secretary submits the Tribunal might conclude she 'nonetheless contravened the Prohibition Notice'.[103] This is because the notice prohibited her 'carrying out any other activity' (i.e. apart from educating children) relating to the Centre and, even on her own evidence:[104]

(i) she remained a director of [VNPL] at all times and so was a person with management and control within the meaning of s 5A(a)(i) of the National Law, and thus a person with "authority or responsibility for, or significant influence over, the planning, direction or control of the activities or the delivery of the education and care service";

(ii) [Ms Tran] attended [the Centre] to liaise with Authorised Officers on 3 September 2024 and 26 September 2024;

(iii) [Ms Tran] remained nominated supervisor of the service.

VNPL continued operating the Centre while its approval to do so was suspended

1. The Secretary observes that, in cross-examination, Ms Tran admitted that 'she was aware of the suspension decision, from 18 September 2024', but the Centre 'continued operating despite the suspension decision'.[105] The Secretary contends this is either:[106]
   • another example of acting 'in flagrant disregard of the legal requirements to which she and [VNPL] were subject'; or
   • 'indicative of an inability to comply with legal requirements which is itself inconsistent with their fitness and propriety to operate in a strictly regulated profession'.
2. Either way, the Secretary contends the Tribunal 'should find that [Ms Tran] knew that [the Centre] should not have been operating but did so anyway' and, as such, 'lied in her evidence when she claimed to be under the mistaken belief that the filing of the Tribunal application operated as a stay'.[107] The Secretary points out that she did not proffer that explanation during the stay hearing on 7 October 2024 and that it otherwise 'implausible' (detailing at some length with the evidence in this regard).[108] For example, the Secretary notes that:
   • VNPL sought an urgent stay hearing in relation to suspension which would be unnecessary if the filing of the application itself operated to stay the decision;[109] and
   • on 31 July 2024, Ms Tran had been told by Senior Member Dea, in the context of the WWC matter, that merely filing an application for review did not stay the decision to cancel her WWC clearance and she could not work at the Centre in the meanwhile.[110]

Ms Tran unlawfully refused Authorised Officers access to the Centre

1. That Ms Tran refused Ms Campbell and Ms Baster access to the Centre is evidenced by the Campbell Affidavit, the Baster Affidavit and the Applicants' Video Evidence.[111]
2. The Secretary submits that Ms Tran's explanations of why she refused access (e.g. that she though Ms Campbell and Ms Baster might be criminals)[112] is 'implausible' and inconsistent with the video footage in which Ms Campbell and Ms Baster show their identification and Ms Tran refers to a past visit by Ms Baster and to Tribunal proceedings in the discussion between the parties.[113]

Applicants' demonstrated inability or unwillingness to comply with National Law and Regulations

1. In support of this submission, the Secretary refers to the various compliance issues identified during the inspections carried out at the Centre on 16 January 2023, 2 March 2023 and 26 September 2024.

Dishonesty in Ms Tran's dealings with the Secretary and/or Tribunal

1. The Secretary contends it is 'open to the Tribunal to find that honesty is a key requirement of fitness and propriety', but that Ms Tran:[114]

(a) intentionally lied to the [Secretary] in her 27 August 2024 email[115] when she claimed that she was not attending the service, when (as she must have known) this was not true;

(b) intentionally lied to the [Secretary] on 25 September 2024 when she informed it, in a telephone conversation, that she was not intending to operate the service on the following day when (as she must have known) this was not true;[116]

(c) was not a credible witness in her evidence in [the hearing concerning the VIT's decision to refuse her early childhood teacher registration], as found by the Tribunal [in the VIT Decision]...; and

(d) lied to the Tribunal in [her] evidence on 18 February 2025 ...

1. As observed by Senior Member Dea in Little Sweethearts Family Day Care Pty Ltd v Department of Education and Training ('Little Sweethearts FDC'):[117]

The phrase 'fit and proper' is not defined in the National Law but section 13 contains factors which must and may be considered.

More broadly, in the licensing and regulatory framework, the concept of being fit and proper goes to questions of personal character, integrity and propriety and to capacity to undertake the licensed activity. Regard must be had to the statutory context, and by making an assessment of the activities which the statute permits the regulated person to be engaged in and the ends to be served by those activities.

When the question is whether, having regard to its character or reputation, a company is fit and proper, the answer may be given by reference to the conduct, character or reputation of the persons by and through whom it acts or who are otherwise relevantly associated with it.

1. Among the matters referenced in section 13 are:
   • section 13(1)(a): 'the person's history of compliance' with the National Law;
   • section 13(1)(b): any decision under an 'education law', which includes the Education and Training Reform Act 2006 (Vic) ('Teaching Act'),[118] to refuse or refuse to renew a licence or registration;
   • section 13(2)(c): 'whether the person has the management capability to operate an education and care service in accordance with [the National Law]'.
2. Importantly, however, nothing in sections 13(1) or 13(2) 'limits the circumstances in which a person may be considered not to be a fit and proper person'.[119]
3. In Australian Broadcasting Tribunal v Bond,[120] Toohey & Gaudron JJ observed that:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. It has also been observed, albeit in the context of licenses to operate meat processing facilities that, to be fit and proper, a person must be 'willing and able to comply' with the conditions attaching to their licence or registration and to operate in compliance with relevant standards.[121] Similarly, in the context of aircraft maintenance licensing, it has been said that a licence holder 'should demonstrate a willingness and ability to comply with all statutory requirements' and that it is not sufficient 'to indicate a willingness to comply, while demonstrating an inability to comply due to incompetence or any other reasons'.[122]
2. Having regard to these matters, I consider it to be patently clear that Ms Tran is not a fit and proper person for the purposes of the National Law. In particular, the evidence before the Tribunal establishes that:

(a) Ms Tran failed to comply with her obligations under the National Law over an extended period

In this regard, based on the evidence of the Secretary's witnesses, I am comfortably satisfied that Ms Tran provided education and care services on one or more occasions between the issue of the Prohibition Notice (i.e. 21 August 2024) and the date on which the Tribunal granted an interim stay (i.e. 8 October 2024).

Further, I am also satisfied the evidence establishes that she continued to carry out other activities in relation to the Centre, namely its supervision and management, throughout that period.

By contravening the restrictions imposed by the Prohibition Notice, Ms Tran committed an offence (see [23]).

While it may be the case that, subjectively speaking, Ms Tran thought that she could continue to undertake those activities while she was actively disputing the decision at VCAT, that is no answer to why she continued to do so between the time the Prohibition Notice was issued and the date on which she filed her Application with VCAT (i.e. 23 September 2024).

Further, at a minimum, Ms Tran's decision to continue to undertake those activities after the issue of the Prohibition Notice demonstrates an inability to comply with the National Law on her part. If she did not understand the Prohibition Notice, it was incumbent on her to ask the Department to clarify matters and/or seek legal advice as to her obligations. There is no evidence that she did so.

It is necessary, at this juncture, to consider Ms Tran's primary contention to the effect that the Prohibition Decision should be set aside because the Secretary's investigation of her fitness and propriety was brought about as a result of a false complaint by her sister as to the circumstances in which VNPL obtained the approval to operate the Centre.

It is apparent from the sequence of events (see, especially, at [36]), that one of the reasons the Department commenced an investigation into Ms Tran's fitness and propriety was Hanh's allegations that the transfer of the Centre's approval to VNPL was 'bogus and fraudulent'.

That complaint was false. In this regard, in giving evidence before the Tribunal, Hanh admitted that she had in fact signed the transfer of the Centre provider approval to VNPL.[123]

However, it is also apparent (see [37]) that the Secretary found that Hanh's allegation was not established. Further, the Prohibition Decision was not based on the allegations made by Hanh. Rather, the Prohibition Decision was based on the VIT's decisions to refuse her registration as a secondary school and early education teacher due to the risk she posed to children (see [40]).

Accordingly, the underlying premise of Ms Tran's contention is misconceived. Moreover, it was not open to Ms Tran to simply ignore the Prohibition Decision because she did not agree with it.

Of course, Ms Tran had the right (which she exercised) to seek to have the Prohibition Decision cancelled by the Secretary or any failure to do so reviewed by VCAT. But unless and until the Prohibition Decision was cancelled, a stay was granted by the Tribunal or the Tribunal set the Prohibition Decision aside, Ms Tran was obliged to comply with its terms.

(b) The VIT has refused to renew Ms Tran registration as a teacher and refused to register her as an early childhood teacher

The relevant decisions of the VIT were made on 24 November 2021.[124] As she was entitled to do, Ms Tran sought review of those decisions by VCAT. However:

• she was given leave to withdraw her application for review of the decision to refuse to renew her teacher registration (see order 1 of the VIT Decision); and
• the VIT's decision to refuse to register her as an early childhood teacher was affirmed (see order 2).

Moreover, the findings made by VCAT in the VIT Decision are directly relevant to an assessment of whether Ms Tran is fit and proper to provide education and care services. The panel found that:

• over the years in question, her performance as a secondary school teacher was 'in multiple respects alarmingly below required standards';[125]
• the 'substantial contemporaneous documentation' supported the decision that Ms Tran 'should not be registered as an early childhood teacher';[126] and
• it was not in the public interest to allow Ms Tran to teach in an early childhood service because of 'alarming aspects to [her] character'.[127]

Among other things, she was a 'law unto herself, teaching according to her view of what should be taught [and] at times failing to apply the curriculum', with the panel being 'highly concerned' that she might take a similar 'cavalier approach' to teaching in an early childhood service.[128]

Further, the Tribunal was concerned about her 'volatile behaviour' which included, 'at times yelling at students and [other] staff [and] making unwarranted allegations towards them', and the potential for repetition of such behaviour in the early childhood environment if she came 'under pressure'.[129]

The Tribunal also raised concerns as to her 'lack of judgment' (in raising unwarranted accusations against others in response to her own failings) and 'lack of credibility' in giving evidence at that hearing, and how these matters might produce 'negative results' or otherwise be of 'great concern' in the early childhood environment.[130]

(c) Ms Tran lacks the management capability to operate an education and care service

In addition to Ms Tran's failure and inability to comply with the Prohibition Decision discussed in paragraph (a), and her obstruction of the Department's officers by refusing them access to the Centre (which is a further offence (see [18]), the number of compliance issues identified by the Department (see [79]), many of which were not addressed before the Centre stopped operating, evidence a lack of management capability on her part.

Further, it is evident that (as the person with management and control of VNPL) she failed to take action to prevent VNPL contravening the National Law after its service approval was suspended (see third bullet point at [88] below).

(d) Ms Tran lied to or misled the Secretary on at least two occasions

I am comfortably satisfied that Ms Tran lied to or misled the Secretary as to her actions and intentions regarding the Centre in her email of 27 August 2024 and her telephone conversation of 25 September 2024 (see [80(a)] and [80(b)]). Honesty is a critical element of character and so goes to a person's fitness and propriety to carry on a regulated activity. This is particularly important when regard is had to the age of children cared for in an early childhood setting and the paramount consideration as to the rights and best interests of the child (see [12]).

1. As noted (see [81]), the fitness and propriety of a company is to be determined by reference to the conduct, character or reputation of the persons by and through whom it acts. As VNPL's sole director and its nominated supervisor for the operation of the Centre, it is Ms Tran's conduct, character or reputation that is relevant. For the reasons identified in the preceding section, I am satisfied that these matters establish that VNPL is also not a fit and proper person.
2. Further, I am comfortably satisfied that the evidence establishes that VNPL, as approved provider, also failed to comply with, and committed offences under, the National Law, including:
   • (on Ms Tran's own evidence) allowing the Centre to operate when Ms Tran, being the only nominated supervisor and person with management and control, was not present (see second bullet point at [17]);
   • continuing to engage Ms Tran while she was subject to the Prohibition Notice (see [23]); and
   • continuing to operate, during the period from 13 September 2024 to 8 October 2024, while its provider approval was suspended (see [15]),

which individually and collectively serve to confirm that VNPL is not a fit and proper person in its own right.

Would Ms Tran's or VNPL's continued provision of education and care services at the Centre constitute an unacceptable risk to the safety, health or wellbeing of any child?

1. As with the assessment of fitness and propriety, when assessing whether the provision by VNPL of education and care service would constitute an unacceptable risk to the safety, health or wellbeing of any child, it is necessary to focus on Ms Tran's actions and behaviour. This is because it is clear that she would be the person who would primarily provide the education and care (noting that she has indicated she has reapplied for early childhood teacher registration) and/or supervise the provision of that education and care and be responsible for the management of the Centre at which the education and care is provided (given that there is no one else that is a director of VNPL).
2. As the panel observed in the VIT decision, the early childhood teaching environment is not a 'low stress place to work', rather the environment 'poses substantial challenges to and stress for those employed, with high expectation from parents concerning their very young children and with respect to ongoing performance, including interactions with colleagues'.[131] The panel formed the view that, if faced with such pressure, Ms Tran may repeat her volatile behaviour, such as by yelling at students, in the context of any education and care service she provides, supervises and/or manages.[132]
3. Given the young ages and inherent vulnerability of the children that were cared for at the Centre before its ceased operating (and so likely to be cared for in the future if the Centre reopened), I am comfortably satisfied that if Ms Tran were to engage in volatile behaviour of this nature, it would pose an unacceptable risk to the health and wellbeing of any children who were educated at the Centre.
4. For similar reasons, if VNPL allowed Ms Tran to be involved in any way with the Centre (including as an educator, its nominated supervisor or person with management and control), this would pose an unacceptable risk to the health and wellbeing of any children who were educated at the Centre.

1. For the above reasons, I am comfortably satisfied and find that:
   • each of VNPL and Ms Tran are not a fit and proper person to be involved in the provision of an education and care service; and
   • the continued provision of education and care services by VNPL would constitute an unacceptable risk to the safety, health or wellbeing of any child at any education and care service it operated (including the Centre).
2. Accordingly, the Cancellation Decision was the correct and preferable decision and must be affirmed.

Conclusion on Prohibition Decision (and Refusal Decision)

1. For the above reasons, I am comfortably satisfied and find that there would be an unacceptable risk of harm to a child or children if Ms Tran were allowed to remain on any education and care service premises (including the Centre) or provide education and care to children.
2. Accordingly, both the Prohibition Decision and the Refusal Decision were the correct and preferable decisions and must be affirmed.

1. It is necessary to briefly return to the Applicants' Submissions and explain why the relief she seeks is beyond the jurisdiction or powers of the Tribunal.
2. I have already explained that there is no evidence of any corruption or similar wrongdoing on the part of the Secretary and, in any event, the investigation of such allegations are matters for other agencies (see [6]). Further, I have explained why Hanh's allegations regarding the transfer of the VNPL provider approval did not form the basis of the Prohibition Decision and does not otherwise excuse Ms Tran's failure to comply with the terms of the Prohibition Decision (see [86(a)]).
3. Addressing the remaining matters raised in the submissions (see [56]):
   • as a statutory tribunal, the Tribunal has no inherent jurisdiction or powers, other than the jurisdiction and powers granted under an enabling enactment (in this case, the National Law and/or ECSNL Act) or the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act');[133]
   • it is for Hanh to determine if she wishes to accept any offer from Applicants to buy the land on which the Centre was built and, if so, at what price and on what terms. In conducting a review of decisions under the National Law, the Tribunal has no power to order Hanh to accept such an offer;
   • the present jurisdiction of the Tribunal is limited to review of the Prohibition, Refusal and Cancellation Decisions made by the Secretary to the Department of Government Services under the National Law. The decisions regarding Ms Tran's early childhood teacher registration and WWC exclusion were made by different agencies, have already been the subject of VCAT review (each being affirmed) and are not properly before the Tribunal in the present proceeding (and, in the case of the separate WWC exclusion issued to Mr Ta, he is not even a party to this proceeding);
   • the Tribunal has no general power to order that a party to a proceeding pay compensation to the other party and, while the Tribunal is granted power to award compensation in respect of some governmental decisions,[134] there is no such power under the National Law or ECSNL Act; and
   • Hanh and Chinh are not parties to this proceeding. Rather, they only attended as witnesses as they were compelled to do as a result of summonses issued by the Tribunal at the request of the Applicants. It is well established that the Tribunal does not generally have the power to award costs against a non-party.[135] Similarly, there is no power for the Tribunal to award compensation against a third party under the VCAT Act or otherwise.
4. For these reasons, these matters raised by the Applicants are misconceived and, their Application(s) are otherwise dismissed.

[1] The National Law is given effect as a law of Victoria under the Education and Care Services National Law Act 2010 (Vic) ('ECSNL Act'), s 4.

[2] [2024] VCAT 1101.

[3] To the extent that the Applicants wish to pursue these allegations, they should be referred to the Independent Broad-based Anti-corruption Commission.

[4] [2023] VCAT 910.

[5] National Law, ss 3(1) and 5(1) (definition of 'education and care service').

[21] Ibid, s 169(1) and Education and Care Services National Regulations (NSW), r 123.

[32] DBU v Secretary, Department of Education [2017] NSWCATAD 257 [26] (applied in Jump Start Family Day Care Pty Ltd v Department of Education and Training ('Jump Start') [2019] VCAT 1631 [20]).

[35] TJS v Department of Education and Training [2019] VCAT 729 [14].

[46] Leave was granted for the Secretary to rely on these further affidavits.

[49] [2023] VCAT 910 [201].

[52] Memorandum dated 22 November 2022: TB, Tab (2C), [34]-[36].

[53] Compliance Notice dated 27 February 2023 (in respect of the visit on 16 January 2023): TB, 321-339 and Letter advising of an investigation being conducted in relation to the Centre dated 21 March 2024 (in respect of the visit on 2 March 2023): TB, 361-371.

[54] This was confirmed by Service Victoria in an email dated 10 July 2024: TB, 487.

[58] Exhibit SB-1 to the Baster Affidavit [7].

[64] Exhibit TC-1 to the Collings Affidavit [8]-[32].

[65] Ibid [37]-[38], [42], [50]-[51], [53] and [55].

[66] Exhibit JC-1 to the Campbell Affidavit [8].

[82] Tran v Victorian Institute of Teaching [2023] VCAT 910 ('VIT Decision') [233]-[234].

[87] Ibid [236]-[237] and [240]-[241].

[90] Transcript, 18 February 2025 ('Tx'), 128 (lines 24-25) and 131 (lines 20-26).

[93] Ibid [11]-[12] (referencing comments of Brennan J in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639 regarding the importance of consistency in administrative decision making).

[102] Ibid [24] (transcript references omitted).

[104] Ibid (source material references omitted).

[105] SCS [25] (citing Tx, 67 (lines 7-30) and 68 (line 24) to 69 (line 3)).

[109] Ibid [27(b)(ii)] (referencing TB, 114 and Tx, 86).

[110] Ibid [27(b)(iii)] (referencing TB 199, line 1 - 13; TB 207, line 9 - 16 and Tx, 90-93).

[111] Ibid [28] (TB and paragraph number reference omitted).

[116] Referencing the Collings Affidavit (in relation to the telephone conversation) and the Campbell and Baster Affidavits (in relation to the operation of the Centre on 26 September 2024).

[117] [2021] VCAT 1481 [133]-[135].

[118] National Law, s 5(1) and ECSNL Act, s 10.

[120] [1990] HCA 33 [36]; [1990] HCA 33; (1990) 170 CLR 321.

[121] Mr Chooks Halal Chicken Pty Ltd v Primesafe [2018] VCAT 1932 [25] (Senior Member Wentworth).

[122] Snook and Civil Aviation Safety Authority [2010] AATA 582 [445].

[133] See, for example, Chopra v Victorian Institute of Teaching [2024] VCAT 1172 [12].

[134] For example, under the Public Health and Wellbeing Act 2008 (Vic): Blewett v The Secretary, Department of Health [2024] VCAT 725.

[135] See, for example, State of Victoria v Bradto Pty Ltd & Ors [2006] VCAT 685. While there are instances where an order for costs has been made, Gorton J recently referred to such orders having been 'persuasively questioned': Zhang v Oakmont Properties Pty Ltd [2023] VSC 248 [9].