VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	vcat reference No. Z626/2024
	
CATCHWORDS	
Review and Regulation List – application for revocation of a stay of a WWC Exclusion given under the Worker Screening Act 2020 (Vic) – misleading information provided at stay hearing which was relied on for decision to grant a stay – evidence about responses to regulatory action and whether the applicant can be relied on to comply with laws and regulatory directives while working with children operating a childcare centre – stay order revoked.	

APPLICANT	Vi Tran	
RESPONDENT	Secretary to the Department of Government Services	
WHERE HELD	Melbourne	
BEFORE	A Dea, Senior Member	
HEARING TYPE	Revocation of stay hearing	
DATE OF HEARING	23 October 2024	
DATE OF ORDER	23 October 2024	
date of reasons	30 October 2024	
CITATION	Tran v Secretary to the Department of Government Services (Review and Regulation) [2024] VCAT 1044	

Order

1	With effect from 7:00pm on 30 October 2024, the stay order made on 31 July 2024 is set aside.  As a consequence, the respondent’s 8 July 2024 decision to give the applicant a WWC Exclusion under the Worker Screening Act 2020 (Vic) is in operation from that time.
2	Written reasons to follow.
3	The proceeding is listed for an administrative mention (before any member other than me) on 16 December 2024 (but the parties may respond earlier if in a position to do so).  By that date the parties must write to VCAT (preferably jointly) to indicate how much time will be needed for them to prepare a Tribunal Book containing all materials to be relied on by both parties at a final hearing.  On receipt of that information, the usual procedural orders for preparation of the Tribunal Book and provision of information necessary for the hearing to be listed will be made.

VCAT records: the respondent has stated today that it will give a copy of this order to the Department of Education.

A. Dea
Senior Member			

APPEARANCES:		
For the Applicant 	In person 	
For the Respondent	Ms S Tatas, counsel	

Reasons
1	This proceeding concerns a Decision made by the Secretary to the Department of Government Services on 8 July 2024 under the Worker Screening Act 2020 (Vic) (WSA).  The Decision was to revoke Vi Tran’s WWC Clearance and give a WWC Exclusion.
2	Tran applied for a stay of the Decision because, in summary, without a WWC Clearance, she would not be able to continue to operate a childcare Centre owned by her and her husband (also referred to in these Reasons as the Service). 
3	On 31 July 2024, I heard the application for the stay and decided to grant that order (the Stay).
4	When I decided to stay the Decision under section 50 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), I applied the usual considerations and concluded they narrowly fell in Tran’s favour.  I gave the Secretary had liberty to apply for a revocation of the Stay if material came to its attention which raised concerns about the operation of the Centre or in respect of Tran.  
5	The Secretary applied for revocation of the Stay on 11 October 2024.
6	A hearing was listed and, after considering the materials each party relied on, together with their written submissions and evidence given by Tran, I revoked the Stay with effect from the date a week later.  That period was allowed so Tran could make arrangements to employ another person to operate the Centre or otherwise inform the families who relied on the Centre and her employees.
7	These are my reasons for revoking the Stay.
Background 
8	The following largely comes from the Secretary’s submissions which set out a fair description of the relevant background.
Tran’s WWC Clearance
9	On 10 March 2021, Tran applied for a WWC Clearance and that was given on 29 March 2021.
The Victorian Institute of Teaching’s decision and VCAT’s review application decision 
10	On 24 November 2021, the Victorian Institute of Teaching (VIT) gave Tran notice that it had refused her applications for:
(a)	Renewal of her registration as a teacher; and
(b)	Early childhood teacher registration.
11	In November 2021, Tran applied to VCAT for review of the VIT’s decision.  
12	At the hearing of Tran’s application for review of VIT’s decision to refuse to grant her registration, Tran only pressed her early childhood registration.  
13	On 3 July 2023, the Tribunal decided to affirm the VIT’s decision to refuse to register Tran as an early childhood teacher and provided lengthy reasons for that decision (VCAT’s July 2023 Decision). 
The WWC Exclusion Decision 
14	On 2 January 2024, the Secretary received a notification about Tran from the Commission for Children and Young People (CCYP).  The notification advised of three substantiated findings of reportable conduct.
15	The reportable conduct was:
(a)	On 17 September 2019, registered teacher Tran, accused Alleged Victim 1 of wanting to slit his wrists with a Stanley knife in front of a class of students.  Tran grabbed Alleged Victim 1 by the wrists, pulled his sleeves up and examined him in front of the class.  The CCYP considered that conduct to fall withing the meaning of ‘behaviour that causes significant emotional or psychological harm to a child’ and ‘significant neglect of a child’; and 
(b)	Registered teacher Tran consistently targeted Alleged Victim 2, pointing her finger at her in an intimidating manner, and said things to embarrass Alleged Victim 2 in front of the class, causing her stress and anxiety about going to maths class.  That conduct was also considered to fall within the meaning of ‘behaviour that causes significant emotional or psychological harm to a child’.
16	As a result of the notification, Tran’s eligibility to have a WWC Clearance was reassessed as a category C WWC reassessment under section 78 of the WSA.
17	In conducting the reassessment, the Secretary considered a report received on 8 February 2022 from the VIT advising that Tran had her employment terminated and an employment limitation placed on any future employment by the Department of Education and Training (DET).  Further, the VIT had refused to renew Tran’s full teacher registration, and an application for early childhood teaching registration had been denied.
18	On 8 July 2024, the Secretary made the Decision and gave Tran a WWC Exclusion.
The application for review of the Decision and for a stay
19	On 9 July 2024, Tran made an application to the Tribunal for a review of the Decision to give her a WWC Exclusion.  She also made an application for orders staying the effect of the WWC Exclusion.  The reason provided for seeking a stay was: 
At the moment I am working at the childcare [Centre] as the Director and overseeing the operation of the [Centre].  I haven’t done anything wrong and the decision made by Working with Children Check was based entirely on the report by the retired Principal . . .  about myself.  The allegations of Category C about myself was made up as all I did as a teacher was for the best interest of the students.
20	The application for a stay proceeded before me on 31 July 2024 and was opposed by the Secretary (the Stay Hearing).
21	Following the hearing of submissions and relevant information (not given on oath or affirmation) by Tran, the Stay was granted with the Secretary having liberty to apply for a revocation of the Stay.
The 31 July 2024 Stay Hearing and Stay decision
22	During the course of the stay hearing, Tran described her role in running the Centre and its compliance with the relevant laws and regulations, which are administered by the DET under the Education and Care Services National Law Act 2010 (Vic) (ECS National Law).
23	There was the following exchange: 
Tran: If I was below standard, because our [Centre] is actually meeting the quality - - the standard - -
Senior Member: Yes. Have you got - - has that been done recently?
Tran: Oh, 2019.
Senior Member: Have you got - - when did you first open the [Centre]?
Tran: 2018.
Senior Member: Okay, so it was assessed in 2019 after a year. Has it been assessed again?
Tran: No, but there have been compliance visits and we met everything and because we were already meeting and, that’s what they are not assessing yet, but our [Centre] is not below standard.  If I was below standard, how could I have passed all those performance reviews?  And I was a Year 12 high school teacher.  I did exam corrections and I was even audited and I passed all my audit for Year 12, so the below standard they say about me is not true.
24	In granting the Stay, I said that the matter:
narrowly tips in favour of [Tran] when I add in the inconvenience and the challenge to the families [with children at the Centre] who would be impacted if a stay wasn’t granted”. 
25	In giving my reasons I also said: 
I accept what I’ve heard today that all regulatory requirements have been met, including compliance checks, and there’s been no complaints to the [DET].
26	Towards the end of the Stay Hearing, I noted that, after the Hearing, the Secretary may obtain material about the way in which the Centre was providing services, including going to the regulator.  I then said:
if those enquiries lead to concerns about the manner in which the service is being conducted and raise a question about your capacity to safely engage with children, then the Secretary can make an application for the stay to be revoked.  Now, that really put[s] you on notice that you need to be operating that service appropriately, including not straying into work for which you are required to be registered by the VIT.
Equally, for the Secretary - - and I just reiterate if enquiries are made by the Secretary that raise concerns about - - that are more current about the way the service is being operated, it can, at any time, make an application for a further hearing to be listed on the revocation of a stay.  I have formed the view that allows for some checks and balances and to ensure that the service operates appropriately with regard to the paramount consideration.
27	During the Stay Hearing, I asked Tran about how the Centre had operated in the period between when she was given a WWC Exclusion and the day of the Stay Hearing.  The transcript included the following:
Senior Member: So, since the exclusion decision was made on the 8th of July - a few weeks ago now – who’s been acting - - has someone stepped in to take over as director, because you need - - can I check - - sorry, I should ask you this question: do you understand that you have to  have a [WWC Clearance] to do that director role given you’re interacting with children? 
Tran: Yes. 
Senior Member: Yep, so has someone stepped in and taken over since the 8th of July?
Tran: At the moment because I was waiting for the stay there hasn’t really been anyone yet except my husband, but he doesn’t have an education background.  So, he’s just a temporary.  But yeah, I haven’t - - I’ve been like at the [Centre] because I wasn’t really sure what - - because it says like 14 weeks - - sorry, two weeks ago I thought like I have to wait for the stay hearing and then I stopped working there. 
Senior Member: It's actually the other way around - -  
Tran: Yep - -  
Senior Member: You are supposed to stop until you are granted a stay. 
Tran: Oh, okay, so I wasn't sure about that, so I - - 
Senior Member: Okay - - 
Tran: Been basically still there.
Further information obtained by the Secretary 
28	Following the Stay Hearing, enquiries were made with DET and VIT and a number of documents were provided. 
29	Of relevance to this application were the documents provided by the Quality Assessment and Regulation Division (QARD) of DET.  
QARD assessments of the Centre 
30	The documents from QARD showed that the Centre had been deemed non-compliant with the requirements set out in the relevant legislation and regulations on at least four occasions in 2022 and 2023 and that QARD had received one complaint.  The specific failures including Tran being in contravention of the WSA twice by failing to ensure that staff members had a WWC Clearance.
31	The instances of non-compliance at various points in time included the following:
(a)	Emergency evacuation procedures were not practiced or recorded as practiced every three months, in that the last emergency evacuation was conducted in March 2022 and there was no documented evidence;
(b)	A staff member worked for three weeks before their WWC clearance was checked; 
(c)	There was no educator at the service who held current anaphylaxis or asthma training;
(d)	The service was being run without an educator in attendance with current first aid training;
(e)	Attendance records of children were not properly maintained; 
(f)	Conflict between Tran and her sister (who owns the land on which the Centre is built) were impacting enrolments;
(g)	The service did not have the required ratio of educators to children;
(h)	For a period of 30 minutes, there was no person with management or control, nominated supervisor or person in day-to-day charge of the service in attendance;
(i)	There was inadequate supervision of children – one child was observed to exit the kindergarten room unnoticed, walk through the bathroom and into the Nursery, out to the hallway before entering the kitchen unaccompanied, where they were noticed and retrieved;
(j)	There were issues with the required programs, children showed limited interest in activities, were disengaged, the outdoor environment was not purposefully planned or set up, and routines were not properly implemented – the first child arrived at the service at 7:40am, and the first meal was served at 11:00am; children were observed repeatedly telling educators they were hungry, and becoming frustrated and distressed while waiting for food to be provided;
(k)	The last rehearsal of emergency and evacuation procedures was dated July 2022, when they were to be rehearsed every three months;
(l)	Inadequate records of staff qualifications were maintained;
(m)	Records of educators working directly with children were not kept;
(n)	Children’s attendance records were not properly maintained, with only six of the 10 attending children signed in and the record not containing all required details;
(o)	Three children’s health information details were inadequate;
(p)	One child’s record did not include details of medical practitioners or a copy of a required allergy medical management plan;
(q)	One child’s record did not include details of medical practitioners;
(r)	One child’s record did not have an up to date immunisation status certificate;
(s)	Policies and procedures were not followed in that a risk minimisation and communication plan had not been developed for a child diagnosed with an allergy; and 
(t)	The service’s on-site cook (Tran’s husband) did not have a current WWC clearance; their clearance had expired in June 2022 (approximately six months earlier).

32	On 24 February 2023, QARD received a Complaint from an Early Learning Coordinator for the City of Greater Dandenong and City of Casey.
33	The Complaint related to a visit to the Centre on 23 February 2023 where the Early Learning Coordinator had observed a child under the age of two years old left unattended for up to 30 minutes, playing in the front Centre playground.  The Centre educators were said to be unaware of the child’s absence.
34	The most recent visit by QARD authorised officers was on 2 March 2023. The visit raised a number of non-compliance issues:
(a)	Children were inadequately supervised as they were left alone indoors with only a student on practical placement and no supervision by an educator;
(b)	A child who had been diagnosed with asthma was in attendance, with no prescribed medication or medical management plan; the person with management or control stated they were not aware that the child had asthma;
(c)	The outdoor environment was not safe for children due to lack of fall zones and equipment not being adequately secured;
(d)	There was no program being delivered to children based on developmental needs, interest and experiences of each child;
(e)	Not all educators met the qualification requirements, in that from 8:30 am to 9:05 am there was one educator who held a Certificate III qualification working directly with two children aged under 36 months and one child aged over 36 months, where a Diploma qualified educator was required;
(f)	The premises and equipment were not all safe, clean and in good repair;
(g)	Staff records did not include dates on which a student participated in the service, and the hours of that participation;
(h)	Interactions with children were ‘not reasonable’;
(i)	Educators were observed telling children ‘no’ without attempts to redirect them;
(j)	An educator was observed chasing a child, grabbing them by the wrist and then the collar of their shirt, which was used to pull them up; 
(k)	Two children were crying at the door distressed after being dropped off.  They were told to stop crying and no attempt was made to calm, comfort or reassure them.  The children were given an iPad and when they continued to cry were told it was not ok to cry and to stop;
(l)	Proper attendance records for children were not kept, in that:
(i)	at arrival there was only one child signed in but three children in attendance, and later there were eight children in attendance but only six were signed in; and
(ii)	the attendance record did not contain the name of the person signing the child in and out at arrival and departure;
(m)	Reasonable steps were not taken to ensure documents were accurate in that:
(i)	The staff roster provided by the person with management or control listed a student as working directly with children from 9:00 am to 5:30 pm on Mondays, Wednesdays and Fridays, however it was confirmed that the individual was a student and held a volunteer WWC clearance; and
(ii)	The record did not include times when the person with management or control (Tran) was not on the service premises and not working directly with children, including from 8:30 am to 9:05 am on the day of the visit.
35	I note that the Secretary alleged that some of the matters identified during compliance visits raised questions about requirements under the WSA.  It is not necessary for me to canvass those in these Reasons as they will be matters to be considered at the final hearing.
36	Amongst the materials obtained by the Secretary were some of Tran’s responses.  Tran provided a more complete set of responses before the Stay Hearing which I reviewed alongside the letters written by QARD.  
37	Having regard only to the documents before me, it appeared that QARD/DET assessed the responses from Tran as they were received and no further action was taken.  Some of the letters before me indicated that Tran’s responses were simply placed on file and her broad obligations were referred to for her future reference.  
38	It is convenient to emphasise now that the accuracy or otherwise of the matters of concern raised by QARD and Tran’s responses to those were not the subject of the Secretary’s Decision under the WSA and were not matters for me to review in considering the application for revocation of the Stay.
39	However, they were relevant to the Secretary’s primary submission that, when Tran gave the responses to my queries regarding the Centre’s compliance with regulatory requirements at the Stay Hearing, she mislead the Tribunal by giving false answers. 
Decisions made by DET and QARD
Prohibition Notice
40	On 21 August 2024, DET issued Tran with a Prohibition Notice under the ECS National Law.  That Notice prohibited Tran from: 
•	Providing education and care to children for any education and care service;
•	Being engaged as an educator, family day care co-ordinator, family day care educator, staff member of, or being a volunteer at any education and care service; and
•	Carrying out any other activity relating to an education and care service.
41	In its short reasons for the Prohibition Notice, DET stated that there may be an unacceptable risk of harm to a child or children if Tran was allowed to remain on the education and care service premises or to provide education and care to children.
Immediate Suspension of Service Approval Notice
42	On 18 September 2024, QARD issued Tran and her husband (as co-owners of the Centre and Approved Providers under the ECS National Law) with a Notice of Immediate Suspension of Service Approval.  The basis for the Notice was that Tran was observed entering the premises on 3 September 2024 in contravention of the Prohibition Notice.
43	The effect of the Immediate Suspension was that Tran and her husband must immediately cease providing education and care at the Centre from the date of the Notice and for three months from the date of the Notice.
The review proceeding 
44	In a separate review proceeding commenced by Tran and the company which owns and operates the Centre (the DET Proceeding), the Tribunal granted an Interim Stay in relation to the Prohibition Notice and the Immediate Suspension pending a full hearing of the application for a stay (which is opposed by DET and to be heard on 13 November 2024).
Tran’s evidence 
45	At the start of the revocation hearing, I stated that there were some factual matters I would like to ask Tran about to assist in considering the Secretary’s application, including about the operational status of the Centre.  I stated that, subject to her agreement, it seemed appropriate for her to give evidence on oath or affirmation so the evidence could be given weight in deciding whether to revoke the Stay.  I also explained that would allow the Secretary’s counsel (Sarah Tatas) to ask questions.  Tran stated that she would make a promise to tell the truth and then, with my assistance, made an oath.
46	In light of the Prohibition Notice, the Immediate Suspension and the Interim Stay granted on 8 October 2024 in the DET Proceeding, I asked Tran about what was happening with the Centre including whether it was operating, how many children were attending and whether Commonwealth funding was being received.  
47	Tran’s answer was that the Centre was still open and ‘we never closed’.  She stated they had approximately 12 to 15 children attending each day (being about half of the number of children the Centre was entitled to provide care to).
48	I asked whether there had been any change to the number of families registered.  She said it was still the same but enrolments were starting for 2025.  Tran advised that the Commonwealth funding (which ceased when the Immediate Suspension was issued) had been reinstated and back dated.
49	As to the statement they ‘never closed’, I referred Tran to the Prohibition Notice and to the Immediate Suspension. 
50	Tran confirmed that she received the Prohibition Notice on 24 August 2024 and the Immediate Suspension on 23 September 2024.  I noted that the Immediate Suspension was said to have been issued because Tran had been observed at the Centre (in contravention of the Prohibition Notice).  
51	Tran said that she had not been at the Centre on the relevant day but, when her staff informed her someone from DET had arrived, she went to the Centre (which is over the road from her house) as the staff did not know where documents were held. 
52	Tran confirmed that the Centre continued to operate in the period between when the Immediate Suspension was received by her and her husband and when the Interim Stay was granted.  I asked whether that fact was discussed at the time of the Interim Stay hearing in the DET Proceeding and she said ‘yes’, confirming that DET was aware of that fact.
53	Tran went on to say:
we didn’t do anything wrong and we know for a fact that the Prohibition Notice wasn’t based on the issues that they raised and so that’s why um we didn’t close the Centre, we decided not to close the Centre even though we had the suspension 
54	After hearing that answer, I noted that the continuing operation of the Centre in the relevant period could be a matter of importance in my decision on the revocation application but also that it appeared it was ‘not news’ and was known in the DET Proceeding.  
55	Tatas asked Tran some questions regarding the statements she had made at the earlier Stay Hearing.
56	Tran was referred to the quote at [27] above and was asked if she recalled making the statement; she did.
57	Tran was referred to the compliance reports issued by QARD and the responses mentioned above.  Tran was asked a series of questions and, in summary, she gave the following answers:
•	When asked if she agreed that compliance issues were raised in each of QARD’s reports, Tran referred to them as queries and said that documents were produced to QARD and the Centre otherwise complied with what was required;
•	All childcare centres have compliance issues but those affecting her Centre were ‘all minor’;
•	When Tran was referred to specific compliance issues and asked if they would be regarded as ‘serious’, Tran’s answers were to the effect that the particular compliance concerns were short lived or explicable and so not serious;
•	She then agreed that, if there was non-compliance in respect of certain matters (such as staffing ratios in a room for babies, a child not having an asthma puffer or staff not having any anaphylaxis training), that would be ‘serious’;
•	Leaving aside subsequent rectification efforts, Tran agreed that the matters raised in the reports were ‘serious’; and
•	She further agreed that the Centre was not 100% compliant at all times. 
The Secretary’s application for revocation of the Stay
58	The Secretary submitted that the Stay ought to be revoked given that, contrary to what Tran told me at the Stay Hearing, there were a number of instances of non-compliance within the Centre and at least one complaint had made been made.  It contended that Tran ‘purposefully misled the Tribunal’.
59	When making the submission, the Secretary referred me to the paramount consideration under the WSA which is to:
assist in protecting children from sexual and physical harm by providing for screening of persons who work with, or care for, children;
60	Reference was also made to the well-understood principle that the protection of children is a more important consideration than any other consideration, such as the individual’s right to work.
61	The Secretary set out the usual considerations the Tribunal has regard to when considering whether to grant a stay and made submissions to the effect they no longer supported the Stay being in place. 
The law relating to stays under the VCAT Act
62	Section 50(3) of the VCAT Act grants the Tribunal discretion to stay the operation of the decision under review such as that in this proceeding. 
63	There are a number of factors that the Tribunal usually considers as relevant when determining whether or not to grant a stay. 
64	In Bell & Eager v Liquor Licensing Victoria and Swapnil Pty Ltd, (Bell & Eager) the Tribunal identified that the power granted by section 50(3) of the VCAT Act is a discretionary power that is to be exercised after a full consideration of the circumstances and the facts of each particular case.  The Tribunal there considered the following factors were relevant to the discretion at s 50(3):
(i) 	First, whether or not the failure to grant a stay would render the substantive application nugatory (ie, of no value);
(ii) 	Second, whether or not there is a serious question to be tried on review;
(iii)  	Third, whether or not it is in the public/community interest that a stay be granted; 
(iv)  	Fourth, whether there is a risk of prejudice to either party; and 
(u)	Fifth, the period of time that will elapse before the hearing of any application for review.
65	I agreed it was appropriate to consider those broad topics again in the context of the application for revocation of the Stay.
Submissions and findings  
Whether not granting a stay would render the review application nugatory
The Secretary’s submissions
66	The Secretary noted that, although not the sole consideration, whether or not refusing the stay will render the application nugatory was considered in Bell & Eager to be ‘the dominant principle’.  It went on to submit that the ‘most important consideration’ is a concern to grant stays where to fail to do so would render nugatory the right of review because irreparable damage has been done by the operation of the first instance decision before the review can be completed and that damage cannot be undone even if the relevant applicant succeeds. 
67	Having said that, the Secretary also submitted that the power to grant a stay was not intended to remove every inconvenience, every embarrassment or every annoyance that an applicant for review might possibly encounter.  Rather it was said to be a power which called for the Tribunal to balance all factors with an expectation that an applicant does have to endure some disadvantages even if that applicant is ultimately successful in the review application.
68	The Secretary noted that, at the 31 July 2024 Stay Hearing in this proceeding, Tran provided information about the Centre and the role that she plays in working as an Approved Provider, director and educator.
69	The Secretary accepted that, subject to the outcome of the DET Proceeding, the absence of stay orders in this proceeding under the WSA may render the application nugatory.
70	The Secretary submitted, however, in light of the evidence before the Tribunal, that should not be the defining factor.
Tran’s submissions 
71	Tran was very concerned about the possibility of the Stay being revoked as that would mean she could not be present at the Centre and would lead to parents leaving.  She explained that, as she is the face of the Centre and the parents trust her, if she was not present the Centre would close.  She expressed further concern that her staff would lose their jobs and suffer poor morale.  
72	Tran described her multiple roles at the Centre as including being the education leader and the nominated supervisor.  She also stated that she loved her job, tried to do her best, had done nothing wrong and was not a risk to children.  Tran’s evidence was that she was not at the Centre for the whole of each day but she was there nearly all the time, including being there to welcome families and visitors.
73	Tran stated that they (her and her husband) knew the DET decision had not followed applicable regulations and it had made a mistake.  She said ‘if we close we know for a fact we’ll close forever’.  
74	Tran explained that the land on which the Centre had been built belonged to her sister (who also worked in the business) and that, if the Centre closed her sister would ‘get the building for free’.  Tran also suggested that her sister was behind ‘it’, apparently referring to the involvement of DET and QARD.
75	Tran referred to the fact she had been in the education system for 20 years and had worked hard.  She described the Centre as unlike others in the area, offering music and art programs.  
76	Later in the hearing, Tran referred to the status of her husband’s WWC Clearance status in the context of his role as cook at the Centre.  It was Tran’s understanding that his WWC Clearance had been revoked after the July 2024 Stay order was made.  She was asked what work he had been doing since then.  Tran stated that he was working part-time as a cook at a restaurant.  
77	In light of that, Tran was asked about what she had told me at the Stay Hearing about the financial viability of them employing another person as a director.  At the earlier Hearing, Tran had said that if they were required to pay a salary to a director, that would absorb all of the funds which were otherwise used to pay her and her husband’s salaries.  Tran was asked whether the financial viability issue had changed given her husband was earning an income elsewhere.  The question was whether Tran could now afford to pay for someone to take over her role so the Centre could continue to operate without her.  
78	Tran stated that it would be impossible to find someone to take on all of her roles and hours.  She also stated that the Centre would close if she was not present because of her role in communicating with and being trusted by the parents.  She said the parents would know something was wrong if someone else was there as director.  She also said no one could do the job she does given her commitment to the Centre.
Findings
79	I accepted that, if the Stay was revoked (and so the WWC Exclusion was operative), Tran could not attend the Centre and that would raise concerns amongst parents.  I accepted that some, if not many, would look for childcare elsewhere.
80	As to the option of engaging another person as a director for a short period, I understood that the cost of doing so was less of a barrier given Tran’s husband was working elsewhere but that, even if such a person could be found, the parents would have the same concerns.  
81	While it seemed to me open for the Centre to engage a replacement for a director, I accepted that Tran’s absence would likely raise concerns on the part of parents.  While it would be a matter for Tran to attempt to allay those concerns, I accepted that there was a real risk that, without Tran, the Centre would close and further that it might not be practicable for it to re-open in future.  
82	I record that, I did not have particular regard to Tran’s concerns about her sister’s ownership of the land and the disputation between them.  As stated at the hearing, the value and ownership of the improvements on the land were a matter on which Tran and her husband could seek legal advice as to any available remedies.  
Serious question to be tried?
The Secretary’s Submissions 
83	I was referred to the Tribunal’s decision in Aavelaid v Dental Practice Board of Victoria.  In that case, the Tribunal held it was proper to consider the likely outcome of a review application in light of what are fundamentally uncontested matters. 
84	The Secretary submitted that there was a serious question to be tried, centering on the need to protect children from physical or sexual harm.  
85	The Secretary submitted that question weighed heavily against Tran given the Tribunal’s finding in the VCAT’S July 2023 Decision regarding was what described as Tran’s ‘incompetence and her aggression towards colleagues and students’.  I was invited to conclude that Tran’s case under the WSA has low prospects of success.  The following findings made in VCAT’s July 2023 Decision were relied on for that submission: 
231.	However, in our view there are alarming aspects to [Tran’s] character, such that it is not in the public interest to allow her to teach in early childhood service.
. . . 
235. 	Second, we are concerned as to the evidence of [Tran’s] volatile behaviour, at times yelling at students and staff, making unwarranted allegations toward them.
236. 	We are concerned that in the early childhood environment on an ongoing basis, she may under pressure repeat such volatile behaviour.
. . . 
239. 	We do not accept that the early childhood teaching environment is a low stress place to work.  Long-term, 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.
240. 	Third, we are concerned at [Tran’s] apparent complete lack of insight as to her failings and her apparent propensity to respond to justified questions from others with unwarranted accusations of bullying, harassment, racism and discrimination
. . . 
242. 	Fourth, [Tran’s] lack of credibility in giving evidence is in itself a concern
86	Further to paragraph [240] above, the Secretary submitted that Tran continued to demonstrate a lack of insight in her communications with the Secretary’s officers, referring to an email she sent on 21 March 2024 which referred again to the matter relating to her previous employment which had been considered in VCAT’s July 2023 Decision. 
87	The Secretary described the evidence Tran gave about the Centre being compliant and there being no complaints at the Stay Hearing on 31 July 2024 as ‘untrue’ given the documents it had obtained.  It noted that there had been four occasions on which the Service was deemed non-compliant in relation to multiple issues on each occasion.  The non-compliance raised issues of the treatment and care of children in the service, breaches in relation to proper records being maintained, as well as a failure to comply with requirements of both the WS Act and the Child Safe Standards.
88	The Secretary noted that as Tran is the director and Approved Provider of the Service, she is the individual responsible for ensuring that the service is compliant with all legislation and regulations.  As a result, it contended that the Services’ ‘failures’ were Tran’s. 
Tran’s submissions
89	At the hearing, Tran referred to the reasons for which the Prohibition Notice was issued.  Those referred to the Secretary’s decision to issue Tran with a WWC Exclusion and the fact she had been refused registration (as a teacher and early childhood educator) by the VIT.
90	In respect of the WWC Exclusion, Tran stated that, after the Stay was granted on 31 July 2024, the Secretary failed to update its records and they continued to show that she had a WWC Exclusion.  She stated that she wrote to the DET giving it a copy of the Stay and confirming she was entitled to work with children.  Tran stated that the DET officers said she had lied about the WWC Exclusion and the Stay.  Tran considered that, given the Stay I had granted, the DET’s reliance on the Decision about that when issuing the Prohibition Notice on 21 August 2024 was incorrect.  Tran contended that after her WWC status was updated, DET then changed its reasoning and said it was relying on the VIT decision when issuing the Prohibition Notice.  
91	In her submissions, Tran suggested that the failure to update the status of her WWC clearance had led to the problems with the Centre and had caused her and her husband to not trust the Secretary and DET.  
92	I record that, at the hearing, the Secretary confirmed that the relevant record had not been updated until after around 31 August 2024 and that, when updated, the record showed that Tran had a WWC Clearance.  The Secretary’s counsel submitted that it was strictly correct that Tran had a WWC Exclusion under the Decision and that remained the case as the Tribunal had not made a final decision to set it aside. 
93	As indicated above, Tran considered that the Immediate Suspension decision was faulty given she attended the Centre on the specified dates only because DET officers were present and so she could assist them in their enquiries.  
94	As to the Secretary’s submissions regarding her credit, Tran relied on a ‘Personality Report’ dated 9 March 2024.  That report was prepared by Dr Terence Bowles, clinical psychologist.  Bowles administered various tests and set out the results.  The report showed that Tran described her experiences at Mullauna College in some detail and that was regarded as the ‘incident’ which led to its preparation.  There was no specific reference to the Centre or to Tran’s WWC Exclusion.  The conclusion and summary said relevantly:
The validity tests indicate considerable distortion due to elevated Positive Impression Management scores and indicate that any interpretation should be made with great care.  Despite the potential for a positive response style individual scale scores indicate that [Tran] is free of psychological problems in the main.
The alternative model of personality show no known pathology is present.  Nor is there any patterns in [Tran’s] profile that associates her with groups with known psychological conditions.
In short, [Tran] has a very balanced and open profile free of psychological concerns, dysfunction and psychopathology.  The PsychProfiler shows there is no psychopathology reaching levels of concern sufficient to warrant further treatment in therapy.
The DASS test does not show any psychological distress.
The PCL-5 shows that there is no trauma present in [Tran’s] psychological profile.
While it is possible that there were psychological issues or imbalance during her time at Mullauna College, possibly brought about by the pressure of being so profoundly surveilled, they are not present now.
95	As is apparent from the above extract, the report was based on Tran’s reporting only and there was no sign Bowles was aware of VCAT’s July 2023 Decision or other matters referred to in these Reasons.  I gave the report little weight other than to note that Bowles found Tran had no discernable psychological condition and that there was ‘considerable distortion’ in the report due to Tran’s ‘elevated Positive Impression Management scores’.  I understood that latter statement meant she tended to give answers more likely to give a positive impression, even if not fully accurate.  
96	As to the QARD reports, as indicated above, Tran’s position was that all instances of non-compliance had been rectified and all issues were ‘minor’ in nature.  She drew my attention to the fact there had been no QARD visit to the Centre since January 2023 and queried how it could be said that the Centre was non-compliant or that she presented a risk in those circumstances.  Tran explained that it was ‘not true’ that she had misled me at the July 2024 Stay Hearing.  Tran said that, after each compliance visit, all issues were rectified or responded to and no further action was taken.  
97	When I said that it appeared Tran had not given me the whole picture on the topic, Tran said she did not mean there were ‘no issues’ and instead meant she had complied with the issues QARD raised.  She reiterated that there had been no compliance visit for more than a year.
98	As to the Complaint, she was aware of the fact a complaint was made in July 2023 in general terms but no correspondence had come to her from QARD or DET since then and so she thought it was ‘all in the past’. 
99	Later in her submissions, Tran said that, even if she accepted there had been some non-compliance, she always keeps children safe, no complaints were made by parents and the ‘main complaints’ came from outside, from ‘hidden people’ and from her sister.
100	As to the findings in VCAT’s July 2023 Decision, Tran disputed the findings made and maintained she was discriminated against by the principal at the specific college, including where she had passed all performance reviews and had high marks in her studies.
101	During the submissions, I asked about Tran’s attitude towards decisions of authorities.  Tran accepted that a regulator may have a power to make decisions, like the Immediate Suspension, but also that she and her husband ‘knew’ that DET had ‘made a mistake’ and overused its powers so she and her husband ‘didn’t listen to them’.  She referred to DET’s power to impose a civil penalty and she concluded DET did not do so because it knew the Immediate Suspension decision was wrong.
102	I asked Tran if she understood that, when a regulator makes a decision and the Tribunal has not put it on hold via a stay order, she is not to continue and must stop.  Tran said she did know that but they decided to take the risk because, if they closed, the DET and her sister would cause the Centre to close forever.  I asked if she understood that she might raise a concern in the Tribunal’s mind about whether she can be relied on to comply with the law.  Tran referred to the fact the Immediate Suspension said the Centre had to remain closed for three months and that she did not understand that period.  She said there was no response to a query she made about that part of the Immediate Suspension letter.
103	I asked if that meant she knew DET was telling her to stop but she decided to take the risk and continue to operate because she was most concerned about losing the Centre she had built.  Tran indicated that was correct but also she was concerned about losing all of her ‘heart and soul’ associated with her work, her enjoyment of that work and her good relationships with the families.  She referred to not trusting DET a number of times as part of the reasoning. 
Findings
104	I was not satisfied that Tran had ‘purposefully’, as in deliberately and knowingly, misled me at the Stay Hearing when she failed to disclose the fact the Centre had not been compliant at all times since 2019 and that there had been at least one complaint about its operations.  
105	However, I did find that Tran’s answers were misleading and were important factors in my decision to grant the Stay to allow Tran to work with children at the Centre.  I concluded that Tran’s answers were incomplete and given in a way that accorded with her view of that the facts; that is, because all issues had been rectified or explained they no longer existed or, in any event, were all ‘minor’.  
106	As stated at the hearing, Tran displayed so casual an approach to the accuracy of the information she gave that it appeared reckless.  Taken with the findings as to Tran’s credit in VCAT’s July 2023 Decision, there may be a question about her reliability at the final hearing of the WWC Exclusion review application (in addition to the usual factors in a review application under the WSA).
107	As to the other matters the parties raised:
•	While I understood why Tran focused on whether the Prohibition Notice and Immediate Suspension were properly made, as they were not directly in issue before me, those concerns do not form a serious question to be tried in this proceeding;
•	The issues in this proceeding may include the relevance of the nature of non-compliances identified by QARD and whether in fact they were all remedied to QARD’s satisfaction.  I anticipate those matters will be disputed in the context of the WSA; and 
•	I expect that the findings made by the CCYP which arise from VCAT’s July 2023 Decision may also be the subject of some dispute, including the degree to which the member who hears this proceeding may be bound by the earlier Tribunal findings.  
108	It is not appropriate for me to comment on any of the above matters at this stage of the proceeding given the likely disputes. 
Is there a public interest in maintaining the Stay and is there a risk of prejudice?
The Secretary’s submissions 
109	I was referred to the paramount consideration as a very significant factor when determining whether to maintain the Stay.  The Secretary submitted that, on the material before me, the Tribunal should find that the paramount consideration outweighed Tran’s private interests in maintaining the Stay.
110	The Secretary submitted that, given the findings by the CCYP, the material from VIT and VCAT’s July 2023 Decision, together with the QARD documents concerning non-compliance and the Complaint, there was not a sufficient public interest in Tran continuing her work in the Centre which outweighed the need to properly assess the risk of harm that giving Tran a WWC clearance might pose before she may continue to engage in child-related work.  The Secretary asserted that, given the issues raised by QARD, there was a public interest in Tran ceasing her work as an educator, director and Approved Provider.
111	The Secretary also made submissions regarding the risk of prejudice which were relevant to the public interest.  
112	The Secretary noted that the Tribunal has often considered that ‘generally there should be a predilection in favour of not putting people out of business until they have had the opportunity to prosecute their review applications’. 
113	The Secretary referred to Tran’s concerns about the impact on the Centre if she did not have a WWC Clearance and then submitted that it was:
in the interests of justice that in circumstances where a risk assessment has been undertaken and [Tran was] found to be an unjustifiable risk to the safety of children, that she not be allowed to engage in child-related work until a further risk assessment has been properly undertaken by the Tribunal.  This is especially the case where [Tran] has already misled the Tribunal in a material way in these proceedings in order to increase her prospects of success.
Tran’s submissions 
114	As I understood it, Tran’s concerns were about the risks to her and her husband’s business if she did not have the benefit of a Stay, and about the impacts on the families who might be unable to find alternative childcare and her staff.
115	As discussed above, she disagreed with any suggestion that she presented a risk to children or that there was any risk associated with her operation of the Centre. 
Findings
116	Given my conclusion about the likely impact on the Centre if Tran is unable to be present because the WWC Exclusion is operative, I found there was a risk of prejudice to her.  As was the case at the Stay Hearing in July 2024, I had concerns about the impacts on the families who relied on the Centre if it closed.  Of course Tran’s staff will also be significantly affected if the Centre closes.
117	Having said that, it seemed to me that the Centre may be able to continue to operate if it employed a director (and perhaps other staff) to fill the roles Tran had occupied.  While accepting that Tran’s view was that the families would not be willing to continue if she were not at the Centre, that is not necessarily beyond doubt, particularly in the short term.  I say that noting, as far as I could tell, the families were unaware of the Decision regarding the WWC Exclusion, the Stay, the Prohibition Notice and the Immediate Suspension.  If they had knowledge of those and confidence in replacement staff for Tran, they may be satisfied that the way in which the Centre was otherwise run would be sufficient to keep their children well cared for and safe.   
118	As is apparent from these Reasons, I had serious concerns about the reliability of information provided by Tran, but my greatest concern was that she appeared unwilling to comply with the law and directions of regulators when they did not accord with her view of what was right.
119	As I understood it, Tran believed that she was entitled to continue to attend and work with children at the Centre after the WWC Exclusion had been issued and before the Stay Hearing on 31 July 2024.  That was despite the fact that the 8 July 2024 letter which enclosed the WWC Exclusion included the following on page 1 (bold in the original): 
There are a number of things you need to know about the consequences of being given a WWC Exclusion.  Most importantly, you must not apply for or engage in child-related work including volunteer work.  If you do so, you will be committing a serious offence.  It is important to note that any exemptions in the Act do not apply while you are the holder of a WWC Exclusion.
120	At best, Tran failed to grasp the significance of the above paragraph and at worst, she decided it did not apply to her immediately.
121	While mindful that operating the Centre while the Immediate Suspension was in force will be a matter for consideration in the DET Proceeding, it was of great concern to me that Tran and her husband decided that they would not comply with the directive of the DET because they did not agree with it.  
122	As summarised earlier, while Tran accepted that a regulator may have a power to make decisions like the Immediate Suspension, they also ‘knew’ that DET had ‘made a mistake’ and overused its powers so she and her husband decided not to comply.  The submissions Tran made about how she and her husband weighed up whether to comply with the Immediate Suspension indicated that, rather than seeking legal advice or engaging in discussions with the regulator, they decided to disregard the DET’s directive.  In effect, they were picking and choosing which laws and regulatory directions to comply with depending on their personal assessment.  It seemed that, unless the most harsh penalty is put in place, a directive from the regulator is not treated seriously by Tran and rather she appears to consider it is open for her to choose whether to comply. 
123	In my view, a person who holds those views in relation to a regulator who is responsible for the safe and compliant provision of care to children under the WSA or in respect of childcare services, is not entitled to the benefit of a stay in the WSA context and in light of the paramount consideration in the WSA.   
124	I made that decision well aware that it may lead to great inconvenience to the families who depend on the Centre, as well as inconvenience and stress for Tran’s employees.  While that is most regrettable, the greater public interest lies in people who hold WWC Clearances being able to be relied on to act consistently with and abide by the law and decisions of relevant regulators. 
125	For completeness I record that, while the non-compliance issues raised by QARD were troubling, as best I could understand it, they had been resolved and so they did not form the basis for my decision to revoke the Stay.  The terms of the Complaint are also troubling but the detail of that will likely be in dispute in the DET Proceeding or later in this proceeding.  It was not appropriate to rely on it for a decision on the public interest.
The time until the final hearing 
126	Given the current delays in the Administrative Division, it is likely that, at best, the final hearing of Tran’s review application will not be heard before the second quarter of next year.
127	While that is a factor which may weigh in favour of an applicant, I was not satisfied it (nor the potentially nugatory effect of a revocation of the Stay) were sufficient to overcome my findings that Tran could not be relied on to comply with laws or decisions that did not suit her. 
Conclusion
128	While some of the usual considerations favoured maintaining the Stay, I concluded that it was more appropriate to exercise my discretion to revoke the Stay.

A. Dea
Senior Member