Worker Screening Act 2020 (review and original jurisdiction orders)
VCAT can review some decisions made by the Secretary to the Department of Justice and Community Safety about National Disability Insurance Scheme (NDIS) or Working with Children (WWC) clearances and exclusions.
This page provides general information and should not be considered as legal advice. Seek legal advice if you are unsure about your legal rights. Be aware that the law can change.
From 1 February 2021, the Working with Children Act 2005 was repealed and replaced by the Worker Screening Act 2020. Generally, this new Act applies to WWC applications that were not finalised by the Secretary, and applications for review by VCAT which were not finally determined, before 1 February 2021.
You can apply for a review of certain decisions made by the Secretary to:
- give you an NDIS or WWC exclusion
- revoke your NDIS clearance or WWC clearance.
You can also apply to VCAT for a WWC clearance in some situations.
Any application to VCAT under this Act will be heard by a presidential member or a senior member.
Cases we can hear
Whether VCAT can hear your case will depend on the nature of the crime or other conduct that led to the exclusion or revocation of your NDIS or WWC clearance.
Criminal offences and conduct are classified into three categories: Categories A, B and C. Category A is the most serious category of offending. You can only apply for review of Category A decisions or the grant of a WWC clearance relating to a Category A offence in limited circumstances.
Sections 23, 25 and 27, and Schedules 1 and 3 of the Worker Screening Act 2020 provide more details about the categories for NDIS purposes. Sections 60, 62 and 64, and Schedules 2 and 4 of the Act provide more details about the categories for WWC purposes.
The letter you receive from the Secretary will tell you which category applies in your case.
In the case of an NDIS exclusion or the revocation of a NDIS clearance, you can only apply to VCAT after you have applied for an internal review and received an outcome.
Category A decisions
Unless you fall within one of the Category A exceptions, you cannot apply to VCAT if you were given a NDIS or WWC exclusion or the Secretary revoked your NDIS or WWC clearance for any of the following reasons:
- You were an adult at the time of the commission or alleged commission of the Category A offence.
- You are, or have become, a registered sex offender under the Sex Offenders Registration Act 2004.
- You are subject to – or have become subject to – a supervision, detention or emergency detention order under the Serious Offenders Act 2018.
- You have been excluded from child-related work under equivalent interstate legislation (if your case is about a WWC exclusion or revocation).
The Category A exceptions are:
- You were a child at the time of the commission or alleged commission of the Category A offence
- A case of mistaken identity, where the Category A decision was made based on you being:
- a registered sex offender under the Sex Offenders Registration Act 2004
- a person subject to a supervision, detention or emergency detention order under the Serious Offenders Act 2018.
Category B and C decisions
If your offence or conduct is within Category B or C, VCAT can review the decision of the Secretary to give you a NDIS or WWC exclusion or to revoke your NDIS or WWC clearance.
Legislation that gives VCAT the power to hear these applications
You must identify the section of the Act you are applying under in your application to VCAT. If you have a decision document, use it to help you complete the application. Attach a copy of the decision document and any accompanying letter to your application.
|Type of application||Category||Relevant section of the Act|
|Review of NDIS exclusion decision or decision to revoke NDIS clearance||A||101(1)(a)|
|B||101(1)(b) (see also 102)|
|C||101(1)(c) (see also s 103)|
|Review of WWC exclusion decision||A||105(1)(a)|
|B||105(1)(b) (see also s 107)|
|C||105(1)(b) (see also 108)|
|Review of decision to revoke WWC clearance||A||105(1)(c)|
|B or C||105(1)(d)|
|Original application for WWC clearance||A||106(1)(a) or 106(1)(b)|
You must make your application within 28 days after the later of the day on which:
- the Secretary’s decision, or (in the case of an NDIS decision) the internal review decision, was made, or
- if you have requested a statement of reasons under the Victorian Civil and Administrative Tribunal Act, the statement of reasons is given to you or you are informed that a statement of reasons will not be given.
If you apply outside of the time limit, VCAT may be able to extend the time for making an application. You must ask for an extension of time on the application form and explaining why your application was late.
VCAT will ask the decision-maker if they agree to any extension. If the decision-maker does not agree, we will hold a preliminary hearing before deciding whether to grant an extension.
VCAT cannot extend the time for seeking an internal review of an NDIS decision.
Putting the original decision on hold ('stay')
Applying for a review does not put the original decision on hold and that decision stands until VCAT makes its decision.
If you held a WWC or NDIS clearance prior to a revocation or exclusion decision, and you want that decision put on hold, you must ask for a stay on the application form and briefly explaining why you are seeking a stay. An example explanation could be that the decision will cause you to lose employment, or prevent you from engaging in a voluntary community activity.
VCAT will ask the decision-maker if they agree to any stay. If the decision-maker does not agree, VCAT will hold a preliminary hearing before deciding whether to grant a stay.
If you did not hold a WWC or NDIS clearance before the decision, staying it does not mean you will be permitted to work with children or in NDIS related activities.
What VCAT must take into account at a final hearing
- the nature and gravity of the offence and its relevance to child-related work
- the period of time since the offence was committed
- whether a finding of guilt or conviction was recorded for the offence or a charge for the offence is still pending
- the sentence imposed for the offence
- the ages of the applicant and victim at the time the offence was committed
- whether the conduct has been decriminalised since the applicant committed the offence
- the applicant's behaviour since committing the offence
- the likelihood of the applicant posing a future threat to a child
- any information the applicant provides in or about the application
- whether a reasonable person would allow their child to have direct and unsupervised contact with the applicant
- whether the applicant is suitable to engage in any type of child-related work without posing an unjustifiable risk to the safety of children
- whether in all of the circumstances it is in the public interest to give the applicant a WWC clearance
- any other matter VCAT considers relevant to the application.
When deciding an NDIS case, VCAT has to consider:
- if there are exceptional circumstances (for a Category B matter)
- if there is an unacceptable risk of harm to a person with disability (for a Category C matter)
- the nature, gravity and circumstances of the offence or conduct
- the period of time since the offence was committed or the conduct occurred
- the vulnerability of the victim at the time the offence was committed or the conduct occurred (relevant time)
- the applicant's relationship to the victim at the relevant time
- whether the applicant had a position of authority in relation to the victim at the relevant time
- the applicant's criminal, misconduct and disciplinary history, including whether there is a pattern of concerning behaviour
- the applicant’s behaviour since the relevant time
- all other relevant circumstances in respect of the applicant's offending, misconduct or other relevant history
- whether in all of the circumstances it is in the public interest to give the applicant a NDIS clearance
- any other matter VCAT considers relevant to the application.
What can VCAT order?
If you are applying to have VCAT review the Secretary's decision to give you a NDIS or WWC exclusion or revoke your NDIS or WWC clearance, we can:
- affirm the decision, in which case it will stand
- set aside the decision and direct the Secretary to give you a NDIS or WWC clearance
- send the matter back to the Secretary for reconsideration.
If you are applying so VCAT can give you a NDIS or WWC clearance, we can:
- dismiss your application
- direct the Secretary to give you a NDIS or WWC clearance.
Do I need a lawyer or professional representative?
You do not need to have legal or other professional representation to appear at VCAT. If you wish to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission. Be aware that the regulatory body in most cases uses legal representation.
Find legal services that may be able to assist you.
Need help with your application?
We can explain the application process and what the form is asking you for. Contact us to get support.
We cannot give you legal advice. This means we cannot tell you what to write in your application or recommend how to get the outcome you want.
Seek legal help if you are unsure about your options or need advice about your claim.