Working with Children Act 2005 (review and original jurisdiction orders)
VCAT can review certain decisions made by the Secretary to the Department of Justice and Community Safety to give a person a Negative Notice under the Working with Children Act 2005.
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.
On 26 October 2014, a new 3-category classification system came into effect: Categories A, B and C replace the previous Categories 1, 2 and 3.
Where the application is a Category A application, VCAT can only hear and determine an application that an Assessment Notice be given to a person if the person was a child at the time of the commission or alleged commission of the offence (see below).
Cases we can hear
The letter you received from the Secretary will tell you whether:
- you are a Category A, B or C applicant, or
- you are an “exceptional circumstances” applicant, or
- you have had your Assessment Notice revoked.
Sections 12, 13 and 14, and Schedules 1, 2 and 3 of the Act provide more details about the Categories
Category A applicants
From 10 December 2019, if the refusal or revocation concerns a category A offence that you were charged with or convicted or found guilty of and you were an adult at the time of the commission or alleged commission of the offence, you no longer have a right to apply to VCAT for an Assessment Notice.
You cannot apply to VCAT if you were given a negative notice or the Secretary revoked your Assessment Notice for any of the following reasons, unless you fall within one of the ‘Category A exceptions’:
- 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 a person subject to, or have become a person subject to, an extended or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005
- you are a person subject to, or have become a person subject to, a supervision or detention order, or interim supervision or detention order, under the Serious Sex Offenders (Detention and Supervision) Act 2009
- you are a person subject to, or have become a person subject to, an emergency detention order under the Serious Offenders Act 2018.
Category A exceptions
- You were a child at the time of the commission or alleged commission of the category A offence
- Mistaken identity, but only if you are recognised as:
- a registered sex offender under the Sex Offenders Registration Act 2004
- a person subject to an extended or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005
- a person subject to a supervision or detention order, or interim supervision or detention order, under the Serious Sex Offenders (Detention and Supervision) Act 2009.
- a person subject to an emergency detention order under the Serious Offenders Act 2018.
All other categories
VCAT can review the decision of the Secretary to give you a Negative Notice under section 26(1) of the Act.
Legislation that gives VCAT the power to hear these applications
- Sections 26, 26A, 26B and 26B of the Working with Children Act 2005
If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.
You must make your application within 28 days after the later of the day on which
- the 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.
You may be able to apply for an extension to this time limit
What VCAT must take into account
In deciding whether to give you an Assessment Notice, VCAT must take into account a number of considerations including:
- 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 issue the applicant with an Assessment Notice
- any other matter we consider relevant to the application.
What can VCAT order?
If your application is for VCAT to review the Secretary’s decision to give you a Negative Notice, we can:
- affirm the decision, in which case it will stand
- set aside the decision and direct the Secretary to give you an Assessment Notice
- send the matter back to the Secretary for reconsideration.
If your application is for VCAT to give you an Assessment Notice, we can:
- dismiss your application, or
- direct the Secretary to give you an Assessment Notice.
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.