Working with children exclusion affirmed despite counselling and study progress (VCAT, 2026)

What happened

The applicant lodged an application for a working with children (WWC) check on 23 July 2024. At that time a charge was pending against him for making a threat to kill. On 20 September 2024 he pleaded guilty to that charge, was convicted and was fined $300. The offence had been committed on 24 October 2023. According to the charge sheet and the victim impact statement, the threat was made to a former partner in the presence of their eight-month-old baby. He was 30 at the time and his former partner was 35.

Making a threat to kill is a "category B" offence under the Worker Screening Act 2020 (Vic). On 22 August 2025 a delegate of the Secretary decided he was not satisfied that giving a clearance would not pose an unjustifiable risk to the safety of children. He refused the application and issued a WWC exclusion. The applicant applied to VCAT for review of that decision. The hearing was held by video conference on 20 October 2026, with the applicant appearing in person and the regulator represented by counsel.

The tribunal recorded a number of positive developments since the offence. The applicant had completed drug and alcohol counselling at Odyssey House, attending all required sessions, and had completed a family violence education program as part of a Community Corrections Order. He said he had been clean of drugs for about two years. He had been accepted into a Certificate IV in Community Services starting in January 2025, and relied on a letter showing he had worked for the Salvation Army between 5 August 2024 and 17 January 2025.

The tribunal also recorded matters pointing the other way. A case note described an incident on 23 February 2024 in which he yelled at his former partner in a car, and he was made subject to an interim intervention order on 3 June 2025 after what he described as a verbal dispute with her. His history included an incident on 19 April 2019 for which he was charged and convicted of several serious family violence related offences and sentenced to a Community Corrections Order, and he was still subject to that order when the threat to kill was made. The documents before the tribunal repeatedly described him as externalising blame or seeing himself as the victim.

What each side wanted

The applicant asked VCAT to set aside the exclusion and grant him a clearance. He said he had pleaded guilty to the threat to kill charge only because he lacked funds to oppose it, pointed to irregularities in the way he had been charged, and relied on his counselling, the family violence program, his period off drugs, his Salvation Army employment and his acceptance into a community services course. He emphasised his love for his daughter and his wish to use his life experience to help others. The regulator supported its decision to issue the exclusion, on the basis that it could not be satisfied a clearance would pose no unjustifiable risk to the safety of children.

What the tribunal decided

VCAT made two orders. First, the Social Services Regulator was substituted as the respondent to the proceeding. Second, "the decision of the respondent to issue a Working with Children exclusion on 22 August 2025 is affirmed".

No money was ordered to be paid by either side. The tribunal noted that the applicant will be entitled to re-apply for a WWC check five years from the date of the decision, and said that if he maintains abstinence from illicit drug use and avoids family violence or other offending in that period, he will be in a good position to demonstrate that a clearance is not an unjustifiable risk to the safety of children.

Why the tribunal decided it that way

Under the Worker Screening Act 2020 (Vic), a conviction for a category B offence means a clearance must be refused unless the decision maker is satisfied that giving it would not pose an unjustifiable risk to the safety of children (s 63). On review, VCAT cannot set the refusal aside unless it is satisfied of two things under s 107: that giving the clearance would not pose an unjustifiable risk to the safety of children, and that giving it is in the public interest. Section 11 makes the protection of children from sexual or physical harm the paramount consideration. The tribunal said this will usually require the applicant to produce evidence of both matters, and that the more direct, objective and unequivocal that evidence is, the better the prospects of the tribunal being satisfied.

The tribunal worked through the statutory factors in s 63(1) one by one: the nature and gravity of the offence and its relevance to child-related work, the time since it was committed, whether there was a conviction, the sentence, the ages involved, whether the conduct has been decriminalised, the applicant's behaviour since, the likelihood of future threat to a child, and the information he gave. It found the threat to kill was a serious, violent offence that suggested a lack of self-control and emotional self-regulation, and that the fact it was made in front of his own baby increased its relevance to child-related work. The $300 fine suggested the offending was at the lower end of the spectrum but was not trivial. The guilty plea and conviction were treated as compelling evidence that he committed the offence, and his denials at the hearing were not enough to overcome the risk apparent from the conviction.

The tribunal was careful about the level of risk. It said there was no evidence he had ever been physically violent towards a child, and that the risk he would physically harm a child must be assessed as low. But the earlier family violence convictions, the fact he offended while still on a Community Corrections Order, the two later incidents, and his continuing lack of insight meant the risk was "not insignificant". The test is not whether he will harm a child, or even whether that is likely, but whether a clearance would pose an unjustifiable risk given the paramount consideration. The tribunal quoted the Supreme Court in McIntyre on that point, while noting that case involved sexual offending against a child and that the words used there should not be read as replacing the statutory test with a requirement of nil or negligible risk in every case.

Because the statutory test looks at any type of child-related work, including unsupervised work and stressful situations, the tribunal was not satisfied a reasonable person would allow their child to have direct contact with him in that work, and so could not set the decision aside. On the public interest question it accepted there is a public interest in him working in community services, but held the protection of children sits at the core of the public interest test and it was not satisfied the clearance should be given today. The tribunal also noted that Part 4.3 of the Act, which gave it this review power, has since been repealed, but continues to apply to applications made before the repeal.

What this means if you are in a similar position

If you are in a similar position, this decision shows how the worker screening rules are applied when a category B offence is involved. The question is not whether you intend to harm a child, or even whether harm is likely. It is whether the decision maker can be positively satisfied that a clearance would pose no unjustifiable risk, with the protection of children from sexual or physical harm as the paramount consideration. Where the tribunal cannot reach that state of satisfaction, the refusal stands.

The decision also shows what kind of material the tribunal weighs. Courses, counselling, employment letters and study acceptances were all taken into account, and the tribunal accepted the risk of physical harm to a child was low. What it said was missing was evidence of insight: it specifically invited submissions on what had been learned, and the response focused on how the charge had been handled rather than on what might have been done differently. The tribunal drew a distinction between saying you want to change and showing sustained changed behaviour over time. Where the record also contains later incidents, those count against the picture of change.

In disputes with a regulator or a decision-making body of this kind, the step most people take first is a written response to the notice they have received, setting out their position and the documents they rely on, before any application for review is lodged with a tribunal. Review rights, time limits and eligibility to re-apply differ between schemes and between states, and they change over time, as the repeal noted in this decision shows.

How to apply: our step-by-step guide to a VCAT application. More decisions: VCAT cases and other civil disputes.

Source: Stewart v Social Services Regulator [2026] VCAT 882 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.