In Tran v Secretary to the Department of Education (Review and Regulation), the Victorian Civil and Administrative Tribunal heard an application to stay a number of decisions made by the Department of Education (Regulatory Authority) pending a full hearing. Namely:
the decision to issue a prohibition notice on 21 August 2024 to Vi Thi Tran (‘first applicant’) under section 182(1), National Law.
the decision to refuse to cancel the prohibition notice on 25 September 2024 made under sections 186(1) and (2).
the decision to issue a notice of immediate suspension of service approval on 18 September 2024 to Vi and Nhat Pty Ltd (‘second applicant’), operators of Smart Children Early Learning Centre, under section 73, National Law.
In relation to the suspension decision, the Tribunal stated (paras. 50-1):
Having regard to the statutory scheme set out above, I agree with the regulatory authority that the Tribunal does not have the power to review the Suspension Decision because the applicant did not follow the process under the ECS National Law to seek an internal review of the Suspension Decision. This is because the only decision capable of external review to the Tribunal with respect to the Suspension Decision is one made by the regulatory authority following an application for internal review. The second applicant did not follow the process under the ECS National Law for seeking internal review of the Suspension decision and consequently, there is no reviewable decision capable of review to the Tribunal.
On that basis, that part of the application seeking review of the Suspension Decision is summarily dismissed under s 75 of the VCAT Act because it is misconceived.
In relation to the remaining matters, the Tribunal refused to grant a stay for the following reasons (paras. 55-62):
...I accept general submissions from the applicants that there will be an impact to Smart Children ELC if a stay is not granted. However, I have not been provided with any material to substantiate claims of the financial impact to the operation of the childcare centre. Without such information I cannot conclude that the application for review will be rendered nugatory or that the private interests of the applicants will be impacted, in the absence of a stay.
The witness statements from the parents of children attending Smart Children ELC relied upon by the applicants are remarkably similar in their language. Moreover, the parents were not called to give evidence at the hearing before me. The submission made by the applicants that parents may lose their jobs if they cannot find alternate childcare lacks particularity and is not supported by any material before the Tribunal. Again, without such information I cannot conclude that the application for review will be rendered nugatory in the absence of a stay.
I also accept the position of the regulatory authority that in this proceeding consideration of whether an application will be rendered nugatory absent a stay of a decision must be balanced against the public interest. For reasons set out below, the public interest in this case weighs against the grant of a stay of the Decisions.
I make no comment about the number of compliance checks undertaken by the regulatory authority. In setting out the general nature of the non-compliances identified by the regulatory authority in some detail above, I am concerned by the repetition of non-compliances. I accept that the regulatory authority did not take any further action into the non-compliances. However, the repetition of the non-compliances coupled with statements from the applicants that are not lawyers and try to follow the law as best they can does not weigh in favour of granting a stay. These factors lead to a conclusion that the public interest outweighs any private interests because the pattern of non-compliance and the cumulative impacts of such non-compliances are serious considering the overarching purpose of the ECS National Law. These matters do not weigh in favour of granting a stay.
I also highlight the allegation that the first applicant was at the childcare centre on 3 September 2024. Such allegation is denied by the first applicant as she says that she was coming from her home and did not work that day, which is said to be confirmed by the staff record of that day. Unfortunately, on the information before me, it is difficult to reconcile why the first applicant was at the childcare centre, particularly considering the Prohibition Decision. This leads to a conclusion that the public interest is not served by granting a stay.
I understand it may be some time before the final hearing of this proceeding, but the private interests of the applicants do not outweigh the importance of the purpose of the ECS National Law which includes to ‘ensure the safety, health and wellbeing of children attending education and care services’.
I accept there is prejudice to the applicants if a stay of the Decisions is not granted, however, that alone cannot dictate the exercise of my discretion. Obviously, that weighs in favour of the grant of a stay of the Decisions. However, I note the applicants could have taken steps to transfer various approvals to ensure the childcare centre could operate if the Tribunal did not grant an ongoing stay of the Decisions thereby mitigating some of the prejudice to them. The fact they have chosen not to do so weighs against the grant of a stay.
I have had little regard to previous findings of the Tribunal in other proceedings because having considered the matters above, I have concluded that I should not exercise discretion to grant the stay of the Prohibition and Refusal Decisions.
In another, related, hearing before VCAT in Tran v Secretary to the Department of Government Services (Review and Regulation), one of the same applicants in the above case (Vi Tran) was the subject of a hearing in relation to revocation of a Stay granted against a Working With Children exclusion. To give some background, the proceeding before the Tribunal concerned a decision made by the Secretary, Department of Government Services on 8 July 2024 under the Worker Screening Act 2020. The Decision was to revoke Vi Tran’s WWC Clearance and give a WWC Exclusion. Tran applied for a stay of the decision because without a WWC Clearance she would not be able to continue to operate the service owned by her and her husband. Subsequently, the Tribunal heard this application and decided to grant the stay. The Tribunal at that time, gave the Secretary the liberty to apply for a revocation of the Stay if material came to its attention which raised concerns about the operation of the service or in respect of Tran. The Secretary applied for revocation of the Stay on 11 October 2024. A hearing was listed and, after considering the materials each party relied on, together with their written submissions and evidence given by Tran, the Tribunal revoked the Stay with effect from the date a week later. The reason the Tribunal revoked the Stay were outlined in detail (paras. 116-24):
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.
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.
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.
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....
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.
At best, Tran failed to grasp the significance of the above paragraph and at worst, she decided it did not apply to her immediately.
While mindful that operating the Centre while the Immediate Suspension was in force will be a matter for consideration in the DET [Department of Education and Training] 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.
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.
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.
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.
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