(1) A person who has been given a negative notice—
(a) on a category A application (other than a person referred to in paragraph (a), (b) or (c) of section 12(1)); or
(b) because of a decision of the Secretary under section 21C(1) to revoke an assessment notice following a category A re‑assessment (other than on the ground that the circumstances that required the re‑assessment are those referred to in paragraph (a), (b) or (c) of section 21AB(1))—
may apply to VCAT for an assessment notice to be given to him or her.
(2) Pending the final determination of an application under subsection (1), VCAT may—
(a) make an order staying the operation of the Secretary's decision; and
(b) make any other order it considers appropriate having regard to the matters set out in subsection (3).
(3) VCAT must not make an order for the giving of an assessment notice on an application under subsection (1) unless it is satisfied that giving the notice would not pose an unjustifiable risk to the safety of children, having regard to—
(a) the nature and gravity of the offence and its relevance to child-related work; and
(b) the period of time since the applicant committed the offence; and
(c) whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d) the sentence imposed for the offence; and
(e) the ages of the applicant and of any victim at the time the applicant committed the offence; and
(f) whether or not the conduct that constituted the offence has been decriminalised since the applicant engaged in it; and
(g) the applicant's behaviour since he or she committed the offence; and
(h) the likelihood of future threat to a child caused by the applicant; and
(i) any information given by the applicant in, or in relation to, the application; and
(j) any other matter that VCAT considers relevant to the application.
(4) For the purposes of subsection (3), in satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT must be satisfied that—
S. 26A(4)(a) amended by No. 72/2016 s. 14.
(a) a reasonable person would allow his or her child to have direct contact with the applicant while the applicant was engaged in any type of child-related work; and
(b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.
(5) If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so.
(6) The Secretary must comply with an order made by VCAT under subsection (5).
(7) An application under subsection (1) must be made within 28 days after the later of—
(a) the day on which the decision of the Secretary to give the negative notice is made; and
(b) if, under the Victorian Civil and Administrative Tribunal Act 1998 , the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.
S. 26B inserted by No. 66/2014 s. 29.