1. When conducting a review of a decision by the Central Assessment Unit prohibiting an applicant from working with children, following a working with children check undertaken pursuant to s 3 of the CSPP Act, does the Tribunal have a discretion at a hearing to refuse to admit material that qualifies as "assessable information" under s 8 of the CSPP Act_,_ on the basis of unfairness to the applicant?
2. If the answer to question one is in the affirmative, in what circumstances is that discretion enlivened?

• It is not within the Tribunal's discretion to exclude, or not rely upon, assessable information on the basis that it would be unfair to the applicant.
• The Tribunal must afford sufficient opportunity to the applicant to respond to assessable information. That opportunity does not necessarily under this scheme, require an opportunity to cross-examine witnesses on whose statements the decision was made or is sought to be made.
• The weight to be attributed to untested, disputed evidence will depend on its reliability.
• The circumstances in which evidence can be excluded is wholly dictated by the obligation to afford procedural fairness to the parties.

Administrative tribunals - evidence - scope of admissible evidence - discretion

Child Safety (Prohibited Persons) Act 2013 ss 3, 5, 8, 10, 11, 16, 26, 28, 32, 43

Evidence Act 1929 ss 5, 34L, 34N, 52, 68

South Australian Civil and Administrative Tribunal Act 2013 ss 26, 34, 39, 40, 43

Administrative Appeals Tribunal Act 1975 s 33

Civil and Administrative Tribunal Act 2013 (NSW) s 35

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

Frugtniet v Australian Securities and Investments Commission (ASIC) [2019] HCA 16; (2019) 266 CLR 250

GJC v Department of Human Services [2020] SACAT 38

Attorney-General for the State of South Australia v Raschke & Anor [2019] SASCFC 83

Penn v Department of Human Services Central Assessment Unit [2024] SACAT 11

Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191; (2023) 379 FLR 256

Sullivan v Civil Aviation Authority (2014) 22FCR 555

Medical Board of Australia v Singh [2019] SACAT 66

O'Rourke v Miller (1985) 156 CLR 342

Children's Guardian v BRL [2016] NSWSC 1206

Children's Guardian v CF1 [2020] NSWSC 1673

Mr M Saies and Mr R Chrzaszcz appeared in person for the applicant

Mr P Leeson and Ms B Geppa appeared in person for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 26

1. This decision concerns the determination of a preliminary question of law in proceedings under the Child Safety (Prohibited Persons) Act 2016 (CSPP Act). The applicant, Mr Badea, initiated a review in respect of a prohibition notice issued to him by the respondent. The effect of the notice is that the applicant is prohibited from working with children.
2. The notice was issued by the Central Assessment Unit of the Department of Human Services (respondent, or CAU) under the CSPP Act.
3. Under s 16 of the CSPP Act, it is an offence for a person, who is not an excluded person, to work with children unless a "working with children check" (WWCC) has been conducted in relation to the person within the preceding five years. The effect of this is that a person who is "not prohibited" must refresh that status every five years if they wish it to remain current.
4. The CSPP Act confers on the CAU the task of undertaking working with children checks under s 26(1). The purpose of the working with children check is to determine whether the person being assessed "poses an unacceptable risk to children".
5. If a person is not found to pose an unacceptable risk to children, they are notified that they are "not prohibited" from working with children. If a person is determined to pose an unacceptable risk to children, a prohibition notice is issued to that person. This is what happened to the applicant.
6. Certain events in a person's history are, under the CSPP Act, presumptively disqualifying. The applicant was not presumptively disqualified. Rather, in the applicant's case, the CAU was required to make an assessment of whether the applicant poses an unacceptable risk to children based on various events in the applicant's history, and his explanation of those events.
7. The CSPP Act sets out the information upon which the CAU may rely to make a determination as to whether an applicant poses an unacceptable risk to children ("assessable information"). The categories of assessable information are set out in the CSPP Act. The CAU is not required to gather all assessable information about a person before reaching a decision.[1] The CSPP Act authorises the Minister to make guidelines as to how the CAU uses the assessable information to determine whether a risk arises, and whether it is unacceptable. The Minister issued guidelines in July 2019.
8. The question of law to be determined as a preliminary issue in these proceedings concerns a foreshadowed application by the applicant that the Tribunal exclude, or have no regard to, certain material that was relied upon by the CAU in reaching its decision, and further material gathered since the decision. The applicant maintains that it would be unfair to him for the Tribunal to rely on such information in circumstances in which the CAU has indicated that it does not propose to make certain witnesses available for cross-examination. The Tribunal has been asked to decide, as a preliminary matter, whether the Tribunal has a discretion to exclude, or not rely on, this information due to unfairness to the applicant in being denied the opportunity to test the evidence on which the CAU originally relied, and on which it now seeks to rely on review.
9. In order to provide adequate reasons of the Tribunal's determination of the question of law, it is necessary to set out in some detail the procedural history of the matter and the information that the applicant says it would be unfair for the Tribunal to rely upon.

The CAU's decision to issue a prohibition notice

1. On 11 September 2023, the CAU issued a prohibition notice to the applicant under s 32 of the CSPP Act. The notice was accompanied by a statement of reasons. The applicant does not wish to be prohibited from working with children. He disagrees with the CAU's conclusion that he poses an unacceptable risk to children. He is a driving instructor. Some of his clients are minors. He challenged the notice.
2. To make its assessment, the respondent relied on "assessable information" as defined under the Act. Assessable information includes criminal charges, even where such charges do not result in convictions or findings of guilt.[2]
3. The respondent relied, in reaching its decision, on charges of aggravated indecent assault that the applicant faced in 2015. These charges were subsequently dismissed by a court. The CAU also relied upon two findings of guilt made by a court in 2005 and 2017 respectively, for dishonesty offences.
4. The dispute between the parties concerns the manner in which the CAU used the information relating to the charges of aggravated indecent assault. It used that information to contribute to its conclusion that the applicant poses an unacceptable risk to children.
5. In brief, the applicant maintains that he did not conduct himself in the manner alleged by the complainant, and acted upon by police, that gave rise to the aggravated indecent assault charges. He takes no issue (at this stage) with the CAU's reliance upon the dishonesty convictions in reaching its decision as to the risk that he poses.
6. The aggravated indecent assault charges arose out of an interaction between the applicant and his client who was, at the time, a 16 year old female learner driver. There was some CCTV footage relevant to the allegations.

Review under s 34 of the South Australia Civil and Administrative Tribunal Act 2013

1. The Tribunal, in exercising its review jurisdiction, examines the decision of the original decision-maker by way of rehearing conducted under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
2. The procedure on a rehearing includes an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
3. By way of orders after the rehearing, the Tribunal may affirm or vary the decision under review or may set the decision aside and either substitute its own decision or send the matter back to the original decision-maker for reconsideration.

1. In its statement of reasons, provided after the applicant filed his application for review, the respondent stated as follows:

The assessable information indicates Mr Badea was the subject of two counts of Aggravated indecent assault toward a younger female adult. The sexual nature of the allegations indicates a high level of risk to children and weighs heavily against Mr Badea. The aggravating circumstance of the allegations was that whilst working as an authorised driving examiner Mr Badea abused a position of trust and authority. > > The assessable information also reveals Mr Badea has been found guilty in relation to offences of dishonesty in 2005 and 2017. In 2017, Mr Badea was ordered to pay compensation in the amount of $960 as a result of being found guilty of two counts of Deceive another to benefit self or third person. Children and other vulnerable members of the community are at an increased risk becoming victim to fraudulent and deceptive behaviour. > > Considerations > > The assessable information raises a degree of concern about Mr Badea and the risk Mr Badea poses to children. The offence with which Mr Badea was charged, namely Aggravated indecent assault, is serious. The seriousness of the offence is reflected in the nature of the conduct that underpins it and recognised in its status as a presumptive disqualification offence. The charge was aggravated by reason of Mr Badea's position as a driving examiner at the relevant time. If true, the allegations reveal an abuse of a position of authority and trust, in circumstances involving a degree of power imbalance between Mr Badea and the complainant. The possible harm to children, if it were to occur in the future, is serious. > > In evaluating the likelihood of future occurrence, the following is observed in relation to this matter:

2. On its face, the complainant's account of events as contained within the police apprehension report is not fanciful or farfetched. The account is detailed and does not reveal any identifiable inconsistencies.
3. The apprehension report indicates that at the time of reporting, the complainant's account of events was supported by a witness, as well as CCTV footage (provided by a second witness):

2.1. Witness 1 was the complainant's grandmother. She provided her account of events as contained within the apprehension report. The grandmother's account is detailed (commensurate with the extent of her involvement in the situation) and does not appear fanciful or farfetched. > > 2.2. Witness 2 was a security officer with the Playford City Council. This witness provided the CCTV footage to police. Upon viewing the footage, police observed a male, suspected to be Mr Badea, hugging a female, suspected to be the complainant, next to a small white vehicle (inferred to be Mr Badea's vehicle). This depiction is consistent with the accounts of both the complainant and witness 1.

4. The complainant reported the matter to police within hours of the driving examination having concluded. The contemporaneousness of the complainant's actions lends some weight to the credibility of her allegations.
5. Police considered the evidence was sufficient to lay charges against Mr Badea. It is acknowledged that the CAU has not been privy to all of the evidence constituting the prosecution brief. Notwithstanding, a degree of weight is placed upon the commencement of criminal proceedings, the listing of the matter for trial, and ultimately the cause of the proceedings being dismissed. The Certificate of Record indicates the prosecutor conceded no appearance of the police witness. It is assumed this witness was the complainant. In the absence of that key witness, it is not surprising the Magistrate found no case to answer and dismissed the proceedings. No explanation for the absence of the witness is available. Witnesses (and complainants) in criminal proceedings refuse or fail to give evidence for a variety of reasons. It is not for the CAU to speculate as to why the witness did not attend in this instance. What is of significance, is the fact that up until that point, police were prepared to take the matter to trial. The charges were not withdrawn on account of, for instance, an adverse assessment of the complainant's credibility or other sufficiency of evidence reasons.

Mr Badea's submissions > > Through Mr Badea's solicitor, Mr Badea provided a comprehensive submission dated 30 July 2023, in which Mr Badea responded to the concerns raised in the assessable information. In support of Mr Badea's submission, Mr Badea included the following: > > • Statutory declaration of Kelly LeFevre dated 26 July 2023; > > • Affidavit of Benjamin James Sale dated 28 July 2023; and > > • Statutory declaration of Vasile Valeriu Badea dated 28 July 2023. > > The CAU has carefully considered Mr Badea's submission and the accompanying documents. Mr Badea has asked the CAU to draw an adverse inference from the complainant's failure / refusal to appear and give evidence at trial. As discussed above, the complainant's reason for doing so is not known. For the reasons stated earlier in this decision, there is insufficient information available to the CAU to draw an adverse inference in relation to the complainant in this regard. > > In Mr Badea's submission and through reliance on the material annexed to the statutory declaration of inhouse investigator Ms Kellee Lefevre, Mr Badea points toward issues with the complainant's credibility said to arise from her criminal history. The complainant's credibility is undoubtedly a relevant factor. However, this information is treated with caution insofar as it is relied on to discredit her account of the events in question. The complainant's criminal history reveals a number of court appearances for offences of dishonesty and drug possession. Notwithstanding, it reveals no history of similar accusations and little about the veracity of the allegations in question. Nor does it account for the corroborative information (discussed below) that supports her account of events. > > Mr Badea has drawn attention to the unproven nature of the allegations. This has been taken into account and the weight afforded to them has been adjusted accordingly. Despite this reduction in weight, information that corroborates the complainant's account of events results in issues of concern remaining. > > In Mr Badea's statutory declaration at paragraphs 208 and 214-218, Mr Badea denies that he hugged the complainant and asserts that it was the complainant that instigated the hug with Mr Badea. Mr Badea further states at paragraph 246.7 that that is what the CCTV footage showed. It is noted that Mr Badea's account is inconsistent with the account of police in the apprehension report, that it was the male who hugged the female. It is also inconsistent with the accounts of the complainant and witness 1. Noting at paragraph 196 Mr Badea states that the complainant was earlier upset and angry with Mr Badea as he had not given her a discount on the driving examination fee, it appears odd that she would at the conclusion of the examination feel compelled to give Mr Badea a hug. > > In Mr Badea's submission, he asserts that the allegations of the complainant were driven by malice in response to the exchange regarding a driving examination discount. This assertion would appear to be at odds with Mr Badea's contention that at the conclusion of the examination, the complainant was happy; indeed (on Mr Badea's account), so happy that she was compelled to give Mr Badea a hug. > > It is acknowledged that, arguably, a declaration ought to be afforded a greater degree of weight over that of unsworn information such as that contained within a police apprehension report. > > Mr Badea has expressed a degree of remorse and contrition for his dishonesty-related offending. In addition to the above, it is taken into account that the Aggravated indecent assault charges were an isolated incident on an otherwise clean record insofar as conduct of that nature is concerned. > > Determination > > In view of all the circumstances of the matter, it is considered the assessable information is not sufficient to make positive findings of fact that Mr Badea committed the conduct the subject of the Aggravated indecent assault charges, and no such findings are made. > > However, where the possible future harm is serious, as it is here, then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children, as unacceptable. In consideration of all of the circumstances of the matter, the CAU is unable to exclude the possibility that the conduct the subject of the Aggravated indecent assault charges did not occur. It follows that there is a possibility it will occur in the future. The assessable information indicates the risk of this occurring is not fanciful or farfetched. Issues of concern remain, and Mr Badea is considered to pose an unacceptable risk to children. Accordingly, Mr Badea is prohibited from working with children.

1. In accordance with its obligations under the SACAT Act and Rules, on 4 October 2023, the CAU filed a set of documents in the Tribunal. Those documents contained the information upon which its decision had been made.
2. Relevant to the preliminary issue, the Book of Documents included:
   • SAPOL Apprehension Report - 16/T13653 dated 24 April 2023
   • SAPOL Apprehension Report- 16/W41138 dated 24 May 2023
   • Court Information - 16/T13653 dated 19 December 2015
   • Court Complaint and Summons - 16/W41138 dated 16 January 2017
   • Courts Remarks on Penalty - partly redacted dated 17 August 2017
   • Courts Certificate of Record - MCPAR-15 -12947 dated 27 April 2023
   • Courts Certificate of Record - MCPAR-17-673 dated 3 May 2023
   • Applicant's written submissions, with attached statutory declarations and affidavits, dated 30 July 2023.
3. There were several preliminary directions hearings in the Tribunal. In the first, on 17 October 2023, the applicant was granted leave to apply for a summons to issue to SAPOL to produce the CCTV footage relating to MCPAR-15-12947, being the aggravated indecent assault allegation. That summons was ultimately not required because the respondent requested the CCTV footage from SAPOL and was advised that both parties could view the DVD of the footage at a police station.
4. The Tribunal may receive fresh evidence in its discretion on a review.[3] It is required to reach the correct or preferable decision at the time that it makes its decision.[4] In the performance of its functions, the Tribunal is required to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal as to enable it to determine all the relevant facts in issue in any proceedings.[5] The effect of these propositions is that whilst some review proceedings are undertaken wholly on the material in the s 35 documents, others proceed on those documents supplemented by further material submitted by one or both parties.
5. At the next directions hearing on 31 October 2023, the respondent advised the Tribunal that it had, at the applicant's request, sought from SAPOL a copy of the entire SAPOL file with respect to the charge of aggravated indecent assault, and that the applicant's solicitor intended to seek a copy of the relevant Court file from the Magistrate's Court.
6. At the next directions hearing on 22 November 2023, the respondent's solicitor advised the Tribunal that the respondent had provided the applicant with the SAPOL file in MCPAR-15-12947 and that the respondent would file a "Supplementary Book of Documents". The respondent's solicitor said, however, that the respondent would not be pursuing a copy of any court file and that this was a matter for the applicant to pursue.
7. The Tribunal issued a summons to the Registrar of the Magistrate's Court (Elizabeth) to produce the file of MCPAR-15-12947 and a summons was issued to that effect. The summons was answered. The materials were provided to the parties.
8. On 19 December 2023 at a further directions hearing, counsel for the applicant put the respondent and the Tribunal on notice of a foreshadowed objection to the Tribunal's receipt of evidentiary material in the respondent's s 35 Book of Documents from the complainant in the criminal proceedings in MCPAR-15-12947, a witness (the complainant's grandmother) and police officers involved in the report of the incident, unless those witnesses were made available for cross-examination at the hearing of the review.
9. On 27 December 2023, the respondent filed a Supplementary Book of Documents containing the additional materials that had been gathered since the original decision was made. The Supplementary Book of Documents relevantly included 17 further documents including:
   • A redacted affidavit of the complainant in relation to one of the dishonesty offences, dated 13 March 2015
   • A redacted affidavit of the complainant in relation to the aggravated indecent assault, dated 1 November 2015
   • CCTV footage and 5 footage stills with time stamps, and footage stills without time stamps dated 1 November 2015
   • A further nine affidavits, various dates, concerning the alleged aggravated indecent assault and relating to the two dishonesty offences with which the applicant was charged in 2005 and 2017 respectively.
10. At a directions hearing held on 6 February 2024, the applicant maintained his position with respect to the cross-examination of various persons. The CAU advised the Tribunal that it did not intend to call the police officers, the complainant or the complainant's grandmother to give evidence. However, it did seek to rely at the hearing on the documents that had been obtained subsequent to the making of the original decision, including the statements of the complainant, her grandmother and the police officers. This raised a question as to how the material in the Book of Documents and the Supplementary Book of Documents might be used by the parties and the Tribunal in the hearing.
11. The Senior Member conducting the directions hearing considered that the preliminary question might appropriately be dealt with as a question of law by a Presidential Member under s 26 of the SACAT Act. Section 26 provides:

26 - Determination of questions of law > > (1) The member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may refer a question of law to a Presidential member of the Tribunal. > > (2) If a question of law is referred under this section - > > (a) the question is decided by the Tribunal according to the opinion of the Presidential member of the Tribunal; or > > (b) the Presidential member may refer the question to the Court of Appeal for determination. > > (3) If a Presidential member of the Tribunal decides a question of law under subsection (2), the Presidential member may, in addition - > > (a) decide any other questions remaining between the parties; and > > (b) make such orders that are necessary to dispose of the matter.

12. The question, at that point not finally framed, was described by the applicant as whether the Evidence Act 1929, and in particular s 52(3), applies to proceedings before the Tribunal. That section provides:

52 - Admission of certain documents in evidence > > (1) An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred is, subject to this section, admissible in evidence. > > (2) A document must not be admitted in evidence under subsection (1) if the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his or her own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document. > > (3) A document must not be admitted in evidence under subsection (1) if the court is of the opinion - > > (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or > > (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or > > (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence. > > (4) In determining whether to admit a document in evidence under this section, the court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence. > > (5) For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under this section, consideration must be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.

13. The Senior Member sought written submissions on the preliminary issue, and on whether it should be dealt with as a question of law referred to a Presidential Member. The Tribunal set a timetable for submissions and for an oral hearing of the preliminary issue on a date to be determined.
14. The applicant's written submissions contended that the matter should be referred as a question of law. The respondent opposed referral on the ground that the issue was not one that raised a new or peculiar issue.
15. Due to a possible misunderstanding between the parties, the Tribunal Member and the Registry staff as to the outcome of the preliminary hearing, a hearing before me to determine a question of law was scheduled for 24 April 2024. The parties attended that hearing on the basis that they were to argue the preliminary question but unaware of whether that was to be pursuant to s 26 or before another member of the Tribunal. To avoid doubt, I refer the question of law in this decision.

1. It was then necessary to frame the question in a manner that both parties agreed was appropriate and would assist them and the Tribunal to hear the substantive proceedings. The question settled upon was based upon that which was advanced in the applicant's submissions, but was amended somewhat at the hearing.
2. After the oral hearing on the preliminary issue, it was agreed in consultation with the parties that the questions to be answered in this decision are:
   1. When conducting a review of a decision by the Central Assessment Unit prohibiting an applicant from working with children, following a working with children check undertaken pursuant to s 3 of the CSPP Act, does the Tribunal have a discretion at a hearing to refuse to admit material that qualifies as "assessable information" under s 8 of the CSPP Act_,_ on the basis of unfairness to the applicant?
   2. If the answer to question one is in the affirmative, in what circumstances is that discretion enlivened?
3. During the hearing, there was discussion of a third question, which was:
   1. If the answer to question 1 is in the affirmative, then having regard to the answer to question 2, should that discretion be exercised in the circumstances of this case:
      1. By application of s 39(1)(c) of the SACAT Act; or
      2. By application of relevant provision of the Evidence Act 1929?
4. However, during the hearing, the applicant conceded that, for reasons that will become apparent, this question fell away.

1. The Tribunal answers the questions as follows:
   1. No. It is not within the Tribunal's discretion to exclude, or not rely upon, assessable information on the basis that it would be unfair to the applicant. The Tribunal must afford sufficient opportunity to the applicant to respond to assessable information. That opportunity does not, under this scheme, require an opportunity to cross-examine witnesses on whose statements the decision was made or is sought to be made. The weight to be attributed to untested, disputed evidence will depend on its reliability.
   2. In light of the indicators in the statutory regime as to how the CAU, and the Tribunal, are to make decisions, the circumstances in which evidence can be excluded is wholly dictated by the obligation to afford procedural fairness to the parties. There is no basis for the Tribunal to take an approach to hearings that is modelled on s 52(3) of the Evidence Act 1929.
   3. It is not necessary to answer.

1. The task of determining the Tribunal's powers is determined by reference to the task that the Tribunal is required to perform, having regard to the interaction of the and the CSPP Act, the SACAT Act and the Evidence Act 1929.

An Act to minimise the risk to children posed by person who work or volunteer with them; to provide for the screening of person who want to work or volunteer with children; to provide for a system of accountability for person working or volunteering with children; to prohibit those who pose an unacceptable risk to children from working or volunteering with children; to provide for a central assessment unit to undertake screening of person who want to work or volunteer with children; and for other purposes.

2. The primary object of the CSPP Act is to minimise the risk to children posed by persons who work with them: s 3(1). In order to further the primary object, a further object of the CSPP Act is to provide a framework for the prohibition of persons who pose an unacceptable risk to children from working with them: s 3(2).
3. If a person has been found guilty of one of a set of prescribed offences, the person is automatically disqualified from working with children: s 5. In other circumstances, the CAU must gather "assessable information" and make a decision as to whether the person should be prohibited from working with children.
4. Assessable information includes information that relates to offences of which the person has been found guilty; offences with which the person has been charged and disciplinary proceedings in which the person was a defendant or respondent. It also includes information relating to findings of misconduct against the person, to the cancellation of certain child-related approvals by bodies other than courts or tribunals. It includes notifications about the person made under the Children's Protection Act 1993, the Children and Young People (Safety) Act 2017; and information about the person held by Government agencies relating to harm or risk of harm to a child: s 8(1). Importantly, "assessable information" does not lose its status as such where a person is subsequently found not to be guilty of an offence with which they have been charged, or has been cleared of wrong-doing. "Assessable information" captures allegations and not merely outcomes.
5. Assessable information also includes information relating to offences that allegedly occurred, and charges that were laid, before or after the commencement of the CSPP Act, and irrespective of whether the conduct occurred in South Australia or elsewhere. It remains assessable information regardless of the outcome of the charges, or the outcome of any proceedings, action or appeal to which the information relates: s 8(2).
6. It can be seen, therefore, that the pool of assessable information is wide and deep and that the reliability and accuracy of the information it contains may be true and proven to be so, or false and proven to be so, or its truth or falsity may be uncertain to any degree in between.
7. Section 11 of the CSPP Act provides:

Except as may be required by the regulations, neither the central assessment unit nor the Registrar are required to provide procedural fairness in exercising powers or performing functions under this Act.

8. Where the CAU makes a decision on the basis of information classified by the Commissioner of Police as criminal intelligence, the CAU is not required to give reasons for the decision other than that it would be contrary to the public interest to allow the person to work with children: s 10.
9. Section 26 describes the process by which a working with children check is conducted:

26 - Nature of working with children check > > (1) A working with children check in respect of a person consists of the central assessment unit assessing assessable information relating to a person against the prescribed risk assessment criteria to determine whether or not the person poses an unacceptable risk to children. > > (2) Nothing in subsection (1) requires the central assessment unit to assess all assessable information relating to a person (and the fact that the central assessment unit did not assess all assessable information relating to a person in the course of a working with children check does not, of itself, invalidate the working with children check, or a decision of the central assessment unit made in relation to the working with children check). > > (3) In conducting a working with children check, the central assessment unit - > > (a) is not bound by the rules of evidence; and > > (b) may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal; and > > (c) may otherwise inform itself as it thinks fit. > > (4) A working with children check must be conducted in accordance with any other requirements set out in the regulations and the guidelines (however, a failure to comply with this subsection does not, of itself, invalidate a working with children check). > > (5) On completing a working with children check in respect of a person, the central assessment unit must determine whether the person is, or is not, to be prohibited from working with children. > > (6) To avoid doubt, a working with children check may be used in relation to any child‑related work despite being conducted in relation to a particular position, service or activity or employer. > > (7) In this section - > > prescribed risk assessment criteria means the risk assessment criteria set out in the guidelines.

10. An application for a working with children check will usually be initiated by the person to whom the application relates or the person or organisation with whom the person seeks to work or volunteer. However, it is not wholly controlled by an applicant. A process for a working with children check that is started by an applicant must be completed by the CAU irrespective of whether the applicant purports to withdraw the application: s 28. Further, the CAU may conduct a working with children check on the application of a person other than the person to whom it relates, and on its own initiative: s 30. After undertaking an assessment, the CAU must determine whether the person is or is not to be prohibited from working with children: s 26(5).
11. The Registrar of the CAU may require a public sector agency or a person to provide information about a person for the purposes of an assessment, and it is an offence for a person to fail to comply: ss 36 and 37.
12. No provision is made in the legislation for the CAU to provide the applicant with an oral hearing as part of the assessment process. As set out earlier in this decision, the CAU is not obliged to afford procedural fairness in an assessment. Nevertheless, the Tribunal understands that it is the practice of the CAU to seek an applicant's written response to adverse assessable information that the CAU is considering on an application. It did so in the applicant's case and received a detailed submission through his lawyers.[6]
13. A person who is dissatisfied with a decision may seek a review by the Tribunal,[7] as occurred in this case. The provisions in the CSPP Act do not direct the Tribunal to perform the review by reference to any special rules and as a consequence, the review is conducted in the manner set out in the SACAT Act applicable to merits reviews.

1. Section 39 of the SACAT Act sets out the principles that govern hearings at the Tribunal in the exercise of its original, review or internal review jurisdiction. Section 39(1)(b) provides that the Tribunal is not bound by the rules of evidence, and may adopt any findings decision or judgement of a court or other tribunal insofar as may be relevant, and may otherwise inform itself as it thinks fit.
2. Section 40 confers evidence-gathering powers on the Tribunal. The Tribunal may issue a summons requiring a person to appear or to produce evidentiary material: s 40(1). It may do so on its own initiative, in addition to doing so at the request of a party.
3. Section 43 describes the manner in which the Tribunal is to engage in its practice and procedure generally. Amongst other things, as referred to earlier in this decision, the Tribunal is to take all practicable steps to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all the relevant facts in issue in any proceedings: s 43(2).

The Evidence Act

1. The Evidence Act 1929 has an application provision as follows:

5 - Application of Act (****prima facie) to all courts and enabling only > > The provisions of this Act, unless an intention to the contrary is expressed, or appears or is implied by the context - > > (a) apply to every proceeding before any court whatever; and

(b) are in addition to, and not in derogation of, any rules of evidence, or power, or right, or duty in relation to procedure or evidence, whether existing at common law, or provided for by any law, at any time, in force in the State.

1. The Evidence Act's definition of "court" is as follows:

court includes a tribunal, authority or person invested by law with judicial or quasi-judicial powers, or with authority to make any inquiry or to receive evidence;[8]

2. Except for specific provisions excluding the application of the Act in particular instances,[9] the Evidence Act 1929 applies to proceedings at SACAT in the sense that SACAT comes within the definition of a "court". However, the application of the Evidence Act 1929 in relation to the Tribunal's proceedings is significantly limited by s 39 of the SACAT Act that provides that the rules of evidence are not binding upon the Tribunal.

1. The applicant submitted that whilst the Tribunal is not bound by the rules of evidence, it does not mean that the Tribunal must not apply them. Rather, the Tribunal is entitled to receive evidence which might otherwise be ruled inadmissible by a court.[10] The applicant contended that where evidence bears upon the central and controversial issues, the Tribunal should be cautious before proceeding without reference to the manner in which the rules of evidence would dictate that the evidence be treated.[11]
2. The applicant contended that if the Tribunal is required to be satisfied of the existence of certain foundational facts before reaching a conclusion as to the existence of risk, and those foundation facts are contested, the Tribunal's task is impossible unless the witnesses' evidence is tested through cross-examination.[12]
3. The applicant argued that the mere fact that allegations have been received by police, or acted on by police, does not confer upon those allegations greater, or sufficient credibility such that they may be relied upon where they are contested.[13]
4. As to the proper interpretation of the legislative scheme, the applicant contended that the Evidence Act 1929 applies to proceedings heard by the Tribunal. The Tribunal comes within the definition of "court" in that Act. The applicant initially argued that the provision in s 39(1)(b) of the SACAT Act should be understood to mean only that the common law rules of evidence do not apply to the Tribunal's proceedings. During the hearing, the applicant conceded that the correct approach when the two Acts are read together is that s 39(1)(b) applies to the rules of evidence at common law and as codified in the Evidence Act 1929. Further, it was accepted by the applicant that the SACAT Act prevails over the Evidence Act 1929 to the extent of inconsistency.
5. The applicant contended as the Tribunal may apply (though is not bound by) the rules of evidence including those in the Evidence Act 1929, the applicant considers that the Tribunal has a discretion as to whether to receive evidence or not, and that the discretion is informed in part by its obligation to treat the applicant in a procedurally fair manner.
6. To meet that obligation, the applicant submits that the Tribunal ought to approach the issue of the witness' affidavit evidence in accordance with s 52 of the Evidence Act 1929. In reliance on s 52, and acting consistently with the Tribunal's obligation to act according to equity, good conscience and the substantial merits of the case, the applicant considers that the Tribunal should not receive or rely upon the contested affidavit material if the deponents are not made available for cross-examination. To do otherwise would amount to a denial of procedural fairness to the applicant.[14]
7. The applicant therefore considers that the answer to the first question is: yes.
8. In relation to the second question, the applicant did not address all of the circumstances in which the discretion should be exercised in a particular way but it may be taken from his submissions that where there is a genuine contest about the reliability of the evidence, the discretion should be exercised so as to allow the Tribunal to satisfy itself of facts that are required to be found in order to determine whether the applicant poses an unacceptable risk to children.

1. The respondent submits that the Tribunal may receive the affidavit material and use it in its decision-making function without the witnesses giving oral evidence, and nevertheless afford the applicant procedural fairness to the applicant. The respondents says that the witnesses are not required to give oral evidence for three reasons.
2. Firstly, the decision to be made by the Tribunal is one that may be made, by both the original decision-maker and the Tribunal, upon untested evidence. Secondly, the Tribunal is entitled to control its own procedure, particularly when its decision-making function is administrative as opposed to judicial. Thirdly, the Evidence Act 1929 operates on the Tribunal subject to s 39 of the SACAT Act and s 52 of the Evidence Act 1929 has no direct operation on the Tribunal.[15]
3. In elaboration of the first of these points, the CAU submitted that the Tribunal stands in the shoes of the original decision-maker. In other words, it makes the same decision and should consider itself to operate within the scheme that the legislation creates for the decision-making process.[16] This was said to be consistent with the primary object of the CSPP Act being to minimise the risk of harm to children posed by persons who work with them, and the paramount consideration in respect of the administration, operation and enforcement of the CSPP Act being the best interests of children, having regard to their safety and protection.[17]
4. The respondent pointed out that Parliament expressly made information relating to charges against an applicant, regardless of their outcome, assessable information.[18] Further, s 11 of the CSPP Act provides that neither the CAU nor the Registrar are required to provide procedural fairness to an applicant in performing functions or exercising powers under the Act.[19]
5. The respondent submitted that the Minister's guidelines direct the CAU to take into account certain factors when assessing whether a person poses an unacceptable risk to children. These factors include making an assessment of the reliability of the information.[20] It is in that process that the fact that the allegations are untested can be weighed in the evaluation.
6. The respondent reminded the Tribunal that foundational facts relied upon to assess risk do not need to be proven to the civil standard.[21] The decision-maker is required to consider the totality of the assessable information and make an assessment of risk. The respondent submitted that it is not necessary for cross-examination of the witnesses for that task to be undertaken. The fact that a witness is not cross-examined is simply a matter to be accounted for in determining the weight to be given to that evidence. It was accepted, however, that the decision-maker must act rationally and consider probative evidence.
7. The respondent conceded that although the Tribunal is not bound by the rules of evidence, it may not completely set them aside. It was submitted that the corollary of this is that where rules of evidence have been expressly excluded by law, they should not be re-introduced wholesale through rule or practice.
8. The respondent submitted that the Tribunal should be cognisant that the review is neither a civil nor a criminal proceeding but an administrative review. A right to cross-examine does not necessarily apply. When the applicant is permitted to give their account of disputed allegations, the decision-maker has a basis for reaching conclusions as to the risk the person poses.
9. It was the respondent's position that the CSPP Act should be understood not to contemplate that in cases of contested allegations, the CAU or the Tribunal will test the witnesses' evidence through obtaining further statements or cross-examination. It was argued that there is no indication in the scheme that it was intended, for example, that a child who has made an allegation of sexual assault would be required to have that evidence tested in respect of the applicant's subsequent request to be cleared to work with children.

1. The Tribunal is not a court.[22] Its members exercise judicial power from time to time depending on the nature of the proceedings.[23]
2. Parties' rights to procedural fairness in proceedings before the Tribunal are determined by the statutory scheme, being the combination of legislation upon which the proceedings are brought.
3. I adopt the general observations about the nature of the scheme made by Senior Member Ward in Penn v CAU,[24] as follows:
   1. Section 3 of the CSPP Act sets out its objects and principles. In brief, they relevantly state that the primary object of the Act is to minimise the risk to children posed by persons who work with them and that the paramount consideration must always be the best interests of children, having regard to their safety and protection. Further, persons who pose an unacceptable risk to children are to be prevented from working with children.
   2. In each case, there is no punitive or deterrent aspect to a risk assessment. However, the effect on an individual of not receiving a clearance is not relevant to the ultimate issue of whether they pose an unacceptable risk to children or a risk of harm to people with disability. The objects of the legislation are entirely protective of children and people with disability.
   3. As observed by the Tribunal in a different case, the CSPP Act evinces the intention that working with children is a privilege not a right: Fleming v Department of Human Services [2021] SACAT 48. I adopt also the observation made in the New South Wales Court of Appeal that the policy of the legislature was to prefer the risk of injustice to an applicant over a risk to the safety of children: CXZ v Children's Guardian [2020] NSWCA 338 at [58] per Simpson AJA; also, PSN v Department of Human Services [2023] SACAT 28 at [72] - [74].(footnotes in the original have been incorporated into the text above)
4. The Tribunal's task under this scheme entails an exercise of administrative and not judicial power. As was stated by the NSW Court of Appeal, when considering the merits review function of the NSW Civil and Administrative Tribunal on a review of an application for access to public documents giving rise to a question of federal diversity jurisdiction in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal:

...the functions exercised by the [NSW Civil and Administrative] Tribunal with respect to the reviewable decisions at issue are aspects of governmental administration; they involve applying criteria which to a significant extent are bureaucratic or evaluative; to the extent that the criteria involve consideration of legal issues that is a common feature of administrative schemes; even then, to a large extent consideration of the legal issues is not determinative of whether or not access is granted; and the rights involved are not property rights, nor pre-existing legal rights existing independently of the statutory scheme. These features, taken together, point strongly towards characterising the decision-making functions as involving the exercise of non-judicial power.[25]

5. For similar reasons, the exercise of review jurisdiction under Part 3, Division 3 of the SACAT Act, as is required for the present proceedings, does not entail an exercise of judicial power.
6. The Tribunal is not bound by the rules of evidence: s 39. There is considerable authority as to how a provision in terms of s 39 should be approached. The tenor of those authorities is that whilst the Tribunal is not bound by the rules of evidence, it is not precluded from applying such rules, or taking an approach based on such rules, if the circumstances of the proceedings require it.
7. In Sullivan v Civil Aviation Authority,[26] Logan J said of the equivalent provision, s 33, in the Administrative Appeals Tribunal Act 1975:

In resolving justiciable controversies by a final judgement, a court is constrained to act on admissible evidence. An administrative decision-maker is not so constrained, as s 33(1)(c) of the AAT Act makes plain in respect of the Tribunal. However, an administrative decision-maker must act reasonably. As Pochi illustrates, there are particular kinds of administrative decisions which are attended with such grave consequences that to act on "inexact proofs, indefinite testimony or indirect references" (to borrow from Briginshaw at 362) may not be reasonable.

8. However, as the respondent submitted, it is important that s 39 be given its appropriate work to do. As I observed in Medical Board of Australia v Singh,[27] what constrains the receipt of evidence are not the rules of evidence but the obligation to afford procedural fairness. What that entails is determined by the nature of the decision to be made and any statutory signals as to the process that the legislature requires the Tribunal to undertake.
9. The way in which the Tribunal approaches a request by a party to exclude relevant evidence was considered in some detail in that decision as the Tribunal was asked to exclude evidence that was argued to have been unlawfully obtained. In that case, I said:

1. Consideration of the manner in which applications to exclude evidence from tribunals on the grounds of unlawfulness have been dealt with interstate is consistent with this approach. 2. In Martin v Medical Complaints Tribunal, Evans J of the Supreme Court of Tasmania concluded that the Medical Complaints Tribunal (Tasmania) had no discretion to exclude evidence unlawfully obtained. In that case, a medical practitioner was the subject of a complaint that he committed professional misconduct when he formed and maintained a sexual relationship with a female patient. A DNA profile obtained from the patient and later compared by police against the doctor's DNA was the subject of an affidavit tendered to the Tribunal by a police employee at the state's forensic science service. The practitioner maintained that the disclosure of the information from the database had not occurred in accordance with the Forensic Procedures Act 2000 (Tas) and that was not in dispute. 3. Rejecting an argument that the tribunal was bound by the state's Evidence Act, which contains a general power to exclude illegally obtained evidence, Evans J observed that the tribunal was not bound by the rules of evidence as set out in the Medical Practitioners Registration Act 1996 (Tas), schedule 5 of which established the tribunal and conferred upon it various powers. 4. Evans J observed that a criminal court has a common law discretion to reject evidence that was obtained illegally, unfairly or improperly, such discretion borne of the need to protect the integrity of the criminal justice system. His Honour then proceeded to examine a number of South Australian authorities touching on whether such a discretion existed in a civil court, including the observations of Mullighan J in the Duke Group Ltd (in liq) v Pilmer , who considered that no such discretion to exclude except where the result would be a procedural unfairness or where the evidence had been obtained by a 'serious and deliberate infringement' of the legal rights of another. 5. Evans J went on to say:

If, contrary to my view, the tribunal has a discretion to exclude evidence which is illegally, unfairly or improperly obtained, a significant factor to be taken into account in the exercise of that discretion is the function performed by the Tribunal. The Tribunal is not called upon to address considerations of "high public policy" relating to the administration of criminal or civil justice. The Tribunal's function is to hold a formal inquiry into a complaint about a medical practitioner and dependent upon its findings, take action as authorised by the Medical Practitioners Registration Act ... (footnotes omitted). [28]

10. The scheme that is created by the CSPP Act and the SACAT Act contains several powerful indicators as to how the Tribunal is to approach the question of whether it should receive material on a review of a prohibition notice.
11. The first is that the Tribunal is required to reach the correct or preferable decision as to the same question that the CAU was required to decide: s 34(4). It is a form of merits review. This tends to suggest that, outside of the express differences in process set out in the legislation, the Tribunal is to perform the same task as the CAU. It can be inferred from the CSPP Act, being an Act to protect children, that the legislature did not envisage that a child would be required or asked to give evidence of alleged sexual offending against them in an administrative review hearing of the alleged offender's right to work with children.
12. That inference can be made from the objects of the CSPP Act, and from the lack of any protection afforded to a child witness in such proceedings. Whilst the CSPP Act does not purport to have as an object the protection of adult persons who are victims of sexual offending, the lack of any machinery governing the circumstances in which such a person might be required or requested to give a statement or evidence to the CAU is strongly suggestive that the scheme is intended to operate on the basis of the CAU relying upon existing documentary evidence in order to perform its functions.
13. The second indicator as to how the Tribunal is to approach its task is that the Tribunal is obliged, by s 34(5), to consider the material on which the original decision was made "unless any such evidence or material is to be excluded under another provision of this Act or under any other law". This is an express acknowledgement that material may be excluded where another section or another law requires it.
14. The third indicator is that the CAU is not required to gather all assessable information and is not required to afford procedural fairness to the applicant. The Tribunal is not subject to such a provision in the CSPP. However, a fair reading of the provisions of the SACAT Act indicates that the Tribunal is required to afford procedural fairness to all parties to proceedings.
15. Whilst the CAU is expressly relieved of the obligation to afford procedural fairness, the Tribunal is not. As to the content of that obligation, the scheme should be understood to require the Tribunal to afford an applicant a reasonable opportunity to put his or her case. In a review of a prohibition notice that has been issued on the basis of the assessment of risk posed by a person, that would in most if not all circumstances entail allowing the person to advance written submissions, and may require allowing the person to give evidence and/or make oral submissions to the Tribunal.
16. However, there is no textual support for the proposition that it entails a right to require the attendance of, and to cross-examine, witnesses whose versions of events are different from the applicant's on whose statements the decision-maker has relied.
17. As to the context-dependent right of cross-examination, Gibbs CJ said in O'Rourke v Miller,[29]

It was submitted that the appellant should have been given an opportunity to cross-examine, or at least, to confront, the two girls who made the complaints. In support of these submissions we were referred to Barrier Reef broadcasting Corporation Pty Ltd v Staley and Reg V Board of Visitors of Hull Prisoners; Ex parte St Germain. Those were cases in which there was a hearing before a tribunal which refused to allow the cross-examination of persons who in the one case had given evidence and in the other had made hearsay statements and the decisions depended, as all cases of this kind do, on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal was acting and the subject-matter being dealt with : see Russell v Duke of Norfolk. Even when there is a hearing before a tribunal it does not follow that a person affected necessarily has a right to cross-examine witnesses: See National Companies and Securities Commission v News Corporation Ltd. Natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances.

18. There is a sound basis for concluding that the scheme does not envisage that the CAU will produce witnesses on whose out of court statements it has relied, for cross-examination. Because the CAU may rely upon such an array of second-hand material gathered by other agencies, it might be expected that if the CAU were required to call on the authors of such documents, or deponents of such statements, it would be equipped, through the legislation, with the means to locate and compel such persons. The CAU will often be relying on events that happened many years earlier as reported to third party bodies such as police. There is no indication in the legislation that the CAU was intended to have any direct contact with those who have made allegations against an applicant.
19. In O'Rourke v Miller, Wilson J emphasised the distinction between a proceeding in which a disciplinary authority was required to establish the occurrence a particular incident to a particular degree of satisfaction, and a judgement formed during a process undertaken by the decision-maker.[30] This is consistent with a Tribunal exercising a broad range of jurisdiction such as SACAT being required to examine the statutory scheme under which the particular proceedings are brought, in order to make an assessment as to the appropriate procedure to adopt in those proceedings.
20. It is also telling that none of the protections that applies to a witness giving evidence of a sexual offence in a criminal proceeding applies to the proceedings in the Tribunal, because the proceedings in the Tribunal are not criminal charges. If the Tribunal were to apply a provision such as s 52(3) of the Evidence Act 1929 to its proceedings under this scheme, witnesses such as the complainant in the aggravated indecent assault would be exposed to giving evidence without a guarantee of the protections afforded by ss 34L to 34N of the Evidence Act 1929.
21. Amongst other things, in respect of proceedings in which a person is charged with a sexual offence, the Evidence Act 1929 provides that:
    • Questions and evidence concerning a complainant's sexual history are restricted, on the public policy basis that the complainant, "should not be subjected to unnecessary distress, humiliation or embarrassment through the asking of questions or admission of evidence of the kind referred to in that subsection, and [the court] must not grant permission unless satisfied that the evidence in respect of which permission is sought -

(b) would, in the circumstances, be likely materially to impair confidence in the reliability of the evidence of the alleged victim, and that its admission is required in the interests of justice."[31]

• Out of court statements by witnesses who are victims of sexual assault may be received and relied upon, even where the witness is available to give evidence, where the witness is a young child or a person under a disability, if the judge decides that it has sufficient probative value;[32]
• The common law rule of recent complaint is abolished and a failure or delay in making a complaint is not probative of any charge of sexual offence.[33]
• The protection against a suggestion that there is a typical or normal response to non-consensual sexual activity does not apply[34] (noting that in this particular matter, the significance or otherwise of a hug between the applicant and the witness is contested).

1. It would be incongruous for the legislature not to have afforded the same or similar protections to witnesses on a review of a prohibition notice. The fact that it has not is strongly indicative of a construction of the scheme which does not contemplate that the respondent will make such witnesses available.
2. Nor can it be said that the legislation provides any basis for the Tribunal to criticise the CAU for declining to call a witness. The CAU is a respondent in respect to a challenge of its decision that has been made on the basis of documentary evidence. It is not obliged to improve the state of the evidence. In this matter, it does not seek to cross-examine the applicant, nor does it propose to call any witnesses. Nothing in the statutory scheme indicates that it was intended that the state of the evidence upon which the decision was originally made should be altered on review, although at the election of the parties it may be, at the Tribunal's discretion.
3. If the scheme does not impose a requirement on the respondent to make witnesses available, the Tribunal may nevertheless have a discretion to exclude evidence. The broad power reposed in the Tribunal to determine the manner in which proceedings are conducted appears to support that.
4. Against that, the Tribunal has no supervisory role such as a superior court has in relation to evidence unlawfully obtained upon which the State seeks to rely in a criminal matter. The Tribunal's obligation is to determine the review on the basis of all relevant material as is available and to do so in a manner that is procedurally fair to the parties. Procedural fairness in respect of the applicant entails an opportunity to respond to adverse assessable information on which the CAU has relied. Procedural fairness to the CAU entails consideration of the material on which it relied to reach its decision, and any further assessable information it advances to the Tribunal of which it has become aware.
5. It follows that the Tribunal does not have a discretion to exclude or refuse to receive assessable information, because such information is prima facie relevant to the making of the decision. Assessable information is the basis for the decision. Any unfairness that an applicant considers arises on reliance upon such information must be dealt with by reference to the weight such evidence is given. That, in turn, will be affected by the extent to which questions as to the reliability of the evidence can be tested in order to enable the Tribunal to reach a state of satisfaction appropriate to the performance of its functions.
6. The weight to be placed on the untested and challenged evidence in these proceedings will need to be carefully considered.

1. Similar, though not identical, legislative schemes operate in other parts of Australia. Although the differences between the schemes limit the applicability of the judicial authority to the South Australian scheme, it is nevertheless helpful, in the absence of South Australian judicial authority, to consider how the NSW Court of Appeal has approached the task of attributing weight to contested evidence that is not tested in the hearing.
2. In Children's Guardian v BRL,[35] the decision-maker was the Children's Guardian. In a challenge to a decision by the Children's Guardian to not to issue a working with children clearance, police statements of allegations against the applicant were received by the NSW Civil and Administrative Tribunal for the limited purpose of establishing that the allegations were made, but not for the truth of their content. The Children's Guardian's position was that they could be used by the Tribunal for the broader purpose of the truth of their content, even though the Children's Guardian did not make the complainants available for cross-examination. On appeal, the NSW Court of Appeal, the Court observed that it was open to the Tribunal to receive the documents as evidence of the truth of the allegations made in them without the deponents being made available for cross examination, but that in such circumstances the Tribunal would have been required to carefully assess how much weight could be placed on that evidence. However, the Court rejected a submission that the Tribunal, having received the documents, was obliged to take the statements in for all purposes. The Court considered s 38 (2) of the Civil and Administrative Tribunal Act 2013 (NSW) which is in similar terms to that in s 39(1)(b) of the SACAT Act, but contains the words, "subject to the rules of natural justice" and said:

Being at liberty not to apply the rule of evidence of s 38(2) the Tribunal had the power by force of the concluding words of that subsection to consider the denial of natural justice which would result if it should act upon statements of this kind in proof of such serious allegations without the defendant having an opportunity to test them. > > In considering the requirements of natural justice it was relevant for the Tribunal to consider that because the allegations were so serious, it ought not rely upon the assertions for the truth of their contents without either seeing or hearing the complainant and other witness cross-examined (which was not going to be possible because the Children's Guardian did not intend to call them) or at least reviewing transcript of cross-examination conducted on some other occasion (of which there was none). > > If the Tribunal were to limit itself to determining no more than whether there was a real risk that the offences had occurred, as opposed to making a finding whether in fact they did occur, the four statements, treated as evidence only of the fact that the allegations were made, would be of some relevance. Received on the basis the statements could be looked at for internal consistency, consistency between the respective makers of the statements, surrounding facts and so on. Examination of the evidence of allegations on that basis would be foundation for the Tribunal to decide whether there was a risk that the allegations were true. It would be weak basis for an affirmative conclusion without explanation of the complainant's refusal to testify in 1999 and of the Children's Guardian's failure to call her in 2015 or 2016. > > It would add nothing to the plaintiff's case if the allegations were treated as evidence of their truth accompanied by appropriate discounting of weight for the absence of any opportunity to test. Discounting for the absence of opportunity to test such allegations, where no explanation for failure to call the witnesses was advanced, would reduce them to negligible weight.[36]

3. Fagan J observed that it may have been different if there were an explanation offered for the failure to call the complainant. The Court considered that if such an explanation, supported by evidence, had been advanced, "a case could have been made for receiving the statements for all purposes (even without opportunity to cross examine) and then discounting their weight".[37]
4. Whilst the Court in BRL, was considering a scheme that expressly directs the Tribunal to afford procedural fairness, it should be understood to be materially the same as the South Australian scheme in which the Tribunal is required to take measures that are reasonably practicable "to ensure that the parties have the opportunity to be heard or otherwise have the submissions received" as set out in s 43(1)(d) of the SACAT Act 2013.
5. From BRL, it may be understood that it is necessary for a tribunal to consider the use to which the evidence is proposed to be put in the process of determining whether it would be procedurally fair to use the evidence, and what is required in order to achieve fairness.
6. In Children's Guardian v CF1,[38] the Supreme Court of NSW determined an appeal by the Children's Guardian against a decision of the NSW Civil and Administrative Tribunal to set aside the guardian's decision to refuse CF1 a clearance to work with children. CF1 was charged with seven sexual offences against his niece who was at the time a minor. On the first day of the trial of the criminal charges, the complainant told the prosecutor that she did not want to give evidence and the charges against CF1 did not proceed.
7. On the hearing by the Tribunal of CF1's challenge to the Children's Guardian's refusal to clear him to work with children, CF1 did not seek to have the complainant made available for cross-examination. It was put to the Tribunal that this was a matter of cost-saving. CF1 gave evidence that the allegations were false, and was cross-examined by the Children's Guardian. The Tribunal found that the complainants' out of court statements could not be accorded more than negligible weight. The Tribunal had found that CF1 did not pose a real and appreciable risk to children, that being the applicable test under the Child Protection (Working With Children) Act 2012 (NSW). On appeal, the Court found that the Tribunal's approach denied procedural fairness to the Children's Guardian.[39] The Court found that the Tribunal ought to have given some weight to the fact that the DPP considered the matter serious enough to charge CF1.[40]
8. These decisions demonstrate that the approach to be taken by the Tribunal in attributing weight to untested statements will depend both on the confidence that the Tribunal has in their reliability, and the opportunity that the parties have had to test the evidence and put forward their respective positions.
9. The questions posed are answered in the manner set out in the orders below.

When conducting a review of a decision by the Central Assessment Unit prohibiting an applicant from working with children, following a working with children check undertaken pursuant to s 3 of the CSPP Act, does the Tribunal have a discretion at a hearing to refuse to admit material that qualifies as "assessable information" under s 8 of the CSPP Act_,_ on the basis of unfairness to the applicant?

If the answer to question one is in the affirmative, in what circumstances is that discretion enlivened?

Answer: In light of the indicators in the statutory regime as to how the CAU, and the Tribunal, are to make decisions, the circumstances in which evidence can be excluded is wholly dictated by the obligation to afford procedural fairness to the parties. The Tribunal does not have a discretion to exclude or refuse to receive assessable information, because such information is prima facie relevant to the making of the decision. Any unfairness that the applicant considers arises on reliance upon such information is dealt with by reference to the weight such evidence is given.

1. The application for review is remitted to the Senior Member for a telephone directions hearing on a date to be fixed to determine the further disposition of the application.

[4] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, at [142]; Frugtniet v Australian Securities and Investments Commission (ASIC) [2019] HCA 16; (2019) 266 CLR 250, at [15].

[9] See the specific definition of "court" in s 68 of the Evidence Act 1929 that excludes tribunals and that operates in relation to suppression orders.

[21] GJC v Department of Human Services [2020] SACAT 38.

[22] Attorney-General for the State of South Australia v Raschke & Anor [2019] SASCFC 83 at [7].

[23] For example, if exercising jurisdiction in the nature of the adjudication of civil disputes, it may act judicially.

[24] [2024] SACAT 11

[25] [2023] NSWCA 191; (2023) 379 FLR 256, [87] per Kirk JA.

[27] [2019] SACAT 66.

[29] (1985) 156 CLR 342, 353.

[31] Evidence Act 1929, s 34L.

[32] Ibid, s 34LA.

[33] Ibid, s 34M.

[34] Ibid, s 34N.

[35] [2016] NSWSC 1206.

[38] [2020] NSWSC 1673, Davies J.