• - in assessing the applicant's risk of future conduct, the Tribunal rejected the assertion that greater weight should be placed on the absence of notifications, allegations or charges over the last 15 years than the allegations that occurred before that period of time;
• - the applicant was not a satisfactory witness as his answers to questions were vague, evasive and generally unconvincing;
• - although it would be inappropriate for the Tribunal to make positive findings in relation to the discontinued criminal charges, the Tribunal places significant weight on the findings of the Child Protective Services that the applicant committed serious sexual and physical and emotional abuse to minors; and
• - when the totality of the evidence is consider there is a significant feeling of unease that leads to the inescapable conclusion that the applicant poses an unacceptable risk.

Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unit to issue a Prohibition Notice - Unacceptable Risk to Children - Consideration of discontinued charges

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 60

Child Safety (Prohibited Persons) Act 2016 ss 3, 15, 20, 26, 32, 43

GJC v Department of Human Services [2020] SACAT 38

M v M (1988) 166 CLR 69

Re AKS [2016] SACAT 19

Briginshaw v Briginshaw [1938] HCA 34

Schinckel v Registrar of Firearms [2020] SASC 236

Ms K Eaton and Ms M Kaukas, Andersons Solicitors, appeared for the applicant

Ms P Ewens, Crown Solicitor's Office, for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 and s 71A of the Evidence Act 1929 and complies with the Tribunal's anonymisation policy. The person the subject of these proceedings and any other person that may tend to identify any of the children the subject of the allegations have been de-identified to protect the identity of the children.

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This is an application for the review of a decision of The Department of Human Services-Central Assessment Unit (the CAU) made on 26 March 2020 to issue and serve a Prohibition Notice on BZY under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the CSPP Act). BZY is entitled to seek a review of the decision pursuant to s 43 of the CSPP Act.

1. The applicant is a 48 year old man who is currently employed by the Department for Infrastructure and Transport (previously Trans Adelaide) as a Passenger Services Assistant on the Gawler railway line in Adelaide. He first commenced employment in public transport in April 1995 as a bus operator based at Port Adelaide. He continued in that role for about five years when he was redeployed and worked in a number of placements in the public sector until securing his current position with Trans Adelaide in or about September 2001. His role is that of a Rail Conductor/Ticket Inspector.
2. The applicant's position involves dealing directly with members of the public, including children. He is required to work with another person - either another Passenger Service Assistant or a security officer. As part of his employment conditions since the CSPP Act came into effect on 1 July 2019, BZY is required to undergo a working with children's check.
3. The Prohibition Notice was issued on the grounds of the assessable information adduced by the Central Assessment Unit (the CAU), being the body established under s 20 of the CSPP Act to determine whether a person is safe to work with children. The assessable information which resulted in the issue of the Prohibition Notice under review has been produced to the Tribunal and is contained in two volumes (each consisting of 699 pages) described as follows:
   • Volume 1 s 35 Statement and Book of Documents (Closed) dated 5 June 2020 (Vol 1 BOD). The documents contained in that volume are subject to a confidentiality order made by the Tribunal on 11 June 2020 under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).This book is accordingly available only to the Tribunal being the un-redacted material before the original decision-maker;
   • Volume 2 s 35 Statement and Book of Documents (Open) dated 5 June 2020 (Vol 2 BOD). The documents contained in this volume are not subject to any confidentiality order but certain documents have been redacted to protect the identity of some persons due to the sensitive nature of the information contained therein. This book has been made available to the applicant and his legal representatives.
4. In addition to the BOD, the Tribunal received the following further evidence from the applicant:
   • Affidavit of BZY sworn on 6 October 2020 (Exhibit A1);
   • Affidavit of GGQ sworn on 7 October 2020 (Exhibit A2);
   • Oral evidence (given on affirmation) of BZY at the review hearing on 20 October 2020.
5. The assessable information on which the CAU based its decision relates to the following alleged conduct by the applicant:
   • In 1996 he allegedly abused six children (from three different families) referred to in Vol 2 BOD as:
     • UR/Child A (female aged 6 years)
     • UR/Child B (female aged 6 years)
     • UR/Child C (female aged 4 years)

• UR/Child D (female aged 4 years)
• UR/Child E (female aged 2 years)

• UR/Child F (male aged 3 years)
• On 30 July 1996 and 8 August 1996 the Department of Child Protection (DCP) made formal findings of 'child abuse confirmed' following their investigations relating to the allegations concerning the children A, B, C, D and E. The DCP deemed the allegations relating to those children as being credible having been based on detailed and specific disclosures during forensic interviews conducted by South Australian Police (SAPOL) and Child Protective Services (CPS), which corroborated the detail of separate notifications also reported to the DCP.
• On 20 November 1996 the applicant was charged with three counts of indecent assault and four counts of unlawful sexual intercourse with a person under 12 years of age. These charges arose out of the DCP notifications concerning the above mentioned children and because of the seriousness of the alleged offending, were Major Indictable in nature. The allegations of child abuse specifically involved the touching and penetration of genitals (children between the age of 2-6 years - with one child being non-communicative due to severe physical disability and therefore being particularly vulnerable). None of the charges proceeded to trial. All were dismissed in the Magistrates Court for want of prosecution. No explanation has been proffered as to why they did not proceed. The allegations of sexual abuse of young children remain untested and untried but of significance, none of the alleged victims (or their parents) have withdrawn the allegations or recounted their assertions.
• In 2003 and 2005, the applicant is alleged to have committed acts of physical and emotional abuse towards his two biological children referred to in Vol 2 BOD as:
  • UR/Child G (female aged 2 years in 2003)
  • UR/Child H (male aged 2 years in 2005)
• It is also alleged that there was a history of BZY perpetrating domestic violence consisting of the physical and verbal abuse of his first wife (the mother of his children). On 4 November 2005, the DCP made formal findings of 'child abuse confirmed' in relation to Child G and Child H. On 1 December 2005 the Magistrates Court of South Australia made an interim Domestic Violence Restraining Order for the protection of the two children and their mother. That order was finally confirmed on 30 January 2006 with a notation on file that the applicant (whilst not opposing the order) disputes the allegations of physical, emotional and verbal abuse.

1. BZY was afforded natural justice by the CAU (even though not required under s 11 of the CSPP Act). He was given an opportunity to provide a response either in writing, by telephone or personal interview. He responded briefly in writing on 5 March 2020 by way of a one page email.[1] In that document he states that the allegations regarding the criminal charges are "inconsistent and untrue". He says they were made nearly 24 years ago and they were dealt with by the Elizabeth Magistrates Court and are "now closed". In regards to the Domestic Violence Restraining Order BZY also states that the allegations made by his ex-wife are "false and untrue". He says that he has never breached the order (which remains in place). He also states that in nearly 25 years of employment within the Public Transport system, including working with children alone, he has been working without incident. He concludes by saying, "I am not a threat to children, nor have I ever been."

1. BZY was represented at the review hearing by Ms Eaton. She submits that there are two key elements that demonstrate that the decision to issue a Prohibition Notice is not correct or preferable:
   • Firstly, it is argued that there was a lack of procedural fairness to the applicant regarding the DCP notifications over the period from 1996-2005 because he was not made aware of the details of all allegations until the current proceedings arose.
   • Secondly, it is submitted that insufficient regard was given by the CAU to the historical nature of the allegations, the applicant's lack of any relevant criminal history and the fact that there have been no further notifications to the DCP regarding BZY over the last 15 years.

Accordingly Ms Eaton submits that the Prohibition Notice should be set aside.

1. Ms Eaton has urged the Tribunal not to make any positive findings about the alleged sexual, emotional, physical and verbal abuse. She submits that in any event, there is no objective evidence to substantiate any of the alleged conduct. She also submits that in relation to the children A, B, C, D and E that their mothers, who were all known to each other, possibly colluded and made up false allegations of sexual abuse against BZY. In relation to the most recent allegations regarding his own children, Ms Eaton submits that these were made at a time when the applicant's relationship with their mother and her parents was under strain and that accordingly there is motive for the making of false allegations. It is also submitted that the applicant has never made any admissions in respect of any of the allegations, either in whole or in part and in his evidence on affirmation before the Tribunal, he has denied any wrongdoing.
2. Counsel for the applicant submits that where past conduct relies upon unproven allegations, this must be treated with caution before accepting the conduct alleged as a reliable indicator of future conduct. Ms Eaton submits that in so far as past conduct is an indicator of future conduct, the Tribunal should give greater weight to more recent conduct than to alleged historical conduct, especially where recent conduct has extended over a substantial period of time. In other words, BZY's good conduct over the last 15 years is a more reliable indicator that he does not at present, and is not likely in the future, to pose an unacceptable risk to children.
3. Ms Eaton submits that I should have particular regard to the dissenting reasons of Officer Karen C - one of the CAU reviewers who concluded that on the basis of the assessable information available, the applicant should not be prohibited from working with children.[2]

1. Ms Ewens appeared on behalf of the respondent at the hearing on 20 October 2020. She submits that the decision to issue a Prohibition Notice is the correct or preferable decision on the assessable information that was before the CAU. She submits that the evidence was sufficient to establish a finding that the applicant poses an unacceptable risk to children when it is assessed as a whole.
2. Ms Ewens referred in particular to aspects of the applicant's past conduct which she submits are demonstrable of present unacceptable risk including:
   • The alleged sexual abuse of children between the ages of 2-6 years involving the touching and penetration of genitals, which resulted in 1996 in criminal charges being laid against BZY involving 4 counts of unlawful sexual intercourse with a person under 12 and 3 counts of indecent assault;
   • Findings by the DCP that the allegations of sexual abuse are credible based on detailed and specific disclosures made by five of the alleged victims with the sixth being unable to effectively communicate due to disability. The five children who made the disclosures did so during forensic interviews conducted by both SAPOL and the CPS. The respondent disputes any suggestion that the mothers of the six children have colluded against the applicant. Rather, Ms Ewens submits that the fact of a relationship between the three families involved illustrates a pattern of conduct by which BZY ingratiated himself into their lives and developed a trust which gave him unsupervised contact with the young children (for prurient purposes).
   • In 2003 and 2005 the applicant allegedly committed acts of physical and emotional abuse toward his biological children. There are also allegations that he engaged in domestic violence including physical and verbal abuse against his ex-wife. The alleged acts against his children resulted in notifications to the DCP which made a formal finding of 'child abuse confirmed' on 4 November 2005.
   • In December 2005 the Magistrates Court of South Australia made an interim Domestic Violence Restraining Order for the protection of the two children and the ex-wife. That order was confirmed (with the applicant's consent, albeit with a denial of the allegations) on 30 January 2006 and still remains in place.
3. The respondent also does not seek that the Tribunal make any positive findings about the allegations made against the applicant in 1996, 2005 and 2006. Instead Ms Ewens submits that consistent with the legal authorities of GJC v Department of Human Services[3] and M v M,[4] the Tribunal must only find that the risk, based on the assessable information as a whole, is unacceptable. She says that the applicant in his work as a Passenger Services Assistant for Trans Adelaide and Public Transport Services, has a high frequency and degree of access to children, and in his role, has the appearance of someone in authority.
4. Ms Ewens also submits that the nature of the allegations (particularly those relating to sexual abuse) concern conduct of the most serious nature and that it is incumbent on the Tribunal to give careful consideration to the objects of the CSPP Act,[5] that is, the safety and protection of children when assessing the issue of risk.
5. In conclusion, the respondent submits that the Tribunal should affirm the decision of the CAU.

1. The primary object and principle of the CSPP Act is to minimise the risk to children posed by persons who work with them. The Act provides a framework for the prohibition of persons who do pose an unacceptable risk. It is clear from s 3 of the Act that the paramount consideration is the best interests of children having regard to their safety and protection. Put plainly, persons who pose an unacceptable risk to children are to be prevented from working with them. Section 3(4)(d) of the CSPP Act establishes that the assessment is one of a person's prior conduct. It is only in recent times that we as a society have become more vigilant about removing the risk of harm to the more vulnerable members of the community such as the young and elderly. The desire to provide greater protections by requiring checks on the prior conduct of those who work with children clearly underpins the legislative scheme established by the CSPP Act.
2. Under s 20 of the CSPP Act, the CAU is established as the body which is authorised to gather assessable information and to conduct the assessment according to published Working with Children Check Guidelines[6]. The present Guidelines were gazetted in July 2019 when the Act commenced operation.
3. The CSPP Act specifically applies to those involved in child related work. Section 6 sets out a range of classified workers which for the present purposes includes those providing transport services for children.[7] The Act also extends to all types of workers whether employed by another, self-employed, carrying out contract work or merely volunteering services.[8] It is clear that the applicant falls within the ambit of the CSPP Act.
4. The CAU is required to make its decision on the basis of assessable information which relevantly includes in this case:
   • Information that relates to offences with which the person has been charged (whether or not convicted);[9]
   • Information that relates to disciplinary action taken against the person;[10]
   • Notifications made under the Child Protection Act 1993.[11]
5. The CSPP Act specifically provides that the CAU is not required to provide procedural fairness to the person under assessment in exercising its powers or performing functions under the Act-except as required by regulation.[12]
6. If a Prohibition Notice has been issued pursuant to s 15 of the CSPP Act then the person the subject of the Notice must not work with children. Under s 15(3) it is an offence for a prohibited person to work with children punishable by fine or imprisonment. Under s 15(4) it is also an offence for an employer to employ or continue to employ a prohibited person.
7. The CSPP Act differentiates between two classes of applicant:
   • Those presumed to pose an unacceptable risk to children if found guilty of a presumptive disqualification offence (as declared by Regulation). These persons must be prohibited from working with children;[13]
   • Those who may be determined to pose an unacceptable risk to children at the discretion of the CAU - and accordingly prohibited from working with children.[14] The applicant falls into this category.
8. A decision of the CAU to issue a Prohibition Notice is reviewable by SACAT.[15] The review is under s 34 of the SACAT Act and is to proceed by way of a rehearing of the evidence but the Tribunal is to have regard to the evidentiary material before the original decision maker and is also to give appropriate weight to the original decision. This has particular importance when considering the exercise of a discretion such as in this case, especially where regard should be given to the expertise of the original decision maker.[16]
9. In determining the review application, the Tribunal must reach the correct or preferable decision on the merits of the matter before it. The Tribunal may affirm or vary the original decision, or set aside the decision and either substitute a new decision or remit the matter to the original decision maker for reconsideration with directions or recommendations.[17]
10. The Tribunal does not have to find any error in either the fact finding or the reasoning of the original decision maker - it may simply consider on the evidentiary material before it that the decision reached (usually in the exercise of a discretion) is not the preferable decision under the circumstances.
11. In terms of giving 'appropriate weight' to the original decision, Senior Member Rugless in the matter of GJC v Department of Human Services[18] made some very useful (and persuasive) observations about the correct approach of the Tribunal regarding this task.[19] In summary the following points were made:
    • Significant weight may be given if the original decision is correct in law, factual findings and discretionary judgment.
    • Little or no weight should be given where the original decision maker has made an error of approach, breached natural justice or applied an incorrect standard of proof.
    • Some, little or no weight may be given where further evidence has been received upon review and the matter considered afresh but some consideration should be given where the original decision maker possesses particular expertise and has taken considerable care in conducting in this instance, a risk assessment.
12. I turn now to the standard of proof applicable to working with children checks. The following points need to be made at the outset:
    • The jurisdiction conferred on SACAT by the CSPP Act is protective in nature.
    • The review proceedings are not strictly 'inter partes' in nature as it is incumbent on the Tribunal to conduct its own inquiry as to whether in this case, BZY does pose an unacceptable risk to the safety of children, particularly in the course of his employment.
    • The Tribunal in conducting a review is not bound by rules of evidence and may inform itself as it sees fit.[20]
13. The Tribunal does not need to make any positive findings about whether in this instance, the applicant committed the acts of sexual abuse alleged in 1996 or the acts of physical, emotional and verbal abuse in 2003 and 2005, given that he was never convicted of any criminal offences arising from these very serious allegations. In this (and similar cases which are now coming before the Tribunal) it may not be possible to make such findings in any event, because of the lapse of time and the insufficiency of the evidence presently available.
14. If however positive findings of an allegation of past conduct are made, the Tribunal would need to be satisfied on the balance of probabilities (i.e.: the civil standard of proof) with appropriate regard to the considerations expressed in Briginshaw v Briginshaw[21] concerning the need for careful scrutiny of evidence and comfortable satisfaction that very serious criminal behaviour has occurred.
15. Both the original decision maker and the Tribunal upon review should adopt a holistic approach and consider the totality of the assessable information available. Hence, even if not satisfied that an individual act of past behaviour did occur, in my view it is appropriate for consideration to be given to the cumulative effect of the evidence in assessing the question of risk.
16. At paragraph 207 in the case of GJC, Senior Member Rugless addressed the approach to be taken in the following terms:

To summarise, in my view the correct approach by the decision-maker to assessing unacceptable risk to children in the context of s 26 of the CSPP Act is as follows:

• The decision-maker's task under the CSPP Act is to determine only whether the Applicant poses an unacceptable risk to children (the ultimate or wider issue). If the conclusion is that he or she does, the determination that must follow is that he or she is to be prohibited from working with children. No conditions can be applied to the decision to issue a notice (such as supervision); the outcome is 'prohibited or not prohibited'.
• This process involves a consideration of the assessment of the information and risk issues as one task to determine the 'degree of concern' that the evidence evokes about an individual and the risk he or she poses to children...
• This means that the decision-maker does not necessarily need to be satisfied that it is likely, to any standard or level of satisfaction (such as the balance of probabilities), that the person will cause harm to a child in the future, merely that there is a possibility of future harm to children, and that the potential consequences to children would be serious if the perceived risk eventuated.

1. Since the decision in GJC and the review hearing in this matter, the Supreme Court of South Australia has had cause to consider the issue of risk assessment in relation to the Firearms Act 2015 (SA) in the matter of Schinckel v Registrar of Firearms.[22] In that matter the applicant sought leave to appeal a decision of SACAT in the review of an original decision of the Registrar of Firearms to cancel his firearms licence following the theft of firearms from his unsecured vehicle, on the grounds that he is no longer a fit and proper person to hold a licence. His Honour Justice Bleby considered the risk of a reoccurrence of that conduct with reference to the objects and principles of the Firearms Act (which emphasises the need for public safety).

The question of 'risk' as contemplated by s 7(4)(b)(iv), relevant as it is to the question of fitness and propriety, should not be reduced to a question of 'likelihood' of the person failing to exercise continuous and responsible control over a firearm. The concept of risk in this context directs attention not only to the likelihood of an occurrence, but also the gravity of the occurrence should it eventuate. Having regard to the principles and objects of the Act, the regard that must be had to the risk of future failure, which may be informed by past behaviour, looks to the likelihood of a future event of potentially highly serious consequences.

Thus, to conclude that it could not be said that there was 'no risk' that the conduct would not be repeated is not simply a conclusion as to the existence of some small likelihood. It is also a conclusion of the possibility, small as it may be, of a recurrence with grave consequences, as demonstrated by the theft of the firearms that the appellant did not store properly.

1. I consider that the same approach applies to the assessment of risk under the CSPP Act. It seems to me that this is really a two stage process whereby in the first instance the question must be asked whether there is a risk (even a minimal one) of the applicant engaging in conduct which would pose a threat to the safety and protection of children and in the second instance, the further question asked: if that risk were to arise, would the consequences be serious?

1. The applicant gave evidence by a combination of affidavit and oral evidence. He denies having engaged in any of the conduct alleged concerning the six children from the three families which resulted in the 1995 criminal charges. He confirms that the three mothers were known to each other and that in relation to the mother of child F, he had been involved in a romantic relationship with her for a short period of time prior to the alleged incident involving that child.
2. BZY also denies the allegations concerning his own children and his former wife which resulted in the Domestic Violence Restraining Order.
3. Exhibited to his affidavit (Exhibit A1), are a number of Commendations which BZY has received during the course of his employment for the period from December 1998 to October 2016. Included in these is a record of complimentary feedback provided by a member of the public who is a child protection case worker. Whilst commuting on a train she witnessed BZY provide assistance to a 13 year old boy who had apparently been bullied and assaulted prior to boarding the train.
4. The applicant, to his credit, has made a candid disclosure about a disciplinary incident which occurred on 17 September 2019 when he grabbed a 15/16 year old boy by the shirt, aboard a train, in circumstances where it is alleged that the boy was engaging in offensive and abusive behaviour towards other commuters. The applicant was subsequently suspended from his employment whilst the incident was investigated. He was later found to have breached the Professional Conduct Standards in the Code of Ethics for the SA Public Sector. He was issued with a written warning and required to undertake refresher training (including customer service training) as directed by his manager.
5. BZY was cross-examined at length about the various allegations and child protection notifications by Ms Ewens - I will say something more about his evidence in cross-examination later in these reasons.
6. The applicant also tendered in support of his review application an affidavit from his present wife, GGQ (Exhibit A2). GGQ states in that document that she was aware of the 1996 charges as her husband at that time had been a bail guarantor for BZY following his arrest. She says that she believes the applicant's denials of the allegations made against him. She also states that as a couple, they do not socialise with people with children save and except for a friend who lives in Victoria who has two children aged 8 and 5 years and her own sister who has two children aged 17 and 19 years. GGQ states that the applicant has never appeared to show any particular interest in these children or tried to spend any time with them alone. In the time that she has known her husband she says that she has never known him to engage in any volunteer activities involving contact with children.
7. The respondent does not seek to rely upon any documentary evidence other than the documents containing the assessable information that was before the original decision maker included in the s 35 Books of Documents referred to previously.

Discussion of the evidence and the Tribunal's Conclusions

1. The question for the Tribunal upon this review is: does the applicant pose an unacceptable risk to children from the assessable information available such that he should be prohibited from working with children in the best interest of the safety and protection?
2. I turn now to the evidence of the applicant at the review hearing on 10 October 2020.[23] BZY identified Children A, B and C by name and says that he was friends with their mother 'EKW'. He agrees that he took the three children on a camping trip during the first week of the school holidays in June 1996. The applicant states that he was known to the children as 'Uncle BZY' and that he suggested to their mother that he take them camping to allow her to spend some private time with an old boyfriend, never having previously babysat any of the children or having spent any time alone. He "absolutely" denies the allegations made regarding each child, including the penetration of their genitals and anus with his fingers.

I consider it is most unusual that BZY would think it was appropriate to be alone for an entire weekend with three female children, unrelated to him, between the ages of 4-6 years and further, that it was at his suggestion that he take them on a camping trip (including sleeping in a tent), unaccompanied by another adult. It is open to infer either that he was motivated by prurient purposes at worst or simply lacked proper judgement at best.

1. BZY identifies 'UEF' as the mother of the children D and E. He says that she is a friend of EKW. He recalls that one of the children was significantly disabled. Ms Ewens put to the applicant that he had placed his fingers into the vagina of the child who is not disabled. The applicant says that he was aware of that allegation (which he denies). However, when it was put to him that it was alleged that he had also touched her vagina with his penis, he stated that he was not aware of that allegation - even though it formed part of the criminal charges in 1996. He agreed with Ms Ewens that this is a significant allegation that "you would remember".[24]

I do not accept that BZY was unaware of the allegation and consider that he was attempting to deflect the impact of very serious allegations by selective recall. Given that criminal charges were laid on the basis of the allegations, I would expect that the applicant would have wanted to know what it was that he was alleged to have done at the time of being charged. The allegations would most likely have been put to him during his interview with police and it is also very likely that he or his lawyer would have been provided with a copy of the police apprehension report detailing those allegations.

1. The applicant identified Child F as the son of 'NTB' who was an ex-girlfriend known to both EKW and UEF. He says that he dated NTB when Child F was a baby. He says that she reached out to him to re-establish a friendship in 1996 well after their relationship had ended earlier. Child F was three years old at the time. On one occasion after re-establishing contact BZY says that he and NTB arranged to have dinner at her house (with her then partner) and that he was to go to her house after work and would shower there. When he arrived, only NTB and her son were present. This was the first time since re-establishing contact that BZY says he had visited the house. Whilst BZY was in the shower he says that Child F "jumped in".[25] He says that he thought this was strange but he did not stop the shower but instead, called out to NTB. He says they laughed about it and he then asked "[do] you want me to give him a quick clean?" He says NTB agreed to that "coz I had cleaned him when he was an infant".[26]

The act of showering at the home of another in my view is quite intimate behaviour, particularly in this instance as the applicant had only just re-established contact with NTB after their short relationship ended and there had been a significant period of no contact between them. This was the first time that he had visited her home since re-establishing contact. I consider that it is somewhat remarkable that BZY would not cease showering at the point where Child F entered the shower and that he offered to bathe the three year old boy who he had not seen in years and with whom he had no relationship.

I also note the following exchange between Ms Ewens and BZY during the course of his evidence:[27]

Ms Ewens:

....During that shower when you were cleaning (Child F) did you touch his genitals?

BZY:

I could have. I don't remember. I just washed him from top to bottom. It was quite a quick shower, that's all I remember.

This is another example, in my view, of an instance where the applicant during his evidence was attempting to minimise his conduct by being deliberately vague and evasive. In any event, I regard the explanation he gave as lacking in credibility. Even if there was no prurient purpose behind the applicant's actions at the time, then this incident is yet another example of a serious lack of judgement.

1. The applicant commenced the relationship with his former wife in 1998. They married in 2000 and divorced in 2005 following the CPS notifications regarding their biological children G and H. The applicant acknowledged in evidence that from time to time he would become frustrated and angry with his former wife and that he would yell at her.[28] He denied however that he was verbally abusive or that he committed physical violence against her. He stated that he was surprised by the allegations made by Families SA (which resulted in the Domestic Violence restraining Order). When asked by Ms Ewens what he understood those allegations were, BZY stated: "that I abused my children". However, when further asked to elaborate on the nature of the abuse alleged, he gave the following answer:[29]

BZY:

I don't know. I honestly don't know. I don't recall to be honest with you.

I find this evidence to be surprising especially given that he consented to the Restraining Order specifically without admitting the allegations. This is yet another example of the applicant's evasive and dismissive responses to the allegations during the course of his evidence with the knowledge that these allegations formed part of the reasons which led to the CAU's decision to issue the Prohibition Notice.

1. It is also evident that BZY was seeking to downplay or trivialise the allegations concerning his own children.

Ms Ewens:

Prior to the time when you did reside with your two children, did you ever use any form of physical discipline in relation to your two children? And what form of physical discipline did you use?

BZY:

I used my hand, the palm of my hand

Ms Ewens:

And what action was that discipline?

BZY:

It was on their bottom

Ms Ewens:

Can you explain to the Tribunal what...

BZY:

Oh, it was kind of like a firm pat.

Ms Ewens:

A smack?

BZY:

Yeah, a smack, a pat (emphasis added)

The fact that throughout his cross-examination on this topic the applicant consistently referred to a 'smack' as a 'pat' is in my view, another example of his downplaying the seriousness of the allegations.[31]

1. The allegations relating to Children G and H, also included reference to the presence of a video on the home computer showing the children having a shower. In cross-examination BZY agreed that he took that video and during the course of filming his children stated:[32]

He was asked by the Tribunal the following:[33]

Senior Member Rainford:

BZY, why did you make a video?

BZY:

[Sighs]

I've heard of others doing the same thing and it was just to look back and - coz kids grow up so fast and it was just something for us to watch the kids grow up and be able to wash themselves

It should be noted that according to his evidence, BZY's former wife was not present when that video was taken as she was at work.

It is highly unusual that he would take it upon himself to make a video of his two young children bathing when his wife was not present and he was the only supervising adult not to mention for so called posterity purposes - "because others do it". Again, if not driven by prurient intentions then I consider this is another example of BZY's poor judgement and decision-making regarding his behaviour around children.

1. The applicant's voluntary disclosure of the incident concerning a 15/16 year old train commuter on 17 September 2019 is relevant to the assessment of whether he poses an unacceptable risk to children.[34] The applicant accepts that he is in a position of authority to people who use the train service.[35]

In my view the fact that he reached out and physically grabbed the boy by the shirt (in breach of the workplace code of conduct and resulting in subsequent suspension and disciplinary action) again highlights a lack of judgement regarding appropriate behaviour towards children (in this instance, in the workplace environment).

1. I turn now to the submission of Ms Eaton that the Tribunal should have regard to the dissenting decision and reasons of Officer Karen C.[36]

It is clear that she placed significant weight on a number of factors including:

• The possibility of collusion between five of the six children from the three families who were the subject of the 1996 charges. The officer noted that the allegations were made some 24 years ago and that there have been no further similar allegations raised since.
• That the most recent notifications concerning the applicant's own children appear to have been raised in the context of a marital breakdown.
• With the efflux of time since the making of the Domestic Violence Restraining order, any risk of physical/emotional abusive behaviour on the part of the applicant is considered low.

It is important to note that the Officer's consideration of the assessable information available to her, as stated, was measured on the balance of probabilities, that is, in accordance with the standard presently stated in the WWCC Guidelines which were gazetted prior to the Tribunal decision at first instance in the matter of GJC[37] and the more recent decision of the Supreme Court of South Australia in the matter of Schinckel.[38] As previously stated, if positive factual findings regarding allegations of prior behaviour are made on the basis of assessable information, the civil standard of proof is applicable in determining that a person poses an unacceptable risk to children. If however, positive findings are not made (which I suggest will likely be the case in relation to most working with children checks) then a lesser standard or degree of standard applies - otherwise referred to in these reasons as a two stage process.[39] There may be a need for the WWCC Guidelines to be revised and accordingly amended in this respect.

1. Both Counsel for the applicant and the respondent correctly submit that I do not have to make positive findings about the allegations of sexual, verbal, emotional or physical abuse relating to any of the children in 1996, 2003 and 2005. I do not intend to do so. Given the age of the allegations, the lack of all relevant evidence and the fact that the Tribunal is conducting an administrative review of the original decision of the CAU, I do not consider that it would be possible or appropriate to make positive findings in any event. I do however make the following remarks (in support of the findings I will make in this matter):
   • I find it remarkable that the applicant would find himself in a situation where not one, but three sets of allegations of the most serious sexual abuse of six young children were made in 1996 and further allegations involving the alleged abuse of his own children in 2003 and 2005. This is not a case where an isolated incident is alleged to have occurred. In relation to his own children, it is also curious not only that BZY has never sought to clear his name by engagement and cooperation with Families SA, but there is no evidence that he has sought to have contact with his own children since the Domestic Violence Restraining Order came into effect (by seeking a variation of that Order or applying for Orders under the Family Law Act 1975 (Cth)).
   • I did not find BZY to be a satisfactory witness. His answers to many critical questions both upon cross-examination and inquiry by the Tribunal were vague, evasive and generally unconvincing.
   • When viewed as a whole, the totality of the evidence causes me a significant feeling of unease which leads me to the inescapable conclusion that I am satisfied that the applicant does pose an unacceptable risk to the safety and protection of children. I do not need to be satisfied on the balance of probabilities or for that matter to any degree of standard that BZY does pose an unacceptable risk to children as previously discussed.[40] The CSPP Act specifically provides that where a person has been charged but not found guilty of a criminal offence the information that relates to the charge (allegations of criminal conduct) is assessable information and therefore can be taken into account by the CAU.[41] Even though I make no findings regarding the allegations the subject of the 1996 charges, if I am satisfied that there is a likelihood (however slight) that BZY may engage in such behaviour in the future then it follows that I am satisfied there is a risk. The consequences to any child if such behaviour does occur would clearly be very serious and the risk would therefore be unacceptable. It cannot be overlooked that the applicant does not dispute that he did engage in certain conduct including:- offering to take three young females on a camping trip, offering to bathe a young male child, videotaping his two young children showering together, physically disciplining his children and becoming on occasions frustrated or angry with his former wife and inappropriately physically handling a child train commuter resulting in formal disciplinary action against him in more recent times. These admitted actions demonstrate very poor insight and judgement regarding appropriate behaviour towards and around children and are relevant to the assessment of risk.
   • It is clear that BZY is in a position of authority and that in the course of his employment, that he does come into contact with children on a daily basis-probably many times a day.
2. I reject the submission of the applicant's counsel that the Tribunal should place greater weight on the fact that there have been no notifications, allegations or charges over the last fifteen years than the fact that allegations were made in 1996, 2003 and 2005 as a more reliable indicator of the likelihood of future conduct. I do so for a number of reasons:
   • Firstly, I do not think that submission is in keeping with the objects and principles of the CSPP Act in the assessment of whether a person poses an unacceptable risk to the safety and protection of children.
   • Secondly, I do not consider that approach is compatible with the two-stage process in determining firstly whether there is a risk and secondly, if so, whether the consequences of that risk arising would be serious. Taking a holistic approach, as previously discussed, if one considers the number of allegations made against the applicant, the nature of the allegations, the circumstances in which they arose, the forensic investigations which led to the laying of criminal charges, the findings of abuse by the DCP, the making of a Restraining Order and the disciplinary incident in 2019, it would be difficult not to be satisfied that there is a risk of the applicant engaging in behaviour in the future that may compromise the safety and protection of children. If he were to engage in such behaviour, there can be no doubt that the consequences would be very serious for the child or children concerned. The risk is clearly unacceptable.
   • Thirdly, it is clear from the WWCC Guidelines that whilst the applicant's conduct since the most recent allegations were made is a matter that can be taken into account, it is only one of a number of matters including the nature, gravity and circumstances of assessable information in the form of allegations, the vulnerability of any alleged victims and any other relevant disciplinary or misconduct history regarding the applicant.[42]
   • I cannot ignore the inescapable fact that even though the applicant has never been convicted of any serious offence involving children, findings have been made following forensic investigations by the CPS of the serious sexual and physical and emotional abuse of minors. I place significant weight on these findings especially in light of my own assessment of BZY's credibility having heard his evidence and observed his demeanour during the full hearing of this matter.
   • I place little weight on the evidence of the applicant's wife.[43] Whilst I do not make any assessment of her credibility (as she did not give evidence before the Tribunal), the evidence contained in her affidavit is of limited relevance. In any event, she is not an independent observer given her relationship with the applicant.
3. In coming to a decision in this matter I have carefully considered the material that was before the CAU and the additional documentary and oral evidence and submissions put before the Tribunal by the applicant and respondent.
4. I am acutely aware that my decision may well have very significant consequences for BZY in terms of his present and any future employment but that is not a matter that can or should be taken into account under the WWCC Guidelines.[44] To have regard to such a matter would not, in my view, be in keeping with the spirit and intendment of the CSPP Act in any event.

1. I am well satisfied and accordingly find that BZY poses an unacceptable risk to the safety and protection of children such that he should be prohibited from working with them.
2. I am satisfied that the decision of the Central Assessment Unit on 26 March 2020 to issue a Prohibition Notice is the correct or preferable decision.

1. The Tribunal made the following orders:
   1. The decision of 26 March 2020 under review is affirmed.
   2. The Tribunal continues the Confidentiality Order made on 11 June 2020, namely that pursuant to s 60 of the SACAT Act, until further order of the Tribunal, all hearings in this matter be held in private, that the publication of evidence given before the Tribunal or the contents of any documents produced to the Tribunal (other than the evidence or contents of documents reproduced or referred to in these reasons) be prohibited together with the disclosure to the applicant of the contents of the red redacted portions of the s 35 Book of Documents.
   3. Given the allegations in this matter relate to assertions of the sexual abuse of minors, any publication of the reasons for the decision in this matter will be anonymised. That is, the version provided to the parties will include the applicant's name but any version that might be published externally (such as on Austlii) will anonymise the name of the applicant and any other person that may tend to identify any of the children, the subject of the allegations.

[1] Book of Documents, Volume 2, p. 691.

[2] Book of Documents, Volume 2, pp. 17-19.

[3] [2020] SACAT 38.

[4] (1988) 166 CLR 69.

[5] Child Safety (Prohibited Persons) Act 2016 (SA) s 3.

[6] Ibid s 4.

[7] Ibid s 6(1)(l).

[8] Ibid s 7.

[9] Child Safety (Prohibited Persons) Act 2016 (SA) s 8(1)(b).

[10] Ibid s 8(1)(d).

[11] Ibid s 8(1)(g).

[12] Ibid s 11.

[13] Ibid s 26A.

[14] Ibid s 32.

[15] Ibid s 43.

[16] Re AKS [2016] SACAT 19.

[17] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 37.

[18] [2020] SACAT 38.

[20] South Australian Civil and Administrative Tribunal Act 2013 (SA) s 39(1)(b).

[21] [1938] HCA 34.

[22] [2020] SASC 236.

[31] Ibid p. 42, concerning the alleged disciplining of the applicant's son.

[34] Refer to paragraph 12 of Exhibit A1.

[36] Book of Documents, Volume 2, p. 19.

[37] [2020] SACAT 38.

[38] [2020] SASC 236.

[41] Child Safety (Prohibited Persons) Act 2016 (SA) s 8(1)(b).

[42] Working with Children Check Guidelines, guideline 10.

[44] Working with Children Check Guidelines, guideline 8.