Child Safety (Prohibited Persons) Act 2016 ss 3, 8, 26

South Australian Civil & Administrative Tribunal Act 2013 ss 34, 37

GJC v Department of Human Services [2020] SACAT 38

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

1. The applicant seeks a review of the respondent's decision prohibiting him from working with children in South Australia.

2. The Tribunal has taken into account all of the written and oral evidence and submissions of both parties.

3. For the reasons set out below, the respondent's decision is affirmed.

4. The following matters are set out in the Prohibition Notice.[1]

5. The applicant was convicted of 75 criminal offences that occurred between January 2016 and November 2017. The applicant:

(a) was employed as Director Corporate Strategy for SYC Ltd, a charitable organisation supporting the young, vulnerable and disadvantaged;

(b) defrauded SYC Ltd by creating fake invoices and authorising payment to himself of a total of $365,273.50;

(c) was convicted and sentenced to a term of imprisonment of 4 years, 2 months and 12 days with a non-parole period of 2 years;

(d) was released after serving 2 years and is on parole until May 2023.

6. The respondent noted the Court's sentencing remarks that the applicant's offending was "deliberate and sustained criminal conduct involving the abuse of [his] power within SYC. It only stopped because [he was] caught."

7. The respondent considered that the nature of the applicant's offending was directly relevant when assessing risk to children in that his actions were "premeditated, prolonged and undertaken from a position of power."

8. The respondent "acknowledged and considered favourably" the applicant's "attitude, remorse and insight into [his] offending" as set out in his written submission to the respondent.

9. The respondent referred to the applicant's parole and considered that he was "in the early stages of [his] rehabilitation." The respondent considered that the applicant's behaviour since his release was "commendable" but "does not sufficiently evidence a sustained change in conduct at this time."

determined that the nature [and] gravity of the concerns involving a recent and significant abuse of trust and position in a not-for-profit organisation predominantly aimed at youth identifies unacceptable behaviour which in turn indicates an unacceptable risk. The risks identified are transferable to working with children in an organisational or volunteer setting when considered in line with the definitions of child-related work....

11. The respondent referred to the assessment of unacceptable risk and to the objects, principles and aims of the Act.[2]

12. The following matters are set out in the applicant's Submission.[3]

13. The applicant does not dispute the offending for which he was convicted.

14. The applicant provides details to "contextualise [his] offending". He refers to the family circumstances that "ultimately led [him] to start to steal from SYC." He also says:

To be clear, I do not blame anyone else for my actions. I know what I did was both legally and morally wrong.

I will regret for the rest of my life these past poor choices, my past wrongful actions and the pain and hurt that my offending caused my family, friends and former colleagues.

15. The applicant refers to matters after his arrest, including that he admitted his conduct to police, pleaded guilty at the earliest opportunity and apologised for his conduct.

16. The applicant refers to matters after his conviction, including that he "sought social work support to understand [his] offending and how [he] needed to change", has undertaken study to become a secondary school teacher, has "made substantial positive changes in [his] personal circumstances since [his] conviction" and is "serious about sustaining the behaviour changes" he has made.

17. As to the assessment of risk, the applicant says:

(a) his offending "was non-violent" and "was not against a child or children";

(b) the "exceptional circumstances" of his offending "no longer exist";

(c) he has "taken formal steps to change the personal circumstances, lifestyle and behaviours that contributed to [his] offending";

(d) he has "demonstrated insight, acknowledgement and remorse" and demonstrated by his actions that he has changed;

(e) it is "three years since the offending occurred";

(f) there is "a low likelihood of [him] behaving in a similar way in the future" and that he does not pose an unacceptable risk of harm to children.

18. On review, 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."[4]

19. The Tribunal examines the evidence or material that was before the original decision-maker and any further evidence or material that the Tribunal decides to admit for the purposes of re-hearing the matter.[5]

20. The primary object of the Act is to minimise the risk to children posed by people who work with them.[6]

21. The Act provides a framework for the prohibition of persons who pose an unacceptable risk to children from working with children.[7]

22. The paramount consideration in the administration, operation and enforcement of the Act is always the best interests of children, having regard to their safety and protection.[8]

23. A working with children check consists of the respondent 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.[9]

24. Assessable information includes information that relates to offences of which the person has been found guilty.[10]

25. The prescribed risk assessment criteria are set out in the Guidelines[11] made under the Act.

26. In determining if there is an unacceptable risk to children, the respondent does not need to be satisfied that it is likely the person will cause harm to a child in the future. Risk must be unacceptable; it does not need to be likely.[12]

27. In weighing up the risk assessment criteria, the paramount consideration is the best interests of children, having regard to their safety and protection.[13]

Risk assessment criteria in the applicant's case

28. The Court's sentencing remarks include the remarks already mentioned above, that:

This is plainly serious offending. It was deliberate and sustained criminal conduct involving the abuse of your position within SYC. It only stopped because you were caught.[14]

29. That, and the other information about the offending, draws attention to particular risk assessment criteria indicating an increased risk, such as that the offending:

(h) involved multiple convictions for the same type of offence.

30. The Court's sentencing remarks also referred to the things "demonstrative of your contrition and remorse for what you did, which I accept are genuine ..."[15]

31. That, and the other information about the applicant's conduct after the offending, draws attention to particular risk criteria indicating a decreased risk, such as that the applicant:

(a) expressed remorse, accepted responsibility and apologised;

(b) shows insight into his offending and can articulate changes to his attitude and behaviour to address it;

(c) has taken steps to respond to the issues of concern; and

(d) has demonstrated that he has accepted the need for change.

Whether the nature of the offending translates as a risk to working with children

32. The applicant's conviction was not for any offence against children, but it is "category 3 assessable information" which requires a "detailed risk assessment".[16]

33. It is clear from the risk assessment criteria that the person's offending does not have to have been against children for the person to be assessed as presenting an unacceptable risk to children.

34. One of the relevant matters is whether the nature of the offending "translates as risk to working with children".[17]

35. The respondent's letter to the applicant inviting a submission during the working with children check said that his offending:

is considered to increase the risk you pose to children in an organisational setting as it reflects systemic fraud and theft from a position of trust. Further, you stole from an organisation whose primary purpose was community service, and its clientele includes children and vulnerable persons.[18]

36. The "Relevant History Assessment" prepared during the working with children check includes the statement that:

this particular offending is considered to be at a higher level of risk as the applicant worked for an organisation whose primary purpose was the alleviation of poverty and distress in the community, and their clientele includes children.[19]

nature of your offending is considered directly relevant when assessing risk to children specifically youth, and those otherwise vulnerable, particularly in that your actions were premeditated, prolonged and undertaken from a position of power"; and

nature [and] gravity of the concerns involving a recent and significant abuse of trust and position in a not-for-profit organisation predominantly aimed at youth identifies unacceptable behaviour which in turn indicates an unacceptable risk. The risks identified are transferable to working with children in an organisational or volunteer setting when considered in line with the definitions of child-related work...[20]

38. Those statements appear to include an irrelevant matter, i.e. "when assessing risk to children ... and those otherwise vulnerable". The working with children check is to assess risk to children, not to assess any risk to "those otherwise vulnerable".

39. If the respondent took into account any risk of future harm to anyone other than children, then it ought not to have done so.

40. On the other hand, the respondent could take into account, in assessing risk of future harm to children, that the applicant had offended in a context and in a way that adversely affected young people and vulnerable people.

41. When one considers the respondent's statements overall, in the various documents mentioned above, this appears to be the relevance the respondent attached to the organisation that the applicant had defrauded.

42. The evidence indicates that the organisation was known as "Service to Youth Council" when the applicant joined it. The applicant held an executive position. He would have known that SYC's work included supporting children or young people.

43. It is relevant that the applicant's offending adversely affected disadvantaged people and that he would have known that. It is relevant that the offending occurred over a sustained period and did not stop until he was caught.

44. The applicant's offending demonstrates that for his own gain, he would and could abuse a position of power and trust, disregard the law and disregard the welfare of others, including disadvantaged people.

45. The respondent has specialist knowledge and experience in the assessment of risks to children. The Tribunal should give substantial weight to the respondent's assessment that the applicant's offending translates as a risk to working with children.

Overall assessment of risk in the applicant's case

46. The applicant's offending was not offending against children as such. There is no suggestion that the applicant would physically harm a child or that he has any inappropriate interest in children.

47. However, the risk assessment is not limited to any particular type or types of harm.

48. As mentioned, the paramount consideration in the risk assessment is the best interests of children, having regard to their safety and protection, and that leaves the broadest possible scope for the assessment of risk.

49. It is not a question of whether the applicant might offend in the same way again. It is a broader question of whether the aspects of the applicant's character that resulted in his offending might manifest again.

50. Were they to do so while he was in a position of power and trust involving children - and as he has taken steps to become a schoolteacher, he would be in such a position - then there would be a risk of harm to children.

51. There is the potential for serious harm to occur if the applicant were again to disregard the law, disregard the welfare of children and/or put his own interests or desire for gain above the best interests of children with whom he would be working.

52. The likelihood of that occurring may be low, but:

the Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is a risk that if it does it will cause harm to children and that this is unacceptable.

It follows that where the possible future harm is serious 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.[21]

53. The matters in the applicant's favour (as referred to in paragraphs [30]-[31] above) suggest there is a low, even minimal, risk - but there is a risk, and it is a risk that serious harm could occur. As such, it is an unacceptable risk.

54. The applicant remains on parole, which is a period for engaging in and demonstrating rehabilitation. That being so, substantial weight should be given to the respondent's assessment that the applicant's behaviour since his release "does not sufficiently evidence a sustained change in conduct at this time."

55. For completeness, it must be noted that, as a matter of law, there is no focus on the impact that the prohibition against working with children may have on the individual applicant.[22]

56. For the reasons set out above, the respondent's assessment that the applicant poses an unacceptable risk to children is the correct or preferable decision, and the respondent's decision prohibiting him from working with children in South Australia is affirmed.

57. The Tribunal affirms the decision under review.

[1] Prohibition Notice, date of issue 11 June 2021, pages 19-22 of the Section 35 Book of Documents.

[2] Child Safety (Prohibited Persons) Act 2016 ('the Act_'_).

[3] Applicant's submission dated 16 September 2021 lodged in the Tribunal proceedings.

[4] South Australian Civil and Administrative Tribunal Act 2013 s 34(4).

[5] Ibid s 34(5).

[6] Child Safety (Prohibited Persons) Act 2016 s 3(1).

[7] Ibid s 3(2).

[8] Ibid s 3(3)

[9] Ibid s 26(1).

[10] Ibid s 8(1).

[11] Working with Children Check Guidelines (Guidelines), pages 26-66 of the Section 35 Book of Documents.

[12] Guidelines, "Risk context", page 40 of the Section 35 Book of Documents.

[13] Guidelines, Guideline 10, page 47 of the Section 35 Book of Documents.

[14] Sentencing remarks, page 106 of the Section 35 Book of Documents.

[15] Sentencing remarks, page 107 of the Section 35 Book of Documents.

[16] Guidelines, pages 42 and 65 of the Section 35 Book of Documents.

[17] Guidelines, Risk Assessment Criteria, page 48 of the Section 35 Book of Documents.

[18] Letter dated 20 April 2021, page 113 of the Section 35 Book of Documents.

[19] Relevant History Assessment, page 13 of the Section 35 Book of Documents.

[20] Prohibition Notice, page 20 of the Section 35 Book of Documents.

[21] GJC v Department of Human Services [2020] SACAT 38, [106]-[107].

[22] GJC v Department of Human Services [2020] SACAT 38, [121].