The respondent submitted that there was nothing in the circumstances of the charge or the applicant's personal circumstances to constitute exceptional circumstances to rebut the presumption within the requirements of the CS Act. The respondent further submitted that the Tribunal should give significant weight to the original decision as both correct and preferable.

Held, setting aside and substituting the decision under review:

• There is nothing in the circumstances of the alleged offence which suggests that DGH poses an unacceptable risk to children;
• On this basis the decision under review is not the preferable decision in this matter;
• The circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether DGH poses an unacceptable risk to children;
• The decision of the CAU in issuing the Prohibition Notice should be set aside, and a WWCC for DGH should be reinstated.

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 pending charges

Child Safety (Prohibited Persons) Act 2016 ss 26A, 32

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35, 37, 60

Child Safety (Prohibited Persons) Regulations 2019 reg 15A

BZY v Department of Human Services [2021] SACAT 1

GJC v Department of Human Services [2020] SACAT 38

HNU v Department of Human Services [2021] SACAT 92

Ireland v Department of Human Services [2020] SACAT 96

LVM v Department of Human Services [2021] SACAT 38

R v Yavuz (2018) 130 SASR 231

R v Skinner (2016) 126 SASR 120

Mr S Joyce and Mr J Edwards appeared in person for the applicant

Ms A Hedger, Crown Solicitor's Office, appeared in person for the respondent

Pursuant to s 60(2)(f) of the South Australian Civil and Administrative Tribunal Act 2013, the identity of the applicant in this matter is to be anonymised in the publication of the Tribunal's reasons in this matter, unless and until underlying criminal proceedings are finalised.

**Set aside and substitute decision made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i)

1. This is the determination of an application made on 31 July 2023 by the applicant, DGH, for review of a decision by the Department of Human Services - Central Assessment Unit (CAU).
2. The CAU issued a Prohibition Notice to DGH on 27 July 2023 pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (the CS Act), having determined that DGH had been "found guilty" of a presumptive disqualification offence within the meaning of s 26A of the CS Act.
3. On 1 May 2023 DGH was charged with rape contrary to s 48(1)(b) of the Criminal Law Consolidation Act 1936, and this was notified to the CAU_._ Pursuant to s 26A of the CS Act, certain persons are presumed to pose an unacceptable risk to children, namely, those who have been "found guilty" of a presumptive disqualification offence. A presumptive disqualification offence is defined in the Regulations, and reg 15A(a) of the Child Safety (Prohibited Persons) Regulations 2019 provides that an offence against s 48 of the Criminal Law Consolidation Act 1936 where the victim is an adult, is a presumptive disqualification offence. For the purposes of s 26A, a person is "found guilty" of the offence where the person has been charged and the charge has not been finally determined.
4. The respondent filed the s 35 documents with the Tribunal on 28 August 2023. These were included in a confidential Volume 1 and open Volume 2 Books of Documents. At the same time the respondents applied for an order pursuant to s 60(2)(g) of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) for an order prohibiting the disclosure and publication of the contents of the Book of Documents to any person other than the parties. At this hearing the applicant also applied for anonymization of his identification unless and until the criminal proceedings were finalised.
5. These orders were not opposed, and I made the orders sought and they remain in place.

1. For the purposes of a working with children check (WWCC), the CS Act in s 26A provides that certain persons are presumed to pose an unacceptable risk to children. This presumption applies to persons who have been "found guilty" of a presumptive disqualification offence (see s 26A(1) of the CS Act).
2. Section 26A of the CS Act provides relevantly as follows:

(1) Subject to this section, the following provisions apply in relation to the conduct of a working with children check in respect of a person who has been found guilty of a presumptive disqualification offence (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section):

(a) the person will be presumed to pose an unacceptable risk to children;

(b) the central assessment unit need not consider or assess any further information in relation to an application for a working with children check made by the person;

(c) the central assessment unit must, for the purposes of section 26(5), determine that the person is to be prohibited from working with children unless the person satisfies the central assessment unit that -

(i) the circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether the person poses an unacceptable risk to children; or

(ii) such exceptional circumstances exist in relation to the person that the person does not appear, or no longer appears, to pose an unacceptable risk to children.

(2) ...

(3) For the purposes of this section, a reference to a person who has been found guilty of a presumptive disqualification offence will be taken to include a reference to -

(a) ...

(b) a person who has been charged with a prescribed offence or presumptive disqualification offence, but where the charge has not yet been finally determined.

(4) in this section -

presumptive disqualification offence means an offence, or class of offences, declared by the regulations to be a presumptive disqualification offence (but does not include an offence that is a prescribed offence).

1. Presumptive disqualification offences are declared in the Child Safety (Prohibited Persons) Regulations 2019 (the CS Regulations), and in reg 15A(a) of the CS Regulations, an offence against s 48 of the Criminal Law Consolidation Act 1936, where the victim is an adult, is a presumptive disqualification offence.
2. The Working With Children Check Guidelines (the Guidelines) have also been made pursuant to s 4 of the CS Act, and these provide guidance to decision makers as to the scope of ss 26A(c)(i) and 26A(c)(ii) and material which may be relevant to their application. Chapter 7 of the Guidelines considers persons presumed to pose an unacceptable risk to children and presumptive disqualification offences, and provides as follows:

Factors to be considered as to whether the circumstances of the presumptive disqualification offence committed, or alleged to have been committed, by the person are such that the offence should be disregarded in determining whether the applicant poses an unacceptable risk to children may include but are not limited to:

• The offending was in response to an abusive domestic violence relationship;
• The person was acting in self-defence to, or defending another, against an unprovoked offence; or
• The person committed the offending under the direction/duress of a person in authority ...

1. The Guidelines provide further context in relation to what may constitute "exceptional circumstances:

In order to be exceptional, such circumstances must, at the very least, be unusual or in the nature of exceptional and of such significance that it justifies the displacing of the statutory presumption that the person poses an unacceptable risk to children. Such exceptional circumstances are not limited to the circumstances of the offence or charge leading to a presumed prohibition. > > Exceptional circumstances that may exist in relation to the person such that the person does not appear, or no longer appears, to pose an unacceptable risk to children may include, but are not limited to:

• The applicant has voluntarily completed a supervised intervention program (treatment, rehabilitation, behaviour management).

1. Mr Joyce provided oral and written submissions on behalf of DGH.
2. Mr Joyce submitted that most of the facts of DGH's circumstances and the circumstances of the alleged offence were not controversial, and what was central in this matter was the interpretation of s 26A(1)(c) of the CS Act.
3. Mr Joyce told the Tribunal DGH has no adverse criminal history, and an exemplary work history. DGH has held a WWCC since 2000 with no incident. He submitted there was nothing at all in DGH's background to suggest he presents any risk to children. He has no disciplinary history, and in his present work he treats children and there has been no complaint against him. These statements are supported by material filed with the Tribunal including supporting statements concerning DGH from two-line managers and professional colleagues, a longstanding friend and former co-worker, and a former partner. All attest to DGH's professionalism and ethical practices. His professional colleagues make it clear they have no concerns in working with him, and his employer has put in place restrictions in his work so that DGH does not treat children in the course of his work.
4. Mr Joyce submitted that the CAU relied only on the charge against DGH in making its decision, and acknowledged there were no other risk factors in DGH's personal or professional background.
5. Mr Joyce submitted that in these circumstances the facts and circumstances of the offence with which DGH has been charged are relevant. He submitted that the CS Act is concerned with risk to children, so its application requires a risk analysis to precisely identify what it may be in the circumstances and the person to present a risk profile.
6. Mr Joyce submitted that s 26A of the CS Act makes a presumption about a risk profile, but enables that presumption to be rebutted. He submitted that this exercise required making a determination concerning the factual circumstances, and to determine the risk profile of the person. The risk profile determined concerning the person applying for a WWCC could be determined by making an assessment of that person's circumstances, including their background and history, and then weighing that assessment against the risk profile presumed by the charge of the presumptive disqualification offence. Mr Joyce submitted this is clear from the terms of s 26A(1)(c)(i) of the CS Act, which permits the CAU to take into account the circumstances of the presumptive disqualification offence; as well as from s 26A(1)(c)(ii), which refers to circumstances in relation to the person. Mr Joyce referred the Tribunal to an earlier decision in Ireland v Department of Human Services ([2020] SACAT 96), where the Tribunal considered that Mr Ireland's personal circumstances had changed since his conviction such that it concluded that he no longer appeared to pose an unacceptable risk to children, despite being found guilty of a presumptive disqualification offence.
7. Mr Joyce told the Tribunal that unusual circumstances applied in this matter, in that the respondent accepted that DGH has no risk profile outside the disqualification offence. Mr Joyce submitted however that the CAU failed to analyse the facts and circumstances of the allegation against DGH, establish a risk profile, and then consider that risk profile against DGH's personal circumstances.
8. Mr Joyce conceded it was accepted that the charge against DGH was extremely serious. He said that DGH would deny the charge against him, but he accepted that the necessary assessment has nothing to do with the truth of the allegations, only the facts as alleged in the charge, which are set out in the Book of Documents.
9. Mr Joyce told the Tribunal the facts concerning the charge were unusual. The complainant is a transgender man. DGH and the complainant had met through an online dating site in October 2022 and engaged in consensual penile/vaginal sexual intercourse. On 3 November 2022 the complainant contacted DGH and it was agreed they would meet again at the complainant's house and engage in anal sex with a condom. DGH did attend at the complainant's house, and they engaged in some consensual sexual activity. It is alleged that then DGH inserted his fingers aggressively into the complainant's vagina, to which the complainant objected, pushing DGH's hand away and telling him to stop doing that and to put his fingers in the complainant's anus instead. It is alleged that DGH initially complied with that request but then resumed with his fingers in the complainant's vagina, and used language which offended and distressed the complainant because it misgendered him. It is alleged that this and similar conduct, continued, despite the complainant telling DGH he wanted to have anal sex, and was objecting to vaginal sex.
10. The allegation is that the complainant wanted to engage in consensual anal sex, but not DGH's continued engagement in vaginal sexual activity. The allegation is that the complainant eventually went along with DGH's actions in order to end the encounter. Mr Joyce described this to the Tribunal as a "messy" sexual encounter, with allegations that parts of the sexual encounter were consensual and parts non-consensual. He suggested the circumstances were unusual in relation to a charge or allegation of rape, as the allegations are that even after the non-consensual sexual activity, the complainant requested and apparently engaged in consensual sexual activity.
11. DGH was charged with engaging in sexual intercourse after consent was withdrawn. Mr Joyce told the Tribunal it was understood that the charge has now been changed to sexual intercourse without consent, but the particulars of that charge are as yet unclear. DGH denies the allegations. Mr Joyce told the Tribunal a trial was unlikely before the end of 2024 or early 2025.
12. Mr Joyce submitted these allegations did not demonstrate any risk to children. He said that DGH and the complainant had met previously and engaged in consensual sexual activity, and on the occasion in issue, the complainant initiated the contact with DGH, contacting him, and they discussed meeting to engage in further consensual sexual activity. The website through which they contacted each other is an adult website. DGH is aged 48, and the complainant was aged 28 at the time of the events, both clearly adults. Mr Joyce submitted these circumstances have no characteristics of predatory behaviour by DGH. The activities did not occur within a professional setting, or where there was any inappropriate leveraging of a position of trust or authority by DGH. DGH and the complainant had discussed and agreed to engage in particular consensual sexual activity. The allegation is of consensual sexual activity, with an interim of non-consensual sexual activity, in the context of an agreed meeting for the purpose of agreed sexual activity, between adults, initiated by the complainant.
13. Mr Joyce submitted there was nothing in that scenario which suggested any risk to children.
14. Mr Joyce submitted that the primary purpose of the CS Act is to minimise the risk to children posed by persons who work with them. The CS Act establishes a framework for considering "assessable information", making an assessment of that risk, and prohibiting persons who pose an "unacceptable risk" to children from working with them. In determining if a person poses an unacceptable risk to children, the CAU must evaluate the nature and degree of the risk to children and whether it is acceptable to allow it to occur, taking into account a consideration of the likelihood of conduct occurring in the future, and the seriousness of the consequences to children if the conduct eventuates.
15. Mr Joyce submitted that the central inquiry under the CS Act is the definition of risk, which he submitted has two elements: the degree and likelihood of the occurrence of an event; and the possible consequences if it does occur, citing a number of authorities upon which the Tribunal decision of GJC v Department of Human Services ([2020] SACAT 38) (GJC) relied on in its consideration of what constitutes "unacceptable risk" under the CS Act.
16. Section 26A of the CS Act establishes that a person who has been charged with a presumptive disqualification offence is presumed to pose an unacceptable risk to children and must be prohibited from working with children, unless that presumption can be rebutted in the terms set out in s 26A(1)(c).
17. Mr Joyce submitted that the concepts of "risk" and "unacceptable risk" still needed to be considered in the context of s 26A of the CS Act, and the Tribunal was required to consider the circumstances of the alleged offence giving rise to the presumption, as well as to consider whether the applicant had "exceptional circumstances", such that he did not appear to pose an unacceptable risk to children, as he was deemed to do by virtue of the charge.
18. Mr Joyce referred to the Tribunal decision of LVM v Department of Human Services ([2021] SACAT 38). In that case the applicant had been charged with rape and was issued a prohibition notice, the CAU having relied only on the existence of the presumptive disqualification offence. The charge had not been determined and was pending committal. SM Rainford concluded that "lack of antecedent offending history and good character are not in themselves sufficient to amount to exceptional circumstances", and that the design of the CS Act was "to prohibit from working with children, as a class, those persons who are charged with a presumptive disqualification offence ... even where there is no other evidence of risk to children", and that Parliament "clearly intended that this be the case no matter how draconian the consequences might appear".
19. Mr Joyce submitted that this approach in LVM overlooked the reference in s 26A(1)(c)(ii) of the CS Act to "exceptional circumstances", and gave it no work to do, by discounting the specific circumstances of the alleged offence and disregarding matters relating to the person of the applicant such that the person may not pose an unacceptable risk to children. Mr Joyce submitted that if the approach in LVM was adopted, the effect would be that s 26A(1)(c) of the CS Act could in practice never be invoked. This would make the provision enabling the rebuttal of the statutory presumption otiose.
20. Mr Joyce's submission was that the role of the Tribunal (and the decision-maker) was to consider the circumstances of the alleged offending (not make findings about the conduct alleged); to articulate any risk profile in respect of children those circumstances may suggest concerning the applicant; to consider if the risk profile raised by those circumstances is such that the offence should be disregarded; to consider whether the matters raised by the applicant amount to exceptional circumstances (s 26A(1)(c)(ii) of the CS Act); and, if the matters raised are considered to amount to exceptional circumstances, to consider whether, by reference to the specific circumstances of the alleged offending , those exceptional circumstances are such that the applicant does not appear, or no longer appears, to pose an unacceptable risk to children (s 26A(1)(c)(ii) of the CS Act).
21. Mr Joyce submitted that none of the features of the alleged offence demonstrate a specific risk profile in relation to children: the complainant was an adult, not close to a child's age; the parties connected on an adult online platform designed for the purpose of adult consensual sexual encounters; there is no allegation that DGH acted in a predatory or exploitative manner, and the encounter was initiated by the complainant; and the allegedly non-consensual activity occurred in the context of consensual sexual activity, both before and following the allegedly non-consensual sexual activity. Mr Joyce submitted that there was nothing at all in the allegations to suggest that DGH's conduct poses a risk that he would have consensual sex, with non-consensual features, with children.
22. On this basis it was submitted that the circumstances of the alleged offence are such that the offence should be disregarded in determining whether DGH poses an unacceptable risk to children.
23. In relation to DGH's personal circumstances, Mr Joyce submitted that DGH had no criminal antecedents, misconduct allegations or professional workplace discipline allegations; there were no prior complaints in respect of children; he had a significant professional standing and was held in high esteem by work colleagues and peers, and had made a significant professional contribution since 2000, which should be regarded as protective factors, militating against any inference that he posed a risk to children; he has held a WWCC since 2000; he advised AHPRA of the charge against him and AHPRA has declined to take any immediate action or place conditions on his registration, and its investigation is being held in abeyance pending the determination of the criminal charges. Mr Joyce submitted that good character, absence of any concerns in respect of the applicant's conduct toward adults or children, and the absence of any risk profile in relation to children, represent exceptional circumstances in relation to DGH. There is an absence of any relevant history, the absence of any pattern of concerning conduct, the absence of any relevant risk profile, coupled with high standing within his professional community, such that the circumstances can be regarded as "exceptional".
24. Mr Joyce's final submission was that the specific factual circumstances alleged against DGH admit to no risk profile in respect of children, and under those circumstances these factors should be considered as exceptional within the meaning of s 26A(1)(c)(ii) of the CS Act. He submitted that "exceptional circumstances" must take their meaning from the context of the CS Act: that is, in relation to risk to children. Under those circumstances, it cannot be disregarded that the person has worked with children over a long period with no suggestion of risk.

1. Ms Hedger provided the Tribunal with both oral and written submissions in this matter.
2. Ms Hedger submitted that the terms of s 26A of the CS Act are very clear in that an applicant must satisfy the decision-maker that their circumstances are exceptional. Otherwise, the charge of a presumptive disqualification offence is a sufficient basis of a Prohibition Notice.
3. Ms Hedger submitted that the denial of the charge, and the intention to contest the charge, is not sufficient to establish exceptional circumstances. There was sufficient evidence for the charge to be laid and for the matter to proceed to trial. She submitted there was nothing unusual in the circumstances of the charge, which she described as an "ordinary" charge of rape.
4. Ms Hedger rejected the relevance of the particular aspects of the charge as outlined by Mr Joyce. She submitted that the charge related to a very serious offence. She conceded that the complainant in this matter was an adult, but she said this was addressed in the definition of rape as a presumptive disqualification offence, which specifically refers to rape where the victim is an adult. Ms Hedger submitted that the circumstances were not as the applicant had described to the Tribunal, namely as a non-consensual act in the course of otherwise consensual acts. She submitted that the encounter commenced as a consensual sexual interaction, but the applicant then digitally penetrated the complainant's vagina, to which the complainant objected, saying "no", and that he did not use his vagina since his surgery, and pushed the applicant away; the applicant persisted, at which stage the sexual interaction became non-consensual. She submitted that the initially consensual nature of the encounter was not relevant to the nature of the alleged offending, and she suggested it was common for instances of rape to be alleged and to occur in the context of initially consensual sexual conduct.
5. Ms Hedger referred the Tribunal to the Guidelines, which suggest that "exceptional circumstances" referred to in s 26A(1)(c)(ii) of the CS Act are concerned with events such as arising from an abusive domestic violence relationship; where the person was acting in self-defence to, or defending another, against an unprovoked offence; or that the person committed the offending under the direction or duress of a person in authority. None of these circumstances was suggested as applicable in this matter, and she submitted that no exceptional circumstances of a similar nature had been suggested as applicable.
6. Ms Hedger told the Tribunal it was accepted that it is very difficult to establish exceptional circumstances. She referred to the earlier Tribunal decision in the matter HNU v Department of Human Services ([2021] SACAT 92) (HNU), which she submitted was very similar to the present matter. The applicant in that matter was charged with historical sexual offences against a child (which HNU denied), which had not been determined in the courts. The Tribunal considered that the applicant's unblemished criminal history and his denial of the charges could not amount to exceptional circumstances for the purpose of s 26A(1)(c)(ii) of the CS Act. In HNU these considerations were not considered by the Tribunal to constitute "exceptional circumstances". Ms Hedger submitted that the scheme of the CS Act is extremely protective, and is not concerned with fairness toward the applicant but rather, the protection of children.
7. Ms Hedger submitted that DGH's personal circumstances, including his lack of antecedent criminal history, his exemplary work history, his high reputation among colleagues and friends, and his denial of the charge, did not constitute exceptional circumstances such as to come within the requirements of the CS Act to rebut the presumption established.
8. She submitted that the Tribunal should give significant weight to the original decision as both correct and preferable, taking into account the purpose and nature of the CS Act.

1. The Tribunal's role under s 34 of the SACAT Act is to determine if the decision the subject of review is a correct or preferable decision. Determining if a decision is correct entails being satisfied it is made in accordance with applicable legal principles, including relevant legislative requirements. Determining if the decision is preferable entails a consideration of the possible alternative decisions that may have been open to the decision-maker, and which best advances the purposes and policies of the CS Act.
2. In considering this application for review, I have before me the s 35 documents (Volumes 1 and 2), which comprises of the material the Department had before it when the decision the subject of review was made; written submissions on behalf of DGH and the CAU, including personal references, and oral submissions supporting these. I take all this material into account, as well as the Guidelines made pursuant to the CS Act.
3. The central issue before the Tribunal in determining if the CAU's decision was correct or preferable is whether DGH has established that the circumstances of the alleged offence (in relation to which he has been charged) are such that the offence should be disregarded (s 26A(1(c)(i)); or whether "exceptional circumstances" within the meaning of s 26A(1)(c)(ii) of the CS Act, apply in relation to him, such that the presumption that he poses an unacceptable risk to children can be reversed.
4. The primary object of the CS Act is to minimise the risk to children posed by persons who work with them, with the paramount consideration being to ensure the best interests of children, having regard to their safety and protection. The framework provided by the CS Act to achieve this is to prohibit persons from working with children who pose an "unacceptable risk".
5. The Tribunal has considered the meaning of "unacceptable risk" in previous matters, and in particular in GJC where it was determined that the requisite standard of satisfaction for the purpose of s 26(1) of the CS Act is a statutory standard of reasonable satisfaction that the person poses an unacceptable risk to children, namely 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. I am satisfied it is appropriate to apply that statutory standard of reasonable satisfaction in this case.
6. It is clear from GJC that the risk to children need only be slight as long as the consequences of the risk, if it eventuated, are serious, and this approach has been consistently applied by the Tribunal (see for example, BZY v Department of Human Services [2021] SACAT 1, and LVM).
7. Section 26A of the CS Act addresses the issue of "unacceptable risk", not by assessing the risk the applicant might pose taking into account "assessable information", but by providing that any person who has been "found guilty" of certain offences ("presumptive disqualification offences", defined in the Regulations) is presumed to pose an unacceptable risk to children and is to be prohibited from working with children, unless that person can satisfy that either the circumstances of the offence, or their personal circumstances, are such that the presumption that they pose an unacceptable risk to children is rebutted.
8. The reference to having been "found guilty" is explained further in s 26A(3) of the CS Act, providing that for the purposes of s 26A, a reference to a person who has been found guilty of a presumptive disqualification offence includes a reference to a person who has been charged with such an offence but where the offence has not yet been finally determined. DGH has been charged with a presumptive disqualification offence, which has not yet been finally determined.
9. The presumption, and accordingly (in the absence of rebuttal) the prohibition, is triggered by the charge alone, not by any other assessment of the applicant's circumstances. It is clear from s 26A of the CS Act, as well as from the general tenor of the legislation, that its purpose is protective of children. The concern of the legislation is not fairness toward the applicant but the protection of children, and I note that SM Rainford addressed this issue in LVM at 17, concluding that the purpose of the CS Act "is to prohibit from working with children, as a class, those who are charged with a prescribed offence or a presumptive disqualification offence ... even where there is no other evidence of risk to children. Parliament intended that this be the case no matter how draconian the circumstances might appear to a person in LVM's position." This is clear from s 26A(1)(b), which directs that the decision maker "need not consider or assess any further information in relation to an application for a working with children check made by that person".
10. Nevertheless, it is clear Parliament also permitted this presumption could be rebutted by the consideration of the particular circumstances of the offence, or by the establishment of "exceptional circumstances", in respect of the applicant him or herself.
11. What may amount to "exceptional circumstances" in respect of s 26A(1)(c)(ii) is discussed in both Ireland v Department of Human Services ([2020] SACAT 96) (Ireland), and in LVM, and in both these decisions the Tribunal referred to the consideration of this expression in R v Yavuz ((2018) 130 SASR 231) and R v Skinner ((2016) 126 SASR 120), and adopted the interpretation proposed in those cases and applied it to the use of the expression in the CS Act.
12. In R v Yavuz, the Supreme Court (at 258-9, per Kourakis CJ, Blue and Hinton JJ), contrasted an expression such as "exceptional circumstances" used in the Criminal Law (Sentencing Act) 1988, with an expression such as "good reason", or "in the interests of justice", in circumstances where there is a discretion to depart from a penalty or other order that might generally be made:

Special or exceptional circumstances are ... those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address ... .

13. In Ireland, I accepted that this meant it was necessary for the applicant to demonstrate circumstances "out of the ordinary course, unusual, special or uncommon". I also noted the comment by Doyle J in R v Skinner at 139, in confirming these definitions of "exceptional circumstances", that nevertheless the test for what amounts to exceptional circumstances must not be set so high that it becomes near impossible to satisfy. In Ireland I was satisfied the applicant had demonstrated such exceptional circumstances that, despite being found guilty of a presumptive disqualification offence, he had established that he no longer appeared to pose an unacceptable risk to children. In relation to the decision in Ireland, it is worth noting the applicant in that case had been convicted of the offence, which had not been in respect of a sexual matter, and had made significant changes in his lifestyle and circumstances.
14. I am satisfied these comments provide appropriate and useful guidance as to the understanding of what amounts to "exceptional circumstances" referred to as the criteria by which an applicant may rebut the presumption set up by s 26A of the CS Act. The circumstances required to be established must be "out of the ordinary, unusual, special or uncommon"; and such that they "so markedly change the nature of the particular case that it is no longer within the mischief that the legislature intended to address". At the same time, it is clear from s 26A(c)(i) and (ii) that the legislature intended that the presumption could be rebutted, and the bar must not be set so high that this aspect of the legislature's intention is frustrated.
15. On my reading of s 26A(1)(c)(i) and(ii) of the CS Act, the legislation presents alternative scenarios in which the presumption may be rebutted, and in relation to different considerations. In each case the onus is on the applicant to present the evidence to establish that there are "circumstances" relating to the offence, or "exceptional circumstances" relating to the applicant him or herself, such as to rebut the legislative presumption.
16. The first is set out in s 26A(1)(c)(i): "where the circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether the person poses an unacceptable risk to children_"_.
17. Mr Joyce referred the Tribunal in some detail to the circumstances of the presumptive disqualification offence. He acknowledged the seriousness of the charge, but submitted to the Tribunal that the circumstances were out of the usual, and submitted that even at their highest no risk was presented or suggested to children. He told the Tribunal the sexual encounter had been suggested by the complainant, who invited the applicant to his house for that purpose; the applicant and the complainant had engaged in a prior consensual sexual encounter; the parties agreed to engage in a sexual encounter; there was no professional relationship or connection between the parties; both parties were adults who had contacted each other through an adult only online site; the sexual encounter commenced and concluded with consensual sexual acts. The charge (as understood by the applicant), relates to an interim period where the complainant alleges the applicant was performing non-consensual sexual acts on him, but subsequently the activity again became consensual. Mr Joyce emphasised that the complainant was 28 years of age, not near to a child's age; it was agreed the meeting had been for the purpose of consensual sexual activity, which occurred; and there was no suggestion that DGH had acted in a predatory manner toward the complainant.
18. Mr Joyce submitted that these "circumstances of the ... offence" should be considered in the context of DGH's personal circumstances, not for the purposes of s 26A(1)(c)(ii), but to establish a "risk profile" in respect of DGH. He submitted that DGH's personal circumstances demonstrated no risk at all to children: he has held a WWCC since 2000; has worked with children since then, with no concerns or complaints, or disciplinary proceedings; has an exemplary work record; has a blemish free criminal history; and is highly respected by friends and colleagues.
19. Ms Hedger submitted that the charge against DGH disclosed no circumstances suggesting it should be disregarded in terms of unacceptable risk to children. She told the Tribunal the charge related to an "ordinary" rape of an adult, a serious charge, and one specifically selected by the legislature as an offence presumed to expose children to unacceptable risk should a person "found guilty" of such an offence be permitted to work with children.
20. Ms Hedger referred the Tribunal to the Guidelines which suggest that relevant circumstances may include circumstances where the offence has arisen from domestic violence, self-defence in relation to an unprovoked attack, or where the person was acting under duress. None of these, or similar, considerations are present in this matter.
21. The alternative means of rebutting the presumption in s 26A(1)(c)(ii) directs the decision-maker to consider whether the circumstances associated with the applicant are "exceptional", such that the person is not considered to pose an unacceptable risk to children: those circumstances must be so out of the ordinary, unusual, special or uncommon that they "so markedly change the nature of the particular case that it is no longer within the mischief that the legislature intended to address". The Guidelines suggest such circumstances might include circumstances such as an establishment of insight by the applicant, for example through the undertaking of a relevant treatment, rehabilitation, or behaviour management program.
22. I am satisfied that DGH is not able to present evidence of "exceptional circumstances" as required by s 26A(1)(c)(ii) of the CS Act. I accept the submissions and evidence presented to the Tribunal concerning DGH's personal circumstances, in particular the material relating to his blemish free criminal record, his exemplary work record, the high esteem of his colleagues and friends, the lack of any complaints made against him in respect of his treatment of children. The respondent did not challenge this evidence and I accept it. However, in my view that is not sufficient to address the requirement of "exceptional circumstances" required by s 26A(1)(c)(ii) of the CS Act.
23. I accept the respondent's submission in this respect that there is nothing exceptional in having an unblemished personal and work record, with no complaints about dealing with children, and being held in high personal and professional esteem, coupled with a denial of the offence as charged. Not all persons charged with an offence (including a presumptive disqualification offence) will have such a record, but that does not make it exceptional. I note that in both HNU and LVM the applicant presented similar circumstances, and in both cases the Tribunal held that exceptional circumstances were not established by those circumstances. In Ireland the applicant did demonstrate exceptional circumstances, but in that case he had been convicted of the offence and had subsequently significantly changed his circumstances, demonstrating a development of insight and rehabilitation which changed his risk profile and was, in the Tribunal's view, sufficient to rebut the statutory presumption.
24. I accept that as the charge against DGH has not been determined he is not able to demonstrate change in his personal circumstances in order to rebut the presumption. However, in my view this is consistent with the expressed legislative intention, taking into account the broad protective objects of the CS Act.
25. I refer back however to the consideration of the issues raised by s 26A(1)(c)(i) of the CS Act, which addresses the possibility of a rebuttal of the presumption by considering if there is sufficient evidence in the circumstances of the alleged (or proven) offence by which the presumption may be rebutted. The Guidelines suggest relevant circumstances may include consideration of whether the circumstances of the alleged offence may have been driven by matters not within the control of the applicant, such as a response to domestic violence, an unprovoked attack, or performed under duress. None of these considerations apply in the circumstances of this matter, but the Guidelines make it clear that factors to be considered in this context are not limited to such matters ("may include but are not limited to_"_).
26. Section 26A(1)(c)(i) does not use the expression "exceptional circumstances" used in s 26A(1)(c)(ii). The expression used is whether the "circumstances of the presumptive disqualification offence are such that the offence should be disregarded_"_ for the purpose of s 26A. Since the subsection uses a different expression, it should be assumed that a different consideration is being referred to. Accordingly, it is not appropriate to apply the considerations relevant to "exceptional circumstances" in s 26A(1)(c)(ii) to the term "circumstances of the ... offence" in s 26A(1)(c)(i): these circumstances need not be "exceptional", merely sufficient to establish that, despite the presumptive disqualification offence, the applicant does not pose an unacceptable risk to children. The factors to take into account are those particular to the offence.
27. Mr Joyce outlined the "circumstances of the offence". He said the parties were known to each other, having had a consensual sexual engagement at an earlier time. The arrangement between the parties was initiated by the complainant, and it was agreed the parties would go to the complainant's house and have sex. The allegation is that DGH did go to the complainant's house, they engaged in some consensual sexual activity, and then the complainant objected to some of DGH's activity, telling him "no, don't do that" and pushing his hand away. It is alleged DGH had persisted or repeated this activity and the complainant again objected and made it clear he was not agreeing to that activity. The complainant directed DGH to the sexual activity they had agreed, and the activity continued apparently on a consensual basis. Mr Joyce described this sexual encounter as unusual and "messy". In addition, Mr Joyce submitted that there was no suggestion that DGH had acted in a predatory manner toward the complainant, or had abused his position or trust associated with his employment, and both participants were adults, with the complainant aged about 28 at the time. Mr Joyce contrasted the circumstances of the alleged offence, being in the context of a private, prearranged, consensual intimate encounter in the complainant's home, with one where the sexual conduct may have occurred in a professional setting where a sexual relationship would be wholly inappropriate and give rise to concerns about a misuse or abuse of power, and ambiguity concerning consent, and where a child might be exposed to some risk. These considerations are absent in the circumstances of this offence.
28. Mr Joyce told the Tribunal the charge against DGH had originally been "engage in sexual intercourse after consent withdrawn_"_, and the circumstances of that charge are outlined in the Book of Documents. Mr Joyce said the charge had recently been amended but the facts supporting the amended charge had not been made available to DGH.
29. Ms Hedger in her submissions submitted the circumstances of the offence disclosed that it was an "ordinary" charge of rape, and that there was nothing disclosed in the circumstances of the alleged offence which suggested that it should be disregarded in determining if DGH posed an unacceptable risk to children, in circumstances where the legislature had determined that it was to be presumed that a person charged with the rape of an adult was presumed to present an unacceptable risk to children.
30. Section 26A(1)(c)(i) directs consideration of the circumstances of the offence for the purpose of rebutting the presumption that the mere existence of the offence (or charge of the offence, as in this case) means the person is determined to pose an unacceptable risk to children. The submission in this matter is that the circumstances of the alleged offence are such that they suggest no risk to children: the circumstances of the alleged offence (which are denied by the applicant) entirely arise in the context of adult interaction, where there is no predatory conduct, no conduct in relation to children or young people, and the conduct was initiated and (at least initially) engaged in on a consensual basis.
31. Mr Joyce also submitted that DGH's "risk profile" is relevant to the consideration pursuant to s 26A(1)(c)(i). This includes his lack of prior criminal history or misconduct, and the confidence of his peers and colleagues.
32. It is clear that if the circumstances of the alleged offence were disregarded the conclusion would be that DGH does not pose an unacceptable risk to children. He has held a WWCC since 2000, with no complaints or incidents. In GJC the Tribunal considered that a possibility of future harm to children, where the potential consequences to children would be serious if the perceived risk eventuated, is the appropriate approach to determining if a person poses an unacceptable risk to children, and the Tribunal has consistently applied that understanding, and I do so here.
33. Do the circumstances of the alleged offence in this matter suggest a possibility of future harm to children, where the potential consequences to children would be serious if the perceived risk eventuated? It is clear from GJC that the risk to children need only be slight as long as the consequences of the risk, if they eventuated, are serious.
34. There is nothing in DGH's history or the circumstances of the charge against him to suggest he poses a risk to children: he has been engaged in the treatment of children since 2000 with no issues raised. More particularly, the evidence before the Tribunal concerning the circumstances of the offence (denied by DGH) are that DGH and another adult met, on the initiation of the other person, to engage in consensual sexual activity, in that person's home (that is, where there is no suggestion of predatory behaviour by DGH in initiating the meeting or sexual relationship, and unassociated with a professional environment where imbalance of power and status may have made the circumstances more ambiguous). The allegation of the offence is that the originally consensual activity became non-consensual, and accordingly the circumstances of the offence occurred.
35. I am satisfied that there is nothing in the circumstances of this alleged offence which suggests that DGH poses an unacceptable risk to children. There is nothing in the circumstances of the alleged offence relevant to any risk to children, or likely or possible conduct in relation to children.
36. On this basis I am satisfied that the decision under review is not the preferable decision in this matter. I am satisfied that the circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether DGH poses an unacceptable risk to children.
37. I am satisfied on the basis of these considerations that the presumptive disqualification offence should be disregarded in determining whether DGH poses an unacceptable risk to children.
38. Prior to the notification of the charge to the CAU DGH had been issued a WWCC, and it appears that the presumptive disqualification offence is the only matter taken into account in issuing the Prohibition Notice in relation to DGH on 27 July 2023.
39. I am satisfied the decision of the CAU in issuing the Prohibition Notice should be set aside, and a WWCC for DGH should be reinstated.

1. The decision subject to review is set aside.
2. Pursuant to s 60(2)(g) of the SACAT Act, the disclosure and publication of the contents of the s 35 Book of Documents filed with the Tribunal on 28 August 2023, and any other evidence given before the Tribunal or filed with the Tribunal in this matter, is prohibited in relation to any person other than the parties, save that the parties are able to disclose such evidence to any legal practitioner engaged or representing the party.
3. Pursuant to s 60(2)(f) of the SACAT Act, the identity of the applicant in this matter is to be anonymised in the publication of the Tribunal's reasons in this matter, unless and until underlying criminal proceedings are finalised.