C. The respondent decided to give consideration as to whether to revoke the applicant's prohibition notice

1. Following his application for a working with children check on 5 May 2022, the respondent sent the applicant an email dated 11 May 2022 advising him that he may apply for revocation of the 20 March 2020 prohibition.[5] He did not do so. The respondent's email also indicated that the applicant's working with children check application would continue to be considered. However, the respondent "took the application as an application pursuant to s 33(1) for revocation". It is consistent with the affidavit evidence that it did so because it acknowledged that the applicant had not made a submission in relation to the original decision to issue the prohibition notice, giving rise to the possibility that upon considering such a submission the CAU might conclude that the notice should be revoked.[6]
2. Accordingly, on 5 July 2022, the respondent wrote to the applicant inviting him to make a submission in relation to his assessable criminal history. That history consisted of charges of two counts of the offence of engaging in sexual intercourse with a person without consent, which were discontinued on 15 December 2020. Notably, the date of discontinuance occurred later than the issuing of the original prohibition notice. The applicant provided a lengthy written account of his version of the events that gave rise to those charges, and correspondence between his lawyers and prosecutors concerning the charges.[7]
3. The respondent did not advise the applicant that it was considering revocation. His evidence is that he thought that his submission related to his application for a working with children check.
4. The CAU assessed his submission against criteria for revocation in s 33 of the CS(PP) Act. Section 33 provides:

33 - Revocation of prohibition notice > > (1) The central assessment unit may, on the application of the prohibited person to whom a prohibition notice relates or on its own motion, revoke a prohibition notice if -

(a) the only grounds on which the person is a prohibited person is the issue of the prohibition notice; and

(b) if the revocation is on the application of the prohibited person - the prohibited person satisfies the central assessment unit that -

(i) the prohibition notice was issued in error; or

(ii) there is fresh and compelling assessable information that, if assessed in the course of the original working with children check, would have materially affected the determination under section 26(5) to prohibit the person from working with children; and

(c) the central assessment unit conducts a further working with children check in relation to the prohibited person, and determines that the person is not to be prohibited from working with children.

(2) An application under this section -

(a) must be made in a manner and form determined by the central assessment unit; and

(b) must be accompanied by such information or documents as the central assessment unit may reasonably require; and

(c) must be accompanied by the prescribed fee.

(3) The central assessment unit may refuse to consider an application under this section if the central assessment unit has previously considered an application for revocation of the prohibition notice within the preceding 5 years.

1. The CAU found that the applicant met the requirements of s 33(1)(a) and (b)(ii). It found that there was fresh and compelling assessable information that, if it had been assessed in the course of the original working with children check, would have materially affected the decision to prohibit the person from working with children.[8] Neither party has raised any issue with the conclusion that s 33(1)(a) and (b)(ii) are met and this decision considers it no further.
2. Consideration of revocation also requires, at s 33(1)(c), the CAU to conduct a further working with children check. Counsel for the CAU submitted that the check conducted under s 33(1)(c) is the same as one conducted under s 26.[9] Counsel for the CAU contends that after that check was performed under s 33(1)(c), a determination was reached that the prohibition notice should not be revoked. This led to the issuing of the decision that is the subject of this review, being the document headed "Refusal to revoke prohibition notice" dated 16 December 2022.
3. The CAU appears to have viewed its task under s 33(1)(c) as one that required it to undertake a process that is the same as, but separate from, the process under s 26, and concluding at the point of reaching a determination as to whether the revocation should occur. However, the better view is that s 33(1)(c) directs the CAU back to the process under s 26. In other words, the process under s 33(1)(c) is not the same as the process in s 26; it is the process under s 26.
4. The CAU's error in this regard appears to have led it to the creation of a decision not contemplated by the Act: the decision to refuse to revoke a prohibition notice. There is no textual support for such a decision in circumstances in which there has been a substantive decision that the prohibition in force is sound. The functions of the CAU include "to issue and revoke prohibition notices"[10] but the only refusal contemplated under s 33 is a refusal, under s 33(3), to consider the application at all because five years has not elapsed since the last application.
5. It is the Tribunal's conclusion that the CAU has erroneously assumed that s 33 creates a separate process by which it undertakes a working with children check for the purposes of considering revocation of an existing prohibition notice and if it is satisfied that the prohibition notice should not be revoked, it issues a refusal notice.
6. The construction that is more harmonious with the text of s 33 and the Act as a whole, and creates a coherent regime, is that where, as in this case, the CAU is considering revocation and finds that the circumstances in s 33(1)(a), (b) and (c) are met, it must, if it then concludes that the person is prohibited, issue a prohibition notice. It does so because the reference to conducting a working with children check in s 33(1)(c) is a reference to the process in s 26(5). The conducting of that process requires, upon a determination that the person poses a risk to children, the issuing of a prohibition notice under s 32.

1. Accordingly, the notice of 16 December 2022 which is headed "Refusal to revoke prohibition notice" contains a purported decision that is not contemplated by the Act - a refusal to revoke on grounds other than those described in s 33(3). The notice evaluates the information that the applicant provided in answer to the invitation for a submission, and concluded:

"Having considered the allegations against you and the matters in your favour, the Central Assessment Unit has determined that your(sic) pose an unacceptable risk to children. > > As a result, your Prohibition Notice has not been revoked and you remain prohibited from working with children." > > (emphasis in original).

2. The notice provides an ambiguous right of review. It says that the applicant can "seek a review of the original decision to issue you with a Prohibition Notice" with SACAT which may be made "within 14 days after you receive this prohibition notice (or such longer period as the Tribunal may allow)".
3. These words lend some support to the applicant's contention that the notice under review is properly characterised as a prohibition notice, albeit wrongly named as a notice to refuse to revoke. However, the document as a whole does not convey a decision to prohibit and it does not make any reference to s 32 which is the only provision under which the issuing of a prohibition notice occurs. The better characterisation of the document is that it is a purported decision to refuse to revoke that is not recognised under the Act.

E. The question of whether the decision of 16 December 2022 is reviewable falls away

1. The parties directed some attention to the question of whether a decision to refuse to revoke is a reviewable decision. Section 43 of the CS(PP) Act provides:

43 - Review of decisions by South Australian Civil and Administrative Tribunal > > (1) The South Australian Civil and Administrative Tribunal is, by force of this section, conferred with jurisdiction to deal with matters consisting of the review of a reviewable decision. > > (2) An application for review of a reviewable decision may be made to the South Australian Civil and Administrative Tribunal within 14 days after the applicant receives notice of the relevant decision (or such longer period as the Tribunal may allow). > > (3) However, the South Australian Civil and Administrative Tribunal may only allow an extension of time under subsection (2) if satisfied that - > > (a) special circumstances exist; and

(b) another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings.

(4) In this section -

reviewable decision - the following are reviewable decisions:

(a) a decision of the central assessment unit to issue or revoke a prohibition notice;

(b) any other decision under this Act of a kind declared by the regulations to be included in the ambit of this definition.

1. The parties in this matter, and in at least one other recent matter before the Tribunal, have carefully considered whether a proper construction of s 43 leads to the conclusion that a decision to refuse to revoke a prohibition notice is a reviewable decision.
2. In light of the reasoning in this decision, that question does not require an answer because there is no decision to refuse to revoke a prohibition notice contemplated by the Act. However, consideration of the issue lends further support to the conclusion that there is no such decision.
3. On a plain reading of s 43, no right to review a refusal to revoke arises. The class of reviewable decisions includes only decisions to issue prohibition notices, and decisions to revoke them. The parties considered whether the right to review a decision to revoke might be understood to encompass a right to review a decision to refuse to revoke. The Tribunal in SLD v Department of Human Services[11] decided that it did not, and neither party in these proceedings pressed for an interpretation that it did.
4. That lack of a right of review is consistent with the Act not contemplating a decision to refuse to revoke, or at least not contemplating that such a decision is the outcome of the function of considering revocation. If there were a decision to refuse to revoke, it is difficult to explain, in a policy sense, why there is a right to review a prohibition notice but no right to review a refusal to revoke a prohibition notice.
5. This adds support to the conclusion that the legal consequence of the CAU's process of considering revocation must be an act of revocation, or the issuing of a fresh prohibition notice.

Consequences of this analysis for the application to dismiss the proceedings

1. The CAU's application to dismiss the proceedings on the grounds that the challenged decision is not reviewable must be refused.

1. Because of the conclusions that the decision dated 16 December 2022 is not contemplated by the Act and that the CAU has not undertaken the process contemplated where revocation is considered, it is necessary for further orders to be made.
2. There are two avenues available to the Tribunal to send a matter back to a decision-maker for further consideration.
3. Section 37(1)(c) of the SACAT Act provides that on a review, the Tribunal may set aside the decision being reviewed and substitute its own decision or send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate. This provision is appropriate where the original decision must, by virtue of error, be set aside as a first step.
4. Section 38 empowers the Tribunal at any stage of proceedings to invite the decision-maker to review the decision. It may be observed that s 38 is not available where the Tribunal considers that the original decision cannot stand. This is because the proceedings to review the decision remain on foot.
5. In these proceedings, I consider that the appropriate order to make is to set aside the purported decision under s 37(1)(c). For completeness, the fact that the decision is not a decision contemplated by the Act is no barrier to the Tribunal's jurisdiction.[12]
6. Upon setting aside the decision, I do not consider that it is appropriate for the Tribunal to make a substituted decision. The merits of the question of whether the applicant should be prohibited from working with children have not been argued before the Tribunal. Rather, it is appropriate to send "the matter" back to the decision-maker for reconsideration. The matter, in this case, is the applicant's application for a working with children check. Given what has been discussed above, it is appropriate that the CAU consider, as part of its consideration of that application, revocation of the prohibition notice it issued to the applicant on 20 March 2020.
7. I will direct that the CAU consider revocation in accordance with the construction of the Act that I have set out above. This entails the conduct of a working with children check and a determination under s 26(5) as to whether the applicant is, or is not, to be prohibited from working with children. If the CAU concludes that he is to be prohibited from working with children, the CAU must, in accordance with s 32, issue a prohibition notice. If that were to occur, the applicant would have a right of review of that decision, in accordance with s 43 of the CS(PP) Act and ss 34 and 37(2) of the SACAT Act.

Alternative application to extend time to review the original prohibition notice

1. The applicant contended that if the respondent's decision of 16 December 2022 were found not to be reviewable, I should treat his application for review as an out of time review of the original decision of 20 March 2020, and that I should extend the time within which he is allowed to bring that review.
2. Because of the approach adopted in these reasons, it is not necessary to determine that application. However, the Tribunal observes that the time-frame within which an applicant may challenge a prohibition notice is set out in s 43. A person must bring a review within 14 days of receipt of the notice. However, the Tribunal may extend that time if special circumstances exist and where another party will not be unreasonably disadvantaged because of the delay.
3. The creation of a short time frame for the bringing of a review, and the imposition of limits on the usual discretion to extend time, lend further support for the view that the scheme of the Act is to require a subsequent reviewable decision to be made when revocation is refused. The applicant's circumstances of a presumptive disqualifying offence that is subsequently withdrawn, or in respect of which the applicant is acquitted, are quite foreseeable circumstances following which a revocation application will be made well beyond 14 days after the notice is issued. It seems unlikely that the legislature intended that the route to be adopted by an applicant is to seek to persuade the Tribunal to extend time to review the original decision.

1. The Tribunal makes the following orders:
   1. The application to dismiss the proceedings is refused.
   2. The decision under review being the notice issued on 16 December 2022 is set aside.
   3. The applicant's application for a working with children check is referred back to the respondent for reconsideration.
   4. The respondent is to determine the application in accordance with the construction of the Child Safety (Prohibited Persons) Act 2016 described in this decision. In particular, the respondent is to conduct the working with children check under s 26(5) and if it determines that the applicant is to be prohibited from working with children it must issue him with a prohibition notice pursuant to s 32 of the Act.

[1] Affidavit of Ms Connell affirmed 10 January 2023, exhibits 2 and 3.

[2] Affidavit of Ms Connell affirmed 10 January 2023, exhibit 4.

[3] The respondent's affidavit evidence (affidavit of Ms Connell affirmed 10 January 2023) asserted that the applicant applied for revocation, but there is no evidence to support this.

[4] Section 5.

[5] Affidavit of Ms Connell affirmed 6 March 2023, exhibit 13.

[6] Affidavit of Ms Connell affirmed 10 January 2023, paragraph 5.

[7] Affidavit of Ms Connell affirmed 10 January 2023, exhibit 6.

[8] Affidavit of Ms Connell affirmed 10 January 2023, exhibit 7, page 2.

[9] Respondent's further written submissions dated 6 March 2023, page 5.

[10] Section 21(1)(b).

[11] Unreported, 16 December 2022 (2022/SA003073).

[12] Brian Lawler Automotive Pty Ltd v The Collector of Customs, New South Wales [1978] AATA 49; Robusto Investments Pty Ltd v Essential Services Commission of South Australia [2023] SACAT 2.