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 - Presumptive disqualification offence - Consideration of convictions

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

Child Safety (Prohibited Persons) Act 2016 ss 12, 26, 26A, 43

Controlled Substances Act 1984 s 32

Child Safety (Prohibited Persons) Regulations 2019 reg 15A

Ireland v Department of Human Services [2020] SACAT 96

Mead v Department of Human Services [2019] SACAT 79

Mr J Homburg, Gilchrist Connell, appeared 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. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

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

1. This is an application made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) and s 43 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act) for review of a decision of the central assessment unit made on 6 February 2023. The task of the Tribunal pursuant to s 34 of the SACAT Act is to conduct a rehearing having regard and giving appropriate weight to the original decision.
2. By notice issued on 6 February 2023 headed Prohibition Notice, the Deputy Registrar of the central assessment unit informed the applicant that the central assessment unit had conducted a working with children check on him in accordance with the CSPP Act. It was decided that he had not rebutted the presumption that he poses an unacceptable risk to children due to having been found guilty of a presumptive disqualification offence and that he is prohibited from engaging in child-related work.
3. Working with children checks are conducted pursuant to Part 5 of the CSPP Act. The provisions which 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 are set out in s 26A(1) of the CSPP Act and are:

(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.

1. It appears that the applicant, FHN, applied for a working with children check on 31 May 2022. I say it 'appears' because that is the date attributed by the respondent to his online application, but I note the applicant's oral submission that he has been seeking since 2016 a determination that he is not prohibited from working with children. The actual date of his application is not however of significance.

The process followed by the central assessment unit

1. The central assessment unit sent the applicant two documents dated 26 September 2022. The first was a '26A Notice' informing him that his application was being considered in the light of a presumptive disqualification offence pursuant to s 26A of the CSPP Act. The second was a 'Regulation 10 Notice' alerting the applicant to other assessable information that the central assessment unit held about him.
2. When a presumptive disqualification offence exists under s 26A, there is a presumption that the person poses an unacceptable risk to children: s 26A(1)(a) of the CSPP Act. The central assessment unit need not then consider any further information in relation to the application for a working with children check: s 26A(1)(b).
3. The presumption that exists under s 26A(1)(a) may however in some instances be rebutted. An applicant may be given the opportunity to satisfy the central assessment unit of either of the matters set out in s 26A(1)(c)(i) and (ii). If the applicant successfully so satisfies the central assessment unit it may, pursuant to s 26(5), determine that the applicant is not prohibited from working with children.
4. The applicant was given the opportunity to rebut the presumption that exists under s 26A(1)(a), by virtue of having been sent the 26A Notice. He responded to it via his solicitors on 25 November 2022, in the form of a seven-page letter with 21 attachments (page 169 of the Book of Documents). His solicitors' response also canvassed the issues raised by the Regulation 10 Notice. In other words, there was one response that responded to both notices that the applicant had been sent.
5. The prohibition notice issued on 6 February 2023 makes it clear that the applicant did not successfully satisfy the central assessment unit of either of the matters set out in s 26A(1)(c)(i) and (ii). He therefore did not succeed in rebutting the presumption that exists pursuant to s 26A(1)(a) that he poses an unacceptable risk to children.
6. Solely following the Working with Children Check (WWCC) Guidelines (the Guidelines), the matter arguably ought to have rested there, with the effect of the applicant's 2010 conviction for "traffic (type unknown) in a controlled drug" being that he poses an unacceptable risk to children and is therefore prohibited from working with children.
7. The Guidelines provide on page 7 (emphasis added):

Where a presumptive disqualification offence, as defined in section 26A of the Act, is identified, the central assessment unit will assess:

• information provided by the person regarding the circumstances of the presumptive disqualification offence to determine whether the offence may be disregarded in determining whether the person poses an unacceptable risk to children; and/ or
• whether information provided by the person demonstrates the existence of exceptional circumstances that may be capable of satisfying the central assessment unit that the person does not appear, or no longer appears, to pose an unacceptable risk to children.

If either of the above are satisfied, the central assessment unit will proceed to identify and assess any other assessable information against the prescribed risk assessment criteria to determine whether or not the person poses an unacceptable risk to children ...

1. Page 14 of the Guidelines sets the information out in different language (original emphasis):

If a person with a presumptive disqualifying offence does not satisfy the central assessment unit that:

• 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
• 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,

the central assessment unit must determine the person poses an unacceptable risk to children and should be prohibited from working with them. The central assessment unit is not required to consider or assess any further information in relation to an application for a working with children check made by that person. > > If a person with a presumptive disqualification offence provides information capable of demonstrating either that:

• 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
• 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, the central assessment unit may assess other assessable information in relation to that person.

1. I note that page 7 and page 14 of the Guidelines are potentially inconsistent about what the central assessment unit needs to be satisfied of before proceeding to assess other assessable information beyond the presumptive disqualification offence.
2. The prohibition notice of 6 February 2023 makes it clear that neither of the criteria in s 26A(1)(c)(i) and (ii) were satisfied by the applicant's solicitors' response dated 25 November 2022 in respect of the presumptive disqualification offence. In relation to the offence of "traffic (type unknown) in a controlled drug" he failed to satisfy the central assessment unit that the circumstances of that offence are such that the offence should be disregarded in determining whether he poses an unacceptable risk to children. He further failed to satisfy the central assessment unit, in relation to the offence of "traffic (type unknown) in a controlled drug", that such exceptional circumstances exist in relation to him that he does not appear, or no longer appears, to pose an unacceptable risk to children.
3. Because neither of the criteria in s 26A(1)(c)(i) and (ii) were satisfied, if the Guidelines on page 7 had been followed (the prerequisite on page 7 being that 'either of the above are satisfied') the central assessment unit would not then have proceeded to assess any other assessable information in relation to the applicant. The assessable information of particular concern to the applicant, both in his solicitors' response of 25 November 2022 and at the hearing in the Tribunal, relates to charges of indecent assault against children that were laid against him in 2000 and 2012 and which were not proceeded with. The applicant provided an extensive amount of evidence by which he sought to establish that the allegations which led to those charges were false and were made against him for an ulterior purpose. I do not propose to canvass those allegations or the evidence about them submitted by the applicant because in my view it is unnecessary to do so. Those allegations are not relevant to the presumptive disqualification offence as a result of which the applicant is presumed to pose an unacceptable risk to children. The applicant is presumed to pose an unacceptable risk to children because in 2010 he pleaded guilty to and was convicted of the offence of "traffic (type unknown) in a controlled drug" and he has not rebutted the statutory presumption that, because of that offence, he poses an unacceptable risk to children. Further reasons for this conclusion are given below.
4. The prohibition notice of 6 February 2023 is not invalidated even if the central assessment unit proceeded contrary to the Guidelines to assess other assessable information in respect of the applicant including the allegations of indecent assault. This is because of s 26(4) of the CSPP Act which reads:

(4) A working with children check must be conducted in accordance with any other requirements set out in the regulations and the guidelines (however, a failure to comply with this subsection does not, of itself, invalidate a working with children check).

1. The presumptive disqualification offence of which the applicant was convicted was "traffic (type unknown) in a controlled drug". The Certificate of Record of the Port Augusta Magistrates Court at page 254 of the Book of Documents (Annexure T to the letter from the applicant's solicitors to the central assessment unit dated 25 November 2022) indicates under 'details of offences' that this is an offence under the Controlled Substances Act 1984. I have looked at the Controlled Substances Act both as it was as at 26 May 2010 and today and I am satisfied that 'trafficking', now renamed 'trafficking in a controlled drug', was and is an offence pursuant to s 32 of the Controlled Substances Act. I am further satisfied that an offence pursuant to s 32 of the Controlled Substances Act is a presumptive disqualification offence pursuant to reg 15A(g)(i) of the Child Safety (Prohibited Persons) Regulations 2019.
2. The Certificate of Record of the Port Augusta Magistrates Court, printed on 17 June 2022 (page 147 of the Book of Documents, and a differently formatted certificate from that which appears at page 254 of the Book of Documents), shows that on 3 November 2010 a person, who I am satisfied is the applicant, pleaded guilty to the offence of "traffic (type unknown) in a controlled drug". He was sentenced to six weeks imprisonment, which was suspended on entry into a 12-month $50 good behaviour bond. An order was made for "forfeiture of cannabis seized" from which I can infer that the relevant controlled drug was cannabis. The date of the offence is not clear from the Certificates of Record but there is a Police Apprehension Report, run date 20 June 2022 (page 128 of the Book of Documents), which does not mention the accused's name but indicates the offence occurred on 26 May 2010 at 11.00 pm on the Stuart Highway 45 km north of Coober Pedy when 1.3 kg in all of cannabis was located in the accused's vehicle in a garbage bag and plastic tub. The applicant gave oral evidence about the circumstances of the offence which I am satisfied are largely consistent with the contents of this Police Apprehension Report and I am therefore satisfied that the accused referred to in that document is the applicant.
3. The applicant gave evidence that at the time of the offence he was 'drug dependent'. At one point in his evidence he said the cannabis was for personal use but he later said it was 'for me and my friend'. He said he had found it 'by the road' at a time when he was 'in the desert on his own' at a time when he was on WorkCover for a shoulder injury for which he was taking medication (which I infer was intended to mean prescription medication) and that he had no housing, 'no pay' and no family support. It is not clear to me how the applicant would have 'no pay' if he was 'on WorkCover'.
4. At the hearing the applicant submitted several documents including a bundle of medical progress notes which appear to be notes of the general practitioner, Dr Nasreen Wilson. On 1 March 2010 it appears the applicant attended on her with a complaint of right shoulder pain, recorded as a worker's compensation claim, for which he was initially treated with a cortisone injection and later, from 4 May 2010, with Panadeine Forte and then from 12 July 2010 with OxyContin. A further note on 5 August 2010 records that the applicant had been using marijuana "6/12" and amphetamines but he had been "off these 40 days" and was seeing Narcotics Anonymous and suffered from alcohol dependence. The general picture painted by Dr Wilson's notes of the applicant in 2010 is consistent with the applicant's own oral evidence that at that time he was using drugs.

1. I am not satisfied that the applicant's account of the circumstances of the presumptive disqualification offence establishes pursuant to s 26A(1)(c)(i) that the circumstances of that offence are such that the offence should be disregarded in determining whether he poses an unacceptable risk to children. 1.3 kg of cannabis is a large amount even despite the applicant's assertion that most of it was 'leaf and stems'. His assertion that he 'found' the cannabis 'by the road' is in my view implausible and not exculpatory. The fact that he was by his own admission in the midst of a drug dependency at the time of the offending is not exculpatory either and does not lead me to consider that the offence should be disregarded. The overall picture of the circumstances of the presumptive disqualification offence, from the applicant's evidence and the contemporaneous medical notes, is not a picture of a person who did not pose an unacceptable risk to children.

1. I am not satisfied that exceptional circumstances exist such that the applicant does not appear, or no longer appears, to pose an unacceptable risk to children.
2. The applicant said he has not used marijuana since 2014.
3. The material submitted by the applicant included many documents, including character references, that predate the presumptive disqualification offence. They are of no assistance to me in considering the matters set out in s 26A(1)(c)(i) and (ii) of the CSPP Act.
4. The applicant submitted several other character references of more recent dates in 2022 and 2023, including one from a general practitioner who states that she has treated him since 2019. None of these recently dated character references attests that the author is aware of the applicant's drug conviction in 2010, of his own admission that he was drug dependent at that time, or of his use of marijuana until 2014. Accordingly, none of these character references provides any independent evidence at all to support the applicant's assertion that he ceased using marijuana in 2014.
5. Also before me is evidence that the applicant has a lengthy criminal record from 1984-2014 (page 120 of the Book of Documents). His criminal record includes more than one drug offence (as well as the presumptive disqualification offence), more than one firearms offence, more than one dishonesty offence, various behavioural offences including an assault conviction, and an extensive number of motor vehicle and driving offences to the point where the number of those offences alone suggests a flagrant disregard for the law or at the very least for road traffic laws.
6. Despite the large amount of material submitted to the Tribunal by both the applicant and the respondent, I have not been able to identify any independent verification of the applicant's assertion that he has not used marijuana since 2014. I note that the Guidelines on page 14 provide that "independent evidence must exist which verifies the exceptional or other circumstances, either provided by the applicant or identified by the central assessment unit. The word of the person the subject of the application is not sufficient".
7. While that does not bind the Tribunal, in a situation where there is a lengthy criminal record spanning 30 years, I am not satisfied that I should accept the applicant's word on its own in assessing whether exceptional circumstances exist such that he does not appear, or no longer appears, to pose an unacceptable risk to children.
8. The applicant has not produced any evidence of completing a voluntary supervised intervention program to recover from his self-described drug dependence, such as is mentioned on page 13 of the Guidelines as possible evidence with which to establish that exceptional circumstances exist. Nor does the reference from his general practitioner indicate any recovery from or knowledge of his self-described previous drug addiction. The reference from the police officer likewise does not refer to any of the previous lengthy history of offending. Without independent evidence to positively demonstrate a change from his previous behaviours I am not satisfied that the applicant is no longer a risk to children.

1. At the hearing, the applicant submitted that under the regime of the CSPP Act a person cannot ever "change" or recover from a troubled past to obtain clearance to work with children. I do not accept that submission. The onus is however on him to establish if either of the criteria of s 26A(1)(c)(i) or (ii) is satisfied and thus that he is no longer a risk to children despite the presumptive disqualification offence. Without independent evidence which adverts expressly to both his prior and current conduct and which positively attests that he no longer engages in the types of drug offending, firearms offending and other offending that previously brought him into the frequent difficulties with the law shown on his criminal record, I am not satisfied that he has demonstrated that he is no longer a risk to children. I have reached this view without needing to take the contested allegations of indecent assault into account.
2. The length of the criminal history in this matter is a basis to distinguish the previous Tribunal decision of Ireland v Department of Human Services [2020] SACAT 96, relied on by the applicant. That was a matter where it appears there was only one offence, being the presumptive disqualification offence, and the Tribunal was prepared to accept the word of the applicant that he was no longer a risk to children without any additional independent supporting evidence being referred to in the decision. Mead v Department of Human Services [2019] SACAT 79 was also relied on by the applicant. In that matter the respondent effectively agreed that the decision should be set aside based on new information produced to it, a situation which does not pertain to this matter.
3. The applicant submitted that the conviction for the presumptive disqualification offence is 'spent'. Pursuant to s 12(2) of the CSPP Act, it does not matter if a conviction is 'spent' because, even if it is, that does not affect the status of the offence as a presumptive disqualification offence within the meaning of s 26A for the purposes of the CSPP Act or the ability for the offence to be taken into account in a working with children check.
4. The applicant made various submissions about the effect on him of the prohibition notice, including on his ability to gain employment. I am satisfied that the effect on the applicant is not a relevant consideration, pursuant to the guidelines. Guideline 8 (page 18) provides that the impact of a prohibited outcome on the person is not a relevant consideration in assessing whether the person poses an unacceptable risk to children.
5. Confidentiality orders were made by the Tribunal on 14 March 2023. The respondent filed a further application for confidentiality orders on 15 June 2023 in substantially similar terms to one of the orders already made. No submissions were put by either party about why the existing confidentiality orders ought to be varied. I am not satisfied that they should be varied. I will leave the confidentiality orders made on 14 March 2023 in effect.
6. I consider that the decision made on 6 February 2023 is the correct and preferable decision and that it should be affirmed.

1. The Tribunal affirms the decision under review.