• As the applicant has been charged with offences that fall within the definition of a "prescribed offence" as opposed to a "presumptive disqualification offence", s 26A(1)(c)(i) of the CSPP Act does not apply.
• The applicant's unblemished criminal history and the duration of time that he previously held a working with children check do not amount to exceptional circumstances such that he does not appear, or no longer appears, to pose an unacceptable risk to children.
• The historical nature of the allegations behind the charges are not material to the mitigation of risk in circumstances where there is no conviction.
• There are no exceptional circumstances in relation to the applicant such that he does not, or no longer, appears to pose an unacceptable risk to children.

Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unity to issue a prohibition notice - Unacceptable risk to children - Consideration of pending charges

South Australian Civil & Administrative Tribunal Act 2013 ss 34, 43, 60

Criminal Law Consolidation Act 1935 (SA) ss 49, 50

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

LVM v Department of Human Services [2021] SACAT 36

Schinkel v Registrar of Firearms [2020] SASC 236

Ms F McDonald, Crown Solicitor's Office, for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. 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 ss 43(2), 60

1. I refer to my orders of 17 June 2021, and now make my final orders in this application and publish the reasons. This is a review of a decision by the Department of Human Services - Central Assessment Unit to issue a prohibition notice to the applicant on grounds that he has not rebutted the presumption that he poses an unacceptable risk to children. Ultimately, the issue I must decide in this review is whether such exceptional circumstances exist in relation to the applicant that he does not appear, or no longer appears, to pose an unacceptable risk to children.

2. Arriving at the fundamental issue in this review requires elaboration and engagement with a number of grounds set out in the applicant's written submissions and oral submissions at the hearing. First however, I will set out some further background.

3. The applicant has been charged with one count of Persistent Exploitation of a Child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) (the "CLCA"), and four counts of Unlawful Sexual Intercourse contrary to s 49(3) of the CLCA. Those charges have not been dealt with by the criminal justice system, and the applicant has entered pleas of not guilty. At the time of the hearing, the applicant awaited arraignment proceedings in the District Court.

4. For the purposes of the Child Safety (Prohibited Persons) Act 2016 (SA) (the "Act") however, the applicant falls within a definition of a person "who has been found guilty of a presumptive disqualification offence". The legislative drafting that brings about this result is of interest, because as a matter of fact, the applicant has neither been found guilty of any offending, nor has he been charged with presumptive disqualification offences. The applicant's arrival within the definition of a person who has been found guilty of a presumptive disqualification offence is therefore the product of the capacity of legislation to define and to deem beyond the ordinary meaning of language.

5. The Act speaks of "prescribed offence[s]" and of "presumptive disqualification offence[s]". The applicant has been charged with "prescribed offences". Such offences are more serious, and consequentially speak with greater gravity as to the risk offenders will pose to the safety of children.

6. The scheme of the Act is that a person who has been found guilty of a "prescribed offence" committed as an adult (and the applicant's charges have not yet been dealt with), is absolutely prohibited from working with children, and there is no discretionary capacity in a decision maker to change that outcome.

7. Where a person has been found guilty of a "presumptive disqualification offence", there is capacity for a decision maker, in the exercise of discretion, to either determine 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 determine that 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.

8. The legislation however is drafted to expand the meaning of the phrase "a person who has been found guilty of a presumptive disqualification offence". It expressly refers to a person who has been charged with a prescribed offence where the charge has not yet been finally determined: s 26A(3) of the Act. It is not in dispute that the applicant falls within that definition.

9. The consequences of falling within the definition of "a person who has been found guilty of a presumptive disqualification offence" is that a person will be presumed to pose an unacceptable risk to children: paragraph 26A(1)(a) of the Act. Subject to two limbs of restrained discretion, a further consequence is that the decision maker must then determine that the person is to be prohibited from working with children: paragraph 26A(1)(c) of the Act. A prohibition notice must then issue accordingly: s 32 of the Act.

10. Of the two limbs of discretion, it is correctly conceded by the applicant that the first limb has no application. That limb provides for the applicant to satisfy the decision maker 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. Where, as in this case, there simply is no presumptive disqualification offence to consider, this limb of the discretion cannot be engaged. The drafting mechanism that draws an applicant charged with prescribed offences into the definition of "a person found guilty of a presumptive disqualification offence" does not purport to recast prescribed offences themselves as presumptive disqualification offences for the purpose of an evaluation of the circumstances of the offences.

11. I note that where the Working With Children Check Guidelines (the "Guidelines") suggest[1] that 'a person with a presumptive qualification offence may rebut the presumption that they pose an unacceptable risk to children if they provide information and evidence to demonstrate that the circumstances of the relevant offence or charge are such that the offending or alleged offending do not indicate that the person will pose a risk to children', this cannot be taken to refer to a person who falls within the definition because they have been charged with a prescribed offence. To the extent that the policy suggests that the circumstances of a 'charge' for a prescribed offence can be treated as if it were a charge for a presumptive qualification offence for this purpose (and I acknowledge that there is no explicit suggestion in this regard), I would view that proposition or any construction of the text of the Guidelines as legally incorrect.

12. The second limb, at subparagraph 26A(1)(c)(ii) of the Act, is however applicable. It provides for the applicant to satisfy the decision maker that 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 first limb focuses on the circumstances of the offence, the second limb focuses on the circumstances of the person. Only the latter issue is an issue in this review.

13. The applicant contends that the original decision maker erred in considering the matter. The applicant contends that the relevance of the alleged error of the original decision maker is that it should lead me to place no weight on the decision of the original decision. In this regard, I am directed by ss 34(4) of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) to reach the correct or preferable decision, but in doing so I must have regard to, and give appropriate weight to, the decision of the original decision maker.

14. The first submission is that I should disregard the decision of the original decision maker because of error evident in an expression used by the decision maker suggesting that "you are deemed guilty of the offence until found not guilty in court", when describing the effect of paragraph 26A(3)(b) of the Act. The same or similar unhappy phrasing was drawn to the Tribunal's attention (differently constituted) in matter SA003373,[2] and was found to be not appropriate albeit an example of imprecise language rather than demonstrating an error of law. As explained above, paragraph 26A(3)(b) does not purport to deem guilt or reverse the common law presumption of innocence, but rather draw certain specific circumstances into a defined term for the purposes only of the application of the statutory scheme established by the Act.

15. I accept the contentions of the respondent to the effect that the respondent's reasons when read in full and in context do not perpetuate any notion that the applicant had in fact been convicted. The reasons fully articulate the operation of paragraph 26A(3)(b), but then use the unhappy phrasing complained about as a form of shorthand to reject a submission that the alleged offence the subject of the charges should be disregarded. The following paragraph in the reasons further demonstrates that the original decision maker was fully aware of the limits of his authority in reaching findings about the allegations giving rise to the offending.

16. For my purposes (conscious that I am conducting a merits review) I find no legal error in the decision of the original decision maker in this regard so as to justify a reduction in the weight I would give to the original decision.

17. A second matter was raised on behalf of the applicant suggesting that the original decision maker engaged in reasoning that was illogical or unreasonable, because the decision maker found that the time elapsed since the alleged offending was not sufficient to mitigate against the risks, but the recency of the charge increased the risk.

18. On this contention I agree with one part of the applicant's submission. I see no inherent illogicality or unreasonableness in the original decision maker's view that the time that has elapsed since the alleged offending is insufficient to mitigate against the risk presumed to exist by the legislative scheme, and acknowledge the treatment of that submission is in accordance with the Guidelines. However, the reference in the original decision maker's reasons to the charges being recent in my view has no probative bearing on anything, other than perhaps to explain why the charges are yet to be dealt with by the criminal justice system. I note the respondent contends that the original decision maker did not find that the recency of the charge increased the risk the applicant posed, and I accept no such finding was expressed. However, my reading of the reasons is such that that the recency of the charges is a factor mentioned in the course of analysis and in the course of arriving at a finding regarding mitigation of risks. The recency of the charges was not treated as the irrelevancy it ought to have been.

19. I consider there is therefore a degree of illogicality in this aspect of the original decision maker's reasons. I will disregard and place no weight on that aspect of the original decision. Again, I am conscious that I am undertaking merits review, and not judicial review of the original decision.

20. Ultimately, and in any event, such analysis of the original decision maker's reasons for legal error are of only tangential significance. My role, as described in the SACAT Act is to reach the correct or preferable decision, having regard to and giving appropriate weight to the decision of the original decision maker. I do have regard to the decision of the original decision maker, albeit I disregard the aspect of the reasoning that appears to find relevance in the recency of the charges. Ultimately, my task to reach the correct or preferable decision on the merits of the review remains unchanged.

21. The remaining grounds articulated on behalf of the applicant go directly to the merits of the issue in the review, and I will consider them on that basis.

Are there exceptional circumstances in relation to the applicant such that he does not appear, or no longer appears, to pose an unacceptable risk to children?

22. The applicant is presumed to pose an unacceptable risk to children by virtue of falling within the definition of a person who has been found guilty of a presumptive disqualification offence. That is the clear and intended effect of the legislation and warrants no review, endorsement or justification. It sits at the heart of the statutory scheme and is, in other words, the starting point. It is for the applicant to satisfy me, as an exception, 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.

23. As to what constitutes an unacceptable risk to children, and conversely what circumstances might exist in relation to the applicant that would satisfy me that he 'does not appear ... to pose an unacceptable risk to children',[3] I adopt the analysis in Schinkel v Registrar of Firearms [2020] SASC 236 to the effect that the concept of risk directs attention not only to the likelihood of an occurrence, but also the gravity of the occurrence should it eventuate. My consideration is also informed by the objects and purpose of the Act. The objects and purpose of the legislative scheme are clear. The purpose of the scheme is to minimise the risk posed to children by persons who work with them, and the paramount consideration in respect of the administration, operation and enforcement of this Act must always be the best interests of children, having regard to their safety and protection: s 3 of the Act.

24. I have had regard to the Guidelines in considering the matters advanced on behalf of the applicant.

25. In submissions, the applicant's counsel identified the circumstances that the applicant wishes me to take into account, and I will take those matters into account individually and cumulatively. Some of the matters go to the same essential submission; namely the submission that there is nothing in the applicant's history, other than the fact of the charges, to give rise to a risk.

26. The applicant contends that he has maintained a working with children's check for eight years, without any suggestion of an issue regarding risk to children. It is pointed out that there is nothing in the reasons of the original decision maker or in evidence in these proceedings other than the allegations the applicant faces that justifies the prohibition. The applicant contends that there is no information before the Tribunal, other than the fact of the charge, that justifies a conclusion that he is a risk to children. The applicant otherwise has an unblemished criminal and disciplinary history.

27. The applicant further contends that the circumstances of the alleged offending took place approximately two decades ago, with no suggestion of any contact at all between the applicant and the alleged victim, and no allegation of any subsequent inappropriate contact between the applicant and a child.

28. The respondent contends that the presumption triggered by the existence of the charges cannot be rebutted by the contention that it is the only matter that triggers the presumption. The respondent submits that a lack of antecedent offending history and good character are not in themselves sufficient to amount to exceptional circumstances. In this regard, the respondent points to the Tribunal's remarks in the matter of LVM at [19]-[20].

29. I have had regard to two statements dated 7 October 2020 attesting to the applicant's good character, and the statutory declaration of 22 April 2021. While I have no reason to suspect that the opinions of the deponents are anything other than genuinely held, the evidence, in my view, does not give rise to relevant exceptional circumstances in the context of the statutory scheme and the presumptions it imposes having regard to its purposes and objects once a person is charged with a prescribed offence. While I acknowledge that there is nothing in the evidence before me other than the allegations the subject of the charge that gives rise to the presumption that the applicant poses an unacceptable risk to children, the presumption is triggered nonetheless.

30. Furthermore, there is nothing remarkable, let alone exceptional, about the applicant having previously held working with children checks or having an essentially unblemished criminal history. I do not consider the fact that the applicant has previously held a working with children check for an extended period of time to be an exceptional circumstance. The legislative scheme does not call on me to weigh the fact of the current charge against the applicant's overall criminal history before assuming the presence of an unacceptable risk. I do not find the applicant's unblemished criminal history and the duration of time that he has previously held a working with children check to amount to exceptional circumstances that are such that he does not appear, or no longer appears, to pose an unacceptable risk to children.

31. I recognise that the allegations against the applicant pertain to matters two decades ago. However, the historical nature of the allegations are not circumstances "in relation to the applicant". In any event, I find that the historical nature of the allegations behind the charges are not material to the mitigation of risk in circumstances where there is no conviction. Later in these reasons I observe that the applicant is unable to demonstrate reform or rehabilitation over time in circumstances where he has not been convicted of the charges. In relation to the applicant, I do not find the historical nature of the currently unproven allegations to be an exceptional circumstance.

32. The applicant asks that I take into account the possibility that his work is capable of being modified and supervised so as to ameliorate the presumed risk he might pose to children. I note and accept however the respondent's contention that the statutory scheme does not offer the option of a conditional prohibition on working with children. In this way, the applicant's proposal cannot logically amount to a relevant exceptional circumstance. As this proposal is simply not possible to give effect to, it is unnecessary to speculate what kind of modifications or supervision might potentially ameliorate the presumed risk.

33. The applicant's counsel submits that the applicant faces inherent difficulty in proving his case that there are relevant exceptional circumstances. I have no hesitation accepting the applicant's submission in this regard noting my remarks above regarding the nature of risk and the purposes and objects of the statutory scheme. The applicant's counsel spent some time in submissions developing where this proposition might take me in undertaking the review.

34. It was submitted that the exceptional circumstances, as a protean concept, should be capable of being established in appropriate cases. It was submitted that it would be an error to interpret the concept of exceptional circumstances as creating a bar so high it could never be reached. There is an inherent difficulty, if not impossibility, in the applicant being able to prove a negative, given the imposition of the statutory presumption.

35. In response to the submission and discussions at the hearing, the respondent has provided the Tribunal with further submissions, data, and deidentified examples of the exercise of this discretion by the respondent. Both parties recognise the limits of the utility of the information to the Tribunal. The provision of this information was requested by me to assist me in considering the applicant's submission regarding the nature of exceptional circumstances that might ameliorate the presumed risk imposed by a person being charged with a prescribed offence, particularly as it was very difficult to articulate circumstances that might manifestly amount to relevant exceptional circumstances in the course of discussion with counsel. It was not suggested that the approach of the respondent in other cases might serve to bind me in my consideration of the applicant's circumstances, and I do not hold that view.

36. None of the examples appear to arise out of the assumed risk created by the extended definition of "a person who has been found guilty of a presumptive disqualification offence" for persons who have been charged with a prescribed offence that has not yet been dealt with. The favourable exercise of discretion, generally speaking, reflects sustained changes to a person's life and behaviour after the conviction for a presumptive disqualification offence. In this regard I do understand the dilemma referred to by the applicant in responding submissions that a demonstration of rehabilitation and reform, which is a common feature of the examples provided by the respondent, cannot be advanced where there is no conviction. While I understand the dilemma, recognising the difficulty does not amount to a relevant exceptional circumstance in itself or change the character of the other circumstances relied upon by the applicant.

37. The applicant submits that the Tribunal is not aided by the further information provided by the respondent, and while I am grateful for the assistance of the respondent in providing these examples, I agree that the examples offer me no direct assistance in assessing whether the circumstances relied upon by the applicant are relevantly exceptional.

38. Ultimately, I have concluded that the matters raised by the applicant, individually and cumulatively, do not amount to exceptional circumstances in relation to the applicant such that he does not appear, or no longer appears, to pose an unacceptable risk to children. I reach this view notwithstanding that I recognise the difficulty faced by the applicant in demonstrating an amelioration of risk that is presumed to exist based on an extended definition of "a person who has been found guilty of a presumptive disqualification offence." In assessing what kind of circumstances might ameliorate the presumed risk, I place substantial weight on the objects and purposes of the Act informing upon the concept of risk.

39. The presumption of risk in this case is imposed by the legislation, in a way and with the relative certainty the legislature considered was necessary to give effect to the legislation's important purpose and objects. It is not for me to speculate as to when exceptional circumstances in relation to an applicant might cogently ameliorate the risk imposed in this way, but I am confident to find that the circumstances identified by the applicant do not do so. The matters identified by the applicant are all unremarkable in my view. The accumulation of those matters is also an unremarkable circumstance.

40. I am not satisfied that there are exceptional circumstances in relation to the applicant such that he does not appear, or no longer appears, to pose an unacceptable risk to children. It follows that I must conclude that the applicant poses an unacceptable risk to children in accordance with the statutory presumption.

41. The consequence of this is that I must also conclude that the applicant is prohibited from working with children pursuant to paragraph 26A(1)(c) of the Act. The notice issued to the applicant on 13 November 2020 was therefore correctly issued pursuant to ss 32(1) of the Act.

[1] T5 - see page 13 of 41 (page 29 of the bundle).

[2] Now reported as LVM v Department of Human Services [2021] SACAT 36, 18 May 2021, Senior Member Rainford at [17.]

[3] Child Safety (Prohibited Persons) Act 2016 (SA) 26A(1)(c)(ii).