The Tribunal, accepting Mr Ireland's submissions regarding the substantial changes in his circumstances and lifestyle since his conviction, was satisfied that Mr Ireland has established that exceptional circumstances exist such that he does not pose an unacceptable risk to children. The Tribunal however accepted the respondent's submissions regarding the meaning of "exceptional circumstances" in s 26A(1)(c)(ii).

The decision subject to review, namely the Department's decision of 26 September 2019 to issue a prohibition notice prohibiting Mr Ireland from working with children on the basis of a presumptive disqualification offence, is set aside.

Administrative Review - Administrative tribunals - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment unity to issue a prohibition notice - Presumptive disqualification offences - Exceptional circumstances

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

Child Safety (Prohibited Persons) Act 2016 (SA) s 15, 26, 32, 43

R v Yavuz (2018) 130 SASR 231

R v Skinner (2016) 126 SASR 120

Mr S O'Flaherty, Crown Solicitor's Office, appeared for the respondent

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

1. Benjamin Michael Ireland applied to this Tribunal on 6 November 2019 for a review of a decision of the Department of Human Services - Central Assessment Unit (the Department), which on 26 September 2019 issued a prohibition notice against Mr Ireland prohibiting him from working with children, pursuant to s 15(1)(a) of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Act). Mr Ireland had then made an application to the Department pursuant to s 33 of the Act to revoke this prohibition order, and on 17 October 2019 the Department declined to revoke the prohibition order.
2. At a directions hearing before the Tribunal held on 10 December 2019 Tribunal Member Files determined that the decision to be reviewed was the original decision of the Department, namely the prohibition order, not the subsequent decision not to revoke the order.
3. It was also noted at that directions hearing that Mr Ireland's application was out of time, as it was required to be made within 14 days of the applicant receiving notice of the decision. The relevant decision for review was made on 26 September 2019, and the application was received by the Tribunal on 6 November 2019.
4. Section 43(3) of the Act permits the Tribunal to extend the time in which an application may be made if it is satisfied that "special circumstances" exist and that "another party will not be unreasonably disadvantaged because of the delay in commencing proceedings".
5. The Department did not make any submission on this matter and did not suggest it would be "unreasonably disadvantaged" if an extension of time were allowed in this matter.
6. I am satisfied that no other person, and in particular the Department, would be unreasonably disadvantaged if an extension of time were granted, and I am satisfied that special circumstances for the purposes of s 43(3) of the Act exist to support an extension of time in this matter. I am satisfied that there was some confusion about which decision was to be subject to review by the Tribunal, and Mr Ireland understood it was the second decision to decline to revoke the prohibition order. The application to the Tribunal was made on 6 November 2019 while the notice of the refusal to revoke the prohibition order was made and dated 17 October 2019. It is not clear on what date Mr Ireland received the notice of this decision but I note the application was received by the Tribunal only a few days later than 14 days after the date of this decision.
7. I am satisfied that there are special circumstances to justify an extension of time in this matter. While the application was made after the expiration of 14 days from the second decision it is not clear this was more than 14 days after notice of that decision was received by Mr Ireland. Further, while I accept that the relevant decision to be reviewed was some time earlier still (26 September 2019), that this was the relevant decision was not determined until the directions hearing of 10 December 2019.
8. Pursuant to s 43(2) of the Act I will allow this application to review the decision of the Department made on 26 September 2019 to be made to the Tribunal.
9. On 20 August 2019 the Department sent Mr Ireland a notice pursuant to s 26A of the Act notifying him that his conviction in June 2014 for the offence of trafficking a controlled drug (cannabis) was a presumptive disqualification offence for the purposes of s 26A of the Act, and he was invited to make submissions to the Department within 30 days as to why the conviction should be disregarded, or if exceptional circumstances pertained to him for the purposes of issuing a working with children approval.
10. Section 26A provides that where a person has been found guilty of a presumptive disqualification offence (determined in the Regulations to the Act) that person is presumed to pose an unacceptable risk to children, unless the person can satisfy the Department either, that the circumstances of the offence should be disregarded in determining that the person poses an unacceptable risk to children; or 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. These provisions reverse the onus of proof, and require the applicant for the notice who has committed a presumptive disqualification offence, to establish these circumstances.
11. Mr Ireland did not make any submission to the Department on these matters, and the Department issued a prohibition notice prohibiting him from working with children.

1. Mr Ireland told the Tribunal that he believed there were exceptional circumstances which applied to his own personal circumstances, such that he should be considered not to pose an unacceptable risk to children.
2. He told the Tribunal he had tried to change his life since his conviction in 2014, and to live a better life, and he believed he had been successful in this. He said he believed he had achieved this against significant odds, and this was what made his circumstances exceptional.
3. Mr Ireland told the Tribunal he had a difficult childhood and had suffered childhood depression at school and under these circumstances learning had been difficult for him. He said that when he left school he had been unemployed for a long period and had few skills. He had got in with the "wrong crowd" and made wrong decisions about how to make money, and this had led him to actions which culminated in the charge of trafficking and his conviction in 2014. Many of these matters were also taken into account by the court in imposing a sentence of imprisonment which was suspended for a period of two years. He said his arrest, charge and conviction had been life changing for him, and he had immediately taken actions to change his life.
4. Mr Ireland said that while he was undertaking community service (as ordered as part of his suspended sentence), he had obtained two jobs and had started his own business.
5. He obtained bar tending work in Port Augusta (where he then lived), and while undertaking community service, obtained work at the local dump. This eventually provided him with 3-4 days a week work at the dump operating heavy machinery. At about this time he also set up a gardening and landscaping business which he operated himself and he said this was quite successful over an 18 month period.
6. Mr Ireland said that he realised he needed to leave Port Augusta to get away from negative influences on his life. Accordingly 2½ years ago he had moved to Port Pirie where his parents lived. He obtained a job in the Port Pirie smelter and continued to work there on a full time basis. He had met his current partner there and they were making plans for the future together.
7. Mr Ireland said that the diagnosed depression he suffered in his childhood still remained an issue but is now managed with his doctor through medication. However he has recently been diagnosed with other significant medical issues which he needs to address. He said his mother, who lives in Port Pirie, suffers from terminal bowel cancer and he sees and attends to her daily, when he assists in bathing and dressing her, and also assists with washing and other general housework to support her. His father also lives there but otherwise Mr Ireland is the only relative living in Port Pirie so is the only available support.
8. Mr Ireland said that early in 2019 he had been asked to assist with training the under 11's Solomontown Football team. He said that he had thought this would be just kicking a ball around with the children, but had found it had entailed discipline, support and mentoring with the children as well as helping them develop their skills, and he had found it fulfilling and very valuable to him, and that it was very important for the children, and he understood it was an important contribution to the local community. He was keen to continue the coaching in 2020, and it was on this basis he had applied for the working with children clearance and he had been very disappointed not to obtain it. He described the coaching as a "fantastic" experience.
9. Mr Ireland said he had undertaken numerous courses in both Port Augusta and Port Pirie to obtain and extend his skills and to assist in obtaining work. Some of these had been arranged through job agencies but most he had identified arranged and paid for himself.
10. Mr Ireland said he did not know what else he could do to move on and rehabilitate himself. He said he believed he was a very different person than he had been in 2013, and he believed he was now a responsible person who wanted to have a place in the community. He believed the changes in his life, attitudes and circumstances since 2013 were very real and significant, and that he had achieved these changes himself with little other support was also an extraordinary achievement. The football coaching had been a very significant aspect of these changes and he wanted to maintain this.

1. Mr O'Flaherty told the Tribunal that s 26A(1)(c)(ii) of the Act placed the burden of proof on the applicant to establish that "exceptional circumstances" applied to him such that he would appear, despite his relevant conviction, not to pose an unacceptable risk to children. Mr Ireland thus was required to establish that there were distinguishing factors in relation to him, and that these amounted to "exceptional circumstances". Mr O'Flaherty submitted that this was not demonstrated by Mr Ireland.
2. Mr O'Flaherty directed the Tribunal to discussion of the meaning of "exceptional circumstances" by the Supreme Court of SA in R v Yavuz (2018) 130 SASR 231 at 258-9. The Court there made the following comment, in contrasting an expression such as "exceptional circumstances" 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 ... .

1. Mr O'Flaherty submitted this meant that it was not sufficient for Mr Ireland to demonstrate that he does not pose an unacceptable risk to children, but he must establish exceptional circumstances: he defined this to mean, "out of the ordinary course, unusual, special or uncommon". He also drew the Tribunal's attention to the comment by Doyle J in R v Skinner (2016) 126 SASR 120 at 139, in confirming these definitions, that nevertheless the test for what amounts to exceptional circumstances must not be set so high that it becomes near impossible to satisfy.

1. In reviewing the decision by the Department to issue a prohibition notice against Mr Ireland prohibiting him from working with children, the Tribunal must examine the Department's decision by way of a rehearing, and consider what is the correct or preferable decision, giving appropriate weight to the decision of the original decision maker (see s 34(3) and (4) of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
2. The Tribunal is satisfied that Mr Ireland has established that such exceptional circumstances exist in relation to him that he does not appear to pose an unacceptable risk to children.
3. The Tribunal accepts that Mr Ireland has made very substantial changes in his circumstances and lifestyle since his conviction for trafficking cannabis in 2014. It accepts that he has, since his conviction, obtained and maintained steady employment and has moved away from negative influences which had apparently dominated his life in Port Augusta, leading to his lifestyle there and convictions. He has also taken on significant and ongoing community responsibilities in the football coaching and caring for his mother.
4. The Tribunal also accepts that these changes, characterised by him obtaining and maintaining ongoing employment, moving away from Port Augusta, undertaking courses to develop and support his skills and employment, caring for his terminally ill mother, and coaching the under 11s football team, represents more than just moving on with his life and generally rehabilitating himself. The Tribunal accepts that Mr Ireland made and maintained these significant changes with little outside or formal assistance, and coming from a low base with few resources to rely on, it is this persistence and success in these circumstances that make his circumstances exceptional for the purposes of s 26A(1)(c)(ii) of the Act. In addition, in the Tribunal's view Mr Ireland has demonstrated a significant degree of insight into his circumstances, in particular in relation to the significance and value to him of his coaching role and the caring duties he has taken on. The Tribunal is assisted in making an assessment of Mr Ireland's circumstances by comparing his present circumstances as he described them to the Tribunal with his situation and background in 2014, as this is set out in some detail in the sentencing remarks of Magistrate Kitchin at the time of Mr Ireland's conviction. The magistrate's remarks clearly set out Mr Ireland's difficult background and limitations, and these clearly influenced him in determining on a suspended sentence at that time. The description provided there enables a clear and dramatic contrast to Mr Ireland's present circumstances as described to the Tribunal.
5. The Tribunal accepts Mr O'Flaherty's submissions that "exceptional" in this provision does mean "out of the ordinary course, unusual, special or uncommon", but the Tribunal's view is that what is to be regarded as extraordinary for the purposes of the Act must be determined by reference to the individual concerned and their personal circumstances. Indeed, s 26A(1)(c)(ii) identifies this to be the case in referring to such exceptional circumstances existing in relation to the person. What are exceptional circumstances for one person may not be exceptional circumstances in relation to another.
6. It is the Tribunal's view that the qualification contained in s 26A(1)(c)(ii) must be read both in the context of the legislation as a whole, the purpose of which is to ensure that the risk to children posed by persons who work or volunteer with them is minimised; and also of purpose of the subsection itself. In the Tribunal's view, while the Act has the overarching purpose of minimising risk to children by providing for the screening of persons working or volunteering with children and prohibiting those who might pose an unacceptable risk to children from working or volunteering with them, nevertheless s 26A(1)(c) concedes that even where a person is guilty of a presumptive disqualification offence, the effect of which is to presume the person poses an unacceptable risk to children, that person is able to overcome that presumption. In this context the Tribunal notes the comment of Doyle J in R v Skinner that the bar to overcome the presumption must not be set so high it is unachievable.
7. Since the Act itself concedes that the presumption may be set aside, it would not be consistent with the Act to set the bar at such a high level that it is impossible to achieve, and this was conceded by the Department. It would not be consistent with these provisions in the Act that the Act applied in such a way that conviction of any of the presumptive disqualification offences (there are numerous such offences specified in the Regulations, and they are not necessarily offences associated directly or indirectly with children) automatically meant that a convicted person necessarily could never obtain a clearance to work with children. The Act specifies that a person may do so by demonstrating exceptional circumstances pertaining to themselves.
8. The Act of course does not specify what might amount to "exceptional circumstances", or how such circumstances might be demonstrated. However the Tribunal accepts that those "exceptional circumstances" must be "out of the ordinary course, unusual, special or uncommon"; must be personal to the applicant; and must be such that they satisfy the Tribunal that the person appears not to pose an unacceptable risk to children. In the Tribunal's view they can only be established by examining the person's own individual circumstances.
9. The Tribunal's view is that "exceptional circumstances" do pertain to Mr Ireland. It is accepted that Mr Ireland's circumstances prior to and at the time of offending (in relation to the presumptive disqualification offence), including his youth, unemployment status and limited opportunities, were neither unique nor particular to him - indeed, they are likely to be quite common circumstances. Nor is the fact that he has gone forward with his life and improved it and generally kept out of trouble since that time. What is significant in this case, and in the Tribunal's view makes his circumstances "exceptional", is the sustained success against a difficult background with little support, and his developed insight into those changed circumstances and the importance of maintaining them. In the Tribunal's view he has to an exceptional degree changed his lifestyle and circumstances to such a degree and in the face of such a discouraging background that this in itself amounts to "exceptional circumstances" within the meaning of the Act. His sustained change of his circumstances, and the deliberate and conscious successful efforts he has made to achieve this, as well as the means he has taken (caring for his terminally ill mother, removal of himself from a risky environment, control of his mental health issues, sustaining employment since his conviction, successful completion of numerous skills courses, against the background of his lack of education and employment), are, in the Tribunal's view, out of the ordinary, unusual, special and uncommon, and distinguish his circumstances from merely "settling down".
10. The Tribunal is also satisfied, given the nature of some of these actions, in particular the successful coaching (with another coach) of the under 11 Solomontown Football team, and the ongoing intimate care of his mother, that he does not appear to pose an unacceptable risk to children.
11. For these exceptional circumstances which the Tribunal is satisfied exist in Mr Ireland's case to be sufficient for the purposes of s 26A(1)(c)(ii) of the Act, it must also be the case that the exceptional circumstances are relevant to the purpose of the Act. Mr Ireland's presumptive disqualification offence did not raise directly, or in its particular circumstances, risk to children, and there is nothing else in Mr Ireland's personal circumstances such that he would appear to pose an unacceptable risk to children. The Tribunal is satisfied that exceptional circumstances apply in relation to Mr Ireland, and is also satisfied that his present circumstances and activities are such that he does not appear to pose an unacceptable risk to children. In the Tribunal's view Mr Ireland's now changed circumstances are such that they are no longer within the mischief which the legislature intended to address (see R v Yavuz (2018) 130 SASR 231 at 258-9).
12. I note that as Mr Ireland did not make any submissions in response to the s 26A notice sent to him on 20 August 2019, the original decision maker did not have before it any of the matters discussed above which I have found constitute exceptional circumstances pertaining to Mr Ireland.
13. Under these circumstances it is the Tribunal's view that the correct and preferable decision in this matter is that Mr Ireland's presumptive disqualification offence should be disregarded for the purpose of the conduct of a working with children check and accordingly the decision of the Department made on 26 September 2019 in relation to Mr Ireland's application for a working with children clearance should be set aside.
14. I note the Department in its written submission to the Tribunal has indicated that there are no other grounds for issuing a prohibition notice under s 32 of the Act.

1. The decision subject to review, namely the Department's decision of 26 September 2019 to issue a prohibition notice prohibiting Mr Ireland from working with children on the basis of a presumptive disqualification offence, is set aside.