Held, setting aside and substituting the decision under review:

• The Tribunal is not satisfied that the circumstances of the presumptive disqualification offence are such that the offence should be disregarded;
• The applicant has not committed a further offence of a similar nature to his presumptive disqualification offence in 11 years. Further, the applicant has been in a healthy committed relationship for the last seven years. In the Tribunal's view, the passage of time, and the relationship with his partner demonstrate rehabilitation from the circumstances of the presumptive disqualification offence;
• In the Tribunal's view, this amounts to such exceptional circumstances that he no longer appears to pose an unacceptable risk to children;
• The decision to issue a prohibition notice to the applicant prohibiting him from engaging in child related work is set aside and is substituted with a decision that the applicant is not prohibited from working with children.

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

Child Safety (Prohibited Persons) Act 2016 ss 3, 26A

Criminal Law Consolidation Act 1935 s 56

South Australian Civil and Administrative Tribunal Act 2013 s 34

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

Ms A Hedger, Crown Solicitor's Office, 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.

1. The applicant, JEE, is a 29-year-old person. He lives with his partner VPD and their pet cats. He is employed as a warehouse assistant for FTU, a company that specialises in trading cards.
2. On 13 December 2022, the applicant applied for a working with children check in connection with his employment. The applicant hoped to expand his role at FTU to include dealing with members of the public, including children, at public events.
3. On 13 June 2023, after conducting the working with children check, the Central Assessment Unit of the Department of Human Services (CAU) issued a prohibition notice to the applicant, prohibiting him from engaging in child-related work on the basis that the applicant had been found guilty of a presumptive disqualification offence and he had not rebutted the presumption that he posed an unacceptable risk to children.[1]
4. The presumptive disqualification offence dates back to 2013 when the applicant was convicted in the District Court (Queensland) for the offence of sexual assault. The offence date was 10 July 2012. The applicant was aged 18 at the time of the offence. The applicant was sentenced to 10 months imprisonment to be served by an Intensive Correction Order in the community.
5. By application dated 19 June 2023, the applicant seeks review by the Tribunal of the decision of the CAU to issue him with a prohibition notice.[2]

Child Safety (Prohibited Persons) Act 2016 (SA)

1. The primary object of the Child Safety (Prohibited Persons) Act 2016 (the Act) is to minimise the risk to children posed by persons who work with children.[3]
2. Section 26A of the Act provides that where a person has been found guilty of a presumptive disqualification offence that person is presumed to pose an unacceptable risk to children and the CAU must determine that the person is to be prohibited from working with children, unless, the person can satisfy the CAU that either; the circumstances of the offence should be disregarded in determining that 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. It is clear that the onus is on the applicant to establish these circumstances and rebut the presumption that he poses an unacceptable risk to children.
3. The Act and supporting Regulations declare specific offences as being presumptive disqualification offences, including offences from another State or Territory of Australia.

1. The applicant does not dispute that he was found guilty of a presumptive disqualification offence.
2. In 2013 the applicant pleaded guilty to the offence of sexual assault contrary to s 352(1)(a) of Schedule 1, Criminal Code Act 1899 (Qld). Section 352(1)(a) provides that: 'Any person ... who unlawfully and indecently assaults another person ... is guilty of a crime'. I accept the respondent's submission that the elements of the offence correspond to the elements of the offence of indecent assault contrary to s 56 Criminal Law Consolidation Act 1935 which provides that: (1) 'A person who indecently assaults another is guilty of an offence'.
3. Regulation 15A(a)(viii) of the Child Safety (Prohibited Persons) Regulations 2019 provides that indecent assault contrary to s 56 Criminal Law Consolidation Act 1935 is declared to be a presumptive disqualification offence for the purposes of s 26A(4) of the Act.
4. I am satisfied that the offence of sexual assault of which the applicant was found guilty, is a presumptive disqualification offence.
5. The details of the applicant's offending are limited to a police report which states as follows:

On the night of Tuesday the 10th of July, 2012 both the defendant and the victim were laying on the defendant's bed ... watching a movie. At this time the victim was wearing only a bra and jumper however was not wearing any pants or underwear as she had just had a shower. Whilst watching the movie the victim has fallen asleep at which time the defendant has placed his penis into the victim's vagina and has proceeded to have intercourse with her whilst she was asleep. The victim has eventually awoken to find the defendant penetrating her vagina with his penis and on realising what was happening the victim has fled the room and has contacted Police.[4]

6. Following his guilty plea to the offence, the applicant was sentenced to a 10-month period of imprisonment to be served by way of an Intensive Correction Order in the community.[5]
7. At the completion of his corrections order, the applicant was assessed as having a 'poor' attendance and it was noted that '... [JEE] experienced significant issues of homelessness and relocated between several jurisdictions over the period ... breach action was taken in relation to his lack of reporting compliance ... Despite [JEE]'s overall unsatisfactory response to the order, it is considered that his accommodation issues played a large role in his ability to positively comply.'[6] On 29 May 2014, by way of court outcome for the breach of correction order, the applicant was 'admonished and discharged.'[7]
8. On 15 September 2015, the applicant was convicted for the offences of commit public nuisance and assault/obstruct police officer in public place while adversely affected by intoxicating substance. The applicant was sentenced to 40 hours community service for the offending.[8]

1. The applicant informed the Tribunal that he had been diagnosed as a child with autism spectrum disorder and attention deficit hyperactivity disorder. He informed the Tribunal that he had been raised by his mother only as his parents had divorced when he was young. The applicant stated that his father had perpetrated domestic violence against his mother and himself.
2. In relation to the presumptive disqualification offence, the applicant was questioned by both the Tribunal and counsel for the respondent, Ms Hedger. The police version of events were put to the applicant. He informed the Tribunal that he could not recall having intercourse with the victim. He stated that he and the victim had been in relationship for several months and had become engaged, but that their relationship had ended after he found out that she had been unfaithful to him. He stated that after their relationship ended, they had decided to continue to live together, but in separate rooms, until their lease ended in the near future. On the night of the incident, the applicant stated that they were watching a movie and he fell asleep. He was unaware that the victim was part undressed in the bed. The applicant stated that he woke up to the victim screaming and informed the Tribunal that his pants were done up. In essence, he denied sexually assaulting the victim.
3. The applicant informed the Tribunal that he was 18 years old at the time of the incident. He gave evidence that when the matter was before the court, he was assigned a legal aid lawyer who advised him to plead guilty as he would receive an Intensive Correction Order. His lawyer informed him that if he went to trial and was found guilty, he could serve 2-5 years in prison. The applicant informed the Tribunal that he was terrified of spending such a long time in prison and decided to plead guilty to the offence.
4. The applicant acknowledged that by pleading guilty he has admitted the elements of the offence and stated that he 'accepts by legal standards that it happened'.
5. The applicant informed the Tribunal that following the court outcome, he was placed on an Intensive Correction Order where he had to report regularly to a Corrections officer and undertake community service work. During this time the applicant was either couch surfing or homeless. He acknowledged that he had not been able to perform the required community service work.
6. The applicant was questioned on the subsequent conviction for public nuisance and assault/ obstruct a police officer. He informed the Tribunal that the incident had occurred following an argument with a girlfriend and he had been approached by multiple police officers. The applicant stated that he panicked as he was feeling trapped, and climbed a railing.
7. The applicant informed the Tribunal that after a period of time being homeless in and around Brisbane he reached a point of desperation and contacted his mother. He informed the Tribunal that he had not been in touch with his mother for some time due to shame over the court outcome. The applicant informed the Tribunal that his mother and step-father lived 2½ hours out of Brisbane. His mother sent him money to catch a bus to their town. He described this as a turning point in his life. The applicant said that going back home to live with his mother 'saved his life'. He described how he spent the next year or so working on their 400 acre farm.
8. It was during the time living with his mother and step-father that the applicant met his current partner VPD. Their relationship started with chats over the internet, then chats over the phone, then meeting in person. The applicant moved to South Australia in 2017 to be with VPD. They did not move in together straight away but continued to spend regular time together. The applicant secured a rental property in Woodville Gardens approximately four years ago. VPD moved in with him about 18 months ago. The applicant informed the Tribunal that he had recently signed a five-year lease to stay at the rental property, which he described as accommodation 'security'.
9. The applicant stated that he has seen a psychologist through a Mental Health Care plan and is currently on a wait list to see a psychiatrist to review his autism and attention deficit hyperactivity disorder.
10. The applicant informed the Tribunal that he had found it difficult to find work during the COVID pandemic but was currently working at both FTU and a liquor retailer and prior to that had worked at a discount supermarket.

1. VPD gave evidence to the Tribunal. I found her to be open, honest and persuasive in her evidence. She was at times overcome by emotion, and in my view, it reflected the sincerity of her evidence.
2. VPD stated that the applicant had informed her of his criminal conviction early on in their relationship. She stated that it was clear that the applicant was terrified to tell her, but that he considered it important to do so. She considered it reflected his honest character. Having been in a relationship with the applicant for almost seven years, she stated that she did not believe he had committed the offence, but that if he had, the applicant had rehabilitated himself since that time.
3. VPD described being close to her family, but also having challenging relationships within her family due to other family member's substance misuse, mental health and altercations. She described how the applicant was very effective at de-escalating situations. VPD described the applicant as being protective of her and others.
4. Without prompting, VPD described to the Tribunal her own history of having experienced sexual assaults prior to her relationship with the applicant and stated that she had never felt unsafe in an intimate sense with him and that he had never taken advantage of her.
5. In her closing submissions, Ms Hedger, counsel for the respondent described the relationship between the applicant and VPD as appearing to be 'loving and healthy'. The Tribunal shares this observation. The applicant and VPD were very respectful and supportive of each other throughout the hearing.

1. The Tribunal took into account a reference dated 22 April 2023, provided to the Central Assessment Unit by a friend of the applicant. The applicant's friend has known him for six years. He describes the applicant as follows: '... a person who will place others above himself and see any task set before him completed. He has at times taken full responsibility for the care and nurturing of young children ... During said times he has shown the utmost compassion and patience in dealing with the child who has handicapped capabilities.[9]
2. The Tribunal also took into account a reference by the Director of FTU dated 10 May 2023, provided to the Central Assessment Unit. The Director states that he has employed the applicant on a casual basis for the last six months. He states the following: 'During his tenure, [JEE] has taken on various responsibilities, including serving as a general warehouse assistant and a store person at several public events. Upon offering employment to [JEE], we requested a police check, during which he was honest and upfront about a historical sexual assault charge from 2013. After receiving a clear police check, we proceeded with his employment. Throughout his time with us, [JEE] has proven to be a model employee, demonstrating dedication to his roles as well as showing utmost respect for his fellow employees and customers. [JEE]'s interactions with staff and customers, including children at public trade events such as toy fairs and conventions, have always been polite, professional and respectful. We have not received any complaints regarding his behaviour from either customers or staff. Based on my observations, I have no reservations about his ability to maintain this level of professionalism going forward'.[10]

1. Prior to making their determination, the applicant was offered an opportunity to provide a written submission to the Central Assessment Unit. He provided a very brief response as follows: 'I [JEE] have chosen not to include some information from the past as it's not comfortable to dwell on and has no reflection of the man I am today. I could speak and tell you of the man that I have become but I will let my character references do that for me ...'.[11]
2. The respondent submits, and the Tribunal accepts, that the decision-maker had little information from the applicant in relation to his conviction and in relation to his current circumstances.
3. The respondent submits, and the Tribunal accepts, that the offence to which the applicant pleaded guilty to is a serious offence. The maximum penalty for the offence was imprisonment for 10 years. The respondent appropriately concedes however that the applicant's offending was likely at the lower end of the range of seriousness given he was sentenced to a 10-month Intensive Correction Order.
4. The respondent submits that the applicant has not established that the circumstances of the presumptive disqualification offence are such that it should be disregarded.
5. The respondent notes the references provided for the applicant, but submitted these are general in nature and further that his employment reference only speaks to a relatively short duration of employment and of employment of a casual nature.
6. The respondent submits that the applicant's performance and attendance under his Intensive Correction Order was assessed as poor and further that approximately a year after completing the Intensive Correction Order he was convicted of the offences of public nuisance and assaulting/obstructing a police officer. The respondent conceded that the applicant's poor performance under the Intensive Correction Order was due in part to his homelessness.
7. The respondent submits that the applicant has not established such exceptional circumstances that he does not appear, or no longer appears, to pose an unacceptable risk to children.

1. Section 34(5) of the South Australian Civil and Administrative Tribunal Act 2013 provides that, on a rehearing of a matter, the Tribunal will examine the material before the original decision-maker and consider any further material that the Tribunal decides to admit for the purposes of the rehearing of the matter.
2. Section 34(4) of the South Australian Civil and Administrative Tribunal Act 2013 provides that, on a rehearing of a matter, the Tribunal must reach the correct or preferable decision but, in doing so, must have regard to, and give appropriate weight to, the decision of the original decision-maker.
3. In this matter, a decision was made by the Registrar of the CAU to issue the applicant a prohibition notice prohibiting him from engaging in child-related work. A statement of reasons was provided for the making of the decision. The Registrar has specific expertise in determining whether or not a person poses an unacceptable risk to children. The Tribunal notes, however, that the Registrar had very little information from the applicant directly when reaching their decision.
4. The Tribunal has considered the material before the original decision maker and has received additional material during the course of its review, being the oral evidence at the hearing of the applicant and his partner.
5. This is a merit review. The role of the Tribunal is to consider the matter on its merits at the time of the review. Given the extensive oral evidence at the hearing, which was not before the original decision-maker, the Tribunal places only moderate weight on the decision of the original decision-maker.

Are the circumstances of the presumptive disqualification offence such that the offence should be disregarded?

1. It is impossible to know with certainty the circumstances of the presumptive disqualification offence. The Tribunal was limited to a police report as to the details of the offending. No sentencing remarks were available. The applicant denies the offence occurring, stating that he pleaded guilty to avoid a potential period of imprisonment. The Tribunal accepts that by his guilty plea, the applicant has admitted the elements of the offence. The offence was a serious offence.
2. I am not satisfied that the circumstances of the presumptive disqualification offence are such that the offence should be disregarded.

Do 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?

1. In the Tribunal decision of Ireland v Department of Human Services [2020] SACAT 96, the applicant had been found guilty of a presumptive disqualification offence six years prior to the Tribunal hearing. The applicant had been sentenced to a period of imprisonment for the offending, suspended on a good behaviour bond. The applicant had submitted to the Tribunal that he had changed his life since his conviction and no longer posed an unacceptable risk to children.
2. In her reasons for decision, setting the decision of the CAU aside, Senior Member McEvoy stated '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'.[12] Senior Member McEvoy found that the applicant's circumstances were exceptional, in that he had 'sustained success against a difficult background with little support, and his developed insight into those changed circumstances and the importance of maintaining them'.[13] Senior Member McEvoy also found that the applicant's circumstances prior to and at the time of the offending were 'neither unique nor particular to him'.[14]
3. In the Tribunal decision of Mead v Department of Human Services [2019] SACAT 79, the applicant had been convicted of a presumptive disqualification offence eight years prior to the Tribunal hearing. In her reasons for decision, setting the decision of the CAU aside, Senior Member McEvoy stated: 'I note that Mr Mead was found guilty of a presumptive disqualification offence in 2011. However I note he has no other convictions of a similar nature and this was an offence at the lower end of the scale and he was issued with a good behaviour bond. I also note Mr Mead has provided some details of his circumstances at the time. Mr Mead's former employer has also supported him.'[15] Senior Member McEvoy was satisfied that the applicant in that matter had established exceptional circumstances and no longer appeared to pose an unacceptable risk to children.
4. I do not consider that the applicant's circumstances prior to the offending or at the time of the offending were unique. He was raised by his mother as a single parent. The applicant entered into a relationship aged 18 and moved in with his partner.
5. Following his conviction, the applicant spent a significant period of time homeless. The Tribunal is satisfied that this had a significant impact on him.
6. At the time of the offence of sexual assault, the applicant was 18 years of age, and I accept, had a diagnosis of autism and attention deficit hyperactivity disorder. Given the non-custodial sentence imposed, I consider that the offence was at the lower end of the range of seriousness for offences of that nature.
7. The applicant is now 29 years of age. His only further offending since 2012 has been a breach of the Intensive Correction Order due to poor reporting, which I accept was in the context of homelessness, and the conviction for public nuisance and obstruct/assault police officer which I accept was an isolated incident. The penalties for both offences reflect that they were at the lower end of the range of seriousness.
8. It is significant, in my view, that the applicant has maintained a loving and healthy relationship with his partner for the last seven years. I place weight on the evidence of his partner in that regard. She herself has been a victim of indecent/sexual assault, prior to her relationship with the applicant. Her evidence was such that, even if the applicant had committed the offence in 2012, he had rehabilitated, and she had never felt unsafe in her relationship with him. I accept her evidence and accept that the applicant has not presented a risk to her throughout their relationship.
9. The applicant has secured ongoing accommodation. I am satisfied that living for such a lengthy period as a homeless person when he was young has had a deterrent effect on the applicant such that he now holds with great importance the stability of secure accommodation.
10. I accept that the applicant has endeavoured to find work since he moved to South Australia but found difficulty with the COVID pandemic. I accept that he is a valued employee at FTU. Although he has not been at FTU for a significant period of time, I consider he has been there long enough for his employer to appreciate and comment on his work ethic.
11. The applicant has not committed a further offence of a similar nature to his presumptive disqualification offence in 11 years. This is a significant period of time. Further, the applicant has been in a healthy committed relationship for the last seven years. In my view, the passage of time, and the relationship with his partner demonstrate rehabilitation from the circumstances of the presumptive disqualification offence.
12. I consider that the applicant has worked incredibly hard to move on from his past. I consider that following his conviction he was on a concerning pathway, being young, homeless, without any supports and with diagnosed conditions of autism and attention deficit hyperactivity disorder. He has certainly turned his life around and demonstrated sustained stability. He has not reoffended in a similar manner. He has maintained a healthy relationship with his partner. He has resided in his present accommodation for several years and has a lengthy lease into the future. He has gained employment. In my view, this amounts to such exceptional circumstances that he no longer appears to pose an unacceptable risk to children.

1. The decision of the Registrar dated 13 June 2023 to issue a prohibition notice to the applicant prohibiting him from engaging in child related work is set aside and, in its place, the Tribunal substitutes the following decision:

The applicant is not prohibited from working with children.

[1] Section 35 book of documents pages p 4 - 7.

[2] Section 35 book of documents p 1 - 3.

[3] Child Safety (Prohibited Persons) Act 2016 s 3.

[4] Section 35 book of documents p 26.

[5] Section 35 book of documents p 28.

[6] Section 35 book of documents p 44.

[7] Section 35 book of documents p 23.

[8] Section 35 book of documents p 23.

[9] Section 35 book of documents p 41.

[10] Section 35 book of documents p 40.

[11] Section 35 book of documents p 38.