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 - Consideration of pending charges

South Australian Civil & Administrative Tribunal Act 2013 ss 34, 35, 37, 39

Child Safety (Prohibited Persons) Act 2016 (SA) ss 3, 4, 11, 26, 32

Criminal Law Consolidation Act 1935 (SA) s 48

Lacey v Attorney-General of Queensland [2011] HCA 10; (2011) 242 CLR 573

R v Skinner [2016] SASCFC 106

GJC v Department of Human Services [2020] SACAT 38

BZY v Department of Human Services [2021] SACAT 1

Ireland v Department of Human Services [2020] SACAT 96

R v Yavuz [2018] SASCFC 24

Mr J Marcus (on instructions from Ms E Cousins, Caldicott Lawyers) for the applicant

Mr S Fursa, 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 s 37(1)(a)

1. This is an application made under s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) for the review of a decision of the Department of Human Services-Central Assessment Unit (the CAU) made on 16 October 2020 to prohibit LVM from working with children under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the CSPP Act).
2. *REDACTED*[1]
3. On 13 September 2020, the applicant was charged with the offence of rape under s 48 of the Criminal Law Consolidation Act 1935 (SA). The particulars of that offence are that in the early hours of the morning of Sunday 13 September 2020, without lawful excuse, he had unprotected sexual intercourse with an adult person without his consent. It is also alleged that LVM knew at the time that he was HIV positive and that he acted knowing that he was likely to endanger the life of his alleged victim.
4. The applicant denies the allegations and the matter is yet to be litigated with the charges pending committal in the Adelaide Magistrates Court.

1. Under s 26 A of the CSPP Act, a person who has been charged with either a prescribed offence or a presumptive disqualification offence even where the charge has not been finally determined, is presumed to pose an unacceptable risk to children and must be disqualified from working with them. This is a mandatory disqualification and is not discretionary.
2. The charge of rape is prescribed under Regulations to the CSPP Act as a presumptive disqualification offence.
3. Section 26A(1)(b) of the CSPP Act provides that the CAU need not consider any other assessable information other than the fact that a person has been found guilty or charged with a presumptive disqualification offence.
4. Under s 26A(1)(c) of the CSPP Act, a person can rebut the presumption of disqualification if they can establish either that:

- the circumstances of the offence in question should be disregarded 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.

Accordingly, in this matter, it falls to the applicant to establish that he has satisfied one (or both) of the provisions of s 26A(c)(i) and (ii) of the CSPP Act and has therefore rebutted the statutory presumption that he poses an unacceptable risk to children on account of the fact alone, that he is currently facing a serious allegation of rape.

1. An application for review under s 34 of the SACAT Act is to proceed by way of a rehearing of the evidence. The Tribunal is literally 'standing in the shoes' of the original decision maker (in this case the CAU) and must reach the correct or preferable decision giving appropriate weight to the decision in this instance, to prohibit LVM from working with children.

The rehearing is to include an examination of the evidence and material that was before the original decision maker (as contained in the s 35 SACAT Act Book of Documents) as well as the consideration of any further evidence or material the Tribunal may admit if relevant to the proceedings. In this case I note, neither the applicant nor the respondent seeks to adduce any further documents on the review but rely only on the evidence and material that was before the original decision maker.

It is important to note, that under s 11 of the CSPP Act, the CAU is not required to afford procedural fairness to an applicant seeking clearances and under s 39 of the SACAT Act, the Tribunal in conducting its business, is not bound by formal legal rules of evidence and may inform itself of matters (relevant to a review of an original decision of an executive government agency in this instance) as it sees fit.

- The CAU erred in finding that he was 'presumed to be guilty of the offence' (of rape)[2] because firstly, at common law, every citizen is presumed to be innocent of any criminal offence until proven guilty beyond reasonable doubt. This legal presumption is often referred to as 'the golden thread of the criminal justice system' as coined in the historical decision of Woolmington v DPP.[3] Secondly, the applicant relies on the principle of legality as canvassed by the High Court of Australia in the decision of Lacey v Attorney-General of Queensland.[4] In short, in respect to this contention, the applicant submits that if the South Australian Parliament intended to abrogate the fundamental human right to the presumption of innocence, it would have used clear and unambiguous language in doing so which it has not.

- The CAU erred at law by disregarding relevant information, namely, the fact that the alleged presumptive disqualification offence in this instance did not involve a child.[5]

- The CAU erred by failing to find that the circumstances of the presumptive disqualification offence in this instance, and the matters personal to the applicant by combination, made it appropriate to disregard the alleged offending and to be satisfied that 'exceptional circumstances' exist in relation to LVM.

- Mr Marcus on behalf of the applicant submits, with reference to the SA Supreme Court decision in R v Skinner,[6] that in considering whether the applicant has brought himself within the provisos to s 26A of the CSPP Act it is important not to set the bar so high as to make a rebuttal unachievable.[7]

1. In relation to factors relevant to the applicant himself, Mr Marcus refers to the following:

- LVM has maintained a working with children (and vulnerable persons) clearance for many years prior to September 2020 without issue.

- There is no apparent pattern of deviant, antisocial behaviour on LVM's part or any evidence of a prurient or improper interest in children.

- LVM has an unblemished criminal record except for driving offences, and certainly, has no serious forensic history.

- Several character references were submitted to the CAU from family members and work colleagues who are aware of the current alleged offending and who all without reservation, attest to the applicant's good character and apparent lack of threat to children.

1. In relation to the circumstances of the alleged offending of rape, Mr Marcus submits:

- There is nothing about the current allegations of offending to suggest that the applicant would pose an unacceptable risk to children.

- The alleged offending does not involve a child nor as alleged could a child have been present at the premises in question given that it is a licensed premises and that the alleged offending is said to have taken place in the early hours of the morning in a city night club.

In short, the applicant contends that the decision of the CAU, at first instance, to prohibit him from working with children is not the correct or preferable decision and that it ought therefore to be set aside and substituted with a decision of 'Not Prohibited'.

1. In response to the applicant's contentions, Mr Fursa on behalf of the CAU submits the following:

- The respondent concedes at the outset that it is not relying on any assessable information other than the fact that LVM is charged with an offence of rape, which is a prescribed presumptive disqualification offence under the regulations to the CSPP Act. Accordingly, he submits that whether it is correct or preferable to find that the applicant poses an unacceptable risk to children will depend on whether LVM can satisfactorily discharge the statutory presumption pursuant to ss 26A(c)(i) and (ii) of the CSPP Act.

- Under the working with children guidelines made pursuant to s 4 of the CSPP Act, in considering whether an applicant poses an unacceptable risk to children, the CAU will consider the nature and degree of any risk identified and the possible harm that may flow if the perceived risk eventuated. The CAU does not need to be satisfied that it is likely the person will cause harm to a child in the future.[8] In other words, the potential risk to a child can be minimal if the consequences of that risk eventuating is serious.

- In assessing the applicant's circumstances, the paramount consideration must be the best interests of children having regard to the objects and principles of the CSPP Act which provides for their safety and protection.[9]

- The respondent accepts that the language used in the CAU statement of reasons, namely, the reference to the applicant being "presumed to be guilty of the offence (of rape)" is a misstatement of the statutory provision of s 26A of the CSPP Act. However, read in context, it is clear that the CAU merely found that the applicant falls within the definition of a "person who has been found guilty of a presumptive disqualification offence will be taken to include a reference to a person who has been charged with a prescribed offence or presumptive disqualification offence, but where the charge has not yet been finally determined."[10]

- The CAU was correct in its finding that the burden is on the applicant to rebut the statutory presumption that he poses an unacceptable risk to children.

- It is clear from the second reading speech in the Legislative Council[11] that the offence of rape is precisely the type of offence Parliament intended s 26A of the CSPP Act to include, that is, a serious offence against a person even involving an adult alleged victim.

- There is nothing exceptional about the circumstances of the alleged offence which takes it out of the ordinary or makes it exceptional such that the offence should be disregarded.

- The respondent concedes that it was incorrect to characterise the fact that the offence did not involve a child as not being a relevant consideration. When considered in context however, the respondent submits that what the CAU intended to convey is the fact that the offending did not involve a child was not determinative of the issue of unacceptable risk.

- A distinction should be drawn between a 'prescribed offence' and a 'presumptive disqualification offence' as referred to in s 26A of the CSPP Act. The former deals with only offences against a child victim where the latter includes sexual offences against an adult alleged victim.

- There is nothing out of the ordinary, unusual, special or uncommon about either the alleged offending or anything exceptional about the applicant's circumstances that would justify the Tribunal finding that he has rebutted the statutory presumption of unacceptable risk to children. Mr Fursa relies on the legal authorities of Ireland v The Department of Human Services,[12] R v Skinner,[13] and R v Yavuz.[14] The respondent submits that the applicant has been charged with a serious criminal offence, and that there is nothing unusual or unique about the circumstances of the alleged offending that would require the Tribunal to disregard the alleged offending. The respondent submits further that there is nothing unusual or unique about the fact that prior to the alleged offending, the applicant had not committed any similar or serious criminal offence (which the respondent accepts is the case.

- The applicant has failed to discharge the statutory presumption prescribed in s 26A of the CSPP Act and therefore, is presumed, by force of that section, to pose an unacceptable risk to the safety of children.

In short, the respondent urges the Tribunal to find that the decision of the CAU under review is the correct or preferable decision and that it should be affirmed.

1. I turn now to a discussion of the evidence and submissions of the parties. I consider that the starting point when considering a working with children check application is to consider the objects and principles of the CSPP Act as set out in s 3. Consideration must be given to the following:

- The primary object to minimise the risk to children posed by persons who work with them.

- The framework provided by the CSPP Act for the prohibition of persons who pose an unacceptable risk.

- The paramount consideration of ensuring the best interests of children, having regard to their safety and protection.

- The checks to be performed by the CAU as set out in s 3(4) which are designed to ensure that any person who does pose an unacceptable risk to children is prevented from working with them.

1. Section 26A of the CSPP Act provides the framework to ensure that any person who has either been found guilty of (whether convicted or not) or simply charged with either offences involving a child victim or a serious criminal offence involving an adult victim is presumed to pose an unacceptable risk and is to be prohibited unless that person can satisfy one or both of the exceptions previously discussed. It is important to note that the Tribunal has consistently found that the risk to children need only be slight as long as the consequences are serious.[15]
2. In R v Skinner,[16] his Honour Justice Doyle stated at [94]:

It has been held that special reasons or circumstances take the particular case out of the contemplated Scope of the statutory provision, or outside of the circumstances contemplated by Parliament.

His Honour in that case considered the meaning of the phrase 'exceptional circumstances' in the Criminal Law (Sentencing Act) 1988 (SA) (the Sentencing Act).

The Full Court of the Supreme Court of South Australia in the case of R v Yavuz[17] also whilst considering the meaning of the phrase 'exceptional circumstances in the context of the Sentencing Act added the following:[18]

Special or exceptional circumstances are therefore 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 with the specified order generally to be made.

I consider that the remarks of the Supreme Court in both of those cases apply equally to the interpretation of a person's 'exceptional circumstances' as referred to in s 26A of the CSPP Act.

1. Whilst I agree with the submissions of Mr Marcus, (as appropriately agreed by Mr Fursa) that the language used by the Registrar of the CAU in his statement of reasons was not appropriate, I accept that the comments were more in the nature of imprecise language rather than an error of law by applying an incorrect legal interpretation to the meaning of s 26A of the CSPP Act or assessing the information about the risk the applicant may pose to children on an incorrect legal basis. I reject the submissions of the applicant's Counsel on this topic. However, the Tribunal highlights the importance of the Registrar refraining from the use of language that may leave the impression that he is presuming that a person merely charged with a prescribed or presumptive disqualification offence is guilty where the allegations are untried and untested and the person has not been found to be guilty beyond reasonable doubt. I do not interpret the CSPP Act to mean that or in any way to abrogate the common law right to a presumption of innocence. Rather, in my view, what the CSPP Act is designed to do, is to prohibit from working with children, as a class, those persons who are charged with a prescribed offence or a presumptive disqualification offence (in this case of a sexual nature) even where there is no other evidence of risk to children. Parliament clearly intended that this be the case no matter how Draconian the consequences might appear to a person in LVM's position.
2. I consider from the documentary evidence and the submissions made before me that there is nothing regarding either the circumstances of the rape offence which LVM is facing, or exceptional about his personal circumstances that satisfy me that he has rebutted the presumption that he poses an unexceptional risk to children. I accept that the offence of rape under s 48 of the Criminal Law Consolidation Act 1933 (SA) is exactly the type of offending Parliament intended to trigger a presumption of risk even where the circumstances alleged relate to an adult and not a child victim.
3. In relation to LVM's personal circumstances, I am not persuaded on balance, that his prior antecedent history (involving traffic offences only) or his good character as the testimonials of both family and work colleagues establish, are sufficient to rebut the statutory presumption created by s 26 A of the CSPP Act. I accept the submission of Mr Fursa that a lack of antecedent offending history and good character are not in themselves sufficient to amount to exceptional circumstances. The facts in this matter should be distinguished from those in the matter of Ireland.[19] That matter involved an applicant who had been convicted of serious drug offending in 2014. He gave evidence in support of a review of a decision of the CAU to disqualify him on the grounds of presumed risk, evidence which the Tribunal accepted demonstrated that he had successfully rehabilitated himself over a number of years and had accordingly made substantial changes to his lifestyle. The Tribunal found that this evidence was sufficient to rebut the statutory presumption which applied under s 26A of the CSPP Act.[20]
4. I did not hear from the applicant directly.[21] The submissions which he made to the CAU and the Tribunal through his Counsel and the character evidence he has presented, in my view, do not establish anything about either the circumstances of the alleged offending of rape or his own personal circumstances that take him out of the "ordinary course, or are unusual, special or uncommon" as the Tribunal found in the matter of Ireland in following the Supreme Court of South Australia in R v Skinner[22] and R v Yavuz.[23] Whilst it is relevant to the assessment of risk that the alleged victim of the rape charge is an adult, that for the most part the applicant does not deal with children in the course of his current employment, that he has never been convicted of or charged with a serious criminal offence and that he has previously held working with children clearances, I do not consider these matters either in isolation or together are sufficient to rebut the presumption of risk. These in any event, are matters precedent to the applicant being charged whereas in Mr Ireland's case, he gave evidence of matters which transpired since he was convicted a few years ago of presumptive disqualification offences.
5. In coming to a decision, I have had regard to the material and evidence that was before the Central Assessment Unit and to the additional written and oral submissions put before the Tribunal on review.
6. I consider that the decision made on 16 October 2020 to prohibit the applicant from prohibiting him from working with children is the correct and preferable decision and that it should be affirmed.
7. Finally, although the applicant's Counsel did not apply for orders under s 60 of the SACAT Act prohibiting from publication his client's name in connection with these proceedings, I am satisfied in the interests of justice, given that he is yet to stand trial on serious criminal charges, that the Tribunal should make an order on its own motion. I note that a similar order has already been made in relation to the s 35 Book of Documents which amongst other things contains documents relevant to the current charges which may identify the alleged victim. It is appropriate that that order continue. If these reasons are reported or published on Austlii (or elsewhere) then it would be appropriate (notwithstanding any s 60 order) that the applicant's name be anonymised.

1. The Tribunal makes the following orders:
   1. The Tribunal affirms the decision under review.
   2. Pursuant to s 60(2)(f) of the SACAT Act, the Tribunal directs until further order that the applicant's name be prohibited from publication.
   3. The Tribunal directs that until further order, pursuant to s 60(2)(g) of the SACAT Act, publication of the contents of the s 35 Book of Documents dated 27 November 2020 be prohibited.

[1] This paragraph has been redacted as per the Tribunal's confidentiality order and Anonymisation Policy.

[2] Book of Documents p 13, Reasons of CAU p.1

[4] [2011] HCA 10; (2011) 242 CLR 573.

[5] Book of Documents p 14, CAU Reasons p 2.

[6] [2016] SASCFC 106.

1. [8] Guideline 8 Book of Documents p 30, GJC v Department of Human Services [2020] SACAT 38 and BZY v Department of Human Services [2021] SACAT 1.

[11] Parliamentary Debates, Legislative Council, 14 February 2019 p 2668.

[12] [2020] SACAT 96.

[13] [2016] SASCFC 106.

[14] [2018] SASCFC 24.

[15] GJC v Department of Human Resources [2020] SACAT 38; BZY v Department of Human Resources [2021] SACAT 1; Ibid. p 4.

[16] [2016] SASCFC 106; R v Yavuz [2018] SASCFC 24 at p 4.

[18] Ibid. p 4 at [115] per Kourakis CJ, Blue and Hinton JJ.

[19] [2020] SACAT 96.

[20] [2020] SACAT 96 per Senior Member McEvoy at [33]-[35].

1. [21] This is understandable given that he is yet to stand criminal trial and his privilege against self-incrimination would have made it difficult for him to give candid evidence.