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 convictions - Consideration of unproven allegations

Administrative Review - Disability Inclusion Act 2018 - Review of a decision by the Central Assessment Unit to cancel a clearance - Power to conduct a risk assessment

Child Safety (Prohibited Persons) Act 2016 ss 3, 8, 16, 26, 26A, 32, 43

Disability Inclusion Act 2018 ss 18S, 18ZI

South Australian Civil and Administrative Tribunal Act 2013 ss 35, 37

GJC v Department of Human Services [2020] SACAT 38

Griggs v Department of Human Services [2023] SACAT 60

M v M (1988) 166 CLR 69; [1988] HCA 68

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559

Ms E Whish-Wilson on behalf of the applicant, in person

Mr M Spencer on behalf of the respondent, in person

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

1. The applicant is a 40-year-old man who lives with his wife and children in Whyalla Stuart. He works as a fencing contractor for the South Australian Housing Authority (SAHA).
2. The applicant seeks review of two decisions by the Central Assessment Unit (CAU) of the Department of Human Services.
3. The decisions were both made on 29 May 2023. One is a decision that was made in response to an application by the applicant for a Working With Children Check (WWCC). The CAU's decision was to prohibit the applicant from working with children. The decision was communicated by a prohibition notice issued under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act). This decision is reviewable by the Tribunal under s 43 of the CSPP Act.
4. Based on the information upon which it had relied to prohibit the applicant from working with children, the CAU revisited an earlier decision it had made on 10 March 2021 to clear the applicant to work with persons with a disability, under s 18S of the Disability Inclusion Act 2018 (DI Act). The CAU decided to cancel that clearance and issued the applicant with a cancellation notice. That decision is reviewable by the Tribunal under s 18ZI of the DI Act.
5. The applicant sought reviews of the decision in the Tribunal. Both reviews are conducted pursuant to Division 2 of Part 3 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). The Tribunal is required to examine the original decisions by way of a rehearing and receive any further evidence that the Tribunal decides to admit. On a review, the Tribunal may affirm, vary or set aside the decisions under review. If set aside, the Tribunal may substitute its own decisions or send the decisions back to the original decision maker for reconsideration in accordance with any directions or recommendations the Tribunal considers appropriate.
6. Despite not being the language necessarily used in the Acts, this decision will refer to the two decisions that are under challenge as the "clearances" and by the use of that term, this decision is to be understood as referring to the outcomes that the applicant wants, namely to be not prohibited from working with children or persons with disabilities.
7. The clearances in question are necessary for the applicant to be able to work under his contract with the SAHA. Under this contract the applicant and his employees repair and maintain fences of properties managed by the SAHA. Although contact with children or vulnerable people is not a central to his duties, these properties may be adjacent to buildings that are schools or nursing homes or other such buildings, therefore the applicant requires these clearances to undertake the work because of the incidental contact he may have in the course of his work.
8. The Tribunal acknowledges, as did both parties, that despite the applicant only wanting these clearances to allow him to continue working under his SAHA contract, the clearances would allow him to engage in any work or activity for which these clearances are required including those with direct contact with children or people with disabilities.

1. The applicant also sought stays of these decisions pending the Tribunal's full consideration of the applications. These stays were allow him to continue to work.
2. On 4 July 2023, being satisfied that it was just and reasonable in the circumstances to do so, I stayed the operation of the original decisions pursuant to s 26 of the SACAT Act. In that order, I noted the passage of time since the events relied upon are said to have occurred and that the applicant has been working without any report of causing harm to any person in the course of his work for some years.
3. No conditions were imposed on the stays. I granted the respondent liberty to apply for the Tribunal to consider imposing conditions, however no application was received.

1. The applicant seeks to have both decisions set aside and substituted with the following determinations:
   • That no prohibition notice be imposed under the CSPP Act, and
   • That an earlier Disability Services Employment Clearance (DSEC) granted on 10 March 2021 continues in force.
2. The applicant contends that information was considered by the CAU in 2021 for the purpose of an earlier application to be cleared to work with people with disability, and properly led to the finding at that time that the applicant did not pose an unacceptable risk to people with disability. Further, that when the same information was considered in 2023 for the purposes of the WWCC, it was wrongly assessed as disclosing an unacceptable risk which led to a prohibition notice being issued to him in respect of his application to for a WWCC.
3. The applicant contends that the CAU has wrongly attributed weight, or too much weight, to a conviction that is now significantly in the past, and to allegations that have not been proven, about which the applicant has advanced credible evidence and submission in dispute.
4. The applicant further contends that nothing enlivened s 18N of the DI Act. That section provides that the CAU must conduct a risk assessment of a person with a clearance to work with people with disability if it "becomes aware" that there are circumstances that require a risk assessment. The applicant says that the CAU did not become aware of any such circumstance.
5. The applicant refers to the evidence gathered for the purposes of the earlier DSEC process and the findings made at that time, in support of the orders he now seeks. The applicant also gathered further information regarding some of his criminal history records which he says bolsters his submission and which he persuaded the Tribunal should be admitted.

1. The respondent contends that the information it relied upon was properly considered in respect of the application to work with children, and supports its decision that the applicant poses an unacceptable risk to children. It says that it is not bound to form the same views about events as it had previously.
2. Upon applying the criteria in the guidelines, the CAU was authorised to use the previous conviction and the more recent allegations and the evidence surrounding them to reach a view that there was a basis from which it can be inferred that the applicant poses a risk to children.
3. It says that the new information put to the Tribunal by the applicant does not alter the conclusion reached prior to the material being received.
4. The respondent contends that the reaching of the conclusion that the applicant poses a risk to children, constitutes a 'circumstance' that enlivened s 18N of the DI Act and required a risk assessment to be conducted by the CAU in relation to the risk posed by the applicant with respect to working with people with a disability. The decision to cancel that clearance was properly reached on the information it had.

1. The key issue in relation to the WWCC prohibition decision is the manner in which the CAU used unproven propositions about the applicant's past behaviour towards an assessment of whether the applicant poses an unacceptable risk to others in the future.
2. The key issue in relation to the DSEC cancellation is whether the circumstances enlivened the obligation to conduct a risk assessment and if so, whether the unproven allegations were properly used in forming the view that the applicant poses a risk to people with a disability.
3. Because the DSEC cancellation is said by the applicant to be contingent upon the correctness of the CAU's approach to the application for a WWCC, it is appropriate to address the WWCC first.

The legislative framework governing the decision to issue the applicant with a prohibition in relation to working with children: the CSPP Act

1. Under s 16 of the CSPP Act, it is an offence for a person, who is not an excluded person, to work with children unless a WWCC has been conducted in relation to the person within the preceding five years. The effect of this is that a person who is "not prohibited" must refresh that status every five years if they wish it to remain current.
2. The CSPP Act confers on the CAU the task of undertaking WWCCs under s 26(1) of the CSPP Act. If a person is not found to pose an unacceptable risk to children, they are notified that they are "not prohibited" from working with children. If a person is determined to pose an unacceptable risk to children, a prohibition notice is issued to that person.
3. Certain events in a person's history are, under the Act, presumptively disqualifying.[1] No such circumstance arose in this case. Rather, the CAU was required, in the applicant's case, to make an assessment of whether events in the applicant's history led to the conclusion that the applicant poses an unacceptable risk to children.
4. The legislation sets out the information upon which the CAU may rely ("assessable information") to make a determination as to whether an applicant poses an unacceptable risk. The categories of assessable information are set by legislation.[2] The legislation authorises the Minister to make guidelines as to how the CAU uses the assessable information to determine whether a risk arises and whether it is unacceptable. The Minister issued guidelines in July 2019.

1. On 10 March 2021, the CAU issued a DSEC to the applicant ("the earlier DSEC clearance"). The earlier DSEC clearance became, by virtue of transitional provisions in Schedule 2 of the DI Act, taken to be a NDIS worker check clearance.[3]
2. On 1 January 2023, the applicant applied to the CAU for a WWCC.
3. The CAU gathered assessable information upon which to conduct an assessment of whether the applicant posed an unacceptable risk to children. On 13 April 2023, the CAU sent a letter to the applicant inviting him to provide a submission in support of his WWCC application and, in particular, to respond to the assessable information.
4. The assessable information relied upon was:
   • Charges in relation to events in January 2018 that the applicant and three others detained an adult male, intentionally caused him harm, threatened him, and blackmailed him. The charges were the subject of a nolle prosequi.
   • A conviction in the Magistrates Court in Whyalla in July 2009 for aggravated assault of his former partner.
   • Dismissed charges of assaults on his former partner in June and August 2007 for assault, assault with weapon and fail to comply with bail agreement;
   • Dismissed charges of an assault on his former partner in February 2008 for carry offensive weapon, aggravated assault, damage property, assault by weapon;
   • Dismissed charges of assault in relation to his former partner in May and December 2008.
5. The former partner referred to in the assessable information is the same person in each case.
6. The CAU considered the police incident reports, medical evidence and court records to make its assessment.
7. There was no dispute that the information relied upon in the making of the WWCC decision was assessable within the meaning of the CCSP Act. The dispute arises in how it was used to reach a decision as to whether the applicant poses a risk of harm to children.
8. On 1 May 2023, the applicant provided a written response to the CAU via his solicitor. The response made the point that a nolle prosequi was entered in relation to the 2018 charges, and that in any event the information relating to the charges and the nolle prosequi was in the possession of the CAU when it granted the earlier DSEC on 10 March 2021. The applicant's letter denied the charges in the 2018 matter and gave an account of a proposed defence of alibi which would cast doubt on the complainant's identification evidence. The letter invited the CAU to conclude that the nolle prosequi properly reflected a poor prospect of conviction against the applicant.[4]
9. In relation to the dismissed changes from 2007-2009, the applicant urged the CAU to place weight on the fact that the charges had been dismissed (and not merely withdrawn). The applicant maintained that his former partner's credibility should be doubted on the basis of her "complicated mental health issues".[5]
10. In relation to the 2008 conviction, which related to the same former partner, the applicant submitted that the good behaviour bond which formed the penalty was consistent with a resolution of the matter on the basis that did not reflect the allegations, but some basis consistent with lesser culpability. The applicant emphasised that the allegation of strangulation, which is referred to in the CAU's consideration of the relevant information,[6] should not be understood to have been the basis of the conviction and that a different factual basis was the basis of the penalty.[7]

The decision to issue a prohibition notice and the reasons provided

1. On 29 May 2023, the applicant was issued with a prohibition notice in relation to his WWCC.[8] The letter advising of this decision included reasons. The letter is the first of three occasions on which the CAU explained its reasoning. As a starting point, it is convenient to set out the salient parts of the letter that the applicant received.
2. The letter stated:

While your submission has been carefully considered, it is acknowledged that you have not provided any independent information which corroborates your submission. The Central Assessment Unit is not satisfied that your submissions adequately address the matters set out in our letter of 13 April 2023. Based in the relevant information, and notwithstanding your submissions, the Central Assessment Unit is unable to exclude the possibility that alleged conduct did in fact occur. > > You present with a pattern of threatening, aggressive, abusive and violent conduct spanning 2007-2019. You were convicted of an aggravated assault in 2008 which related to a domestic violence incident, including an act of strangulation. Whilst the remainder of your relevant violent offending is non-proven, it identifies a pattern of increasingly violent acts against others. The absence of a finding of guilt is not a finding of innocence. The only inference that can be drawn by the Central Assessment Unit is that the charges were not proven beyond reasonable doubt. In undertaking this assessment, the Central Assessment Unit is entitled to consider information relating to alleged offences for which you have been charged, regardless of the outcome of the charges. > > There are consistencies between the adverse conduct recorded against you which is alleged to have been perpetrated against multiple victims. Of significant note, credible observations of injuries consistent with the victims version of events were reported to have been sighted. The relevant police information contains detailed and specific allegations regarding your conduct, and is assessed to hold a significant level of credibility, as reflected in the resultant charges. The 2019 matter is relevant in that it involves threats and acts of violence in the vicinity of children, committed in company. The basis of the crime related to a "minor drug debt" and debt recovery which raises concerns about your conduct and associations.[9] > > (emphasis added)

3. On 6 June 2023, the applicant filed an application for review of the decision in the Tribunal. It is his position that a WWCC should have been granted to him because the 2018 allegations were known to the CAU in 2021 and yet he was cleared to work with people with disability; because the 2018 allegations were the subject of a nolle prosequi and he gave an account of how they arose that is consistent with him not presenting a risk of harm; and because the significance of the 2008 conviction was outweighed by his subsequent positive conduct over 15 years.

1. In accordance with the procedural requirements of a review under s 35(2)(a) of the SACAT Act, the CAU was required to provide the Tribunal with a Statement of Reasons in relation to the decision. That is the second of the three occasions on which the CAU explained its decision.
2. The Statement of Reasons sets out the various assessable information upon which the CAU relied to reach its decision.[10] The Statement of Reasons alternates between referring to Mr Marshall in the second or third person, indicating a degree of "cutting and pasting" in the preparation of the document, but it is still capable of being understood. The Statement of Reasons is consistent with, and expands upon, the explanation in the letter to Mr Marshall dated 29 May 2023.
3. The key passages say:

Mr Marshall submitted that the 2019 offending was Nolle Prosequi, with his Solicitor suggesting significance should be made on (sic) the court reaching a non-proven outcome after hearing all available evidence.[11] He also submitted that the victim has credibility issues and he has alibi evidence from a witness which contradicts the alleged victims version of events. Similarly, Mr Marshall suggested a former partner had mental health issues and attended court to advise the Magistrate that nothing had occurred. With respect to his proven offending,[12] he denied the complainants version of events, with his Solicitor suggesting the Central Assessment Unit should conclude the matter did not resolve on the basis of the allegations, evidenced by leniency in sentencing. His Solicitor submitted that with the exception of the 2018 matter,[13] there is no evidence Mr Marshall has been a violent person, denying the allegations. Mr Marshall has been with your (sic) current partner for 15 years and has three children. In addition to this he is a business owner and has had a contract with Housing SA for the past five years. There are no concerns raised in either context. > > Mr Marshall was convicted of an aggravated assault in 2008 which related to a domestic violence incident, including an act of strangulation. Whilst the remainder of Mr Marshall's relevant offending is non-proven, it identifies a pattern of increasingly violent acts against others. There are consistencies between the matters, including credible observations of injuries consistent with the victim's version of events. The 2019 matter is relevant in that it involves threats and acts of violence in the vicinity of vulnerable person (children), committed in company. The basis of the crime related to a "minor drug debt' and debt recovery which raises concerns about Mr Marshall's conduct and associations. There is no information before the Central Assessment Unit which would indicate the underlying issues resulting in Mr Marshall's criminal conduct have been addressed. There is currently insufficient information to assist the mitigation of the identified concerns. > > This new information indicates that you pose a risk to the safety of people with disability and, as such, Mr Marshall's clearance is cancelled and he is no longer cleared to engage in disability services employment.

4. The CAU conceded at the Tribunal hearing that the reference to "new information" in the last paragraph is erroneous and that all of the information on which it relied (apart from the applicant's submission) was in its possession prior to the making of the previous decision to grant a "clearance".
5. The third occasion on which the CAU provided an explanation of its decision reasoning was by way of the CAU's written submission to the Tribunal in these proceedings and the oral submissions of its legal representative, Mr Spencer.
6. The written submissions provide a more detailed account of the reasoning process by reference to the legislation and guidelines.[14]
7. Relevantly, the respondent contended that where the CAU is faced with unproven allegations,

19.3. The decision-maker may make positive findings as to any alleged act of wrongdoing to a standard equating to the balance of probabilities. In making those findings the decision-maker may, but need not, have regard to the considerations expressed in Briginshaw v Briginshaw. This will depend on the nature of the allegations and the findings to be made. > > 19.4. If positive findings are to be made about very serious allegations (in the absence of a criminal conviction), such as the sexual abuse of a child, the decision-maker should only do so on a standard equating to the balance of probabilities. It would be appropriate in such a case to also have regard to the considerations expressed in Briginshaw v Briginshaw concerning the need for careful scrutiny of evidence and the degree of comfortable satisfaction required. > > ... > > 19.7. However, it is not necessary for the decision-maker to be satisfied on the balance of probabilities to make any positive findings that an allegation of past conduct has been made out when determining the ultimate issue about unacceptable risk. > > 19.8. The decision-maker is entitled to consider the totality of the assessable information (after careful scrutiny and 'weighting') and the related risk factors, even if no individual act is proved to a standard equating to the civil standard, and find that the information cumulatively raises 'issues of concern' ie the decision-maker is not satisfied that the alleged conduct did not occur and the concern about risk to children therefore remains. > > ... > > 28. In summary, in response to the applicant's submissions, the respondent assessed that the applicant had not supplied independent information to corroborate the submissions. The respondent was unable to exclude the possibility that the alleged conduct had occurred. > > 29. Furthermore, the respondent was entitled to consider information related to alleged offences for which the applicant had been charged, and regardless of the outcome of those charges. The alleged offences that the applicant had been charged with reflected a pattern of increasingly violent acts against others. There was consistency in the alleged conduct by the applicant. The 7 January 2018 incidents allegedly occurred in the vicinity of children and occurred in company. The allegation that the 7 January 2018 incidents occurred in relation to recovery of a drug debt raises concerns about the applicant's conduct and associations. > > 37. In relation to the applicant's history of offences and alleged offences, the respondents generally submits: > > 37.1. Greater weight is given to the fact that the allegations from the victims or alleged victims have some corroboration by third parties, police or hospital staff. > > 37.2. Greater weight is given to the fact that the allegations of offending are consistent, in that they all relate to physical violence (and particularly to the heads of victims). > > 37.3. Significantly less weight is given to unproven allegations. > > 37.4. The offending and alleged offending is for the same type of offence or conduct, which leads to an assessment of increased risk. > > 37.5. Alleged offending involved the unlawful deprivation of liberty, which leads to an assessment of increased risk. > > 37.6. Alleged offending occurred in the vicinity of a child, which leads to an assessment of increased risk. > > 37.7. The offending and alleged offending was escalating in severity, which leads to an assessment of increased risk. > > 37.8. The offending reflects a pattern of concerning behaviour, which leads to an assessment of increased risk.

8. At the hearing, the Tribunal received further evidence obtained by the applicant. That evidence was a witness statement in respect of the 2018 allegations which corroborates the applicant's claim that he was not present at the location of the alleged offending on the day of the alleged offences.[15] The statement is annexed to an affidavit of the applicant's solicitor affirmed on 15 August 2023. The respondent's position was that the applicant's additional evidence did not alter its position.

1. In reaching its decision on the review, the Tribunal must have regard to the objects and principles of the CSPP Act, as stated in s 3:

(1) The primary object of this Act is to minimise the risk to children posed by persons who work with them.

(2) In order to further the primary object, it is a further object of this Act to provide a framework for the prohibition of persons who pose an unacceptable risk to children from working with them.

(3) 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.

(4) The following principles must be taken into account in connection with the administration, operation and enforcement of this Act:

(a) a working with children check relating to a person is conducted by the central assessment unit to determine (based on an assessment of information available to the central assessment unit) -

(i) whether the person poses an unacceptable risk to children; and

(ii) whether the person should be prohibited from working with children;

(b) persons who pose an unacceptable risk to children are to be prevented from working with children ...

1. Section 26 of the CSPP Act provides that a WWCC consists of the CAU assessing assessable information relating to a person by reference to prescribed risk assessment criteria, to determine whether or not the person poses an unacceptable risk to children.
2. The task given to the CAU is a species of predictive reasoning that is particularly difficult. It entails reaching the conclusion about the risk of a future event occurring based on the correlation between that event and past events of a certain class.
3. An analysis of such a process was provided by the High Court in Minister for Immigration & Ethnic Affairs v Guo Wei Rong as follows:[16]

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. > > Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. > > ... > > It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. > > (footnotes omitted, emphasis added)

4. In the applicant's case, the CAU was constrained by the legislation and guidelines in the undertaking of its process.
5. The prescribed risk assessment criteria are contained in guidelines issued by the Minister to whom the CSPP Act is committed, under s 4 of the Act.
6. In relation to the ultimate task of determining whether a risk arises, there is no legislative guidance as what constitutes an "unacceptable risk". I endorse previous statements of the Tribunal that the likelihood of the risk is that which is not fanciful, remote, theoretical or speculative; it must be appreciable.[17]
7. The decision-maker is however assisted by being informed of the things that are in the class of past events that it may assume correlate to the future risk. These constitute the "assessable information" and are set out in s 8 as follows:

8 - Meaning of assessable information > > (1) For the purposes of this Act, the following information is assessable information in relation to a person:

(a) information that relates to offences of which the person has been found guilty;

(b) information that relates to offences with which the person has been charged;

(c) information that relates to disciplinary proceedings in which the person was a defendant or respondent;

(d) information that relates to disciplinary action taken against the person;

(e) information that relates to findings of misconduct made against the person;

(f) information that relates to the cancellation of an approval of a foster parent under the Family and Community Services Act 1972;

(fa) information that relates to the cancellation of an approval of an approved carer under the Children and Young People (Safety) Act 2017;

(g) information that relates to a notification made pursuant to Part 4 Division 1 of the Children's Protection Act 1993;

(ga) information that relates to a notification made pursuant to Chapter 5 Part 1 of the Children and Young People (Safety) Act 2017;

(h) information (whether or not obtained under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017) held by an administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Children and Young People (Safety) Act 2017 and that relates to harm caused, or a risk of harm, to a child;

(i) information provided by the person for the purposes of a working with children check;

(j) any other information, or information of a class, declared by the regulations to be assessable information.

(2) Subsection (1) applies to information -

(a) whether the relevant conviction, offence or conduct occurred before or after the commencement of this section;

(b) whether the relevant offence or conduct was committed or occurred in South Australia or elsewhere;

(c) regardless of the outcome of the charges;

(d) whether the information was obtained before or after the commencement of this section;

(e) whether or not an appeal has been lodged or finally determined in respect of the relevant matter;

(f) regardless of the outcome of any proceedings, action or appeal to which the information relates.

1. It can be seen that the past events will often be known occurrences e.g. occasions of behaviour that have been found by a court or other body to have occurred. However, it is clear from s 8 that the CAU is not limited to acting upon findings that have been established by a court or other body.
2. Guidelines were issued by the Minister to whom the Act is committed, in July 2019.[18] The matters in the guidelines must be given consideration by the CAU in its risk assessment task. The guidelines direct the decision-maker to attribute weightings to the past events, and set out the criteria for so doing, in the process of reaching a conclusion as to whether the risk threshold has been reached.
3. Relevantly, the CSPP guidelines state:[19]

While the weight given to information relates to the quality of the evidence, or the degree of reliance the central assessment unit decision maker may place on the information before them, the risk assessment criteria is concerned with the content of the information or evidence. The central assessment unit decision maker must consider the substance of the information and have regard to:

• the nature, gravity and circumstances of the information including criminal offences, child protection information or disciplinary or misconduct information and how this is relevant to children or child related work;
• the length of time that has passed since the event occurred;
• the vulnerability of the victim at the time of the event including the age of the victim, the age of the person at the time of the event, the age difference between the person and the victim and the person's relationship to the victim or position of authority over the victim at the time of the event;
• the person's criminal, child protection, disciplinary or misconduct and/or other relevant history, including whether
• there is a pattern of concerning conduct;
• the person's conduct since the event;
• all other relevant circumstances in respect of the information including offending, child protection, disciplinary or misconduct and/or other information or other relevant history, and the impact on their eligibility to be engaged in child related work. In weighing up the risk assessment criteria, the paramount consideration must be the best interests of children, having regard to their safety and protection.

1. The factors listed are relevant to the CAU's assessment of the applicant's conviction in 2008. They refer to "events" and "conduct" in a manner that is consistent with the events and conduct being known to have occurred.

The process involves determining the likelihood to foundational factual propositions as part of the attribution of weight

1. The guidelines provide less guidance about how the CAU should deal with unproven allegations of events or conduct. Particularly relevant to this review are those guidelines that govern the manner in which the CAU is to assess information that is disputed and unproven, which describes the 2018 charges and the dismissed charges from 2007-2009.
2. The guidelines state that the CAU is entitled to form a view about the existence of a risk from past events that are not proven. However, they also provide that where the past event is not proven, it is necessary to give that factor a weighting to ensure its diminished significance is accounted for.
3. In this regard, the Guidelines state:

It is not the role of the central assessment unit to determine whether an applicant did or did not do something based on the information before them, a working with children check is not an investigatory process; it is a consideration whether the behaviour indicates the applicant presents a risk to children.[20]

4. The guidelines refer to "Weighting information sources". They state:

As part of a risk assessment, a central assessment unit decision maker must review the assessable information before them, assess it, and determine if it meets the standard of proof required, and demonstrates that an applicant poses an unacceptable risk to children. > > The standard of proof required when conducting a risk assessment as part of a working with children check is the civil standard, i.e.: does the person pose an unacceptable risk to children on the balance of probabilities. > > In other words, if, following an analysis of the information, the central assessment unit decision maker determines that it is more probable than not, that an applicant poses an unacceptable risk to children, the central assessment unit will determine an applicant is to be prohibited from working with them. > > The weight given to information for the purposes of making this assessment relates to the quality, relevance and seriousness of the information. In the context of a risk assessment, it is the emphasis or degree of reliance a decision maker may place on the information before them. > > Information that is of low quality (i.e. incomplete, vague, circumstantial or uncorroborated) will be given less weight than evidence that is direct, unrefuted or supported by other information from a reliable source. For example, information provided by an independent witness or notifier in regard to abuse sustained by a child is of greater weight that (sic) information offered by a person whose evidence may be compromised in some way. > > To determine the weight to be given to assessable information in a risk assessment, the Central assessment unit will evaluate the evidence in accordance with the guidelines provided in Table 1 - Weighting Information Sources. These factors should be used as a guide only; they are not intended to be an assessment checklist. > > Possible information (evidence) before the decision maker might include:

• Regulatory or agency reports - e.g. Department for Child Protection investigation or outcome rationale reports; • Professional reports/assessment - e.g. reports from medical professionals, psychologists, police reports;
• Applicant submissions - submitted as part of the application process or during risk assessment process;
• Statutory declarations; or
• Court documents (Sentencing remarks, Court Orders) / police documents.

1. A table is provided to assist the decision-maker in the weighting aspect of the exercise.[21]
2. Matters listed in the table as being appropriate for greater weight to be placed on the assessable information are in two categories: those arising from the nature, extent and outcome of the investigation, and those arising from the applicant's submissions and evidence.
3. Matters are listed as giving rise to lesser weight to be placed on assessable information in the same categories. In that regard, the guidelines states that:

Unproven allegations will carry significantly less influence in the assessment of risk as there was insufficient evidence for a conviction.

4. What the guidelines, perhaps unhelpfully, do not set out is that, in relation to a past "event" that is unproven and not conceded, two calculations must be undertaken by the CAU to ascertain the role of that "event" in the correlation task.
5. The first is to ascertain how likely or unlikely the event is to have occurred. If the past event is unproven, some accommodation must be made for the possibility that it did not occur. Whilst not stated in the guidelines, if the CAU concludes that it did not occur, it cannot be taken into account.
6. If the possibility that the "event" did not occur is great (or conversely, the possibility that it occurred is slim) then although the guidelines allow it to be taken into account, the guidelines do not allow it to be given the same weight as a proven outcome. The likelihood of the truth or correctness of a proposition about a past event where the available information is incomplete or contradictory increases with the strength of the evidence.
7. Once a weighting for the likelihood of occurrence has been given, only then may the further necessary weightings be allocated. Those are the weightings given to past events that are known to have occurred. Those weightings include how long ago the event occurred, whether it involved children, and the numerous risk assessment criteria described in table 10 of the guidelines.[22]
8. To fail to undertake this two-step process is to fail to distinguish between proven past events and unproven past events (which may or may not have occurred), and that would be to undermine the legislation and guidelines which acknowledge that less weight must be accorded to a non-proven past event to reflect the doubt that attaches to whether it in fact occurred.
9. This does not mean that the CAU must assess the likelihood of an allegation being true with mathematical precision. There is no suggestion that the legislation or guidelines envisage that. Nevertheless, the weighting process must be undertaken with respect to both likelihood of occurrence and the risk criteria. Unless those two steps are described in some manner, or it is otherwise evident that they have been applied, the CAU's outcome will be open to the criticism that the process has miscarried. The inference that may be drawn is that unproven allegations have been treated as past proven events, rather than having their contribution to the risk assessment reduced to reflect the extent of the possibility that they are not true.

There is no evidence of weighting for the likelihood of non-occurrence in the decision

1. The past events relied upon by the CAU in the decision to issue the applicant with a prohibition notice included one proven event from 2008 and various unproven allegations including those of 2018. In relation to the unproven allegations, the CAU was required to attribute weight to them to reflect the likelihood that they were untrue, and then to apply the other weightings.
2. In each of the three occasions on which the CAU justified its decision to issue a prohibition notice, it appears to have either concluded that the unproven allegations were true, or overlooked the need to attribute lesser weight to them because they were unproven.
3. This may be inferred from the following passage of the letter sent to the applicant accompanying the prohibition:

Mr Marshall was convicted of an aggravated assault in 2008 which related to a domestic violence incident, including an act of strangulation. Whilst the remainder of Mr Marshall's relevant offending is non-proven, it identifies a pattern of increasingly violent acts against others. There are consistencies between the matters, including credible observations of injuries consistent with the victim's version of events. The 2019 matter is relevant in that it involves threats and acts of violence in the vicinity of vulnerable person (children), committed in company. The basis of the crime related to a "minor drug debt' and debt recovery which raises concerns about Mr Marshall's conduct and associations. There is no information before the Central Assessment Unit which would indicate the underlying issues resulting in Mr Marshall's criminal conduct have been addressed. There is currently insufficient information to assist the mitigation of the identified concerns. (emphasis added)

4. The above passage refers to non-proven "offending" that "identifies a pattern of increasingly violent acts". Such "offending" has not been established as having occurred. The CAU's reasoning suggests that it has accepted that the offending did occur by its reference to the "credible observations of injuries consistent with the victim's version of events". Given that the matter was dismissed by a Magistrate, more was required to reveal the extent of the probability that the decision-maker has arrived at with respect to these allegations. Unless the decisionmaker has found them to be true, their significance must have been diminished to account for the doubt.
5. Further, the letter sent to the applicant employs the language of the DSEC guidelines which does not appear in the WWCC guidelines. The letter says that the CAU is "unable to exclude the possibility that alleged conduct did in fact occur".[23] That statement of the test is not consistent with the legislation or guidelines for WWCCs.
6. That test, which appears in the guidelines issued under the DI Act, uses similar language to that which is used in the High Court's reasoning in M v M.[24] In that case, the Court was required to undertake a two-step process to determine whether a father presented a risk of harm to his daughter, in the context of an application for access. The first step was an assessment of the likelihood that the husband had, at some time in the past, sexually abused his daughter. On the basis of the outcome of that assessment, the Court was then required to take the second and primary step of determining the likelihood of the husband causing harm to the child in the future.
7. The Court said,

The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[25]

In the present case Gun J was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.[26]

9. In its decision to issue the applicant with a prohibition notice, the CAU stated that the possibility of the occurrence of the events alleged by police that gave rise to the 2018 charges cannot be excluded.[27] Those words do not reflect the CSPP Act or the guidelines. Even if they did, those words imply that the decision-maker considers that the probability of the events having occurred is at the lowest end of the scale. They imply something less than "likely" or "probable". Having made that assessment, its effect on the subsequent step of determining the risk of future harm was required to be determined, are preferably expressed. The absence of any reference to that aspect of the task suggests that the decision-maker has erroneously used the past events in that process on an erroneous basis. The error is to reason that, because the occurrence of the past events not been excluded as a possibility, it is to be treated as if it is true.
10. The CAU's defence of the decision-making before the Tribunal did not deviate from this approach. Mr Spencer for the CAU submitted that "the decision-maker is entitled to consider the totality of the assessable information (after careful scrutiny and weighting).... and find that the information cumulatively raises 'issues of concern' i.e. the decision-maker is not satisfied that the alleged conduct did not occur and the concern about risk to children therefore remains." This conflates two issues. The guidelines do not require that an allegation of a past event is proven to any particular standard before being relied upon. However, that is not to say that the likelihood of the allegation being true is irrelevant once it is established that the truth of the allegation cannot be ruled out. It is still necessary to assess how likely the allegation is to be true, in order to give the weighting that the guidelines require when they state that "low quality information" is to be given lesser weight and that the quality of information must be factored into its use.[28]
11. There was no evidence in the CAU's decision-making that once an allegation was determined to be relevant, it was allocated a weighting that included consideration of the likelihood that it was true or false. The reasoning, however, indicates that the decision-maker assessed the risk presented by the applicant by reference to all the allegations as if they were true. The fact that some of the allegations were dismissed, the 2018 charges were subject to a nolle prosequi, and the applicant supplied a witness statement corroborating the applicant's assertion that he was not present on occasion when the victim says he was assaulted were not accorded any weight by the decision-maker.
12. The Tribunal draws the inference is that the decision-maker erred in the process of assessing the risk presented by the applicant, and the decision should be set aside.

It was open to the CAU to revisit the earlier decision and reach a different conclusion

1. Whilst it is not strictly necessary, it is convenient to briefly deal with one of the applicant's other criticisms of the decision. The applicant challenged the decision on the basis of its inconsistency with its own earlier decision to grant a DSEC, when no new relevant information had come to light except information that tended to support the applicant's case.
2. It is sufficient to say that the role of the Tribunal is to reach the correct or preferable decision in respect of the matter that the decision-maker was required to determine. The CAU is not bound to act consistently with its own previous decisions if it considers that they were wrongly decided.

1. The reasons for decision disclose an error in the process. The guidelines have not been followed. The process requires that before a past event can be relied upon, an assessment of its likelihood of occurrence must be undertaken, and the result must be applied to reach a determination of the extent to which that past event contributed to the finding of an appreciable risk. The reasons are consistent with this not having occurred and the process miscarried.
2. It then falls to be considered whether the decision should be remitted to be remade, or whether the Tribunal should make the decision. In this case, I consider that the Tribunal can undertake the assessment process on the assessable information received.
3. I take into account that the relevance of the 2008 conviction has been significantly diminished by the passage of time and the fact that the applicant has not attracted any criticism, report, or allegation (except one allegation found not substantiated) in relation to children. I accept that the penalty that was imposed for the 2008 conviction is not consistent with the allegations as they were originally made. The allegation of an act of strangulation was not proceeded with and should be assumed not to have occurred or be less likely than the balance of probabilities.
4. In respect of the allegations in relation to the events of 2007-2009, I consider that the information provided by the applicant casts doubt on the accuracy of the reported allegations. Significant doubt attaches to the specifics of any of the allegations. I would attribute a low weight to these events in terms of the likelihood of occurrence and to that, their age must be added as a relevant weighting in the risk assessment process.
5. In respect of the 2018 allegations, I consider that the information provided by the applicant casts doubt upon whether the unproven allegations are true. Their contribution to the decision must be substantially diminished by the doubt that attaches to them. I find them to be less likely than not to be untrue insofar as they relate to the applicant.
6. I do not consider that the relevant assessable information, when appropriated weighted, leads to the conclusion that the applicant poses an unacceptable risk to children. I determine that the applicant is not prohibited from working with children.

1. By virtue of considering the assessable information, the CAU determined to revisit the applicant's DSEC.
2. The CAU commenced a risk assessment of the applicant under s 18N(3) of the DI Act which provides that the a risk assessment for the holder of a clearance is required if the CAU becomes aware that there are circumstances that require a risk assessment.
3. A preliminary issue therefore arises. The circumstances of which the CAU maintains it "became aware" is the circumstance of its own formation of the view that the applicant presents an unacceptable risk to children such that a WWCC prohibition notice should be issued to him, followed by the issuing of the prohibition notice itself.
4. Ms Whish-Wilson submitted that the CAU did not become aware of circumstances that enlivened the obligation to conduct a fresh risk assessment. She submitted that all of the circumstances that the CAU was aware of were already known to it, except for additional information supplied by the applicant which tended to support his application.
5. Mr Spencer argued that the issuing of a prohibition notice is properly understood to be a circumstance for the purposes of s 18N(3). He submitted that it was untenable that a person should hold, in effect, a clearance to work with one class of vulnerable person and a prohibition in respect of working with another.
6. The Tribunal accepts that the issuing of a prohibition notice under the CSPP Act can act as a circumstance that enlivens the obligation for the CAU to conduct a risk assessment in respect of a person who currently holds a DSEC. However, in this case, the Tribunal has found that the reasoning employed by the CAU was flawed and that it should not have prohibited the applicant from working with children.
7. Accordingly, the CAU had no basis for proceeding to conduct a risk assessment under the DI Act and I find that the risk assessment had no legislative authority.
8. In any event, the CAU went through a similar process of considering the same material to reach the conclusion that the applicant's DSEC should be cancelled as he presents a risk to people with a disability. For the reasons outlined above in relation to the assessment conducted by the CAU for the applicant's WWCC, I consider that the CAU's reasoning process was non-compliant with the guidelines.
9. Accordingly, the cancellation of the DSEC should be set aside, and the earlier DSEC remains in force.
10. A further observation may be made. No issue was raised before the Tribunal as to whether the DSEC guidelines were within the scope of the legislative power to make them. Accordingly, there is no basis for the Tribunal to consider that matter. This decision, however, may provide a basis upon which the relevant Government entities consider whether the guidelines, particularly the guidelines issued in relation to the decisions concerning people working with disability, lawfully direct the manner by which the assessable information is dealt with. On their face, the guidelines may direct decision-makers to conclusions that lead to clearances being refused in circumstances not contemplated by the legislation.

1. The decision of the respondent on 29 May 2023 to prohibit the applicant from working with children is set aside, and in its place, the Tribunal makes the following order:

1. The decision of the respondent on 29 May 2023 to cancel the applicant's Disability Support Employment Clearance is set aside.

1. [11] This is inaccurate. The solicitor wrote that "it would be wrong of the CAU to diminish the significance of a conclusion by the Director of Public Prosecutions that the charges enjoyed no reasonable prospects of success and should therefore be the subject of a nolle prosequi, particularly given how serious they were"; Section 35 documents, p 111.
2. [12] Though positioned oddly at this point in the reasons given that what it follows from which is a discussion of charges that were the subject of a nolle prosequi, this sentence can only refer to the 2008 charge of which Mr Marshall was convicted.
3. [13] This is misleading. The solicitor stated, "[w]ith the exception of the 2018 court matter, which we say was demonstrably false, there is no information that Mr Marshal (sic) has been a violent person (and that is denied in any event) for the last 14 years"; Section 35 documents, p 113.

[15] Affidavit of Eleanor Whish-Wilson affirmed 15 August 2023, EW-05.

[16] [1997] HCA 22; (1997) 191 CLR 559 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-576.

[17] Griggs v Department of Human Services [2023] SACAT 60 at [53]; GJC v Department of Human Services [2020] SACAT 38 at [114].

[19] Working with Children Check Guidelines, July 2019, chapter 10.

[20] Working with Children Check Guidelines, July 2019, p 15; Section 35 documents, p 30.

[21] Working with Children Check Guidelines, July 2019, p 20; Section 35 documents, p 36.

[22] Working with Children Check Guidelines, July 2019, p 23, Section 35 documents 38-42.

[24] (1988) 166 CLR 69; [1988] HCA 68.

[28] Working with Children Check Guidelines, July 2019, p 18, Section 35 documents 33.