The Tribunal was satisfied on the basis on the submitted information that the decision under review is not the correct or preferable decision and should be set aside.

The decision subject to review (namely the decision 19 September 2019 to issue a prohibition notice pursuant the Child Safety (Prohibited Persons) Act 2016) is set aside and, in its place, the Tribunal substitutes the following decision:

The determination of the working with children check conducted in relation to Mr Mead is that Mr Mead is not prohibited from working with children.

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

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

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

Controlled Substances Act 1984 s 32

Ms J Beauchamp, Crown Solicitor's Office, for the respondent:

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

1. This application was made to the Tribunal on 27 September 2019 by David Mead, for a review of a decision made on 19 September 2019 by the Department of Human Services - Central Assessment Unit (the Department), to issue a prohibition notice which prohibited Mr Mead from working with children.
2. The prohibition notice was issued pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Act).
3. Mr Mead sought a revocation of that order, but in a decision made on 17 October 2019 the Department rejected the application to revoke the prohibition notice.
4. Prior to this hearing the Department advised that it now took the view that the original decision subject to the review, of 19 September 2019, should be set aside.
5. At the hearing Ms Beauchamp told the Tribunal that prior to the original decision being made Mr Mead was advised that it had been identified that he had been found guilty of a presumptive disqualification offence and under these circumstances the Central Assessment Unit was obliged under the Act to prohibit him from working with children unless he could establish this was not the case. He was invited to make submissions to the Department within 30 days.
6. No submissions were received from Mr Mead and accordingly the prohibition notice was issued.
7. Mr Mead then made this application to the Tribunal and Ms Beauchamp advised that on investigation it was considered that Mr Mead's written application made out an arguable case for setting aside the original decision.
8. Section 26A of the Act sets out circumstances where certain persons are presumed to pose an unacceptable risk to children. In particular it provides as follows:

(1) ... the following provisions apply in relation to the conduct of a working with children check in respect of a person who has been found guilty of a presumptive disqualification offence ...

(a) The person will be presumed to pose an unacceptable risk to children;

(b) ...

(c) The central assessment unit must ... determine that the person is to be prohibited from working with children unless the person satisfies the central assessment unit that -

(i) The circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether the person poses an unacceptable risk to children; or

(ii) 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.

1. Presumptive disqualification offences are set out in the Regulations made pursuant to s 26A(4) of the Act.
2. Regulation 15A declares certain offences as presumptive disqualification offences. Regulation 15A(g) includes as such offences

An offence against a following provision of the Controlled Substances Act 1984:

(i) Section 32 (trafficking);

(ii) Section 33F (sale, supply or administration of controlled drug to child);

(iii) Section 33G (sale, supply or administration of controlled drug in school zone);

1. Ms Beauchamp told the Tribunal that Mr Mead had been convicted in 2011 of an offence under s 32(3) of the Controlled Substances Act 1984 which is a presumptive disqualification offence_._ It was on this basis that the prohibition notice was issued.
2. Mr Mead did not respond to the request to provide submissions to rebut the legislative presumption thereby established that he posed an unacceptable risk to children. Accordingly, the prohibition notice was issued.
3. However Ms Beauchamp submitted that the material subsequently provided by Mr Mead in support of his application to the Tribunal provided material to rebut the presumption and establish that exceptional circumstances exist and Mr Mead no longer posed an unacceptable risk to children, as set out in s 26A(c)(ii) of the Act.
4. She said that the written submissions indicated Mr Mead was under significant financial pressure at the time the relevant offence was committed, and he had no further involvement with drugs of any kind since the conviction. The offence was also at the lower end of the scale and he received a good behaviour bond. In addition, he was supported by his employer and was regarded as a reliable and sound employee. The offending occurred in 2011 and there had been no other offences of this nature.
5. Ms Beauchamp submitted that this was sufficient to rebut the presumption established by the presumptive disqualification offence, and all other relevant information was before the Tribunal.
6. She further submitted that pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act), the Tribunal's role is to examine the decision subject to review by way of a rehearing with a view to reaching the correct or preferable decision. Under these circumstances the Tribunal may take into account additional information not before the original decision maker, and has the power to affirm, vary or set aside the decision, and substitute its own decision (see s 37 of the SACAT Act).
7. She submitted that the original decision should be set aside and the Tribunal should substitute a new decision that Mr Mead is not prohibited from working with children.
8. Mr Mead told the Tribunal he had "a lot on" at the time he had been notified by the Department and invited to make submissions, and he had not been able to do so. He said that as soon as the prohibition notice was issued, he had lost his job. He had obtained some alternative work "FIFO" work in mining, 500 kilometres away, and he is unable to spend time with his family. He had made inquiries about the possibility of obtaining his old job if the notice was rescinded but had been told the job was no longer available at all. He had worked well in the job for 15 years and had his employer's support, but now he had lost the opportunity to continue in it.
9. I am satisfied on the basis of the information and the submissions before me that the decision under review is not the correct or preferable decision and should be set aside.
10. 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 and indicated he was regarded as a reliable and good employee and had worked for the employer for 15 years.
11. Under these circumstances despite the presumption established by the Act I am satisfied Mr Mead has established that he does not appear to pose an unacceptable risk to children, establishing "exceptional circumstances" within s 26A(1)(c)(ii) of the Act. The correct and preferable decision in this matter in my view is that Mr Mead should not be prohibited from working with children, and the original decision should therefore be set aside.

1. The decision subject to review (namely the decision 19 September 2019 to issue a prohibition notice pursuant the Child Safety (Prohibited Persons) Act 2016) is set aside and, in its place, the Tribunal substitutes the following decision:

The determination of the working with children check conducted in relation to Mr Mead is that Mr Mead is not prohibited from working with children.