• The nature of the offence (trafficking in methamphetamine) for which the applicant was convicted is extremely serious and involves conduct which constitutes a significant risk of harm towards himself and to others, particularly children.
• The applicant had a 30-year history of drug addiction and remains on parole under supervision and testing conditions; he should be commended for the progress made since his release on parole, but in order to demonstrate exceptional circumstances in this case his drug rehabilitation must be measurable in years rather than months.
• The applicant has not demonstrated exceptional circumstances necessary to overcome the presumptive disqualifying offence.
• The applicant is therefore presumed to continue to pose an unacceptable risk to children.

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 - Presumptive disqualification offence - Consideration of convictions - Exceptional circumstances - Rehabilitation - Length of rehabilitation period

Child Safety (Prohibited Persons) Act 2016 s 4, s 15, s 26, s 26A, s 32

Controlled Substances Act 1984 s 32

Criminal Law Consolidation Act 1935 s 32, s 33I

Wombat v Department of Human Services [2020] SACAT 97

GJC v Department for Human Services [2020] SACAT 38

Ireland v Department of Human Services [2020] SACAT 96

R v Skinner (2016) 126 SASR 139

Mr D Micklethwaite, Crown Solicitor's Office, appeared for the respondent with instructing officers

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of 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. This is an application for the review of a decision of the Department of Human Services - Central Assessment Unit (the CAU) to issue a prohibition notice prohibiting Gregory John Mepstead (the Applicant) from working with children.
2. The notice was issued on 21 April 2022 under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act). The effect of the notice is to prohibit the Applicant from working with children pursuant to s 15(1)(a) of the Act (the Prohibition Notice Decision).
3. The Applicant then applied to the South Australian Civil and Administrative Tribunal (Tribunal) for review of the decision of the CAU to issue the prohibition notice.
4. The Tribunal's task on the review is to examine the decision of the decision maker (the CAU in this case) by way of a rehearing, with a view to reaching the correct or preferable decision but having regard to, and giving appropriate weight to, the decision of the original decision maker.
5. On the review the Tribunal is to consider the evidence that was before the CAU and any further evidence or material the Tribunal allows the parties to place before it for the purpose of rehearing the matter.
6. The Tribunal has the power to affirm, vary, or set aside the decision under review. When setting aside a decision, the Tribunal may substitute its own decision or send the matter back to the CAU for reconsideration.
7. Mr Mepstead was unrepresented in the review hearing. The hearing was run with the minimum of formality.
8. At the full hearing, the Tribunal permitted the applicant to tender various references and reports relevant to his character and relevant to the question of whether the notice should remain in place. The Tribunal also invited Mr Mepstead to call some witnesses in support of his argument that he should no longer be presumed to be an unacceptable risk to children and that the notice should be set aside on the review.
9. The matter was adjourned to enable this to occur. The Tribunal heard from two witnesses: Mr Craig Evans, Counsellor Alcohol and Other Drugs Service, Life without Barriers and Mr Sonny Phillip, Community Corrections Officer.
10. An order (Attachment 1) was made on 10 July 2022 affirming the decision under review. These are the reasons for the decision.

Prohibition Notices under s 32 and 'presumptive disqualification offence'

1. The CAU must issue a prohibition notice under s 32(1) of the CSPP Act if, on completing a Working with Children Check (WWCC) it determines under s 26(5) that the person is to be prohibited from engaging in child-related work.
2. In conducting a WWCC under s 26, the CAU determines whether or not a person "poses an unacceptable risk to children" based on an assessment of "assessable information" in relation to that person against the "prescribed risk assessment criteria".
3. Under s 26A(1)(a) of the CSPP Act a person is presumed to pose an unacceptable risk if the person has been found guilty of a "presumptive disqualification offence" (PDO). The CAU need not consider or assess any further information in relation to an application for a WWCC made by the person.
4. Mr Mepstead has been convicted of a "presumptive disqualification offence", namely the offence of trafficking in a commercial quantity of a controlled drug (methamphetamine) (basic) contrary to s 32(2) of the Controlled Substances Act 1984 (CS Act).
5. This offence is a serious criminal offence. It carries a maximum sentence of imprisonment for a basic offence of 25 years and a fine of $200,000.

1. Mr Mepstead can set aside the presumption if he satisfies the CAU or the Tribunal on review that:
   1. the circumstances of the PDO are such that the offence should be disregarded in determining whether the person poses an unacceptable risk to children; or
   2. that such exceptional circumstances exist in relation to the person that the person does not appear, or no longer appears to pose an unacceptable risk to children.
2. Working with Children Check Guidelines (the "Guidelines") have been published in relation to the conduct of a WWCC, pursuant to s 4 of the CSPP Act to assist the CAU in conducting correct and consistent decision making under the Act.
3. The Guidelines provide that the Applicant bears the burden of demonstrating either matter in order to rebut the presumption in s 26A of the CSPP Act. This approach has been confirmed by the Tribunal.[1]
4. If the Applicant fails to establish before the CAU or the Tribunal the matters prescribed in s 26A(1)(c), the Tribunal must determine that the Applicant is prohibited from working with children and uphold the Prohibition Notice Decision.
5. The Guidelines provide some examples of factors that may be relevant for consideration for the purposes of s 26A(1)(c)(i), namely:

Factors to be considered may include but are not limited to: the offending was in response to an abusive domestic violence relationship; the person was acting in self-defence to, or defending another, against an unprovoked assault; or the person committed the offending under the direction/duress of a person in authority (e.g., a family member).

6. Mr Mepstead is not challenging the CAU's decision by arguing that the circumstances of the PDO are such that the offence should be disregarded; he accepts that the offending was serious and for that reason he received a very significant head sentence of six years three months and three weeks imprisonment (unsuspended).
7. The Guidelines also provide some examples of what might amount to exceptional circumstances for the purposes of s 26A(1)(c)(ii), namely:

In order to be exceptional, such circumstances "must, at the very least, be unusual or in the nature of an exception and of such significance that it justifies displacing the statutory presumption that the person poses an unacceptable risk to children". > > Exceptional circumstances that may exist in relation to the person such that the person does not appear or no longer appears, to pose an unacceptable risk to children may include but are not limited to... > > the Applicant has voluntarily completed a supervised intervention program (treatment, rehabilitation, behaviour management). > > Independent evidence must exist which verifies the exceptional or other circumstances, either provided by the Applicant or identified by the central assessment unit. The word of the person the subject of the application is not sufficient. > > The age of the offence or that a person has not offended since the presumptive disqualification offence are, in and of themselves, factors not capable of satisfying the [CAU] that the person should not be presumed to pose a risk to children and/or that the relevant offending should be disregarded for the purposes of assessing risk to children. > > In assessing the person's circumstances, the paramount consideration of the central assessment unit must be the interests of children, having regard to their safety and protection.

8. The Guidelines also discuss matters that are not to be taken into account in a risk assessment to determine whether a person poses an unacceptable risk to children. It follows that such matters would also not be relevant to determining whether the person had satisfied the CAU or the Tribunal that they do not appear or no longer appear to pose an unacceptable risk to children. Those matters are as follows:

The impact of a prohibited outcome on the person - the rights of, or personal impact on the person the subject of the application, should they be prohibited from working with children following a risk assessment are not relevant considerations in assessing whether they pose an unacceptable risk to children > > The role of the person the subject of the application - a working with children check outcome is portable between roles and employers. Any stated role of the person at the time of the application or throughout the assessment process bears no weight as to whether the Applicant poses an unacceptable risk to children; and/ or > > Lived experience - it is acknowledged that some individuals, by virtue of their history, have valuable lived experience to share with children, and that a person can make significant changes in their life, this alone is not relevant for the risk assessment.

1. The drug offence was committed in November 2014. The applicant was arraigned in the District Court on 14 September 2015. The applicant was released on police and then court bail. It was not a requirement of his bail agreement that he submit to urinalysis to screen for drug use. He remained on bail until his guilty plea, conviction and sentence in the District Court on 6 November 2017.
2. The Applicant explained that the very considerable delay between the commission of the offences and the conviction and sentence was due to ongoing negotiations between his solicitor and police about the charges.
3. On 6 November 2017, the Applicant was convicted in the District Court of Adelaide of one count of trafficking in a commercial quantity of a controlled drug (namely methylamphetamine) (basic) contrary to s 32(2) of the Criminal Law Consolidation Act 1935 (CLCA Act), (the offending occurred in November 2014); and one count of possession of methylamphetamine for supply contrary to s 33I(1)(b) of the CLCA (committed two weeks after the trafficking offence).
4. He was sentenced to six years, three months and three weeks imprisonment with a non-parole period of four years.
5. The drug trafficking offence is the relevant PDO offence under consideration by the Tribunal.
6. The Tribunal has considered the sentencing remarks of District Court Judge, Judge Brebner. This reveals that the offending for the trafficking offence was serious. It involved the possession of 135 grams of methylamphetamine crystals with a street value of up to $135,000, and possession of some of the recognised indicia of trafficking and cash in the amount of $1,374. Some of the messages stored on the Applicant's phone made it clear that he had been selling for a period of some four or five weeks, had an established clientele and some of the amounts dealt with were not insignificant.
7. The offending for the possession offence involved the applicant, some two weeks after the first offence, being found in possession of paste containing 2.61g of methylamphetamine.
8. The Judge noted that the Applicant had suffered from substance abuse for many years, had undergone counselling for extended periods of time and, notably, committed the current crimes during the most recent of these periods (i.e., when he was undergoing counselling).
9. The Judge observed that the Applicant had "an addiction history stretching back some 30 years". The previous offending had not been "particularly serious" but the Applicant's overall respect for the law was considered by the sentencing judge to have been inadequate.
10. Judge Brebner noted the Applicant was 51 years of age and had suffered from a number of serious health issues including a drug induced heart attack. He also had a history of mental health issues stretching back to his childhood experiences and the guilt he felt over the death of his son in a car accident some years earlier, but that the Applicant described his mental health at the time of sentencing as "average".
11. It was noted by the sentencing Judge that the applicant had the care and custody of two of his grandchildren. The Judge took into account a psychologist's report. The expert's opinion at that time was that Mr Mepstead's "prognosis is fair, and [his] motivation for change is related to the care of [his] grandchildren".
12. The Judge noted that "suspension or home detention was simply out of the question and indeed, I do not understand your counsel to be suggesting otherwise."
13. Mr Mepstead was incarcerated and then released from prison on home detention in February 2020. It is accepted that he completed 21 months on home detention "without issue".
14. On 18 November 2021 he was released from home detention on parole. His parole conditions include a requirement that he submit to random urinalysis to determine whether he is using or abstaining from drugs.

Applicant's submission about exceptional circumstances

1. The applicant submits that the following circumstances are relevant to setting aside the presumption in s 26A.
2. He says he is no longer using illicit drugs and that there have been no positive urinalysis results since he has been on parole under supervision and with other conditions.
3. He did not participate in the methadone program on release from prison as he preferred to rehabilitate himself without using another drug. He now feels much heathier and is positive about his future away from using illicit substances.
4. This submission was supported by fresh evidence before the Tribunal from Mr Sonny Phillip, Community Corrections Officer. Mr Phillip spoke positively about how Mr Mepstead had been faring since his release on parole. He observed him to be motivated to stay off drugs and to rehabilitate himself given his current, more stable personal circumstances. Due to his progress the Department of Correctional Services (DCS) no longer requires the applicant to attend weekly to meet with his parole officer under the conditions of his parole.
5. Mr Craig Evans, Counsellor Alcohol and Other Drugs Service, Life Without Barriers also gave some evidence relating to the applicant's progress since his release from prison. He has been seeing the applicant for counselling sessions since 19 March 2020. He was satisfied with the applicant's attendance at counselling but noted there had been limited engagement with Mr Mepstead in "unpacking" his motivation for using illicit drugs. He said this was not surprising given that, in his experience, a constant focus on, and conversations about, a person's lifelong drug habit often led to a craving for, and a reconnection with, using illicit substances. Mr Hill spoke positively about the applicant's progress in obtaining employment. Mr Mepstead had not returned for counselling since February 2022.
6. The Applicant has, to his credit, been employed since being released on parole. He has provided multiple employer references, providing evidence addressing his character, honesty and reliability in that context.
7. The Applicant has provided a copy of his Mental Health Care Plan, and although it is unclear that it resulted in any follow up referrals for ongoing support, it does indicate that "patient education" was provided.
8. He has stopped socialising with persons from his previous life who he considered were negative influences.
9. The Applicant is in a stable long-term relationship and describes his current partner as a positive influence on his life. His partner told me she would not tolerate Mr Mepstead returning to the use of illicit drugs.
10. He has provided four references from family members of his partner and a reference from one of his partner's long-term friends.
11. Those references provide supporting evidence highlighting the role and importance of the Applicant in the lives of his partner and her grandson. Mr Mepstead's partner is now a "kinship carer" via the Department for Child Protection for her young grandson. Mr Mepstead needs a working with children clearance to live in the home with his partner.
12. Because he does not have a clearance, Mr Mepstead has had to move out of the home pending this review and is currently living with his daughter. He is sad about this situation.
13. References from professionals involved in the kinship placement process are provided attesting to the positive role and importance of the Applicant in his partner's grandson's life. Mr Mepstead describes caring for his partner's grandson as "the biggest priority in his life as it gives it meaning".

1. I have considerable sympathy for Mr Mepstead who is taking positive steps to "turn his life around" and to become a good role model and carer to his partner's grandson. The lack of a clearance will mean that he can no longer reside with his partner to help care for her grandchild.
2. However, I must remind myself that the purpose for which a WWCC is sought, and the impact the outcome may have on the Applicant (and arguably those in his life such as his partner's grandson), are not relevant factors to the assessment of whether the applicant poses an unacceptable risk to children.
3. In GJC v Department for Human Services[2] I discussed the meaning of the term "unacceptable risk". In summary, this requires an evaluation of the nature and degree of the risk to children (i.e., to all children) posed by the applicant and whether it is acceptable to allow it. In other words, it requires a consideration of the likelihood of concerning or criminal conduct occurring in the future and the seriousness of the consequences of the conduct if that conduct eventuates.
4. Whether "exceptional circumstances" exist for the purposes of s 26A(1)(c)(ii) must be determined in the relevant legislative context. Regard must be had to the purpose of the relevant provision and the objects of the CSPP Act.[3]
5. The paramount consideration in the administration, operation and enforcement of the CSPP Act is the best interests of children, having regard to their safety and protection. Consistently, s 26A(1)(c)(ii) requires "exceptional circumstances" to exist such that they demonstrate that the person "does not appear, or no longer appears to pose an unacceptable risk to children". This clearly links any relevant exceptional circumstances to the risk to children.
6. In Ireland v Department of Human Services [2020] SACAT 96, the Tribunal accepted at [30] that "exceptional circumstances" must be "out of the ordinary course, unusual, special or uncommon"; must be personal to the Applicant; and must be such that they satisfy the Tribunal that the person appears not to pose an unacceptable risk to children".
7. The Tribunal also accepted the principle discussed in Skinner that the bar must not be set so high as to be unachievable.[4]
8. In Ireland the Tribunal was satisfied that the PDO was an old conviction for that applicant of trafficking in a controlled drug (cannabis) (i.e., some six years before the WWCC application) when Mr Ireland was quite a young man. The Tribunal took into account evidence of the applicant's considerably reformed behaviour which was found to be a sustained change of circumstances brought about by his own endeavours and unassisted by a parole officer closely supervising his behaviour. There was also evidence before the Tribunal of the applicant's years of stable employment, a lack of any subsequent offending, community service involving the coaching of children, caring for a sick mother and demonstrated lifestyle stability. The tribunal member considered that Mr Ireland's conduct since the commission of the PDO over many years demonstrated reformed behaviour and real insight into his past behaviour. These combined factors were found to be "exceptional circumstances" sufficient to set aside the presumption in the Act.
9. The facts in the Ireland case are significantly different to those in this review. It is notable that the offending in the Ireland case related to the trafficking of cannabis for which Mr Ireland (then a young man) was convicted to two years imprisonment with the sentence wholly suspended. Clearly, Mr Ireland did not have a history of years and years of addiction to highly addictive illicit substances. There had been a demonstrated, sustained (over many years), unsupervised change in his previous antisocial, drug related behaviour. He was able to demonstrate that he was no longer involved in any drug related conduct which might pose a risk to children.
10. Mr Mepstead's past offending, sustained use of illicit drugs over many decades and overall circumstances are quite different to Mr Ireland's.
11. However, Mr Mepstead should be commended for seeking to rehabilitate himself, and to attempting to "turn his life around". His recent employment history, clean drug urinalysis results and stable relationship indicate that he is well on the way to this outcome. He has commenced taking positive steps to reform himself by abstaining from unlawful activity and relocating away from localities and peer groups related to his prior offending.
12. The references provided by the Applicant in relation to those matters are relevant for the CAU and the Tribunal when assessing Mr Mepstead's character more generally and his motivation and commitment not to re-offend. These factors do demonstrate that the Applicant is now "settling down" and taking steps to reform.
13. One of the submissions put to me by the applicant is that he is no longer using methamphetamine or any other illicit drug and that he has returned "clean" urinalysis results whilst on parole (since late 2021). The effect of this submission is that he is no longer using and will not return to using illicit substances.
14. However, the evidence about Mr Mepstead abstaining from the use of drugs is very recent (particularly, given what the Judge described as his "lifelong addiction to illicit drugs" over 30 years) and has been obtained under the strict conditions of supervision whilst on parole.
15. This submission would have been much more forceful if Mr Mepstead had been able to adduce evidence to satisfy the Tribunal that he had not been using illicit drugs (especially methamphetamine) since shortly after the date of his arrest in 2014.
16. Unfortunately, I do not know anything about how the applicant fared regarding his use of illicit drugs between the date of his arrest in 2014 and the date of his conviction and sentence three years later. There is no evidence before me about the applicant's drug use (if any) during that time, or whether there was any attempt by the applicant to rehabilitate and cease using drugs whilst on bail, or as to whether he attended counselling sessions during that time regarding his drug use.
17. The sentencing Judge referred to a psychological report regarding his prognosis at the time of sentence, although I do not have a copy of the psychological report. The Judge commented that the expert was of the view that his prognosis was only "fair" at that time.
18. There is also no information before me about whether the applicant accessed and/or used drugs whilst incarcerated.
19. It would have assisted Mr Mepstead in this review, regarding his submission that there were exceptional circumstances to set aside the presumption, if there had been some favourable evidence about these issues.
20. The other factor of significant concern is that Mr Mepstead was using and trafficking in the illicit substance methamphetamine. I am aware that this is a highly addictive, insidious and dangerous drug which can lead to long term addiction and mental health issues. I am aware that regular users of such drugs pose a considerable risk to themselves, those in their immediate families and to society (including to children in their care). The Tribunal (or the CAU on any future revocation application) would need to be satisfied of the rehabilitation of the applicant, i.e., of his sustained non-involvement with the use of such drugs, over years rather than months.
21. I agree with the comments of the CAU that "(methamphetamine) use is linked to family breakdown, domestic violence, and as a result places children at risk. People who traffic in such drugs are directly responsible for the harm it causes."[5]
22. Given the recency of the applicant's release from home detention on parole, the strict conditions of his supervision, and the absence of any positive evidence about his long-term prospects for rehabilitation I agree with the respondent's written submission that:

It would appear that he may well be at the beginning of his rehabilitation journey and consequently there remains obvious risks of relapse into the conduct that attracted the PDO conviction. > > At this time, it is also unclear whether the Applicant has yet undertaken sufficient counselling to process the lifelong experiences related to his offending, noting his Mental Health Care Plan indicates that cognitive behavioural therapy may be needed in the future. > > On the limited report (and evidence) provided by Life Without Barriers, it is unclear whether the counselling received to date has gone into any substantive depth in dealing with and resolving these matters. > > For these reasons the Respondent submits that the Applicant's circumstances are neither at this point exceptional, nor sufficient to demonstrate that he does not appear, or no longer appears to pose an unacceptable risk to children.[6]

23. In these circumstances it is the Tribunal's view that the correct and preferable decision is that Mr Mepstead's presumptive disqualification offence should not be disregarded for the purpose of the conduct of a working with children check. There are no exceptional circumstances which would justify setting aside the presumption that he poses a risk to children.
24. Accordingly, under s 26A(1)(c) CSPP Act, the Tribunal must determine that the Applicant is prohibited from working with children and uphold the Prohibition Notice Decision. The applicant is presumed to pose an unacceptable risk to children.
25. The decision of the Department made on 21 April 2022 in relation to Mr Mepstead's application for a working with children clearance is affirmed.

[1] Wombat v Department of Human Services [2020] SACAT 97 [25] ('Wombat').

[2] [2020] SACAT 38.

[3] R v Yavuz (2018) 130 SASR 231, 259; R v Skinner (2016) 126 SASR 120, 139.

[6] Outline of Argument of Mr Micklethwaite for the respondent.