Administrative Tribunals - Procedure - Jurisdiction - Reviewable decisions

Administrative Review - Child Safety (Prohibited Persons) Act 2016 - Review of a decision by the Central Assessment Unit to issue a refusal to revoke a prohibition notice - Consideration of discontinued charges

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

Child Safety (Prohibited Persons) Act 2013 ss 5, 26, 26A, 32, 33, 43

Criminal Law Consolidation Act 1935 s 50

Ireland v Department of Human Services [2020] SACAT 96

DJM v Department of Human Services - Central Assessment Unit [2023] SACAT 3

Re Gould and Companies Auditors and Liquidators Disciplinary Board [2008] AATA 814

GJC v Department of Human Services [2020] SACAT 38

M v M (1988) 166 CLR 69

Mr S Withers, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

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

1. This matter commenced by way of an application to review a decision of the Department of Human Services - Central Assessment Unit ("CAU"), to refuse to revoke a prohibition notice, prohibiting the applicant from working with children.
2. In June 2020 the respondent issued a prohibition notice against the applicant, on the basis that he had been charged with a presumptive disqualification offence.
3. Subsequently the charges against him were not proceeded with, and the applicant applied to have the prohibition notice revoked.
4. On 30 September 2022 the CAU advised that it would not revoke the prohibition notice.
5. On 12 October 2022 the applicant applied to the Tribunal for a review of that decision.
6. In these reasons where I have used underlining, that has been done for emphasis rather than necessarily being part of the document or legislation I am referring to.
7. On 16 December 2022 I handed down reasons for a decision that the decision to refuse to revoke a prohibition order did not fit the statutory definition of a 'reviewable decision', as s 43 of the Child Safety (Prohibited Persons) Act 2016 ('CSPP Act') defined a reviewable decision as a decision to 'issue or revoke' a prohibition notice, but not a decision to 'refuse to revoke'. It also referred to decisions of a kind declared by the regulations to be included in the ambit of the definition (but the decision to refuse to revoke is not declared by the regulations to be a reviewable decision). Nonetheless, on the basis of the approach in Ireland v Department of Human Services [2020] SACAT 96 I held that it might be argued that an extension of time could be granted to review the underlying decision to issue a prohibition notice in the first place, and that on a rehearing, the Tribunal has a discretion under s 34 of the South Australian Civil and Administrative Tribunal Act (SACAT Act) to receive further evidence that was not available to the original decision maker.
8. I should indicate that my decision of 16 December 2022 was based on an interpretation of s 43 of the CSPP Act and not on the basis of a 'policy' decision - I suspect that it is possible that the way s 43 was drafted may have been due to oversight rather than a deliberate policy choice, and if it was my job to do so would recommend that s 43 be redrafted to make clear that a decision to refuse to revoke a prohibition order should be a reviewable decision. I note that the respondent had originally submitted that a decision to refuse to revoke a prohibition notice was a reviewable decision. It had also submitted that a construction that would find that s 43 did not extend to the decision to refuse to revoke would 'appear to cut against the intended purpose of s 43'. The reason for my decision of 16 December 2022 was that it was not the role of the Tribunal to rewrite the legislation, and that adding in the words 'refuse to revoke' into the definition would extend beyond interpreting s 43 and delve into rewriting it.
9. The matter proceeded to further argument, and evidence was taken from the applicant. Amongst other things the Respondent argued that the original decision to issue a prohibition notice was correct, and that it would not be appropriate to allow an extension of time to review a decision as a 'back door' way to effectively challenge the decision to refuse to revoke - the reviewable decision being the former and not the latter.
10. Whilst working on reasons for a decision, President Hughes handed down a decision in the matter of DJM v Department of Human Services - Central Assessment Unit [2023] SACAT 3. That decision has required a change in approach to the determination of the application.
11. In that matter DJM had, in March 2020, been issued with a prohibition notice. As in this case, that was because DJM had been charged with a presumptive disqualification offence. As in this case, those charges were not proceeded with, the decision not to proceed being made after the prohibition notice had been issued. On 6 May 2022 DJM applied for a working with children check, and on 16 December 2022 the respondent advised that it declined to revoke the prohibition notice issued on 20 March 2020.
12. DJM issued an application under s 34 of the SACAT Act for a review of that decision. The Tribunal found that the decision of 16 December 2022:

was not a decision contemplated by the Child Safety (Prohibited Persons) Act 2016 (CSPP Act). The Tribunal will refuse the respondent's application to dismiss the proceedings, but will set aside the respondent's decision of 16 December 2022 and send the matter back to the respondent with directions as to the making of a decision contemplated by the Act.

13. DJM did not himself apply for a revocation of the earlier prohibition notice, despite being invited by the respondent to do so. The respondent treated his application as being one under s 33(1) for revocation, and the CAU assessed the application against the relevant statutory criteria for revocation. It found that there was fresh and compelling assessable information which would have materially affected the original decision to prohibit the applicant from working with children. It then proceeded to assess the application to work with children under s 26, leading to a decision that the prohibition notice should not be revoked.
14. The wording of the notice of 16 December 2022 in the DJM matter was (similar to this case):

Having considered the allegations against you and the matters in your favour, the Central Assessment Unit has determined that your (sic) pose an unacceptable risk to children. As a result, your Prohibition Notice has not been revoked and you remain prohibited from working with children.

1. If there is a prohibition notice in force, then the only way a person can work with children again is if the prohibition notice is revoked and a determination made that the applicant was not to be prohibited from working with children.
2. Section 32(3) of the CSPP Act provides that a prohibition notice remains in force until it is revoked. Section 15 provides that a person may not work with children whilst prohibited, and to do so constitutes an offence. There is no provision for a subsequent working with children check notice superseding, overriding or expressly or impliedly revoking an earlier notice.
3. Section 30 provides a new circumstance that enlivens the process described in s 26(5). In other words, if an additional working with children check is sought under s 30 by one of the persons entitled to seek such an application, then the CAU is required to undertake the process under s 26(5) including determining whether the person is to be or not to be prohibited from working with children. On this analysis, the scheme envisages at least two routes to a working with children check (s 26 and s 30), but both routes lead to s 26(5). It is possible that, having been made at a later point in time than the initial application, the determination as to whether a person is, or is not, to be prohibited from working with children following an application for an additional working with children check made under s 30 might be different from the determination that had earlier been reached under s 26(5). However, every determination that a person is to be prohibited from engaging in child-related work must result in a prohibition notice being issued to the person: s 32.
4. The CAU appears to have viewed its task under s 33(1)(c) as one that required it to undertake a process that is the same as, but separate from, the process under s 26, and concluding at the point of reaching a determination as to whether the revocation should occur. However, the better view is that s 33(1)(c) directs the CAU back to the process under s 26. In other words, the process under s 33(1)(c) is not the same as the process in s 26; it is the process under s 26.
5. The CAU's error led it to the creation of a decision not contemplated by the Act: the decision to refuse to revoke a prohibition notice.
6. The December 2022 decision of the respondent was not expressed as being the issue of a prohibition notice under s 32, but rather a purported decision to refuse to revoke, being one not recognised by the Act.
7. It was appropriate to set aside the purported decision.
8. It was not appropriate for the Tribunal to make a substituted decision as the merits of the decision to set aside had not been argued before the Tribunal. It was accordingly appropriate to direct that the CAU consider the revocation in accordance with the construction of the Act found by the Tribunal.
9. There likely being no power in the Tribunal to review a decision not to revoke, it is unlikely that Parliament intended that the route to be adopted by an applicant is to seek to persuade the Tribunal to extend time to review the original decision.
10. Following the handing down of the decision in DJM I heard further oral and received further written submissions from the parties. The respondent submitted:
    1. As in DJM, the Respondent in these proceedings made a decision to refuse to revoke a prohibition notice. It did so having undertaken a further working with children check as required by section 33 of the CSPP Act (in accordance with the process set out under section 26). In light of DJM, that decision as it is currently framed cannot stand.
    2. The appropriate course is for the Tribunal to set aside the Respondent's decision pursuant to section 37 of the SACAT Act. However, unlike in DJM, the Tribunal in these proceedings has considered the merits of whether the Applicant should be prohibited from working with children; therefore, the Respondent submits that the Tribunal should substitute its own decision pursuant to section 37(1)(c)(i) of the SACAT Act.
    3. It is submitted that in light of the matters relied upon by the Respondent in making its decision (and ventilated during the substantive hearing), the Tribunal should find that the Applicant poses an unacceptable risk to children and a new prohibition notice should be issued pursuant to section 32 of the CSPP Act.
11. Accordingly, notwithstanding my earlier ruling that a decision to refuse to revoke a prohibition notice is not a reviewable decision, the parties have asked me to approach the matter in accordance with President Hughes' decision in DJM, set the decision under review aside, and then determine whether the applicant should be granted a working with children clearance.
12. I agree to the first part of that proposition. I need to consider carefully the second.
13. On 3 October 2019, the applicant was issued with a Child Related Employment Screening (CRES) by the CAU.
14. The CAU received additional information in relation to the applicant being charged with presumptive disqualification offences under the CSPP Act.
15. An assessment was conducted, and on 15 June 2020 the applicant was prohibited from working with children and issued with a Prohibition Notice.
16. The offences with which the applicant was charged, were two counts of Adult, Maintain Unlawful Sexual Relationship with Child allegedly committed between 1 September 2018 and 9 May 2020.
17. Ultimately the Director of Public Prosecutions did not proceed with the charges, but this was not known to the CAU at the time of issuing the Prohibition Notice (though was known at the time of refusing to revoke the Prohibition Notice).
18. The Prohibition Notice set out:

The Central Assessment Unit has conducted a working with children check on you in accordance with the Child Safety (Prohibited Persons) Act 2016 (SA) (the Act), Child Safety (Prohibited Persons) Regulations, 2019 (SA), and Guidelines adopted and published under section 4 of the Act. The Central Assessment Unit's paramount consideration when conducting a working with children check, pursuant to section 3 (3) of the Act must always be the best interest of children, having regard to their safety and protection. > > The Central Assessment Unit has determined, as required under section 26A(1)(c) of the Act, that you are prohibited from engaging in child related work, because you have not rebutted the presumption that you pose an unacceptable risk to children due to being found guilty of a presumptive disqualification offence. > > This means you are not permitted to commence or continue working or volunteering with children. > > Reasons for Decision. > > The Central Assessment Unit conducted a criminal history police record check in relation to you, which disclosed that you have been found guilty of the offence. The Central Assessment Unit provided you with the opportunity to make a submission, in relation to this assessable information, to present to rebut the presumption that you pose an acceptable risk to children. > > You did not satisfy the Central Assessment Unit, that the circumstances of the offence are such that the offence should be disregarded in determining whether you pose an unacceptable risk to children. You did not satisfy the Central Assessment Unit that such exceptional circumstances exist in relation to you, that you do not appear, or no longer appear, to pose an unacceptable risk to children. > > Please note that pursuant to Section 26A(3) and (4), a reference to a person whom (sic) has been found guilty of a presumptive disqualification offences (sic) includes a reference to a person whose (sic) has been charged with a presumptive disqualification offence, but where the charge has not yet been finally determined. > > As you have been charged with a presumptive disqualification offence, which is pending, and not yet finally determined, you are deemed to have been found "guilty" of the offence by operation of Section 26A (3) and (4) of the Act. > > A section 26A notice was sent to you on 30/06/2020, via express post, and by email, regarding the presumptive disqualification offence of Adult, Maintain Unlawful Sexual Relationship with Child, which is due to be heard next in Court on 12/8/2020. > > Despite several attempts to contact you by the Senior Determination Officer, you failed to provide a submission regarding the aforementioned offence within the required time frame. Accordingly, the Central Assessment Unit must prohibit you from working with children under Section 26 (5) of the Act.

The letter also drew attention to rights of review including the 14-day time limit.

1. The respondent said that he did not provide the CAU with information, or seek to review the Prohibition Notice within the 14 days, because, in his view, there was no point in doing so whilst the charges remained outstanding.
2. Section 26A of the CSPP Act is in the following terms:

26A - Certain persons presumed to pose unacceptable risk to children > > (1) Subject to this section, 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 (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section): > > (a) the person will be presumed to pose an unacceptable risk to children;

(b) the central assessment unit need not consider or assess any further information in relation to an application for a working with children check made by the person;

(c) the central assessment unit must, for the purposes of section 26(5), 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.

(2) Nothing in this section limits section 27(3).

(3) For the purposes of this section, a reference to a "person who has been found guilty of a presumptive disqualification offence will be taken to include a reference to -

(a) a person in relation to whom, on a charge of a presumptive disqualification offence -

(i) there is a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of a presumptive disqualification offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or

(ii) there is a finding of a court of another jurisdiction that corresponds to a finding referred to in subparagraph (i); and

(b) a person who has been charged with a prescribed offence or presumptive disqualification offence, but where the charge has not yet been finally determined.

(4) In this section -

"presumptive disqualification offence" means an offence, or class of offences, declared by the regulations to be a presumptive disqualification offence (but does not include an offence that is a prescribed offence).

1. Section 5(2) provides:

(2) For the purposes of this Act, a reference to a person being "found guilty" of an offence will be taken to include a reference to -

2. a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or
3. any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a).
4. Thus, for most purposes under the Act, the mere fact of a charge does not mean a person is found guilty of an offence, but for s 26A, the mere fact that there is a charge of the type referred to therein that has not been determined will mean that a person is found guilty of an offence for the purposes of the section (the language is somewhat counter intuitive, but the statutory intention is clear enough).
5. The relevant offence was one against s 50(1) of the Criminal Law Consolidation Act 1935 (CLCA). That section is contained in Division 11 'Rape and other sexual offences'. Section 5 of the CSPP Act defines a prescribed offence as including, amongst other things, Part 3 Division 11 of the CLCA. Accordingly, the charge was one of a prescribed offence.
6. It must follow accordingly that the decision of the CAU to issue the Prohibition Notice must have been the correct and preferable decision at the time it was issued:

1. The applicant had been charged with a prescribed offence.

1. Even though the charge had not been determined he had been 'found guilty' within the meaning of s 26A.
2. The applicant had not provided the respondent with any information to cause it to depart from the mandate in s 26A that it must determine that he is prohibited from working with children.
3. The charges against the applicant were subsequently withdrawn. This was set out in a 'white certificate' of 16 June 2021 and in the Certificate of Record issued by the District Court of South Australia. The applicant made an application to revoke the prohibition notice a new working with children check was commenced.
4. The respondent's reasons for refusing to revoke the prohibition notice, after referring to that history state:

On 5 April 2022 the Central Assessment Unit sent you a Regulation 10 Notice inviting you to make a submission in relation to the withdrawn charges of June 2021 which were being considered as assessable information. Further attempts to contact you by telephone on 30/06/2022 and 20/07/2022 were unsuccessful. > > The Central Assessment Unit has made several attempts to obtain a submission from you as outlined within this correspondence. You have not provided a submission regarding the assessable information within the required timeframe, and the Central Assessment Unit has determined that you remain prohibited from working with children under Section 15(1)(a) of the Act. > > As a result, your Prohibition Notice has not been revoked and you remain prohibited from working with children.

5. As set out earlier, the respondent concedes that this decision ought to be set aside on the basis of the decision in DJM.
6. The issue arises as to whether I should remit the matter back to the original decision maker (as occurred in DJM) or whether I should make a decision on the merits, having heard argument on the merits.
7. In considering the matter I have had regard to the oral evidence, written submissions, and documentary evidence provided to the Tribunal.
8. Section 34 of the SACAT Act requires the Tribunal to give 'appropriate weight' to the decision on the decision maker. To do this requires the Tribunal to analyse the reasons for the primary decision: Re Gould and Companies Auditors and Liquidators Disciplinary Board [2008] AATA 814 at [75].
9. The "appropriate weight" to be given to the primary decision will vary with the circumstances of each case.
10. In GJC v Department of Human Services [2020] SACAT 38 at [23] Senior Member Rugless said:
    1. The Tribunal might give significant weight to the original decision if satisfied that it is correct in law, correct as to factual findings, and correct in the exercise of any discretion or any evaluative judgment in the context of the objects and principles of the relevant legislation.
    2. Alternatively, the Tribunal might give little or no weight to the decision of the original decisionmaker if, for example, the Tribunal is not satisfied that the original decision-maker has approached its task correctly (i.e. there has been a denial of procedural fairness, an error in approach, or an error in the application of a 'standard of proof'.
    3. The Tribunal might also give little or no weight to the decision of the original decision-maker if it has received additional evidence on the review, which was not available to the original decisionmaker. For example, if the additional evidence on review is quite substantial, or significant, or new, it may cast a different complexion on the facts, or the evaluation of the facts, and mean that little weight should be given to the original decision.
11. In this matter the respondent concedes the decision under review is one of a kind that is not recognised by the Act and accordingly should be set aside. The original decision was one made on the basis of a presumption arising out of being charged with an offence. Those charges have been withdrawn. The subsequent decision was based on the applicant failing to respond to requests for information, rather than an analysis of the factual material.
12. In coming to a decision on the merits, I am not assisted by the reasons for the decision on review themselves, although as I set out below there is assistance in other material prepared by the respondent including the Screening Unit Relevant History Assessment. I give weight to the material in that assessment. I have however received additional evidence that the decision maker did not have, namely the evidence of the applicant and his cross examination.
13. In GJC Senior Member Rugless gave a helpful summary of what is meant by the phrase 'unacceptable risk to children':
    1. Courts in Australia have accepted that the concept of 'risk' involves two elements: the degree or likelihood of the occurrence of an event and the possible consequences if it does.
    2. The term 'risk' is further qualified in the CSPP Act. It requires an assessment of whether there is an 'unacceptable risk' to children. Parliament has seen fit to employ this phrase in the legislation as opposed to "a risk" or "any risk"; as such, in my view, this connotes a measuring or evaluative exercise as to the nature and extent of the risk. In my view 'unacceptable risk' must be interpreted in the context of the specific legislation and in consideration of the objects and purpose of the legislation, which is to minimise the risk to children from adults who may potentially pose a risk to their safety.
    3. I accept the Respondent's submission that the term 'unacceptable risk' as described in section 26(1) of the CSPP Act is that there is a risk that, if a person is allowed to work with children, this will not ensure the adequate protection of children.
    4. Therefore, the task of the Central Assessment Unit (or, on review, of the Tribunal) must be to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour is so unacceptable that it is necessary in the interests of children to ensure that the person does not work with children.
    5. I agree that the Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is risk that if it does it will cause harm to children and that this is unacceptable.
    6. It follows that where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children, as unacceptable.
    7. Behaviour or conduct of adults that may result in the risk of future serious harm to children would include assessable information demonstrating (or giving rise to the reasonable suspicion of) past sexual abuse, physical abuse, emotional or psychological manipulation, intimidation or harassment, sexual violence or gross neglect of children or adults.
    8. Much of this conduct is encapsulated by the types of criminal offences for which a conviction would amount to an automatic or presumptive prohibition under the CSPP Act.
    9. Other examples of an adult's conduct that may lead to real concerns about risks to children might include past conduct amounting to the "grooming" of children, poor boundary recognition in a relationship where there is a power imbalance, behaviour such as 'peeping tom' or prurient interest conduct, the viewing of unsuitable or violent videos in the presence of children, the possession of child pornography, or the possession of some types of adult pornography (which may say a great deal about the sexual mores of a person if combined with other risk factors).
14. In the Family Law context, the High Court in M v M (1988) 166 CLR 69 laid down some guidelines to applying the test. In that context, the focus is less on whether the allegations are made out, but on what is in the best interests of the child. Indeed, a Court should not positively make a finding that abuse has occurred without having regard to the Briginshaw principles. Risk was said to mean things like 'an element of risk', 'an appreciable risk', a 'real risk' or an 'unacceptable risk'. A finding that the Court was not satisfied that abuse occurred on the civil standard did not mean that the Court could not find that there was an unacceptable risk that the child would be exposed to abuse if the husband were granted access.
15. Accordingly, the decision maker's role under the CSPP Act is not to work out whether the allegations in the charges against the applicant were more likely than not to have occurred but rather whether there is a risk that the applicant will cause harm, and whether that risk is an unacceptable one.
16. A decision maker will normally inquire into matters such as the level of detail of the allegations, the period of time over which the abuse is alleged to have taken place, whether expert evidence has been provided, and whether there are other explanations.
17. The 'Screening Unit Relevant History Assessment' set out:

1. The complainant was the applicant's daughter who was 13 at the time of the allegations.

1. The allegations were made in the context of a Family Law dispute between the applicant and his wife.
2. The applicant was significantly older than his partner.
3. The allegation was that the applicant had touched his daughter on the bottom and had run his hands up and down her thighs and that this had been going on for years.
4. An allegation was made that the applicant had laid down in the same bed as his daughter during an access visit. On another occasion in a caravan the child woke up and thought the applicant had her hands on her vagina after he had made her sleep in bed with him.
5. At a vulnerable witness interview the child made disclosures of inappropriate fondling.
6. Discussions with the child's school were said to lend credence to a behavioural change after disclosure of the allegations.
7. The request for the prosecution brief was refused. Police were spoken to who advised that the matter did not proceed as the DPP determined that the offences were not made out and there was no prospect of a conviction.
8. The mother had relayed a discussion where the child had asked the question as to whether it was normal for dads to touch them on the thigh and if they touch bums or pat bums. The child said that although she tells the applicant to stop, he grabs her, holds her tight and that it would continue.
9. The child had difficulty sleeping. She was fearful. On one occasion the applicant got into bed with her wearing only underwear. She was not sure whether he had ever touched her on the vagina, or whether that happened in her head.
10. The applicant was reapplying for a working with children check for the role of therapeutic support worker.
11. The CAU gave the applicant the chance to respond to the allegations. He did not provide a response. There had been verbal interviews in the past with the applicant. He had said that if he was guilty of anything it was not knowing that his children had been growing up. He maintained his innocence in those interviews.
12. The other children were interviewed by police. They did not corroborate the child's allegations, but they were younger and might not be aware of what inappropriate behaviour might look like.
13. The allegations are of concern.
14. It was reported that the applicant was unconcerned by the allegations and displayed a lack of empathy.
15. The author of the document was not satisfied that the events in the allegations did not occur, and accordingly the applicant posed an unacceptable risk to children.
16. Prior to his arrest the applicant had worked with vulnerable children, and no complaints were made. However past good conduct does not mitigate risk.
17. The charges against the applicant are 'not proven', but were not tested in Court. The decision not to proceed does not mean that the events did not take place.
18. DCP were satisfied the events occurred.
19. The CAU did not have information about the outcome of the Family Court proceedings, and whether there had been further conduct or interactions.
20. The gravity of the allegations indicates an embedded pattern of behaviour. The applicant has not made submissions which mitigate that risk.
21. If all I had before me was the Screening Unit Assessment Relevant History Assessment, I would likely have agreed with the respondent that the applicant posed an unacceptable risk to children.
22. However, I have had also heard evidence from the applicant, and read the other source material.
23. I have considered the 'facts of charge' document. It records that after the applicant separated from his partner the child and her younger siblings would stay every second weekend at the caravan park at which the applicant was residing. The first time that she can remember him inappropriately touching her was when she was sleeping in the same bed. She felt him place his hand on her vagina. She immediately pulled away. That was the only time he touched her vagina. On practically every occasion that the applicant saw her (every second weekend) he would hug her, and in doing so his hand would touch her bottom and squeeze. This would make her uncomfortable.
24. The accused version of the facts of charge read that the caravan had a double bed and two single beds. This meant that one child had to sleep with the applicant. The children would decide which child that would be. Often the child would annoy the other siblings, so often it was the child that slept in his bed. He said that there were separate quilts. He denies any inappropriate touching. He admits hugging. He denies touching her bottom in the hugging or squeezing her bottom.
25. I have read the mother's statement to police. She said that she was younger than the applicant, and that in one discussion they had he referred to her breasts, and a bathing suit she wore, but she would only have been about 16 years old when that event occurred, and accordingly she felt that the applicant's comments made her uncomfortable. They separated in 2018. The applicant moved into a caravan park. She said that the caravan has a bunk bed and a double bed. She also said that there was furniture in the caravan that could be converted into another bed.
26. She said in 2019 there was a change in the child's behaviour. These included suicidal thoughts. In about March 2020 the child said that she didn't like the applicant hugging her. She later struggled to sleep at night. She stopped wearing make-up and would dress in baggy clothes. In May 2020 the child said to the mother that she had asked her friends whether it was normal to be touched by her father and was told it was not normal. The child relayed to her that when driving the car the applicant would sometimes run his hand along her thigh. She said she didn't like it. She said that she was scared she was going to be raped. One day the applicant had laid on the bed only wearing his jocks. The mother asked her whether she had ever been touched on the vagina. She said she wasn't sure. She said she didn't know if it had happened in her head or had actually happened.
27. The child was interviewed. Questions were asked about touching eliciting answers 'well basically just all the time every time I am near him he either, he like grabs my hips or something and umm grabs my arse and stuff and then whenever I'm sitting next to him he always umm puts his hand on my thigh and starts rubbing it'. She said the applicant hugs her and when she pulls away 'he pulls me in tighter'. She was asked about being touched on the bum, and how long that lasts and she said 'only a few seconds because I pull away'.
28. She referred to him touching her thigh and rubbing it when he is driving the car.
29. With the incident in the bed:

"Yeah well there was umm, like a bunk bed thing but we couldn't really sleep on that because there was all mould next to that so Dad ..." > > ... > > "Till we got it fixed and he was just laying next to me one night" > > "And then I felt something touch me and then dad was basically the only one next to me". > > "I don't know, I just felt something like touch me but I just thought it was my mind, mind playing tricks on me because it does that a lot." > > [after identifying the touch was on the vagina, and asked what happened], "nothing, I just felt something like a had touched it and then just moved over a bit". > > She was asked whether it was on the inside or outside of her clothing and said "on the outside". She said her father was wearing "maybe a t-shirt and underwear". > > She was asked how long the touching was "only a couple of seconds". > > When pressed about what the hand did 'Nothing, just felt something tap it. I don't know', 'And then that was just it'. > > She was asked whether it happened more than once "Oh, only one time".

30. She said there was another occasion where he entered her room wearing only underwear, at about 7 or 8 o'clock. He said good morning. She got out of bed and went to the toilet. He left. She was asked if that happened more than once. She said just once.
31. There was also material in the interview that was difficult to follow because it is transcribed but without the visual aspects - e.g. when the interviewer asked where she was touched, and the answer was 'here', but without the transcript identifying where 'here' was. That touching related to when she was in the motor vehicle and the applicant was driving.
32. I have read the record of interview with one of the other children who was nine at the time of the interview. It is quite long. A direct question was asked 'has anyone touched you on a rude part' and the answer was given 'no'. 'Have you ever seen someone touch where it's not okay to touch'. The answer given was 'no'. The interview was unremarkable in the sense that there was nothing in the interview to suggest that this child saw, felt, or heard anything that would give rise to a concern about the applicant.
33. An interview also took place with a child who was 10 at the time of the interview. It was a lengthy interview. The child did record sleeping on occasions in the same bed as the applicant when staying in the caravan because there were only two beds (which I assume from other material was a reference to the one double bed and to the bunk bed). After being asked by the interviewer to identify places that it would be inappropriate to touch, or what the child referred to as 'rude spots', the child was asked whether they had ever been touched where it is not okay to touch. The answer was 'my brother', and then 'he [the brother] doesn't really touch me like this, he just like, he sometimes kicks me in the rude spot sometimes'. The child did not say anything about the applicant in response to this line of questioning. The child was asked if they had ever seen someone else touch someone where it is not okay, and the answer was 'no'.
34. The applicant gave evidence and was cross examined.
35. This was important, in that the original decision maker did not have the benefit of hearing from the applicant, both in his own words, and in cross examination. There was a limitation to that in that applicant attended the hearing by telephone link.
36. The applicant explained that he had worked as a security guard in a rural area, working with the Indigenous population aimed at preventing them from breaking the law. He said that then went into the field of therapeutic support worker until his arrest. He cannot do that kind of work without a working with children clearance.
37. He said he denied all the allegations against him. He talked about the proceedings he had in the Family Court which related to custody of the children. He said that the child that was 14 at the time 'imagines things'. Pausing there, I note that the child herself said something similar in her interview with police, and in respect of the touching in the bed incident had said she was not sure if it had happened or not - accordingly whilst a reader of the applicant's evidence might think that saying a child 'imagines things' is dismissive and the kind of thing a guilty person might say, there is corroboration from the child herself about this.
38. He said that he did not want to put the child through any stress, which is why he didn't contest the custody proceedings in the Family Court.
39. He was cross-examined on the allegation that he hugged the child and in doing so touched her bottom. He denied the allegation.
40. He was cross-examined about the allegation of touching her thigh and rubbing it. He denied that allegation, but said when he drove in the car sometimes he would touch her leg at the knee to get her attention.
41. He was cross-examined about the child sleeping in his bed in the caravan. He said this did happen. He said that the caravan had a separate area with two beds for the girls. However, the child would fight with the other two children, often roughly, and they would need to be separated. He said that in sleeping in the bed together he would be clothed, and the child had a separate blanket and covers. He said he was aware of the boundaries between men and women.
42. He was cross-examined about entering the child's room when they lived at the house in Mt Gambier. He said he would always knock on the door. He agreed he would cuddle his children. He was cross-examined about the occasion of jumping into the daughter's bed with only his underwear on. He said he would wander around the house in whatever he slept in, and his daughter often slept in for long period of times, making morning routines chaotic. He said he jumped on the bed to get her out of the bed. He denied doing that when the child was older.
43. He said he had not done that when she was older. He said he agreed it was not appropriate to climb into bed with a teenager. He said the daughter imagined things that did not occur.
44. He said he had taken psychological testing and met all the criteria to establish he should get a clearance. He said the daughter was 'on the spectrum', was often violent, and would steal things. He said when she was younger she was often clingy.
45. This has been a very difficult decision for me to make. There are factors that point both directions in terms of granting the application, and not granting it. There is little doubt that the evidence would not justify a finding on the balance of probabilities that the applicant had acted inappropriately towards his daughter. However, the test is not one of saying whether, on the balance of probabilities, the applicant had acted inappropriately towards children, but whether the applicant poses an unacceptable risk to children.
46. Senior Member Rugless in GJC said at [356]:

In reaching this conclusion I do not find that it is likely that GJC will cause harm to a child in the future; rather I am satisfied that there is a possibility of future harm to children, and that the potential consequences to children would be serious if the perceived risk eventuated.

47. There was a deliberate policy decision taken in the framing of the legislation to refer to unacceptable risk. The policy is one that requires consideration of risk as opposed to requiring a finding that a person has previously engaged in inappropriate behaviour or will do so in the future.
48. This may mean that a person is prohibited from working with children even though an allegation that is made cannot be proven on the balance of probabilities.
49. This may be the case, even though it may be that the allegation in fact is false, and even though that might prevent a person from working in their chosen field. The focus is not on the effect of the decision on the applicant, but rather whether the applicant would pose an unacceptable risk to children.
50. In working out, though, whether the threshold has passed from a fanciful and unlikely risk to an unacceptable risk, it is necessary to carefully scrutinise the evidence. Just because an allegation is made, it does not follow that in every case that this means an unacceptable risk exists. In working out whether the risk is unacceptable one would have regard not just to whether there is conflicting evidence, but also the gravity of what is alleged.
51. I note in this case there is no suggestion of anything like rape, sexual intercourse, actual touching of genitals, occasions when the applicant or child were naked or grooming type behaviour. The most serious of the allegations was of a touching of a genital (but not underneath clothing) for about a second which may have been a 'tap' of about a second.
52. Given the potential risk to children if someone works with them that might cause them harm, a decision maker, including a member of the Tribunal, will often err on the side of caution, and often this will be appropriate.
53. Accordingly, there was a serious temptation in this matter to err on the side of caution and refuse the application. Reading the facts of charge, or the Screening Assessment document in isolation would lead me to adopt that approach.
54. But in this matter I was troubled in taking that approach. First, the applicant here was cross-examined. He came across in that cross-examination as sounding truthful. Second, the allegations were made at a time of Family Law disputation. Third, the other children did not corroborate what the child said, though I accept that this is of limited weight given that just because one child didn't see something doesn't mean it didn't occur, or that one would even expect another child to have seen the events complained of. Fourth, there is no record of any complaint against him by anyone else, including in his previous employment. Each of these points are relevant to, but would not be decisive of, my decision. That is, if they were the only countervailing factors, I would still have come to the decision made by the original decision maker that the applicant posed an unacceptable risk to children.
55. What was decisive, and what anyone who reads the decision would need to appreciate, is the content of the police interview with the child in question. One needs to read the interview as a whole to understand why I have come to the decision I have come to.
56. The child made a number of statements, which in isolation would sound that like the applicant was someone who had done multiple bad things on multiple occasions. However, the interviewer then adopted the approach of drilling down to detail. In drilling down to that level of detail the complaints appeared to evaporate when considered with the rest of the evidence at a whole. The only occasion on which the child was said to have been touched on the vagina was once. It was a contact when the child was clothed, not unclothed. It was only for a second at most. It was a tap. The child said that she might have imagined it.
57. I have accepted the applicant's explanation as to why they were in the bed together, namely because they were in a caravan and the child had been fighting with the other children. In that context, and with no suggestion that either the applicant or child were naked, and no positive assertion that the touching of a second or so above the clothes actually happened, it is more likely that if there was a touch that was accidental. Of course, as I have been at pains to point out, it is not a matter of me finding that the touch occurred - the assertion that it occurred might be enough to still find an unacceptable risk - but drilling down to the detail of what the child said happened I still do not find that there was enough to say that there is an unacceptable risk. The touch was described as a 'tap' on the outside of her clothing and this only happened once.
58. The evidence about the applicant coming into the child's room and lying next to her in bed in the interview also did not lead anywhere sinister - the applicant came in 'said good morning', she got up, nothing untoward happened, and this was only the once.
59. Both incidents, which read in quite a sinister way in the facts of charge do not, when the child was asked in detail, end up reading in a sinister way.
60. That still leaves the allegations about touching of the leg in the car, hugging, and the child also made allegations that she and the other children had been smacked. These matters have given me pause for thought. I have heard the applicant's explanations and have ultimately been satisfied by them. I appreciate that the test is not whether proof of the events were made out or not made out, but whether there is an unacceptable risk, and that, as a general rule, in the area of child protection one would err on the side of caution. However, on balance, taking into account all of the evidence I have not been satisfied that the applicant poses an unacceptable risk to children.
61. I accordingly set aside the decision and grant a working with children clearance.

1. The Tribunal makes the following orders:
   1. The decision subject to review is set aside and, in its place, the Tribunal makes the orders set out below:

1.a. The applicant is not prohibited from working with children.

1. I make a direction pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013 prohibiting the publication of:

2.a. The names and address of any witness in this matter.

2.b. The publication of evidence before the Tribunal or the contents of any document produced to the Tribunal, save that if the Registrar of the Tribunal wishes to publish this decision that may occur if the names of any person are anonymised in accordance with the policies of the Tribunal.