The applicants sought review of decisions of the Central Assessment Unit to issue them with prohibition notices under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act). The applicants were issued with prohibition notices upon being charged with offences of ill treatment of animals pursuant to s 13 of the Animal Welfare Act 1985 (AW Act), which are presumptive disqualification offences (PDOs) under s 26A of the CSPP Act.

The applicants submitted that the presumption that they pose an unacceptable risk to children on the basis of their PDOs is rebutted pursuant to s 26A(1)(c)(i)-(ii). The applicants disputed the factual basis of their alleged offending and argued that the charges are irrelevant to their conduct in relation to children such that they should be disregarded for triviality. They also highlighted that their charges are lesser offences in the context of s 13 of the AW Act.

The respondent submitted that the decisions under review should be affirmed as the correct and preferable decisions.

• The Tribunal is satisfied that the circumstances of the PDOs are capable of rationally affecting the assessment of the applicants' risk to children such that the PDOs should not be disregarded;
• The Tribunal cannot be satisfied that there are circumstances in this case such that the applicants have rebutted the presumption that they pose an unacceptable risk to children;
• The Tribunal is satisfied that the correct or preferable decision is to affirm the decisions under review that the applicants have failed to rebut the presumption that they 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 - Consideration of pending charges

Animal Welfare Act 1985 s 13

Child Safety (Prohibited Persons) Act 2016 ss 3, 4, 26, 26A, 32,43

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 35

Badea v Department of Human Services [2024] SACAT 37

DGH v Department of Human Services [2023] SACAT 108

FHN v Department of Human Services [2023] SACAT 77

GJC v Department of Human Services [2020] SACAT 38

HNU v Department of Human Services [2021] SACAT 92

INI v Department of Human Services [2025] SACAT 22

Ireland v Department of Human Services [2020] SACAT 96

JEE v Department of Human Services [2023] SACAT 91

LVM v Department of Human Services [2021] SACAT 36

Mepstead v Department of Human Services [2022] SACAT 64

NXY v Department of Human Services [2024] SACAT 12

R v Yavuz [2018] SASCFC 24

Re RBY [2021] SACAT 39

Wombat v Department of Human Services [2020] SACAT 97

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.

1. This is a review of decisions of the respondent on 11 February 2025 to issue a prohibition notice to QDF and to ZYQ (the applicants) under s 32 of the Child Safety (Prohibited Persons) Act 2016 (CSPP Act).
2. The effect of the prohibition notices is that the applicants cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children.
3. The prohibition notices were issued pursuant to s 26A of the CSPP Act on the basis of charges against the applicants for prescribed disqualification offences (PDOs).
4. In undertaking this review, I have had regard to the material that was before the respondent, including the documents in the respondent's Books of Documents provided under s 35 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act), and to the additional submissions put before the Tribunal at the full hearing and supplied after the close of the hearing.
5. The Books of Documents contain two affidavits from QDF and two affidavits from RSPCA Inspectors Adams and Bailey prepared for the Magistrates Court.
6. Rather than quote the parties' respective submissions in these reasons, I refer to their submissions as relevant points arise.
7. I explain in these reasons why I have decided that the correct or preferable decision is to affirm the decisions to issue the prohibition notices to each of the applicants.

1. The applicants are married to each other. They live in regional South Australia.
2. QDF is a high school teacher. ZYQ is a school librarian. Prior to being issued with the prohibition notices, they both held a Working with Children Check (WWCC).
3. The applicants undertake voluntary rescue work in relation to rabbits and guinea pigs. They keep them at their property together with other types of animals.
4. In June 2024, the RSPCA received a report of concern about the welfare of horses and rabbits in the applicants' care. The RSPCA attended at the applicants' property in July 2024 and observed six horses with no obvious access to hay or feed. QDF called the RSPCA on 5 July 2024, leaving a message. Four messages left for QDF across July and August 2024 to call the RSCPA did not result in any contact from him.
5. In September 2024, the RSPCA received a report of concern about the welfare of horses, alpacas, ducks and rabbits at the property. The RSPCA attended at the property on 24 September 2024 leaving a calling card but did not receive a call back from the applicants.
6. On 6 November 2024 at 11.00 am, RSPCA inspectors attended the applicants' property under warrant to conduct an inspection. Inspectors Adams and Bailey attended that inspection with police officers. It is alleged that ZYQ was in the front yard loading a trailer at that time with one or two other people and that QDF soon joined them.[1]
7. Rabbits and guinea pigs were found housed in cages in several different rooms in the applicants' property. Forty-eight rabbits and five guinea pigs were found not to have access to water and to be living in unsanitary conditions. The cages were found to have substantial faecal matter and soiled hay bedding, with the appearance in some cases that fresh hay had been piled on soiled hay rather than the latter being removed. The affidavit of RSPCA Inspector Bailey appends photographs showing the living conditions of the animals as being consistent with the above description.[2] The affidavit of RSPCA Inspector Adams opined that the inadequate and inappropriate living conditions of the rabbits and guinea pigs would have been "reasonably apparent to any reasonable person".[3]
8. There was also an aged dog called Jack which the RSPCA alleged was in immediate need of veterinary attention and needed to be put down. The applicants conceded that Jack needed to be euthanised. It is alleged that ZYQ told inspectors that the applicants were waiting for both of them to be home at the same time to make the appointment with the vet to have Jack euthanised.[4]
9. A number of animals were seized (49 rabbits, five guinea pigs and one cat) and animal welfare notices were issued in relation to animals that were not seized.
10. QDF deposed that the upkeep of the rabbit and guinea pig enclosures was consistent with veterinary advice and that the animals' water bowls were being cleaned at the time of the inspection.[5] Statements were made by the applicants that they had only just woken up so had not attended to refilling water containers[6] and that they were aware that Jack was "not likely to be with them much longer".[7]
11. On 25 November 2024, each of the applicants were charged with five counts of ill-treating an animal under s 13 of the Animal Welfare Act 1985 (AW Act) in respect of 48 rabbits, five guinea pigs and the dog. The allegations were that the applicants failed to provide the rabbits and guinea pigs with appropriate and adequate living conditions and water. The allegation in respect of the dog Jack is that the applicants failed to take reasonable steps to mitigate harm. As at the date of the hearing,[8] those charges had yet to be finally determined and are to be contested by the applicants. These charges are PDOs under the CSPP Act (see below).
12. An RSPCA inspector also brought an application in the Magistrates Court that the seized animals be sold, destroyed or otherwise disposed of. QDF's two affidavits were filed in the Court relation to this application.
13. After the respondent became aware of the charges, and after an opportunity given to the applicants to provide submissions, the applicants were each issued with the prohibition notices. They have been unable to work in their respective jobs since then.

13 - Ill treatment of animals > > (1) If - > > (a) a person ill treats an animal; and > > (b) the ill treatment causes the death of, or serious harm to, the animal; and

(c) the person intends to cause, or is reckless about causing, the death of, or serious harm to, the animal, the person is guilty of an offence.

Maximum penalty: $50 000 or imprisonment for 4 years.

(2) A person who ill treats an animal is guilty of an offence.

Maximum penalty: $20 000 or imprisonment for 2 years.

(3) Without limiting the generality of subsection (1) or (2), a person ill treats an animal if the person -

(a) intentionally, unreasonably or recklessly causes the animal unnecessary harm; or

(b) being the owner of the animal -

(i) fails to provide it with appropriate, and adequate, food, water, living conditions (whether temporary or permanent) or exercise; or

(ii) fails to take reasonable steps to mitigate harm suffered by the animal; or

(iii) abandons the animal; or

(iv) neglects the animal so as to cause it harm; or

(c) having caused the animal harm (not being an animal of which that person is the owner), fails to take reasonable steps to mitigate the harm; or

(f) causes the animal to be killed or injured by another animal; or

(g) kills the animal in a manner that causes the animal unnecessary pain; or

(h) unless the animal is unconscious, kills the animal by a method that does not cause death to occur as rapidly as possible; or

(i) carries out a medical or surgical procedure on the animal in contravention of the regulations;

or

(j) ill treats the animal in any other manner prescribed by the regulations for the purposes of this section.

(4) A person charged with an offence against subsection (1) (the aggravated offence) may be convicted of an offence against subsection (2) (the lesser offence) if the court is not satisfied that the aggravated offence has been established beyond reasonable doubt but is satisfied that the lesser offence has been so established.

(5) It is a defence to a charge of an offence against subsection (2) if the defendant proves that the offence did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

(6) In this section -

cause - a person's act or omission causes the death of, or harm to, an animal if the act or omission substantially contributes to the death or harm.

1. An offence under s 13 is a PDO.[9] The Child Safety (Prohibited Persons) Regulations 2019 (CSPP Regulations) make no distinction between the aggravated and lesser offences under s 13.
2. The applicants were only charged with the lesser offence.

Review under South Australian Civil and Administrative Tribunal Act 2013

1. Section 43 of the CSPP Act confers jurisdiction on the Tribunal to review a reviewable decision, which includes a decision of the respondent to issue a prohibition notice.
2. The Tribunal conducts its review of the respondent's decision as an independent body. The Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing. On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
3. The procedure on a rehearing will include an examination of the evidence or material before the decision-maker and consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
4. After making its decision, the Tribunal can affirm or vary the decision under review or can set the decision aside and either substitute its own decision or send the matter back to the decision-maker for reconsideration.

1. The statutory regime established under the CSPP Act is complex. This was addressed in substantial detail by the Tribunal in GJC v Department of Human Services [2020] SACAT 38 (GJC) and later decisions adopting GJC. I set out below only those matters that are relevant to the decision under review.

1. Critical to the Tribunal's decision are the objects and principles of the CSPP Act. They are found in s 3 of that Act. They relevantly state (underlining added):

(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. In GJC the Tribunal said that the term "unacceptable risk" means "that there is a risk that, if a person is allowed to work with children, this will not ensure the adequate protection of children".[10]

Working with Children Checks and Prohibition Notices

1. Part 5 of the CSPP Act establishes the central assessment unit (CAU); provides that its powers are relevantly to conduct WWCCs and to issue or revoke prohibition notices; and that in doing so it must have regard to, and seek to give effect to, the objects and principles set out in s 3 of the Act.
2. A WWCC is portable. It may be used in relation to any child-related work despite being conducted in relation to a particular position, service, activity or employer.[11]
3. A WWCC is conducted by the CAU under s 26 of the CSPP Act. In brief, the purpose of a WWCC is to determine whether or not a person poses an unacceptable risk to children.[12]
4. Section 4 of the CSPP Act relevantly provides that the Minister may, by notice in the Gazette, publish or adopt guidelines for the purposes of the Act (the Guidelines).
5. Under s 26(5), on completing a working with children check in respect of a person, the CAU must determine whether the person is, or is not, to be prohibited from working with children. Section 32(1) of the CSPP Act states that if the CAU determines under s 26(5) that a person is to be prohibited from engaging in child-related work, it must issue a notice to the person prohibiting the person from engaging in child-related work (a prohibition notice).
6. A WWCC proceeds under s 26 by the CAU first making a finding as to the likelihood of the conduct of concern having occurred and then undertaking a risk assessment pursuant to the Guidelines. Where conduct of concern is admitted or proven to the criminal standard, it would ordinarily be given significant weighting in the risk assessment but where conduct of concern is not admitted or proven to this standard, the weighting given to it in the risk assessment must reflect the possibility that the conduct of concern did not occur.
7. A risk assessment requires an evaluation of the nature and degree of the risk posed by the individual and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending or conduct recurring in the future and the seriousness of the consequences if the conduct were to recur. Where the possible future harm is serious a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome as unacceptable. Conversely, an acceptable risk might be one which is fanciful, farfetched or theoretical and where the potential consequences are mild or insignificant. The standard of satisfaction in the assessment of the ultimate issue of risk is a statutory standard of reasonable satisfaction that there is a possibility of future harm, and that the potential consequences would be serious if the perceived risk eventuated.
8. These points are made because there must be a clear differentiation between a WWCC conducted under s 26 and a matter that is determined under s 26A. The relevance of this is further discussed later in these reasons.

Section 26A - Presumptive Disqualifications Offences

1. Section 26A makes provision for certain PDOs for the purposes of WWCCs. It relevantly states (underlining added):

(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.

...

(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 -

...

(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. In other words, if a person has committed a PDO or been charged with a PDO, s 26A of the CSPP Act assumes that they pose an unacceptable risk to children and are to be prohibited from working with children unless that person rebuts that assumption and satisfies the respondent that:

(a) the circumstances of the PDO are such that it should be disregarded in determining whether the person poses an unacceptable risk to children; (first limb considerations) or

(b) such exceptional circumstances exist in relation to the person that they do not appear, or no longer appear, to pose an unacceptable risk to children (second limb considerations).

1. The focus of the first limb considerations in paragraph (a) is on the PDO. The focus of the second limb considerations in paragraph (b) is on the applicant for the WWCC.
2. The onus is clearly placed on the applicant to rebut the presumption.[13]
3. The matters that the Guidelines indicate should not be taken into account for the purposes of a risk assessment under s 26 are also not relevant to rebutting the presumptions in s 26A, namely:
   • the impact of a prohibited outcome on the person - the rights of, or personal impact on, the person the subject of the check are not relevant considerations in assessing whether they pose an unacceptable risk to children;
   • the role of the person the subject of the check - a working with children check outcome is portable between roles and employers. Any stated role of the person at the time of the check bears no weight as to whether the person poses an unacceptable risk to children; and
   • 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 experience, however, is not relevant for a risk assessment. The role of the central assessment unit is to determine whether, based on assessable information, a person poses an unacceptable risk to children; it is not to assess a person's suitability for employment, which is an employer's responsibility.[14]

Disregarding a Presumptive Disqualification Offence - First limb considerations

1. The circumstances in which it would be appropriate to disregard a PDO will vary from case to case. Every case will be different and similarity between one case and another would not automatically lead to the same outcome.
2. The Guidelines state the following in respect of rebutting the presumption under s 26A(1)(c)(i):

In determining whether the circumstances of the presumptive disqualification offence should be disregarded, the central assessment unit will consider whether the circumstances of the offence are capable of rationally affecting the assessment of risk to children. > > Factors to be considered when assessing the circumstances of the presumptive disqualification offence may include but are not limited to:

• the age of the offence, its contextual triviality, and any penalty imposed by the sentencing court;
• the role or conduct of the person in the broader context of the offending. For example, where a person has been found guilty of trafficking in a controlled drug contrary to section 32 of the Controlled Substances Act 1984, reliable information indicating the person played a minor role as part of a broader criminal enterprise may (in combination with other considerations) be sufficient to warrant disregarding the offence in determining whether the person poses an unacceptable risk to children;
• the existence of any victims of the offence and its impact on them;
• whether the offending arose in the context of an abusive relationship;
• whether there is information indicating the person was acting in self-defence or otherwise defending another against an unprovoked assault or attack; or
• whether the person committed the offending under the direction of a person in authority or otherwise under duress.[15]

1. The reference to risk in the first passage above should be read as a reference to unacceptable risk.
2. It is evident from the Guidelines that a proper consideration of the relevant circumstances means that the PDO is to be considered in its factual context. It would be artificial not to do so.[16]
3. Before leaving this preliminary discussion of the first limb, I make the following comments on certain submissions made by the respondent. There is perhaps some merit in the respondent's argument that, if an applicant is able to satisfy the first limb, the PDO is to be disregarded for all purposes, including the subsequent assessment under s 26. However, I should not be taken as agreeing that this means that the threshold for finding the first limb as satisfied should be high, as the respondent submitted, and that a PDO should only be disregarded if it could have no relevance to the question of risk to children. I have found that there is no basis to disregard the PDO in this case but have not approached this matter in the way proposed by the respondent. Whether I am right or wrong on that point should be left for determination on an occasion when it is critical to the outcome in a particular case.

Exceptional Circumstances - second limb considerations

1. Whether exceptional circumstances exist must be determined in the relevant legislative context, with regard being had to the objects of the CSPP Act.[17]
2. Exceptional circumstances means "those circumstances which, when present, so markedly change the nature of the particular case that it is no longer within the mischief which the legislature intended to address".[18]
3. What amounts to exceptional circumstances in relation to a person (such that they do not pose an unacceptable risk to children) will also vary from case to case.
4. The Guidelines state:

Exceptional circumstances about a person are those that are out of the ordinary course, unusual, special or uncommon,[19] such that they justify displacement of the statutory presumption that the person poses an unacceptable risk to children. Such exceptional circumstances are not limited to the circumstances of the offence or charge upon which the presumption arises. > > Circumstances that may contribute to a finding of exceptional circumstances in relation to a person may include, but are not limited to, the following: > > • periods of voluntary good behaviour (no offending or other misconduct); > > • evidence of employment and/or volunteering; > > • evidence of educational and/or vocational training; > > • demonstrated personal growth and/or insight; > > • demonstrated reformed behaviour and/or lifestyle stability; and > > • evidence of successful engagement with therapy and/or counselling. > > Importantly, circumstances informing the exceptional circumstances assessment must be individual to the person. Circumstances that are exceptional for one person may not be exceptional for another; the assessment is in some measure predicated on the starting point of the person in question. > > Circumstances must also, either individually or collectively, address and mitigate the underlying risk/s inherent in the presumptive disqualification offence that led to the statutory presumption arising. Information evincing sustained, self-motivated change will generally be afforded greater weight than that of short-term and/or third-party ordered compliance (e.g. measures required to be undertaken as part of parole conditions). > > Information from independent sources that support or confirm the existence of exceptional circumstances should be provided by the person. Submissions that rely solely on the word of the person will, in most cases, be insufficient. > > The test for what amounts to exceptional circumstances must not be set so high that it becomes near impossible to satisfy.[20] > > In assessing the person's circumstances, the paramount consideration of the central assessment unit must be the best interests of children, having regard to their safety and protection.[21]

5. I turn to consider previous decisions of the Tribunal where the Tribunal has had to consider whether or not exceptional circumstances were demonstrated in the context of PDOs (subject to the caution that every case needs to be considered on its own merits).
6. In the 2019 case of Mead, the applicant had been convicted of a drug offence in 2011.[22] The Tribunal was satisfied that the applicant established that he had exceptional circumstances and that he did not appear to pose an unacceptable risk to children. The Tribunal found that the applicant had no other convictions of a similar nature, and that his offence was at the lower end of the scale and he was given a good behaviour bond. He was supported by his employer of 15 years who indicated that he was a reliable and good employee.
7. In the 2020 case of Ireland, which concerned a 2014 cannabis trafficking offence, the Tribunal found that exceptional circumstances existed such that the applicant did not appear to pose an unacceptable risk to children.[23] The Tribunal found that the applicant had sustained substantial changes in his circumstances and lifestyle since his conviction and did so against a difficult background with little support. He had obtained and maintained steady employment and moved away from negative influences; he took control of his mental health issues; he successfully completed numerous skills courses; and he took on significant and ongoing community responsibilities in football coaching and caring for his mother.
8. In HNU, the relevant PDOs were five charges of sexual offending against children, some 20 years previously, that were awaiting arraignment proceedings in the District Court.[24] The applicant had previously held WWCCs for eight years and said he had an unblemished criminal and disciplinary history. The Tribunal found that this did not amount to exceptional circumstances such that the applicant does not appear, or no longer appears, to pose an unacceptable risk to children.
9. In Mepstead, the Tribunal found that there were no exceptional circumstances.[25] The relevant PDO was for trafficking in methamphetamine in 2014 for which the applicant had been sentenced to over six years imprisonment and was still on parole. The applicant had a 30 year history of addiction to illicit drugs. The evidence of him abstaining from drugs was very recent and obtained under the strict conditions of supervision while on parole. The Tribunal stated that it would need to be satisfied of the applicant's rehabilitation (i.e. of his sustained non-involvement with such drugs) over years rather than months.
10. In FHN, the Tribunal found that there were also no exceptional circumstances.[26] The applicant had been convicted in 2010 of the PDO of trafficking in a controlled drug. The applicant had a 30 year criminal history between 1984 and 2014 for drug, firearms, dishonesty and behavioural offending, including an extensive number of motor vehicle and driving offences. The Tribunal found that, without independent evidence to positively demonstrate a change from his previous behaviours, it was not satisfied that the applicant is no longer a risk to children.
11. In JEE, the Tribunal was satisfied that there were exceptional circumstances.[27] The relevant PDO was a conviction of sexual assault in 2013 when the applicant was 18 years of age. The applicant had not committed a further offence of a similar nature in the intervening 11 years. He was now in a healthy and loving committed relationship for seven years and had demonstrated rehabilitation. He had secured stable accommodation and was a valued employee. The Tribunal found that the applicant had worked incredibly hard to move on from his past and that he had turned his life around and demonstrated sustained stability.
12. In NXY, the PDO was a conviction in 2017 for kidnapping for which the applicant had been sentenced to several years imprisonment and was still on pre-parole home detention at the time of the hearing.[28] The applicant had made serious efforts to turn her life around but this was found not to amount to exceptional circumstances or bring the applicant outside the mischief which the legislature intended to address. There was nothing out of the ordinary course, unusual, special or uncommon about the applicant's efforts at rehabilitation. It would be common for persons in the applicant's position to take positive steps to move on from prior offending by engaging in rehabilitation efforts. This is something that would not be exceptional but would be regularly, routinely or normally encountered. Also, the applicant's head sentence would not expire for several years. In that time, she would be supervised and under conditions relating to her behaviour so her progress in her rehabilitation journey had yet to be tested outside of a supervised environment.
13. In INI, the PDO was a conviction of attempted rape of a vulnerable person some 42 years previously when the applicant was a young man.[29] Despite the effluxion of time since the PDO, the Tribunal found that there were no exceptional circumstances. The applicant has long-standing mental health issues, which were currently untreated, and involved threats to himself and to others. Also, he demonstrated a significant, ongoing lack of insight, remorse or reflection about his conduct. His blaming of the victim, his lawyer and the justice system for his conviction was found not to be demonstrative of a reformed or rehabilitated individual. There was no evidence of a sustained, self-motivated change by the applicant or evidence of any relevant counselling.

1. The applicants contend that the s 26A presumption is rebutted pursuant to both the first limb and the second limb.
2. In considering this matter, I remind myself of two preliminary points. First, it is the fact alone that the applicants have been charged with PDOs (and that those charges are not finally determined) that attracts the presumption that they pose an unacceptable risk to children. Secondly, that the purpose of the CSPP Act is entirely protective of children. It is not to punish the applicants.
3. It is therefore not the Tribunal's role to conduct a quasi-trial of the allegations against the applicants and it is not to attempt to determine whether any of the alleged facts actually occurred. The Tribunal's role is also not to give consideration to the same sorts of matters that might be dealt with by a sentencing court.
4. For that reason, I give no weight to the (unsubstantiated) assertion that the applicants had only briefly left the rabbits and guinea pigs without water and that therefore they were not left without "adequate" water. This is an assertion that they did not commit the s 13(2) offence which, as I noted above, I cannot entertain in these proceedings. For similar reasons, I give no weight to the (unsubstantiated) assertion that the applicants were simply following veterinary guidance in their cage cleaning routine.
5. Further, in considering whether the presumption is rebutted, it is not the role of the Tribunal to conduct a risk assessment under s 26 of the CSPP Act to determine whether the applicants pose an unacceptable risk to children. The Tribunal is not to undertake the process set out by this Tribunal in GJC and later cases and which I outlined above. I disagree with the contention to the contrary in the applicants' submissions.
6. In particular, I disagree with the applicants' submissions that:

The respondent must be able to articulate what conduct, or what type of conduct, the alleged ill treatment of the animals would tend to suggest the applicants might engage in the future that gives rise to a risk to children. The respondent must also be able to articulate the nature of the consequences of such conduct to children.[30]

7. I agree with the respondent that this submission misconceives the purpose and presumptive effect of s 26A.
8. For this same reason, I do not agree with the applicants that the Tribunal should enquire whether the risk they pose to children is fanciful, farfetched or theoretical or whether the potential consequences would be mild or insignificant.
9. The effect of the s 26A presumption is that this assessment has essentially already taken place by virtue simply of the fact that the applicants have outstanding charges for PDOs.
10. The respondent's role, and therefore the Tribunal's role, under s 26A is simply to determine if the presumption has been rebutted by the applicants.
11. I also note that the CSPP Act and the Guidelines place the onus of rebutting the presumption squarely on the applicants. However, aside from the contents of the respondent's Books of Documents, the Tribunal has no other information before it. The applicants did not provide any additional documentary or oral evidence to support their various contentions. For obvious reasons, I cannot place significant weight on self-serving contentions that are not supported by independent corroborative evidence. This approach is reflected in the Guidelines.[31]
12. I reject the applicants' contention that the legislation ought to be construed strictly as people can lose their livelihoods. This contention is inconsistent with the objects of the CSPP Act set out in s 3. It is inconsistent with the observations that the CSPP Act evinces the intention that working with children is a privilege not a right and that the risk of injustice to an applicant is preferred over a risk to the safety of children.[32] And, as noted earlier, the rights of, or personal impact on, the person the subject of the check are not relevant considerations in determining whether they pose an unacceptable risk to children.

First limb of s 26A(1)(c) - whether to disregard the offence

1. As far as they are relevant to the present case,[33] I turn first to the non-exhaustive factors referred to in the Guidelines as those that may be considered when assessing the circumstances of the relevant PDO.

1. The PDOs are recent. Only about seven months have passed since the applicants were charged with the offences. As the Wombat decision illustrates, where the relevant PDO occurred 26 years previously, older or historical PDOs can usually be expected to carry greater positive weight than more recent PDOs because the passage of time will usually see the PDO recede into the background.[34] This is not the case here. The PDOs are still highly relevant.

1. I do not regard the PDOs as being contextually trivial despite that being forcefully urged on me by the applicants. On the contrary, they are highly pertinent.
2. As the applicants correctly submitted, the relevant context is the protection of children from unacceptable risk of harm. It is not the context of the animal welfare legislation.
3. The PDOs involve, broadly speaking, allegations of a failure to care adequately for the animals. The alleged offending involved a large number of animals (54 separate animals - 48 rabbits, five guinea pigs and a dog). This is a significant number of animals and the species themselves could not be reasonably regarded as relatively inconsequential in type. All of the animals were vulnerable because they were entirely in the care and control of the applicants. The rabbits and guinea pigs were caged and unable to fend for themselves. The dog (it is alleged) was apparently so poorly that it also could not fend for itself. While one can certainly imagine examples of greater overt cruelty against animals, I reject the applicants' apparent suggestion that I should disregard these allegations as they are the "least serious types of ill treatment", there was no harm demonstrated to any animal, and the conduct did not involve "cruelty". In the relevant context of protection of children, these allegations involve neglectful conduct and a prioritisation of the applicants' own interests over those of vulnerable animals in their care and control.
4. I agree with the respondent that the concerns in respect of this type of offending are directly transferable to a context in which the applicants would be working or volunteering with children and charged with their care. I agree that animals and children are both reliant on the conduct of those caring for them or engaged with them in employment or voluntary capacities to behave in a way that does not expose them to the risk of harm.
5. For all the above reasons, I do not agree with the applicants' submissions that the "guardianship" role they have over the animals in their care is relevantly different from the role they would have working or volunteering with children. This is a false distinction. I am surprised that the applicants would consider that their professional ethical responsibilities as a teacher and librarian in schools are materially different from their responsibilities in respect of vulnerable animals in their care and control. I note two further things. First, a WWCC is portable and is not confined to the applicants' teaching and librarianship roles. For example, as the respondent observed, a WWCC would allow the applicants to work with infants and not just school age children. Secondly, it can easily be assumed that, in including the s 13 AW Act offences in the CSPP Regulations, there was an awareness that the offending could arise in respect of any animal, including those in rescue facilities.
6. Before departing from the issue of contextual triviality, I note that I was urged in the applicants' submissions to adopt the approach taken on the matter of contextual triviality in the decision of a Senior Member of the Tribunal in DGH v Department of Human Services (DGH).[35] The respondent urged me not to follow DGH on the basis that "the Tribunal erred in its interpretation of the question asked by s 26A(1)(c)(i)". However, it is by now trite to observe that Tribunal members are not bound by each other's decisions, although they will of course afford them respectful consideration. It is also trite to observe that decisions in these complex PDO matters will turn on their individual facts. If my approach in dealing with the contextual triviality issue in the present case differs materially from that taken by my learned colleague in DGH, I respectfully decline to adopt the Senior Member's approach.

1. There is no information before the Tribunal that the applicants, or either one of them, played a minor role in any broader context of alleged offending. There is no indication of anyone else being involved. As between the applicants, they appear to have equal agency in the alleged offending.

1. The victims of the applicants alleged offending are, of course, not humans and are unable to speak for themselves.
2. Whether there was any physical or psychological impact on the 54 animals is a matter that is essentially unknown to the Tribunal and is disputed by the applicants. Any such impact may be relatively minor.

1. There is no evidence that the alleged offending arose in the context of an abusive relationship, as an act of self-defence or defending another, or arose from a situation of direction or duress by another.

1. To be clear, I can place no weight on the fact that the PDOs are unproven charges and not convictions. As noted earlier, the legislation is clear that a PDO can be a charge that is not finally determined.
2. Also, I agree with the respondent's submissions that I can place no weight on the fact that the applicants have been charged with lesser offences under s 13 of the AW Act rather than the aggravated offence. I disagree with the applicants' submissions to the contrary. The fact that they have been charged with the lesser offence is irrelevant because the CSPP Regulations do not differentiate between the two s 13 offences and do not rank them differently. In fact, despite the obvious stark differences between the PDOs in the CSPP Regulations, none of them are ranked better or worse from a child safety and protection context. In other words, the aggravated s 13 offence is not the more serious PDO of the two; the lesser offence is not the less serious of the two. Where a person is charged with (or convicted of) the lesser of the two s 13 offences,[36] it is entirely the task of the first and second limbs of s 26A(1)(c) to determine the significance of that specific PDO to the question of the risk posed by the applicant to children.
3. I also place no weight on the fact that the AW Act appears set to be repealed and replaced by the Animal Welfare Act 2025 at some stage in the future. I disagree with any suggestion in the applicants' submissions that I should take that matter into account. Therefore, I place no weight on, and do not speculate about, the potential consequences of any amendments to what are currently the s 13 offences, including whether in the future they will be PDOs under the CSPP legislation. I am bound to apply the AW Act and the CSPP Regulations.
4. I have taken into account that the applicants' both have medical issues. QDF has multiple sclerosis. ZYQ suffers from anxiety. However, QDF denied that these matters affect their ability to care for animals.[37] Accordingly, I give these matters little significant weight in deciding whether the PDOs should be disregarded.
5. The supplementary submissions provided by the parties after the close of the hearing related to the nature of the circumstances that could be considered when determining whether the PDO should be disregarded. As I noted earlier, it would be artificial not to consider the PDO in its factual context. I consider that a particularly relevant additional circumstance is that the living conditions of the rabbits and guinea pigs appear to have subsisted for some time and did not arise only on the date of the RSPCA inspection in November 2024. This seems to be conceded in the applicants' supplementary submissions.[38] A further relevant circumstance is that the applicants would appear to have been aware that the RSPCA had been attempting to contact them since about June 2024. This does not appear to be disputed by the applicants. These circumstances weigh adversely against the applicants as they indicate that, despite the five months' advance notice they would have had of the RSPCA's interest in the welfare of animals at their refuge, there were still a considerable number of animals found in their care and control in conditions that led to the applicants being charged with the PDO offences.

1. I find on balance that there is no basis to disregard the PDOs. The factors in the Guidelines that would be suggestive of a reason to disregard the PDOs do not assist the applicants. The factors that would suggest that a PDO should not be disregarded weigh significantly adversely against the applicants.
2. I am satisfied that circumstances of the PDOs are capable of rationally affecting the assessment of the applicants' risk to children such that the PDOs should not be disregarded.

Second limb of s 26A(1)(c) - whether exceptional circumstances

1. The question here for the Tribunal is whether, despite the PDOs, such exceptional circumstances exist in relation to the applicants, or either of them, that demonstrates that the person does not appear, or no longer appears, to pose an unacceptable risk to children.
2. It is my understanding that both parties agreed with the "despite the PDO" formulation set out above: in other words, that the existence of the PDOs cannot be ignored when considering the second limb.
3. The Guidelines indicate that exceptional circumstances are not limited to the circumstances of the offence or charge upon which the presumption arises. However, I consider that any such circumstances pertaining to the applicants must nevertheless be capable of rationally affecting the assessment of their risk to children. Unlike the narrative in the Guidelines relating to the first limb, the Guidelines are not express on this point as regards the second limb. However, it makes sense in the context of the CSPP legislation and the Guidelines that the question of exceptional circumstances is not at large and such circumstances must be relevant to the fundamental question of risk to children.
4. Therefore, the second limb of s 26A(1)(c) is not broad ranging: the circumstances must be personal to the applicant and they must bear logically on the acceptability of the risk or apparent risk the person poses to children.[39]
5. Support for these positions is also found in the statement in the Guidelines that "circumstances must also, either individually or collectively, address and mitigate the underlying risk/s inherent in the presumptive disqualification offence that led to the statutory presumption arising".[40]
6. Given that the offending occurred relatively recently, it is no surprise that the bulk of the applicants' submissions concerned circumstances that had been in existence at the time of the alleged offending. I agree with the applicants' submissions that, although the focus of the Guidelines[41] and of the majority of the decided cases has been on changed circumstances in an applicant's life since the commission of the relevant PDO, the second limb is not strictly confined to circumstances post-dating the PDO. The second limb can apply to a person who does not appear to pose an unacceptable risk to children at the time of the commission of the offence or alleged offence. This must be correct as a matter of statutory interpretation. The second limb is silent as to the timing of the circumstances that might rebut the presumption. Also, Parliament can be assumed to have been aware that the presumption might arise because of fairly recent charges of PDOs where there would be limited opportunity to demonstrate circumstances that had only come about since the alleged offending.
7. However, I do not agree with the submission that "comparatively less is required of a person in the position of the applicants to establish the requisite exceptional circumstances".[42] There is no proper basis to interpret s 26A as placing any lesser onus on an applicant who has been charged with a PDO that has not been finally determined as opposed to a person who has been convicted of a PDO.
8. I respectfully agree with the observations of Tribunal Member Kennedy cited by the respondent, namely that:

The favourable exercise of discretion, generally speaking, reflects sustained changes to a person's life and behaviour after the conviction for a presumptive disqualification offence. In this regard I do understand the dilemma referred to by the applicant in responding submissions that a demonstration of rehabilitation and reform, which is a common feature of the examples provided by the respondent, cannot be advanced where there is no conviction. While I understand the dilemma, recognising the difficulty does not amount to a relevant exceptional circumstance in itself or change the character of the other circumstances relied upon by the applicant.[43]

Periods of voluntary good behaviour (no offending or other misconduct)

1. I have taken into account that there is no indication that the applicants have committed or been charged with any other offending prior to the PDOs.
2. I have also taken into account that there is no indication of any child-related abuse or similar concerns against either of the applicants.
3. Some positive weight can be placed on these circumstances in the context of a risk to children. However, as observed in LVM, they are not in themselves sufficient to establish exceptional circumstances.[44]
4. There is also no indication that the applicants have committed (or are alleged to have committed) any other offending since the PDOs in question. However, there is a limit to the amount of positive weight that can be placed on this. As the Guidelines indicate "information evincing sustained, self-motivated change will generally be afforded greater weight than that of short-term and/or third party ordered compliance".[45] Similarly, periods of no offending when a person has active charges presently before the courts on other matters should be afforded less weight than when there are no such pending charges. A person with active charges would be aware of the need to refrain from other transgressive conduct that might affect their current criminal proceedings. Generally speaking, greater weight can be placed on evidence of good conduct that occurs outside of such a context.

1. I have taken into account that the applicants have a history of employment in responsible roles in child-related areas with no apparent concerns expressed against them. Some positive weight can be placed on this.
2. I have also taken into account the applicants' voluntary animal welfare activities, namely their operation of a rescue refuge for rabbits and guinea pigs. There are indications that the applicants have expended a considerable amount of their own money on food and veterinary supplies for the animals. This is said to total about $30,000 in a 12 month period.
3. However, there is a limit to the weight that can be placed on these activities in an assessment of risk to children. I do not agree with the applicants' submissions that the altruistic nature of their endeavours is exceptional in a relevant sense. In any event, the alleged offending that gave rise to the PDOs occurred in the context of these salutary and altruistic endeavours. And, as I noted above in my consideration of the first limb and for the reasons there expressed, the alleged offending under s 13 of the AW Act is not contextually trivial.

Demonstrated personal growth and/or insight and demonstrated reformed behaviour and/or lifestyle stability

1. Expressions of insight, remorse and of "lessons learned" can be relevant under the second limb.
2. There is limited evidence of that here. Submissions were made that the Tribunal should take into account that the applicants, while denying the alleged offending, have "demonstrated a willingness to implement improved systems of looking after their animals".[46] I place limited weight on that for present purposes. First, as was observed in those submissions, this arose only after the RSPCA's intervention. Secondly, the willingness of the applicants to comply with animal welfare legislation is somewhat begrudging and does not speak significantly to their insight, or that there have been any lessons learned, about their responsibility for those in their care and control, whether vulnerable animals or children.

1. As every case is different, not all of the matters referred to in the Guidelines will be relevant in a particular case. There were no submissions made or evidence produced in respect of certain other matters that the Guidelines suggest be taken into account (such as evidence of educational and/or vocational training and evidence of successful engagement with therapy and/or counselling). As such, no weight can be given to these other considerations.

1. I am mindful of the caution expressed in the Guidelines that the bar for assessing exceptional circumstances must not be set so high that it is near impossible to satisfy.[47] All the same, this does not mean that the bar is set so low that the legislation does not meet its goal of protecting children from harm. As the Guidelines indicate, the paramount consideration remains the best interests of children, having regard to their safety and protection.[48]
2. The weight of the evidence does not establish that exceptional circumstances exist. I cannot be satisfied that there are circumstances in this case such that the applicants have rebutted the presumption that they pose an unacceptable risk to children. There are no circumstances that could be considered "out of the ordinary course, unusual, special or uncommon" or such that the applicants' case is not within the mischief which the legislature intended to address.

1. Before concluding this matter, I deal with a remaining issue raised in the applicants' submissions.
2. The applicants criticised the respondent's decision-making process and asserted that they were not afforded procedural fairness. It was contended that I should therefore give the respondent's decision little or no weight.
3. This contention can be dealt with relatively quickly. I note in this particular case the applicants had access to the material contained in the respondent's Books of Documents, had an opportunity to adduce evidence before the Tribunal, and were represented by counsel who made robust, detailed and comprehensive written and oral submissions on their behalf. It is now well established that a review of an impugned decision by the Tribunal pursuant to the procedures set out in s 34 of the SACAT Act essentially cures any procedural deficiencies in the decision under review.[49]

1. For the above reasons, I am satisfied that the correct or preferable decision is to affirm the decisions under review that the applicants have failed to rebut the presumption that they pose an unacceptable risk to children.

[1] Book of Documents, pp 40-41 and Book of Documents, Documents 9.5 and 9.6.

[8] And, as far as I am aware, as at the date of these reasons.

[9] Regulation 15A(f) Child Safety (Prohibited Persons) Regulations 2019.

[10] GJC v Department of Human Services [2020] SACAT 38 at [104].

[11] Section 26(6) Child Safety (Prohibited Persons) Act 2016.

[12] Section 26(1) Child Safety (Prohibited Persons) Act 2016.

[13] INI v Department of Human Services [2025] SACAT 22 at [73(b)].

[14] Working with Children Check Guidelines, July 2024, p16. See Mepstead v Department of Human Services [2022] SACAT 64 at [23].

[15] Working with Children Check Guidelines, July 2024, pp 11-12.

[16] NXY v Department of Human Services [2024] SACAT 12 at [91].

[17] Mepstead v Department of Human Services [2022] SACAT 64 at [54].

[18] R v Yavuz [2018] SASCFC 24 at [115].

[19] Ireland v Department of Human Services [2020] SACAT 96 at [29].

[20] R v Yauvuz [2018] SASCFC 24 at [113] citing R v Skinner (2016) 126 SASR 120.

[21] Working with Children Check Guidelines, July 2024, pp 12-13.

[22] Mead v Department of Human Services [2019] SACAT 79.

[23] Ireland v Department of Human Services [2020] SACAT 96.

[24] HNU v Department of Human Services [2021] SACAT 92 at [30].

[25] Mepstead v Department of Human Services [2022] SACAT 64.

[26] FHN v Department of Human Services [2023] SACAT 77.

[27] JEE v Department of Human Services [2023] SACAT 91.

[28] NXY v Department of Human Services [2024] SACAT 12.

[29] INI v Department of Human Services [2025] SACAT 22.

[30] Applicants' Outline of Argument, 11 April 2025, at [67].

[31] Working with Children Check Guidelines, July 2024, p 13.

[32] Badea v Department of Human Services [2024] SACAT 37 at [79].

[33] For example, as the PDOs are charges that have not yet been finally determined by the courts, I do not deal with factors such as the penalty imposed by the sentencing court.

[34] Wombat v Department of Human Services [2020] SACAT 97.

[35] [2023] SACAT 108 at [72]- [77].

[38] Applicants' Supplementary Submissions, 23 May 2025, at [8].

[39] INI v Department of Human Services [2025] SACAT 22 at [73(c)].

[40] Working with Children Check Guidelines, July 2024, p 13.

[41] Working with Children Check Guidelines, July 2024, pp 12-13.

[42] Applicants' Outline of Argument, 11 April 2025, at [98].

[43] HNU v Department of Human Services [2021] SACAT 92 at [36].

[44] LVM v Department of Human Services [2021] SACAT 36.

[45] Working with Children Check Guidelines, July 2024, p 13.

[46] Applicants' Outline of Argument, 11 April 2025, at [100.3] also Book of Documents, Document 9.4.

[47] Working with Children Check Guidelines, July 2024, p 13.

[48] Working with Children Check Guidelines, July 2024, p 13.

[49] See for example Re RBY [2021] SACAT 39 at [26]- [30].