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[2021] SACAT 89
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-11-22
Mr J
Original judgment source is linked above.
The applicant sought a review of a decision by the Department of Human Services - Central Assessment Unit (the Department) to prohibit him from engaging in any child related employment on grounds that the applicant poses an unacceptable risk to children.
The decision was made on the basis of information received from SAPOL and the Australian Criminal Intelligence Commission that the applicant had pleaded guilty to aggravated assault in 2007; he was found to have breached his bond in 2008; and in 2020 he was charged with indecent aggravated assault in relation to a 12 year old female student. The indecent aggravated assault charge was withdrawn in August 2020. The Department had also received information on the applicant's extensive disciplinary and misconduct history when he worked as a primary school teacher that included complaints of bullying and abusive behaviour.
The applicant submitted that he has been working with children for the past 24 years and has been highly respected by students, parents, and fellow teachers. The applicant submitted that most of the matters considered by the Department had arisen from a fabricated complaint against him that had been "thrown out" and "dismissed" in court.
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
GJC v Department of Human Services [2020] SACAT 38
Schinckel v Registrar of Firearms [2020] SASC 236
BZY v Department of Human Services [2021] SACAT
Mr J Nguyen, Crown Solicitor's Office, 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.
1. This is the determination of an application lodged with the Tribunal on 17 August 2021 by VKS, seeking the review of a decision made by the Department of Human Services - Central Assessment Unit (the Department) on 9 August 2021. The decision prohibited VKS from engaging in any child related employment, pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (the Act).
2. The application is made to the Tribunal pursuant to s 43(2) of the Act, and s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act).
3. The s 35 documents (the material that was before the decision-maker at the time the decision was made) were received by the Tribunal and provided to the applicant on 30 September 2021. I take these into account in determining this application.
4. VKS was registered with the Teachers Registration Board of South Australia from 1 February 2000, until his registration lapsed on 31 January 2021, having not sought a renewal of his registration. From January 2000 to July 2021 VKS was employed by the Department of Education in South Australia. In about 2020 VKS established a business in which he taught art, including to children. On 27 January 2021 he applied for a working with children check (WWCC).
5. Following an assessment which included material from the Australian Criminal Intelligence Commission and SAPOL, as well as the Department of Education and the Teachers Registration Board, the Department determined that VKS posed an unacceptable risk to children and issued a prohibition notice prohibiting him from working with children. It is this decision that is the subject of this review.
6. Following an earlier directions hearing on 8 October 2021 the Tribunal made an order pursuant to s 60(2)(g) and (h) of the SACAT Act prohibiting the publication or disclosure of the s 35 documents provided to the Tribunal in this matter, on the ground that the documents contain the names and details of children and other evidence that might identify children. That order remains in place.
7. VKS told the Tribunal he had been a school teacher for 20 years, and this, combined with his practicums and the period of running his own business, meant he had been working with children for 24 years, more than half his life. He told the Tribunal he had taught over a wide variety of areas, not only in the classroom but also in out of classroom and out of hours teaching, including in Art, soccer training, and teaching and supporting a school Rock band. He stated he had always been highly respected by students, parents and fellow teachers, and he loved teaching, and many students had told him he had helped them achieve their potential. VKS said he left formal teaching as an employee to open his own business to teach and share Art.
8. VKS told the Tribunal most of the matters taken into account by the Department in making the decision had arisen from a fabricated complaint against him. He said the complaint was completely untrue. This complaint had been taken to court, but had been thrown out and dismissed. He told the Tribunal he was disgusted that he was obliged to continue to defend himself and that it was stopping him from conducting his business and make his living. He said none of the matters referred to in the Department's reasons were issues which had been sufficient to stop him working with children when he was employed as a teacher.
9. VKS told the Tribunal the Department should not have taken into account the matters relating to the false accusation against him, as it had been dismissed by the court. He said the alleged events were said to have occurred in 2017, but he had continued to teach until 2019 when he resigned from the Education Department, and as the charges had been dismissed they should be considered completely irrelevant.
10. VKS conceded he had made some mistakes in the course of his teaching career, but said he had addressed these issues when they had arisen, and consulted with colleagues as to how to adopt different behaviour toward children. He said he had reflected on the issues, and had read the relevant legislation so he had an understanding of it. He said no issues had arisen in the time he had been conducting his own business teaching children since 2020.
11. VKS said as a consequence of the decision under review, he had lost income, and had suffered from financial and emotional stress and it had caused him distress. He believed his business would not flourish if he was not able to teach children as well as adults. VKS suggested a "probation period" be established to enable him to demonstrate that he is suitable to work with children and does not pose any risk to them.
12. Mr Nguyen for the Department told the Tribunal the decision should be affirmed as both correct and preferable.
13. Mr Nguyen submitted to the Tribunal that the primary object of the Act is to minimise the risk to children posed by persons who work with them, and the Act provides a framework for the prohibition of persons who pose an unacceptable risk to children in working with them, with the paramount consideration being the best interests of children, having regard to their safety and protection.
14. Mr Nguyen submitted that, bearing these considerations in mind, the Act requires the Department to conduct a working with children check regarding a person, to determine whether or not the person "poses an unacceptable risk to children" and "whether the person should be prohibited from working with children" (s 3(4)(b) of the Act), based on an assessment of assessable information in relation to a person against the prescribed risk assessment criteria (s 26(1) of the Act).
15. Referring to the Tribunal decision in GJC v Department of Human Services ([2020] SACAT 38), Mr Nguyen submitted that the purpose of a WWCC is "to conduct a risk assessment process in order to determine whether the person presents an 'unacceptable risk' to children in any child related working environment" (at [68]), so the decision-maker's role under the Act "is to determine only whether the Applicant poses an unacceptable risk to children (the ultimate or wider issue)" (at [207]).
16. Mr Nguyen submitted that in GJC v Department for Human Services, the Tribunal considered what constituted an "unacceptable risk" to children in the context of the Act, and concluded that the term "unacceptable risk" in s 26(1) of the Act 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. The Tribunal's conclusion was that "the decision-maker does not necessarily need to be satisfied that it is likely, to any standard or level of satisfaction (such as the balance of probabilities), that the person will cause harm to a child in the future, merely 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" (at [207]).
17. Mr Nguyen submitted that the question of "risk" should not be reduced to a question of likelihood to cause harm. He referred to the consideration of risk assessment under the Firearms Act 2015 in Schinckel v Registrar of Firearms [2020] SASC 236 by Bleby J (at [30]), who stated "The concept of risk directs attention not only to the likelihood of an occurrence, but also the gravity of the occurrence should it eventuate". Mr Nguyen submitted that this consideration of risk assessment should equally be applied to the risk assessment involved under the Act in this matter, and this view had been adopted by the Tribunal in relation to the Act in BZY v Department of Human Services [2021] SACAT 1 at [33]-[34].
18. Accordingly, Mr Nguyen concluded that under the Act, the task is 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.
19. Mr Nguyen told the Tribunal "assessable information" is defined in s 8 of the Act, and includes the following:
20. Mr Nguyen told the Tribunal that in its assessment of VKS's application, the Department had obtained information from SAPOL and the Australian Criminal Intelligence Commission, which disclosed that VKS had been pleaded guilty to aggravated assault in 2007, for which no conviction was recorded but he was discharged on a 2 year good behaviour bond; in 2008 he was found to have breached the terms of his bond; and in 2020 he was summonsed to appear on a charge of indecent assault (aggravated offence) which was alleged to have occurred in 2017 in relation to a 12 year old female student. This charge was withdrawn in August 2020.
21. Mr Nguyen also told the Tribunal that after he was charged in March 2020 VKS was directed away from his workplace and was subsequently suspended. In June 2020 VKS was placed on bail with conditions preventing him from engaging in any child related work, and on 10 June 2020 his teacher registration was suspended.
22. Mr Nguyen also told the Tribunal there was an extensive disciplinary and misconduct history concerning VKS's employment within the Education Department. These included complaints of bullying and abusive behaviour in 2009 and 2010, leading to two formal warnings, concerning VKS's interactions with students at the primary school where VKS was then teaching. Other similar complaints were made concerning his conduct at another school in 2011, 2016, 2017, 2018 and 2019, leading to the provision of the Protective Practices Guidelines to him, with directions that he conduct his teaching practices in accordance with the Guidelines; other directions from the principal; a managerial caution; the imposition of a fine of one week's salary; and 2 weeks suspension without pay.
23. Mr Nguyen said that in the course of the Department's assessment for the WWCC, VKS was invited to make submissions concerning these matters but he did not do so, and the Department concluded that he posed an unacceptable risk to children and consequentially issued a prohibition notice prohibiting him from working with children.
24. Mr Nguyen submitted that even though the criminal charge against VKS had not been proceeded with, information relating to sexual offending against a child, whether proven or not, is assessable information under s 8 of the Act, and is considered "high risk". The Department's view was that, in addition, despite numerous management and disciplinary actions, including formal cautions, written directions, and the imposition of a fine and suspension of employment without remuneration, over quite a lengthy period VKS had apparently not learned from his past conduct and had not sufficiently addressed the inappropriateness of his conduct or demonstrated insight into the impact it has had on students. The Department's conclusion was that the history and pattern of VKS's misconduct over a ten year period in a child related professional organisational setting, is demonstrable of his unacceptable risk to the safety and wellbeing of children.
25. In considering the specific matters raised by VKS, Mr Nguyen submitted that none of these considerations impacted on the consideration of whether the decision under review was correct or preferable.
26. The first issue raised by VKS was that the Department had been incorrect in taking into account the 2020 charge which was not proceeded with. VKS asserted the allegations were entirely fabricated, and that the charge had been "thrown out" and "dismissed". Mr Nguyen submitted to the Tribunal this was not the case. He said the relevant documents (before the Tribunal in the s 35 documents) show that the proceedings were instituted, there were two mentions before the Magistrates Court, and a bail agreement in relation to the charge was entered into. The matter was eventually withdrawn and Mr Nguyen conceded there was no conviction or finding of guilt against VKS. Nevertheless this amounted to "assessable information" which may be considered by the Department in making the assessment as that includes information concerning alleged offending, even where not proven, and this is specifically referred to in s 8(1)(a) and (b) of the Act. However, he submitted further that while the charges were not proceeded with, they were not "dismissed" or "thrown out by the court", as asserted by VKS.
27. VKS suggested there were few issues concerning children which had arisen in his years as a teacher and all these were relatively trivial. Mr Nguyen submitted the evidence demonstrated this was not the case. He told the Tribunal that between 2009 - 2019, there had been "a litany" of misconduct concerns relating to VKS's conduct toward children as a teacher. This conduct related to inappropriate conduct toward children including bullying and inappropriate handling of children. Mr Nguyen conceded some of these incidents may appear trivial but others had led to managerial interventions and penalties, and provided VKS with multiple opportunities for reflection and reform which he did not take. Mr Nguyen submitted that the totality of the evidence regarding VKS's past conduct as a teacher led to the conclusion that he poses an unacceptable risk to children.
28. The third ground raised by VKS was that the prohibition ought to be set aside as it has had deleterious effects on him. Mr Nguyen submitted this was an irrelevant consideration in the context of the application of the Act. Mr Nguyen submitted the decision-maker's inquiry in a WWCC is entirely protective, so any impact of a prohibited outcome on the person the subject of the application is not a relevant consideration in assessing whether the person poses an unacceptable risk to children.
29. Mr Nguyen also submitted that VKS's request that he be provided with a "probation period" in which to demonstrate that he posed no risk to children was not an outcome available under the Act. He submitted that the Act requires that a person is either prohibited from working with children, or not prohibited, and if the Tribunal concluded that VKS poses an unacceptable risk to children, the only option is to affirm the decision under review. He submitted the Tribunal has no jurisdiction to grant a period of probation to VKS to enable him to demonstrate he is suitable to work with children.
30. Section 34 of the SACAT Act provides that the Tribunal has jurisdiction to deal with a matter that ... involves a review of a decision. An application to review a decision comes within the Tribunal's review jurisdiction, and the Tribunal is required to examine the decision under review by way of a re-hearing (see s 34(3) of the SACAT Act), and must reach the correct or preferable decision, having regard to and giving appropriate weight to the decision of the original decision-maker (see s 34(4) of the SACAT Act). The Tribunal in conducting a review of a decision and exercising those powers is taken to be standing in the shoes of the original decision-maker, but may also have reference to additional relevant evidence, as the review is by way of a rehearing. The Tribunal "may make any order the Tribunal considers appropriate" (see s 37(1) of the SACAT Act), and the Tribunal's decision on review is to be regarded as and given effect as a decision of the original decision-maker (see s 37(3) of the SACAT Act).
A working with children check in respect of a person consists of the central assessment unit assessing assessable information relating to a person against the prescribed risk assessment criteria to determine whether or not the person poses an unacceptable risk to children.
32. "Unacceptable risk to children" is not defined in the Act.
33. Section 8 of the Act defines assessable information which the central assessment unit may take into account in conducting a working with children check. The definition includes the following:
34. Section 3 of the Act sets out the objects, principles and guidelines that underpin the Act and its administration. In particular, s 3 makes it clear that the primary purpose of the Act is to minimise the risk to children posed by persons who work with them, and the paramount consideration must always be the best interests of children, having regard to their safety and protection. Section 3(4) of the Act addresses WWCC, and relevantly provides as follows:
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;
35. In considering this application for review, I have before me the s 35 documents, which comprises all the material the Department had before it when the decision the subject of review was made, including information received from SAPOL and the Australian Criminal Intelligence Commission which relates to VKS's criminal history including the charges brought against him in 2020; as well as from the Department of Education and the Teachers Registration Board, which includes information relating to the complaints received by the Department of Education and the responses (including disciplinary action) taken in relation to those complaints by that Department, and the disciplinary action taken by the Teachers Registration Board suspending VKS's teacher registration in 2020. In addition I have before me written submissions from both VKS and on behalf of the Department, and oral submissions supporting these. I take all this into account.
36. The Tribunal's role under s 34 of the SACAT Act is to determine if the decision the subject of review is correct or preferable. Determining if the decision is correct entails determining if it is made in accordance with applicable legal principles, including relevant legislative requirements. Determining if the decision is preferable entails a consideration of the possible alternative decisions that may have been open to the decision-maker.
37. VKS submitted that in making its decision the Department should not have taken into account the information concerning the charges made against him in 2020 relating to events alleged to have occurred in 2017. He argued that these charges had been "dismissed by the court" and "thrown out by the court", and in any event were entirely "fabricated" and were denied by him. Accordingly, his submission was that the allegations contained in that information should not be used to form any basis that he posed an unacceptable, or any, risk to children.
38. However, s 8(1)(b) of the Act makes it clear that information concerning a charge, regardless of conviction, can be included as "assessable information" in undertaking a WWCC. Whether there is a conviction following a charge is doubtless a matter that can also be taken into account in determining how much weight should be given to the information. I am satisfied it was correct for the Department to take this information into account, despite the lack of a conviction on the basis of the information, and VKS's denial of the allegations.
39. Further however, VKS's submission that the charge had been "thrown out" and "dismissed" is not an accurate description of the outcome of the charge made. The charge was not, ultimately, proceeded with, and accordingly there was no consideration by the court, and no acquittal or conviction. There is no implication to be drawn from the withdrawal of the charge that VKS is guilty or not guilty of the offence charged, but it is true he has not been convicted of the offence charged. Nevertheless, the central assessment unit was entitled under the Act to take the information of and relating to the charge into account as part of the information for assessment, and to make an assessment of its relevance to the application.
40. In addition, the Department also took into account a significant further amount of assessable information the truth of which was not denied or challenged by VKS. This information included information concerning complaints against VKS concerning the way in which he treated children in his care as a teacher from time to time, and managerial and disciplinary sanctions applied against him at various levels, including by school principals and the Teachers Registration Board.
41. I am satisfied all the matters taken into account amounted to assessable information within the terms of s 8 of the Act.
42. I am also satisfied, having considered this information, that the Department's decision to prohibit VKS from working with children was a correct decision. The Department did not take into account any information in the course of its assessment that was irrelevant or did not come within the terms of "assessable information" as set out in s 8 of the Act. Further it gave VKS an opportunity to make submissions concerning its proposed decision, but he declined to do so.
43. More particularly however I am satisfied that an assessment of this information, in conjunction with the written and oral submissions made by VKS and on behalf of the Department at this hearing, that the decision by the Department, that VKS would pose an unacceptable risk to children if he worked with them, is supported by an assessment of this information.
44. The Tribunal's decision in GJC v Department of Human Services ([2020] SACAT 38) establishes that the requisite standard of satisfaction is a statutory standard of reasonable satisfaction that the person poses an unacceptable risk to children, namely 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.
45. The Tribunal in GJC also confirmed (at [207]) that the decision-maker can:
...consider the totality of the assessable information (after careful scrutiny and 'weighting') and the related risk factors, even if no individual act is proved to a standard equating to the civil standard, and find that the information cumulatively raises 'issues of concern' i.e. the decision-maker is not satisfied that the alleged conduct did not occur and the concern about risk to children therefore remains.
46. In GJC the Tribunal summarised the meaning of "unacceptable risk" as follows (at [113]):
... the term "unacceptable risk" requires an evaluation of the nature and degree of the risk to children and whether it is acceptable to allow it, i.e. a consideration of the likelihood of offending/or conduct occurring in the future and the seriousness of the consequences if the conduct eventuates.
I adopt that summary of the meaning of the term in this matter.
47. In considering the totality of the assessable evidence I am satisfied that if VKS worked with children this would pose an unacceptable risk to children: not that he would cause them harm, or is likely to cause them harm, but that they may be exposed to a risk of harm, and if this risk eventuated, the consequences to children would be serious. The material in the assessable information indicates that over a protracted period, VKS has engaged in behaviour that presents risk to children. This material includes the information leading to the 2020 charge which was not proceeded with, but which was considered credible and significant by SAPOL.
48. The material before me, which includes VKS's own submissions, oral and written, does not provide any evidence of insight on VKS's part concerning the nature of this conduct (including the conduct which he did not challenge) and its impact on children, or of any formal or sustained action taken by him to address inappropriate behaviour, for example through training or mentoring programs. VKS said he had reflected on his conduct, had read relevant legislation, and had sought advice from colleagues, but it does not appear any of this was consistent, ongoing or successful. It is significant to the Tribunal that the conduct contained in the assessable information extends over a significant period of time of more than a decade.
49. On this basis I am quite satisfied that the Department's decision in this matter to issue a prohibition notice prohibiting VKS from working with children, is a correct decision.
50. I am also satisfied it is a preferable decision. In particular, considering that VKS's established inappropriate behaviour extended over a lengthy period, more than a decade, and he was not able to provide any significant or successful remedial action or plans for such, bearing in mind that the Act requires that the best interests of children having regard to their safety and welfare, must be paramount, I am satisfied the decision is the preferable decision/
51. On the basis of these considerations I will affirm the decision.
52. In this context however I again reiterate, the making of this decision to prohibit VKS from working with children, and the Tribunal's affirmation of this decision, does not constitute in any manner a conclusion that there is any implication of guilt in respect of the 2020 charge against VKS. The assessment of the information before the Department and the Tribunal is an assessment, not that VKS will or even may cause harm to children, but that he presents a possible risk which may constitute a risk of harm to children, and if this risk eventuated, the consequences to children could be serious. The finding of this Tribunal is not that VKS will cause harm to a child in the future, but rather that there is a possibility of future harm to children, and that the potential consequences to children would be serious if that risk eventuated.
53. There are two other matters raised in this hearing outstanding.
54. VKS requested the Tribunal to consider giving him a "probationary period" in which he could continue his work to children, during which he could demonstrate that he did not pose any risk to children.
55. I am satisfied this is not an option open to the Tribunal. I accept Mr Nguyen;s submissions on this matter, that if the Tribunal's conclusion is that the Department's decision is correct that a prohibition order should be issued against VKS, its only option is to affirm the decision under review, and that the Tribunal has no jurisdiction to grant a period of probation to VKS to enable him to demonstrate he is suitable to work with children. I note the Tribunal addressed this issue in GJC, and concluded (at [125]):
In a WWCC the outcome is absolute one way or the other; the ultimate decision is 'prohibited' or 'not prohibited' - there is no option to grant a "conditional prohibition" by placing supervision conditions on a person's work for example.
56. The final issue raised by VKS was the impact of the decision on him personally and on his livelihood, as it had caused him both financial and emotional distress, as he was unable to operate his business effectively. I appreciate that this is the case. Mr Nguyen submitted this was in the context of the A ct an irrelevant consideration, and I accept that submission.
57. The purpose of the Act and the context of its administration is entirely protective, and the best interests of children in respect of their safety and welfare, is paramount. Again, this matter was addressed in GJC, and I adopt the view expressed there (at [121]):
When approaching a WWCC the sole focus for the decision-maker is the public interest in the protection of children. There is no punitive or "deterrent" aspect to the process at all and, accordingly, no focus on the impact that the working with children prohibition may have on the individual.
58. Under these circumstances the matters I must take into account are the safety and welfare of children and any "unacceptable risk" to that, not the impact of the prohibition order on VKS's financial and emotional circumstances.
1. The Tribunal affirms the decision under review.
2. The Tribunal confirms the order made on 8 October 2021 pursuant to s 60(2)(g) and (h) of the SACAT Act, namely:
The publication of any evidence or the contents of any documents before the Tribunal in this matter be prohibited, and that the disclosure of evidence given before the Tribunal and the contents of documents before the tribunal in this matter be restricted to the parties in this matter of their representatives.
3. I direct that any publication of these reasons for the decision in this matter be anonymised.
VKS
Department of Human Services [2021] SACAT 89