The Tribunal accepted Ms Wombat's submissions regarding the circumstances surrounding the offence and set aside the original decision but accepted the respondent's submission that the matter should be remitted to the Department for reconsideration.

The Tribunal sets aside the decision under review and refers the decision back to Department of Human Services - Central Assessment Unit for reconsideration.

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

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 39

Child Safety (Working with Children) Act 2016 ss 26, 32

Criminal Law Consolidation Act 1935 s 158

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

Set aside and refer decision for reconsideration

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

1. By an application lodged with the Tribunal on 25 November 2019 the applicant, Roma Wombat, sought review of a decision made on 5 November 2019 by the Department of Human Services - Central Assessment Unit (the Department), prohibiting her from working with children, pursuant to s 32 of the Child Safety (Working with Children) Act 2016 (the Act).
2. Ms Wombat had been notified by the Department on 25 September 2019 that she came within the provisions of s 26A of the Act as a person who had been found guilty of a presumptive disqualification offence, as she had been convicted of an offence which came within the definition of a presumptive disqualification offence, namely robbery with violence, on 8 August 1994. Section 26A of the Act provides that of a person has been found guilty of a presumptive disqualification offence (as prescribed by the Regulations made pursuant to the Act) is presumed to pose an unacceptable risk to children (see s 26A(1)(a) of the Act).
3. In that notice Ms Wombat was invited by the Department to make submissions as to why the circumstances of the offence were such that the offence should be disregarded (s 26A(1)(c)(i)); or of any exceptional circumstances applying to herself so that she did not appear to pose an unacceptable risk to children (see s 26A(1)(c)(ii) of the Act).
4. Ms Wombat did not respond to this notice, and she told the Tribunal she did not recall receiving it, as she was frequently moving between Ceduna (where the letter was addressed) and Adelaide, caring for her ill mother in Ceduna and her young daughter in Adelaide.
5. In the absence of any submissions from Ms Wombat the Department made the decision and issued a notice on 5 November 2019 prohibiting Ms Wombat from working with children.

1. The Tribunal notes that this application was not made within the prescribed time. Ms Wombat lodged her application on 25 November 2019, having received the notice of the Prohibition Notice Decision on 5 November 2019. The application is required to be lodged within 14 days of the notice. Ms Beauchamp for the Department did not oppose any extension of time by asserting the Department would be subject to any unreasonable disadvantage if an extension of time were granted, and made no other submissions concerning this issue.
2. Section 39 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act) requires that an application for a review of a decision of the Department pursuant to the Act must be made within 14 days after an applicant receives notice of the decision. Section 43(3) of the Act empowers the Tribunal to extend the time in which to make an application for review if it is satisfied that "special circumstances" exist, and that "another party will not be unreasonably disadvantaged because of the delay in commencing proceedings".
3. I am satisfied that special circumstances to support granting an extension of time exist in this matter. I note that Ms Wombat asserted she had not received the original notice of 25 September 2019, as she was frequently moving between Ceduna and Adelaide at that time, and I understand this was still the case in November 2019 when the Prohibition Notice Decision was made. The Notice was not expected by Ms Wombat as she was unaware the decision was being made, and her circumstances at that time were not such as to facilitate an application for review, and it is not clear when she received the letter containing the Prohibition Notice Decision. I note the Department is not asserting any unreasonable disadvantage, and that the delay was at most six days. Nor was Ms Wombat continuing to work with children in this period.
4. I am satisfied it is appropriate to extend the time within which Ms Wombat may apply to the Tribunal for this review.

1. Ms Wombat told the Tribunal that she had been convicted of robbery with violence in 1994 when she was aged 15. She said that at that time she had been in very difficult circumstances. She was an Aboriginal girl living in a remote regional area. Her father had just died and she was going through grief. She said she had no family to support her, as her mother was an alcoholic and provided no support. Her mother had been a stolen child, and she was therefore separated from her wider family. She said that before her father had died she had been doing well at school and in sporting activities, but after he died she had found life very difficult and had got involved with drugs and alcohol and had been subject to sexual abuse. The offending had occurred in these circumstances.
2. Ms Wombat said that following her conviction she had received some support and counselling and she said this had been very beneficial for her. The counsellor had discussed grief and anger management with her and she had found this useful. She has also had other counselling since this time. She had returned to Port Lincoln when she was 18 and had reconciled with the victim of the robbery, and had started working.
3. Ms Wombat said she has had a variety of jobs, including with Centrelink; as a youth worker; reception work; at McDonalds; and had also worked within her family providing both child and elder care. She had undertaken a traineeship for 4-5 months, and had worked in Ceduna for Life without Barriers.
4. Ms Wombat told the Tribunal that in recent years she had spent some time travelling between Ceduna and Adelaide, caring for her ill mother in Ceduna. She has a daughter aged 7 who attends school in Adelaide. She said she had been coaching netball in Ceduna in 2019 which had led to her application for a clearance under the Act.
5. Ms Wombat now lives in Adelaide. She is not presently working and has no formal qualifications. However, her daughter's school has asked her to volunteer at the school to discuss indigenous issues with the students and she is keen to do this.
6. Ms Wombat said she had not had any other serious offences or trouble with police, other than some minor driving matters. She said that all she wanted was to be a good role model for her daughter, and she saw doing the volunteer work at the school as part of this, and she also hoped she would be able to get a job. She said she did not want her daughter to grow up in the same environment and circumstances as she had and she was taking care to have support around her and her daughter including from members of her family, especially those who are employed. She said she did not use drugs, and had last used alcohol seven years ago, and she did not permit alcohol to be used in their home.
7. Ms Wombat is now 41 years of age. She is presently undertaking a TAFE Certificate 3 in Community Service, and she wants to complete this and look for a job. She said her daughter's school is supportive, and her daughter is involved in school sports, and she is keen to be involved and supportive of her daughter in those activities.

1. Ms Beauchamp for the Department submitted that Ms Wombat had not displaced the statutory presumption set out in s 26A of the Act, and under these circumstances she submitted that the issuing of the prohibition notice should be regarded as the correct and preferable decision.
2. She submitted that once a presumptive disqualifying offence was identified, as in this matter, pursuant to s 26A of the Act the applicant bears the evidentiary burden of demonstrating that she came within either of the circumstances identified by s 26A of the Act, namely that either the circumstances of the offence were such that the offence should be disregarded; or that such exceptional circumstances exist in relation to the person that it does not appear that the person poses an unacceptable risk to children. She submitted that Ms Wombat had not discharged this burden in relation to either aspect of s 26A of the Act.
3. Ms Beauchamp submitted further that if the Tribunal concluded that Ms Wombat had rebutted the presumption, then it ought to send the matter back to the Department for reconsideration as she indicated there were other matters which the Department could consider if it were not relying on the presumptive disqualification offence under s 26A. In particular Ms Beauchamp referred to a number of other convictions relating to Ms Wombat, and submitted these are likely to require consideration by the Department in determining whether, under the Act, she posed an unacceptable risk to children within the meaning of the Act.
4. With respect to the 1994 conviction, Ms Beauchamp submitted the offence was one involving violence. Ms Wombat had been aged 15 and the victim aged 13. The offence was contrary to s 158 of the Criminal Law Consolidation Act 1935, and this is a presumptive disqualification offence for the purposes of s 26A of the Act. Ms Beauchamp submitted that although Ms Wombat had received some counselling, there was no evidence that Ms Wombat had undergone any treatment for anger management, and she submitted that under these circumstances Ms Wombat had not established either that the circumstances of the offence should be disregarded, or that there were any exceptional circumstances applying to her such that she does not appear to pose an unacceptable risk to children.

1. In reviewing the decision by the Department to issue a prohibition notice against Ms Wombat prohibiting her from working with children, the Tribunal must examine the Department's decision by way of a rehearing, and consider what is the correct or preferable decision, giving appropriate weight to the decision of the original decision maker (see s 34(3) and (4) of the SACAT Act).
2. Having considered the material before it and in particular Ms Wombat's account of the circumstances of the offence in 1994 and her subsequent circumstances, the Tribunal has concluded that the circumstances of that offence were such that the offence should be disregarded in determining whether Ms Wombat poses an unacceptable risk to children.
3. Section 26A of the Act provides as follows:

(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...

(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 working with children check made by the person;

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

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

(ii) Such exceptional circumstances exist in relation to the person that the person does not appear, or no longer appears, to pose an unacceptable risk to children.

1. The Tribunal is satisfied that the offence for which Ms Wombat was found guilty in August 1994 constitutes a presumptive disqualification offence.
2. Under these circumstances it is clear that the central assessment unit must make a decision prohibiting Ms Wombat from working with children, without taking any other information into account, unless Ms Wombat, as the applicant for the working with children clearance, is able to bring herself within one or other of the qualificatory circumstances set out in s 26A(1)(c) of the Act. Because Ms Wombat did not respond to the letter of 25 September 2019 the Department did not have any relevant information before it and so was required to make its decision on the basis of the existence of the presumptive disqualification offence only, and did so.
3. The presumptive disqualification offence for which Ms Wombat was convicted occurred in 1994, more than 25 years ago. At the time Ms Wombat was a child of 15, newly bereaved by her father's death and without the support of her mother or wider family. She was using alcohol and other drugs.
4. I accept that, since that conviction, Ms Wombat has reconciled with the victim of that offence; has undertaken and maintained over a considerable period of time a variety of jobs; has commenced TAFE studies; and has moved to Adelaide where she supports her 7 year old daughter, and has been regularly returning to Ceduna to support her ill mother. She rarely uses alcohol and no longer uses drugs. She and her daughter are both supported by her daughter's school. Ms Wombat is a 41 year old aboriginal woman who lives with her seven year old daughter.
5. Taking these circumstances into account, it is my view that the circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether Ms Wombat poses an unacceptable risk to children. More than 25 years have elapsed since that offence. Ms Wombat is now a mature woman caring for a 7 year old daughter: at the hearing both Ms Wombat and her daughter presented as confident and self-possessed, and Ms Wombat made it clear she was aware of the challenges which might face her daughter and keen to assist in supporting her and addressing these challenges, including by being able to work with children at her daughter's school. Ms Wombat made it clear she had a good understanding of the circumstances which had contributed to her involvement in the commission of the offence, and I accept that these have significantly changed both in terms of Ms Wombat's lifestyle and circumstances, and her awareness of them.
6. On the basis of my considerations above, taking into account the new information before me which was not available to the Department, I am satisfied that the Department's decision to issue the Prohibition Notice Decision was not correct, as I have found that Ms Wombat has displaced the statutory presumption of s 26A relating to the presumptive disqualification offence, and the circumstances of the presumptive disqualification offence are such that the offence should be disregarded in determining whether she poses an unacceptable risk to children.
7. The Department's decision to issue the Prohibition Notice should therefore be set aside.
8. Ms Beauchamp indicated at the hearing of this matter that Ms Wombat has some other convictions from the intervening years. These convictions or charges were not taken into account by the Department in making the decision under review, presumably because they do not constitute presumptive disqualification offences. She submitted that this information might constitute "assessable information" which the Department would generally take into account pursuant to s 26 of the Act, in determining if an applicant posed an unacceptable risk to children. That information had not been considered in relation to Ms Wombat's application because the Department had acted pursuant to s 26A(1)(b) of the Act, which directed that in the circumstances of a presumptive disqualification offence it need not consider or assess any further information. Ms Beauchamp submitted that if the Tribunal was satisfied that Ms Wombat had discharged her onus of proof to bring her circumstances within either part of s 26A(1)(c), it should remit the matter to the Department so it could consider any other relevant assessable information.
9. I accept this submission. I am satisfied there may be other material which the Department should consider and assess in determining if Ms Wombat should have a clearance to work with children, and it has not yet done so.
10. Accordingly, it is the Tribunal's view that the correct and preferable decision in this matter is that Ms Wombat's presumptive disqualification offence should be disregarded for the purpose of the conduct of a working with children check, and that the Department should complete the working with children check in relation to Ms Wombat's application for a clearance, pursuant to s 26 of the Act.
11. Pursuant to s 37((1)(c)(ii) of the SACAT Act, I will direct that the decision under review be set aside, and will send the matter back to the Department for reconsideration.

1. The Tribunal sets aside the decision under review and refers the decision back to Department of Human Services - Central Assessment Unit for reconsideration.