GM v Department of Human Services - [2025] SASCA 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
GM v DEPARTMENT OF HUMAN SERVICES
[2025] SASCA 68
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Bleby)
18 June 2025
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - PURPOSIVE APPROACH
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED
Appeal against decision of a single judge of this Court dismissing an application for permission to appeal under s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). Questions of law reserved on Originating Application for judicial review.
On 6 February 2010, the Australian Federal Police executed a search warrant in respect of the appellant’s home. The appellant was subsequently charged with Commonwealth and State offences relating to the access and possession of child pornography. However, on 8 October 2021, all charges were withdrawn. On 16 July 2019, the appellant, who was previously a foster carer, applied for a working with children check (‘WWCC’). On 16 July 2019, the Central Assessment Unit (‘CAU’), having conducted a WWCC, determined to issue the appellant a prohibition notice under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (‘CSPP Act’), preventing him from working with children. A member of the South Australian Civil and Administrative Tribunal (‘SACAT’) upheld this decision. A single judge of this court dismissed the appellant’s application for permission to appeal against the decision of the Tribunal. The appellant applied for leave to appeal to the Court of Appeal.
After the filing of a notice of appeal, the appellant was issued with a second Prohibition Notice. In response, the appellant filed an Originating Application for Review of the second Prohibition Notice. A judge of this court reserved questions of law for this court to determine in respect of the Originating Application for Review.
The issues arising on the Notice of Appeal and the questions of law reserved overlap to a degree. They include:
1. whether ‘unacceptable risk’ is an objective legal standard (Appeal Ground 6, Question 1);
2.whether the determination of unacceptable risk is to be made on the balance of probabilities (Appeal Ground 7, Question 3);
3.whether the ‘unacceptable risk’ test in s 26(1) of the Act is a discretionary test (Appeal Ground 1, Question 2);
4.in circumstances where the appellant was already the subject of a prohibition notice under s 32(1) of the CSPP Act:
a. was the CAU authorised pursuant to s 30 of the CSPP Act to conduct a further working with children check (‘WWCC’) in relation to the appellant (Question 4a);
b. upon determining that the appellant posed an unacceptable risk to children, did the CAU validly issue the appellant with a further prohibition notice? (Question 4b);
5.whether the CAU’s determination and issue of the second Prohibition Notice was in excess of jurisdiction or contrary to law (Question 5);
6.whether the primary judge erred in concluding that the Tribunal had not failed to accord the appellant procedural fairness (Appeal Ground 4);
7.whether the primary judge erred in declining to admit into evidence on the appeal the affidavits of the appellant and his wife (Appeal Ground 5);
8.whether the CAU failed to determine the correct or preferrable decision in regard to the First Prohibition Notice (Appeal Grounds 2 and 8); and
9.in the alternative, if the decision of the Tribunal was discretionary, whether the primary judge erred in holding the Tribunal’s discretion had not miscarried (Appeal Ground 3).

Held (by the Court), answering the questions of law reserved but reserving the question of leave to appeal:
1. Question 1 is answered ‘Yes’.
2.Determination of ‘unacceptable risk’ under s 26(1) of the CSPP Act requires the CAU to be persuaded that the appellant poses an unacceptable risk to children; it is not a state of persuasion or satisfaction that is required to be reached on an evidentiary standard of proof.
3.For the purpose of undertaking a WWCC pursuant to s 26 of the CSPP Act, the determination whether or not a person poses an ‘unacceptable risk’ to children is a non-discretionary decision.

4. Question 4(a) is answered ‘Yes’.
5. Question 4(b) is answered ‘Yes’.
6. Question 5 is answered ‘No’.
7.The primary judge erred in concluding that the Tribunal had not failed to accord the appellant procedural fairness.
8.The primary judge erred in declining to admit into evidence on the appeal of the affidavits of the appellant and his wife.

On 1 May 2024, following the hearing of the appeal and the questions of law reserved, the respondent indicated that, on 15 April 2025, the CAU became aware that the appellant had become subject to a presumptive disqualification offence within the meaning of s 26A of the CSPP Act by reason of being charged with a prescribed offence. The charge remains unproved. The Court has no further information relating to the charge.
In these circumstances, the Court has not determined the question of leave to appeal and has not considered the merits of Ground 8 of the appeal. The Court will hear further submissions on the question of leave to appeal in light of its conclusions on the issues raised on appeal and the issue the respondent raised subsequent to the hearing.
Child Safety (Prohibited Persons) Act 2016 (SA) ss 3, 4, 8, 11, 20, 26, 27, 30, 32, 33, 43; South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, 71; Criminal Code Act 1995 (Cth) s 474.19; Criminal Law Consolidation Act 1935 (SA) s 63A; Children’s Protection Regulations 2010 (SA) regs 8, 18; Children and Young People (Safety) Act 2017 (SA); Child Protection (Working with Children) Act 2012 (NSW) s 28; Children Act 1989 (UK) s 31; Firearms Act 2015 (SA) s 20; Working with Children (Criminal Record Checking) Act 2004 (WA) ss 3, 12; Legislation Interpretation Act 2021 (SA) ss 10, 37, referred to.
GJC v Department of Human Services [2020] SACAT 38; Schinckel v Registrar of Firearms [2020] SASC 236; Kondis v State Transport Authority (1984) 154 CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Glenmont Investment Pty Ltd v O’Loughlin (2001) 79 SASR 288; M v M (1988) 166 CLR 69; House v The King (1936) 55 CLR 499; VBB v Department of Human Services – Central Assessment Unit [2023] SACAT 96; BKE v Office of Children’s Guardian [2015] NSWSC 523; Tilley v Children’s Guardian [2017] NSWCA 174; CXZ v Children’s Guardian [2020] NSWCA 338; Healthcare at Home Ltd v The Commons Services Agency [2014] UKSC 49; Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696; Barrington v Austin [1939] SASR 130; Rifai v Woods [2024] NSWSC 374; Briginshaw v Briginshaw (1938) 60 CLR 336; Isles v Nelissen (2022) 367 FLR 338; Nguyen v Nguyen (1990) 169 CLR 245; Potter and Potter (2007) FLC 93-326; Johnson and Page (2007) FLC 93-344; Blann v Kenny (2021) 64 Fam LR 120; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) 36 WAR 39; Berry v CCL Secure Pty Ltd (2020) 271 CLR 151; Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563; Isles v Nelissen [2022] HCASL 193; Lendlease Corporation Limited v Pallas and Pallas [2025] HCA 19; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Mahon v Air New Zealand [1984] AC 808; Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555; Argyle v State Administrative Tribunal [2022] WASC 317; R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482; Warren v Coombes (1979) 142 CLR 531; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Henderson v South Australian Housing Trust [2024] SASCA 55; Aldridge v The Registrar of Firearms [2022] SASC 5; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Maroulis v Psychology Board of Australia [2021] SASC 16; Shah (A pseudonym) v Medical Board of Australia [2022] SASC 140; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509; Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146; DJM v Department of Human Services – Central Assessment Unit [2023] SACAT 3; Pearce v The Queen (1998) 194 CLR 610; Bropho v Western Australia (1990) 171 CLR 1; Al-Kateb v Godwin (2004) 219 CLR 562; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Potter v Minahan (1908) 7 CLR 277; Green v United States (1957) 355 US 184; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; KMD v CEO (Department of Health NT) (2025) 99 ALJR 474; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, considered.

GM v DEPARTMENT OF HUMAN SERVICES
[2025] SASCA 68
Court of Appeal – Civil: Livesey P, Doyle and Bleby JJA

THE COURT: The issues for determination in this matter arise from two proceedings, being an application for permission to appeal from a decision on appeal of a single judge of this Court and questions of law reserved on a separate Originating Application for judicial review.
The proceedings arose in the following way. A member of the South Australian Civil and Administrative Tribunal (‘the Tribunal’) affirmed a decision by the central assessment unit (‘CAU’) to issue a Prohibition Notice to the appellant under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (‘CSPP Act’). The Prohibition Notice prevented the appellant from undertaking a broad range of activities that the Act regards as working with children.
A single judge on appeal dismissed the appellant’s application for permission to appeal against the decision of the Tribunal.
The appellant applied for leave to appeal to the Court of Appeal and filed a Notice of Appeal in this Court.
The respondent then issued a second Prohibition Notice. The appellant filed an Originating Application for Review of the decision to issue that second Prohibition Notice. A judge of this Court reserved questions of law for this Court to determine in respect of the Originating Application for Review.
The issues raised on the Notice of Appeal in respect of the first Prohibition Notice and by the questions of law reserved in respect of the second Prohibition Notice are, broadly, and in the order in which we propose to address them:
·whether ‘unacceptable risk’ is an objective legal standard (Appeal Ground 6, Question 1);
·whether the determination of unacceptable risk is to be made on the balance of probabilities (Appeal Ground 7, Question 3);
·whether the ‘unacceptable risk’ test in s 26(1) of the Act is a discretionary test (Appeal Ground 1, Question 2);
·in circumstances where the appellant was already the subject of a prohibition notice under s 32(1) of the CSPP Act:
a.Was the CAU authorised pursuant to s 30 of the CSPP Act to conduct a further working with children check (‘WWCC’) in relation to the appellant (Question 4a)?
b.Upon determining that the appellant posed an unacceptable risk to children, did the CAU validly issue the appellant with a further prohibition notice? (Question 4b);
·whether the CAU’s determination and issue of the second Prohibition Notice was in excess of jurisdiction or contrary to law (Question 5).
·whether the primary judge erred in concluding that the Tribunal had not failed to accord the appellant procedural fairness (Appeal Ground 4);
·whether the primary judge erred in declining to admit into evidence on the appeal the affidavits of the appellant and his wife (Appeal Ground 5);
·whether the CAU failed to determine the correct or preferrable decision in regard to the First Prohibition Notice (Appeal Grounds 2 and 8);
·in the alternative, if the decision of the Tribunal was discretionary, whether the primary judge erred in holding the Tribunal’s discretion had not miscarried (Appeal Ground 3);
These reasons are set out as follows:
Background
The First Prohibition Order
The application to the Tribunal for review
Appeal to a single judge of this Court
The appeal to the Court of Appeal
Interlocutory Application
Second Prohibition Notice
Judicial Review and questions of law Reserved
Approach to the issues
The legislative scheme
Did the CAU correctly and properly identify and apply the test for ‘unacceptable risk’? (Question 1; Appeal Ground 6)
Whether the determination of unacceptable risk is to be made on the balance of probabilities (Question 3; Appeal Ground 7)
For the purpose of undertaking a WWCC pursuant to s 26 of the CSPP Act, is the determination whether or not a person poses an ‘unacceptable risk’ to children a discretionary or a non-discretionary decision? (Question 2; Appeal Ground 1)
In circumstances where the appellant was already the subject of a prohibition notice under s 32(1) of the CSPP Act (Question 4):
Was the CAU authorised pursuant to s 30 of the CSPP Act to conduct a further WWCC in relation to the appellant? (Question 4a)
Upon determining that the appellant posed an unacceptable risk to children, did the CAU validly issue the appellant with a further prohibition notice? (Question 4b)
Whether the CAU’s determination and issue of the second Prohibition Notice was in excess of jurisdiction or contrary to law (Question 5)
The remaining appeal grounds and the question of leave to appeal
Appeal Grounds 4 and 5: denial of natural justice
Conclusion on the questions of law reserved
Preliminary conclusion on the appeal
Background
The appellant is currently 55 years old. He is married with two children.
On 6 February 2010, the Australian Federal Police (‘AFP’) executed a search warrant over the appellant’s family home. At the time, the appellant was on holiday with his family. A neighbour notified the appellant of the AFP’s attendance at his home. The appellant and his wife returned home that day.
The catalyst for the search was the arrest of a man who was in possession of a photograph of one of the appellant’s children. The child was depicted in the photograph partially naked. The arrested man told the AFP he had had discussions with the appellant about using their children to make child exploitation material.
During the execution of the warrant, the AFP interviewed the appellant and searched his computers, hard drives and mobile phone. They discovered photographs and videos of naked and partially naked children on the appellant’s devices. They charged the appellant with using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) and possession of child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).
The Commonwealth charge concerned the downloading of a file containing 713 photographs and one video of both adults and children in a nudist setting, using a file sharing ‘torrent’ program called eMule. The photographs depicted naked adults and children. The children in the photos included prepubescent and pubescent males and females. The children in the video were shown engaging with adults in 10-pin bowling while naked. The breasts and sexual organs of the children were depicted in the video and photographs but were not a dominant characteristic of the material. There was not overtly sexual or sexualised posing.
The State charge related to the appellant’s possession of videos and photographs taken by him, his wife and other family members. The photographs were of his children and other children, naked or partially naked. The appellant had uploaded these photographs, along with about 30,000 other family photographs, to Flickr, a photograph storage and sharing website. On 8 February 2010, as a result of laying of the charges a child protection notification was lodged in relation to two children in the care of the appellant and his wife.
Following forensic examination of the appellant’s devices, on 6 October 2010, the Commonwealth Director of Public Prosecutions observed that there was no evidence of internet searches for child pornography and concluded:
The offending is constituted by a single download on a peer-2-peer program and a quantity of photos and videos taken by the defendant and/or his wife that are of questionable taste and decorum. The latter material is compounded by the fact they were uploaded to the internet allegedly for storage purposes. Whilst prurient purposes may exist for the retention of the photos and videos and for the isolated download of material, there are insufficient circumstances … to prove such prurient objectives.
On 8 October 2010, the Commonwealth and State charges were withdrawn. The seized material, except for the nudism video and related photographs, was returned to the appellant.
The appellant and his wife were foster carers for children between 1996 and 2010. On 8 February 2012, the Special Investigations Unit (subsequently known as the Care Concern Investigation Unit (‘CCIU’)) of the Department for Education and Child Development interviewed the appellant and his wife. On 4 October 2012, the CCIU made several findings adverse to the appellant. These included that:
·the appellant had uploaded to the internet photographs of two children under guardianship orders without authorisation and knowing that photographs of foster children are not to be made publicly available; and
·there was sufficient information that, on the balance of probabilities, the appellant had a level of interest in young males of a sexual nature, which was incompatible with Families SA standards for a foster carer.
The CCIU found a number of other concerns not to be substantiated.
Following the CCIU’s report, the appellant and his wife were deregistered as foster carers on 6 August 2013. An internal review upheld this decision on 14 November 2013.
On 9 June 2015, the screening unit of the Department for Communities and Social Inclusion assessed the appellant as not suitable to work or volunteer with children, pursuant to the Children’s Protection Regulations 2010 (SA) (‘Regulations’).
On 16 July 2019, the appellant, who sought to volunteer as a kinship carer and cub scout leader, applied for a WWCC under the CSPP Act.
The First Prohibition Order
On 10 July 2020, the CAU, having conducted a WWCC pursuant to s 26 of the CSPP Act in relation to the appellant, issued the appellant with a Prohibition Notice under s 32 of the CSPP Act.
Pursuant to s 43 of the CSPP Act, the decision to issue a prohibition notice was a ‘reviewable decision’ within the meaning of s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (‘SACAT Act’). The appellant applied to the Tribunal for a review of the prohibition notice. On 29 March 2021, the Tribunal made orders inviting the CAU to reconsider its decision pursuant to s 38 of the SACAT Act. On 5 August 2021, the Registrar of the CAU affirmed the original decision, with some variation, and provided reasons.

The Registrar’s reasons placed significant weight on the appellant’s possession and downloading of the eMule file, and on the appellant’s creation and possession on his personal mobile phone of about ten user logins and passwords for websites that contained multiple images of naked children. The Registrar was satisfied this conduct demonstrated that the appellant had accessed those sites at some time and were indicative that he would ‘continue to use those accounts to access locations which contained images of CEM and view those images again’.
The Registrar also noted that the eMule file was on the appellant’s computer with the letters ‘PTHC’ in the filename, which he noted was an acronym for ‘pre‑teen hard core’. He described this as a ‘commonly used search term to locate CEM’ such that the file title ‘in itself carries an enormous warning’ about its content.
The Registrar attached no adverse weight to various other potentially adverse matters, including:
·an alleged admission by the appellant while under AFP caution regarding his ‘Second Life’ avatar being a ‘pre-pubescent young male who prostitutes himself’;
·an unproven association between the appellant and the person arrested by the AFP;
·an alleged disclosure made by the appellant to the AFP regarding a deleted photograph of a foster child’s erect penis, initially sent by the child to the appellant;
·the appellant’s failure to inform Scouts SA about the CCIU investigation of him; and
·two child protection notifications made against the appellant in 2019 and 2020 that were closed without investigation.
The Registrar placed ‘little weight’ on the investigator’s conclusions regarding the appellant’s sexual interest in males, referred to above, and a ‘low level of weight’ on the appellant’s breach of Department policy in uploading images of children under guardianship orders onto the internet without authorisation. He gave very little weight to concerns that the appellant may have been identifying specific young males from the ‘Breakaway Program’ who had a history of being sexually abused, having regard to issues with the accuracy and veracity of the disclosures giving rise to those concerns.
The Registrar considered other factors which weighed in the appellant’s favour:
·in 2010, during interviews conducted by SAPOL, the appellant’s two children, and two other children in the appellant’s care, did not make any disclosure that would result in an adverse comment being concluded about the appellant;
·the appellant’s lack of a criminal history;
·the alleged offending the subject of the search warrant was 10 years old at the time of the review and appeared to be an isolated incident;
·the appellant had been a foster carer to over 80 children;
·other than the complaints mentioned above, no other recorded and investigated complaints had been made against the appellant; and
·six character references reflected the appellant’s positive engagement with children.
The primary judge characterised the Registrar’s conclusion as follows:[1]
Ultimately Mr Lovegrove concluded that the appellant posed an unacceptable risk to children. This conclusion was based on the downloading of the eMule file and the list of passwords/logins on his personal mobile telephone which Mr Lovegrove concluded demonstrated that the appellant had accessed locations which contained CEM images and was indicative of a risk that he would do so again. Mr Lovegrove noted the factors favourable to the appellant but nonetheless affirmed the decision saying:
“I am reasonably satisfied, based on a holistic view of all the assessable information, that the appellant poses an unacceptable risk to children and should that risk eventuate the consequences of harm to children would be serious.”
[1] [2024] SASC 23 at [22].
The application to the Tribunal for review
The appellant applied for a review of this reconsidered decision pursuant to s 34(1) of the SACAT Act. Section 34 provides:
34—Decisions within review jurisdiction
(1)If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal’s review jurisdiction.
(2)For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is—
(a)     a decision made by the Crown or an agency or instrumentality of the Crown; or
(b)     a decision made by a prescribed person or body; or
(c)     a prescribed decision or class of decision,
but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations.
(2a)For the purposes of this Act—
(a)     unless paragraph (b) applies—the decision‑maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision;
(b)     the rules may provide—
(i)that the decision‑maker for a reviewable decision will, instead of being the person or body under paragraph (a), be a person or body that is assigned by the rules as being a suitable entity to act as the decision‑maker for the purposes of this Act (or specified provisions of this Act); or
(ii)that a reference to the decision‑maker for a reviewable decision in this Act (or specified provisions of this Act) will be taken to include a reference to a person or body that is designated by the rules as being a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act),
and rules made under this paragraph will then have effect in accordance with their terms.
(3)Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision‑maker by way of rehearing.
(4)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.
(5)A procedure on a rehearing will include—
(a)     an examination of the evidence or material before the decision‑maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and
(b)     a 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.
(6)In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act.
(7)Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal’s review jurisdiction.
The role of the Senior Member was to reach the correct and preferrable decision having regard to, and giving appropriate weight to, the Registrar’s decision. The Tribunal proceedings took place over four days. The parties tendered 11 exhibits. The Tribunal heard oral evidence from the appellant, his wife and the Registrar. The Tribunal delivered its Statement of Reasons for determining that the appellant posed an unacceptable risk to children in February 2023.
Many of the relevant facts were not in dispute. The appellant conceded that he had downloaded the eMule file and possessed the usernames and logins and naked images of his child. He did not concede that he had passwords, although the Senior Member did not consider that it was necessary to resolve this issue. The proceedings before the Tribunal were focused on the conclusions that could be drawn from the undisputed facts, and in particular, whether the Tribunal should draw inferences that the appellant had an interest in images of naked children.
The Senior Member identified three main factors which led her to determine that the appellant posed an unacceptable risk to children:
·the downloading by [the appellant] of the photographs and video in the file obtained via the eMule program (eMule file);
·the possession by [the appellant] of certain usernames or user logons of IMGSRC accounts (IMGSRC usernames/user logons); and
·the possession by [the appellant] of images of one of his children when naked (images of [the appellant’s] child).
The appellant submitted that the circumstances which led to him downloading the eMule file included a ‘fleeting’ interest he had developed in nudism or naturism. This interest had originated while during a family holiday to Cairns in April 2009, when he and his family accidentally came across a nudist beach.
In regard to the title of the eMule folder, the Senior Member was not satisfied that the appellant did know or should have known that ‘pthc’ stands for ‘pre-teen hard core’ or that ‘ptsc’ stands for ‘pre-teen sexual content’. However, given the inclusion of the words ‘Young Nudists, Family Nudism’ in the file name, the Senior Member was satisfied the appellant reasonably expected the file would contain images of naked children. The Senior Member did not accept the appellant’s evidence that he had not viewed the file at any time, noting that this contradicted what he had said to the AFP.
The Senior Member characterised the appellant’s essential explanation for the construction of the SplashID list of usernames and logons as being for ‘purely benign purposes and that it [was] coincidental that it led to photographs of naked children’. The appellant asserted that the usernames in the SplashID list were those of third parties who had been accused of misappropriating Flickr content, including by copying them to Russian photo sharing site IMGSRC. He gave evidence that he compiled the list to monitor those accounts given concern about the theft of his own photos.
The appellant denied he had made a list of passwords. He gave evidence that he was able to access individual IMGSRC accounts without a password as they were generally publicly available.
The Senior Member referred to the appellant’s interview with the AFP as providing support for the respondent’s contention that the IMGSRC list user accounts contained images of naked children. She identified that during the CCIU interview, the appellant appeared to agree that the images of naked children the AFP officers had shown him were brought up based on the usernames he had stored. She indicated that ‘it [was] clear the IMGSRC accounts contained at least some images of naked children and that [the appellant] agreed that they did’.
The Senior Member disagreed with the Registrar’s conclusion in relation to the photographs of the appellant’s children. She considered that the materials did not need to reach a standard under criminal law to be relevant for the purposes of a WWCC. In particular, the Senior Member highlighted:
Critically, the exhibit to [the appellant’s] affidavit of 3 November 2022 also contains about 11 photographs of the younger of the [appellant’s] children that are explicit and disturbing, and readily capable of a sexualised connotation. These are the photographs at pages 2 to 5 inclusive and 24 to 27 inclusive of the exhibit. The photographs depict a toddler lying on her back with knees bent and legs to either side or raised in the air. It would be fair to describe the child being depicted in the “missionary position” associated with sexual intercourse. The focus of the photographs is of the child from the navel down. Some of the photographs show the child’s genital area in strong closeup.
The appellant’s wife gave evidence that these photographs were taken to keep a record across different days of a chicken pox infection that did not seem to be resolving. The Senior Member indicated that the photographs did show the child to have rashes on various parts of her body.
The Senior Member expressed further concern regarding the appellant’s ability to ‘easily remember’ being in possession of naked photographs of his children:
I have noted earlier that [the appellant] had an awareness at the commencement of the AFP interview that he possessed photographs of naked children, including those of his child with chicken pox. The interview occurred some six years after the apparent taking of the photographs. It concerns me that [the appellant] could easily remember being in possession of particularly graphic photographs of his child taken some six years earlier. This is not consistent with his comment to the AFP that he may have “overlooked” these photographs.
I have also noted that, when I raised the issue of the “family photographs” with the parties on the second day of the hearing, [the appellant] was of the view that he could readily produce the material, even within a few hours. The hearing was some 18 years after the taking of the photographs.
These matters are of concern to me because they suggest that the reason for [the appellant’s] easy recollection of the photographs is because he has viewed them from time to time since they were taken in 2004 and that he has a prurient reason for retaining them since that time. It is my view that a person of ordinary, reasonable sensibilities would not have needed to have regard to or to have retained these photographs of his child for any longer than was strictly necessary for the medical purposes for which they were taken. The evidence is not consistent with a contention that [the appellant] simply forgot that he had these photographs.
In concluding, the Senior Member indicated that she was able, on the evidence, to be satisfied of the following matters:
·[the appellant] searched for and downloaded a file from eMule that he could reasonably expect would contain images of naked children;
·[the appellant] created a list of user names or logons of IMGSRC accounts at least some of which contained photographs of naked children; and
·[the appellant] has in his possession numerous confronting and highly sexualised photographs of one of his children taken when the child was aged about 18 months.
The Senior Member continued:
I have not positively found on the evidence that [the appellant] viewed the eMule file or the Image Source photographs or that he intended to, or was likely to, view them. I have not positively found that he used the photographs of his naked child for prurient purposes. However, neither am I able to find that he did not. As discussed in these reasons, the evidence is suggestive of [the appellant] having viewed this material, including [the appellant’s] own evidence.
I have taken into consideration that these findings of fact may separately be capable of a plausible and innocent explanation. I have taken into account that one or more of these instances may simply be an example of poor judgement on [the appellant’s] part (which is itself concerning). However, when considered cumulatively (as they must be), these facts have given rise to a reasonable satisfaction in my mind that [the appellant] has an interest in images of naked children and presents an unacceptable risk to children.
(Footnote omitted)
The Senior Member placed adverse weight on the retention by the appellant of the images of his naked child as indicating that he has a ‘present and continuing interest in images of naked children and that the unacceptable risk to children is present and continuing’. She also took into account the fact that the appellant displayed little or no appreciation of the inappropriateness of his conduct, including his ‘continued possession of the photographs of his child that would, at the very least, be concerning to a reasonable mind’.
The Senior Member indicated that the Tribunal’s decision in GJC v Department of Human Services[2] did not require her to find positively on the civil or criminal standards of proof that the appellant posed an unacceptable risk to children because he has acted or will act on an interest in images of naked children. She indicated that it was sufficient to find, on the statutory standard of reasonable satisfaction, ‘that he presently poses an unacceptable risk of harm to children as there is a possibility of future harm to children and that the potential consequences to children would be serious and unacceptable if the perceived risk eventuated’. In this regard, she adopted a ‘risk assessment principle’ articulated in Schinckel v Registrar of Firearms.[3] She characterised this as being that the concept of risk directs attention not only to the likelihood of an occurrence, but also the gravity of the occurrence should it eventuate.
[2] [2020] SACAT 38.
[3] [2020] SASC 236 at [30].
The Senior Member was ultimately satisfied that the eMule file, the IMGSRC list and the possession by the appellant of photos of his naked children substantiated the view that the appellant poses an unacceptable risk to children. She concluded:
In this sense, I am not satisfied that [the appellant] presents an acceptable risk to children. It cannot be said that the risk that [the appellant] presents to children is “fanciful, farfetched or theoretical” or that “the potential consequences to children are mild or insignificant”.
Taking all the above matters into consideration, I am reasonably satisfied that [the appellant] poses an unacceptable risk of harm to children and that the risk is present and ongoing. I am satisfied that, to ensure the adequate protection of children, the correct and preferable decision is to affirm the decision under review.
(Footnote omitted)
Appeal to a single judge of this Court
The appellant applied for leave to appeal to a single judge of this Court, raising 17 grounds of appeal. It is not necessary to rehearse the arguments and disposition of those grounds at this stage. On 16 February 2024, a judge of this Court granted leave to appeal but dismissed the appeal.
It follows that the Prohibition Notice issued on 10 July 2020 remained in force. Pursuant to s 32(3) of the Act, a prohibition notice remains in force until it is revoked in accordance with the Act. Section 33 provides for revocation of a prohibition notice. This first Prohibition Notice has not been revoked in accordance with the terms of s 33.
The appeal to the Court of Appeal
By Notice of Appeal filed on 8 March 2024 and amended on 3 April 2024, the appellant sought leave to appeal to the Court of Appeal. On 4 April 2024, a judge of this Court listed the appeal for hearing on 8 August 2024, referring the application for leave to appeal for hearing as on the appeal.
The grounds of appeal to this Court are as follows:
1.The learned primary judge erred in law in holding (J [67]) that the decision of the Tribunal is a discretionary decision, and therefore only reviewable for error on the grounds identified in House v The King (1936) 55 CLR 499. The learned primary judge ought to have held that the decision of the Tribunal is the determination of a statutory test (s 26(1), CSPPA) involving a matter of mixed fact and law, (including an evaluative judgment, and the appellant need only establish error in the manner described by the High Court in Warren v Coombes (1979) 142 CLR 531, 552 (J [52]).
2.Accordingly, the learned primary judge erred in law in that she failed to consider whether the Tribunal fell into error in determining that the decision of the primary decision-maker (the CAU) was the correct or preferable decision (see further Grounds 8 to 9 below).
3.Alternatively, if (contrary to Ground 1 above) the decision of the Tribunal is discretionary, the learned primary judge erred in holding that the Tribunal’s discretion has not miscarried.
…
4.The learned primary judge erred in law in concluding (J [92]-[95]) that the Tribunal had not failed to accord the appellant procedural fairness in making the findings at T [117], [126], [136]-[138] without putting him on notice that it would be material to her decision to know, and she intended to make ‘findings’ about, the purpose and intent of the retention of the naked baby photos (see, T [126]).
…
5.The learned primary judge erred in law in declining to admit into evidence on the appeal the affidavits of the appellant and his wife, both sworn 17 May 2023 ( J [71]-[76]; [93]-[95]).
…
6.The learned primary judge erred in law (J [80]-[91]) in accepting and applying a gloss on the statutory test for the making of a Prohibition Order (see, T [24]), thereby altering the statutory test adversely to the appellant.
7.The learned primary judge erred in law by accepting and applying the standard of proof as expressed in GJC v Department of Human Resources [2020] SACAT 38, at [105]-[107] where the Senior Member declined to follow and apply the Guidelines published pursuant to s 4, CSPPA (see J [85]-[88], [97]-[101]).
…
8.The learned primary judge erred in holding (J [109]-[110]) that it was open to the tribunal to conclude that the correct or preferable decision was that the appellant posed an unacceptable risk to children.
…
Interlocutory Application

On 26 July 2024, the respondent, who had not filed written submissions by the relevant due date, filed an urgent Interlocutory Application to vacate the appeal hearing date on the ground that ‘on 24 July 2024, the respondent became aware of the existence of new assessable information relating to the [appellant]’, and based on a preliminary assessment, ‘considers this information directly relevant to any consideration of whether the [appellant] poses an unacceptable risk to children, … and, therefore, whether he should or should not be a prohibited person for the purposes of s 26(5) of the CSPPA’. The respondent notified the appellant’s solicitors on the same day.
The appellant opposed the application to vacate the hearing date. At the hearing on 29 July 2024, the respondent indicated that ‘significant further material [had] come to light that is relevant to the question of whether the appellant pose[d] an unacceptable risk’. In light of that material, the respondent proposed to make a ‘fresh assessment’. Acting Chief Justice Livesey granted the application.[4]
[4] [2024] SASCA 93.
By letter dated 12 August 2024 and addressed to the CAU, the appellant’s solicitors requested that the appointed assessor indicate whether they disagreed that the fresh WWCC would be conducted in accordance with the legal requirements as set out in that letter. By letter dated 14 August 2024, the Deputy Registrar of the CAU replied to the appellant’s solicitors, indicating that the CAU decision-maker ‘will endeavour to make the decision in accordance with the requirements of [the Act] and [Regulations] and [the Guidelines] and associated case law concerning the conduct of [WWCCs]’.
By letter dated 13 August 2024 and addressed to the appellant, the Registrar provided a document entitled ‘WORKING WITH CHILDREN CHECK – invitation to make submission’ and watermarked ‘preliminary’. This document advised that the CAU had ‘formed a preliminary view that [the appellant] pose[s] an unacceptable risk to children’. The letter enclosed another document headed ‘PRELIMINARY PROHIBITION NOTICE – REASONS FOR DETERMINATION’ (‘the Preliminary Determination’). The Preliminary Determination concluded that ‘the CAU is inclined to prohibit [the appellant] from working with children’. The letter invited the appellant to provide submissions and any supporting information he might wish to have considered before his WWCC was finally determined. The appellant subsequently provided submissions in response to the Preliminary Determination by letter dated 30 August 2024.
Second Prohibition Notice
On 12 September 2024, the CAU notified the appellant of its determination that the appellant posed an unacceptable risk to children pursuant to s 26(1) of the Act and that he should be prohibited from working with children. The CAU also issued a second Prohibition Notice, dated 12 September 2024 (‘the second Prohibition Notice’).
Judicial Review and questions of law Reserved
By an Amended Originating Application, filed on 17 September 2024, the appellant sought judicial review of the CAU decision dated 12 September 2024, which included the determination to issue the second Prohibition Notice.
On 9 October 2024, a judge of this Court ordered that the following questions of law be reserved in relation to the Originating Application for hearing before the Court of Appeal on 30 October 2024, together with the application for leave to appeal:
1.In undertaking the [WWCC], pursuant to s 26(1) of the Child Safety (Prohibited Persons) Act 2016 (SA) (CSPP Act), did the Central Assessment Unit (CAU) correctly and properly identify and apply the test for “unacceptable risk”?
2.For the purpose of undertaking a WWCC pursuant to s 26 of the CSPP Act, is the determination whether or not a person poses an “unacceptable risk” to children a discretionary or a non-discretionary decision?
3.In undertaking a WWCC pursuant to s 26 of the CSPP Act, was the CAU required to be satisfied that the Applicant pose an unacceptable risk on the balance of probabilities, or to some other, and if so what, standard of proof?
4.In circumstances where the Applicant was already the subject of a prohibition notice issued under s 32(1) of the CSPP Act:
a. was the CAU authorised pursuant to s 30 of the CSPP Act to conduct a further WWCC in relation to the Applicant?
b. Upon determining that the Applicant posed an unacceptable risk to children, did the CAU validly issue the Applicant with a further prohibition notice?
5.Was the CAU decision, and the issue of the prohibition notice, on 12 September 2024 made in excess or want of jurisdiction, and in any event, contrary to law?
Approach to the issues
The issues raised by the proceedings are set out at the beginning of these reasons. That list indicates that the grounds of appeal and the questions of law reserved raise, to a certain extent, common issues. Practical considerations inform the appropriate approach to addressing the issues. Specifically, if the answers to the questions of law reserved determine that the second Prohibition Notice is valid, the second Prohibition Notice will remain in force notwithstanding the possible fate of the first Prohibition Notice on the appeal. For that reason, we commence with the questions of law reserved on the Originating Application for review of the second Prohibition Notice.
Where it is convenient to do so, however, we will also note the extent to which the analysis and conclusions on these questions affect the issues raised by the Notice of Appeal. First, however, it is convenient to make some observations about the scheme of the legislation and to emphasise some matters in relation to the determination of whether or not a person ‘poses an unacceptable risk to children’ for the purposes of s 26 of the CSPP Act.
The legislative scheme
Before coming to s 26 itself, it is useful to set out the objects of the CSPP Act, as identified in s 3:
3—Object and principles
(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;
(c)     a working with children check is not a determination of a person’s suitability to work with children and cannot be relied on as such, and in particular—
(i)a working with children check that does not result in a person being prohibited from working with children is not proof of good character; and
(ii)a working with children check that does not result in a person being prohibited from working with children is not proof that the person does not pose a risk to children;
(d)     a working with children check is an assessment of 1 person’s prior conduct, and the fact that working with children checks are conducted in relation to employees does not, of itself, satisfy an employer’s obligation to ensure that a workplace is safe for children;
(e)     organisations and employers must have in place comprehensive strategies to ensure child safe environments.
Section 26 provides as follows:
26—Nature of working with children check
(1)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.
(2)Nothing in subsection (1) requires the central assessment unit to assess all assessable information relating to a person (and the fact that the central assessment unit did not assess all assessable information relating to a person in the course of a working with children check does not, of itself, invalidate the working with children check, or a decision of the central assessment unit made in relation to the working with children check).
(3)In conducting a working with children check, the central assessment unit—
(a)     is not bound by the rules of evidence; and
(b)     may adopt, as in its discretion it considers appropriate, any findings, decision or judgment of a court or other tribunal; and
(c)     may otherwise inform itself as it thinks fit.
(4)A working with children check must be conducted in accordance with any other requirements set out in the regulations and the guidelines (however, a failure to comply with this subsection does not, of itself, invalidate a working with children check).
(5)On completing a working with children check in respect of a person, the central assessment unit must determine whether the person is, or is not, to be prohibited from working with children.
(6)To avoid doubt, a working with children check may be used in relation to any child‑related work despite being conducted in relation to a particular position, service or activity or employer.
(7)In this section—
prescribed risk assessment criteria means the risk assessment criteria set out in the guidelines.
Section 26 provides a framework for determining whether a person is, or is not, to be prohibited from working with children (s 26(5)). This commences with a process for examining a person’s suitability for working with children referred to as a working with children check (‘WWCC’) (s 26(1)). The central assessment unit (‘CAU’) is responsible for both undertaking the WWCC and then determining whether the person is to be prohibited from working with children.
The WWCC requires that the CAU undertake an assessment of ‘assessable information’ relating to the person and do so against the ‘prescribed risk assessment criteria’. The concept of assessable information is defined in s 8 of the CSPP Act. The classes of information encompassed within this concept are broad. They include information relating to criminal and disciplinary proceedings as well as information provided to the CAU for the purposes of the WWCC or through statutory notifications.[5] The prescribed risk assessment criteria are defined as meaning the prescribed risk criteria set out in the guidelines (s 26(7)).
[5] They also include information declared by regulations to be assessable information: as to which, see Child Safety (Prohibited Persons) Regulations 2019 (SA), reg 8.
The WWCC requires that the CAU ‘determine’ whether or not the person poses an unacceptable risk to children. The section as whole thus requires that the CAU make two determinations: first, whether the person poses an unacceptable risk to children (‘the unacceptable risk determination’); and secondly, upon completing the WWCC, whether the person is, or is not, to be prohibited from working with children (‘the prohibition determination’).
If the CAU determines that a person is to be prohibited from working with children, then it must issue the person with a prohibition notice. Section 32 of the CSPP Act provides:
32—Issue of prohibition notice
(1)If the central assessment unit determines under section 26(5) that a person is to be prohibited from engaging in child-related work, the central assessment unit must, in accordance with the regulations, issue a notice to the person prohibiting the person from engaging in child-related work (a prohibition notice).
(2)A prohibition notice—
(a)     must be in the form approved by the Minister; and
(b)     must contain a statement in a form approved by the Minister stating that the person to whom the notice relates is prohibited from engaging in child-related work; and
(c)     must set out the following information:
(i)the full name and date of birth of the person to whom the notice relates;
(ii)the unique identifier of the person to whom the notice relates;
(iii)the date of issue of the notice;
(iv)any other information required by the regulations for the purposes of this subsection.
(3)A prohibition notice remains in force until it is revoked in accordance with this Act.
Returning to s 26, the CAU is not required to have regard to all assessable information, and failure to have regard to all assessable information does not invalidate the WWCC or a decision made by the CAU in relation to the WWCC (s 26(2)). Further, in undertaking the WWCC, the CAU: (a) is not bound by the rules of evidence; (b) has a discretion to adopt findings or decisions of a court or tribunal; and (c) may inform itself as it sees fit (s 26(3)). The WWCC must be conducted in accordance with the requirements set out in the regulations and guidelines, albeit that a failure to comply with them does not, of itself, invalidate the WWCC (s 26(4)).
Against the background of this summary of the framework provided by s 26 of the CSPP Act, it is convenient to consider the nature of the CAU’s unacceptable risk determination for the purposes of s 26(1), in the context of the complaint that the CAU applied the wrong test.
Did the CAU correctly and properly identify and apply the test for ‘unacceptable risk’? (Question 1; Appeal Ground 6)
Question 1 arises in conjunction with Ground 6 of the Notice of Appeal. The CAU’s expression of the test in issuing the second Prohibition Notice referred to the approach of the Tribunal and the single judge on appeal that is the subject of the appeal to this Court. This approach reflected terminology coined earlier by the Tribunal, in GJC v Department of Human Services.[6] The appellant attacks the correctness of that decision and its subsequent adoption and endorsement throughout the history of this matter.
[6] [2020] SACAT 38.
The starting point is the Tribunal’s earlier exposition of the concept of ‘unacceptable risk’ in GJC v Department of Human Services.[7]
[7] [2020] SACAT 38 at [102]-[114].
Courts in Australia have accepted that the concept of ‘risk’ involves two elements: the degree or likelihood of the occurrence of an event and the possible consequences if it does.[8]
[8] Kondis v State Transport Authority (1984) 154 CLR 672; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; Glenmont Investment Pty Ltd v O’Loughlin (2001) 79 SASR 288; M v M (1988) 166 CLR 69; [1988] HCA 68.
The term ‘risk’ is further qualified in the CSPP Act. It requires an assessment of whether there is an ‘unacceptable risk’ to children. Parliament has seen fit to employ this phrase in the legislation as opposed to “a risk” or “any risk”; as such, in my view, this connotes a measuring or evaluative exercise as to the nature and extent of the risk. In my view ‘unacceptable risk’ must be interpreted in the context of the specific legislation and in consideration of the objects and purpose of the legislation, which is to minimise the risk to children from adults who may potentially pose a risk to their safety.
I accept the Respondent’s submission that the term ‘unacceptable risk’ as described in section 26(1) of the CSPP Act is that there is a risk that, if a person is allowed to work with children, this will not ensure the adequate protection of children.
Therefore, the task of the Central Assessment Unit (or, on review, of the Tribunal) must be to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour is so unacceptable that it is necessary in the interests of children to ensure that the person does not work with children.
I agree that the Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is risk that if it does it will cause harm to children and that this is unacceptable.
It follows that where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children, as unacceptable.
Behaviour or conduct of adults that may result in the risk of future serious harm to children would include assessable information demonstrating (or giving rise to the reasonable suspicion of) past sexual abuse, physical abuse, emotional or psychological manipulation, intimidation or harassment, sexual violence or gross neglect of children or adults.
Much of this conduct is encapsulated by the types of criminal offences for which a conviction would amount to an automatic or presumptive prohibition under the CSPP Act.
Other examples of an adult’s conduct that may lead to real concerns about risks to children might include past conduct amounting to the “grooming” of children, poor boundary recognition in a relationship where there is a power imbalance, behaviour such as ‘peeping tom’ or prurient interest conduct, the viewing of unsuitable or violent videos in the presence of children, the possession of child pornography, or the possession of some types of adult pornography (which may say a great deal about the sexual mores of a person if combined with other risk factors).
Where, however, the likely impact on a child or children is of a more moderate nature (and particularly if it is combined with a low possibility or likelihood of that risk occurring) it may be appropriate to treat that risk against the background of other factors (such as the level of insight of the person, the success of any rehabilitation etc.) as “acceptable”.
Some examples of less serious direct risks to children might be those associated with a person’s somewhat dysfunctional or hazardous lifestyle (such as prolonged drug use, or isolated violent offending towards an adult), or the imposition on others of social or religious attitudes that are considered to be questionable or outside of broader community norms.
To summarise: in my view 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.
Conversely, an acceptable risk might be one which is fanciful, farfetched or theoretical and where the potential consequences to children are mild or insignificant.
(Footnote in original; emphasis added)
The Tribunal on review of the first Prohibition Notice accepted and adopted these paragraphs as explicating the meaning of ‘unacceptable risk’ in s 26(1). On appeal, the single judge agreed with the formulation contained in the paragraph highlighted, above. She continued:[9]
It follows that consideration of whether an unacceptable risk to children exists in the context of s 26 CSPP Act requires an evaluation of degree or likelihood of conduct occurring in the future, the seriousness of the consequences of the conduct for children, and whether it is acceptable to allow it.
[9] [2024] SASC 23 at [81].
This passage is the subject of Appeal Ground 6. The CAU, in its Reasons for Determination to make the second Prohibition Notice, rejected the appellant’s submission that the judge has misstated the test. It went on:[10]
To avoid any possible misunderstanding, the CAU simply applies the “unacceptable risk” test expressly provided for by s 26(1) of the Act.
[10] CAU, Reasons for Determination, 12 September 2024 at [32].

In our view, the Tribunal’s failure to put the appellant on notice of the way in which it proposed to treat his response to the request for the photographs constituted a denial of procedural fairness. We are not satisfied that the loss of the opportunity to answer that issue did not deprive the appellant of the possibility of a successful outcome. For that reason also, we consider that the single judge’s failure to allow the appellant to adduce evidence of his explanation was an error.
It follows that the complaints the subject of appeal grounds 4 and 5 are established.
Conclusion on the questions of law reserved
We answer the questions of law reserved as follows:
Question 1: Yes.
Question 2: For the purpose of undertaking a WWCC pursuant to s 26 of the CSPP Act, the determination whether or not a person poses an ‘unacceptable risk’ to children is a non-discretionary decision.
Question 3: Determination of ‘unacceptable risk’ under s 26(1) of the CSPP Act requires the CAU to be persuaded that the appellant poses an unacceptable risk to children; it is not a state of persuasion or satisfaction that is required to be reached on an evidentiary standard of proof.
Question 4a: Yes.
Question 4b: Yes.
Question 5: No.
Preliminary conclusion on the appeal
The appellant has established the complaints the subject of Appeal Grounds 1, 2, 4 and 5. Ground 3 is unnecessary to decide. Grounds 6 and 7 fail. For the reasons discussed above, we have not yet determined whether leave to appeal should be granted in respect of any ground, or the merits of Ground 8 of the appeal.
The conclusions on Appeal Grounds 1, 2, 4 and 5, together with the conclusion that the second Prohibition Notice does not supersede the first, would in the ordinary course warrant a grant of leave to appeal on those grounds. If we were to grant leave, we would allow the appeal on Grounds 1, 2, 4 and 5. However, we would likely refrain from addressing Ground 8, and the ultimate merits of the determination of whether the appellant poses an unacceptable risk to children. We would likely set aside the decisions of the single judge and the Tribunal and remit the matter to the Tribunal. The first notice would remain in force, but subject to potential challenge in the Tribunal in accordance with the guidance provided by these reasons and with the benefit of the proposed new evidence.
However, it is appropriate to hear further submissions before determining whether to adopt this course, or indeed to grant leave at all.