JP v DEPARTMENT OF HUMAN SERVICES – CENTRAL ASSESSMENT UNIT [2026] SASC 32

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (SENIOR MEMBER C D DARCY) 2022/SAO03472 AND 2023/SAO02085 Appellant: JP Counsel: MS K WAITE - Solicitor: HACKETT LAWYERS Respondent: DEPARTMENT OF HUMAN SERVICES – CENTRAL ASSESSMENT UNIT Counsel: MS J CLARE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 17/05/2024, 25/08/2025 File No/s: CIV-24-001934 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. JP v DEPARTMENT OF HUMAN SERVICES [2026] SASC 32 Judgment of the Honourable Justice Stanley 20 March 2026 ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR RELATING TO FACTS APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL The applicant sought leave to appeal two decisions of a Senior Member of the South Australian Civil and Administrative Tribunal (the Tribunal) pursuant to s 71 of the South Australian Civil and Administrative Tribunal Act 2013 (SA). The two decisions reviewed by the Tribunal involved decisions made by the Central Assessment Unit (CAU) of the Department of Human Services. The first decision was to issue JP with a prohibition notice pursuant to the Child Safety (Prohibited Persons) Act 2016 (SA) (Child Safety Act). The second decision was to issue JP with a NDIS Worker Check Notice of Exclusion pursuant to the Disability Inclusion Act 2018 (SA) (Disability Inclusion Act). These decisions followed applications made by JP for a Working with Children Check, and a NDIS Worker Check Clearance. JP’s grounds of appeal amount to complaints that the Tribunal made wrong factual findings, and that the Tribunal denied JP procedural fairness by relying on the reasons of the President of the Tribunal in Marshall v Department of Human Services – Central Assessment Unit [2023] SACAT 83 (Marshall), without putting the parties on notice of that intended reliance. -- 1 of 37 -- The issue on appeal was ultimately the correctness of the Tribunal in affirming the decisions of the CAU. In resolving that issue, the Court considered whether it was correct to find that JP poses an unacceptable risk to children for the purposes of the Child Safety Act, and whether it was correct to find that JP poses a risk of harm to people with disability for the purposes of the Disability Inclusion Act. Held, per Stanley J, as he then was, granting permission to appeal but dismissing the appeal: 1. Decisions under s 26 of the Child Safety Act and s 18J of the Disability Inclusion Act are evaluative in nature, such that the determinations of whether a person poses an unacceptable risk to children or a risk of harm to people with disability ultimately admit of only one correct answer, requiring the court to conduct a real rehearing of the correctness of the decision below. 2. As the decision below involves the decision of a Senior Member of the Tribunal, the court had regard to the Senior Member’s membership of a specialist Tribunal, with its institutional experience in the subject matters of child protection and the protection of vulnerable people, which provides the Tribunal with an advantage in drawing inferences from evidence in relation to assessments of risk. 3. In undertaking an assessment of the requisite risk under both the Child Safety Act and the Disability Act, such an assessment clearly needs to be in made light of the objects and principles of each legislative scheme. 4. The Senior Member’s approach to weighing and assessing the evidence was dictated by the two-staged process identified in Marshall. JP was not denied procedural fairness, the loss of the opportunity to make submissions on Marshall did not deprive JP of the possibility of a successful outcome. The loss did not meet the threshold of materiality. 5. Ultimately, there was no error found in the Tribunal’s treatment of the evidence, its attribution of weight, or its overall conclusion that JP poses an unacceptable risk to children and a risk of harm to people with disability. 6. The decisions of the CAU were properly affirmed. Children and Young People (Safety) Act 2017 (SA); Child Safety (Prohibited Persons) Act 2016 (SA) ss 3-8, 17, 26, 32; Disability Inclusion Act 2018 (SA) ss 3, 5, 8-9, 18; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 34, 70, 71, referred to. Aldridge v The Registrar of Firearms [2022] SASC 5; Fox v Percy (2003) 214 CLR 118; GJC v Department of Human services [2020] SACAT 38; Griggs v Department of Human Services [2023] SACAT 60; Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29; LDI v Department of Human Services – Central Assessment Unit [2025] SACAT 32; Moore (a pseudonym) v The King (2024) 98 ALJR 1119; R v Bauer (a pseudonym) (2018) 266 CLR 56; Young v The King [2024] SASCA 47, applied. Burke v Public Trustee for the State of South Australia [2022] SASCA 64; GJC v Department of Human Services [2020] SACAT 38; GM v Department of Human Services [2024] SASC 23; GM v Department of Human Services [2025] SASCA 68; House v The King (1936) 55 CLR 499; Jackson v Lepp Investments (2016) 125 SASR 1; Marshall v Department of Human Services – Central Assessment Unit [2023] SACAT 83; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Pix v South Australian Housing Trust (2016) 125 SASR 10; Varricchio v Wentzel (2016) 125 SASR 191; Warren v Coombes (1979) 142 CLR 531, discussed. Attwood v The Queen (1960) 102 CLR 353; R. v. Rowton 169 E.R. 1497; (1865) Le. & Ca. 520; [1865] 1 WLUK 112, considered. -- 2 of 37 -- JP v DEPARTMENT OF HUMAN SERVICES [2026] SASC 32 Single Judge Appeal – Civil STANLEY J: Introduction 1 On 11 November 2022 the Department of Human Services (the Department) issued the applicant, JP, with a prohibition notice (prohibition notice) pursuant to s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Child Safety Act). 2 On 7 July 2023 the Department issued JP with a NDIS Worker Check Notice of Exclusion (exclusion notice) pursuant to s 18J(1)(b) of the Disability Inclusion Act 2018 (SA) (the Disability Inclusion Act). 3 The effect of a prohibition notice is to prohibit a person from engaging in child-related work.1 Child-related work is defined in s 6 of the Child Safety Act.2 The effect of an exclusion notice is to exclude a person from being cleared to work with persons with a disability.3 A disability, in relation to a person, is defined in s 3(1) of the Disability Inclusion Act.4 4 JP sought reviews of the decisions to issue the prohibition notice and the exclusion notice. A Senior Member of the South Australian Civil and Administrative Tribunal (the Tribunal) affirmed the decisions under review and dismissed the appeals on 5 February 2024 (the Tribunal’s decisions).5 5 JP, on 28 February 2024, sought leave pursuant to s 71(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act) to appeal the Tribunal’s decisions, seeking to have the decisions set aside. JP also seeks orders revoking the prohibition notice and the exclusion notice. 6 The Department opposes the grant of leave to appeal the Tribunal’s decisions on the basis that JP has not established reasonably arguable grounds that the Tribunal erred in affirming the issue of the prohibition notice and the exclusion notice. In the alternative, if leave is granted, the Department submits that the appeal should be dismissed because JP has not established any error in the Tribunal’s decision. History of the matter 7 In August 2022, following an application by JP for a Working with Children Check (WWCC), the Central Assessment Unit of the Department (CAU) made a 1 Child Safety (Prohibited Persons) Act 2016 (SA) s 32. 2 Child Safety (Prohibited Persons) Act 2016 (SA) s 6. 3 Disability Inclusion Act 2018 (SA) s 18J(1)(b) and s 18L(1). 4 Disability Inclusion Act 2018 (SA) s 3(1). 5 Order of Senior Member Ms M C D’Arcy, 2022/SA003472, 2023/SA0020855, 27 November 2023 (Order of the Senior Member). -- 3 of 37 -- [2026] SASC 32 Stanley J 2 determination that JP was not prohibited from working with children (the initial WWCC). On 5 October 2022 the CAU received a continuous monitoring notification indicating that on 13 December 2018 JP had been charged on Information with persistent sexual exploitation of a child, retrospective law (the criminal charge). While the existence of this criminal charge had not been previously disclosed to the CAU6, its subsequent notification rendered it “assessable information” for the CAU’s consideration.7 As a result, later in October 2022, the CAU conducted a further WWCC in relation to JP (the second WWCC). 8 There were two categories of assessable information available to the CAU in undertaking the second WWCC. 9 The first category was historical allegations of abuse towards JP’s former stepson, which he reported to police as an adult in 2018. These allegations were that JP sexually, physically and verbally abused him over a period of approximately six years between 1980 and 1986. At the relevant time, JP’s stepson was aged between eight and 14 years. JP pleaded not guilty to the criminal charge. The matter proceeded to trial (the Criminal Trial).8 In October 2020 the jury was discharged after failing to reach a verdict. The matter was re-listed for a second trial, but in September 2021 the Director of Public Prosecutions entered a nolle prosequi.9 10 The second category was historical allegations of inappropriate discipline towards children in JP’s care in 2012 and 2013. JP had a relationship with these children in the nature of a grandmother. These allegations were that she tied a four-year-old to a chair and force fed him, and that she directed a 12-year-old child to wear a nappy and run around an oval as a form of punishment. 11 On 28 October 2022, the CAU wrote to JP inviting her to provide a submission for the second WWCC. In November 2022 JP provided a letter and numerous supporting documents. Following consideration of JP’s materials, the CAU determined that she posed an unacceptable risk of harm to children and issued the prohibition notice of 11 November 2022. 12 On 19 October 2022, JP applied to the CAU for a NDIS Worker Check Clearance (NDIS WCC). The CAU determined that a risk assessment was required and carried out an assessment of the relevant information. This was the same information which the CAU had considered for JP’s WWCC application.10 6 The initial WWCC application was made under a different surname. 7 Child Safety (Prohibited Persons) Act 2016 (SA) s 8. 8 AB, Volume 8. 9 WWCC s 35 Book of Documents, p 170-172. 10 Pursuant to the definition of “relevant information” in s 18A(1)(b) of the Disability Inclusion Act, this may include information about the person disclosed in an application for a clearance or other authority under a relevant law. The definition of “relevant law” in s 18A(1)(d) of the Disability Inclusion Act includes the Child Safety Act. -- 4 of 37 -- [2026] SASC 32 Stanley J 3 13 On 8 December 2022, the CAU wrote to JP inviting her to make a submission to the CAU addressing its concerns. She did so by a range of responses and supporting documents, collectively considered as her submissions. After reviewing JP’s material the CAU decided that JP posed a risk of harm to people with a disability and issued a Notice of Exclusion on 7 July 2023. 14 JP applied to the Tribunal for a review of the decisions. 15 On 27 November 2023, the Tribunal heard the two reviews together pursuant to s 34 of the SACAT Act. They were conducted by way of a rehearing before a Senior Member of the Tribunal. Both parties put additional information before the Tribunal, including JP calling evidence of a neighbour of JP’s during the 1980s, who gave evidence by way of telephone. JP did not give evidence before the Tribunal. 16 On 5 February 2024, the Tribunal affirmed both decisions of the CAU. JP applied for leave to appeal to this Court from the Tribunal’s decisions. The Child Safety Act 17 The legislative scheme of the Child Safety Act was recently considered by the Court of Appeal in GM v Department of Human Services (the Court of Appeal in GM).11 I will return to this. 18 The objects and principles of the legislative scheme of the Child Safety Act are found in s 3 which provides: 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 11 GM v Department of Human Services [2025] SASCA 68. -- 5 of 37 -- [2026] SASC 32 Stanley J 4 (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. 19 The primary object of the Child Safety Act is to minimise the risk to children posed by persons who work with them.12 The best interests of children, having regard to their safety and protection, is the paramount consideration in the administration, operation and enforcement of the Child Safety Act.13 It follows that the achievement of the primary object of the Act will sometimes require that persons are prohibited from working with children. 20 Section 26 of the Child Safety Act provides a framework for determining whether a person is, or is not, to be prohibited from working with children. Section 26 provides: (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— 12 Child Safety (Prohibited Persons) Act 2016 (SA) ss 3(1) and 3(3). 13 Child Safety (Prohibited Persons) Act 2016 (SA) s 3(3). -- 6 of 37 -- [2026] SASC 32 Stanley J 5 (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. 21 As is apparent, s 26 commences with a process for examining a person’s suitability for working with children. This is the WWCC. The CAU is responsible for undertaking the WWCC and determining whether the person is to be prohibited from working with children. 22 The WWCC requires that the CAU undertake an assessment of “assessable information” relating to a person, and in carrying out that assessment, the CAU must do so against the “prescribed risk assessment criteria”. The prescribed risk assessment criteria is defined in s 26(7) of the Child Safety Act as meaning the prescribed risk criteria set out in the guidelines. The relevant guidelines are set out in Part 10 of the Working With Children Check Guidelines (WWCC Guidelines), published, or adopted, pursuant to s 4(2)(d) of the Child Safety Act. The concept of assessable information is defined in s 8 of the Child Safety Act as follows: 8—Meaning of assessable information (1) For the purposes of this Act, the following information is assessable information in relation to a person: (a) information that relates to offences of which the person has been found guilty; (b) information that relates to offences with which the person has been charged; (c) information that relates to disciplinary proceedings in which the person was a defendant or respondent; (d) information that relates to disciplinary action taken against the person; (e) information that relates to findings of misconduct made against the person; -- 7 of 37 -- [2026] SASC 32 Stanley J 6 (f) information that relates to the cancellation of an approval of a foster parent under the Family and Community Services Act 1972; (fa) information that relates to the cancellation of an approval of an approved carer under the Children and Young People (Safety) Act 2017; (g) information that relates to a notification made pursuant to Part 4 Division 1 of the Children's Protection Act 1993; (ga) information that relates to a notification made pursuant to Chapter 5 Part 1 of the Children and Young People (Safety) Act 2017; (h) information (whether or not obtained under the Children's Protection Act 1993 or the Children and Young People (Safety) Act 2017) held by an administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Children and Young People (Safety) Act 2017 and that relates to harm caused, or a risk of harm, to a child; (i) information provided by the person for the purposes of a working with children check; any other information, or information of a class, declared by the regulations to be assessable information. (j) any other information, or information of a class, declared by the regulations to be assessable information. (2) Subsection (1) applies to information— (a) whether the relevant conviction, offence or conduct occurred before or after the commencement of this section; (b) whether the relevant offence or conduct was committed or occurred in South Australia or elsewhere; (c) regardless of the outcome of the charges; (d) whether the information was obtained before or after the commencement of this section; (e) whether or not an appeal has been lodged or finally determined in respect of the relevant matter; (f) regardless of the outcome of any proceedings, action or appeal to which the information relates. 23 The classes of information encompassed within this concept are intentionally broad. They include information relating to criminal and disciplinary proceedings as well as information provided to the CAU through statutory notifications.14 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 reliance on the WWCC.15 Further, in undertaking a 14 They also include information declared by regulation to be assessable information: see Child Safety (Prohibited Persons) Regulations 2019 (SA), reg. 8. 15 Child Safety (Prohibited Persons) Act 2016 (SA) s 26(2). -- 8 of 37 -- [2026] SASC 32 Stanley J 7 WWCC, the CAU is not bound by the rules of evidence; it has a discretion to adopt findings or decisions of a court or tribunal; and it may inform itself as it sees fit.16 As I have said, 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.17 24 The framework as a whole requires that in undertaking a WWCC the CAU make two determinations: first, whether the person poses an unacceptable risk to children; and second, upon completing the WWCC, whether the person is, or is not, to be prohibited from working with children. 25 If the CAU determines that a person is to be prohibited from working with children they must issue the person with a prohibition notice. Section 32 of the Child Safety Act provides: (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. As I have said, the CAU issued a prohibition notice to JP. The evaluation of risk under the Child Safety Act 26 Against the background of this summary of the framework provided by s 26 of the Child Safety Act, it is convenient to consider the nature of the CAU’s unacceptable risk determination for the purposes of s 26(1). 16 Child Safety (Prohibited Persons) Act 2016 (SA) s 26(3). 17 Child Safety (Prohibited Persons) Act 2016 (SA) s 26(4). -- 9 of 37 -- [2026] SASC 32 Stanley J 8 27 The term “unacceptable risk to children” is not defined. The Court of Appeal in GM accepted that while “risk” requires an assessment of both the degree or likelihood of the occurrence of an event and the possible consequences if it does occur, that provides little more than a broad descriptive framework for the assessment of any risk.18 28 The Court of Appeal in GM held that the legislative context and purpose of the Child Safety Act assist in understanding the statutory concept of “unacceptable risk to children”. Broadly speaking, it is concerned with the safety of children. It is uncontroversial, and indeed obvious, that when the Child Safety Act speaks of risk to children, it is speaking of the risk to the safety of children. The Child Safety Act is concerned with protecting children against what is described as an “unacceptable risk” to their safety. As I have said, guidance as to what is meant by “unacceptable risk” may be found in the objects and principles in the Child Safety Act.19 29 Section 3(2) of the Child Safety Act provides that in order to further the primary object of minimising the risk to children posed by persons who work with them, the Act requires the provision of a framework for the prohibition of persons who pose an unacceptable risk to them. 30 As the Court of Appeal held in GM, it follows that the assessment of a person as an unacceptable risk to children is done in service of the primary object of minimising the risk to children posed by those who work with them.20 The Court of Appeal held that “unacceptable” in this context introduced an objective, normative standard.21 31 Section 3(4)(d) of the Child Safety Act provides that a WWCC is only an assessment of one person’s prior conduct and the assessment does not, of itself, satisfy an employer’s obligation to ensure that a workplace is safe for children. Similarly, s 3(4)(e) provides that organisations and employers must have in place comprehensive strategies to ensure child safe environments. As the Court of Appeal in GM recognised, these principles employ the language of insurance. They locate an obligation on employers to ensure safe workplaces and environments for children.22 In addition, Division 2 of Part 4 of the Child Safety Act imposes further obligations on employers, as does the Children and Young People (Safety) Act 2017 (SA). Employers and organisations also have common law duties of care. 32 Sections 3(4)(d) and 3(4)(e) state principles which must be taken into account in connection with the administration, operation and enforcement of the Child Safety Act. They are principles that rest on an apparent purpose of “ensuring” that 18 GM v Department of Human Services [2025] SASCA 68 at [75]. 19 GM v Department of Human Services [2025] SASCA 68 at [76]. 20 GM v Department of Human Services [2025] SASCA 68 at [77]. 21 GM v Department of Human Services [2025] SASCA 68 at [81]. 22 GM v Department of Human Services [2025] SASCA 68 at [79]. -- 10 of 37 -- [2026] SASC 32 Stanley J 9 workplaces and other environments are safe for children. That apparent purpose must be read together with the primary object of the Act in s 3(1), which is to minimise the risk to children posed by persons who work with them. 33 These statements of purpose necessarily employ abstractions. Those abstractions are important and purposive indicators of the objective standard that is to be afforded to the concept of “unacceptable risk”. 34 As the Court of Appeal has observed, the objects and principles set out in s 3 of the Child Safety Act make it clear that Parliament does not consider that any one measure is capable of ensuring a child safe environment. A WWCC is nonetheless one device that furthers the object of minimising the risk to children posed by those who work with them. When the assessable information is assessed against the prescribed risk assessment criteria the assessor is required to make a decision about the existence and acceptability of any risk that the person poses to the safety of children. 35 As the Court of Appeal held that the phrase “poses an unacceptable risk to children” takes its colour from the primary object of the Child Safety Act, a WWCC does not, and the Child Safety Act recognises that it cannot, eliminate all risks to children in a workplace. However, a WWCC has an important role in serving the primary object of the Child Safety Act. If a person is assessed as posing an unacceptable risk to children, the Child Safety Act contemplates that the person is to be prevented from working with children. In that sense, the concept of posing an unacceptable risk to children is outcome focussed. This is not inconsistent with the proposition that unacceptable risk denotes an objective standard. It simply indicates that the question of unacceptability of a risk is to be informed by the object of minimising the risk to children. 36 The Court of Appeal in GM held that the following considerations guide the exercise of determining whether a person poses an unacceptable risk to children:23 The exercise involves an evaluative assessment of risk, informed by the legislative context and in particular the purpose and objects of the CSPP Act. This includes the primary object of minimising the risk to children posed by persons who work with them, and the paramount consideration being the best interests of children, having regard to their safety and protection. The exercise involves an evaluation of the risk that a person poses to children. This in turn involves an identification of the types of risk, and an assessment of both the likelihood of the risk occurring, and the seriousness of the possible consequences if it does occur. This encompasses the risk of harm of any kind to children, including physical, sexual, psychological and emotional harm. As to the degree of risk, the exercise involves an assessment of the likelihood of the apprehended harm occurring. It will usually involve a consideration of the past behaviour and conduct of the relevant adult. That may take the form of abuse of a physical, sexual, 23 GM v Department of Human Services [2025] SASCA 68 at [107]-[110]. -- 11 of 37 -- [2026] SASC 32 Stanley J 10 psychological or emotional nature. It will include abuse in its widest sense, and so including conduct such as manipulation, intimidation, threats, harassment or neglect. But it will also extend to consideration of conduct that might be described as grooming or poor boundary recognition (particularly in the context of relationships involving a degree of authority or power on the part of the adult). It will include other behaviour which might be indicative of a prurient interest in a child or children, or of an interest in other inappropriate sexual or violent behaviour. It will also include behaviour which might represent a less direct risk of harm to children, such as a dysfunctional or hazardous lifestyle, difficulties with the abuse of alcohol or drugs, or adherence to social attitudes or beliefs which conflict with broader community norms. 37 Past conduct need not be proven to any particular standard for it to be relevant to the assessment.24 Nor does there need to be a likelihood of any particular form of harm occurring before it may be taken into account. However, in determining what weight should be attached to information of past conduct and the prospect of apprehended harm in the future, it will be important to have regard to where on the spectrum of satisfaction the information as to past conduct lies. It will be important to have regard to whether it represents, for example, proven past conduct; allegations based upon some sound factual basis and from an apparently credible source; or mere allegations without any identified factual basis or source.25 As to the seriousness of the risk, this involves a consideration of the potential gravity of the consequences for a child were the apprehended harm to occur. This may range from a risk of immediate and significant physical or sexual harm, through to a risk of a longer-term form of psychological or emotional harm. 38 The assessment will often be multi-faceted, involving consideration of a range of information about past behaviours, and of risks of varying types with varying degrees of likelihood and seriousness. In such cases, it will require an assimilation and synthesis of this information, in order to arrive at an overall assessment of the risk that the relevant adult poses to children.26 39 In undertaking an evaluative assessment of whether the relevant adult poses an unacceptable risk to children, the CAU will assess against an objective normative standard the risk that would be acceptable to the community, having regard to the objects of the Child Safety Act, and with the focus being upon the best interests of children. 40 It may be expected that a realistic prospect of relatively serious harm would ordinarily be unacceptable. Conversely, it may be expected that a fanciful, far- fetched or theoretical prospect of mild or insignificant harm would ordinarily be acceptable. However, it is difficult, and usually unwise, to generalise. 41 The Court of Appeal in GM held that the determination of unacceptable risk under s 26(1) of the Child Safety Act requires the CAU to be persuaded that a 24 Child Safety (Prohibited Persons) Act 2016 (SA) s 8(2)(c). 25 GM v Department of Human Services [2025] SASCA 68 at [111]. 26 GM v Department of Human Services [2025] SASCA 68 at [112]-[113]. -- 12 of 37 -- [2026] SASC 32 Stanley J 11 person 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.27 42 The Court of Appeal in GM further held that for the purpose of undertaking a WWCC pursuant to s 26 of the Child Safety Act, the determination whether or not a person poses an unacceptable risk to children is a non-discretionary decision.28 It is a decision which only admits of a single correct answer. 43 The Child Safety Act itself draws a distinction between avoiding an unacceptable risk to children and ensuring the safety of children. 44 It is convenient to consider the extent to which, and manner in which, the Act draws this distinction. As I have said, the Act uses the language of “insurance” in the principles identified in s 3(4)(d) and s 3(4)(e) for its deployment of the term “unacceptable risk”. However, as the Court of Appeal observed, without more, that is an observation of little consequence.29 45 Section 17 of the Child Safety Act prohibits an employer30 from employing a person in a prescribed position31 unless the employer has, relevantly, verified that a WWCC has been conducted in relation to the person within the previous five years, and the person is not prohibited from working with children.32 Under the Child Safety Act a “prescribed position” is a position in which a person works, or is likely to work with children; or any other position, or a position of a class, prescribed by the regulations for the purposes of this definition. Prescribed persons are set out in regulation 6 of the Child Safety (Prohibited Persons) Regulations 2019 (SA) (Child Safety Regulations). 46 As the Court of Appeal explains, a decision under s 26(5) is a reviewable decision. The CAU must first determine whether the person poses an unacceptable risk to children. I consider that the only risk of harm that is acceptable within the meaning of s 26(1) is a risk that is purely theoretical, negligible or fanciful. Then it must determine whether the person is to be prohibited from working with children pursuant so s 26(5). Once the first question is answered in the affirmative, as the Court of Appeal says, the question of whether the prohibition order should be made under s 26(5) will in most cases necessarily follow. Disability Inclusion Act 47 The objects of the Disability Inclusion Act include providing safeguards in relation to the delivery of all supports and services for people with disabilities.33 The principles of the Disability Inclusion Act, to be observed in the operation, 27 GM v Department of Human Services [2025] SASCA 68 at [124]-[180]. 28 GM v Department of Human Services [2025] SASCA 68 at [181]-[227]. 29 GM v Department of Human Services [2025] SASCA 68 at [92]. 30 Child Safety (Prohibited Persons) Act 2016 (SA) s 7. 31 Child Safety (Prohibited Persons) Act 2016 (SA) s 5(1). 32 Child Safety (Prohibited Persons) Act 2016 (SA) s 17(1). 33 Disability Inclusion Act 2018 (SA) s 8(c). -- 13 of 37 -- [2026] SASC 32 Stanley J 12 administration and enforcement of the Act, include that people with disability have the right to live free from neglect, abuse and exploitation.34 All persons or bodies engaged in the operation, administration or enforcement of the Disability Inclusion Act are required to exercise their powers and perform their functions so as to give effect to the principles of that Act.35 48 Part 5A of the Disability Inclusion Act provides a scheme for screening NDIS Workers. It is part of a national scheme. Upon a person applying to the CAU for a NDIS WCC, the CAU must determine whether a risk assessment is required with reference to the criteria in s 18M of the Disability Inclusion Act. 49 Section 18M provides: 18M—Nature of risk assessment (1) A risk assessment of a person for the purposes of this Part is an assessment and determination by the central assessment unit as to whether the person poses a risk of harm to people with disability. (2) For the purposes of this Part, a reference to a risk of harm to people with disability is to be interpreted in accordance with the following principles: (a) the risk of harm must be a real and appreciable risk of harm; (b) the risk of harm does not need to be likely or significant; (c) the risk of harm need not arise from recent events. (3) In this section— harm includes— (a) any detrimental effect on a person's physical, psychological, emotional or financial wellbeing (personal harm); and (b) non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm). 50 Where a risk assessment is required,36 the CAU assesses the relevant information37 and determines whether the person poses a risk of harm38 to people with disability,39 considering the matters prescribed in s 18O of the Disability Inclusion Act. 51 Section 18O provides that the CAU is to consider the following for the purposes of a risk assessment: 34 Disability Inclusion Act 2018 (SA) s 9(1)(j). 35 Disability Inclusion Act 2018 (SA) s 9(6). 36 Disability Inclusion Act 2018 (SA) s 18N. 37 Disability Inclusion Act 2018 (SA) s 18A(1). 38 Disability Inclusion Act 2018 (SA) s 18M(3). 39 Disability Inclusion Act 2018 (SA) s 18M(1). -- 14 of 37 -- [2026] SASC 32 Stanley J 13 (a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in, or contributed to, the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work; (b) the length of time that has passed since a relevant event occurred; (c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; (d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour; (e) the person's conduct since a relevant event; (f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work; (g) such other matters as the central assessment unit considers appropriate. 52 NDIS Worker Check Guidelines have been published by the Minister (NDIS Guidelines). Supplementing these guidelines is the NDIS Worker Check: Decision Making and Criminal History Procedural Framework. The Procedural Framework stipulates how the risk assessment is conducted. 53 If, following a risk assessment, the CAU determines that a person poses a risk of harm to people with a disability it must invite the applicant to make a submission.40 After considering the applicant’s submission (if any), the CAU will then decide the application.41 If the CAU’s determination is that a person poses a risk of harm to people with a disability, it must issue an NDIS WCC exclusion to the person.42 54 As I have said, the CAU issued a NDIS WCC exclusion to JP. The evaluation of risk under the Disability Inclusion Act 55 The statutory scheme under the Disability Inclusion Act is analogous, although not identical to that of the Child Safety Act.43 Certainly it can be accepted that the text, context and purpose of Part 5A of the Disability Inclusion Act, like Part 5 of the Child Safety Act, is protective in nature. Both schemes require assessment of the risk posed to a vulnerable group within the community.44 While the risk is differently described, namely, a “risk of harm” under the Disability Inclusion Act, and an “unacceptable risk” under the Child Safety Act, decisions of 40 Disability Inclusion Act 2018 (SA) s 18J(2). 41 Disability Inclusion Act 2018 (SA) s 18J(3). 42 Disability Inclusion Act 2018 (SA) ss 18J(1)(b) and 18L(1). 43 Paragraph 67 of these reasons. 44 Disability Inclusion Act 2018 (SA) s 18J(1)(b), Child Safety (Prohibited Persons) Act 2016 (SA) s 26(1). -- 15 of 37 -- [2026] SASC 32 Stanley J 14 the Tribunal have considered the terms to be synonyms.45 However, to accept that proposition is not to treat the two statutory tests as being identical. It can be seen that the concept of an “unacceptable risk” in the Child Safety Act assumes the existence of an “acceptable risk”, whereas the Disability Inclusion Act test is absolute rather than relative. I said earlier in these reasons that the only risk of harm that is acceptable within the meaning of s 26(1) of the Child Safety Act is a risk that is purely theoretical, negligible or fanciful. However, that textual analysis must, to an extent, yield to a consideration of the evident statutory purpose of each provision. As the Court of Appeal held in GM, in the context of legislation that is intended to protect vulnerable children, it is difficult to conceive that the Child Safety Act would permit a real risk of harm to a child to be considered acceptable. The term “risk of harm” in the Disability Inclusion Act however posits a test of any risk of harm, whether that risk is acceptable or unacceptable. 56 While the existence of a risk of harm does not involve a discretionary judgment it does involve an evaluative judgment. The review by the Tribunal 57 The statutory task to be undertaken by the Tribunal in reviewing the decisions of the CAU is to determine, for the purpose of the Child Safety Act, whether an applicant poses an unacceptable risk to children, and for the purpose of the Disability Inclusion Act, whether he or she poses a risk of harm to people with disability. 58 The Tribunal in conducting a rehearing is required to independently examine the evidence that was before the primary decision maker and to reach the correct or preferable decision after giving appropriate weight to the decision under review.46 Leave to appeal to this Court 59 An appeal pursuant to s 71 of the SACAT Act is only by leave of this Court. In Pix v South Australian Housing Trust47 the Full Court adopted the principles stated in Jackson v Lepp Investments48 concerning the principles to be applied when deciding whether to grant permission to appeal from SACAT to this Court. In Jackson v Lepp Investments,49 Parker J said: I consider that the ordinary principles applied, when the court decides whether or not to grant permission for a civil appeal, should be followed. The overriding principle is always the interests of justice. The ordinary approach is that permission will only be granted where 45 LDI v Department of Human Services – Central Assessment Unit [2025] SACAT 32 at [31]-[39], citing Griggs v Department of Human Services [2023] SACAT 60 and GJC v Department of Human services [2020] SACAT 38. 46 South Australian Civil and Administrative Tribunal Act 2013 (SA) s 70(5); Aldridge v The Registrar of Firearms [2022] SASC 5 at [40]. 47 (2016) 125 SASR 10 [3]. 48 (2016) 125 SASR 1 [19]. 49 (2016) 125 SASR 1. -- 16 of 37 -- [2026] SASC 32 Stanley J 15 an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration. [Citations omitted]. 60 Subsequently, in Varricchio v Wentzel50 Doyle J, as he then was, held that leave to appeal from SACAT should not be readily granted otherwise it would undermine the legislative intention that disputes before the Tribunal concerning the protection of children and people with a disability should be dealt with in a timely and cost efficient way. 61 Consistent with those authorities, the overarching principle in determining whether to grant leave to appeal remains the interests of justice. Ordinarily, leave will only be granted where the appeal is reasonably arguable and the subject matter is of sufficient substance to warrant consideration. The standard of appellate review to this Court 62 Section 71 of the SACAT Act stipulates that any appeal is to be by way of rehearing. On appeal the Court may draw inferences of fact from evidence or material which was before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it. On appeal the Court may affirm, vary or set aside the decision appealed against, and, if it thinks fit, may remit the matter to the Tribunal with any directions the Court considers appropriate. On appeal, the Court may also make any interim, ancillary or consequential orders it considers appropriate. 63 The nature of the appellate task, or the standard of appellate review, depends upon the nature of the decision under challenge. When the challenge is to a discretionary decision which admits of more than one correct answer, the principles of appellate restraint in House v The King51 must be applied. However, when the challenge is to a decision which admits of only one correct answer, then the “standard of correctness” explained in Warren v Coombes52 applies. That is so even if the decision involves an evaluative assessment or judgment.53 64 Recent decisions of the High Court have tended to emphasise the breadth of application of the correctness standard. The Court has explained that, even if the decision under review is one which involves an evaluative assessment or conclusion, and is one in respect of which reasonable minds might differ, it may nevertheless attract the correctness standard.54 50 (2016) 125 SASR 191 at [37]. 51 (1936) 55 CLR 499. 52 (1979) 142 CLR 531. 53 Young v The King [2024] SASCA 47 at [119]. 54 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [49] (Gageler J), [150] (Edelman J); R v Bauer (a pseudonym) (2018) 266 CLR 56 at [61] (the Court); Moore (a pseudonym) v The King (2024) 98 ALJR 1119 at [15] (the Court); Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 at [76] (Edelman J). -- 17 of 37 -- [2026] SASC 32 Stanley J 16 The Court of Appeal’s decision in GM v Department of Human Services 65 On the initial hearing of this application on 17 May 2024, both parties submissions presumed the correctness of the decision of a single judge in GM v Department of Human Services.55 The parties submitted that the Tribunal’s decisions are properly characterised as discretionary, and that leave to appeal should only be granted if this Court found that the Tribunal’s decisions are affected by an error of the kind identified in House v The King. Those submissions were made before the Court of Appeal’s judgment in GM which determined that a House v The King error was not a necessary threshold applicable to appeals of this nature. Accordingly, the parties were invited to file further written submissions, limited to matters arising out of the Court of Appeal’s judgment in GM. 66 The judgment of the Court of Appeal in GM made clear that whether an applicant poses an unacceptable risk to children or a risk of harm to people with a disability involves evaluative decisions. The parties submitted that the Court of Appeal in GM held that in undertaking a WWCC the CAU evaluates the risk that a person poses to children. This involves the identification of the types of risk; an assessment of both the likelihood of the risk occurring, the seriousness of the possible consequences if it does occur; and an evaluative assessment of whether the relevant adult poses an unacceptable risk to children. The Court of Appeal in GM affirmed the standard of proof, in relation to the Child Safety Act, to be the statutory standard of reasonable satisfaction.56 67 Although GM concerned the Child Safety Act alone, as the applicant there sought only a WWCC, the Court of Appeal’s analysis57 applies equally to s 18J of the Disability Inclusion Act. This is because of the close similarities in text, context, and purpose between the two legislative schemes including that: • the CAU is the relevant decision-maker under both schemes, often relying on the same or similar information; • the concepts of “unacceptable risk” under the Child Safety Act and “risk of harm” under the Disability Inclusion Act are strongly analogous, if not equivalent; and • both s 26(1) of the Child Safety Act and s 18J(1)(b) of the Disability Inclusion Act require the CAU to make a “determination” following a risk assessment. 68 For these reasons, a decision under s 18J(1) of the Disability Inclusion Act should also be regarded as evaluative in nature. The statutory standard of reasonable satisfaction also applies to decisions made under Part 5A of the Disability Inclusion Act. 55 [2024] SASC 23. 56 GM v Department of Human Services [2025] SASCA 68, [165]-[173], [180]. 57 GM v Department of Human Services [2025] SASCA 68 at [181]-[227]. -- 18 of 37 -- [2026] SASC 32 Stanley J 17 69 As a decision under s 26(1) of the Child Safety Act and s 18J of the Disability Inclusion Act are evaluative decisions, the role of this Court is to conduct a real rehearing of the correctness of the decision below, consistent with the appeal being from an evaluative judgment. While this Court is not bound by credit findings of a Senior Member, it ought to exercise restraint before interfering with such a finding, unless the fact finding is glaringly improbable, contrary to incontrovertible facts, or where the Senior Member misused their advantage in seeing and hearing the witness. The Senior Member’s membership of a specialist Tribunal, with its institutional experience in the subject matters of child protection and the protection of vulnerable people, provides the Tribunal with an advantage in drawing inferences from evidence in relation to assessments of risk.58 It is on this basis that this Court ought to have due regard to the Senior Member’s assessment of the evidence in this matter. 70 This Court must be alive to any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the primary hearing. This Court must also be alive to matters arising from the advantages that a primary Senior Member may enjoy due to the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at the primary hearing, and to draw conclusions from that evidence, considered as a whole. However, where this Court reaches its own conclusion, it ought not shrink from giving effect to it.59 71 As Gageler J, as he then was, said in Minister for Immigration and Border Protection v SZVFW:60 In relation to an appeal from a final judgment of a primary judge sitting without a jury, essentially two standards of the appellate review have come to be recognised in Australia… If and to the extent that the judgment under appeal turned on the exercise of what can be characterised as a ‘discretion’ committed to the court of which the primary judge was a member, the long-settled understanding is that members in an appellate court cannot substitute on appeal a judgment which turns on their own exercise of discretion ‘merely because they would themselves have exercised the original discretion, had it attached to them, in a different way’. For appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge in the judgment under appeal amounted ‘to a failure to exercise the discretion actually entrusted to the court’. 72 … For a period during the 1960s and 1970s … some Justices of the High Court expressed support for importing similar considerations into appellate review of an evaluative conclusion reached by a primary judge when applying imprecisely defined legal criteria to findings of primary fact, even where the appellate court’s ability to apply those criteria to those findings of primary fact so as to form its own opinion as to the correctness of the 58 Fox v Percy (2003) 214 CLR 118. 59 Warren v Coombes (1979) 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJ. 60 (2018) 264 CLR 541 at [36]-[37], [39], [41], [48], [50]. -- 19 of 37 -- [2026] SASC 32 Stanley J 18 primary judge’s conclusions was unimpeded by any limitation inherent in proceeding on the record. 73 … Rejecting the approach of appellate restraint and reaffirming the approach more commonly taken in Australian and English case law of treating correctness as the general standard of appellate review, the majority in Warren v Coombs stated: … the established principles are … that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. … [the] duty of the appellate court is to decide the case – the facts as well as the law – for itself … In so doing it must recognise the advantages enjoyed by the judge who conducted the trial … But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. 74 It is clear since the judgment of the Court of Appeal in GM that it is necessary to decide whether JP poses the requisite risk to children or persons with a disability depending upon the conclusion I reach on the grounds of appeal. Grounds of appeal 75 The grounds of appeal primarily focus on questions of fact. Appeal grounds one, three, four and five complain that the Tribunal made wrong factual findings in that: • the Tribunal erroneously made findings of fact adverse to JP that could not be supported, having regard to the totality of the evidence (ground one); • the Tribunal based its findings, in assessing the risk posed by JP, on what were said to be admissions made by JP to acts of abuse, where there were no such admissions made, and to suggest that JP admitted to abusive or inappropriate discipline of a child is incorrect (ground three); • the Tribunal made findings mischaracterising JP’s dealings with children as acts of abuse, and did not take into account acceptable standards of discipline as they existed at the relevant time. The Tribunal’s conclusion that the existence of alternative disciplinary methods means JP’s conduct must constitute abuse is flawed as the law does not require perfection in parenting; rather, it recognises that parents and those in loco parentis are often faced with difficult circumstances in which a range of responses may be reasonable. To retrospectively apply idealised or utopian parental standards to historical -- 20 of 37 -- [2026] SASC 32 Stanley J 19 allegations amounts to an error that operates unfairly against JP (ground four); • the Tribunal erred in its approach to the assessment of the character evidence tendered by JP, and drew unfounded adverse inferences against JP based on that material (ground five). 76 Ground two complains that JP was denied procedural fairness by the Tribunal’s failure to invite submissions from the parties concerning the Tribunal’s subsequent decision in Marshall v Department of Human Services – Central Assessment Unit (Marshall).61 77 The factual findings complained of in grounds one, three, four and five concern the treatment of the evidence, being primarily the assessable information, relevant to the issues before the Tribunal. Assessable Information 78 It is useful to provide an overview of the assessable information,62 which was considered by the CAU, and then by the Tribunal as relating to three “main broad issues”.63 79 The three “main broad issues” consist of three allegations against JP formed in reliance upon the assessable information. These allegations include:64 1. JP sexually, physically, and verbally abused her stepson in the period from January 1980 to December 1986; 2. JP inappropriately disciplined children in her care, including tying a four- year-old child to a chair; and 3. JP inappropriately disciplined children in her care, including directing a 12- year-old child to wear a nappy and run around an oval as a form of punishment. 80 The Senior Member considered that the weight to be given to each allegation had to be considered in light of the decision of the President of the Tribunal in Marshall.65 The decision of Marshall provides a two-staged process where first, an assessment must be made of the likelihood that alleged events occurred, and second, where events were conceded, or where the Tribunal is reasonably satisfied 61 [2023] SACAT 83. 62 The “Assessable Information” is also the “Relevant Information” for the purposes of the NDIS WCC pursuant to the Disability Inclusion Act. 63 Order of the Senior Member at [8], [9]. 64 Order of the Senior Member at [5]. 65 Order of the Senior Member at [9], [43]-[46]. -- 21 of 37 -- [2026] SASC 32 Stanley J 20 they occurred, they must be weighed for the purpose of assessment.66 The weight of each allegation essentially rests on the weight that could be attributed to the evidence before the Tribunal, which included the assessable information considered by the CAU. The evidence relevant to those three allegations included:67 • the oral evidence of a neighbour;68 • admissions of conduct by JP; • personal references and statements tendered by JP; and • the transcript from the criminal trial.69 81 Having assessed the evidence, the Senior Member considered the weight to be placed on it.70 82 Category one included findings that JP admitted to certain conduct, including:71 • the use of a restraint in loosely draping garden twine over a four-year-old child with whom she had a relationship in the nature of grandmother in/about 2012 (admission of conduct causing restraint);72 • the use of a nappy which she had made her granddaughter wear over her clothes in public. This was said to be a behavioural strategy designed to help the child recognise the need for more mature conduct in an attempt to correct aberrant behaviour in/about 2012 (admission of conduct causing humiliation);73 and • the use of a “naughty corner”, as well as yelling, smacking and striking with a wooden spoon to discipline her stepson in the period between 1980 and 1986 (admission of conduct including the yelling, smacking and hitting of her stepson). The admission of this conduct was made by JP during the course of the criminal trial, and was supported by evidence given by a social worker at trial. As I said above, the transcript of the criminal trial was received by the Tribunal as evidence.74 66 Order of the Senior Member at [45]. 67 Order of the Senior Member, see headings on p 2-6. 68 Order of the Senior Member at [12]; this evidence did not form part of the CAU’s “assessable” or “relevant” information. 69 Order of the Senior Member at [26]; AB, Volume 8. 70 Order of the Senior Member at [43]-[46]. 71 Order of the Senior Member at [22], [43(a)-(c)], [49]. 72 AB, Volume 2, p 22-24, 34; Appeal Transcript, 17 May 2025 at 5.1-6.10; 7.16-19; WWCC s 35 Book of Documents, p 94, 163. 73 WWCC s 35 Book of Documents, p 47; AB, Volume 2, p 22-24, 34; Appeal Transcript, 17 May 2025 at 5.1-6.10; 7.16-19. 74 Order of the Senior Member at [26]-[37]; AB, Volume 8, p 309. -- 22 of 37 -- [2026] SASC 32 Stanley J 21 83 Category two included findings that the Senior Member was reasonably satisfied that certain conduct constituting the alleged physical and verbal abuse of her stepson in the period between 1980 and 1986 occurred, being that JP:75 • restrained him in a similar pattern to the admission of conduct causing restraint above; • used implements, other than the admitted use of her hand and a wooden spoon, such as pipes and belts from a vacuum cleaner,76 to physically abuse him, required him to stand holding a phone book over his head, and handled his penis and foreskin “unnecessarily roughly” on at least one occasion; • verbally abused him, resulting in him being ‘petrified’, ‘terrified’ and ‘shit scared’ of her; and • used a knife to cut him on the hand, leaving a scar or scars. The Tribunal attributed least weight to this evidence making due accommodation for the possibility that it did not occur.77 84 Category three included incidents that the Senior Member considered possible, but that she was unable to find to her reasonable satisfaction occurred as alleged, being allegations that JP punched her stepson in the face, penetrated his anus, and forced him to defecate in his bedroom.78 85 The evidence considered as falling within categories two and three form historical allegations. 86 JP submits that contrary to the historical allegations, other contradictory evidence was before the Tribunal which she submits the Tribunal failed to take into account. This evidence includes: • the oral evidence of a neighbour which JP submits was unreasonably dismissed by the Tribunal on the basis, inter alia, that he might not have been present to see the abuse. The neighbour’s evidence was based on the premise that he saw JP’s stepson almost every day and he was adamant there was no sign of abuse;79 75 Order of the Senior Member at [9], [43(a), (c)-(e)]-[46]. 76 Order of the Senior Member at [34(a)]. 77 Order of the Senior Member at [43(e)]; Marshall v Department of Human Services – Central Assessment Unit [2023] SACAT 83 at [69]. 78 Order of the Senior Member at [36]-[37]. 79 Transcript of Proceedings, JP (South Australian Civil and Administrative Tribunal, 2022/SA003472, 2023/SA0020855, Senior Member Ms C D’Arcy, 27 November 2023) (SACAT Transcript) at 52; JP’s Written Submissions, FDN 5, at 22. -- 23 of 37 -- [2026] SASC 32 Stanley J 22 • the oral evidence of JP’s stepson’s father saying that he had only seen an injury on the top of his son’s hand under the knuckles, not on the fingertips. This evidence was led by JP to contradict the complaint of her stepson, in the criminal trial, that his finger was cut to the bone.80 Ground 1 87 Ground one contends that the Tribunal erroneously made findings of fact adverse to JP as to the historical allegations that could not be supported having regard to the totality of the evidence. The complaint is that the Senior Member found JP had committed physical and verbal abuse towards her stepson in the 1980s. JP contends that the findings were not reasonably open on the evidence as a whole, and in support, advanced four particulars.81 88 First, JP submits that the Tribunal erred in its treatment of the historical allegations made by her stepson concerning alleged abuse in the 1980s. JP says those allegations were unsupported by any independent or corroborative evidence and rested entirely on her stepson’s assertions made almost 38 years after the events were supposed to have taken place. Further, JP submits that in considering “unproven allegations” the Senior Member treated them as “past proven events”. JP complains that the Tribunal should have considered all relevant matters including motive, inconsistencies, the passage of time and the denials of JP on oath at the criminal trial. JP says consideration of these matters would have suggested the possibility that the allegations were not true.82 JP contends that the Tribunal failed to account for the forensic disadvantage she faced in seeking to disprove such distant historical allegations, including the absence of contemporaneous witnesses, uncorroborated evidence and there being no verdict following the criminal trial.83 89 Second, JP submits that the evidence of a neighbour, an independent witness called at the Tribunal hearing, was not accorded appropriate weight. The neighbour, who JP says had close and regular contact with the family over many years, gave evidence that he never observed any signs of abuse, and that his daughter, who attended school with JP’s stepson, had told the neighbour that she had not seen any evidence of abuse.84 JP contends this is consistent with the evidence of other family members, including the stepson’s father, brother, and mother, none of whom reported witnessing any harm. JP contends that the Tribunal erroneously discounted this evidence on the mistaken assumption that a neighbour would not have been in a position to observe relevant conduct, notwithstanding the stepson’s own account that some alleged incidents occurred outside and were visible from the neighbour’s property.85 JP also submits that if the neighbour’s assertion in regard to his daughter’s observations was in question, 80 SACAT Transcript at 130; JP’s Written Submissions, FDN 5, at 23.3. 81 Grounds of Appeal, FDN 1. 82 JP’s Written Submissions, FDN 5, at 21. 83 JP’s Written Submissions, FDN 5, at 21.1. 84 SACAT Transcript at 59. 85 JP’s Written Submissions, FDN 5, at 21.2. -- 24 of 37 -- [2026] SASC 32 Stanley J 23 before determining that evidence lacked cogency, the Tribunal had the power to obtain evidence directly from the daughter.86 90 Third, JP submits the Tribunal improperly relied on evidence concerning an alleged incident in which JP was said to have cut her stepson’s fingers with a serrated knife, leaving scars.87 JP contends that this aspect of the evidence was not corroborated and was contradicted by the stepson’s father, who recalled only a minor injury to the top of the hand beneath the knuckles.88 It is submitted that the Tribunal failed to critically evaluate this inconsistency or consider competing hypotheses supportive of JP’s account.89 91 Fourth, JP contends that the Tribunal failed to give adequate consideration to the context in which the allegations arose, namely, within the setting of familial discipline in the 1980s, and to the later emergence of those allegations following a family dispute in 2018 (the Family Dispute). I will come back to this shortly. JP submits that the Tribunal erred in assuming that conduct alleged to have occurred in a private familial environment could be directly transposed into an assessment of risk to the broader community and that the assessable information does not suggest any direct risk outside of a familial context, noting that any such risk is also rejected by JP. 92 As to the family dispute, JP submits that the Tribunal failed to consider the question of JP’s stepson’s motive given the circumstances in which the allegations were made, including the existence of the family dispute, and that normal family relations continued until that dispute arose. JP submits that this omission led to an unbalanced and contextually incomplete evaluation of risk, particularly where there were photos in evidence before the Tribunal of JP with the grandchildren for years, up until the commencement of the family dispute.90 The Senior Member rejected this submission finding no corroborative evidence of JP’s assertions.91 93 The Department contends that it was correct for the Senior Member to make the findings she did regarding the neighbour’s evidence, including the limits of that evidence. Further the Department submits that importantly, the Senior Member had the advantage of hearing the neighbour give evidence, via telephone, and as a result this Court ought to exercise appellate restraint with respect to the Senior Member’s findings regarding the neighbour’s evidence. 94 The Department also submits that it was correct for the Senior Member to be reasonably satisfied, notwithstanding JP’s denials in the criminal trial, that she cut her stepson’s hand with a knife, leaving a scar or scars. The Senior Member had available to her the transcript of the criminal trial to support this finding. While the 86 JP’s Written Submissions, FDN 5, at 22.5. 87 Order of the Senior Member at [34(d)], [43(e)]. 88 JP’s Written Submissions, FDN 5, at 23.2. 89 SACAT Transcript 59. 90 AB, Volume 3. 91 Order of the Senior Member at [38]; JP’s Written Submissions, FDN 5, at 24.7 and 24.8. -- 25 of 37 -- [2026] SASC 32 Stanley J 24 Senior Member’s reasons do not specifically reference all competing evidence given at the criminal trial on this topic, it is implicit in the Senior Member’s reasons that she gave all evidence due regard. This is reflected in the minimal weight attributed by the Senior Member to this allegation, so as to make “due accommodation for the possibility that it did not occur”.92 The Department notes JP’s concession in this regard in oral submissions before this Court on 17 May 2025.93 95 JP submits that the 1980s historical allegations were unsupported by any independent or corroborative evidence and rested entirely on her stepson’s assertions made almost 38 years after the events were alleged to have occurred. This submission overlooks that this evidence was given in the course of a criminal trial, subjected to cross-examination and while uncorroborated, it was tested. There being no verdict following the criminal trial does not stand in the way of this evidence being “assessable” or “relevant” for the purposes of the risk assessments.94 96 The whole of the evidence, taken at its highest, strongly supports a finding that JP was abusing her stepson for a period of six years in the 1980s. Taken at its lowest, it evidences JP adopting strict and unusual disciplinary methods. While I accept that unusual disciplinary methods may not always be considered abusive, in the circumstances, I do not consider it necessary to reach that conclusion. A characterisation of conduct is not required to establish a risk. 97 The findings made by the Senior Member impugned on Ground 1 were open and correct. However, it was not necessary that the findings made by the Senior Member were correct. What the Senior Member had to be satisfied about was whether a person poses an unacceptable risk, or risk of harm. It is that ultimate finding rather than intermediate findings which is necessary. 98 Ground 1 is not made out. Ground two 99 Ground 2 complains that the Senior Member relied on the reasons of the President of the Tribunal in Marshall.95 In order to understand the complaint made by JP it is necessary to have regard to the procedural history of the matter. 100 Marshall was delivered after final submissions were made by the parties before SACAT. JP alleges a denial of procedural fairness. JP submits the parties were not put on notice that the Tribunal intended to rely on Marshall, and as a result were not provided the opportunity to make submissions or adduce further 92 Order of the Senior Member at [43(e)]. 93 Appeal Transcript, 17 May 2025 at 27.30-28.1-3. 94 Child Safety (Prohibited Persons) Act 2016 (SA) s 8(2)(c). 95 Marshall v Department of Human Services – Central Assessment Unit [2023] SACAT 83. -- 26 of 37 -- [2026] SASC 32 Stanley J 25 evidence. As a result, JP, and the Department were deprived of the opportunity to address SACAT’s reliance on Marshall. 101 On appeal to this Court, the parties made submissions assuming the correctness of the decision of the primary judge in GM.96 The submissions alleged errors of the kind identified in House v The King. JP also submits that, while the Tribunal applied some of the principles from Marshall, concerning the two-staged process, other factors underpinning the ultimate decision, including the weight to be given to uncorroborated past events and the need to assess contrary information, were not considered by the Tribunal. JP submits that while Marshall is similar to this case, there are distinguishing features in that the applicant in Marshall had prior criminal convictions, where JP does not. Accordingly ground 2 is, in substance, a challenge to the weight attributed to the evidence. 102 The Department, prior to the judgment of the Court of Appeal in GM, put the submission that the challenge to the weight attributed to the evidence does not disclose a valid ground of appeal. A complaint about the weight given by a decision maker to a particular matter cannot establish a process error. However, the Department also submits that while JP challenged the weight the Tribunal gave to the evidence, JP did not challenge the application of the legal principles in Marshall.97 103 As I have said, following the Court of Appeal’s judgment in GM, on an appeal of this kind, an appellant must satisfy the correctness test. Questions of weight are not discretionary, but do involve evaluative judgments which must be decided in accordance with the correctness test. 104 I consider that the Senior Member’s approach to the weighing and assessment of the evidence was dictated by the two-staged process identified in Marshall.98 The complaints of the Senior Member’s approach to assessing the evidence is better addressed in the other grounds of appeal. 105 JP submits that the Tribunal appears to have criticised the failure of the parties to make submissions in relation to Marshall, and that procedural fairness required that the parties be afforded an opportunity to make submissions on its relevance and application before it was relied upon.99 106 Contrary to that submission, I consider the Tribunal was not critical of the parties for not making submissions in relation to Marshall. In fact, the Senior Member expressly acknowledged that Marshall “was handed down after these matters were heard and accordingly the parties did not address the Marshall decision in their submissions”. In referring to Marshall, the Senior Member said:100 96 GM v Department of Human Services [2024] SASC 23. 97 The Departments Written Submissions, FDN 10, at 73-75. 98 Paragraph 80 of these reasons. 99 JP’s Written Submissions, FDN 5, at 31-35. 100 Order of the Senior Member at 9. -- 27 of 37 -- [2026] SASC 32 Stanley J 26 The Marshall decision makes it clear in paragraphs [69-71] that where there are unproven allegations they are to be given less weight than matters which are proven or conceded. Further, where there are unproven allegations, the task is to ascertain how likely or unlikely the alleged event is to have occurred, before assessing other matters such as how long ago it occurred, whether it involved children and other criteria described in the tables contained in the Working with Children Check Guidelines and the NDIS Worker Check Guidelines. The standard of proof in matters under the CSPP Act is the statutory standard of reasonable satisfaction: CIT v Dept of Human Services [2023] SACAT 8 at [131]. The same standard ought to be applied in matters under the DI Act. 107 In the end, JP has not been denied procedural fairness. It was open to JP to make whatever submission she wished before me in relation to the Tribunal’s approach in applying Marshall, including an application to adduce further evidence. In any event, Marshall did not alter the approach previously adopted in GJC v Department of Human Services,101 a decision relied upon by JP before the Tribunal. 108 I am not satisfied that the loss of the opportunity to make submissions on the decision in Marshall deprived JP of the possibility of a successful outcome. It was not a material error. 109 Ground 2 is not made out. Ground Three 110 JP contends that the Tribunal erred in finding that she made admissions which amounted to abuse. She submits that no such admissions were made, and that the Tribunal incorrectly treated explanations of conduct as admissions of abusive behaviour. JP submits her statements were taken out of context and could not properly be elevated so as to assume the significance attributed to them by the Tribunal. JP submits the suggestion that she has admitted abusive or inappropriate discipline of a child is incorrect. 111 The alleged “admissions” relied upon by the Tribunal included the admission of conduct causing restraint, the admission of conduct causing humiliation and the admission of conduct including yelling, smacking and hitting her stepson. Although JP admitted certain conduct, she maintained that the allegations lack independent corroboration and should not be relied upon in an assessment of risk.102 112 JP’s position is that these accounts reflect the disciplinary practices she employed at the time, which she understood to be acceptable and appropriate within the norms of that period. They were not, properly understood, admissions of abuse or improper conduct.103 113 JP submits that her evidence, as outlined above, acknowledged certain acts performed in the course of caring for children within her family, but denied that 101 [2020] SACAT 38. 102 JP’s Written Submissions, FDN 5, at 21.3. 103 JP’s Written Submissions, FDN 5, at 53.1. -- 28 of 37 -- [2026] SASC 32 Stanley J 27 those acts carried any improper or abusive intent. She contends that there is a clear distinction between admitting to the physical conduct itself and admitting to any accompanying male fides. JP maintains that, when understood in context, her explanations demonstrated a genuine belief that her conduct fell within the accepted bounds of parental discipline at the time. I am concerned by this submission in the context of this application. I will return to this.104 114 In response, the Department submits that ground three is misconceived insofar as it refers to “admissions made by JP to abuse,” noting that the Tribunal’s reasons did not characterise any admissions as constituting “abuse”. Rather, the Department contends that what the Senior Member correctly found was that JP only admitted certain conduct.105 115 The Department also submits that the evidence available to the Tribunal to support these findings included JP’s own statements during the Tribunal hearing and in character references tendered by her. Accordingly, the Senior Member’s attribution of weight to this evidence was appropriate, and it was open to the Senior Member to make a finding of fact adverse to JP.106 116 JP’s attempt to distinguish between the admitted conduct and any accompanying male fides is misconceived. JP’s subjective belief that her actions fell within acceptable standards of discipline at the time is irrelevant to the risk assessment task. On the contrary, the Department submits that this lack of insight underscores the correctness of the Tribunal’s finding that JP continues to pose an unacceptable risk, or a risk of harm. 117 My concern is JP’s continued view that her conduct was justified or acceptable if it is considered through an historical lens given the standards of the time. This raises questions as to her insight and understanding of the potential impact of her actions, an issue directly relevant to the correctness of the Tribunal’s assessment of ongoing risk. In her further submissions, JP submits the assessment of risk is not discretionary and should be assessed by reference to objective community standards at the time of the assessment.107 JP maintains the Tribunal’s decisions were value-laden and failed to reflect these changes in community attitudes toward intra-familial discipline. I do not accept this submission. I consider that the Senior Member was correct in her approach and her findings:108 The Tribunal has formed the view that the applicant poses a risk of harm to people with disability because of her admitted use of a restraint on a child, because of her admitted administration of a humiliating and demeaning public punishment intended to shame an adolescent girl, and because of her admitted use of physical punishments on her former stepson. The factor that the treatment of her former stepson occurred largely when the applicant was aged under 25 (NDIS Worker Check Guidelines Table 2) operates to 104 JP’s Written Submissions, FDN 5, at 39. 105 The Department’s Written Submissions, FDN 10 at 76. 106 Order of the Senior Member at [49]. 107 JP’s Further Written Submissions, FDN 15, at 10. 108 Order of the Senior Member at [49]. -- 29 of 37 -- [2026] SASC 32 Stanley J 28 decrease the risk but that is offset by the instances some 30 years later of the applicant’s more recent admitted conduct. The Tribunal is satisfied that the use of restraint and humiliating punishment can have a detrimental effect on a person’s psychological or emotional wellbeing contrary to section 18M of the DI Act. Further, the use of physical punishments can have a detrimental effect on a person’s physical wellbeing contrary to the same section. Consequently, the applicant’s admitted behaviour constitutes a risk of harm to people with disability. It does not matter that there is no evidence of the applicant detrimentally affecting the physical or psychological well-being of a specific person with disability. The definition in the DI Act of ‘disability’ focuses on ‘barriers [that] may hinder the person's full and effective participation in society on an equal basis with others’. Children by virtue of their young age and lack of majority do not participate in society on an equal basis with adults. The fact that the applicant has admitted applying restraint, humiliation and physical punishment to children is sufficient basis for the Tribunal to find that the applicant poses a risk of harm to people with disability. Accordingly, the Tribunal is satisfied that the decision reached by the respondent on 7 July 2023 was the correct and preferable decision. 118 The Tribunal properly identified the admitted conduct, evaluated it in light of the submissions of JP, and reached conclusions that were open and correct. JP’s attempts to recharacterise her actions as historically acceptable disciplinary practices do not displace the Tribunal’s findings as to present risk. Further, the Senior Member was correct in her consideration of JP’s submission regarding the familial nature of the assessable information when she said:109 The applicant’s submissions to the Tribunal set much store in the familial nature of the assessable information relied on by the respondent. This was relied on in 2 ways – firstly, as a misguided attempt to minimise the seriousness of allegations of violence or extreme discipline as they concerned family members rather than involving strangers, and secondly, to assert or at least to imply that the allegations only arose as a result of collusion between family members in the context of a financial dispute or disputes between the applicant and one or more of her sons and her former stepson. I do not accept that any allegations are legitimately minimised simply because they involve family members rather than strangers. Violence is no more acceptable within a family than outside of it. 119 I consider this to be the correct approach. 120 While community standards surrounding child discipline may indeed evolve over time, the Tribunal’s task, properly undertaken, is to assess risk in the present context, by reference to current societal expectations and the protective objects of the legislation. The Senior Member did so carefully. This is clear from the treatment of the category three evidence where the Senior Member found that she was not able to say that she was reasonably satisfied that those incidents occurred as alleged. The physical conduct described by JP in itself is admitted conduct which supports the finding that the first stage of the Marshall process had been met, in that the Senior Member was reasonably satisfied that alleged events 109 Order of the Senior Member at [38]-[39]. -- 30 of 37 -- [2026] SASC 32 Stanley J 29 occurred, which led the Tribunal to form the view that JP poses an unacceptable risk to children and a risk of harm to people with disability. 121 I agree with the Senior Member’s findings that:110 In relation to the NDIS worker check, it is irrelevant that there is no evidence of the applicant seeking to correct an aged person’s behaviour in a like manner. The issue is whether the applicant poses a risk of harm to people with disability. There is no requirement in the DI Act that the harm needs to be physical harm. The DI Act defines harm in section 18M as including ‘any detrimental effect on a person's physical, psychological, emotional or financial wellbeing’. There ought to be no place in aged care work for persons who are prepared to physically restrain others for their own convenience and/or without full consideration of alternative options, even if the restraint is ‘not tight’. 122 There is no place in aged care, disability care, or working with children, for persons who are prepared to physically restrain, embarrass, yell at, or hit those in their care, even if the conduct is for disciplinary or behavioural purposes. These settings are naturally of a high risk to those who are in need of protection. Preventing that risk from eventuating is the purpose of the legislation. There is an almost unavoidable power imbalance between carers and those in need of care. Restraint, humiliation, demeaning and physical punishments have never, and will not, constitute appropriate conduct in these circumstances. 123 On that basis, I find no error in the Tribunal’s treatment of the evidence, its attribution of weight, or its overall conclusion that JP’s admitted conduct demonstrates an unacceptable risk, and a risk of harm. Ground 3 is not made out. Ground four 124 The fourth ground of appeal complains that the Tribunal made findings mischaracterising JP’s dealings with children as acts of abuse where the findings do not take into account acceptable standards of discipline at the relevant time. JP submits that the Tribunal’s finding that there were alternate means of discipline available should not have and does not lead to a finding that the acts of JP must be abuse because they fall outside an ideal contemporary standard practice of discipline. 125 In support of this ground, JP argues that the law does not require perfection in parenting. The law appreciates that parents and those in loco parentis are confronted with difficult situations in which a range of responses are accepted as within bounds. JP contends that to retrospectively apply utopian parental standards to historical allegations amounts to an error that operates unfairly against her. 126 JP relies on various authorities to support her submission that the common law has long recognised the importance of permitting robust interaction between parents and children, without attracting the serious consequence of censure from the courts. This is an acknowledgement that the intentional application of force 110 Order of the Senior Member at [47]. -- 31 of 37 -- [2026] SASC 32 Stanley J 30 for correction or chastisement of a child, in certain circumstances, is accepted within the community as a normal incident of familial interaction. 127 I do not consider it necessary to discuss those authorities in any detail. While such principles may carry weight in criminal, or other, proceedings, they do not assist in determining the issue before this Court on this appeal. This is not a criminal matter. The Senior Member did not engage in an analysis of parenting standards or the threshold at which parental discipline spills into a criminal act. The only issue before the Senior Member, and the issue the Senior Member addressed herself to, was whether JP poses a risk of harm to people with disability and an unacceptable risk to children. 128 The Senior Member’s characterisation of certain findings of fact as “abuse” is not material to the use to which the Senior Member put that evidence, or the weight attributed to it. 129 I accept the Department’s submission that on the weight of the evidence, particularly in light of the objects and principles of the Child Safety Act and Disability Inclusion Act, and the lack of evidence adduced by JP as to any change to her attitude, the Senior Member’s finding that JP poses an unacceptable risk to children and a risk of harm to people with disabilities is correct. 130 Ground 4 is not made out. Ground five 131 Ground five complains that the Tribunal erred in its approach to an assessment of the character evidence tendered by JP and complains of the unfounded drawing of an adverse inference against JP based on that material. Ground five is essentially a challenge to the weight the Senior Member afforded to the references and statements provided by JP to the Tribunal from at least nine personal and professional referees speaking of her good character, honesty, and integrity (character statements). All of this evidence was received without objection. None of the contents were challenged by the Department.111 132 In assessing the character statements, the Senior Member was critical of the form of many of those statements and afforded less weight to those statements which were illegible, or which did not disclose dates or signatures. In some cases, there are indications that the deponent was not aware of the matters the subject of the proceedings; those statements were in the nature of employment references.112 133 JP now complains of the Tribunal’s criticism and says these character statements had names and contact details and should some elaboration have been required by the Tribunal before findings were made as to their utility or adverse inferences drawn, the Tribunal could have informed itself by requesting further 111 Order of the Senior Member at [20]-[25]. 112 AB, Volume 6, 41-47. -- 32 of 37 -- [2026] SASC 32 Stanley J 31 detail if there were doubts or explanations required. The Department submits that the Tribunal’s criticisms of the statements and letters from associates of JP upon which she relied were not technical or trivial in nature, but went to the legibility of the documents which fundamentally affects the Tribunal’s ability to understand the contents, let alone make findings on their authenticity and reliability. 134 JP submits that the finding discounting the probative value of this material is contrary to ss 8 (1)(f) and 39(1)(b) of the SACAT Act which requires the Tribunal to act with as little formality as possible and provides that it is not bound by the rules of evidence. I do not accept this submission. While s 39(1)(b) provides that the Tribunal is not bound by the rules of evidence, it does not follow that the rules of evidence are to be ignored as if the principles underpinning them are irrelevant. Even if not formally bound by the rules of evidence, a decision maker is not absolved from an obligation to avoid making findings upon material which does not have any rational probative force.113 135 The Department submits that the weight the Senior Member placed on JP’s character statements was determined by many factors, including the content and legibility of those documents. It was not a matter on which the Senior Member was required to put JP on notice nor invite further evidence. This is particularly so in circumstances where JP was, at all times, represented by counsel. It was a matter for JP how she put her evidence; and what she considered relevant and probative in regard to the matters in issue before the Tribunal. JP also complains that the Tribunal has erroneously inferred that the absence of a hearsay denial by her to the authors of the references permits an adverse inference to be drawn that “the applicant did not deny to the deponents that the incidents occurred”. She says the absence of a denial to a character witness could never provide a basis for the conclusion that she did not deny the incidents occurred. JP submits it is implicit in the provision of such a reference that the deponents are denying the allegations and relies on the Court of Appeal’s decision in GM where the Court said: This was not merely a matter of the Tribunal not disclosing its deliberations. The Tribunal did not put the appellant on notice of an issue that it determined adversely to the appellant. As to whether the appellant’s answer, which the single judge refused to admit into evidence, could have influenced the result, the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, published shortly after the single judge delivered her judgment, said the following on the topic of materiality of error: What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of 113 GM v Department of Human Services [2025] SASCA 68 at [176]. -- 33 of 37 -- [2026] SASC 32 Stanley J 32 such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example. 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. [citations omitted]. 136 I do not accept this submission. It is not the case that the Senior Member refused to admit evidence. There was no error in the Senior Member relying upon the evidence in references in which the deponent expressed their belief that the incidents of restraint and the child being made to wear a nappy had occurred. It was open to the Senior Member to make a finding that these statements constituted implied admissions of the identified conduct, having regard to the totality of the evidence. 137 JP, in her submissions, relied on a passage from Attwood v The Queen114 where the High Court cited Cockburn CJ in R. v. Rowton,115 as follows: The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried [citations omitted]. 138 While I accept that evidence of good character may be relevant to assessing the likelihood of guilt, the difficulty JP faces is that she admitted certain conduct, and that conduct was properly taken into account in the assessment of risk. 139 The weight the Senior Member afforded to JP’s character statements was open and correct. 140 Ground 5 is not made out. Workplace Context 141 JP, in her further submissions, says that the determination of an “unacceptable risk” must be formulated by the workplace environment. JP submits that she has no intention to work in an industry providing services to children, however her plans for employment within the disability and aged care sector require a WWCC. JP submits the statutory test requires first, satisfaction that JP poses an unacceptable risk to children, and second, consideration of the risk 114 (1960) 102 CLR 353 at 359. 115 169 E.R. 1497; (1865) Le. & Ca. 520; [1865] 1 WLUK 112. -- 34 of 37 -- [2026] SASC 32 Stanley J 33 eventuating, and whether the potential consequences to children would be serious. Further, she submits the test could not be met on the basis of the evidence of the assessable information before the Tribunal. 142 JP also submits the concept of employment is fundamental to the assessment risk and should be the primary consideration when carrying out the WWCC assessment. She submits that allegations of historical intra-familial abuse are objectively unlikely and speculative when assessing a relevant risk in a workplace, and that this matter is to be contrasted with other authorities considering an unacceptable risk in the context of a WWCC where there was a demonstrated general prurient interest, or an ongoing dysfunctional or hazardous lifestyle. 143 JP submits the Senior Member incorrectly formulated how parental chastisement historically can amount to a current risk of serious consequences, suggesting that if one was to imagine workplace scenarios, how a person’s suggested temper might affect their interactions with others is fanciful, far-fetched, theoretical and unprincipled when the current legal test is applied. I do not understand this submission. 144 In any event, the Department opposes the submission put by JP concerning the issue of a “workplace context”. The Department contends that it was not permissible for JP to mount this argument which required leave of the Court as it did not arise out of the decision of the Court of Appeal in GM. As I have explained, following that decision the Court invited the parties to put such further submissions in relation to the decision in GM. The Department submits that it was open to JP to raise the workplace context submission in the first instance. Accordingly, by reason of her failure to do so, these submissions fall outside the matters on which the further submissions were permitted by the Court. The Department submits that they ought not be received. I agree. 145 Furthermore, I do not consider there is any merit JP’s submission concerning workplace context. To the extent that JP submits that she does not intend to work with children in the future, that is not a relevant consideration. The issue on appeal in relation to the WWCC is whether the decision to prohibit her was correct. Having applied for a WWCC, the relevant question for the CAU is not whether that applicant wishes to work with children, but whether he or she should be granted clearance to do so, or prohibited from doing so. It would be inappropriate for the CAU to treat intention as a relevant factor, given the scheme’s protective purpose, and as such, I do not consider it appropriate to consider this submission when determining whether or not the Tribunal was correct in affirming the decisions of the CAU. Further evidence on appeal 146 The appeal books filed by JP in this matter included further evidence, being the material contained in volume 5. The Department opposed the court receiving -- 35 of 37 -- [2026] SASC 32 Stanley J 34 this evidence. In the circumstances the Court did not admit it.116 Notwithstanding the refusal to admit further evidence, the Department acknowledged that JP may have advanced her submissions on that application to tender further material in a different manner had the parties been proceeding on the correctness standard on 17 May 2025. However, the Department’s submission was even where JP sought to re-agitate that application, the Department maintained its objection to the Court receiving the further evidence in volume 5. 147 The principles relevant to the application to admit further evidence on appeal were analysed in the judgment of Doyle JA, with which I agreed,117 in Burke v Public Trustee for the State of South Australia118 as follows:119 … the Court has a broad discretion under r 218.17(1)(c) of the Uniform Civil Rules 2020 (SA) to receive further evidence on a question of fact that arises on an appeal. The discretion is not circumscribed by the common law principles governing the reception of “fresh evidence” on appeal, although similar considerations apply. In particular, it will generally be relevant to consider: • whether the evidence was available, or could with reasonable diligence have been obtained, for use at the hearing below; • whether the evidence is such that it would have had an important influence on the decision below. While it need not necessarily be decisive, it must be more than merely relevant or useful; • the likely practical impact of receiving the evidence, including whether it is controversial or contested, and if so likely to require cross-examination, further responding evidence and/or that the matter be remitted for rehearing; and • the public interest in the finality of litigation. The relevance of the last two considerations, and in particular the public interest in finality, was emphasised by the Full Court in both Chakravarti v Advertiser Newspapers Ltd and Collex Waste Management Services Pty Ltd v The Corporation of the City of Enfield (No 2). [citations omitted]. 148 While JP’s further submissions seek to re-agitate her earlier application, no new or different submissions were advanced in support of it. In the absence of such submissions, and given the public interest in finality, there is no basis to depart from the prior decision not to receive further evidence on this appeal. Disposition of the Appeal 149 I am satisfied that the decisions of the Tribunal are correct. 116 Appeal Transcript, 17 May 2024 at 29. 117 Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [480]. 118 [2022] SASCA 64. 119 Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [455]-[456]. -- 36 of 37 -- [2026] SASC 32 Stanley J 35 150 I would grant leave to appeal but dismiss the appeal. -- 37 of 37 --