GM v DEPARTMENT OF HUMAN SERVICES [2024] SASC 23

On Appeal from SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (TRIBUNAL MEMBER WARD) 2020/SA002238 Appellant: GM Counsel: MR A COLLETT - Solicitor: JOHNSTON WITHERS Respondent: DEPARTMENT OF HUMAN SERVICES Counsel: MR S RANIERI - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 14/08/2023 File No/s: CIV-23-005567 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. GM v DEPARTMENT OF HUMAN SERVICES [2024] SASC 23 Judgment of the Honourable Justice McIntyre 16 February 2024 ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL APPEAL AND NEW TRIAL – PROCEDURE – SOUTH AUSTRALIA – EXTENSION OF TIME FOR APPEAL APPEAL AND NEW TRIAL – PROCEDURE – SOUTH AUSTRALIA – POWERS OF THE COURT – FURTHER EVIDENCE This is an application for permission to appeal a decision by a Member of the South Australian Civil and Administrative Appeal Tribunal (‘SACAT’) to affirm a decision to issue a prohibition notice to the appellant under s 32 of the Child Safety (Prohibited Persons) Act 2016 (SA) (‘CSPP Act’). The effect of the prohibition notice is that the appellant cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children. The appellant seeks an extension of time as the appeal was not instituted within 21 days of the decision and further seeks leave to appeal. The appellant appeals on 17 grounds ranging from errors of law, legally inadequate reasons, that the Tribunal’s findings contradicted the evidence and that the decision reached was not the correct and preferable decision. The respondent does not assert any prejudice arising from the extension of time, however, does oppose the application for leave to appeal, contending that granting leave would undermine the legislative intent of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) and the CSPP Act insofar as that proceedings concerning working with children checks should be dealt with by SACAT as the specialist Tribunal. -- 1 of 27 -- Held: 1. Extension of time to file the appeal granted. 2. Leave to appeal granted. 3. Appeal dismissed. Child Safety (Prohibited Persons) Act 2016 (SA) ss 3, 4, 11, 21, 25, 26, 32, 43; South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) ss 34, 70, 71; Criminal Code Act 1995 (Cth) s 474.19; Criminal Law Consolidation Act 1935 (SA) s 63A; Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 156, 196, referred to. Varrichio v Wentzel (2016) 125 SASR 191; Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1; Pix v South Australian Housing Trust (2016) 125 SASR 10; Zollo v The Commisoner of Consumer Affairs [2023] SASC 72; City of Enfield v Development Assessment Commission & Ors [2000] HCA 5; Schinckel v Registrar of Firearms [2020] SASC 236; Aldridge v The Registrar of Firearms [2022] SASC 5; House v The King (1936) 55 CLR 499; Lee v Lee [2019] HCA 28; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [30]; Re AKS [2016] SACAT 19 ; Maroulis v Psychology Board of Australia [2020] SASC 16; Shah (A pseudonym) v Medical Board of Australia [2022] SASC 140; Norbis v Norbis (1986) 65 ALR 12; Fox v Percy (2003) 214 CLR 118; Draoui v Le [2021] SASCA 33; GJC v Department of Human Services [2020] SACAT 38; M v M (1988) 166 CLR 69; BKE v Office of the Children’s Guardian [2015] NSWSC 523; Tilley v Children’s Guardian [2017] NSWCA 174; CXZ v Children’s Guardian [2020] NSWCA 338; R v Padberg (2010) 107 SASR 386; R v Turvey (2017) 127 SASR 425; R v Cecchin (2017) SASCFC 109; Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594; BZY v Department for Human Services [2021] SACAT 1; VKS v Department of Human Services [2021] SACAT 89; HNU v Department of Human Services [2021] SACAT 92; OUG v Department of Human Services [2021] SACAT 3; Towle v Registrar of Motor Vehicles [2023] SASC 92; Minister for Primary Industries and Regional Development v Scali [2024] SASC 4, considered. -- 2 of 27 -- GM v DEPARTMENT OF HUMAN SERVICES [2024] SASC 23 Single Judge Appeal: Civil 1 McINTYRE J: This is an application for permission to appeal under s 71 of the South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) (‘SACAT Act’) against a decision by a Member of the South Australian Civil and Administrative Appeal Tribunal (‘SACAT’) to affirm a decision to issue a prohibition notice to the appellant under s 32 of the Child Safety (Prohibited Persons) Act 2016 (‘CSPP Act’). The effect of the prohibition notice is that the appellant cannot undertake any one of the broad range of activities that the CSPP Act regards as working with children. 2 For the reasons that follow I grant permission to appeal but dismiss the appeal. Background 3 The appellant is currently 53 years old, married and the father of two children. On 6 February 2010, whilst the appellant and his family were on holiday, the Australian Federal Police (‘AFP’) executed a search warrant obtained for the appellant’s family home. The appellant was notified of the AFP’s attendance at his home by a neighbour. He and his wife returned home from their holiday that day. 4 The basis for the search warrant arose out of an AFP operation in which the AFP had arrested a person who was in possession of a photograph of one of the appellant’s children. The child was partially naked. The person under arrest told the AFP that he had discussions with the appellant about using their children to make child exploitation material. 5 During the course of the AFP’s execution of the search warrant, the appellant was interviewed, and his computers were searched and seized. The AFP found a number of photographs and videos of naked and semi naked children on the appellant’s devices. The appellant was taken to a police station and was charged with using a carriage service to access child pornography material contrary to s 474.19 of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) and possession of child pornography contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). I note in this context that the terminology for such offences has changed. The Criminal Code now refers to ‘child abuse material’ and the CLCA now refers to child exploitation material (‘CEM’). For consistency I will refer to the material as CEM. 6 The Criminal Code charge alleged that the appellant, in 2009, downloaded 713 photographs and one video of adults and children (both prepubescent and pubescent) in nudist settings (‘the eMule file’). The CLCA charge related to the appellant’s possession of a number of videos and/or photographs taken by himself, -- 3 of 27 -- [2024] SASC 23 McIntyre J 2 his wife and other family members. The photographs were of his children naked or partially naked and other children. The appellant had uploaded these photographs and around 30,000 other family photographs to Flickr, a photograph storage and/or sharing website. 7 On 6 October 2010 the Commonwealth Director of Public Prosecutions (‘CDPP’) concluded that: • the videos and photographs did not meet the legal tests for child pornography material under the Criminal Code or CEM under the CLCA; • there was no evidence that the appellant had searched for such material; • there was no evidence that the appellant had participated in discussions on internet platforms about CEM and related topics; • there was no evidence that the appellant had transmitted CEM to, or received CEM from, other individuals; and • there was no evidence that the appellant possessed unequivocal CEM material. 8 Accordingly, on 8 October 2010, all charges against the appellant were withdrawn. 9 The appellant and his wife were foster carers for children between 1996 and 2010. On 8 February 2012 the appellant was investigated by the Special Investigations Unit (subsequently known as Care Concern Investigations Unit (‘CCIU’)) of the Department for Education and Child Development. On 4 October 2012 the CCIU made a number of adverse findings against the appellant, finding that: • the appellant had uploaded to the internet photographs of two children under guardianship orders without authorisation and knowing that photographs of foster children are not to be made publicly available; and • the appellant had a level of interest in young males of a sexual nature incompatible with standards for a foster carer. 10 The appellant and his wife were deregistered as foster carers on 6 August 2013. This decision was upheld in an internal review on 14 November 2013. 11 On 9 June 2015 the appellant was assessed by the screening unit of the Department for Communities and Social Inclusion as not suitable to work or volunteer with children pursuant to the Children’s Protection Regulations 2010. -- 4 of 27 -- [2024] SASC 23 McIntyre J 3 12 On 16 July 2019, the appellant applied under the CSPP Act for a Working with Children Check (‘WWCC’). He wished to volunteer as a kinship carer and cub scout leader. On 10 July 2020, the Central Assessment Unit (‘CAU’) determined that the appellant was a prohibited person and issued him with a prohibition notice under s 32 of CSPP Act. Legislative Scheme 13 The primary object of the CSPP Act is to minimise the risk to children posed by people who work with them.1 The paramount consideration in the administration, operation, and enforcement of the CSPP Act must always be the best interests of children, having regard to their safety and protection.2 14 WWCC are to be conducted by the CAU3 and require consideration of ‘assessable information’ relating to an appellant against prescribed risk assessment criteria to determine whether the person poses an unacceptable risk to children.4 The Minister is permitted to publish guidelines for the purpose of the CSPP Act under s 4(1). Section 8 of the CSPP Act sets out broad categories of assessable information. Relevantly, for present purposes, assessable information includes:5 • information which relates to offences with which the person has been charged regardless of the outcome of the charges; • information relating to notifications made under child protection legislation; • information that relates to the cancellation of an approval of a foster parent; and • information provided by the person for the purpose of a WWCC. 15 Some categories of person are presumed to pose an unacceptable risk to children such that the CAU does not need to consider and assess information in relation to them.6 The appellant is not in any of these categories. 16 The CAU must have regard to, and seek to give effect to, the objects and principles of the CSPP Act.7 The CAU is not required to afford procedural fairness except as required under the Act.8 The CAU is not bound by the rules of evidence; it may adopt any findings, decision or judgment of a court or other tribunal and may otherwise inform itself as it thinks fit.9 Upon finding that a person poses an 1 Child Safety (Prohibited Persons) Act 2016 (SA) s 3(1) (‘CSPP Act’). 2 Ibid s 26(1). 3 Ibid s 25(1). 4 Ibid s 26(1). 5 Ibid s 8. 6 Ibid s 26A. 7 Ibid s 21(2). 8 Ibid s 11. 9 Ibid s 26(3). -- 5 of 27 -- [2024] SASC 23 McIntyre J 4 unacceptable risk to children, the CAU decision maker must issue a prohibition notice, prohibiting the person from working with children.10 This is, of course, the situation with the appellant. The Review Proceedings 17 On 23 July 2020, the appellant commenced review proceedings before SACAT under s 43(2) of the CSPP Act and Part 3 Division 3 of the SACAT Act. On 29 March 2021, SACAT invited the respondent to reconsider the decision under review. On 5 August 2021, Mr Trevor Lovegrove, the then Registrar of the CAU, affirmed the original decision with some minor variations. 18 Mr Lovegrove placed significant adverse weight on the possession and downloading by the appellant of the eMule file and the creation and possession by the appellant of a file containing approximately ten of what Mr Lovegrove described as passwords and/or user logons that led to websites containing multiple images of naked children. 19 Mr Lovegrove noted that the eMule file was on the appellant’s computer with the letters “PTHC” in the filename. Mr Lovegrove considered that this was an acronym for “pre-teen hard core”. He described PTHC as a “commonly used search term to locate CEM” such that the file title “in itself carries an enormous warning…”. 20 Mr Lovegrove considered that the passwords and/or user logins demonstrated that the appellant had accessed those sites at some time. In reaching that conclusion he relied, amongst other things, on what the appellant said to the AFP in his interview. Mr Lovegrove gave no weight to the other photographs and videos located by the AFP describing these as “family photographs.” Mr Lovegrove gave little adverse weight to the withdrawn criminal charges nor to the opinion formed by the CCIU investigation that the appellant had a level of interest in young males of a sexual nature. He did not attach any weight to other potentially adverse matters including: • unproven allegations that the appellant’s ‘second life’ avatar is a ‘pre- pubescent young male who prostitutes himself’; • unproven allegations of an association between the appellant and the person arrested by the AFP; • unproven allegations as to photographs of a foster child’s erect penis being sent by the child to the appellant; • that the appellant failed to inform Scouts SA about the CCIU investigation of him; and 10 Ibid ss 3(4)(b), 26(5) and 32(1). -- 6 of 27 -- [2024] SASC 23 McIntyre J 5 • two child protection notifications made against the appellant in 2019 and 2020 that were closed without investigation. 21 Mr Lovegrove considered and placed weight on the following matters favourable to the appellant: • the appellant has no criminal history; • in 2010 the appellant’s two children and two foster children made no disclosures about him; • the appellant was a foster carer to over 80 children and no complaints have been made against him other than those mentioned above; and • six character references as to the appellant’s positive engagement with children. 22 Ultimately Mr Lovegrove concluded that the appellant posed an unacceptable risk to children. This conclusion was based on the downloading of the eMule file and the list of passwords/logins on his personal mobile telephone which Mr Lovegrove concluded demonstrated that the appellant had accessed locations which contained CEM images and was indicative of a risk that he would do so again. Mr Lovegrove noted the factors favourable to the appellant but nonetheless affirmed the decision saying: I am reasonably satisfied, based on a holistic view of all the assessable information, that the appellant poses an unacceptable risk to children and should that risk eventuate the consequences of harm to children would be serious. The SACAT Decision 23 The review proceedings took place under s 34(1) of the SACAT Act which relevantly provides as follows: 34—Decisions within review jurisdiction (1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction. ………………….. (3) Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing. (4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker. (5) A procedure on a rehearing will include— -- 7 of 27 -- [2024] SASC 23 McIntyre J 6 (a) an examination of the evidence or material before the decision-maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and (b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter. 24 Accordingly, the role of the Senior Member was to reach the correct or preferable decision having regard to, and giving appropriate weight to, Mr Lovegrove’s decision. The SACAT review proceedings took place over four days. The parties tendered 11 exhibits, the Tribunal heard oral evidence from the appellant, his wife and Mr Lovegrove. On 2 February 2023 the Senior Member affirmed the decision under review and published her reasons. 25 The Senior Member said that the appellant gave the impression of a witness who had “thought long and carefully about what he wished to say to the Tribunal and the matter in which he wished to say it” and ultimately found that “I should treat [the appellant’s] evidence with a degree of caution…I [do not] accept [the appellant] as a witness of unequivocal candour and credibility.” 26 Many of the essential facts were not in dispute. The appellant conceded that he downloaded the eMule file, created a list of usernames/logons for a photo storage website called IMGSRC (the ‘IMGSRC list’), and possessed naked images of his child. The appellant did not concede that the IMGSRC list included passwords. The Senior Member did not consider it necessary to resolve that issue for the purpose of her decision given there was no evidence a password was required to access IMGSRC accounts and given the appellant’s evidence on that topic.11 The key dispute related to the conclusions that the Senior Member should draw from the facts and, in particular, whether the Tribunal should draw inferences from the facts to conclude that the appellant had an interest in images of naked children. 27 The appellant gave evidence that the reason he downloaded the eMule file was due to a fleeting interest in nudism and family nudism. His interest arose after a family holiday in Cairns in 2009 during which they attended a beach that was, unbeknownst to the family, a nudist beach. He gave evidence that he never actually opened the file, however the Senior Member noted that this evidence contradicted what he said to the AFP. 28 In relation to the IMGSRC list the appellant gave evidence that this was a list of usernames of Flickr users (where he had previously uploaded photos) who were stealing images and uploading them to the Russian photo sharing site IMGSRC. He became concerned that his photos were being stolen and, accordingly, he made notes of the usernames he suspected were stealing images so that he could monitor them. The appellant denied that he made a list of passwords but gave evidence 11 FDN 7 at 23 [78] – [80]. -- 8 of 27 -- [2024] SASC 23 McIntyre J 7 that he was able to access individual images without a password as they were generally publicly available. The Senior Member referred to the appellant’s interview with the AFP as providing support for the respondent’s contention that the IMGSRC list user accounts contained images of naked children.12 29 The Senior Member was satisfied that the appellant reasonably expected the eMule file would contain images of naked children, as the filename contained the English words “Young Nudists, Family Nudism”. Regarding the IMGSRC list, the Senior Member concluded that regardless of whether the list contained passwords and usernames or just a username, CEM was able to be accessed on IMGSRC. Even if his explanation was accepted, the Senior Member found that there was some force to the submission that appellant would have seen CEM as he was monitoring the accounts. 30 The Senior Member disagreed with Mr Lovegrove’s conclusion concerning the naked photos of the appellant’s children, stating that the materials do not need to reach a standard actionable under criminal law to be relevant for the purposes of a WWCC. In relation to Mr Lovegrove’s comments about the letters “PTHC” in the eMule filename, the Senior Member was not satisfied that the appellant was aware of this acronym. 31 The Senior Member concluded that the eMule file, IMGSRC list, and the possession by the appellant of naked images of one of his children substantiated the view that the appellant poses an unacceptable risk to children. Ultimately, the Senior Member was satisfied that to ensure the adequate protection of children the correct and preferrable decision was to affirm the decision under review. The Current Proceedings 32 The appellant lodged a Notice of Appeal on 19 May 2023 setting out 17 grounds of appeal. 33 An extension of time is required as the appeal was not instituted within 21 days of the decision. The respondent does not assert any prejudice arising from the delay. I grant an extension of time. 34 Section 71 of the SACAT Act provides for appeals from SACAT to the Supreme Court. The appellant requires leave to appeal.13 The respondent opposes the application for leave. 35 The appeal is by way of rehearing.14 The Court may draw inferences of fact from evidence or material that was before SACAT and may, as it thinks fit, allow further evidence or materials to be presented to it.15 The Court may affirm, vary or 12 Ibid at [81]. 13 South Australian Civil and Administrative Appeal Tribunal Act 2013 (SA) s 71(2). 14 Ibid s 71(3a). 15 Ibid s 71(3b). -- 9 of 27 -- [2024] SASC 23 McIntyre J 8 set aside the decision appealed against and, if it thinks fit, may remit the matter back to SACAT with any directions that the Court considers appropriate.16 36 The appellant seeks to tender fresh evidence on the appeal in the form of two affidavits one of the appellant and one of his wife, each sworn on 17 May 2023. I received the affidavits de bene esse as the respondent objects to the tender of fresh evidence on the appeal. The admission of the affidavits is only relevant if leave to appeal is granted. Leave to Appeal 37 The respondent says that leave to appeal should be refused contending that the Court will not routinely grant leave to appeal from SACAT decisions.17 The respondent contends that to grant leave would undermine the legislative intent of the SACAT Act and the CSPP Act that proceedings concerning WWCC’s should be dealt with by a specialist tribunal. The overarching principle is the interests of justice.18 Ordinarily, the Court will only grant leave where an appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.19 38 The respondent says that the appellant had the opportunity to challenge the prohibition notice in the SACAT proceedings. Evidence was heard and tested over four hearing days. Refusing leave to appeal does not afford the appellant any injustice. Further, the respondent contends that the grounds of appeal are not reasonably arguable. 39 The appellant says on the other hand that leave should be granted because the grounds of appeal are reasonably arguable and raise questions of general importance. The subject matter is of sufficient substance to justify consideration by the Court. In particular, the interpretation of s 26(1) of the CSPP Act and the standard of satisfaction in the assessment of the ultimate issue have not been considered by this Court before. Further it is said that the consequences for the appellant of not having the opportunity to have the reasons and order of SACAT reviewed are significant. 40 The appellant further says that SACAT is not a specialist tribunal for the purposes of the CSPP Act, relying upon the High Court decision in City of Enfield20 and in particular the following comments of the plurality:21 The weight to be given to the opinion of the tribunal in a particular case will depend upon the circumstances. These will include such matters in the field in which the tribunal operates, the criteria for appointment of its Members, the materials upon which it acts in 16 Ibid s 71(4). 17 Varrichio v Wentzel (2016) 125 SASR 191 (‘Varrichio’). 18 Jackson v Lepp Investments Pty Ltd (2016) 125 SASR 1 (‘Jackson’); Pix v South Australian Housing Trust (2016) 125 SASR 10 (‘Pix’). 19 Zollo v The Commisoner of Consumer Affairs [2023] SASC 72 at [29] (‘Zollo’). 20 City of Enfield v Development Assessment Commission & Ors [2000] HCA 5 (‘City of Enfield’). 21 Ibid at [47]. -- 10 of 27 -- [2024] SASC 23 McIntyre J 9 exercising its functions and the extent to which decisions are supported by disclosed processes of reasoning. 41 It is said that SACAT operates in many fields reviewing decisions of a range of government activities amongst other things and therefore, is not a specialist tribunal in the sense of those referred to in the authorities relied upon by the respondent. The criteria for appointment of members are not solely, if at all, directed to the issue of child protection. 42 The respondent on the other hand contends that SACAT is a specialist statutory tribunal with expertise in aspects of child protection including determining reviews under the CSPP Act because the legislation plainly sets out Parliament’s intention that SACAT is the specialist body conferred with jurisdiction in relation to review of decisions under that Act. 43 The CSPP commenced operation on 1 July 2019. Prior to that, SACAT was conferred with review powers in relation to child protection matters for children in state care and under guardianship by the Children and Young People (Safety) Act 2017. That legislation commenced incrementally in February and October 2018. It is submitted that the CSPP Act is still in its infancy, and it may be expected that SACAT will develop its expertise over time. 44 I was referred to the judgment of Bleby JA in Schinckel22 in which a similar issue was raised concerning the expertise of SACAT in firearms matters: 23 The Tribunal has had jurisdiction under s 47 of the Act since 1 July 2017. Prior to the present regime, the now-repealed Firearms Act 1977 provided, relevantly, for review of a decision of the Registrar by the Firearms Review Committee, and a right of appeal to the District Court. The Tribunal may not have inherited the same length of experience or degree of specialist knowledge with respect to matters arising under that Act as it has in the fields of residential tenancies and guardianship matters. Nevertheless, it has a specialist role under the Act and it can be taken to be discharging its obligations by reference to the necessary demands of that role, which it has had for three and a half years. I do not discount its ability to develop further specialist knowledge over time. For present purposes, I do not think that any different test arises by reason of this jurisdiction having only a short specialist history; it remains the case that this Court should not substitute a discretionary decision unless the decision of the Tribunal is manifestly unreasonable. [citations omitted] 45 The CSPP Act has been in force in its current form for just over four years. It is my view that Bleby JA’s comments are equally applicable to this matter. I consider that the decision of the High Court in City of Enfield is of limited application to this matter. In that case the Court was dealing with an application for judicial review as opposed to considering an application for leave to appeal. 22 Schinckel v Registrar of Firearms [2020] SASC 236 (‘Schinckel’). 23 Ibid at [10]. -- 11 of 27 -- [2024] SASC 23 McIntyre J 10 The quoted passage arose in the context of the Court’s consideration of arguments related to judicial deference to administrative jurisdictional fact finding. 46 I reject the argument based on the asserted lack of specialist knowledge of the Senior Member who made the decision. It is inappropriate for this Court to scrutinise the subject matter expertise and experience of individual SACAT Members. The emphasis must be on the nature of the body undertaking the review function not the individual Member. It is SACAT’s role that is relevant, not the expertise or experience of the Senior Member. 47 Parliament has made its intentions clear in the CSPP Act and the SACAT Act. The statutory scheme is enacted to further the objectives of the legislation. The CSPP Act gives SACAT jurisdiction to review decisions under that Act. Parliament plainly intended SACAT to be a specialist tribunal for those purposes. I reject the contention that SACAT is not a specialist tribunal for the purposes of the CSPP. I accept the respondent’s submission that the Court will not routinely grant leave to appeal as this would undermine the legislative intent of the SACAT Act and the CSSP Act. I note the comments of Doyle JA in Varricchio:24 As the decisions of Pix v South Australian Housing Trust and Jackson v Lepp Investments illustrate, this Court will not routinely grant leave to appeal in cases such as the present. To my mind, the Court should not readily grant leave to appeal in cases where to do so would tend to undermine the legislative intention of the South Australian Civil and Administrative Tribunal Act that tenancy disputes be dealt with by a specialist tribunal which is better equipped to deal with such disputes in a timely and cost efficient way. Granting leave to appeal too readily would tend to undermine this objective, and serve only to add a further layer of expense and delay. 48 The SACAT Act provides processes and procedures for the timely and cost efficient disposition of such reviews. Accordingly, consistent with the authorities I ought not readily grant leave to appeal. 49 In determining the issue of whether the subject matter is of sufficient substance to justify the grant of permission I have had regard to the authorities to which I was referred. In particular I note the comments of Parker J in Aldridge25 as to the basis for the principle: That principle is intended to screen out cases where the disputed question has little or no practical or legal significance and there is no issue of principle nor a potential miscarriage of justice. 50 The appellant contends that the interpretation of s 26(1) of the CSPP Act and determination of the standard of satisfaction in the assessment of the ultimate issue are of sufficient substance to justify consideration by the Court given that there has been no appellate review of the relevant provisions of the CSPP Act. The respondent did not concede this issue but did not raise any specific arguments 24 Varricchio at [37]. 25 Aldridge v The Registrar of Firearms [2022] SASC 5 at [33] (‘Aldridge’). -- 12 of 27 -- [2024] SASC 23 McIntyre J 11 contrary to the proposition put by the appellant. I accept the appellant’s submission that this matter raises an issue of principle. On that basis I also accept that the grounds of appeal affected by this issue of principle are reasonably arguable. I therefore grant leave to appeal. Does House v The King Apply? 51 The respondent contends that in deciding whether an appealable error is established for the purpose of s 71 of the SACAT Act the Court must determine whether the decision was infected by a process error or an outcome error of the kind identified in House v The King.26 It is contended that error will be established if the Senior Member acted on a wrong principle, took into account irrelevant matters, mistook the facts or failed to take into account relevant matters.27 It is further said that the Court should exercise appellate restraint with respect to the factual findings. These findings should not be interfered with unless glaringly improbable or contrary to compelling inferences.28 52 The appellant on the other hand says that, as this is an appeal by way of rehearing, this Court is required, unless the appeal is dismissed or remitted for rehearing, to give “the judgment which in its opinion ought to have been given in the first instance.”29 It is contended that this is not an appeal from the exercise of a judicial discretion rather it is an appeal from an evaluative judgment of SACAT namely whether the appellant poses an unacceptable risk to children. Accordingly, the appellant contends that the Court is not confined to interfering only where there has been a House v The King error. The appellant further contends that the appropriate approach when reviewing an evaluative decision is as stated by the majority in Warren v Coombes:30 …Shortly expressed, the established principles are, we think, 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. 53 The Senior Member’s task on review was to determine the correct or preferable decision as set out above. The issue of what constitutes as the correct or preferable decision in the context of s 70 of the SACAT Act was considered by Parker J in Re AKS.31 Section 70 was in similar terms to s 34 set out above. In that decision Parker J said: 32 26 (1936) 55 CLR 499. 27 Aldridge at [55]. 28 Lee v Lee [2019] HCA 28. 29 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [30]. 30 Warren v Coombes (1979) 14 CLR 531 at [552] (‘Warren’). 31 Re AKS [2016] SACAT 19 (‘AKS’). 32 Ibid at [32]. -- 13 of 27 -- [2024] SASC 23 McIntyre J 12 It also necessarily follows from the requirement under s 70(5) to arrive at the correct or preferable decision after giving appropriate weight to the decision at first instance that the principles set out by the High Court in House v The King concerning appeals from the exercise of a judicial discretion do not apply when the Tribunal reviews a discretionary decision. Thus, if the Tribunal considers that the correct or preferable decision was not made it may set aside the exercise of a discretion without having identified either a process error or an outcome error in the decision under review. [citations omitted] 54 Parker J then went on to consider the principles that applied to such a review as follows: 33 The obligation to arrive at the correct or preferable decision makes clear that what is required under s 70 is a review on the merits. In a general sense that resembles a court considering an appeal de novo. However, the requirement that appropriate weight must be given to the decision at first instance distinguishes an internal review from an appeal de novo. In an appeal de novo the decision at first instance would not be relevant because the court decides the matter afresh and its role is not limited to the identification of error. The procedure followed by the Tribunal is analogous to that of a court deciding an appeal by way of rehearing in that it relies on the evidence received at first instance (subject to the discretion to admit further evidence) and must also have regard to the decision made at first instance. Most importantly, in contrast to a court deciding an appeal by way of re-hearing, when the Tribunal determines an internal review it may quash or vary a decision or remit the matter for re-hearing without having found any error of law or fact if it considers that the preferable decision was not made. Thus, the fundamental task of the Tribunal is always to arrive at the correct or preferable decision. 55 In Aldridge, Parker J considered the powers and functions of the Supreme Court on appeal under s 71 of the SACAT Act observing that: 34 The effect of s 71 is that an appeal from SACAT operates in the same manner as a civil appeal to a single judge (see UCR 217.10) or to the Court of Appeal (see UCR 218.17) as the case may be. However, it is important to recognise that an appeal to this Court from SACAT is materially different from the review conducted by SACAT of the decision made the delegate. Whereas the ultimate task of SACAT was to determine whether the correct and preferable decision was made, the role of this Court is to determine whether the SACAT Member erred in the exercise of her quasi-judicial discretion by dismissing the review application. In deciding whether the Member erred in the exercise of her discretion, it is necessary to determine in accordance with House v The King whether the decision was affected by a process error or an outcome error. 56 And, in Jackson, Parker J said: 35 [Rules 217.10 and 218.17 of the Uniform Civil Rules] provide that, if permission is granted, the appeal is to be by way of a rehearing. An appeal by way of rehearing is effectively a trial over again on the evidence used in the Court or Tribunal below, together with such additional evidence as may be received on the appeal. The Court must independently review the evidence and carefully scrutinise the findings made at first instance. 33 AKS at [35]. 34 Aldridge at [54]. 35 Jackson at [21]. -- 14 of 27 -- [2024] SASC 23 McIntyre J 13 Significantly, where the matter involves a question of judicial discretion, the Court is not entitled to substitute its own decision unless an error is identified in the exercise of that discretion. 57 Subsequent decisions of this Court have cited these principles with approval. In Maroulis Bleby JA said:36 An appeal of this nature is by way of rehearing. However, it is an appeal against a decision involving the exercise of a discretion. It is necessary for the appellant to identify an error of the kind identified by the High Court in House v The King. The mere question of the weight to be placed on a relevant consideration is a matter for the fact finder and is not capable of being the subject of a complaint of error under House v The King principles. [citations omitted] 58 In Shah37 Blue J considered a similar argument to that raised by the appellant in this matter. Shah related to a SACAT decision affirming a decision of the Medical Board of Australia (‘the Board’) to suspend the appellant’s registration as a medical practitioner under s 156 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) (‘the National Law’) pending an investigation by the Board into his conduct. 59 The medical practitioner had been charged with two counts of indecent assault and one count of serious criminal trespass in a place of residence. The charges were subsequently withdrawn. As in this matter, the appellant contended that the decision of SACAT was partly factual and partly evaluative and that the principles in House v The King did not apply whereas the Board contended that the decision was discretionary. 60 After reviewing a number of authorities, Blue J concluded that:38 In the context of appeals by way of rehearing from a decision, a distinction is drawn between a discretionary decision and a non-discretionary decision. If the decision is properly characterised as discretionary, the principles in House v The King apply. In that case, an appellant needs to establish that there was a miscarriage in the exercise of the discretion, either in the manner in which or reasoning by which it was exercised (a process error) or in the outcome of its exercise (an outcome error). Conversely, if the decision involves the determination of an issue of fact, law or mixed fact and law (including an evaluative judgment) as opposed to the exercise of discretion, the appellant merely needs to establish error in the manner described by the High Court in Warren v Coombes. In that event, where the tribunal at first instance heard no oral evidence and the hearing was short, generally the appellate court will, after giving appropriate respect and weight to the conclusion of the tribunal at first instance, be in as good a position as the tribunal at first instance to decide disputed issues. [citations omitted] 36 Maroulis v Psychology Board of Australia [2020] SASC 16 at 33 (‘Maroulis’). 37 Shah (A pseudonym) v Medical Board of Australia [2022] SASC 140 (‘Shah’). 38 Ibid at [202] – [203]. -- 15 of 27 -- [2024] SASC 23 McIntyre J 14 61 In the circumstances of that matter Blue J concluded that the decision under review was not discretionary and the principles in House v the King did not apply because the decision that was subject to appeal was an appeal against a decision to take immediate action under s 156 of the National Law. Justice Blue held that the ‘immediate action’ suspension power in s 156 of the National Law was properly regarded as an evaluative decision because each limb of that section expressly set out the matters on which the board must be satisfied before the practitioner’s registration could be suspended. Those considerations were whether the board reasonably believed that: • because of the practitioner’s conduct, performance or health, the practitioner poses serious risk to persons; and • it is necessary to take immediate action to protect public health safety; or • the board reasonably believes the action is otherwise in the public interest. 62 Justice Blue held that the answer to each limb was either a yes or no.39 Justice Blue contrasted this with the decision in Maroulis which was a decision under s 196 of the National Law to impose a sanction that Mr Maroulis’ registration be suspended following a finding that he had engaged in professional misconduct. Justice Blue considered that this was akin to a criminal sentencing decision which is a discretionary decision. 63 Minister for Primary Industries and Regional Development v Scali (‘Scali’)40 was an appeal against an order of SACAT under s 71 of the SACAT Act. The respondent in that matter possessed a marine scale fishery license under the Fisheries Management Act 2007. The license was subject to a ‘unit entitlement’ for the period 1 July 2021 to 30 July 2022. The appellant refused an application by the respondent for additional units to be added to his quota on the basis of exceptional circumstances. On review, SACAT found that the respondent did have exceptional circumstances and remitted the question as to any additional quota entitlement back to the appellant. 64 On appeal Kimber J held that the Tribunal had erred in finding that the respondent had exceptional circumstances and that the Tribunal’s decision was properly characterised as an evaluative one and not discretionary.41 Justice Kimber referred to the reasons of Gageler J (as he then was) in Minister for Immigration and Border Protection v SZVFW42 dealing with the distinction between discretionary and evaluative decisions. Justice Gageler referred to the course of 39 Shah [2010] – [2012]. 40 [2024] SASC 4. 41 Ibid at [44]. 42 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (‘SZVFW’). -- 16 of 27 -- [2024] SASC 23 McIntyre J 15 the High Court authorities since Warren v Coombes43 proceeding on a consistent understanding of how the line of demarcation is to be drawn between those decisions which attract the correctness standard for appellate review, those which attract the deferential standard applicable to exercises of judicial discretion. Justice Gageler went on to say:44 The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable. 65 Applying this reasoning Kimber J concluded that the existence of ‘exceptional circumstances’ in the statutory scheme was:45 … not part of a process of ‘instinctive synthesis’ analogous to what occurs in sentencing. In my view, it is best characterised as a threshold, or a precondition, which, if satisfied, permits a discretion to be exercised. Expressed another way, it was a ‘jurisdictional fact’ that had to exist before a power was enlivened. The answers available to the question before the Tribunal the subject of this appeal was either yes or no. While it involved an evaluative exercise, it was a decision that was either right or wrong. There were either exceptional circumstances or there were not. 66 The High Court considered the issue of discretion in Norbis v Norbis. Mason and Deane JJ, in a joint judgment said: 46 “Discretion” signifies a number of different legal concepts (see, for example, the discussion in Pattenden: The Judge, Discretion, and the Criminal Trial (1982) at 3–10). Here the order is discretionary because it depends on the application of a very general standard — what is “just and equitable” — which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends. 67 It is my view that the decision in this matter can be properly characterised as discretionary. The Senior Member was conducting a review on the merits, with appropriate regard for the decision of Mr Lovegrove the primary decisionmaker, in order to reach the correct and preferable decision. The Senior Member heard oral evidence and received documentary evidence from the parties. She formed value judgments relating to that evidence including the conclusions to be drawn from, and the weighting to be given to, those factors to determine whether the 43 Warren. 44 SZVFW at [50]. 45 Scali at [43]. 46 (1986) 65 ALR 12 at 15. -- 17 of 27 -- [2024] SASC 23 McIntyre J 16 appellant poses an unacceptable risk to children. This is to be distinguished from the situation in both Scali and Shah. 68 Shah concerned the application of a confined set of different statutory criteria within s 156 of the National Law that did not require exercise of a discretion. Likewise, in Scali the statutory scheme involved a consideration of a comparatively narrow set of criteria for determining whether exceptional circumstances had been made out. ‘Exceptional circumstances’ is a concept well understood in law and informed by the applicable regulatory scheme and legislative context. In those circumstances the decision at issue in Scali was a decision that was either right or wrong at law. It is not discretionary. 69 In this matter consideration of ‘unacceptable risk’ requires consideration of numerous categories of information and evidence from a variety of different and sometimes conflicting sources. The decision maker must give appropriate weight and scrutiny to all of this information. Decision makers may give greater or lesser weight to assessable information when determining whether an appellant poses an unacceptable risk to children. The legal criterion to be applied do not demand a unique outcome or a yes or no answer. Rather, is the sort of assessment that calls for value judgments in respect of which there is room for reasonable differences of opinion by decision makers and will give rise to a range of outcomes. 70 Accordingly, I must determine whether the decision was infected by a process error, or an outcome error of the type identified in House v The King. To put it another way, did the Senior Member act on a wrong principle; was she guided by extraneous or irrelevant facts; did she mistake the facts; fail to take into account a material consideration; or reach an outcome which was manifestly unreasonable or plainly unjust. De Bene Esse ruling 71 The appellant seeks to tender fresh evidence on the appeal; specifically, an affidavit sworn by him and one from his wife. Both are dated 17 May 2023. The respondent objects to the tender of fresh evidence on the appeal saying that, whilst the Court has a discretionary power to receive fresh evidence, this should only be exercised in exceptional circumstances.47 72 In determining whether to receive fresh evidence the following considerations apply: 48 • whether the evidence was available at the hearing below or could with reasonable diligence have been obtained for use at that hearing; 47 Fox v Percy (2003) 214 CLR 118. 48 Draoui v Le [2021] SASCA 33 at [102]. -- 18 of 27 -- [2024] SASC 23 McIntyre J 17 • whether the evidence would have had an important influence on the result. Whilst it need not necessarily be decisive it must be more than merely useful; • the likely impact of the evidence in terms of whether it is controversial or contested and, if so, whether its receipt is likely to require cross examination, further responding evidence or that the matter be remitted for rehearing; and • the public interest in the finality of litigation. 73 The respondent contends that the affidavits should not be accepted as the case is not exceptional and there is no good explanation why the evidence was not led in the SACAT proceedings. The evidence relates solely to information within the appellant’s knowledge prior to the SACAT hearing. He was legally represented. The evidence is not significant in resolving the issues in dispute. The public interest in the finality of litigation is a significant factor tending against admission of the evidence. It is said that to permit admission of further evidence may result in a never ending process of hearings. 74 The appellant on the other hand, says he was denied natural justice during the course of the hearing. He did not know what serious inferences the Tribunal was considering and thus was not made aware of the case he had to meet. Had he been appraised of that, he would have produced further evidence of the type now sought to be introduced. He was deprived of the opportunity to adduce relevant evidence relevant to it and he now seeks to do so by tendering the two affidavits. 75 Accordingly, the basis of the proposed tender is that whilst the information was within the appellant and his wife’s knowledge, the appellant contends that he was not given the opportunity to produce this evidence as he was not aware of the Tribunal’s proposed course of action. The evidence is said to be highly relevant to one of the two essential conclusions that the appellant presses in this matter. 76 For the reasons that follow I decline to admit the affidavits in evidence. What is an unacceptable risk? 77 Before I turn to the individual grounds of appeal it is appropriate to set out my understanding of the interpretation of s 26(1) of the CSPP Act and the standard of satisfaction required in assessing the ultimate issue as to whether a person poses an unacceptable risk to children. 78 Section 26(1) provides as follows:49 (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 49 CSPP Act s 26(1). -- 19 of 27 -- [2024] SASC 23 McIntyre J 18 assessment criteria to determine whether or not the person poses an unacceptable risk to children 79 The CSPP Act does not define ‘unacceptable risk’. The term has been the subject of SACAT decisions but not appellate review. The leading SACAT decision is GJC.50 In that decision, Senior Member Rugless, considered the meaning of ‘unacceptable risk’ in the context of the CSPP Act. Relying on a number of authorities, she concluded, correctly in my view, that:51 Courts in Australia have accepted that the concept of ‘risk’ involves two elements: the degree or likelihood of the occurrence of an event and the possible consequences if it does. 80 Senior Member Rugless noted that the term ‘risk’ is qualified in the CSPP Act by the use of the word ‘unacceptable’. She accepted a submission that, in the context of the objects and purpose of the legislation, for the purposes of s 26(1) of the CSPP Act an unacceptable risk is a risk that “if a person is allowed to work with children, this will not ensure the adequate protection of the children”.52 81 I agree with this conclusion. It follows that consideration of whether an unacceptable risk to children exists in the context of s 26 CSPP Act requires an evaluation of degree or likelihood of conduct occurring in the future, the seriousness of the consequences of the conduct for children, and whether it is acceptable to allow it. Likelihood of future behaviour 82 In M v M53 the High Court considered the assessment of risk where there were allegations of sexual misconduct in the context of family law proceedings. The Court,54 in a unanimous judgment, noted that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The High Court rejected a submission that a court must make a finding that the parent had sexually abused the child on the civil standard of proof before proceeding to act upon that basis saying: 55 No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a 50 GJC v Department of Human Services [2020] SACAT 38 at [83] (‘GJC’). 51 Ibid at [102]. 52 Ibid at [104]. 53 (1988) 166 CLR 69. 54 Mason CJ, Brennan J, Dawson J, Toohey J and Gaudron J. 55 M v M at [77]. -- 20 of 27 -- [2024] SASC 23 McIntyre J 19 positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. 83 The High Court went on to say that the task of a Court in such circumstances was to determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and then to assess the magnitude of that risk. The overarching consideration was the statutory requirement to determine what is in the best interests of a child. The High Court noted that efforts to define the magnitude of risk had resulted in “a variety of formulations” and concluded that:56 To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. 84 This formulation has been approved and applied in analogous working with children legislation in NSW.57 It is my view that it is also appropriate in the context of the CSPP Act. 85 Accordingly, the assessment of likelihood of future behaviour may be based on past behaviour or suspected past behaviour. Further, a decision maker is not required to make positive findings that allegations are established or that particular conduct has occurred. Even if a decision maker makes no positive findings about specific conduct, the CSPP Act makes it plain that they are entitled to consider the totality of the assessable information. It follows that, a decision maker may, after careful scrutiny and weighing of all of the assessable information, find that they are not satisfied the alleged conduct did not occur and proceed to take it into account. Further, the decision maker does not need to be satisfied that it is more likely than not that the concerning conduct will occur again but merely that there is a risk that it may. The question then becomes one of assessing the possible consequences of such conduct and whether the risk is unacceptable. Possible consequences of behaviour 86 Sexual misconduct involving children is, rightly, of great concern in our community. It is recognised to cause long term, often devastating effects for the victims, their families, and the wider community. This is no less the case in matters involving accessing, downloading, or possessing CEM. Criminal courts, in sentencing for such matters, recognise that these are not victimless crimes and have characterised such offending as serious and generally warranting sentences of imprisonment to be served even by first offenders.58 56 Ibid at [78]. 57 BKE v Office of the Children’s Guardian [2015] NSWSC 523 at [33]; Tilley v Children’s Guardian [2017] NSWCA 174 at [34] – [35]; CXZ v Children’s Guardian [2020] NSWCA 338 at [7] and [28] – [29]. 58 R v Padberg (2010) 107 SASR 386; R v Turvey (2017) 127 SASR 425; R v Cecchin (2017) SASCFC 109. -- 21 of 27 -- [2024] SASC 23 McIntyre J 20 Is the risk acceptable? 87 In GJG, dealing with the topic of possible consequences of behaviour and the question of whether a risk is unacceptable, Senior Member Rugless said: 59 … the task of the Central Assessment Unit (or, on review, of the Tribunal) must be to consider whether, having regard to the likelihood of the person behaving in a certain way in the future, and the behaviour that is likely to occur, the risks or consequences of that behaviour is so unacceptable that it is necessary in the interests of children to ensure that the person does not work with children. I agree that the Tribunal does not need to be satisfied that it is more likely than not that the concerning conduct will again eventuate, but merely that there is a risk that if it does it will cause harm to children and that this is unacceptable. It follows that where the possible future harm is serious then even a minimal chance or possibility that it will occur would usually be sufficient to regard that outcome, or risk to children as unacceptable. 88 I agree with these comments. In M v M the guiding principle under the applicable legislation was what was in the best interests of the children of the marriage. The children of the marriage have an interest in maintaining a relationship with their parents that needs to be balanced against the risk to their safety. They are a defined group. It is possible, as part of the balancing process, to put safeguards in place to protect them whilst maintaining contact. The paramount consideration under the CSPP Act is the best interests of children in general having regard to safety and protection. The primary object of the CSPP Act is to minimise the risk to a largely unidentified group of children posed by people who work with them. Once a person has successfully passed a WWCC there are limited safeguards that can be put in place to protect children in general. For that reason, where possible future harm is serious, even a minimal risk that it will occur would usually be sufficient to be ‘unacceptable’. Conversely, an acceptable risk is one which is fanciful, farfetched, or theoretical and where the potential consequences to children are mild or insignificant. Grounds of Appeal Grounds 1-3 89 Grounds 1 to 3 relate to the manner in which the Senior Member dealt with photographs of one of the appellant’s children when naked or semi-clad. The circumstances in which this evidence came before the Tribunal are relevant to a consideration of these grounds of appeal. It appears from the reasons60 that the Senior Member was troubled by Mr Lovegrove’s views concerning photographs described in a letter from the CDPP dated 6 October 2010. In particular she disagreed with the premise of Mr Lovegrove’s view that material need to reach a standard actionably under criminal law before it is relevant for the purposes of a WWCC. For the reasons set out above, I agree with that comment. It appears that 59 GJC at [105] – [107]. 60 FDN 1 at 27 [103] – [126]. -- 22 of 27 -- [2024] SASC 23 McIntyre J 21 the photographs were not before either Mr Lovegrove or the Senior Member. The Senior Member described what occurred thereafter: 61 Accordingly, at the commencement of the morning session of the second day of the full hearing, I informed the parties that it would be useful for the Tribunal to hear from them on this material. I did so without any prior notice to the parties. [The appellant] indicated to the Tribunal that he could readily locate 99% of these photographs and speculated that he could produce them to the Tribunal that afternoon. He also gave an account of the contents of the photographs in some detail, including who had taken them. 90 The appellant filed affidavits affirmed by him and his wife on 3 November 2022. Exhibited to the appellant’s affidavit were a number of photographs including the photographs that are the subject of these three grounds of appeal. 91 Ground 1 contends that the Senior Member erred in law by failing to deal with this evidence by taking a “comprehensive and meticulous approach” and did not deal with the evidence fairly in that having found the appellant’s wife to be a credible witness did not have regard or any significant regard to aspects of her evidence that contradicted the Tribunals findings at paragraphs 116, 117, 124 and 126. I reject this ground of appeal. I detect no error in the approach taken by the Senior Member. The conclusions about the photographs were open to the Senior Member. In my view, the conclusions did not materially contradict the appellant’s wife’s evidence that the photographs were taken for the apparent purpose of monitoring a chicken pox virus. It is apparent from her reasons, that the Senior Member’s concern was not the taking of the photographs. Rather the Senior Member was concerned about the appellant’s retention of those photographs. Her finding was that they were retained for longer than was necessary for the medical purposes for which they were taken and well after the fact that the photographs had been raised as an issue in the AFP investigation.62 92 Ground 2 contends that the Senior Member’s findings at paragraphs 117 and 132(c) were wrong in law and unfair in that they are against the weight of the evidence and unreasonable and do not represent a comprehensive, meticulous, and fair approach to the scrutiny of the evidence. I reject this ground of appeal. The Senior Member’s findings that the photographs were “explicit and disturbing, and readily capable of a sexualised connotation”63 or “confronting and highly sexualised”64 are conclusions open on the evidence of the photographs. 93 Ground 3 contends that the Senior Member’s finding that the appellant has a prurient interest in retaining the photographs of his children65 was unreasonable 61 Ibid at [108] – [109]. 62 Ibid at [126]. 63 Ibid at [117]. 64 Ibid at [132.c]. 65 Ibid at [126]. -- 23 of 27 -- [2024] SASC 23 McIntyre J 22 and unjust because he was denied natural justice. It is said that the primary decision maker, Mr Lovegrove, placed no weight on the photographs and the Senior Member did not put the appellant and his wife on notice of the findings or inferences that she may draw. The fresh evidence referred to above, specifically affidavits of the appellant and his wife, are directed to this issue. 94 Section 43 of the SACAT Act requires the tribunal to take reasonably practicable measures to ensure, inter alia, that parties have a reasonable opportunity to understand the nature of matters under consideration. The tribunal is therefore obliged to afford procedural fairness to parties. The High Court considered this issue in Minister for Immigration and Citizenship v SZGUR and Anor:66 Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision. That is not to say that the Tribunal cannot or should not, in the exercise of its discretion, invite an appellant for review to make supplementary submissions in relation to apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified by the Tribunal. 95 The purpose of the proceedings was to consider whether the appellant posed a risk to children. His interest, prurient or otherwise, in the photographs was plainly an issue in the proceedings. The Senior Member raised the issue of the photographs, her concern about the view taken by Mr Lovegrove and invited the parties to address this issue. The appellant was legally represented. He gave evidence on the topic and filed an affidavit exhibiting the photographs. This leads to a logical expectation that the Senior Member would consider them. It is my view that the Senior Member’s approach was unremarkable. The adverse inferences complained of were, given the context and the known material, obviously open. I detect no error in the Senior Member’s approach. There was no denial of procedural fairness. For similar reasons I find that the further affidavits ought not be admitted on the appeal as the evidence was available at the time of the SACAT hearing, there is no good explanation why the evidence was not led at the SACAT hearing, the evidence would have been unlikely to have a significant influence on the result in view of my findings about the relevant law and the public interest in the finality of litigation militates strongly against admission of this evidence on appeal. I dismiss ground 3 of the appeal. Grounds 4-7 96 Grounds 4-7 contend that the Tribunal erred in law in relation to the interpretation and application of the legislation and case law. These grounds have largely been addressed above and in my view ought to be dismissed. 66 Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594 at [623]. -- 24 of 27 -- [2024] SASC 23 McIntyre J 23 97 Ground 4 relates to the Senior Member’s comment at paragraph 131 of her decision that:67 I note also that the lack of evidence sufficient to secure a conviction on the criminal standard of beyond reasonable doubt is of limited assistance when the standard of proof in these matters under the CSPP Act is the statutory standard of reasonable satisfaction. 98 This was an accurate statement of law and no more than a recognition that there is a significant difference the statutory standard of satisfaction under the CSPP Act and the criminal standard of beyond reasonable doubt. The comment follows on from the preceding paragraph which sets out what reliance, if any, should be placed on the CDPP reasons for withdrawing the charges. The Senior Member recognised that a lack of evidence to establish criminal conduct beyond reasonable doubt does not necessarily mean that no such conduct occurred. The Senior Member did not make any positive findings about the subject matter of the criminal charges against the appellant nor the reasons for their withdrawal including whether, or the extent to which, the appellant possessed or accessed child exploitation material. 99 Ground 5 contends that the Senior Member wrongly interpreted and applied the cases to which she referred68 in relation to the assessment of risk when she stated: 69 Even where the likelihood of [the appellant] causing harm to children is minimal, I should nevertheless have regard to the fact that, in a child abuse context, if it did occur, the consequences would be extremely grave. 100 As I understand this ground of appeal, the issue is not so much this statement which is one that I consider to be correct for the reasons set out above. Rather it is contended that, in the cases referred to by the Tribunal, there was ‘a solid factual foundation for a finding that the appellant had posed an unacceptable risk in the past.’ 101 I do not accept this contention. None of the cases the Senior Member referred to prescribed exhaustive rules concerning the assessment of risk. None of these cases indicated that proof of previous behaviour is a necessary threshold requirement to establish future likelihood of conduct. Indeed, as indicated above, a decisionmaker is not required to make positive findings that past conduct has occurred. I further note that in Schinckel, Bleby JA explained that likelihood of future harm may or may not be informed by past behaviour.70 What the CSPP Act requires is a consideration of assessable information that may include hearsay or unproven allegations of misconduct obtained from a variety of sources. 67 FDN 1 at 30 [131]. 68 Schinckel at [30]; BZY v Department for Human Services [2021] SACAT 1 at [33] – [34]; VKS v Department of Human Services [2021] SACAT 89; HNU v Department of Human Services [2021] SACAT 92 at [23] and OUG v Department of Human Services [2021] SACAT 3 at [116]. 69 FDN 1 at 31 [140]. 70 Schinckel at [30]. -- 25 of 27 -- [2024] SASC 23 McIntyre J 24 102 Ground 6 contends that Tribunal erred in its interpretation of s 26(1) of the CSPP Act. I do not agree for the reasons set out above. It further contends that the Senior Member failed to properly consider the likelihood of conduct occurring in the present or future by failing to give appropriate weight to his conduct since 2010. It is clear from the reasons71 that the Senior Member gave weight to the appellants unblemished history. A failure to afford sufficient weight does not establish appealable error. The fact that another tribunal Member or court may ascribe that factor greater weight cannot support a conclusion of appealable error.72 The Senior Member took into account and gave favourable weight to information including that the subject allegations occurred 12 or more years ago. 103 Ground 7 contends that: The Tribunal did not adopt a comprehensive, meticulous and fair approach to its scrutiny of the evidence as a whole. 104 There was no elaboration of this point in the written or oral submissions other than the specific complaints referred to above. I do not detect any appealable error in the overall approach taken by the Senior Member. Grounds 8 to 11 105 The appellant complains that various aspects of the Senior Member’s reasons were inadequate. I have carefully considered those complaints in the light of the full context of the reasons having regard to the statutory scheme. I dismiss these grounds of appeal. 106 I was referred to Towle where McDonald J stated: 73 It must be factored in that the decision under consideration is that of an administrative decision maker. In Collector of Customs v Pozzolanic Enterprises Pty Ltd, it was said that the Court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision maker. The Court continued: The reasons for the decision under review are not to be constructed minutely and finely with an eye keenly attuned to the perception of an error. [citations omitted] 107 I respectfully agree with this statement of the law. 108 The Senior Member’s reasons overall provide a thorough and detailed analysis of the evidence, the inferences drawn from the evidence and the path to the decision. The Senior Member set out, in detail, the relevant legal principles and uncontentious history and she identified the key aspects of the decision under review. The Senior Member’s findings carefully and comprehensively address the appellant’s evidence in the context of largely agreed facts. She describes in her 71 FDN 1 at 29 [127]. 72 Aldridge at [75] and [144]. 73 Towle v Registrar of Motor Vehicles [2023] SASC 92 at [56]. -- 26 of 27 -- [2024] SASC 23 McIntyre J 25 reasons what aspects of the appellant’s evidence she accepted and which she did not. She set out the three main factors that led to her view that the appellant poses an unacceptable risk to children.74 She dealt with each of those factors in turn. She set out the evidence and the submissions of the parties. She clearly articulated the findings that she made and how those findings led to her ultimate conclusion that the appellant posed an unacceptable risk to children. Grounds 12 to 16 109 The appellant contends, in grounds 12-16, that the evidence did not support various findings made by the Senior Member. I do not consider that any of the findings complained of are ‘glaringly improbable or contrary to compelling inferences’. The matters complained of are not process errors or outcome errors of the type identified in House v King. Accordingly, I dismiss these grounds of appeal. Ground 17 110 Ground 17 contends that the Tribunal did not reach the correct and preferable decision. The appellant has not demonstrated that the decision was infected by a process error or an outcome error and accordingly I dismiss this ground of appeal. 74 FDN 1 at 18 [43]. -- 27 of 27 --