Applicant v Respondent

HUMAN RIGHTS - Decisions affecting children and father - Right to privacy and reputation - Right to protection of families and children - Right to recognition and equality before the law - Right to liberty and security of persons - Whether VCAT acting in an administrative capacity - Whether VCAT gave proper consideration to children and father's human rights - Charter of Human Rights and Responsibilities Act 2006 ss 4(2), 8, 13, 17, 21, 38(1).

For the Attorney-General for the State of Victoria (written submissions on the Charter)

Mr A Pound SC Solicitor-General of Victoria and Mr J Maxwell

1 INP[1] seeks leave to appeal an order of the Victorian Civil and Administrative Tribunal ('VCAT' or 'the Tribunal'), made on 5 June 2023 which summarily dismissed his proceeding having found that it was misconceived and lacking in substance within the meaning of s 75(1) of the VCAT Act.[2] The respondent, the Secretary of the Department of Families, Fairness and Housing ('the Secretary'), had sought summary dismissal of INP's proceeding. His proceeding sought the review of five decisions affecting him and his children ('the five decisions') that were made by Child Protection Practitioners in the Department of Families, Fairness and Housing.[3] INP's application for leave to appeal the VCAT order is made under s 148(1) of the Victorian Civil and Administrative Act 1998 ('VCAT Act'). INP was self-represented.

2 INP had applied to the Secretary seeking review of the five decisions concerning his three children, who are a son, then aged 15, a second son, then aged 12 and a daughter, then aged 11. The five decisions as described by VCAT were:

Child Protection Officer, decision at intake to refer report for investigation; [Decision 1]

[The] Child Protection Officer's and Team Manager's decisions on or about October 2018 to remove the children from INP's care and cease all contact between INP's children and INP before meeting with INP or having any contact with INP which INP was told occurs every investigation by the Child Protection Officer and Team Manager; [Decision 2]

[The] Team Manager's, decision on a date not provided, communicated to [INP] in person, by a Child Protection Officer on 31 October 2018, to substantiate the protective concerns said to have been reported to Child Protection, namely, that [the oldest child's] contact with INP triggers anxiety disorder and that this was caused by two things:

[the oldest child] observed INP removing his brother...from the room to the bathroom (said to have occurred about one month before contact ceased) and

By INP 'not listening to the children's voices. [Decision 3]

[T]he Child Protection Officer's and Team Manager's decision to list [INP] as a person responsible for causing harm to [the oldest child] [Decision 4]

[T]he Child Protection Officer's decision on the Case Plan's contents which were decided without [INP's] participation despite [his] various requests and indications that he wanted to be involved in any case planning that occurred. [Decision 5][4]

3 INP is granted leave to appeal on a number of his proposed grounds of appeal and VCAT's order is set aside on grounds that include that his application for declarations has an arguable utility being to restore his reputation and assist his future relationships with his children and because this was not a case for summary dismissal. Declarations are discretionary remedies and the decision whether to grant them will be affected by the case presented, including the evidence and submissions in support of it. INP had not presented his complete case. He sought a further statement of reasons for the five decisions and a s 49 statement. The Secretary intended to present her submissions and any evidence about the best interests of the children only at a final hearing, if one occurred. I consider that the Tribunal's application of the best interests of the children principle to the outcome of the review could only have occurred after INP had presented his complete case. The issues of whether he was entitled to further reasons and a s 49 statement, which he raised at the start of the VCAT hearing, should have been decided before the hearing proceeded. In addition, the Tribunal did not give proper consideration to INP's and the children's Charter rights, perhaps because INP had not presented his full case.

4 However, I do not accept INP's challenge to the constitution of the Tribunal, his contentions about the Tribunal's reliance on the invalid internal review or his reliance on the Secretary's rejection of his offer of settlement.

5 I have considered whether INP's review application only has possible utility in respect of Decisions 2, 3 and 4 because Decision 1 was only an intake report and Decision 5 was a case plan that has lapsed. However, all five decisions were linked and one led to another. Therefore, it is appropriate that INP be able to present his review application in respect of all the five decisions.

Statutory provisions concerning the five child protection decisions

6 The statutory provisions relevant to the consideration of the five decisions were as follows. Section 28 of the Children, Youth and Families Act 2005 ('CYF Act') which provides for a person to make a report to the Secretary if they have a significant concern for the wellbeing of a child. Section 30(1) provides for the Secretary's response to a report under s 28, which include making a determination under s 34 that the report is a protective intervention report. Section 34 provides that, if the Secretary receives a report under s 28 and she considers that the child may be in need of protection, she may determine that the report is a protective intervention report for the purposes of the CYF Act. Section 162 provides that for the purposes of the CYF Act, a child is need of protection if any of six specified grounds exist. One of them is contained in s 162(e) which provides:

the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.

7 Section 166 provides for case plans to be prepared by the Secretary for a child in need of protection which must contain all decisions made by the Secretary concerning that child that the Secretary considers to be significant decisions and which relate to the present and future care and wellbeing of the child, including the placement of, and contact with, the child. Section 183 provides that any person who believes on reasonable grounds that a child is in need of protection may report that belief and the reasonable grounds for it to a protective intervener. Protective interveners are the Secretary and all police officers: s 181. Section 184 sets out the obligations of mandatory reporting. Section 205 requires the protective interveners as soon as practicable after receiving a protective intervention report to investigate, or cause another protective intervener to investigate, the subject-matter of the report in a way that will be in the best interests of the child. On completing an investigation, the protective intervener must make a written record of the investigation and its results: s 206. One outcome of the report of a protective investigation is for the protective intervener to make a protection application, to the Children's Court for a finding that a child is in need of protection (ss 162 and 274), after which that Court may make protection orders. Those orders are an order requiring a person to give an undertaking, a family preservation order, a family reunification order, a care by Secretary order or a long-term care order: s 275.

8 INP is the father of the three children. He and his wife, the children's mother, separated in April 2014.[5] The wife left the family home, taking the children with her. INP and his wife issued proceedings in the Federal Circuit Court which made orders including for shared parenting responsibilities and for the children to spend time with INP. In accordance with those orders, the children continued to spend time with him and their mother until October 2018 when, as he described it, Child Protection Practitioners removed the children from his care and ceased his contact with them.[6]

9 The effect of those actions was that the younger two children's contact with INP was removed for two weeks from 17 October 2018. As for the oldest child, INP understood that he could contact him again only in or about August 2019 after the completion of the internal review.[7]

10 The Department did not substantiate the protective concerns in relation to INP's two younger children, and on 1 November 2018 advised the parents that the children's contact with their father would resume the following day. However, on 14 November 2018, a Principal Practitioner wrote to INP confirming that the concerns for the oldest child had been substantiated and that INP had been assessed as being 'likely to cause harm' to that child and described the case planning process that would occur.[8] The letter stated:[9]

As you are aware, a child protection practitioner from the department has recently conducted an investigation in relation to concerns for the safety and wellbeing of your children...

The investigation has substantiated the protective concerns that have been reported to Child Protection in relation to the [oldest child]. When a case is substantiated a person is listed on the child protection system as responsible for the harm. An assessment has been conducted and a decision has been made in consultation with a Team Manager that you have been listed on the Child Protection as likely to cause harm.

Child Protection is required to develop a case plan outlining the concerns and actions to be taken to address the concerns.

Case planning is a collaborative process that involves the most significant people in the child's life. Child Protection wants to continue to work with you and your family to address the identified protective concerns and put the case plan for [the oldest child] into action. This may include getting other professionals involved, where additional support would be in [the oldest child's] best interests.

11 By letters dated 13 February and 6 March 2019, INP requested the Department to undertake an internal review of the five decisions under s 331 of the CYF Act.

12 A Principal Practitioner with the Department, carried out a review and set out its results in a letter to INP of 16 August 2019 which she, and an Acting Child Director, signed. That review affirmed Decision 1, but set aside or overturned Decisions 2, 3, 4 and 5.[10]

13 On 3 September 2020, the Department issued a formal written apology to INP, the relevant parts of which I set out below.

14 The Member, in his reasons for summarily dismissing INP's proceeding, quoted the following passages from the letter of 16 August 2019 to INP following the completion of the internal review and from an affidavit of the Principal Practitioner in order to explain the review's conclusions.[11] The internal review stated of Decision 1:

I have reviewed the decision for the report to proceed to investigation, the information which was received was of concern and it is my view that this indicated a possible risk of emotional harm to the children and that an investigation was required. I am upholding the decision for the matter to proceed to investigation.[12]

...Child Protection had not issued a Protection Application and had no legal authority to suspend your contact, if this was not something agreed to by the parties...

My view is, that if you were not in agreement for your contact to be suspended whilst the investigation occurred, then a decision should have been made as ... if the concerns were such that a Protection Application was required so that the matter could be heard before Melbourne Children's Court. This would have afforded you due legal process with a resolution from a Magistrate.

I have spoken with the practitioners involved in this process, about how we need to communicate with parents and children to ensure that we are working within legal frameworks. The practitioners were able to reflect upon this and have accordingly developed their professional practice. I appreciate that this does not negate the distress caused to you during this time but wanted to assure you that this is something which has been addressed.[13]

16 The Member also referred to part of the Principle Practitioner's affidavit of 11 September 2020, which stated in respect of Decision 2:

I have previously acknowledged that actions were not taken appropriately and provided [INP] with details on the actions which should have been taken. A letter of apology has been provided to [INP], this is annexure ["A"].[14]

17 Annexure 'A' was the letter of apology dated 3 September 2020,[15] from the Assistant Director Child Protection.

... I have reviewed the information recorded from discussions with all parties and spoken to several practitioners about this decision ... I however am not of the view that either [INP] ] or [the mother] had caused harm to [the oldest child].

Given this information I have overturned the decision to substantiate harm to [the oldest child] and that you were responsible for harm.[16]

My assessment is that the concerns for [the oldest child] should not have been substantiated and therefore you were consequently not responsible for harm to [the oldest child] and this decision is also overturned.[17]

20 In respect of Decision 5, the internal review explained the Department's legal obligation to prepare a case plan, which the Child Protection Practitioners must attempt to discuss with the parents and stated:

I have since spoken with the practitioners involved and they have advised that in hindsight they could have taken a different approach with you, they were however clear that they were not intending on causing any upset to you but that the decision to proceed with case planning without you was based upon them wanting to comply with the legal obligation of progressing a plan for [the oldest child] in a timely manner.[18]

21 That last statement was clarified in the following passage in the Principal Practitioner's affidavit of 1 November 2019:

My view is however that there were clearly communication difficulties and that further alternative endeavours should have been made to engage [the father] in the process, thus overturning the decision to finalise the Case Plan at that time.[19]

22 The case plan was for the oldest child and stated that Child Protection had decided that there were some protective concerns in relation to him and 'was working by agreement with the family to address the concerns'.[20] It set out significant decisions for the oldest child's care and wellbeing. It stated that the oldest child did not wish to have contact with his father.

23 I will next describe the actions taken by the Secretary and the Child Protection Practitioners after the internal review.

24 The internal review decided to uphold Decision 1, which allowed the protection report to proceed to investigation. Child Protection decided that Decision 2 to suspend INP's contact with his oldest child was not legally binding, and that as a protection order had not been made, it had no legal authority to suspend INP's contact. The Federal Circuit Court orders remained in place and INP could contact the children. Decision 3, the substantiation decision, was overturned as the reviewer did not believe that INP was responsible for harm to the oldest child, or that that any act or omission by INP had contributed to that child being physically sick. The internal review also overturned Decision 4 which listed INP as a person responsible for causing harm to his oldest child as the review decided that the concerns for that child were not substantiated and that INP was not responsible for harm to him. Decision 5, the case plan, was explained as a decision to proceed with case planning without INP's involvement based on the Child Protection Practitioners wanting to comply with the obligation to progress with a plan for the oldest child in a timely manner.

25 While the review was being undertaken, the Principal Practitioner created a CRIS[21] case note, dated 29 July 2019 with the subject heading of '331 case plan review completed' which read:[22]

Details:

Case plan review completed - decisions to be recorded separately.

Decision made to overturn substantiation decision and responsible for harm decision. CRIS fix requested...

26 The Secretary informed the Tribunal that anyone accessing the relevant Department file would be directed to the case note and the letters containing the outcome of the internal review and the apology.[23] The Secretary informed the Member that the Department's database included 'a red-alarm symbol so that anybody accessing the file is directed to the correction'.[24]

27 On 3 September 2020, an Assistant Director, Child Protection, sent a written apology to INP, which included the following:

This letter is written to apologise for action taken by Child Protection during an investigation regarding the wellbeing of your children...

...

I understand that you have been disappointed by the conduct of Child Protection with regards to the decision made in October 2018, that contact between you and your children ought to be suspended. As the Assistant Director Child Protection, I write to offer you an apology for this and to acknowledge that it has been of ongoing concern to you and may have caused distress.

...

Child Protection did not have authority to make a determination about whether or not you could spend time with the children in circumstances where a Protection Application had not been issued, this should have been clearly explained to you and apologise that it was not. I further wish to confirm that the Child Protection Practitioners involved have been able to reflect on the situation and develop their practice for the future.

The actions taken by Child Protection were always intended to promote the safety and best interests of [the children].I sincerely regret any distress or disruption you have experienced as a result of your interactions with Child Protection and wish the best for you and your family moving forward.[25]

28 The letter of apology did not expressly address the consequence of INP being recorded on the database as the likely cause of harm to his oldest child.

29 INP was dissatisfied with the process and the outcome of the Department's internal review. On 5 September 2019, he commenced a proceeding in VCAT, seeking review of the five decisions, pursuant to s 331(1) of the CYF Act.[26] Section 331(1) and (2) provide:

Internal Review

(1) The Secretary must prepare and implement procedures for the review within the Department of decisions made as part of the decision-making process following the making of a protection order.

(2) The Secretary must ensure that a copy of the procedures prepared under subsection (1) is given to the child and his or her parent together with the copy of the case plan required to be given under section 168.

333. Review by Victorian Civil and Administrative Tribunal

1. A child or a child's parent may apply to VCAT for review of -

a) a decision contained in a case plan prepared in respect of the child under section 168 or any other decision made by the Secretary concerning the child; or

b) without limiting paragraph (a), a decision contained in a case plan prepared in respect of the child under section 168 by the principal officer of an Aboriginal agency or any other decision made by the principal officer concerning the child under an authorisation under section 18.

1. An application for review must be made within 28 days after the later of -

a) the day on which the decision is made;

b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.

1. Before a person is entitled to apply to VCAT for the review of a decision referred to in subsection (1), the person must have exhausted all available avenues for the review of the decision under section 331 or 332.

31 Section 51 (1)-(3) of the VCAT Act contain the Tribunal's powers when exercising its review jurisdiction and provide:

1. In exercising its review jurisdiction in respect of a decision, the Tribunal -

a) has all the functions of the decision-maker; and

b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

1. In determining a proceeding for review of a decision the Tribunal may, by order -

a) affirm the decision under review; or

b) vary the decision under review; or

c) set aside the decision under review and make another decision in substitution for it; or

d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

1. Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker -

a) is deemed to be a decision of that decision maker; and

b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

32 Section 124 of the VCAT Act empowers the Tribunal to make declarations. It provides:

Declarations

(1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.

(2) The Tribunal's power to make a declaration under subsection (1) is exercisable by a presidential member or a member who is an Australian Lawyer.

(3) The Tribunal's power under this section is in addition to, and does not limit, any power of the Tribunal under an enabling enactment.

33 On 30 August 2020, INP applied to VCAT for orders that he be provided with the Secretary's reasons for the five decisions be provided to him under ss 46 and 47 of the VCAT Act as well as the statement required by s 49.[27]

34 A Senior Member of the Tribunal dismissed INP's applications and determined that Decisions 2 to 5 were not justiciable because they had been overturned by the Secretary upon review ('the 2020 Tribunal decision').[28] The Senior Member stated that because s 333(3) of the CYF Act required that an applicant apply for internal review prior to making an application to the Tribunal, the internal review decision became the decision that was to be reviewed rather than the original decision.[29]

35 As the Senior Member decided that Decisions 2-5 were not justiciable, he considered that the only question was whether the reasons given in relation to Decision 1 were adequate to satisfy the requirements of s 45 of the VCAT Act. He considered that the internal review letter of 16 August 2019 and the Principal Practitioner's three affidavits and their exhibits satisfied those requirements. The Senior Member concluded:

The decision to 'accept the report at intake for investigation' necessarily means that all sides of the story have not yet been obtained at that time and that further investigation is required. The decision is the first step in investigating a report. And, at the stage the decision was made, the respondent would not have been in a position to deal with 'any conflict of evidence'. However, when one looks at the material as a whole that has been presented to the Tribunal, the conflict of evidence is now quite apparent and it is apparent that the review decisionmaker dealt with that matter and that the conflict of evidence is now properly before the Tribunal.

In my view, the material currently before the Tribunal as best the respondent can fulfil are all the requirements set out by Judge Bowman in Filonis' case. As such, the material provided an adequate statement of reasons pursuant to ss 46 and 49 of the VCAT Act.[30]

VCAT's decision of 5 June 2023 - the subject of this proceeding

36 In his decision of 5 June 2023, with which this proceeding is concerned, the Member decided that INP's application for review of Decisions 1 to 5 was 'now misconceived and lacking in substance because it was now futile to carry out a review'.[31] He therefore summarily dismissed the proceeding stating:

None of the decisions continue to have any operative effect. They have been overtaken by subsequent events as the Secretary submitted.[32]

37 The Member described Decision 1, made on 25 September 2018, to act on the intake report and commence an investigation as having already taken place and observed that, as INP agreed, VCAT could not 'turn back the clock' . He described the decision as no longer 'operative or impactful upon the rights or interests of INP or his children'.[33]

38 The Member received submissions about the Tribunal decision in QQQ v Department of Families, Fairness and Housing ('QQQ'),[34] which decided that no internal review under s 331 of the CYF Act could occur unless a protection order had been made.

39 The Member accepted that the Secretary's internal review decision to affirm Decision 1 was a nullity in accordance with the Tribunal's decision in QQQ and that there was no utility in reviewing it because it had no force or effect and had been overtaken by subsequent events.[35]

40 The Member stated that Decision 2 of 17 October 2018 to stop INP's contact with his children was not being enforced by the Secretary. INP shared the custody of his children with their mother in accordance with the Federal Circuit Court orders made in 2014. The oldest child was no longer subject to the jurisdiction of the Secretary, as he had turned 18.

41 The Member's reasons in respect of Decision 2 included that:

The Secretary submitted that INP now shares custody of his children with the mother and there are no restrictions imposed by the Secretary in relation to INP's custody of, or contact with, his children.[36]

the Secretary confirmed in its letters of apology dated 16 August 2019 and 3 September 2020, that the decision to suspend contact with the children was not legally binding because a Protection Order had not been made and that the Family Court order for shared parenting remained in place and therefore there were no barriers to INP contacting the child.[37]

42 The Member concluded that Decision 3 made on 31 October 2018 to substantiate that the oldest child was in need of protection and Decision 4, made to record INP as the person likely to cause emotional harm to the oldest child, had long ceased to have operative effect. The internal review decided to overturn both decisions because they could not be substantiated.

43 The Member concluded that even if the decisions to overturn Decisions 2 to 4 were not valid because the internal review decision was a nullity, INP did not dispute that the Department was no longer involved with him, or his children.[38]

44 The Member stated that Decision 5, made on 6 December 2018, to prepare a case plan has 'long had no operative effect or impact on the rights or interests of INP or the oldest child'.[39] He explained that:

A review of Decision 5 would be futile

Concerning Decision 5, the Secretary submitted that Child Protection has long ceased involvement with INP and [the oldest child], the case plan does not continue to operate, and the Secretary is not giving effect to it or purporting to do so.[40]

45 The Member concluded that there was no utility in the Tribunal retrospectively affirming or varying the case plan or substituting a new case plan.[41] He stated that none of the five decisions had any ongoing effect as they had been overtaken by subsequent events. Similarly, there was no utility in allowing a review of the decisions so that INP could seek declarations from the Tribunal in order to correct the narrative contained in the Department's records.[42]

46 In addressing INP's submissions about the effect of the five decisions on his contact with his children and their possible intergenerational effects, the Member noted that any search of the Department's records would reveal the internal review and that Decisions 2 to 5 had been overturned because the Secretary had no legal authority to make them. The search would also reveal the Department's apology for the Child Protection actions.[43]

47 After referring to a previous Tribunal decision, the Member noted that it was not the Tribunal's role, nor should the Tribunal's resources be expended, on 'such a futile exercise'.[44] He stated that:

As the QQQ decision made clear, the review jurisdiction of VCAT is to conduct a review on the merits of decisions which affect a person's interests; and there is no utility in reviewing decisions that no longer have any force or effect, or those that have been overtaken by subsequent events, and such application is lacking in substance. Further as Member Campana noted it is not the role of the Tribunal and nor should the Tribunal's resources be expended on such a futile exercise. Such an application is misconceived and an abuse of process.[45]

48 In the VCAT decision to which the Member referred, the Tribunal struck out an application to review a number of decisions and case plans made by the Secretary. The Member found that the review would be futile, lacked utility, was misconceived, lacked substance and was an abuse of process. The decisions and case plans no longer had force or effect, or were decisions made in a past investigation, or where a second investigation had been conducted, or where the actions sought to be reviewed were not decisions for the purposes of s 333 of the CYF Act, or because the Department lacked jurisdiction to conduct a review, or where a review would not have the effect of erasing time or re-creating history, or because the Family Court had relied on and given effect to, the substance of the decisions sought to be reviewed.[46]

49 The Member did not agree with INP that it would be in the children's interest to allow a review of Decision 1 as he considered that INP's and the children's rights or interests were now unaffected by that decision.[47] In concluding that a review of the five decisions would be futile, the Member stated:

Taking into account the Charter and the best interest of the child as the paramount principle under the CYF Act, for the reasons stated above, the application is dismissed under section 75 of the VCAT Act as misconceived and lacking in substance.[48]

VCAT acknowledges that the decisions and actions of the Secretary clearly had an impact on INP and the children and has caused significant distress and harm to INP and his relationship with the children, particularly, the oldest child. No parent should ever have their child or children removed from their care without legal authority. The Tribunal also acknowledges that INP has been frustrated with the delays by the Secretary in responding to his concerns.

While INP's application is dismissed under section 75 of the VCAT Act, these orders and reasons now form another part of 'the record' concerning the events in question.[49]

51 The Member decided that INP's application should be dismissed under s 75 of the VCAT Act as misconceived and lacking in substance.[50]

Section 75 of the VCAT Act - summary dismissal principles

52 The Secretary bore the onus of establishing that the Tribunal should summarily dismiss INP's proceeding. She had to establish that the proceeding was undoubtedly hopeless or that there was no real question to be tried. The Tribunal was required to exercise great caution in making such determinations. The Court of Appeal has described the terms in s75(1) of the VCAT Act, 'misconceived' and 'lacking in substance', as in essence referring to proceedings which it is readily apparent are hopeless and bound to fail.[51] The Tribunal had to reach a high level of satisfaction that INP did not have an arguable case, taking it at its highest, i.e. assuming that he would be able to establish the facts that he alleged.[52] A proceeding should not be summarily dismissed if its outcome may depend on evidence to be called at a final hearing.

53 The Secretary conceded and accepted that Decisions 2 to 5 should not have been made and were wrongly made. Decision 2 was wrongly made in law and on the merits; Decisions 3 and 4 were wrongly made on the merits and Decision 5 was wrongly made at law and on the merits. The Secretary submitted that Decision 1 had been correctly made.

54 The Secretary accepted that the decisions suspending INP's contact with his children and removing them from his care had been made without legal authority.[53] She and her delegates did not have power to alter the Federal Circuit Court's order that the children were to live with their mother and have contact and spend time with their father.

INP's grounds challenging the Tribunal's finding that the proceeding lacked utility

55 As mentioned, the Member concluded that none of the Child Protection decisions had any ongoing effect and had been overtaken by subsequent events. He considered that there was no utility in allowing a review of the decisions so that INP could seek declarations from the Tribunal to correct the narrative and the records.[54] The utility of INP's proceeding was a key issue addressed in the parties' oral and written submissions. A number of INP's proposed grounds of appeal addressed this issue directly or indirectly. For instance, in proposed grounds 9, 10, 11 and 12, INP contended that the Tribunal misinformed itself about his argument on the best interests of the children and the ongoing trauma caused to them and about the justice and desirability of lawfully resolving his Tribunal proceeding. In ground 12, which relates to question 5, INP contended that the Tribunal failed:

[T]o consider the real-world impact in finding that 'none of the decisions have any ongoing effect and have been overtaken by subsequent events'. The ongoing impact on the children and their relationship to their father, INP, is a relevant consideration particularly in light of the requirements concerning the best interests of the child and a child's rights under the Charter of Human Rights and Responsibilities Act 2006.

56 Also of relevance to INP's arguments about the utility of his review is ground 29, which relates to question 13 and which contended that the records created about him by Child Protection Practitioners identified him as a person of concern to be 'around children' and those records might be shared with external bodies.

57 INP relied on the ongoing effects of the Child Protection decisions, including on him and his children, to demonstrate the utility of his proceeding. His children needed to know that what had happened to them was wrong and should not have occurred. He sought orders overturning the five decisions and sought declarations that they were made unlawfully. His justification for those orders was that the internal review was unlawful and that the five decisions failed to have regard to the best interests of the children and to their and his Charter rights.

58 INP submitted that the Member did not take into account his need to obtain reasons for the five decisions in order to provide information to his children about Child Protection's actions, and to have the unlawfully made decisions set aside. He sought declarations about the legality of the Secretary's actions, given that she had apparently conceded that, save for Decision 1, the decisions were wrong and unlawful. INP sought a comprehensive explanation of what decisions were made and the reasons for their making. He sought the creation of a permanent record of the outcome of the dispute and its formal communication to the children with an acknowledgement of the gravity of their experience.

59 In support of the orders that he sought, INP relied on the decision in AA v Secretary, Department of Health and Human Services ('AA')[55] in which Incerti J issued declarations about the unlawful removal of children by the Secretary. Her Honour stated:[56]

The declaration determines that the Secretary's actions were unlawful and that the Secretary cannot unlawfully remove a child in circumstances similar to the present circumstances. In the circumstances it is also appropriate to make an additional declaration to vindicate the Father's claim that the Secretary denied him procedural fairness.

Declarations to this effect will bring finality to the parties on this claim. It allows them to chart the next course they wish to take, a course that should be away from judicial review proceedings. The Secretary, through the harsh lessons this experience must impose on her and her staff, will be able to conduct the case planning process in an appropriate and responsible manner. Importantly, the Father's can, if he wishes, pursue the legislative options open to him under the Act to challenge, revoke or alter the CBSO currently in effect.

60 Her Honour described the making of declarations as '[t]he better approach, and the orders that reflect the best interests of the Children'.[57]

61 The facts of AA were that the Secretary conceded a failure to afford procedural fairness to a mother and the grandparents of children whose care was in issue and also conceded breaches of the decision-making principles in s 11 of the CYF Act. These failures and breaches had occurred when Department officers purported to issue a Direction Notice to convert a Care by Secretary Order, under which the grandparents had care of the children, to a Family Preservation Order under which the father and his current partner would assume their primary care.[58] No notice of this action was given to the grandparents who then sought an internal review of the decisions. The Secretary contended that she had power to reconsider and correct the decisions and relying on the report of the review, determined that the Direction Notice was void and of no effect and that consequently the Care by Secretary Order remained in force under which the grandparents had care of the children. However, Incerti J held that the CYF Act did not authorise the Secretary, having decided that her delegates had made a jurisdictional error, to treat the prior decision to issue the Direction Notice as a nullity. Her Honour did however quash the Notice because it was made without procedural fairness being given to the grandparents and without consideration being given to the principles in ss 10 and 11 of the CYF Act.[59]

62 INP submitted that the decision in AA confirmed that the Secretary's actions in this case were unlawful and had denied him procedural fairness. AA was an example of declarations being granted as appropriate remedies in circumstances similar to those of his case.

63 The Secretary argued that central to the Tribunal's decision to summarily dismiss INP's proceeding was its lack of utility. On that basis, his other grounds of challenge to the Tribunal's decision, which concerned its constitution, its consideration of the children's best interests, his and his children's rights under the Charter and the Department's failure to provide a statement of reasons for the five child protection decisions and a s 49 statement, fell away.

64 The Tribunal accepted the Secretary's submission that whether or not the internal review was conducted lawfully, the five decisions no longer had any operation or impact upon INP's rights or interests, and therefore his proceeding seeking their review was futile. The Department was no longer involved with INP or his family and the Secretary had imposed no restrictions on his contact with his children. The case plan has lapsed, the oldest child was now aged 18 and the Department file has been closed since August 2019 when the internal review was completed. Nothing turned on the question of the status or lawful effect of the internal review.

65 Therefore, the Secretary contended that the Tribunal did not err in taking into account the Child Protection Practitioners' actions taken to redress the effect of Decisions 2, 3 and 4 which were overturned. Those actions recorded and formally acknowledged that the protective concerns had not been substantiated in respect of the oldest child and that INP was not responsible for causing harm to him.

66 The Secretary submitted that there was no utility in reviewing the five decisions or allowing INP to seek declarations to correct the narrative of the events described in the Department's records. Decision 1 was concerned with an investigation that had already concluded and it would not be in the children's best interests to allow a review of that decision when it did not affect INP's or the children's rights or interests. Decisions 2 to 5 were not justiciable because they had been overturned by the internal review. Decision 5 concerned a case plan which had lapsed. In similar cases, including in QQQ, the Tribunal had recognised that there was no utility in reviewing non-operative case plans and had summarily dismissed applications seeking such a review. The Secretary had acknowledged that the Child Protection Practitioners had acted in error in making Decisions 2 to 5 and an apology had been issued for those actions.

67 Any search undertaken by INP's children or other interested parties to find the Secretary's decisions would reveal records documents recording the internal review of the decisions and that Decisions 2 to 5 had been overturned because they had been made without authority. The search would also reveal the apology that had been issued.

Analysis of INP's grounds challenging the Tribunal's finding that the proceeding lacked utility

68 I do not consider that INP is likely to obtain orders overturning the five decisions as they have been overtaken by events and three or four of them were overturned by the internal review. But, in my opinion, if he succeeds at a further hearing in establishing that the decisions have ongoing adverse effects on him and his children, he has some prospect of succeeding in obtaining declarations that some or all of the five decisions were invalid.

69 Declarations are discretionary remedies and usually a lack of utility in granting them, including an absence of a real controversy and dispute, will be decisive against their grant. The purpose of declarations is 'the determination of matters in controversy between the parties and the limitation of proceedings'.[60] However, courts may grant declarations to vindicate reputations.[61] The grant of a declaration being a discretionary decision is usually fact dependent.

70 Section 124 of the VCAT Act confers a broad power on VCAT to make declarations, which however must be exercised in accordance with the principles I have mentioned.

71 I consider that it was arguable when the Member determined the summary dismissal application, that INP's case presented a controversy to be determined at a final hearing about whether the Secretary's decisions continued to have a significant adverse effect on him and his relationship with his children which the grant of declarations might alleviate. Because of that it is arguable that INP had a real interest in obtaining such a declaration and of establishing that it would have a foreseeable consequence for him and his children. The fact that the five decisions were no longer operative did not necessarily eliminate INP's claim that they, or some of them, have a significant adverse effect on INP, his reputation and his relationship with his children. That is a matter to be determined. For instance, decisions 3 and 4 included findings that INP was the likely cause of harm to his oldest child. INP's grounds and submissions contended that the Member adopted a too narrow approach to the ongoing effect of the decisions.

72 A decision by the Tribunal to grant declarations that some or all of the decisions were invalidly made, should that occur, may well have greater force and credibility than internal Department documents overturning Decisions 2-4. This is the case even though the Department has admitted the errors involved in Decisions 2 to 5, has made a written apology and has noted a correction on the Department's CRIS database. The apology did not expressly address Decisions 3 and 4.

73 I note that in the AA decision, on which INP relied, Incerti J issued declarations that the Direction Notice had some legal effect, even though made in jurisdictional error.[62] Her Honour declared that the Secretary's actions in removing children from their grandparents' care were unlawful. Her Honour also granted a declaration to vindicate the father's claim that the Secretary had denied him procedural fairness.

74 Then there is the possibility that, at a substantive or final hearing of INP's application, that the Tribunal will find that the proper consideration of his and his children's Charter rights, particularly the right to protection of the family, justifies the grant of the declarations that he seeks. As I conclude below, when dealing with questions 13, 14 and 24, I consider that the Tribunal did not give proper consideration to those rights. A court or a tribunal will often grant a declaration when human rights have been breached. This is because such a declaration has its own utility by encouraging the protection of human rights in the community. This approach is particularly relevant to actions and decisions taken under a statute which deals with the care and protection of children. Bell J's statements in Kracke v Mental Health Tribunal ('Kracke'), [63] a VCAT decision concerning delays in the conduct of reviews of involuntary and community treatment orders_,_ are relevant in this regard:

Earlier in this decision I spoke about the individual and communitarian purposes of the Charter, which was enacted to strengthen society and every individual in society. When a human right is breached, the individual is injured. Because of the broader role of human rights, society is injured as well. Human rights protect interests and values which society in Parliament considers to be fundamental, both to the individual and to the maintenance of democratic society based on the rule of law. Where human rights are breached, both the individual and society have a strong interest in the remedy of a declaration, in which inheres their final vindication.

...

Mr Kracke is entitled to the tribunal's clear expression of disapproval of the breach, and to vindication of his rights, by the remedy of a formal declaration. Society has an interest in the declaration being made. A mere finding of breach would not be enough.

...

Finally, I have decided it is important to exercise the tribunal's power to make a declaration of breach of human rights. Mr Kracke is entitled to vindication and the tribunal needs to express its disapproval of the breach. I also took into account the interest of the community in seeing that human rights are upheld, for this contributes to the maintenance of the rule of law in a democratic society. The declaration will also bring attention to the need to address the general issue of delay in conducting reviews of the involuntary treatment of mentally ill people.

75 Apologies and concessions of error may not always remove the utility of granting declarations. In any event, as I have mentioned, the Department's apology provided to INP was incomplete because it did not expressly deal with the recording contained in the database that INP was a cause of harm to his oldest child. In Dunlop v Department of Justice and Attorney-General (Qld),[64] Henry J, while noting that there must be some utility warranting the making of a declaration, stated that it did not follow that the capitulation by a respondent prior to the hearing of an application for declaratory relief would necessarily deprive a prospective declaration of its utility.[65] His Honour stated of the disputed legal point in that case that, '[i]t is of public importance that it be resolved because the livelihoods of licensees could be drastically jeopardised by erroneous bureaucratic applications'[66] of the relevant legislation. His Honour considered that a declaration would provide more reliable protection than the Department's belated acknowledgment. It would guard against a recurrent of 'such bureaucratic intransigence on the same point once away from the scrutiny of the court'.[67] In contrast, in Kosciolek v Commissioner of Police,[68] Fagan J distinguished Dunlop, on the ground that there was no public importance in the case before him in making a declaration of an invalidity in a penalty notice that had already been admitted.[69]

76 Another matter relevant to whether the Tribunal erred in its deciding that allowing INP's decision to proceed lacked utility is that the Tribunal was determining a summary dismissal application. I discuss the significance of this consideration in the next section of the judgment. However, on the question of utility, I note that INP informed the Tribunal that he was yet to present his full case, which it appears included evidence and submissions about the ongoing harm that he contended that the Child Protection's actions had caused. In those circumstances, it was not possible for the Tribunal to conclude that the remedies that he sought lacked utility.

77 Taking all these matters into account, I consider with respect that the Tribunal erred in law in deciding that there was no utility in INP being permitted to proceed with the review of the decisions, especially Decisions 2, 3 and 4, and to seek declarations about the breach or limitation of his and his children's human rights and about the children's best interests. I discuss this last matter below. INP therefore has established proposed grounds 9, 10, 11, 12 and 29.

78 I add that nothing in this judgment is intended to express an opinion on whether the Tribunal should grant INP remedies. That is not a matter for this Court to decide.

INP's grounds challenging the Tribunal's summary dismissal of the proceeding

79 INP raised the issue of whether it was appropriate for the Tribunal to grant summary dismissal in ground 8 (question 4) which relied on the Secretary's failure to provide submissions about the best interests of the children, ground 31 (question 14) which contended that a number of legal issues were unresolved and grounds 34-35, 41-42 (questions 16 and 18) which emphasised that he had not received a statement of reasons or a s 49 statement concerning the five decisions.

80 As mentioned, INP contended that the whole of his material was not before the Tribunal, including the reasons for the five decisions and the s 49 statement and documents, which might have advanced his case and have assisted the Member in deciding his review application. He disputed that the actions taken by the Secretary's delegates as part of and following the internal review were sufficient to deal with his concerns.

81 The Secretary contended that the Tribunal acted appropriately in deciding her summary dismissal application because INP's proceeding was futile. I have summarised these arguments in dealing with the issue of the utility of INP's proceeding, in the last section of this judgment and have not accepted them.

Analysis of INP's grounds challenging the summary dismissal of the proceeding

82 For a combination of reasons, I do not consider that it was appropriate, in accordance with the principles to which I have referred, for the Tribunal to summarily dismiss INP's proceeding on the basis that it was misconceived or lacked substance. First, INP was not ready to present his whole case at the summary dismissal application. At the VCAT hearing, he explained:[70]

The other thing I needed to mention was that I've come here to respond to the respondent's application to dismiss my proceeding. So, I've come here not prepared to discuss the overall merit of my case. Only in so much as, you know, I talk about the operative effect of a lot of these decisions and things like that. So, if this matter- so, basically, what I'm saying is this isn't my case, this isn't the entirety of my case and I understand that if my application was to proceed, it would be necessary for me to bring evidence, further evidence. And in that regard, I would be wanting to satisfy the tribunal about things like the long term effects of the department's intervention on my children, including, you know, the intergenerational effects of the forced removal of children and the like. Now, as I say, I haven't come here today prepared to deal with those issues because I understand that that's not what today is about.

83 Secondly, the Secretary did not present her submissions about the issue of the best interests of the children at the summary dismissal application. Rather her application was based almost entirely on the propositions that the grant of remedies to INP, including declarations, would have no utility and would be futile. The determination of the best interests of the children was likely to be and should have been an important matter in the Tribunal's decision of the Secretary's summary dismissal application. The Tribunal's task was to decide whether INP had established that it was arguable that he might obtain the declarations he sought at the final hearing and whether his application for a review should be allowed to proceed. Without submissions from the Secretary about the important issue of the best interests of the children, the Member did not receive the assistance desirable that would have enabled him to consider all the likely features of INP's case before deciding the summary dismissal application.

84 Thirdly, the fact that the five decisions may no longer have had an 'operative effect' did not necessarily lead to the conclusion that they no longer had an effect on INP, his reputation or his relationship with his children. The answer to those questions is likely to depend on the assessment of any evidence of facts led at a final hearing. If INP established that the five decisions or any of them still had a significant adverse effect on him or his relationship with his children, then it is possible that the Tribunal, at the final hearing, might have granted him a remedy.

85 Fourthly, the grant of declarations, including by VCAT under its wide power in s 124 of the VCAT Act, involves the exercise of a discretion which is very fact dependent.

86 Fifthly, the grant of declarations in cases involving Charter rights raise issues of public interest. Bell J's statement in Kracke emphasises this point. As I later conclude, in my opinion, the Member did not give proper consideration to INP's Charter arguments.

87 Sixthly, there were unresolved issues which may have affected the final outcome of the proceeding. These included whether INP should receive further reasons for the five decisions or a s 49 statement. A submission that INP did not require reasons for the five decisions because his proceeding lacked utility is a circular argument.

88 For those reasons, I consider that INP has established proposed grounds 8, 31, 34-35, 41 and 42 which contend, directly or indirectly, that the Tribunal should not have granted the Secretary's summary dismissal application.

INP's remaining questions of law and proposed grounds of appeal

89 I have decided in the two preceding sections of this judgment that INP has established a number of his proposed grounds. I consider that on those grounds, taken together, that INP is entitled to be granted leave to appeal and to have VCAT's order set aside and to obtain the rehearing of his review application. Although it will considerably lengthen this judgment, for completeness I will proceed to consider the remainder of the issues raised by INP's questions of law and proposed grounds although this will lead to some overlap with issues that I have already discussed.

90 INP's amended notice of appeal contains 26 questions of law and 61 proposed grounds of appeal. I will consider them according to the issues they raise, largely applying the groupings used by the parties in their submissions. When in this judgment I refer to a question of law and its grounds, I am referring to the questions and its proposed grounds of appeal.

Questions of law 1-3: Constitution of the Tribunal

91 INP's questions of law 1, 2 and 3 and their related grounds challenged the constitution of the Tribunal for the hearing of his review application. He contended that the Member, acting as the Tribunal, did not have jurisdiction to determine the Secretary's summary dismissal application because it was not properly constituted in accordance with cl 5 of Schedule 1 of the VCAT Act. That clause requires that every Tribunal member involved in any decision-making capacity in respect of the CYF Act be a person who, in the opinion of the President of VCAT, has knowledge of, or experience in, child welfare matters. INP also contended that a Tribunal Member must, if asked, provide the parties with information that would confirm that the President of the Tribunal had formed the opinion that the Member satisfied the criteria in cl 5 of Schedule 1.

92 Clause 5 of Schedule 1 to the VCAT Act provides:

Constitution of Tribunal

In a proceeding under section 42, 118, 158 or 333 of the Children, Youth and Families Act 2005, the Tribunal is to be constituted by, or to include a member who, in the opinion of the President, has knowledge of, or experience in, child welfare matters.

93 INP pointed to r 2.09(1) of the Victorian Civil and Administrative Tribunal Rules 2018 which provides for the President to assign a member, other than a Vice President, to one or more Lists of proceedings. In making an assignment, the President 'must have regard to any special knowledge or experience relevant to determining the class of matters in respect of which functions may be exercised by the Tribunal in that list'. The assignment must be in writing and a member, other than the President or a Vice President, may only sit in a proceeding in the list to which they are already assigned (r 2.09(4)). Rules 2.07 and 2.08 prescribe a process for the Principal Registrar to enter and allocate proceedings into Lists.

94 During the Tribunal hearing, INP asked the Member for information that would explain how he met the requirements of cl 5 of Schedule 1. The Member replied that he had worked for at least 10 years in matters in the Children's Court, Family Division as a solicitor.[71] The Member provided other information about his experience managing children and family cases. INP then thanked the Member, who then asked counsel for the Secretary if he wished to say anything about the question raised by INP, but he did not. The Member then asked INP: 'Any other questions about that or any issues around that?'[72], to which INP stated: 'No, thank you.'[73] However, the Member then provided further information about his legal experience. Having received that information, INP did not make any submission during the hearing that the Tribunal was not validly constituted.

95 INP accepted that he bore the onus to satisfy the Court on the balance of probabilities that the constitution of the Tribunal by the Member did not comply with the requirements of cl 5 of Schedule 1.

96 INP explained that after the summary dismissal order, he attended VCAT's Registry and inspected the case file, but did not find a record or notation showing that cl 5 of Schedule 1 had been complied with. INP corresponded with the Registrar seeking information about any records of the President's consideration of the constitution of the Tribunal under cl 5 of Schedule 1 and if so, how they were held 'in what form or location'.[74] A Tribunal Registrar replied stating that the President's consideration and opinion in relation to the Member's knowledge or expertise in child welfare matters were recorded in internal emails. The Registrar wrote that '[a]s these emails relate to the President's decision regarding operations of the Tribunal, these emails would not appear on a proceeding file and are not provided to parties or members of the public'.[75]

97 INP submitted that the Member's failure, as he contended, to consider properly the best interests of the child in deciding the s 75 application together with the Secretary's failure to provide the Member with any material submissions about the issue of the best interests of the children raised concerns about whether cl 5 of Schedule 1 had been complied with.

98 The Secretary relied on the presumption of regularity applying to the constitution of the Tribunal. He referred to Kyrou J's description of that presumption in Johnson v Director of Consumer Affairs Victoria in the following terms_:_

It has been said that '[t]he natural home of the presumption of regularity is public law'. Its effect is that, where the exercise of a power or the performance of an act by a public officer or public authority is proved, it will be presumed that the pre-conditions to the lawful exercise of that power or performance of that act have been met:

Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled.[76]

99 The Secretary submitted that applying the presumption of regularity and in the absence of INP proving otherwise, the Court should be satisfied that the presiding Member was a person who, in the opinion of the President, had knowledge of, or experience in, child welfare matters. The presumption of regularity operated to fill any evidentiary gap concerning those matters. INP had provided no foundation on which the Court could find that the Tribunal was not properly constituted. The Registrar's letter indicated that the President had given consideration to the Member's knowledge of relevant matters and had formed the opinion that he had the required knowledge or experience. INP had not requested the Member to provide information that would confirm that the President had formed that opinion and had declined the Member's invitation to raise any further question arising from the information that he had provided.

Analysis of questions of law 1-3 and its grounds: Constitution of the Tribunal

100 The presumption of regularity applied to the Tribunal's constitution to hear and determine INP's application for review as those functions were the exercise of a power and the performance of an act by a public officer. INP did not rebut that presumption. In any event, the statements made by the Member indicate that he had the necessary knowledge or experience in child welfare matters. INP did not seek any further information from the Member or make any submissions on the issue. No evidence was presented to the Court that would rebut the presumption of regularity that the Tribunal was regularly constituted and that cl 5 of Schedule 1 had been complied with.

101 INP has not established his proposed grounds 1-6, which relate to questions of law 1 to 3, and which challenge the constitution of the Tribunal.

Questions of law 4-7 and 25: the best interests of the children

102 INP relied on the decision-making and best interests principles contained in the CYF Act. He submitted that the Secretary was obliged by s 8(2) to have regard to those principles in making any decision, or taking any action, under the Act or in providing any service under this Act to children and families. The Tribunal had to consider the principles in deciding the Secretary's summary dismissal application.

103 Section 10 contains the best interests principles and s 10(1) states that for the purposes of the CYF Act the best interests of the child must always be paramount. Section 10(2) provides that:

When determining whether a decision or action is in the best interest of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.

104 Section 10(3) states that in determining what decision to make or actions to take in the best interests of the child, consideration must be given to 17 specified considerations and any other relevant consideration, where it is relevant to the decision or action. Section 10(3)(a) states the following consideration:

the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;

105 Section 11 is headed 'Decision-making principles' and provides that in making a decision or taking an action in relation to a child, the Secretary or a community service must also give consideration to 11 specified principles. These include that the child's parents should be assisted and supported in reaching decisions and taking actions to promote the child's safety and well-being (s 11(a)); that the decision-making process should be fair and transparent (s 11(c)); that the views of all persons who are directly involved in the decision should be taken into account (s 11(d)); that decisions are to be reached by collaboration and consensus, wherever practicable (s 11(e)); that the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the child) should be encouraged and given adequate opportunity to participate fully in the decision-making process (s 11(f)); that persons involved in the decision-making process should be given a copy of any proposed case plan and sufficient notice of any meeting proposed to be held (s 11(1)(g)) and provided with the opportunity to involve other persons to assist them to participate fully in the process (s 11(h)(ii) and (iii)).

106 INP's questions 4 and 5 contended that the Tribunal was required to, but did not, consider the best interests of his children and any impact on them of summarily dismissing his application to review the five decisions. The Member did not weigh or apply INP's arguments about the intergenerational trauma caused to the children by their unlawful and forcible removal from contact with him, or about their best interests. The Secretary did not make any submissions about these issues. The Member reduced INP's submissions to being about the face of the Secretary's records. In ground 8, which relates to question 4, INP contended that the Secretary had not provided the Tribunal with any evidence or submissions on the issue of the bests interests of the children. The Member had failed to consider that the Secretary proposed only to make submissions about that issue at any final or substantive hearing of his proceeding.

107 INP emphasised that the Secretary, in making a decision or taking action relating to a child must consider the principles in s 11 of the CYF Act. He submitted that the Child Protection Practitioners acted beyond their authority and did not follow the collaborative and consent-based approach required by s 11, resulting in the unlawful removal of children from contact with him.

108 INP submitted that if those principles were not considered and the proceeding summarily dismissed, the parties would not have had the opportunity to address the Tribunal on them.

109 In question 7 and its related grounds, INP contended that the Secretary was obliged to consider the best interests of the children before summarily dismissing his proceeding. The Member was also obliged to consider his submission that the Secretary did not formally provide information to the children about the events occurring after Child Protection's five decisions. The children were entitled to receive that information, but there was no certainty that they would. Question 25 contended that the Tribunal made an error of law in finding, without supporting evidence, that the children's interest in understanding what had happened to them could be met by them accessing child protection information.

110 In question 6, INP contended that the Secretary was estopped from arguing, as she had in some jurisdictions, that the best interests decision-making principles in ss 10 and 11 of the CYF Act were mandatory, but in other jurisdictions or cases arguing that they were not. The Secretary was obliged to act consistently and abide by the Model Litigant Guidelines but had not done so. INP had addressed the issue of the best interests of the children and the ongoing impact on them of the child protection intervention in his submissions to the Tribunal. He criticised the Secretary for not addressing those issues because she considered it irrelevant to her summary dismissal application. The Member erred in accepting the Secretary's approach to the best interests principles and to their lack of relevance to the summary dismissal application.

111 The Secretary submitted that the Tribunal was not required to apply the best interests principles in determining her s 75 application. In considering that application, the Tribunal was not standing in the shoes of the Secretary and making a decision, or acting under the CYF Act, but was exercising its powers under the VCAT Act to summarily dismiss proceedings which were misconceived or lacking in substance because they had no utility. In determining the Secretary's application, the Tribunal was not required to consider the merits of INP's review application. The Tribunal when exercising its review powers of decisions made under the CYF Act was only obliged to apply the 'best interests' principles to specific decisions and not to the determination of a summary dismissal application, which was governed by provisions in the VCAT Act.

112 The Secretary argued that, in any event, the Tribunal did apply the best interests principles. While, as the Tribunal accepted, it could not 'turn back the clock',[77] it noted INP's submission that, with the assistance of a tribunal or court, he could at least correct the narrative of what occurred, and the records, and it was in the best interests of the children for that to occur.[78] The Tribunal summarised and therefore considered INP's submissions on the children's best interests, but nevertheless decided to summarily dismiss his application.

113 INP's case to the Tribunal did not include that the Secretary's actions to alter the five decisions had been ineffectual because she had not informed the children of them, in fact, the oldest child was so informed. Rather, INP had submitted that it was in his children's best interests that records will be available to them, when they are old enough and interested, that explained the reasons for Child Protection's intervention.[79] The Tribunal was entitled to find that the children would be able to access the Child Protection information and records. INP's implicitly acknowledged that to be the case by his contention that it would be in his children's interests that the Department's records be lawfully corrected.

114 The Tribunal had not reduced INP's submissions to being about the face of the Secretary's records rather than about the ongoing trauma caused to the children and his right to the lawful resolution of his VCAT application. The Tribunal correctly approached these two issues as going hand-in-hand.

115 INP had not established that the Secretary had acted inconsistently in her approach to the application of the best interests principles in other cases.

Analysis of questions of law 4-7 and 25 - the best interests principles grounds

116 I do not accept the Secretary's submission that the Tribunal, when deciding the summary dismissal application, was not required to have regard to the best interests principles contained in the CYF Act.

117 If the Tribunal had conducted the review that INP sought, it would have exercised all the Secretary's powers under the CYF Act applicable to the five decisions. In deciding the Secretary's summary dismissal application, the Tribunal had to determine whether INP's proceeding was lacking in substance or misconceived within the meaning of s 75 of the VCAT Act. To do so, it was obliged to have regard to the issues and arguments on which INP might rely at the final hearing of the proceeding and their possible determination. Those issues and arguments were likely to include that the Tribunal had to take into account and observe the best interests principles stipulated by the CYF Act. INP was also likely to argue that the Tribunal, standing in the shoes of the Secretary and applying those principles, should reach a different decision than the Secretary had.

118 Question 4 and its grounds concern whether the Tribunal gave consideration to the best interests of the children. That consideration is mandatory. It would be open to the Tribunal at the substantive hearing to decide that the matters that INP identified as relevant to the children's best interests were not relevant or not be given weight on the facts of this proceeding. But that said, the Tribunal was obliged in determining the Secretary's summary application to consider the strength of the case that INP was likely to present at the substantive hearing, including how consideration of the best interests of the children affected his likely case.

119 In his reasons, the Member summarised INP's submissions, including about the inter-generational impacts of the Department's decisions. He noted INP's submission that the best interests of the children included having records available to them that explained what happened when Child Protection intervened and why it had so acted. He noted INP's submissions about his and his children's rights under the CYF Act. The Member stated that he took into account the best interests of the children but still decided that the application was misconceived and lacking in substance and that it was in the best interests of the children that INP's application be dismissed because the decisions no longer had operative force.

120 While referring to INP's submissions and stating that he had taken them into account, with respect, the Member did not state in detail his conclusions about them, in particular whether the five decisions might have lasting effects on INP and his children and whether that consideration justified allowing INP's proceeding to progress. He described the decisions as no longer having any 'operative effect', but, with respect, that conclusion, while based on the fact that the decisions had lapsed or been overturned, did not deal with INP's case about the ongoing effect of the five decisions on him and his relationship with his children. Whether those effects existed or were significant raised issues of fact.

121 It is significant that the Secretary made no substantive submissions about the best interests of the children because she considered that they were only relevant at a final hearing of the proceeding.

122 I consider that INP has established the proposed grounds on which he challenged the Tribunal's approach to, and findings on, the issue of the best interests of the children. This is because, as I have concluded above, this case required to go to a final hearing to decide issues including the best interests of the children. The Secretary contended that issue should be only addressed at final hearing, if one occurred. However, the best interests consideration was mandatory. It raised matters of fact, which at least in this case, could not be decided on a summary dismissal application. As I have previously concluded, this issue was not necessarily decided by describing the five decisions as not having any continuing operative effect. As a result, INP has established proposed grounds 7, 8, 9, 10, 11 and 12, which include contentions put in different ways that the Member did not adequately consider the issue of the best interests of the children.

123 Question 7 and its related grounds 16-18 contended that the Tribunal failed to consider INP's submission that the Secretary had not informed the children about what had happened after Decisions 2, 3 and 5, given the requirement to consider their best interests. In ground 18, INP contended that because there had been no lawful setting aside of the original decisions, there was 'no certainty or clarity, on the nature of an explanation that could, in any event, be provided to the children'. Although, the decision-making principles in s 11 include that the Secretary must give consideration to the decision-making process being fair and transparent (s 11(c)), the CYF Act contains no mandatory provision that the Secretary must explain the decisions to the children. In any event, the internal review letter of 16 August 2019 records that a Child Protection Practitioner discussed the decision to overturn Decisions 3 and 4 with the oldest child and his mother. Proposed grounds 16, 17 and 18 are not established.

124 In question 25 and its related grounds 56 and 57, INP contended that the Tribunal had no evidence on which to find that the children would have access to the public record of Child Protection's interventions. In my opinion, it was open to the Tribunal to make that finding based on general public knowledge of the access that individuals have to public records about them. INP's case also suggested that the children may access those records in the future. In addition, as mentioned in the previous paragraph, it appears that the oldest child was informed of the overturning of Decisions 3 and 4.

125 In question 6 and its grounds INP challenged the Secretary's approach in not making submissions about the relevance of the best interests of the children to her summary dismissal application, which he contended was inconsistent with her approach in previous proceedings. In my opinion, INP has not established that these grounds, being 13 to 15, contain any error of law by the Tribunal. Examples of inconsistency by the Secretary in her approach to the best interests principles, assuming that they occurred, do not affect the orders made by the Tribunal. It is important to bear in mind that this proceeding is an application for leave to appeal orders of the Tribunal based on questions of law. It is not an appeal against, or an application to judicially review, decisions made by the Secretary or her delegates.

126 To repeat, I consider that INP has established proposed grounds 7, 8, 9, 10, 11 (question 4) and 12 (question 5), but not the other grounds related to those questions. I have previously decided that INP has established most of these grounds in respect of his challenge to the Tribunal's finding that his proceeding lacked utility or in respect of his challenge to the Tribunal's summary dismissal of the proceeding.

127 Finally, I add a question may arise whether the application of the best interests of the children principle leads to the conclusion that it is not desirable that this proceeding continue because it may add to the difficulty of restoring relations between INP and his children. No substantial submissions addressed this issue, and if it is relevant, about which I make no finding, it can be raised at the further review hearing in VCAT which I will order.

Questions of law 8-12, 20, 21, 23 and 26: Lawfulness of the internal review grounds

128 INP challenged the lawfulness of Child Protection's actions taken as a result of the internal review. Both parties accepted that the Tribunal in QQQ had correctly decided that the Secretary was only authorised to conduct an internal review pursuant to s 331 of the CYF Act following the making of a protection order by the Children's Court. INP so contended in question 8. As no protection order had been made, I consider that the internal review was conducted without statutory authority as QQQ decided.

129 In questions 9, 10 and 12 and their related grounds, INP contended that, if the decision in QQQ was correct, then the internal review, in which he was compelled to participate, was a nullity. In that event the actions upon which the Secretary relied to establish that she had addressed INP's concerns were also unlawful and beyond power. It also followed that the Child Protection Practitioner's amendments to the Department's records to record that the oldest child was not at risk of harm and that INP was not responsible for causing him harm, were a nullity and of no effect. In question 23 and its related ground, INP contended that the Tribunal erred by relying upon the Department's actions taken as a result of the internal review in deciding to summarily dismiss INP's proceeding.

130 In questions 11, 20 and 21 and their related grounds, INP raised similar issues. He contended that the Tribunal erred in deciding the Secretary's s 75 application by relying on her actions taken as a result of the internal review in order to address his concerns about his and his children's legal rights.

131 In question 26 and its related grounds, INP contended that the Secretary could not rely upon actions to alter her decisions and records that were beyond her legislative power and that by doing so she had wrongly endorsed the invalid internal review. She should have provided age-appropriate information to the children notifying them of her alterations to the five decisions. INP submitted that he and the public were entitled to finality and certainty about child protection decisions. In question 23, he contended that his application was only for review of the five decisions and not of the internal review decision. Therefore, in determining the Secretary's s 75 application, the Member should not have considered the outcome of the internal review or the actions taken as a result of it.

132 INP submitted that as the Secretary had no power to conduct the internal review, then she had no power to make administrative alterations to her decisions which followed from that review. INP relied on Incerti J's judgment in AA, to support that contention. In addition, he contended that the Secretary had adopted an ad hoc process to the review which took eight months to complete.

133 INP relied on the Secretary's actions in apparently resiling from four of the five decisions. While she argued, and the Tribunal accepted, that the original decisions were no longer operative and would be futile to review, in effect, she suggested that she could walk away from the five decision and treat them as null and void.

134 The Secretary submitted that the Child Protection Practitioners did not have authority to conduct the internal review under s 331 of the CYF Act as QQQ established. She submitted however that the Tribunal had correctly found that nothing turned on the question of the lawful effect of the internal review.

135 The Secretary submitted that there was now no dispute that INP was not responsible for causing harm to his children and that the children were not in need of protection. INP was no longer recorded on the Department's CRIS database as responsible for causing harm to his oldest child and there was no utility in the Tribunal making a declaration to that effect. His reputation had been restored as far as possible by amendments to the Department's internal documents, including to the CRIS database. The decisions INP sought to review have been surpassed by subsequent events. Therefore, any errors associated with the conduct of the internal review were not material errors. The invalidity of the internal review did not render invalid actions taken by the Secretary subsequent to the internal review or prevent the Tribunal taking them into account.

136 The Secretary submitted that nothing in the CYF Act demonstrated an intention that the Child Protection Practitioners could not further investigate or create further records of an investigation's outcome, including by adding to or reversing the outcome. The Department had an obligation to keep records of protective intervention reports, and, on the completion of an investigation, to make a written record of its outcome. The powers to conduct an investigation and record its outcome contained in s 205 of the CYF Act carried an implied or incidental power to further investigate, or further consider an investigation's outcome. The Secretary therefore had power to overturn earlier decisions, particularly when they were not final decisions, but were part of an ongoing process. The exercise of this implied or incidental power might be appropriate where a doubt arose as to the outcome because of the receipt of new information. That is what the internal reviewers had done and the Tribunal was correct in having regard to the practical effect of their actions. It would be absurd if she were effectively bound by the initial findings and could not update them with new information.

Analysis of lawfulness of internal review grounds - questions 8-12, 20-21, 23 and 26

137 These questions and their related grounds principally concern whether the internal review conducted by the Secretary was unlawful and, if so, whether the Tribunal erred in giving weight to the decisions taken as a result of it.

138 I accept that the Tribunal's decision in QQQ was correctly decided. Section 331(1) of the CYF Act provides for a review within the Department of decisions made as part of the decision-making process following the making of a protection order by the Children's Court. No such order had been made. INP brought the QQQ decision to the Tribunal's attention and relied on it.

139 However, I do not consider that the Member erred in having regard to actions taken by the Department following the internal review, including overturning Decisions 2, 3 and 4. It is noteworthy that INP, while seeking court orders that the five decisions were wrongly made and had damaged him and his children, is seeking to have the Court disregard the steps the Child Protection Practitioners took to redress actions taken in respect of the five decisions.

140 In my opinion, the internal reviewers did not need a specific statutory power to reverse decisions made in the course of the investigation, as at least Decisions 2, 3 and 4 were not based on express statutory powers, but rather were steps taken in an investigation.[80] The internal review did not affect Decision 1, which was not overturned. It involved a decision to 'intake' a protection report. The internal review also did not affect Decision 5, which was the case plan which had lapsed, in circumstances where the oldest child had turned 18. Decisions 2 to 5 were taken by Child Protection Practitioners in connection with an investigation of the original intake report.

141 The question whether the Secretary had power to vary or revoke the five decisions requires consideration of the provisions of the CYF Act. I consider that the Act does not deal with matters such as Decisions 2, 3 and 4, rather they were steps taken in the course of an investigation provided for in s 205. Therefore, I consider that the internal reviewers could update or modify decisions made during the course of such an investigation. It is in the nature of an investigation that opinions and conclusions may be modified or amended upon further consideration or the receipt of new and relevant information.

142 The decision in AA is distinguishable because it dealt with a decision that could be set aside by the Children's Court under provisions contained in the CYF Act. Incerti J therefore concluded that the Secretary could not unilaterally decide that the Direction Notice, which altered the persons who were to care for the children, was of no effect without making an application under the relevant statutory provision to revoke that Notice. In this case, Decisions 2, 3 and 4 were not based on express statutory power. Therefore, the CYF Act contained no express statutory provision for their revocation or alteration which the internal reviewers needed to follow.

143 The High Court's decision in Minister for Immigration and Multicultural Affairs v Bhardwaj ('Bhardwaj'),[81] is of assistance in considering the authority of decision-makers to disregard previous decisions. The majority of the Court accepted that no reason in principle existed why the general law should treat administrative decisions involving jurisdictional error as binding or as having legal effect unless and until set aside. Such a decision lacks legal foundation and is no decision at all.[82] However, the High Court's approach in Bharadwaj does not require that the operational effect of the internal review decision be disregarded for all purposes.

144 In AA, Incerti J stated that Bhardwaj established firmly in Australian law that administrative decision-makers may have the power to 'reconsider', 'correct' or 'rectify' decisions made that are infected by jurisdictional error, but whether they do depends on the terms of the statute conferring power.[83]

145 I consider that the Secretary had power to reconsider, alter or revoke at least Decisions 2, 3 and 4 as part of the internal review.

146 I next consider whether actions taken without power can be considered because they have an effect that the Tribunal could take into account. I note that there is nothing novel in the Tribunal reviewing decisions that were taken without power. Thus, it can review a decision that is a purported exercise of a function conferred or imposed by or under an enactment: s 4(2)(a) of the VCAT Act. Similarly, a decision that purports to be made under an enactment is deemed to be a decision made under that enactment, even if the decision was beyond the power of the decision-maker: s 4(2)(b).[84] Therefore, the Tribunal could review the five decisions whether or not they were lawfully made.

147 Although the internal review was invalid, I consider that the Tribunal could take it and the Secretary's actions as part of it, including the overturning of Decisions 2, 3 and 4, into account in determining the utility of INP's proceeding. Those actions had effect in fact, regardless of whether they were valid. For example, the notation on the file and the issuing of an apology were actions that occurred and which the Tribunal was entitled to take into account.

148 I therefore do not accept INP's contention made in one form or another in proposed grounds 19-27, 47-51, 54, 58, 60 and 61 that the Tribunal should not have taken into account the internal review or actions by the Secretary following it. The Tribunal did not err in law by taking those matters into account in deciding the utility of INP's proceeding.

149 But, for the reasons I have given earlier in this judgment, I consider that the Tribunal erred in deciding to summarily dismiss the proceeding on the ground that it lacked utility. Nor was it a case suitable for summary dismissal, even though Child Protection's actions taken as part of the internal review could be taken into account.

150 I do not consider that the contention in ground 59 that the Secretary was required by the best interests principles in the CYF Act to provide age-appropriate information to the children notifying them of her altered position assists INP to establish that the Tribunal acted invalidly. In my opinion, the CYF Act contains no such obligation as I have explained in considering question of law 7.

151 INP's questions 13, 14 and 24, concern the application of the Charter of Human Rights and Responsibilities Act 2006 ('Charter') to the Tribunal's decision and the children's and INP's rights under it. An initial question arose whether the Member had to consider their human rights under the Charter in determining the Secretary's summary dismissal application.

152 Question 13 and its related grounds contended that the Tribunal was required to consider INP's rights under the Charter separately from the children's before it summarily dismissed his application for review of the five decisions, but did not do so. He contended that the records about him created by the Child Protection Practitioners 'which identified INP as a person to be concerned about around children' can and will be shared with external parties, including, for example, the Working with Children regulators. Question 14 is to similar effect and its related grounds contended that INP had legal rights distinct from the children's to address the legal issues caused by the Secretary's invalid actions. He argued that the Tribunal should not have summarily dismissed his proceeding when legal issues created by the Child Protection Practitioners remained unresolved.

153 Question 24 and its related grounds contended that the Tribunal's reasons for summarily dismissing INP's proceeding were inadequate because they failed to properly consider the Charter issues that he had raised. It was inadequate to merely mention Acts or decisions and not apply them to the facts and evidence in the proceeding.

154 On 30 April 2024, I ordered the Secretary to serve a notice on the Attorney-General of Victoria and the Victorian Equal Opportunity and Human Rights Commission under s 35 of the Charter together with the VCAT decision and other Court documents because the proceeding raised Charter issues and the required Charter notice had not been served.

155 In response to the Charter notice, the Victorian Equal Opportunity and Human Rights Commission advised the Court that it did not seek to intervene in this matter under s 40 of the Charter, and as a result did not make submissions.

156 The Attorney-General for Victoria, the Secretary and INP thereafter served Charter submissions, the last of which was filed on 19 July 2024.

157 The Attorney-General provided extensive written submissions. She submitted that VCAT, in exercising its merits review jurisdiction of an administrative decision, was acting in an administrative capacity and should be considered a public authority to which s 38(1) of the Charter applied.[85] The summary dismissal order was made in the course of the review proceeding and took its character from it. It followed that in making the dismissal order VCAT was acting in an administrative capacity. The Attorney-General submitted that VCAT generally operates in an administrative capacity in exercising its review jurisdiction. It is not concerned with resolving controversies about existing legal rights and obligations, but in determining whether to establish new rights and obligations by re-exercising the original decision-maker's administrative functions, powers, and duties.

158 The Attorney-General submitted that in this proceeding, INP had invoked VCAT's review jurisdiction to review a decision by a decision-maker, as provided by an enabling enactment. She referred to relevant features of VCAT's review jurisdiction, including that it stands in the shoes of the original decision-maker to make the correct or preferable decision based on the material before it. This function involves re-exercising the essential function of the original decision-maker based on VCAT's independent assessment and determination of necessary matters. The Attorney-General analysed the Tribunal's review powers contained in s 51 of the VCAT Act.

159 The Attorney-General submitted that each of the five decisions in issue was a conventional administrative decision made in the context of an ongoing child protection investigation under the CYF Act. None of the decisions was judicial in character. Section 333 of the CYF Act uses standard language to give VCAT review jurisdiction of certain decisions and the Act does not authorise VCAT to do anything more than conventional merits review.

160 The Attorney-General relied upon the VCAT decision in Kracke, in which Bell J decided that VCAT was acting in an administrative role when reviewing decisions for compulsory and community treatment orders under the Mental Health Act 1986.[86] The Attorney-General distinguished my decision in WUT v Victoria Police[87] and its use of the quasi-judicial characterisation to describe the Tribunal's function in that case, which she submitted should not be followed. That decision concerned VCAT's review of a decision by Victoria Police to refuse to renew a private security licence under the Private Security Act 2004.

161 The Attorney-General relied on the context provided by the Tribunal making the summary dismissal order during the review proceeding and submitted that the character of that determination was defined by that context. She argued that the summary dismissal power in s 75 of the VCAT Act resembled the summary dismissal and strike-out powers commonly exercised by courts which are judicial in character. The power is essentially to end a proceeding without a full hearing and determination on the merits and it is not inherently judicial or administrative. Instead it takes its character from the context, including the nature of the proceeding in which it is exercised. Therefore, since the decision to dismiss the proceeding was functionally equivalent to a decision on the merits, it should also be considered administrative. In making the dismissal order, VCAT was acting in an administrative capacity and qualified as a public authority under s 38(1) of the Charter. INP's application for declaratory relief could not of itself convert what was otherwise an exercise of administrative power into an exercise of judicial power.

162 INP agreed with the Attorney-General's submissions that the Tribunal was a public authority for the purposes of s 38(1) of the Charter because it was reviewing administrative decisions. The Tribunal therefore had to comply with the obligations contained in s 38(1) of the Charter, which provides:

(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

163 INP relied on a number of his and his children's Charter rights. These included the right to privacy and reputation contained in s 13(1), which provides that:

(a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b) not to have his or her reputation unlawfully attacked.

164 He also relied on s 17, which contains the right to the protection of families and children, and provides:

(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

165 INP also relied on the right to recognition and equality before the law contained in s 8 of the Charter. He argued that he had been treated like a 'stranger to the children', whereas their mother had been treated as a parent. He also relied on his children's Charter rights to liberty and security of person contained in s 21. He submitted that the children had been ripped away from their family and his care without a court order because of allegations which were never properly investigated. His relationship with his oldest child was permanently destroyed, although as at 18 July 2022, the oldest child had arrange three short visits with his father. [88] He argued that the children's foundational family relationships were shattered. These actions breached the Secretary's obligations under the Charter.

166 INP submitted that the Member was obliged to comply with the Charter, without first requiring applicants to raise Charter rights. Compliance was crucial in cases involving children where their human rights and best interests are paramount and are additional to their rights under the CYF Act. The Secretary had not explained how she had considered his and the children's Charter rights.

167 INP submitted that as the Tribunal was a public authority for the purposes of s 38(1) of the Charter, it was obliged to give proper consideration to his and his children's human rights before summarily dismissing his application for merits review. It did not do so. Although the Member mentioned 'rights and interests,' he did not specify or properly evaluate those rights. The Member's reasons did not elucidate how the dismissal affected the children's and INP's rights and failed to address the human rights issues that he had raised. Nor had the Member interpreted the statutory provisions in the CYF Act in a way that was compatible with human rights as required by s 32(1) of the Charter.

168 INP disputed the Secretary's submission that the Child Protection Practitioners acted promptly in April 2019 to clarify his rights concerning his children and contended that the Secretary only reviewed his case after he wrote to the Minister. INP pointed out that the outcome of the internal review was not delivered until ten months after the oldest child was removed from his care. No steps were taken to facilitate the resumption of his relationship with the oldest child, unlike the process followed with his younger children.

169 As a result of the five decisions, INP found himself in desperate circumstances and required medical treatment and was unable to work for five months.[89] His reputation had been subject to repeated attacks, including by allegations, that the Secretary had not properly investigated. He had been listed on a database of child abuse 'offenders', which will further damage his reputation as the information is likely to be shared with other agencies. The impact of the decisions will extend into the future and therefore they are not 'no longer operable'.

170 The Secretary, in her initial written submissions, contended that the Tribunal was not acting in an administrative capacity but in a judicial or quasi-judicial capacity, so that it was not required to take into account Charter rights when it was considering the Secretary's summary dismissal application.[90] She contended that the Charter issues were primarily relevant to any final hearing of INP's proceeding.

171 However, in her further written submissions, the Secretary adopted the Attorney-General's analysis that the Tribunal was acting in an administrative capacity and thus was a public authority to which s 38(1) of the Charter applied. However, she submitted that the Member did consider INP's and the children's Charter rights as his reasons demonstrated. The Secretary concluded that, in any event, once the Member decided that INP's proceeding lacked utility, any further consideration of Charter rights would have been pointless.[91]

Analysis of Charter grounds: questions of law 13, 14 and 24

172 I consider that the Tribunal was acting in an administrative capacity and therefore the requirements of the Charter, including in s 38(1), applied. I accept the Attorney-General's submissions in that respect.

173 I accept, as ground 30 contended, that INP possessed rights under the Charter distinct from his children's rights. I also accept his submission that it was inadequate for the Tribunal to merely mention the Charter and not demonstrate that it had applied to the facts in evidence in the proceeding. I also accept INP's contentions in ground 28 that the Tribunal did not consider his Charter rights as s 38(1) of the Charter required.

174 Section 38(1) required the Tribunal in making its decision to give proper consideration to INP's and the children's human rights. The Court of Appeal in HJ (a pseudonym) v Independent Broad-Based Anti-Corruption Commission,[92] stated the applicable test to the application of s 38(1) as follows:

For a decision-maker to give 'proper' consideration to a relevant human right in compliance with s 38(1) of the Charter, he or she must: (1) understand in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision; (2) seriously turn his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person; (3) identify the countervailing interests or obligations; and (4) balance competing private and public interests as part of the exercise of justification.

175 In Castles v Secretary of the Department of Justice,[93] Emerton J described the proper consideration required under s 38(1) as follows:

Proper consideration need not involve formally identifying the correct 'rights' or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts.

While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implication thereof for the affected person, and that countervailing interests or obligations were identified.

176 The Member noted INP's submission that the Tribunal was mandated to exercise its decision- making through the lens of the obligations under the Charter and noted his reliance on his and the children's rights under the Charter.[94] However, the Member in his 'Analysis and decision' only stated that he reached his decision to dismiss INP's application 'taking into account the Charter and the best interests of the child as the paramount principle under the CYF Act'.[95] He did not identify the Charter rights of INP or his children that might have been engaged and whether they had been infringed or limited by all or any of the five decisions. In my opinion, with respect, that was not to give proper consideration to INP's and his children's human rights so as to comply with the requirements of s 38(1).

177 INP's children were not represented at the Tribunal hearing or in this Court and it appears that they may have been unaware of this proceeding. The oldest child is now an adult. But INP's claims to infringements or limitation of his human rights overlap with possible claims by him and the younger two children. It was not suggested that INP could not seek to advance his children's rights either in VCAT or in this proceeding or at the review hearing that I propose to order.

178 I consider that INP has established proposed grounds 28 and 30 (questions 13 and 14) that INP's Charter rights were not properly considered and proposed ground 55 (question 24) that the Tribunal did not consider the children's or INP's rights under the Charter when considering its decision to summarily dismiss the proceeding. The other Charter ground, being proposed ground 29, I have already found established when considering INP's challenge to the Tribunal's finding about the utility of the proceeding. I found proposed ground 31 established when considering INP's grounds for contending that summary dismissal of the proceeding was not appropriate.

Questions 15 - 19 INP's request for reasons and s 49 statement

179 In questions 15-18 and the related grounds, INP contended that the Tribunal erred and denied him procedural fairness by not ordering the Secretary to provide him with adequate reasons as required by ss 45 and 46 of the VCAT Act and to provide him with the material required by s 49 i.e. every document in the decision-maker's possession that he or she considered was relevant to the review of the decisions. INP submitted that despite admitting that four of the five decisions were invalid, the Secretary did not provide him with reasons for overturning them. The Member failed to consider INP's submission that VCAT 'cannot and must not proceed' to hear the Secretary's s 75 application without the provision of the s 49 information concerning the original decisions and reasons for those decisions.[96] The provision of a statement of reasons was critical to enabling the Tribunal to determine the s 75 application.

180 Questions 15, 16, 17 and 19 and their related grounds also contended that by failing to consider whether the 2020 Tribunal decision was a nullity, the Tribunal denied INP procedural fairness when deciding the s 75 application. He argued that the Tribunal's actions infringed his and his children's human rights by not requiring the Secretary to provide reasons for her decisions dismissing his requests for review and failing to provide him with procedural fairness. The Member failed to determine INP's unresolved application for a statement of reasons for the five decisions. He erred by relying on the 2020 Tribunal decision despite, as the Secretary conceded, its legal status being in question. In that decision, a Senior Member determined that INP could seek the review of the internal review decision, but not the five original decisions. The decision wrongly assumed that the internal review was valid.

181 The Secretary maintained that nothing turned on the correctness of the 2020 Tribunal decision. Even if it was affected by jurisdictional error, it did not follow that it was a nullity, when it had not been set aside.

182 The Tribunal accepted that the 2020 Tribunal decision may have been affected by jurisdictional error and approached its decision on that basis. However, it made its own decision about whether there was utility in reviewing Decisions 2 to 5, despite the 2020 Tribunal decision deciding that INP could only seek to review the internal decision.

183 The Secretary submitted that as INP's application for review of the five decisions would have no utility, it was not necessary for the Tribunal to consider whether the Secretary should provide further reasons or documents in respect of Decisions 2 to 5. The provision of documents under s 49 of the VCAT Act existed only for the purpose of enabling the proper and fair determination of a proceeding in the Tribunal. In this case, the Tribunal had determined that the proceeding lacked any utility and ought to be summarily dismissed.

Analysis of INP's request for reasons and section 49 statement grounds - questions 15-19

184 The Secretary did not provide INP with a statement of reasons under s 45 of the VCAT Act or a s 49 statement. The Senior Member decided in the 2020 Tribunal decision that because the internal review had overturned Decisions 2 to 5, he only had to decide whether adequate reasons had been given for Decision 1. The Senior Member considered that sufficient reasons and information had been provided to INP to satisfy those statutory requirements by the internal review decision and the documents attached to the Principal Practitioner's affidavits. INP did not seek to appeal that decision, but because it did not consider all five decisions, it is of little relevance to this proceeding.

185 INP sought further documents and reasons at the commencement of the Tribunal hearing in 2023,[97] but he was not provided with them. The Secretary submitted that those documents were not relevant to the determination of her summary dismissal application. The Member mentioned that the 2020 Tribunal decision may amount to jurisdictional error.[98] However, he proceeded on the basis that none of the five decisions had any ongoing effect.

186 As previously mentioned, I consider that the Member should have taken into account in deciding the summary dismissal application that INP had not received reasons under s 45 or a s 49 statement. But, with respect, he did not do so. INP told the Tribunal that he was not presenting his whole case and that he required reasons for the five decisions before the summary dismissal application was decided. I consider that the Member should have considered that INP was seeking reasons for the five decisions and a s 49 statement and should have decided those applications before he decided the summary dismissal application.

187 As I previously mentioned when I decided that this was not an appropriate case to order summary dismissal of INP's proceeding, proposed grounds 34, 35 (question 16), 41 and 42 (question 18) are established.

188 The other grounds relating to questions 15-19, being proposed grounds 32-33, 36-37, 39-40, 43- 44, 45 and 46 are not established. They deal primarily with the significance of the 2020 Tribunal decision and the contention that the Tribunal did not consider its status. But INP did not seek to appeal that decision and as it was decided without referring to the QQQ decision and only referring to Decision 1, it appears to have little relevance to the matters that the Member had to decide. I do not consider that the Tribunal was obliged to consider the legal status of the 2020 Tribunal decision and whether it was a nullity. I do not accept as ground 44 contends that the Member's decision was influenced by factual findings, content and material made in the 2020 Tribunal decision. Grounds 38 appears to contend that INP's application for a statement of reasons was also an application for a s 49 statement. It is unclear how INP put this contention.

189 Ground 40 contended that the Member erred by including in his reasons a submission by the Secretary regarding estoppel which point she had conceded at the hearing. But that inclusion was a part of the Member's summary of the Secretary's case and does not establish an error of law. Ground 43 contended that the Tribunal denied INP procedural fairness and natural justice in failing to determine his application for a statement of reasons. I have dealt with the substance of this contention in concluding that this was not a case for a summary dismissal order in part because the issue of whether INP was entitled to further reasons had not been decided. That conclusion deals with the point that ground 43 raised.

190 In question 22 and the related grounds, INP contended that the Tribunal should have considered and given weight to his offer to resolve the dispute between the parties by reaching an agreement to 'lawfully' overturn the Secretary's decisions. He argued that instead the Secretary and the Tribunal continued to rely on the unlawful administrative actions taken in respect of the Secretary's records. In his letter to the Department of 29 March 2022, containing the offer to resolve the dispute, INP stated:

This case is certainly not an appropriate one to have summarily dismissed as this would prevent any review at all. This is also, presumably, unacceptable to the Department since it has accepted the original decisions are unsupportable.

I propose that the parties, the Department and I, consider and agree to an alternative approach to effect a lawful review of the original decisions, either before the Tribunal or the Supreme Court. I am amenable to considering any reasonable lawful proposal the Department might suggest so as to avoid unnecessary costs, inefficiency and inconvenience.

If the Department instead intends to proceed with its application for summary dismissal, I will take further legal action to seek lawful review of the five decisions made by the original decision-makers.

While the Department considers this proposal could you please send me the written reasons or the original decisions (which I still seek). The provision of the written reasons is likely to improve understanding and to save time at a later stage.

Finally, I reserve the right to produce this letter to you, the Respondent, in any subsequent legal proceedings, complaint or claims processes, including on the question of costs.[99]

191 The Department replied on 22 April 2022 stating:

The Secretary does not accept, per your correspondence, that she has breached her model litigant obligations.

We note the matters raised in your correspondence with respect to your claim not being summarily dismissed, including on the basis of the decision in QQQ being distinguished and because a summary dismissal would lead to injustice to yourself and your children.

The Secretary does not propose to withdraw the summary dismissal application on the basis of the matters raised in your correspondence. These are all matters which can be submitted to the Tribunal by you, in opposition to the Secretary's application, should you so wish.

Finally, with respect to your request for reasons, the Secretary notes that an application for reasons has been previously made to the Tribunal, and was dismissed on 19 November 2020. The Secretary maintains her position that the reasons that have been provided in respect of Decisions 1 to 5 are adequate, for the reasons set out at paragraph 18 of her submissions dated 28 October 2020 which were filed in relation to that application. We reserve our rights in respect of any future application for reasons.[100]

192 The Secretary submitted that any settlement offer that INP made to her was irrelevant to the questions to be considered by the Tribunal.

Analysis of question 22 - offer to resolve the dispute

193 I do not consider that question 22 and the related grounds 52 and 53 are relevant to the determination of INP's challenges to the Tribunal's decision to summarily dismiss INP's application.

194 The Member had to decide whether INP's proceeding should be summarily dismissed, including on the grounds that there was no utility in it being allowed to continue. In that process, he was not obliged to decide whether INP's offer to resolve the proceeding should have been accepted. This proceeding is not an appeal against the Secretary's decision-making, but against the Tribunal's.

195 Therefore, proposed grounds 52 and 53, which relate to question 22, are not established.

196 INP has established proposed grounds of appeal 7, 8-12, 28-31, 34-35, 41-42 and 55 in his amended notice of appeal filed on 6 September 2023.

198 INP has not established the remaining proposed grounds of appeal and I refuse leave to appeal on those remaining grounds.

199 I set aside the order of the Victorian Civil and Administrative Tribunal of 5 June 2023 in proceeding Z741/2019.

200 I remit INP's proceeding Z741/2019 to VCAT for a hearing of the proceeding by a differently constituted Tribunal in accordance with law and these reasons for judgment.

201 I will relist the proceeding to hear any submission for any further orders. If the parties do not seek any further orders, they should notify my Chambers accordingly.

Issues in the VCAT review hearing ordered to be held

202 I set out the following consequences of my judgment for the assistance of the parties and the Tribunal Member at the hearing of INP's review application that I have ordered:

a) Before commencing the review hearing, the Tribunal should decide any further application by INP for reasons and for a s 49 statement.

b) The presumption of regularity applies to the constitution of the Tribunal in the absence of evidence to the contrary.

c) This is not a case for a summary dismissal order to be made.

d) In deciding INP's review application, the Tribunal must take into account the best interests of the children and any of their and INP's Charter rights that are engaged.

e) The Tribunal can take into account the actions taken to overturn Decisions 2, 3, 4 and 5 as part of, or after the completion of, the internal review.

f) INP's offer to resolve the proceeding is not relevant to the determination of his review proceeding.

g) It is for the Tribunal to decide whether INP establishes a case for the grant of any remedy at the hearing that I have ordered to be held. Nothing in my reasons for judgment should be taken as an indication of whether the Tribunal should grant any such order. That is a matter for the Tribunal to decide having assessed the evidence and submissions made to it.

[1] A pseudonym used in the Victorian Civil and Administrative Tribunal proceeding.

[2] INP v The Secretary, Department of Families, Fairness and Housing (Review and Regulation) [2023] VCAT 626 ('Reasons').

[3] At the time of the VCAT hearing, the Department was named the Department of Health and Human Services. When the proceeding in this Court was commenced the Department was named the Department of Families, Fairness and Housing.

[5] Court Book ('CB') 671 (INP's submissions at VCAT [3]).

[6] CB 671 (INP's submissions in VCAT [3]).

[7] Transcript of Proceedings INP (a pseudonym) v Secretary, Department of Families, Fairness and Housing (Supreme Court of Victoria, S ECI 2023 02955, Ginnane J, 30 April 2024) ('T') 148-151.

[8] Principal Practitioner's affidavit, 19 December 2019, [35], [40] CB 875-6; Principal Practitioner's affidavit, 13 November 2023, [21]-[24] CB 245-246.

[10] Principal Practitioner's Affidavit, 13 November 2023, [32] CB 248; Reasons [43], [97].

[19] Affidavit of Principal Practitioner, 31 October 2019, [20], CB 851.

[21] CRIS is the 'Client Relationship Information System' database used by the respondent.

[26] The application proceeded on the basis that INP was seeking review of the five decisions.

[28] INP v The Secretary, Department of Health and Human Services (Review and Regulation) [2020] VCAT 1293 [12].

[34] [2021] VCAT 372 ('QQQ').

[46] FOI v Secretary to the Department of Families, Fairness and Housing [2021] VCAT 1438.

[51] Chopra v Department of Education and Training [2019] VSCA 298, [134] (Tate, Whelan and Kyrou JJA) 102.

[52] Towie v State of Victoria [2008] VSC 177; (2008) 19 VR 640, 660 [78]-[79] (Kyrou J).

[55] (2020) 61 VR 436 ('AA').

[60] Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1, 33 (Kiefel J). Cf Stewart v Chief Commissioner of Police (No 2) [2017] VSC 372, [30].

[61] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

[63] (2009) 29 VAR 1, 202-203 [820], 204 [826], 210 [858] ('Kracke'); Loielo v Giles [2020] VSC 722; (2020) 63 VR 1, 70-71 [267].

[64] [2020] QSC 160.

[68] [2024] NSWSC 15.

[70] Transcript of Proceedings, INP v Secretary, Department of Families, Fairness and Housing (Victorian Civil and Administrative Tribunal Z741/2019, 7 March 2023) ('VCAT T') 78-9**;** CB 175-6.

[76] (2011) 34 VAR 447, 462 [57], [2011]VSC 595 [57] quoting from Minister for Natural Resources v New South Wales Aboriginal Land Council (1987) 9 NSWLR 154, 164.

[77] Reasons [68], [85], stating that INP agreed with this proposition.

[79] Respondent's outline of submissions, dated 12 January 2024, 14 [75] CB 1093.

[80] Therefore s 41A of the Interpretation of Legislation Act 1984 would not be applicable.

[81] [2002] HCA 11; (2002) 209 CLR 597 ('Bhardwaj').

[82] Ibid 614, [51] (Gaudron and Gummow JJ), 618 [63] (McHugh J), 646-7 [153]-[154] (Hayne J).

[84] Garde-Wilson v Legal Services Board [2007] VSC 225; (2007) 27 VAR 125, [62] (Bell J); on appeal [2008] VSCA 43; (2008) 19 VR 398, [95] (Dodds- Streeton JA ) and Collector of Customs (NSW) v Brian Lawlor Automotives Pty Ltd (1979) 24 ALR 307.

[86] The Attorney-General also relied on PBU & NJE v Mental Health Tribunal (2018) 56 VR 141 and Director of Public Transport (Vic) v XFJ [2010] VSC 319.

[87] [2020] VSC 586.

[88] CB 702 n 45 (INP's VCAT submissions).

[89] INP's affidavit of 28 February 2024 [4]-[5] CB 970; Written submissions 15 December 2023 [88] CB 1089.

[90] Respondent's submissions 12 January 2024 [105] CB 1098.

[91] Respondent's outline of further submissions, dated 18 July 2024, [2]-[5].

[92] [2021] VSCA 200; (2021) 64 VR 270, 306 [155] (Beach, Kyrou and Kaye JJA) citing Bare v IBAC [2015] VSCA 197; (2015) 48 VR 129, 198-9 [217]-[221], 218-23 [277]-[289], 234 [323], 236 [326], 297-8 [535]-[536] and Castles v Secretary Department of Justice [2010] VSC 310; (2010) 28 VR 141, 184 [185]-[186].

[93] [2010] VSC 310; (2010) 28 VR 141, 184 [185]-[186].

[94] Reasons [74], [88]-[89], [91].

[96] VCAT T 43; CB 140.

[97] VCAT T 30, 42-3; CB 127, 139-140.