• The decision of October 2023 has already been reviewed by SACAT and has been set aside, such that it no longer has any legal status:
• The decision of July 2025 was a fresh decision, and not an internal review decision, under section 84(1)(c);
• The decision of July 2025 cannot be taken to be a reviewable decision for the purposes of section 158 as an internal review under section 157 has not been conducted in respect of that decision;
• The Tribunal finds that it has no jurisdiction to hear the application and, in the view of the Tribunal, the application is misconceived and lacking in substance.

Administrative review - Children and Young People (Safety) Act 2017 - Children and young people in Chief Executive's custody or Guardianship - Removal of child from the care of a person

Administrative tribunals - Procedure - Jurisdiction - Generally

Administrative tribunals - Procedure - Statutory Powers - Frivolous, vexatious or improper proceedings - Dismissal of application - Misconceived application

Children and Young People (Safety) Act 2017 ss 84, 157, 158

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37, 48, 57

KJS v Chief Executive of the Department for Child Protection & Anor [2023] SACAT 51

Ms D Seal, Crown Solicitor's Office, appeared for the respondent

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. Some of the parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This matter concerns an application for review under s 158 of the Children and Young People (Safety) Act 2017 (Child Safety Act).
2. The Tribunal has heard argument as to whether the Tribunal has jurisdiction to hear the application. The Tribunal found that there was no jurisdiction and dismissed the application pursuant to s 48(2) of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act). It awarded costs to the respondent. The Tribunal now provides its reasons for decision.
3. The relevant facts are as follows.
4. A child, to whom the Tribunal shall refer by use of the pseudonym 'L', was removed from her biological parents at a very young age and placed in the custody of the Chief Executive (the CE) of the Department for Child Protection (DCP).
5. In June 2015, at about five months of age, L was placed by the CE in the care of the applicant. The child is now about 10 years old.
6. In October 2023, an officer of DCP made a decision (the original decision) to remove L from the care of the applicant.
7. The child has not been in the care of the applicant since that time.
8. The applicant sought an internal review of that decision under s 157 of the Child Safety Act. The review was conducted by an officer of the Department. The decision on review was made on 19 February 2024. The original decision was confirmed.
9. On 18 March 2024 the applicant applied to this Tribunal (SACAT) for review of the original decision (as confirmed).[1]
10. On 6 May 2025 the Tribunal heard submissions as to whether the original decision had been validly made.
11. On 10 June 2025 the Tribunal gave a decision to the effect that the original decision had not been validly made as the officer who made the decision did not have a delegation which permitted her to make such a decision. Specifically, her delegation did not extend to making such a decision in the circumstances in which it was made. (Order of the Tribunal issued 10 June 2025).
12. After hearing further submissions, the Tribunal ordered on 18 June 2025 pursuant to s 37 of the SACAT Act that the purported decision of 24 October 2023 be set aside, and that the decision be referred back to the CE for reconsideration.[2] (Order of the Tribunal issued 18 June 2025).
13. The reconsideration was carried out by a delegate of the CE. By decision made on 7 July 2025, the delegate determined under s 84(1)(c) of the Child Safety Act to remove L from the care of the applicant. In doing so, the delegate acknowledged that in reality the child had been removed from the applicant's care since 24 October 2023. The practical effect of the decision was to confirm the current placement arrangements.
14. The applicant applied for an internal review of that decision under s 157 of the Child Safety Act. Consideration of that application is pending.
15. However, the applicant also applied to this Tribunal on 17 July 2025 for review of the decision.
16. The dual applications have the potential to cause embarrassment to the respondent. Arguably, it would not be appropriate for the respondent to determine the internal review whilst the same issue is the subject of a purported application to this Tribunal. It is appropriate that the question of jurisdiction (in this Tribunal) be determined expeditiously.
17. The application to this Tribunal identifies the "Decision Maker" as the delegate who conducted the reconsideration in July 2025 but somewhat curiously identifies the date of the decision as 24 October 2023 and the date when the applicant received notice of the decision as 7 July 2025.
18. A decision as to placement of a child can be a reviewable decision under s 158(1) of the Child Safety Act. However, s 158(2)(b) provides that:

A decision referred to in sub-section (1) will only be taken to be a reviewable decision if a review under s 157 has been conducted in respect of the decision.

19. The decision of 24 October 2023 has already been reviewed by SACAT and has been set aside. That decision, and the internal review of that decision on 19 February 2024, no longer have any legal status. The current application cannot validly seek a review of that decision.
20. The decision of 7 July 2025 was a fresh decision under s 84(1)(c) of the Child Safety Act. It was not an internal review decision.
21. The applicant argues, with reference to the words of s 158(2)(b) which are reproduced above, that the decision of 7 July 2025 has already been internally reviewed because such occurred on 19 February 2024.
22. The Tribunal does not accept that argument. The internal review decision of 19 February 2024 no longer has any legal status.
23. Furthermore, the decision of 7 July 2025 was a decision based on the state of affairs in July 2025. That decision was not internally reviewed, and could not have been internally reviewed, in February 2024.
24. The decision of 7 July 2025 cannot be taken to be a reviewable decision for the purposes of s 158 as an internal review under s 157 of the Child Safety Act has not been conducted in respect of that decision.
25. The provisions of the SACAT Act do not assist the applicant. Section 37(2) of the SACAT Act deals with the situation where a previous decision has been set aside by this Tribunal and a reconsideration ordered. The fact that a fresh decision has been made in those circumstances does not prevent the fresh decision from being open to review by this Tribunal. However, this does not get around the provisions of s 158(2)(b) of the Child Safety Act. Internal review is a prerequisite to a decision being reviewable. Even if the provisions in the two Acts were inconsistent (which they are not) the provisions of the Child Safety Act would prevail.[3]
26. The respondent submits that the application should be dismissed under s 48(2) of the SACAT Act. She submits that the application is misconceived and lacking in substance. The applicant was clearly on notice concerning this submission. No formal application under s 48 is required.
27. The Tribunal finds that it has no jurisdiction to hear the application for review. In the view of the Tribunal, the application is misconceived and lacking in substance. The arguments put by the applicant as to jurisdiction have no merit. For these reasons the Tribunal dismissed the application under s 48(2) of the SACAT Act.
28. The Tribunal ordered the applicant to pay the respondent's costs of the proceeding to be agreed or, in default of agreement, to be fixed by the Tribunal. The provisions of s 57(3) of the SACAT Act apply. There is no good reason for not making an order for costs. The applicant chose to institute and prosecute an application that was doomed to fail.

[1] Section 158 is drafted in such a way that the review is of the original decision (as confirmed, varied, or substituted) rather than a review of the internal review decision: KJS v Chief Executive of the Department for Child Protection & Anor [2023] SACAT 51 at [26]- [27].

[2] The Tribunal notes that s 37(1)(c)(ii) refers to the "matter" being sent back for reconsideration.