Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in the Chief Executive's custody or guardianship - Review of a decision of the Chief Executive or Delegate - Relocation of a child

Administrative Review - Children and Young People (Safety) Act 2017 - Review of a decision of the Chief Executive or Delegate - Preliminary applications - Validity of decision under review - Delegation

Administrative Review - Nature of decisions under review - Whether decision made within power - Delegation of power - Decision maker not delegated power to make decision - Whether decision must be set aside

Administrative Tribunals - Procedure - Statutory Powers - Correcting mistakes - Correcting procedural irregularities - Scope of power to make corrections

South Australian Civil and Administrative Tribunal Act 2013 s 35, s 36, s 37, s 60, s 83

Children and Young People (Safety) Act 2017 s 84, s 146, s 158

Legislation Interpretation Act 2021 s 3, s 43

Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd [1995] 36 NSWLR 501

Drewitt v Resource Management and Planning Appeal Tribunal [2008] TASSC 70; 163 LGERA 222

Duncan v Independent Commissioner Against Corruption (2015) 256 CLR 83; [2015] HCA 32

GKZ v Department for Child Protection & Anor [2022] SACAT 74

Harris & Anther v Great Barrer Reef Marine Park Authority [1999] FCA 437

OXF & Anor v Department for Child Protection & Anor (1998) 194 CLR 355

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355

Mr K Tredrea with Ms A Jordan appeared in person for the applicant

Ms P Ewens, Crown Solicitor's Office, by telephone, appeared with Ms D Seal, Crown Solicitor's Office, in person, for the first respondent

Ms V Lindsay appeared in person for the second 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. 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.

Set Aside and Substitute Decision and Directions for Conduct of Proceedings

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(c)(i) and s 44

1. This is the consideration of paragraphs 1 and 1A of an amended interlocutory application dated 27 July 2022 filed by the applicant in this matter. Those paragraphs seek a declaration that the original decision was made without power, and for the matter to be remitted to the decision-maker with certain directions as to any re-making of the decision.
2. The proceedings more broadly concern an application for review of a decision made by an officer of the first respondent, the Department for Child Protection ('Department') on 13 December 2021 as to the placement of a child who is now approximately three and a half years old. The Chief Executive of the Department is guardian of the child until she turns 18. The applicant is the person with whom the child has been placed 27 September 2019.
3. On 13 December 2021, the departmental officer, Ms Powell, made a decision to place the child in the care of the second respondent, TTL, who is the child's paternal aunt. On 16 December 2021 the applicant sought an internal review of that decision, and on 15 June 2022 received a letter from the Department confirming the original decision.
4. The applicant has sought a review by the Tribunal pursuant to s 158 of the Children and Young People (Safety) Act 2017 ('CYPS Act'). That provision provides that the Tribunal may review a decision following the outcome of an internal review by the Department. The decision under review is the original decision made by Ms Powell.
5. On 15 August 2022 I made orders that TTL be joined as a respondent to the proceedings, with my reasons for those orders being published separately.[1]
6. The parties are legally represented. The applicant is represented by Mr Tredrea and Ms Jordan; the Department by Ms Ewens and Ms Seal, and TTL by Ms Lindsay and the Women's Legal Service.

1. The Tribunal considered an interlocutory application filed by the applicant at a directions hearing on 25 July 2022 for production of documents. At that hearing, however, the applicant foreshadowed an application in relation to the validity of the 13 December 2021 decision, asserting that having now seen the instrument of delegation by the Chief Executive of her powers, the applicant considered that Ms Powell was not delegated the power to make it.
2. On 26 July 2022 the Tribunal issued directions granting the applicant leave to file an amended interlocutory application reflecting the issues raised at the directions hearing. On 27 July 2022 the Tribunal received such an application.
3. Paragraphs 1 and 1A of the amended application, dealt with in this decision, are set out as follows:

1. That it is declared the placement decision of the Respondent made on 13 December 2021 pursuant to Section 84 of the Children and Young People (Safety) Act 2017 the subject of these proceedings is ultra vires, and of no force and effect.

1A. The said placement decision be set aside, and the matter be sent back to the Respondent for reconsideration in accordance with the following directions: > > 1A.1. That any further placement decision of the Respondent shall be made by the Chief Executive personally; > > 1A.2. Prior to the making of any further placement decision, the Respondent shall obtain a psychological assessment of the child [ ] as to the child's best interests in respect to her placement, with such assessment to be provided by Ms Lauren Cook, Principal Clinical Psychologist of the Department of Child Services; > > 1A.3. The Respondent shall disregard, and place no weight whatsoever upon, the Buthera Agreement in the making of any further placement decision; and > > 1A.4. The Respondent shall not take any steps to implement any further placement decision until further order of the Tribunal

4. The Tribunal received written submissions from the applicant in respect of the interlocutory application.
5. At the preliminary hearing on 17 August 2022, I heard submissions from the parties on paragraphs 1 and 1A, and a further oral application brought by Ms Lindsay for access to transcript and I reserved my decision. The Tribunal also received written submissions from the applicant in respect of the interlocutory application.
6. At the outset, I observe that whilst the Tribunal's decision concerns whether Ms Powell had the authority to make the decision of 13 December 2021, it has not been suggested and there is no reason to believe that she was acting other than under a genuine belief that she had been delegated the power by the Chief Executive to make the decision.

1. The applicant seeks a declaration that the decision under review was made ultra vires, or without the necessary power to have made it. The applicant asserts that the instrument of delegation did not provide for the particular decision-maker to exercise the powers of the Chief Executive in relation to the termination of the care provided for the child by the applicant. It asserts this termination occurred when the decision to place the child with the second respondent was made.
2. Various powers are conferred upon the Chief Executive in respect of a child who is in her custody or under her guardianship pursuant to s 84(1) of the CYPS Act, set out as follows:

84 - Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship > > (1) Subject to this Act, the Chief Executive may, in relation to a child or young person who is in the custody, or under the guardianship, of the Chief Executive, from time to time do 1 or more of the following:

(a) place the child or young person, or permit the child or young person to remain, in the care of a member of their family;

(b) place the child or young person in the care of any other suitable person;

(c) remove the child or young person from the care of a person referred to in a preceding paragraph;

(d) place the child or young person in a licensed children's residential facility, or a residential facility (not being a training centre) established or licensed under the Family and Community Services Act 1972, or in any other suitable place;

(e) give such directions relating to the care of a child or young person referred to in a preceding paragraph as the Chief Executive thinks fit;

(f) make arrangements for the education of the child or young person;

(g) make arrangements (including admission to hospital) for the professional examination, assessment or treatment of the child or young person;

(h) make such other provision for the care of the child or young person as the circumstances of the case may require.

1. Under s 146 of the CYPS Act, the Minister or Chief Executive can delegate certain powers or functions. That section provides as follows:

146 - Powers of delegation > > (1) The Minister or the Chief Executive may delegate a function or power (other than a prescribed function or power) under this Act to a specified person or body (including a person for the time being holding or acting in a specified office or position, or a person or body located in another State or Territory). > > (2) A delegation under this section -

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the ability of the Minister or Chief Executive (as the case requires) to act in any matter; and

(d) is revocable at will.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

1. The Legislation Interpretation Act 2021 (the 'LIA') provides some guidance as to the nature of delegations under South Australian law. Section 43 relevantly provides:

(a) This section applies if an Act or a legislative instrument authorises a person or body to delegate a function.

(b) A delegation may be made subject to conditions or limitations specified by the delegator and may be revoked at any time by the delegator.

(c) Unless the Act or the legislative instrument expressly provides to the contrary, a delegation of the power of delegation cannot be made (and any purported delegation of all of the functions of the delegator will be read as if the delegation referred to all of the functions of the delegator other than the power of delegation).

(d) If a function, when exercised by a delegator, is dependent on the delegator's opinion, belief or state of mind in relation to a matter, the function, when exercised by a delegate, is dependent on the delegate's opinion, belief or state of mind in relation to that matter.

(e) A function that has been delegated, when exercised by a delegate, will be taken to have been exercised by the delegator.

(f) A function that has been delegated may, despite the delegation, be exercised by the delegator.

(g) The delegator may delegate the function to a person or body by name or by reference to the title of an office held by a person or body.

(h) A delegation made to the holder of a particular office will be taken to be made to the person for the time being holding or performing the duties of the office.

(i) A delegation of all the functions of a person or body under an Act or a legislative instrument, or a provision of an Act or a legislative instrument, includes any additional function given to the delegator under the Act, instrument or provision by an amendment made to it after the delegation has taken effect.

(j) If a function of a person or body under an Act or a legislative instrument is delegated and, after the delegation has taken effect, the scope of that function is altered by an amendment made to the Act or the instrument, the delegation is of the function as so altered.

(k) A delegation made by, or to, the holder of a particular office does not cease to have effect merely because the person who held the office when the function was delegated ceases to do so.

(l) The validity of a delegation is not affected by a grammatical error, spelling error, error of punctuation, formatting error or other minor error if the scope and meaning of the delegation is readily apparent despite the error.

(m) In this section - delegate includes sub-delegate.

1. The relevant instrument of delegation was filed with the Tribunal as part of the decision-maker's filed documents. It is dated 17 October 2018 and signed by the Chief Executive of the Department for Child Protection.[2]
2. The relevant aspects of the instrument are set out as follows:

I, Catherine TAYLOR, Chief Executive of the Department for Child Protection ("the Department"), hereby:

3. delegate pursuant to section 146 of the Children and Young People (Safety) Act 2017 ("the Act") the powers and functions conferred by the Act and the Children and Young People (Safety) Regulations 2017, as set out in column 1 of the attached Schedule 1; and
4. (not relevant)
5. (not relevant)
6. (not relevant)

To the persons holding or acting in the positions set out in the corresponding line in column 3 of the attached schedule, subject to any conditions stipulated in column 4.

8. The descriptions in column 2 of the Schedules are for administrative use only and do not form part of this delegation.
9. The delegations and sub-delegations specified above will take effect on 22 October 2018.
10. Schedule 1 of the instrument provides a table of provisions and delegations. In respect of the delegation of the powers and/or functions in s 84 of the CYPS Act, the instrument purports to make a delegation in the following terms:

Section 84

Chief Executive's powers in relation to children in CEs custody or guardianship

Deputy Chief Executive, Service Delivery and Practice

Director, Commissioning, Performance and Disability

Assistant Manager, Child Protection /Guardianship Office

1. Only the Deputy Chief Executive may make a decision about:

Medical procedures that are of a high risk in situations when a child's life is threatened due to illness, trauma or injury, or

end of life care fora child. This may involve decisions about withdrawal of treatment, palliative care plans and resuscitation / nonresuscitation.

2. Managers, Assistant Managers and Supervisors cannot exercise the power to remove a child from the care of an approved carer or person providing care pursuant to a placement made under section 77 without prior consultation of Principal Social Worker and Principal Psychologist (and Principal Aboriginal Consultant if the child is Aboriginal), unless the delay involved in consulting would prejudice the child's safety.

3. Only the Deputy Chief Executive, Executive Director of a Director can make a decision that a child can travel overseas.

4. Only the Deputy Chief Executive, Executive Director, Director, Senior Manager, General Manager and Manager can make an application for a child to obtain an Australian travel document.

5. If a child is under a guardianship until 18 years of age, a decision to terminate the placement with an approved carer is to be made by the Director or above.

6. The delegation does not extend to making decisions about providing consent under the Marriage Act 1961 for a young person aged 16 or 17 to marry.

1. The first matter to note is that the act of delegation extracted above relates to the whole of s 84 notwithstanding that a vast array of decisions might be made pursuant to that section. The second matter of note is that the conditions in the fourth column do not refer to any particular sub-section of s 84 although it is evident that there is a closer relationship between some of the conditions and particular sub-sections of s 84.
2. There was some debate at the hearing as to whether the words in column 4 were conditions or limitations and whether there was any consequence. The CYPS Act authorises conditional delegations and s 43 of the LIA authorises conditions and limitations. As s 43 of the LIA operates "unless the contrary intention appears",[3] it may be understood to authorise both conditions and limitations and widen the terms of s 146. Therefore, whether properly described as conditions or better described as limitations, the items in column 4 are authorised and that issue needs no further consideration. Further, it is convenient to refer to them as conditions as this is how the delegator has referred to them.
3. The applicant contends that condition 5 in column 4 operates to prohibit Ms Powell from making the decision she made on 13 December 2021. It provides:

If a child is under a guardianship until 18 years of age, a decision to terminate the placement with an approved carer is to be made by the Director or above.

4. It was common ground that the child is under guardianship until 18 years of age and that the applicant is an approved carer. It was not disputed that Ms Powell was not at the relevant time a "Director or above".

1. The applicant submits, through Mr Tredrea, the decision of 13 December 2021 was one that terminated the child's placement with the applicant, who is an approved carer, and that the decision engaged condition 5 and was therefore beyond her power to make.
2. It is necessary to refer to the decision. It is lengthy, and certain parts may be only briefly summarised for the purposes of this decision. It is before the Tribunal as part of the first respondent's filed documents.
3. The decision-maker is described as "Ms Julie Powell, Manager, St Mary's office" and the decision is dated 13 December 2021. There are various paragraphs under the heading "Background to the current situation" with sub-headings "Rationale for DCP Statutory Intervention" (referring to the guardianship order) and "[Child's] Placement History", "Establishment of [child's] paternity", "Exploration of the paternal family", "Connection to Family", and "[Child's] Family Meeting". The last of these describes a meeting at which "there was no agreement between the family members about [child's] placement" and set out various options.
4. A further section of the document is headed "Additional Information" and contains a paragraph relevant to the applicant's circumstances. There are then five paragraphs under the heading "Relevant legislative provisions" that refer to particular provisions of the CYPS Act, including a reference to s 84(1)(a), (b) and (c).
5. The next section of the document is entitled "DCP Decision". It commences with the words:

It is considered that it is in [the child's] best interests for her to be placed with [TTL] in accordance with the Aboriginal Child Placement Principle.

6. Then following is a further page and a half of rationale for that outcome. The document concludes with a list of documents and information sources used in the making of the decision.
7. The applicant submitted and the Department did not demur, that the words set out in paragraph [29] above contain "the decision" for the purposes of the review.
8. The applicant submitted that whilst there is no specific reference in the specific words set out above that convey the decision, the decision is referable to the power in s 84(1)(a) to place the child.
9. The applicant contends that by the making of a placement decision under s 84(1)(a) to place the child with TTL, the decision-maker terminated the child's placement with the applicant, and that such a decision was expressly excluded from the scope of decisions that Ms Powell was delegated to make.
10. The concept of 'termination' of a placement is not recognised in s 84. That section refers to placing a child in ss 84(1)(a) and (b) and removing a child in s 84(1)(c). Mr Tredrea submitted that it was not apt to characterise the decision as a 'removal' and that the language of the instrument should be understood by its use of the term 'terminate' to encompass the bringing of a placement to an end, whether in connection with a removal, or in connection with the placement of a child subsequent to an existing placement such as to terminate by implication that existing placement.
11. The applicant's position is that the decision engaged condition 5 so as to exclude it from the scope of decisions delegated to Ms Powell and the decision must therefore found to be invalid.

1. The Department's position was that the decision was validly made. It submitted the decision was a placement decision made under s 84(1)(a) of the Act and was not one that was reserved to "a Director or above". It contends that condition 5 should be understood to be referring to a removal decision under s 84(1)(c) and the decision did not engage that sub-clause.
2. Ms Ewens submitted that the appropriate approach, upon accepting that the reference to 'terminate' in condition 5 attached to an exercise of the power of removal, was to accept that Ms Powell was in fact exercising the power to place a child and that such a power attracted the further incidental power of termination of a placement where necessary.
3. The Department directed the Tribunal's attention to Beneficial Finance Corporation Ltd v Multiplex Constructions Pty Ltd[4] as support for the proposition that a grant of power is to be understood as extending to those acts which are necessary and incidental to the exercise of the power itself. It was submitted that termination of the child's placement with the applicant had occurred by virtue of the decision to place the child with TTL and the authority for that derived from the grant of power to place the child in a second or subsequent placement.
4. It was submitted, relying on Harris & Anther v Great Barrer Reef Marine Park Authority[5] that even if Ms Powell was not aware of, or mistaken as to, the source of the power she was exercising (as suggested by the applicant because of the decision-maker's reference to the powers in s 84(1)(a),(b) and (c) in the decision), the key question for the Tribunal is whether the decision-maker has the power as an objective fact. Further, Ms Ewens referred the Tribunal to the statements of Slicer J in Drewitt v Resource Management and Planning Appeal Tribunal that the "purported exercise of a power, not possessed, does not necessarily vitiate a decision if there exists another valid source of that power. It is the absence of power which renders the decision invalid".[6]
5. The Department's position was that the decision was validly made within the decision-maker's delegated power to place the child. It had the incidental effect of terminating the placement with the applicant but that did not engage condition 5 of the delegation instrument.

1. On the issue of validity, the second respondent adopted the submissions of the Department.

1. Section 84 empowers the Chief Executive to perform certain actions with respect to a child who is in her custody or under her guardianship. The actions may be taken "from time to time". Some of the listed actions describe a specific act e.g. "place the child or young person in the care of any other suitable person". Others are more general and contemplate a range of actions e.g. "make such other provision for the care of the child or young person as the circumstances of the case may require".
2. Whilst the decision-maker referenced, at an early point in her decision, ss 84 (a) to (c), it is not fatal to her decision that she may not have identified the correct basis of her decision. As the authorities the Crown Solicitor referred to demonstrate, what is important is whether Ms Powell had the power to make the decision she made.
3. It is instructive to consider the conditions on the delegation of the powers and functions in s 84 closely.
4. Several of the conditions do not refer to any particular sub-section but by their content can only be understood to refer to a particular sub-section. For example, the condition that only the Deputy Chief Executive may make an end-of-life decisions in respect of a child must be understood to refer to the power in s 84 (1)(g) to "make arrangements (including admission to hospital) for the professional examination, assessment or treatment of the child or young person".
5. Similarly, the power to "terminate the placement with an approved carer" is a condition that does not pick up the language of any of the listed items in s 84(1) though it would appear to relate to s 84(a), (b) and/or (c).
6. What is evident from an analysis of the conditions is that several of them use language that is not used in s 84. That section contains no reference, for example, to the power to permit or prohibit a child from travelling overseas. Such a decision is one that must be understood to be one of many that may be made under the power to "make other such provision for the care of the child or young person as the circumstances of the case require". Turning to condition 5 which is the condition under consideration in this case, a decision to "terminate the placement with an approved carer" is not a decision that is referred to expressly in s 84. However, it must be understood as attaching to one or more of the listed decisions set out in s 84.
7. A source of information as to how a particular condition is to be understood is its relationship with other conditions insofar as they use similar or different language. It is useful to repeat the conditions below, highlighting relevant language in this regard:

1. Only the Deputy Chief Executive may make a decision about:

• Medical procedures that are of a high risk in situations when a child's life is threatened due to illness, trauma or injury, or
• end of life care for a child. This may involve decisions about withdrawal of treatment, palliative care plans and resuscitation / nonresuscitation.

2. Managers, Assistant Managers and Supervisors cannot exercise the power to remove a child from the care of an approved carer or person providing care pursuant to a placement made under section 77 without prior consultation of Principal Social Worker and Principal Psychologist (and Principal Aboriginal Consultant if the child is Aboriginal), unless the delay involved in consulting would prejudice the child's safety. > > 3. Only the Deputy Chief Executive, Executive Director of a Director can make a decision that a child can travel overseas. > > 4. Only the Deputy Chief Executive, Executive Director, Director, Senior Manager, General Manager and Manager can make an application for a child to obtain an Australian travel document. > > 5. If a child is under a guardianship until 18 years of age, a decision to terminate the placement with an approved carer is to be made by the Director or above. > > 6. The delegation does not extend to making decisions about providing consent under the Marriage Act 1961 for a young person aged 16 or 17 to marry. > > (emphasis added)

1. The applicant says that condition 5 attaches to s 84(1)(a) (and possibly other sub-sections but that is not necessary for the applicant's argument). The respondent says that the condition attaches to the power of removal in s 84(1)(c) which was not exercised.
2. The construction that condition 5 attaches only to a decision to remove under s 84(1)(c) should be rejected for three reasons.
3. Firstly, the express reference to the power of removal in condition 2 indicates that the drafter was likely referring to something else when he or she used the word 'terminate' in condition 5, rather than repeating the reference to a removal. It is evident that removing a child and terminating a placement are not synonymous. "Remove" is a term used in the Act, particularly at ss 41-43, to refer to a legal event describing a physical action associated with custody and relates to children in the Chief Executive's guardianship, and also to children in the custody of others as set out in s 41 of the Act. The use of the word "remove" in s 84(1)(c) should be understood to connote the same activity albeit in circumstances in which the child who is in the guardianship of the Chief Executive has been removed from the care of an approved carer or temporary carer. It is a concept to which custody is central. There is no reason to assume that 'remove' in condition 2 of the instrument refers to anything different. The word 'terminate' in respect of a placement implies nothing with respect to custody and implies only severance of the legal arrangements by which a child is in the care (which term entails more than custody) of an approved or temporary carer. By way of illustration, the child in these proceedings is currently placed with TTL but is not in her custody. Accordingly, the use of 'terminate' in condition 5 should be understood to refer to something different from or more than a removal.
4. Secondly, a child's removal from a care arrangement may not entail that arrangement's termination. A child might be removed, for example, while an enquiry into an allegation is undertaken, and then returned to the placement when the allegation is disproved. In such a situation, there may be no termination of the placement.
5. Thirdly, a placement of a child may entail a termination of another placement. This will occur if the child is placed with a person and then, exercising the power to place from time to time, the Chief Executive or delegate determines that the child is to be placed with a different person. In such a case, the first placement will be expressly or impliedly terminated. That is what has occurred in this case. That does not mean that there has been or will be a 'removal', as a removal occurs only where the criteria in s 41 are met.
6. For these reasons, the preferable view is that 'terminate' in condition 5 does not refer to, and is not confined to, a removal undertaken pursuant to the authority in s 84(1)(c). Instead, it refers to the bringing to an end of a placement.
7. It does not assist the respondent to contend that the power to place in s 84(1)(a) entails the power to terminate as an incident of its operation, and that as the decision was a placement decision, the condition does not apply. Such an approach does not address the fact that, whether associated with a removal or as an incident of a subsequent placement, where a placement is terminated the exercise of the power which causes the termination may only be performed by a person of seniority greater than the decision-maker in this case.
8. The decision made by the delegate was a decision to place the child and it entailed a termination of the child's placement with the applicant. Condition 5 was enlivened and operated to limit the pool of persons authorised to make the decision not including the delegate.
9. It is troubling that condition 2, which refers directly to removal of a child, and condition 5, which refers to termination of a placement, do not co-exist easily on any interpretation. Condition 2 purports to condition the exercise of the power of removal. It confines the decision to a certain sub-set of the delegates and imposes further requirements of consultation. A decision to remove must be understood to entail, in most but perhaps not all circumstances, a termination of the placement. The Department's argument that the reference to 'terminate' in condition 5 should be understood to attach only to the decision to remove under s 85(1)(c) has the odd consequence that where a removal entails a termination, which presumably will occur in most cases of removal, both condition 2 and 5 will apply. Whilst not mutually exclusive, it is difficult to apply the conditions together. They certainly do not read as having been drafted to have a cumulative effect. This adds weight to the view that condition 5 is not confined to acts of removal.
10. However, two further possible approaches need to be addressed. The first is whether the placement and the termination are separate acts and that the decision-maker only made the decision she was empowered to make such that the decision to terminate could yet still be made by an authorised person. The second is whether, if the decision was made beyond power, that defect can be cured.
11. Whilst this issue was not explored fulsomely in the hearing, it might be observed that where a child is being placed for a second or subsequent time, the decision to place in a second or subsequent placement may occur before or after a decision to terminate an existing placement. A decision to terminate may be made because of some event that makes it apparent that the placement should not continue, irrespective of whether a further placement decision has been made. On the other hand, a placement decision may be made as in the present circumstances, which has the effect that an existing placement arrangement must be terminated.
12. If a termination decision might occur subsequent to and separate from a placement decision, it might be argued that all that has been decided in the decision recorded on 13 December 2021, is the decision to place and the decision to terminate is yet to be made and could still be properly made by a person of holding the position of "Director or above". However, such an argument must be rejected as it is evident that where a placement decision is a second or subsequent placement, termination of an existing placement is an incident of the decision and not a separate decision. The existing and new placements cannot co-exist.
13. In any event, the treatment of placement and termination as separate acts is contrary to the submissions of the Department. I have considered whether, in accordance with the Department's submissions, given that it is evident that the power to place is a power that is delegated to Ms Powell, it should be assumed that the power to terminate must also be conferred as an incident of the power to place. However, it is only if condition 5 is understood to be confined to the power to remove (either because 'terminate' should be understood to actually mean remove or because the conditions should be understood as limited to termination as an incident of removal) that this conclusion can be reached. For the reasons set out above, 'terminate' should not be understood to be so confined and this reasoning must also be rejected.
14. Finally, Ms Ewens on behalf of the Department referred the Tribunal to a recent unpublished SACAT decision of OXF & Anor v Department for Child Protection & Anor[7] in which the Tribunal stated that s 84 should be construed as authorising separate and multiple actions under s 84. It was stated that s 84 contemplates that a decision may be one of placement only and, in the case in question, concluded that only a placement decision had been made and that no removal decision had been made. In light of the confined circumstances in which a removal decision may be made, as set out in s 41, it will not be unusual for a subsequent placement of a child not to entail a removal. 'Removal' is a special term referring to a particular basis for a child leaving a placement and in many cases a child will leave without a removal taking place.
15. It is not necessary to address that decision further. Neither party is arguing in the present case that there has been a removal of the child from the applicant's care. On the Crown Solicitor's submissions, there has been a subsequent placement of the child and a termination of an earlier placement occurred, as an incident of the subsequent placement. The difficulty for the Department's position is that termination of a placement, however arising, is expressly reserved to "Director and above".

1. Having concluded that the decision-maker was not delegated to make the decision, it falls to be considered whether there is any principle or law that might 'cure' the defect.
2. The Tribunal notes that, on the one hand, the Department sought to establish that the delegation was valid. It may be inferred that if there has been a misunderstanding concerning the proper construction of the instrument, that misunderstanding was not confined to the decision-maker.
3. However, a decision made without power can only be re-made. Power cannot be retrospectively conferred (except by an Act of Parliament). [8] On the basis of the construction of the instrument as the Tribunal has adopted, the decision was made without power. There can be no invocation of the presumption of regularity because there has been a finding of irregularity. There can be no question of whether the instrument should be understood to have intended invalidity to follow from non-compliance, because the instrument expressly prohibited this decision-maker from the making of this particular decision.
4. I have considered whether s 83 of the South Australian Civil and Administrative Tribunal Act 2013 (the 'SACAT Act') might be relevant. That provision allows the Tribunal to cure irregularities affecting proceedings "or any matter to which the proceedings relate". The applicant referred to various authorities to support of the conclusion that a lack of power cannot be cured as an irregularity under s 83. I accept that contention.
5. Further, this is not an instance of an act done in breach of a condition regulating the exercise of a statutory power such as to enliven consideration of statutory intent as undertaken in Project Blue Sky v Australian Broadcasting Authority.[9] Here the act was done in an absence of power altogether and contrary to an express prohibition on the exercise of the power. There is no scope for a construction of the instrument that the decision is nevertheless to be understood as authorised by the Chief Executive.
6. Having determined that the exercise of power occurred beyond the Ms Powell's authority, the decision is invalid. The decision must be set aside.
7. The applicant sought declaratory relief. The Tribunal is not empowered to grant such relief. The finding of invalidity is made and the appropriate order is to set aside the decision. It remains to be considered whether the Tribunal ought to exercise further powers concerning the remaking of the decision.

1. An application made for a review of a decision by the Chief Executive under s 84 of the CYPS Act is dealt with under s 37 of the SACAT Act. Section 37(1) provides:

37 - Decision on review > > (1) The Tribunal may, on a review under this Division -

(a) affirm the decision that is being reviewed; or

(b) vary the decision that is being reviewed; or

(c) set aside the decision being reviewed and -

(i) substitute its own decision; or

(ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate,

and, in any case, may make any order the Tribunal considers appropriate (including any interim order pending the reconsideration and determination of the matter by the decision-maker, or any ancillary or consequential order, that the Tribunal considers appropriate).

1. The applicant submits that the Tribunal should invoke s 37(1)(c)(ii) of the SACAT Act and send the matter back with directions as to how the decision should be made. Those directions are set out in paragraphs 1A (1), (2) and (3) of the Amended Interlocutory Application and are set out in paragraph [9] above of this decision.
2. The respondent submits that if the decision is invalid, there should be no remittal with directions and the Chief Executive should be permitted to take further steps as she thinks fit, which would require in any event the decision to be made in accordance with the provisions of the Act. The respondent submits that there is no basis upon which the Tribunal should constrain or direct the making of any subsequent decision.
3. Whilst it might be appropriate when setting aside a decision after a substantive hearing for the Tribunal to give recommendations or directions as to the re-making of the decision, including for example to consider the evidence of a witness on an aspect of the decision, it will not often be appropriate and is not appropriate in this case to issue directions to the decision-maker in respect of any subsequent decision that is to be made. The Tribunal has not conducted a hearing on the merits and is not well-placed to make any recommendations.
4. The power to make the decision is reposed in the Chief Executive or her delegate. The effect of this decision is that an act of delegation did not operate in the manner that, it would appear, the Department expected. Nothing further has been established that would militate in favour of the Tribunal directing any future decision in terms of whether, by whom or how it is made.
5. The Tribunal declines to issue any directions or make recommendations.
6. The question then arises as to whether the matter should be remitted or simply set aside and dismissed. In my view, the whole of the matter is disposed of by the finding that the decision was made without power. There is no reason for the Tribunal to remain seized of the matter as it is evident that if the Tribunal is to consider the child's placement, it will be as a result of a new decision.
7. I am conscious of the desirability of expedition in the resolution of the issue of where the child should be placed. I consider that if there is a challenge to a subsequent decision, the Tribunal's flexible processes will be able to minimise procedural delay by, for example, permitting the parties to rely upon documents already filed in these proceedings to the extent that it would assist.

1. In the course of his submissions, Mr Tredrea made reference to the transcript of an earlier Tribunal proceeding concerning a challenge by a different carer to a decision not to place the child with her.
2. Ms Lindsay made an application for a copy of that transcript. Mr Tredrea had no objection to its release. Ms Ewens submitted that it would be inappropriate for a release, given that the matters were unrelated, and that in any event it was not appropriate for the Tribunal to have regard to transcript of an unrelated matter.
3. A confidentiality order was made in the earlier matter under s 60 of the SACAT Act on 1 June 2020. It was subsequently varied by consent on 15 September 2020 and again on 29 September 2020.
4. The 1 June 2020 orders were as follows:

3. Pursuant to section 60 of the SACAT Act 2013 it is ordered that the hearing of this matter be closed and that persons may only attend the hearing with the permission of the Tribunal. > > 4. Pursuant to section 60 of the SACAT Act 2013 the Tribunal prohibits the disclosure or publication of any details concerning the parties, the nature of these proceedings, or any evidence given.

5. Order 4 was subsequently varied to permit the disclosure of the report of Ms Lauren Cook to the then-proposed carer and to Aboriginal Family Support Services. The final form of the order (as made on 29 September 2020) was as follows:

Pursuant to section 60 of the SACAT Act 2013 the Tribunal prohibits the disclosure or publication of any details concerning the parties, the nature of these proceedings, or any evidence given in these proceedings except for the report of Lauren Cook, being DCP-15; a redacted version of that report may be provided to [the proposed carer].

6. The Tribunal records show transcript was requested and exists for the following dates:
   1. 3 August 2020,
   2. 5 August 2020, and
   3. 14 September 2020.
7. Any order to release the transcript in the earlier matter would require a variation of the above confidentiality orders.
8. In light of the outcome of the applicant's challenge to the decision, it is not necessary to determine the second respondent's application.

Other aspects of the applicant's interlocutory application

1. The remaining orders sought by the applicant for access to documents are now otiose.
2. The applicant sought an order that the respondent be restrained in respect of acting upon any subsequent decision that may be made. This application was made because there is no mechanism for a stay of a decision made under the CYPS Act to be given legal effect until a challenger files an application with the Tribunal and the Tribunal considers an application for a stay under s 36 of the SACAT Act.
3. In effect, Mr Tredrea was seeking a stay of a decision that has not yet been made. I decline to make an order of this nature. To date, the Department has not acted upon a decision it knows to be under challenge, so the applicant cannot point to any evidence of the risk of implementation of a decision materialising. In any event, it would not be appropriate to attempt to constrain the implementation a future legal event that has not occurred.
4. I have not heard the parties as to costs and will direct the parties to address me on that issue at a directions hearing to be held in person at the Tribunal premises on Friday 26 August 2022.

1. The Tribunal makes the following orders:
   1. The decision of the delegate dated 13 December 2021 is set aside.
   2. Clauses 1A.1 to 1A.4 inclusive, 2, 3 and 4 of the applicant's amended interlocutory application dated 27 July 2022 are dismissed.
   3. The parties are to address the Tribunal as to costs and any other implications of these orders at a directions hearing to be held in person at the Tribunal premises at 9.30am on Friday 26 August 2022 (one hour set aside).

[1] GKZ v Department for Child Protection [2022] SACAT 74.

[2] Section 35 Book of Documents, p 1. Section 35 of the SACAT Act requires a decision-maker to provide to the Tribunal any document or thing in their possession which may be relevant to the Tribunal's review. These documents are commonly referred to as the "Section 35 Book of Documents".

[3] See also Legislation Interpretation Act 2021 s 3(3).

[5] [1999] FCA 437.

[6] Drewitt v Resource Management and Planning Appeal Tribunal [2008] TASSC 70; 163 LGERA 222, 241 (Slicer J).

[7] The decision is at present unpublished but has been referred by the Tribunal for formal publication with the anonymised name given here.

[8] See, for example, Duncan v Independent Commissioner Against Corruption (2015) 256 CLR 83; [2015] HCA 32.

[9] (1998) 194 CLR 355.