• Section 158 does not describe the outcome of an internal review as a "decision" but instead "the results"; it is expressed in a way that indicates that the reviewable decision is the decision following the process of internal review, and not the decision on internal review;
• The relevant reviewable decision is the original placement decision of 7 November 2022 as reversed following internal review, therefore the applicant is a "person aggrieved" and has standing to bring the review proceedings;
• The decision of 7 November 2022 was not a decision to remove QCJ from the care of the second respondent and place her with the applicant. It was only a decision to place her with the applicant. A lack of authority on the part of the delegate to make a removal decision is irrelevant to the validity of the decision;
• The interlocutory application is dismissed and the substantive proceedings will be heard.

Administrative Review - Children and Young People (Safety) Act 2017 - Children and young people in 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 - Children and young people in Chief Executive's custody or Guardianship - Review of a decision of the Chief Executive or Delegate - Standing - Person aggrieved

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 delegated power to make decision

Children and Young People (Safety) Act 2017 ss 84, 138, 157, 158

Freedom of Information Act 1991 s 40

SH v Chief Executive Officer of Department of Communities [2019] WASCA 31

Archer (A Pseudonym) v Chief Executive of the Department for Child Protection [2022] SASC 94

GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75

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.

1. The proceedings concern a four-year-old child, QCJ.
2. QCJ is the child of CXP and TIU. The pair are no longer in a relationship. CXP formed a relationship with FOB. QCJ was removed from the care of CXP and FOB on 5 June 2020 when QCJ was 18 months old. The guardian is the Chief Executive of the Department for Child Protection ("the Department"), the first respondent in the proceedings.
3. QCJ was immediately placed in the care of a foster carer, JKL, who is the second respondent in the proceedings.
4. The applicant in the proceedings is QCJ's paternal aunt, KJS. KJS was, at the time of QCJ's removal, living interstate. She expressed interest to the Department in being assessed to provide care for QCJ.
5. QCJ was placed under long-term guardianship orders in December 2020 with the consent of the parents.
6. KJS was told by the Department in August 2021 that QCJ would be placed in her care. She and her husband relocated to Adelaide from Victoria. She started spending considerable amounts of time with QCJ.
7. In late 2021,[1] the Department determined that it would not be in QCJ's interests to move away from JKL because of the attachment between QCJ and JKL.

1. The proceedings concern a review of a decision by a delegate of the Chief Executive of the Department for Child Protection.
2. A decision made on 7 November 2022 was to place QCJ with the applicant, KJS ("the original decision"). It was not implemented because of an application by JKL that the original decision be internally reviewed under s 157 of the Children and Young People (Safety) Act 2017 ("CYP(S) Act").
3. The internal review by the Department on 13 April 2023 reversed the original decision. The Department's position after the internal review was that QCJ was to remain with the second respondent, JKL.
4. KJS wants to restore the decision dated 7 November 2022 which was to place QCJ in her care. She has applied to the Tribunal for a review pursuant to s 158 of the CYP(S) Act ("the proceedings").

1. The second respondent, JKL, made an interlocutory application in the proceedings on 17 July 2023.
2. The second respondent advanced two arguments:
   1. A review lies from a placement decision made under s 84 of the CYP(S) Act. KJS is not aggrieved by the placement decision of 7 November 2022. She is aggrieved by a decision made on internal review under s 138. No review lies in respect of that decision. The proceedings should be dismissed as incompetent (in the legal sense).
3. In the event that the first argument is decided against the second respondent and the review is competent, the second respondent argues:
   1. The original decision on 7 November 2022 to remove QCJ from the second respondent's care and place QCJ with the applicant was made without authority because the decision-maker was not delegated the authority to remove a child from the second respondent's care.
4. On 8 August 2023 I heard argument and dismissed the application that the proceedings are incompetent and declined to set aside the original decision for want of authority. The effect of this dismissal is that the substantive proceedings can now be heard.
5. These are my reasons for dismissing the interlocutory application.

1. The second respondent submitted that there have been two decisions made concerning QCJ's placement. The first was a decision made on 7 November 2022 to place QCJ with the applicant. It was made under s 84, within Chapter 7 of the CYP(S) Act. Section 84 sets out the Chief Executive's powers with respect to a child in relation to whom she has guardianship. It was submitted that the applicant does not challenge the outcome of that decision; rather, it aligned with the outcome that she sought.
2. The original decision gave rise to a right of internal review described in s 157 of the CYP(S) Act in Chapter 12, which was exercised by the second respondent. The internal review outcome on 13 April 2023 was to reverse the original decision, such that QCJ would not be placed with the applicant and would remain with the second respondent. According to the second respondent, it must be understood that that it is the decision to reverse made on 13 April 2023 which the applicant seeks to challenge. However, no right of review by the Tribunal lies from such a decision.
3. Section 158 sets out the circumstances in which there can be a review by the Tribunal and who may bring such a review. Of relevance to the second respondent's arguments are ss 158(1), 158(2)(b) and 158(3)(c):

158 - Review of decisions by South Australian Civil and Administrative Tribunal > > (1) Subject to this section, the South Australian Civil and Administrative Tribunal is, by force of this section, conferred with jurisdiction to deal with matters consisting of the review of the following decisions (reviewable decisions): > > (a) a decision of the Chief Executive under Chapter 7 (other than a decision under Part 4 of that Chapter); > > (b) any other decision under this Act declared by the regulations to be a reviewable decision. > > (2) However - > > (a) a decision referred to in subsection (1) that comprises a prescribed child protection complaint (within the meaning of section 28A of the Health and Community Services Complaints Act 2004) will be taken not to be a reviewable decision; and > > (b) a decision referred to in subsection (1) will only be taken to be a reviewable decision if a review under section 157 has been conducted in respect of the decision. > > (3) An application for review of a reviewable decision may be made to the South Australian Civil and Administrative Tribunal by - > > (a) in the case of a decision under section 72, 99 or 105 - the applicant in relation to the relevant decision; or > > (b) in the case of a decision under section 74, 100 or 106 - the person, foster care agency or children's residential facility to which the relevant decision relates (as the case requires); or > > (c) in the case of any other decision - a person or persons prescribed by the regulations for the purposes of this paragraph. > > (4) An application must be made within 28 days after the applicant receives notice of the results of the relevant review under section 157 (or such longer period as the Tribunal may allow). > > (5) However, the South Australian Civil and Administrative Tribunal may only allow an extension of time under subsection (4) if satisfied that - > > (a) special circumstances exist; and > > (b) another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings.

4. The second respondent contended that the decision with which the applicant is aggrieved is the decision on internal review made under s 157 in Chapter 12, and not the original decision made under s 84 in Chapter 7. However, the jurisdiction of the Tribunal is confined to review of decisions made under Chapter 7 which while it includes the original decision, does not include a decision on internal review.
5. Further, the second respondent argued that the applicant is not "aggrieved" by the decision made on 7 November 2022 under s 84. That is the decision she seeks to uphold. If the applicant has standing to bring the proceedings it is because she is a person described by reg 40 of the Children and Young People (Safety) Regulations 2017 ("CYP(S) Regulations") for the purposes of s 158(3)(c) above:

40A - Review of decisions by South Australian Civil and Administrative Tribunal > > For the purposes of section 158(3)(c) of the Act, the following persons are prescribed: > > (a) the applicant in respect of an internal review of the relevant reviewable decision under section 157 of the Act; > > (b) a child or young person to whom the relevant reviewable decision relates; > > (c) any other person aggrieved by the relevant reviewable decision and who, in the opinion of the South Australian Civil and Administrative Tribunal, has sufficient interest in the matter.

6. The second respondent submitted that the applicant could only have standing to bring these proceedings if she were "aggrieved by the relevant reviewable decision and who, in the opinion of the SACAT, has a sufficient interest in the matter". It was submitted that she is not so aggrieved.
7. The Department's position, and that taken by Mr McCloud on behalf of the applicant, was that the relevant reviewable decision is the original decision as reversed following internal review. The internal review outcome was described as not being a reviewable decision but an intermediate step in the decision-making process between its making and its review by SACAT.
8. The dispute is resolved by the construction of the relevant provisions. The legislature could attach the right of review to the original decision as confirmed, varied or reversed, or to the decision made on internal review. Section 158 is expressed in a way that indicates that the reviewable decision is the decision following the process of internal review, and not the decision on internal review. In particular, the internal review is not described as a 'decision'. Section 158(4) provides that an application for review to SACAT must be made "within 28 days after the applicant receives notice of the results of the relevant review under section 157". What follows from an internal review is "the results" and not "the decision". The use of "the results" indicates an intent to avoid describing the action of confirming, varying or substituting as a separate decision.
9. Further, a construction that the relevant reviewable decision is the original decision as confirmed, varied or reversed creates a coherent set of provisions, whereas the alternative construction does not. It is one that allows, as might be expected, a person aggrieved by the decision following an internal review to challenge that decision in the Tribunal. It makes little sense not to confer a right of review to the Tribunal to a person aggrieved by a decision once it has been internally reviewed, when all decisions that may be subject to review by the Tribunal must be internally reviewed.
10. I accept the first respondent's and applicant's submissions that there is only one substantive decision, which is the decision as to whether to place the child in a particular placement. The decision as originally made gives rise to a right of internal review and the decision after that review gives rise to a right of review by the Tribunal.
11. When an internal review occurs, it has the effect of confirming, varying or reversing the original decision.[2] The outcome of the internal review responds to the question that was originally required to be answered. It does not respond to a challenge to the process undertaken in, or the reasoning of, the original decision.
12. Other legislative schemes take a similar approach but perhaps provide more overt signalling as to the identity of the reviewable decision.
13. Section 40 of the Freedom of Information Act 1991 refers to an agency's right of a review "of a determination made on [an external review]". That is, the agency that has made the original decision has a right of review by the Tribunal where an external review authority has reviewed the agency's determination. On the other hand, "a person who is aggrieved by a determination of an agency following an internal review" is the descriptor for the review rights of a person who has made an application to an agency and is dissatisfied with the agency's decision. The phrase "a determination of an agency following an internal review" connotes the original determination as varied or affirmed. It does not connote a review of a decision made on internal review.
14. The Western Australian child protection scheme signals in the opposite direction. It makes it clear that the only decision reviewable by the Tribunal is the internal review decision.[3]
15. In each case it is a matter of considering the words of the statute and their context to arrive at a construction that is harmonious with the purpose of the legislation. I am satisfied that the reviewable decision referred to in s 158 of the CPY(S) Act is the decision made under Chapter 7 that has been reversed following internal review. It is consistent with the fact that both the original decision and the internal review are undertaken and made by the Chief Executive, albeit in practice the Chief Executive delegates the powers to be performed by others in the Department.
16. The relevant reviewable decision is the placement decision of 7 November 2022 as it stands following the internal review, which is that QCJ remain in the care of the second respondent.
17. Given this conclusion, it was necessary to proceed to consider whether the decision-maker had authority to make the original decision.

The decision-maker had authority to make the decision

1. The person who made the original decision dated 7 November 2022[4] was Ms Perks, who was at the relevant time a manager of the Department's Noarlunga office.
2. It was not in dispute that the decision entailed an exercise of power under s 84 of the CYP(S) Act. Section 84 provides:

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. > > (2) To avoid doubt, nothing in this section limits the operation of section 71 or 77. > > (3) In exercising a power under this section, the Chief Executive - > > (a) must have regard to the principles of intervention, the placement principles and, if relevant, the Aboriginal and Torres Strait Islander Child Placement Principle; and > > (b) must keep in mind that leaving the child or young person under the guardianship, or in the custody of, the Chief Executive is the least preferred option; and > > (c) should exercise the power in a manner that is consistent with this Act and any relevant policy published under section 19. > > (4) To the extent that the child or young person is willing and able to do so, a child or young person who is affected by a decision of the Chief Executive under this section should be involved in the decision-making process (and, in particular, their views should be given due weight in making the decision, in accordance with their developmental capacity and the circumstances of the case). > > (5) The Chief Executive must keep each parent and guardian (if the Chief Executive is not the guardian) of a child or young person informed about where the child or young person is placed and how the child or young person is being cared for, unless the Chief Executive is of the opinion that it would not be in the best interests of the child or young person to do so.

3. Mr Tredrea contended that the letter to the second respondent is properly characterised as evidencing Ms Perks' decision to remove QCJ from the second respondent made pursuant to s 84(1)(c), and a further decision to place QCJ with the applicant made pursuant to s 84(1)(a).
4. It was submitted that although the letter does not refer to s 84(1), the words of the decision include the phrases "the decision to transition [QCJ] into an alternative placement" and later, "The removal of a child from a long-term placement is a reviewable decision ...", which indicate that the Department viewed the document as embodying two distinct decisions.
5. Mr Tredrea referred the Tribunal's attention to the treatment of the exercise of s 84 powers by Blue J in Archer (A Pseudonym) v Chief Executive of the Department for Child Protection[5] to support the contention that a placement decision entails a removal decision where the child is in a placement and is then moved to another placement. At para [192] Blue J described the power to remove under s 84(1)(a) as "a concomitant of the power of the Chief Executive to place a child in the care of a person". In that case, the Department made a positive decision to remove the children from the carers because of a deficit of care. This enlivened an obligation, in a practical sense, to determine where the child should be next placed. However, those remarks do not entail the conclusion that any placement subsequent to an earlier placement entails a removal.
6. It is not in dispute that Ms Perks purported to act on the authority of an instrument of delegation dated 27 September 2022.[6] It was not in dispute that the instrument of delegation confers on a Manager of a Child Protection Office the power to place a child but limits the exercise of the power to remove a child in respect of those below the level of Director in the Department (and it was not disputed that Ms Perks is not at Director level) to circumstances in which the decision is made "to ensure the child or young person's immediate safety".[7] It was not in dispute that the decision was not made to achieve QCJ's immediate safety.
7. The Department's position, with which the applicant agreed, was that the only power exercised by Ms Perks was to place QCJ. It says that no removal decision was entailed by the decision to place.

1. I considered the meaning of 'remove' in the suite of actions authorised by s 84 in GKZ v Department for Child Protection & Anor (No 2).[8] In that matter, the Tribunal was asked to consider whether a decision made by a departmental officer was a decision that the officer had delegated authority to make. In considering the instrument of delegation (which appears to be an earlier iteration of the instrument that I am called upon to consider in these proceedings) I made various observations about whether a placement under s 84 entailed a removal under that section. At para [53], I said:

... 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.

2. Apart from now entertaining some doubts about whether the words "as a removal occurs only where the criteria in s 41 are met" correctly reflect the law,[9] I am satisfied that the proposition that a placement subsequent to an earlier placement does not necessarily entail a removal remains correct. When the Department changes the placement arrangements for a child it may be prompted by the need to remove a child from their existing placement, whereupon a further placement will be required. However, where the Department merely identifies a more suitable placement for a child, the decision required of the delegate is to place but not to remove. The existing placement will be terminated without a removal having occurred.
3. There was no submission to the effect, and no evidence to support a conclusion, that the second respondent had acted or failed to act in a way that was consistent with QCJ's proper care. The Department's communicated position was that the proposed transition of QCJ from the second respondent's care to the care of the applicant arose from the familial relationship that the applicant has with QCJ.
4. I am satisfied that the decision of 7 November 2022 was not a decision to remove QCJ from the care of the second respondent and place her with the applicant. It was only a decision to place her with the applicant. It follows that a lack of authority on the part of Ms Perks to make a removal decision is irrelevant to the validity of the decision.
5. For that reason, the application to have the original decision set aside for want of authority has failed.

[1] By order dated 28 August 2023, a clerical mistake was amended by replacing "2022" with "2021".

[3] See the discussion of the Supreme Court of Western Australia in SH v Chief Executive Officer of Department of Communities [2019] WASCA 31.

[5] [2022] SASC 94.

[6] Provided to the Tribunal for the purposes of the interlocutory argument.

[7] Page 2 of the Instrument of Delegation provides that a Manager of a Child Protection Office may only make a decision to remove a child from a placement with an approved carer if satisfied that the removal is required to ensure the child or young person's immediate safety.

[8] [2022] SACAT 75 (24 August 2022).

[9] Having reflected on those words, I consider that a removal under s 84 may not necessarily meet the criteria in s 41. As the issue does not arise in these circumstances, that question can be left for further exploration on another occasion.