Which decisions are 'reviewable decisions' under the CYPS Act?

1. In this case s 158 of the CYPS Act confers upon SACAT the power to review specific categories of decisions, including decisions of the Chief Executive under Chapter 7 of the CYPS Act (once they have been internally reviewed by the Chief Executive of DCP or his delegate) and any decision declared by the Regulations to be a reviewable decision.
2. It is also important to note that only some decisions of the Chief Executive (that have been internally reviewed) are reviewable by SACAT.
3. Decisions about access or contact arrangements under Part 4 of Chapter 7 of the CYPS Act are not reviewable by SACAT as they have been excluded from the ambit of the definition of a reviewable decision by Regulation 40 of the CYPS Regulations 2017 (the Regulations).
4. It is also important to note that decisions made by individual child protection officers or other staff of the Department not acting under delegated power of the CE are not reviewable by SACAT (even though those decisions can be reviewed internally by the Department under s 157 of the CYPS Act).
5. As an aside, it is also important to observe that not every activity mentioned in a section of Chapter 7 of the CYPS Act gives rise to a 'decision of the Chief Executive' that is subject to review by SACAT.
6. Some sections in Chapter 7 simply provide that certain conduct amounts to an offence.[3]
7. Other sections in Chapter 7 simply set out a statement of the rights of children and carers, or obligations imposed on individuals. For example, s 82 provides that approved carers have the right to participate in a decision making process relating to a child placed with them; there is no decision of the Chief Executive attached to that right. Similarly, s 81(1) creates an obligation upon licensed foster care agencies (placement agencies) to provide certain information to approved carers; the Chief Executive makes no decisions related to that obligation.
8. A failure by a child protection officer to invite a person to a meeting, or a failure by a placement agency to provide information is not a 'decision of the Chief Executive under Chapter 7'.
9. There would likely be a right of internal review against such an action or omission, but such a decision would not then become a 'reviewable decision' under s 158 of the Act as it is not a decision of the Chief Executive under Chapter 7.

Application to dismiss or strike out proceedings

1. At the first directions hearing in this matter a preliminary application was made under s 48 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) by counsel from the Crown Solicitor's Office, Ms Evans, who appears for the respondent Department.
2. The respondent seeks an order that the proceedings be dismissed or struck out on the basis that they are misconceived, frivolous or lacking in substance.
3. This order is sought because the reviewable decision has now been superseded and reversed by a later decision of the Chief Executive.
4. Ms Evans argues that, as the child has now been returned to the applicants' care, they can no longer be said to be aggrieved by a placement decision under s 84 of the CYPS Act. The respondent submits that the decision has come to an end and there is nothing for the Tribunal to review. The respondent also argues that there is no utility in the review process given that the Tribunal is merely being invited to reflect and comment on the actions of the respondent but not make any order to either affirm, reverse or vary the decision.
5. However, the applicants wish to pursue the review. The outcome that they seek is for SACAT to make a statement that the initial decision was unlawful or wrong, that they be given access to the Department's records so that they can examine the reasons for the decision to remove the child temporarily from their care, that a detailed statement of reasons be provided by the Chief Executive, and that the Department's records be corrected.
6. The applicants were also deprived of carer payments for the period that the child was removed from their care and they argue that they have been financially affected by the decision. There is no suggestion that the Tribunal can order the repayment of carer allowance, however, a statement that the child was wrongfully removed would enable an argument to be made to the Department that they were wrongfully deprived of their carer payments for that period.
7. The applicants oppose the strike out order and invite the Tribunal to proceed to hear and determine the matter so that they can achieve the outcome which they seek as detailed in paragraphs 29-30. They submit that the respondent should be required to file the book of documents that were before the decision maker as required by s 35 of the SACAT Act.
8. The Tribunal ordered at the first directions hearing that the requirement for the respondent to file a s 35 book of documents be dispensed with pending the hearing and determination of the preliminary argument on the strike out application.
9. The parties were invited to file written submissions on the strike out application and their arguments have been considered on the papers. These are the reasons for the Tribunal's decision on the preliminary argument.

The Tribunal's review jurisdiction under the SACAT Act

1. Before dealing with the argument under s 48 of the Act it is convenient to discuss the nature and jurisdiction of the Tribunal under the SACAT Act and to set out the Tribunal's powers on review.
2. The South Australian Civil and Administrative Tribunal is, as its title implies, a tribunal and not a court. This is now beyond doubt, as the nature of the tribunal has recently been the subject of legal analysis and consideration by the Full Court of the South Australian Supreme Court in Attorney-General (SA) v Raschke.[4]
3. As SACAT is an administrative tribunal, its jurisdiction and powers are governed entirely by the statute which creates it (i.e. the SACAT Act). The common legal vernacular is to describe the Tribunal as a "creature of statute". The Tribunal cannot exercise any other power, or make any orders, outside of the terms of the statute or the various other enabling enactments that confer power on the Tribunal. The Tribunal has no 'inherent power' or jurisdiction. If the Tribunal purported to act beyond the scope of the SACAT Act or the statutes conferring power on the Tribunal it would be acting beyond power.
4. Section 31 of the SACAT Act makes it clear that the Tribunal will have the jurisdiction conferred on it by or under the SACAT Act or any other Act of Parliament.
5. The Tribunal exercises three kinds of jurisdiction:
   • (a) it has jurisdiction to consider matters in its original jurisdiction under various pieces of legislation as the primary decision maker; [5]
   • (b) it has the power to review decisions made under various statutory regimes by external decision-makers; [6]
   • (c) it also has the power in some cases (depending on the terms of the conferring statute) to internally review certain decisions considered and determined in its original jurisdiction.[7]
6. This matter falls within the review jurisdiction of SACAT under s 34(1) of the SACAT Act. That section provides that the Tribunal's review jurisdiction under Division 2 Part 3 of that Act is that conferred upon the Tribunal by or under an enabling enactment that expressly or necessarily involves a review of a decision (a reviewable decision) coming within the Tribunal's review jurisdiction.
7. On a rehearing the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
8. It is clear that a review under s 34 is a rehearing in the nature of a merits review.[8]
9. The following approach is to be taken by the Tribunal on a merits review by way of rehearing:

(1) The review is to be determined based on the facts and law as they are at the time of the review hearing.

(2) The Tribunal may receive evidence that was not before the original decision-maker, including evidence of subsequent events (i.e. fresh evidence).

(3) The Tribunal has a discretion as to how the review proceedings are conducted and must ensure that the principles of procedural fairness are observed.

(4) The Tribunal does not have to find error in the way that the decision maker considered the matter before it can vary or set aside the original decision.

(5) The task of the Tribunal is to conduct a hearing on the merits and come to the correct and preferable decision.

(6) The Tribunal only has the power to affirm, vary or set aside the decision. If the Tribunal sets aside a decision it can choose to substitute the decision with one of its own, or send the matter back to the original decision maker with directions or recommendations. Ancillary orders can then follow from that first step.

1. The Tribunal's role under s 34 of the SACAT Act is to conduct a practical merits based review process with the focus on exercising one of the powers in s 37. The approach to be adopted in relation to a matter within the review jurisdiction is similar to that applicable to an internal review under s 70 of the SACAT Act. [9]
2. The Tribunal does not have the power to conduct a 'judicial review' of the decision for the purpose of identifying jurisdictional error and providing declaratory or other relief. It is clear that the Tribunal does not have the power or function under s 34 (as sought by the applicants) of simply identifying process errors, or of making statements or declarations about the lawfulness or correctness of the decision, or of directing the Department to "correct the record", or to issue an apology.
3. Some of those powers are powers that the Supreme Court has in the judicial review jurisdiction of the Supreme Court. The superior courts, when exercising powers on judicial review, are acting in a supervisory role over the decision making powers of government departments or agencies by giving them guidance as to the legality of their decisions to ensure that they stay within their powers.
4. The Tribunal does not have that role or power; it cannot grant orders in the nature of prerogative writs, such as making orders in the nature of mandamus to give directions to government agencies about performing a duty which they have failed to undertake, or of correcting their records.
5. Neither can the Tribunal grant any equitable remedies, such as an order in the nature of a declaration that a decision, act or procedure is unlawful.

Power to summarily dismiss or strike out proceedings

1. The power to summarily dismiss proceedings is set out in s 48 of the SACAT Act.
2. The Tribunal will not readily dismiss or strike out proceedings under this section.
3. President Hughes discussed the caution that must be exercised by the Tribunal when utilising that provision as follows:

The power to dismiss is a powerful tool that enables the Tribunal to control the use of its resources. It must be exercised cautiously, and with the objectives of the Tribunal as set out in s 8 of the SACAT Act squarely in mind. These include the requirement to afford procedural fairness, to be responsive to people with special needs, and to ensure that applications are processed and resolved as quickly as possible while achieving a just outcome. It is also relevant that the ongoing nature of the relationship between the parties affords each of them further opportunities to seek remedies for any new breaches that occur.[10]

1. It will be necessary to persuade the Tribunal that there is a good reason to strike out proceedings on review and that such a reason is one that is addressed by s 48 of the SACAT Act.
2. Section 48 of the SACAT Act empowers the Tribunal to dismiss proceedings that are:

Frivolous, vexatious, misconceived or lacking in substance or involves a trivial matter or amount; or

Being used for an improper purpose; or

Otherwise an abuse of process.

1. In a helpful outline of argument filed by Ms Evans, the respondent does not suggest that the proceedings are vexatious or otherwise an abuse of process.
2. The respondent argues that the proceedings are misconceived or, in the alternative, are frivolous and/or lacking in substance.
3. The first argument is that the proceedings are misconceived on the basis that the application has been brought notwithstanding the Tribunal has no jurisdiction to consider the application or to determine it. This is because the decision made on 18 April 2019 has been superseded by a fresh decision made on 1 July 2019.
4. For similar reasons, particularly that the review proceedings are untenable and bound to fail, the respondent argues that the proceedings are lacking in substance or are frivolous.[11]
5. The term 'misconceived' denotes an action that is:

'... conceived wrongly. That is, it proceeds from a misunderstanding or an idea, notion or belief on the part of the applicant that is plainly wrong, such that the applicant's case is so hopeless that it should be summarily brought to an end and/or they are unable to show that they have more than a remote possibility of a well-founded claim, or in other words, where there is no real basis on which an external review can proceed.'[12]

1. An application is 'lacking in substance' where the complainant has no arguable case or when it entails an untenable proposition of fact or law. The two concepts are closely related and an application may be deficient in both respects.[13]
2. As to the jurisdictional point I consider that the Tribunal still has jurisdiction to entertain the review. A review was lodged within time against a reviewable decision by persons aggrieved by that decision.
3. The better argument is that, whilst the Tribunal technically has jurisdiction to entertain the application for review, the Tribunal has no power to provide any relief sought by the applicant or to make any appropriate order to effectively determine the review under s 37 of the SACAT Act.
4. The respondent referred to an unreported decision of the District Court that is factually analogous.[14] There the District Court was considering an appeal against the making of a Community Treatment Order under the Mental Health Act 1993 where, by the time the matter came on for consideration, the order had been revoked or superseded by a subsequent order.
5. In considering its powers on the appeal the Court stated at [9]-[10]:[15]

certainly the appeal was valid at the time of filing... in the circumstances of this case, by the time it came to the hearing of the appeal before the court there was no remaining content or subject matter available for the court to 'affirm', 'rescind', 'substitute' or 'remit', and there would be plainly no point in exercising any of those options, since the Board made a subsequent order for detention, as we have said earlier, superseding the order under appeal. Whatever the strict legal merits, it would appear therefore as a practical consideration that this Court is powerless to make any effective order, and it would be equally futile to attempt to do so.

1. In other cases where the District Court was considering appeals against mental health orders that had expired at the time that the appeal was heard, the approach of the Court had been to stay the appeal. In Henschke v Guardianship Board the District Court stated that it had no power to quash an order of the Guardianship Board retrospectively and stayed the appeal.[16]
2. In Re: M, WF[17] the Court took the view that if a detention order had expired there was "no legal right to be vindicated as an issue between the parties, and so the appropriate order is that the appeal be permanently stayed."
3. The role of the Tribunal on the review is to revisit the decision, consider it on its merits and consider making an order under s 37; that is, to take effective and practical steps to either affirm, vary or revoke the subject decision. If the decision is set aside, s 37(1)(c) requires the Tribunal to substitute the decision with its own decision, or remit it to the decision maker for reconsideration with any relevant ancillary orders (such as an interim order for the original decision to remain in place until the decision has been reconsidered).
4. If the decision has effectively come to an end, or has been superseded by a later decision which reverses that decision, then, as submitted by the respondent, there is no practical relief that the Tribunal can afford to the applicants on the merits review. Consequently, pursuing the review proceedings would be futile.
5. The applicants submit that there is a point to the review proceeding and that the process would not be futile. The applicants argue that there would be significant practical consequences of a review of the decision by the Tribunal. They argue that the record of the decision remaining on the Department's file constitutes a stain on their characters or reputation, impacts on them financially because of the loss of foster care payments, denies them an opportunity to examine the s 35 documents placed before the decision-maker or to have a more fulsome statement of reasons produced.
6. I return to the earlier discussion regarding the role of SACAT and the powers of the Tribunal on the review. The orders or outcome that the applicants are seeking are clearly beyond the power of the Tribunal to grant; they are not within the scope of s 37 of the SACAT Act. To this extent I am satisfied that the review proceedings are misconceived as the Tribunal simply has no power to determine the matter in the manner which the applicants seek.
7. For the same reasons, in my view the proceedings are clearly lacking in substance. The proceedings are futile; there is no possible outcome under s 37 that could be achieved by the applicants in pursuing the review. It is appropriate to dismiss the application for review.

1. The Tribunal dismisses the proceedings pursuant to s 48 of the SACAT Act_._ In those circumstances the respondent is under no obligation to file the book of documents under s 35 of the SACAT Act.
2. The orders previously made under s 60 of the SACAT Act, to prohibit the publication of evidence or the contents of documents filed in order to preserve the confidentiality of the name and personal circumstances of the subject child, continue.

[1] I infer the fact of a Youth Court Order concerning RNT. There is nothing in the documents before me currently to evidence this fact (the s 35 documents have not yet been filed).

[2] Section 158(3) CYPS Act and Regulation 40A of the CYPS Regulations 2017.

[3] See for example s 71, s72 (6), s75, s87, s88, s98, s101 etc.

[4] Attorney-General (SA) v Raschke [2019] SASFC 83 on appeal from Hughes P in Raschke v Firinauskis [2018] SACAT 19.

[9] Re AKS [2016] SACAT 19.

[10] Atkins & Akins v Hughes [2018] SACAT 25 at 44.

[11] L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd [1978] FCA 17; (1978) 19 ALR 621.

[12] Leach and Department of Police (unreported, Queensland Information Commissioner, 26 June 2009).

[13] Atkins & Akins v Hughes at 49; State Electricity Commission of Victoria v Rabel [1998]1 VR 102 at 109 - 110.

[14] Re: S, PM 21 August 2006 Simpson J, Assessors Gipslis and Evans.

[17] Unreported [2008] SADC 121, Smith J and assessors Branson and Battams.