XVS subsequently applied to become a 'kinship carer' and his application was approved. In 2020, he requested that DCP make a new decision to place the child with him and his wife but DCP advised that NQR would remain in the care of his current foster carers and a new 'placement decision' would not be made. XVS sought a review of DCP's decision not to make a further 'placement decision'.

The respondent submitted that the Tribunal had no jurisdiction as there was no 'reviewable decision' under s 158 of the Children and Young People Safety Act 2017 (SA) identified in the application. If the applicant was seeking a review of the reviewable decision made in 2019, DCP argued that the application was out of time and an extension of time was not justifiable.

• A refusal by DCP to make a placement decision was not a 'placement decision' and accordingly no internal review had been, or could have been, conducted; thus, DCP's decision in 2020 was not a 'reviewable decision'.
• The application was misconceived as the Tribunal had no jurisdiction to entertain or determine it; and
• In the alternative, if the applicant was actually seeking to review the reviewable decision made by the Department on 15 July 2019, the application was out of time and it was not in the interests of the child for the Tribunal to extend the time in which the applicant had to seek a review.

Administrative review - Children and Young People (Safety) Act 2017 (SA) - Children and young people in Chief Executive's custody or guardianship

Administrative tribunals - Procedure - Statutory powers - Frivolous, vexatious, or improper proceedings - Application is misconceived - Dismissal of application

South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 31, 34, 48

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

Health and Community Services Complaints Act 2004 (SA) s 28A

Attorney-General (SA) v Raschke [2019] SASFC 83

Raschke v Firinauskis [2018] SACAT 19

Leach v Department of Police (unreported, Queensland Information Commissioner, 26 June 2009)

R v Yavuz [2018] SASCFC 24; (2018) 130 SASR 231

Ms L Foran, Crown Solicitor's Office, 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. 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.

Dismissal of misconceived proceedings - proceedings struck out

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 48

1. The applicant's grandson (NQR) is under the guardianship of the Chief Executive of the respondent Department (DCP). In June 2019, the applicant (XVS) and his wife (who were then not approved as carers) wanted to be considered as kinship carers for their young grandson, but DCP placed the child with approved carers instead. This was a placement decision regarding NQR.
2. XVS was unhappy with the initial placement decision so, in July 2019, he sought an internal review of the placement decision. He was unsuccessful on the internal review. XVS did not seek a review to SACAT at that time (even though that review right was then available to him).[1] He and his wife were, at that time, not approved carers under the Act.
3. XVS subsequently applied for approval to become a 'kinship carer' and he is now an approved carer. Recently he requested that DCP make a new decision to place the child with him and his wife; DCP has decided not to make a further placement decision and has not moved the child from the initial placement, so NQR continues to reside with the initial approved carers.
4. This is an application for review of the recent purported 'placement decision' to not move or place the child with XVS.
5. XVS relies on a letter from DCP, dated 29 October 2020, (stating that NQR would remain in the care of his current foster carers) as constituting written evidence of the Department's new 'placement decision'.
6. XVS sought an internal review of that purported 'placement decision'.
7. By letter dated 19 January 2021, the Department advised XVS that there has been no recent placement decision. Rather, they argued that NQR has simply remained in the initial placement on an ongoing basis since June 2019.
8. DCP stated that as there has been no subsequent placement decision since July 2019 the matter is therefore 'out of scope' of the internal review process. Accordingly, the Department declined to conduct an internal review.

1. The respondent has filed an Interlocutory Application in this matter arguing that the Tribunal has no jurisdiction to entertain this application as there is no 'reviewable decision' under s 158 of the Children and Young People Safety Act 2017 (SA) (CYPS Act) insofar as the application relates to the review of the correspondence from the respondent Department dated 29 October 2020 (which is not a placement decision) and there has been no internal review.
2. The alternative position that the Department takes is that, if this purports to be a review of the reviewable decision made by the Department on 15 July 2019 (regarding the initial placement decision), then the application for review is out of time. An application for review by SACAT must be made within 28 days of the internal review decision (s 158(4) of the CYPS Act).
3. DCP submits that the Tribunal should not grant an extension of time to bring the review to SACAT as no special circumstances exist to support an extension of time and another party, namely the child, will be unreasonably disadvantaged because of the delay in commencing the proceedings (s 158(5) of the CYPS Act).

1. The CYPS Act confers upon SACAT the power to review a range of decisions (if they have first been internally reviewed under s 157 of the Act).[2]

157 - Internal review

(1) A person who is aggrieved by a decision of the Chief Executive or a child protection officer under this Act is entitled to a review of the decision under this section.

(2) An application for review -

(a) must be made in a manner and form determined by the Chief Executive; and

(b) must be made within 30 days after the day on which notice of the decision was given to the applicant (or such longer time as the Chief Executive may allow).

(3) On an application for review under this section the Chief Executive may confirm, vary or reverse the decision under review.

(4) The regulations may make further provision in respect of a review under this section (including, to avoid doubt, by limiting the kinds of decisions that may be the subject of an application or review).

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. (My emphasis)

Was there a placement decision in October 2020?

1. Under Chapter 7 of the CYPS Act there are a broad range of decisions which may be the subject of an application to the Tribunal for review under s 158(1)(a).
2. These include, for example, decisions about carers, namely: decisions to approve or refuse a person's application to be approved as a carer; to impose, vary or revoke conditions on the approval of a person as an approved carer and; to cancel the approval of an approved carer.
3. Other decisions that are subject to review by the Tribunal are those decisions made by the Chief Executive of the Department set out in s 84 of Chapter 7 of the CYPS Act regarding children under custody or guardianship orders made in the Youth Court.
4. Significantly, placement decisions relating to children under the custody or guardianship of the Chief Executive may be the subject of an internal review within the Department and subsequently a review by SACAT.[3]
5. Section 84(1) subsections (a), (b), (c) and (d) enable the Chief Executive to determine to place a child (who is under the guardianship of the Chief Executive) into the care of a member of their family, or with another suitable person, or to remove the child from the care of a family member, or of a suitable person, or to place the child in a licensed children's residential facility.
6. The respondent argues that the 29 October 2020 correspondence is not a decision of the Chief Executive under that part of the CYPS Act. The argument is that the recent decision not to further explore placing NQR in the care of the applicant was not made pursuant to one of the powers in s 84(1) of the CYPS Act. In particular, it was not a decision to "place the child or young person in the care of any other suitable person" under s 84(1)(b).
7. I agree with the respondent's argument about the interpretation of the correspondence from the Department in October 2020. In my view, a placement decision requires a positive act by the Chief Executive, or her delegate, to determine to change a child's ongoing residence with one carer and to place that child with another carer.
8. Here, the Chief Executive's delegate is merely rejecting a request to explore the making of a further placement decision. In my view, a failure to make a placement decision is not a 'placement decision' in the context of s 84(1)(b) of the relevant Act.
9. Accordingly, I consider that the Department was correct to determine that the correspondence from XVS was not a decision that could be internally reviewed under s 157 of the CYPS Act (i.e. that it was out of the scope of s 157 of the Act).
10. Even if I am wrong in that interpretation (i.e. had I disagreed with the respondent's position about that), there is a second hurdle for XVS in bringing the matter to SACAT. That is because the determination by the respondent has not in fact been internally reviewed under s 157 of the CYPS Act. It is, accordingly, not a 'reviewable decision' under s 158 of the CYPS Act. This is a difficulty for XVS because the Tribunal only has the power conferred on it by statute.

1. The South Australian Civil and Administrative Tribunal does not have any inherent powers or jurisdiction as it is not a court.[4] SACAT is an administrative tribunal and its jurisdiction is set out in the South Australian Civil and Administrative Tribunal Act 2013 (SA) (SACAT Act), or in the legislation which confers jurisdiction on the Tribunal.[5] The Tribunal is a creature of statute and cannot act beyond the limits of its power.
2. Section 34(1) of the SACAT Act makes this very clear and provides that the Tribunal's review jurisdiction under Division 3 Part 3 of the SACAT Act is limited to the review of a 'reviewable decision'.
3. The Tribunal does not have the power to direct the Chief Executive to make a further placement decision, or to entertain the matter under s 157 on internal review. Those are powers that only the Supreme Court has on judicial review.[6]
4. In summary, the decision that the applicant seeks to review through SACAT is not a 'reviewable decision' under s 158(1) of the Act or s 34(1) of the SACAT Act. This means that the application for review is beyond the jurisdiction of the Tribunal.

Section 48 of the SACAT Act - proceedings misconceived or without substance

1. It follows that the application for review is misconceived as the Tribunal has no jurisdiction to entertain or determine the application for review.
2. 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.[7]

1. In the circumstances it is necessary to dismiss the application for review under s 48(1)(a) of the SACAT Act.
2. Finally, given that XVS is unrepresented, it is appropriate to consider an alternative argument namely that, if this purports to be a review of the reviewable decision made by the Department on 15 July 2019 (regarding the initial placement decision), then the application for review is out of time.
3. An application for review by SACAT must be made within 28 days of the internal review decision (s 158(4) CYPS Act). XVS has not raised this argument but, to be fair, the Crown Solicitor as model litigant has suggested it as another avenue for XVS to potentially advance an application to SACAT.
4. The respondent submits that the Tribunal should not grant an extension of time to bring the review to SACAT as no special circumstances exist to support an extension of time and another party, namely the child, will be unreasonably disadvantaged because of the delay in commencing the proceedings (s 158(5) the CYPS Act).
5. If the review application is understood in that manner, the applicant requires an extension of time in which to bring that aspect of the application. An extension of time of approximately 14 months is required.
6. The Tribunal's discretionary power to grant an extension of time is conditional upon its satisfaction that "special circumstances exist" (s 158(5)(a) CYPS Act); and "another party will not be unreasonably disadvantaged because of the delay in commencing the proceedings" (s 158(5)(b)).
7. The reference to "special circumstances" in s 158(5)(a) may be understood as a reference to circumstances which, when present:

i. so markedly change the nature of the particular case that is no longer within the mischief which the legislature intended to address; or

1. take the particular case out of the contemplated scope of the statutory provision, or outside the circumstances contemplated by Parliament; but

1. should not be understood as creating a threshold so high that it becomes near impossible to satisfy.[8]

1. The respondent takes no position as to whether the Tribunal can be satisfied that special circumstances exist in this case. However, that criterion is a matter for the applicant to make out.
2. XVS is not seeking an extension of time and so has not put forward any submissions to support that argument. Nevertheless, given the scheme of the CYPS Act, and the focus of the placement principles in Part 3 of Chapter 1, and on the basis of the material before me, I do not consider that there are any special circumstances to extend the time in which to seek a review of the 2019 placement decision.
3. NQR has been in an ongoing placement since June 2019. Given the effluxion of time, I do not consider it in the interests of the child (who is two years old and has been with the same foster carers for over 18 months) for the Tribunal to extend the time in which to seek a review of a placement decision made in 2019.[9]

1. The Tribunal orders that the proceedings be dismissed.

[1] The Children and Young People Safety Act 2017 (SA) _(_CYPS Act) came into operation on 22/10/18.

1. [3] However, the Tribunal is not empowered to make or review access decisions. Section 158 (1) (a) of the CYPS Act specifically excludes the review of any access or contact decisions made by the Chief Executive under Part 4 of Chapter 7 regarding children under guardianship or custody orders.

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

[6] By seeking an order in the nature of mandamus (an order compelling an authority to perform a public duty); see Chapter 20 Part 6 of the Uniform Civil Rules 2020 (SA) rr 256.1 - 256.7.

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

[8] R v Yavuz [2018] SASCFC 24; (2018) 130 SASR 231, 257-259 [113]-[115] (the Court).

1. [9] The ultimate outcome the applicant seeks, may be at variance with the s 11(1)(a) placement principle.