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Cited legislation

6 cited instruments linked from this judgment.

The parents said they both had mild intellectual disabilities. In a complaint lodged with the Equal Opportunity Commissioner on 20 November 2018, they alleged that the Department discriminated against them because of disability. Their complaint focused on the removal, the continued failure to return the children, decisions about the frequency of contact, and the decision to leave the children with foster carers (Background and relevant facts, [3]–[5]; Interpretation of s 76, [3]).

The Commissioner declined to entertain the complaint as misconceived. It was referred to the SA Employment Tribunal, where conciliation did not resolve the matter, and later transferred to SACAT under s 88 of the Statutes Amendment (SACAT) Act 2019 (Background and relevant facts, [6]–[7]). The Department argued that the complaint did not allege conduct made unlawful by the Equal Opportunity Act 1984 (SA). SACAT considered that objection as a preliminary issue after receiving written submissions from both sides (Background and relevant facts, [8]–[10]).

Senior Member Stevens dismissed the proceedings. The decision was not a determination of whether the parents were suitable carers, whether the children were safe, or whether the Department's decisions were correct on their merits. Its central question was whether the four alleged acts could amount to unlawful disability discrimination under the particular statutory provision the Tribunal considered potentially relevant.

Why the court decided this way

The Tribunal began from the proposition that the Act does not make every instance of discrimination unlawful. A complaint under s 93 had to fit one of the provisions specifying when disability discrimination is unlawful. The Tribunal considered ss 67–78 and identified s 76, concerning discrimination in the provision of goods and services, as the only potentially relevant provision (The Issue, [1]–[5]).

Section 76 applies to a person who offers or provides relevant goods or services. It prohibits discrimination against another by refusing or failing to supply those goods or perform those services, or by discrimination in the terms, conditions or manner of supply. The Tribunal observed that the statutory definition included services provided by a government department, but that this did not mean every departmental act was a service (The Issue, [5]–[7]).

The pivotal interpretation was who must be the recipient of the service. The Tribunal read “another” in s 76 as the person to whom, or for whose benefit, goods or services are provided, or from whom they are withheld. It therefore considered that the parents had to show either that the Department provided services to them in a discriminatory way or that it withheld from them services provided to people of a similar class (Interpretation of s 76, [2]). In explaining this approach, the Tribunal referred to Patrick v State of South Australia (No 2), Marchenko v South Australia Police and McDonald v The State of SA. It also referred to State of New South Wales v Whiteoak for the ordinary understanding of goods and services.

Applying that interpretation, the Tribunal treated the four challenged matters as child-protection decisions, not services to the parents. It said the Department's focus was the children's best interests and its statutory responsibility to keep them safe from harm. The Department's decisions were contrary to the parents' wishes and interests, and, in the Tribunal's view, were not services provided to them or withheld from them (Interpretation of s 76, [1]–[2]).

The Tribunal considered the Children's Protection Act 1993 (SA), which was in force when the Department acted. Its primary object was to keep children safe from harm, and that object was paramount in administering the Act. Section 8 also referred to partnership with families and services intended to strengthen and support families. The Tribunal acknowledged those provisions, but read them in the context of the primary child-safety objective. It did not find that the parents had identified a particular service allegedly denied because of disability (Children's Protection Act 1993, [1]–[4]; Interpretation of s 76, [2]).

Finally, the Tribunal said it had no authority to review the Youth Court's guardianship decisions. It regarded the subsequent placement as consistent with the Youth Court order and understood the Department's placement and contact decisions as decisions made in its role as guardian of the children (Interpretation of s 76, [2]). On that basis, the complaint did not fit s 76 and had no reasonable prospects of success.

Before and after state of the law

The judgment's legal analysis is confined to the statutory framework before it. The complaint was brought under the Equal Opportunity Act 1984 (SA), and the Tribunal treated Part 5, particularly ss 67–78, as setting out when disability discrimination was unlawful. It did not reason from a general prohibition covering all discriminatory conduct. Rather, it required the alleged conduct to fall within a specified statutory situation (The Issue, [1]–[4]).

For the parents' allegations, s 76 was the only provision the Tribunal considered potentially applicable. The decision's contribution is its application of that provision to public child-protection decisions. It distinguishes services a department may provide from decisions it makes in carrying out child-protection responsibilities. It also connects the s 76 recipient question to whether the alleged complainant was the person receiving, or being denied, the service (Interpretation of s 76, [1]–[2]).

The judgment notes that the Department's relevant conduct occurred under the Children's Protection Act 1993, which was later replaced by the Children and Young People (Safety) Act 2019. The Tribunal relied on the former Act because it governed the relevant departmental actions; the judgment does not analyse the replacement Act or decide how the present decision would apply under it (footnote [6]).

The case therefore should not be read as establishing that child-protection departments never provide services to parents, or that disability discrimination claims can never arise in that setting. The Tribunal acknowledged statutory provisions about services to families. Its conclusion turned on the four matters actually alleged and its view that those decisions were not services to the parents under s 76. The judgment does not discuss subsequent legislative changes or establish a comprehensive definition of “services” for every context.

Key passages with plain-English translation

The Tribunal's starting point was: “The Act does not make all discrimination unlawful. The Act carefully sets out the circumstances in which discrimination will be unlawful” (The Issue, [1]). In plain English, unfair treatment alone was not enough for this statutory complaint. The parents had to identify conduct covered by a provision of the Act.

The Tribunal stated that “not everything that a department does is to be regarded as the provision of services” (The Issue, [2]). That distinction mattered because the Act's definition included services provided by government departments, but the Tribunal did not treat all government activity as a service.

On the recipient question, the Tribunal said the “another” in s 76 must be the person to whom, or for whose benefit, goods or services are provided, or from whom they are withheld (Interpretation of s 76, [2]). Put simply, it viewed s 76 as concerned with discriminatory treatment in the supply of a service to the complainant, or the denial of a service otherwise supplied to comparable people. The Tribunal drew on Patrick, Marchenko and McDonald for this approach.

The application was direct: “the Department was in no way providing services to the complainants or refusing services to the complainants” (Interpretation of s 76, [1]). The Tribunal classified removal, non-return, contact and placement as decisions focused on the children's welfare, not the parents' receipt of services.

The child-protection context was captured by the statutory object, set out in the reasons as: “The primary object of this Act is to keep children safe from harm and in the administration of this Act that object must, in all cases, be the paramount consideration” (Children's Protection Act 1993, [2], quoting s 3(1)). This was the Tribunal's description of the framework in which it understood the Department to have acted. It did not itself determine the underlying child-protection merits.

The Tribunal also stated: “This Tribunal has no power or authority to review the decisions of the Youth Court” (Interpretation of s 76, [2]). In practical terms, SACAT's discrimination proceeding was not a route for reconsidering the guardianship orders.

What fact patterns trigger this precedent

The decision is most directly relevant where a disability discrimination complaint under s 76 concerns government action and the threshold question is whether the disputed conduct was a service provided to, or withheld from, the complainant. The closest factual match is a challenge to child-protection decisions about removal, return, contact or placement, where the complaint identifies those decisions themselves as the discriminatory conduct.

The judgment also signals the significance of how a complaint identifies the alleged service. The parents referred to a departmental duty to work with families and provide services, but the Tribunal said they did not identify a particular service denied as a result of discrimination, beyond the four decisions already described (The Issue, [8]; Interpretation of s 76, [2]). A future case involving a clearly identified family-support service could raise a different issue, but this judgment does not decide that hypothetical.

The precedent does not determine claims under other statutory provisions, different discrimination legislation, or claims based on separate conduct. Nor does it decide whether a particular child-protection decision was justified, whether disability influenced a decision, or whether a different complaint could proceed under another legal framework. Its stated holding is tied to the complaint as presented and the potential application of s 76.

The Youth Court point is relevant where a proceeding before an administrative tribunal seeks, in substance, to revisit an order made by that court. Here SACAT expressly disclaimed authority to review the Youth Court's decisions. The judgment does not define the full boundary between permissible scrutiny of departmental conduct and impermissible review of a court order.

How later courts have treated it

The decision identifies no later judicial treatment of ZVG & CET. The materials provided end with the judgment and do not contain subsequent cases applying, distinguishing, approving or reversing it. No claim about its later reception can therefore be made from this source.

The authorities the Tribunal itself cited were earlier decisions. Marchenko v South Australia Police [2019] SAET 124 was cited for the cautious approach to dismissal and for the interpretation of the recipient under s 76. State of New South Wales v Whiteoak [2014] NSWCATAP 99 was cited on the ordinary understanding of the provision of goods and services. Patrick v State of South Australia (No 2) [2009] SAEOT 1 and McDonald v The State of SA [2019] SAET 33 were cited in relation to the meaning of “another” in s 76 (footnotes [5], [7] and [9]).

The judgment therefore shows how Senior Member Stevens used those cases, but does not establish how later courts have treated ZVG & CET. Any account of subsequent authority would require sources beyond the judgment supplied here.

Still-open questions

The judgment leaves several matters unresolved. First, it does not provide an exhaustive definition of “services” under s 76. It gives a general description and distinguishes the four child-protection decisions from services to the parents, while acknowledging that the Act included government department services and that the Children's Protection Act referred to services for families.

Second, it does not decide what factual or legal connection would be sufficient to make a family-support activity a service provided to a parent for s 76 purposes. The parents raised a broader concern about the Department working with families, but, according to the Tribunal, did not identify an alleged service denied because of disability. The reasoning addresses that complaint, not every possible form of departmental support.

Third, the Tribunal did not decide the merits of the disability allegation or make findings about whether disability affected the Department's assessments. Its conclusion was that the alleged conduct did not fall within the relevant services provision. The case should not be treated as a finding about the truth of the parents' account or the quality of the Department's decisions.

Fourth, the scope of the statement that SACAT could not review Youth Court decisions is not developed beyond the circumstances before the Tribunal. The judgment says the guardianship decision was not reviewable by SACAT and that placement was consistent with the order, but does not specify what distinct departmental conduct, if any, could be examined without reviewing the Youth Court's decision.

Finally, the judgment does not analyse the Children and Young People (Safety) Act 2019, which replaced the statute governing the Department's 2017 actions, or address later amendments to the Equal Opportunity Act. Those questions require consideration of the applicable legislation and later authorities, not assumptions drawn from this decision alone.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.