JH v Director-General, Community Services Directorate

[2012] ACTSC 30

JH v DIRECTOR-GENERAL, COMMUNITY SERVICES DIRECTORATE [2012]
ACTSC 30 (29 February 2012)

STATUTES – Acts of Parliament – Interpretation – certain care and protection orders continue in force until application to extend, amend or revoke the order is heard and decided – relevant care and protection orders are those in force when application made that would end “before the application is heard” – reference to hearing of application not intended to distinguish between orders expiring before or during in-court events and those expiring before judgment given.

Children and Young People Act 1999 (ACT), ss 264(5) and (6), 266
Children and Young People Act 2008 (ACT), ss 470, 471
Children and Young People Bill 1999 (ACT), cl 60
Human Rights Act 2004 (ACT), s 30
Legislation Act 2001 (ACT), ss 126(2), 138, 139, 140, 141

International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319
Re Application for Bail by Islam (2004) 4 ACTLR 235

Explanatory Memorandum for the Children and Young People Bill 1999 (ACT), cl 262
Explanatory Statement for the Children and Young People Bill 2008 (ACT), cl 469

Macquarie Dictionary, Australian Legal Dictionary (1997)

No. SCA 44 of 2011

Judge:             Penfold J
Supreme Court of the ACT

Date:              29 February 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 44 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JH

Appellant

AND:THE CHIEF EXECUTIVE ACT COMMUNITY DIRECTORATE

Respondent

ORDER

Judge:  Penfold J
Date:  29 February 2012
Place:  Canberra

THE COURT FINDS THAT:

(a)The care and protection order in respect of DH made on 15 June 2005 was continued in force by s 470(3) of the Children and Young People Act 2008 (ACT) until the Magistrate handed down his decision on the applications relating to that order.

(b)The Magistrate’s order extending the care and protection order was within the power conferred on his Honour by s 471 of the Children and Young People Act 2008 (ACT) to “extend or amend a provision in a care and protection order”, in the sense that the care and protection order concerned remained in force and was therefore capable of being extended or amended.

THE COURT ORDERS THAT:

1.The parties are to be heard about the next steps to be taken in the appeal.

Introduction

1. JH is the mother of a child, DH, born on 30 October 2002.  A Care and Protection Order (the Order) was made on 15 June 2005 in respect of DH, expressed to operate for five years.  That order restricted JH’s rights in relation to DH in favour of an authority described in the Order as the Chief Executive Family Services.  JH has appealed against a decision of a Magistrate made on 30 March 2011 purporting to extend the operation of the Order, which had been due to expire on 14 June 2010.

1. The appeal was listed before me for urgent resolution of a preliminary point, the determination of which will, I am told, determine the next steps to be taken by JH in the appeal.

The application in the Magistrates Court

1. By application filed on 21 November 2007, JH applied to the Childrens [sic] Court (the Court) to vary or revoke the Order.  On 6 December 2007 the respondent, then known as the Chief Executive, Department of Disability, Housing and Community Services, filed a cross-application seeking to have the Order extended until DH turned 18.

1. The hearing of these applications was originally scheduled to begin on 13 May 2008. For various reasons (including, apparently, the illness or other unavailability of the Magistrate on two occasions), the matter was delayed or adjourned part-heard several times.  It seems that on 21 December 2009 the giving of oral evidence concluded, and the Magistrate adjourned the matter part-heard, after which written submissions were filed.  On 20 January 2010, the Magistrate adjourned the application to a date to be fixed and reserved his decision.  At that point the Order had nearly five months to run.

The Magistrate’s decision

1. When the Magistrate delivered his judgment on 30 March 2011, 14 months later and more than nine months after the Order was due to expire, he purported to extend the order “so that it provides”, among other things, that until DH is 18 years old, the respondent:

(a)be authorised to decide DH’s living arrangements;

(b)have the supervision of DH; and

(c)share with JH the daily care responsibility and long-term care responsibility for DH.

1. His Honour said at page 3 of his judgment that the Order, although it had on its face expired on 14 June 2010:

continues in force until the determination of the two applications under consideration (see s. 470(3) [of the Children and Young People Act 2008 (ACT)]).

Was there power to extend the Order?

1. The question to be determined on this preliminary appeal is whether the Magistrate was correct in treating the Order as having continued in force after the date on which it was due to expire and until he made his decision on JH’s application, such that it would be effective for him, under s 471 of the Children and Young People Act 2008 (ACT) (the 2008 CYP Act), simply to “extend” the Order until DH turned 18 and to amend some of the provisions of the Order.  The answer to that question is to be found in an interpretation of the relevant legislation.

Applicable legislation

1. Argument proceeded on the assumption that the applicable provision relating to the extension of orders was s 470 of the 2008 CYP Act, which came into force on 27 October 2008 (after the applications were filed but well before the Magistrate reserved his decision and before the date on which the Order would, apart from those applications, have expired).  The section was enacted in the following form, and has not since been amended:

470     Care and protection order—court to consider extension, amendment and revocation applications promptly

(1)The Childrens Court must give initial consideration to an application for extension, amendment or revocation of a care and protection order, or a provision in a care and protection order not later than 5 working days after the day the application is filed.

(2) The Childrens Court must give directions about the conduct of the proceeding (including the hearing of the application) at the time the application is initially considered.

(3) If the care and protection order is in force on the day the application is filed, but would end before the application is heard, the order continues in force until the application is heard and decided (whether or not the application is considered within the period required under this section).

1. However, given that both the applications concerned were filed before that section came into force, it is appropriate to note that the provision that would have applied to the applications when filed was the predecessor of s 470(3), namely s 266 of the Children and Young People Act 1999 (ACT) (the 1999 CYP Act):

266 Continuation of existing orders

If, but for this section, a final care and protection order in force on the day an application for a variation of the order under section 264 (1) is filed would expire on a day before the hearing of the application, that order continues in force until the application is heard and decided.

1. Subsections 264(5) and (6) of the 1999 CYP Act appear to be the predecessors respectively of s 470(1) and (2) of the 2008 CYP Act, but they are in somewhat different terms and contain nothing that requires them to be read as directly relevant to the operation of s 266. The appellant’s argument is that s 470(3) did not apply to the Order because of the relationship between the date of the hearing and the original expiry date of the Order, not because of the date when the Order or the application was made or filed. Accordingly, I simply note at this point an apparent legislative intention that there be a seamless application of the extension provision made first by s 266 of the 1999 CYP Act and effectively repeated by s 470(3) of the 2008 CYP Act. I shall proceed on the assumption that s 470(3) of the current Act is the relevant provision in determining the current status of the Order.

Matters in issue

Outline of arguments

1. Counsel for the appellant argues that s 470(3) in its terms operates to extend an order “pending hearing, not pending the delivery of a decision”. As such, counsel says, it “did not apply in the current case and that therefore the Order expired on 14 June 2010 and was not extended or capable of being extended”. Counsel for the respondent submits that s 470(3) did operate to continue the Order and that the Magistrate’s orders on 30 March 2011 were effective to extend it further.

1. The appellant says that the words of s 470(3), properly construed, have a meaning that does not extend to the care and protection order in question.

1. The appellant’s central proposition is, in effect, that the phrase used to describe orders to which s 470(3) applies, being orders that “would end before the application is heard”, must refer to orders that would end at the latest before the hearing of the application concludes and in any case before judgment is delivered. That is, counsel for the appellant says, s 470(3) is intended and apt only to continue an order in force in a case where the order would otherwise end before the application is “heard”, but not where the order ends after the hearing has finished but before judgment is given.

1. The argument of counsel for the respondent is, in effect, that the reference to the application being “heard” encompasses the processes of dealing with the application up to and including the giving of judgment, so that it cannot be said that an application has been “heard” until judgment is given.  In other words, any order subject to an application that would expire before the application is determined continues in force until it is determined.

Matters relied on by appellant

1. Various matters are put in support of the appellant’s claims about the proper construction of the provision.  First, counsel says that:

the rationale behind the scheme established by sub-section 470(3) is that a Magistrate hearing a matter where a final order is due to expire only requires the final order to be extended if it would expire before all of the evidence could be heard and all submissions could be made. There is no need for the final order to be extended in the circumstances that all of the evidence has been taken and submissions made, as the task of the magistrate is to deliver a judgment before the expiry of the final order.

...

The legislature would have an expectation that a judgment would be delivered by a magistrate in a matter where an extension of an order was sought before that order expired.  For this reason the extension of a final order only needs to be facilitated by the legislation where the final order would expire before the case could be heard, as distinct from the case being heard and decided.

1. That is, counsel says, his interpretation reflects a rational and coherent policy intention, such as to negate any need or justification to look beyond the most obvious meaning of the words of s 470. Counsel then offers arguments based on the words of s 470(3), the operation of the rest of s 470, the headings of s 470 and the purpose of s 470.

Conclusion

1. I have concluded that the appellant’s submissions must be rejected, and that s 470(3) can and should be interpreted to cover any care and protection orders that would otherwise expire before a relevant application is decided. I have reached that conclusion because there are, in my view, a number of grounds for adopting that interpretation and few or none in support of the appellant’s construction of the provision.

Interpretation of s 470(3)

Preliminary comments

1. There is no doubt that s 470(3) could have been more clearly drafted. If the provision had referred to the order ending “before the application is decided”, the argument made on behalf of the appellant would not be available, because it would be explicit that any order that would otherwise expire after an application is filed continues until the application is finalised by a decision.

1. However, the drafter’s failure to put the matter beyond doubt in such a way is not the end of the matter.  It is still necessary to work out what meaning is to be given to the provision, and in particular to the words “before the application is heard”.

1. There are various considerations in interpreting s 470(3). I note first that, in working out the meaning of an Act, the Legislation Act 2001 (ACT) requires the provisions of an Act to be read in the context of the Act as a whole (s 140); permits consideration of various extrinsic materials (s 141); and also requires that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation, whether or not the Act’s purpose is expressly stated (s 139). Section 138 defines “working out the meaning of an Act” as:

(a)       resolving an ambiguous or obscure provision of the Act; or

(b)       confirming or displacing the apparent meaning of the Act; or

(c)finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable; or

(d)       finding the meaning of the Act in any other case.

1. I note also that headings to provisions are available in interpreting provisions, because under s 126(2) of the Legislation Act a heading is part of the provision (except in the case of section or subsection headings dating back to before 1 January 2000).

Explanatory materials

1. Although a more orthodox approach to interpretation might be to consider the words of the legislation first and then to turn to any relevant explanatory materials, it is convenient in this case, having identified the basic question to be resolved, to mention the explanatory material first.

1. The Explanatory Statement for the Children and Young People Bill 2008 contained the following explanation of clause 469 of the Bill (which clause became, in identical terms, s 470 of the 2008 CYP Act):

Clause 469 — Care and protection order — Court to consider extension, amendment and revocation applications promptly

Sub-clause (1) requires the Court to give initial consideration to an application for extension, amendment or revocation of a provision in a care and protection order or a care and protection order not later than 5 working days after filing.
Sub-clause (2) requires the Court to set directions for the conduct of the proceeding at the time of initial consideration.

Sub-clause (3) provides that any order or direction in force on the day of filing continues in force until the application is heard and decided. This applies regardless of whether the application is considered within the prescribed period of 5 working days after filing.

1. Unfortunately, the discussion of sub-clause (3) in the Explanatory Statement (ES) is inconsistent in two respects with the words of the provision being explained (now s 470(3)). First, the ES explanation refers to directions as well as orders, although s 470(3) refers only to “the care and protection order” and not to any directions given under s 470(2) or at all. Secondly, the ES explanation refers to the legislative provision as applying to any order “in force on the day of filing [of an application]”. There is no mention of the s 470(3) description of the relevant orders as those that “would end before the application is heard”.

1. It is highly likely that the ES indicates an intention that any care and protection order continues in force until an application to change or revoke it is finalised; in particular it may be that the ES’s omission of the reference to orders that “would end before the application is heard” reflected an assumption that this phrase did not relevantly narrow the category of orders affected. It is also likely that the inconsistencies between the Bill and the ES reflect nothing more than carelessness in the drafting of the Bill, in the preparation of the ES and in any attempt to reconcile the ES and the Bill. However, despite my assumption about the intention of the ES, the obvious carelessness in the preparation of the ES means that I would not have been inclined to allow the ES explanation of s 470(3) to displace the words of the provision if the ES had been the only reason for interpreting s 470(3) otherwise than according to its plain words.

The words of s 470(3)

1. It is accordingly necessary to consider more carefully the words of s 470(3).

1. It is implicit in the use of the expression “heard and decided” at the end of s 470(3) that there is a distinction being drawn between the application being “heard” and the application being “decided”.

1. It would not normally be appropriate to assume that the word “heard”, used twice in the same sentence, is intended to have two different meanings in that sentence, so it would be legitimate to interpret “heard” as meaning “heard but not decided” each time it is used.  This is, in effect, the appellant’s argument.

1. There is a further question opened up by the appellant’s argument that “hearing” does not include the giving of the final decision, being whether “before the application is heard” means “before the application begins to be heard” or “before the application finishes being heard”.  That question is considered at [32] and [33] below.

1. An alternative interpretation to the one set out at [28] above, however, is that “heard”, each time it occurs, is intended to mean “heard to finality including by the pronouncement of a decision”, and that “and decided” at the end of s 470(3) is redundant, except perhaps to the extent that it emphasises that the continuation of the order operates until the very last step in the hearing process, not only until some earlier point in the hearing process such as the start of the hearing or the completion of courtroom activity.

1. In order to exclude that alternative interpretation, the appellant needs to establish that a “hearing” does not include the giving of a decision, and that therefore the point at which the application has been “heard” must fall at a time before a decision is given.

Meaning of “hearing” and “heard”

1. Counsel for the appellant has not articulated the point at which a hearing concludes, or indeed made any submissions about whether “before the application is heard” means “before the hearing concludes” or “before the hearing begins”.  In his submissions in reply, however, counsel says:

[Section 470(3)] allows for determination of a matter at the hearing even if this hearing is finalised after the expiry of the order.

1. It seems to be implicit in this submission that s 470(3) refers to the end rather than the beginning of the hearing, but also that the determination of the matter may be part of the hearing.  This concession is enough to exclude the argument that a hearing and a decision are necessarily separate concepts with no scope for overlap, but there are other grounds for such a conclusion.

1. Counsel for the respondent submitted that “it is a fundamental rule that a hearing continues until judgment is delivered”, but without citing either authority or principle in support of the “fundamental rule”.

1. The word “hearing” is commonly used to refer to activities such as the giving of evidence and the making of oral submissions that take place in the courtroom, but I consider that it is not possible to confine the word so narrowly. 

1. A hearing might be said to begin at the moment when the name of the matter is first called in court on the day set down for hearing, or perhaps only when counsel opens, or when evidence is first tendered.  Alternatively, a hearing may begin even before the matter is called on for the substantive hearing, for instance at a preliminary courtroom event such as a directions hearing at which submissions are made about how evidence is to be taken or whether particular evidence is admissible. 

1. As to when a hearing ends, this might be said to be when the court is adjourned, or when a new matter is called on, at the end of the courtroom events. However, given the scope for material to be put before judicial officers otherwise than in the courtroom (eg by affidavits and in written submissions, as apparently happened in this case) and for re-opening a case including to provide further evidence or amend the pleadings, the hearing may continue after the close of courtroom events, and may not be definitely finished until the instant before judgment is delivered. The position is further complicated by the scope for decisions to be made by judicial officers in the courtroom during proceedings, whether interim decisions about aspects of a “hearing”, such as decisions about the admissibility of evidence, or final decisions delivered without any formal break in the courtroom proceedings and with or without either ex tempore reasons or an undertaking to provide reasons at a later date. As noted, that possibility is conceded by the submission in reply made on behalf of the appellant and quoted at [32] above.

1. Dictionary definitions confirm the potential breadth of the concept of a hearing.  The Macquarie Dictionary, viewed online 4 January 2012, gives as one of the meanings of “hearing”:

4. Law the presentation of a matter before a tribunal.

1. Butterworths Australian Legal Dictionary (1997) contains the following definition of “hearing” at page 545:

A proceeding, conducted by a court, tribunal, or administrator with a view to resolving issues of fact or law, in which oral evidence may be taken and documentary and real evidence tendered. A hearing may be by way of oral or written submission. Legal representation may not be necessary, or even permitted. Where a decision maker would not be able to resolve inconsistencies in the evidence purely on written submissions, an oral hearing may be necessary to satisfy the requirement of procedural fairness:  ... Hearing is a generic term referring to any proceeding where argument is heard to render a decision.  A trial is a hearing, although hearings may be conducted with less formality than a trial. (emphasis added)

1. The same dictionary at page 1191 defines a “trial” as:

A fact finding process, by which a court resolves disputed issues of fact presented by the parties and applies appropriate legal rules, culminating in a judgment. (emphasis added)

1. According to these definitions, the giving of judgment is or may be part of a hearing.  None of them suggests that a hearing necessarily terminates at a particular point before, or immediately before, a judgment is given.

1. There is nothing before me that would require me to conclude that a clear distinction must or even could be drawn between the pronouncement of a final decision in a matter and everything that happens before the pronouncement of that final decision, such that:

(a)only events before that pronouncement can be described as the hearing; and

(b)a reference in legislation to a hearing, or to a matter being heard, cannot properly be interpreted as including the pronouncement of judgment following events such as the giving of evidence and the making of submissions.

Comparison with predecessor provision

1. As noted at [33] above, counsel for the appellant seems to have conceded that a relevant application under s 470(3) is one relating to an order that would end before the hearing of the relevant application is finished, not only an order that would end before the hearing is started. This approach seems to be confirmed by a comparison of s 470(3) with its predecessor, s 266 of the 1999 CYP Act; that comparison also supports the interpretation of s 470(3) as referring to any order that would expire before a relevant application is determined. 

1. Section 266 refers to an event happening “on a day before the hearing of the application”, whereas s 470(3) refers to the event happening “before the application is heard” (emphasis added). The words of s 266 might have referred to any day before the relevant hearing finished, but they were more apt to refer to any day before the beginning of the hearing (especially having regard also to the fixing of the time as a day before the relevant event, so as to exclude even an order expiring on the day of the hearing). The use of different words in s 470(3), especially the past tense (the application is “heard”), seems to emphasise the completion of the hearing of the application, rather than its beginning.

1. The Explanatory Memorandum (EM) for the Children and Young People Bill 1999 (which became the 1999 CYP Act) referred to clause 262 (which became s 266) as follows:

If the variation application under clause 260 is not determined before the subject order would otherwise have expired, the order continues in force until the matter is determined.

1. Clause 260 of the Bill permitted the making of applications to vary or revoke a care and protection order; it did not apply only to applications relating to care and protection orders that would expire before the applications were heard. That means that the EM explanation of what became s 266 was even further from being an accurate description of the words of s 266 than the later ES explanation of what became s 470(3), but it is even clearer than the ES explanation in expressing the intention that all care and protection orders, not just a subset of them, continue in force until applications to vary or revoke them are finalised. Thus, s 470(3) might have been expressed differently from s 266 with the aim of making it even clearer that all care and protection orders continued in force while applications were pending, but it does not seem to have been revised with a view to narrowing, or preserving earlier limits of, the class of care and protection orders that were to continue in force until relevant applications were determined.

Construction of s 470 as a whole

1. Counsel for the appellant placed considerable reliance on an argument to the effect that s 470 must be construed as a whole; that as so construed, the clear purpose of the section is to ensure that the Court deals promptly with applications to extend, amend or revoke care and protection orders; and that the location of the extension provision in s 470 indicates an intention to narrow rather than broaden the operation of s 470(3).

1. There is a flaw in this argument to the extent that it relies on the premise that s 470 must be construed only as a whole, because the history of s 470(3) in my view prevents s 470(3) being construed solely by reference to its current context. Section 470(3) is clearly the successor of s 266 of the 1999 CYP Act although it differs from that section in several respects. Section 266 of the 1999 CYP Act stood alone in that Act, with the identified purpose of “Continuation of existing orders”, rather than as part of a section also containing equivalents of ss 470(1) and (2).

1. As already noted at [10] above, the predecessors of ss 470(1) and (2) seem to have been ss 264(5) and (6), in a section headed “Application for variation and revocation of orders”. Counsel’s argument requires that both the purpose and meaning of s 266 have been significantly changed, not by the revision of the provision when it was re-enacted as s 470(3), but simply by its inclusion, along with other, previously separate, re-enacted provisions, in a section with a new heading.

1. A provision that acquires its substantive effect purely from the content of other provisions can easily acquire a different substantive effect from changes to other parts of the relevant legislation (for instance, the import of a subsection saying “This section is subject to section xx” is partly determined by the content of section xx, so the subsection may acquire a different “meaning” purely through changes to section xx).  The position is not nearly so clear for a provision having its own substantive effect.

1. In particular I am not persuaded that the purpose of s 266 of the 1999 CYP Act has been altered, as implied by counsel for the appellant, by the enactment of s 266’s successor s 407(3) in a section also containing ss 470(1) and (2), even with a heading referring expressly to the impact of those latter provisions.

1. The purpose of s 266 of the 1999 CYP Act was clearly, in general terms, to continue certain orders in force until relevant applications were decided (emphasised in the heading “Continuation of existing orders”). The qualification added to s 470(3) that was not needed in s 266 (“whether or not the application is considered within the period required under this section”), as well as the ES re-telling of that story (namely that s 470(3) “applies regardless of whether the application is considered within the prescribed period of 5 working days after filing”) are inconsistent with the proposition that s 470(3) is to be read down by reference to the imposition of time limits by ss 470(1) and (2).

1. It is possible, as the appellant contends, that s 470(3), simply as a result of its co-location with ss 470(1) and (2), reflects a new purpose of ensuring that the Court acts expeditiously, and I do not reject that possibility out of hand. I do, however, reject any implicit submission that any such new purpose that attached to s 470(3) when it replaced s 266 of the 1999 CYP Act also excluded the original purpose of s 266.

Purpose of s 470(3)

1. The second flaw in counsel’s argument about the need to interpret s 470 as a whole (at [47] above) is more significant. Counsel’s argument is that when s 470 is construed as a whole, its clear purpose is to ensure that the Court deals promptly with applications to extend, amend or revoke care and protection orders. The problems with this argument are, first, that counsel’s identification of the purpose of s 470 is not in my view entirely correct, and secondly, that his proposed interpretation of s 470(3) would make a nonsense of the provision if it did have the purpose he has identified.

1. I am satisfied that the immediate purpose of ss 470(1) and (2) is to encourage the Court to deal promptly with applications in relation to the operation of existing care and protection orders. That purpose is, as counsel pointed out, clear in the heading to s 470, which is “Care and protection order—court to consider extension, amendment and revocation applications promptly”. However, the immediate purpose of ss 470(1) and (2) is not the end of the matter in working out the meaning of s 470(3). It is necessary to look at both the purpose of s 470(3) itself and the purpose of s 470 as a whole.

1. In Re Application for Bail byIslam (2010) 4 ACTLR 235 (Islam), I commented at [33] and [34] on the difficulties of interpreting parts of the Legislation Act that contain multiple references to Acts, in the context of other provisions of the Legislation Act to the effect that a reference to an Act may be a reference to any provision of an Act; I concluded at [52] that in interpreting, say, a section of an Act under s 30 of the Human Rights Act 2004 (ACT), a court should look at the purpose of the section:

against the general background of any higher level purpose (whether that is found by reference to the Act, a Chapter, Part or Division of an Act or indeed by reference to a group of Acts by which a policy or scheme is implemented). 

That conclusion was reached in relation to s 30 of the Human Rights Act, but I can see no basis for reaching a different conclusion about the approach to interpreting a provision under s 139 of the Legislation Act (described at [20] above) in the absence of a Human Rights Act question.  I note in passing that the arguments of counsel for the appellant may reflect an undue reliance on the expression “legislative unit”, which I used in Islam merely as a convenient catch-all expression to avoid the need to refer individually to all the different units of which an Act or other legislative instrument may be comprised, all of which are by ss 7 and 16 of the Legislation Act individually encompassed in any reference to an “Act” (and any of which may have an apparent specific purpose as well as contributing to the achievement of the higher level purpose, or one or more of the higher level purposes, intended to be promoted by the legislation or any part of it).   

1. Applying the approach proposed in Islam to determining the purpose of s 470, it is necessary to start with Part 1.2 of the 2008 CYP Act, which is headed “Objects, principles and considerations” and comprises ss 7 to 10, which set out material indicating the purposes of the Act and providing guiding principles for the exercise of powers under the Act. Section 7 deals with the “main objects” of the Act, as follows:

The objects of this Act include—

(a)providing for, and promoting, the wellbeing, care and protection of children and young people in a way that—

(i)    recognises their right to grow in a safe and stable environment; and

(ii)   takes into account the responsibilities of parents, families, the community and the whole of government for them; and

(b)ensuring that children and young people are provided with a safe and nurturing environment by organisations and people who, directly or indirectly, provide for their wellbeing, care and protection; and

(c)preventing abuse and neglect of children and young people by providing whole of government assistance to children and young people, their parents and families, the community, and others who have responsibility for them; and

(d)ensuring that Aboriginal and Torres Strait Islander people are included and participate in—

(i)    providing for, and promoting, the wellbeing, care and protection of Aboriginal and Torres Strait Islander children and young people; and

(ii)   preventing the abuse and neglect of Aboriginal and Torres Strait Islander children and young people; and

(iii) rehabilitating and reintegrating Aboriginal and Torres Strait Islander young offenders; and

(e)ensuring that services provided by, or for, government for the wellbeing, care and protection of children and young people—

(i) are centred on the needs of children and young people; and

(ii)   are informed by processes which engage children and young people, wherever possible, and take their views and wishes into account; and

(iii) foster and promote the health, education, developmental needs, spirituality, self-respect, self-reliance and dignity of children and young people; and

(iv) respect the individual race, ethnicity, religion, disability, sexuality and culture of children and young people; and

(f)     ensuring that young offenders—

(i)    receive positive support and opportunities to become rehabilitated and reintegrated community members; and

(ii)   share responsibility for rehabilitation and reintegration with their parents and families, the community and the government in partnership; and

(g)imposing standards that must be complied with for the delivery of services to children and young people; and

(h)     ensuring the protection of children and young people in employment.

1. It is apparent that providing for and promoting the wellbeing, care and protection of children and young people (s 7(a)) are key objects of the 2008 CYP Act, and that most of the other paragraphs of s 7 identify more specific ways of achieving those objects. To the extent that s 7 could be read as articulating objects in relation to the operation of the Court (eg in s 7(e) which deals with services provided for the wellbeing, care and protection of children and young people, and s 7(g) which deals with standards for the delivery of services to children and young people), those objects also clearly reflect the aim of protecting children and young people. Section 9 of the 2008 CYP Act is more specific about delay; s 9(1)(d) says:

delay in decision-making processes under the Act should be avoided, because delay is likely to prejudice the child’s or young person’s wellbeing. 

1. This provision, while certainly exhorting prompt decision-making by the Court, makes the reason for that exhortation explicit; delay is to be avoided because it “is likely to prejudice the child’s or young person’s wellbeing”.

Purpose of protecting children and young people

1. Accordingly, I have no doubt that the purpose of attempts such as those in s 470 and elsewhere in the 2008 CYP Act (eg s 430) to encourage the Court to act promptly is, relevantly, to provide the best possible protection to the children and young people who are, or may be, the subject of care and protection orders; it is not to satisfy some separate policy to do with listing practices in the Court, or to increase the workload of Magistrates sitting in the Court, or to encourage them to work even harder than they already work, except in each case to the extent that such an outcome might be a pre-requisite to the protection of children. 

1. It is hard to see how the protection of a child would be enhanced by a provision that operated to deprive the child of the benefit of a care and protection order simply because a Magistrate did not, or was not able to, make a decision about the child’s circumstances before the arbitrary deadline of the expiry of the care and protection order. 

1. In assuming that the existence of care and protection order is beneficial to a child, I recognise that there are cases in which a care and protection order is not, or is no longer, necessary or even appropriate to protect the child concerned; however in general the risk of children being randomly deprived of the effect of orders that have been deliberately crafted with the child’s best interests in mind, because of unrelated issues concerning such things as the workload of the Court or the health of Magistrates, seems to me to outweigh the risk of children remaining, because of such an issue, temporarily subject to orders that have become unnecessary.

1. Finally in this context I note, having regard to submissions made on behalf of the appellant, that the overarching purpose of the 2008 CYP Act is much clearer than the overarching purpose of the Bail Act 1992 that was under consideration in Islam.  The Bail Act is a good example of an Act whose overarching purpose is to balance a series of competing interests, in particular in that case the need to ensure that accused persons turn up for their trials and the need to protect the freedom of persons who, although accused, are presumed to be innocent.  The 2008 CYP Act and its predecessor, in contrast, are good examples of Acts with a single overarching purpose (the protection of children and young people), albeit a single purpose whose implementation raises complex issues about how that protection is best achieved both as a matter of principle and in individual cases, as well as creating scope for interfering inappropriately with the interests of parents and other family members. 

Purpose of pressuring Magistrates or the Court

1. It is true that both the courtroom processes and the giving of judgment in this matter seem to have been unusually drawn out. It is inappropriate in my view to criticise a judicial officer for delay when there is no evidence available about the possible reasons for what might look like an inappropriate delay, and I do not do so in this case. However, even if it could be established that in this or other cases there had been unjustified delay by a Magistrate, this of itself would not require a particular interpretation of s 470(3) that does not seem to be borne out by anything else in the legislation or its broader context.

1. If, however, as is implicit in submissions made by counsel for the appellant, the purpose of s 470(3) is in fact to put pressure on Magistrates even at the cost of reducing the protection provided to children, the provision would seem to be ineffective, because the real consequences of the provision would still be felt only by the children concerned, not by the Magistrates. Any unjustified delay by a Magistrate could, as already noted, deprive a child of important protections – but it would not deprive the Magistrate of anything or disadvantage him or her in any way. Furthermore, even if s 470(3) operated as argued by counsel in the context of delay by a Magistrate (that is, to allow the order to expire as a result of the Magistrate’s delay), it would not operate in the same way in relation to, for instance, a failure to list a matter for hearing before the expiry date, even if that failure to list involved inappropriate delay somewhere in the Court (including possibly by a Magistrate). That is, the alleged attempt to ensure that the Court deals with the relevant matters promptly would apply only to the preparation of reserved judgments, not to delay in any other step in the Court processes.

1. As well, the provision as construed by counsel for the appellant would risk depriving a child of protection in a case in which there was no delay by the Magistrate or the Court but an external interference with the Magistrate’s capacity to reach a decision, or simply an unmanageable timeframe for making such a decision. For instance, under the appellant’s construction, an order would not be continued in force by s 470(3) if the Magistrate dealt with a last-minute application promptly and reserved his or her decision just before the expiry of the order, but was prevented from providing a quick decision by a sudden illness or accident, or even (if “heard” is interpreted to refer to the end of courtroom activity) if the courtroom activities concluded just before the expiry of the order leaving the Magistrate inadequate time before that expiry even to read extensive documentary evidence that had been tendered but not read in court.

1. In summary, the provision as interpreted by counsel for the appellant would provide neither carrot nor stick for any Magistrate who really does need to be hurried up, nor for anyone else involved in listing decisions within the Court, but it would impose on children and young people subject to relevant orders the risk of a arbitrary expiry of a care and protection order, caused by a delay (for whatever cause) in finalising a decision, just when stability may be particularly important to the child or young person because the operation of the order is in dispute between different people with roles in his or her care.

Need to avoid adopting “strained” meaning

1. Finally, counsel for the appellant relies on my warning in Islam at [62], in turn given in reliance on the comments of French CJ in International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 at [42], against adopting strained interpretations of legislative provisions.

1. The need to respect the legislature’s choice (one of the reasons given by French CJ for his comments) does not seem to be in issue here, given that the 1999 Explanatory Memorandum and the 2008 Explanatory Statement both suggest that the interpretation I have preferred is exactly what the legislature has intended for many years now. 

1. Nor does French CJ’s other reason seem to be in issue, namely the fact that:

those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. (citations omitted)

1. It does not seem, having regard to the Magistrate’s approach, that his Honour considered s 470(3) to operate otherwise than as I have found. In written submissions, counsel for the appellant pointed out that before the Magistrate there were no submissions about “the meaning, effect or relevance of sub-section 470(3)”. This suggests that, despite the matter dragging on for nearly 20 months from the first scheduled hearing date, no-one was concerned to point out to the Magistrate that once the “hearing” finished, the care and protection order would expire according to its terms and that therefore a decision before 14 June 2010 was vital. It also suggests that no-one saw the sole or even primary purpose of s 470(3) as the hurrying up of Magistrates. That is, there is no indication that in this case at least, anyone in any of the groups mentioned by French CJ took a different view of s 470(3) when it was applied by the Magistrate. This in turn suggests that the interpretation I am adopting is not “a counterintuitive judicial gloss” (to use French CJ’s words) but the interpretation that is in fact commonly assumed among users of the 2008 CYP Act.

1. Of course, the fact that a provision is commonly assumed to have a particular meaning does not prove that the assumed meaning is the correct one, and nor does widespread acceptance of itself provide a basis for adopting a particular interpretation. However, in this case, having satisfied myself that the commonly assumed interpretation of s 470(3) is an available and otherwise preferable interpretation of the provision, I cannot see that adopting that interpretation could be said to involve adopting a “strained” meaning or imposing a “counterintuitive judicial gloss” on the provision.

Interpretation by reference to purpose

1. I return to the provisions of the Legislation Act mentioned at [20] above, specifically s 139 which requires me to prefer “the interpretation that would best achieve the purpose of the Act” and s 138 which defines the concept of “working out the meaning of an Act”.

1. I have already concluded:

(a)at [30] above, that s 470(3) could be interpreted on the premise that, even if “hearing” includes the giving of a decision, the reference to an application having been “heard and decided” involves not necessarily redundancy but an emphasis on the need for a decision;

(b)at [41] and [42] above, that in ordinary usage, the hearing of a matter may include the giving of a decision, including a final decision;

(c)at [44] above, that the reference in s 470(3) to a matter being “heard” is a reference to the completion of the “hearing” (whatever that means);

(d)at [60] above, that the overarching purpose of the 2008 CYP Act is the protection of children and young people; and

(e)at [60] to [67] above:

(i)that to the extent that the immediate purpose of part or all of s 470 is to encourage the Court to act promptly, that purpose is intended to support the overarching purpose of protecting children and young people, rather than to support a separate purpose of pressuring Magistrates or otherwise influencing the operations of the Court; and

(ii)that interpreting s 470(3) as continuing an order that is under review only where the order would expire before any hearing (not including a decision) was finished, but not where the order would expire after that point but before a decision is given, would arbitrarily deprive children and young people of the protection provided by a care and protection order but without achieving any other identifiable purpose.

1. In those circumstances I consider that s 139 of the Legislation Act requires me to interpret s 470(3) so that “before the application is heard” means “before the application is finalised by a decision” rather than “before the application is heard but not in the interim after it is heard and before it is decided”. As well, even if the specific words of s 470(3), for the reasons discussed at [27] and [28] above, did require an interpretation referring to orders expiring “before the application is heard but not in the interim after it is heard and before it is decided”, my view of the operation of s 470(3) if interpreted in that way (at [67] above) would permit me to take account of all the other considerations I have mentioned and, in reliance on s 138 of the Legislation Act, to find another meaning for the provision on the basis that “its apparent meaning leads to a result that is manifestly absurd or is unreasonable” (s 138(c) of the Legislation Act).

Conclusions

1. For the reasons set out above, I am satisfied that despite the inadequacies in the drafting of s 470(3) (and in the relevant Explanatory Statement), the respondent’s argument must be accepted, and accordingly I make the following findings:

(a)The care and protection order in respect of DH made on 15 June 2005 was continued in force by s 470(3) of the Children and Young People Act 2008 (ACT) until the Magistrate handed down his decision on the applications relating to that order.

(b)The Magistrate’s order extending the care and protection order was within the power conferred on his Honour by s 471 of the Children and Young People Act 2008 (ACT) to “extend or amend a provision in a care and protection order”, in the sense that the care and protection order concerned remained in force and was therefore capable of being extended or amended.

1. These findings do not of course address the question whether his Honour’s orders were a proper exercise of the discretion conferred by s 471.

Order

1. I shall hear the parties about the next steps to be taken in this appeal.

   I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:    

   Date:           29 February 2012

Counsel for the appellant:  Mr S Gill
Solicitor for the appellant:  Barker & Barker
Counsel for the respondent:  Ms A Tonkin
Solicitor for the respondent:  ACT Government Solicitor
Date of hearing:  16 December 2011
Date of judgment:  29 February 2012