L v State of South Australia; H-P v State of South Australia
[2017] SASCFC 133
•12 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
Question of Law Reserved
L & ANOR v STATE OF SOUTH AUSTRALIA; H-P v STATE OF SOUTH AUSTRALIA
[2017] SASCFC 133
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Doyle)
12 October 2017
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - GENERALLY
Question of law reserved and case stated arising out of actions for judicial review.
The Care Concerns Investigations Unit (CCIU) of the South Australian Department for Education and Child Development (the Department) finalised reports which found that the plaintiffs abused and inadequately cared for foster children in their care. Those reports were endorsed by the Chief Executive of the Department. The endorsed reports were circulated to certain government agencies and were able to be accessed by other departments.
The questions of law stated for the consideration of the Full Court are:
1. Are the CCIU reports and their endorsement by the Chief Executive amenable to declaratory relief?
2. Are the CCIU reports and their endorsement amenable to relief in the nature of certiorari?
3. Were the plaintiffs’ reputational interests adversely affected by publication or the prospect of publication such that the plaintiffs have standing to seek the relief claimed?
4. Are the placements of foster children amenable to declaratory relief on the grounds that they were beyond power or unlawful?
Held per Kourakis CJ (Parker and Doyle JJ agreeing):
1. Neither the CCIU reports nor the Minister’s endorsement of the reports have, of themselves, any legal consequences.
2. The obligation to accord procedural fairness attaches to the instrument delegating the relevant power to the Minister.
3. In this case there were no delegations of investigative powers which can be read down in accordance with the principle of legality.
4. While some acts and decisions of public servants not made under a statute or in support of the exercise of the prerogative power are amenable to judicial review, the making of the CCIU reports and their endorsements are not amendable to judicial review.
5. If there was a right to afford procedural fairness the plaintiffs had no relevant interests that required protection.
6. The only interest requiring protection was the interest of the children in a safe and secure home however in certain circumstances that interest may abrogate the obligation to afford procedural fairness. Nonetheless, the obligation to afford procedural fairness will not invalidate the decision to remove a child from one carer and place them with another.
7. The departmental material provided to the plaintiffs did not give rise to a legitimate expectation that they would be afforded procedural fairness.
8. The questions should be answered as follows:
a. Question 1 – No;
b. Question 2 – No;
c. Question 3 – No;
d. Question 4 – Placements of children are amendable to declaratory relief for compliance or non-compliance with the provisions of the Children’s Protection Act 1993 (SA) but not as to validity.
Children’s Protection Act 1993 (SA) s 4, s 5, s 8, s 14, s 16, s 19, s 38, s 47, s 51; Children’s Protection Regulations 2010 (SA) reg 6, reg 7, referred to.
The State of Victoria v the Master Builders’ Association of Victoria [1995] 2 VR 121, distinguished.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Annett v McCann (1990) 170 CLR 596; Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231; CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 245 FLR 86; Clough v Leahy (1904) 2 CLR 139; Council for Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374; Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALR 901; Minister for Immigration and Border Protection v WZARH (2014) 245 CLR 326; NEAT Domestic Trading v AWB Ltd (2003) 216 CLR 277; R v Criminal Injuries Compensation Board Ex Parte Lain [1967] 2 QB 864; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2004) 214 CLR 1; The Queen v Toohey; Ex Parte Northern Land Council (1980) 151 CLR 170, discussed.
Attorney-General v De Keyser’s Royal Hotel Limited [1920] AC 508; Burmah Oil Co Ltd v Lord Advocate [1965] AC 75; Cornwall & Ors v Rowan (2004) 90 SASR 269; Coutts v Commonwealth (1985) 157 CLR 91; R v Panel on Take-overs and Mergers; Ex parte Datafin plc [1987] QB 815, considered.
Question of Law Reserved
L & ANOR v STATE OF SOUTH AUSTRALIA; H-P v STATE OF SOUTH AUSTRALIA
[2017] SASCFC 133Full Court: Kourakis CJ, Parker and Doyle JJ
KOURAKIS CJ: This is a question of law reserved and case stated arising out of actions for judicial review brought by the plaintiff Mrs H-P in one action and the plaintiffs Mr L and Mrs L in another. The plaintiffs seek judicial review of:
·the findings of the Care Concern Investigations Unit (CCIU) of the South Australian Department for Education and Child Development (the Department) made with respect to children in their foster care;
·the endorsement of those findings by the Chief Executive of the Department (the Chief Executive); and
·the decision to remove the children from their care and place them with other carers.
The children were removed from the care of Mr and Mrs L on 31 October 2014. The remedies sought by Mr and Mrs L include a declaration that the findings of the CCIU and the Chief Executive’s endorsement of those findings were unlawful and beyond power and orders in the nature of certiorari quashing those findings. They also seek declaratory relief with respect to the removal of the children.
On 3 February 2015 the CCIU finalised a report in which it found that Mr and Mrs L had committed emotional abuse of their foster children and that there was a deficit in the quality of care they provided. On 10 February 2015 the Chief Executive of the Department endorsed the CCIU findings. Mr and Mrs L were advised of those outcomes three days later.
On 14 October 2015 the CCIU finalised a report in which it found that allegations of emotional and physical abuse and inadequate care made against Mrs H-P and her husband had been substantiated. The Chief Executive endorsed the report the following day. Mr and Mrs H-P were informed of the outcome of the CCIU investigation on 22 October 2015. The orders sought by Mrs H-P include orders quashing the findings of the CCIU and the endorsement of the Chief Executive and in the alternative declarations that the decisions were wrong in law.
The following questions of law have been stated for the consideration of this Full Court:
(1)Are the CCIU reports and their endorsement by the Chief Executive amenable to declaratory relief for:
(a)unreasonableness?
(b)failure to take into account a relevant consideration?
(c)irrationality?
(d)error of law?
(e)failure to afford procedural fairness?
(2)Are the CCIU reports and their endorsement amenable to relief in the nature of certiorari.
(3)Were the plaintiffs’ reputational interests adversely affected by publication or the prospect of publication of the CCIU report such that the plaintiffs have standing to seek the relief claimed.
(4)Are the placements of the foster children of Mr and Mrs L amenable to declaratory relief on the grounds that they were beyond power or unlawful on the grounds of:
(a)unreasonableness?
(b)failure to afford procedural fairness?
(c)failure to comply with s 5(1) of the Children’s Protection Act 1993 (SA) (the CPA).
I would answer the first and second questions in the negative because neither the CCIU reports nor their endorsements were made in the exercise of any statutory, or prerogative, power or function and did not affect any legal right, power, privilege or interest of the plaintiffs. They were the product of the exercise of the personal faculties of public servants albeit performed in the course of their employment as officers of the Department.
I would answer the third question in the negative because the common law’s protection of reputational interests does not extend to communications about a person’s conduct or character between persons who have a legitimate interest in evaluating it for the purpose of protecting or advancing their common private interests or in discharge of a shared statutory or other public duty. Just as in the former case the common law of defamation cloaks such communications with qualified privilege, the common law does not impose an obligation on public officers to accord procedural fairness to persons who are the subject of their exclusively internal communications.
I would answer the fourth question, insofar as it relates to declaratory relief that the placement decisions are beyond power, in the negative. I would do so because even though there is a duty to afford procedural fairness and to comply with prescribed statutory procedures before removing and making alternative placements of children in the guardianship of the Minister, the decision to remove the children is not vitiated by a failure to do so. The obligation to comply is imposed in the interests of the children affected and they, and other properly interested persons, may seek appropriate declaratory relief in the event of apprehended or actual non-compliance. However the CPA maintains the validity of the Minister’s placement decisions, allowing instead for a review by the Youth Court of the guardianship order in which the interest of the child is paramount. Similarly by virtue of the CPA decisions to remove children are similarly immunised from challenges on the grounds of unreasonableness. Insofar as the question is directed to the lawfulness of a decision to place a child with a carer, in the sense of compliance or non-compliance with express or implied procedures, I would, as I have foreshadowed, answer in the affirmative. In an appropriate case, an apprehended failure to comply with the required procedures is amenable to a declaration or other prophylactic relief. In exceptional cases there may be some utility even in a retrospective declaration of a failure to do so. A prospective declaration that there is a duty to make a rational or reasonable decision is of no practical utility, but a retrospective order that a decision is irrational or unreasonable may have some utility in exceptional cases. It follows that decisions to remove children from one carer and place them with another are amenable to declaratory relief for unlawfulness, but not for, invalidity, on the grounds of a failure to afford procedural fairness or to comply with s 5(1) of the CPA and for unreasonableness.
Agreed facts
The questions of law reserved proceed on the agreed facts set out hereunder.
The Department is an administrative unit established pursuant to the Public Sector Act 2009 (SA) for which the Minister for Education and Children Development (the Minister) is responsible. Among other things, the Department provides child protection services. The CCIU is a business unit of the Department staffed by public servants who are subject to the direction of the Department’s Chief Executive. The CCIU’s function is limited to the investigation of allegations of the abuse or neglect of children who are, or have been, under the guardianship or custody of the Minister.
Notifications of child abuse received by the Department relating to children under the guardianship or custody of the Minister are forwarded to the CCIU. That notification is known as a ‘Care Concern’.
Members of the CCIU are provided with a document entitled ‘Delegated Authority to Conduct Investigations’ which confirms that officer’s authority, as a member of CCIU, to ‘administer, plan, manage and conduct investigations for and on behalf of the Department’. The authority explains that CCIU investigations may include interviews and the examination of documents and also that the information so obtained ‘may be shared with relevant authorities’. The language of the authorisation is not, in itself, an indication of a conferral of a statutory authority. The departments of the public service are organised hierarchically. The conferral of an authority in the terms of that document is equally consistent with it being a direction binding on all officers of the Department for the purposes of internal investigations conducted by the CCIU.
In undertaking its investigations, including the investigations in relation to the plaintiffs, the CCIU does not, and did not, exercise any statutory powers for the purpose of obtaining information between 24 October 2014 and 22 October 2015. The CCIU finalises its investigation with a report which contains factual finding and records a conclusion, referred to as an outcome, that the allegation is either ‘substantiated’ or ‘not substantiated’.
The CCIU report is forwarded to the Chief Executive who determines whether or not to endorse its outcome. The endorsed report and outcome are sent to other business units of the Department known as Families SA, Adverse Events, Regional Offices and the Incident Management Directorate (IMD). The report is stored electronically and can be accessed by those business units and also by the Care Registration Unit (CRU) which is another business unit of the Department. It can also be accessed by the Screening Unit which is a business unit of the Department for Communities and Social Inclusion (DCSI).
Families SA is maintained by the Chief Executive for the purpose of improving and integrating child safety by protecting vulnerable children. The Deputy Chief Executive of the ‘Department, Child Safety’ is responsible to the Chief Executive for oversight of Families SA. CCIU reports endorsed by the Chief Executive are forwarded to the Deputy Chief Executive to determine an appropriate response. The Deputy Chief Executive is authorised to distribute the CCIU report to the extent that it is necessary for that purpose.
The Adverse Events business unit is maintained for the purpose of monitoring whether and to what extent action plans established by the Deputy Chief Executive are implemented. The CCIU sends copies of endorsed outcomes to Adverse Events for the purpose of monitoring whether any action plans established by the Deputy Chief Executive are implemented.
The Regional Offices are business units within Families SA and are staffed by public servants. Where allegations are made that a child in the general community (not under the guardianship or custody of the Minister) is in need of care, staff in Regional Offices may investigate such allegations under authority delegated by the Chief Executive under s 19 of the CPA. Each Regional Office has oversight of the children within that particular region or area. Endorsed outcomes of the CCIU are sent to the manager of the relevant Regional Office as are any plans and responses. All managers of all regional departments can access the CCIU reports. The managers may in turn allow access to their staff as they consider necessary.
The CRU is staffed by public servants for the purpose of the registration of foster carers. The endorsed CCIU reports are not forwarded or communicated to the CRU but the report is available to them electronically. The report is not further distributed by them.
Approved foster carers may work in non-governmental foster care agencies which manage the provision of out of home care to children under the guardianship or custody of the Minister. Foster care agencies recruit, assess and train foster carers. If a foster carer is approved, the agency matches the carer with children who are in need of care. Foster care agencies are contractually engaged by the Minister.
The Teachers’ Registration Board (TRB) is an independent statutory authority established under the Teachers Registration and Standards Act 2004 (SA) which regulates the South Australian teaching profession. It is staffed by public sector employees. The TRB may request CCIU reports from the Department. The Chief Executive has authorised release of CCIU reports to the TRB if they are relevant to its functions.
The Guardian for Children and Young Persons (the Guardian) is a statutory office established by s 52A of the CPA. The Chief Executive has approved the provision of endorsed CCIU reports where requested by the Guardian. Generally it is only reports concerning sexual abuse that are sought by the Guardian.
On occasion, the outcomes of CCIU investigations may be communicated to other staff within the Department, the Minister, the biological parents of children who are in care and the children themselves (if they have turned 18). CCIU reports must be treated confidentially by all persons who receive them or have access to them.
The CCIU findings with respect to Mr L and Mrs L
In September 2011 Mr and Mrs L were approved as foster care parents. They were paid $798.50 a fortnight whilst children were in their care. AC Care is a licensed foster care agency providing services to the Minister. In May 2011 two Aboriginal children, C and M, who were under the guardianship of the Minister, were placed with Mr and Mrs L. In 2013 Mr and Mrs L were employed at the primary school (the school) in which C and M were students.
On 29 October 2014 a meeting of officers of Families SA, which included the supervisor and senior social worker of the responsible Regional Office, determined that C and M were at risk in the care of Mr and Mrs L and resolved to remove the children from their care. Meetings of that kind are regulated by Families SA Divisional Circular No 131 (Circular 131) which prescribes the consultation required for the removal of children from their foster carers. Circular 131 notes that:
The carer family may also be severely impacted. Such decisions must be made with the utmost consideration of the child’s safety, life-long security and future emotional wellbeing, as well as the natural justice rights of carers and their emotional wellbeing.
Circular 131 sets out procedures to be followed prior to the emergency removal of a child as well as the permanent preventative removal. The emergency removal procedure provides that in the case of Aboriginal or Torres Strait Islander children, cultural advice will be sought from the Principal Aboriginal Consultant. The permanent, preventative, procedure provides that concerns will be raised with the carer before a decision is made and that a case conference will be scheduled ‘to give the opportunity for everyone to be clear about the high risk of placement breakdown’. The attendees at the case conference are prescribed to be:
·Principal Social Worker (as the Chair);
·Supervisor;
·Families SA case manager;
·Carer;
·Child or young person (where it is considered appropriate for them to attend);
·Key workers from the agency supporting them.
The plaintiffs contend that the Department assumed a legal obligation to afford procedural fairness by stating in Circular 131 that it would. My reasons for rejecting that proposition are given below.
In the case of Mr and Mrs L, the senior social worker recommended to the responsible Acting Director, with the support of his supervisor and the Manager of the Regional Office, that C and M be removed from the care of Mr L and Mrs L pending the outcome of a further investigation. The primary criticism made in the CCIU’s report was the unwillingness of Mr L and Mrs L to engage with the Department’s social workers or to allow the children to see their biological parents.
On 31 October 2014 the Acting Director approved the recommendation.
On 31 October 2014 C and M were removed from their placement with Mr L and Mrs L by three employees of Families SA and an employee of AC Care. The children were removed during school time. The children were removed in accordance with a decision made by a delegate of the Minister. The removal of the children was observed by a number of employees of the Department at the school. The fact that Mr and Mrs L may thereby have suffered reputational harm, as a matter of fact, is not a reason to conclude that a duty was imposed, in law, to afford them procedural fairness in order to protect their reputations. I return to that question of law below. No prior warning had been given to Mr and Mrs L that the children would be taken from their care.
On 3 November 2014 Mr L was directed not to attend the school by the regional Education Director. Mr L was told that the reason for the direction was that the children had been removed and that there was an ongoing investigation into their care.
On 7 November 2014 Mr L was told that he would remain on full pay but was not to attend any premises of the Department. On 19 November 2014 Mr L was provided with a letter by an officer of the CCIU alleging that:
·he had used unnecessary force in pushing, grabbing and throwing M causing physical harm to M and fear to both M and C;
·conflict between Mr L and Mrs L had resulted in Mrs L and the children having to escape from the home for periods of time and taking up alternative accommodation;
·C had seen Mr L overdose;
·Mr and Mrs L kept M and C from their biological parents; and
·medical attention was not immediately sought for C on an occasion when she broke her arm.
The letter requested an opportunity to interview Mr L about the allegations. A document entitled ‘Information Sheet for Carers’ which was sent with the letter stated:
Throughout the investigation, the Investigations Officer will:
·adhere to the principles of natural justice and procedural fairness;
·consider whether it is likely that abuse or neglect has occurred;
·consider whether a deficit in the quality of your care has been identified;
·comment on any other issues found, such as gaps in policies and practices.
On 3 February 2015, after interviewing Mr and Mrs L, the CCIU finalised its report.
The CCIU report found that the following allegations had been substantiated:
·C and M had suffered emotional abuse by virtue of exposure to their marital conflict;
·there was deficit a deficit in the quality of care arising out of the matrimonial conflict between Mr and Mrs L;
·there was a deficit in the quality of care by reason of Mr and Mrs L denying C and M access to their biological parents.
The allegations of inappropriate physical contact by Mr L, and that Mrs L had failed to protect the children from Mr L, were not substantiated. Even though the CCIU found that Mr L had used ‘behaviour management strategies’ which fell outside proper standards, the allegation of inappropriate use of force was not substantiated because Families SA had failed in its responsibility to ‘co-ordinate, support, monitor and make appropriate assessments’ of Mr L’s management of C and M’s challenging behaviour. Nothing in this case stated turns on the illogicality of that finding.
The allegation that Mr L had overdosed was not substantiated because even though Mr L had been taken to hospital by ambulance, Mr and Mrs L denied that it was due to an overdose but claimed instead that it was related to Mr L experiencing breathing difficulties.
A deficit in quality of care by withholding contact with the children’s biological parents was confirmed but that was found not to amount to emotional abuse.
The allegation of delay in providing medical attention for C’s broken arm was not substantiated. C had suffered only a minor fracture described as a ‘buckle fracture of the distal radius dorsal aspect associated with soft tissue swelling’ after C fell out of bed. It was treated with a removable wrist splint. The delay was explained because C did not complain greatly of the injury because she was generally reluctant to express sensitivity to physical symptoms.
The outcome of the CCIU report was approved by the Chief Executive of the Department on 10 February 2015. Mr and Mrs L were advised of the outcome of the CCIU on 13 February 2015. On 13 February 2015 CCIU forwarded a copy of the report under cover of a letter from the Manager of the CCIU to:
·the Deputy Chief Executive;
·AC Care;
·Incident Management Division; and
·The responsible Regional Office.
The covering letter advised:
[The report] is now forwarded to you for response to address outcomes, and other issues raised, in the report. Please include an action plan with built in timeframes for addressing any identified issues of concern, advising what action has been taken or is intended to be taken in response to the issues raised.
The report was also forwarded to Adverse Events and the TRB. Information was also given to the South Australian Employment Tribunal in the course of, and for the purposes of, proceedings taken against Mr L. The report was accessible by the CRU. It was not provided to any other recipient.
On 18 February 2015 the outcome of the CCIU investigation was communicated by letters to the biological parents of C and M. The report advised them:
I would like to advise you that the Care Concern Investigations Unit have concluded the investigation into those concerned. The outcome for the investigation are: emotional abuse has been substantiated for M and C. It was further substantiated that the care provided to M and C did not meet agreed standards of care for children who are placed in foster care.
(footnote omitted)
On 15 May 2015 a delegate of the Minister determined not to return the children to the care of Mr and Mrs L
The finding about Mrs H-P
In September 2012 Mrs H-P and her husband were approved as foster carers pursuant to the Family and Community Services Act 1972 (SA). Key Assets is a licensed foster care agency engaged by the Department. Key Assets placed two children, D and T, with Mr and Mrs H-P in February 2013. Between 28 October 2014 and 31 March 2015 the relevant Regional Office of Families SA held several meetings to consider the standard of care of D and T provided by Mr and Mrs H‑P.
On 11 December 2014 the CCIU commenced its investigation.
On 22 January 2015, following a meeting between Mrs and Mr H-P, and officers of the Department, D and T were removed from their care.
On 28 January 2015, Helping Young People Achieve (HYPA), a division of SYC, a not for profit organisation centred on employment, education and youth services sent the DCSI Screening Unit a screening application in relation to Mrs H-P for the purposes of child related employment. For the purposes of that application the Screening Unit accessed information held by the CCIU that a current serious care concern investigation was underway. On 28 August 2015 HYPA withdrew their application for a child related employment screen in relation to Mrs H-P. The Screening Unit did not disclose to any person any information that had been accessed by the CCIU in relation to Mr or Mrs H-P.
On 14 October 2015 the CCIU finalised its report. The report found that:
·Mr and Mrs H-P intermittently withdrew their full participation from the Department’s care team and case plan;
·used maladaptive coping strategies in response to the children’s behaviour;
·used punitive punishment and
·were motivated to continue fostering despite numerous family struggles because the income it generated for them.
The CCIU found the following allegations substantiated:
·deficit in the quality of care;
·emotional abuse because of the evidence of the significant distress their conduct had caused the children;
·inappropriate physical restraints.
On 14 October 2015 the Deputy Chief Executive endorsed the outcomes of the CCIU investigation. The following day the Chief Executive noted the recommendations arising out of the report.
On 22 October 2015 Mr and Mrs H-P were advised by letter that emotional and physical abuse and a deficit of care had been substantiated. The letter further advised:
This matter has now been forwarded to the Deputy Chief Executive Child Safety DECD, for Families SA to consider the findings. The findings, as they relate to you, may be accessed by the Department for Communities and Social Inclusion (DCSI) Screening Unit if you should apply for a child related screening check in the future.
On 22 October 2015 CCIU forwarded a copy of the report under cover of memorandum to:
·the Deputy Chief Executive;
·Adverse Events;
·the relevant Regional Office; and
·Key Assets.
On 2 November 2015 the outcome of the CCIU investigation was communicated by letter to D and T’s biological parents. The letter advised them that emotional and physical abuse, as well as a deficit in the quality of care, had been substantiated. It advised them that the matter had been forwarded to the Deputy Chief Executive, Office for Child Safety (Families SA), to consider the findings.
Children’s Protection Act 1993 (SA)
At the time, the objects of the CPA were to ensure the safety and appropriate care of all children recognising that the family is the primary social institution for the provision of that care.[1] Section 4 of the CPA as it operated at the time declares children to have rights:[2]
·to be safe from harm;
·to care in a stable family environment or an alternative care arrangement which provides every possible opportunity for full development;
·to have their best interests treated as paramount considerations in the exercise of powers under the Act.
[1] Children’s Protection Act 1993 (SA) s 3 (up until 28 April 2016). Since 28 April 2016, the primary object of the CPA has been to keep children safe from harm and that has been the paramount consideration in the administration of the Act.
[2] Section 4 has since been repealed.
Section 4(4) of the CPA provided that the child’s best interests must be determined having regard to:
·the desirability of keeping a child within his or her own family and neighbourhood;
·the need to preserve and strengthen relationships between children and their parents, grandparents and other family;
·the encouragement and preservation of the child’s sense of racial, ethnic, religious, spiritual and cultural identity;
·the child’s own views;
·the undesirability of interrupting education or employment.
Section 4(6) of the CPA dealt with children placed in alternative care and provides that the child must:
·be provided with a nurturing, safe and stable living environment which is culturally appropriate;
·must be allowed to maintain relationships with his or her family to the extent that it is possible to do so safely;
·must be consulted about decisions affecting his or her life;
·must be appropriately informed about plans and decisions concerning his or her care;
·entitled to have his or her privacy respected; and
·if in the care and under the guardianship or in the custody of the Minister, is entitled to a regular review of his or her circumstances and arrangements.
Section 4(5) of the CPA required that the Aboriginal and Torres Strait Islander Child Placement Principle be observed with respect to Aboriginal and Torres Strait Islander children. That principle was stated in reg 4 of the Childrens Protection Regulations 2010 (SA) (the Children’s Protection Regulations):
4—Aboriginal and Torres Strait Islander Child Placement Principle
(1)For the purposes of section 4(5) of the Act, the Aboriginal and Torres Strait Islander Child Placement Principle is as follows:
(a) the fundamental principles apply to the placement of an Aboriginal or Torres Strait Islander child with the additional requirement that in determining a child’s best interests under subsection (4) of that section consideration must be given to the child’s cultural needs and identity;
(b) subject to the fundamental principles, when an Aboriginal or Torres Strait Islander child is being placed in alternative care (other than care provided in a detention facility), consideration must be given to placing the child with the first in order of priority of the following persons who is available to provide the care:
(i)a member of the child’s family, as determined by reference to Aboriginal or Torres Strait Islander culture;
(ii)a member of the child’s community who has a relationship of responsibility for the child, as determined by reference to Aboriginal or Torres Strait Islander traditional practice or custom;
(iii)a member of the child’s community, as determined by reference to Aboriginal or Torres Strait Islander traditional practice or custom;
(iv)a person—
(A)in the case of an Aboriginal child—of Aboriginal cultural background; or
(B)in the case of a Torres Strait Islander child—of Torres Strait Islander cultural background;
(v)a person who is able to ensure that the child maintains significant contact with the child’s family (as determined by reference to Aboriginal or Torres Strait Islander culture), the child’s community or communities and the child’s culture;
(c) if the placement of a child in alternative care in accordance with paragraph (b) is objected to by the child on reasonable grounds, consideration must be given to placing the child with the next person (determined in accordance with paragraph (b)) available to provide the care.
(2)In this regulation—
fundamental principles means the fundamental principles set out in section 4 of the Act (other than the principle in section 4(5) of the Act).
Section 5 of the CPA enacts a requirement for special consultations in the case of Aboriginal children:
5—Provisions relating to dealing with Aboriginal or Torres Strait Islander children
(1)No decision or order may be made under this Act as to where or with whom an Aboriginal or Torres Strait Islander child will reside unless consultation has first been had with a recognised Aboriginal organisation, or a recognised Torres Strait Islander organisation, as the case may require.
(2)A person or court, in making any decision or order under this Act in relation to an Aboriginal or Torres Strait Islander child, must, in addition to complying with the requirements of section 4, have regard—
(a) to the submissions made by or on behalf of a recognised Aboriginal or Torres Strait Islander organisation consulted in relation to the child; and
(b) if there has been no such consultation—to Aboriginal traditions and cultural values (including kinship rules) as generally expressed by the Aboriginal community, or to Torres Strait Islander traditions and cultural values (including kinship rules) as generally expressed by the Torres Strait Islander community, as the case may require; and
(c) to the general principle that an Aboriginal child should be kept within the Aboriginal community and a Torres Strait Islander child should be kept within the Torres Strait Islander community.
…
The functions of the Minister are set out in s 8 of the CPA, and the functions of the Chief Executive in s 8A, relevantly to this matter those sections provide:
8—General functions of Minister
(1)The Minister must seek to further the objects of this Act and, to that end, should endeavour—
…
(c) to provide, or assist in the provision of, services for dealing with the problem of child abuse and neglect and for the care and protection of children;
(d) to provide, or assist in the provision of, preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect and maximising the well-being of children generally;
…
(h) to provide, or assist in the provision of, services—
(i)to assist children who are under the guardianship or in the custody of the Minister; and
(ii)to assist persons who, as children, have been under the guardianship or in the custody of the Minister, to prepare for transition to adulthood;
…
(ka) to encourage the provision of child safe environments particularly by government and non-government organisations that provide services for, or have contact with, children;
(l) generally to do such other things as the Minister believes will further the objects of this Act.
(2)The Minister must—
(a) assist in the provision of—
(i)services directed at enhancing the quality of care of children and family life by strengthening and supporting families, and thus preventing or reducing the incidence of child abuse and neglect; and
(ii)support services to children who have been abused or neglected and their families; and
(b) ensure that those support services are offered to children who are known by the Department to have been abused or neglected and their families and that genuine efforts are made to encourage such children and their families to avail themselves of the services.
…
8A—General functions of the Chief Executive
The Chief Executive has the following functions:
…
(b) to provide guidance on appropriate standards of conduct for adults in dealing with children;
(c) to define appropriate standards of care for ensuring the safety of children;
…
(h) to ensure, as far as practicable, that procedures for making complaints about cases of suspected child abuse or neglect are easily accessible and, in particular, that they are accessible and responsive to children;
…
(j) to develop and issue standards to be observed in dealing with information obtained in connection with an assessment of a person’s relevant history (whether under section 8B or 8BA or otherwise).
Part 4 of the CPA (ss 10 to 26B) deals with notifications and investigations of child abuse.
Section 11 of the CPA provides that persons occupying certain offices or occupations, for example medical practitioners, police officers, social workers and teachers, must notify the Department as soon as practicable if they form a suspicion on reasonable grounds in the course of their work that a child has been or is being abused or neglected.
Section 14 of the CPA provides:
14—Chief Executive not obliged to take action in certain circumstances
Nothing in this Act requires the Minister or the Chief Executive to take or initiate any action under this Act in relation to a notification of suspected abuse or neglect of a child if the Minister or the Chief Executive is satisfied—
(a)that the information or observations on which the notifier formed his or her suspicion were not sufficient to constitute reasonable grounds for the suspicion; or
(b)that, while there are reasonable grounds for such a suspicion, proper arrangements exist for the care and protection of the child and the matter of the apparent abuse or neglect has been or is being adequately dealt with.
Section 15 of the CPA defines an officer to be either a police officer or an employee of the Department authorised to exercise powers under Part 4, Division 2.
Part 4, Division 2 of the CPA deals with the removal of children in danger. An officer of the Department is empowered to remove children from dangerous situations. Section 16 of the CPA provides:
16—Power to remove children from dangerous situations
(1)If an officer believes on reasonable grounds that a child is in a situation of serious danger and that it is necessary to remove the child from that situation in order to protect the child from harm (or further harm), the officer may remove the child from any premises or place, using such force (including breaking into premises) as is reasonably necessary for the purpose.
…
(2)An officer’s powers under this section are subject to the following limitations:
(a) a police officer below the rank of inspector may only remove a child from a situation of danger with the prior approval of a police officer of or above the rank of inspector unless he or she believes on reasonable grounds that the delay involved in seeking such an approval would prejudice the child’s safety;
(b) an employee of the Department may only remove a child from the custody of a guardian with the Chief Executive’s prior approval.
(3)An officer who removes a child under this section must, if possible, return the child to the child’s home unless—
(a) the child is a child who is under the guardianship, or in the custody, of the Minister; or
(b) the officer is of the opinion that it would not be in the best interests of the child to return home.
(4)If an officer removes a child under this section, and the child is not returned to the child’s home under subsection (3), the officer must deliver the child into the care of such person as the Chief Executive, or the Chief Executive’s nominee, directs.
(5)If the Minister does not already have custody of a child who is removed from a situation of danger under this section, the Minister has custody of the child until—
(a) the end of the working day following the day on which the child was removed; or
(b) the child’s return home,
(whichever is the earlier).
(6)The power to remove a child under this section is in addition to, and does not derogate from, the powers of an authorised police officer under section 51(4).
There is no reason to exclude from the scope of s 16 of the CPA children who are under the guardianship or custody of the Minister and are residing with foster carers or others in accordance with the Minister’s direction. It would be contrary to the protective purpose of s 16 of the CPA to do so. Section 16 is contained in the Part of the CPA which deals with notifications of abuse. Such notifications may, of course, be made in relation to children under the Minister’s guardianship. Section 16 authorises officers to act quickly and use reasonable force to extricate such children from dangerous situations. Moreover, some support for extending the power to children in the guardianship of the Minister can be drawn from subsection (5).
Division 3 of Part 4 of the CPA is headed ‘Investigations’. Section 19 of the CPA obliges a Chief Executive to cause an assessment or investigation into the circumstances of the child whom he or she suspects on reasonable grounds to be at risk arising out of circumstances which are not being adequately managed:
19—Investigations
(1)If the Chief Executive—
(a) suspects on reasonable grounds that a child is at risk; and
(b) believes that the matters causing the child to be at risk are not being adequately addressed,
the Chief Executive must cause an assessment of, or investigation into, the circumstances of the child to be carried out or must effect an alternative response which more appropriately addresses the potential or actual risk to the child.
(2)For the purposes of an investigation, the Chief Executive may, by notice in writing, require a person who has examined, assessed, carried out tests on or treated the child, or the agency for whom the person works, to furnish the Chief Executive with a written report on the examination, assessment, tests or treatment.
(3)Subject to this section, an authorised police officer may, for the purposes of assisting an investigation under subsection (1), do all or any of the following:
(a) enter or break into, remain in and search any premises or place;
(b) seize any item that the officer believes on reasonable grounds may afford evidence relevant to the investigation;
(c) take photographs, films or videos;
(d) require a person who may be in a position to furnish information relevant to the investigation to answer any question put by the officer to the best of that person’s knowledge, information or belief.
(4)The powers under subsection (3) can only be exercised on the authority of a warrant issued by a magistrate except if—
(a) entry to the premises or place has been refused or cannot be gained; and
(b) the police officer believes on reasonable grounds that the delay that would ensue as a result of applying for a warrant would prejudice the investigation and the safety of the child to whom the investigation relates.
…
(6)Subject to subsection (7), a person must not refuse or fail to comply with a requirement under this section.
Maximum penalty: $2 500 or imprisonment for 6 months.
…
(13)A person who is required to answer a question or furnish a report under this section does not, insofar as he or she has acted in good faith, incur any civil liability in complying with the requirement.
I observe here that the duty imposed by s 19(1) of the CPA is an imperfect obligation in that it is not susceptible to timely judicial enforcement and the Chief Executive’s accountability is therefore largely dependent on the principles of ministerial responsibility. Be that as it may, the existence of circumstances enlivening the obligation in s 19(1) of the CPA and the consequential powers in the remainder of the section does not mean that those powers are being exercised when departmental officers make ordinary voluntary enquiries into the welfare of children.
Next I observe that again it would be contrary to the protective purpose of s 19 of the CPA to exclude children under the guardianship or custody of the Minister from the operation of that section. True it is that the Minister’s powers of guardianship and custody over such children will often mean that their safety can be ensured without exercising the powers conferred by s 19 of the CPA. However, there is no reason to deny children under the guardianship of the Minister the protection of the special powers conferred by the section.
On 11 February 2011 the Chief Executive of the Department for Families and Communities delegated functions conferred by s 19(1) to form a suspicion that a child is at risk and cause an investigation assessment or alternative response to the Executive Director, Families SA as well as the Director, Families SA. The powers conferred by s 19(2) of the CPA to require a person to furnish a report on the examination, assessment, treatment, etc of a child was conferred on the Manager, Families SA and Supervisor, Families SA.
If, following an investigation, the Chief Executive holds a reasonable suspicion that a child is at risk, that further investigation of the matter is warranted, or that a family care meeting should be held, the Chief Executive may, if he or she thinks fit, apply to the Youth Court for an order under Division 4 of Part 4 of the CPA.
On that application, the Youth Court, pursuant to s 21 of the CPA, may make orders including for the ‘examination and assessment of the child’ or the assessment of ‘parent, guardian or other person who has, or is responsible for, the care of a child’. The Court may also make an order authorising the Chief Executive to require any person to answer to the best of that person’s knowledge, information or belief questions put by an employee of the Department authorised by the Minister to exercise the power and to require any person who has assessed the child to furnish a report to the Chief Executive. Section 21 of the CPA also authorises the Court to make an order granting custody of the child to the Minister; directing a party to the application who resides with the child to cease or refrain from residing in the same premises; or, an order directing a party to the application to refrain from having contact with the child.
Part 4, Division 5 of the CPA is headed ‘Examination and assessment of children’. Section 26 of the CPA authorises the Chief Executive of the Department to direct professional examination testing and assessment of children in the custody of the Minister or, of whom an investigation and assessment has been ordered.
Part 5 of the CPA is headed ‘Children in need of care and protection’. Division 1 is headed ‘Family care meeting’. Section 27 of the CPA provides that if the Minister is of the opinion that a child is at risk and that arrangements should be made to secure the child’s care, the Minister should cause a family care meeting to be convened. The remainder of Division 1 of Part 5 deals with the conduct of those meetings.
Division 2 of Part 5 is headed ‘Care and protection orders’. Section 37 in Division 2 of Part 5 of the CPA provides that the Minister may apply to the Youth Court for an order under that Division if the child remains at risk.
Pursuant to s 38 of the CPA, the Court may make orders as to the guardianship or custody of children in need of care. Section 38 of the CPA relevantly provides:
38—Court's power to make orders
(1) If the Court finds, on an application under this Division, that the grounds of the application have been made out and that an order under this section should be made in respect of the child, the Court may exercise 1 or more of the following powers:
(a)the Court may require a parent, guardian or other person who has the care of the child, or the child, to enter into a written undertaking (for a specified period not exceeding 12 months) to do any specified thing, or to refrain from doing any specified thing and, if the Court thinks fit, require the child to be under the supervision of the Chief Executive or some other specified person or authority for the duration of the undertaking;
Example—
A parent, guardian or other person could, for example, be required to enter into an undertaking to undergo treatment for drug abuse, to submit to periodic testing for drug use and to authorise the release of information regarding such treatment, and the results of such testing, to the Chief Executive.
(b)the Court may grant custody of the child, for a specified period not exceeding 12 months, to one of the following persons:
(i) a guardian of the child;
(ii) some other member of the child's family;
(iii)the chief executive of a licensed children's residential facility, for placement of the child in such of those facilities as that officer from time to time thinks appropriate;
(iv) the Minister;
(v)any other person that the Court thinks appropriate in the circumstances of the case;
(c)the Court may place the child, for a specified period not exceeding 12 months, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(d)the Court may place the child, until the child attains 18 years of age, under the guardianship of the Minister or such other person or persons (not exceeding two) as the Court thinks appropriate in the circumstances of the case;
(e)the Court may direct a party to the application to do one or more of the following:
(i)to cease or refrain from residing in the same premises as the child;
(ii)to refrain from coming within a specified distance of the child's residence;
(iii)to refrain from having any contact with the child except in the presence of some other person;
(iv) to refrain from having any contact at all with the child;
(f) the Court may make consequential or ancillary orders—
(i) providing for access to the child; or
(ii)providing for the way in which a person who has custody or guardianship of the child under an order of the Court is to deal with matters relating to the care, protection, health, welfare or education of the child; or
(iii)requiring a parent, guardian or other person who has the care of a child to undertake specified courses of instruction, or programmed activities, in order to increase his or her capacity to care for and protect the child; or
(iv) dealing with any other matter.
(2) Before the Court makes an order giving custody or guardianship of a child to a person who is not a parent of the child, the Court must be satisfied—
(a)that there is no parent able, willing and available to provide adequate care and protection for the child; and
(b) that the order is the best available solution having regard to—
(i)the child's need for care and protection (including emotional security); and
(ii)the child's age, developmental needs and emotional attachments.
(2a) If a child is to be placed in guardianship the Court must consider the importance of settled and stable living arrangements for the child and, as a general rule, a long term guardianship order (ie an order under subsection (1)(d)) is to be preferred to a series of temporary arrangements for the custody or guardianship of the child.
(3) If the Court finds that a child is at risk because a person other than a guardian with whom the child resides has abused, neglected or threatened the child, the Court cannot make an order removing the child from the guardianship or custody of the guardians with whom the child resides unless satisfied that they knew, or ought to have known, of the abuse, neglect or threats.
(4) If the Chief Executive or some other specified person or authority is, by order of the Court, to supervise a child who has entered into an undertaking, the supervisor may exercise such powers as the Minister authorises either generally or in relation to a particular supervisor.
Section 40 of the CPA provides that any order of the court may be varied or revoked at any time by a party to the proceedings.
The remainder of Division 2 of Part 5 is formal or procedural.
Part 6 deals with matters of court procedure. Importantly, s 46(1) of the CPA provides:
46—Service of applications on parties
(1)The following persons are parties to an application under this Act for an investigation and assessment order or a care and protection order, or for the variation, extension or revocation of such an order, or to an application by the Chief Executive under Part 8 for the transfer of a child protection order or a child protection proceeding:
(a) the applicant; and
(b) the child the subject of the application; and
(c) each guardian of the child.
…
Section 47A of the CPA provides:
47A—Right of other interested persons to be heard
In any proceedings under this Act, the Court may, on the application of—
(a) a member of the child's family; or
(b) a person who has at any time had the care of the child; or
(c) a person who has counselled, advised or aided the child,
hear submissions the applicant wishes to make in respect of the child, despite the fact that the applicant is not a party to the proceedings.
Guardian is widely defined:[3]
guardian, of a child, means a parent of the child, a person (other than the Minister) who is the legal guardian of the child or has the legal custody of the child or any other person who stands in loco parentis to the child and has done so for a significant length of time.
[3] Children’s Protection Act 1993 (SA) s 6(1).
It follows that a foster carer may be a guardian of a child placed in his or her care if he or she has stood in loco parentis for a significant period. As such, he or she is a party to the proceedings and will have standing pursuant to s 46 of the CPA to challenge a placement decision of the Minister by seeking a variation of the order under which the Minister exercises guardianship or has custody. I would construe ss 40 and 46 of the CPA to be continually speaking so that a guardian from time to time may apply to vary or revoke an order. Alternatively a foster carer may be heard on that question in the discretion of the court pursuant to s 47A of the CPA. In that way a person, and in particular a child, aggrieved by placement decisions of the Minister made pursuant to s 51 of the CPA is not left without any remedy. In what one would expect to be relatively rare cases, a placement decision might found an application to vary or revoke a guardianship or custody order made pursuant to s 38 CPA.
Part 7 of the CPA is headed ‘Children under Minister’s care and protection’. Division 1 is headed ‘Powers of Minister’. Section 51 of the CPA authorises the Minister to place a child, who is under his or her guardianship or custody, with a member of the child’s family, guardian or other family. C and M were removed from the care of Mr and Mrs L pursuant to this section.
51—Powers of Minister in relation to children under the Minister’s care and protection
(1)Subject to this Act, the Minister may from time to time make provision for the care of a child who is under the guardianship of the Minister or of whom the Minister has custody pursuant to this Act, in any of the following ways:
(a) by placing the child, or permitting the child to remain, in the care of a guardian of the child or some other member of the child’s family;
(b) by placing the child in the care of an approved foster parent or any other suitable person;
(c) by placing the child in a home (not being a training centre) established or licensed under the Family and Community Services Act 1972 or in any other suitable place, and by giving such directions as to the care of the child in that home or place as the Minister thinks fit;
(d) by making arrangements for the education of the child;
(e) by making arrangements (including admission to hospital) for the medical or dental examination or treatment of the child or for such other professional examination or treatment as may be necessary or desirable;
(f) by making such other provision for the care of the child as the circumstances of the case may require.
(2)In making provision for the care of a child pursuant to subsection (1), the Minister must, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the child.
(3)The Minister must keep the guardians of the child informed about where the child is placed and how the child is being cared for, unless the Minister is of the opinion that it would not be in the best interests of the child to do so.
(4)An authorised police officer may for the purposes of enforcing any order of the Youth Court, without warrant, remove from any place a child who is under the guardianship of the Minister or of whom the Minister has custody, using such force (including breaking into premises) as is reasonably necessary for that purpose.
The Screening Unit
It is necessary to detail the functioning and legal foundation of Screening Units which have access to CCIU reports because it is through a Screening Unit that non-government entities may be informed of the contents of a CCIU report thereby adversely affecting a person’s reputational interests. Screening Units are bodies approved by the Children’s Protection Regulations 2010 (SA) (the CPR) to conduct relevant history assessments of persons who work with children. As such, they have access to and are required to consider information to which non-government organisations do not have access.
Section 8B(6) of the CPA imposes an obligation on the responsible authority of government organisations and prescribed non-government organisations to ensure that the relevant history of a prospective worker engaged in a prescribed position is assessed in accordance with the regulations before his or her engagement.
Section 8B(8) of the CPA defines a responsible authority to mean:
responsible authority means—
(a) for a government organisation that is a department—the chief executive of that department;
(b) for a government organisation that is an agency or instrumentality—the managing authority of that agency or instrumentality;[4]
(c) for a non government organisation—
(i)the managing authority of the organisation; or
(ii)if the managing authority has delegated its responsibilities under this section to a body approved by regulation for the purposes of this definition—that body.[5]
(citations added)
[4] Managing authority of a non-government organisation, means the board, committee or other body or person in which the management of the organisation is vested (and, in the case of a board, committee or body that is not incorporated, each member of the board, committee or body will be taken to be a managing authority of the organisation).
[5] Regulation 11 prescribes the Association of Independent Schools of South Australia Incorporated the Catholic Church Endowment Society Incorporated and the Lutheran Schools Association of South Australia, Northern Territory and Western Australia Incorporated as approved bodies for the purposes of taking delegations from the responsible authority of a non-government organisation of the obligation of conducting history checks.
A responsible authority may, at any time, cause an assessment of a worker who occupies a prescribed position or is providing prescribed functions.
Section 8B(7) of the CPA provides:
(7)The regulations may (without limitation)—
(a) make provision in relation to the manner in which an assessment of a person’s relevant history may be undertaken; and
(b) provide for the authorisation of persons or bodies to undertake assessments of a person’s relevant history for the purposes of this section or section 8BA, or any other purpose prescribed by regulation and relating to the care and protection of children; and
…
(e) make provision in relation to confidentiality of information relating to, or obtained in the course of an assessment of, a person’s relevant history; and
…
It is in the definition of relevant history that the difference in the breadth of information available to a Screening Unit and a responsible authority of a non-government organisation appears. Relevant history of a person is defined by s 8B(8) of the CPA to mean:
relevant history, of a person, means—
(a) in the case of an assessment of a person’s relevant history undertaken by a person or body authorised by the regulations to undertake relevant history assessments—information of the following kinds:
(i)findings of guilt for offences committed by the person in South Australia or elsewhere (whether those findings of guilt relate to offences committed before or after the commencement of this section);
(ii)offences alleged to have been committed (whether before or after the commencement of this section) by the person in South Australia or elsewhere and with which the person has been charged but which have not yet been finally determined;
(iii)information relating to findings of guilt and charges referred to in a preceding subparagraph;
(iv)information relating to charges for offences alleged to have been committed by the person in South Australia or elsewhere (whether those charges relate to offences alleged to have been committed before or after the commencement of this section and regardless of the outcome of those charges);
(v)information lawfully obtained or held for any purpose by a person or body prescribed by regulation (being information that is relevant to whether a person is a suitable person to perform prescribed functions);[6]
[6] Regulation 10B prescribes the organisations whose records are included within the definition of relevant history in s 8B(8) of the CPA. The records include the Department, other government Departments providing services to youth, the Courts Administration Authority and an authorised screening unit.
(vi)information provided by the person for the purposes of an assessment of his or her relevant history; or
(b) in the case of an assessment of a person’s relevant history undertaken by a person or body other than a person or body authorised by the regulations to undertake relevant history assessments—information of the following kinds:
(i)findings of guilt for offences committed by the person in South Australia or elsewhere (whether those findings of guilt relate to offences committed before or after the commencement of this section);
(ii)offences alleged to have been committed (whether before or after the commencement of this section) by the person in South Australia or elsewhere and with which the person has been charged but which have not yet been finally determined;
(iii)information provided by the person for the purposes of an assessment of his or her relevant history,
but does not, in respect of a relevant history assessment of a kind specified in the regulations, include information, or information of a class, declared by the regulations to be excluded from the ambit of this definition;
(citations added)
Subsections (9) and (10) of s 8B of the CPA authorise a limited disclosure of a person’s relevant history to persons undertaking a relevant history assessment and more complete disclosure to screening units which are authorised by the CPR to undertake a relevant history assessment:
(9)Information of a kind referred to in paragraph (b) of the definition of relevant history [findings of guilt and pending charges] may, despite any other Act or law, be disclosed to a person or body that is undertaking an assessment of a person’s relevant history (whether under this section or otherwise).
(10)Any information (whether of a kind referred to in the definition of relevant history or otherwise [therefore including dismissed criminal proceedings and governmental reports]) may, despite any other Act or law, be disclosed to a person or body authorised by the regulations to undertake relevant history assessments
Part 3 of the CPR prescribes how a relevant history assessment is made. Regulation 6 of the CPR provides that the responsible authority, that is the Chief Executive of a government department or the managing authority of a non-government organisation, must make an assessment of a criminal history report or obtain a relevant history assessment relating to the person from an authorised Screening Unit. If the responsible authority undertakes the assessment itself it must do so by:
6—Manner in which assessment must be undertaken
…
(i)obtaining—
(A)a criminal history report (such as a National Police Certificate) relating to the person provided by South Australia Police or the ACC or an ACC accredited agency or broker; or
(B)other prescribed evidence of the person’s relevant history; and
(ii)undertaking an assessment of that report or evidence, taking into account any information provided by the person for the assessment, for the purpose of determining whether the person may pose a risk to the safety of children;
…
The assessment must be made in accordance with standards published by the Chief Executive pursuant to s 8A(j) of the CPA, which standards may prescribe the evidence for the purpose of reg 6(1)(a)(i)(B).
Regulation 7 provides for the establishment of Screening Units:
7—Screening units
(1)The Chief Executive may, as the Chief Executive thinks fit—
(a) establish authorised screening units; or
(b) declare, by notice in the Gazette, that a person or body is an authorised screening unit,
for the purposes of undertaking assessments of a person’s relevant history under section 8B the Act.
(2)The Chief Executive may, by notice in the Gazette, declare that a person or body is an interstate authorised screening unit for the purposes of these regulations.
(3)An authorised screening unit may undertake an assessment of a person’s relevant history (where the assessment relates to the care and protection of children)—
(a) for the purpose of assessing the person’s suitability for enrolment as an adult in secondary education; or
(b) if the assessment is required under a contract entered into with a State Government agency or instrumentality; or
(c) where a child is undertaking a workplace learning program in connection with an approved learning program (within the meaning of section 75D of the Education Act 1972).
It is to be noted that the regulation establishing Screening Units is authorised by s 8B(7)(b) of the CPA for the purposes of undertaking relevant history assessments under s 8B(7)(b) and s 8BA of the CPA or for any other purpose prescribed by regulations.
It can be seen then that neither s 8B of the CPA nor the CPR impose any obligation on non-government organisations to obtain any relevant history other than that of offences committed, or offences charged and yet to be determined, but by combination of regs 6 and 7 of the CPR, Screening Units may be requested to undertake a history assessment by the government and non-government organisations to which s 8B of the CPA applies.
By reasons of the combined effect of s 8B7(b) and, the differential definition of ‘relevant history’ in s 8B(8) of the CPA and reg 7 of the CPR, Screening Units are bound to assess all information held by the Department including CCIU reports. However, reg 13 of the CPR prohibits the disclosure of information forming part of a person’s relevant history by a responsible authority or a Screening Unit unless by consent or if to do so is authorised or required by law. It follows that because s 8B(9) of the CPA does not authorise the provision of any information by a Screening Unit to a responsible authority other than convictions and pending charges. Regulation 13 of the CPR proscribes the provision of information in CCIU reports to any other person.
Accordingly, in order to comply with those strictures, a screening unit may be bound to communicate an adverse assessment without any disclosure of the information on which it is based. Be that as it may, whether or not an adverse assessment by the Screening Unit is communicated and how it is communicated within the constraint imposed by reg 13 is a decision made by a Screening Unit in the exercise of the obligation and power conferred on it by reg 7. Any obligation to accord procedural fairness before an adverse assessment is communicated is attracted at that point and not earlier for reasons which I give below. The exercise of that administrative function may attract the rules of procedural fairness because of its possible effect on the reputation of the person whose history is assessed. However, it will be remembered that no such assessment was communicated about the plaintiffs in these actions.
No exercise of public power
The inherent jurisdiction of superior courts of record to rule on the legality of the exercise of public powers was formerly invoked by what were referred to as prerogative writs. That jurisdiction was originally exercised to restrain the excesses and abuses of the Crown’s powers by its public officers. Indeed, the prerogative writs themselves were developed out of mere administrative orders of the King’s superior officials to their subordinates. The King’s Bench wrested that supervisory jurisdiction from the King’s Council in the 16th century significantly affecting the development of administrative law.[7] The importance of that historical note for present purpose is simply that judicial review of administrative action is concerned with ensuring that decision makers do not exceed, or breach the conditions of, the legal power that they exercise.
[7] Plucknett T, A Concise History of the Common Law, 4th Ed Butterworth & Co, London, 1948 at p 165.
The detailed review of the CPA and the Child Protection Regulations made above reveals that even though there is a statutory basis for the removal of children from the care of their guardian, neither a CCIU report nor its endorsement has, in itself, any legal consequence. It is not surprising therefore, that there is no statutory provision expressly conferring a power or function with respect to the making or endorsing of CCIU reports.
The Minister is responsible for the administration of the CPA and exercises his or her functions under s 8 of the CPA through the Department. The Department does so by employing officers including health professionals, social workers, counsellors and others. They assist the Minister to discharge his or her statutory duty to provide services for abused children by making personal enquiries and assessing information obtained from a variety of sources in order to provide safe accommodation, and health and counselling services, to protect and advance the welfare of children. Much, perhaps the great preponderance, of that work is undertaken without the exercise of any statutory powers of compulsion. Family members, friends and teachers, will often volunteer information about the welfare of children even before they are asked. Health professionals, police officers, social workers and teachers are duty bound to notify the Department, even before they are questioned, of reasonable suspicions they hold that a child is being neglected or abused. In those ways the Department amasses a large amount of information to guide its work. Its services are often accepted voluntarily by the parents, or other guardians, of children. The suggestions of officers of the Department as to health care or counselling are often gratefully adopted by them. Parents will often agree to the placement of a child in the care of another when they are unable to provide that care themselves. Collaborative conduct is not rendered an exercise of statutory power by the circumstance that compulsive measures may have been taken but for co-operation of that kind. So too for the investigations and reports by the CCIU into the circumstances of the foster children placed with the plaintiffs in the cases at hand. The circumstance that the Chief Executive’s powers under s 19 of the CPA might have been enlivened and exercised if there were a need to, does not mean that the officers of the Department who prepared the CCIU report were acting pursuant to s 19. The simple, and agreed, fact is that no such powers were exercised.
The agreed fact set out in [13] that the CCIU did not exercise any statutory powers in its investigation of the care of the children placed with the plaintiffs is determinative against the plaintiffs insofar as they rely on the failure to accord procedural fairness based on the provisions of the CPA. On the other hand, I accept that in removing C and M from the care of Mr and Mrs L, the officers of the Department were enforcing a decision of the Minister’s delegate made pursuant to s 51(1) of the CPA. My reasons for each of those concusions follow.
The CCIU Report – No exercise of power
Insofar as the CCIU reports and their endorsements are concerned it is necessary to consider whether these acts involved an exercise of prerogative power. In his seminal work An Introduction to the Study of the Law of the Constitution,[8] Professor Dicey considered the meaning of ‘the prerogative’, which, he observed, had caused more perplexity than any other constitutional expression. Professor Dicey explained that the prerogative is, both historically, and as a matter of present fact, ‘nothing else than the residue of discretionary or arbitrary authority which at any given time is legally left in the hands of the Crown’. It is clear however from the following discussion that Professor Dicey was referring to that authority exercised by the Crown as the sovereign. The context, which was a discussion of the way in which constitutional conventions govern the exercise of the prerogative, makes that plain. The particular prerogatives under consideration were the power to make war or declare peace, to dismiss Ministers, to make treaties and to prorogue and recall Parliament.
[8] Dicey A, An Introduction to the Study of the Law of the Constitution 10th Ed Macmillan Press, London, 1959 at p 423-424.
It was a prerogative power of that kind that was in question in Attorney‑General v De Keyser’s Royal Hotel Ltd,[9] in which Professor Dicey’s description of the prerogative was adopted. So, understood, the Diceyan conception of the prerogative does not differ from Blackstone’s who described the prerogative as:[10]
that special pre-eminence which the king hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies, in it’s [sic] etymology, (from prae and rogo) something that is required or demanded before, or in preference to, all others. And hence it follows that it must be in it’s [sic] nature singular and eccentrical; that it can only be applied to those rights and capacities which the king enjoys alone, in contradistinction to others ... for if once any one prerogative of the crown could be held in common with the subject, it would cease to be prerogative any longer.
(emphasis in original)
[9] [1920] AC 508.
[10] Blackstone W, Commentaries on the Laws of England, Vol 1, 1783 at p 251.
It has been widely accepted that the prerogative powers comprise only those common law powers unique to the Crown.[11] It is in that sense that the prerogative has long been understood in Australia. In Clough v Leahy Griffith CJ explained:[12]
That term is generally used as an epithet to describe some special powers, greater than those possessed by individuals, which the Crown can exercise by virtue of the Royal authority. There are some such powers exercised under the law, but the power of inquiry is not a prerogative right.
(emphasis added)
[11] Wheeler F, Judicial Review of Prerogative Power (1992) 14 Syd LR 432 at p 447 and see texts there cited.
[12] (1904) 2 CLR 139 at 156.
Griffith CJ continued:[13]
[E]very person is free to make any inquiry he chooses; and that which is lawful to an individual can surely not be denied to the Crown, when the advisers of the Crown think it desirable in the public interest to get information on any topic.
The Chief Justice then observed, however, that the power to compel an answer could only be found in statute. So too for the Minister through the Chief Executive and for the other officers of the Department in the instant cases. The enquiries and subsequent assessment and reports they make are simply the exercise of human faculties which are not only not denied to the executive government, but are also critical to its efficient operation. Moreover, no questioning of legal validity in effect, purpose or method is raised by the making of those enquiries. Such enquiries may be a good or poor use of resources, but the efficiency and standards of the officers of the Department and the Minister is accountable only to Parliament and, in the case of an abuse of those resources or administration, subject to investigation by ICAC[14] or the Ombudsman.[15]
[13] Clough v Leahy (1904) 2 CLR 139 at 157.
[14] Independent Commissioner Against Corruption Act 2012 (SA).
[15] Ombudsman Act 1972 (SA).
It is now accepted that there is no free-standing common law requirement that an administrative decision-maker under statute must comply with the rules of procedural fairness or that the common law can impose any other limitation on the exercise of statutory power.
In Minister for Immigration and Border Protection v SZSSJ the High Court unanimously held: [16]
[74]Characterisation of an ITOA as a process undertaken by an officer of the Department under and for the purposes of ss 48B, 195A and 417 of the Act leads directly to the conclusion that procedural fairness is required in the undertaking of that process.
[75]Why that conclusion follows is that it must now be taken to be settled that procedural fairness is implied as a condition of the exercise of a statutory power through the application of a common law principle of statutory interpretation. The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.
[16] Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901 at [74]-[75].
The reason for that is constitutional. The supremacy of Parliament over the common law must mean that the only source of a power conferred by statute, and therefore of any limitation on that power, must be legislative. No statutory office holders, or any other administrative decision-makers, have existence prior to their constitution by the statute pursuant to which they exercise power. The statute at once confers authority on them to make administrative decisions and establishes the metes and bounds of their administrative authority. It is for that reason that the preferable view is to imply, in the bland words by which administrative decision-making power is usually legislatively conferred, an intention to limit the power by reference to the requirements of procedural fairness and administrative reasonableness. The principle of legality operates as a rule of statutory construction and is not a free-standing substantive common law rule limiting the power of all administrative decision makers unless Parliament provides to the contrary.
However that analysis cannot be applied to the true prerogative. The prerogatives of the Crown exist only in so far as they are recognised by the common law. They are not determined by the Crown and an excess of prerogative authority can be set aside by the Courts according to their proper common law limits. It can therefore be accepted that there may be common law limitations on the exercise of the prerogative powers. However, in that respect the common law accords great deference to the exercise of discretions by the Executive and to its assessment of what is necessary to protect the public interest. Moreover, even though the common law necessarily circumscribes the legal reach of the prerogative there is a judicial reticence to require the Governor-in-Council to consult in a particular way when exercising a prerogative power or a statutorily conferred discretion.[17]
[17] FAI Insurances Ltd v Winneke (1982) 151 CLR 342; State of South Australia v O’Shea (1987) 163 CLR 378.
The dissemination of the list to local government authorities is an important feature of the circumstances in the MBA case because there was no identity of interest between the State government departments involved in the compilation of the list, and the local government authorities to which the list was sent.
The plaintiffs also rely on the decision of this Court in Cornwall & Ors v Rowan.[65] For present purposes, the relevant issue in that case was the duty of the Honourable Dr Cornwall as Minister for Health, to afford the members of a committee of an incorporated community health association procedural fairness before directing a committee of inquiry that he had established to include an unsubstantiated allegation in a report which he intended to table in Parliament. However the claims in the action brought against the Minister were in defamation and misfeasance in public office. The Court accepted that it was not an element of the latter action that the misfeasance be in the exercise of a statutory power.[66] Nonetheless the court accepted that reputation was an interest which enlivened an obligation to afford procedural fairness.[67]
[65] (2004) 90 SASR 269.
[66] Cornwall & Ors v Rowan (2004) 90 SASR 269 at 331, [245].
[67] Cornwall & Ors v Rowan (2004) 90 SASR 269 at 331-332, [246]-[250].
In Apache Northwest Pty Ltd v Agostini [No 2][68] the Court of Appeal of Western Australia considered an application in the nature of judicial review brought by the appellant (Apache) against the Minister for Mines and Petroleum for Western Australia. Apache was the operator of a gas processing facility on Varanus Island in Western Australia and the licensee of a pipeline associated with it. On 3 June 2008 there were a series of explosions followed by a fire at the gas facility. The Minister announced an investigation. In October 2008 the Minister published a report of the Department of Mines of Petroleum (DMP) (the October report) into the causes of that explosion which blamed ineffective anti-corrosion and cathodic protection of the pipeline and inadequate inspection and monitoring by Apache. On 9 January 2009 the Commonwealth and Western Australia announced the joint appointment of two persons (the Inquirers) to conduct an independent inquiry (the Inquiry) into the safety of upstream petroleum operations, focusing on the Varanus Island incident. On 8 April 2009 Apache brought proceedings against the Inquirers in the Federal Court of Australia and secured orders that the Inquiry afford Apache procedural fairness.
[68] [2009] WASCA 231.
In May 2009 the Minister announced the terms of reference of the Inquiry and that it would report in June 2009 and the Inquirers were appointed as inspectors under the Petroleum Pipelines Act 1969 (WA). As inspectors, they were authorised to exercise compulsory powers of inspection, but were not required to, or given the function of, providing a draft report for comment. After the Minister had announced the details of the final State investigation correspondence ensued in which Apache claimed a right to be accorded procedural fairness and correspondence ensued about the form that procedural fairness should take for example the ability to comment on a draft report.
On 18 June 2009 the Inquirers delivered their final report to the Executive Director of DMP. On the same day, the Inquirers wrote to Apache asserting that it had not participated constructively in the investigation and for that reason the DMP did not propose to give Apache access to the final investigation report before it was delivered to the Minister. The Minister advised that he would later provide the report to Apache unless it was inappropriate to do so.
On 23 June 2009 Apache commenced proceedings in the Supreme Court seeking declarations and injunctions restraining the Inquirers and the State from providing the final investigation report to the Minister. At a directions hearing on 25 June 2009 the Inquirers and the State undertook that they would not provide the final investigation report to the Minister pending the hearing and determination of Apache’s action.
The Judge dismissed Apache’s actions holding that:
·The Inquirers were exercising public power;
·Neither the Inquirers nor the State were under a duty to afford procedural fairness;
·Any decision by the Minister to publish the investigations report would attract a duty of procedural fairness to Apache;
·Any decision by the Minister in relation to any oil and gas interests under the Act would attract a duty of procedural fairness; and
·Even if the State were bound to afford Apache procedural fairness, Apache had not established any breach of the requirement of procedural fairness namely that they were not given an opportunity to comment on the adverse contents of the report.
Apache appealed against the Judge’s decision. On appeal Wheeler and Newnes JJA held that no duty of procedural fairness was owed to Apache in the preparation, and provision to the Minister, of the investigation report. Buss JA held to the contrary but ultimately dismissed the appeal because he upheld the final finding of the Judge that Apache had not established a breach of procedural fairness. The finding that the Inquirers were exercising public power was not disputed on the appeal.
Wheeler and Newnes JJA observed that the provision of the report to the Minister did not in itself adversely affect Apache merely because the Minister might exercise powers under the Petroleum Pipelines Act 1969 (WA) which would affect its interest. They explained that if the report did not influence the Minister to exercise any of his statutory powers adversely to Apache then, obviously enough, their interests in that respect would not be affected by it. On the other hand if the Minister proceeded to exercise a power and for that purpose proposed to have regard to the report, then, at that point, the appellants were entitled to procedural fairness. In neither of those possible outcomes however would the report, of itself, affect any interest.
Wheeler and Newnes JJA continued:[69]
[12]While it is sometimes the case that a person who prepares a report for a decision-maker must afford procedural fairness, that occurs where the report is a step in a decision-making process, either as an essential precondition, or as a matter to which a decision-maker must have regard. The principle appears to be that enunciated, albeit in a somewhat different context, in Hot Holdings Pty Ltd v Creasy. The report in the present case is not a step in a process of any kind, however; it is merely material which the Minister may find useful in his administration of the Act. We would add, in this context, that we agree with the observation of Wilcox J in Minister for the Arts, Heritage and Environment v Peko-Wallsend that the mere fact that information might create ‘a climate conducive’ to a decision adverse to a person’s interest is not sufficient to attract a duty of procedural fairness.
(citations omitted)
[69] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 at [12].
Wheeler and Newnes JJA then turned to the question of the effect of the delivery of the report to the Minister on Apache’s reputations:[70]
[18]Second, so far as this case is concerned, it seems to us that there is a difficulty in principle with finding that a communication to a State Minister, concerning matters for which the Minister is responsible, affects reputation so as to attract a duty of procedural fairness. As the respondents point out, the State’s constitutional structure necessarily entails communication between government departments and responsible Ministers, and advice from the department to the Minister. That advice may be a very informal oral communication, may be a formal and detailed briefing note, or may be anything in between. It will frequently be necessary for such advice to contain information which has been gleaned by officers as a result of their carrying out public functions of oversight, investigation, observation or information gathering.
[19]Any report or communication prepared for a Minister, whether by officers of his department or by third parties engaged for that purpose, may contain material adverse to the interests (including the reputation) of some person or persons. The fact that a report to be provided to the Minister contains such material cannot have the effect that before it can be disclosed to the Minister or to officers of the department, the affected party must be given an opportunity to be heard in respect of that material. Responsible government depends upon the assumption that Ministers have access to, and can freely request and be given, information which is held by departmental officers. It would be odd, if a requirement to afford natural justice imposed upon those officers a duty to delay in giving information to their Minister, until such time as persons the subject of adverse information had been given an opportunity to be heard about it, since it seems to us that a Minster’s responsibility would continue even where (for whatever reason) he or she had not been given information.
[70] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 at [18]-[24].
Wheeler and Newnes JJA then referred to Ainsworth before concluding:[71]
[36]For the reasons set out above, we are of the view that no duty of procedural fairness was owed by the first respondents to the appellants, if the report which the former was to produce was a report simply for the purpose of informing the Minister, and those assisting him, in relation to matters for which he was ultimately responsible to Parliament, including the administration of the Act. However, if the purpose of the report was in order to inform not just the Minister, but the public at large, then, in our view, a duty of procedural fairness would have been owed. The investigation and report would, in that case, be characterised as a formal process, carried out by experts, for establishing in the eyes of the public the causes of the explosion on Varanus Island, including the role of the appellants in relation to that explosion.
[37]If the report was intended as a report to the public at large, either through being tabled in Parliament, or by publication by the Minister in some other way, the appellants’ interest in their reputation would not be adequately protected by an opportunity, subsequent to the completion of the report, to make submissions to the Minister. That is because submissions to the Minister would not cause any alteration to the content of the report itself. The most that submissions to the Minister might do, if the appellants were able to discredit the report sufficiently, would be to cause him either to change his mind so as to refrain from publishing it, or alternatively to lead him to table in Parliament, or otherwise publish at the same time, the appellants’ comments concerning the report. However, assuming that the Minister did proceed to publish the report, any comments of the appellants would plainly not carry the same weight as the report itself, so far as the public was concerned. In all of the reputation cases considered above, it would, of course, always have been open to a person whose reputation was affected by any of the various reports, to seek to publish through the media (or in the case of Ainsworth, perhaps, to seek to have tabled in Parliament) their own comments taking issue with matters contained in the reports. It was not, however, suggested in any of those cases that such an opportunity would be an adequate substitute for an ability to influence the ‘decision-maker’ - that is, to influence the authors of the report.
[38]Although the learned primary judge held that ‘any decision to publish generally the Investigation Report would attract a duty of procedural fairness’ (at [112]), we would respectfully doubt the correctness of this proposition, at least as it relates to tabling of the report in Parliament. Whether a court should (or could) restrain the Minister from tabling in Parliament a report which he proposed to table, on the basis that a person had been denied procedural fairness in its preparation, is a question which we would not decide unless it was necessary to do so. We have not had the benefit of submissions on behalf of the presiding officer of the relevant House.
[71] Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 at [36]-[38].
The agreed facts in this matter show that the CCIU reports were not sent or made available to any officer of the Department or member of another government agency who did not have a reason to access it for the purposes of his or her public duties. The law does not confer procedural protections on the dissemination of reports affecting reputations which are preparatory, and do not in themselves affect rights interests or privileges, to persons who may properly have regard to that information for the purposes of discharging their public duties. There is an analogy here with the limits on the tort of defamation which does not impose liability for communications between persons with a legitimate common interest in receiving communications on that subject matter. True it is that the occasion may be abused and that the failure to give an opportunity to be heard may result in unnecessary reputational damage. Private law remedies will be available in these cases. However, for the purposes of public law, the individual’s interest in his or her reputation must give way to the higher public interest in the free exchange of information between persons who have a duty to evaluate that information.
The plaintiffs also contend that they had an interest as persons who had the care of the children and were therefore in loco parentis. The care of a child is undertaken for the benefit of the child and not the carer. I do not accept that the plaintiffs had an interest protected by the common law as carers. The interest in a secure home environment is an interest of the child’s.
The plaintiffs also rely on the fact that they were paid as foster carers pursuant to the Families and Community Services Act 1972 (SA) however that payment is conditional on them continuing to act as foster parents. Reliance upon that interest exposes the undesirability of recognising any quasi-proprietary interest of a carer in the continuation of that role.
The plaintiffs also rely on the possible effect on their employment, in the case of Mr and Mrs L as teachers, and in the case of Mrs H-P because she was employed as a child care worker. However the continuation of the plaintiffs’ employment could only be affected by the removal of the children and the adverse CCIU report if the reports were disclosed to an employer or prospective employer by the Screening Unit. For the reasons discussed above, the Screening Unit decision to disclose the report is the relevant administrative act. In the case of Mr and Mrs L the CCIU report did not adversely affect their employment. Rather it was decisions made by the Department of Education with respect to Mr L having been sent the report which was the relevant administrative decision. The decisions of the Department are not challenged for lack of procedural fairness, unreasonableness or irrationality in these proceedings.
Finally the plaintiffs submit in the alternative they are entitled in law to procedural fairness by reason of the departmental statements made in Circular 131 to the effect that they would be accorded procedural fairness. That submission must be rejected.
In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam[72] McHugh and Gummow JJ explained:
[61]Used in some strict sense, or as an antonym to ‘illegitimate’, the term ‘legitimate’ is apt to suggest entitlement in law to some final outcome. However, the term has been used in the authorities not in that sense, but with a lesser meaning of ‘reasonable’. Here too care is needed. Not every expectation or hope which might be entertained by a ‘reasonable man’ will necessarily attract the doctrine. This qualification was noted by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service.
[62]The term ‘expectation’ also has its uncertainties. It is used in various senses in the law. A beneficiary may be said, as an aspect of the trust institution, to be entitled to expect that the trustee will observe the terms of the trust and otherwise act in the interests of the beneficiary. The reasonable expectation of a purchaser of the benefit from the increase in value of land the subject of an uncompleted instalment contract may support the intervention of equity to relieve against forfeiture of the contract. These expectations are founded in legal, particularly equitable, precepts and principles rather than in individual aspirations shown by the evidence in any case. Expectations of reliance also inform the importance of a duty of care in utterance by way of information or advice. In the field of estoppel, notions of expectation are often linked to reliance and detriment. Here the emphasis is upon the state of mind of the individual.
(citations omitted)
[72] (2003) 214 CLR 1 at 20, [61]-[62].
Hayne J said: [73]
[111]The applicant contends that, because the Department told him that it wished to contact the children’s carer, but neither contacted the carer nor told the applicant that it would not, he was denied procedural fairness. It was said that he had been denied a ‘legitimate expectation’ of a fair procedure: the expectation being that the Department would do what it said it would do. But the focus of inquiry must remain on the fairness of the procedures adopted by the Department. That is the ground which the applicant advanced as the basis for the relief sought. If the procedure was fair, reference to expectations, legitimate or not, is unhelpful, even distracting.
…
[121]Used in this way, legitimate expectation is a phrase which poses more questions than it answers. What is meant by ‘legitimate’? Is ‘expectation’ a reference to some subjective state of mind or to a legally required standard of behaviour? If it is a reference to a state of mind, whose state of mind is relevant? How is it established? These are questions that invite close attention to what is meant by legitimate expectation and what exactly is its doctrinal purpose or basis. Not all are dealt with explicitly in Teoh. At the least they are questions which invite attention to the more fundamental question, posed by McHugh J in Teoh, of whether legitimate expectation still has a useful role to play in this field of discourse now that it has served its purpose in identifying those to whom procedural fairness must be given as including more than persons whose rights are affected.
[73] (2003) 214 CLR 1 at 35, [111]; 38, [121].
In Minister for Immigration and Border Protection v WZARH[74] Kiefel, Bell and Keane JJ upheld a finding that an ‘offshore entry person’ as defined by s 5(1) of the Migration Act 1958 (Cth) had been denied procedural fairness on his application for a protection visa. However their Honours rejected the proposition that the Minister’s obligation was founded on a statement about the procedure which would be adopted made by a departmental reviewing officer. In the Full Federal Court,[75] Flick and Gleeson JJ held that the appellant had a legitimate expectation either that the independent reviewer who reviewed his case would make a recommendation to the Minister or that if someone other than the independent reviewer was going to make the recommendation that they would conduct an oral hearing. Kiefel, Bell and Keane JJ said of that alleged foundation for the obligation: [76]
[28]The use of the concept of ‘legitimate expectation’ as the criterion of an entitlement to procedural fairness in administrative law has been described in this Court as ‘apt to mislead’, ‘unsatisfactory’ and ‘superfluous and confusing’. In Lam, Hayne J observed that the concept ‘poses more questions than it answers’, such as ‘[w]hat is meant by ‘legitimate’?’ and ‘[i]s ‘expectation’ a reference to some subjective state of mind or to a legally required standard of behaviour?’ and ‘whose state of mind is relevant?’ and ‘[h]ow is it established?’ Hayne J concluded that ‘reference to expectations, legitimate or not, is unhelpful’.
[29]More recently, in Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ referred to the discussion of the concept by four members of the Court in Lam, and said that:
the phrase ‘legitimate expectation’ when used in the field of public law either adds nothing or poses more questions than it answers and thus is an unfortunate expression which should be disregarded.
[30]The position has been made sufficiently clear that it is not necessary for this Court to engage again in discussion of the concept of ‘legitimate expectation’ in administrative law or to trace its progress from its controversial origins, to its tentative acceptance in Australian law, to its rejection as a touchstone of the requirement that a decision‑maker accord procedural fairness to a person affected by an administrative decision. The ‘legitimate expectation’ of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision‑makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.
(citations omitted)
[74] (2015) 256 CLR 326.
[75] WZARH v Minister for Immigration and Border Protection (2014) 230 FCR 130.
[76] (2015) 256 CLR 326 at 334-335, [28]-[30].
The holding of the High Court is directly inconsistent with the passage of the decision of the Full Federal Court in SZSS v The Minister for Immigration and Border Protection[77] on which the plaintiffs rely. In that case the Full Federal Court said that the decision of the High Court in Lam ‘simply pivots the underlying analytical jurisprudence away from a doctrinal reliance upon legitimate expectation towards an examination of the fairness of the process’.[78]
[77] (2015) 326 ALR 641.
[78] (2015) 326 ALR 641 at 665, [92] per Rares, Perram and Griffiths JJ.
In SZSS v The Minister for Immigration and Border Protection,[79] the Full Federal Court said:
[90]There is a considerable pedigree for the proposition that decision-makers may, in some circumstances, generate an obligation of procedural fairness by its own conduct. The Privy Council’s decision in Attorney-General (Hong Kong) v Ng Yuen Shiu is a notable example. In that case, the immigration authorities had announced a policy in relation to illegal immigrants who had become settled in urban areas to the effect that they would not be removed without being interviewed and that each case would be ‘treated on its merits’. The Privy Council concluded that those words were sufficient to generate an obligation on the State to allow time to make representations. There, an illegal immigrant had been interviewed, but had not been asked why he believed he should be permitted to remain in Hong Kong and this failure was sufficient to constitute a denial of procedural fairness. A similar result was soon arrived at in Australia: Haoucher v Minister for Immigration and Ethnic Affairs.
[91]The reasoning in Ng Yuen Shiu was premised on the concept of legitimate expectation. The High Court moved away from that doctrine as a useful tool of analysis in Lam. By indicating that, however, the Court was not suggesting that representations or conduct by decision-makers could have no effect on the rules of procedural fairness. Rather the focus has now shifted instead to whether departure from a representation might render the process unfair. In a well-known passage, Gleeson CJ put it this way:
… what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation … In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
[References omitted]
[92]That statements made by a decision maker might result in procedural unfairness was reaffirmed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural Affairs (‘NAFF’). There the Tribunal had informed an applicant that it would write to him about inconsistencies in his evidence before deciding the matter but then failed to do so: see also WZARH v Minister for Immigration and Border Protection. We reject, therefore, the Minister’s submission that Lam has the consequence that the statements made on his behalf could not generate a duty to afford procedural fairness. Lam does not reverse decisions such as Ng Yuen Shiu, Annetts v McCann or Haoucher, as NAFF shows. It simply pivots the underlying analytical jurisprudence away from a doctrinal reliance upon legitimate expectation towards an examination of the fairness of the process.
(citations omitted)
[79] (2015) 326 ALR 641 at 664-665, [90]-[92] per Rares, Perram and Griffiths JJ.
The Full Federal Court was correct to observe that Lam focused the relevant enquiry on whether the procedure was fair but importantly the obligation to accord procedural fairness did not arise from the statement but from an underlying statutory requirement. Accordingly it follows that the obligation to accord procedural fairness and the scope of that application of that obligation is to be ascertained from the statute. The conduct of an administrative officer may affect the particular content of the duty for example if a misleading statement is made it may need to be corrected. As Gleeson CJ explained in Lam:[80]
[28]… If, by stating an intention to take a certain course, a decision-maker becomes bound to take that course, regardless of whether any disadvantage to a person affected results from a failure to take that course, then an expectation appears to become a right. The applicant’s case was not acknowledged to go so far. He was qualified by saying that it would have been sufficient for the departmental officers to have notified the applicant of their proposed change of intention. However the outcome for which the applicant contends comes very near to converting a matter of procedure into a matter of substance and a matter of expectation into a matter of right.
[80] Re Minister for Immigration and Multicultural Affairs;Ex parte Lam (2003) 214 CLR 1 at 10, [28].
Later Gleeson CJ explained: [81]
[34]… It is not in dispute that, regardless of the letter of 7 November, the respondent was obliged to extend procedural fairness to the applicant. And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation.
[81] Re Minister for Immigration and Multicultural Affairs;Ex parte Lam (2003) 214 CLR 1 at 12, [34].
Gageler and Gordon JJ in Minister for Immigration v WZARH[82] explained:
[82] (2015) 256 CLR 326 at 341, [55]-[61].
[55]The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration.
…
[57]That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in ReMinister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam that the concern of procedural fairness is to ‘avoid practical injustice’, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where ‘[n]o practical injustice ha[d] been shown’. The absence of practical injustice in Lam lay in the fact that ‘[t]he applicant lost no opportunity to advance his case’; it was not ‘shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment’.
[58]Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court, Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
[59]There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
[60]Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.
[61]That is to highlight one of the confusions that can be introduced when the concept of ‘legitimate expectation’ is used as a basis for determining the content of procedural fairness. By focussing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given. The former is relevant only in so far as it bears on the latter. As Gleeson CJ put it in Lam:
[T]he creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.
(citations omitted)
A legitimate expectation can be no more than a reference to the principle of legality, enforced by the courts as a rule of statutory construction, that Parliament will not legislatively abrogate a right or interest, whether sourced in statute or the common law, without giving the holder of that right or interest an opportunity to be heard. The expression is however apt to mislead if it is understood as a subjective expectation, in fact, in a hearing of a particular kind arising from a statement made by an administrative officer engaged upon a statutory function. Neither Ministers nor the public servants in their departments have legislative authority to add to or detract from the law they administer. Moreover they do not act in a personal capacity rather they act on behalf of the Executive government which they have no authority to burden with public duties which do not otherwise exist in law. Ultimately therefore it is always necessary to identify a right or interest which is procedurally protected by the statute authorising the impugned decision.
If, contrary to my earlier holding, the officers of the Department who authorised the CCIU reports and then endorsed them were exercising public powers which are amenable to judicial review they were nonetheless under no obligation to afford the plaintiffs’ procedural fairness because their conduct did not adversely affect the plaintiff’s reputational or any other interest beyond that which was necessary in order to communicate the contents of the report to other officers of the Department for the purpose of discharging their public duties, functions and responsibilities under the CPA and as officers of the Department.
The Removal of the Children
The most important interest affected by the removal of a child is the child’s interest in the provision of a supportive, safe and secure home. That interest has long been recognised by the common law and is the source of the parens patriae authority of the Crown. It finds statutory expression in the objects and detailed provisions of the CPA.
Section 51 of the CPA affects that interest and therefore the exercise of the powers it confers implicitly attract the requirements of procedural fairness. In addition the considerations mandated by s 4 of the CPA must be taken into account and the procedures prescribed by s 5 of the CPA observed. At the very least, foster carers from whom children are removed have standing to seek orders requiring the Minister to comply with the express or implied obligations under s 51 of the CPA which are calculated to protect that interest.[83] Foster carers provide an important public service generally. The care of children, particularly troubled children, is a fraught undertaking. However, on the other hand I reject the contention that the bare removal of the children pursuant to s 51 of the CPA is capable of affecting the reputational interest as a carer of the person with whom the child has been placed. A bare removal does not in itself communicate a defamatory imputation.
[83] RW v Minster for Education and Child Development [2016] SASC 158.
In any decision to remove a child his or her interests and welfare must be paramount. The obligation to afford procedural fairness is not completely excluded by that consideration. Yet in some cases the circumstances may so restrict the content of that obligation that it is close to abrogated. However that will not always be the case. It would be wrong therefore to preclude and deny the right to procedural fairness.
However I hold that a failure to accord procedural fairness will not invalidate a decision to remove a child from one carer and to place him or her with another. An application to effectively reverse a placement decision by obtaining an order to return a child to a carer from whom the Minister had removed the child, must be brought in the Youth Court where the focus of the enquiry is the interests of the child and not compliance with administrative law requirements.
In this case, the State of South Australia submitted:
43.The exercise of the power contained in s 51(1)(a) is subject to three express requirements:
a. Section 51(2) requires that ‘the Minister must, if appropriate, have regard to the desirability of securing settled and permanent living arrangements for the child.’
b. Section 4(3) of the CP Act requires that the ‘child’s wellbeing and best interests’, the ‘right to be safe from harm’, the ‘right to care in a safe and stable family environment’ and the ‘opportunity … to develop to his or her full potential’, are paramount considerations.
c. Section 5(1)-(2) requires, in the making of decisions concerning where Aboriginal children will reside, that consultation is first undertaken with a recognised Aboriginal organisation (s 5(1)), that submissions arising from the consultation are considered (s 5(2)(a)), that in the absence of consultation ‘Aboriginal traditions and cultural values’ are considered, and ‘the general principle that an Aboriginal child should be kept within the Aboriginal community’ is considered.
44.Applying the principles expounded by the High Court in Project Blue Sky, the Defendant contends that non-compliance with these express requirements is not intended to invalidate the placement of children. This conclusion is supported by the following features of the statutory scheme:
a. The requirements arising from ss 4(3), 5(2) and 51(2) are not expressed to be essential preliminaries to the exercise of the Minister’s powers, but standards which regulate the exercise of the power conferred by s 51 of the CP Act. By contrast the terms of s 5(1) appears to be expressed as an essential precondition. Importantly, however, s 5(2)(a) expressly then contemplates the potential breach of s 5(1) and facilitates an alternative.
b. The requirements arising from ss 4(3), 5(2) and 51(2) are couched in language that lacks a rule-like quality capable of simple identification and application; rather, they have an aspirational quality. Whilst the requirement arising from s 5(1) is more certain, the principles to be considered in the event of a breach of s 5(1), set out in s 5(2)(b) are not.
c. The inconvenience and disruption that would ensue if placement decisions could be quashed in proceedings for judicial review is inconsistent with the purposes of the CP Act.
45.For these reasons, the Defendants submit that a breach of the requirement imposed on the Minister by s 5(1) of the CP Act is not intended to result in invalidity. Understood in this way, the legislature gives effect to the intended analogy with the powers of a parental guardian; breaches of requirements in the exercise of the Minister’s powers as guardian do not invalidate those actions. However, the identification of a breach may have relevance to the ongoing care for children under the guardianship of the Minister, pursuant to a revocation or variation application brought pursuant to s 40 of the CP Act.
Those submissions should be accepted.
Conclusion
I would answer the questions as follows.
Question 1 – No
Question 2 – No
Question 3 – NoQuestion 4 – Placements of children are amenable to declaratory relief for compliance or non-compliance with the provisions of the CPA but not as to validity.
PARKER J: I agree with the reasons of the Chief Justice and the answers he proposes.
DOYLE J: I agree with the Chief Justice’s answers to the questions of law stated for the consideration of this Full Court. I agree generally with his reasons.
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