Lt v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
LT v STATE OF SOUTH AUSTRALIA
[2025] SASC 133
Judgment of the Honourable Justice McDonald
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - CHILDREN - CRIMINAL CAPACITY
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING RELIEF
This is an application for judicial review of two decisions made in the Youth Court. These were the decisions of a Youth Diversion Officer (‘YDO’) to refer two matters to a Youth Justice Co-ordinator (‘YJC’) pursuant to s 7(2) of the Young Offenders Act 1993 (SA) (‘the Act’), and a decision of the YJC to convene a family conference to deal with these offences pursuant to s 10(2) of the Act.
LT seeks orders that a writ of certiorari be issued quashing the decision of the YJC to deal with these two matters by way of a family conference, a declaration that LT had not admitted the offences, and an order that the matters be remitted back to the Youth Court for determination according to law.
No reasonable basis has been established for the relief sought. The nature of the actions taken by the YDO and YJC under the Act do not produce any foreseeable consequences or have any legal effect in respect of which the relief sought might lie. The decisions that were made did not confer on or deny LT any right, interest or legitimate expectation.
Held:
The application is dismissed.
Young Offenders Act 1993 (SA) ss 3, 4, 6, 7, 10, 11, 12, 58; Criminal Law Consolidation Act 1935 (SA) ss 134, 169; Uniform Civil Rules 2020 (SA) r 256.3, referred to.
BDO v The Queen (2023) 277 CLR 518; Ferdinands v District Court of South Australia [2010] SASC 265; Ferdinands v District Court of South Australia [2011] SASCFC 139; L v South Australia (2017) 129 SASR 180; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; RP v The Queen (2016) 259 CLR 641, applied.
LT v Police [2024] SASC 105; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; R v M (1977) 16 SASR 589, discussed.

LT v STATE OF SOUTH AUSTRALIA
[2025] SASC 133
Civil: Judicial Review
McDONALD J.

This is an application for the judicial review of two decisions made in the Youth Court. These were the decisions of a Youth Diversion Officer (‘YDO’) to refer two matters to a Youth Justice Co-ordinator (‘YJC’) pursuant to s 7(2) of the Young Offenders Act 1993 (SA) (‘the Act’), and a decision of the YJC to convene a family conference to deal with these offences pursuant to s 10(2) of the Act.
At the time that each of these decisions were made, the youth in question, LT, was 13 years of age.[1] This application raises issues of doli incapax in the context of the family conference diversionary scheme.
[1] LT’s date of birth is 28 December 2009.
LT seeks orders that a writ of certiorari be issued quashing the decision of the YJC to deal with these two matters by way of a family conference, a declaration that LT had not admitted the offences, and an order that the matters be remitted back to the Youth Court for determination according to law.
Extension of time
Pursuant to r 256.3 of the Uniform Civil Rules 2020 (SA), an action for judicial review must be commenced as soon as practicable after the decision, act, or omission the subject of the action;[2] and, in any event within six months after the decision, act or omission the subject of the action.[3]
[2] Uniform Civil Rules 2020 (SA) r 256.3(1)(a).
[3] Uniform Civil Rules 2020 (SA) r 256.3(1)(b).
As the dates of the relevant decisions were 14 and 17 February 2023, and the initiating application was not filed until 1 December 2023, LT requires an extension of time in which to bring these proceedings.
Rule 256.3(2) of the Uniform Civil Rules 2020 (SA) permits an extension of time to be granted subject to leave of the Court.
The factors ordinarily taken into account in determining an application for an extension of time for a judicial review are the length of the delay, the reason for the delay, the merits of the application and any prejudice to the respondent should the application be granted.[4]
[4] Ferdinands v District Court of South Australia [2010] SASC 265 at [19] (Gray J); Ferdinands v District Court of South Australia [2011] SASCFC 139 (Full Court).
An affidavit has been filed by LT’s solicitor in support of the application for an extension of time.[5] The affidavit sets out some of the history leading up to the filing of the Originating Notice. For current purposes, it is not necessary to descend into the detail of that history other than to note the following:
[5] FDN 2, Affidavit of Madaline Ceile Anderson dated 29 November 2023.
·On 16 June 2023, LT’s solicitor was first contacted by the Department of Human Services (Youth Justice) regarding LT, who at that time had been refused bail and was remanded in custody on an unrelated matter.
·Upon reviewing LT’s Offender History Report, LT’s solicitor became aware of previous charges that had been finalised before she had become involved.
·There then followed a period of the solicitor liaising with the Legal Services Commission, which involved obtaining opinions from counsel with respect to the appropriate avenues for reviewing previously finalised charges.
·This resulted in a Notice of Appeal being lodged in relation to other unrelated matters on 11 August 2023.[6]
·On 1 November 2023, LT’s solicitor received advice from counsel in relation to seeking an administrative review of the matters that are currently before this Court.
·On 10 November 2023, LT’s solicitor wrote to the Legal Services Commission to seek funding for the administrative review.
·On 17 November 2023, funding was approved.
·On 29 November 2023, LT’s solicitor lodged the application for review.
[6] This is now the subject of LT v Police [2024] SASC 105.
As is apparent from this brief chronology, since LT’s solicitor first became aware of his situation, she has acted conscientiously and diligently to effectively progress these and other matters involving LT’s previous interactions with the criminal justice system. Regardless of the outcome of this application, her approach to reviewing LT’s previous finalised charges, and attempting to address what were perceived to be, at least potentially, historic miscarriages of justice, should be commended.
The explanation provided for the delay is entirely reasonable.
The respondent does not oppose the granting of an extension of time, nor do they claim to be prejudiced by the delay. The application for judicial review cannot be said to be entirely without merit, particularly given the importance of ensuring that the safeguards, which are put in place for youths who enter into the criminal justice system, are maintained.
It follows that, in all of the circumstances, it is appropriate to grant the extension of time.
Factual Background
There is no dispute about the factual background leading up to the impugned decisions.
27 January 2023 offences
At about 5.28am on 27 January 2023, offenders broke into the K-Hub store on the main street of Port Augusta. The glass front door was smashed. CCTV footage was obtained from the scene, which showed the offenders breaking in. The offenders unsuccessfully attempted to open a cash register and a glass cabinet next to the registers. The offenders took several drinks from the fridge before leaving the store.
The following day, police located and arrested LT. He was wearing the same clothing as was seen to be worn by one of the offenders in the CCTV footage.
As a consequence of these events, LT was charged with aggravated serious criminal trespass,[7] and aggravated dishonestly dealing with property without the owner’s consent.[8]
[7] Criminal Law Consolidation Act1935 (SA) s 169(1).
[8] Criminal Law Consolidation Act1935 (SA) s 134(1).
On 29 January 2023, LT was granted police bail for these offences.
30 January 2023 offences
At about 6.50pm on 30 January 2023, offenders broke into the Port Augusta Cultural Centre. A window had been smashed and a security guard could hear young people yelling inside. The security guard used his telephone to record LT and three other youths exiting the building and running away. When police attended the scene, they observed that the building had been ransacked and items were strewn about. An Apple Watch that had been left at the Centre and an iPhone belonging to the Centre had been stolen. Facial recognition software was used to identify LT.
On 31 January 2023, the stolen Apple Watch was traced to a residence at Port Augusta West. Police attended at the address, searched the property and arrested LT. He was charged with aggravated serious criminal trespass,[9] and aggravated dishonestly dealing with property without the owner’s consent.[10]
[9] Criminal Law Consolidation Act 1935 (SA) s 169(1).
[10] Criminal Law Consolidation Act 1935 (SA) s 134(1).
Police Interviews
On 31 January 2023, LT was interviewed for the 30 January 2023 offences, in the presence of his mother. LT admitted that he was with three youths who had forced their way into the building and admitted to entering after they had broken in. LT told the police that the other youths gave him the Apple Watch and iPhone, and he had taken those items to the Port Augusta West address. During the course of the interview, LT answered questions that were related to the issue of doli incapax.
On 12 February 2023, the police interviewed LT in relation to the 27 January 2023 offences. Again, this interview was conducted in the presence of his mother. LT admitted to breaking the front door/window of the K-Hub store with a scooter, in the company of a friend. He also admitted that he entered the store through the broken door/window and stole drinks from the fridge, before exiting the same way.
LT told the police that he did not know why he broke into the store, but admitted that he was aware that “breaking in” was an offence and he knew that he would be arrested if he was to commit such an offence. LT told the police that if they had been watching, he would not have done what he did as he knew that it was the wrong thing to do.
Doli incapax
The applicant was a youth to whom the doctrine of doli incapax applied. Doli incapax is a doctrine concerning the legal capacity of a child to commit a criminal offence.
As the applicant was aged 13 at the time of this offending, he was entitled to the benefit of the doctrine of doli incapax in the proceedings that are the subject of this application.
In South Australia, no child under the age of 10 years can commit an offence.[11] For children aged 10 to 13 years (that is, above the age of nine years but below the age of 14 years), the common law doctrine of doli incapax, as modified by statute, operates as a presumption that a child lacks capacity to form the mens rea and cannot, therefore, commit an offence.[12] This presumption can be rebutted by the prosecution calling evidence to prove beyond reasonable doubt that the child, at the time of engaging in the relevant conduct, knew that the conduct was seriously wrong as a matter of morality or according to the ordinary principles of reasonable people (not merely that the conduct was naughty or mischievous).[13]
[11] Young Offenders Act 1993 (SA) s 5.
[12] R v M (1977) 16 SASR 589 at 590.
[13] RP v The Queen (2016) 259 CLR 641 at [9].
Regardless of how obviously wrong the act or acts constituting the conduct may be, the presumption cannot be rebutted merely as an inference arising from carrying out that act or those acts.[14] Equally, proof that a child is of “normal” mental capacity for their age will of itself be insufficient to prove their capacity to know or understand that their conduct is morally wrong by the standard of reasonable adults.[15]
[14] RP v The Queen (2016) 259 CLR 641 at [9].
[15] BDO v The Queen (2023) 277 CLR 518 at [23].
The rationale underpinning the doctrine is that it is presumed that a child under the age of 14 is not sufficiently intellectually or morally developed to appreciate the difference between right and wrong, and consequently lacks the capacity for criminal responsibility.[16]
[16] RP v The Queen (2016) 259 CLR 641 at [8].
It is clear that had LT pleaded not guilty to the charges that he faced and proceeded to trial, it would have been necessary for the prosecution to lead evidence capable of displacing the presumption in order to prove the offences.
Statutory regime
Before turning to consider how the charges against LT proceeded, it is convenient to first set out the relevant legislative provisions.
The Young Offenders Act 1993 (SA) creates a statutory framework for the disposition of criminal allegations involving children in South Australia. Within the Act, there is an emphasis on rehabilitating youths into “useful members of the community” and on youths securing “proper realisation of their potential”.[17] Of note, s 3(2)(a) of the Act expressly recognises that “a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law”; no doubt as part of the process of rehabilitation.
[17] Young Offenders Act 1993 (SA) s 3(1).
The Act creates a number of pathways for a youth to be dealt with in the youth justice system, consistent with the policies underpinning the Act.
Part 2 of the Act creates a regime for “Minor offences”. “Minor offences” are defined as offences which, in the opinion of the police officer, should be dealt with as minor, having regard to four specified considerations. These are:[18]
·the limited harm caused by the commission of the offence;
·the character and antecedents of the youth;
·the improbability of the youth re-offending; and
·where relevant – the attitude of the youth’s parents or guardians.
[18] Young Offenders Act 1993 (SA) s 4.
Division 1 of Part 2 of the Act divides the powers of the Court into “Informal cautions”[19] and “More formal proceedings”.[20] A necessary prerequisite before either route can be embarked upon, is that the youth has admitted “the commission of a minor offence”.
[19] Young Offenders Act 1993 (SA) s 6.
[20] Young Offenders Act 1993 (SA) s 7.
In the event that a police officer is of the opinion that the matter does not warrant any formal action under the Act, pursuant to s 6, a youth may be informally cautioned against further offending and that will end the proceedings. Relevantly, to the arguments on this application, an informal caution cannot be used in any subsequent judicial proceedings.[21] It is as though the offence never took place.
[21] Young Offenders Act 1993 (SA) s 6(3)(b).
Section 7 provides for “More formal proceedings” for minor offences. Under this section, a police officer has three options available, those being: the administration of a formal caution, notifying a Youth Justice Co-ordinator so that a family conference may be convened, or for a charge to be laid before the Court.
It is to be emphasised that the power under s 7(1)(b) of the Act is not for the police officer to convene a family conference, but rather that they:
… may notify a Youth Justice Co-ordinator of the admission so that a family conference may be convened to deal with the matter; …
(Emphasis added)
In the event that any of the options under s 7 are utilised, the proceedings are “admissible as evidence of prior offending in subsequent proceedings relating to offences committed before the youth reached 18 years of age but any offences so dealt with will be regarded as of minor significance”.[22] It follows that, unlike offences that are dealt with by a s 6 informal caution, matters dealt with under s 7 potentially have an ongoing (albeit limited) impact on a youth, until they reach the age of 18.
[22] Young Offenders Act 1993 (SA) s 58(2).
Section 7(2) relevantly provides that before a police officer notifies a YJC of an admission made by a youth for the purpose of convening a family conference, the officer should explain to the youth:[23]
(i)the nature of the offence and of the circumstances out of which it is alleged to arise; and
(ii)that the youth is entitled to obtain legal advice; and
(iii)that the youth is entitled (irrespective of whether he or she exercises the right to obtain legal advice) to require that the matter be dealt with by the Court; …
[23] Young Offenders Act 1993 (SA) s 7(2)(a).
In addition (in the event that the youth does not require the matter to be dealt with by the Court), “the officer should put the admission into written form and, if possible, get the youth to sign the admission”.[24] If practicable, any explanation given to a youth or the signing of an admission should take place in the presence of a guardian of the youth or, if a guardian is unavailable, an adult person nominated by the youth who has a close association with, or has been counselling, advising or aiding the youth.[25]
[24] Young Offenders Act 1993 (SA) s 7(2)(b).
[25] Young Offenders Act 1993 (SA) s 7(3).
Division 3 of the Act provides for the convening of a family conference. Pursuant to s 10(2), it is the responsibility of the YJC to fix a time and place for the family conference and to issue a notice to the youth, requiring them to attend at that time and place. The YJC is also required to invite other persons to attend at the family conference as stipulated under the Act, or others “whom the [YJC], after consultation with the youth and members of the youth’s family, thinks appropriate to attend the conference at that time and place”.[26]
[26] Young Offenders Act 1993 (SA) s 10(2).
Section 11 sets out how a family conference is to be constituted:
11—Family conference, how constituted
(1)A family conference consists of—
(a)     a Youth Justice Co-ordinator (who will chair the conference); and
(b)     the youth; and
(c)     such of the persons invited to attend the conference as attend in response to that invitation; and
(d)     a representative of the Commissioner of Police.
(2)A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend in response to that invitation.
(3)A decision by a family conference is not however to be regarded as validly made unless the youth and the representative of the Commissioner of Police concur in the decision.
(4)A youth is entitled to be advised by a legal practitioner at a family conference.
(5)If a family conference fails to reach a decision, the Youth Justice Co-ordinator must refer the matter to the Court and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference.
Section 12 of the Act provides for the powers of the family conference. These are to:
a)administer a formal caution;
b)require the youth to enter into an undertaking to pay compensation;
c)require the youth to enter into an undertaking to carry out community service;
d)require the youth to enter into an undertaking to apologise;
e)require the youth to do anything else that may be appropriate in the circumstances of the case.
If a youth fails to attend a family conference, or does not comply with a requirement of the family conference or an undertaking, the police may lay a charge before the Court,[27] however, it is discretionary as to whether that occurs or some other course is adopted.
[27] Young Offenders Act 1993 (SA) s 12(8).

In the event that a youth complies with the requirements of the family conference, they cannot be prosecuted for the offence.[28]
[28] Young Offenders Act 1993 (SA) s 12(10).
LT’s charges diverted to a family conference
On 14 February 2023, the YDO reviewed the two files. She determined that, given the seriousness of the offences, an informal caution was not suitable. The YDO then considered whether it was appropriate for the matters to be diverted to a family conference.
In an affidavit provided for this application, the YDO explained “[i]f during the review process, it is clear that a youth does not have the capacity to understand what they did was wrong, I will not divert the matter, and will instead refer the matter to prosecution for further adjudication”.[29] The YDO determined that it was appropriate for the matter to be dealt with by way of a family conference. It is, therefore, implicit in that decision that the YDO had regard to the issue of doli incapax.
[29] FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [6].
It only, however, became apparent that doli incapax was a consideration in determining whether to divert LT to a family conference on the receipt of the affidavits filed for these proceedings. The referrals to the YJC made no reference to this issue, nor to whether there had been compliance with s 7(2) of the Act. The proforma referrals completed by the YDO do not require the provision of this information. This is an unfortunate oversight, given the importance of these matters. It may be that consideration should be given to redrafting the referral forms, if that has not occurred already.
In arriving at that decision in respect of the 27 January 2023 offences, the YDO took into account LT’s admissions to the offences, his age and antecedent history. In relation to the 30 January 2023 offences, the YDO considered LT’s admissions, his age, his antecedent history and the fact that the stolen iPhone and Apple Watch had been returned to the victims.
Consistent with her usual practice, the YDO believes that in arriving at this decision, she would have had regard to the facts of charge, LT’s admissions, his antecedent history and the investigating officer’s notes.[30] Having made that decision, the YDO created diversion requests and charge withdrawal applications in relation to the two files, on the basis of the proposed referral of the matters to a family conference.
[30] FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [8].
As the matters involved major indictable offences, the diversion requests were addressed to the Youth Justice Manager (‘YJM’) for consideration and approval.[31] On 15 February 2023, the YJM approved the request that the charges be referred to a family conference.
[31] FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [9].
On 17 February 2023, the YDO sent notices to LT’s mother advising her of the decision to divert the charges, and, on that basis, the bail agreements that had previously been in place were revoked. On that same date, the YDO completed two separate referrals to the YJC and the general Family Conference Team inbox.[32] The YDO had no further involvement with these matters after this date.
[32] Two “South Australia Police Referral to a Youth Justice Co-Ordinator”, FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at SKS-6 and SKS-7.
On 12 April 2023, the allocated YJC made contact with LT’s mother to discuss the convening of the family conference. LT’s mother advised that LT understood the family conference process as he had attended at previous family conferences.
The family conference took place at the Port Augusta Magistrates Court on 2 May 2023. In attendance was the YJC, LT and his mother, and a representative of the Commissioner of Police, Sergeant Rachael Bowles.
Both the YJC and Sergeant Bowles have provided affidavits setting out their recollection, or in the absence of a recollection, their usual practice, in respect of the family conference.
The YJC described LT as “hard to engage during the Family Conference”, however, she had “no concerns” that LT did not understand the Family Conference process.[33] Similarly, Sergeant Bowles said that she recalls making an assessment at the family conference about whether LT understood what he had done was wrong. She did not think that he “did not understand what he had done was wrong”.[34] She explained that if she had formed the contrary view, she “would have asked for the Family Conference to be stopped”.[35]
[33] FDN 13, Affidavit of Vanessa Jane Wigg dated 24 January 2024 at [8].
[34] FDN 11, Affidavit of Sergeant Rachael Eileen Bowles dated 24 January 2024 at [4].
[35] FDN 11, Affidavit of Sergeant Rachael Eileen Bowles dated 24 January 2024 at [4].
In relation to the 27 January 2023 offending, the outcome of the family conference was that LT made an undertaking to write an apology letter to K-Hub by 16 May 2023. This outcome was put in writing and signed by the YJC, LT and Sergeant Bowles. LT complied with that undertaking.
In relation to the 30 January 2023 offending, the outcome of the family conference was that LT made undertakings to perform 12 hours of community service by 2 August 2023, and write two letters of apology to the Port Augusta Cultural Centre and the victim of the theft of the Apple Watch by 16 May 2023. This outcome was also put in writing and signed by the YJC, LT and Sergeant Bowles. LT complied with these undertakings.
Issues raised by the applicant
Underpinning this application are a number of complaints about the manner in which the decisions were made that resulted in LT’s charges being diverted to a family conference. It was contended that the consequences of making a decision to refer a youth down this path are significant in that it involves first a finding of an admission of guilt and results in a family conference which, as I have mentioned, is then admissible “as evidence of prior offending in subsequent proceedings relating to offences committed before the youth reached 18 years of age…”.[36]
[36] Young Offenders Act 1993 (SA) s 58(2).
The failure to have regard to doli incapax
The primary issue raised by the applicant was that the YDO failed to satisfy herself to the requisite degree that the presumption of doli incapax had been rebutted.
It was contended that in order for it to be established that a youth who is doli incapax has admitted an offence, it is incumbent on the police to ensure that the admission is to all elements of the offence, including that the youth appreciated the moral wrongness of the act that they had undertaken.
It was submitted that there was insufficient evidence available to the YDO for her to have been satisfied that the presumption had been rebutted, in that the comments made by LT as set out in [20]-[22] do not meet the standard required by the authorities.
The failure to comply with s 7(2) and s 7(3) of the Act
A subsidiary matter relied upon by the applicant, was a contention that the police had not complied with s 7(2) and s 7(3) of the Act. In support of this argument the applicant referred to the two notices that referred LT to the YJC for the purpose of a family conference.[37] In those notices there is no reference to the YDO (or any other police officer) explaining to LT:
a)the nature of the offence and the circumstances out of which it is alleged to arise; and
b)that he is entitled to legal advice; and
c)that he is entitled to require that the matter be dealt with by the court.
[37] FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at SKS-6 and SKS-7.
In addition, it was submitted that there was no attempt to have LT sign the admissions as required by s 7(2)(b) of the Act.
It was the applicant’s submission that the non-compliance with the Act contributed to the “unreasonable or irrational” decision to direct the matter to a family conference.
Observations about the issues raised by the applicant
Although for reasons that will become apparent, it is ultimately not necessary to determine the question of whether the impugned decisions were unreasonable, irrational or affected by legal error as contended by the applicant, I make some observations about the basis of this application for judicial review.
There is a legal presumption that a discretionary power conferred by a statute must be exercised reasonably, in the legal sense of the word.[38] A standard of legal reasonableness “does not involve substituting a court’s view as to how a discretion should be exercised for that of a decision-maker”.[39] It requires more than even “emphatic disagreement” with the impugned decision.[40] Courts are “conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power”.[41] The test for unreasonableness is “necessarily stringent”[42] and includes that a decision may be regarded as unreasonable if no reasonable person could have made it.
[38] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29], [63], [88]-[92].
[39] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].
[40] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34].
[41] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].
[42] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11].
It is apparent from this brief recitation of principles relating to the question of an assessment of “unreasonableness”, that the applicant’s arguments tend to focus on the question of the merits of the decisions as is evidenced by the use of terms such as “the sufficiency of the evidence”, or “satisfied to the requisite degree”.
Central to the complaint about LT’s diversion to a family conference was the finding by the YDO that he had admitted to the offences. The criticism of that finding was about the sufficiency of the evidence upon which it was made, reflecting that it is, in fact, an argument about the merits of the decision. This falls well short of laying the foundation for an argument that the actions/decisions were “unreasonable or irrational”.
It appears that there is no contest that an assessment of whether a youth with the presumption of doli incapax has admitted an offence, involves a determination of whether the presumption has been rebutted; in other words, in addition to the subjective and objective elements of the offence, it must be established that the youth understands that the conduct which constituted the offence was seriously wrong by normal adult standards. It is evident that was appreciated by the YDO in that she deposed that, as part of the process that she engages in to determine whether a matter is suitable for a family conference, she considers whether a youth has the capacity to understand what they did was wrong.[43] Sergeant Bowles also turned her mind to the issue during the family conference.
[43] FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [6].
As I have said, there is however, a more fundamental problem with this application for judicial review, which means that there is no need to consider this issue further.
Are the impugned decisions amenable to judicial review?
The respondent has raised a threshold issue relating to whether the impugned decisions are amenable to judicial review. It was contended that the actions are not amendable to judicial review on the basis that they are not final, operative or substantive in nature.
It should be recalled that the decisions that are the subject of this application are the decisions of the YDO to refer the matter to a YJC pursuant to s 7(2), and the decision of the YJC to convene a family conference pursuant to s 10(2). It was submitted by the respondent that the action and/or decision of the YDO involved no more than a statutory discretion to notify the YJC under s 7(1) of the Act. All that did was set in motion the convening of a family conference and provided for the possibility that a Family Conference Agreement will be reached. Upon receiving a notification, the YJC is required to convene a family conference by fixing a time and date for the conference, notifying the youth and inviting other people as prescribed or considered appropriate. That is the extent of the role of the YJC prior to the conference.
It was the respondent’s submission that, when properly considered, the relevant actions and/or decision of the YDO and YJC were of a type that are not open to judicial review.
It was submitted that, in those circumstances, the impugned decisions were akin to interlocutory decisions. That is that they were determinations made along the way to reaching a final decision.
Legal principles
The right to a judicial review is not absolute. As I have said, judicial review is available to test the legality of a decision and not its merits; the Court is not authorised to ask whether a decision was a ‘good’ decision. It asks only whether the decision has been properly made, in accordance with the law.
On review, if a court finds that a decision has been made unlawfully, the powers of the court will generally be contained to setting the decision aside and remitting the matter to the decision-maker for reconsideration according to law.[44] It follows from this, that there will be circumstances in which, although a decision is not the correct or preferable decision on the facts, it will not be open to judicial review. Conversely, there may be situations where a decision is correct or preferable but may be set aside because it is subject to legal error. In order to be amenable to judicial review an administrative act must not only be an exercise of public power but must also affect a right, obligation, interest or privilege.[45]
[44] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
[45] L v South Australia (2017) 129 SASR 180 at [155]-[156].
The object of a judicial review is to keep in check the powers of public authorities as they impact on the rights of individuals. In a paper “Judicial Review Rights”, French J discussed the purpose of a judicial review in the context of the Refugee Convention. His Honour observed:[46]
Judicial review is concerned with the supervision by courts of decision-making by public officials. It is about administrative justice. More people encounter that kind of justice than the curial variety. There is a myriad of decisions that governments and public authorities make which affect the lives and wellbeing, the freedoms and opportunities of many.
For those claiming Australia’s protection under the Refugee Convention, the quality of administrative jurisdiction may mean the difference between life and death or liberty and imprisonment.
[46] Justice RS French, ‘Judicial Review Rights’ (2001) 28 Australian Institute of Administrative Law Forum 33 at 33.
In order to determine whether the relevant decisions are amenable to judicial review, it is necessary to focus on the role that the “decision-maker” played in the overall process.
The decision of the Youth Diversion Officer to refer the matter to a Youth Justice Co-ordinator per s 7(2) of the Young Offenders Act 1993 (SA)
The role of the YDO was to consider the two relevant files and arrive at a view as to the appropriate path through the youth justice system for LT. She determined to recommend that LT be referred to a family conference. She did not however make the final decision about whether that was to occur. Whilst the YDO prepared the relevant paperwork, any decision that was made was made by the YJM.
Even that decision was no more than the exercise of a discretion by the YJM to notify a YJC under s 7(1) of the Act. All that did was set in motion the convening of a family conference and provided for the possibility that a Family Conference Agreement could be validly reached.
The YDO did no more than direct the LT towards a particular path through the system, which may have resulted in any number of possible outcomes.
The decision of the Youth Justice Co-ordinator to convene a family conference to deal with these offences per s 10(2) of the Young Offenders Act 1993 (SA)
Similarly, under the statutory scheme, the role of the YJC in the context of a family conference has no impact on the rights, liabilities or interests of the youth; the role is in fact very limited.
Upon receiving a notification, the YJC is required to convene a family conference by fixing a time and date for the conference, notifying the youth and inviting other people as prescribed or considered appropriate.[47] That is all that the YJC is required to do prior to the conference.
[47] Young Offenders Act 1993 (SA) s 10(2).
There is no substantive impact on a youth’s rights, obligations, interests or privileges by the decision to convene a conference. There are no direct consequences for the youth if they fail to attend. The police would simply be left to determine what action should be taken in relation to the offending, which would effectively remain the same options that were available, had the family conference not been convened.
In the event that a family conference takes place, the YJC takes on the role of the Chair at the meeting. That is the extent of their role. The Act is clear that the power to make a decision at a family conference is conferred upon the “family conference” not the YJC. It is also not inevitable upon convening a family conference, that a valid and operative decision will be made. Rather, the convening of the conference only creates a possibility that, at its conclusion, there will be a Family Conference Agreement.
It is also significant, that those with control over whether a Family Conference Agreement is reached are the youth and the representative of the Commissioner of Police. In order for a valid decision to be made at a family conference, the Act requires that the youth and the representative of the Commissioner of Police agree to the decision.
There are two consequences resulting from this, namely that it is not necessary for the YJC to concur with any decision, and an outcome cannot be imposed on a youth, they must agree with it.
Properly considered, in the context of the family conference, the role of the YJC is more accurately characterised as facilitative rather than determinative or adjudicative in nature.
Conclusion
In my view, no reasonable basis has been established for the relief sought. The nature of the actions taken by the YDO and YJC under the Act do not produce any foreseeable consequences or have any legal effect in respect of which the relief sought might lie. The decisions that were made (in so far as they can be categorised as decisions) did not confer on or deny LT any right, interest or legitimate expectation.
I dismiss the application.

[2025] SASC 133

21 August 2025