W v Director-General, Community Services
[2015] ACAT 14
•9 February 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
W v DIRECTOR-GENERAL, COMMUNITY SERVICES
(Administrative Review) [2015] ACAT 14
AT 13/95
Catchwords: ADMINISTRATIVE REVIEW - Children and Young People Act – out of home carer – kinship carer – specific parental authority – suitable entity – reviewable decision – characterisation of decision to remove children from care – decision ending placement is not a decision refusing to grant authorisation – decision to vary or revoke authorisation is reviewable – decision to grant authorisation is machinery – placement decision is not reviewable – Human Rights Act – not unlawful or arbitrary – right to fair trial does not create freestanding right to process otherwise unavailable – section 30 Human Rights Act – rule of interpretation – legislative purpose – best interests of the children
Legislation cited: ACT Civil and Administrative Tribunal Act 2008
ss 9, 32, 56,
68
Children and Young People Act 2008 ss 8, 61, 62, 63, 72, 349, 350, 508, 509, 511, 512, 516, 839,
Children and Young Persons (Care And Protection) Act 1998 (NSW) s245(1)(c)Human Rights Act 2004 ss 11, 12, 21, 30
Legislation Act 2001 s 180
List of cases cited: Allatt & ACT Government Health Directorate [2012] ACAT 67
AMS and AMT v Department of Family and Community Services [2013] NSWADT 140
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Law Society of the ACT & Treasury Directorate and NRMA Insurance [2013] ACAT 36
Momcilovic v The Queen (2011) 245 CLR 1; (2011) 85 ALJR 957
Peters & Environment and Sustainable Development Directorate [2013] ACAT 3
Re Application for Bail by Islam (2010) 244 FLR 158
Thomson v ACT Planning and Land Authority [2009] ACAT 38
V & OA v Director-General, Department of Community Services [2009] NSWADT 209
Tribunal: Professor P. Spender – Presidential Member
Ms M-T. Daniel – Member
Date of Orders: 9 February 2015
Date of Reasons for Decision: 9 February 2015
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 13/95
BETWEEN:
W
Applicant
AND:
DIRECTOR-GENERAL,
COMMUNITY SERVICES
Respondent
TRIBUNAL: Professor P. Spender – Presidential Member
Ms M-T. Daniel – Member
DATE: 9 February 2015
ORDER
1.Upon the Tribunal finding that it lacks jurisdiction to make the orders sought, the application for review is dismissed.
………………………………..
Professor P. Spender
Presidential Member
for and on behalf of the Tribunal
REASONS FOR DECISION
These reasons explain why the Tribunal considers that it lacks jurisdiction to review the decision made by the respondent regarding the placement of children with the applicant as kinship carer on 11 November 2013. In summary, the Tribunal considers that the respondent’s decision was a decision regarding the placement of children under section 512 of the Children and Young People Act 2008 (CYP Act). Such a decision is not a reviewable decision under the CYP Act, therefore the tribunal has no jurisdiction to make the orders sought by the applicant.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current members. Pursuant to orders made under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) and various provisions in the CYP Act, the names of the applicant and the relevant children are referred to by initials only. The respondent is referred to variously as ‘the respondent’ or ‘the Director-General’.
Background
This matter was commenced by an application filed by W on 9 December 2013, seeking review of a decision by the Director-General, Community Services Directorate to remove her three nieces I, E and D from her care. W had been caring for the children since June 2011, first informally and later through a kinship care arrangement under the CYP Act.
W said that the decision to remove the children from her care was made on 11 November 2013. She attached to her application for review a letter dated 11 November 2013, written by Mr Andrew Stead, a caseworker, explaining that a decision had been made for the children to be moved into another placement.
On 19 December 2013 the Director-General filed an application for interim or other orders, seeking that the hearing of the application take place in private and prohibiting the publication of evidence in the proceedings or publication of matters contained in documents filed in the tribunal or served in the proceedings. The Director-General sought an order permitting it to provide the tribunal with a copy of those documents considered necessary to the Tribunal’s consideration of the application (the provision of such material otherwise being potentially in contravention of secrecy provisions contained in CYP Act ). On 14 January 2014 the tribunal made orders in relation to these issues: first that the hearing conducted in relation to the matter should be in private and secondly that no person should publish any matter contained in documents filed with the tribunal or evidence given at the hearings.
The Director-General also sought an order under sections 32 and 56 of the ACAT Act that W’s application be dismissed for want of jurisdiction, on the basis that the decision to remove the children from W’s care is not a decision that is reviewable by the Tribunal. It is that application (The Section 32 Application) that is the subject of this decision.
The hearing of the Section 32 Application
The Section 32 Application was listed for hearing on 31 January 2014.
The respondent, being the moving party for the Section 32 Application, relied upon:
·the application filed 9 December 2013;
·an affidavit of Mr Stead outlining the factual background to the case and attaching relevant documentation dated 9 January 2014;
·written submissions in support of the application dated 6 January 2014; and
·written submissions in reply to the applicant’s submissions dated 30 January 2014.
The applicant relied upon:
·the application for review and attached documents dated 9 December 2013; and
·the applicant’s written submissions dated 23 January 2014.
During the course of the hearing the respondent also provided to the Tribunal two sets of documents that had been excluded inadvertently from Mr Stead’s affidavit, being the specific parental authorities in relation to E and D. [1]
[1] Exhibit R2
Mr Stead was not required to give any further evidence or be cross-examined at the hearing. The hearing was confined to submissions by the parties’ representatives in relation to the legal framework for review of a decision in relation to kinship care under the CYP Act, and the correct characterisation of the decision in this case to remove the children from W’s care.
Subsequent to the hearing on 28 February 2014 the respondent filed further written submissions and provided an affidavit of Mr Austen Kenny, the Senior Manager Care at Care and Protection Services, attaching an extract of the register of suitable entities maintained by the Director-General pursuant to section 72 of the CYP Act. The applicant filed further written submissions on 19 March 2014, and the respondent filed written submissions in reply on 28 March 2014.
Facts of this case
At the time of the hearing, the applicant was aged 42 and had five biological children aged between 17 and three years. In June 2011 she was asked to provide temporary care for her nieces I, E and D. E and D are twins who at that stage were both less than one year old. I was aged almost 2 ½ years. The children’s mother (who was the applicant’s sister) had signed a number of voluntary care agreements for the children to reside with the applicant over this period of time.
The extract from the register of suitable entities attached to the affidavit of Austen Kenny dated 28 February 2014 recorded that the applicant was approved as a suitable entity on 25 July 2011. The later extracts in the register record the applicant as having an approval date of 4 November 2012 and the approval status as ‘specific’. This is taken to be a reference to a specific parental authority as opposed to a general parental authority.
On 16 November 2011 the Director-General issued an out-of-home carer authorisation to the applicant in relation to each of the three children. A document, referred to hereafter as the ‘Out-Of-Home Carer Authorisation’, was entitled:
OUT-OF-HOME CARER AUTHORISATION
AUTHORISATION OF KINSHIP CARER
SPECIFIC PARENTAL AUTHORITY (SPA)
The Out-Of-Home Carer Authorisation proceeded:
the Director-General for the Community Services Directorate, pursuant to section 516 of the Children and Young People Act 2008 authorises [details of applicant] to exercise daily care responsibility for the below-named child or young person.
The Out-Of-Home Carer Authorisation also contained a number of conditions of authorisation as follows:
1. The above-named person has been approved as a suitable entity to exercise parental responsibility for the child or young person named on this Authorisation;
2. The decision to approve the above-named person as a suitable entity was based on the Suitability Information available at the time of making the decision. The decision to provide the approval may be changed or reversed when additional or new Suitability Information becomes known or is made available;
3. The child or young person has been placed with the above-named person in accordance with section 511 [sic] of the Children and Young People Act 2008;
4. The above-named person agrees to exercise parental responsibility and to do so subject any Court Order, Care Plan, Aboriginal or Torres Strait Islander Cultural Plan or direction of the Director General;
5. This Authority will lapse automatically when the placement ends.[2]
[2] Attachment A, affidavit of Andrew Stead dated 9 January 2014 and Exhibit R2
A comprehensive kinship assessment was undertaken by staff from the Community Services Directorate (the Directorate) on 23 March 2012. This was authored by the Assessment Unit social worker Jan Hutchison. A copy of the assessment was provided to the Tribunal in this proceeding, but appeared to be incomplete as it was unsigned and is variously dated 23 March 2012 and 24 May 2012.[3] The affidavit of Mr Stead asserted that this assessment recommended that W could care for the children in the medium term. The assessment contains no such limitation but rather simply recommends the applicant as a suitable kinship carer.
[3] Attachment B, affidavit of Andrew Stead dated 9 January 2014
The Director-General commissioned a further ‘addendum’ kinship assessment (the Addendum Assessment) in July 2012 due to concerns within the team at the Directorate as to whether the applicant would be able to meet the needs of the high number of children in her care. The Addendum Assessment was completed on 20 August 2012. The Addendum Assessment also asserted that the first assessment had recommended the applicant provide care for the children ‘in the medium term’. [4]
[4] Attachment C, affidavit of Andrew Stead dated 9 January 2014
The Addendum Assessment concluded that:
Based on the information available at this time, I am not able to make a firm recommendation regarding [the applicant’s] capacity to care for [I, D and E] over the long-term.
Whilst [the applicant] is providing adequate care for [I, D, and E] at this current time and is likely to be able to provide adequate short-term care for the children, I am concerned that based on the current information, this placement would not meet each of the children’s unique developmental and emotional needs, over the long term.
Further assessment is warranted, with consideration to the missing information as outlined previously. Further information in these areas could either strengthen the placement, or make the placement more vulnerable.[5]
[5] Attachment C, affidavit of Andrew Stead dated 9 January 2014, page 31
On 12 April 2013 the Director-General issued the applicant with a further authorisation, pursuant to section 516 of the CYP Act.[6] This authorisation as a kinship carer authorised the applicant to exercise daily care responsibility for the each of the children. The conditions of authorisation regarding specific parental authority were identical to those on the previously issued specific parental authority, even down to the reference to section 511 of the CYP Act.
[6] Exhibit R2
On 9 July 2013 E and D attended the Child at Risk Unit for developmental assessment by Dr Judith Bragg. Dr Bragg identified that the two children had significant developmental delays across all areas of development, even when adjusted for their premature birth. Dr Bragg expressed concerns about the supports needed by the applicant in caring for the number of children in her care.[7] It is not clear whether Dr Bragg had been briefed with information as to the amount of time and arrangements for the applicant’s care of the children.
[7] Attachment D, affidavit of Andrew Stead dated 9 January 2014
After receiving an email from Dr Bragg referring to the assessment,[8] Mr Stead discussed Dr Bragg’s email with the team leaders and they agreed an alternative placement should be identified to meet E and D’s special needs. A case conference was held within the Directorate on 17 July 2013 which was attended by representatives from Australian Childhood Foundation and personnel from the Directorate including from the Assessments and Therapeutic Support Unit, the Kinship Support Team and the Adoptions and Permanent Care team. A consensus was reached at the case conference that the current placement with W was not meeting the needs of the children and an alternative placement should be sought.
[8] Attachment E, affidavit of Andrew Stead dated 9 January 2014
On 29 July 2013 Mr Stead attended the applicant’s home and informed her of the results of the developmental assessment and of the Director-General’s intention to seek an alternative long-term placement.
On 25 September 2013 the Childrens Court made final Care and Protection Orders until the age of 18 years in relation to I, E and D.
On 2 October 2013 Mr Stead telephoned the applicant and advised her of this and that alternative long-term care placement would be sought.
On 10 October 2013, Mr Stead visited W’s home and explained that the Director-General did not believe that it was in the children’s best interests to remain in her care and that a team from the Directorate was working to identify new carers for the children.
A placement was identified for the children on 1 November 2013.
On 11 November 2013, Mr Stead sent a letter to W confirming the decision had been made to remove I, E and D from W’s care and outlining the reasons for this decision.[9]
[9] Attachment G, affidavit of Andrew Stead dated 9 January 2014
On 18 November 2013 Mr Stead visited the applicant’s residence to inform her that permanent carers had been identified for all three children. The applicant did not welcome this news and said that she did not want to let the children go. Mr Stead recounted that the meeting became heated as the applicant became highly emotional and aggressive.
In 19 November 2013 a further meeting was held with various personnel from the Directorate and the Australian Childhood Foundation to discuss the transition of the children to their new placement. It was decided that the children should not be left in the applicant’s care as she was likely be in a state of distress and unable to meet the children’s emotional needs due to her own distress. The participants decided that ‘one day of trauma was better than a drawn out and extended period of trauma’[10] and therefore that the children should be removed the following day.
[10] Affidavit of Andrew Stead dated 9 January 2014, [47]
On 20 November Mr Stead attended the applicant’s residence and removed the children and transported them to their new foster carers.
Key provisions of the legislation
Before considering the parties’ submissions in detail, it is useful to set out the key provisions of the CYP Act which deal with the placement of children with a kinship carer, and the review of certain decisions by the Tribunal.
What are the provisions allowing a child to live with a kinship carer?
There are various ways under the CYP Act whereby the Director-General may come to have daily care responsibility for a child or young person. Irrespective of the manner by which the Director-General comes to have daily care responsibility, section 512 of the CYP Act requires that once this has occurred, the child or young person must be ‘placed’ with an ‘out-of-home carer’ or in specified cases other suitable living arrangements must be made:
512Director-General must place child or young person with out‑of‑home carer
(1)If the Director-General has daily care responsibility for a child or young person, the Director-General must place the child or young person with an out‑of‑home carer.
(2)However, the Director-General may place—
(a)a child or young person in a health facility if—
(i)a doctor states in writing that, in his or her opinion, it is necessary for the wellbeing of the child or young person for daily care to be provided to the child or young person in the health facility; and
(ii)the Director-General is satisfied that—
(A)appropriate support is available to meet the needs of the child or young person while the child or young person is in the health facility; and
(B)those aspects of the care plan for the child or young person that can be followed while the child or young person is in the health facility will be followed; or
(b)a young person who is 16 years old or older in an independent living arrangement if the Director-General is satisfied that—
(i)the arrangement is appropriate for the young person; and
(ii)the proposed accommodation and the support available to the young person best meets the young person’s needs; and
(iii)the arrangement is consistent with the young person’s care plan; or
(c)a child or young person with the parent or guardian of the child or young person if the Director-General is satisfied it is appropriate.
(3)Subsections (1) and (2) are subject to any court order (under this Act or another law in force in the Territory) to the contrary.
(4)If the Director-General is placing an Aboriginal or Torres Strait Islander child or young person with an out-of-home carer, the placement must be in accordance with section 513.
NoteAn authorised person may, at any reasonable time, enter premises where a child or young person is living if the Director-General has placed the child or young person with an out-of-home carer under this section and the purpose of the entry is to ensure that the child or young person is being properly cared for (see s 815).
An ‘out-of-home’ carer is defined by section 508 of the CYP Act as being a ‘kinship carer’, a ‘foster carer’ for the child or young person or a ‘residential care service’. It is the provision of kinship care which is particularly relevant to the current matter. A ‘kinship carer’ is defined by section 509 as a person who is both authorised as such under section 516 and with whom the Director-General has placed the child under section 512 of the Act. This is clear from the wording of the provision:
509Who is a kinship carer?
In this Act:
kinship carer, for a child or young person, means a person—
(a)authorised by the director‑general under section 516 (Authorisation of kinship carer—specific parental authority) for the child or young person; and
(b)with whom the director‑general has placed the child or young person under section 512 (Director‑general may place child or young person with out-of-home carer).
Under section 516 of the CYP Act the Director-General may authorise a person to exercise daily care or long term care responsibility in relation to a child for the Director-General:
516Authorisation of kinship carer—specific parental authority
(1)This section applies if the director-general has daily care responsibility or long-term care responsibility for a child or young person.
(2)The director-general may authorise, orally or in writing, a family member, or significant person, of the child or young person to exercise the daily care or long-term care responsibility for the director‑general.
(3)However, the director-general may authorise a family member, or significant person, only if satisfied that the family member or significant person—
(a)is a suitable entity to exercise the responsibility for the child or young person; and
NoteSuitable entities are dealt with in s 61.
(b)agrees to exercise the responsibility for the director‑general.
(4)The family member or significant person must exercise the responsibility subject to any directions of the director‑general.
(5)An authorisation under this section has effect only during a placement of the child or young person with the family member or significant person under section 512 (Director-General may place child or young person with out-of-home carer).
Note 1Under the Legislation Act, s 180, power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision.
Note 2A decision under this section is a reviewable decision (see s 839).
It is significant to note section 516 (5), which states that an authorisation under section 516 is effective only while the child or young person is ‘placed’ with the kinship carer by the Director-General under section 512 of the CYP Act. The concept of ‘placement’ is not defined in the CYP Act. It is not clear from the legislation what placement entails as a matter of fact, nor how a decision to place or not to place a child with a certain carer is evidenced or effected.
Thus at the outset of a child being placed in kinship care, the interconnectedness of ‘placement’ (whatever that consists of) and ‘authorisation’ is evident. This relationship is somewhat circuitous: where a kinship care arrangement is contemplated, then under section 512 the child may only be placed with a person if they are a kinship carer, however a kinship carer is a person with whom the child has been placed. Similarly the definition of a ‘kinship carer’ is limited to those persons who have been authorised under section 516, and such authorisation is effective only while the child is placed with the kinship carer.
To this set of provisions one must add the requirement of ‘suitable entity’ status. A person may only be authorised under section 516 of the CYP Act if the Director-General is satisfied that that person is a ‘suitable entity’ to exercise the responsibility for that child or young person, and agrees to exercise the responsibility for the Director-General.
The CYP Act does not provide for the making of an application to be a ‘kinship carer’ as such, or for the making of an application to be granted authorisation as a kinship carer under section 516 of that Act. Nor does the CYP Act provide for the making of application for a child to be placed with a family member pursuant to section 512. The only provision in the CYP Act for the making of an application to the Director-General which would lead to the placement of a child with a family member as a kinship carer is section 62 which is the provision for the making of an application to be approved as a suitable entity.
What then is a suitable entity? Section 62 of the CYP Act provides that a person may apply in writing to the Director-General to be approved as a ‘suitable entity’. Under section 63 of the CYP Act the Director-General may approve an entity in writing as a suitable entity for a stated purpose, only if satisfied that that entity is suitable for the purpose. The relevant provisions state as follows:
61Who is a suitable entity?
In this Act:
suitable entity, for a stated purpose, means an entity approved by the Director-General under section 63 as a suitable entity for the purpose.
Examples—suitable entities for purposes stated in Act
1 family group conference facilitators—someone appointed under s 78 by the Director-General
2 kinship carers—a family member or significant person authorised under s 516 by the Director-General
3 foster care service—an entity authorised under s 517 by the director‑general
4 foster carers for a stated child or young person—someone specifically authorised under s 518 by the Director-General
5 foster carers for any child or young person—someone generally authorised under s 519 by the Director-General
6 residential care services for any child or young person—an entity authorised under s 520 by the Director-General
7 childcare service licences—the proposed proprietor and each proposed controlling person for the childcare service (see s 746)
8 research projects—the researcher and any other person who is to have contact with children or young people for the project (see s 809)
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
62Entity may apply to be suitable entity for purpose
An entity may apply, in writing, to the Director-General for approval as a suitable entity for a stated purpose.
NoteIf a form is approved under s 886 for this provision, the form must be used.
63Director-General may approve suitable entity for purpose
(1)The Director-General may, in writing, approve an entity as a suitable entity for a stated purpose if satisfied that the entity is suitable for the purpose.
Note 1Power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision (see Legislation Act, s 180).
Note 2The Director-General must establish a suitable entities register (see s 72).
(2)However, if the Director-General orally authorises a person or entity under section 516 (Authorisation of kinship carer—specific parental authority), section 518 (Authorisation of foster carer—specific parental authority) or section 519 (Authorisation of foster carer—general parental authority) in relation to a child or young person, the director‑general—
(a)may, at the same time, orally approve the person or entity as a suitable entity in relation to the child or young person; and
(b)if the Director-General approves the person or entity under paragraph (a)—must, as soon as practicable, approve the person or entity in writing.
(3)The Director-General must not approve an entity as a suitable entity for a stated purpose if—
(a)the purpose involves engaging in a regulated activity within the meaning of the Working with Vulnerable People Act; and
(b)the entity is required to be registered under that Act to engage in the activity; and
(c)the entity is not registered under that Act.
It may be seen from subsection 63(2) that, although the wording of section 516 might suggest that a decision as to suitable entity status is made in advance of a decision to authorise a person as a kinship carer for a child and a decision to place the child with that person, in some cases these three decisions are made simultaneously. It seems likely that in practice, and particularly in urgent or emergency situations, these decisions are conflated.
Section 64 and subsequent provisions of the CYP Act set out the considerations the Director-General should have regard to in making the decision to approve a suitable entity, and the processes to be followed in obtaining information to inform that decision.
Section 72 of the CYP Act then provides that the Director-General must keep a register of suitable entities which specifies the purpose for which that entity has been approved as suitable:
72Suitable entities register
(1)The Director-General must establish a register of suitable entities (a suitable entities register) for this Act.
(2)A suitable entities register must include the following details for each suitable entity:
(a)the entity’s name;
(b)the purpose for which the entity is approved;
(c)any other detail the Director-General considers appropriate.
NotePower to make a statutory instrument includes power to make different provision for different categories (see Legislation Act, s 48).
Approval as a suitable entity is only for a specified purpose. However, the level of particularity of the ‘purpose’ that is required when an approval is granted is not clear from the provisions. For example, should a particular kinship carer be approved as a suitable entity for the purpose of ‘kinship care for a specified child’ or, at a higher level of detail, for the purpose of ‘kinship carer for a specified child on a short term basis’? It can be inferred from the examples to section 61 that the ‘purpose’ for which a suitable entity is registered was contemplated by the legislature. The level of particularity of purposes will therefore vary in accordance with specific provisions of the CYP Act, although these must be interpreted in accordance with the objects and principles of the CYP Act stated in Part 1.2, notably the paramount consideration stated in section 8 as follows:
8Best interests of children and young people paramount consideration
(1)In making a decision under this Act in relation to a particular child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration.
(2)In making a decision under this Act otherwise than in relation to a particular child or young person, the decision-maker must consider the best interests of children and young people.
Note 1For the criminal matters chapters (see s 91), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person, see s 94 (Youth justice principles).
Note 2For the care and protection chapters (see s 336), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person (see s 349).
(3)To remove any doubt, a reference in any section of this Act to the best interests of a child or young person does not limit this section.
Sections 63, 512 and 516 of the CYP Act thus provide for three decisions of the Director-General which, taken together, will allow a child to be placed with a kinship carer who is authorised to exercise daily care responsibility for that child.
What are the provisions under which a change in kinship care arrangements can be made?
The next question is how does the CYP Act provide for a change or reversal of any or all of these decisions? There is no specific provision in the CYP Act for the Director-General to cancel or change a decision as to suitable entity status made under section 63, a placement decision under section 512, or a kinship care authorisation under section 516. The power to reverse, revoke or vary such decisions is sourced from section 180 of the Legislation Act 2001 (Legislation Act), and this is made clear, at least in relation to sections 63 and 516 of the CYP Act, by Note 1 to each section.
What decisions in relation to kinship care can be the subject of review by the Tribunal?
Section 9 of the ACAT Act provides that a person may apply to the tribunal for review of an administrative decision where an authorising law provides that such an application may be made. Section 68 of the ACAT Act further provides that in undertaking such a review, the tribunal has all of the powers of the original decision maker.
Section 839 of the CYP Act sets out the decisions of the Director-General made under the Act which may be reviewed by the Tribunal. A ‘reviewable decision’ is defined to mean ‘a decision mentioned in Table 839.1’. Table 839.1 makes no reference to review of a decision by the respondent to move children for which she has parental responsibility between placements. However Item 1 of Table 839.1 provides that a decision under section 516 to ‘refuse to authorise a person as a kinship carer’ is a reviewable decision.
Section 839 does not provide that a placement decision made under section 512 is reviewable, nor is there provision for review of a decision to refuse approval as a suitable entity under section 63 of the CYP Act.
The basis of the Section 32 Application.
The Director-General asserts that the decision made on 11 November 2013 was a decision under section 512 to change the placement of the children, and that there is no right to apply to the Tribunal for a review of such a decision. If that is the case, the Director-General’s application to strike out W’s application for review of the decision to remove the children from her care would seem irresistible.
The Director-General’s argument, while attractive by virtue of its simplicity, passes lightly over the factual and legal complexity of decisions made by the Director-General in such matters generally, and this case in particular.
In order to assert with any confidence that a particular decision is or is not amenable to review by the Tribunal, it is necessary to properly identify both the nature of the decision made by the Director-General in the particular case and the extent of the review jurisdiction provided to the Tribunal by the legislation.
How is the decision in this case properly to be characterised?
The Director-General submitted that in the present case, the Director-General did not refuse to authorise W as a kinship carer; rather an existing authorisation ceased to operate once the placement ended. The operative decision, it was submitted, was a decision under section 512 of the CYP Act to change the placement of the children.
The Director-General’s submission as to the legal nature of the decision of 11 November 2013 is consistent with the contemporaneous documents, the evidence of Mr Stead and Mr Kenny, and the register of suitable entities.
By contrast, the applicant submitted that the Tribunal should look to the practical effect of the action undertaken by the Director-General, as a consequence of which the applicant now has no authority to care for the children. The applicant submitted that, when viewed in this way, it was clear that the decision actually made was a decision to refuse to authorise W as a kinship carer, although it has not been reported or recorded by the Director-General in such terms. The applicant asserted that the letter from Mr Stead to W dated 11 November 2013 and the removal of the children from W’s care on 20 November 2013 evidences this alleged decision to refuse to authorise W as a kinship carer. The applicant contended that the practical effect of the action undertaken by the respondent was that W had no authority to provide care for the children.
The Tribunal is satisfied from the evidence in this case that the applicant has been determined to be a suitable entity for kinship care for her nieces and remains registered as such. An authorisation as kinship carer has been issued, and has not been revoked. However, a decision has been taken that it is not in the best interests of the children to be placed with the applicant on a long term basis due to the developmental needs of the children and the applicant’s responsibility for five children of her own.
The respondent asserted that deciding a placement pursuant to section 512 of the CYP Act involves deciding where it is best for a child to reside at a particular point in time. Considerations under section 349 of the CYP Act (what is in the best interests of the child?) and section 350 (the care and protection principles) must be taken into account. The placement decision, argued the respondent, necessarily involves considering all the relevant circumstances, some of which may not be relevant to authorising a person under section 516 of the CYP Act.
That this is a decision about placement of the children is evidenced by the meetings between the applicant and various officers of the Directorate, reports of the meetings of the officers of the Directorate, and the reports of professionals such as Dr Bragg. The applicant did not challenge that Mr Stead on behalf of the Director-General advised her on 10 October 2013 that the Director-General did not believe it was in the children’s best interests to remain in her care. The letter which the respondent argued amounts to this decision states as follows:
I am writing to you in regards to the decision made by Care and Protection Services in relation to the placement of [I, E and D] in your care. Specifically I seek to provide you with a statement of reasons regarding the decision made by Care and Protection Services that it was no longer in the best interests of [I, E, and D] to remain in your care.[11]
[11] Attachment G, affidavit of Andrew Stead dated 9 January 2014, page 1
The Tribunal finds that the decision is correctly characterised as a decision under section 512 of the CYP Act regarding the placement of the children, as enabled by section 180 of the Legislation Act.
What is encompassed by the right to merits review provided in relation to a decision under s.516?
A decision to refuse to grant authorisation under section 516
Table 839.1 provides a right to seek review by the tribunal of a refusal to grant authorisation under section 516. Both parties agreed that there is clearly a right to seek review by the tribunal by a refusal by the Director-General to grant authorisation in the first instance.
A decision to vary or revoke an existing authorisation under section 516
The respondent submitted that the right to review decisions under section 516 does not extend to providing a right to review a decision to ‘revoke’ an existing authorisation. This was argued to be a straightforward matter of statutory interpretation, because the word ‘revoke’ is referred to in other parts of Table 839.1 in relation to other provisions, but is not referred to in relation to section 516.
The Tribunal does not adopt this interpretation. It is well accepted that where a decision under a provision amenable to review is varied or revoked utilising section 180 of the Legislation Act, the subsequent decision has effect as a decision under the original provision and is thereby also subject to review. While the use of the word ‘revoke’ in Table 839.1 might raise some questions, it should be noted that, where relevantly appearing in Table 839.1, this is a specific reference to other provisions in relation to foster carer authorisation. For such authorisations there is separate process and power outlined for revocation of authorisation, such that the revocation occurs under that statutory provision and not as a result of 180 of the Legislation Act. Further, to adopt the interpretation urged by the respondent would result in a situation where review by the tribunal could be entirely excluded by the making of a decision to grant authorisation, followed by a decision to revoke authorisation. For these reasons, the Tribunal is satisfied that the right to review of decisions under section 516 of the CYP Act extends to decisions to vary or revoke an existing authorisation.
A decision to refuse to place a child with a kinship carer, or change an existing placement under section 512
The Director-General submitted that there is no provision in the CYP Act, either in Table 839.1 or elsewhere, for review by the Tribunal of a ‘placement’ decision. This is clear.
The respondent further submitted that the right to review provided in relation to section 516 of the CYP Act does not extend to the review of a decision to change a placement even though this decision, through the operation of subsection 516(5), ceases the legal effect of the authorisation that has been granted.
It was submitted on behalf of the applicant that decisions of government agencies are routinely subject to administrative review and a government agency should not be given unfettered discretion in relation to certain decisions. The applicant further argued that it is difficult to conceive that a decision to remove children from a kinship carer would not be subject to review. The applicant argued that the Tribunal should prefer an interpretation of the legislation that is more compatible with human rights, in particular the protection of the family and children in section 11 of the Human Rights Act 2004 (HRA) and the right not to have one’s family interfered with unlawfully or arbitrarily under section 12 of the HRA. It was submitted that an interpretation which protects these rights but is still compatible with the purpose of the CYP Act (as is required by section 30 of the HRA), would be to treat section 516 as a ‘gateway’ through which the related decisions as to ‘suitable entity’ status and ‘placement’ may be reviewed.
The applicant argued that the respondent’s interpretation allows Director-General to interfere with families with extremely limited oversight, especially once final Childrens Court orders have been obtained. For example, the Director-General may break apart the family unit by removing the children from the applicant, their next of kin. In reply, the respondent argued that the Director- General’s decision to place a child must be exercised in accordance with the principle that the paramount consideration is the best interests of the child. The respondent emphatically argued that the tribunal’s power could not extend to usurping the role of the Director-General in relation to the placement of a child in need of care and protection
The respondent argued that the interpretation urged on behalf of the Director-General was equally consistent or compatible with rights under the HRA and should be adopted.
In relation to the HRA, the applicant relied on UK authorities which give a broad interpretation of the UK equivalent of section 12 of the HRA. In the current matter, there is no evidence of unlawful or arbitrary interference with the family or of the alleged ‘absolute discretion’ exercised by the respondent given that the CYP Act stipulates the relevant considerations that must be taken into account by the respondent.
Further, the applicant argued that compliance with section 21 of the HRA requires that administrative review be available which allows the tribunal to step into the shoes of the decision maker and consider whether children should be placed with the applicant. Although the respondent asserted that any grievances that the applicant may have about the Childrens Court orders should be raised in that court, and that the applicant had made an application there for amendment of the orders, the applicant argued that she will be deprived of a more accessible, low-cost jurisdiction in the tribunal to raise these concerns.
The Tribunal considers that it is clear that section 21 of the HRA does not create a freestanding right to a process which is not otherwise available at law to the person seeking to rely on the right. This issue was explored in some detail in the tribunal’s decisions in Thomson v ACT Planning and Land Authority[12] and Peters & Environment and Sustainable Development Directorate. [13] Section 30 of the HRA requires that, consistently with its purpose, a territory law must be interpreted in a way that is compatible with human rights. The Tribunal notes the respondent’s submission that the reference to ‘purpose’ in section 30 HRA is a reference to legislative intention which, as stated by the High Court in Momcilovic v The Queen, is:
revealed by consideration of the subject and scope of the legislation in accordance with principles of statutory construction and interpretation.[14]
[12] [2009] ACAT 38
[13] [2013] ACAT 3
[14] (2011) 245 CLR 1; (2011) 85 ALJR 957 at [170] and see also [544]
The tribunal in Allatt & ACT Government Health Directorate (Allatt)[15] adopted what it described as ‘the general approach to the interpretative task’ in cases raising the HRA. This approach was followed by the tribunal in Law Society of the ACT & Treasury Directorate and NRMA Insurance (Appeal).[16] This approach will be followed by the present tribunal and is quoted at length as follows:
71. It is now clear from judicial comment in a number of cases in the ACT, Victoria and more recently in the High Court which have examined s 30 of the Human Rights Act and its equivalents in other jurisdictions that, although the interpretive rule in s 30 of the Human Rights Act involves a process of statutory construction, it is not intended to create a “special” rule of interpretation. The Victorian Court of Appeal in R v Momcilovic[19] held that the words “consistently with [its] purpose”, in s 32(1) of the Charter of Human Rights and Responsibilities ACT 2006 (Vic) (i.e. the Victorian equivalent of s 30 of the Human Rights Act) “stamped s 32(1) with a quite different character” to s 3(1) of the UK Human Rights Act and that “the inclusion of the purpose requirement made it unambiguously clear that nothing in s 32(1) justified, let alone required, an interpretation of a statutory provision which overrode the intention of the enacting Parliament.”
72. The Victorian Court of Appeal’s views about the interpretive obligation in s 32(1) of the Charter of Human Rights and Responsibilities ACT 2006 (Vic) were upheld by the High Court in Momcilovic v The Queen [21] (Momcilovic), although other aspects of the Court of Appeal’s decision were overturned. The majority of the High Court bench held that s 32(1) was an ordinary rule of interpretation. French CJ stated that that provision:
requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms.[17]
[15] [2012] ACAT 67
[16] [2013] ACAT 36
[17] Allatt & ACT Government Health Directorate [2012] ACAT 67 at [71]-[72], footnotes omitted
The tribunal in Allatt thereafter adopted the steps proposed by Penfold J in Re Application for Bail by Islam,[18] taking into account the High Court’s judgment in Momcilovic.
[18] (2010) 244 FLR 158
Adopting this approach, the Tribunal accepts the respondent’s submission regarding the interpretive requirements of the HRA and in particular that section 21 of the HRA requires the applicant to establish that the ending of a specific parental authority in favour of the applicant was a ‘decision’ which determined a right or obligation of the applicant. However in the present matter the specific parental authority has not ended therefore no right or entitlement is conferred by section 516 which would enliven section 21 of the HRA.
The applicant further submitted that if the Director-General’s submission as to the decisions available for review was accepted, it would be difficult to identify any circumstances in which a person could seek merits review of a decision under section 516 of the CYP Act. This was because any decision leading to a refusal or revocation of authorisation can be categorised as being either a placement decision, or a suitable entity status decision, and thus not open to review.
The Tribunal considers that this argument carries some weight.
In outlining the legal framework for decisions about kinship care, the respondent argued that the suitable entity decision under section 63 is of a general nature and has regard to general factors, and the decision in relation to placement of a child under section 512 is of a particular nature and has regard to very particular factors. The respondent submitted that each decision must be made by reference to the best interests of the child, and with due regard to those factors which are relevant for the decision in question. The respondent argued that the decision under section 516 is different to the decision that comes before (the suitable entity decision) or after (the placement decision), and is the only decision that may be reviewed.
The Tribunal accepts that the placement decision is a decision made from time to time by reference to very specific circumstances of the child at that time (for example where to spend the holidays or school term or in respite care). However, the suitable entity decision is a decision about the suitability of the entity for a particular purpose, and cannot be described simply as a decision about suitability at a general level.
That being the case, there is an argument that once those factors relevant to placement have been considered, and determined, and those factors relevant to suitable entity status considered, and determined, there are no matters going to the merits or discretion of the decision-maker to be addressed under section 516. The issuing of the authorisation under section 516 becomes a matter of administrative machinery, whereby the decision-maker checks that there is suitable entity status, and the proposed kinship carer has agreed to exercise parental responsibility for the Director-General, before issuing a piece of paper that evidences authorisation.
It is unlikely that the legislature intended to provide a right of review in relation to a decision which appears to have no substantive content. In some cases, it has been found that it is open to a reviewing Tribunal to review a decision upon which a reviewable decision is dependent or is otherwise related.[19] However, in the current matter, it is not necessary for the Tribunal to decide whether a decision as to suitable entity status under section 63 of the CYP Act resulting in a refusal or revocation of authorisation is so reviewable, because the Tribunal is satisfied that the subject decision is a placement decision under section 512 of the CYP Act.
[19] Fletcher v Commissioner of Taxation (1988) 19 FCR 442
The applicant argued that for the same reasons, a decision under section 512 should be amenable to review. The Tribunal does not accept that argument. The way that decisions under section 512 and section 516 interact is clear, and distinctly different from the relationship between section 63 and section 516. A decision under section 512 is a separate step with distinct considerations. Although section 516 (5) stipulates that the authorisation only has effect during the placement of a child with an authorised person under section 512, the power of the tribunal to review a decision under section 516 does not extend to the separate and distinct decision about placement contained in section 512 CYP Act.
In this respect, the Tribunal notes the applicant’s arguments that the decision should be reviewable by the tribunal as it is in the best interests of the children. Referring to section 8 of the CYP Act, the applicant submitted that, because the respondent’s decision is a determination of who the children will live with, it directly impacts upon the well-being, safety and interests of the children. In such circumstances, the applicant argued that it is crucial that the decision be reviewable by the tribunal.
The applicant’s submissions were supported by reference to decisions made about the placement of children in other jurisdictions, particularly New South Wales.[20] It is important to note that the jurisdiction given to the tribunal in New South Wales is quite different to that given under the CYP Act. For example, section 245(1)(c) of the Children and Young Persons (Care And Protection) Act 1998 (NSW) allows
‘a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person’
to be reviewed by the NSW tribunal. This provision was under consideration in the cases relied upon by the applicant[21] but there is no equivalent provision in the CPYP Act.
Conclusion
[20] NV & OA v Director-General, Department Of Community Services [2009] NSWADT 209; AMS and AMT v Department of Family and Community Services [2013] NSWADT 140
[21] NV & OA v Director-General, Department Of Community Services [2009] NSWADT 209; AMS and AMT v Department of Family and Community Services [2013] NSWADT 140
The Tribunal is satisfied that the decision to remove the children from the care of the applicant was in this case a decision about the placement of the children, and in no way a revocation of her status as a suitable entity, or a revocation of her authorisation as a kinship carer.
Opinions may differ as to whether that decision was the best approach for the Director-General to take, or whether other options or greater supports should have been put in place so that the children could remain in the care of family. Although these questions might be raised, it is not open to the Tribunal under the legislation to review the propriety of a decision about placement.
Consequently the Tribunal considers that it lacks jurisdiction in this matter because pursuant to section 9 of the ACAT Act, the CYP Act does not provide for an application to be made to the tribunal in relation to the decision of 11 November 2013 and the application for review of the decision must be dismissed on that basis.
………………………………..
Professor P. Spender
Presidential Member
for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AT13/95 |
PARTIES, APPLICANT: | W |
PARTIES, RESPONDENT: | Director-General, Community Services |
COUNSEL APPEARING, APPLICANT | Ms Tomlins |
COUNSEL APPEARING, RESPONDENT | Ms Faulder |
SOLICITORS FOR APPLICANT | Welfare Rights and Legal Centre |
SOLICITORS FOR RESPONDENT | ACT Government Solicitors |
TRIBUNAL MEMBERS: | Professor P. Spender and Ms M-T. Daniel |
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