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’…
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- AGLC
- W v Director-General, Community Services [2015] ACAT 14
- Case
- [2015] ACAT 14
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the scope of the approval granted to a suitable entity, specifically a kinship carer, under the CYP Act. The court had to determine the level of particularity required when a suitable entity is approved for a specific purpose. For instance, whether the approval should be for a broad purpose such as 'kinship care for a specified child' or for a more specific purpose like 'kinship care for a specified child on a short term basis.' Additionally, the court had to examine how the CYP Act allows for changes or reversals of the decisions made by the Director-General regarding the approval of suitable entities, placement decisions, and kinship care authorisations.
In addressing these issues, the court found that while the CYP Act contemplates that a suitable entity may be approved for a specified purpose, the exact level of particularity required is not explicitly defined. The court inferred from the examples provided in section 61 of the CYP Act that the purpose for which an entity is registered should be considered in light of the objects and principles of the CYP Act, particularly the paramount consideration of the best interests of the child as stated in section 8. The court also noted that while there are provisions for the Director-General to make decisions regarding suitable entities, placements, and authorisations, there is no specific provision in the CYP Act that allows for the cancellation or change of these decisions. Instead, such powers are derived from section 180 of the Legislation Act 2001. The court concluded that the AAT lacked jurisdiction to make the orders sought by the applicant.
ORDERS:
1. The application for review is dismissed as the Tribunal found it lacks jurisdiction to make the orders sought.
Orders
Orders of the court
1. Upon the Tribunal finding that it lacks jurisdiction to make the orders sought, the application for review is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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. 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. 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.