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Department of Child Safety, Youth and Women v PJC[2019] QCATA 109

Department of Child Safety, Youth and Women v PJC[2019] QCATA 109

 

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Department of Child Safety, Youth and Women v PJC and The Public Guardian [2019] QCATA 109

PARTIES:

DEPARTMENT OF CHILD SAFETY, YOUTH AND WOMEN

(applicant)

 

v

 

PJC

(respondent)

THE PUBLIC GUARDIAN

(joined party)

APPLICATION NO/S:

APL377-17

ORIGINATING APPLICATION NO/S:

CML156-17

MATTER TYPE:

Appeals

DELIVERED ON:

24 July 2019

HEARING DATE:

31 August 2018

Further written submissions filed 14 December 2018 and 4 January 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Browne

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The Tribunal’s decision dated 20 October 2017 is set aside and the following decision is substituted:

       ‘The application for review is dismissed.’

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where the respondent was an approved foster carer of the subject child – where decision made to remove the child from the respondent’s care – where decision made to place conditions on contact between the respondent and the child – where respondent was given notice of a right to review the contact decision by the decision maker – where respondent filed an application for review in the Tribunal – where a further decision was made to place conditions on contact between the respondent and the child – where respondent was given notice of a right to review the further contact decision by the decision maker – where preliminary issue raised by the decision maker in the review proceeding about standing – where the decision maker sought an order to dismiss the review proceeding – where question as to whether there was a reviewable decision-- who is an ‘aggrieved person’ under the Child Protection Act 1999 (Qld) for a decision made under s 87(2)– where the Tribunal refused the decision maker’s application to dismiss the review proceeding – where the decision maker appeals the Tribunal’s decision – whether leave to appeal should be granted –­– whether error of statutory construction in the Tribunal’s decision – who is a person affected by a decision under the Child Protection Act 1999 (Qld) for s 87(2)– who is an aggrieved person for a decision made under s 87(2)-- whether applicant is an aggrieved person for a reviewable decision

Acts Interpretation Act 1954 (Qld), s 14A

Child Protection Act 1999 (Qld), s 4, s 5, s 5A, s 5B, s 5D, s 5E, s 7, s 11, s 12, s 12(1), s 13, s 79A, s 82(1)(b), s 87, s 87(1), s 87(2), s 87(3), s 87(4), s 247, sch 2, sch 3, ch 2A,  s 99P, s 99P(2)

Child Protection Reform Amendment Act 2017 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 20, s 23, s 23(1), s 47, s 142(3)(ii), s 146, s 146(b), s 147

Judicial Review Act 1991 (Qld), s 7

Albrecht v Ainsworth [2015] QCA 220

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Allan v Transurban City Link Limited (2001) 208 CLR 167

Australian Postal Corporation v Sinnaiah and Others [2013] FCAFC 98

Cachia v Grech [2009] NSWCA 232

Craig v South Australia (1995) 184 CLR 163

Di Carlo v Kashani-Malaki [2012] QCA 320 

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Gantly Pty Ltd & Ors v Phoenix International Group Pty Ltd & Anor [2010] VSC 106

Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Harrison & Anor v Meehan [2017] QCA 315

Kelly v The Queen (2004) 218 CLR 216

Kirk v Industrial Relations Court of NSW (2010) 239 CLR 531

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

North Queensland Conservation Council Inc v The Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172

Owen v Menzies and Anor (2012) 265 FLR 392

PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Robertson v Airstrike Industrial Pty Ltd [2016] QCA 104

Save Bell Park Group v Kennedy [2002] QSC 174

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Till v Logan City Council [2018] QCATA 150

Warwick Real Estate & Property Sales Pty Ltd v Bailey & Morrow [2013] QCATA 262

APPEARANCES & REPRESENTATION:

 

Applicant:

B Dighton instructed by Court Services, Department of Child Safety, Youth and Women

Respondent:

Self-represented

Joined Party:

L Reece instructed by the Office of the Public Guardian

REASONS FOR DECISION

  1. [1]
    For more than five years, the child, QS, lived with her approved foster carer, PJC, until a decision was made to remove QS from PJC’s care.
  2. [2]
    PJC was notified about the removal of QS from her care by a letter dated 23 May 2017 from the Department of Communities, Child Safety and Disability Services (‘the Department’). Relevantly, the Department advised PJC that QS will not be returning to her care, and in effect, PJC is to refrain from having contact with QS (‘the first contact decision’) and PJC is entitled to review the decision through the Queensland Civil and Administrative Tribunal (‘the Tribunal’).[1] The Department did not refer to the legislative provision under which the first decision was made. We observe (as did the Tribunal in effect) that on its face, it seems questionable whether it amounts to a contact decision at all: it is framed in effect as a request for PJC to refrain from contacting QS. That aside, this was not an issue agitated by either party and we do not further consider it.
  3. [3]
    After PJC applied for a review of the first contact decision in the Tribunal, the Department made a further contact decision.[2] The Department advised PJC by a letter dated 14 July 2017 that she is entitled to review its contact decision in the Tribunal (‘the second contact decision’).[3] In the second contact decision, the Department stated that it made the decision pursuant to s 87(2) of the Child Protection Act 1999 (Qld) (‘the Act’).
  4. [4]
    Notwithstanding the Department’s written advice given to PJC that she could review the first (and second contact decision), the Department raised a preliminary issue about whether PJC is a person who can apply to the Tribunal to review the first contact decision under the Act. The Tribunal directed that submissions be filed by the parties. The Department sought orders that the Tribunal dismiss PJC’s review application pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) on the basis that it was misconceived.
  5. [5]
    A member of the Tribunal determined the preliminary point. The Tribunal found that PJC has a right to review the Department’s first contact decision and refused the Department’s application to dismiss PJC’s review application.[4]
  6. [6]
    The Department then sought to appeal the Tribunal’s decision. The Department seeks leave to appeal and, if the Appeal Tribunal allows the appeal, final orders setting aside the Tribunal’s decision of 20 October 2017 and the dismissal of PJC’s review application.[5] The Public Guardian was joined as a party in the appeal proceeding.
  7. [7]
    All parties provided written submissions and an oral hearing was held.
  8. [8]
    After the oral hearing, the Department notified the Appeal Tribunal in writing that amendments had been made to the Act and submitted that such amendments may impact on the disposition of the appeal.[6] Therefore, the parties were given an opportunity to file submissions about the effect, if any, of the legislative amendments introduced by the Child Protection Reform Amendment Act 2017 (Qld) that amended the Act effective from 29 October 2018.[7] We received further written submissions from the Department and the Public Guardian. We have also considered these in making our decision in the appeal proceeding.

The application for leave to appeal and appeal

  1. [9]
    Because the Department seeks to appeal an interlocutory decision made by the Tribunal that is not a final decision, leave of the Appeal Tribunal is required.[8]
  2. [10]
    The Department says that leave should be granted because there is a reasonable argument that the decision is attended by error and that there is a reasonable argument that an appeal is necessary to correct a substantial injustice caused by that error.[9] The Department also submits that the appeal involves an issue of general importance about the interpretation of the scope of decisions that the chief executive can make under s 87(2) of the Act and who may apply to the Tribunal to review those decisions.[10]
  3. [11]
    Further, the Department submits that it is readily apparent that accurately construing the extent and application of s 87(2) of the Act is critical in establishing the proper threshold test for reviews in the Tribunal, with the potential class of people able to bring such an application affected accordingly. The Department says that considerations of law and practicality arise and it is desirable for determination of the issue to be clear and settled.[11]
  4. [12]
    The Public Guardian agrees that leave to appeal should be granted in this matter predominantly on the basis that the appeal involves an issue of general importance.[12] The Public Guardian does not, however, agree that the appeal should be allowed. The Public Guardian submits that the appeal should be dismissed and the review should proceed before the Tribunal.[13]
  5. [13]
    The Department identifies its sole ground of appeal in the following terms:[14]
    1. In finding that [PJC] had standing to review the decision, the learned member erred by construing the scope and application of s 87 of the Act to mean:
  1. (a)
    that a ‘person’ under s 87(3) could include a person other than ‘the child’s parents or members of the child’ family’; and
  2. (b)
    that the applicant (PJC) at first instance was ‘a person affected by the decision’.
  1. [14]
    The question of whether leave should be granted is determined according to established principles such as: is there a reasonably arguable case of error in the primary decision;[15] is there a reasonable prospect that the applicant will obtain substantive relief;[16] is leave necessary to correct a substantial injustice to the applicant caused by some error;[17] and is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage.[18]

Background and the Tribunal’s reasons for decision

  1. [15]
    As discussed earlier, the Department made two decisions about contact between PJC and QS. It is noncontroversial that in respect of both decisions PJC was advised that she had a right of review to the Tribunal.
  2. [16]
    The first contact decision made by letter dated 23 May 2017, sets out that future contact decisions will be made in consultation with the relevant Child Safety Service Centre and PJC is to refrain from making further contact with QS. As stated earlier, the letter does not identify the source of power, namely, the relevant section of the Act under which the contact decision was made. 
  3. [17]
    The second contact decision made by letter dated 14 July 2017, refers to s 87(2) of the Act. The letter states that s 87(2) gives the chief executive and delegated officers of the Department the authority to refuse, restrict, or place conditions on contact between a child and significant others. Further, it sets out that such a decision (referring to a contact decision made under s 87(2) of the Act), is only made when it is considered to be in a child’s best interests. It states that the Department is placing conditions around contact being supervised and PJC is ‘entitled to seek a review of this decision’.[19]
  4. [18]
    Although the Tribunal below was only required to decide whether PJC has a right of review with respect to the first contact decision, the Tribunal found that both contact decisions relate to a decision to regulate and restrict contact between PJC and the child, QS.[20] The Tribunal limited the issue to be decided by it to the question whether the Act confers a right of review in the Tribunal on PJC.[21] In addressing this issue, the Tribunal proceeded on the basis that both contact decisions were made under s 87 of the Act.[22] The Tribunal did not explain the basis for the finding or inference to the effect that the first decision was purportedly made by the Department pursuant to s 87. In respect of the second contact decision, it appears the Tribunal relied upon the statement in the decision to the effect that it was made pursuant to s 87(2), without considering the issue further. This also likely explains why the Tribunal appears to have assumed that the first decision was also made in reliance upon s 87.
  5. [19]
    The Tribunal referred to s 87, and identified s 247 and Schedule 2 of the Act as relevant.[23] The learned Member observed that s 87 falls within Part 6 Division 4 of the Act. The learned Member considered  the scope and purpose of s 87 as it applied to the proceeding and accepted that PJC is a person of significance to QS and that ‘their relationship’ falls into the category of ‘significant relationships’.[24] The learned Member found that the purpose of s 87 is to ensure a child has ‘an opportunity to know and maintain a relationship with their family of origin to the extent possible in the circumstances’.[25] The learned Member observed that s 122 of the Act places a positive obligation on the chief executive to ensure the child will be encouraged to maintain family and other significant relationships.[26]
  6. [20]
    The learned Member also observed that s 5B(l) provides that a child should be able to maintain relationships with the ‘child’s parents and kin, if it is appropriate for the child’.[27] In referring to the definition of ‘kin’ as defined under Schedule 3 of the Act, the learned Member observed that ‘kin’ is defined ‘broadly’ to mean any of the child’s relatives who are persons of significance to the child; and anyone else who is a person of significance to the child.[28] In particular, the learned Member said as follows:

S 5B(l) states ‘a child should be able to maintain relationships with the child’s parents and kin if it is appropriate for the child’. The term ‘kin’ is defined broadly in Schedule 3 of the Act to mean any of the child’s relatives who are persons of significance to the child and anyone else who is a person of significance to the child.[29]

  1. [21]
    The Tribunal’s reasons discuss the submissions made by PJC and the Department. In particular, the learned Member considered the Department’s submission that, amongst other things, PJC is not a person who comes within the scope of s 87 and therefore, she does not have a right of review, observing that the submissions appeared to be an acceptance by the Department, while not contending that the decision is invalid, that its decision is ‘legally ineffective’.[30]
  2. [22]
    The learned Member found that a decision has been made under s 87, notice was given to PJC, and PJC is therefore a person affected by the decision. In essence, the learned Member found that the validity of the decision, or whether it should have been made by the Department does not determine whether PJC is affected by it. The relevant paragraph, [27] of the Tribunal’s reasons, is as follows:

Sub-section (3) of s 87 does not refer to ‘a parent or members of the child’s family’ it refers to ‘a person’. In this case a decision has been made under s 87 and that decision purports to determine the conditions surrounding [PJC’s] contact with a child. Notice was given to PJC. She is, for the purpose of the requirement to give notice and for the purpose of Schedule 2, ‘a person affected by the decision’ and therefore has a right of review as provided for in Schedule 2 of the Act. The validity of the decision, or whether it should have been made in the first place, does not determine whether PJC is affected by it. She clearly is. This is the basis of her review right.

  1. [23]
    Although the learned Member accepted the Department’s submissions about the purpose and scope of s 87 of the Act, the learned Member in applying the High Court decision in The Owners of the Ship, Shin Kobe Maru v Empire Shipping Company Inc,[31] found that once a decision has been made it would be ‘necessary to imply a limitation to deny a right of review of that decision’.[32] The learned Member ultimately found that PJC has a right of review and refused the Department’s application to dismiss the application for review.[33]

The statutory framework - the Child Protection Act 1999 (Qld) as at 20 October 2017

  1. [24]
    At the outset, it is appropriate to consider, as far as is relevant here, the legislative framework for decision-making.
  2. [25]
    Broadly speaking, the Act provides a statutory regime for the protection of children in Queensland. The Act is divided into seven chapters with many parts in each chapter.
  3. [26]
    Chapter 1 is entitled ‘Preliminary’ and contains sections including about the purpose of the Act; the principles for its administration; and giving the relevant child and others an opportunity to express their views, as provided, in the discharge of certain functions under the Act. The purpose of the Act is to provide for the protection of children.[34] The Act mandates that the safety, wellbeing and best interests of a child are paramount.[35] The general principles set out under s 5B of the Act provide that, amongst other things, a child has a right to be protected from harm or risk of harm: a child’s family has the primary responsibility for the child’s upbringing, protection and development; and a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child.
  4. [27]
    Relevant sections of Chapter 1 of the Act underpin any decision made by, for example, the chief executive who has custody or guardianship of the child under a child protection order, or the Tribunal in exercising its review jurisdiction standing in the shoes of the decision-maker.[36]
  5. [28]
    Chapter 1 also contains definitions of basic concepts such as the meaning of a ‘child’ and ‘who is a parent’ are provided. For example, a ‘parent’ of a child is the child’s mother, father or ‘someone else (other than the chief executive)’ having or exercising parental responsibility for the child.[37]
  6. [29]
    Relevantly also, s 12 of the Act provides power for the chief executive or other person granted custody of the child to make decisions about the child’s daily care. Similarly, s 13 of the Act, provides for power for decision-making about the child’s daily care where guardianship of the child has been granted to the chief executive or other person.[38] For example, the chief executive may decide to place a child with an approved foster carer for a period of time. In addition to making decisions about placement of the child, the chief executive may make decisions about contact such as, with whom the child should have contact, including the child’s parents and members of the child’s family.
  7. [30]
    Chapter 2 ‘Protection of children,’ Part 6 is entitled, ‘Obligations and rights under orders and care agreements’. Division 4 of Part 6, entitled ‘Placing child in care’ applies if the chief executive has custody or guardianship of a child under the Act.[39]   For present purposes, Division 4 relevantly contains s 87 which provides as follows:

87 Chief executive to provide contact between child and child’s parents

  1. (1)
    The chief executive must provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family as often as is appropriate in the circumstances.
  1. (2)
    However, the chief executive may refuse to allow, or restrict or impose conditions on, contact between the child and the child’s parents or members of the child’s family, if the chief executive is satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents or family member to have the contact.
  1. (3)
    If the chief executive refuses to allow, or restricts or imposes conditions on contact between a child and a person, the chief executive must give written notice of the decision to each person affected by the decision.
  1. (4)
    The notice mentioned in subsection (3) must comply with the QCAT Act, section 157(2).
  1. [31]
    Relevantly, if the chief executive has custody or guardianship of the child, pursuant to s 87(1) the chief executive must provide an opportunity for contact between the child and the child’s parents and appropriate members of the child’s family.[40] However pursuant to s 87(2), the chief executive has a broad discretionary power to refuse to allow, or restrict or impose conditions on contact between the child and the child’s parents or members of the child’s family. If the chief executive makes a decision under s 87(2), pursuant to s 87(3) the chief executive is required to give written notice to each ‘person affected by the decision.’
  2. [32]
    Chapter 2A of the Act provides a mechanism for review in the tribunal of certain decisions, namely those identified as a ‘reviewable decision’.[41] Section 247 of the Act relevantly provides that ‘an aggrieved person for a reviewable decision may apply, as provided under the QCAT Act, to the Tribunal to have the decision reviewed’.[42] A review proceeds before the tribunal as a merits review. When a person applies for review, the purpose of the review by the tribunal in exercising its review jurisdiction under the QCAT Act, is to arrive at the correct and preferable decision.[43]
  3. [33]
    The Act contains a schedule identifying those decisions that are a ‘reviewable decision’ and making provision about who may be an ‘aggrieved person’ who may apply for a review of the decision listed opposite as a reviewable decision. The decisions identified in Schedule 2 of the Act as a ‘reviewable decision’ are particularised with reference to the section of the Act under which that the decision was made. An ‘aggrieved person’ is also particularised under Schedule 2 of the Act with reference to the relevant ‘reviewable decision’. A decision made under s 87(2) of the Act ‘refusing to allow, restricting, or imposing conditions on contact between a child and the child’s parents or a member of the child’s family,’ is identified in Schedule 2 as a ‘reviewable decision’. An ‘aggrieved person’ for a reviewable decision made under s 87(2) is identified in schedule 2 as ‘a person affected by the decision’.[44] On the other hand, a decision made under s 12 or s 13 of the Act is not a ‘reviewable decision’ for the purposes of s 247. This is because Schedule 2 of the Act does not identify a decision made under s 12 and s 13 of the Act as a ‘reviewable decision’. Further, schedule 3 of the Act defines a ‘reviewable decision’ to mean, relevantly, ‘a decision stated in schedule 2’. An ‘aggrieved person’ is also defined in Schedule 3 for a reviewable decision to mean ‘a person stated opposite the decision in Schedule 2’.
  4. [34]
    We observe here that Schedule 2 provides for a reviewable decision for s 87(2) using the terminology of s 87(2) itself, that is, a reviewable decision is a decision, ‘refusing to allow, restricting, or imposing conditions on, contact between a child and the child’s parents or a member of the child’s family.’ Similarly, Schedule 2 in providing that an aggrieved person for the reviewable decision, is a ‘person affected by the decision’ uses the terminology of s 87(3), in providing for the class of persons who must be given written notice by the chief executive. Further, we observe that review of decisions made under the Act is not available ‘at large,’ either in respect of the decisions made or the person or persons who may seek review.  Specified decisions made pursuant to particular prescribed sections of the Act, set out in schedule 2, are reviewable. Further, the Act in schedule 2, provides that only those persons within a specified classes of persons who may seek review of a reviewable decision in each case, is an aggrieved person.
  5. [35]
    Further, it is important here to note that there is also provision under s 99P of the Act for a person, other than the public guardian, to review a decision in the tribunal on behalf of a child with the President’s permission. Section 99P sets out certain matters that must be considered in determining whether leave should be given. Such matters include, amongst other things, that the person is not, on the person’s own behalf, entitled to apply for the decision to be reviewed by the tribunal; and it is in the child’s best interests that the application be made; and it would not be inappropriate for, or unreasonable to require, the child to make the application himself or herself.[45]
  6. [36]
    Chapter 3 is headed ‘Court Proceedings’ and contains relevant sections for the court’s jurisdiction and constitution when exercising certain powers under the Act. For example, the Children’s Court has the power to make certain orders about the child’s custody or guardianship that are considered necessary to protect the child.

Amendments to the Act – the Child Protection Reform Amendment Act 2017 (Qld)

  1. [37]
    The Act was amended by the Child Protection Reform Amendment Act 2017 (Qld) effective from 29 October 2018. As the discussion below reveals, some of the provisions contain amendments that may be argued to be relevant, if the appeal is allowed and if the Act as amended must be applied in the appeal proceedings.
  2. [38]
    Because the amendments became effective after the Tribunal’s hearing and after the oral hearing before the Appeal Tribunal but prior to the Appeal Tribunal finally determining the appeal, a question arises as to which version of the Act should be applied if, in allowing the appeal, the Appeal Tribunal proceeds under s 146 of the QCAT Act on a question of law or under s 147 on a question of mixed law and fact.
  3. [39]
    Relevantly the Act was amended by the insertion of a wholly new provision numbered s 5BA. That section sets out principles for achieving ‘permanency for a child’. For example, s 5BA refers to the child’s wellbeing and best interests having regard to the principles set out in s 5B and s 5C to ensure that, amongst other things, the child experiences relationships with ‘persons of significance’ and stable living and legal arrangements.
  4. [40]
    Section 79A was inserted to provide for obligations on long-term guardians and permanent guardians to children under orders to ensure, amongst other things, that the child is provided with help in the transition from being a child in care to independence and to the extent it is in the best interests of the child, to help maintain the child’s relationships with the child’s parents, family members and other ‘persons of significance to the child’. Section 79A provides as follows:

79A Obligations of long-term guardians and permanent guardians to children under orders

  1. (1)
    A long-term guardian or permanent guardian of a child must—
  1. (a)
    as far as reasonably practicable, ensure the charter of rights for a child in care in schedule 1 is complied with in relation to the child as if—
  1. (i)
    the guardian were the chief executive; and
  1. (ii)
    the child were a child in need of protection in the custody or care of the chief executive; and
  1. (b)
    ensure the child is provided with appropriate help in the transition from being a child in care to independence; and
  1. (c)
    to the extent it is in the best interests of the child, preserve the child’s identity and connection to the child’s culture of origin; and
  1. (d)
    to the extent it is in the best interests of the child, help maintain the child’s relationships with the child’s parents, family members and other persons of significance to the child.
  1. (2)
    However, the Childrens Court may order that any of the requirements mentioned in subsection (1) do not apply, or apply with stated modifications or apply to a stated extent, if the court is satisfied compliance with the requirement would—
  1. (a)
    constitute a significant risk to the safety of the child or anyone else with whom the child is living; or
  1. (b)
    otherwise not be in the best interests of the child.
  1. [41]
    Section 80B applies if a child or member of the child’s family believes that a permanent guardian is not complying with the s 79A obligations. It provides for the person to make a complaint about the non-compliance to the chief executive. The chief executive may deal with the complaint under s 80E, or refuse to deal with the complaint under s 80D of the Act. If the chief executive acts under s 80D to refuse to deal with it, the decision refusing to deal with the complaint is a reviewable decision.[46]

Which version of the Act applies here?

  1. [42]
    We do not here set out in detail all of the submissions of the respective parties addressing the applicability and effect of relevant sections, as amended. Those submissions focus upon the decision-maker’s powers generally that may be exercised under the Act and the circumstances in which retrospectivity of legislative enactments or amendments to enactments generally may arise.
  2. [43]
    Suffice it to say that the Department submits based on the arguments it sets out that the applicable law in the appeal is the version of the Act as it existed at the date of the Tribunal’s decision made on 20 October 2017.[47] The Department says that if it is wrong and the amended Act is held to be the applicable law, then regardless of the newly inserted statements of principle, a number of which are in clear and ‘irreconcilable tension’ with each other, Parliament has not evidenced an intention to change the language of and terms of s 87 of the Act. The Department says that the Act both prior to amendment and as amended requires compliance with a variety of principles but it does not make the discharge of those obligations and compliance with the principles, enforceable or reviewable in respect of every conceivable decision that can be made under s 12 or s 13 of the Act, nor in respect of every category of person who may claim to be aggrieved or affected by a decision.[48]
  3. [44]
    The Public Guardian disagrees with the Department’s submissions and says that the Appeal Tribunal may have regard to the amendments to the Act introduced by the Child Protection Reform Amendment Act 2017 (Qld).[49] The Public Guardian says that the amendments to the Act are broadly consistent with the principles informing the approach it has taken in these proceedings. That is, as submitted by the Public Guardian, it intervenes on the basis that the matters to be considered in the proceedings have implications for the rights and interests of not only the individuals involved, but for children and young people in the child protection system more generally. Amongst other things, this includes, the right to review and participate in decision-making regarding contact.
  4. [45]
    The Public Guardian says, amongst other things, that the insertion of relevant sections 5BA and 79A evidence an intention on the part of the Parliament to recognise the importance to children and young people of relationships with persons of significance to them, including carers. The Public Guardian refers to s 79A as imposing a broader duty to facilitate relationships with individuals on a long-term or permanent guardian than the equivalent requirement of the chief executive set out in s 87. The Public Guardian says that s 79A requires a guardian to ‘help maintain the child’s relationships with the child’s parents, family members and other persons of significance to the child’ and there is a procedure for non-compliance with that section such as a complaint to the chief executive and right of review in the Tribunal. The Public Guardian says that by way of comparison with the circumstances in this matter, it would appear that s 79A would provide an effective source of power for review of a decision to place restrictions on a child’s contact which, if the Department’s submissions is accepted, a child could not do under s 87.
  5. [46]
    The Public Guardian submits that there is a discrepancy between the statutory provisions as to the obligations of different stakeholders to support relevant permanency. For example, the Public Guardian identifies that for a child under the guardianship of someone other than the chief executive, the child may complain where the guardian refuses to allow or restricts contact with parents, family or other persons of significance. However, if the child is subject to custody/guardianship of the chief executive, they may not seek the Tribunal’s review of decisions about contact with other persons of significance.[50]
  6. [47]
    The Public Guardian says that the discrepancy (highlighted above) has the potential to impact upon the individual child’s rights in particular his or her right to relational permanency with persons of significance outside biological attachments and their right to review decisions to deprive them of relational permanence.
  7. [48]
    We observe that there is no relevant transitional provision to be considered.
  8. [49]
    We have considered the submissions filed by the parties, but do not find them helpful here because the submissions do not address the position at hand, that is, in appeal proceedings where legislative amendments became effective in the period between the making of the Tribunal’s decision and the determination of the appeal proceedings.
  9. [50]
    The version of an Act that is to be applied in the disposition of an appeal has previously been considered by the High Court of Australia in Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (‘Dignan’s case’).[51] As Dixon J  explained, on an appeal in the strict sense, the decision given is the one that ought to have been given at the original hearing, that is, on the basis of the law as it stood at the time of the decision. This is because the appellate body is deciding whether the decision appealed was erroneous when the decision was made.[52] An appeal in the Appeal Tribunal decided on a question of law alone under s 146 of the QCAT Act is an appeal in the strict sense.[53]
  10. [51]
    On the other hand, if an appeal is decided under s 147 of the QCAT Act, it is decided by way of rehearing.[54] On an appeal of this nature, Dixon J in the High Court in Dignan’s case said that the appeal must be decided on the law that applies then to determine the rights and liabilities of parties.[55]
  11. [52]
    For completeness in light of the parties’ submissions about retrospectivity, we observe in relation to retrospectivity as it applies to construction of legislative enactments and the extent of the retrospectivity, the High Court recently considered the applicable principles in Australian Education Union v General Manager of Fair Work Australia.[56] However, we do not need to consider the issue in this proceeding. For the reasons explained below, it is not relevant.

The parties’ submissions

The Department’s submissions

  1. [53]
    The Department submits that the nub of the appeal involves a question as to whether PJC is in the requisite relationship with QS for s 87 of the Act to apply. The Department says that the language of the Act is plain and s 87 does not extend to include a class of persons such as PJC. The Department says that s 87(3) must be read in its proper context in that the ‘person’ referred to can only be a person in the class of persons delimited by s 87(3). Further, a person affected by the decision can only be a person to whom the power applies, that is, a parent or family member of the child. The Department submits that PJC should not have been found by the Tribunal to be a person affected by the decision.[57]
  2. [54]
    The Department says that although the first contact decision does not identify a relevant section of the Act, the valid legal basis for the decision was the power conferred by s 13 of the Act. Such a decision made under s 13 of the Act is not, the Department says, a reviewable decision specified in Schedule 2 of the Act and PJC is therefore unable to review it.[58] In relation to the second contact decision, the Department says that the decision contained an error in that a decision about PJC’s contact with QS could not have been validly made under s 87(2), but nonetheless had a proper legal basis.[59]
  3. [55]
    Further, the Department says that there was no evidence before the Tribunal in order to find that both of the contact decisions were made under s 87(2) of the Act. The Department says that the first contact decision letter contained no express reference as to the basis of its power.[60] The Department says that the learned Member failed to consider the proposition that, notwithstanding the error in the Department’s contact decision letters, the decisions still had a legitimate statutory basis in s 13 of the Act.[61] The Department says that the first contact decision was a proper exercise of power that is not reviewable by the Tribunal.[62] The Department submits that the second contact decision was a legitimate exercise of power but affected by an error in the manner it was communicated to PJC.[63]
  4. [56]
    In addressing the issue of whether the (delegated) decision-maker had power to make a valid decision under s 87(2) affecting PJC, the Department raises the issue of jurisdictional error and contends that s 87(2) of the Act was not the source of power for the contact decisions and the delegate’s reference to that provision in its second contact decision letter was in error.[64] The Department says that because PJC was not a ‘parent’ or a ‘family member’ of the child, the section afforded no basis for the delegate to exercise the power in relation to PJC.[65]
  5. [57]
    In this matter, the Department says that it did have the power to make the relevant contact decision under the Act but not under s 87 of the Act identified by the Department in its second contact decision letter. The Department submits that although there is an error on the record, the effect of that error was not such that the exercise of power was in itself invalid.[66] The Department says that the correct source of power to make decisions about the child’s daily care and wellbeing is s 13 of the Act. The Department says that there is no other section in the Act that confers the power for such a necessary decision to be made.
  6. [58]
    Further, the Department says that the first contact decision was a proper exercise of its power under s 13 and the Tribunal does not have jurisdiction to review it and the application for review filed by PJC should therefore be dismissed.[67] The Department further clarified its submission about the source of power to make a contact decision under the Act as being such that all contact decisions are made pursuant to s 12 or 13 of the Act. The Department says that s 87 operates in a manner that is merely supplementary to the principal head of power contained in s 12 and s 13 of the Act.[68]
  7. [59]
    The Department says that although PJC was advised of an entitlement to review both the first and second contact decision in the Tribunal, those references as to her right of review were incorrect. The Department says that such assertions can have no force if they have no basis in law and cannot give rise to review rights by implication.[69]
  8. [60]
    Secondly, the Department submits that the conclusion reached by the learned Member that PJC was a person affected by the decision was in error. The Department says that the learned Member correctly observed that decisions may be made under s 87(2) of the Act only in respect of a narrow class of people that does not include PJC. However, despite those observations, the Department says that the learned Member ultimately found that PJC was a person affected by the purported decision and had standing to apply to the Tribunal for review.[70] The Department says that the conclusion reached by the Tribunal at paragraph [27] of its reasons was in error. The Department says that s 87(3) of the Act must be read in its proper context in that ‘a person’ referred to can only be a person in the class of people delimited by s 87(2). That is, a person affected by the decision can only be a person to whom the power applies that is, a parent or member of the child’s family. The Department says PJC could not have been a person affected by the decision.

The Public Guardian’s submissions

  1. [61]
    The Public Guardian sought to become a party in this matter on the basis that the matters to be considered in determining the appeal have implications for the rights and interests of not only the individuals involved, but for children and young people in the child protection system more generally.[71] The Public Guardian says that this includes the right to review and participate in decisions regarding contact with previous foster carers and others who may not be classified as the child or young person’s parents or family in a traditional sense, yet may be considered as family by them.[72]
  2. [62]
    The Public Guardian challenges the ‘narrow interpretation’ given to the class of persons provided for in s 87 of the Act taken by the learned Member at first instance and now raised by the Department in the appeal.[73] The Public Guardian submits that the learned Member at first instance accepted the Department’s argument that s 87 of the Act fell within a part of the Act which relates to the obligations and rights attaching to parents and family members whose rights ‘with respect to their primary responsibility of the child have been disrupted by an Order to place a child in the care of the chief executive’.[74]
  3. [63]
    The Public Guardian submits that the reference to ‘parent’ and ‘members of the child’s family’ for the purposes of s 87 of the Act could properly be interpreted to include those who have previously cared for the relevant child over an extended period.[75] The Public Guardian refers to s 11 of the Act that it says defines the meaning of ‘parent’ for the purposes of s 87. The Public Guardian says that PJC, as QS’s foster carer for more than five years, may be classified as a person ‘who had or exercised parental responsibility for [QS]’.[76] Further, PJC’s long-term role in QS’s life could be found to have transcended a ‘temporary’ arrangement and assumed the status of a parental relationship envisaged by s 11 of the Act.[77]
  4. [64]
    The Public Guardian submits that across the Act there is support for the proposition that the concept of ‘family’ should be interpreted more widely than mere biological connection.[78] Further the Public Guardian refers to the paramount principles of the Act and the list of general principles, in particular, that a child should be able to ‘maintain relationships with the child’s parents and kin, if it is appropriate for the child’.[79] The Public Guardian also refers to s 113 of the Act that it says empowers the Court to allow non-parties to take part in proceedings and the Explanatory Notes for the relevant amending Act that, at the time of the oral hearing, had not come into effect. The extract from the Explanatory Note as it appears in the Public Guardian’s written submissions is as follows:[80]

The amendment has been included to allow the court to be informed by people who are not a party to the proceeding, but who are significant in the child’s life for example, grandparents or foster carers.

  1. [65]
    Finally, the Public Guardian says that the delegate decision-maker clearly identified PJC as a ‘person of significance’ to QS in its second contact decision letter. The Public Guardian contends that the Department’s submission that contact decisions involving PJC come under s 13 of the Act and are therefore not reviewable should be rejected.[81] Further, a decision to prohibit contact between a child or young person and someone who has cared for them for a significant part of their life is a decision of great importance and should be subject to the same scrutiny as decisions to restrict contact with other individuals.[82] The Public Guardian submits that the Act recognises the importance of contact with persons other than members of the child’s conventional family group and in the absence of an express limitation, s 87 of the Act should be interpreted widely.[83]
  2. [66]
    In addressing the Department’s submission as to the source of power for making the contact decisions, the Public Guardian says that the stated review rights and the fact that PJC was advised in writing of the decision, provide support for an inference that the decision was in fact made under s 87 of the Act. Further, the stated basis for making the second contact decision was under s 87 of the Act. The Public Guardian says that the approach of the delegate decision-maker in respect of both contact decisions is consistent and both indicate an intention to act under s 87 of the Act. Both decisions are therefore reviewable and the appeal should be dismissed and a review of each decision should proceed before the Tribunal.[84]

PJC’s submissions

  1. [67]
    PJC supports the submissions advanced by the Public Guardian. She also relies on her written submissions filed in the review proceeding at first instance and her further written submissions filed in the appeal proceeding.
  2. [68]
    In submissions filed in the review proceeding, PJC says that she is the most constant presence in QS’ life and the person that QS consistently turns to  for ‘security, reassurance and comfort’, and this has continued after QS was not returned to her care.[85]
  3. [69]
    At the oral hearing, PJC submits that the wellbeing and best interests of a child are paramount. PJC says that she provided a family to QS and QS referred to her as ‘Mum’. Further, although she was not a biological parent, PJC acted in the role of a parent in every way. PJC also raises a concern more generally about the Department’s decision-making in this matter and what she describes as being a number of errors made by the Department in its decision letters. PJC says that this also raises a question of accountability and, more importantly, that the manager for the relevant Department responsible for making the decisions should be, as stated by PJC at the hearing, ‘held to a higher standard’. Finally, PJC submits, amongst other things, that QS’ best interests should be paramount and that the review matter should proceed.

The proper interpretation of s 87

  1. [70]
    The appeal concerns an issue of law. In particular, it concerns questions of statutory construction as to the interpretation of s 87 of the Act and in particular, the class of persons who may be a ‘person affected by a decision’ made under s 87(2), for the purposes of s 87(3).
  2. [71]
    It is settled law that a statutory provision is to be interpreted in a way that is consistent with the language and purpose of all of the provisions of the Act.[86] Further, an interpretation of the provision that will best achieve the purpose of the Act is to be preferred.[87] In interpreting a section that contains a definition, the words of a definition should be read into the section and then the section interpreted as a whole. In Kelly v The Queen (‘Kelly’),[88] McHugh J, in quoting Barwick CJ, McTiernan and Taylor JJ, said:[89]

The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way.

(emphasis added)…

  1. [72]
    Further, in SZTAL v Minister for Immigration and Border Protection (‘SZTAL’),[90] Kiefel CJ, Nettle and Gordon JJ said that the starting point for the ascertainment of the meaning of a section is the text and the context and purpose and so too is its ordinary meaning. The relevant extract from SZTAL is as follows:[91]

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute, having regard to its context and purpose. Context should be regarded at the first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its’ ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

  1. [73]
    In interpreting s 87 and the meaning of a ‘person affected by the decision’, we find that the starting point is the text itself and the Act’s context and purpose where context should be given its widest sense and the natural and ordinary meaning of the word is preferred.[92]
  2. [74]
    A person affected by a decision made by the chief executive about contact under s 87(2) of the Act must be given a written notice as prescribed by s 87(3). The notice must comply with s 157(2) of the QCAT Act. Section 157 of the QCAT Act provides that a decision-maker for a reviewable decision must give written notice to each person who may apply for review of the decision.[93] Section 157(2) sets out those matters which must be addressed in the notice, including, the decision and the reasons for it, as well as advice as to the person’s review rights.
  3. [75]
    The Act provides in s 247 that an ‘aggrieved person’ for a reviewable decision may apply for review under the QCAT Act. Schedule 3 for relevant purposes defines ‘reviewable decision’ to mean a decision stated in Schedule 2; and defines ‘aggrieved person’ for a reviewable decision as a person stated opposite the decision in schedule 2. Schedule 2 of the Act specifies the decisions that are ‘reviewable decisions’ for the Act, and it specifies the class of persons who are ‘aggrieved persons’ for each reviewable decision.
  4. [76]
    In adopting Kelly,[94] we find that in construing s 247 of the Act the definition section is to be read into and applied in s 247. Similarly in construing s 87 of the Act and who is ‘a person affected by the decision’, to whom a notice must be given for the purposes of s 87(3), s 87 must be read together with s 247 and Schedule 2 of the Act and the paramount principles.

Who is ‘a person affected by the decision’ for purposes of s 87(3)?

  1. [77]
    We accept the Department’s submission that there is power to make a decision about contact more generally conferred by s 13 of the Act. On a plain reading of s 13 of the Act, the chief executive or someone else who is granted guardianship of a child under a child protection order has the power generally to make decisions about, amongst other things, the child’s daily care and all other powers, rights and responsibilities in relation to the child that would otherwise have been vested in the person having parental responsibility for making decisions about the long-term care, wellbeing and development of the child. The power conferred under s 13 is a broad power encompassing any decision about the child’s daily care including decisions about with whom the child has contact.
  2. [78]
    Further, there is specific power under s 12 of the Act that applies in certain circumstances as provided under s 12(1) where the chief executive or other person granted custody of the child has the right and responsibility to make decisions about the child’s daily care. This is also a broad power given to the custodian of the child to make decisions about the child’s daily care that would more broadly include decisions about with whom the child has contact.
  3. [79]
    Section 87, among other sections in Division 4, applies if the chief executive has custody or guardianship of a child: s 81. Under s 87(1) generally the chief executive must provide opportunity for contact between the child and the child’s parents and appropriate members of the child’s family. Under s 87(2) of the Act, the chief executive may refuse to allow, or restrict or impose conditions on contact between the child and a parent or member of the child’s family if satisfied it is in the child’s best interests to do so or it is not reasonably practicable in the circumstances for the parents or family members to have contact.[95] If the chief executive makes a decision about contact under s 87(2) of the Act, written notice of the decision must be given to ‘each person affected by the decision’: s 87(3).
  4. [80]
    A decision made under s 87(2) of the Act is a decision identified under Schedule 2 as a ‘reviewable decision’. An ‘aggrieved person’ under Schedule 2 where a reviewable decision has been made under s 87(2) is ‘a person affected by the decision’.[96] Schedule 2 does not further define for the purposes of s 247 who is an ‘aggrieved person’ with a right to review a decision to the Tribunal. As we have identified above, the question that arises on appeal is who is a ‘person affected by the decision’ made under s 87(2) of the Act and more importantly does that include PJC.
  5. [81]
    The meaning of a person ‘affected’ by a decision has come to be more commonly referred to as standing. The question of whether a person has standing to bring an application to challenge a decision made under an enactment has previously been considered by the courts in judicial review proceedings. Relevantly, under the Judicial Review Act 1991 (Qld) a person must have standing to bring a proceeding in that the person must be a ‘person aggrieved’ by the decision.[97] In Save Bell Park Group v Kennedy,[98] Dutney J observed that a broader view is now being taken of what constitutes standing to support an application.[99] In Save Bell Park Group v Kennedy, Dutney J relied on the decision in North Queensland Conservation Council Inc v The Executive Director, Queensland Parks and Wildlife Service,[100] and the findings of Chesterman J, who helpfully summarised the relevant authorities on standing. In North Queensland Conservation Council Inc v The Executive Director, Queensland Parks and Wildlife Service, Chesterman J said (footnotes emitted):[101]

The rationale for limiting standing as explained by Gibbs CJ in Onus suggests a solution to the problem. The plaintiff should have standing if it can be seen that his connection with the subject matter of the suit is such that it is not an abuse of process. If the plaintiff is not motivated by malice, is not a busy body or crank and the action will not put another citizen to great cost or inconvenience his standing should be sufficient. The difference in approach is that the former looks to the plaintiff’s interest in bringing the suit. The latter looks to the effect of the proceedings on the defendant. One is, in a sense, the obverse of the other. If a plaintiff’s interest is insufficient the proceedings will be abusive. It is, however, probably easier to identify a proceeding which is an abuse of process than to recognize a ‘special interest’. The distinction which must be drawn is between those who seek to prevent an abuse of process and those who seek to abuse the process itself.

  1. [82]
    In Save Bell Park Group v Kennedy,[102] Dutney J observed that in North Queensland Conservation Council Inc, Chesterman J was ‘also at pains to point out the aridity of simply comparing one case with another to determine standing’.[103] Dutney J said that, in his view, the approach taken by Chesterman J was consistent with the approach of the High Court in Allan v Transurban City Link Limited.[104]
  2. [83]
    In Allan v Transurban City Link Limited,[105] the High Court said that the starting point is the construction of the Act with regard to its subject, scope and purpose.[106] Further, the High Court said that what serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself.[107] Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said (footnotes emitted):[108]

The expression “affected by” and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as “standing”. “Standing” is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.

  1. [84]
    As in the Allan case above, we must properly begin by considering who is ‘a person affected by the decision’ in its statutory context. As discussed earlier, Schedule 2 provides that for a reviewable decision for s 87(2) using the terminology of s 87(2) itself, that is, a reviewable decision is a decision, ‘refusing to allow, restricting, or imposing conditions on, contact between a child and the child’s parents or a member of the child’s family.’ Similarly, Schedule 2 in providing that an aggrieved person for the reviewable decision, is a ‘person affected by the decision’ uses the terminology of s 87(3), in providing for the class of persons who must be given written notice by the chief executive of a s 87(2) decision.
  2. [85]
    As discussed, s 87 of the Act falls within Part 6 Division 4. That division when read as a whole contemplates that the chief executive may only make decisions about a child who is under their custody or guardianship and in so doing must satisfy certain provisions such as giving notice about the decision. For example, the chief executive may make a decision under s 82(1)(b) to place the child in the care of, amongst other things, an approved foster carer. The chief executive is required, if satisfied as to the matters set out under s 86 of the Act, to give certain information to the child’s parents about in whose care the child is placed.
  3. [86]
    Having regard to the legislative scheme, and in particular, ss 87 and 247 and Schedule 2, on a plain reading, a ‘person affected by the decision’ for the purposes of s 87(3) who must be given written notice of a s 87(2) decision, is also relevantly an ‘aggrieved person’ for a reviewable decision pursuant to s 87(2) for the purposes of schedule 2 and for s 247 of the Act.
  4. [87]
    Accordingly here, it is not appropriate to adopt a broad approach to the construction of s 247 and in interpreting the words ‘a person affected by the decision’ as used in Schedule 2 for a decision made under s 87(2) of the Act. For reasons set out below, the class of persons who may be ‘affected’ for the purposes of s 87(3) is, on a proper construction, delimited by the class of persons to whom s 87(2) has application. Section 87 only applies to decisions by the chief executive about contact between a child and the child’s parents and members of the child’s family. Under s 87(1), contact must generally be provided. However, s 87(2) provides a discretion for the chief executive to refuse to allow, or restrict or impose conditions on contact between a child and the child’s parents and members of the child’s family. If the chief executive makes a decision under s 87(2), in respect of a child and a parent or member of the child’s family, it must give a written notice to each person affected by its decision. That is, to the child and the parent or family member in respect of whom contact is refused or restricted or the subject of conditions.
  5. [88]
    On a plain reading, s 87 of the Act provides only for decisions about contact between the child and a particular class of persons namely the child’s parents or members of the child’s family. Further, for the purposes of s 87(3) only a ‘person affected by the decision’ is entitled to be given a notice, and for the purpose of Schedule 2 and s 247, is entitled to review the decision.
  6. [89]
    Section 87 of the Act does not further define the meaning of ‘child’s parents’ and ‘child’s family’. A ‘parent’ as provided under s 11 of the Act includes the child’s mother or father, or someone else (other than the chief executive) having custody or guardianship of the child under a law of the State, other than the Act; or a law of another State; and a long-term guardian.[109] Further a ‘child’s family’, although not defined, would suggest, in applying in its widest sense the natural and ordinary meaning of the words, and only a member of the child’s family is included within the class of persons contemplated in s 87(3).[110]
  7. [90]
    Consistent with the High Court decision in Allan,[111] a person who is ‘affected’ by a contact decision for the purposes of s 87(3) should be addressed by reference to the ‘subject, scope and purpose’ of the Act.[112] Section 87 of the Act when read together with Division 4 as a whole clearly contemplates that decisions about contact between the child and the class of persons identified in s 87(1) and (2) would only include the child’s mother, father and any members of the child’s family. That is, family members the child would reside with and/or would form part of the ‘child’s family’. This does not include people, who in the broader definition of a person is ‘significant’ in the child’s life and who would otherwise fall outside the ‘child’s family’, such as a former approved foster carer. Had parliament intended for a broader definition of the child’s family to be considered for the purposes of facilitating contact, a broader definition as to the class of persons to be included in s 87(1) and (2) of the Act would have been used.

The relevance of ‘kin’ in s 5B (general principles) of the Act (prior to amendment)

  1. [91]
    We do not accept the Public Guardian’s submission that PJC is a person ‘affected’ because she falls within the broader definition of ‘kin’ for the purposes of s 5B(l) of the Act in that, as provided, a child should be able to maintain relationships with the child’s parents and kin, if it is appropriate for the child. Further, ‘kin’ as defined under Schedule 3 means - (a) any of the child’s relatives who are persons of significance to the child; and (b) anyone else who is a person of significance to the child.
  2. [92]
    Although the general principles contained within s 5B of the Act underpin all decisions made by the chief executive or other relevant bodies such as the tribunal in exercising its review jurisdiction, the definition section of the Act, and in particular, the definition of kin, should not be construed in a way as to give meaning to different words in another section contained within a different part of the Act, namely here, s 87 that falls within Chapter 2. Such an approach would offend the rule in Kelly, because definition clauses are no more than ‘an aid to the construction of the statute’.[113]
  3. [93]
    More importantly, where the relevant parts of the Act into which the Act is divided make specific reference to certain powers, such as the power to refuse to allow restrict or impose conditions on contact, given to the chief executive in prescribed circumstances, had legislature intended for a broader class of persons such as ‘kin’ to be included in s 87 of the Act, it would have used the word or words accordingly. The context in which the language is used in each of s 5B in Chapter 1 and in s 87(2) in Chapter 2 is clearly different.[114]
  4. [94]
    In summary, we do not accept the Public Guardian’s submission that s 87(2) of the Act as to the class of persons who are ‘affected’ should be construed more broadly to include the child’s ‘kin’ or as further defined under Schedule 3 to include ‘persons of significance to the child’, such as to include PJC. As we have said, s 87 of the Act must be read, according to established principles of statutory construction, together with the Act as a whole. Division 4 clearly provides for decisions about contact only between the child and those persons prescribed in s 87. That is family with whom the child would reside and/or family members who would form part of the child’s family.
  5. [95]
    Further, the consistency in the terminology used in s 87(2) and (3) respectively, and the terminology in Schedule 2 in providing for a s 87(2) decision to be a ‘reviewable decision’ and for an ‘aggrieved person’ in respect of a s 87(2) decision to be ‘person affected by the decision’ does not support, and indeed, militates against the construction contended for by the Public Guardian. This is particularly when considered in context with s 247 providing that an ‘aggrieved person’ may apply to review a reviewable decision, in light of the definitions in Schedule 3 of ‘reviewable decision’ and ‘aggrieved person’ discussed earlier which are to be read into it. 

Is the class of persons ‘affected’ under s 87(3) broadened by the amending provisions?

  1. [96]
    A subsequent amendment to an Act may inform the meaning of a statutory provision.[115] In this matter, the Act was amended by the insertion of, amongst other things, the relevant s 5BA and a new s 79A. It is noncontroversial that s 87 and s 247 of the Act have not been amended.
  2. [97]
    We accept the Department’s submission that the decision of Parliament to draft s 79A using the language it did and to leave s 87 ‘undisturbed’ despite the principal amendments and innovations of the amending Act are jurisdictionally significant.[116] We observe that s 79A provides an avenue for review in the tribunal in certain circumstances where a complaint has been made under s 80B about the non-compliance by a guardian other than the chief executive with its obligations under s 79A and the chief executive refuses to deal with the complaint under s 80D.
  3. [98]
    The Public Guardian’s submits that Parliament cannot have intended a situation which the Department’s interpretation of s 87 would create that the outcome of the amendments is to create a situation where a child under the guardianship of someone other than the chief executive may complain and have review rights in broader circumstances. We do not accept this argument. Had Parliament intended the class of persons who may be affected by a decision made under s 87 of the Act to be broadened, those persons identified in s 87(1) and (2) may have been extended to include, for example, a person of significance. It was not.
  4. [99]
    Further, as we have identified above, there is under s 99P of the Act a mechanism of review in the Tribunal to file an application on behalf of a child with the President’s permission. Notwithstanding, as we have said above and in applying Allan v Transurban City Link Limited,[117] the class of persons ‘affected’ must be considered with regard to the subject, scope and purpose of the Act.

Is PJC a person ‘affected by the decision’ under s 87(3)?

  1. [100]
    PJC is a former approved foster carer for QS. Although PJC may therefore be considered broadly to be a person of significance in QS’ life, she is not a parent of QS nor is she part of QS’ family.
  2. [101]
    As discussed, on a proper construction, s 87(3) of the Act which provides that a person  ‘affected by the decision’, who is entitled to be given a written notice of the decision, must properly be interpreted in the context of the words in the other sub-sections of s 87, in particular, s 87(2). A decision made under s 87(2) is a decision of the chief executive to refuse, or restrict, or impose conditions upon contact between a child and the child’s parents or a member of the child’s family. That is, to be a person ‘affected by the decision,’ the person must fall within the specified class of persons: therefore, a person affected must be a child, a parent of a relevant child or a member of the child’s family.
  3. [102]
    PJC does not fall within the definition of ‘parent’, nor is she a member of the child’s family as provided under the Act, even though QS was in PJC’s care for a long time. The decision to place QS in PJC’s care was, although continuing for a number of years, always temporary in the sense that the chief executive had guardianship of QS under a child protection order.
  4. [103]
    We accept the Department’s submission that the correct source of power to make decisions about QS’ daily care and wellbeing including a decision about whether QS and PJC have contact is under s 13 of the Act. A decision made under s 13 is not reviewable notwithstanding the fact that the Department advised PJC in its first contact decision letter that she had an entitlement to review the decision. That said, it was not for PJC to interpret the Act to ascertain whether the Department correctly provided a notice to her. In light of the Department’s advice to PJC that she was entitled to review the decision, it was proper for the review proceeding to be commenced by PJC. It was then for the Tribunal to determine its jurisdiction for the review.[118]
  5. [104]
    For completeness, we make the following observations. The Department purported to make the second decision pursuant to s 87 and advised PJC that she had an entitlement to review it. That second decision was not the subject of a review application. Had it been, once again, it would have been for the Tribunal to determine its jurisdiction. As the Department had no power to make the second decision pursuant to s 87, we would have concluded in any event that PJC is not an aggrieved person or a person affected by the decision, for a relevant ‘reviewable decision’ of a s 87(2) decision, as specified in Schedule 2. Therefore, once again, the Tribunal would not have jurisdiction for the review.

Disposition of the appeal and orders

  1. [105]
    We are satisfied that there is a question of general importance that arises in the determination of the application for leave to appeal as to the scope of decisions that the Department can make about contact in particular under s 87(2) of the Act and who is a person affected by the decision under s 87(3) who may apply to the Tribunal to review those decisions.  Leave to appeal is granted.
  2. [106]
    An error of statutory construction is an error of law.  For the reasons we have explained, the Tribunal erred as a matter of statutory construction in finding that the first contact decision was made under s 87 of the Act. Further, it erred in finding that PJC was a person affected by the decision for the purposes of s 87(3).  The error materially affected the Tribunal’s decision in refusing to dismiss the application for review.
  3. [107]
    We allow the appeal. In allowing the appeal on a question of law only, we must proceed under s 146 of the QCAT Act.  We set aside the Tribunal’s decision refusing to dismiss the application for review. The Tribunal does not have jurisdiction for the review because the first decision is not a reviewable decision and PJC is not an aggrieved person. The application for review is misconceived. It should therefore be dismissed pursuant to s 47 of the QCAT Act.
  4. [108]
    We make orders accordingly.
  5. [109]
    Any new decisions about contact between QS and PJC will be made under the Act as amended, although not reviewable because it will be made under s 13 of the Act. We observe that PJC asserts in responding to the appeal that QS wishes to have contact with her. If the Department is satisfied that this is so, it may be in the best interests of QS for contact to be facilitated by the Department in exercising its broad discretionary powers under the Act. This is particularly important in light of the recent amendments to the Act and the inclusion of the new s 5BA that contains relevant principles for achieving permanency for a child including, for example, to ensure that the child experiences or has ongoing positive, trusting and nurturing relationships with ‘persons of significance to the child’.

Footnotes

[1]  Decision letter dated 23 May 2017. See attachment ‘TJF-01’ to the submissions filed by the Department on 18 August 2017, in support of the application to dismiss the review application in CML256-17.

[2]  Application to review a decision – children’s matter filed on 4 July 2017. See further contact decision dated 14 July 2017, attachment ‘TJF-02’ to the submissions filed by the Department on 18 August 2017, in support of the application to dismiss the review application in CML256-17.

[3]  Decision letter dated 14 July 2017.

[4] PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350.

[5]  Application for leave to appeal or appeal filed 17 November 2017.

[6]  Email from the Department to the Tribunal dated 26 November 2018. See also the Child Protection Reform Amendment Act 2017 (Qld) that commenced on 29 October 2018.

[7]  Appeal Tribunal directions dated 28 November 2018 and 14 December 2018. See also Department’s submissions dated 14 December 2018; submissions filed by PJC on 2 January 2019; further outline of argument filed by Public Guardian on 4 January 2019.

[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142(3)(ii).

[9]  Department’s outline of argument filed 6 February 2018.

[10]  Ibid.

[11]  Ibid.

[12]  The Public Guardian’s outline of argument filed 20 April 2018.

[13]  Ibid.

[14]  Application for leave to appeal or appeal filed 17 November 2017.

[15] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[16] Cachia v Grech [2009] NSWCA 232, [13].

[17] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[18] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578–80.

[19]  Decision letter dated 14 July 2017, see attachment ‘TJF-02’ to the submissions filed by the Department on 18 August 2017, in support of the application to dismiss CML256-17.

[20] PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 2 [5].

[21]  Ibid [8].

[22]  Ibid [9].

[23]  Ibid, 3 [11].

[24]  Ibid [14].

[25]  Ibid, 4 [17].

[26]  Ibid [18].

[27]  Ibid [19].

[28]  Ibid.

[29]  Ibid.

[30]  Ibid, 5 [26].

[31]  (1994) 181 CLR 404, 421. See also PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 5 [28].

[32] PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 5 [28].

[33]  Ibid [29].

[34] Child Protection Act 1999 (Qld) s 4 (‘the Act’).

[35]  Ibid s 5A.

[36]  Ibid ss 4–6.

[37]  Ibid s 11.

[38]  Ibid s 13.

[39]  Ibid s 81.

[40]  Ibid s 87(1).

[41]  Ibid s 247.

[42]  See QCAT Act. 

[43]  QCAT Act ss 18, 20.

[44]  The Act, ss 87, 247, sch 2.

[45]  Ibid s 99P(2).

[46]  The Act s 247; sch 2.

[47]  Department’s submissions filed 14 December 2018.

[48]  Ibid.

[49]  The Public Guardian’s further outline of argument filed 4 January 2019.

[50]  Ibid.

[51]  (1931) 46 CLR 73. See recent discussion in Gold Coast City Council v Sunland Group Limited & Anor [2019] QCA 1188, [172].

[52] Allesch v Maunz (2000) 203 CLR 172; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.

[53]  See generally Harrison & Anor v Meehan [2017] QCA 315; Albrecht v Ainsworth [2015] QCA 220; Ericson v Queensland Building and Construction Commission [2014] QCA 297.

[54]  Ibid.

[55]  (1931) 46 CLR 73 (per Dixon J).

[56]  (2012) 246 CLR 117, [30]–[32].

[57]  Ibid.

[58]  Department’s outline of argument dated 6 February 2018.

[59]  Ibid.

[60]  Ibid. See also, PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 2 [8].

[61]  Department’s outline of argument dated 6 February 2018.

[62]  Ibid [34].

[63]  Ibid.

[64]  Ibid.

[65]  Ibid.

[66]  Department’s outline of argument filed 6 February 2018, [30].

[67]  Ibid, [33].

[68]  Department’s reply filed 21 May 2018.

[69]  Department’s outline of argument filed 6 February 2018.

[70]  Ibid. See also PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 5 [27].

[71]  The Public Guardian’s outline of argument filed 20 April 2018, [5].

[72]  Ibid.

[73]  Ibid.

[74]  Ibid. See also PJC v Department of Communities, Child Safety and Disability Services [2017] QCAT 350, 3 [12].

[75]  The Public Guardian’s outline of argument filed 20 April 2018, [12].

[76]  Ibid, [15].

[77]  Ibid.

[78]  Ibid, [18].

[79]  Emphasis added; ibid.

[80]  The Public Guardian’s outline of argument filed 20 April 2018, [24].

[81]  Ibid, [26].

[82]  Ibid, [26].

[83]  Ibid.

[84]  Ibid. See also the Public Guardian’s addendum outline of argument filed 21 May 2018.

[85]  PJC’s submissions in relation to CML156-17 (undated), [8].

[86] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[87] Acts Interpretation Act 1954 (Qld) s 14A.

[88]  (2004) 218 CLR 216.

[89]  Ibid, [103]. See also Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628, 635.

[90]  Ibid.

[91]  Ibid, [14].

[92]  See SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.

[93]  QCAT Act s 157(1).

[94]  (2004) 218 CLR 216.

[95]  The Act s 87(3).

[96]  The Act sch 3 defines an ‘aggrieved person’ for a reviewable decision.

[97] Judicial Review Act 1991 (Qld) s 7. 

[98] Save Bell Park Group v Kennedy [2002] QSC 174.

[99]  Ibid, [10].

[100]  [2000] QSC 172.

[101]  Ibid, [12] (Chesterman J).

[102]  [2002] QSC 174.

[103]  Ibid, [11].

[104]  (2001) 208 CLR 167.

[105]  Ibid.

[106]  Ibid, [16].

[107]  Ibid, [17].

[108]  Ibid, [15]–[17].

[109]  See meaning of ‘parent’ under sch 3 that refers to s 52 for ch 2, pt 4 of the Act.

[110]  See SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14].

[111]  (2001) 208 CLR 167.

[112]  Ibid, [15].

[113] Kelly v The Queen (2004) 218 CLR 216, [103].

[114]  See Australian Postal Corporation v Sinnaiah and Others [2013] FCAFC 98, [24].

[115]  See Gantly Pty Ltd & Ors v Phoenix International Group Pty Ltd & Anor [2010] VSC 106.

[116]  Department’s submissions filed 14 December 2018.

[117]  (2001) 208 CLR 167.

[118] Till v Logan City Council [2018] QCATA 150.

Close

Editorial Notes

  • Published Case Name:

    Department of Child Safety, Youth and Women v PJC & Anor

  • Shortened Case Name:

    Department of Child Safety, Youth and Women v PJC

  • MNC:

    [2019] QCATA 109

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Browne

  • Date:

    24 Jul 2019

Appeal Status

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