Overview

The Director-General of the Health and Community Services Directorate can make decisions about the children and young people, and young adults, who are or were in the care of the Director-General.

A person who wants to apply to ACAT under Chapter 16A for review of a Director-General’s decision should usually go through an internal review process before coming to ACAT.

Before you apply

Below is important information you should know before making an application to ACAT under Chapter 16A of the Children and Young People Act 2008 for review of a decision.

What decisions are reviewable?

Under Chapter 16A of the Children and Young People Act 2008 ACAT can review some Director‑General decisions, such as:

• providing supports and services to a parent of a child or young person who is the subject of a Court order for interim or short-term care and protection
• contact arrangements
• a supervision or drug use provision
• placement decisions
• refusing to provide supports or services to a child, young person, or young adult
• a child’s or young person’s health, culture, religion, or education
• a cultural plan for an Aboriginal or Torres Strait Islander child or young person
• refusing to assist a child or young person for whom the Director-General has, or had, parental responsibility
• refusing to assist a child, young person, or young adult who was in out-of-home care
• refusing to provide financial assistance to a child, young person, or young adult who was in out-of-home care
• refusing to provide financial assistance to a previous out-of-home carer.

A list of decisions that are reviewable under Chapter 16A of the Children and Young People Act 2008 is set out in Schedule 1, Parts 1.2 and 1.3 of the Children and Young People Regulation 2009.

What is an internal review?

If the Director-General makes a decision that is reviewable under Chapter 16A of the Children and Young People Act 2008, people affected by the decision will be given an internal review notice. The internal review notice will tell you that if you do not agree with the decision, you can ask for an internal review.

An internal review is carried out by another person in the Health and Community Services Directorate who will review the original decision. This person will look at the facts of the original decision and make a second decision, known as a reviewable decision. If you do not agree with the reviewable decision, you can apply to ACAT for review of the reviewable decision.

Can I apply to ACAT without asking for an internal review?

Generally, an internal review must be undertaken by the Director-General before you apply to ACAT. However, you can apply directly to ACAT if you consider exceptional circumstances exist.

Examples of exceptional circumstances in the Children and Young People Act 2008 are:

• a decision that would significantly affect a child’s or young person’s relationship with a significant person
• a decision that, if set aside after it takes place, would cause significant disruption for the child or young person, such as to place a child with a carer interstate
• a decision that would be impractical or impossible to reverse, such as to allow a young person to undergo an irreversible medical procedure
• a decision that is likely to cause harm to a child or young person, such as to restrict a breast‑feeding person’s contact with their child
• an affected person will be denied procedural fairness if an application for review of the decision is not undertaken quickly.

How long do I have to make an application to ACAT?

For most decisions, you must make an application to ACAT:

• within 28 days of the date of the decision being made; or
• within 28 days after the day the notice of decision is given (if the notice is given to you later than five days after the decision was made).

Can I apply for an extension of time to apply to ACAT?

If you need an extension of time, fill out the ‘application for extension of time’ section on the Application for Review of a Decision under Chapter 16A, Children and Young People Act 2008 [PDF 358KB] form. ACAT will give the Director-General a copy of your application. You will be named as the applicant. The Director-General will be named as the respondent to the application.

If you have applied for an extension of time ACAT will usually hold an interim hearing to decide whether there are reasonable grounds to extend time. At the interim hearing, you and any other party to the application will be given a chance to express a view.

Are there any fees involved?

There is no fee to lodge an application under Chapter 16A of the Children and Young People Act 2008.

There is no fee to lodge a subpoena in an application under Chapter 16A of the Children and Young People Act 2008, however the person or organisation you are subpoenaing may ask for conduct money and the reasonable costs they incur to comply with the subpoena.

Who are the parties to an ACAT application?

If you make an application to ACAT under Chapter 16A of the Children and Young People Act 2008 you will be named as the applicant. The Director-General of the Health and Community Services Directorate will be named as the respondent. The applicant and the respondent are parties to the application.

A party is a person or organisation who is directly involved in the ACAT proceedings. This means they can make submissions and have a right to attend and speak at a hearing.

Sometimes, another person who has an interest in the application can apply to be joined as a party to the ACAT proceedings. If ACAT decides to make them a party they will be named as a party joined. A party joined has all the same rights as the applicant or respondent.  They will be permitted to attend and may be expected to make submissions and speak at a hearing.

A person who does not want to be joined as a party, who has information relevant to the application, may be asked by a party to the application to be a witness and to make a witness statement.

The Public Advocate and the Aboriginal and Torres Strait Islander Children and Young People Commissioner, if the child or young person is Aboriginal or Torres Strait Islander, will be advised about the application and be permitted to participate at a hearing.

Who will be told about my application?

ACAT will always give a copy of your application to the respondent, being the Director-General who made the decision under review.

After ACAT tells the Director-General about your application, the Director-General must tell the following people:

• each affected person (being anyone who can also apply for review of the decision, or has interests that are affected by the decision); and
• the Public Advocate; and
• the Aboriginal and Torres Strait Islander Children and Young People Commissioner (if the child or young person is an Aboriginal or Torres Strait Islander person).

Is the decision under review automatically stayed?

If a decision is stayed, it means that it is paused for a period of time. A decision is not automatically stayed when an application to ACAT is made. The decision continues to operate unless ACAT makes an order to stay the decision.

To request ACAT to stay the operation of the decision being reviewed, fill in the ‘interim or emergency orders’ section when you complete your application. You will need to explain what order you want ACAT to make and why. A stay can be for a short amount of time, or until ACAT decides the application.

For example, if the decision is to relocate the child, a stay on the decision would mean the child is not relocated until the stay ends or until ACAT makes an order to lift the stay.

If you request a stay of the decision, ACAT will usually hold an interim hearing as early as possible to consider whether to grant your request. At the hearing you and any other party will be given a chance to express a view about your request for a stay.

Are ACAT hearings private?

All applications made under Chapter 16A of the Children and Young People Act 2008are heard in private. This means that unless the ACAT gives another person permission to attend, the only people who can attend a hearing are:

• the parties;
• the child or young person (with their litigation guardian if they have one);
• the Public Advocate;
• the Aboriginal and Torres Strait Islander Children and Young Person Commissioner (if the child or young person is an Aboriginal or Torres Strait Islander person);
• the legal or authorised representatives of the parties or other participants.

ACAT may also make orders to:

• prohibit or restrict access to the ACAT file;
• prohibit or restrict the publication of evidence given at a hearing;
• prohibit or restrict the publication or disclosure of matters contained in documents filed with the tribunal or received in evidence for the hearing;
• anonymise the name of a party or another person;
• anonymise the name of a child or young person.

The Public Advocate or Aboriginal and Torres Strait Islander Children and Young People Commissioner can make an application on behalf of a child or young person. They can also appear and give evidence at any hearing where they are not the litigation guardian.

Does the child or young person take part in the ACAT application?

A child or young person who is the subject of an application has a right to express their views.

If a child or young person wants to give evidence they may do so.

The child or young person can only be asked questions by:

• ACAT
• their legal representative (if any)
• their litigation guardian (if any).

A child or young person must not be:

• compelled to give evidence
• cross examined.

Will the child or young person need a litigation guardian?

A litigation guardian is a person who represents and safeguards a child’s or young person’s interests. They must instruct the legal representative, if any, for the child or young person.

ACAT can appoint a litigation guardian if it is in the child’s or young person’s best interests. Only a suitable person, who agrees, can be appointed as a litigation guardian.

ACAT must appoint a litigation guardian if the Public Advocate or Aboriginal and Torres Strait Islander Children and Young People Commissioner made the application to ACAT on behalf of the child or young person.

Will the child or young person need a legal representative?

ACAT must appoint a legal representative if it considers it is in the child’s or young person’s best interests.

A legal representative will act as either a direct legal representative or an independent legal representative for a child or young person.

• A direct legal representative presents the child’s or young person’s views and wishes and takes instructions from the child or young person.
• An independent legal representative presents the views and wishes and safeguards the interests of the child or young person. If a litigation guardian has been appointed, the legal representative must also act on the litigation guardian’s instructions.

What if there are related court proceedings?

If there are related care and protection proceedings before a court, you may still be able to make an application to ACAT.

Tell ACAT when you make your application that there are ongoing court proceedings, or if court proceedings start after you make your application. The Director-General must also tell ACAT about any court proceedings that may be relevant to the ACAT review application.

ACAT must suspend your ACAT review application if it considers that in the related court proceedings, the court will decide some, or all, of the matters that ACAT is being asked to decide.

If an application is suspended, it means that no action will be taken in the ACAT review matter until the suspension is cancelled. For example, ACAT will not list a hearing, and ACAT will not make any decisions.

After the related court matter is finalised, if the matters to be decided by ACAT are not decided by the court, ACAT may cancel the suspension and continue the ACAT review application.

However, ACAT must dismiss your ACAT review application if the Court effectively decides the matters ACAT is being asked to decide.

What are the final orders ACAT can make?

ACAT has the same powers as the Director-General. ACAT can make a final order to:

• confirm; or
• vary; or
• set aside the decision under review.

If a decision is set aside, ACAT may make a substitute decision or give the case back to the Director‑General for reconsideration with any direction or recommendation of ACAT.

ACAT decisions are binding and have effect as if they were made by the Director-General. The orders take effect on the day ACAT makes its final order unless the order states otherwise.

Will I have to pay costs?

Generally at ACAT each party bears their own legal costs. There are some circumstances where a party may be ordered to pay another party’s costs.

Do I need a lawyer?

See our information about:

• should I represent myself?
• free legal advice providers.

ACAT registry staff can give you procedural information, but not legal advice.

You may decide to get legal advice early, before making an application or before the first directions hearing.

Making an application

Steps involved

To make an application, you need to:

• Fill in the Application for Review of a Decision under Chapter 16A, Children and Young People Act 2008 [PDF 358KB]
• Attach a copy of the decision you want ACAT to review
• Lodge the form at ACAT after checking you have completed all details in full

There is no fee to make an application under Chapter 16A of the Children and Young People Act 2008.

Remember to consider:

• do you need to ask for an internal review first?
• if you are applying to ACAT for review of an internally reviewable decision, what do you say are the exceptional circumstances that allow you to apply to ACAT without first asking for an internal review by the Director-General?
• are you applying within the timeframe for making the application, or do you need to apply for an extension of time?
• do you need to ask ACAT for a stay (pause) of the decision you want reviewed?
• do you want ACAT to make any urgent orders?

After you apply

What happens next?

After an application is lodged in ACAT, if no changes need to be made, ACAT will give the Director‑General a copy of your application and any attachments.

The Director-General must notify people affected by the decision, the Public Advocate, and the Aboriginal and Torres Strait Islander Children and Young People Commissioner about your review application.

People affected by the decision may apply to be joined as a party to the application.

The Director-General must give to the applicant and the ACAT a notice with their contact details, the documents relevant to the decision to be reviewed, and a statement of reasons for the decision. These documents may also be provided to other people if they are joined as a party to the review application, unless ACAT orders otherwise.

How will my case be progressed?

ACAT will usually schedule a directions hearing to discuss your application and decide how the case will be resolved.

At the directions hearing, ACAT will discuss with the parties:

• how the case will proceed through ACAT
• what you, and other parties, are required to do
• what are the timeframes for the parties to do things, such as filing submissions and witness statements

To prepare for a directions hearing, think about:

• do you want a conference?
• when are you not available in the coming months?
• do you have evidence or witness statements you want to submit?
• do you want ACAT to make non-disclosure or non-publication orders?
• do you want ACAT to suppress your name, the name of or other details about the child or young person, or someone else involved in the case?

Sometimes, ACAT may list a matter for an interim hearing to discuss issues that arise. For example, to decide whether exceptional circumstances exist so that ACAT will deal with the application to review a decision, even though no internal review has been carried out.

Often a case will be scheduled for a conference. If the case does not resolve at the conference, the parties will need to prepare for a hearing. About a week before the hearing, ACAT may hold a final directions hearing. This gives you another opportunity to ask questions about the hearing process.

The case will be heard by an ACAT Member or Members. At the end of the hearing, the ACAT Member or Members will either deliver a decision immediately, or they will tell the parties if they need to reserve their decision and give it later.

Urgent applications

If your application is urgent, or you are seeking urgent interim orders, fill in the ‘interim or emergency orders’ section on your Application for Review of a Decision under Chapter 16A, Children and Young People Act 2008 [PDF 358KB]. You will need to set out what orders you are requesting and why.

If you have already lodged your application, you can complete an online application for interim or other orders form or printable application for interim or other orders form [PDF 231KB]. You will need to set out what orders you are requesting and why.

It is important that you give as many details as possible when making a request for urgent orders. You can attach an extra page to the application if you need more space.

ACAT will give a copy of your application to any other parties and ask for their views. ACAT may then make immediate orders in chambers or schedule the case for an interim hearing as soon as possible to consider your request.

Appeals

If you think ACAT made an error when it decided the application, you may apply to appeal within 28 days of the decision.

More information

Find out about:

• attending ACAT
• accessibility
• how to contact us
• conferences
• hearings
• Children and Young People Act 2008:
  • Section 635F – Application for ACAT review – internally reviewable decision
  • Section 635H – Application for ACAT review – reviewable decision
  • Section 635I – Application for ACAT review by certain statutory office-holders – reviewable decision
• Children and Young People Regulation 2009
• Schedule 1 Part 1.2 and Part 1.3 – list of D-G internally reviewable decisions
• ACAT rules:
  • part 3.5, applications for review of administrative decisions; and
  • chapter 2, general rules.