LT v STATE OF SOUTH AUSTRALIA [2025] SASC 133
Applicant: LT Counsel: MR C KUMMEROW - Solicitor: DANNI STEPHENS LEGAL
Respondent: STATE OF SOUTH AUSTRALIA Counsel: MS D SEAL - Solicitor: CROWN
SOLICITOR (SA)
Hearing Date/s: 14/06/2024
File No/s: CIV-23-013914
B
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply
to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach
any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated.
LT v STATE OF SOUTH AUSTRALIA
[2025] SASC 133
Judgment of the Honourable Justice McDonald
21 August 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL
REVIEW
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND
CAPACITY - CHILDREN - CRIMINAL CAPACITY
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS -
CERTIORARI - DISCRETION OF COURT AND MATTERS PRECLUDING
RELIEF
This is an application for judicial review of two decisions made in the Youth Court. These were the
decisions of a Youth Diversion Officer (‘YDO’) to refer two matters to a Youth Justice Co-ordinator
(‘YJC’) pursuant to s 7(2) of the Young Offenders Act 1993 (SA) (‘the Act’), and a decision of the
YJC to convene a family conference to deal with these offences pursuant to s 10(2) of the Act.
LT seeks orders that a writ of certiorari be issued quashing the decision of the YJC to deal with these
two matters by way of a family conference, a declaration that LT had not admitted the offences, and
an order that the matters be remitted back to the Youth Court for determination according to law.
No reasonable basis has been established for the relief sought. The nature of the actions taken by the
YDO and YJC under the Act do not produce any foreseeable consequences or have any legal effect
in respect of which the relief sought might lie. The decisions that were made did not confer on or
deny LT any right, interest or legitimate expectation.
Held:
The application is dismissed.
Young Offenders Act 1993 (SA) ss 3, 4, 6, 7, 10, 11, 12, 58; Criminal Law Consolidation Act 1935
(SA) ss 134, 169; Uniform Civil Rules 2020 (SA) r 256.3, referred to.
BDO v The Queen (2023) 277 CLR 518; Ferdinands v District Court of South Australia [2010] SASC
265; Ferdinands v District Court of South Australia [2011] SASCFC 139; L v South Australia (2017)
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129 SASR 180; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for
Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Minister for Immigration and Border
Protection v SZVFW (2018) 264 CLR 541; RP v The Queen (2016) 259 CLR 641, applied.
LT v Police [2024] SASC 105; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR
559; R v M (1977) 16 SASR 589, discussed.
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LT v STATE OF SOUTH AUSTRALIA
[2025] SASC 133
Civil: Judicial Review
McDONALD J.
1 This is an application for the judicial review of two decisions made in the
Youth Court. These were the decisions of a Youth Diversion Officer (‘YDO’) to
refer two matters to a Youth Justice Co-ordinator (‘YJC’) pursuant to s 7(2) of the
Young Offenders Act 1993 (SA) (‘the Act’), and a decision of the YJC to convene
a family conference to deal with these offences pursuant to s 10(2) of the Act.
2 At the time that each of these decisions were made, the youth in question,
LT, was 13 years of age.1 This application raises issues of doli incapax in the
context of the family conference diversionary scheme.
3 LT seeks orders that a writ of certiorari be issued quashing the decision of
the YJC to deal with these two matters by way of a family conference, a declaration
that LT had not admitted the offences, and an order that the matters be remitted
back to the Youth Court for determination according to law.
Extension of time
4 Pursuant to r 256.3 of the Uniform Civil Rules 2020 (SA), an action for
judicial review must be commenced as soon as practicable after the decision, act,
or omission the subject of the action;2 and, in any event within six months after the
decision, act or omission the subject of the action.3
5 As the dates of the relevant decisions were 14 and 17 February 2023, and the
initiating application was not filed until 1 December 2023, LT requires an
extension of time in which to bring these proceedings.
6 Rule 256.3(2) of the Uniform Civil Rules 2020 (SA) permits an extension of
time to be granted subject to leave of the Court.
7 The factors ordinarily taken into account in determining an application for an
extension of time for a judicial review are the length of the delay, the reason for
the delay, the merits of the application and any prejudice to the respondent should
the application be granted.4
8 An affidavit has been filed by LT’s solicitor in support of the application for
an extension of time.5 The affidavit sets out some of the history leading up to the
1 LT’s date of birth is 28 December 2009.
2 Uniform Civil Rules 2020 (SA) r 256.3(1)(a).
3 Uniform Civil Rules 2020 (SA) r 256.3(1)(b).
4 Ferdinands v District Court of South Australia [2010] SASC 265 at [19] (Gray J); Ferdinands v District
Court of South Australia [2011] SASCFC 139 (Full Court).
5 FDN 2, Affidavit of Madaline Ceile Anderson dated 29 November 2023.
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[2025] SASC 133 McDonald J
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filing of the Originating Notice. For current purposes, it is not necessary to
descend into the detail of that history other than to note the following:
• On 16 June 2023, LT’s solicitor was first contacted by the Department
of Human Services (Youth Justice) regarding LT, who at that time had
been refused bail and was remanded in custody on an unrelated matter.
• Upon reviewing LT’s Offender History Report, LT’s solicitor became
aware of previous charges that had been finalised before she had
become involved.
• There then followed a period of the solicitor liaising with the Legal
Services Commission, which involved obtaining opinions from counsel
with respect to the appropriate avenues for reviewing previously
finalised charges.
• This resulted in a Notice of Appeal being lodged in relation to other
unrelated matters on 11 August 2023.6
• On 1 November 2023, LT’s solicitor received advice from counsel in
relation to seeking an administrative review of the matters that are
currently before this Court.
• On 10 November 2023, LT’s solicitor wrote to the Legal Services
Commission to seek funding for the administrative review.
• On 17 November 2023, funding was approved.
• On 29 November 2023, LT’s solicitor lodged the application for review.
9 As is apparent from this brief chronology, since LT’s solicitor first became
aware of his situation, she has acted conscientiously and diligently to effectively
progress these and other matters involving LT’s previous interactions with the
criminal justice system. Regardless of the outcome of this application, her
approach to reviewing LT’s previous finalised charges, and attempting to address
what were perceived to be, at least potentially, historic miscarriages of justice,
should be commended.
10 The explanation provided for the delay is entirely reasonable.
11 The respondent does not oppose the granting of an extension of time, nor do
they claim to be prejudiced by the delay. The application for judicial review cannot
be said to be entirely without merit, particularly given the importance of ensuring
that the safeguards, which are put in place for youths who enter into the criminal
justice system, are maintained.
6 This is now the subject of LT v Police [2024] SASC 105.
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12 It follows that, in all of the circumstances, it is appropriate to grant the
extension of time.
Factual Background
13 There is no dispute about the factual background leading up to the impugned
decisions.
27 January 2023 offences
14 At about 5.28am on 27 January 2023, offenders broke into the K-Hub store
on the main street of Port Augusta. The glass front door was smashed. CCTV
footage was obtained from the scene, which showed the offenders breaking in. The
offenders unsuccessfully attempted to open a cash register and a glass cabinet next
to the registers. The offenders took several drinks from the fridge before leaving
the store.
15 The following day, police located and arrested LT. He was wearing the same
clothing as was seen to be worn by one of the offenders in the CCTV footage.
16 As a consequence of these events, LT was charged with aggravated serious
criminal trespass,7 and aggravated dishonestly dealing with property without the
owner’s consent.8
17 On 29 January 2023, LT was granted police bail for these offences.
30 January 2023 offences
18 At about 6.50pm on 30 January 2023, offenders broke into the Port Augusta
Cultural Centre. A window had been smashed and a security guard could hear
young people yelling inside. The security guard used his telephone to record LT
and three other youths exiting the building and running away. When police
attended the scene, they observed that the building had been ransacked and items
were strewn about. An Apple Watch that had been left at the Centre and an iPhone
belonging to the Centre had been stolen. Facial recognition software was used to
identify LT.
19 On 31 January 2023, the stolen Apple Watch was traced to a residence at Port
Augusta West. Police attended at the address, searched the property and arrested
LT. He was charged with aggravated serious criminal trespass,9 and aggravated
dishonestly dealing with property without the owner’s consent.10
Police Interviews
20 On 31 January 2023, LT was interviewed for the 30 January 2023 offences,
in the presence of his mother. LT admitted that he was with three youths who had
7 Criminal Law Consolidation Act 1935 (SA) s 169(1).
8 Criminal Law Consolidation Act 1935 (SA) s 134(1).
9 Criminal Law Consolidation Act 1935 (SA) s 169(1).
10 Criminal Law Consolidation Act 1935 (SA) s 134(1).
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forced their way into the building and admitted to entering after they had broken
in. LT told the police that the other youths gave him the Apple Watch and iPhone,
and he had taken those items to the Port Augusta West address. During the course
of the interview, LT answered questions that were related to the issue of doli
incapax.
21 On 12 February 2023, the police interviewed LT in relation to the 27 January
2023 offences. Again, this interview was conducted in the presence of his mother.
LT admitted to breaking the front door/window of the K-Hub store with a scooter,
in the company of a friend. He also admitted that he entered the store through the
broken door/window and stole drinks from the fridge, before exiting the same way.
22 LT told the police that he did not know why he broke into the store, but
admitted that he was aware that “breaking in” was an offence and he knew that he
would be arrested if he was to commit such an offence. LT told the police that if
they had been watching, he would not have done what he did as he knew that it
was the wrong thing to do.
Doli incapax
23 The applicant was a youth to whom the doctrine of doli incapax applied. Doli
incapax is a doctrine concerning the legal capacity of a child to commit a criminal
offence.
24 As the applicant was aged 13 at the time of this offending, he was entitled to
the benefit of the doctrine of doli incapax in the proceedings that are the subject of
this application.
25 In South Australia, no child under the age of 10 years can commit an
offence.11 For children aged 10 to 13 years (that is, above the age of nine years but
below the age of 14 years), the common law doctrine of doli incapax, as modified
by statute, operates as a presumption that a child lacks capacity to form the mens
rea and cannot, therefore, commit an offence.12 This presumption can be rebutted
by the prosecution calling evidence to prove beyond reasonable doubt that the
child, at the time of engaging in the relevant conduct, knew that the conduct was
seriously wrong as a matter of morality or according to the ordinary principles of
reasonable people (not merely that the conduct was naughty or mischievous).13
26 Regardless of how obviously wrong the act or acts constituting the conduct
may be, the presumption cannot be rebutted merely as an inference arising from
carrying out that act or those acts.14 Equally, proof that a child is of “normal”
mental capacity for their age will of itself be insufficient to prove their capacity to
11 Young Offenders Act 1993 (SA) s 5.
12 R v M (1977) 16 SASR 589 at 590.
13 RP v The Queen (2016) 259 CLR 641 at [9].
14 RP v The Queen (2016) 259 CLR 641 at [9].
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know or understand that their conduct is morally wrong by the standard of
reasonable adults.15
27 The rationale underpinning the doctrine is that it is presumed that a child
under the age of 14 is not sufficiently intellectually or morally developed to
appreciate the difference between right and wrong, and consequently lacks the
capacity for criminal responsibility.16
28 It is clear that had LT pleaded not guilty to the charges that he faced and
proceeded to trial, it would have been necessary for the prosecution to lead
evidence capable of displacing the presumption in order to prove the offences.
Statutory regime
29 Before turning to consider how the charges against LT proceeded, it is
convenient to first set out the relevant legislative provisions.
30 The Young Offenders Act 1993 (SA) creates a statutory framework for the
disposition of criminal allegations involving children in South Australia. Within
the Act, there is an emphasis on rehabilitating youths into “useful members of the
community” and on youths securing “proper realisation of their potential”.17 Of
note, s 3(2)(a) of the Act expressly recognises that “a youth should be made aware
of his or her obligations under the law and of the consequences of breach of the
law”; no doubt as part of the process of rehabilitation.
31 The Act creates a number of pathways for a youth to be dealt with in the
youth justice system, consistent with the policies underpinning the Act.
32 Part 2 of the Act creates a regime for “Minor offences”. “Minor offences”
are defined as offences which, in the opinion of the police officer, should be dealt
with as minor, having regard to four specified considerations. These are:18
• the limited harm caused by the commission of the offence;
• the character and antecedents of the youth;
• the improbability of the youth re-offending; and
• where relevant – the attitude of the youth’s parents or guardians.
33 Division 1 of Part 2 of the Act divides the powers of the Court into “Informal
cautions”19 and “More formal proceedings”.20 A necessary prerequisite before
15 BDO v The Queen (2023) 277 CLR 518 at [23].
16 RP v The Queen (2016) 259 CLR 641 at [8].
17 Young Offenders Act 1993 (SA) s 3(1).
18 Young Offenders Act 1993 (SA) s 4.
19 Young Offenders Act 1993 (SA) s 6.
20 Young Offenders Act 1993 (SA) s 7.
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either route can be embarked upon, is that the youth has admitted “the commission
of a minor offence”.
34 In the event that a police officer is of the opinion that the matter does not
warrant any formal action under the Act, pursuant to s 6, a youth may be informally
cautioned against further offending and that will end the proceedings. Relevantly,
to the arguments on this application, an informal caution cannot be used in any
subsequent judicial proceedings.21 It is as though the offence never took place.
35 Section 7 provides for “More formal proceedings” for minor offences. Under
this section, a police officer has three options available, those being: the
administration of a formal caution, notifying a Youth Justice Co-ordinator so that
a family conference may be convened, or for a charge to be laid before the Court.
36 It is to be emphasised that the power under s 7(1)(b) of the Act is not for the
police officer to convene a family conference, but rather that they:
… may notify a Youth Justice Co-ordinator of the admission so that a family conference
may be convened to deal with the matter; …
(Emphasis added)
37 In the event that any of the options under s 7 are utilised, the proceedings are
“admissible as evidence of prior offending in subsequent proceedings relating to
offences committed before the youth reached 18 years of age but any offences so
dealt with will be regarded as of minor significance”.22 It follows that, unlike
offences that are dealt with by a s 6 informal caution, matters dealt with under s 7
potentially have an ongoing (albeit limited) impact on a youth, until they reach the
age of 18.
38 Section 7(2) relevantly provides that before a police officer notifies a YJC of
an admission made by a youth for the purpose of convening a family conference,
the officer should explain to the youth:23
(i) the nature of the offence and of the circumstances out of which it is alleged to arise;
and
(ii) that the youth is entitled to obtain legal advice; and
(iii) that the youth is entitled (irrespective of whether he or she exercises the right to
obtain legal advice) to require that the matter be dealt with by the Court; …
39 In addition (in the event that the youth does not require the matter to be dealt
with by the Court), “the officer should put the admission into written form and, if
possible, get the youth to sign the admission”.24 If practicable, any explanation
given to a youth or the signing of an admission should take place in the presence
21 Young Offenders Act 1993 (SA) s 6(3)(b).
22 Young Offenders Act 1993 (SA) s 58(2).
23 Young Offenders Act 1993 (SA) s 7(2)(a).
24 Young Offenders Act 1993 (SA) s 7(2)(b).
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of a guardian of the youth or, if a guardian is unavailable, an adult person
nominated by the youth who has a close association with, or has been counselling,
advising or aiding the youth.25
40 Division 3 of the Act provides for the convening of a family conference.
Pursuant to s 10(2), it is the responsibility of the YJC to fix a time and place for
the family conference and to issue a notice to the youth, requiring them to attend
at that time and place. The YJC is also required to invite other persons to attend
at the family conference as stipulated under the Act, or others “whom the [YJC],
after consultation with the youth and members of the youth’s family, thinks
appropriate to attend the conference at that time and place”.26
41 Section 11 sets out how a family conference is to be constituted:
11—Family conference, how constituted
(1) A family conference consists of—
(a) a Youth Justice Co-ordinator (who will chair the conference); and
(b) the youth; and
(c) such of the persons invited to attend the conference as attend in response to
that invitation; and
(d) a representative of the Commissioner of Police.
(2) A family conference should act if possible by consensus of the youth and such of the
persons invited to attend the conference as attend in response to that invitation.
(3) A decision by a family conference is not however to be regarded as validly made
unless the youth and the representative of the Commissioner of Police concur in the
decision.
(4) A youth is entitled to be advised by a legal practitioner at a family conference.
(5) If a family conference fails to reach a decision, the Youth Justice Co-ordinator must
refer the matter to the Court and the Court may decide any question, and exercise
any power, that could have been decided or exercised by the family conference.
42 Section 12 of the Act provides for the powers of the family conference.
These are to:
a) administer a formal caution;
b) require the youth to enter into an undertaking to pay compensation;
25 Young Offenders Act 1993 (SA) s 7(3).
26 Young Offenders Act 1993 (SA) s 10(2).
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c) require the youth to enter into an undertaking to carry out community
service;
d) require the youth to enter into an undertaking to apologise;
e) require the youth to do anything else that may be appropriate in the
circumstances of the case.
43 If a youth fails to attend a family conference, or does not comply with a
requirement of the family conference or an undertaking, the police may lay a
charge before the Court,27 however, it is discretionary as to whether that occurs or
some other course is adopted.
44 In the event that a youth complies with the requirements of the family
conference, they cannot be prosecuted for the offence.28
LT’s charges diverted to a family conference
45 On 14 February 2023, the YDO reviewed the two files. She determined that,
given the seriousness of the offences, an informal caution was not suitable. The
YDO then considered whether it was appropriate for the matters to be diverted to
a family conference.
46 In an affidavit provided for this application, the YDO explained “[i]f during
the review process, it is clear that a youth does not have the capacity to understand
what they did was wrong, I will not divert the matter, and will instead refer the
matter to prosecution for further adjudication”.29 The YDO determined that it was
appropriate for the matter to be dealt with by way of a family conference. It is,
therefore, implicit in that decision that the YDO had regard to the issue of doli
incapax.
47 In arriving at that decision in respect of the 27 January 2023 offences, the
YDO took into account LT’s admissions to the offences, his age and antecedent
history. In relation to the 30 January 2023 offences, the YDO considered LT’s
admissions, his age, his antecedent history and the fact that the stolen iPhone and
Apple Watch had been returned to the victims.
48 Consistent with her usual practice, the YDO believes that in arriving at this
decision, she would have had regard to the facts of charge, LT’s admissions, his
27 Young Offenders Act 1993 (SA) s 12(8).
28 Young Offenders Act 1993 (SA) s 12(10).
29 FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [6].
It only, however, became apparent that doli incapax was a consideration in determining whether to
divert LT to a family conference on the receipt of the affidavits filed for these proceedings. The referrals
to the YJC made no reference to this issue, nor to whether there had been compliance with s 7(2) of the
Act. The proforma referrals completed by the YDO do not require the provision of this information.
This is an unfortunate oversight, given the importance of these matters. It may be that consideration
should be given to redrafting the referral forms, if that has not occurred already.
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antecedent history and the investigating officer’s notes.30 Having made that
decision, the YDO created diversion requests and charge withdrawal applications
in relation to the two files, on the basis of the proposed referral of the matters to a
family conference.
49 As the matters involved major indictable offences, the diversion requests
were addressed to the Youth Justice Manager (‘YJM’) for consideration and
approval.31 On 15 February 2023, the YJM approved the request that the charges
be referred to a family conference.
50 On 17 February 2023, the YDO sent notices to LT’s mother advising her of
the decision to divert the charges, and, on that basis, the bail agreements that had
previously been in place were revoked. On that same date, the YDO completed
two separate referrals to the YJC and the general Family Conference Team inbox.32
The YDO had no further involvement with these matters after this date.
51 On 12 April 2023, the allocated YJC made contact with LT’s mother to
discuss the convening of the family conference. LT’s mother advised that LT
understood the family conference process as he had attended at previous family
conferences.
52 The family conference took place at the Port Augusta Magistrates Court on
2 May 2023. In attendance was the YJC, LT and his mother, and a representative
of the Commissioner of Police, Sergeant Rachael Bowles.
53 Both the YJC and Sergeant Bowles have provided affidavits setting out their
recollection, or in the absence of a recollection, their usual practice, in respect of
the family conference.
54 The YJC described LT as “hard to engage during the Family Conference”,
however, she had “no concerns” that LT did not understand the Family Conference
process.33 Similarly, Sergeant Bowles said that she recalls making an assessment
at the family conference about whether LT understood what he had done was
wrong. She did not think that he “did not understand what he had done was
wrong”.34 She explained that if she had formed the contrary view, she “would have
asked for the Family Conference to be stopped”.35
55 In relation to the 27 January 2023 offending, the outcome of the family
conference was that LT made an undertaking to write an apology letter to K-Hub
30 FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [8].
31 FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [9].
32 Two “South Australia Police Referral to a Youth Justice Co-Ordinator”, FDN 12, Affidavit of Sergeant
Sarah Kate Schmidt dated 25 January 2024 at SKS-6 and SKS-7.
33 FDN 13, Affidavit of Vanessa Jane Wigg dated 24 January 2024 at [8].
34 FDN 11, Affidavit of Sergeant Rachael Eileen Bowles dated 24 January 2024 at [4].
35 FDN 11, Affidavit of Sergeant Rachael Eileen Bowles dated 24 January 2024 at [4].
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by 16 May 2023. This outcome was put in writing and signed by the YJC, LT and
Sergeant Bowles. LT complied with that undertaking.
56 In relation to the 30 January 2023 offending, the outcome of the family
conference was that LT made undertakings to perform 12 hours of community
service by 2 August 2023, and write two letters of apology to the Port Augusta
Cultural Centre and the victim of the theft of the Apple Watch by 16 May 2023.
This outcome was also put in writing and signed by the YJC, LT and Sergeant
Bowles. LT complied with these undertakings.
Issues raised by the applicant
57 Underpinning this application are a number of complaints about the manner
in which the decisions were made that resulted in LT’s charges being diverted to a
family conference. It was contended that the consequences of making a decision
to refer a youth down this path are significant in that it involves first a finding of
an admission of guilt and results in a family conference which, as I have
mentioned, is then admissible “as evidence of prior offending in subsequent
proceedings relating to offences committed before the youth reached 18 years of
age…”.36
The failure to have regard to doli incapax
58 The primary issue raised by the applicant was that the YDO failed to satisfy
herself to the requisite degree that the presumption of doli incapax had been
rebutted.
59 It was contended that in order for it to be established that a youth who is doli
incapax has admitted an offence, it is incumbent on the police to ensure that the
admission is to all elements of the offence, including that the youth appreciated the
moral wrongness of the act that they had undertaken.
60 It was submitted that there was insufficient evidence available to the YDO
for her to have been satisfied that the presumption had been rebutted, in that the
comments made by LT as set out in [20]-[22] do not meet the standard required by
the authorities.
The failure to comply with s 7(2) and s 7(3) of the Act
61 A subsidiary matter relied upon by the applicant, was a contention that the
police had not complied with s 7(2) and s 7(3) of the Act. In support of this
argument the applicant referred to the two notices that referred LT to the YJC for
the purpose of a family conference.37 In those notices there is no reference to the
YDO (or any other police officer) explaining to LT:
36 Young Offenders Act 1993 (SA) s 58(2).
37 FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at SKS-6 and SKS-7.
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a) the nature of the offence and the circumstances out of which it is alleged
to arise; and
b) that he is entitled to legal advice; and
c) that he is entitled to require that the matter be dealt with by the court.
62 In addition, it was submitted that there was no attempt to have LT sign the
admissions as required by s 7(2)(b) of the Act.
63 It was the applicant’s submission that the non-compliance with the Act
contributed to the “unreasonable or irrational” decision to direct the matter to a
family conference.
Observations about the issues raised by the applicant
64 Although for reasons that will become apparent, it is ultimately not necessary
to determine the question of whether the impugned decisions were unreasonable,
irrational or affected by legal error as contended by the applicant, I make some
observations about the basis of this application for judicial review.
65 There is a legal presumption that a discretionary power conferred by a statute
must be exercised reasonably, in the legal sense of the word.38 A standard of legal
reasonableness “does not involve substituting a court’s view as to how a discretion
should be exercised for that of a decision-maker”.39 It requires more than even
“emphatic disagreement” with the impugned decision.40 Courts are “conscious of
not exceeding their supervisory role by undertaking a review of the merits of an
exercise of discretionary power”.41 The test for unreasonableness is “necessarily
stringent”42 and includes that a decision may be regarded as unreasonable if no
reasonable person could have made it.
66 It is apparent from this brief recitation of principles relating to the question
of an assessment of “unreasonableness”, that the applicant’s arguments tend to
focus on the question of the merits of the decisions as is evidenced by the use of
terms such as “the sufficiency of the evidence”, or “satisfied to the requisite
degree”.
67 Central to the complaint about LT’s diversion to a family conference was the
finding by the YDO that he had admitted to the offences. The criticism of that
finding was about the sufficiency of the evidence upon which it was made,
reflecting that it is, in fact, an argument about the merits of the decision. This falls
well short of laying the foundation for an argument that the actions/decisions were
“unreasonable or irrational”.
38 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29], [63], [88]-[92].
39 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].
40 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34].
41 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66].
42 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11].
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68 It appears that there is no contest that an assessment of whether a youth with
the presumption of doli incapax has admitted an offence, involves a determination
of whether the presumption has been rebutted; in other words, in addition to the
subjective and objective elements of the offence, it must be established that the
youth understands that the conduct which constituted the offence was seriously
wrong by normal adult standards. It is evident that was appreciated by the YDO
in that she deposed that, as part of the process that she engages in to determine
whether a matter is suitable for a family conference, she considers whether a youth
has the capacity to understand what they did was wrong.43 Sergeant Bowles also
turned her mind to the issue during the family conference.
69 As I have said, there is however, a more fundamental problem with this
application for judicial review, which means that there is no need to consider this
issue further.
Are the impugned decisions amenable to judicial review?
70 The respondent has raised a threshold issue relating to whether the impugned
decisions are amenable to judicial review. It was contended that the actions are
not amendable to judicial review on the basis that they are not final, operative or
substantive in nature.
71 It should be recalled that the decisions that are the subject of this application
are the decisions of the YDO to refer the matter to a YJC pursuant to s 7(2), and
the decision of the YJC to convene a family conference pursuant to s 10(2). It was
submitted by the respondent that the action and/or decision of the YDO involved
no more than a statutory discretion to notify the YJC under s 7(1) of the Act. All
that did was set in motion the convening of a family conference and provided for
the possibility that a Family Conference Agreement will be reached. Upon
receiving a notification, the YJC is required to convene a family conference by
fixing a time and date for the conference, notifying the youth and inviting other
people as prescribed or considered appropriate. That is the extent of the role of the
YJC prior to the conference.
72 It was the respondent’s submission that, when properly considered, the
relevant actions and/or decision of the YDO and YJC were of a type that are not
open to judicial review.
73 It was submitted that, in those circumstances, the impugned decisions were
akin to interlocutory decisions. That is that they were determinations made along
the way to reaching a final decision.
Legal principles
74 The right to a judicial review is not absolute. As I have said, judicial review
is available to test the legality of a decision and not its merits; the Court is not
43 FDN 12, Affidavit of Sergeant Sarah Kate Schmidt dated 25 January 2024 at [6].
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authorised to ask whether a decision was a ‘good’ decision. It asks only whether
the decision has been properly made, in accordance with the law.
75 On review, if a court finds that a decision has been made unlawfully, the
powers of the court will generally be contained to setting the decision aside and
remitting the matter to the decision-maker for reconsideration according to law.44
It follows from this, that there will be circumstances in which, although a decision
is not the correct or preferable decision on the facts, it will not be open to judicial
review. Conversely, there may be situations where a decision is correct or
preferable but may be set aside because it is subject to legal error. In order to be
amenable to judicial review an administrative act must not only be an exercise of
public power but must also affect a right, obligation, interest or privilege.45
76 The object of a judicial review is to keep in check the powers of public
authorities as they impact on the rights of individuals. In a paper “Judicial Review
Rights”, French J discussed the purpose of a judicial review in the context of the
Refugee Convention. His Honour observed:46
Judicial review is concerned with the supervision by courts of decision-making by public
officials. It is about administrative justice. More people encounter that kind of justice than
the curial variety. There is a myriad of decisions that governments and public authorities
make which affect the lives and wellbeing, the freedoms and opportunities of many.
For those claiming Australia’s protection under the Refugee Convention, the quality of
administrative jurisdiction may mean the difference between life and death or liberty and
imprisonment.
77 In order to determine whether the relevant decisions are amenable to judicial
review, it is necessary to focus on the role that the “decision-maker” played in the
overall process.
The decision of the Youth Diversion Officer to refer the matter to a Youth Justice
Co-ordinator per s 7(2) of the Young Offenders Act 1993 (SA)
78 The role of the YDO was to consider the two relevant files and arrive at a
view as to the appropriate path through the youth justice system for LT. She
determined to recommend that LT be referred to a family conference. She did not
however make the final decision about whether that was to occur. Whilst the YDO
prepared the relevant paperwork, any decision that was made was made by the
YJM.
79 Even that decision was no more than the exercise of a discretion by the YJM
to notify a YJC under s 7(1) of the Act. All that did was set in motion the
44 Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.
45 L v South Australia (2017) 129 SASR 180 at [155]-[156].
46 Justice RS French, ‘Judicial Review Rights’ (2001) 28 Australian Institute of Administrative Law Forum
33 at 33.
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convening of a family conference and provided for the possibility that a Family
Conference Agreement could be validly reached.
80 The YDO did no more than direct the LT towards a particular path through
the system, which may have resulted in any number of possible outcomes.
The decision of the Youth Justice Co-ordinator to convene a family conference
to deal with these offences per s 10(2) of the Young Offenders Act 1993 (SA)
81 Similarly, under the statutory scheme, the role of the YJC in the context of a
family conference has no impact on the rights, liabilities or interests of the youth;
the role is in fact very limited.
82 Upon receiving a notification, the YJC is required to convene a family
conference by fixing a time and date for the conference, notifying the youth and
inviting other people as prescribed or considered appropriate.47 That is all that the
YJC is required to do prior to the conference.
83 There is no substantive impact on a youth’s rights, obligations, interests or
privileges by the decision to convene a conference. There are no direct
consequences for the youth if they fail to attend. The police would simply be left
to determine what action should be taken in relation to the offending, which would
effectively remain the same options that were available, had the family conference
not been convened.
84 In the event that a family conference takes place, the YJC takes on the role
of the Chair at the meeting. That is the extent of their role. The Act is clear that
the power to make a decision at a family conference is conferred upon the “family
conference” not the YJC. It is also not inevitable upon convening a family
conference, that a valid and operative decision will be made. Rather, the
convening of the conference only creates a possibility that, at its conclusion, there
will be a Family Conference Agreement.
85 It is also significant, that those with control over whether a Family
Conference Agreement is reached are the youth and the representative of the
Commissioner of Police. In order for a valid decision to be made at a family
conference, the Act requires that the youth and the representative of the
Commissioner of Police agree to the decision.
86 There are two consequences resulting from this, namely that it is not
necessary for the YJC to concur with any decision, and an outcome cannot be
imposed on a youth, they must agree with it.
87 Properly considered, in the context of the family conference, the role of the
YJC is more accurately characterised as facilitative rather than determinative or
adjudicative in nature.
47 Young Offenders Act 1993 (SA) s 10(2).
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Conclusion
88 In my view, no reasonable basis has been established for the relief sought.
The nature of the actions taken by the YDO and YJC under the Act do not produce
any foreseeable consequences or have any legal effect in respect of which the relief
sought might lie. The decisions that were made (in so far as they can be categorised
as decisions) did not confer on or deny LT any right, interest or legitimate
expectation.
89 I dismiss the application.
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