CJH v Department of Family and Community Services

[2016] NSWCATAD 162

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CJH v Department of Family and Community Services [2016] NSWCATAD 162
Hearing dates:	On the papers
Date of orders:	22 July 2016
Decision date:	22 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Principal Member
Decision:	(1) The respondent’s application that the applicant’s application be dismissed for want of jurisdiction is dismissed. (2) By 15 August 2016, the respondent to file and serve an up to date on the child’s current placement together with any other material relevant to the progress of the applicant’s application. (3) By 17 August 2016, the applicant to file and serve any material in response to the material filed by the respondent. (4)The applicant’s application is set down for further direction on 18 August 2016 at 12 noon.
Catchwords:	ADMININSTRATIVE LAW – merits review of a decision of the respondent to place a foster child into the day to day care of the former foster mother of the child’s father – application made by maternal grandmother of the child - whether maternal grandmother has standing to bring the application STATUTORY INTERPRETATION – proper construction and application of section 29(1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 – meaning of “genuine concern in the subject matter of the decision concerned”
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993 Children and Young Persons (Care and Protection) Act 1998 Children and Young People (Care and Protection) Regulation 2012 Guardianship Act 1987 Ombudsman Act 1974 Powers of Attorney Act 2003
Cases Cited:	The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 Minister for Disability Services v People With Disability Australia Inc (CSD) [2010] NSWADTAP 44 People With Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253 People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Unreported 12 February 1998, Community Services Appeals Tribunal) TC v Public Guardian & ors [2006] NSWADTAP 15
Category:	Procedural and other rulings
Parties:	CJH (Applicant) Department of Family and Community Services (Respondent)
Representation:	Counsel: J Mahoney (Respondent)   Solicitors: CJH (Applicant in person) Legal Services of the Department of Family and Community Services (Respondent)
File Number(s):	1510799
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013

Reasons for decision

1. The applicant, CJH, is the maternal grandmother of a child under the sole parental responsibility of the Minister until he reaches 18 years of age. The applicant does not have day-to-day care of the child, but seeks review of a decision by the respondent, the Department of Family and Community Services, to place her grandson into the care of the former foster mother of the child’s father. The decision, she asserts, is not in the best interest of the child and she seeks to have the child restored to his initial temporary carer, Mrs A, while the respondent continues to seek a suitable long term placement for the child.

2. On 2 February 2016, at the first directions hearing of the applicant’s application, the respondent argued the application should be dismissed as the Tribunal did not have jurisdiction to hear and determine it. The basis of the application was that the applicant was not an authorised carer and did not seek to have the child placed into her care. The parties were directed to file and serve written submissions on this preliminary issue and it was agreed that the matter be determined on the papers pursuant to subsection 50(3) of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Orders were made accordingly.

3. In support of its application concerning the Tribunal’s jurisdiction to hear the applicant’s application, the respondent filed and served a statement of its Manager Casework, Ms Tracey McFarlane and short written submissions. More detailed submissions of counsel for the respondent were subsequently filed and served by the respondent.

4. The applicant also filed an affidavit and served short written submissions in response. The applicant is not legally represented and did not address the construction arguments contained in the respondent’s submissions. However, she did attach the handwritten arguments she had received from Mrs A, who supported this application of the applicant.

5. Having regard to the material before the Tribunal, the issues for determination in this preliminary matter raised by the respondent are:

1. is the decision for which the applicant seeks review a reviewable decision? If it is not a reviewable decision then the Tribunal lacks jurisdiction to hear and determine the applicant’s application;

2. in the event the decision for which the applicant seeks review, is a reviewable decision, who has standing to bring an application for review? and

3. has the applicant established that she has standing to bring this application for review?

6. For the reasons set out below, I have found that the decision for which the applicant seeks review is a reviewable decision falling within subsection 245(1)(c) of the Children and Young Persons (Care and Protection) Act 1998 (Care Act). I have also found that the applicant has standing to bring this application, as I am satisfied that she has a “genuine concern” in the “subject matter” of that decision. Accordingly, I have dismissed the respondent’s preliminary application that the applicant’s application be dismissed for want of jurisdiction.

Background

7. The child the subject of these proceedings was born in August 2014. He is an Aboriginal child and has special needs. The child’s mother, the applicant’s daughter, was 17 years of age at the time of the child’s birth and his father was 18 years of age. Both the mother and the father had previously been in the parental responsibility of the Minister. The child’s parents are reported to be heroin users. The child was born with a heroin addiction.

8. The respondent removed the child from the care of her parents two weeks after he was born. The child was temporarily placed into the care of Mrs A, an out-of-home carer authorised under Chapter 8 of the Care Act.

9. With the support of the respondent, since December 2014, the applicant has had fortnightly contact with the child. For health reasons, the applicant is unable to care for the child on a day-to-day basis. The applicant continues to have contact with the child.

10. In February 2015, the Children’s Court made final orders placing sole parental responsibility of the child with the Minister.

11. In July 2015, the respondent decided the child should be placed (i.e. a permanent placement) into the care of Mr and Mrs B, who had been the most recent long-term carers of the child’s father. The respondent made this decision on the basis of an initial assessment of Mr and Mrs B in 2014, a supplementary independent assessment in April 2015 and consultation with the Aboriginal Consultation Panel. Copies of these assessments and consultations were not before the Tribunal.

12. Not long after this decision was made, Mrs A sent an email to the Minister expressing concern about the decision to place the child into the care of Mr and Mrs B, who she said had been assessed, on two occasions, as being unsuitable as carers for the child. Mrs A said she was unfortunately not in a position to provide full time care to the child, but was concerned Mrs B was not able to support the child’s needs or provide an environment that was safe, loving and nurturing. She asked the Minister, and the caseworkers involved to place more emphasis on making sure the long term needs of the child were met in an appropriate, safe and loving home.

13. In early October 2015, Mr B passed away.

14. Following the death of Mr B, the respondent assessed Mrs B’s daughter and her partner and further information and guidance was sought from the Aboriginal Consultation Panel. Ms McFarlane also explained that risk mitigating strategies were also included in the respondent’s case plan for the placement of the child in Mrs B’s care. Again, the assessment nor the case plan are before the Tribunal.

15. The applicant handwrote a letter to Ms McFarlane. While the letter is dated August 2015, its contents indicate it was written after the death of Mr B. In her letter, the applicant expressed concern about the child being placed into the care of Mrs B because she had been assessed as not being suitable to care for the child. She also expressed concern about the child’s parents being given unlimited access to the child and whether the child’s needs could be met when there were already two toddlers with high needs in Mrs B’s care. The applicant asked who would be caring for her grandchild in the absence of any support from Mr B, an Aboriginal. A copy of the applicant’s letter was sent to her local Member of State Parliament, who wrote to the Minister on her behalf in late October 2015.

16. In mid November 2015, Mr Paul O’Reilly, Acting District Director of the respondent, wrote to Mrs A in response to her August 2015 email. In his letter, Mr O’Reilly said the respondent had “undertaken a rigorous assessment process” in regard to the child’s placement, which involved extensive consultation with the Aboriginal Consultation Panel. Mr O’Reilly said that the Aboriginal Consultation Panel had determined that as Mrs B had cared for the child’s father, she was considered to be kin and on that basis the placement of the child with her met the Aboriginal placement Principles.

17. Sometime subsequent to Mr O’Reilly’s letter, the child was transitioned from the day-to-day care of Mrs A to Mrs B.

18. The applicant lodged her application for review on 16 December 2015.

Relevant legislation

The Tribunal’s administrative review jurisdiction

19. Subsection 28(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) provides that included in the Tribunal’s jurisdiction is an “administrative review jurisdiction.” The circumstance in which the Tribunal has “administrative review jurisdiction” over a decision of an administrator is that set out in the Administrative Decisions Review Act 1997 (ADR Act): see NCAT Act, subsection 30(1).

20. Section 9 of the ADR Act sets out when “administrative review jurisdiction” is vested on the Tribunal. That section relevantly provides as follows:

“9   When administrative review jurisdiction is conferred

(1)  The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)  in the exercise of functions conferred or imposed by or under the legislation, or

(b)  in the exercise of any other functions of the administrator identified by the legislation.

(2)  If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

…”

21. The term “enabling legislation” is defined in subsection 4(1) of the ADR Act to mean:

“enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:

(a)  provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)  otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.”

22. For the purpose of this application the “enabling legislation” is the Community Services (Complaint, Reviews and Monitoring) Act 1993 (Community Services Act). The provisions relevant to administrative review by the Tribunal are contained in Part 5 of that Act. Section 28 is the first section in that Part and relevantly provides as follows:

28   Applications to Tribunal for administrative reviews of decisions

(1)  A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions:

(a) a decision that is an administratively reviewable decision under … section 245 of the Children and Young Person (Care and Protection) Act 1998,

(a1) …”

23. Section 245 of the Children and Young Persons (Care and Protection) Act 1998 (Care Act) relevantly provides:

“245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

(a)  a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation,

(a1)  a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),

(b)  …,

(c)  a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

(d)  …”

24. Chapter 8 of the Care Act contains provisions relevant to the provision of out-of-home care and authorised carers. In summary, included in Chapter 8 are the following provisions:

1. three categories of out-of-home care - these are “statutory out-of-home care” (section 135A), “supported out-of-home care” (section 135B) and “voluntary out-of-home care” (section 135C). Statutory out-of-home care is that provided to a child pursuant to a care order of the Children’s Court, or by reason of the child being a protected person (subsection 135A) ;

2. “statutory out-of-home care” can only be provided by a person who is an “authorised carer” (section 136);

3. arrangements for the provision of statutory or supported out-of-home care can only be made by “a designated agency” or the Children’s Guardian (section 138). The term “designated agency” is defined in section 139 to include a Public Service Agency or organisation that is accredited under the Children and Young People (Care and Protection) Regulation 2012 (the Care Regulation) to arrange for the provision of out-of-home care. The respondent is a designated agency;

4. an “authorised carer” is defined to be a designated agency or a person who is authorised as an authorised carer by a designated agency pursuant to the Care Regulation (subsection 137(1)(a) and (b));

5. a designated agency that places a child into–out-of-home care has a duty to supervise that placement and to ensure that the safety, welfare and well-being of the child or young person is being protected and promoted (section 157 and section 9(1)): and

6. what information can be disclosed to parents and significant others (including grandparents) concerning the placement of a child in out-of-home care (sections 149B to 149K). What information is disclosed is also subject to the agreement of the relevant authorised carer.

Who can apply for review of an administratively reviewable decision

25. Subsection 55(1) of the ADR Act provides who can make an application for administrative review of an administratively reviewable decision. That subsection is in the following terms:

“55   Making of applications

(1)  An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.

(2)  …

26. The term “interested person” is defined in subsection 4(1) to mean “a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.” (emphasis added)

27. Section 29 of the Community Services Act (the enabling legislation in this application) makes provision as to who can make an application to the Tribunal for review of an administratively reviewable decision referred to in section 28 of that Act (e.g. section 245 of the Care Act). Section 29 is in the following terms:

“29   Who may apply to the Tribunal?

(1)  An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.

(2)  Without limiting the generality of subsection (1), an application may be made by any person who is responsible for, is a next friend of or is appointed by the Tribunal to represent the person to whom the application relates.

(3)  The Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application.

(4)  A person found by the Tribunal to be unjustifiably interfering in a matter is not entitled to apply to the Tribunal for a review in relation to the matter.

(5)  In determining whether a person is unjustifiably interfering in a matter, the Tribunal is to take into account, to the extent that it is practicable to do so, the wishes and interests of any other persons who have an interest in the matter.

(6)  This section applies despite any contrary provisions of the Civil and Administrative Tribunal Act 2013 or the Administrative Decisions Review Act 1997. “

Consideration

28. Counsel for the respondent correctly states in her submissions that the Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction: see The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48. Counsel went on to submit that in order for the applicant to have a right of review by the Tribunal she must:

1. bring her application within subsection “245(1)(a)” of the Care Act; and

2. demonstrate to the satisfaction of the Tribunal that she has a “genuine concern” in the subject matter of the decision.

29. Counsel for the respondent contends the applicant’s application does not satisfy either of the above requirements and should be dismissed

30. As noted above, subsection 245(1)(a) of the Care Act relates to decisions to suspend a person’s authorisation or to impose conditions thereon. The applicant’s application clearly does not seek review of a decision of this kind. She seeks review of the decision of the respondent to remove her grandson from the day-to-day care of Mrs A and to grant to, or transition to Mrs B, an authorised carer, the responsibility for the daily care and control of her grandson. This is a decision falling within subsection 245(1)(c) of the Care Act.

31. I understand the respondent accepts that a decision falling within subsection 245(1)(a), (a1), (b) and (c) of the Care Act is an administratively reviewable decision by the Tribunal under subsection 28(1) of the Community Services Act. However, the respondent goes on to contend that in order to bring an application for review of a decision falling within this subsection, the applicant would need to be an authorised carer. The basis on which this argument is made are the 2015 amendments to the Community Services Act and the Care Act. These, the respondent contends “produced an outcome whereby a person’s interests for administrative review to the Tribunal …, does not now accrue until such time that the person is approved as an “authorised carer”.” The respondent went on to contend that the practical effect is that a reviewable decision under subsection 245(1)(a), (a1), (b) or (c) of the Care Act “is now intended to capture those persons who play (or have a capacity to play by reason of their existing authorisation) a recognised role within the legislative scheme addressing out of home care arrangements and not those that fall outside of it (such as the applicant).”

The 2015 Amendments

32. It is convenient to first deal with the 2015 Amendments. The amendments relevant to this application are contained in the schedule 3 and 4 of the Child Protection Legislation Amendment Act 2015 (Amendment Act). The amendments came into effect on 2 November 2015.

33. Schedule 3 of the Amendment Act contained the amendments to the Care Act. The relevant amendments for the purpose of this application are the amendments to subsection 245(1)(a) and (b): see Amendment Act, schedule 3, clause 19(a) and (a1).

34. Prior to their amendment, subsection 245(1)(a) and (b) were in the following terms:

245   Decisions that are administratively reviewable by Civil and Administrative Tribunal

(1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993:

(a)  a decision of the relevant decision-maker to authorise or not to authorise a person as an authorised carer, to impose conditions of an authorisation, or to cancel or suspend a person’s authorisation as an authorised carer,

(b)  a decision of the relevant decision-maker to accredit or not to accredit a Division of the Government Service or organisation (or branch or other part of a Division or organisation) as a designated agency,

(c)  a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person,

(d)  …”

35. Clause 19 of schedule 3 of the Amendment Act provided as follows:

“[19] Section 245 Decisions that are administratively reviewable by Civil and Administrative Tribunal

Omit section 245 (1) (a) and (b). Insert instead:

(a)  a decision of the relevant decision-maker to suspend a person’s authorisation as an authorised carer or to impose conditions on a person’s authorisation,

(a1)  a decision of the relevant decision-maker to cancel a person’s authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137 (2) (e),

(b)  …”

36. The amended subsection 245(1)(a) had the effect of removing a decision to authorise or not to authorise a person to be an authorised carer as a reviewable decision by the Tribunal.

37. The amended subsection 245(1)(a1) had the effect of excluding certain decisions to cancel an authorisation as reviewable decisions by the Tribunal. The excluded decision are: (a) decisions to cancel a “provisional” authorisation (a new category of authorisation); and (b) the decisions to cancel an authorisation as a consequence of an event prescribed in the Care Regulation pursuant to subsection 137(2)(e) (see clause 31, 42B, 42C, 42CA and 42D of the Care Regulation).

38. Schedule 4 of the Amendment Act contained the amendments to the Community Services Act. The relevant clause relied on by the respondent is clause 2 of that schedule which inserted the following subsection into section 22 of the Community Services Act:

Insert at the end of the section:

(6)  For the avoidance of doubt, subsection (1) extends to a complaint about any decision of a designated agency in respect of the authorisation of a person as an authorised carer under the Children and Young Persons (Care and Protection) Act 1998.

39. Section 22 of the Community Services Act is within Part 4 of that Act, which contains provisions for complaints to be made to the Ombudsman about the conduct of a service provider. The term “service provider” is defined in subsection 4(1) of the Community Services Act to mean:

“service provider means:

(a)  the Department of Family and Community Services, or

(b)  an implementation company under the National Disability Insurance Scheme (NSW Enabling) Act 2013 while the company is a public sector agency of the State under that Act, or

(c)  a person or organisation funded by the Minister for Family and Community Services, the Minister for Ageing or the Minister for Disability Services to provide a service, or

(d)  a person or organisation authorised or licensed by the Minister for Family and Community Services, the Minister for Ageing or the Minister for Disability Services to provide a service, or

(e)  the Home Care Service of New South Wales or a person or organisation funded by the Home Care Service to provide a service, or

(f)  a person or organisation that is covered by an arrangement made after 7 April 1994 (the date of commencement of this section) between a Minister of the State of New South Wales and a State or Commonwealth Minister, under which arrangement that State or Commonwealth Minister agrees to the person or organisation being a service provider for the purposes of this Act, or

(g)  an authorised carer or designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998, or

(h)  the proprietor or occupier of premises that consist of an assisted boarding house.”

40. Subsection 22(1) provides that a person may make a complaint to the Ombudsman about the “conduct of a service provider with respect to the provision, failure to provide, withdrawal, variation or administration of a community service in respect of a particular person or group of persons.” The words “community service” is also defined in subsection 4(1) to mean, “a service rendered under the community welfare legislation”, which includes the Care Act.

41. Section 23, in Part 4, sets out who can make a complaint to the Ombudsman.

42. As indicated by the terms of subsection 22(6) that subsection was added to make it clear that “complaints” can be made to the Ombudsman about any decision of a “designated agency” in regard to the authorisation of a person to provide out-of-home care. The respondent and many other non-government organisations are designated under Part 8 of the Care Act to provide out-of-home care: see section 139. The applicant in this application is not

43. In my opinion, there is nothing in the wording of subsection 22(6) of the Community Services Act or the amendments to subsection 245(1)(a) to (b) of the Care Act to support the respondent’s argument that any right a person, not authorised to be a carer, may previously had to seek external review of a decision made by a designated agency pursuant to subsection 245(1)(a) to (c) has been removed.

44. The amendments to subsection 245(1)(a) to (b) do no more than amend what decisions of a designated agency that are reviewable decisions by the Tribunal under subsection 28(1) of Part 5 of the Community Services Act. And subsection 22(6) of the Community Services Act is no more than a clarification that complaints can be made to the Ombudsman, under Part 4 of that Act, about a decision of a designated agency concerning the authorisation of a person as an authorised carer under the Care Act. The word “decision” in this Part 4 is not limited to decisions made pursuant to subsection 245(1)(a) to (c) of the Care Act.

45. The Amendment Act did not amend the administrative review provisions in Part 5 of the Community Services Act. That is, section 28, so far as it is relevant to this application was not amended. Nor was section 29, which prescribes who can apply for review. Accordingly, the question is what is the proper construction of section 29 of the Community Services Act.

Section 29 of the Community Services Act – standing to bring an application for review

46. The respondent accepts that “given the protective nature of the Care Act, the fact there are consequences for the children and young persons who are in the care arrangements being altered, and that they have special needs (…), the protective character of the review provisions call for a broad and beneficial reading of the legislation.” However, the respondent goes on to submit that “the Tribunal cannot focus upon these factors and isolate them from the overall construction of the Care Act” and in this regard it is submitted that the 2015 amendments, the other options of review available to the applicant (i.e. a complaint to the Ombudsman) and the illogical and potentially unenforceable outcomes of any decision, “support the position that the applicant simply does not meet the standing test of “genuine interest.””

47. The protective nature of the Care Act is reflected in its objects and the principles for the administration of that Act. The objects include to provide “recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles”: see Care Act, subsection 8(a1). Subsection 9(1) of the principles for the administration of the Act provides that “in every action or decision concerning a particular child or young person the safety, welfare and well-being of that child or young person is paramount.”

48. For the reasons I have already given, I agree the 2015 amendments have removed some previously reviewable decisions from subsection 245(1)(a) and (b) of the Care Act and to that extent, the Tribunal no longer has jurisdiction to review such decisions. Hence, subsection 29(1) of the Community Services Act no longer has any application to these decisions. If there is no jurisdiction to review these decisions, I do not see how the respondent can argue that applications will nevertheless be brought by persons who did not have standing to bring such applications.

49. Subsection 245(1)(c) of the Care Act was not amended by the 2015 amendments. That is, a decision to “to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person” remains a reviewable decision. Decisions falling within this subsection differ to those in subsection 245(1)(a) and (a1) as they are decisions that actually concern and relate to a child or young person that is in need of protection.

50. The 2015 amendments did not amend subsection 29(1) of the Community Services Act. Hence there is no basis to give the words in that subsection a restrictive meaning as contended by the respondent: i.e. a “genuine interest.”

51. As noted by the respondent, section 29 of the Community Services Act was considered by the Appeal Panel of the former Administrative Decisions Tribunal in Minister for Disability Services v People With Disability Australia Inc (CSD) [2010] NSWADTAP 44. In particular it considered, at [58]ff, the meaning of the words “genuine concern” as they appear in subsection 29(1). While the decision of the Appeal Panel in this decision was set aside by the Court of Appeal (see People With Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253) it was set aside on grounds other than the Appeal Panel’s construction of section 29. Hence, the Appeal Panel’s reasoning in this regard was not disturbed.

52. At [70], the Appeal Panel was critical of the interpretation the former Community Services Appeals Tribunal had given to the term “genuine concern” in People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Unreported 12 February 1998; “the Dunrossil Case”). In this regard the Appeal Panel said it was better to adopt a more objective approach to the interpretation of that term. While this observation was made in the context of an applicant who was an organisation, in my opinion, it equally applies where the applicant is an individual.

53. The Appeal Panel went on to say the following:

“71 Also, we see danger in reformulating the words ‘genuine concern’ in any way that might suggest that a substitute formula is to be applied. It is a key aspect of the modern approach to statutory construction that the words of the statute ordinarily be applied without embellishment or reformulation: see, for example, Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195, (2007) 70 NSWLR 411 per Spigelman CJ at [112]: ‘[I]t is necessary to be wary of attempts to treat the words of a judgment interpreting a statutory provision as if those were the words of the statute’.

72 ….

73 The continued use of the word ‘interest’ in statutory standing tests has been strongly criticised in commentaries dealing with the reform of standing laws. This is because of the technical, proprietorial connotation with which the word ‘interest’ was often endowed by courts in the past. Instead, the law reform literature has commended such alternative expressions as ‘real concern’. The word ‘concern’ has been seen as being less likely to be read down in the way ‘interest’ might be.

74 Against this background it is probable that the Parliament chose the word ‘concern’ to avoid the complications that are introduced by the word ‘interest’ and then adopted the adjective ‘genuine’ to perform the function of limiting the width of the expression ‘concern’. It is likely we think that the expression as a whole was meant to be somewhat broader in its provenance than one that focuses on ‘real interest’.

75 In New South Wales the expression ‘genuine concern’ is used in at least one other statute to delimit who has standing to take legal proceedings. The right to apply for the making of orders by the Guardianship Tribunal is extended to any other person ‘who, in the opinion of the Tribunal, has a genuine concern for the welfare of the [subject] person’: Guardianship Act 1987, s 9(1)(d). The legislation under notice in this case and the guardianship legislation both belong to administrative environments where those affected or to be affected by official decisions are persons who have special needs. In a broad sense the present legislation and the guardianship legislation are protective in character. The protective character of the legislative environment in which the test appears would, we think, inform the opinion that is formed as to whether a concern is ‘genuine’.

76 The words ‘genuine concern’ are not words with a precise or narrow denotation. They should not be applied in that way. They are words, as we see it, designed to enable a broad group of interested persons to put in issue reviewable decisions. The true meaning of the words is to be discerned having regard to the statutory scheme in which they appear. See generally, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; and Project Blue Sky at [69].”

54. In TC v Public Guardian & ors [2006] NSWADTAP 15, the Appeal Panel of the former Administrative Decisions Tribunal made the following remarks in regard to standing under subsection 9(1)(d) of the Guardianship Act 1987 and subsection 25I(b) of the Powers of Attorney Act 2003 (as it applied at that time – now subsection 25I(b) of the Guardianship Act):

“26 While most standing requirements in legislation prevent a person from litigating about the violation of another person’s rights or interests, applicants for guardianship and financial management orders (other than the subject person) are doing just that. Because the subject person is unable to manage his or her personal and/or financial affairs, there is a public interest in someone else who “has a genuine concern” for their welfare, making an application. Consequently, in many cases, the applicant will have no separate interest from the interests of the subject person. The nephew himself does not have a relevant interest, right or legitimate expectation that stood to be affected by the Tribunal’s decision. But he was concerned about TD’s welfare and said he had her interests in mind when making the application. … “

55. Subsection 9(1)(d) of the Guardianship Act and subsection 25I(1)(b) of the Trustee Act provided that “any person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person the subject of the application” a right to bring an application to the Guardianship Tribunal for a guardianship order or a financial management order. Both provisions are now contained in the Guardianship Act and they have remained unchanged. In TC the Appeal Panel accepted the applicant had a genuine concern for the interests of his aunt, the person the subject of the application, and hence he had standing to bring the application and was entitled to the benefits of the rules of natural justice.

56. Accordingly, the words “genuine concern” are uncontroversial and should be given their ordinary meaning. In this regard I note the Macquarie Dictionary (third edition, The Macquarie Library Pty Ltd) relevantly defines these words to mean as follows:

“Concern”

verb (t) 1.  to relate to; be connected with; be of interest or importance to; affect: the problem concerns us all.

2.  to disquiet or trouble: It concerns me that you are unwell.

–noun 3.  that which relates or pertains to one; business; affair

4.  a matter that engages one's attention, interest, or care, or that affects one's welfare or happiness: it's no concern of mine.

5.  solicitude or anxiety.

6.  important relation or bearing.

7.  …

“Genuine”

adjective 1.  being truly such; real; authentic: genuine regret; genuine worth.

2.  properly so called: genuine leprosy.

3.  sincere; free from pretence or affectation: a genuine person.

57. The words “in the subject-matter of the decision of concern” are also uncontroversial in that they refer to the “subject-matter” of the reviewable decision for which review is sought. In this regard, I agree with the respondent that the legislative context in which the reviewable decision was made may nevertheless be relevant to the question as to whether an applicant has standing to bring the application. However, ultimately, it is a question of fact, to be objectively assessed and determined in the circumstances in which an application is made, as to whether the applicant satisfied the Tribunal that she/he has a “genuine concern in the subject-matter of the decision” for which review is sought.

58. For completeness, I note the respondent has not argued that the applicant is “unjustly interfering in the matter” and did not seek to rely on subsection 29(4) of the Community Services Act as a ground on which the Tribunal should find that the applicant is not entitled to apply for review.

Does the applicant have standing to bring this application?

59. The applicant, as I have noted, is not legally represented and has not specifically addressed this issue in her evidence or submissions. What she does say is that she is the maternal grandmother of the child and she is concerned about the best interests of her grandson. In this regard the applicant is concerned that the respondent’s decision to permanently place her grandson into the care of Mrs B is not in his best interest. Her grounds for concern are that Mrs B and her husband had been previously assessed as being unsuitable to provide long term care for the child, Mrs B is not an Aboriginal and her grandson’s needs cannot be met in this placement where there are already two children with high needs in this placement.

60. Other than to state that Mr and Mrs B were independently assessed, the Aboriginal Consultant Panel were consulted, Mrs B’s daughter and her partner were assessed and that risk mitigating strategies were in place, the respondent did not refute the concerns raised by the applicant in her application for review. Ms McFarlane’s evidence is that she provided an explanation to the applicant and Mrs A about the respondent’s decision to place her grandson into the care of Mrs B. She said Mrs A appeared to accept the explanation given, but the applicant did not. Mrs A, in supporting the applicant’s application for review might also be seen as not having accepted Ms McFarlane’s explanation.

61. As I have noted, many of the matters raised by the respondent are arguably relevant to those provisions that provide an alternative to hear and determine an application for review. However, these are only operative where an applicant has standing to bring an application for review. As neither party has made any submissions or provided any relevant documentation in this regard I have not considered them any further in this preliminary application of the respondent.

59. I accept the applicant is not authorised as a carer under the Care Act and she does not seek to be so authorised or to have the day-to-day care of her grandson. However, for the reasons I have given, in my opinion this does not mean she has no standing to bring this application for review of the respondent’s decision to place her grandson into the care of Mrs B. The question is whether she has established that she has a “genuine concern” in the subject matter of that decision. In my view, having regard to the material before the Tribunal and my findings above the applicant has satisfactorily demonstrated that she has a genuine concern in the subject matter of that decision, namely the permanent placement of her grandson into the care of Mrs B.

60. The applicant’s grandson is very young. He is almost two years old and is unable to speak for himself and I accept the applicant is concerned about the child’s long term interests, as is Mrs A. The applicant has had a long-term involvement in the life of her grandson. It is not disputed that the applicant’s health does not permit her to have a greater involvement. However, she has maintained regular contact with the child and attends family conferences regularly. That is, although she is not in a position to care for the child she is nevertheless a person who is significant to the child and concerned about his safety, welfare and well-being. On the basis of her history of involvement with the child I am satisfied that the concerns the applicant has raised about the respondent’s decision to permanently place the child into Mrs B care are genuine concerns in the subject-matter of that decision.

61. Accordingly, I am satisfied the applicant demonstrated that she meets the standing requirements of subsection 29(1) of the Community Services Act.

62. This finding, I stress is not a finding as to whether the respondent’s decision is, or is not, the correct and preferable decision: see subsection 63(3) of the Administrative Decisions Review Act. This, is a matter for determination, should the matter proceed to a hearing on the substantive issue. The finding I have made is limited to the applicant’s standing to bring this application.

Conclusions

66. As I have found the applicant has standing to bring this application, it is appropriate to make an order refusing the respondent’s application for the applicant’s application to be dismissed and to set the matter down for further directions in order to determine how the matter should proceed. In this regard, I note Part 5 of the Community Services Act includes provisions that provide for alternatives to the Tribunal hearing and determining a review application: see section 31 and subsection 32(1).

67. Whether any of these alternatives are appropriate can be a matter for consideration at the next directions hearing. So that there are no further delays, orders should be made for the respondent to file and serve an update on the child’s placement with Mrs B and any other material relevant to the progress of this matter and for the appellant to file and serve any response to that material.

68. In the meantime, I encourage the parties to actively explore how the matter might be resolved in the best interest of the child and to the satisfaction of both parties. In the absence of resolution, draft short minutes of order as to how the matter can proceed most expeditiously.

69. Accordingly, I order:

1. The respondent’s application that the applicant’s application be dismissed for want of jurisdiction is dismissed.

2. By 11 August 2016, the respondent to file and serve an up to date report on the child’s current placement together with any other material relevant to the progress of the applicant’s application.

3. By 17 August 2016, the applicant to file and serve any material in response to the material filed by the respondent.

4. The applicant’s application is set down for further direction on 18 August 2016 at 12 noon.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 July 2016