Druett and Department of Family and Community Services
[2001] AATA 659
•19 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 659
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/444
GENERAL ADMINISTRATIVE DIVISION )
Re GARRY DRUETT
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member
Date19 July 2001
PlaceSydney
Decision The Tribunal decides that no extension of time should be granted in relation to Mr Druett's application.
..............................................
S M Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY - Extension of time – jurisdiction
Legislation
Administrative Appeals Tribunal Act 1975 – subsection 29(7)
Children (Care and Protection) Act 1987 (NSW)
Authorities
Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
REASONS FOR DECISION
Ms S M Bullock, Senior Member
On 5 April 2001, Mr Garry Druett lodged an application for an extension of time pursuant to subsection 29(7) of the Administrative Appeals Act 1975, in relation to an application for review to the Administrative Appeals Tribunal ("the Tribunal") of a decision made on 9 January 1998 by the New South Wales "Department of Family and Community Services" concerning the custody of his children.
A hearing was held in Sydney before the Tribunal on 24 May 2001. Mr Druett was self-represented and provided oral evidence. The Respondent in this matter, the Secretary, Department of Family and Community Services (Commonwealth), was represented by Mr B Slattery, Departmental Advocate.
Mr Druett submitted a number of exhibits for the Tribunal's consideration in this matter and a related matter, N2001/663. The exhibits are:
Exhibit No Description Date
A1 Applicant's letter 4 May 2001
A2 Recommendation by a Child Protection Casework Specialist, Blacktown/Mt Druitt Health Service March 1996
A3 Letter to Mr Druett from the Centrelink Manager, Blacktown Office 22 September 1998
A4 Transcript of the full Industrial Relations Commission of NSW hearing concerning Mr Druett's application for leave to appeal 16 June 1999
A5 Claim by Mr Druett for Relief from Alleged Unfair Dismissal Under Section 84, before the Industrial Relations Commission of New South Wales 2 December 1988
A6 Application for Leave to Appeal to the High Court of Australia, Sydney Registry 18 May 2001
A7 Blacktown/Mt Druitt Health Report in relation to a complaint by Mr Druett 7 July 1999
R1 Submission by Respondent 23 May 2001
R2 Computer print-out of payment due to Applicant 23 May 2001
R3 Notice from the New South Wales Department of Family and Community Services in relation to the Legal Rights on Removal of a Child Under the Children (Care and Protection) Act 1987, (ss 59, 60, 62 and 63) 9 January 1998
Issues
Mr Druett seeks an extension of time in order to lodge an application for review. In his application for an extension of time lodged on 5 April 2001, he noted the decision for which he wished an application for review to be undertaken is the:
"Decision of Family and Community Services to take our children into custody on 9 January 1998. We did nothing wrong and were not interviewed."
Legislation
Extension of time applications are covered under subsection 29(7) of the Administrative Appeals Tribunal Act 1975.
Subsection 29(7) of the Act states:
"(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section). …"
Mr Druett's Evidence and Submissions
Mr Druett lodged his application for an extension of time in relation to the substantive application for review concerning a decision by a New South Wales Department of Family and Community Services delegate to take his children, Chloe, Gregory, Nicole and Bernice into care. Mr Druett stated that the merits of the substantive application for review involved the fact that his children had been mistreated by being taken into care and there had been an abuse of power. As a result of his children going into care, the Family Payment paid by Centrelink, was cancelled. The specific decision concerning the cancellation of Family Payment is the subject of a further application to this Tribunal, N2001/676.
Mr Druett stated that he was delayed in lodging an application for review in relation to the decision made by the New South Wales Department of Family and Community Services on 9 January 1998, because he was fighting to keep his children with him. Mr Druett stated that his main concern was to try and prevent the children being taken into care and he had always thought that he would be successful in his endeavours.
Mr Druett told the Tribunal that his understanding from the New South Wales Children's Court authorities was that the children would in fact be restored. The case was delayed for some 18 months, hence Mr Druett's delay in making his application to the Tribunal.
Mr Druett told the Tribunal that he had sought redress for these matters through various channels, including the New South Wales Supreme Court, the New South Wales Administrative Decisions Tribunal, the New South Wales Ombudsman and through various parliamentarians. Mr Druett stated that he had also made a complaint to the Commonwealth Human Rights and Equal Opportunity Commission. His complaints and inquiries have not led to Mr Druett being assisted by any of these instrumentalities.
Respondent's SubmissionsMr Slattery submitted on behalf of the Commonwealth Department of Family and Community Services, that Mr Druett's dissatisfaction with the decision of the New South Wales Department of Community Services concerning the custody of his children, or the decision of the New South Wales Children's Court, were not matters within the jurisdiction of the Commonwealth Administrative Appeals Tribunal. Mr Slattery noted that the document dated 9 January 1998, referred to by Mr Druett, recorded a decision of the "Delegate of the Director-General of the Department of Family and Community Services" pursuant to Section 60 and other provisions of the Children (Care and Protection) Act 1987 ("CCP Act"). This Act, Mr Slattery further noted, is a New South Wales Government statute. The decision referred to in the document of 9 January 1998 was also made by a delegate of the New South Wales Government Department of Family and Community Services and not the Commonwealth department which has the same name.
Mr Slattery submitted that the Respondent's department has no statutory authority with respect to care or custody orders concerning children. The January 1998 document refers to an attached document which also included the person's "rights" including, the right of appeal to New South Wales instrumentalities by a person whose interests are affected by the decision.
The Children (Care and Protection) Act 1987 refers to the powers of the New South Wales Administrative Decisions Tribunal to review certain submissions. Mr Slattery submitted therefore that Mr Druett may also have a right to appeal the decision as recorded in the 9 January 1998 document, through the New South Wales Court system.
In such circumstances, Mr Slattery submitted that the Tribunal does not have jurisdiction to consider an application for review in relation to a decision made by a state government organisation. There is no appeal available for such state decisions to the Commonwealth Administrative Appeals Tribunal. Accordingly, Mr Slattery submitted that Mr Druett has no ability under the Commomwealth Administrative Appeals Tribunal Act 1975 to have reviewed a decision made by a New South Wales government department under a New South Wales statute.
FindingsThe Tribunal has made a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.
The Tribunal notes the decision Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 34, in which the Federal Court set out various considerations relevant to granting an extension of time. There are six general principles which can be summarised as follows:
i.An applicant for an extension of time has to rebut a prima facie rule that proceedings should not be commenced outside the prescribed time and to do so must offer an "acceptable explanation for delay" and also must indicate that it would be "fair and equitable in the circumstances" to extend the time to apply;
ii.Any action taken by the Applicant, apart from making the application for review, which would permit a decision maker such as the Tribunal to be aware that the decisions previously made are not to be regarded as final;
Any prejudice the Respondent may suffer;
Any unsettling of persons other than the Respondent, or of established practices;
v.The merits of the Application itself;
Considerations of fairness between applicants and other persons in similar positions and the public interest.
In Mr Druett's case, it is clear that the decision for which he seeks an application for review relates to a decision made by state authorities, namely the New South Wales Department of Family and Community Services, under section 60 and other provisions of the Children (Care and Protection) Act 1987, a New South Wales statute. The Tribunal has no jurisdiction to consider such matters as was explained to Mr Druett both by Mr Slattery and the Tribunal. With no jurisdiction, there is also no merit in Mr Druett's application for review. Further, the Tribunal having found that the Tribunal has no jurisdiction to review a decision made by a New South Wales authority under New South Wales law, there is no merit to Mr Druett's extension of time.
The Tribunal notes also that Mr Druett has sought redress for the decisions made by the New South Wales authorities through New South Wales administrative review bodies such as the Ombudsman's Office and the Administrative Decisions Tribunal (NSW). Mr Druett has also sought redress through the Supreme Court of New South Wales.
In all the circumstances and for the reasons set out above, the Tribunal has decided not to grant Mr Druett's application for an extension of time in relation to a decision made on 9 January 1998 by a delegate of the Director-General of the New South Wales Department of Family and Community Services.
I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member S M Bullock
Signed: .....................................................................................
Stella Vaughan, AssociateDate of Hearing 24 May 2001
Date of Decision 19 July 2001
Representative for the Applicant Self-Represented
Representative for the Respondent Mr B Slattery, Departmental Advocate
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