EPF v Secretary, Department of Communities and Justice

[2021] NSWCATAD 38

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EPF v Secretary, Department of Communities and Justice [2021] NSWCATAD 38

Hearing dates:

On the papers

Date of orders:

25 February 2021

Decision date:

25 February 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

(1) A hearing of the respondent’s dismissal application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

(2) Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the material before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the material is not to be published or broadcasted without the leave of the Tribunal.

(3) Application dismissed.

Catchwords:

ADMINISTRATIVE LAW – Reviewability – jurisdiction- whether the decision the subject of review is an administratively reviewable decision by the Tribunal

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Children (Protection and Parental Responsibility) Act 1997 (NSW)

Cases Cited:

The Mutual Life and Citizen’s Assurance Company Ltd v Attorney General (QLD) & anor [1961] HC 51, (1961) 106 CLR 48

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EPF (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
R Birkett (Respondent)

File Number(s):

2020/00283113

Publication restriction:

Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the material before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the material is not to be published or broadcasted without the leave of the Tribunal.

Reasons for decision

1. On 21 September 2020, the applicant, EFP, made an application seeking administrative review of a decision of the respondent, the Secretary, Department of Communities and Justice.

2. The respondent has made an application seeking an order that the applicant’s application be dismissed on the grounds that the Tribunal has no jurisdiction to hear and determine the applicant’s review application, because the decision the subject of the applicant’s application is not a decision over which the Tribunal has jurisdiction.

3. For the reasons that follow, I agree with the respondent and find that the decision the subject of the applicant’s application is not a decision over which the Tribunal has jurisdiction. In light of this finding I make an order that the applicant’s application be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

The decision the subject of review

4. The decision for which the applicant sought review is a decision made, in March 2020, by an officer of the respondent working in the Central Metropolitan Joint Child Protection Response Program (Central Metropolitan JCPRP). That Program is a tri-agency program delivered by the respondent, the NSW Police Force and the NSW Department of Health.

5. In this case, the decision was an assessment about the applicant’s child in which the applicant was identified adversely. As a consequence of being so identified, the applicant’s name was recorded on the respondent’s database of persons who have caused harm to a child.

6. The applicant, having denied what had been said about him in the assessment, sought internal review so that his name could be removed from the respondent’s database.

7. On 27 August 2020, the Director Operations of JCPRP wrote to the applicant to inform him that, on review, it had been found that there was sufficient evidence to support the original assessment. That is, on internal review, the original assessment and the decision to place his name on the respondent’s database was affirmed.

8. In his application for administrative review, the applicant said that the decision for which he sought review had been made under the Children (Protection and Parental Responsibility) Act 1997 (NSW).

Proceedings before the Tribunal

9. The applicant’s application and the respondent’s application for dismissal came before me at a case conference on 19 November 2020.

10. At that case conference I made an order for the applicant to file and serve his response to the respondent’s dismissal application by 30 November 2020. I also directed the applicant to indicate in his response whether the respondent’s dismissal application could be dealt with on the papers, in the absence of a hearing. An order was also made for the respondent to file and serve any material in reply to the material filed and served by the applicant.

11. On 30 November 2020, the applicant telephoned the Registry of the Tribunal to say that he was in hospital and needed an extension of 10 to 14 days to file and serve his material. I subsequently granted an extension of time after the applicant had contacted the respondent and provided a letter from the hospital doctor.

12. In late January 2021, I asked the Registry to contact the applicant, as I was uncertain that he had received notice of the orders extending time. Recently, the applicant did respond to the Registry and advised that he had been in hospital for 40 days and did not wish to make any further submissions.

13. In his submissions, the respondent indicated that his application could be dealt with on the papers, in the absence of a hearing. The applicant has not indicated otherwise. In my opinion, I am satisfied that the issues for determination in this application of the respondent can be adequately determined in the absence of the parties by considering the material that has been filed. Hence I make an order, under s 50(2) of the AT Act, dispensing with a hearing.

14. In my opinion, given the sensitive nature of the decision for which the applicant seeks review and the material he has provided in support of his application, it is appropriate to make a non-publication order prohibiting the publication and broadcasting of the name of the applicant and his child.

The Tribunal’s administrative review jurisdiction

15. Section 28(1) of the NCAT Act provides that the Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation. Section 28(2) sets out the kinds of jurisdiction the Tribunal consists of. This includes the administrative review jurisdiction of the Tribunal (NCAT Act, s 28(2)(b)).

16. Section 30 of the NCAT Act sets out the circumstances over which the Tribunal has administrative review jurisdiction. That section relevantly provides as follows:

30   Administrative review jurisdiction

(1)   The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note—

See section 9 of the Administrative Decisions Review Act 1997.

(2)   …

(3)   An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

Note—

See section 7 of the Administrative Decisions Review Act 1997.

(4)   An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.

Note—

See section 8 of the Administrative Decisions Review Act 1997

(5)   An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.

(6)   An administrative review application is an application made to the Tribunal for an administrative review decision.

Note—

Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.

17. Section 9 of the Administrative Decisions Review Act 1997 (ADR Act) sets out when the Tribunal is vested with ‘administrative review jurisdiction.’ 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.

18. 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.

19. An ‘administratively reviewable decision’ is defined in s 7(1) of the ADR Act to mean a decision of an administrator over which the Tribunal has administrative review.

20. The term ‘administrator’ is defined in s 8(1) of the ADR Act to mean an administrator in relation to an administratively reviewable decision under enabling legislation.

Matters in issue

21. There is no dispute that the respondent is an administrator and the assessment and the decision to place his name on the respondent’s database are administrative decisions. However, the issue is whether the assessment and decision of the respondent are administratively reviewable assessments or decisions. That is, are they an assessment or decision, made by the respondent under an Act(s), other than the ADR Act, where that Act(s) provides that the assessment or decision is an administratively reviewable decision that is reviewable by the Tribunal.

Consideration

22. Section 55(1) of the AT Act sets out the circumstances where the Tribunal can dismiss an application. That section relevantly provides as follows:

(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a)   …,

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, …

23. In this case, the respondent contends that the applicant’s application is misconceived in that the Tribunal does no have jurisdiction to hear and determine his application.

24. As I have noted, the statutory framework of the Tribunal’s administrative review jurisdiction is limited to those decisions of an administrator that are specifically prescribed as being administratively reviewable by the Tribunal in an Act other than the ADR Act. Hence, the Tribunal’s administrative review jurisdiction does not enable it to enquire at large into matters that take its interest: The Mutual Life and Citizen’s Assurance Company Ltd v Attorney General (QLD) & anor [1961] HC 51, (1961) 106 CLR 48.

25. As I have noted, the applicant contends that the assessment and decision to place his name on the respondent’s database were decisions made by the respondent, under the Children (Protection and Parental Responsibility) Act 1997. The object of that Act, as explained in the 1997 Explanatory Note to the proposed Act, was to:

… [to] establish a legislative basis:

(a)   for action directed at lessening juvenile crime and assisting young persons who may be at risk, and

(b)   for fostering community involvement in the preparation of local crime prevention plans and safer community compacts for local government areas that set out measures to be taken in those areas to reduce crime generally.

26. In this regard the Children (Protection and Parental Responsibility) Act includes provision which enables:

1. a court to require one or more parent to be present during criminal proceedings against a child, and to give undertakings relating to the future behaviour of a child;

2. a police officer to safely escort of a child from a public place to their home or certain other places where the police officer considers the child to be at risk, and

3. the preparation of draft local crime prevention plans.

27. I agree with the respondent that the decision(s) for which the applicant seeks review are not decisions made under that Act.

28. Section 30 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care Act), I note, makes provision for the respondent to investigate and assess any report that is received of a child or young person who is suspected of being at risk of significant harm. That section relevantly provides as follows:

30   Secretary’s investigations and assessment

On receipt of a report that a child or young person is suspected of being at risk of significant harm—

(a)   the Secretary is to make such investigations and assessment as the Secretary considers necessary to determine whether the child or young person is at risk of significant harm, or

(b)   the Secretary may decide to take no further action if, on the basis of the information provided, the Secretary considers that there is insufficient reason to believe that the child or young person is at risk of significant harm.

Note—

Under section 248, the Secretary may direct certain bodies, including the NSW Police Force, a government department or agency, a public authority, a school, a local health district and a hospital to furnish the Secretary with information concerning the safety, welfare and well-being of a child or young person.

Under section 17(2), the Secretary may request government departments or agencies, or non-government agencies in receipt of government funding, to provide prioritised access to services to children or young persons who are at risk of significant harm and to their families.

29. Decisions made, or action taken, by the respondent pursuant to s 30 of the Care Act are not reviewable by the Tribunal. However, s 30 does give the Secretary the power to make decisions and take actions in regard to reports of a child being at risk of significant harm.

30. Section 245 of the Care Act also makes provision for administrative review, by the Tribunal, of specified decisions made by a designated agency, including a decision about persons authorised as carers under s 137 of the Care Act to provide statutory out-of-home care and decisions to disclose, to a parent or another significant person, high level information concerning the placement of his or her a child or young person in out-of-home care (see s 149G of the Care Act). Section 245 is 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 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)   (Repealed)

(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)–(f)   (Repealed)

(f1)   a decision of the Secretary to transfer a child protection order to a participating State under Division 1 of Part 2 of Chapter 14A,

(g)   a decision of the Minister or the Secretary belonging to such class of decisions as may be prescribed by the regulations,

(h)   a decision of the Minister or the Secretary under section 246 with respect to the accommodation of a child or young person,

(i)   a decision of a relevant decision-maker to refuse to make a decision referred to in this section that the decision-maker is empowered and has been requested to make,

(j)   a decision of a designated agency to disclose high level identification information concerning the placement of a child or young person,

(k)   a decision of a designated agency to refuse to disclose information concerning the placement of a child or young person,

(l)   a decision of the Secretary or a designated agency as to the suitability of a person to be a guardian.

(m), (n)   (Repealed)

(1A) Sections 29–31 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 do not apply in respect of a review of a decision referred to in subsection (1)(j) or (k).

(1B)   For the avoidance of doubt, subsection (1)(c) does not extend to any decision in relation to—

(a)   the preparation of a permanency plan, or

(b)   the enforcement of a permanency plan that has been embodied in, or approved by, an order or orders of the Children’s Court.

(2)   In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children’s Court.

31. Section 28(1) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) provides that a person may apply to the Tribunal for an administrative review under the ADR Act of any of the following decisions:

(a) a decision that is an administratively reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 154 of the Children’s Guardian Act 2019, section 35 of the Disability Inclusion Act 2014 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

(a1) a decision that is an administratively reviewable decision for external review under section 192 of the National Law Alignment Provisions (within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011),

(b)   a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section,

(c) a decision made by a service provider not to take action recommended by the Ombudsman under section 26 of the Ombudsman act 1974 as a result of an investigation of a complaint under Part 4 of this Act, or to take part only of the action so recommended,

(d)   a decision made by any State Minister, any Commonwealth Minister or any public authority, not being a relevant decision maker, if it is within a class of decisions that, with the consent of the Minister or public authority, is prescribed by the regulations for the purposes of this section. 

32. The term ‘community welfare legislation’ is defined in s 4(1) of the Community Services (Complaints, Reviews and Monitoring) Act. This includes:

community welfare legislation means the following Acts and the instruments in force under those Acts—

(a)   this Act,

(b)   the Adoption Act 2000,

(c)   the Children and Young Persons (Care and Protection) Act 1998,

(c1)   the Children (Education and Care Services) Supplementary Provisions Act 2011,

(d)   the Community Welfare Act 1987,

(e)   the Disability Inclusion Act 2014,

(f)   the Guardianship Act 1987,

(g), (h)   (Repealed)

(i)   any other Act relating to the provision of community services that is prescribed by the regulations,

and includes the provisions of the Boarding Houses Act 2012 and the regulations under that Act that are administered by the Minister

33. Other than the Care Act, the remaining Acts (including the regulations made under them) referred to above are of no relevance to the decision for which the applicant seeks review. Nor is cl 7 of the Children and Young Persons (Care and Protection) Regulation 2012 (NSW) of any relevance to this application as it makes provision for the administrative review, by the Tribunal, of decisions of the Children’s Guardian in regard to accreditation of a designated agency.

34. Hence, I am satisfied that the decision(s) for which the applicant seeks review is not a decision(s) that the Tribunal has jurisdiction to review. That is, the decision for which the applicant seeks review is not a decision that is reviewable by the Tribunal.

35. Whether there are other avenues of review available to the applicant, this he will need to explore further with the respondent. In this regard, I note that the respondent has informed the applicant of his right to seek amendment of his personal information under the Privacy and Personal Information Protection Act 1998 (NSW).

Conclusion and orders

36. For the reasons set out above, I find that the Tribunal has no jurisdiction to review the decision for which the applicant seeks review. On this basis I make the following orders:

1. A hearing of the respondent’s dismissal application is dispensed with under s 50(2) of the Civil and Administrative Tribunal Act 2013.

2. Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and any child referred to in the material before the Tribunal and the name of any other person which would identify the name of the applicant or child referred to in the material is not to be published or broadcasted without the leave of the Tribunal.

3. Application dismissed.

**********

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: 25 February 2021