Gray v Coffs Harbour Family Day Care Scheme (CSD)

[2005] NSWADTAP 50

Appeal Panel - Internal

CITATION:	Gray v Coffs Harbour Family Day Care Scheme (CSD) [2005] NSWADTAP 50
PARTIES:	APPELLANT Rhonda Gray RESPONDENT Coffs Harbour Family Day Care Scheme
FILE NUMBER:	059043
HEARING DATES:	30/09/05
SUBMISSIONS CLOSED:	09/30/2005
DATE OF DECISION:	10/31/2005
DECISION UNDER APPEAL:	Gray v Coffs Harbour Family Day Care Scheme
BEFORE:	Kelly T (Deputy President); Wilson R - Judicial Member; Norman C - Non Judicial Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	054015
DATE OF DECISION UNDER APPEAL:	06/17/2005
LEGISLATION CITED:	Children (Care and Protection) Act 1987 Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004 Family Day Care and Home Based Child Care Services Regulation 1996
CASES CITED:
REPRESENTATION:	APPELLANT C Lonergan, barrister RESPONDENT H Stowe, barrister
ORDERS:	The decision that the Tribunal does not have jurisdiction to hear the Appellant’s application is set aside and the application is remitted to the Tribunal for hearing

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.


(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,


whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 This appeal is brought against a decision of this Tribunal at first instance that it did not have jurisdiction to entertain an application brought by the Appellant. That application was one which sought a review of a decision made by the Respondent to remove the Applicant’s name from a register that it maintained as a licensee under the provisions of legislation dealing with and regulating the provision of child care services. Such regulation was initially achieved by the provisions contained in the Children (Care and Protection) Act 1987 but, as from the introduction of relevant provisions of the Children and Young Persons (Care and Protection) Act 1998, control and regulation of these services has passed from the former Act to the latter.

2 The facts in this interlocutory matter are of short compass and were established before the Tribunal below by way of tacit acceptance by the parties in their written submissions.

3 As at 13 January 2005 the Respondent was a provider of child care services, in relation to which it was properly licensed under applicable legislation as a provider of family day care children’s services, and the Appellant was a person who was properly registered by the Respondent as a family day care carer.

4 The Applicant was not the grantee of any licence in relation to the provision of child care services, but she was able to provide such services lawfully by reason of the fact that, inter alia, the Respondent had registered her name as a carer of children. On 13 January 2005 the Respondent wrote to the Applicant advising that she, the Applicant, was to be removed from this register effective from 21 January 2005.

5 The Appellant then sought a review of that decision by this Tribunal within the time allowed. These facts have been common ground between the parties at all stages of this litigation. With the consent of the parties the Tribunal below only determined the jurisdictional issue as a preliminary point.

6 The current legislation that governs licenses and registrations of the like under consideration here is the Children and Young Persons (Care and Protection) Act 1998 (the “1998 Act”) and the Children’s Services Regulation 2004 (the “2004 Regulation”). Regulation 123A of this Regulation confers a right upon a family day care carer to seek review in this Tribunal of a decision by a licensee of a family day care children’s service to remove the name of the carer from the register maintained by the licensee. This regulation was operative as at 13 January 2005. The facts satisfy the several elements of regulation 123A; the Appellant was a carer, the Respondent was a licensee and the decision was one to remove the Appellant’s name from the register.

7 If this were all, it would necessarily follow that the Tribunal had, and has, jurisdiction to entertain the Appellant’s application for a review of the subject decision pursuant to regulation 123A. However, the Respondent argues that in the particular circumstances of this matter this conclusion does not follow. This argument is based upon the fact that, historically, the Respondent’s license and the Appellant’s registration were first effected under earlier legislation. This fact is common ground and the parties requested the Tribunal below, and this Tribunal on appeal, to determine the jurisdictional issue upon this basis.

8 The earlier legislation in question is the Children (Care and Protection) Act 1987 (the “1987 Act”) and the Family and Day Care and Home Based Child Care Services Regulation 1996 (the “1996 Regulation”). The Respondent was initially licensed under the 1987 Act and the Appellant was registered under the 1996 Regulation. This was common ground between the parties, at least for present purposes.

9 On 30 September 2004 Part 12 of the 1998 Act came into force and Division 1 of Part 3 of the 1987 Act (which dealt with the licensing of child care services) was repealed. The 1996 Regulation was repealed on that day also. From that time onwards the 1998 Act controlled the licensing of the relevant services, at least in so far as the grant of fresh licences were concerned. Also, on that day, the Children’s Services Regulation 2004 commenced. It contained numerous provisions relating to licences issued under the 1998 Act. However, this Regulation, in Schedule 2, also contained saving and transitional provisions which both continued and regulated the Respondent’s existing licence in a number of ways: the Respondent was thereafter taken to be the holder of a licence under the 1998 Act (clause 2(1)); the licence was to remain subject to the same conditions as it had been prior to this date, it was to remain in force until its natural expiry (or 31 December 2005 at the latest) and it was not subject to the conditions which would otherwise be imposed upon it by Parts 3, 4, 5, 6 and 7 of the 2004 Regulation (clause 2(2)).

10 The import of these transitional provisions is quite clear: they provide a period of grace to enable an existing licence holder to adjust to the impending imposition of conditions imposed by the 2004 Regulation. This period of grace (the “transition period” defined in the Regulation) runs between 30 September 2004 and 31 December 2005, unless the licence naturally expires during this period.

11 Should the licence naturally expire within this period the licence holder is permitted to seek a renewal of the same licence which, if granted, would carry through until the end of the transition period (Schedule 2 clause 3). It is clear from clause 3(2) that any such renewal application is to be made pursuant to the 1998 Act and the 2004 Regulations as there are specific exemptions from the 2004 Regulations that are applicable in certain cases.

12 In the event that the licence is renewed the licence is taken to have been granted upon the same conditions that applied to it earlier during the transition period and it is not subject to Parts 3, 4, 5, 6 and 7 of the 2004 Regulation (clause 4). It should be noted that in relation to any such renewal, there is no provision deeming the holder of the renewed licence to be a holder pursuant to the 1998 Act (as there is in the case of an existing licence by reason of clause 2(1)). The absence of a provision like this is further reason for the view that the renewal application is actually made under the 1998 Act and the 2004 Regulations.

13 Consequently, as from 30 September 2004, the 1998 Act and the 2004 Regulations govern the licensing of child care services. Clearly this must be so with respect to the issue of new licences. This is also the case with respect to licences issued under the 1987, which are on foot as at 30 September 2004. Such licences are continued during the transition period pursuant to the provisions of the 2004 Regulations by reason of the transitional provisions referred to above. That this is the correct construction is also implicit in the provisions in clauses 4, 6, 10, 12 and 13 of Schedule 2 to the 2004 Regulation.

14 The Appellant is not a licence holder under the 1998 Act and she did not hold a licence under the 1987 Act. Under the latter Act and the 1996 Regulation her name was registered by the Respondent as a child carer. Under the 2004 Regulation she is deemed to be a “family day care carer”, which is defined in the Regulation Dictionary, under the “transferred licence” (Schedule 2, clause 10).

15 By reason of this construction of the way in which the new legislation has been introduced, and how existing licences have been provided for, the Appellant argues that the 2004 Regulation applies, except for the reservations noted. Clause 123A is not within any of these reservations and therefore she, and anyone else who is in the same position, may seek a review in this Tribunal of a decision to remove her name from the register maintained by the Respondent.

16 The Respondent however relies upon a transitional provision in the 2004 Regulation that has not yet been mentioned in these reasons, namely clause 2(3) (Schedule 2). This clause provides that the provisions of the 1996 Regulation shall apply to a licence under the 1998 Act, which is continued by reason of sub-clauses 2(1) and (2) of the 2004 Regulation, during the transition period or the natural life of the licence (as continued).

17 The Respondent then argues that, as the 1996 Regulation does not confer any rights of review upon the Appellant, then this Tribunal has no jurisdiction under the 1996 Regulation to entertain the application before it. This part of the Respondent’s argument is clearly correct: the 1996 Regulation did not confer any rights of review to this Tribunal upon a person in the Applicant’s position either before or after 30 September 2004.

18 The Respondent however, then argues that clause 123A of the 2004 Regulation does not confer any such right because clause 2(3) applies the 1996 Regulation to the Respondent’s licence during the transition period and consequently if there be a review right it must be found in the 1996 Regulation. The proposition upon which this aspect of the Respondent’s argument is based is that the provisions of the 2004 Regulations, apart from the transitional provisions in Schedule 2, have no application to the situation before the Tribunal. Once the transitional provisions have done their work and continued a 1987 Act licence, and have brought into play the 1996 Regulation, then they are to be ignored until the end of the transitional period. The critical question is whether this latter proposition is correct as a matter of construction.

19 Clause 2(1) requires that the holder of a 1987 Act licence is to be taken to be the holder of a licence under the 1998 Act for the corresponding class of licence. This must refer to a class of licence under the 1998 Act which corresponds with the existing class for which the 1987 Act licence was granted. The conditions attached to the 1987 Act licence remain unchanged (clause 2(2)(a)). These conditions were those prescribed and those additionally imposed at the time of grant (1987 Act Schedule 1 clause 6 and clause 15 of the 1996 Regulations). The prescribed conditions dealt with inspections, numbers standards and licensing standards (clause 15). Clause 2(2)(c) of Schedule 2 to the 2004 Regulations provides that Parts 3 to 7 inclusive of these regulations do not apply to the continued 1987 Act licence. The reason for this is that those Parts, in some respects, concerns like matters, as do the continued conditions, such as inspections and child numbers. This is a specific exclusion that was inserted notwithstanding the provisions of clause 2(3) of Schedule 2 to the 2004 Regulations. Upon the Respondent’s argument this specific exclusion was not necessary: the 1996 Regulation requirements would be the only ones in operation.

20 Clause 2(2)(c) does more than just ensure that the continued licence conditions, that is, those imposed upon the licence at the time of grant pursuant to clause 15 of the 1996 Regulation, continue to operate unaffected by the 2004 Regulations. There are many provisions in Parts 3 to 7 inclusive of the 2004 Regulations that impose additional requirements in relation to such matters as facilities, equipment, staff, emergencies and excursions. Under the 2004 Regulations these requirements are imposed as prescribed conditions (see clause 25 of the 2004 Regulation).

21 The 1996 Regulation contained many like matters directly imposed otherwise than as prescribed conditions (see clauses 16 to 26 of the 1996 Regulation which are in the nature of general statutory obligations rather than being conditions of the licence). However, the essential point is that the requirements imposed by the 2004 Regulation are more extensive in many respects (see for example clauses 30 to 46 of the 2004 Regulation). Clause 2(2)(c) is a specific provision ensuring that the more extensive provisions of the 2004 Regulation will not apply to the Respondent’s licence, given that it is a continued 1987 Act licence. Again, if the Respondent’s argument is correct there would be no need for this specific exclusion given the existence of clause 2(3).

22 The purpose of clause 2(3) is to impose statutory requirements governing the licence in addition to the clause 15 (1996 Regulation) conditions imposed at the time of grant. With the exclusion of Parts 3 to 7 of the 2004 Regulation it was necessary to bring the “equivalent” requirements contained in the 1996 Regulation into play, otherwise many of the statutory controls would be missing. Also, the words used in Clause 2(3), “subject to any necessary modification”, demonstrate that that this clause was not intended to continue the operation of the 1996 Regulation simpliciter. They can only mean that the provisions of this earlier regulation will apply to a continued licence save to the extent that they are modified by a provision in the 2004 Regulation. Of course, by reason of the specific exclusion of Parts 3 to 7 inclusive of this regulation by clause 2(2)(c), these particular Parts will not modify any applicable provision of the 1996 Regulation. The Tribunal also notes that clause 2(3) of Schedule 2 to the 2004 Regulation simply applies the provisions of the 1996 Regulation without excluding the application of the 2004 Regulation and that clause 123A is a remedial provision. Both of these matters suggest that the construction argued by the Respondent is not the correct one.

23 The Tribunal does not accept the construction of the 2004 Regulation as argued for by the Respondent. As from 30 September 2004 all child care services came under the control of the 1998 Act and the 2004 Regulation. Existing licences were continued under this Act and Regulation. The conditions attached to these licences at the time of grant remained in place and they became subject to the 2004 Regulation, except for Parts 3 to 7 inclusive thereof, during the transition period. The 1996 Regulation also has application, and necessarily so for the reasons stated above, but its provisions are subject to any necessary modification which is required by a provision of the 2004 Regulation or the 1998 Act, again with the exception of Parts 3 to 7 of the 2004 regulation.

24 As the 2004 Regulation applies to the Respondent’s licence, the Appellant may rely upon clause 123A and the Tribunal has jurisdiction pursuant to that clause to entertain the Appellant’s application.

ORDERS:

The decision that the Tribunal does not have jurisdiction to hear the Appellant’s application is set aside and the application is remitted to the Tribunal to be heard.