Holloway v Department of Communities (Disability Services)

[2010] QCAT 104

CITATION: Holloway v Department of Communities (Disability Services) [2010] QCAT 104

PARTIES:   Mark Allan Holloway

V

Department of Communities (Disability Services)

APPLICATION NUMBER:            GAR029-10

MATTER TYPE:   General administrative review matters

HEARING DATE:   8 February 2010

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   15 February 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay application dismissed

CATCHWORDS:  Application for stay – lack of jurisdiction under Disability Services Act 2006

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of parties.

REASONS FOR DECISION

HISTORY OF THE APPLICATION

1. Mark Holloway (the applicant) has a history of criminal activity over a period of many years commencing in adolescence that he attributes to family, educational and peer factors and from drug misuse.  Following drug rehabilitation he has had a period of four years of abstinence from drug use and no further offending.  He has completed tertiary courses and has commenced work for the organisation that was instrumental in his rehabilitation. 

2. He was issued with a negative notice under the Disability Services Act 2006 which prevents him from working at a service outlet of a disability service provider funded by the Department of Communities (Disability Services).  He has applied to the Tribunal seeking a review of the decision to issue the negative notice.     

3. Mr Holloway also sought a stay of the decision under review. 

ISSUES AND THE LEGISLATION

1. The Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides the jurisdiction for this Tribunal to carry out its functions and practices and procedures for proceedings before the Tribunal. Section 22 of the Act provides the Tribunal with the power to stay the operation of a decision when an application to review that decision has been lodged with the Tribunal.

2. The decision being reviewed by the Tribunal in this case was made under section 85(4) of the Disability Services Act 2006 (the enabling Act).The decision is a reviewable decision to this Tribunal by virtue of section 108(1) of the Disability Services Act 2006. Section 108(3) of the Disability Services Act 2006 provides that the Tribunal may not stay the operation of a decision being reviewed under section 108(1) of the enabling Act.

3. Section 6(4) of the Queensland Civil and Administrative Tribunal Act 2009 states that an enabling Act conferring review jurisdiction on the Tribunal may state the Tribunal’s functions in the jurisdiction which may add to, otherwise vary, or exclude functions stated in the Queensland Civil and Administrative Tribunal Act 2009.

4. Section 7(2) of the Queensland Civil and Administrative Tribunal Act 2009 provides that an enabling Act containing provisions that modify the provisions in the Queensland Civil and Administrative Tribunal Act 2009 prevails over the Queensland Civil and Administrative Tribunal Act 2009.

SUBMISSIONS

8. Mr Holloway made written submissions to support his stay application.   He contends that he provides the sole support for a young child.  He is on leave without pay until the review of the decision has been completed.  He contends that he has been employed in his current position for one year without any problems and he is not a risk to anyone. 
9. The respondent decision maker made written submissions on the issue of a stay order. The respondent opposes the making of a stay order. The respondent submitted that the Tribunal does not have the power to grant a stay of the operation of the reviewable decision under section 108(3) of the Disability Services Act 2006.
10. The respondent went on to make further submissions in the event that the Tribunal considered that it could consider a stay of the reviewable decision.  The submissions identified that Mr Holloway has a criminal history extending across Queensland and Victoria over the period 1992 to 2008.  That history includes convictions for a number of offences. 
11. It was submitted that it would not be in the interest of people with a disability for a stay to be granted. The submissions referred to section 76 of the Disability Services Act 2006 which provides that the paramount consideration in making a decision under that Act is the right of people with a disability to live their lives free from abuse, neglect or exploitation.   

CONCLUSION

12. The Tribunal accepts the submissions made by Mr Holloway that his means of supporting himself and the child in his care will be adversely affected in the event that a stay of the decision is not made.  It is not known how long he will be on leave without pay from his employment.       
13. The respondent’s primary submission was that the Tribunal lacked power to grant a stay of the decision under review. The effect of section 108(3) of the Disability Services Act 2006 is that the Tribunal cannot stay a decision made under section 85(4) of the Disability Services Act 2006. Reading the documentation provided to the Tribunal in this review, it appears that the decision under review in this case was made under section 85(4).
14. By virtue of sections 6(4) and 7(2) of the Queensland Civil and Administrative Tribunal Act 2009, the provisions in the Disability Services Act 2006 preventing this Tribunal from granting a stay prevail over section 22 of the Queensland Civil and Administrative Tribunal Act 2009 which would otherwise provide the Tribunal with power to grant a stay if it were found desirable to do so by the Tribunal.
15. The Tribunal is satisfied that it is not desirable in this case to make an order to stay the operation of the decision under review as it does not have the power to grant a stay of a decision made under section 85(4) of the Disability Services Act 2006. 
16. The application for a stay of the decision of the respondent made on 19 January 2010 is dismissed.