IO v Director-General Department of Community Services

[2008] NSWADT 267

CITATION:	IO v Director-General, Department of Community Services [2008] NSWADT 267
DIVISION:	Community Services Division
PARTIES:	APPLICANT IO RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	084019
HEARING DATES:	6 August 2008
SUBMISSIONS CLOSED:	6 August 2008
EXTEMPORE DECISION DATE:	6 August 2008
BEFORE:	Britton A - Deputy President
CATCHWORDS:	Vary contact arrangements
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Reviews and Monitoring) Regulation 2004 Children and Young Persons (Care and Protection) Act 1998
CASES CITED:	The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48
REPRESENTATION:	APPLICANT In person RESPONDENT D Wells, solicitor
ORDERS:	Application for review of subject decision is dismissed for want of jurisdiction.

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 The applicant who in these reasons will be referred to by the pseudonym, IO, seeks a review of a purported decision made by officers of the Department of Community Services to vary the contact arrangements currently in place between his daughter and her mother.

2 This matter was listed for a stay application on 6 August 2008. At that hearing IO’s application was dismissed for want of jurisdiction and brief reasons given for that decision. IO subsequently made a request for written reasons under section 89(3) of the Administrative Decisions Tribunal Act 1997. These reasons are in answer to that request.

3 In these reasons IO’s daughter will be referred to as ‘IP’.

Background

4 The trigger for IO’s application to the Tribunal was his concern that the Department of Community Services (DoCS) planned to vary contact arrangements that have been in place for six years regarding his daughter and her mother. In his application for review lodged with the Tribunal on 4 August 2008, he wrote ‘The Department have recently suggested that contact be unsupervised and [a Departmental officer] is making changes to my daughter’s supervised contact with her [mother]’. He claimed that the Departmental officer wrongly claimed that his daughter has expressed a wish for unsupervised contact with her mother and when, of her initiative, his daughter attempted to ‘set the record straight’, her views were ignored. On his account, when he raised this with the officer he was told, ‘Go to court if you want. I really don’t care’.

5 The contact arrangements, to which IO refers, are set out in consent orders entered by the District Court in 2005. The Court ordered among other things that parental responsibility for IP be allocated to the Minister for Community Services and weekly supervised contact take place between IP and her mother (sections 79(1)(1)(b) and 86 of the Children and Young Persons (Care and Protection) Act 1998 (‘Care and Protection Act’). The Court noted that it was intended that IP reside with her father for the foreseeable future.

6 IO contends that the alleged plan to relax the contact arrangements contravenes the ‘principle of participation’ enshrined in section 10 of the Care and Protection Act which requires those charged with the administration of that Act to give the subject child or young person the opportunity to express their views freely and to give weight to those views. Furthermore he contends that given IP’s mother’s long history of ‘chronic mental illness’ any move towards unsupervised contact would not be in his daughter’s best interests.

7 Mr Wells, for the Director-General, advised the Tribunal that he had been instructed that no decision has been taken to vary the contact arrangement, nor were there any plans afoot to do so. He also advised that the DoCS officer IO accuses of misrepresenting his daughter’s views, denied the words attributed to her by IO.

Issues for determination

8 A preliminary issue arises for determination namely whether the Tribunal has power to review the purported decision, the subject of IO’s application. Before proceedings to decide whether it was the ‘correct and preferable’ decision it is necessary to decide whether the Tribunal has power to review the decision.

9 For the purpose of determining whether the Tribunal has power to review the purported decision about which IO’s complains, I have taken his evidence at its highest, that is, I have accepted all that he says as true. I have also accepted that the alleged conduct constitutes ‘a decision’ as defined by section 6 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). In these reasons I will refer to the alleged conduct including the ‘plan’ to vary the access arrangements as the ‘subject decision’.

Tribunal’s jurisdiction

10 The statute establishing the Tribunal, the Tribunal Act, circumscribes its jurisdiction. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal has a duty to decline to hear such cases: The Mutual Life and Citizens’ Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48.

11 Section 36(1)(b) of the Tribunal Act gives the Tribunal the power to review ‘reviewable decisions’. A ‘reviewable decision’ is defined in section 8 to mean a ‘decision of an administrator that the Tribunal has jurisdiction under an enactment to review’. (See also section 38 of the Tribunal Act.)

12 The Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act) sets out the parameters of the Tribunal’s jurisdiction in the community services area. Section 28 of that Act provides:

28 Applications to Administrative Decisions Tribunal for reviews of decisions.

(1) A person may apply to the Tribunal for a review of any of the following decisions:

(a) a decision that is a reviewable decision under section 193 of the Adoption Act 2000, section 36 of the Adoption Information Act 1990, section 20 of the Disability Services Act 1993 or section 245 of the Children and Young Persons (Care and Protection) Act 1998,

(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 that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section,

(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.

13 The issue for resolution is: does the subject decision fall within the class of decisions described in paragraph (a), (b), (c) or (d) of section 28(1) of the CAMA Act?

Does section 28(1)(a) apply?

14 Section 28(1)(a) of the CAMA provides that a person may apply to the Tribunal for a review of a decision made under section 245 of the Care and Protection Act. Section 245 lists the decisions or class of decisions which are reviewable by the Tribunal:

(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 department 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) a decision of the Minister to grant an employer’s authority or to impose a condition on, to revoke or vary any condition of, to impose a further condition on or to suspend or revoke any such authority,

(e) a decision of the Minister to declare under section 221(2) that a person is taken to be the employer of a child,

(f) a decision of the Minister to grant an exemption under section 224(1), to limit the extent of any such exemption or to impose conditions on any such exemption,

(f1) a decision of the Director-General 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 Director-General belonging to such class of decisions as may be prescribed by the regulations,

(h) a decision of the Minister or the Director-General 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.

15 IO suggested that paragraphs (a) and (c) might apply. Section 245(1)(a) relates to various decisions concerning authorised carers namely — 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.

16 None of those decisions could be said to relate to access arrangements but in any event it is unclear whether IO is an authorised carer, that is a person ‘authorised as an authorised carer by a designated agency’ (section 137 of the Care and Protection Act).

17 Nor could it be maintained in my view that paragraph (c) has any application. Even if accepted that IO is an authorised carer under the Care and Protection Act the subject decision could not be characterised as a decision to remove from IO the responsibility for the daily care and control of his daughter.

18 None of the remaining decisions listed in section 245(1) bear any relationship to the subject decision. It follows that section 28(1)(a) has no application.

Does section 28(1)(b) apply?

19 Section 28(1)(b) of the CAMA Act provides that ‘a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision’ is reviewable by the Tribunal.

20 ‘Community welfare legislation’ is defined in section 4 of the CAMA to mean 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,

(d) the Community Welfare Act 1987,

(e) the Disability Services Act 1993,

(f) the Guardianship Act 1987,

(g) the Home Care Service Act 1988,

(h) the Youth and Community Services Act 1973,

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

21 The only Act, which has any application to the facts of this matter, is the Care and Protection Act. As discussed above the Care and Protection Act does not expressly (or impliedly) provide that a decision relating to contact arrangements for children for whom the Minister has parental responsibility, is reviewable by the Tribunal.

22 Accordingly the subject decision does not fall within section 28(1)(b).

Does section 28(1)(c) apply?

23 A decision will be reviewable under this paragraph if, it is (1) made by a ‘relevant decision maker’ and (2) is of a class prescribed by the regulations for the purposes of this section.

24 The relevant decision maker in this case is the Director-General of the Department of Community Services (section 28(2)(d) of the CAMA Act). Clause 5 of the Community Services (Complaints, Reviews and Monitoring) Regulation 2004 lists the class of decisions prescribed under section 28(1)(c) of the CAMA Act. These include a decision made by a service provider not to take action recommended by the Ombudsman and various decisions made by the Minister or the Director-General under the Disability Services Act 1993.

25 The subject decision could not be characterised as a decision listed under clause 5 of the Community Services (Complaints, Reviews and Monitoring) Regulation2004. Accordingly section 28(1)(c) has no application.

Does section 28(1)(d) apply?

26 Section 28(1)(d) applies to decisions made by ‘any State Minister, any Commonwealth Minister or any public authority’, not being a relevant decision maker. Here the purported decision was made by the Director-General who as noted, is a ‘relevant decision maker’.

27 Accordingly section 28(1)(d) does not apply.

Decision

28 Having examined the relevant statutory provisions I have concluded that the Tribunal does not have power to review the subject decision. For these reasons I have no option but to dismiss IO’s application.

Orders

Application for review of subject decision is dismissed for want of jurisdiction.