Minister, Community Services v Mrs a (CSD)

[2002] NSWADTAP 32

Appeal Panel

CITATION:	Minister, Community Services v Mrs A (CSD) [2002] NSWADTAP 32
PARTIES:	APPELLANT Minister, Community Services FIRST RESPONDENT Mrs A SECOND RESPONDENT Mrs B THIRD RESPONDENT Mr L
FILE NUMBER:	019058
HEARING DATES:	22/02/02
SUBMISSIONS CLOSED:	04/17/2002
DATE OF DECISION:	08/29/2002
DECISION UNDER APPEAL:	Jones v Minister, Community Services [2001] NSWADT 192
BEFORE:	Kelly T (Deputy President); Britton A - Judicial Member; Houlahan L - Member
CATCHWORDS:	jurisdiction - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	014009
DATE OF DECISION UNDER APPEAL:	11/29/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children (Care and Protection) Act 1987 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:	Jones v Minister, Community Services [2001] NSWADT 192 Mayhew v A [1999] NSWADTAP 1 Lloyd v Veterinary Surgeons Investigatin Committee [1999] NSWADTAP 3 Brandusoiu v Commissioner of Police [1999] NSWADTAp 8 Gelderman v Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27 McGrory v Director-General of the Dept of Community Services (Sup Ct Unrep Brownie J 25 June 1992) Talbot v Minister for Community Services unreported NSW Supreme Court 22 April 1993 Britain v Minister for Famil & Community Services unreported NSW Supreme Court 23 December 1991 Drake v Minister for Immigration and Ethnic Affairs (1979) 46FLR 409 YG & GG v Minister for Community Services [2002] NSWCA 247 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Sean Investments Pty Ltd v MackEllar (1981) 38 ALR 363 Associated Provincial Picture Houses Ltd v Wednesday Corporation (1948) 1 KB 223 Absolen v NSW TAFE [1999] NSWCA 311 Woodside & anor v Director General, Department of Community Services (CS) [2000] NSWADTAP 8
REPRESENTATION:	APPELLANT M Anderson, barrister FIRST RESPONDENT C Olborne, barrister SECOND & THIRD RESPONDENT K Lindsey, solicitor
ORDERS:	The decision under appeal is affirmed

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,
(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 Minister for Community Services (“the Minister”) brings this appeal against a decision of the Community Services Division of the Administrative Decisions Tribunal (“the Tribunal”) made on 29 November 2001 (“the original decision”). The issue for determination was whether the Minister made the correct and preferable decision in terminating the applicant’s custody of a ward: Jones v Minister, Community Services [2001] NSWADT 192. We will refer to the applicant in the original proceedings as Mrs A, the ward who was the subject of the Minister’s decision as K and the proposed future carers of K as Mr and Mrs L.

2 Three members constituted the Tribunal in the original proceedings. Two members of the Tribunal ordered that the decision to terminate custody be set aside. The remaining member affirmed the Minister’s delegate decision. Section 78(1) of the Administrative Decisions Tribunal Act 1997 (“the Tribunal Act”) provides that where the Tribunal is constituted by more than one member and the members are divided in opinion, the majority opinion is taken to be the decision of the Tribunal.

3 On 28 October 1998 K was placed in the care of Mrs A. On 6 February 2001 the Minster’s delegate determined that K should be placed in the care of Mr and Mrs L. On 12 February 2001 Mrs A lodged an application with the Tribunal for review of the Minister’s decision. On 23 February 2001 the Tribunal stayed the operation of the decision to remove K from Mrs A’s care. K continues to reside with Mrs A.

4 The following extract from the original decision provides a useful summary of the findings and conclusions of the Tribunal:

[1] This application concerns a child, [K], who is three and a half years old (DOB: 18/2/98). [K] is of Aboriginal descent and has been made a ward of the State until she turns 18 years old. K is currently in the care of [Mrs A], a 54-year-old woman who is not of Aboriginal descent. The Minister for Community Services (the Minister) decided to remove her from this [Mrs A’s] care and place her with two of her older siblings, P (DOB: 11/5/96) and L (DOB: 3/12/94). These children are currently in the care of Aboriginal foster carers, [Mr and Mrs L], who are 69 and 62 respectively. [K] has several other siblings, but only has regular contact with P and L.

[94] Our task is to weigh up the impact on [K] of removal from [Mrs A] with the impact on her of relocating to the [L’s] where two of her siblings live. The expert witnesses were evenly divided in their opinions. We found the conclusions and recommendations of Ms Starkey and Ms Single to be more persuasive than those of Ms Wilson or Ms Yeo. Ms Wilson and Ms Yeo focused primarily on cultural identity issues. They did not adequately weigh up all the relevant factors in coming to their conclusions.

[95] The factors which are in favour of [K] moving to the [L’s] are that she would be living with her siblings within the Aboriginal community. [K’s] relationship with her siblings and her Aboriginal identity would be enhanced by this move. If this option was available when [K] first came under the guardianship of the Minister, it would have been a better option than placing [K] separately with [Mrs A]. But that option was not available at the time and [K] was placed with [Mrs A]. In the three years since then [K] has developed a strong emotional attachment to [Mrs A]. We accept the evidence of Ms Starkey and Ms Single that the loss of her psychological parent, [N] as her sibling and her home environment would not be outweighed by the benefits in terms of the enhancement of her cultural identity and increased contact with her siblings.

[96] We also support Ms Single’s conclusion that it would be a positive thing if Mrs A’s attitudes to [K’s] Aboriginality could change so that K could identify strongly with the ATSI [Aboriginal and Torres Strait Islander] community. We believe that Mrs A’s comments about [K’s] Aboriginality can be attributed, in part, to her fear that K would be removed from her care. This view is supported by the fact that the staff at Murawina stated that Mrs A has been supportive of developing [K’s] Aboriginal identity. In our view, once [K] is securely in [Mrs A’s] care for the long term, there will be no need for her to question Aboriginality with the Department. This should clear the way for [Mrs A] to embrace and nurture [K’s] cultural identity to the best of her ability.

[97] Our final point is that there is insufficient evidence of the [L’s] capacity to look after three young children in the long term. This is an added risk to [K] should she be removed.

[98] Our conclusion is that [K’s] safety and well-being will be best promoted if she remains in [Mrs A’s] care. At the same time continuing contact must be ensured between her and her Aboriginal family, community and culture.”

5 The Minister’s appeal is brought under s 113 of the Tribunal Act. The Tribunal’s decision is an “appealable decision” under Chapter 7 Part 1 of the Tribunal Act. The Minister appeals the original decision and, with leave, seeks a review of the merits of that decision. Section 113(2) of the Tribunal Act provides that a party may appeal “on any question of law” and with the leave of the Appeal Panel, may extend [the appeal] to a review of the merits of the appealable decision.”

6 It is well established that an appeal can only be extended to considering the merits if an arguable question of law has been identified. See generally: Mayhew v A [1999] NSWADTAP 1; Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWADTAP 3; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8; Gelderman -v- Veterinary Surgeons Investigating Committee (GD) [2001] NSWADTAP 27.

Grounds of Appeal

7 An amended Notice of Appeal, setting out eight grounds of Appeal, was filed for the Minister on 19 December 2001. We understand that Counsel for the Minister, Mr Anderson, argues that those grounds represented four main categories of legal error. First, the Tribunal lacked jurisdiction to review the decision to remove K from Mrs A and therefore was without power to decide that the decision to terminate “custody” should be set aside (Ground 1A). Second, in the alternative, the Tribunal exceeded its powers by taking account of, and in effect reviewing, the decision of the Minister to place K with alternate carers (Grounds 1, 3 and 4). Third, the Tribunal misdirected itself and failed to take account of the legislative prescriptions concerning the reunion of Aboriginal children with their family and/or community (Grounds 2 and 5). And finally, the Tribunal erred by failing to have proper regard to all relevant considerations (Grounds 6 and 7).

Ground 1A: Jurisdiction.

8 The appellant asserts that the Tribunal was without jurisdiction to review the Minister’s decision. This argument lies at the heart of the appellant’s case. If the appellant is correct it will be unnecessary to consider the remaining grounds of appeal. It is somewhat surprising that this point was not raised by the appellant during the original hearing. While a party is, of course, entitled to take a jurisdictional point at any time during the proceedings, it is unfortunate that it is raised so late after the expenditure of so much time, effort and resources by the parties and the Tribunal.

9 Before considering the parties’ submissions we will set out the legislative basis of the Tribunal’s jurisdiction to review a decision of the Minister to terminate custody of a child.

Relevant Legislation

10 Section 38 of the Tribunal Act gives the Tribunal jurisdiction to review a decision if an enactment provides for this. Paragraph 40(1)(a) of the Community Services (Complaints Reviews and Monitoring) Act 1993 provides that a person may apply to the Tribunal for a review of any of the following decisions:

a decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this paragraph

11 Sub-section 112(1)(h) of Children (Care and Protection) Act 1987 (the 1987 Act) allows an appeal against a decision of the Minister to terminate custody of a ward or protected person under s 91(1)(e) of that Act:

For the purposes of section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal:
(h) a decision of the Minister to terminate the custody of a ward or protected person under section 91(1)(e).

12 Section 91(1)(e) gives the Minister the power to terminate the custody of a ward or protected person who has been placed in custody under s 91(1)(d):

The Minister:
(d) may, subject to such conditions as may be prescribed by the regulations and to such additional conditions as the Minister may determine, place any ward or protected person:

(i) in the custody of a person in charge of a non-government organisation, or

(ii) for the purpose of the ward or protected person being fostered, in the custody of any person approved by the Minister, being a person who is willing to undertake the custody of the ward or protected person;

(e) may terminate the custody of a ward or protected person who has been placed in the custody of a person referred to in paragraph (d)(i) or (ii).

13 A “ward” is defined by s 3 of the 1987 Act to include a child declared to be a ward under this Act by an order in force under section 72(1)(c)(iii).

14 Section 90(1) of the 1987 Act provides that

(1) The Minister is the guardian of a ward, and, subject to this Act, has the custody of a ward to the exclusion of any other person, until:
(a) the ward attains the age of 18 years,

(b) the guardianship of the Minister:

(i) is terminated by the Minister under subsection (2), or

(ii) is terminated by the Supreme Court in the exercise of its jurisdiction with respect to the custody and guardianship of children, or

(c) the ward ceases to be a ward by virtue of any other provision of this Act, whichever first occurs.

15 The appellant contends that the Tribunal made an error of law in finding that it had jurisdiction to review the decision to place the child K in the care of someone other than the applicant. The appellant argues that this is the case because K had not been placed in the care of Mrs A pursuant to s 91(1)(d)(i) or (ii) of the 1987 Act and because K was not a ward or “protected person” under the legislation at the relevant time. The appellant says this means that there was no reviewable decision.

16 It is common ground that on 28 August 1998 K was taken into care by the Department of Community Services and placed in the applicant’s short-term care to enable her father to undertake treatment and pending a court decision. K was six months old at the time. On 9 October 1998, the Children’s Court made an order pursuant to s 72(1)(c)(iii) of the Act declaring K and two of her siblings wards until each child attained the age of two years. This appears to have been an error on the part of the Court because at that time one of the children was four years old. It seems that the intention was that each child was to be made a ward for two years and that is how the Department proceeded in any event. On 20 October, the Children’s Court made further orders declaring the children wards until they were 18 years old.

17 K has remained with Mrs A since 28 August 1998. On 6 February 2001, the Minister’s delegate, Rebecca Haddock, determined that K was to be removed from Mrs A’s care and placed with Mr and Mrs L, who were already caring for K’s two siblings. On 12 February 2001, Mrs A lodged an application for review of the Minister’s decision.

18 The appellant contends that there is no reviewable decision because the Minister did not place the child with Mrs A. Rather the Director-General had placed K with Mrs A on a short-term basis on 28 August 1998. The appellant’s argument is that until 6 February 2001, when Ms Haddock acting as the delegate of the Minister made the decision to place K in the care of the Ls, there had been no relevant decision pursuant to s 91(1)(d). Therefore there was no jurisdiction in the Tribunal to deal with the application.

19 It is true that the Tribunal does not have jurisdiction to review a decision by the Minister to place a ward or protected person in the custody of another person. However it does have jurisdiction to consider an application about a decision to terminate such a placement. The effect of the first respondent’s argument is that, as a matter of practicality, it must be inferred from the circumstances that when K became a ward and the Minister became responsible for her, that the decision she or her delegate made was to place K for the purpose of being fostered in the applicant’s care. There is no doubt that the Minister’s (or her delegate’s) objective in November 1998 was, if possible, to place K and her siblings in the long-term custody of the same Aboriginal foster carers. This does not determine or derogate from the nature of the decision made to place K with the applicant no matter who made that particular decision, a question we will come to below.

20 There is no doubt that on 28 August 1998 K was neither a ward nor a protected person. She did not become a ward until October that year. But there is equally no doubt that once K became a ward the Minister was obliged to make decisions to meet her statutory responsibilities for the care, welfare and protection of the child.

21 The first respondent submits and the appellant argues against the proposition that once the child was placed in wardship under the care of the Minister by the Court in October 1998, the orders requiring the Director-General to care for the child lapsed. The first respondent contends that the Director-General’s responsibilities in respect of the child were no longer direct but delegated from the Minister. The appellant argues the opposite. The appellant relies upon the decision in McGrory v Director-General of the Dept of Community Services (Sup Ct Unrep Brownie J 25 June 1992). The respondent argues that McGrory is to be distinguished on its facts.

22 In that case, the Community Welfare Appeals Tribunal (whose jurisdiction now lies with this Tribunal), relying on an advice of Wayne Haylen QC (now Mr Justice Haylen) determined that it had no jurisdiction to review a decision to hear an appeal against the Minister’s decision to terminate the custody of a ward under s 91(1)(e). Brownie J remarked by way of obiter dicta that he respectfully agreed with the Tribunal’s decision in that case.

23 The facts in McGrory were, in summary, that on 17 September 1991 the child Matthew McGrory was born. On 4 October 1991 he was removed from his mother and on or about 8 October placed in temporary care with a Mr and Mrs Higgins. On 21 February the following year he was declared a ward by the Children’s Court. Three days later a case conference was convened by the Department and on 27 February 1992 a delegate of the Minister decided that the child should be placed with his paternal aunt. David McGrory, the child’s maternal uncle, appealed to the Community Welfare Appeals Tribunal against the decision to remove him from the custody of the Higgins.

24 It seems to us that McGrory, apart from the fact that Brownie J’s remarks on jurisdiction were merely obiter dicta and therefore not binding (although probably correct) that case should be distinguished on its facts. It is clear that the child’s placement with the Higgins was a temporary care measure by the Director-General pending his placement with foster carers on a long-term basis by the Minister. In this case, however, the Departmental records show that once K was made a ward the Minister left her in the respondent’s care for an indefinite period, leaving the respondent to make the day-to-day decisions concerning the child’s lifestyle. This is one critical distinction between the situation in McGrory and the facts obtaining here. The length of the placement with the respondent is, from a purely objective point of view, inconsistent with an intention on the part of the Minister to leave K in temporary care. Rather, it is consistent with an intention on the part of the Minister to place her in the care of the respondent.

25 Mr Anderson for the appellant submits that the Supreme Court decision in Talbot v Minister for Community Services, unreported NSW Supreme Court, 22 April 1993, supports the proposition that the Director -General may continue to have care for a child notwithstanding that s/he has been declared to be a ward of the Minister. In Talbot the decision of Britain v Minister for Family & Community Services, unreported NSW Supreme Court, 23 December 1991, was considered. In that case McLelland J considered the effect of a decision of the Children’s Court declaring a child to be a ward:

“The making of an order under s 72 declaring a child to be a ward under the Act has a different effect which is described in Part 6 of the Act. In such a case it is the Minister who becomes the guardian of the child and, subject to the Act, has the custody of the child to the exclusion of any other person (see s 90(i)). A child declared to be a ward is not ‘a child who is in the care of the Director-General under part 5’.”

26 In Talbot, Young J commented:

“Although Britain’s case is authority for the proposition that a child declared to be a ward is not a child in the care of the Director-General, it by no means follows that the Director-General may not have care of a child who is a ward of the Minister. I do not think it follows that just because there is an order that the child be in the care of the Director-General that wardship must, ipso facto, terminate.”

27 This qualification should be considered in the context of the facts of Talbot. There the children were made wards of the Minister on 5 September 1991 under s 72(1)(c)(iii) of the 1987 Act, and the father of the children made an application under s 75 to rescind that order. On 20 November 1992 this application came before a magistrate who made an order placing the children in the care of the Director-General under s 77. The matter came before another magistrate on 17 February 1983 and he declined to make any such order. His Honour was considering the effect of these various orders and non orders.

28 It seems to us that it is not open to the appellant to argue that the decision to place K with the first respondent was the Director-General’s and not the Minister’s. As she had become the child’s guardian once the child was made a ward, all decisions in respect of the care and custody of K following the making of the wardship order were ultimately the Minister’s responsibility. Once the wardship order was made, the Minister had to make certain decisions concerning arrangements for the care and custody of the child. A decision is defined in s 6(1)(g) of the Tribunal Act to include “doing or refusing to do any other act or thing” as well as those acts referred to in s 6(1)(a)-(f).

29 The Children’s Court can not make an order granting wardship to the Minister under s 72 unless it first receives a report under s 74, which states:

The Children’s Court shall not make an order under s 72(1)(c)(ii)or(iii) unless (a) the Director General has tendered to the Children’s Court an assessment report prepared in accordance with the regulations with respect to the child

30 There were three reports produced to the Children’s Court under s 74, dated 23 September 1998, 7 October 1998 and 4 October 2000 all of which make it clear that K was to be left in the custody and control of Mrs A. All were co-signed by the Assistant Manager of the Department’s Mt Druitt Office. The holder of that office at 4 October 2000 was Rebecca Haddock who also signed the instrument dated 2 February 2001, as the Minister’s delegate and which removed K from the care of Mrs A. This may mean that the Departmental officers who were overviewing the arrangements in regard to K were, from the date of the wardship likely to have been the Minister’s delegates. Further the fact that the Minister’s instrument of 2 February 2001 was signed by the Minister’s delegate leads to the conclusion that the delegate was likely to known details of the Minister’s placement

31 It is a matter of common knowledge, of which this Appeal Panel could take judicial notice, that when a child is made a ward of the Minister, the child is not taken into the bosom of the Minister’s own family but is generally placed, if possible, with suitable foster parents who assume the day-to-day responsibilities of caring for the child. The 1987 Act does not define the meaning of “foster”, “fostering” or “foster parent” but the words are ordinary English language. In the context of s 91(1)(d) a “foster parent” is a person with whom a child is lawfully placed by the Minister pursuant to the Act. The foster parent has custody of the child subject to any conditions which may be applied by the Minister.

32 These people may be distinguished from those who provide short-term care, especially for those children for whom the Director-General has responsibility. To “foster” is defined in the Macquarie Dictionary as meaning, among other things, “to promote the growth or development;… to bring up as a foster-child”. A “foster-child” is described as “a child brought up by someone not its own mother or father”. The foster parent has custody of the child. The 1987 Act unhelpfully defines “custody” as “in relation to a child, means custody of the child to which a person is entitled at law. In Talbot, Young J considered the meaning of “custody” in s 91(1)(f) of the 1987 Act:

“If ‘custody’ in s 91(1)(f) has its defined meaning then there is no other way one can make the whole statue operate than to say that the Minister’s custody under s 90(1) is subject to anything else that happens under the Act, such as the Minister’s action under s 91(1)(f). This would then leave the Minister as the guardian and able to fund the children and supervise them whilst a person with custody would make the day to day decisions as the lifestyle of the children.”

33 The appellant’s argument on this ground seems to rest on an assumption that there was no act or omission by the Minister that could be characterised as a decision pursuant to the Act to place K with the applicant (or anyone else) for the purpose of being fostered, and that therefore there was no decision to terminate the placement. This in turn implies that the appellant is or would be content to leave a child in so-called “temporary care” for an indefinite period, sometimes for years, without making a further decision in relation to the child’s long (or medium) term care, protection and welfare. If such a proposition were true, it would be a sorry dereliction of duty on the part of the Minister. We find it so extraordinary a suggestion that it is simply and utterly implausible.

34 It was one thing in McGrory for the Minister to choose not to interfere with the Director-General’s placement of the child with the temporary carers, in the knowledge that the long-term future of the child would be determined within a short period after the wardship order was made. It is completely another for the Minister not to make any decision regarding placement, as Mr Anderson contends was the case, where the plan is not for the short-term but for an indefinite, and possibly very lengthy, period. In the latter situation we think that it must be inferred that the Minister made a decision to place the child. As Mr Colbourne for the respondent remarked rhetorically during his submissions, “What sort of guardian is the Minister if he (sic) doesn’t turn his (sic) mind to over a two year four month period as to who should have custody of one of his (sic) wards?”

35 The fact that there is no documentation of the decision is unfortunate. This may indicate that the decision-making process undertaken in respect of K was not as regular as might be expected. However it should not necessarily be inferred that the Minister negligently failed to make a decision for nearly three years about placing this child to be fostered. Again, such a scenario is implausible. The provision of financial and other support to the applicant, in our view, implies the opposite. That is, the Minister recognised the need to provide foster care to the child and decided that the applicant, who had had the temporary care of the child, was to continue providing foster care to the child until this arrangement was lawfully terminated. In our view it must be inferred from the circumstances that the Minister decided, after assuming responsibility for the child, to adopt the Director-General’s placement of K with the applicant as her own. The distinction was that once K had become a ward her placement was so the applicant could provide foster care to the child.

36 In our opinion, this ground of appeal fails.

Ground 1: Error by inquiring into best placement of K

37 It is submitted for the appellant that the Tribunal erred by construing that s 91(1)(e) of the 1987 Act permitted it to inquire into the proposed placement of K with Mr and Mrs L. Mr Anderson contends that the Tribunal, unlike the Children’s Court or the Supreme Court, has no jurisdiction to review a decision to place a ward in the custody of a person. The parameters of the Tribunal’s inquiry are set by s 91(1)(e) i.e., the Tribunal has jurisdiction only when the decision under review is a decision to terminate custody. As the Tribunal has no power to review a decision of the Minister to place a ward (or protected person) it follows argues Mr Anderson that the Tribunal has no power to consider the suitability of the proposed placement of K with Mr and Mrs L.

38 While the appellant acknowledges that the Tribunal’s review powers are not to be exercised in a vacuum. Mr Anderson argues that the Tribunal is not permitted to extend its inquiry into a comparison of the respective merits of competing carers. An examination of the decision to place K with alternate carers is only relevant, argues Mr Anderson, to render the decision maker accountable and guard against any peremptory decision. It is only to this limited extent that the decision to place K with other carers can be seen as relevant to the Tribunal’s inquiry.

39 The powers of the Tribunal when reviewing a decision are set out at ss. 63- 66 of the Tribunal Act:

63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

64 Application of Government policy
(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.
65 Power to remit matters to administrator for further consideration
(1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

(2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may:

(a) affirm the decision, or

(b) vary the decision, or

(c) set aside the decision and make a new decision in substitution for the decision set aside.

(3) If the administrator varies the decision:
(a) the application is taken to be an application for review of the decision as varied, and

(b) the person who made the application may either:

(i) proceed with the application for review of the decision as varied, or
(ii) withdraw the application.
(4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside:
(a) the application is taken to be an application for review of the new decision, and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision, or

(ii) withdraw the application.

66 Effect of a review decision
(1) A decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision.

(2) If any such decision varies, or is made in substitution for, an administrator's decision, the decision of the Tribunal is taken:

(a) to be the decision of the administrator (other than for the purposes of a review under this Chapter), and

(b) to have had effect as the decision of the administrator on and from the date of the administrator's actual decision, unless the Tribunal orders otherwise.

40 In summary, the Tribunal must decide what the “correct and preferable decision is having regard to the material then before it”. The Tribunal may exercise all of the functions the administrator (here, the Minister) could have exercised and may affirm, vary, set aside or remit his or her decision.

41 In exercising its powers under s 63 of the Tribunal Act, the Tribunal conducts a hearing de novo The role of the Tribunal is not, as we understand Mr Anderson to argue, merely to guard against peremptory or unjustified decision-making. Rather the Tribunal’s functions on review are administrative in character. The role of a tribunal in reviewing administrate decisions was commented on by Bowen CJ and Drake J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46FLR 409 at 419:

The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

42 The stated reason for the Minister’s decision was that the Minister’s delegate considered it to be in K’s best interest to be placed with two of her siblings in the care of Mr and Mrs L. This is not in question. Nor is Mrs A’s suitability as a carer in issue.

43 We do not accept that in the circumstances of this case the proposed placement of K with Mr and Mrs L can be considered relevant only for the limited purpose advocated by Mr Anderson. The Tribunal, when conducting a review under s 63 of the Tribunal Act, is required to determine “the correct and preferable decision…hav[ing] regard to the material then before it” including “any relevant factual material”. The Tribunal’s inquiry is not limited solely to reviewing the process employed by the decision-maker in reaching a decision or the factors he or she took into account.

44 The circumstances of each case will determine what material is relevant for the Tribunal when reviewing a decision made under s 91(1)(e) of the 1987 Act. Broad guidance as to how the task of review is to be approached is provided by s 89(1) of the 1987 Act. This mandates that “the welfare and interests of wards and protected persons shall be given paramount consideration.” However, neither the 1987 Act nor the Tribunal Act specifies the criteria that will be relevant to a decision to terminate custody.

45 This absence of any criteria does not, however, permit an inquiry at large. The Tribunal must take into account only those matters that are relevant to the decision under review. This does not mean that the Tribunal is barred from taking into account considerations that could also be relevant to a decision of an entirely different character. It may be, for example, that material relevant to a decision to grant a person a licence to operate a childcare establishment is also relevant to a decision to revoke the licence. In some cases, identical or similar matters may be relevant to a decision to terminate custody (a reviewable decision under s 91(1)(e)) and a decision to place a ward or protected person in the custody of a person (a non reviewable decision under s 91(1)(d)). When reviewing a decision to terminate custody, the Tribunal may consider matters that overlap with factors that the Minister might take into account in a decision to place a ward. This does not mean that the Tribunal has strayed into reviewing a non-reviewable decision. The fundamental principle is that the Tribunal, just like any other administrative decision-maker, must not take into account irrelevancies when making its determinations or decisions. The question of whether a matter is relevant to the decision is determined by a consideration of whether the material concerned could reasonably, legitimately and materially affect the decision arrived at. If the answer is yes, the material is relevant. If the answer is no, the material should not be taken into account.

46 As acknowledged by Mr Anderson, the Tribunal’s power cannot be exercised in a vacuum. The Minister decided to terminate custody because the Minister’s delegate concluded that it was in K’s best interest that she reside with Mr and Mrs L. We are at a loss to see how the very trigger for the decision to terminate custody could not be seen as relevant to the Tribunal’s inquiry. This does not mean that the Tribunal in fact engaged in reviewing a placement decision. It means simply that that some or even many of the same factors, including the relative qualities of the prospective carers, were relevant to both decisions.

47 Accordingly we find no error of law.

Ground 2: Asking the wrong question

48 Mr Anderson submits that the Tribunal erred by identifying that the overriding issue for determination [at 19] was whether “the safety, welfare and well-being of K is better served by remaining [with Mrs A] or by being moved to Aboriginal carers [Mr and Mrs L] where two of her siblings are currently placed”.

49 It is submitted for the Minister that the Tribunal erred in several ways. First it is not necessary to inquire into the appropriateness of Mr and Mrs L as possible carers for K in order to decide whether the decision to terminate custody was correct. Second, the Tribunal failed to take into account what the legislation requires in relation to placing Aboriginal children. And, third, the Tribunal misapplied s 13(6)(a) of the Children and Young Persons (Care & Protection) Act 1998.

50 This argument is somewhat circular. On one hand, the appellant asserts that the Tribunal erred by taking into account the proposed placement of K with Mr and Mrs L. On the other, the Tribunal’s decision is attacked for failing to heed what Mr Anderson describes as the “legislation prescription” to reunite Aboriginal children with their families and community. The first argument is a reformulation of the argument relied on by the Minister in relation to Ground 1.

51 At [13] to [17] of the original decision the Tribunal set out the relevant legislation and principles that apply to the placement of Aboriginal children and how those principles applied to the facts of this case:

Relevant legislation

[13] There was no dispute in this case that [K] is an Aboriginal child. Her mother is of Aboriginal descent. Her father is not an Aboriginal.

[14] Section 13 of the C & YP Act contains principles to be applied in relation to the placement of Aboriginal children in out of home care. So far as they are relevant to this case, these principles are that:

(1) The general order for placement

Subject to the objects in section 8 and the principles in section 9, an Aboriginal or Torres Strait Islander child or young person who needs to be placed in out-of-home care is to be placed with:

(a) a member of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(b) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or it would not be in the best interests of the child or young person to be so placed a member of the Aboriginal or Torres Strait Islander community to which the child or young person belongs, or

(c) if it is not practicable for the child or young person to be placed in accordance with paragraph (a) or (b) or it would not be in the best interests of the child or young person to be so placed a member of some other Aboriginal or Torres Strait Islander family residing in the vicinity of the child's or young person's usual place of residence, or

(d) if it is not practicable for the child or young person to be placed in accordance with paragraph (a), (b) or (c) or it would be detrimental to the safety, welfare and well-being of the child or young person to be so placed a suitable person approved by the Director-General after consultation with:

(i) members of the child's or young person's extended family or kinship group, as recognised by the Aboriginal or Torres Strait Islander community to which the child or young person belongs, and

(ii) such Aboriginal or Torres Strait Islander welfare organisations as are appropriate to the child or young person.

(2) Relevance of self-identification and expressed wishes of child or young person

In determining where a child or young person is to be placed, account is to be taken of whether the child or young person identifies as an Aboriginal or Torres Strait Islander and the expressed wishes of the child or young person.

(3) . . .

(4) Child or young person with one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent

If a child or young person has one Aboriginal or Torres Strait Islander parent and one non-Aboriginal and Torres Strait Islander parent, the child or young person may be placed with the person with whom the best interests of the child or young person will be served having regard to the principles of this Act.

(5) If a child or young person to whom subsection (4) applies:

(a) is placed with a person who is not within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her Aboriginal or Torres Strait Islander family, community and culture, or

(b) is placed with a person who is within an Aboriginal or Torres Strait Islander family or community, arrangements must be made to ensure that the child or young person has the opportunity for continuing contact with his or her non-Aboriginal and Torres Strait Islander family, community and culture.

(6) Placement of child or young person in care of person who is not an Aboriginal or Torres Strait Islander

The following principles are to determine the choice of a carer if an Aboriginal or Torres Strait Islander child or young person is placed with a carer who is not an Aboriginal or Torres Strait Islander:

(a) Subject to the best interests of the child or young person, the fundamental objective is to be the reunion of the child or young person with his or her family or Aboriginal or Torres Strait Islander community.

(b) Continuing contact must be ensured between the child or young person and his or her Aboriginal or Torres Strait Islander family, community and culture.

These principles are subject to subsection (2).

[15] Because [K] has one parent who is Aboriginal and one parent who is non-Aboriginal, s 13(4) and (5) apply. The Minister submitted that s 13(4) did not apply to out-of-home care, but only to allocation of parental responsibility within the natural or extended family. We are satisfied that s 13(4) and (5) do apply to out-of-home care. They are sub-sections of s 13, which deals with out-of- home care. There is nothing in s 13(4) or (5) which suggests that those sub-sections are intended to relate to a different situation, that is allocation of parental responsibility within the natural or extended family.

[16] The combined effect of s 13 is that [K] should be placed with the person with whom her best interests will be served having regard to the principles in the C & YP Act. Those principles include the principles set out in s 13(1) and (2) as well as the principles set out in sections 7, 8, 9, 10, 11 and 12 of the C & YP Act. In the context of this case, particular attention should be given to s 9(a), (e) and (f) which relate to the paramountcy of the child's welfare and well-being, the preservation of culture and identity and the maintenance of relationships with her natural family, including siblings. These provisions are set out below:

(a) in all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration.

(e) If a child or young person is temporarily or permanently deprived of his or her family environment, or cannot be allowed to remain in that environment in his or her own best interests, the child or young person is entitled to special protection and assistance from the State, and his or her name, identity, language, cultural and religious ties should, as far as possible, be preserved.

(f) If a child or young person is placed in out-of-home care, the child or young person is entitled to maintain close relationships with people significant to the child or young person, including parents, siblings, extended family, peers, family friends and community, unless it is contrary to his or her best interests.
[17] In addition s 13(6) is relevant if [K] is to continue in her placement with [Mrs A] If that is the outcome of this case, then subject to [K]'s expressed wishes and whether she continues to identify as an Aboriginal, continuing contact must be ensured between her and her Aboriginal family, community and culture.

[18]…

Issues

[19] The Tribunal must determine whether or not the Minister has made the correct and preferable decision in terminating [Mrs A]'s custody of [K]: s 63 Administrative Decisions Tribunal Act 1997 (ADT Act). The overriding issue for the Tribunal is whether the safety, welfare and well-being of [K] is better served by remaining with [Mrs A] or by being moved to Aboriginal carers where two of her siblings are currently placed. In determining that issue, the factors outlined above are relevant.

52 We accept Mr Colborne’s submission that paragraph [19] of the Tribunal’s decision should not be read in isolation. It is clear, when placed in context, that the Tribunal was aware of the relevant provisions of the C &YP Act applying to the placement of Aboriginal children. The original decision expressly addressed the application of those principles to the facts of this case at [89], [91], [93], [94] and [95].

53 We further understand Mr Anderson to submit that the Tribunal erred in misinterpreting s 13(6)(a) of the C &YP Act. It is asserted that the relevant provisions of the C& YP Act should be construed thus: that where an Aboriginal child is placed with a non-Aboriginal carer, the “fundamental objective” is the reunion of the child with her family or the Aboriginal community.

54 The opening words of s 13(6), however, make it clear that the “fundamental objective” of reunion is “subject to the best interests of the child”. The Tribunal observed [at 91] that “it appears that DOCS officers took the view that it would be contrary to law and Departmental practice for [K] to remain with [Mrs A] if a suitable Aboriginal placement could be found for all three children. In our view, this is not an accurate representation of the legal position.” The Tribunal went on to correctly state, “the objective of reunion is subject to the best interests of the child”.

55 We find no error of law either in the Tribunal’s interpretation of the meaning of s 13 of the C&YP Act or how it applied that provision to the facts before it.

Ground 3: Error in exercising powers as to placement

56 It is submitted for the Minister that the Tribunal erred in proceeding to exercise powers relating to placement, which reside in the Minister, the Children’s Court and the Supreme Court. The Tribunal has limited review powers as conferred by the 1987 Act.

57 This ground of appeal is in essence a reformulation of Ground 1. The Tribunal did not seek to determine the placement of K, it simply found that the decision to terminate was not the correct and preferable decision in the circumstances of the case. If that decision had the collateral consequence of ensuring that the child remained where previously placed (until any further decision is made and executed) it was a necessary and unavoidable consequence. For these and the reasons given in relation to Ground 1 we find no error of law.

Ground 4: Error in failing to remit

58 The appellant contends that where the Tribunal forms the view that there was an error in a decision by the Minister to terminate custody, the proper course of action would be to remit that decision for reconsideration under s 63(3)(d) of the Tribunal Act. We understand Mr Anderson to argue that by setting aside the Minister’s decision the Tribunal effectively made a decision to place K with Mrs A and as such the Tribunal exceeded its powers.

59 Sub-section 63(3) of the Tribunal Act provides that when determining an application for review the Tribunal may affirm, vary, set aside or set aside and remit the decision under review. Sub-section 65(1) provides that at any time in the proceedings the Tribunal may remit the decision to the administrator for reconsideration.

60 It is clear that the Tribunal could have remitted the decision to the Minister. Equally it was open to the Tribunal to set aside the decision, as it did. There is simply nothing on the face of s 63(3), read together with the relevant provision of the 1987 Act, to support the proposition advanced for the appellant that the Tribunal has no power to set a reviewable decision aside where the decision was made under s 91(1)(e) of the 1987 Act.

61 This view finds support in the “tentative view” expressed by Hodgson JA in YG & GG v Minister for Community Services [2002] NSWCA 247. The Court of Appeal considered an appeal from a decision of the Appeal Panel of the Tribunal. This appeal concerned a review of a decision of the Minister to terminate custody of two wards. It is relevant that custody had been terminated and a decision made (and implemented) to place the wards who were the subject of the decision under review, with alternative carers. Hodgson JA [at 44] said:

“ Although, as submitted by Mr. Anderson for the Department, the C&P Act [1987 Act] and the ADT Act [Tribunal Act] do not give the reviewing body power to make a placement of wards, but only give it power to review a decision of the Minister to terminate custody, the ADT Act does require the reviewing body to decide "what the correct and preferable decision is" and does give the reviewing body power to make a decision in substitution for the reviewable decision. My tentative view is that, under those provisions, if the reviewing body were of the view that, rather than custody being terminated, custody should be continued and there should be steps taken towards restoring the ward to the person whose custody is maintained, a decision to that effect would be within power.”

62 We find that the Tribunal did not err by ordering that the Minister’s decision be set aside.

Ground 5: Failure to consider legislative provisions to reunite

63 This Ground is addressed at [50] and [51] of these reasons.

Ground 6: Failure to properly consider issues

64 The appellant asserts that the Tribunal failed to give proper or sufficient consideration to three matters. First, K’s attachment with Mrs A, which it is asserted, would facilitate a future attachment with the L’s. Second, Mrs A’s purported lack of insight into what it means for K to be Aboriginal. Third, the recommendation of the guardian ad litem that K be placed with Mr and Mrs L.

65 The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision, was discussed by Mason J in the leading judgement in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24. His Honour said at 39:

“The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider”.

66 As observed by Dean J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 a decision-maker will not fall into error merely because she or he failed to have regard to all matters the affected party has included in an “exhaustive list of all the matters the decision matter might conceivably regard as relevant.”

67 A decision-maker may also err where relevant considerations are taken into account but not given appropriate weight. Mason J in Minister for Aboriginal Affairs v Peko-Wallsend said at 40:

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ...I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.”

68 His Honour referred to the decision of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, ruling that such an error would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.

69 We deal in turn with the three matters it is alleged the Tribunal failed to consider properly:

K’s Attachment with Mrs A

70 The appellant complains that the Tribunal failed to take account of the purported fact that K is well placed to form a bond in the future with Mr and Mrs L given her secure attachment with Mrs A. This was the finding of the Minority. (See [105] of the original decision).

71 We believe that this matter cannot be elevated to the status of a relevant consideration that the Tribunal was bound to take into account in the exercise of its discretion. It was merely a finding open to the Tribunal on the evidence before it. In any event, we are not persuaded that the failure of the Tribunal to expressly address this factor would have had materially affected the decision.

Mrs A’s lack of insight into what it means for K to be Aboriginal

72 It is asserted for the appellant that the Tribunal erred by failing to address how Mrs A would overcome what Mr Anderson describes as Mrs A’s “entrenched” attitudes about K’s Aboriginality.

73 The Tribunal considered in some detail the evidence on this point and observed that much of the evidence was in conflict. The Tribunal found that a number of comments made by Mrs A about K were “either misguided or ignorant and if maintained in the long term will be problematic for K developing a strong Aboriginal identity”. However it did not unreservedly accept the Department’s negative characterisation of Ms A’s attitudes towards K’s Aboriginality(see [72] to [79]), concluding at [96] :

“We believe that [Mrs A’s] comments about [K's] Aboriginality can be attributed, in part, to her fear that [K] would be removed from her care. This view is supported by the fact that the staff at the pre-school stated that [Mrs A] has been supportive of developing [K’s]'s Aboriginal identity. In our view, once [K] is securely in [Mrs A's] care for the long term, there will be no need for her to question [K’s]'s Aboriginality with the Department. This should clear the way for [Mrs A] to embrace and nurture [K's] cultural identity to the best of her ability. ”

74 The Tribunal’s conclusion that K’s interests would be best served by remaining with Mrs A, despite her attitudes towards K’s Aboriginality, was a finding open to the Tribunal on the evidence before it. It is apparent that this is a conclusion on which minds might differ. However, that does not mean that the finding can be said to be “manifestly unreasonable” in the Wednesbury sense.

75 The Minister’s complaint in respect of this part of the decision is in truth an attack on the merits of the decision and, in the absence of the identification of any legal error, we decline to consider this submission.

Guardian Ad Litem

76 It is submitted that the Tribunal erred by failing to have proper regard to the views of the Guardian ad litem.

77 The decision makes clear that the Tribunal was aware of the report of the Guardian ad litem and reference to that report is made at [69]. The original decision considered in some detail the expert evidence. It gave detailed and comprehensive reasons for preferring the evidence of some experts to that of others. The Guardian supported the experts whose evidence was not preferred. Her submissions were substantially reliant upon and built largely around that expert evidence. The inference that is drawn is that the views of the Guardian were also not preferred because the expert evidence failed to persuade the Tribunal on the balance of probabilities.

78 We find no error on the part of the Tribunal in failing to expressly state why it rejected the submissions of the Guardian.

Ground 7: Failure to give proper reasons

79 It is submitted that the Tribunal is required as a matter of law to set out its reasons for failing to follow the recommendation of the Guardian ad litem that Mrs A’s custody of K be terminated.

80 The obligation to provide reasons was considered by the Court of Appeal in Absolen v NSW TAFE [1999] NSWCA 311 at [66-67]:

Although there is no general rule of the common law, or principle or natural justice, that requires reasons to be given for administrative decisions (see, for example, Public Service Board of New South Wales v. Osmond (1985-1986) 159 CLR 656, at 662 per Gibbs CJ), it seems to be accepted that, at least in relation to administrative tribunals which, by the statutes creating them, are required to give reasons for their decisions, it is appropriate to apply the rules - and, in particular, the rules relating to the giving of reasons - which are ordinarily to be regarded as an incident of the judicial process. However, as Mahoney JA (as he then was) said in Soulemezis v. Dudley (Holdings) Pty. Limited (1987) 10 NSWLR 247, 273:

“There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adopt the formula used in a different part of the law: see R. v. Associated Northern Collieries (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.

To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the judicial process."

It should, however, be noted that an error of law in giving no, or in giving inadequate, reasons for judgment differs from an error of law in coming to a verdict or decision, for the latter directly vitiates the verdict or decision, either, in the sense that the verdict or decision thereby is legally wrong and reversible, or, in the sense that the verdict or decision is based on an error in the legal process so that a new trial is attracted. A failure to give any, or any adequate, reasons does not, without more, establish that the verdict or decision involved some error although there may be cases - of which it is submitted here that the present is one - which warrant the inference that the relevant Tribunal has failed in some respect to exercise its powers according to law (see, for example, Repatriation Commission v. O'Brien (1984-1985) 155 CLR 422, 445-446 per Brennan J (as he then was)).

81 As observed by the Appeal Panel in Woodside & anor -v- Director General, Department of Community Services (CSD) [2000] NSWADTAP 8 [at 67] “the courts have not insisted that there be a didactic examination of every element of the cases and evidence put on both sides”. The Panel referred to Mahony JA’s observation in Soulemezis at 271 that “the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.”

82 It is not contended that the Tribunal failed to give reasons or gave inadequate reasons for its decision as a whole. Rather, the decision is attacked on the ground that the Tribunal failed to provide any or proper reasons for not following the recommendations of the Guardian ad litem. As noted the Guardian recommended that the decision of the Minister be affirmed. Detailed reasons were given by the Tribunal explaining why in its view the decision to terminate custody was not the correct and preferable decision. The reasons advanced by the Guardian for her recommendation in essence corresponded to the reasons given by the Minister, and supported by the appellant’s experts. The Tribunal’s obligation to provide reasons does not in our view extend to providing detailed reasons outlining why the recommendation of the Guardian, in particular was not followed.

83 Accordingly we find no error of law to be established.

Second & Third Respondents

84 At the beginning of this appeal hearing, Ms K Lindsey, solicitor, sought leave to represent Mrs B, the natural mother of K, and Mr L one of the foster carers of K’s siblings L and P. Neither of these persons sought to appear at the original proceedings.

85 Persons can be made parties to proceedings before the Tribunal pursuant to s 67 of the Tribunal Act. Section 67(1) and (2) were not applicable and the Tribunal granted leave for Mrs B and Mr L to be parties to these proceedings pursuant to s 67(4) as they are persons likely to be affected by the original decision.

86 At the conclusion of the hearing all parties were allowed time to file written submissions.

87 Ms Lindsey filed submissions in support of the grounds of appeal filed by the Appellant Minister, which we have considered and taken into account.

88 Ms Lindsey also included three new grounds of appeal:

1. The Tribunal’s majority failed to properly recognise the relevance of K’s Aboriginality in broader terms and that decision is in breach of Article 30 of the United Nations Convention on the Rights of the Child.

2. The Tribunal’s majority erred in failing to acknowledge the importance of K’s attachment to her sibling group and identity.

3. The majority of the Tribunal members erred in the failure to take into account that the agreement between the Department and A was for a short to medium term placement of K only.

89 None of these grounds was raised by the appellant Minister. Ground No 1 was not raised by the Minister or Ms Lindsey during the hearing of the appeal or at the hearing of the original decision. Grounds 2 and 3 were discussed at the hearing of the appeal in the context of the other grounds that the Appellant Minister had filed and were taken into account by the Tribunal to that extent and in that context

90 Section 113(1) of Tribunal Act states:

A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an appeal panel.

91 Section 113(3) states:

(a) An appeal must be made within 28 days after the Tribunal furnishes the party with written reasons.

(b) Within such further time as the Appeal Panel may allow.

92 Ms Lindsey’s clients were not a party to the proceedings in which an appealable decision was made. Only such a party may appeal and only a party who can appeal can raise grounds of appeal. The new grounds have been filed approximately four months out of time. No application for extension of time has been made and no ground for such extension has been put forward.

93 The Tribunal declines to consider the additional grounds.

Conclusion

94 As no error of law has been established there is no basis for considering the appellant’s further application that leave be granted to extend the appeal to a review of the merits.

Decision

95 The decision under appeal is affirmed.