Minister for Disability Services v People with Disability Australia Inc. (CSD)

[2010] NSWADTAP 44

Set aside by Appeal:

Appeal Panel - Internal

CITATION:	Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44
PARTIES:	APPELLANT Minister for Disability Services RESPONDENT People with Disability Australia Inc.
FILE NUMBER:	099061
HEARING DATES:	21 April 2010
SUBMISSIONS CLOSED:	21 April 2010
DATE OF DECISION:	18 June 2010
BEFORE:	O'Connor K - DCJ (President); Leal S - Judicial Member; Moss J - Non Judical Member
CATCHWORDS:	JURISDICTION – Whether reviewable decision identified by review applicant – ‘Decision to continue to provide a service’ – day-to-day operation of service does not of itself give rise to a reviewable decision – STANDING – ‘genuine concern’ – interpretation – denial of standing if ‘unjustifiably interfering in a matter’ – interpretation – Appeal allowed as to jurisdiction – Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2, s 28(1)(c), s 29(1), s 29(4) - Disability Services Act 1993, s 20 - Community Services (Complaints, Reviews and Monitoring) Regulation 2004, cl 5(1)(b)
DECISION UNDER APPEAL:	People with Disability Australia Inc. v Minister for Disability Services [2009] NSWADT 259
FILE NUMBER UNDER APPEAL:	094003
DATE OF DECISION UNDER APPEAL:	10/02/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2 Community Services (Complaints, Reviews and Monitoring) Regulation 2004 Disability Services Act 1993 Guardianship Act 1987 Privacy and Personal Information Protection Act 1998
CASES CITED:	Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167 Australian Conservation Foundation v Environment Protection Appeal Board and anor [1983] 1 VR 385 Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51 Commissioner of Taxation v Linter Textiles Australia Ltd (In Liquidation) [2005] HCA 20; (2005) 220 CLR 592 Minister for Disability Services -v- People with Disabilities (NSW) Inc (CSD) [2001] NSWADTAP 7 Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43 New South Wales Department of Primary Industries v Musumeci [2009] NSWADTAP 7 Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195, (2007) 70 NSWLR 411 Onus v Alcoa (1981) 149 CLR 27 People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (unreported, 12 February 1998; ‘Dunrossil’) Community Services Appeals Tribunal People with Disability Australia Inc v Minister for Disability Services [2009] NSWADT 259 Phelps v Western Mining Corporation (1980) 20 ALR 183 Project Blue Sky Inc v Australian Broadcasting Authority (1994) 194 CLR 355 Re McBain; Ex p Catholic Bishops Conference (2002) 209 CLR 372
REPRESENTATION:	APPELLANT P Singleton with R Graycar, counsel / Crown Solicitor's Office RESPONDENT R Francois, counsel / Gilbert and Tobin
ORDERS:	1. Appeal allowed in part. 2. Application for review dismissed for want of jurisdiction.

1 People with Disability Australia Inc (PWD) applied to the Community Services Division of the Tribunal on 10 February 2009 for review of a reviewable decision said to have been made by the Minister for Disability Services.

2 The Minister denied that he had made any reviewable decision. The Tribunal dismissed the Minister’s objection to jurisdiction: ex tempore reasons, unpublished (10 August 2009).

3 The Tribunal (differently constituted) in a separate decision also dismissed the Minister’s further objection that PWD did not satisfy the requirements for standing to bring such an application. See People with Disability Australia Inc v Minister for Disability Services [2009] NSWADT 259 (2 October 2009).

4 The Minister now appeals against both rulings. The appeal is an interlocutory one, and as such requires leave to proceed: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113(2A). The appeal proper may be made on a question of law, and, with the leave of the Appeal Panel, may be extended to the merits: ADT Act, ss 112, 113.

5 The issues raised are significant. The leave application and the substantive appeal have been heard together. Leave is granted, and the appeal, as emerges below, is allowed.

(1) The Objection to Jurisdiction

The Review Application

6 PWD’s review application described the decision to be reviewed as follows:

The conduct of the [Minister] in continuing to provide the following designated services within the meaning of the Disability Services Act 1983 (the ‘Act’):

(a) the Grosvenor Centre

(b) the Lachlan Centre

(c) the Peat Island Centre

(together ‘the Services’)

where the provision of the Services does not conform with the objects of the Act and the principles and application of the principles set out in Schedule 1 of the Act.

7 Next to the headings in the application form for ‘date of decision’ and ‘date you were notified’ the word ‘ongoing’ appears.

8 The application attached a chain of correspondence between PWD and the Minister (letter from solicitors PWD dated 5 June 2008, further letter dated 2 July 2008, reply from Minister dated 3 July 2008, letter from solicitors PWD dated 30 July 2008, further letter dated 16 October 2008, reply from Minister dated 5 November 2008, and letter from solicitors PWD dated 14 November 2008.

9 PWD has since limited its application to the second and third services named, the Lachlan Centre and the Peat Island Centre. Each provides long-term residential care for persons with disabilities.

Asserted Source of Jurisdiction

10 The source of jurisdiction is said to be cl 5(1)(b) of the Community Services (Complaints, Reviews and Monitoring) Regulation 2004 (CRM Reg), enacted pursuant to s 28(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2 (CRM Act), read in conjunction with s 20 of the Disability Services Act 1993 (the DS Act). Clause 5(1)(b) provides relevantly:

5 Decisions subject to review by Tribunal

(1) Decisions of the following kind are prescribed classes of decisions for the purposes of section 28 (1) (c) of the Act [the CRM Act]: …

(b) a decision made by the Minister or the Director-General to provide, or to continue to provide, a designated service within the meaning of the Disability Services Act 1993 , where the provision of the service in accordance with the decision does not conform with the objects of that Act or the principles or applications of principles set out in Schedule 1 to that Act, …

11 Under the DS Act, the Minister has the following duty:

6 Minister to ensure that designated services are provided and funded in conformity with the Act

(1) It is the duty of the Minister in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1.

12 It is accepted that the Lachlan Centre and the Peat Island Centre are ‘designated services’ within the meaning of the above provision. The purpose of PWD’s application is to have the Tribunal assess whether the two centres are being managed in conformity with the objects and principles referred to in the above provisions.

13 The objects are found in s 3 of the DS Act, and the national principles are found in Schedule 1. We will not set them out in detail here. For example, s 3 gives as one of the Act’s objects:

(f) to ensure that designated services for persons with disabilities are developed and reviewed on a periodic basis through the use of forward plans.

14 Schedule 1 has two clauses, clause 1 setting out the human rights principles and clause 2 setting out a statement of the standards to be applied in their implementation.

15 There are 9 principles ((a) to (i)). For example, principle (g) is as follows:

(g) persons with disabilities receiving services have the same right as other members of Australian society to receive those services in a manner which results in the least restriction of their rights and opportunities.

16 There are 16 implementation standards ((a) to (p)). The first three and the last two are set out by way of illustration:

Services and programs of services must apply the principles set out in clause 1. In particular, they must be designed and administered so as to achieve the following:

(a) to have as their focus the achievement of positive outcomes for persons with disabilities, such as increased independence, employment opportunities and integration into the community,

(b) to contribute to ensuring that the conditions of the everyday life of persons with disabilities are the same as, or as close as possible to, norms and patterns which are valued in the general community,

(c) to form part of local co-ordinated service systems and other services generally available to members of the community, wherever possible, …

(o) to provide persons with disabilities with, and encourage them to make use of, avenues for participating in the planning and operation of services and programs which they receive and to provide opportunities for consultation in relation to the development of major policy and program changes,

(p) to respect the rights of persons with disabilities to privacy and confidentiality.

Tribunal’s Reasons

17 The Minister submitted that, in relation to either centre, there had been no ‘decision to continue to provide a service’. Therefore clause 5(1)(b) was not engaged by the review application. The Minister acknowledged, of course, that there had been a decision many decades ago to establish these services. The point, as he saw it, was that there has been no recent specific decision ‘to continue to provide’ these services.

18 As they are not otherwise readily available, we will set out the principal text of the Tribunal’s reasons. The Tribunal commenced by referring to the statutory provisions founding jurisdiction, in particular cl 5(1)(b) of the CRM Reg (set out above). It continued [we have added paragraph numbers for ease of further reference]:

1. The applicants maintain that the decision of the Minister to continue to provide the services at the Lachlan Centre and Peat Island is an ongoing decision that has been made every day at least from the time the amendments to the Regulation commenced on 1 September 2004 to the 4 June 2008, which was the day before the applicant wrote to the Minister asking for reasons for the decision. It is also argued by the applicant that the Minister has continued to make that decision after 4 June 2008 to this day as those centres continue to operate and the services continue to be provided. However, for the purposes of the Administrative Decisions Tribunal Act and given the framework of that Act, I accept Mr Singleton's submission that a decision must be identified as having been made at a certain point of time even if the decision is ongoing.
2. As a matter of convenience, the point of time at which the decision in this case was made can be deemed to be 4 June 2008, because on 5 June 2008 the applicants wrote to the Minister asking for her reasons pursuant to s 49 of the Administrative Decisions Tribunal Act for her decision to continue to provide designated services in a manner which does not conform to the requirements of the Disability Services Act, namely the continued operation of the centres, and an internal review of the decision to continue to operate the centres.

3. The applicants highlighted that the decision was a decision under s 6(1)(g) of the Administrative Decisions Tribunal Act. That section is a general provision which provides that a decision in the Administrative Decisions Tribunal Act includes any of the following, "g) Doing or refusing to do any other act or thing". I accept the applicant's submission that continuing to provide a designated service is the doing of an act, and that for convenience it can be said that for the purposes of this application that decision was made on 4 June 2008.

4. It follows that my decision is that the Tribunal has jurisdiction to review that decision and I will deal briefly with Mr Singleton's arguments to the contrary. Firstly, he says that both the Disability Services Act and the Community Services (Complaints Reviews and Monitoring) Act were passed in 1993 and that the meaning of decision in those Acts cannot be construed by referring to the Administrative Decisions Tribunal Act which was passed in 1997.

5. Ms Francois has provided the relevant amending provisions and also emphasised that the Regulation on which she was relying was commenced in 2004, well after the Administrative Decisions Tribunal Act came into effect. The fact is that when the Administrative Decisions Tribunal Act was passed in 1998 consequential legislation was also enacted to amend the Disability Services Act and the Community Services (Complaints Reviews and Monitoring) Act.

6. The historical notes handed up by Ms Francois confirm that the definition of decision in s 6 of the Administrative Decisions Tribunal Act apply [sic] to decisions to which the Administrative Decisions Tribunal Act relates. One of those decisions is the decision identified in the Regulation to which I have referred. So there can be no argument that s 6(1)(g) applies to the current application.

7. Mr Singleton also argued that the applicant had not identified with sufficient particularity the decision under review. In his view it was not sufficient to say that a decision had been made to continue to provide a service when, in fact, the decision at any particular point in time may have been the decision to ultimately close the service or for the service to be provided to those recipients in a different form.

8. I reject Mr Singleton's reasons for saying that that is a basis on which the decision to continue to provide the service is not a reviewable decision.

9. Even if there are plans in relation to Peat Island and the Lachlan Centre which the Minister has decided upon, that does not change the fact that the Minister has also made a decision to continue to provide a designated service. Any plans about the future operation of those services can be taken into account by the Tribunal if it reviews the decision to continue to provide the service.

10. In my view the words in cl 5 of the Community Services (Complaints Reviews and Monitoring) Regulation envisages that a decision to continue to provide a service without more will constitute a reviewable decision under the Administrative Decisions Tribunal Act.

11. Mr Singleton also argues that because the applicants have not identified the remedy which is sought that fact highlights the inadequacy of the identification of the decision. I cannot agree with that proposition.

12. Again, if the Tribunal comes to the point of reviewing the decision to continue to provide the service, any plans by the Minister or any relief sought by the applicant can be taken into account in determining whether the Minister has made the correct and preferable decision in continuing to operate that service. These are matters which relate to the circumstances in which the decision was made and are not to be characterised as decisions which prevent the fundamental decision, that is continuing to provide the service from being a reviewable decision.

19 We understand the plans mentioned at para [9] are those contained in the document, Stronger Together: A new direction for disability services 2006-2016, issued by the Minister for Disability Services. The document referred to the closure of large residential centres over time. It promised a two year consultation process with residents, their families and broader stakeholder groups who have a legitimate interest in the changes. At 3.2 under the heading ‘Quality and value for money’, it said:

Close two of our large residential centres, replacing them with specialist support services. … Invest $7 million in the redevelopment of the Lachlan Centre, located at Ryde, into small village accommodation to provide specialist state-wide services for people with challenging behaviours … Develop a retirement village, specialising in aged care, for 100 older people with a disability, near Peat Island and a further 20 beds in the community that will allow the closure of the existing facilities at Peat Island.

Grounds of Appeal

20 The grounds of appeal challenge the Tribunal’s primary finding that a reviewable decision has been identified, and raise two more specific issues – whether the Tribunal erred in holding that PWD did not need to identify the terms of the decision of which it sought review; and whether the Tribunal erred by deeming the reviewable decision as having been made on 4 June 2008.

Consideration

21 PWD’s application is clear in not seeking to put in issue the original decision to establish the centres. It squarely seeks to raise the question of whether the centres are administered today in a way that complies with the objects of the DS Act and the national principles.

22 The Minister sees this as a case with the same deficiency as that identified by the Appeal Panel in an earlier case brought by PWD.

23 In Minister for Disability Services -v- People with Disabilities (NSW) Inc (CSD) [2001] NSWADTAP 7, the Appeal Panel upheld the Minister’s appeal, and dismissed an application by PWD which on that occasion relied on s 10 of the DS Act as the source of jurisdiction. Section 10 makes reviewable by the Tribunal a decision in respect of applications for approval of financial assistance. The Appeal Panel said:

57 We are satisfied that there was no evidence before the Tribunal of any s 10 decision having been made by the Minister, in any terms, at any time. That situation was, we consider, tacitly acknowledged by the Tribunal in its observations at para [39] of its reasons, and by its directions. It was not open to the Tribunal on the basis of the evidence before it to make its finding in determination 2, that there was a s 10 decision at some unspecified date, and then give direction 1 seeking, in effect, to obtain the evidence that might reveal when and in what terms it was made.

58 We agree with the submission for the Minister that the Tribunal has erred in law in that there was no evidence upon which it could base such a conclusion.

59 The primary responsibility for identifying a reviewable decision founding the jurisdiction of the Tribunal lies with the applicant for review. The task of the Tribunal, as we perceive it, on receipt of an application for review, is simply to satisfy itself that that has occurred. As we read the scheme establishing the Tribunal’s jurisdiction to review reviewable decisions, the administrative decision placed in issue by an application should be capable of clear identification in the application for review at the time that it is filed. The Tribunal should not lend its authority to an application which is speculative as to the existence and content of the reviewable decision sought to be placed in issue.

60 A third party public interest applicant will, we recognise, sometimes have difficulty in ascertaining whether a reviewable decision has been made. If the administrator can not identify the decision, and the applicant considers that the administrator is being unco-operative in that regard, courses such as Freedom of Information Act applications may have to be pursued. It is not satisfactory that an application fail to specify with reasonable precision the decision in issue, then engage the Tribunal’s processes with a view to those processes curing the omission. This is different from a situation where the applicant has misidentified the decision of which review is sought but, on the error being realised, the relevant reviewable decision can be identified. In those circumstances it is appropriate for the Tribunal to proceed without regard to technicalities and to act in a way that ensures that a party has the fullest opportunity to be heard (Tribunal Act, s 73(3) and (4)(c)).

24 In its submissions on this occasion PWD accepts the authority of the above decision on the facts with which it dealt, but submits that the factual background here is different in that there is a decision in operation, and that decision is continued, in effect, every day.

25 It is instructive, we think, to trace the way in which PWD sought to obtain from the Minister a decision which, in its view, was of a kind that engaged cl 5(1)(b).

26 In its opening letter, dated 5 June 2008, PWD called on the Minister to provide reasons under s 49 of the ADT Act ‘for your decision to continue to provide designated services in a manner which does not conform to the requirements of the DS Act, namely the continued operation of the Centre’. It went on to request ‘an internal review of the decision to continue to operate the Centre’. The letter referred to the statutory duty imposed by s 6 of the DS Act, and the provisions conferring jurisdiction on this Tribunal.

27 The obligation to which the letter refers, the obligation to provide reasons under s 49, forms part of the administrative decision-making framework of the ADT Act and applies when the agency or Minister is engaged in making a ‘reviewable decision’.

28 The obligation in s 49 is introduced by s 48 (Notice of decision and review rights to be given by administrators). Sub-section (1) of s 48 provides:

(1) An administrator who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following:

(a) the decision, and

(b) the right of the person to have the decision reviewed.

29 There are exceptions and qualifications to this obligation allowed for by sub-section (2). None apply to this case.

30 Section 49 (Duty of administrator to give reasons on request) provides at (1):

(1) If an administrator makes a reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision.

31 The next sub-section, (2), gives the administrator 28 days within which to provide reasons for the decision, and sub-section (3) requires the administrator to set out various matters in the reasons (in summary, material findings, the applicable law and the administrator’s reasoning process).

32 In our view, it is difficult to see how provisions of this kind are meant to work when the agency (or Minister) does not believe that it has made any ‘decision’.

33 The Tribunal accepted PWD’s submission that the extended meanings given to ‘decision’ by s 6 of the ADT Act assisted, and supported the way the decision for review is described in the review application (see its reasons at [3]). The last of the extended meanings is: ‘(g) doing or refusing to do any other act or thing’.

34 In our view caution needs to be observed in bringing to the process of identifying a reviewable decision the extended meanings found in s 6 of the ADT Act.

35 The first step in identifying what decisions are made reviewable requires construction of the terms of the provision that is the asserted source of jurisdiction, here cl 5(1)(b). Typically the legislation in which source provisions appear will identify a number of administrative decisions that are made reviewable. This is the case in the present legislative scheme. The source provision will need to be construed having regard to the scheme as a whole, in line with the reasoning in Project Blue Sky Inc v Australian Broadcasting Authority (1994) 194 CLR 355.

36 A provision conferring a reviewable decisions jurisdiction on the Tribunal will normally speak of a ‘decision’ to take action of some specific type (for example, ‘grant’ (say, a licence), ‘refuse’, ‘impose a condition’, ‘suspend’, ‘cancel’, ‘revoke’). Those further words will, as we see it, ordinarily confine and define the scope of the reviewable decision. It is commonplace in the conferring statutes for there to be quite precise specification of what classes of decision are subjected to review and those which are not.

37 The Tribunal has dealt with statutory schemes where some categories of decision are squarely stated to be reviewable decisions (for example, decisions to revoke a licence), while the statute has remained silent as to the position in relation to other statutory decisions in the same general decision-making chain (such as, for example, a decision to suspend). The Tribunal has ruled in those cases that the decisions about which there is silence are not picked up and made reviewable. See, for example, Minister for Fisheries v Oliver & Thomson; Minister for Fisheries v Rouse; Minister for Fisheries v Picton [2002] NSWADTAP 43; New South Wales Department of Primary Industries v Musumeci [2009] NSWADTAP 7; Commissioner for Fair Trading v Cruz [2009] NSWADTAP 51.

38 The same approach we think should be applied to this legislative scheme. There is a high degree of specification of the decisions that are made reviewable.

39 The ADT Act’s scheme as it applies to reviewable decisions contemplates an orderly arrangement under which there is a primary internal decision by the administrator, followed, if the interested person is dissatisfied, by an internal review decision, and if the interested person is still dissatisfied that person may apply for external review by the Tribunal.

40 If the administrator refuses to make a decision at the first stage (as to which see s 6(5)), there is a deemed refusal, and similarly, where there is a request for internal review and there is no decision within the required time, the internal review is deemed to be finalised (s 53(9)). In this situation, an application for review might reach the Tribunal without there being any decision and any reasons for decision. But this is an exceptional set of circumstances.

41 As the proceedings presently stand, there is no material before the Tribunal containing any considered decision of the Minister. Were there a decision, it would, we expect, be quite detailed and voluminous. Schedule 1 deals with many subjects. Each of these subjects, as we conceive it, would have to be addressed in respect of the operation of each of the centres.

42 In our view a ‘decision to provide, or continue to provide’ a designated service can not be reinterpreted to embrace as a ‘decision’ the doing of the ‘act’ of conducting a service, by picking up the extended meaning of ‘decision’ at s 6(1)(g).

43 The reality of the present situation, in our opinion, is that a decision made a long time ago to provide each of the services remains in force. There has been no fresh decision in recent times to continue the services. In our view it is not correct to characterise a decision to provide a service as giving rise, without more, to a decision to continue to provide the service. The legislation, as we see it, is seeking to draw a distinction between two types of official decision in a continuing administrative environment.

44 Clearly the government statements in the Stronger Together document do foreshadow the possibility that the government will make further decisions as to the continued operation of the services under notice at some time in the near future.

45 Notably the application for review did not describe the matter placed in issue as a ‘decision’ but called it ‘conduct’. The application was prepared with legal assistance, and the choice of the word ‘conduct’ was, we expect, intentional, reflecting the difficulty PWD faced in identifying a ‘decision’ of a conventional kind.

46 The Tribunal has only one express ‘conduct’ review function (Privacy and Personal Information Protection Act 1998, s 55). It forms part of the review jurisdiction of the Tribunal, as distinct from the ‘original’ jurisdiction (ADT Act, s 8(2)).

47 Conclusion: In our view there is, as yet, no ‘decision’ to which the application relates; and the review application is premature. Once there is a decision, the processes contemplated by the ADT Act would then apply, i.e. a considered primary decision, a considered internal review decision and, if initiated, a process of external review by the Tribunal.

48 If we are wrong, and we do have jurisdiction to entertain the application, our response would have been, we think, to order remittal to the Minister for reconsideration. It is not, in our view, desirable that an external review tribunal be placed in a position, as this application for review would have necessitated, of it being the first substantive decision-maker in place of the Minister. The objects of the ADT Act (s 3) include the following:

(f) to foster an atmosphere in which administrative review is viewed positively as a means of enhancing the delivery of services and programs,

(g) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

49 These objects are not likely to be advanced by having the first inquiry into issues of the magnitude raised by this application in the forum of an external tribunal.

50 Postscript: We acknowledge the concern raised by PWD that there is no obvious mechanism in this legislative scheme which can bring about the making of a reviewable decision of the kind sought. In most of the review jurisdictions with which the Tribunal deals the entire procedure from application through to final determination is clear. In occupational licensing cases and Freedom of Information cases, for example, the starting point is, ordinarily, a formal application to the Minister addressing prescribed particulars and, often, using a prescribed form. (Of course, in some instances the starting point is not an application but notice of an adverse decision by the administrator such as a revocation or suspension.)

51 There was some discussion at the hearing of what action might ‘trigger’ the making of a decision of the kind to which cl 5(1)(b) refers. PWD spoke of its frustration in trying to trigger a decision, and getting no response from the Minister.

52 Counsel for the Minister expressed the opinion that as a matter of law the process for making a reviewable decision would be enlivened by an interested person making an application for a decision of the kind to which cl 5(1)(b) refers. It would follow, as we understand the submission, that the same method could be used to obtain decisions on other matters that are made reviewable by other provisions of the community services and disability legislation.

(2) Standing

53 In case we are wrong as to the absence of jurisdiction, we will deal with the further grounds of appeal.

54 Under the ADT Act, ‘interested persons’ are given the right to request reasons for reviewable decisions, and to make applications for internal and external review. An ‘interested person’ is defined as a ‘person who is entitled under an enactment to make an application to the Tribunal for … review of a reviewable decision …’.

55 PWD claims that it is an interested person within the meaning of s 29 of the CRM Act. The key provisions are s 29(1), (4), (5) and (6):

29 Who may apply to the Tribunal?

(1) An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned. …

(4) A person found by the Tribunal to be unjustifiably interfering in a matter is not entitled to apply to the Tribunal for a review in relation to the matter.

(5) In determining whether a person is unjustifiably interfering in a matter, the Tribunal is to take into account, to the extent that it is practicable to do so, the wishes and interests of any other persons who have an interest in the matter.

(6) This section applies despite any contrary provisions of the Administrative Decisions Tribunal Act 1997.

56 The Tribunal was satisfied that PWD held a genuine concern. It declined to proceed to make a finding that PWD was disqualified, as urged by the Minister, on the ground that PWD was ‘unjustifiably interfering in a matter’.

Grounds of Appeal

57 The grounds of appeal raise as questions of law – whether the Tribunal erred in its construction and/or application of the phrase ‘genuine concern’ in s 29; and whether, given that the Minister raised the issue, the Tribunal erred in proceeding to a decision on the standing of PWD ‘without first applying’ ss 29(4) and (5).

Consideration

58 The meaning to be given to the term ‘genuine concern’, and how it is to be applied, was explored at length in the case of People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (unreported, 12 February 1998; ‘Dunrossil’) Community Services Appeals Tribunal (the predecessor tribunal to the Community Services Division of this Tribunal).

59 There are many leading decisions belonging to the period of the mid-1970s to the mid-1980s when the old approach of courts to the grant of standing was under severe criticism. The leading decisions of that period liberalised the common law rules of standing and took a more generous approach to the interpretation of statutory formulations governing the right to sue or appeal, formulations such as ‘person aggrieved’. For an early illustration of the new approach, there dealing with a completely unconfined statutory standing test (‘any person’), see Phelps v Western Mining Corporation (1980) 20 ALR 183, esp per Bowen CJ at 185-187 and Deane J at 190.

60 In many of the leading cases of that era, the party granted standing was a community organisation (see, for example, Australian Conservation Foundation v Environment Protection Appeal Board and anor [1983] 1 VR 385 (Full Court)). In these cases the community organisation did not complain of immediate harm to its property, assets or standing but sought to uphold what it saw as the public or community interest in adherence to laws that were intended to have a general public benefit (such as conservation laws).

61 The history is reviewed in detail in Dunrossil. And see generally, Australian Law Reform Commission, Standing in Public Interest Litigation, Report No 27 (1985), ch 5 (‘the 1985 ALRC Report’); Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report No 78; Campbell, ‘Who should right the Public Wrong? The ALRC’s Proposal for a Test for Standing’, (1997) 5 AJAL 48; and more recently, Douglas, ‘Uses of standing rules 1980-2006’, (2006) 14 AJAL 22.

62 The Minister does not dispute the historical account. However, the Minister submits that the words ‘genuine concern’ as they are used in s 29(1) were wrongly construed in Dunrossil, and that the Tribunal below, in adopting that construction, was affected by the same error.

63 The Minister accepts that the words ‘genuine concern’ have no special legal meaning, that they are words belonging to the ordinary language of the community, and should, in accord with usual canons of construction, be given their ‘ordinary meaning’. The difficulty, of course, is that ordinary words can have many ordinary meanings that will shift according to the context and circumstances within which they are used.

64 In this case, the Minister’s submission is, essentially, that the ordinary meaning preferred in Dunrossil was the wrong ordinary meaning. In that case, the Tribunal looked at the dictionary meanings of the words ‘genuine’ and ‘concern’, selected from among them, and formulated the following ordinary meaning for the combined words ‘genuine concern’, see p 23 and p 28:

Any decision which sincerely engaged the attention of a person or affected their welfare or happiness would be subject to appeal.

65 To this meaning the Tribunal added the rider ‘in the context of the legislation, the concern must be something more than that which an ordinary member of the public possesses’.

66 In its view the extrinsic material confirmed its understanding of the breadth of operation intended for s 29(1) of the CRM Act.

67 It then set down various considerations against which the genuineness of concern of a community organisation might be assessed (at p 29). They are repeated at para [30] of the reasons below.

68 The Minister is critical of the lack of specificity in the reasons in Dunrossil about the context in which the words ‘genuine concern’ appear. The Minister sees the ‘immediate’ context as ‘quasi-judicial legal proceedings’ and the broader context as legislation relating to disability and other community services (see paras 42 and 41, respectively, of the submissions).

69 The Minister’s submission is that:

[P]roperly construed, s 29 requires the applicant to persuade the Tribunal that it has a real (true, proper, material not theoretical) interest in or connection with (e.g. because it is affected by) the subject-matter of the challenged decision. Emotional, philosophical or political commitment is not enough.

70 In our view the Dunrossil test is less than satisfactory when it uses the words ‘sincerely engaged the attention of a person’. These words focus on the subjective attitude of the applicant. It is difficult to apply a subjective test to an organisation, especially major ones. It is better we think to adopt a more objective approach.

71 Also, we see danger in reformulating the words ‘genuine concern’ in any way that might suggest that a substitute formula is to be applied. It is a key aspect of the modern approach to statutory construction that the words of the statute ordinarily be applied without embellishment or reformulation: see, for example, Newmont Yandal Operations Pty Limited v The J. Aron Corporation & The Goldman Sachs Group, Inc & 3 Ors [2007] NSWCA 195, (2007) 70 NSWLR 411 per Spigelman CJ at [112]: ‘[I]t is necessary to be wary of attempts to treat the words of a judgment interpreting a statutory provision as if those were the words of the statute’.

72 In our view the Minister’s submission has the same deficiency. In effect, the submission seeks to substitute for the statutory words another formula, ‘real interest and not theoretical interest’.

73 The continued use of the word ‘interest’ in statutory standing tests has been strongly criticised in commentaries dealing with the reform of standing laws. This is because of the technical, proprietorial connotation with which the word ‘interest’ was often endowed by courts in the past. Instead, the law reform literature has commended such alternative expressions as ‘real concern’. The word ‘concern’ has been seen as being less likely to be read down in the way ‘interest’ might be.

74 Against this background it is probable that the Parliament chose the word ‘concern’ to avoid the complications that are introduced by the word ‘interest’ and then adopted the adjective ‘genuine’ to perform the function of limiting the width of the expression ‘concern’. It is likely we think that the expression as a whole was meant to be somewhat broader in its provenance than one that focuses on ‘real interest’.

75 In New South Wales the expression ‘genuine concern’ is used in at least one other statute to delimit who has standing to take legal proceedings. The right to apply for the making of orders by the Guardianship Tribunal is extended to any other person ‘who, in the opinion of the Tribunal, has a genuine concern for the welfare of the [subject] person’: Guardianship Act 1987, s 9(1)(d). The legislation under notice in this case and the guardianship legislation both belong to administrative environments where those affected or to be affected by official decisions are persons who have special needs. In a broad sense the present legislation and the guardianship legislation are protective in character. The protective character of the legislative environment in which the test appears would, we think, inform the opinion that is formed as to whether a concern is ‘genuine’.

76 The words ‘genuine concern’ are not words with a precise or narrow denotation. They should not be applied in that way. They are words, as we see it, designed to enable a broad group of interested persons to put in issue reviewable decisions. The true meaning of the words is to be discerned having regard to the statutory scheme in which they appear. See generally, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; and Project Blue Sky at [69].

77 In Allan v Transurban City Link Ltd [2001] HCA 58; (2001) 208 CLR 167, at [15]-[16], Gleeson CJ, Gaudron, Gummow, Hayne & Callinan JJ (footnotes omitted) said in a dispute over standing, defined by statutory criteria (footnotes omitted):

A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the [statute] with regard to its subject, scope and purpose.

78 To similar effect, see Kirby J in Commissioner of Taxation v Linter Textiles Australia Ltd (In Liquidation) [2005] HCA 20; (2005) 220 CLR 592 at [181] (footnotes omitted):

The task before this Court is one of statutory construction. As such, it is not a task involving the elaboration of principles of the common law or of equity or the application of such principles. In recent years, this Court has repeatedly insisted upon fidelity to the text and purpose of legislation. This instruction has been given in an attempt to correct the tendency of courts and legal practitioners to weave around statutory language notions comfortable to lawyers, derived from earlier judge-made law but extraneous to the statute. Upon this point, which has a constitutional foundation, it is essential that this Court should be consistent in what it says and in what it does.

79 Where the applicant is an organisation, the genuineness of the applicant’s concern would, we consider, be likely assessed in a way that has regard to: the issues raised by the proceedings; the content of its constitution, especially the objects clause; the organisation’s aims as generally described by it; and the level of the organisation’s practical activity in pursuit of its objects and aims. These are simply examples of ways in which the judgement as to ‘genuineness’ might be informed.

80 The Minister casts the legislative context in which the standing criterion appears as merely being ‘quasi-judicial legal proceedings’. This tends to equate the activity of the Tribunal in the merits review environment to that of a court. The Tribunal has some of the trappings of a court, but the ultimate role in its review jurisdiction is to reach the correct and preferable decision on the basis of all relevant material. It is a substitute administrative decision maker.

81 The Parliament took the step, in this legislative framework, of submitting to the possibility of review on the merits by an external tribunal the making of government decisions with a broad impact and of a systemic character affecting the lives of persons with disabilities. It must follow, we think, that the standing test in s 29(1) of the CRM Act takes that as its context – a broad test allowing standing to sue in connection with administrative decisions of wide impact that are systemic. The legislation addresses a fundamental public interest.

82 In our view, the same result would have been reached in the present case by the Tribunal below had it concentrated on the words ‘genuine concern’ and not focused on the substitute formula set out in Dunrossil, and used the relatively objective approach which we favour when applying the test to community organisations.

83 It is evident that the Tribunal below looked closely at the relevance of PWD’s objectives, and the extent of PWD’s practical activities in pursuit of those objectives. Other considerations might also be relevant to such an assessment, for example in this case, the extent to which PWD has in its membership people who live in the centres, family members of those people or people active in maintaining and defending the human rights of people with disabilities.

84 The Relationship between s 29(4) and s 29(1). Section 29(4) of the CRM Act seeks to deal with the problem of ‘busybodies and cranks’ to use Gibb CJ’s expression in Onus v Alcoa (1981) 149 CLR 27 at 35) or ‘officious intermeddlers’. Section 29(4)’s expression gets away from that more derogatory and quaint language mentioned, but conveys the same idea.

85 It is, again, clear from the commentaries that there was considerable concern that liberalised tests of standing might allow into courts and tribunals people and organisations that would waste the time and resources of the tribunal, and those of a respondent summonsed to account. See the 1985 ALRC Report at ch 5, [252] ff; and more recently, Douglas at 24-26.

86 McHugh J has been relatively outspoken on the subject. He has referred to a number of discretionary considerations that may lead a court in a public law setting to deny standing to an organisation seeking to challenge a government decision of a systemic character affecting the community as a whole. See, for example, Bateman’s Bay Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 276-278; and Re McBain; Ex p Catholic Bishops Conference (2002) 209 CLR 372 at 425-426.

87 In this case the Minister submitted that PWD ought to be denied standing, regardless of whether it otherwise had a genuine concern, by reference to s 29(4). Sections 29(1) and s 29(4) are, in our view, interrelated. We disagree with the Minister’s submission that there is a fixed (or to use his words, an a priori) relationship between the provisions. There is no duty, as we see it, to deal with the two provisions in a particular order, or to deal with both of them in all cases.

88 The ordinary presumption in the case of a person with a ‘genuine concern’ would be that they are not ‘unreasonably interfering in the matter’. Consequently in many cases there would be no active consideration of s 29(4).

89 On the other hand, there could, for example, be cases where one applicant has initiated proceedings, and others come along to join the proceedings, and the Tribunal forms the view that they can add nothing to the case, and might be seen therefore as ‘unreasonably interfering’. There may also be cases where the Tribunal might turn its attention immediately to the question of unreasonable interference and put to one side the s 29(1) question.

90 A further issue raised by the Minister in this appeal is that the Tribunal failed to deal fairly with his submissions on this point. At our hearing, counsel for the Minister, who also appeared for the Minister before the Tribunal, took us to the following passage at p 11 of the transcript:

MR SINGLETON: You’ll note, as much a reminder of myself as to anyone, that I noted the time issue. But in respect of standing we contend that there are two issues that arise under legislation. The first is does the applicant have a genuine interest in the subject matter of the decision to be reviewed and the second issue is this: is the applicant unreasonably interfering by bringing the application?

The second question only arises if the first is answered affirmatively. If the applicant fails at the first, we need not to consider the second. The second question however is one in which the tribunal is obliged, so far as practicable to take account of the wishes and interests of any other persons who have an interest in the matter. But if the hearing proceeds today the tribunal won’t have discharged that mandatory requirement so we would point out at the beginning that the full question cannot be finalised today.

We accept that the question of genuine interest could be resolved finally today. It could be resolved either way, although in our contention some of the issues that could arise at the second step would impinge upon it. In discretion, you might wish to make the final decision … of the issues [sic] but a strict statutory decision would enable you to solve the genuine interest question but you would not, in our respectful contention, be able to resolve the unjustifiable interference point …

91 With the exception of this passage, counsel’s submissions to the Tribunal had focused almost entirely on the first objection, that PWD did not have a genuine concern. In the course of those submissions, counsel did say that it might not be in the public interest for the s 29(4) issue to be agitated at this stage. In support he said that the government had committed to closing the two centres. He said the new centres were under way in terms of the capital commitment (see tspt, p 17). He said at p 18 that the question was what it is the applicant wants to do with these proceedings.

92 The Tribunal dealt with the s 29(4) issue in this way:

Unjustifiable interference?

50 The Minster contends that a finding that PWD has a ‘genuine interest’ does not finalise the issue of standing as the Tribunal must consider whether PWD is ‘unjustifiably interfering’ with the subject decision (s 29(4) of the Community Services Act). He contends by the operation of s 29(5) the Tribunal cannot proceed to consider that question until such time as the wishes and interests of any other persons who have an interest in the matter have been taken into account. In this matter, this includes the residents of the Centres and their families.

51 As I understand it the Minister argues that a number of ‘intersecting factors’ demand that the Tribunal consider whether PWD’s involvement amounts to ‘unjustifiable interference’. These include first, the contention that PWD is either engaged in a futile academic exercise about the correctness of a decision made more than a year ago, which has been executed or it is pursuing an ideological agenda which, if successful, will render vulnerable people homeless. Second, the announcement of the decision to close both Centres. Third, PWD’s failure to particularise the relief sought.

52 I agree with the argument put by counsel for PWD that as a matter of statutory construction, a party seeking standing does not need to satisfy ss 29(1) and 29(4) of the Community Services Act. The language of the provision is not conjunctive. Once a finding has been made that s 29(1) has been satisfied it is for the party claiming that a person is ‘unjustifiable interfering’ to discharge the onus of proof on the balance of probabilities. The Minister bears that onus here.

53 In my view whether or not PWD’s strategy is misconceived, as Mr Singleton suggests, it is self-evident that PWD’s intentions are neither to engage in an arid debate about an old decision nor to throw intellectually disabled people to the wolves. As PWD sees it, the current proceedings are a means to an end, namely to ensure that for as long as they continue in operation the Services operate in accordance with the objects of the Disability Services Act.

54 That the Minster has announced that the Centres will close does not in my view indicate that PWD is ‘unjustifiably interfering’. No evidence has been adduced about when the Centres are likely to close and/or the arrangements proposed for current residents.

55 Nor in my view is the failure of the PWD to particularise the relief sought, evidence of ‘unjustifiable interference’. There is no statutory requirement that an applicant in proceedings of this nature specify the orders they believe the Tribunal should make on review.

56 The Tribunal is not required to determine whether a party is ‘unjustifiably interfering’ in the subject matter of the decision merely on the basis of an assertion made by another party. There must be some cogent evidence or compelling submission to warrant the exploration of that issue. I am not persuaded that that has occurred.

57 Mr Singleton correctly points out that other interested parties may wish to be joined in these proceedings. If so, and they have standing, they may have points of view different from both those of PWD and the Minister. Or they may support one or other of those parties. Even if established that the residents and their families disagree with the position taken by PWD this does not establish that PWD is ‘unjustifiably interfering’.

58 For these reasons I am not satisfied that it is necessary to consider whether PWD is ‘unjustifiably interfering’ in the subject decision.

93 In our view, the Tribunal carefully and fairly considered the Minister’s submissions on the s 29(4) issue. It is plain that it did not think it enough for the Minister to make mere assertions on the question of whether PWD was unreasonably interfering in a matter. The Tribunal referred to the absence of any detail as to such matters as precisely when the centres were likely to close and, therefore, how long they would remain operative.

94 In the view of the Tribunal, the Minister needed to back the assertions with some cogent material as to why it was undesirable to allow PWD to test the question. The submissions, as we read the reasons, were seen as insubstantial. In our view, this kind of assessment is the province of the trial body, unless there is an obvious miscarriage in the making of the assessment. The Minister had a reasonable opportunity to address the s 29(4) matter. The Tribunal is not obliged to accede to an assertion by counsel that all relevant questions were not open to be resolved by it.

95 In conclusion, if we are wrong and the application did identify a reviewable decision, we would have dismissed the further appeal against the Tribunal’s decision granting standing to PWD.

Order

1. Appeal allowed in part.

2. Application for review dismissed for want of jurisdiction.