Mr G v Director-General, Department of Community Services

[2002] NSWADT 43

Reported Decision: Appel Upheld 11 February 2002

CITATION:	Mr G v Director-General, Department of Community Services [2002] NSWADT 43
DIVISION:	Community Services Division
PARTIES:	APPLICANT Mr G RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	014041; 014073
HEARING DATES:	11/02/02
SUBMISSIONS CLOSED:	02/11/2002
DATE OF DECISION:	02/11/2002
BEFORE:	Britton A - Judicial Member; Groth D - Member; Bolt M - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Children and Young Persons (Repeal Amendment) Act 1988 Community Services (Complaints, Reviews and Monitoring) Act 1993
CASES CITED:
REPRESENTATION:	APPLICANT In person RESPONDENT D Ward, solicitor
ORDERS:	1. Application is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(1A) ....

(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.

Ex-Tempore Reasons for Decision

1 PRESIDING JUDICIAL MEMBER: Having had the benefit of a brief adjournment we hand down brief reasons for our decision. In the printed version of these reasons the applicant is referred to as Mr G.

2 On 22 June 2OO1, Mr G, lodged an application with the Administrative Decisions Tribunal, seeking a review of the decision made by a delegate of the Director-General, Department of Community Services, which he describes in that application as "to take our children and not return".

3 By this we understand Mr G to mean the decision made to remove from his care his four children, which was effected on 9 January 1998, and the subsequent placement of the children in the care of the Director-General, Department of Community Services.

4 In January 1998 the respondent made a care application in respect of each of the applicant’s children pursuant to section 62(2) of the Children (Care and Protection) Act 1987, which we will refer to in this decision as "the 1987 Act". Some time after that date, the Children's Court made orders declaring the three youngest children to be wards under the Act until they respectively attained 18 years of age.

5 In respect of the eldest child, the Children's Court ordered that that child be made a ward for a period of five years.

6 The Tribunal is advised by the parties that these decisions of the Children’s Court have since been the subject of unsuccessful appeals by Mr G to the District Court, Supreme Court, Court of Appeal and more recently, a special leave application to the High Court. For all practical purposes the relevant orders made by the Children's Court stand, save that the order made in respect of the eldest child was varied by the District Court, extending wardship until that child reaches 18 years of age.

7 It is a matter of trite law that the Tribunal is a creature of statute. Its jurisdiction is circumscribed by the statute establishing it, namely, the Administrative Decisions Tribunal Act 1997. It goes virtually without saying that it has no power to inquire at large into matters which take its interest. The Tribunal has a duty to decline to hear cases over which it has no jurisdiction.

8 Section 38 of the Administrative Decisions Tribunal Act provides that the Tribunal has jurisdiction under an enactment to review a decision (or class of decisions) if the enactment provides that such applications may be made for it for review of any such decision (or class of decisions) made by an administrator.

9 Section 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 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".

10 Section 112 of the 1987 Act lists those decision or class of decisions that are reviewable by the Tribunal. A decision to remove a child from the care of his /her natural parent/s, which is in essence the decision Mr G seeks to have reviewed, is not listed at section 112 as a reviewable decision.

11 Before proceeding further, we make some brief observations about the history of the 1987 Act, relevant to this matter. That Act was repealed in part by the Children and Young Persons Legislation (Repeal Amendment) 1988 (the Amendment Act). However that Act has not yet commenced in relation to Part 8 of the 1987 Act in which section 112 of the 1987 Act is contained. Accordingly, the relevant legislation in respect of this application is the 1987 Act.

12 In short, as the decision Mr G seeks to be reviewed is not a reviewable decision for the purpose of section 112 of the 1987 Act we lack jurisdiction to determine the application before us.

13 Our decision today deals solely with the question of jurisdiction. We make no finding as to whether the decision made by the Minister’s delegate was correct. As we said earlier our decision is exclusively concerned with whether this is the appropriate forum for Mr G to seek a review of the decision in respect of the removal of his children.

14 Accordingly, pursuant to section 73(5)(h) of the Administrative Decisions Tribunal Act, this application is dismissed.