Philip Barnes v The State of Victoria and the Secretary to the Department of Health and Human Services
[2015] VSCA 343
•16 December 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0091
| PHILIP BARNES | Applicant |
| v | |
| THE STATE OF VICTORIA | First Respondent |
| and | |
| THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Second Respondent |
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| JUDGES: | SANTAMARIA, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 October 2015 |
| DATE OF JUDGMENT: | 16 December 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 343 |
| JUDGMENT APPEALED FROM: | [2015] VSC 340 (Riordan J) |
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JUDICIAL REVIEW – Application for leave to appeal – Mandamus – Statutory construction – Agreement to a request for disability services pursuant to s 49 of the Disability Act 2006 – Whether agreement gives rise to enforceable statutory duty to provide requested services – Application for leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Merkel QC with Mr C Tran | Fitzroy Legal Service |
| For the Respondents | Mr P Hanks QC with Ms K Foley | Victorian Government Solicitor’s Office |
SANTAMARIA JA
FERGUSON JA
McLEISH JA:
The applicant was diagnosed with primary progressive multiple sclerosis in 1982. Since 2012, he has received annual funding from the Department of Health and Human Services (‘the Department’) under what is called an individual support package. The initial funding was $112,000 per annum, which has since increased in line with indexation.
In 2014, the applicant applied to the Secretary of the Department for an increase in the level of funding in the amount of a further $134,217.60 per annum and for a grant of $23,100 to purchase a new wheelchair. The additional funding was requested primarily in order to pay for extra carer and support services needed as a result of the progression of the applicant’s condition.
The Department advised the applicant that it (meaning the Secretary) agreed to his request, and that his need for the additional support had been registered. The Department further advised that this did not mean that funds would automatically be allocated, but that the applicant would be considered along with others who had a registered need for support.
The applicant contends that the statutory regime under which the additional support was requested and agreed to has the effect of obliging the Secretary, in the events that have happened, to provide that support. He filed an originating motion seeking an order in the nature of mandamus against the Secretary. The trial judge held that no such obligation arose and dismissed the proceeding. The applicant seeks leave to appeal, and the application was heard along with full argument on the proposed appeal.
For the reasons that follow, we would grant leave to appeal but would dismiss the appeal.
Legislative and factual background
It is convenient to set out the statutory background before explaining the facts in somewhat greater detail.
The Disability Act 2006 (‘the Act’) states that its purpose is ‘to enact a new legislative scheme for persons with a disability which reaffirms and strengthens their rights and responsibilities and which is based on the recognition that this requires support across the government sector and within the community’.[1] Its objectives are set out in s 4, as follows:
[1]Section 1.
The objectives of this Act are to—
(a)advance the inclusion and participation in the community of persons with a disability;
(b)promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability;
(c)facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability;
(d) promote and protect the rights of persons accessing disability services;
(e) support the provision of high quality disability services;
(f)make disability service providers accountable to persons accessing those disability services;
(g)ensure the efficient and effective use of public funds in the provision of disability services.
Section 5 of the Act contains a series of ‘principles’. It relevantly provides:
(1)Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.
(2)Persons with a disability have the same right as other members of the community to—
(a) respect for their human worth and dignity as individuals;
…
(d) exercise control over their own lives;
(e)participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur;
…
(g)services which support their quality of life.
(3) Disability services should—
(a)advance the inclusion and participation in the community of persons with a disability with the aim of achieving their individual aspirations;
(b)be flexible and responsive to the individual needs of persons with a disability;
(c)maximise the choice and independence of persons with a disability;
…
(e)enable persons with a disability to access services as part of their local community and foster collaboration, coordination and integration with other local services;
…
(m)be provided in a manner that respects the privacy and dignity of persons accessing the disability services;
…
(q)be designed and provided in a manner which continues to reflect the role of the Secretary in providing and funding planning for persons with a disability;
…
(4)If a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.
(5)It is the intention of Parliament that the principles specified in this section should wherever possible be given effect to in the administration of this Act and the provision of disability services.
Section 3(1) defines ‘disability service’ to mean ‘a service specifically for the support of persons with a disability which is provided by a disability service provider’. The word ‘service’ is not defined. However, its width is apparent from the definition of ‘services component’, which means:
an amount for whichever of the following service items are provided to a [person who receives disability services in a residential service]—
(a) utilities;
(b) communications including telephone;
(c) bedding and linen;
(d) food;
(e) general household consumable supplies;
(f) communal furnishings and whitegoods;
(g) household equipment and utensils;
(h) replacement of items specified in subparagraphs (b), (c), (e), (f), or (g) following wear and tear or accidental damage.
Section 8 provides for the role and functions of the Secretary. In particular, the role of the Secretary includes to ‘plan, develop, provide and fund or purchase comprehensive services, programs and initiatives for persons with a disability’.[2] The functions of the Secretary in s 8(2) include:
[2]Section 8(1)(a).
(b)to advance the inclusion and participation of persons with a disability in the community;
(c) to develop policies for disability services;
(d)to develop and publish criteria to enable priority of access to disability services to be determined in a fair manner;
(e)to determine priorities in relation to policy development, resource allocation and the provision of disability services;
…
Section 9 empowers the Secretary to provide funds. It relevantly provides:
(1)Subject to the approval of the Minister and having regard to the objectives and principles specified in this Act, the Secretary may allocate funds out of money available for the purpose to persons including municipal councils and non-government organisations.
(2)The Secretary may allocate funds under subsection (1) to be used for the purposes and subject to the conditions considered by the Secretary to be appropriate.
Part 4 of the Act is entitled ‘Disability services’. Section 39(1)(a) requires the Secretary to ensure that the Department maintains information systems for the purpose of enabling the planning, monitoring, evaluating, provision and funding of disability services to persons with a disability. Sections 40 to 48 provide for the Secretary to keep a register of disability service providers. That expression is defined in s 3(1) to mean a person or body on that register, or the Secretary.
Division 2 is entitled ‘Accessing disability services’. It relevantly provides:
49 Request for disability services
(1)A person with a disability or a person on behalf of a person with a disability may request disability services from a disability service provider.
(2)If a disability service provider receives a request under subsection (1), the disability service provider may—
(a) agree to the request; or
(b) refuse the request.
(3)For the purpose of making a decision on a request under subsection (1), the disability service provider may require—
(a)the person making the request to provide more information;
(b) the person with a disability to undergo an assessment.
(4)If a disability service provider refuses a request under subsection (2)(b), the disability service provider must within 14 days of deciding to refuse the request advise in writing the person making the request—
(a)that the request has been refused and the reason for the refusal; and
(b)if the reason for the refusal is that the disability service provider is of the opinion that the person for whom the disability services are requested does not have a disability, that the person in respect of whom disability services have been requested has a right to have the issue of whether the person has a disability decided by the Secretary.
5)If a disability service provider agrees to provide disability services without requiring an assessment of the person, the provision of disability services to the person is not of itself to be taken to be evidence that the person to whom the disability services are provided is a person with a disability.
50 Request to Secretary for decision as to disability
(1)A person to whom section 49(4)(b) applies may request the Secretary to decide whether or not the person has a disability.
(2)For the purposes of making a decision under this section, the Secretary may require the person making the request and the disability service provider to provide any relevant information.
(3)The Secretary may determine the appropriate process to enable the Secretary to make a decision as to disability.
…
(6)The Secretary must within 14 days of making a decision as to whether a person has a disability advise in writing the person who made the request—
(a) of the decision; and
(b)that the person can apply to VCAT for a review of the decision.
…
51 Effect of decision of Secretary
A decision by the Secretary under section 50 that a person has a disability does not of itself entitle the person to the provision of disability services.
Pursuant to s 49, the applicant applied for ongoing disability support, in the amounts already mentioned, by completing and submitting to the Department a detailed form provided by the Department for that purpose. The completed form sets out at length the level, type and amount of support the applicant sought and the particular needs it would address. At the end of the form, the following ‘written consent’ appeared:
I have been informed and consent to the use of information in this application for the purposes of registering an application for ongoing disability support. I understand that this information may also be used in consideration and allocation of supports, and provided to external agencies for this purpose. I also understand that this consent allows for information in this application to be used for statistical reporting purposes.
The form was submitted to the Department on 3 March 2014.
On 14 May 2014, an officer of the Department advised the applicant that no further assessment of his condition was necessary. However, it was not made clear to the applicant whether his request for additional support had been approved. Correspondence between the applicant and the Department failed to clarify the position and the applicant applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a review of the Secretary’s failure to agree to, or refuse, his request under s 49 of the Act. Pursuant to a direction made by VCAT, on 2 September 2014 a senior officer of the Department wrote to the applicant in the following terms:
Dear Philip
I am writing to you regarding your application to the Victorian Civil [and] Administrative Tribunal (VCAT), requesting a review of the Department of Human Services (DHS) decisions relating to your eligibility for Disability Services support and your application for services. At the directions hearing on 21 August 2014, the VCAT Member directed the DHS to provide you with written clarification regarding these matters.
I can confirm that DHS Disability Services agrees to the request outlined in your application dated 3 March 2014 in accordance with section 49(2) of the Disability Act 2006, and have placed the need for the additional individual support package on the Disability Support Register (DSR). As you are aware, registration on the DSR does not result in the automatic allocation of a resource, however you will be considered along with others who have a registered need for this support.
I am also able to confirm that DHS Disability Services completed a Target Group Assessment with you in September 2011 and determined that you are a person who has a disability in accordance with section 50 of the Disability Act 2006.
The applicant then withdrew his VCAT application. His solicitors subsequently wrote to the Department requesting that the services agreed to by the Department be provided ‘in accordance with the agreement under s 49(2) of the Disability Act’. The Department replied on 21 November 2014, to the effect that the agreement to additional support had resulted in the applicant’s need being placed on the ‘Disability Support Register’ (‘DSR’). The letter continued:
As previously advised in writing on 16 June 2014 and 2 September 2014, registration on the DSR does not result in an automatic allocation of funds. When funds become available, a Panel will sit to determine who is allocated the funds and Mr Barnes will be considered along with others who have registered a need for support.
The originating motion filed by the applicant sought a ‘writ of mandamus directing the Secretary provide to the Plaintiff the disability services which, on 2 September 2014, the Secretary agreed to provide under s 49(2)’ of the Act.[3]
[3]At the hearing of the application for leave to appeal, the applicant instead sought an order that the Secretary provide or cause to be provided to the applicant ‘within a reasonable time’ the services he requested on 3 March 2014.
In order to obtain relief in the nature of mandamus, the applicant must first establish the existence of a public duty, which the Secretary has failed to perform. Here the duty relied on is a duty to provide disability services in respect of which the Secretary has agreed to a request under s 49(2).
The trial judge refused the relief sought. He held that the Secretary had agreed to the applicant’s request for disability services but that this did not give rise to a statutory obligation to provide the services requested or any such services within a particular time. Acceptance of a request under s 49, the trial judge held, ‘is an acceptance of eligibility rather than an undertaking of an obligation to provide the disability services, which have been requested’.[4]
[4]Barnes v State of Victoria [2015] VSC 340 [33(e)].
In this Court, the sole ground of appeal pressed is that the trial judge erred in holding that agreeing to a request under s 49(2)(a) of the Act does not require the disability service provider to provide to the person with a disability the services specified in the request. The Court is not asked, nor was the judge in the Trial Division, to consider whether any other consequence follows from agreeing to a request under s 49(2), either under the Act or at common law or in equity.
There is therefore presented for decision a concise question of statutory construction. As is familiar, the task of answering that question must start and end with a consideration of the statutory text. The text must be considered in its context, which includes legislative history and extrinsic materials, to the extent that they assist in fixing the meaning of the text.[5]
[5]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, 519 [39]; Thiess v Collector of Customs (2014) 250 CLR 664, 671 [22].
Statutory construction ‑ text
It may be observed at the outset that the text of the Act, and s 49 in particular, does not expressly create any statutory duty. However, the applicant submits that the necessary duty arises because the ordinary meanings of the words ‘request’ and ‘agree’ convey an obligation to act. He submits that the ordinary meaning of the verb ‘request’ is ‘to ask, or ask for (something)’.[6] He relies on the ordinary meaning of ‘agree to’ being ‘to accede … to (a proposal, conditions, etc)’.[7] The applicant submitted that, when a person with a disability ‘requests’ disability services, they are asking for that which is specified in the request. When the disability service provider ‘agrees to the request’, they are agreeing to do what has been asked for in the request.
[6]The Oxford English Dictionary (2nd ed, 1989), vol 13, 680, sense 2.
[7]Ibid, vol 1, 264, sense 7b.
The Secretary submits that an agreement ‘to a request’ is not the same as an agreement to provide requested services. It was submitted that the language in s 49(2)(a) should be contrasted with that in s 49(5), where the expression ‘agrees to provide disability services’ is used.
In our opinion, little can be derived from the fact that s 49(2)(a) uses the expression ‘agree to the request’ rather than ‘agree to provide disability services’. It is plain from s 49(2) that ‘the request’ is the request made under s 49(1), which is itself a request for disability services from a disability service provider. The text does not, in our opinion, support the Secretary’s contention that, when a disability service provider agrees to a request under s 49(2)(a), what is agreed to is only that the person requesting disability services is eligible to receive them. Instead, the disability service provider agrees to provide the services that were requested.
However, so to conclude is only to address a threshold issue in the process of construction. The agreement of the disability service provider to the request does not necessarily give rise to a duty on the part of the disability service provider to do that which it has agreed. The question whether ‘agree’ connotes a duty or obligation remains the issue for resolution.
As to that issue, the applicant contends that the agreement to the request would be worthless and illusory if the provider was not then obliged to give effect to it. An analogy was drawn with offer and acceptance under the law of contract, where the offer may be characterised as a request, acceptance of which amounts to the voluntary assumption of a legally enforceable duty.[8] This analogy demonstrates that the language in s 49 is capable of creating an obligation. But that only confirms that the applicant’s construction is open. Even under the law of contract, offer and acceptance by themselves are of course not sufficient to create legal obligations. At best the analogy with the language of contract therefore only offers another way of stating the issue, namely, is s 49(2) properly construed as creating a legally enforceable obligation to do that which has been agreed?
[8]Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424, 457–8.
The applicant also points to s 51, which provides that a decision by the Secretary that a person has a disability does not of itself entitle the person to the provision of disability services. It was pointed out that there is no equivalent provision in respect of an agreement under s 49(2)(a). The implication, it was said, was that there is such an entitlement in that context.
The applicant relied on other textual considerations. It was said that s 49(5) envisages that, following an agreement to provide disability services, a disability service provider will in fact provide disability services. Further, s 49(4) presupposes that considerations other than whether the person has a disability may bear on the refusal or agreement of the disability service provider. Those considerations, it was submitted, would include questions of access and priority to funding. All these matters could, in addition, be the subject of a request for further information under s 49(3), so that they could be fully examined before a decision is made.
On the other hand, the Secretary submitted that the generality of s 49(1) made it unlikely that Parliament intended that agreements to a request under that provision would give rise to an obligation. It was submitted that, had this been intended, s 49(1) would have provided for a request to refer to specific services or to specify the timing requested for their provision. On this approach, ’agree’ means only to indicate assent to a proposal, amounting at most to an indication of preparedness to provide the services in question.
There is force in each of these submissions. However, ultimately they only point to what is not said in s 49. Subsections (1) and (2) do not explicitly address the critical question whether a duty arises. Subsection (5) plainly envisages that, after a request has been agreed to, services will, or may, be provided in fulfilment of that agreement, but it is neutral as to whether this is done pursuant to an enforceable duty on the part of the disability service provider or only by virtue of that provider’s stated agreement to do so, without more. While sub-s (4) contemplates that matters other than disability may bear on a refusal or agreement to a request, it does not imply that an agreement to a request must take account of all matters it is necessary to consider before deciding to enter into a binding obligation. The power of a disability service provider to request further information under sub-s (3) similarly does not imply that agreement to a request has a finality or binding quality about it.
In each case, therefore, the submissions highlight the need to look beyond the text of div 2 and to explore in greater detail the legislative context, so as to seek to identify its purpose.
Statutory construction — context and purpose
The applicant submitted that pt 4 div 2 contains key provisions of the Act, designed to enable persons with a disability to take control of their lives and to obtain specific services. Reliance was placed on the extensive use of the language of rights in ss 1, 4 and 5. The principles in s 5 include the principle that persons with a disability have the same right as other members of the community to exercise control over their own lives and to participate actively in the decisions that affect their lives. It was submitted that div 2 is central to the conferring of the benefits which the Act seeks to bestow, because it enables persons with a disability to identify and seek the disability services which they require. That right would be rendered hollow if, such a request having been agreed to by a disability service provider, that provider was then free not to provide the services at all. It was submitted that, given the inclusion, participation and autonomy which the Act recognises both as rights of persons with a disability and as objects to be advanced by the Act, it would be surprising if an agreement to a request leads to no statutory outcome.
The applicant contrasted the request and agreement process with that which applied under the legislation which the Act replaced. For example, s 7 of the Intellectually Disabled Persons’ Services Act 1986 enabled a person to ‘request the Secretary to assess the eligibility of that person for services’. Similarly, the Disability Services Act 1991 empowered the Minister to approve funding to providers of services or persons with a disability: s 4(1). Both of these statutes, it was submitted, deprived a person with a disability of control over the provision of services by conferring a power to provide services, rather than a power to ask for them. In the case of the Intellectually Disabled Persons’ Services Act, there was a clear contrast with s 49 of the Act, because a person could only request the Secretary to assess their eligibility for services. The applicant submitted that the Secretary’s construction of s 49 would mean that there was no effective change and that, despite the different language of s 49 and the objectives and principles in the Act, a person with a disability would still be ‘at the mercy’ of the Department after making an agreement for the provision of services.
In our opinion, reliance on the use of the language of rights and principles of inclusion, autonomy and control does not substantially assist in resolving the present issue. The Act’s use of that language and its adoption of corresponding objectives is too general and does not speak to the present issue. Whatever construction is adopted, the requirement for funding means that the question whether or not services will be provided inevitably remains one for determination by a disability service provider. In other words, the person seeking disability services does not, under the Act, or its predecessors, have any control over whether or not those services are provided. The applicant’s construction would not affect that position.
Of course, if a disability service provider has agreed to a request for services, then to fail to provide those services may of itself adversely affect the rights of the person concerned. It may very well lead the person to feel aggrieved that the disability service provider has not done what is said it agreed to do. However, these consequences do not establish that the person’s rights under the Act include a right to have the agreement performed or that their grievance has that particular remedy. In the end, the fact that the Act uses the language of rights, and emphasises the autonomy, inclusion and participation of persons with a disability does not reveal whether an agreement under s 49(2) is intended to be binding.
Nor does the introduction of a statutory procedure for making a request say anything as to the legal consequences of agreeing to that request. Although the recognition that a person may make a request can be viewed as consistent with the principles and objectives of the Act, in truth there would need to be a request, with or without statutory reference to that request, both under the Act and its predecessors before any services could be provided. The express reference to the making of a request in s 49 does not, in our opinion, indicate one way or the other what are to be the consequences of agreeing to such a request.
Similarly, the difference in language between s 49 and the Intellectually Disabled Persons’ Services Act is not illuminating. While it is true, as the applicant submits, that s 49(2) conspicuously departs from the language of ‘eligibility’ for services, the Act also omits to stipulate, as s 8(7) of the former statute did, that a favourable assessment ‘entitles the eligible person to receive services’ under the legislation. These differences confirm that the Act contains a new approach to the provision of disability services, without helping to answer the critical issue under consideration.
Next, the applicant placed particular reliance on s 4(f) of the Act, which states that one of the objectives of the Act is to make disability service providers accountable to persons accessing those disability services. The trial judge held that this objective was met by other aspects of the Act, including the requirement that a disability service provider follow the criteria developed and published by the Secretary[9] and the role of the Disability Services Commissioner in determining what action a disability service provider should take where a complaint to the Commissioner has been made and found to be justified.[10] The judge held that a person who had not received services which a disability service provider had agreed to provide could make a complaint to the Commissioner under s 109(a) of the Act. The Commissioner would investigate that matter and could then make a finding as to what the disability service provider should do in the circumstances. The applicant, on the other hand, contended that there was no power in the Commissioner to consider such a complaint, on the basis that complaints are required under the Act to be about the provision of services. In any event, it was submitted, the Commissioner has no power to require compliance with an agreement under s 49 and the Commissioner’s powers are limited in cases where there are pending court proceedings.[11]
[9]Section 8(2)(d).
[10]Section 16(l).
[11]Sections 114(1)(d), 121.
The trial judge held that s 109(a) was to be construed to give the fullest relief which the fair meaning of its language will allow.[12] The applicant relied on the same principle of construction in support of his argument regarding s 49(2), contending that the Act as a whole is intended to confer benefits on persons with a disability. For that reason, it was said, the fact that a beneficial interpretation is available in respect of s 109(a) does not afford a ground for denying a beneficial interpretation to s 49(2). We accept this submission. The purpose of the Act to ensure accountability is not necessarily met, or spent, by identification of the avenue of accountability involving the Commissioner. It is therefore not necessary to consider the competing submissions as to the extent, or availability, of that form of accountability.
[12]Citing, among other authorities, Bull v A-G (NSW) (1913) 17 CLR 370, 384 and R v Irvine (2009) 25 VR 75, 91–2 [90].
However, the applicant’s submissions encounter a different problem. While the contention he advances regarding s 49(2) is plainly beneficial in his own circumstances, and in those of other persons whose requests for the provision of disability services have been agreed to, the same cannot necessarily be said of persons with a disability more generally. Applying the ‘beneficial construction’ principle, the question still remains one of statutory construction.[13] The Act is of general application. If a beneficial construction is to be preferred, it must be one which advances the beneficial purposes of the Act, which is not necessarily the same as advancing the benefit of a particular group.
[13]IW v City of Perth (1997) 191 CLR 1, 12.
The applicant must therefore establish, for this part of the argument, that the beneficial purposes of the Act are advanced if persons whose requests for disability services have been agreed to have an enforceable right to receive those services. But the available indications are quite equivocal on that matter. Section 49 provides an avenue for the allocation of disability services, whose provision depends, irrespective of the construction of s 49(2), on the availability of funding. On the applicant’s argument, the funding decision must be made before a request is agreed to. The Secretary submits that considerations of funding arise only after a request is agreed to. In the meantime, a person knows whether or not they have been accepted as eligible for that funding. If the applicant is correct, it is apparent that decisions on requests under s 49(1) will take longer to make, or will be more readily refused, because those decisions will need to take account of what funding is available. In either case, the ultimate provision of services will not occur until there is money to pay for them.
In these circumstances, the ‘beneficial construction’ rule is of no assistance. On any view, the Act is intended to achieve the targeted expenditure of public moneys for an important social purpose, to the benefit of persons with a disability. But neither construction of s 49(2) will affect the amount of funding available to fulfil the purposes of the Act. Apart from the persons whose requests have currently been agreed to, but not met, neither construction will affect whether services are actually provided, or when they will be provided. The only way in which the applicant’s construction is beneficial would be in the adventitious enforcement of agreements to requests already made. Persons whose requests are pending, or yet to be made, would be in no better position by virtue of the construction. Arguably, their position is worse because they are unable to receive a favourable response to their request until a funding decision has been made.
Statutory construction — extrinsic materials
The Secretary placed extensive reliance on extrinsic material. It is appropriately considered at this point, as the applicant submitted, only after having otherwise exhausted the ordinary rules of statutory construction.[14] In particular, the Secretary drew the Court’s attention to policies and procedures by which the Department handles requests for disability services. Consistently with s 8(2)(d), these documents are directed to determining priority of access to disability services. The documents describe the operation of the ‘Disability Services Register’. This register is an administrative tool, not provided for under the Act, by which the Secretary records those requests for disability services to which she has agreed under s 49(2)(a). As the correspondence with the applicant indicated, the recording of a request on the register is not treated as entitling the person in question to receive the relevant services.
[14]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264–5 [31]–[33].
The Secretary submitted that these arrangements, and the processes for which these documents provide, reflect the fact that the demand for disability services exceeds available funding and that the executive government must determine how the funding should be allocated. Section 9 of the Act confirms this as the role of the Secretary.
The administrative arrangements that have been put in place by the Secretary also reflect the fact that, while s 49 is expressed to apply to disability service providers generally, in practice applications are made only to the Secretary, who then funds services and may arrange for their provision by other disability service providers. To that extent, it may be said that the arrangements bear only on one possible way in which s 49 may be engaged, leaving untouched its application with respect to requests made to disability service providers other than the Secretary. But even leaving that difficulty aside, the existence of the departmental policies and procedures does not assist the task of construction in the present case.
That is so for two principal reasons. In the first place, the administrative processes are founded upon the Department’s interpretation of s 49. There is no suggestion that Parliament legislated in the knowledge of such processes or in the expectation that they would be applied. As such, the evidence as to how the Department applies s 49 falls well short of identifying ‘the intention manifested by the legislation’,[15] and is ultimately self-serving.
[15]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264 [31], citing Wik Peoples v Queensland (1996) 187 CLR 1, 168–9.
Secondly, accepting that the departmental processes manifest the need for prioritisation in the allocation of funding for disability services, they fail to demonstrate that such prioritisation necessarily takes place after, rather than before, a request is agreed to. The Secretary was not able to explain why the funding question could not be addressed as part of the decision whether to agree to or refuse a request.
However, the Secretary was right to point out that the effect of the applicant’s construction would be that responses to a request under s 49(1) were more likely to be either deferred or in the negative. As already explained, the applicant’s construction cannot be said to lead to more timely or positive outcomes for persons seeking disability services.
Something should now be said regarding the parliamentary materials. The Explanatory Memorandum in respect of the Act stated as follows in respect of what are now ss 49 and 51:[16]
[16]Explanatory Memorandum, Disability Bill 2006 12–3.
Clause 49gives people with a disability the right to seek services directly from a disability service provider without necessarily having to undergo an assessment of their disability. However, the disability service provider can seek information or require the person to undergo an assessment. If the provider refuses the request, they must notify the person and if the refusal is because the provider does not believe they have a disability within the meaning of the Bill, the person is entitled to have that issue determined by the Secretary.
The provision of services to a person without an assessment of their disability is not evidence that the person has a disability within the meaning of the Act.
The intention of these provisions is to introduce greater flexibility into the delivery of disability services. A person is no longer required to undergo a formal assessment of their disability prior to receiving services, as is the case under the Intellectually Disabled Persons’ Services Act 1986. In addition, a request can also be made on behalf of a person with a disability.
…
Clause 51provides that the decision of the Secretary that a person has a disability does not of itself entitle them to the provision of disability services. It is intended that these provisions will change the emphasis from the delivery of services as being driven by a formal assessment of a person’s disability to one driven by a person’s needs. This provision therefore indicates that the formal decision itself is not sufficient to justify the provision of disability services.
In her second reading speech for the Disability Bill, the Minister made the following observations:[17]
[17]Victoria, Parliamentary Debates, Legislative Assembly, 1 March 2006, 404–6 (Ms Garbutt).
International human rights standards and the increasing promotion and protection of the human rights of people with a disability has resulted in significant changes in the understanding of disability. In the past, people with a disability were often regarded as passive recipients of welfare services. This led in some instances to the exclusion of people with a disability from many of the activities of mainstream society and was reflected in the establishment of segregated settings such as institutions. There has been increasing recognition that strengthening the protection of human rights plays an important role in minimising the impact of disability.
People with a disability have the right to enjoy the range of civil, cultural, economic, political and social rights available to all Victorians. This right means people also have responsibilities, and people with a disability should be supported to exercise these responsibilities.
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[The Intellectually Disabled Persons’ Services Act 1986 and the Disability Services Act 1991] were both introduced more than a decade ago. Since that time, there have been many changes and advances in a number of areas. Some of these include changes in community attitudes and expectations, changes to the delivery of supports and services; and the growth of a commitment to ensuring that people with a disability can exercise their rights and responsibilities as citizens.
All of these changes have placed greater demands on the existing legislation.
In addition, each of these acts has a very different approach. Over time these different approaches have made the administration of the two acts more difficult, and have sometimes created confusion and inconsistency in their application.
As a result, the current legislation does not support service delivery as we know it today and will not sustain the range of flexible supports that are envisaged for the future.
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The intent of the Disability Bill is to enact a new legislative scheme for people with a disability … The purpose of the Disability Bill is through legislation to reaffirm and strengthen the rights and responsibilities of people with a disability and recognise that this requires support across the government sector and within the community.
It is apparent from the second reading speech, as the Act itself makes clear, that Parliament was concerned to ensure that disability services legislation strengthens the rights of people with a disability and ensures that they can exercise those rights. However, as already indicated, this legislative aspiration does not assist in identifying what rights people with disabilities have or whether s 49(2)(a) creates such a right. It is too general in nature to afford a sound basis for interpreting the provision as the applicant contends.
The Explanatory Memorandum is of greater assistance. It offers an explanation for the enactment of s 49, namely that it was sought to introduce greater flexibility into the delivery of disability services and to provide a procedure for providing services without necessarily requiring a formal assessment of disability. Further, ss 49 and 50 enable a person to have the Secretary and VCAT review a decision as to whether they have a disability. Seen in that light, sub-ss 49(1) and (2) provide a framework to enable these new procedures to operate.
Statutory construction ‑ conclusion
The word ‘agree’, in the context of s 49(2) is ambiguous as to whether it connotes a duty to act in accordance with what has been agreed. Under the first of the competing constructions, advanced by the applicant, when a disability service provider ‘agrees’ to a request to provide disability services, it takes a step for which the Act specifically provides, and the statutory agreement is binding in nature. The disability service provider falls under a duty to comply with the request as agreed. Under the second construction, which the submissions of the Secretary reflect, agreeing to a request creates no statutory duty but only indicates assent to a proposal, in effect indicating the disability service provider’s preparedness to provide the services requested, but no more. It is necessary to resolve the ambiguity by reference to such of the matters already canvassed as usefully bear on the question of construction.
In our opinion, for the following reasons, the Secretary’s construction is correct.
First, the duty which it is contended arises from an agreement is of significant legal effect. If the applicant is correct, upon agreeing to a request, the disability service provider must provide whatever services were requested. Section 49 is very general in its terms. The term ‘disability services’ is broadly defined. A request may be for substantial and enduring services, including residential accommodation, or for something quite specific and immediate, including food or household consumables. Section 49 applies to disability providers including the Secretary and non-governmental entities registered under the Act. There is nothing in the section to confine a request or an agreement to written communications. Potentially, therefore, it applies to a wide range of dealings regarding the possible provision of any service for the support of persons with a disability. It would be surprising, if it were intended to attach a legal duty to a positive response to a request, for the Act to leave open such a wide field in which such a duty may arise.
Secondly, under the general law, conveying agreement to a request for gratuitous services does not, of itself, create any obligation to provide those services. Such a transaction involves an agreement only ‘in principle’. The agreement, of itself, would not be legally enforceable by way of an order for specific performance. But the word ‘agree’ is still apt to describe the response to the request in such a situation. The applicant’s construction would give ‘agree’ in this circumstance a meaning giving rise to an obligation, which could be enforced by orders requiring the disability service provider to provide the requested services. This would depart from the ordinary consequences of conveying agreement to a request for gratuitous services. Especially considering that s 49 applies to ‘agreements’ involving two private parties, in our opinion, it is more likely that, had Parliament intended such a result, it would have made its intention plain with express language to that effect.
Thirdly, the Explanatory Memorandum supports the Secretary’s construction. First, it spells out that ss 49 and 50 replaced an inflexible system for the allocation of disability funding with one where particular services may be requested and may be agreed to without formal assessment of a person’s disability. The new provisions enable review of a refusal based on a decision that the person in question does not have a disability. The request and response procedure is the mechanism which enables these more flexible arrangements to be made and the rights as to review to be exercised.
In addition, the creation of binding arrangements would not sit especially comfortably with the purpose of introducing ‘greater flexibility into the delivery of disability services’.[18] To the contrary, the applicant’s construction would introduce an element of rigidity. If the provider wished to provide only some of the requested services, or to provide different services, it would be necessary to refuse the request to avoid becoming liable to provide all the services requested. Similarly, if the provider wished to provide services incrementally, for example as and when funds became available, it would be necessary to refuse a request for the whole of the services and deal with a series of more confined requests instead. A flexible system would not dictate such outcomes.
[18]Explanatory Memorandum, Disability Bill 2006 12.
In both these ways, the Explanatory Memorandum shows that ss 49–51 have an identified purpose which is not advanced by the duty asserted by the applicant. At the same time, the absence of any reference in the extrinsic materials to the suggested duty, taken with the matters referred to at paragraphs 55 and 56 above, tells against the correctness of the applicant’s construction.
Finally, it is also not correct to say, as the applicant submitted, that the agreement under s 49(2)(a) would be worthless and illusory, or productive of no statutory outcome, if the disability service provider was not obliged to give effect to it. Subsections 49(1) and (2) are facultative of the succeeding provisions by providing the foundation upon which the new review system functions. A refusal, if based on the issue of disability, triggers the right of review. Conversely, agreeing to a request marks the provider’s acceptance that the person in question has a disability. As such, the review procedures are not called into operation. Moreover, because the person is agreed to have a disability, the services requested specifically for his or her support will be ‘disability services’ within the meaning of s 3(1). That in turn will attract the role of the Secretary in funding such services under s 8(1)(a) and her power to allocate funds under s 9(1). Agreeing to a request therefore indicates to a person that their disability has been acknowledged and accepted, and that they are therefore suitable, and eligible, to receive services in respect of it when funding becomes available.
For the reasons stated, s 49(2) does not give rise to the statutory duty for which the applicant contends. We would grant leave to appeal, but would dismiss the appeal.
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