Worthy v Minister, Community Services

[2001] NSWADT 195

CITATION:	Worthy -v- Minister, Community Services [2001] NSWADT 195
DIVISION:	Community Services Division
PARTIES:	APPLICANTS Anthony and Robyn Worthy RESPONDENT Minister, Community Services
FILE NUMBER:	014035
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	08/01/2001
DATE OF DECISION:	11/22/2001
BEFORE:	Britton A - Judicial Member; Groth D - Member; Dobell D - Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Children (Care and Protection) Act 1987
CASES CITED:	The Mutual Life and Citizens’ Assurance Company Ltd -v- Attorney General (Qld) & anor (1961) 106 CLR 48
REPRESENTATION:	APPLICANTS In person RESPONDENT L Broune, solicitor
ORDERS:	Application 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.

1 Anthony and Robyn Worthy (the applicants) have lodged an application with the Administrative Decisions Tribunal for a review of a decision made by the Department of Community Services (the Department) to revoke their approval to provide foster care. This is a decision “on the papers,” pursuant to s.76 of the Administrative Decisions Tribunal Act , 1997 (the Tribunal Act) and concerns the Tribunal’s jurisdiction to entertain this application.

Background
2 In March 1999 the applicants were approved by the Department’s Far North Coast Area office to care for children under the Department’s Short Term Intensive Support Program. This “approval” followed the applicants undertaking sixteen hours of carer training, observations over an eight-week period with an adolescent placement and a series of formal interviews conducted by the Department.

3 Between March 1999 and May 2001 (the relevant period) the Department placed eight children in the care of the applicants. The last child placed with the applicants was removed on 4 May 2001 having been placed with the applicants on 12 April 2001. This placement was terminated following various allegations levelled at the applicants. The ground or grounds on which the Department decided to terminate this placement are irrelevant to the issue before us which is whether the Tribunal has jurisdiction to entertain the application.

4 By letter dated 18 May 2001, the Department advised the applicants "the recent child protection assessment has resulted in a decision to revoke the Department’s approval for you to provide foster care to children." The applicants seek a review of that decision.


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

6 Section 38 of the Tribunal Act provides that:

The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator:
(a) In the exercise of functions conferred or imposed by or under the enactment, or
(b) in the exercise of any other functions of the administrator identified by the enactment.
7 Section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 states that:
A person may apply to the Tribunal for a review of any of the following decisions:
(a) A decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this paragraph.
8 Section 112 of the Children (Care and Protection) Act 1987 (the Act) relevantly provides:
For the purposes of section 40 (1) (a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal:
(a) a decision of the Minister or the Director-General, as the case may be:
(i) To grant a licence or authority,
(ii) To grant a consent,
(iii) To impose a condition on a licence or authority,
(iv) To revoke or vary any condition of, or to impose a further condition on, a licence or authority,
(v) To grant an application to vary a fostering authority, or
(vi) to suspend or revoke a licence or authority,
as referred to in Schedule 1,
Conclusions
9 The jurisdiction of the Tribunal to entertain the application before us requires that the decision made by the Minister or the Director-General of the Department is one of the types of decisions described in s. 112 of the Act. It may be that the ground or grounds on which the applicants rely to review the decision are shown to be unsustainable. However, that does not deprive the Tribunal of jurisdiction.

10 The respondent contends that the Tribunal has no jurisdiction to determine the application as the Minister or her delegate has not made a decision of the type described by s.112 of the Act. The respondent asserts that the decision communicated to the applicants by the Department by letter dated 18 May 2001 was not a decision to revoke "a licence or authority" for the purpose of s. 112 (a)(vi) of the Act and cannot otherwise be characterised as a decision falling within any other provision of s. 112 of the Act. Rather, according to the respondent, the only decision made by the Department was a decision to revoke a carer’s approval and as such is not reviewable by the Tribunal.

11 What then is a licence or authority, as referred to in Schedule 1 of the Act? Schedule 1 of the Act defines "authority" as "a private fostering agency authority or a fostering authority." "Fostering authority" is defined in s. 3 of the Act to mean "an authority that has been granted as a fostering authority under clause 3 of Schedule 1 and that is in force." Clause 3 of Schedule 1 sets out the procedures to be followed by the Minister when a person makes an application for a fostering authority.

12 Part 3 Division 4 of the Act deals generally with fostering authorities. Section 42(1) makes it an offence for a person who has in his or her care one or more children for the purpose of fostering not to have a fostering authority. Sections 42(2)(a) provides that s. 42(1) does not apply in respect of:

(a) A child who has been placed in the care of the person by an authorised private fostering agency; and
(b) A child who has been placed in the care of the person by, or with the written approval of, the Minister or the Director-General.
13 The respondent submits that fostering authorities are only necessary for persons who foster children independently of DOCS or a private agency. Section 42 makes clear that it is unnecessary for a person who falls within s. 42 (2) to hold a foster authority. However, there is nothing in the Act to indicate that a person in whose care a child has been placed by an authorised private fostering agency or on the written authority of the Minister or the Director-General cannot hold a relevant authority.

14 The mere fact that the applicants were not required to hold a foster authority to avoid the provisions of s. 42(1) of the Act of itself does not establish that a foster authority was not granted. We must therefore examine on what basis the applicants were permitted to foster children throughout the relevant period.

15 The uncontested evidence before us is that on 1 March 1999 the applicants were “approved” as foster carers by the Department’s Far North Coast Area Office to participate in the Deaprtment’s Short Term Intensive Support Program. Nor is it in issue that the Department did not advise the applicants in writing that an authority or licence, relevantly a foster authority, had been granted to them. It would appear from the submissions of the parties that the applicants were at no time advised in writing on what basis they were approved to act as foster parents.

16 We understand the applicants to argue that the mere fact that the Department failed to formally advise them that they had been granted a foster authority does not of itself establish that such authority was not granted. The applicants contend that it is open for the Tribunal to infer from the circumstances surrounding their “approval” to participate in the Department’s Short Term Intensive Support Program that they were in fact granted a relevant authority notwithstanding any procedural shortcomings on the part of the Department.

17 The Act and the Children (Care and Protection) Regulation 1996 (the Regulations) set out various requirements in respect to the issue of foster authorities. Clause 71 of the Regulations prescribes that an application for an authority must be in an approved form and accompanied by such information as the Minister may reasonably require assisting in the determination of the application. Clause 75 provides that a fostering authority is to be in such form as may be approved. Section 43 of the Act provides that a fostering authority shall specify the person to whom it was granted and specify the number (not exceeding five) of children to whom it applies.

18 The respondent asserts that the applicants did not complete the standard Departmental application form for an "Authority to Foster" but rather completed a document entitled “Application to Foster”. Neither document has been provided to the Tribunal.

19 We understand the applicants to argue that it can be inferred by the facts of this case that they in fact operated under a fostering authority, notwithstanding that a relevant authority was not issued in the form prescribed by the Act and the Regulations. We are not persuaded by this argument. This argument would hold greater weight had it been necessary for the applicants to hold a foster authority in order to care for the children placed in their care by the Minister or the Director General throughout the relevant period. However this was not the case: s. 42(2) (b) of the Act makes it clear that the applicants were not required to hold a foster authority for the purpose of caring for children placed in their care throughout the relevant period.

20 The respondent concedes that there are marked similarities between the assessment and approval process undergone by the applicants and the corresponding procedures prescribed by the Act and the Regulations in respect of applicants for a Fostering Authority. However, the fact remains that the applicants did not apply for a foster authority nor were they granted a foster authority. And, importantly, they did not require a foster authority.

21 It is clear that that the applicants were assessed and finally approved by the Department to participate in its Short Term Intensive Support Program. However, we are not persuaded on the evidence before us that an authority, as defined in Schedule 1 clause 1 of the Act, was granted to them. Therefore the Department’s decision is not a reviewable decision as defined in s.112 of the Act and accordingly the Tribunal, being without jurisdiction, is obliged to dismiss the application.