CSK v Secretary, Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2016-11-02

Introduction

The applicants, CSK and CSL, seek review of a decision of the respondent, the Secretary of the Department of Family and Community Services, to decline an assessment of their suitability to be approved to adopt the niece of CSK, under the NSW Adoption Act 2000. The niece of CSK is a citizen of Thailand.
The respondent has raised a preliminary issue in that it contends the decision for which the applicants seek review is not a decision that is reviewable by the Tribunal. Hence, the Tribunal had no jurisdiction to hear and determine the applicants' review application. The applicants argued the Tribunal did have jurisdiction and they relied on the decision of the Tribunal in BWO and BWP v Barnardos Australia [2015] NSWCATAD 216.
I heard the application of the respondent on 2 November 2016. Both parties provided written submissions for the purpose of the hearing. I reserved my decision at the conclusion of the hearing.
Subsequent to the hearing, CSL emailed further written submissions to the Registry. I understand a copy was forwarded to the respondent.
I have carefully considered the submissions of the parties. For the reasons set out below, I find, on the proper construction of s 189 of the Adoption Act, that the Tribunal does not have jurisdiction to review the decision for which the applicants seek review. I stress my decision is based on the construction of s 189 and related provisions in the Adoption Act and the Adoption Regulation 2015 (NSW) and I have not given any consideration to the merits of the respondent's decision.

Civil and Administrative Tribunal Act

Section 30(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator is set out in the Administrative Decisions Review Act 1997 (NSW) (ADR Act)

Administrative Decisions Review Act

Section 7(1) of the ADR Act defines the term "administratively reviewable decision" as a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Section 9(1) of the ADR Act provides that the Tribunal has jurisdiction to review an administrative decision (or class of decisions) of an administrator, if the "enabling legislation" provides that applications may be made to the Tribunal to review that decision (or class of decisions).
The term "enabling legislation" is defined in subsection 4(1) of the ADR Act to mean: "enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters."

Community Services (Complaints, Review and Monitoring) Act

For the purpose of this application the "enabling legislation" is the Community Services (Complaint, Reviews and Monitoring) Act 1993 (Community Services Act). The provisions relevant to administrative review by the Tribunal are contained in Part 5 of that Act. Section 28 in that Part provides: "28 Applications to Tribunal for administrative reviews of decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of any of the following decisions: (a) a decision that is an administratively reviewable decision under section 193 of the Adoption Act 2000 …, (a1) … (b) a decision made by a person or body under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this section, (c) …"
The term "community welfare legislation" is defined in s 4(1) and includes the Adoption Act 2000 (NSW) (Adoption Act) and any instrument in force under that Act.

Adoption Act

Section 193 Adoption Act is in the following terms: "193 Decisions that are administratively reviewable by Civil and Administrative Tribunal (cf AC Act ss 14, 67A, AI Act s 36) (1) Each of the following decisions when made by the relevant decision maker is an administratively reviewable decision for the purposes of section 28 (1) (a) of the Community Services (Complaints, Review and Monitoring) Act 1993: (a)-(d) (Repealed) (e) a failure or refusal to supply any adoption information to a person, or to authorise the Registrar or another information source to do so under Chapter 8, (f) a failure or refusal to enter the name of any person in a register under Chapter 8, (g) a failure or refusal to arrange a reunion or to take any action to locate a person under Part 5 of Chapter 8, (h) a failure or refusal to approach a person who has lodged a contact veto in accordance with a request made under section 161, (i) a decision made under or for the purposes of this Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this section. (2) Despite section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993, an application cannot be made to the Tribunal under that section until the decision concerned has been reviewed under section 192 (Internal review) of this Act."
Chapter 8 of the Adoption Act contains provisions concerning "adoption information." The provisions in this Chapter created the establishment and maintenance of a Reunion and Information Register of adopted children and their birth parents. The Chapter also contains provisions relating to the rights of an adopted child, the birth parents of that child and the adoptive parents of that child to access birth certificates and the rights of such persons to lodge a request to be given advance notice before personal information about that person is given to another person, the lodgment of a contact veto.
The term "relevant decision maker" is defined in s 189 to mean the respondent (i.e. the Secretary), or "in the case of a decision made under or for the purposes of this act by another person - that person."
The term "reviewable decision" is also defined in s 189 of the Adoption Act to mean: "reviewable decision means: (a) a decision of the relevant decision maker that may be the subject of an application to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 for the purposes of section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993, or Note. Section 193 sets out the decisions of the Secretary and other relevant decision makers under this Act that are administratively reviewable by the Civil and Administrative Tribunal for the purposes of section 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993. (b) any decision made under or for the purposes of this Act by the relevant decision maker that is a decision within a class of decisions prescribed by the regulations for the purposes of this definition."

Adoption Regulation

Clause 125 of the Adoption Regulation 2015 (NSW) A "125 Reviewable decisions (1) The following classes of decision of the Secretary or a principal officer are prescribed for the purposes of paragraph (b) of the definition of reviewable decision in section 189 of the Act: (a) a decision to decline to assess an applicant as suitable to adopt a child or a particular child, (b) a decision to decline to approve the applicant as suitable to adopt a child or a particular child, (c) a decision to revoke the approval of the applicant as suitable to adopt a child or a particular child, (d) a decision to approve the applicant as suitable to adopt a child or a particular child subject to conditions. (2) The following classes of decision of the Children's Guardian are prescribed for the purposes of section 193 (1) (i) of the Act: (a) a decision to grant or refuse an application for accreditation, (b) a decision as to the specification of the adoption services that may be provided by an accredited adoption service provider and any variation of such a decision, (c) a decision to impose or not to impose a condition on the accreditation of an adoption service provider or the process of accreditation as an adoption service provider, (d) a decision to vary or revoke any such condition, (e) a decision to shorten the accreditation period, or suspend or cancel the accreditation, of an accredited adoption service provider (other than such a decision requested by an accredited adoption service provider), (f) a decision to refuse to make a decision referred to in this subclause that the Children's Guardian is empowered and has been requested to make."

Contentions of the respondent

The respondent contends, on its proper construction s 189 of the Adoption Act defines reviewable decisions in two ways: 1. those decisions that are externally reviewable by the Tribunal for the purposes of s 28 of the Complaints Act (i.e. those decisions that fall within s 193 of the Adoption Act), and 2. those which are not (i.e. those that fall within cl 125 of the Adoption Regulation).
It is the former decisions ((a) above) and not the latter ((b) above), which are reviewable by the Tribunal. The latter, the respondent contends are only reviewable internally and not externally by the Tribunal.
In this regard, the respondent notes that cl 125(1) of the Adoption Regulation expressly provides that the decisions prescribed in that clause are prescribed for the purpose of s 189(b) of the Adoption Act. That is, they are not prescribed for the purpose of s 189(a) or s 28(1)(a) of the Community Services Act.
The respondent also argues that the decision of the Tribunal in BWO and BWP v Barnardos Australia [2015] NSWCATAD 216 should not be followed. It was noted that in this decision the Tribunal gave no consideration to the proper construction of s 189 of the Adoption Act.

Contentions of the applicants

The applicants contend that paragraph (a) and (b) of s 189 of the Adoption Act should be read together. As I have already noted, the applicants argue I am bound by the decision of the Tribunal in BWO and BWP v Barnardos Australia, in which the Tribunal found that a decision made by the respondent or a relevant decision maker under cl 125 of the Adoption Regulation was a reviewable decision by the Tribunal: see BWO and BWP, at [13].
The applicants also argue that cl 125(2) of the Adoption Regulation is not the "sole provider of the classes of decisions regulated to satisfy s 193." In this regard the applicants point to cl 46 and 47(2)(b) of the Adoption Regulation as being a source of power to review a decision of the respondent. Those clauses relevantly provide: "46 Assessment of applicants for adoption (1) The relevant decision-maker may: (a) decline to assess, or (b) approve or approve subject to conditions, or (c) decline to approve, an applicant as suitable to adopt a child or a particular child. (2) Without limiting subclause (1), the relevant decision-maker may decline to assess, or decline to approve, an applicant or applicants as suitable to adopt a child if the applicant or applicants have made an application to another relevant decision-maker and that other decision-maker: (a) is assessing the suitability of the applicant or applicants to adopt the child or a particular child, or (b) has approved, or approved subject to conditions, the applicant or applicants as suitable to adopt a child or particular child. (3) … 47 Notification of assessment of applicants for adoption (1) The relevant decision-maker is to advise the applicant of the decision by notice in writing served personally or by post as soon as practicable after the decision is made. (2) The notice is to include the following: (a) a copy of any assessment report or other report concerning the applicant (other than any criminal record check, accredited adoption service provider check, Community Services check, designated agency check or confidential referee report) considered by the relevant decision-maker in assessing the applicant, (b) written advice of the applicant's right to request reasons for, and apply for a review of, the decision under Chapter 10 of the Act."
The applicants contend the respondent has not dealt with their request for assessment in accordance with the abovementioned requirements, other than to inform them of their right to seek "an internal review" and then to inform them of a right to seek review by the Tribunal. This advice, the applicants contend confers Tribunal with jurisdiction in accordance with ss 189, 192(8) and 193 of the Adoption Act and cl 47(2)(b) of the Adoption Regulation.

Consideration

The starting point is an analysis of the decision for which the applicants seek review. The decision the subject of review is that of Ms Maher, which the applicant contends to be a decision made, or purported to be made under cl 46(1)(a) of the Adoption Regulation: see ADR Act, s 6(3) which includes within the meaning of the word "decision" a decision that purports to be made under the enabling legislation.
In my opinion, the decision of Ms Maher is not a decision she made, or purports to have made, under cl 46 of the Adoption Regulation.
While she could have worded her decision in terms other than "decline", Ms Maher did not say her decision was made pursuant to that clause. Nor, in my opinion, did she purport to have made the decision pursuant to that clause. As Ms Maher explained in her reasons for decision, her decision was based on there being no policy or statutory requirement for the respondent to prepare a s 91 report or an assessment under Part 3 of Chapter 4 of the Adoption Act. Her reasoning was based on the fact that the applicants' adoption application to the Supreme Court was made in their individual capacity as prospective adoptive parents: Adoption Act, s 87(1)(a). As Ms Maher pointed out, because the applicants are relatives of CSK's niece, the respondent's consent to their adoption application was not required: Adoption Act, s 87(2). Nor did the assessment of prospective adoptive parents provisions in Part 3 of Chapter 4 of the Adoption Act and Part 3 of the Adoption Regulation apply.
Furthermore, s 91 did not place an obligation on the respondent to prepare a report for the Court, unless the respondent considers it appropriate to provide such a report (s 91(3), or the Supreme Court requires the respondent to do so (s 91(4)). As at the time of hearing this application, the respondent has not considered it appropriate to prepare such a report and the Supreme Court has not ordered the respondent to prepare the report, it will be for the applicants to obtain such a report from an "authorised person," as defined in s 91(2A). . Hence the obligation, if any, at the time the applicants made their request to the respondent for a s 91 report was on the applicants.
My finding that the decision of the respondent the subject of review was not a decision made pursuant to clause 46 of the Adoption Regulation is sufficient to dispose of this application. However, in the event I am wrong I have also considered whether a decision under clause 46 of the Adoption Regulation is a decision that is reviewable by the Tribunal.
In this regard, I agree with the parties that this turns on the proper construction of the meaning of "reviewable decision" in s189 of the Adoption Act and the terms of ss 192 and 193 of that Act and cl 125 of the Adoption Regulation. That Ms Maher said in her decision that the applicants had a right to seek external review by the Tribunal is of no relevance to this issue.
While I am not bound by decisions previously made by the Tribunal at first instance, I agree they should be followed, unless I am persuaded a particular decision can be distinguished from the matter that is before me, or I am persuaded the decision was incorrectly decided.
In BWO and BWP, the applicants were authorised carers, who had initially brought their application for review of a decision of the respondent under s 245 of the Children and Young Person (Care and Protection) Act and not the Adoption Act. It was in this context that I made the stay application.
In BWO and BWP, the Tribunal was not required to consider the proper construction of the meaning of "reviewable decision" in s 189 of the Adoption Act. Nor did the respondent agency in those proceeding raise this as an issue. Hence, no consideration was given to the meaning of the term "reviewable decision" in that matter. Furthermore, the applicants in that matter appear to have been prospective adoptive parents under Part 3A of Chapter 4 of the Adoption Act, as they were authorised carers of the child they sought to adopt. This is not the case in this application.
Hence, I have not considered that decision any further.
In my opinion, the respondent's construction of the meaning of "reviewable decision" in s 189 of the Adoption Act is correct in that it described two classes of decisions made under that Act that are reviewable. These are: 1. those that "may be the subject of an application" to the Tribunal under the ADR Act "for the purpose of section 28" of the Community Services Act; and 2. any decision within a class of decisions prescribed by the Adoption Regulation "for the purpose of this definition."
In my view, these are two distinct classes of decisions that are reviewable decisions and in this context the word "or" can be construed to mean "and". However, the meaning of "reviewable decision" does not make any distinction as whether the decisions in each category are either internally and/or externally reviewable. Nor does the meaning of "reviewable decision" in this section vest the Tribunal with jurisdiction to review the decisions falling within para (a) or (b) above.
Section 192 of the Adoption Act makes provision for internal review of a "reviewable decision". It is clear from the terms of that provision that a right to seek internal review applies to all decisions falling within the meaning of para (a) and para (b) of the meaning of "reviewable decision" in s 189. However, this does not mean that these decisions are externally reviewable by the Tribunal. As I have mentioned an administrative decision is only reviewable by the Tribunal if the "enabling legislation" provides that the decision is reviewable by the Tribunal: ADR Act, s 9.
Section 192 does not contain any provision within it providing that the decisions, to which that section applies, can be externally reviewed by the Tribunal.
The Tribunal's jurisdiction to externally review a decision made under the Adoption Act are only enlivened by the terms of s 28(1)(a) or (b) of the Community Services Act. Section 28(1)(a) expressly makes reference to decisions falling within s 193 of the Adoption Act.
S 193 of the Adoption Act also expressly provides that the decisions made in respect of the matters referred to in that section are reviewable for the purposes of s 28(1)(a) of the Community Services Act. Hence they are reviewable by the Tribunal: see s 9(1) of the ADR Act. The decision for which the applicant seeks review does not fall within that section.
Other than cl 125(2) of the Adoption Regulation, I have not been pointed to any other provisions, under the Adoption Act, the Adoption Regulation or any other community welfare legislation that expressly provides that a particular decision(s) is reviewable for the purposes of s 128(1)(b) of the Community Services Act. I note the decisions to which cl 125(2) applies, are decisions of the Children's Guardian, which are expressly stated to be reviewable for the purposes of s 193(1)(i) of the Adoption Act. That is, they fall within s 28(1)(a) of the Community Services Act.
Again, the decision for which the applicants seek review does not fall within cl 125(2) of the Adoption Regulation.
This leaves cl 125(1) of the Adoption Regulation - which is relevant to the decision for which the applicant seeks external review.
Subclause 125(1), as I have noted at [24] above, expressly provides that the decisions falling within that subclause are those prescribed for the purpose of para (b) of the definition of "reviewable decision" in s 189 of the Adoption Act. In my view, these words are unambiguous, especially when considered in the context of subclause 125(2) and ss 189, 192 and 193 of the Adoption Act. That is, subclause 125(1) cannot be construed to include para (a) of the definition of "reviewable decision" in s 189 as contended by the applicant. Had Parliament intended this to be the case, there would not have been a need to include the reference to para (b) and it would have been sufficient to have that subclause also being prescribed for the purposes of s 193(1)(i) of the Adoption Act.
Accordingly, I find a decision of the respondent under cl 46(1)(a) of the Adoption Act is not a decision that is reviewable by the Tribunal. It is internally reviewable under s 192 of the Adoption Act, but not externally reviewable.

Conclusions

For the reasons set out above I find the decision for which the applicant seeks review is not a reviewable decision falling within s 189 of the Adoption Act. In the event I am wrong and the decision is a reviewable decision, I find that the decision is not a decision that is reviewable by the Tribunal. Hence, on the basis of either of my findings, the Tribunal has no jurisdiction to hear and determine the applicant's application.
Accordingly, the appropriate order is to dismiss the applicant's application. ORDER: The applicants' application for review is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2016

At a glance

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Decision date

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Judgment (12 paragraphs)

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Legislation Cited (5)

Cases Cited (1)

Cited By (2)