Hunter Support Services Pty Ltd v The Children's Guardian

Blue Metal Industries Ltd v R.W. Dilley [1970] AC 827 Duperouzel v Cameron [1973] WAR 181 CASES CITED : Hall v Jones (1942) 42 SR(NSW) 203 Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613B Taxation, Deputy Commissioner of (NSW) v Mutton (1988) 79 ALR 509

Hunter Support Services Pty Ltd - Plaintiff PARTIES : The Children's Guardian - Defendant

R.H. Taperell - Plaintiff COUNSEL : S. Free (Sol) - Defendant

Cantle Carmichael Lawyers - Plaintiff SOLICITORS : Crown Solicitor - Defendant

1 The Plaintiff's Summons raises a short but novel point of construction as to the meaning of the word "individual" in the Regulations made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (respectively "the Regulations" and "the Act"). 2 The Plaintiff company carries on the business of providing residential care placements for children in New South Wales. It has employed a large number of people to provide short, medium and long term care for children, as required by the Department of Community Services. It currently holds an interim accreditation as a "designated agency" under Regulation 22A of the Regulations. 3 Under Regulation 20, a "designated agency" may authorise "an individual" to be an "authorised carer" of children for the purposes of the Act and the Regulations. The Plaintiff, as a "designated agency", has hitherto authorised its employees as "authorised carers". 4 The Plaintiff now intends to restructure its business. Rather than directly employing "authorised carers", it intends to enter into contracts with subsidiary companies whereby those subsidiaries will provide care; the subsidiaries will then directly employ persons whom the Plaintiff will authorise under Regulation 20 as "authorised carers". 5 The Defendant is appointed under Chapter 10 of the Act to perform various functions under the Act and Regulations. By clause 36(1) of the Regulations, the Defendant is responsible for the accreditation of "designated agencies". 6 The Defendant contends that Regulation 20 of the Regulations does not permit the Plaintiff, as a "designated agency", to authorise as "authorised carers" persons who are employees of another corporation. The Defendant says that a "designated agency" may authorise as an "authorised carer" only a natural person who is employed directly by the "designated agency" or a natural person who is employed by another natural person. 7 The Plaintiff seeks declaration that: "On the true construction of Regulation 20(1)(c) of the Children and Young Persons (Care and Protection) Regulation, 2000 (NSW), a designated agency, within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), may authorise as an authorised carer a person who is employed by a body corporate which is engaged by the designated agency under a contractual arrangement (other than as an employee) to care for children and young persons in the course of his of her duties." 8 Regulation 20(1)(c) relevantly provides: 1) A designated agency may authorise an individual belonging to one of the following classes of individuals as an authorised carer, but only if the designated agency has carried out an assessment of the individual under subclause (3) and has determined, following that assessment, that the individual is suitable to be an authorised carer:

(b) an individual engaged by the designated agency under a contractual arrangement (other than as an employee) to provide care for children and young persons,

(c) an individual who is employed by an individual referred to in paragraph (b) to care for children and young persons in the course of his or her duties,

(d) …" 9 The question for decision is whether "individual", where secondly appearing in sub-clause (1)(c), includes "corporation" or is confined to "natural person". The scheme of the legislation

10 Chapter 8 of the Act establishes a regime for out-of-home care of children and young persons. Section 136(1) of the Act provides that out-of-home care may only be provided by an "authorised carer". Section 137 of the Act relevantly provides: "1) In this Act, authorised carer means:

(b) a person who, in accordance with the regulations, is authorised as an authorised carer by a designated agency, or

(2) The regulations may make provision for or with respect to the following:

(a) the making and determination of applications for authorisation,

(b) the authorisation of persons, by designated agencies or otherwise, as authorised carers,

(c) the imposition of conditions of an authorisation, including, but not limited to: (i) the maximum number of children and young persons who may be placed in the care of an authorised carer (including the maximum number in specified age groups), and (ii) the identification or description of children and young persons who may be placed in the care of an authorised carer,

(d) the period for which an authorisation remains in force,

(e) the cancellation or suspension of an authorisation." 11 Section 139 provides: "1) In this Act, designated agency means:

(b) an organisation that arranges the provision of out-of-home care,

if the department or organisation is accredited for the time being in accordance with the regulations.

(2) The regulations may prescribe the standards with which an applicant for accreditation must comply in order to be accredited as a designated agency." 12 For the purposes of s.137(1)(b) of the Act, Regulation 20 establishes a procedure whereby a person may be authorised as an "authorised carer" by a designated agency. It is convenient to set out here the whole of that Regulation: "1) A designated agency may authorise an individual belonging to one of the following classes of individuals as an authorised carer, but only if the designated agency has carried out an assessment of the individual under subclause (3) and has determined, following that assessment, that the individual is suitable to be an authorised carer:

(a) an employee engaged by the designated agency as an employee to provide care for children and young persons,

(b) an individual engaged by the designated agency under a contractual arrangement (other than as an employee) to provide care for children and young persons ,

(c) an individual who is employed by an individual referred to in paragraph (b) to care for children and young persons in the course of his or her duties ,

(d) an individual who cares for children and young persons in his or her private capacity.

(2) A designated agency may authorise an employee referred to in subclause (1) (a) to be an authorised carer without carrying out an assessment under subclause (3) of the individual's suitability.

(3) A designated agency may not determine that an individual is suitable to be an authorised carer under subclause (1) unless:

(a) the individual has furnished to the designated agency such information as the agency may reasonably require in order to assess the individual's suitability to be an authorised carer, and

(b) the individual has successfully completed such course of training as the designated agency may reasonably require in order to ensure that the individual is capable of exercising the functions of an authorised carer, and

(c) the designated agency has carried out employment screening of the individual under Part 7 of the Commission for Children and Young People Act 1998 .

Note . Section 37 of the Commission for Children and Young People Act 1998 provides that it is the duty of an employer to carry out all the relevant procedures of employment screening of a preferred applicant for primary child-related employment before employing the preferred applicant. Primary child-related employment is defined as including child-related employment involving the fostering of children.

The Child Protection (Prohibited Employment) Act 1998 prohibits an employer from employing a person in child-related employment without first ascertaining whether the person has been convicted of a serious sex offence. The Act also prohibits a person who has been convicted of such an offence from applying for, undertaking or remaining in child-related employment.

(4) For the purpose of determining whether an individual is suitable to be an authorised carer, the designated agency may make such inquiries as to the individual, and as to each individual who is aged 14 years or above in the household of the individual, as the designated agency considers appropriate, (including, subject to the Criminal Records Act 1991 , inquiries as to an individual's criminal record).

(5) The principal officer of a designated agency is to carry out the functions of the agency under this clause, unless the Children's Guardian approves the carrying out of those functions by another officer or employee of the designated agency." (Emphasis added.) 13 Neither the Act nor the Regulations provide a definition of "individual". However, the Interpretation Act 1987 (NSW) defines "individual" in s.21 as "any natural person". The Interpretation Act "applies to an Act or instrument except in so far as the contrary intention appears in this Act or in the Act or instrument concerned": s.5. 14 The question for determination is: does anything in the Act or the Regulations indicate an intention that "individual" where secondly appearing in Regulation 20(1)(c) does not mean "natural person" in accordance with the definition in the Interpretation Act but, rather, is wider and encompasses "corporation"? Consideration

15 It is too well established to require elaborate reference to authority that general definition clauses, such as those appearing in the Interpretation Act, are intended to elucidate, not to defeat, the evident purposes of the legislation to which the definitions are made to apply. Accordingly, the definitions themselves must be interpreted reasonably in the context of the relevant legislation into which they are imported. 16 Nevertheless, one must not be too ready to find that a word or phrase defined in the Interpretation Act does not have the meaning ascribed to it in an Act or instrument to which the Interpretation Act applies. Parliamentary Counsel pore over every word of a draft Act or Regulation: in that exercise, the Interpretation Act is always the first resort of reference. Accordingly, if a word in an Act or Regulation defined in the Interpretation Act is to bear a meaning different from that definition, the question is not "does the section or regulation still make sense if the word has a different meaning", but is, rather, "does the context and purpose of the section or regulation clearly require a departure from the definition of the word in the Interpretation Act". That is a fairly high hurdle to jump. 17 In answering this question, the purpose of the particular section or regulation may certainly be gleaned from a consideration of the Act or Regulations as a whole, while always bearing in mind, nevertheless, that the same word used in different contexts and in different parts of an Act or Regulation may have different meanings: see generally Duperouzel v Cameron [1973] WAR 181, at 182-3; Knightsbridge Estates Trust Ltd v Byrne [1940] AC 613, at 621; Hall v Jones (1942) 42 SR(NSW) 203, at 208; Blue Metal Industries Ltd v R.W. Dilley [1970] AC 827, at 846; Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509, at 512-513. 18 In Regulation 20(1) there is to be found the clearest of intentions that "individual" where secondly appearing in sub-clause 20(1)(c) is to have the same meaning whenever the word is used in that Regulation and that the meaning is as defined in s.21 Interpretation Act, i.e. "natural person". 19 This is so because "individual" where secondly appearing in paragraph (1)(c) appears as part of a phrase which must be taken as a whole, namely, "an individual referred to in paragraph (b)". An "individual referred to in paragraph (b)" is one of the four classes of "individuals" who may be authorised as carers under Clause (1) and that clause makes it quite clear that each class of individual must be subject to assessment under Clause (3) in order to qualify for authorisation as a carer. 20 Clause (3) provides three requirements for assessment of carers. The requirement in paragraph (b) that an individual must satisfactorily complete a course of training as a carer, and the requirement in paragraph (c) that the individual must be subjected to "employment screening" make it obvious that the "individual" who is to comply with those requirements can only be a natural person. Mr Taperell of Counsel, who appears for the Plaintiff, concedes that this must be so. 21 It follows that Regulation 20(1)(b), in referring to an "individual", is referring to a natural person. Likewise, it follows that the phrase "individual referred to in paragraph (b)" appearing in Regulation 20(1)(c), given its ordinary reading, refers to a natural person. Is there anything in the Act or Regulations which clearly shows that that is not the result which Parliament intended? 22 Mr Taperell frankly and properly concedes that he can point to nothing in the Act or the Regulations which clearly indicates the requisite contrary intention. His argument is founded solely on commercial convenience. He says that Regulation 20(1)(c) encompasses "employees" within the classes of permitted authorised carers and that it is a commonplace fact of commercial life that many employees are employed by companies. Mr Taperell says that "individual referred to in paragraph (b)" simply means one who is in the position contemplated by paragraph (b), that is, an entity, not an employee, which is contracted to provide care services by a designated agency. 23 I am unable to accept this argument. The word "individual" is deliberately used in Regulation 20(1)(c); it causes no violence whatsoever to the meaning and effect of any part of Regulation 20 to give the word the same throughout the Regulation. 24 Mr Taperell was not able to suggest any reason of policy under the Act which would be frustrated if "individual" where secondly appearing in Regulation 20(1)(c) meant "natural person", nor any reason of policy under the Act which would be assisted if "individual" included "corporation". 25 Indeed, to the contrary of Mr Taperell's submission, I discern a clear policy in Regulation 20 that a designated agency, dealing as it does in the highly sensitive area of child care, should, in authorising carers, be required always to deal directly with natural persons whose antecedents, character and qualifications may much more directly be appreciated than if the dealing is carried out through interposed corporate structures. 26 It is consistent with such a policy that the "individual" referred to in Regulation 20(1)(b) be a natural person who is engaged by the designated agency not as an employee but as an independent contractor. 27 For these reasons, I conclude that "individual" where secondly appearing in Regulation 20(1)(c) does not include "corporation". Order

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