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[2011] NSWCA 253
Court of Appeal (NSW)
2011-07-12
Allsop P, Beazley JA, As Beazley JA
Original judgment source is linked above.
Judgment 1ALLSOP P : I have had the advantage of reading the reasons of Beazley JA. I agree with them. 2Here, there was a question of law involved in the appeal: the proper construction of the relevant statutes, and, in particular, the Administrative Decisions Tribunal Act 1997 (NSW), s 6. The construction of that provision by the Appeal Panel was, with the utmost respect, wrong. This being so, there was certainly no question of jurisdiction. (I leave to one side whether there was truly a question of jurisdiction even with that question live.) As Beazley JA says, the argument really was about particulars and the adequacy or clarity of the information in the summons to enable the review to proceed promptly and efficiently. 3The fact that all the relevant centres had closed should have been brought to the Court's attention. Both parties were responsible for this. 4The Minister, in this Court, as before the Appeal Panel, did not contend for the construction of s 6 that found favour with the Appeal Panel; though, it should be said, the submissions on this question in this Court were far from pellucid. 5As the reasons of Beazley JA reveal, the submissions of the Minister (in light of the concession on the construction of s 6) were somewhat opaque. It is to be recalled in this respect that the so-called jurisdictional point was taken initially when the Minister propounded a restricted view of s 6. 6There was a reason remaining after the closure of the centres for the appellant to seek to have the orders of the Appeal Panel set aside - the precedent (at least in the Tribunal and Appeal Panel) about the construction of s 6. That purpose of the appeal could have been achieved, efficiently and promptly, by the Minister agreeing to the orders of the Appeal Panel being set aside, to an end to the litigation and to a submission on the error of construction by the Appeal Panel. Instead, an entirely moot appeal was run with orders of the Appeal Panel being defended by the Minister in the way described by Beazley JA. The ventilation of these matters through the submissions that were filed and made, with the actual result moot, and without informing the Court of that fact was wasteful of costs and time (the Court's and the parties'). 7In these circumstances, the appeal should be allowed, the orders of the Appeal Panel identified by Beazley JA should be set aside and the respondent should pay the appellant's costs. 8BEAZLEY JA : This is an appeal from the decision of the Appeal Panel of the Administrative Decisions Tribunal (the Tribunal) made on 18 June 2010 in which the Appeal Panel determined there was no reviewable decision of the respondent Minister for Disability Services so as to engage the jurisdiction of the Tribunal. 9The proceedings in the Tribunal related to the operation of certain institutional accommodation for disabled persons, known as the Lachlan Centre and the Peat Island Centre. As initially pleaded, a third centre, the Grosvenor Centre, was also subject of the application, but reference to it was withdrawn, as that centre had been closed some time after the application was filed. 10The Lachlan and Peat Island Centres are also now closed. The closure occurred after the Notice of Appeal was filed in this Court, but well before the appeal was set down for hearing. Although both parties were aware of the position, this information was only forthcoming to the Court shortly before the close of the submissions of the Minister. Both parties acted inappropriately in not bringing this to the Court's attention. The Court should have been informed, as soon as that position was known, so as to determine whether the matter should be permitted to proceed when there was no ongoing dispute between the parties. 11When questioned as to why the appeal should not be dismissed, the appellant contended that there was utility in the appeal because there were other proceedings on foot in the Tribunal which raised the same question, which it contended was in issue on this appeal, namely, whether ongoing conduct constituted a reviewable decision for the purposes of the Administrative Decisions Tribunal Act 1997. The appellant submitted that that issue had been wrongly decided by the Appeal Panel and unless corrected the Tribunal, would effectively determine the result, at least at Tribunal level, of the other proceedings. 12The Court does not have an advisory jurisdiction. At the time this appeal was filed, there was a real dispute between the parties, namely, whether the Appeal Panel had erred in holding that there was no reviewable decision of the Minister in respect of the two centres subject of the application. As the centres have been closed, there is now no relevant controversy between the parties in respect of which a decision of this Court would have any effect. In short, in respect of these two centres, the appeal is moot and of no utility. 13As a general rule, the Court, in such circumstances, would not entertain the appeal. However, the rule is a general one only and the Court retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. 14One of the factors which would cause the Court to exercise its discretion and determine the matter is where the decision subject of the appeal is likely to affect other cases: see Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Hope Downs Management Services v Hamersley Iron Pty Ltd [1999] FCA 1652; Bonan v Hadgkiss [2007] FCAFC 113. 15As the appeal had been argued almost to its conclusion when the Court ascertained that there was no dispute between the parties in respect of the Lachlan and Peat Island Centres, I have concluded that the Court ought to determine the issue raised on the appeal, involving as it does the proper consideration of s 6(1)(g), as there is at least one other proceeding on foot where that question will be pivotal to the determination of the proceeding. Had the position between the parties in this case been known to the Court when the matter first became moot, a different position may have been taken.
The application 16The proceedings were commenced in the Tribunal on 6 February 2009 by Application for Review of Decision, in which the appellant, a public interest advocacy organisation, sought review of the Minister's decision, described in the following terms: "The conduct of [the Minister] in continuing to provide the following designated services within the meaning of the Disability Services Act 1993 (the ' Act '): (a) the Grosvenor Centre, (b) the Lachlan Centre; and (c) the Peat Island Centre (together the ' Services ') where the provision of the Services does not confirm [sic] with the objects of the Act and the principles and application of the principles set out in Schedule 1 of the Act." 17The date of the decision was stated to be " ongoing ". 18The reasons stated in the Application for seeking review of the decision were: "1 The Services are designated services within the meaning of the Act as they are provided by the Respondent: clause 5(1) of the Disability Services Regulation 2003. 2. On 8 June 1993 the then Minister declared, pursuant to section 7(1)(b) of the Act, that the Services did not conform with the objects of the Act and principles and application of the principles set out in the Schedule 1 of the Act. 3. On 3 April 1996 the then Minister adopted 'transition plans' within the meaning of the Act to achieve compliance of the Services with the Act. The transition plans for the Grosvenor and Lachlan Centres were due to be implemented by mid 1999 and for the Peat Island Centre by September 2002. 4. The transition plans for the Services were never implemented. 5. The Services do not conform with the objects of the Act and the principles and application of the principles set out in Schedule 1 of the Act. 6. By continuing to provide the Services the Respondent is in breach of his statutory duty in section 6(1) of the Act." 19The Minister raised for determination as a preliminary issue the jurisdiction of the Tribunal to determine the application. The Minister contended that the continued operation of the Lachlan and Peat Island Centres was not a " decision " within the meaning of that term in the Administrative Decisions Tribunal Act . 20The preliminary issue was determined against the Minister by Deputy President Magistrate Hennessy. 21Before dealing with the Deputy President's reasons; it is convenient to first deal with the statutory scheme which governed the functions and duties of the Minister in operating the Centres and the provisions governing the review of decisions made in this regard. It is also pertinent to foreshadow that the case argued by each of the parties both before the Deputy President and before the Appeal Panel needs to be understood, as this will be relevant both to the relief sought in this Court and to costs.
The statutory scheme 22The appeal involves consideration of the following statutes and regulation: the Disability Services Act 1993; the Community Services (Complaints, Reviews and Monitoring) Act 1993; the Community Services (Complaints, Reviews and Monitoring) Regulation 1993 (the Regulation); and the Administrative Decisions Tribunal Act .
The Disability Services Act 23The objects of the Disability Services Act are specified in s 3, which provides, inter alia: " 3 Objects The objects of this Act are: (a) to ensure the provision of services necessary to enable persons with disabilities to achieve their maximum potential as members of the community, and (b) to ensure the provision of services that: (i) further the integration of persons with disabilities in the community and complement services available generally to such persons in the community, and (ii) enable persons with disabilities to achieve positive outcomes, such as increased independence, employment opportunities and integration in the community, and (iii) are provided in ways that promote in the community a positive image of persons with disabilities and enhance their self-esteem ..." 24A " designated service " is defined in s 4 to mean a service provided or funded by the Minister and that is prescribed by the Regulation or belongs to a class of services so prescribed. The Lachlan and Peat Island Centres were " designated services " within the meaning of this provision. 25Section 6 provides: " 6 Minister to ensure that designated services are provided and funded in conformity with the Act (1) It is the duty of the Minister in providing and funding designated services ... to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1." 26The relevant objects of the Act have already been set out. The principles against which the Act is administered and the application of those principles are set out in Schedule 1, relevantly, as follows: " 1 Principles Persons with disabilities have the same basic human rights as other members of Australian society. They also have the rights needed to ensure that their specific needs are met. Their rights, which apply irrespective of the nature, origin, type or degree of disability, include the following: (a) persons with disabilities are individuals who have the inherent right to respect for their human worth and dignity ... (i) persons with disabilities have the right to protection from neglect, abuse and exploitation. ... 2 Applications of principles Services and programs of services must apply the principles set out in clause 1. In particular, they must be designed and administered so as to achieve the following: (a) to have as their focus the achievement of positive outcomes for persons with disabilities, such as increased independence, employment opportunities and integration into the community, (b) to contribute to ensuring that the conditions of the everyday life of persons with disabilities are the same as, or as close as possible to, norms and patterns which are valued in the general community ..."
The Community Services (Complaints, Reviews and Monitoring) Act 27The Community Services (Complaints, Reviews and Monitoring) Act , s 28(1) makes provision for decisions that may be subject of an application for review to the Tribunal. Relevantly, the section provides as follows: " 28 Applications to Administrative Decisions Tribunal for reviews of decisions (1) A person may apply to the Tribunal for a review of any of the following decisions: ... (c) a decision that was made by a relevant decision maker and is of a class prescribed by the regulations for the purposes of this section ..." 28The responsible Minister is a relevant decision maker for the purposes of s 28(1): see s 28(2).
The Regulation 29The Regulation provides, relevantly: " 5 Decisions subject to review by Tribunal (1) Decisions of the following kind are prescribed classes of decisions for the purposes of section 28 (1) (c) of the Act: ... (b) a decision made by the Minister ... to provide, or to continue to provide , a designated service within the meaning of the Disability Services Act 1993, where the provision of the service in accordance with the decision does not conform with the objects of that Act or the principles or applications of principles set out in Schedule 1 to that Act" (emphasis added)
The Administrative Decisions Tribunal Act 30The " general meaning " of " a decision " is defined in the Administrative Decisions Tribunal Act , s 6 as follows: " 6 What is a decision? (1) General meaning A decision includes any of the following: ... (d) imposing a condition or restriction, ... (g) doing or refusing to do any other act or thing. (emphasis added) (2) Decision made under an enactment For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment." 31An " enactment " is defined in the earlier s 5, relevantly, to mean: "5(a) in relation to a reviewable decision - an Act ... or a statutory rule ..." 32Section 8 defines a " reviewable decision " as follows: " 8 What is a reviewable decision? (1) A reviewable decision is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is a reviewable decision if the Tribunal has jurisdiction under an enactment to review the conduct or refusal, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making a reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct." 33Section 38 provides: " 38 Conferral of jurisdiction to review reviewable decisions (1) Conferral of review jurisdiction The Tribunal has jurisdiction under an enactment to review a decision ... if the enactment provides that applications may be made to it for a review of any such decision ... 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. Note. Section 5 defines enactment to mean: (a) in relation to a reviewable decision-an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act), or (b) in any other case-an Act (other than this Act). (2) When statutory rules may confer jurisdiction to review decision Nothing in subsection (1) enables jurisdiction to review a decision to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by an Act (other than this Act)." 34The Administrative Decisions Tribunal Act , Ch 5, Pt 2 makes provision for various duties of an administrator, including to give written reasons for a reviewable decision if a request is made for such reasons: s 49(1). 35Section 49(3) provides: "(3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made." 36An interested party may also apply for an internal review of the decision pursuant to s 53(1). The internal reviewer may affirm, vary or set aside the decision and make a decision in substitution for the decision that is set aside: s 53(5). An internal review is taken to have been finalised if the applicant for review is not notified of the outcome of the review within 21 days after the application for review has been lodged: s 53(9). 37A person is entitled to apply to the Tribunal for a review of a reviewable decision only if, relevantly, an internal review has been finalised: see s 55(1)(b). The time limit for making an application is specified in s 55. In this case, there was either a deemed notification of the outcome of the review pursuant to s 53(9), or a refusal of an internal review notified by the Minister by letter dated 3 July 2008. Accordingly, the time for making the application was 21 days from either the deemed date or 3 July 2008. In either event, the Application was filed out of time. There is no longer any issue about the late filing of the Application, as the time to do so has been extended by the Tribunal. 38Section 58 imposes a duty on the administrator, whose reviewable decision is the subject of the application for review, to lodge with the Tribunal within 28 days a copy of any statement of reasons given under s 49: s 58(1)(a); a copy of any statement of reasons for a decision in an internal review: s 58(1)(a1); and a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal: s 58(1)(b). 39Chapter 5, Pt 3, Div 3 provides for the Tribunal's powers on review. Relevantly, s 63 provides that the Tribunal is to decide what the correct or preferable decision is having regard to the material then before it: s 63(1). For that purpose the Tribunal may exercise all of the functions conferred on the administrator who made the decision, relevantly in this case, the Minister. Section 63(3) then provides: "(3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 40Chapters 7 and 8 deal with internal appeals from the Tribunal to the Appeal Panel. Relevant to this case are the following provisions: " 112 Appealable decisions of the Tribunal (1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal ... made in proceedings for: ... (b) a review of a reviewable decision ... 113 Right to appeal against appealable decisions of the Tribunal (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. ... (2A) ... an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of section 24A) by of the Tribunal except by leave of the Appeal Panel." 41Section 114 governs the functions of the Appeal Panel on the hearing of an appeal restricted to questions of law. It provides: " 114 Appeals on questions of law (1) If an appeal under this Part is restricted to questions of law, the Appeal Panel is to determine the appeal and may make such orders as it thinks appropriate in light of its decision. (2) The orders that may be made by the Appeal Panel on any such appeal include, but are not limited to, any of the following: (a) an order affirming or setting aside the decision of the Tribunal (as originally constituted), (b) an order remitting the whole or any part of the case to be heard and decided again by the Tribunal (as originally or similarly constituted), either with or without the hearing of further evidence, in accordance with the directions of the Appeal Panel, (c) an order made in substitution for an order made by the Tribunal."
How the issue subject of the appeal came before the Tribunal 42On 5 June 2008, the appellant requested the Minister to give written reasons for continuing to provide the designated service, in accordance with s 49(1). The appellant also sought an internal review pursuant to s 53. By letter dated 3 July, the Minister advised the appellant that she would not provide reasons as no relevant decision had been made. The same reason was given for not undertaking an internal review. 43A decision of a Minister of the type referred to in the Regulation, cl 5(1)(b) is a reviewable decision for the purposes of the Administrative Decisions Tribunal Act , s 38, as it is authorised by the Community Services (Complaints, Reviews and Monitoring) Act , s 28. The appellant contends that the Minister has made a decision to continue to provide designated services contrary to cl 5(1)(b) which is reviewable pursuant the Community Services (Complaints, Reviews and Monitoring) Act , s 28. 44Following the Minister's refusal to give reasons or direct an internal review, the appellant filed the application herein, the relevant aspects of which are set out above at [16]-[18]. 45As indicated earlier in these reasons, the matter came before the Tribunal member, Deputy President Magistrate Hennessy for the determination, as a preliminary issue, of the question whether the appellant's application was within the jurisdiction of the Tribunal. 46The process by which this occurred was somewhat informal: the Minister raised the jurisdictional question at one or more directions hearings and that question was set down for hearing. 47The informality by which the purported jurisdictional question was raised is not itself of significance. Section 73(3) specifically provides that the Tribunal is to act with as little formality as possible. However, the absence of any identification of the process being undertaken meant that the parties approached the matter from different perspectives. 48The appellant, for its part, treated the process as being similar to an application to strike out the claim, so that the assertions in the Application were to be treated on the basis that, on a full hearing, there would be evidence to support them. 49The Minister, on the other hand, contended that the appellant had not proved the jurisdictional fact said to found jurisdiction. The Minister made other complaints which are dealt with below. 50It is unfortunate that the relevant process was not identified, particularly by the Minister, as it was on her application that the Tribunal was asked to determine the jurisdictional issue as a preliminary question. One consequence was that the Minister's argument shifted at each stage, that is: as between the Tribunal hearing; the hearing before the Appeal Panel; and the hearing in this Court. 51Of more concern, however, is that the lack of understanding of the process involved in the determination of the preliminary issue, clouded the Minister's appreciation (by which I mean, the Minister's legal representative's appreciation) of what she was seeking. The so-called preliminary question was no more than a request for particulars. Much expensive judicial and legal time was spent on what, at the end of the day, ought to have been the subject of correspondence between the parties, or at most, a direction by the Tribunal.
Proceedings before Deputy President Magistrate Hennessy 52In understanding the submissions of the parties before the Deputy President, it is to be remembered that at that time, the two centres subject of the Application were still operating. 53The appellant submitted to the Deputy President that: (i) there was a decision of the Minister to continue to provide the services at the Lachlan Centre and the Peat Island Centre which was an ongoing decision that was made every day. (ii) that decision was challenged from the time that the Regulation came into effect, namely, 1 September 2004, as that was the time when a decision by a Minister to continue to provide designated services became reviewable: see the Regulation, cl 5(1)(b). (iii) the Minister had continued to make that decision after 4 June 2008 as those centres continued to operate and the services continued to be provided. (4 June was the day before the appellant sought reasons from the Minister.) 54The appellant submitted that the issue before the Deputy President for determination was whether the decision identified in its Application was capable of being a decision reviewable by the Tribunal. The appellant submitted that the determination of that issue depended upon whether or not the definition of " decision " in the Administrative Decisions Tribunal Act applied to that which the appellant had identified as the relevant decision, namely, the conduct of the Minister in continuing to provide the designated services. In this regard, s 6(1)(g) was central to its argument, that is, that the meaning of " decision " included " doing ... any ... act " and when that definition was applied to cl 5(1)(b), the conduct complained of was a reviewable decision. 55The Minister advanced the following arguments before the Deputy President: (i) The extended definition of " decision " in the Administrative Decisions Tribunal Act , s 6(1)(g) did not apply to a decision of the Minister taken under the Disability Services Act because the Administrative Decisions Tribunal Act was later in time. (ii) The extended meaning of " decision " in the Administrative Decisions Tribunal Act , s 6(1)(g) did not extend to a decision of the Minister made under the Disability Services Act because the jurisdiction to review such a decision was to be found in the enabling Act, that is, the Community Services (Complaints, Review and Monitoring) Act , s 28. Under that section, only " decisions " were reviewable and, on the Minister's submission, the word " decision " had its ordinary meaning, that is, as involving some conscious deliberative act; a deliberative determination. The corollary was, on the Minister's argument, that " doing any other act " was not a decision. (iii) A decision had to be made at a given moment or moments in time: there had to be a decision, not the continued effect of a decision previously made. (iv) It was incumbent upon an applicant to identify a decision made on a given date for reasons additional to the jurisdictional issue. In particular, such identification was relevant both to the question whether the Application for Review of Decision was brought within time and to the relief, if any, that ought to be granted. 56The Minister refined the identification of the dispute between the parties as being whether " the doing of the act is the decision ". 57In further argument before the Deputy President, the Minister submitted that a decision of which review was sought had to be identified with greater particularity than that set out in the application in this case. In any event, the Minister contended that she could not identify a decision that met the description in the application, that is, of conduct in continuing to provide the designated services. 58In her reasons, the Deputy President accepted that, given the framework of the Administrative Decisions Tribunal Act , a decision must be identified as having been made at a particular point in time, even if the decision is ongoing. The Deputy President considered that as a matter of convenience, the decision could be deemed to have been made on 4 June 2008, the day prior to the appellant's letter to the Minister. In that letter, the appellant had requested: (1) the Minister's reasons for the decision to continue to provide designated services, namely, the continued operation of the centres, in a manner which did not conform to the requirements of the Disability Services Act ; and (2) an internal review of the decision to continue to operate the centres: see ss 49 and 53 respectively. 59The Deputy President concluded that: "... continuing to provide a designated service is the doing of an act, and that for convenience it can be said that for the purposes of this application that decision was made on 4 June 2008." 60In this regard, the Deputy President concluded that the decision identified in the Application was reviewable pursuant to the Regulation, cl 5(1)(b) and that such a decision fell directly within the definition of " decision " in the Administrative Decisions Tribunal Act , s 6(1)(g), namely, " doing or refusing to do any other act or thing ". 61The Deputy President rejected the submission advanced by the Minister that s 6(1)(g) did not apply to conduct of a Minister under the Disability Services Act , made reviewable under the Community Services legislation, because those Acts preceded the enactment of the Administrative Decisions Tribunal Act. The Deputy President also rejected the Minister's argument that the appellant had not identified the relevant decision of which review was sought with sufficient particularity.
Proceedings before the Appeal Panel of the Tribunal 62The Minister sought leave to appeal to the Appeal Panel of the Tribunal: see Administrative Decisions Tribunal Act , ss 112-113. The appeal was brought on the basis of an error of law: see s 113(2). 63So far as is relevant to the appeal to this Court, the Minister challenged the Deputy President's decision that the Tribunal had jurisdiction to hear and determine the Application filed by the appellant. The questions of law that were contended to arise from the Tribunal's decision were as follows:
Appeal to the Supreme Court 84An appeal lies to the Supreme Court from a decision of the Appeal Panel on a question of law: Administrative Decisions Tribunal Act , s 119. 85The appellant identified the question for decision on the appeal to this Court as being: "... whether a 'decision' within the meaning of section 28(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 and clause 5(1)(b) of the Community Services (Complaints, Reviews and Monitoring) Regulation 2004 ( Relevant Legislation ) includes a decision made by the doing of an act and/or by conduct." (emphasis original) 86The Minister contended that this misstated the issue on this appeal. She contended that the issue for determination was whether the Deputy President erred in holding that the Tribunal had jurisdiction in circumstances where the appellant had not identified the decision of which it sought review and therefore had not established that the Tribunal had jurisdiction. 87For my part, I consider that the appellant's formulation of the issue in this Court correctly states the question of law that arises from the Appeal Panel's decision. In other words, the issue on the appeal is whether the Appeal Panel erred in its construction of the Community Services (Complaints, Reviews and Monitoring) Act , s 28(1)(c); the Regulation, cl 5(1)(b) and the Administrative Decisions Tribunal Act , s 6(1)(g). The Minister's formulation does not relate to the reasoning process of the Appeal Panel and this Court has no jurisdiction in respect of a 'first instance' decision of a Deputy President of the Tribunal.
The appellant's submissions on the appeal 88The appellant submitted that having regard to the Disability Services Act , the Community Services (Complaints, Reviews and Monitoring) Act , s 28(1)(c); the Regulation, cl 5(1)(b) and the Administrative Decisions Tribunal Act , s 38, the definition in s 6(1)(g) applied to the Regulation, cl 5(1)(b). Accordingly, the Tribunal had jurisdiction to review conduct, that is, the " doing of any act ". In this case, the act or conduct was continuing to provide designated services that did not conform to the objects, principles, or application of the principles specified in the Disability Services Act. 89The appellant's submission was predicated upon the proposition that the usual rules of statutory construction applied to s 6(1)(g), so that the provision was applicable to a " reviewable decision " as defined in the Regulation, cl 5(1)(b), unless its application would not be in accordance with the purpose of the legislative scheme, or would produce an absurd result: see the Interpretation Act 1987, ss 6, 33 and 34. 90The appellant submitted that the definition of " decision " in s 6(1)(g) was consistent with one of the ordinary meanings of that word and furthered the purposes of the Community Services (Complaints, Reviews and Monitoring) Act and Regulation. In this regard, the appellant argued that had the legislature intended that s 6(1)(g) was not to apply, there would have been a provision to that effect, or a provision defining " decision " for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act and Regulation. 91The appellant contended that the Appeal Panel paid no regard to the terms of the legislation it was required to construe, namely, s 6(1)(g), in the context of the Community Services (Complaints, Reviews and Monitoring) Act and Regulation. Rather, it viewed s 6(1)(g) in the context of its preconceived notion that the Tribunal's jurisdiction was only conferred in the circumstances of an express statutory reference to a particular type of decision or express statutory reference to specific conduct, as was the case in the Privacy and Personal Information Protection Act , s 55. 92The appellant contended that the continued operation of designated services in breach of the objects or principles specified in the Disability Services Act was expressly addressed by the Regulation, cl 5(1)(b) which was picked up by s 6(1)(g). 93The appellant's oral submissions were to the same effect. 94In her written submissions, the Minister submitted that the appellant had failed to identify any decision for review. In making that submission, the Minister accept that that decisions which are inherent in conduct or acts and decisions that consciously result from some deliberation, are all reviewable. However, a decision could only be reviewable if it could be identified by reference to its nature or terms. 95The Minister accepted, as she had before the Appeal Panel, that a decision by conduct might be within the Tribunal's jurisdiction. However, in that case, such a " decision " might not have any prospective operation. It might be conduct that had been completed without any possibility of its being set aside or otherwise remedied by the Tribunal. The Minister contended, however, as she had before the Appeal Panel, that the appellant had never identified the decision of which it sought review and therefore had not established that the Tribunal had jurisdiction. The Minister submitted that the appellant had not adduced any evidence, or even alleged, that some conduct or act amounted to a decision to continue operating the centres for a moment beyond the conduct or act itself. 96With respect to the Minister, her submissions through her counsel were attended by some sophistry. The Minister submitted that 'conduct', comprising the daily activities in the Centre, such as cooking and serving meals on a given day, was a reviewable decision, albeit not a decision of which there could be a purposeful review. The Minister denied, however, that conduct occurring on each and every day up to the determination of the Application for Review involved the provision of designated services which were not in conformity with the objects and principles of the Disability Services Act . For my part, I find that bifurcation of functions illogical. 97In oral argument before this Court, the Minister advanced the following propositions. 98First, where a jurisdictional challenge was made and the determination of whether the Tribunal had jurisdiction was dependent on whether or not a jurisdictional fact had occurred, it was necessary for there to be evidence of the jurisdictional fact. 99Secondly, but inconsistently with the first proposition, the question of jurisdiction was to be judged on the assumption that the assertions in the pleading were correct. The intent of that submission, it would appear, was to protect the Minister from any allegation that she had made admissions in the terms of the pleaded case. 100Next, the Minister identified the preliminary question before the Deputy President as an application for the dismissal of the proceedings for want of jurisdiction, on the ground that no reviewable decision had been identified by the appellant. This was not because the matters pleaded could not constitute a reviewable decision, but because the decision described in the Application was ambiguous. The Minister said that she could not have a fair hearing if she did not know the nature of the case. She said that the identification of the conduct in the application left her uncertain as to what the case was that the appellant sought to bring. 101The Minister said the " decision " identified in the Application bore two possible meanings. One meaning was that the identified conduct had a prospective operation, in the sense that the Minister had decided to continue to provide the services into the future inappropriately. On the Minister's argument, such conduct would be outside the review jurisdiction of the Tribunal. Alternatively, it could have meant the conduct of the Minister in providing services on a particular date, or between particular dates and times. Such a decision would be within jurisdiction, albeit the application would be futile and an abuse of process. Importantly in respect of the jurisdictional point, the Minister submitted that a decision (including conduct) had to be identified at least between two specific past dates, in which case the Tribunal would have jurisdiction, but reiterated that such proceedings would be meaningless because there was no order the Tribunal could sensibly make in respect of past conduct. 102The Minister contended that a decision which involved prospective conduct, that is, from a particular date and continuing into the future, was outside jurisdiction. The Minister submitted that this was so because there could not possibly be any evidence of conduct occurring at the time of the hearing. The Minister contended that if an applicant sought review of a decision with a purely prospective operation, it was necessary that the applicant identify a conscious deliberative decision. In other words, conduct with a prospective operation was not reviewable. 103When counsel's attention was drawn to the express words of the Regulation, cl 5(1)(b), viz : " a decision made by the Minister ... to continue to provide, a designated service ", he stated that the Minister did not contend that it was necessary, in order to establish jurisdiction, to prove that the service did not comply with the objects, principles and application of principles specified in the Act (although in his next submission, counsel said that that was necessary). Again, the Minister emphasised that she could not have a fair hearing if she did not know the case she was required to meet. 104The Minister next turned attention to the construction the Appeal Panel gave to the legislation and to s 6(1)(g) in particular. The Minister submitted that the effect of the Appeal Panel's statement at [42] was that s 6(1)(g) does not apply to a conscious deliberative decision to operate the centres into the future and that such a construction was clearly correct. The Minister accepted that had the Appeal Panel construed s 6(1)(g) as not permitting any challenge to actual conduct that had occurred, that construction would have been wrong. This submission was consistent with the Minister's position that past conduct, on a particular date or between particular dates, was theoretically reviewable. 105Finally, the Minister contended that when a jurisdictional question was raised, even at a preliminary stage, it was incumbent upon an applicant to adduce evidence of the decision of which review was sought. However, that submission was also modified. As I understand the submission as last put, it was that an applicant for review was required to identify the decision of which it sought review. The Minister's position had come full circle (see above at [55(iv)]. 106I have set these submissions out in some detail because it seems that the proceedings before the Tribunal, the Appeal Panel and this Court, were surrounded by confusion on the part of the Minister. It appears that the Minister's concern was not, in the first instance at least, one of jurisdiction, but of the particularisation of the decision. Such a stance, that is, seeking an identification of the decision of which review is sought, is permissible and appropriate. However, the matter became complicated when the Minister sought to characterise that issue as involving a jurisdictional question. That issue, that is, identification of the decision, was a question of particulars, not jurisdiction. 107The matter was brought forward as a preliminary question on jurisdiction, without identifying the nature of the process. The appellant proceeded on the basis that the matter should proceed as if on a 'strike out' motion in proceedings in a court of law; that is, on the basis that the factual allegations in the application were accepted. The Minister, however, said on more than one occasion (although not consistently so), that the appellant needed to adduce evidence of the decision. If that was correct, it was not a matter suitable for preliminary determination. 108The next complication came about because the Minister insisted that only certain decisions were within the jurisdiction of the Tribunal. In doing so, the Minister was not prepared to engage with the appellant's identification of the " decision " of which it sought review. The Minister's submissions to which I have referred are representative of this approach. The Minister contended that certain types of decision fell within jurisdiction and others did not. In the abstract, that decision is correct. Whether it is correct in a particular case depends upon the terms of the legislation under which the decision is said to be made, the terms of the legislation which confer jurisdiction on the Tribunal and the decision of which review is sought.
Did the Appeal Panel err in law in its determination? 109It is necessary at this point to return to the legislation. In doing so, I will focus upon the notion that the Minister continued to provide the designated services, being the Lachlan and Peat Island Centres, as that is the " decision " which is sought to be reviewed. 110Pursuant to the Regulation, cl 5(1)(b), a decision made by the Minister to continue to provide a designated service is reviewable where the provision of the service in accordance with the decision does not conform to the objects of the Disability Services Act or the principles or application of principles specified in Sch 1. 111The first thing to note is that cl 5(1)(b) does not require the Minister to have actively taken a decision to continue to provide services which do not conform with the objects, principles or application of principles specified in the Act. It is enough that the provision of the service does not conform. If the service as provided does conform, the decision, whether a deliberative decision or decision constituted by the doing of an act, of whatever nature, is not reviewable: in other words, an applicant who did not prove that the provision of the service did not conform would not be entitled to relief. In that sense, the jurisdiction of the Tribunal would not have been engaged. However, it is not a matter that could appropriately be dealt with on a strike out motion or by way of a preliminary determination. 112The real question for determination on the appeal is what is meant by " decision " in the phrase " a decision made by the Minister ... to continue to provide a designated service ". The appellant contended that " decision " in this collocation included " the doing ... of an act " within the meaning of the Administrative Decisions Tribunal Act , s 6(1)(g). Engaging in conduct (see the Administrative Decisions Tribunal Act , s 8(2)(a)), as a matter of ordinary usage, involves, relevantly, " the doing ... of an act ". In this case, the appellant contended that the Minister was continuing to provide designated services when it sought the Minister's reasons on 3 June 2008 and when it filed its application for review. 113The Appeal Panel determined that s 6(1)(g) did not apply to an application based upon the conduct of the Minister in continuing to operate a designated service. It reasoned that the Tribunal only had power to review conduct when an enactment, in its express terms, conferred jurisdiction in respect of conduct. It considered that the Privacy and Personal Information Protection Act , s 55 was the only provision which conferred jurisdiction on the Tribunal in respect of conduct. 114When the word " include " is used in a definition clause, it indicates that the meaning of the particular word is enlarged. In that case, the word when used in the statute must be construed to comprehend not only its ordinary meaning, but also the meaning or meanings specified in the definition. In that case, the word " includes " is a non-exhaustive word of enlargement. However, upon a proper construction of a definition clause, a word may be defined to include enumerated meanings, and only those meanings. In that case, the word " includes " is a word both of enlargement and exclusion and is an exhaustive definition. See YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; 109 CLR 395, esp at 398-9; 401-2; and 405; BHP Billiton Iron Ore Pty Ltd v National Competition Council; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45. 115In Ship "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 the High Court held that a definition should be read down only if that is clearly required. This is especially so where a definitional provision is relevant to jurisdiction. As the Court stated, at [29]: "Not only do the matters upon which the argument for YSL relied not support the construction for which it contends, but two other matters tell strongly against a reading down of s.4(2)(a) and (b). The first and more significant is that a statutory definition should be approached on the basis that Parliament said what it meant and meant what it said. The consequence of that is that a definition should be read down only if that is clearly required ((31) See Police v. Thompson (1966) NZLR 813 at 818.) as, for example, if it is necessary to give effect to the evident purpose of the Act ((32) See Australian Softwood Forests Pty. Ltd. v. Attorney-General (N.S.W.); Ex rel. Corporate Affairs Commission [1981] HCA 49; (1981) 148 CLR 121 at 130 per Mason J. See also Slonim v. Fellows [1984] HCA 51; (1984) 154 CLR 505 at 513 per Wilson J.). The second is that s.4(2)(a) and (b) form part of a jurisdictional definition, in the sense that the definition of "proprietary maritime claim" serves to identify an area of jurisdiction conferred on or vested in the courts referred to in s.10 of the Act. It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words ((33) See FAI General Insurance Co. Ltd. v. Southern Cross Exploration N.L . [1988] HCA 13; (1988) 165 CLR 268 at 283-284, 290. See also Knight v. F.P. Special Assets Ltd . [1992] HCA 28; (1992) 174 CLR 178 at 185, 202-203, 205.)." 116The difficulty with the Appeal Panel's approach in this case is that it gave s 6(1)(g) a restrictive operation. There is nothing in s 6(1) which requires it to be so restricted. In the first place, the general meaning of " decision " is stated in s 6(1) to include six specified types of activity. Some of the paragraphs of the general meaning involve deliberative, conscious decisions, such as giving a direction (para (c)) and issuing, suspending, or revoking a licence (para (d)). Some paragraphs involve conduct: paras (f) and (g) specify decisions of this type. 117Section 8(2) also points against s 6(1)(g) having a restrictive operation. Its express terms: viz : " without limiting ... s 6 " negative any intention to confine s 6(1)(g) to conduct in respect of which there was an express conferral of jurisdiction in an enactment, as found by the Appeal Panel. 118Next, s 6(1)(g), as a matter of language, uses the participle " doing ... any ... act ". That does not mean that the doing of the act must be ongoing. It could refer to an act that has occurred. Equally, it could refer, as a matter of ordinary language, to conduct that was ongoing. Section 8(2) recognises that jurisdiction may be conferred in respect of conduct which is ongoing: viz: " a reviewable decision includes a reference to an administrator engaging ... in the conduct ". A consistent construction of the Act, as it relates to conduct, would indicate that s 6(1)(g) extends to conduct that is continuing, as well as conduct that is past. 119More relevantly, however, is the language of cl 5, which is the source jurisdictional provision. It specifically confers jurisdiction in respect of a " decision ... to continue to provide a designated service ". If a decision can be the conduct of continuing to provide a designated service, the fact that the service is continuing, including up until the time of review in the Tribunal, does not thereby make the decision non-reviewable so as to deprive the Tribunal of jurisdiction. Whether or not the conduct is continuing at the time of review by the Tribunal would undoubtedly affect the remedy that the Tribunal gives. However, the same may be said of a case where the relevant decision sought to be reviewed is a deliberative decision at a specified date to continue to provide a designated service, a decision which the Minister accepted was reviewable. If that service was not being provided at the time the Tribunal determined the application, that would be relevant to the decision the Tribunal makes. The appropriate decision in such a case could be to dismiss the application. That does not, however, mean the Tribunal was not seized of jurisdiction. 120The Minister's position, which seems to have instigated the taking of the preliminary point, reflected frustration in not having definite dates or times during which it was said it engaged in the conduct. However, that frustration was engendered by the Minister's failure to accept that conduct could be engaged in on a daily basis and be continuing. Put another way, if the conduct was occurring and had not stopped, the conduct was continuing. That was the conduct of which review was sought. It was necessary, as a matter of particulars, for the appellant to specify a starting date so that the Minister could, in accordance with her duty under s 58, place relevant documents before the Tribunal. The appellant particularised that date as 4 June 2008. However, such matters are not matters of jurisdiction but of particularisation for the proper conduct of the case. 121In my opinion, therefore, the Appeal Panel erred in its construction of s 6(1)(g).
Orders this Court should make 122Section 120(1) provides that this Court may make such orders as it thinks appropriate. Having regard to my reasons, it is apparent that the Appeal Panel's orders should be set aside. Neither party made any submissions as to costs. In that circumstance, given the Minister's vigorous but misplaced opposition to the matter, I consider that the usual order as to costs should be made. 123The orders I propose are:
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: 12 September 2011
People with Disability Australia Incorporated
Minister for Disability Services & Anor
[1999] HCA 9
[1994] HCA 54
[1981] HCA 49
[1988] HCA 13
(2003) 126 FCR 54
(1985) 4 NSWLR 139
(1987) 8 NSWLR 442
(1981) 148 CLR 121
(1984) 154 CLR 505
(1988) 165 CLR 268
(1992) 174 CLR 178