Raison v Adopt Change Ltd

NCAT Administrative and Equal Opportunity|2021-10-15

REASONS FOR DECISION

The Applicant, a former volunteer with the Respondent, seeks review of the Respondent's decision to "conclude" his participation as a volunteer in one of its programs.
The question for determination is: Does the Tribunal have jurisdiction to review such a decision? The answer, in short, is no.

Background

On 6 July 2021, the Applicant filed an Application for Review in which the named respondents were "My Forever Family NSW" and, the person identified as that organisation's chief executive officer.
"My Forever Family NSW" is not a legal entity and does not have the capacity to sue or be sued.
Given the above, on 3 August 2021, the Tribunal ordered that: 1. the first and second respondents be removed as parties to the proceedings; and 2. Adopt Change Ltd be joined as the Respondent being the legal entity that operates a program by the name of "My Forever Family NSW" (the Program).

The Application for Review

By his Application for Review, the Applicant seeks to invoke the administrative jurisdiction of the Tribunal pursuant to Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), s 28(2)(a).
The Applicant contends that he was denied natural justice and that there has been a lack of procedural fairness in the Respondent's decision to end his volunteering role in the Program. The basis for these contentions is the Applicant's belief that a complaint was made about him to the Respondent, which it then acted on, ending his participation in the Program. The Applicant states that, at the time of making the Application for Review, he did not know what the complaint was and he was not given an opportunity to respond to the complaint before the Respondent concluded his role.

The Dismissal Application

On 15 September 2021, the Respondent made an application that the proceedings be dismissed on the basis that the decision was not one to which the Tribunal's administrative review jurisdiction was enabled.
It is that application which now must be determined.
On 5 October 2021, the Respondent filed and served written submissions. The Respondent submitted, in summary, that: 1. it was a private organisation and its decision to end the Applicant's role in the Program was not made pursuant to any legislation applying to it and the decision was not, therefore, one to which the Tribunal had jurisdiction to review. 2. the Respondent denied that its decision to end the Applicant's involvement in the Program was a decision under the Community Services (Complaints Reviews and Monitoring) Act 1993 (NSW) or any of the community welfare legislation defined in the Community Services Act; and lastly, 3. the Respondent submitted that, since it provided services via contract to government, it was not a "service provider" for the purposes of the Community Services Act, s 4.

The Applicable Law

The Tribunal has jurisdiction only in respect of those matters for which legislation, referred to in the CAT Act, s 4 as "enabling legislation", has conferred such jurisdiction.
The Tribunal has jurisdiction in respect of matters provided in the CAT Act or other enabling legislation; CAT Act, s 28(3). The circumstances upon which the administrative review jurisdiction is conferred on the Tribunal is provided under the Administrative Decisions Review Act 1997, s 9, which provides, relevantly, that (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. …
The Administrative Decisions Review Act, s 7 defines an administratively reviewable decision as: (1) … a decision of an administrator over which the Tribunal has administrative review jurisdiction. (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 an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, 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 an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
The effect of sections 7 and 9 of the Administrative Decisions Review Act is that the Tribunal's administrative review jurisdiction only arises on, and is concerned with, the exercise of functions imposed or conferred on an administrator by legislation and the decisions, conduct or refusal of an administrator to exercise the functions conferred on them under specific legislation.
In proceedings for the exercise of its administrative review jurisdiction, the Tribunal also has jurisdiction to make ancillary decisions; CAT Act, s 30(2)(a). An ancillary decision of the Tribunal includes a preliminary decision made under legislation that is preliminary to a decision determining proceedings including a decision concerning whether the Tribunal has jurisdiction to deal with a matter; CAT Act, s 4.
The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; CAT Act, s 55(1)(b). In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b) observed that: "…The term "misconceived" represents a claim that does not "disclose a cause of action", while "lacking in substance" may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39]."
Where an application is made for which the jurisdiction of the Tribunal is found to be wanting, such an application may be considered as misconceived or otherwise lacking in substance.

Determination

The Applicant contends that the Tribunal has jurisdiction on the basis that the Respondent had made an administratively reviewable decision under s 28(1)(b) of the Community Services Act. That section provides: (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 - … (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,
The Community Services Act, s 4 defines "community welfare legislation" to be: the following Acts and the instruments in force under those Acts - (a) this Act, (b) the Adoption Act 2000, (c) the Children and Young Persons (Care and Protection) Act 1998, (c1) the Children (Education and Care Services) Supplementary Provisions Act 2011, (d) the Community Welfare Act 1987, (e) the Disability Inclusion Act 2014, (f) the Guardianship Act 1987, (g), (h) (Repealed) (i) any other Act relating to the provision of community services that is prescribed by the regulations, and includes the provisions of the Boarding Houses Act 2012 and the regulations under that Act that are administered by the Minister.
The Applicant did not identify under which community welfare legislation, as defined in the Community Services Act, the decision to end his volunteer position in the Program was made.
Having regard to the above and having regard to the stated objects and principles set out in the Community Services Act, s 3, there is no basis on which to find that the Respondent's decision to end the Applicant's volunteer role with the Program was a decision made by it under community welfare legislation as defined in the Community Services Act.
I am unable to identify any other legislation which might confer jurisdiction on the Tribunal to review the decision of the Respondent which is the subject of the Application for Review.
To the extent that the legislation relied on and identified by the Applicant has any application to the operations of the Respondent, that legislation does not apply to the specific decision by the Respondent to end the Applicant's volunteer role in the Program which is the subject of the Application for Review.
The mere fact that a Respondent may be authorised to carry out some functions conferred on it by legislation to which an administratively reviewable decision may arise does not mean that every decision it makes is subject to the administrative review jurisdiction of the Tribunal. As the Tribunal noted in White v Sutherland Shire Council [2019] NSWCATAD 100 at [8]: "The CAT Act sets out the Tribunal's jurisdiction. One of those jurisdictions is the "administrative review jurisdiction": s 29(2)(b) CAT Act. The Tribunal has administrative review jurisdiction over a decision of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under the ADR Act: s 30 CAT Act, and s 9 ADR Act. Section 30 of the CAT Act provides that, with respect to the Tribunal's administrative review jurisdiction, in effect that the Tribunal has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. While there are many pieces of legislation which give jurisdiction to the Tribunal, however, they may not give jurisdiction for every decision made under each piece of legislation." [emphasis in original]
The Applicant has not identified how or why the Respondent's decision to end his participation in the Program was the exercise of a function conferred on the Respondent by legislation.
As such, the Tribunal's administrative review jurisdiction is not enlivened by the Respondent's decision with respect to the Applicant's participation as a volunteer in the Program.
The Applicant had also made the submission that he has standing to make an application to the Tribunal with respect to such a decision, relying on Community Services Act, s 29 on the basis that he, the Applicant, had a genuine concern in the subject matter of the decision concerned. That the Applicant has a genuine concern over a decision to terminate his volunteer participation in the Program is not doubted. Unfortunately, however, since there is no legislative basis for an administratively reviewable decision in accordance with the Community Services Act, s 28(1)(b) or any other legislation, the question of standing to make an application does not arise.

Decision

The 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: 15 October 2021

Community Services (Complaints Reviews and Monitoring) Act 1993(NSW)

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Judgment (9 paragraphs)

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Legislation Cited (4)

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