Civil and Administrative Tribunal New South Wales Medium Neutral Citation: EBJ v Secretary, Department of Communities and Justice [2020] NSWCATAD 166 Hearing dates: 21 May 2020 Date of orders: 30 June 2020 Decision date: 30 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) The applicants' application is dismissed. (2) Any party ("the costs applicant") may make an application for costs, and file and serve submissions and evidence in support of the application, within 14 days of the date of this decision. (3) Any party the subject of a costs application ("the costs respondent") is to file and serve submissions and evidence on the costs application within 28 days of the date of this decision. (4) The costs applicant may file and serve submissions and evidence in reply, within 35 days of the date of this decision. (5) The costs applicant and costs respondent are to address in their submissions whether any costs application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal, having regard to s 50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: ADMINISTRATIVE REVIEW – Child Protection – Authorised carers – Where designated agency decided that no further children would be placed with the applicant authorised carers – Whether decision is an administratively reviewable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Children and Young Persons (Care and Protection) Regulation 2012 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Interpretation Act 1987 (NSW) Cases Cited: CJH v Department of Family and Community Services [2016] NSWCATAD 162 IO v Department of Family and Community Services [2012] NSWADTAP 42 NV and OA [2009] NSWADT 209 TICA Default Tenancy Control Pty Ltd v Selvi [2015] NSWCATAP 187 Texts Cited: Australian Concise Oxford Dictionary (fourth edition) Macquarie Dictionary (online) Category: Principal judgment Parties: EBJ (First Applicant) EBK (Second Applicant) Secretary, Department of Communities and Justice (Respondent) Representation: Solicitors: Ross A Clarke & Associates (Applicants) Care Legal (Respondent) File Number(s): 2019/00302524 Publication restriction: Section 65 of the Civil and Administrative Tribunal Act 2013 applies to these proceedings. REASONS FOR DECISION 1. The Secretary of the Department of Communities and Justice ("the Secretary") applied for summary dismissal of the application, by two authorised carers, for review of the Secretary's decision not to place any more children in their care. 2. I have decided that the decision is not an administratively reviewable decision, and that the Tribunal does not have any jurisdiction to determine the applicants' application. For that reason, I have dismissed their application to the Tribunal. Background 1. The applicants have been caring for children as foster carers since 1993. 2. Prior to 23 August 2017, the applicants were authorised to care for up to nine children. 3. On 23 August 2017, a Departmental officer sent the applicants a letter headed "updated authorisation advice", following a carer review. The letter stated: "As discussed during the review process your authorisation has been changed to reflect the number of children currently in your care and in line [sic: with] FaCS policy … Your current authorisation is to care for the following children and young persons on a long term basis:" 1. The letter then named six children and young persons. The letter also noted that, in addition to caring for those named children, the applicants cared for their daughter. 2. In April 2018, a Departmental officer wrote to the applicants again, advising them that they had been "re-authorised as foster carers" and that they were now authorised to care for four named children on a long-term basis. 3. In May 2018, two of those named children left the applicants' care. 4. In July 2018, another child in the applicants' care turned 18. The applicants then had one child in their care (apart from their daughter) and this was a child for whom they shared parental responsibility with the Minister. 5. In October 2018, a Departmental officer advised the applicants that a risk of harm assessment conducted by the Department concerning the two children who had left their care resulted in a substantiation of psychological harm. 6. On 5 July 2019, a Departmental officer wrote to the applicants again, following another carer review. The letter stated: "The authorisation for the named child remains unchanged since 2014. It is the decision of the Secretary that no further children will be placed in your care." The reasons given for this decision were "substantiated risk of psychological harm of children previously placed in your care" and that there had been multiple disclosures of harm by children previously in their care and reportable conduct investigations in relation to children previously placed in their care. The letter advised them that they had a right to an internal review of the decision under r 24 of the Civil and Administrative Tribunal Rules 2014 (NSW). 7. The applicants requested an internal review on 19 August 2019. 8. On 11 September 2019, the internal reviewer affirmed the original decision. The internal reviewer advised the applicants that they could apply to the Tribunal for a review of the decision within 28 days. 9. The applicants applied to the Tribunal for a review of the Secretary's decision on 27 September 2019. Summary dismissal application 1. The Secretary's position is that the Tribunal has no power to review any decision made on behalf of the Secretary because the Secretary did not make an administratively reviewable decision. 2. The Secretary submitted that it was not a decision to impose a condition on the applicants' authorisation within s 245(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act"). The Secretary said that a condition was imposed on their authorisation in August 2017 that they were authorised to care for four named children on a long-term basis and that condition was not challenged. The Secretary submitted that this condition has remained unchanged and no new conditions have been imposed. 3. The Secretary submitted, further, that a decision not to grant to the applicants the responsibility for daily care and control for any more children, does not fall within s 245(1)(c) of the Care Act. The Secretary submitted that s 245(1)(c) refers to a specific child or young person, and not to unnamed children or young persons in general. 4. The parties made written submissions in support of, or in opposition to, the summary dismissal application. The matter was listed for a short hearing, at which Mr Ross Clarke appeared for the applicants and Ms Jane Smith appeared for the respondent. Following the hearing, the parties each made additional short submissions concerning the decision in IO v Department of Family and Community Services [2012] NSWADTAP 42. The Tribunal's administrative review jurisdiction Administrative Decisions Review Act 1997 1. Section 9 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") sets out when the Tribunal is vested with "administrative review jurisdiction." That section relevantly provides as follows: "9 When administrative review jurisdiction is conferred (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. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. …" 1. 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, Reviews and Monitoring) Act 1993 1. For the purpose of this application the "enabling legislation" is the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). 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 245 of the Children and Young Persons (Care and Protection) Act 1998, (a1) …" Children and Young Persons (Care and Protection) Act 1998 1. Section 245 of the Care Act relevantly provides: "245 Decisions that are administratively reviewable by Civil and Administrative Tribunal (1) Each of the following decisions made under or for the purposes of this Act or the regulations is an administratively reviewable decision for the purposes of section 28(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993: (a) a decision of the relevant decision-maker to suspend a person's authorisation as an authorised carer or to impose conditions on a person's authorisation, … (c) a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person, … (2) In this section, relevant decision-maker, in relation to a decision, means the person or body authorised by or under this Act or the regulations to make the decision, not being the Children's Court." 1. Subsection 138(1) of the Care Act provides that only a "designated agency" or the Children's Guardian can arrange for the provision of statutory out-of-home care. Subsection 138(2) creates an offence where a person other than a designated agency or the Children's Guardian places, or arranges for the placement of a child in statutory out-of-home care. Consideration 1. The first issue for determination is the nature of the decision for which the applicants have sought review and whether it is a decision made under s 245(1) of the Care Act. To reiterate, the decision was a decision not to place any further children in the applicants' care. The decision was described, in the letter of 5 July 2019, as a "decision of the Secretary." Was the decision made by a "relevant decision-maker"? 1. Both s 245(1)(a) and (c) of the Care Act provide for review of a decision "of the relevant decision-maker." The "relevant decision-maker" is, relevantly, the person or body authorised by or under the Care Act or the Children and Young Persons (Care and Protection) Regulation 2012 ("Regulation") to make the decision (Care Act, s 245(2)). 2. A "designated agency" is authorised to impose conditions upon the authorisation of an authorised carer (Regulation, cl 34(1)). Thus, a "designated agency" is a "relevant decision-maker" for the purposes of a decision referred to in s 245(1)(a) of the Care Act to impose conditions on a person's authorisation. 3. Only a designated agency or the Children's Guardian may make arrangements for the provision of statutory out-of-home care (Care Act, s 138(1)). Thus, a designated agency is also a "relevant decision-maker" for the purposes of a decision referred to in s 245(1)(c) of the Care Act. 4. There is some lack of clarity, in the correspondence to the applicants, as to the identity of the designated agency making arrangements for the provision of statutory out-of-home care by the applicants. 5. The initial authorisation advice to the applicants in 2010 was sent from "Metro West Child and Family Regional Unit." A letter to the applicants written on 4 December 2018 comes from a manager at "Out of Home Care, Mount Druitt CSC." The letter sent to the applicants on 5 July 2019 was signed by the Manager, Client Services in the Child and Family District Unit of Western Sydney and Nepean Blue Mountains Districts. The internal review decision of 11 September 2019 was made by the "Principal Officer" of "Nepean Blue Mountains." 6. The website of the Children's Guardian, which lists designated agencies, indicates that "Community Services Nepean Blue Mountains District" and "Community Services Western Sydney District" are both designated agencies. It is likely, given the position of the internal reviewer, that the designated agency making decisions in respect of the applicants is "Community Services Nepean Blue Mountains District." 7. It may be assumed, in the absence of any submissions to the contrary, that the Secretary may make decisions on behalf of that designated agency as head of the Department of which the designated agency forms part. Thus, I will assume, for the purposes of this application, that the decision by the Secretary not to place any more children with the applicants may properly be characterised as a decision made by a designated agency. 8. It remains then to consider whether the decision otherwise meets the description of a decision within s 245(1)(a) or (c) of the Care Act. Did the Secretary make a decision to impose a condition (s 245(1)(a))? 1. The applicants accept that the limitation placed on their authorisation to care for specified children was a condition of that authorisation. Mr Ross Clarke, for the applicants, submitted that each time there was a carer review, the condition or limitation is placed and is reviewable as and from that time. He said that the decision in July 2019 that no more children be placed with the applicants was a decision "to impose conditions on a person's authorisation" within s 245(1)(a) of the Care Act and was reviewable. 2. Mr Clarke submitted that the Tribunal should give the word "condition" in s 245(1)(a) a liberal interpretation. He relied upon NV and OA [2009] NSWADT 209 at [13]. In that case, Deputy President Britton (as she then was) observed (at [13]) that, given the beneficial or remedial nature of the Care Act and the Community Services (Complaints, Reviews and Monitoring) Act, it would seem that, where there is an ambiguity, they should be given a liberal interpretation. 3. The word "condition" is also used in s 137(2) of the Care Act. Section 137 is entitled "Authorised carers." Section 137(2)(c) provides that the regulations may make provision for or with respect to: "(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, …" 1. Clause 34(1) of the Regulation provides: "A designated agency may at any time impose such reasonable conditions as it thinks fit on the authorisation of an authorised carer, including a condition that provides that the authorised carer may provide out-of-home care only to specified children or young persons or to children or young persons belonging to a specified class." 2. It is convenient to characterise the various decisions made in letters sent by the designated agency to the applicants, in order to understand the decision of 5 July 2019 in context. 3. The letter of 23 August 2017 stated that the applicants' authorisation had been "changed" and that their authorisation was now to care for specified children and young persons. The applicants were not provided with an amended instrument of authorisation. Clause 35(2) of the Regulation provides that the "written authorisation must set out any conditions of the authorisation imposed by the designated agency." In IO v Department of Family and Community Services [2012] NSWADTAP 42 at [18], the President of the former Administrative Decisions Tribunal stated that, "[i]n the ordinary course, one would expect to see any specific condition imposed on an authorisation stated in clear terms in the instrument attesting to the authorisation." 4. I am satisfied, notwithstanding that an amended instrument of authorisation was not provided, that the letter effected a variation of the existing conditions of authorisation and the imposition of a new condition. The new condition was that the applicants may only provide out-of-home care to specified children or young persons, as contemplated by cl 34(1) of the Regulation. 5. The letter sent to the applicants in April 2018 purported to "re-authorise" them as foster carers. Re-authorisation is not a concept which is expressly referred to in the Care Act or the Regulation. Rather, an authorisation would appear, from Division 2 of Part 6 of the Regulation, to continue in force until surrendered, suspended or cancelled. However, nothing turns on that for the present. I am satisfied that the designated agency's letter was effective to vary the conditions of the applicants' authorisation again, imposing a condition that they may only care for four named children. 6. In July 2019, the Secretary made a new decision as to the designated agency's future conduct, being that the Secretary would not place any more children in the applicants' care. The earlier condition, that they may only care for named children, continued in force. However, the circumstances had changed, in that three of the named children were no longer in the applicants' care. This was not a variation of conditions as such, but rather a change of circumstances. 7. I do not accept the applicants' submission that each time a carer review occurred the conditions were imposed again. There is nothing in the legislative scheme which supports such a construction. 8. I accept the applicants' submission that the decision that "no further children will be placed in [the applicants'] care" was a decision which had not been communicated to the applicants earlier. However, I do not consider that it is properly characterised as a condition. The word "condition" should be given its ordinary meaning (IO v Department of Family and Community Services [2012] NSWADTAP 42 at [17]-[18]). The Macquarie Dictionary definitions of "condition" include "a restricting, limiting, or modifying circumstance". The Australian Concise Oxford Dictionary (fourth edition), as cited in the IO decision at [17], gives the meaning of "condition" as "a stipulation; something upon the fulfilment of which something else depends." 9. The decision not to place any more children with the applicants was a decision as to the Secretary's future conduct. The applicants characterised this as a condition that they could care for the named child "and no others." However, the condition imposed in August 2017, whilst not expressed in those terms, was also a condition that the applicants could care for named children and no others. 10. The power to make arrangements for the provision of statutory out-of-home care is exercisable from time to time (Interpretation Act 1987 (NSW), s 48(1)). It is doubtful whether the Secretary may lawfully bind the designated agency as to future decisions about the placement of particular children in the applicants' care. That might be unlawfully to fetter the future exercise of discretion. This was not the subject of argument. Be that as it may, I do not consider that the purported restriction is properly characterised as a condition. Did the Secretary make a decision about the daily care or control of a child (s 245(1)(c))? 1. A decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young person is an administratively reviewable decision (Care Act, s 245(1)(c)). 2. The Secretary submitted that the decision not to authorise the applicants to have any more children in their care is not a decision about the placement of specific children. The Secretary says it is not a decision within s 245(1)(c) of the Care Act, because that provision refers to a specific child or young person ("the child or young person"). 3. I accept the Secretary's submission that s 245(1)(c) does not apply to a decision not to give the applicants the responsibility for the daily care and control of any more children. A reference to a word or expression in the singular form includes a reference to the word or expression in the plural form, unless a contrary intention appears (Interpretation Act, ss 5(2), 8(b)). In my view, s 245(1)(c) is capable of applying to a decision in relation to more than one child; however, as the Secretary submits, the use of the definite article indicates, in this context, that it contemplates a decision in respect of particular children (on the significance of the use of the definite article, see TICA Default Tenancy Control Pty Ltd v Selvi [2015] NSWCATAP 187 at [67]-[68]). That is consistent with the statutory scheme, which permits a designated agency to make decisions in respect to the placement of particular children (see Care Act, s 138). This also appears to be the conclusion reached by the Tribunal in CJH v Department of Family and Community Services [2016] NSWCATAD 162 at [49]. 4. It follows that the Secretary's decision is not a decision within s 245(1)(c) of the Care Act. Conclusion 1. For the reasons given above, I do not consider that the Secretary's decision that no further children will be placed in the applicants' care is an administratively reviewable decision. The Tribunal has no jurisdiction to review that decision and the applicants' application to the Tribunal must therefore be dismissed. 2. I note that the Secretary invited the applicants to apply for internal review under the Regulation, then, in the internal review application, informed them that they were entitled to apply to the Tribunal for a review of "this decision." Once they had made that application, they were then confronted with the respondent's summary dismissal application. 3. It is very unfortunate for the applicants that they were put through this process in circumstances where the Director Community Services/Principal Officer of Nepean Blue Mountains, NSW Department of Communities and Justice wrongly advised them that they had a right of review in the Tribunal. 4. This may be relevant to the award of costs. 5. Neither party applied for costs. I have made directions for the making of a costs application, should either party choose to do so. I also encourage the parties to negotiate about costs. Orders 1. I make the following orders: 1. The applicants' application is dismissed. 2. Any party ("the costs applicant") may make an application for costs, and file and serve submissions and evidence in support of the application, within 14 days of the date of this decision. 3. Any party the subject of a costs application ("the costs respondent") is to file and serve submissions and evidence on the costs application within 28 days of the date of this decision. 4. The costs applicant may file and serve submissions and evidence in reply, within 35 days of the date of this decision. 5. The costs applicant and costs respondent are to address in their submissions whether any costs application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal, having regard to s 50(2) of the Civil and Administrative Tribunal Act 2013. ********** 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: 30 June 2020