Gray v Coffs Harbour Family Day Care Scheme [2005] NSWADT 128

Set aside by Appeal : Set Aside by Appeal on 31/10/2005

CITATION: Gray v Coffs Harbour Family Day Care Scheme [2005] NSWADT 128 DIVISION: Community Services Division APPLICANT PARTIES: Rhonda Gray RESPONDENT Coffs Harbour Family Day Care Scheme FILE NUMBER: 054015 HEARING DATES: On the papers SUBMISSIONS CLOSED: 05/24/2005 DATE OF DECISION: 06/17/2005

BEFORE: Britton A - Judicial Member; Bolt M - Non Judicial Member; Groth D - Non Judicial Member APPLICATION: Child care provider registration - cancellation MATTER FOR DECISION: Principal matter Children (Care and Protection) Act 1987 LEGISLATION CITED : Children and Young Persons (Care and Protection) Act 1998 Children's Services Regulation 2004 Family Day Care and Home Based Child Care Services Regulation 1996 CASES CITED: APPLICANT REPRESENTATION: F McMullin, solicitor RESPONDENT S Campbell, solicitor ORDERS: The application is dismissed for want of jurisdiction

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION 1 The Applicant applies to the Administrative Decisions Tribunal for review of the decision made by the Coffs Harbour & District Family Day Care Scheme, the Respondent in these proceedings, to terminate her registration as a family day care provider. A preliminary issue arises for determination. The Respondent submits that its decision to deregister the Applicant as a family day care provider is not reviewable by the Tribunal either under section 245(1)(a) of the Children and Young Persons (Care and Protection) Act 1998 or under cl. 123A of the Children's Services Regulation 2004 ('the 2004 Regulation'). 2 The Applicant does not contend that s.245 is brought into play; her only argument is that cl.123A applies. That clause provides for a review of decisions of a licensee of a family day care children's service to remove or suspend a family day care provider's name from the register for the service. 3 It is common ground that the Respondent is a licensee of a family day care children's service and that it made a decision of that nature in respect of the Applicant. It was licensed at the relevant times under the Children (Care and Protection) Act 1987 ('1987 Act'). It is also common ground that the Applicant was registered as a child care provider with the Respondent and that she had been registered with the Respondent pursuant to cl.30 of the Family Day Care and Home Based Child Care Services Regulation 1996 ('the FDH Regulation'). The only question is whether, by virtue of the operation of the savings and transitional provisions of the 2004 Regulation, the Applicant comes within the scope of cl.123A. 4 The savings and transitional provisions of the 2004 Regulation provide that parts of the FDH Regulation continue to apply to licenses issued or renewed under the 1987 Act during 'the transition period'. The 'transition period' is defined as the period commencing on the transition day and ending on 31 December 2005. The "transition day" is defined as the day on which Division 1 of Part 3 of the 1987 Act is repealed. This day was 30 September 2004, the date of the commencement of Chapter 12 of the 1998 Act. 5 Clause 2(2)(c) of the savings and transitional provisions states that during the transition period, (i.e. between 30 September 2004 and 31 December 2005) licences are not subject to the conditions set out in Parts 3, 4, 5, 6 and 7 of the 2004 Regulation. They relate to facilities and equipment; staffing; child numbers; operational and administrative matters. 6 Clause 2(3) states that the provisions of the FDH Regulation continue to apply in relation to the licence for the transition period or the remainder of the period for which it was granted, whichever is the lesser period, as if the FDH Regulation concerned had not been repealed. 7 Clause 2(5) provides that after the expiry of the transition period, if a licence issued under the 1987 Act is still in force it becomes subject to the 2004 Regulation and the FDH Regulation ceases to have effect. It adds that 'the licence is [then] subject to the conditions set out in Parts 3, 4, 5, 6 and 7 of [the 2004 Regulation] that apply to a licence for that class of children's service.' 8 The Applicant submits that from cl.2(5) it is clear that Parts 2 (Licensing Procedures), 8 (Probity Checks) and Part 9 (Miscellaneous) of the 2004 Regulation apply to licences from the transition day, 30 September 2004. (Part 9 includes cl.123A.) 9 She argues that if the licence holder had not previously been subject to Parts 2, 8 and 9 of the new Regulation, then clause 2(5) would need to stipulate that, after the expiry of the transition period, the licence holder becomes subject to those Parts as well as to the other stipulated Parts. She argues that the fact that it does not stipulate this means that Part 9, as well as Parts 2 and 8, already applied to licence holders from the transition day. Indeed, Parts 2 and 8 must apply immediately, because they relate to new applications. Therefore they, like Part 9, need no transitional period. 10 She submits that the purpose of providing a transitional period for certain parts of the new Regulation was to give licensees time to make the necessary changes to staffing, operational and administrative procedures. This is made clear by a DoCS' publication on the introduction of the new Regulation (attached). There is no need for additional time for a right of appeal to the ADT to take effect, and it would be against public policy. 11 She contends that cl. 2(3) should be interpreted to mean that the provisions of the FDH Regulation still apply during the transition period, in addition to and concurrently with Parts 2, 8 and 9 of the new Regulation. This includes the new right, in Part 9, giving carers the right of appeal to the ADT. (Clause 123A took effect from 17 December 2004.) 12 She submits that if the legislature had inserted this amendment from 17 December 2004 but had not intended it to apply until 31 December 2005, it would have expressly stipulated so and that, therefore, from 17 December 2004, family day care providers had the right to appeal a decision to remove their names from a register. 13 The Respondent's argument is simple. It says that it deregistered the Applicant during the transitional period and that by virtue of cl.2 of the savings and transitional provisions the FDH Regulation (which did not provide for a review of such decisions) was the relevant law relating to the decision. It follows that the Tribunal has no jurisdiction to entertain this application. Conclusions 14 Clause 2 of Schedule 2 deals with persons holding child care service licences issued subject to the provisions of the 1987 Act and the FDH Regulation. Clause 2(2) deals with the conditions to which licences are subject. It provides that licences issued before the commencement of the 2004 Regulation would not become subject to conditions introduced by the 2004 Regulation in Parts 3,4,5,6, and 7 until the licence was renewed or the transition period ended whichever came first. 15 The Applicant argues, in effect, that because Parts 1, 2, 8 and 9 are not mentioned in the catalogue of conditions that do not apply, one can infer that the other Parts do. Therefore, a right of review has been created. 16 In our view, this is a fundamental misconstruction of cl.2. Clause 2(2) deals with, and wards off, the application of Parts 3, 4, 5, 6 and 7 of the 2004 Regulation to licences, which were issued under the previous regime, until the transition period expires (or a new licence is issued) because those are parts of the 2004 Regulation that impose conditions on licences. The transitional provisions recognise the logistical difficulties that may occur in reforming a licensing system and provide reasonable time for licensees to make appropriate adjustments in terms of facilities, staffing arrangements, child numbers, operational and administrative matters. 17 Parts 1,2,8 and 9 of the 2004 Regulation are not concerned with conditions imposed upon licences. Part 1 is merely introductory. Part 2 deals with licensing procedures. Part 8 imposes obligations on the Director-General to conduct probity checks upon licensees and upon licensees to conduct probity checks upon their staff. As cl.25 of the 2004 Regulation makes it clear, the conditions to which a licence is subject are those found in Parts 3,4,5,6 and 7. The obligations imposed in Part 8 are, therefore, not conditions of a licence but general statutory requirements. 18 It is self-evident from a plain reading of cl.123A that it has nothing to do with subjecting licensees to conditions in respect of their licences. 19 It follows from the above that cl.2(2) and (5) are irrelevant (at least in the way the Applicant argues) to the question of whether it is open for the Applicant to make application under cl. 123A against the Respondent's decision. 20 Therefore the only relevant sub-clause here is cl.2(3). To interpret that sub-clause to mean that Part 9 of the 2004 Regulation applied in this situation would be to distort its meaning almost completely. It is plain that the legislature meant the old regime was to apply to the Respondent's licence for the remaining period of the licence or to the end of the transition period, whichever came first. 21 But for the commencement of the 2004 Regulation, the Applicant would have had no argument at all that she had recourse to this Tribunal because s.245 of the Care and Protection Act and the FDH Regulation did not make the Respondent's decision reviewable. It is her misfortune that, by virtue of the operation of cl.2(3) of Schedule 2, she (and anyone else in her situation) remains in that situation until the end of the transitional period. Regrettable as it may be, if an unfair or unreasonable decision has been made by the Respondent, there is no remedy for the Applicant to be found in cl.123A. This Tribunal, in our opinion, has no jurisdiction to exercise in relation to this application. Orders The application is dismissed for want of jurisdiction.