CITATION: People with Disabilities (NSW) Inc -v- Minister for Disability Services; Re Ireby Lodge and Lark Hill Relocation Project: Boarding House Reform Project [1999] NSWADT 24 DIVISION: Community Services APPLICANT: People with Disabilities (NSW) Inc RESPONDENT: Minister for Disability Services FILE NUMBER: 994003 HEARING DATES: 04/16/1999 SUBMISSIONS CLOSED: 04/16/1999 DATE OF DECISION: 21 April 1999 N Hennessy - Deputy President BEFORE: PRIMARY LEGISLATION: Disability Services Act 1993 APPLICATION: - Review of approval of expression of interest process MATTER FOR DECISION: Stay of primary decision Applicant: P French REPRESENTATION: Respondent: G Williams ORDERS: 1. Application for stay dismissed. 2. Application for review dismissed. Background to application 1 On 1 April 1999, People with Disabilities (NSW) Inc (PWD) applied to the Community Services Division of the Administrative Decisions Tribunal (ADT) for a review of a decision made by the Minister for Disability Services, the Hon Faye Lo Po. The decision in issue is the Minister's approval of an Expression of Interest (EOI) process advertising for the provision of housing and support services for individuals relocating from private boarding houses. 2 PWD also applied to the ADT for a stay of the decision under s 60(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act). These reasons relates primarily to the stay application, however a preliminary issue arose as to whether the decision in question is a "reviewable decision." The determination of this issue has consequences for both the stay application and the application for review. Issues and legislation 3 The ADT Act s 36(1)(b) gives the Tribunal jurisdiction to review a "reviewable decision." Section 38(1) describes this jurisdiction in the following terms: The Tribunal has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) 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. 4 Consequently, in order for the Tribunal to have jurisdiction in relation to a decision, an enactment must provide for the review of any such decision or class of decision. In this case, the relevant enactment is the Disability Services Act 1993 s 20(a) which states that: For the purposes of section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 any of the following decisions is reviewable by the Administrative Decisions Tribunal: (a) a decision approving the provision of financial assistance if the approval to the provision of the assistance should not have been given under section 10(2) because the provision of the assistance will not conform with the objects of this Act and the principles and applications of principles set out in Schedule 1 5 Section 10 of the DSA states that: (1) The Minister may approve the provision of financial assistance: (a) to a person in the target group, or to a person providing direct care or support to a person in the target group, for the purpose of enabling the person in the target group to be provided with designated services, or (b) to an eligible organisation providing, or proposing to provide, designated services to persons in the target group for the purpose of enabling the eligible organisation to provide those services, or (c) to a person or eligible organisation conducting or proposing to conduct, an approved research or development activity for the purpose of enabling the person or organisation to conduct that activity. (2) Approval for the provision of financial assistance may not be given unless the Minister is satisfied on reasonable grounds that providing the assistance would conform with the objects of this Act and the principles and applications of principles set out in Schedule 1. 6 A "decision approving the provision of financial assistance" under s 20(a) are those decisions approving financial assistance to a person in the target group (or their carer or supporter) or to an "eligible organisation" (defined in the DSA s 4). 7 Both services and "programs of services" must conform to the requirements of the DSA. DSA Sch 1 cl 2 provides that: Services and programs of services must apply the principles set out in Clause 1. Evidence 8 After the closure of a boarding house known as Ebenezer Lodge, the 11 female residents were re-located to "Lark Hill" where they currently remain. In the 1998/99 State Budget the State Government allocated recurrent "crisis funds" to relocate former residents to supported accommodation services to be provided under the DSA. This relocation project is known as the "Ireby Lodge and Lark Hill Relocation Project, Boarding House Reform Project." 9 On 5 March 1999, the Minister approved the advertisement of an Expression of Interest for Lark Hill and Ireby residents to move to alternative community accommodation. The submission prepared by the ADD stated that: The Minister approved 3.8M for the relocation of these residents and the residents of Weroona and Fairview. $2.958,681 of this funding is available after the funding of the Weroona and Fairview ex-residents. 10 An Information Package and Application Form was made available to people interested in submitting an expression of interest. The Information Package included pre-determined approved service configurations, one of which was based on a hostel accommodating 11 people. It is this service option that PWD maintains does not comply with the principles and applications of principles in the DSA. 11 A note on page 8 of the Information Package states that: The submission of an EOI (whether one deemed to be eligible or ineligible by the Selection Panel) by any organisation does not in any way imply nor commit the Department to the provision of any funding. 12 The time line for the Development and Selection Process shows that the closing date for Expressions of Interest is 30 April 1999 and that between 10 - 14 May 1999 the EOI's will be assessed by the Selection Panel according to criteria set out in a document entitled "NSW Supported Accommodation Checklist." A recommendation to the Minister about which Expression/s of Interest to accept will be made on 19 May 1999. The Minister can accept or reject that recommendation. Discussion of evidence and findings of fact 13 There was no dispute about the evidence, however there are some facts which should be highlighted. The submission to the Minister seeking approval for the advertisement of an EOI did not involve any allocation of funds. The submission made it clear that the Minister had already approved a lump sum to be set aside for the relocation of residents from Ireby Lodge and Lark Hill. 14 It is also significant that the Information Package pointed out that the submission of an EOI would not commit the ADD to the provision of any funding to service providers. Decisions about which individuals or services are to be funded will be made by the Minister at the conclusion of EOI process. Application of law and decision 15 PWD argued that the Ireby Lodge and Lark Hill Relocation Project (Boarding House Reform Project) is a "program of services" and drew an analogy with the decision in French v Minister for Disability Services (300 Places Initiative) Appeal No 39 (7 March 1996, unreported). In that case the Community Services Appeals Tribunal (which has now become the Community Services Division of the ADT) stated that: The view that the Principles and Applications apply not only to services but to programs of services is supported by Clause 2 of Schedule 1 to the Act . . We would understand the term "program" to be routinely used in public administration to refer to groups of services which are designed to fulfil a particular policy objective. . . All in all, it seemed to the Tribunal that the Act requires that both the funded services and the funding program must comply with the objects, principles and applications. 16 A decision approving the provision of financial assistance is a reviewable decision whether it is made in relation to an individual, a service or a program of services. But in each case a decision "approving the provision of financial assistance" must be made. 17 Both parties relied on the decision in Australian Broadcasting Tribunal v Bond (64 ALJR 463) as supporting their case. That case is the leading authority on the meaning of "decision" in the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act). In that Act "decision to which this Act applies" is defined in s 3(1) to mean: "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment . . ." 18 The AD(JR) Act s 3(2) lists a number of types of actions which would qualify as a "decision" under that Act. It is identical to s 6(1) of the ADT which provides an inclusive definition of "decision." But s 6(1) only applies where an enactment gives the ADT jurisdiction to review "decisions" made under an enactment. Neither the ADT Act nor the DSA give the Tribunal such a general power. Consequently, the observations of the High Court in Bond's case are of limited relevance to the facts before the Tribunal . 19 The applicant quoted the following passage from the headnote of Bond's case: The remedial nature of the Act requires that "decision" not be taken narrowly or limited to a final decision disposing of a controversy. It may be taken to mean any ultimate or operative determination for which provision is made by or under a statute that is not a mere statement of opinion or a statement not having an effect on a person. A "reviewable decision" must have the quality of a substantive determination: it will generally, but not always, be final or operative and determinative, at least in a practical sense, of the issue of fact calling for consideration. 20 The fact that the DSA is "remedial" legislation is relevant when its meaning is ambiguous or unclear. In this case the provisions of s 20(a) and s 10 of the DSA clearly specify which decisions are reviewable. 21 The respondent quoted Mason CJ in Bonds' case in the following terms: . . . the reference in the definition is s 3(1) to a "decision of an administrative character made . . . under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decisions listed in the extended definition contained in s 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute, or in the words of Deane J, "a determination effectively resolving an actual substantive issue." ((1990) 64 ALJR 463 at 468) 22 If the Tribunal had jurisdiction to review any decision of an administrative character made under the DSA, then Bond's case would be directly relevant. But the DSA specifies the kinds of decisions which are reviewable. In this case the decision must be "a decision approving the provision of financial assistance" under s 10 of the DSA. The approval of the EOI process is not a decision approving the provision of financial assistance. It does not even guarantee that financial assistance will be provided in the future. 23 Since no "reviewable decision" has been made both the stay application and the substantive application for review are dismissed. I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL. REGISTRAR / ASSOCIATE 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.