CITATION: CS & anor v Life Without Barriers [2007] NSWADT 249 DIVISION: Community Services Division APPLICANTS PARTIES: CS and CT RESPONDENT Life Without Barriers FILE NUMBER: 074028 HEARING DATES: 11 September 2007 SUBMISSIONS CLOSED: 11 September 2007 DATE OF DECISION: 15 October 2007 BEFORE: Britton A - Deputy President CATCHWORDS: Jurisdiction MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 LEGISLATION CITED : Commission for Children and Young People Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 Freedom of Information Act 1989 CASES CITED: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) & anor (1961) 106 CLR 48 APPLICANTS In person REPRESENTATION: RESPONDENT M Clarke, agent ORDERS: 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 applicants are 'authorised carers', more commonly known as 'foster parents'. On 13 June 2006, Life Without Barriers (LWB) wrote to each applicant in identical terms advising them that their names had been registered with the Commission for Children and Young People in relation to an incident involving a child who had been placed in their care. The basis for the report was an allegation that the applicants had attempted to take the child home without the express permission of his parent. That allegation is strenuously denied. 2 The applicants now apply to the Tribunal for review of LWB's decision to notify the Commission of their alleged misconduct. 3 A preliminary issue arises for determination, namely whether the Tribunal has the power to review that decision. Before addressing that point it is necessary to examine the legislative provisions governing the notification made by LWB. Notification of reportable conduct. 4 LWB is a 'designated agency': s 139 of the Children and Young Person (Care and Protection) Act 1998 (the Care and Protection Act). In that capacity it supervises the placement of children in 'out of home care' with authorised carers, such as the applicants: see s 140 of the Care and Protection Act. The applicants were authorised by LWB to care for children in out of home care. 5 In the letter of notification to the applicants, LWB advised that s 39 of the Commission for Children and Young People Act 1998 (the CCYP Act) required it to report the alleged conduct to the Commission for Children and Young People. Section 39 provides, (1) It is the duty of an employer to notify the Commission of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer, other than proceedings: (a) in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur, or (b) in which a finding is made that the allegations in respect of which the proceedings were brought were vexatious or misconceived. (1A) For the purposes of subsection (1), employment proceedings are taken to be completed by an employer if the employer has determined the proceedings, whether or not any right of appeal or review has been exercised or exhausted. (2) The employer who notified the Commission of any such information may notify, on request, sufficient details of the proceedings concerned to another employer (or employer-related body), or to the Commission, for the purposes of background checking by the other employer (or body) or the Commission. The employer is under a duty to notify those details if the regulations so provide. (3) Notification under this section extends to disciplinary proceedings completed within the period of 5 years immediately before the commencement of this section. (4) Notification under this section is to be in such form as the regulations provide or, subject to the regulations, as the Commission directs and consistent with the guidelines published under this Division. (5) It is the duty of an employer to retain records of information that the employer is required to notify under this section. That duty applies despite any requirement for disposal of the record (for example, any regulation applying to records of information of disciplinary proceedings with respect to public sector employees). 6 'Reportable conduct' is defined to include (s 33 of the CCYP): … (b) any assault, ill-treatment or neglect of a child, or (c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child. 7 'Relevant employment proceedings' is defined in s 33 to mean: disciplinary proceedings (in this State or elsewhere) against an employee by the employer or by a professional or other body that supervises the professional conduct of the employee, being proceedings involving: (a) reportable conduct by the employee, or (b) an act of violence committed by the employee in the course of employment and in the presence of a child. 8 Section 36(1)(a) of the CCYP Act provides that the Commission may collect and maintain a database of among other things, relevant employment proceedings that have been completed against any person. The Commission may give employers access to that information for the purposes of background checking, providing certain conditions are met: s 36(1)(b). 9 Section 35 requires the Minister to publish Guidelines relating to the procedures and standards for background checking. The Guidelines must contain procedures and standards relating to: the information to be provided to persons subject to background checking (including procedures enabling those persons to correct any such information). 10 Guidelines have been published by the Commission under s 36 of the CCYP Act: Employer Guidelines - Working With Children Check, 2 January 2007. They provide that the employer who made the notification of the reportable conduct may apply to the relevant agency, for a review of the categorisation of the reportable conduct. The Guidelines do not extend corresponding rights to the employee, the subject of the report, Guidelines, 4.7. 11 The CCYP Act expands the coverage of the Freedom of Information Act 1989 (FOI Act) to any employer involved in 'relevant employment proceedings': s 43. A person against whom any relevant employment proceedings have been taken can apply for access under the FOI Act for any document containing information about those proceedings and for those documents to be amended: s 43. A decision by an employer not to grant access to, or to amend documents that contain information that is incomplete, incorrect, out of date or misleading is reviewable by the ADT (s 53 of the FOI Act). 12 Section 52 of the FOI Act provides that the conduct of any person or body in relation to a determination made by an agency under the FOI Act may be investigated by the Ombudsman, under the Ombudsman Act 1974. The Ombudsman cannot investigate a complaint once proceedings have been commenced in the ADT. 13 Part 3 A of the Ombudsman Act requires the Ombudsman to keep under scrutiny the systems for handling and responding to reportable allegations, or reportable convictions, involving employees of designated agencies, such as LWB. The Ombudsman may conduct an investigation concerning any reportable allegation, or reportable conviction, against an employee of a designated government or non-government agency of which the Ombudsman has been notified or otherwise becomes aware. 14 Section 25 G of the Ombudsman Act gives the Ombudsman broad powers to conduct an investigation concerning any reportable allegation, or reportable conviction, against an employee of a designated government or any inappropriate handling of, or response to, any such reportable allegation or reportable conviction, whether on the Ombudsman's own initiative or in response to a complaint. Tribunal's jurisdiction 15 The statute establishing this Tribunal, the Administrative Decisions Tribunal Act, 1997 (the Tribunal Act), circumscribes its jurisdiction. The Tribunal has no power to inquire at large into matters that take its interest but over which it has no jurisdiction. The Tribunal has a duty to decline to hear such cases: The Mutual Life and Citizens' Assurance Company Ltd -v- Attorney General (Qld) & anor (1961) 106 CLR 48. 16 Section 36(1)(b) of the Tribunal Act provides that the Tribunal may review 'reviewable decisions'. A 'reviewable decision' is defined in s 8 to mean a 'decision of an administrator that the Tribunal has jurisdiction under an enactment to review'. Section 38 provides that: The Tribunal has jurisdiction under an enactment to review a decision (or 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. 17 The relevant enactments in this case are the Community Services (Complaints, Appeals and Monitoring) Act 1993 (CAMA Act) and the Care and Protection Act. Section 245 of the latter Act provides that a person may apply to the Tribunal for review of a decision to remove from them the responsibility for the daily care and control of a child or young person, or to cancel or suspend their authorisation as an authorised carer. In reviewing decisions of this nature, the Tribunal might be required to make findings about the alleged conduct that led to a report under s 39 of the CCYP Act. However, neither the CAMA Act nor the Care and Protection Act gives the Tribunal the power to review the decision of an agency to notify reportable conduct to the Commission. 18 It would seem from the above that subject to any statutory time bar, the applicants could apply to the Ombudsman to have the conduct about which they complain investigated. They also have various rights under the FOI Act. The Tribunal, however, does not have power to review the decision made by LWB, the subject of their application. 19 For these reasons the application cannot be entertained. 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.