Administrative Decisions Tribunal New South Wales Medium Neutral Citation: People with Disability Australia Incorporated v The Minister for Disability Services [2012] NSWADT 33 Hearing dates: on the papers Decision date: 02 March 2012 Jurisdiction: Community Services Division Before: S Higgins, Deputy President Decision: The Tribunal has jurisdiction to hear and determine the applicant's application for review. Catchwords: Jurisdiction - application for dismissal - no reviewable decision Legislation Cited: Administrative Decisions Tribunal Act 1997 Community Services (Complaints, Review and Monitoring) Act 1993 Community Services (Complaints, Review and Monitoring) Regulations 1993 Disability Services Act 1993 Disability Services Regulations 2008 (repealed) Disability Services Regulations 2010 Interpretation Act 1987 Cases Cited: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 People with Disability Australia Incorporated v Minister for Disability Services and Anor [2011] NSWCA 253 [30 August 2011]. People with Disability Australia Incorporated v The Minister for Disability Services [2011] NSWADT 100 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 Category: Interlocutory applications Parties: People with Disability Australia Incorporated (Applicant) Minister for Disability Services (Respondent) Representation: R Francois for the Applicant R Graycar for the Respondent B Fogarty of Gilbert + Tobin Lawyers (for the Applicant) J Kavanagh of the Crown Solicitors Office (for the Respondent) File Number(s): 104009 REasons for decision Introduction 1COMMUNITY SERVICES DIVISION: (S HIGGINS, DEPUTY PRESIDENT): The applicant, People with Disabilities Australia Incorporated (PWD), seeks review of a decision of the respondent Minister, the Minister for Disability Services, 'to fund' the Sunnyfield Association (Sunnyfield) to provide services and accommodation at Wadalba Group Homes for people with intellectual disabilities exiting the Peat Island Centre. In its application for review, PWD relied on the Minister's media release, of 23 April 2010, announcing the funding to the Sunnyfield as evidencing the decision for which it sought review. That decision, PWD asserted to be a decision of the Minister to provide 'designated services' under the Disability Services Act 1993 (the DS Act). 2The Minister contended that PWD's application for review should be dismissed for lack of jurisdiction, as PWD had failed to identify a decision of the Minister that was a reviewable decision. By consent, I dealt with this issue as a preliminary matter together with an argument on jurisdiction in regard to another application in which PWD sought review of the 'conduct' of the Minister in continuing to provide a 'designed service' at the Summer Hill Group Homes for people with intellectual disability. My decision in regard to these applications was published on 11 May 2011 (see People with Disability Australia Incorporated v The Minister for Disability Services [2011] NSWADT 100) (the earlier decision). In that decision I made no final determination in regard to the Tribunal's jurisdiction to hear and determine PWD's application for review in regard to the funding decision of the Sunnyfield, as I formed the view that there was a relevant issue the parties should have an opportunity to address before any final determination was made. That issue being the question as to whether, the decision for which PWD had sought review was a decision made in the 'purported exercise' of a function conferred, or imposed on the Minister under the DS Act: see subsection 6(2) and (3) of the Administrative Decisions Tribunal Act 1997 (the ADT Act). 3In accordance with the orders I made, the parties provided further written submissions. The Minister contends that subsection 6(2) and (3) of the ADT Act is of no relevance and adheres to her position that the Tribunal has no jurisdiction to hear and determine this application. PWD contends that the Tribunal does have jurisdiction. 4For the reasons set out below, I find that the Tribunal does have jurisdiction to hear and determine PWD's application for review. Relevant legislation 5It is unnecessary to repeat, in full, the relevant legislative provisions of the ADT Act, DS Act and the Community Services (Complaints, Reviews and Monitoring) Act 1993 (the CRM Act), the Community Services (Complaints, Reviews and Monitoring) Regulation 1993 (the CS Regulation). These were set out in the recent decision of the Court of Appeal in People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253 at [22]-[33] and at [9] to [20] of my earlier decision. 6The relevant provisions, in so far as they relate to the matter in issue in this application, are set out below. 7Section 6 of the DS Act relevantly provides as follows: 6 Minister to ensure that designated services are provided and funded in conformity with the Act (1) It is the duty of the Minister in providing and funding designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, to ensure that the services are provided and funded in conformity with the objects of this Act and the principles and applications of principles set out in Schedule 1. (2) ... 8The term 'designated services' is defined in sect 4 to mean: designated service means a service that is provided or funded by the Minister and that is prescribed by the regulations, or that belongs to a class of services so prescribed, for the purposes of this definition. 9The term 'target group' is defined in section 5 of the DS Act. It is unnecessary to repeat that section. 10The functions of the Minister under the DS Act are set out in section 8 as follows: 8 Minister to facilitate provision of designated services (1) The Minister has the function of facilitating the provision of designated services to persons in the target group. (2) The function may be exercised in one or more of the following ways: (a) by the provision of designated services to persons in the target group, either directly to those persons or indirectly through other persons or bodies, or (b) by the provision of financial assistance, either directly to persons in the target group or indirectly through other persons or bodies, or (c) by the encouragement of the provision of services to persons in the target group by other persons and bodies 11Section 10 of the DS Act sets out the powers of the Minister as follows: 10 Financial assistance (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. 12The term 'eligible organisation' is broadly defined in section 4 of the DS Act and includes a body corporate (see paragraph (a)). 13Section 20 of the DS Act sets out the decisions of the Minister that are reviewable decisions. It relevantly provides as follows: 20 Decisions that are reviewable by Administrative Decisions Tribunal For the purposes of section 28 (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, (b) a decision to provide financial assistance to an eligible organisation in relation to the provision of designated services if the terms and conditions on which the assistance is provided to the organisation do not comply with section 12, (c) a decision to provide financial assistance to a person or eligible organisation in relation to the conduct of an approved research or development activity if the terms and conditions on which the assistance is provided to the person or organisation do not comply with section 13, (d) ..., (e) ..., (f) .... 14It is common ground that as at 23 April 2010, when the then Minister made his announcement, no 'designated services' had been prescribed for the purpose of the DS Act as no regulations had been proclaimed at that time. However, clause 4 of the Disability Services Regulations 2008 (which was repealed on 1 September 2009) and clause 4 of the Disability Services Regulations 2010 (which came into operation on 9 July 2010) were in the following terms: '4 (1) The class of services that consists of all services provided or funded by the Minister (including co-funded services provided or funded through the Home Care Service, but not including any other co-funded services) is prescribed for the purposes of the definition of designated service in section 4 of the Act. (2) In this clause, co-funded service means a service that is provided or funded by the Minister in accordance with an agreement in force between the State and the Commonwealth under the Home and Community Care Act 1985 of the Commonwealth. 15Section 38 of the ADT Act confers jurisdiction on the Tribunal to review a 'reviewable decision'. Section 8 of the ADT Act defines what is meant by the terms 'reviewable decision'. It relevantly provides as follows: 8 What is a reviewable decision? (1) A "reviewable decision" is a decision of an administrator that the Tribunal has jurisdiction under an enactment to review. (2) ... 16Section 6 of the ADT Act defines what is meant by the word 'decision'. It relevantly provides as follows: 6 What is a decision? (1)General meaning of a 'decision' includes any of the following: (a)... (2) For the purposes of this Act, a decision was made under an enactment is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment. (3) For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made even if the decision is beyond the power of the decision-maker to make it. (4) .... Contention of the parties and evidence 17As I have explained, the Minister contends that section 6 of the ADT Act has no 'bearing' where the Tribunal otherwise does not have jurisdiction to review the decision the subject of the application. It is contended that, as at 23 April 2010, there was no decision under the DS Act, which was a 'reviewable decision' falling within the meaning of subsection 8(1) of the ADT. That is, as there were no prescribed 'designed services' under the DS Act, there were no decisions of Minister that were 'reviewable decisions'. 18However, the Minister did not go so far as to say that the decision to fund Sunnyfield was not made in accordance with the requirements of the DS Act. 19PWD contends that section 6 of the ADT Act did apply. That contention was based on the content of a letter, dated 12 March 2010, written by the Chief Executive Officer of Ageing, Disability & Home Care of the Minister's Department to the General Manager Housing and Support of the Sunnyfield. That letter relevantly stated as follows: Dear Ms Willis Request for a service Proposal Outcome HU-0910 -FC-41 Group Home Trust, Fig Close Wadalba I am writing on behalf of the Minister for Disabilities Services, the Hon. Paul Lynch MP, to inform you of the outcome of the recent invitation to submit a Request for a Service Proposal to provide an accommodation support service for twenty people with a disability to live in a cluster of group homes in Fig Close, Wadalba. The proposal that your organisation submitted has been duly considered and approval has been given for your organisation to receive an annual recurrent grant of $2.75 million to operate the service for clients and to meet their supportive needs. In the near future your organisation will receive a Funding Agreement which outlines the requirement in regard to the receipt of public funds and operation of the service in accordance to the Disability Services Act 1993 and the application of Disability Service Standards. ... Yours faithfully Jim Moore Chief Executive 20This document was produced by the Minister's Department, in response to a summons issued by the Tribunal, at the request of PWD, after the publication of my earlier decision. In addition to producing the abovementioned letter, the Minister produced a copy of a submission to the Chief Executive that was dated 5 February 2010 and signed 'approved' on 10 March 2010. The subject matter/issue of the submission was: 'To approve the assessment outcome of the Request for a Service Proposal HU-0910-FC-41 for a cluster of group homes for twenty Peat Island clients in Fig Close, Wadalba for an annual recurrent allocation of $2,270,000 to Sunnyfield Independence.' 21Attached to the submissions were two earlier submissions, a Summary Assessment Report in regard to 3 proposals (one of which was that submitted by Sunnyfield) and a completed Departmental Template, relating to Sunnyfield, in particular its Service Details, Outlet Details and other relevant information about the services it would provide (the Template). 22In regard to the Service Details, the Template states that the start date of the funding is 1 March 2010 and that the end date is 30 June 2012. The Template also identifies the 'Service target group' to be those with 'intellectual disability.' On the 8 th page of the Template, the concluding paragraph under the heading 'Service Objectives' contains the following statement: 'Group Accommodation Services will operate according to the NSW Disability Services Act 1993 and related services. A service model will provide innovative, appropriate and cost effective 24 hour care and support for people to live in a community setting.' 23The Minister had also filed and served a redacted copy of a submission to the Chief Executive, dated 30 March 2010 and marked 'approved' on 31 March 2010. The subject matter/issue of that submission was stated to be: 'Closure of Peat Island and the associated funding requirements for Fig Close Group Homes'. 24The recommendation in that submission was in the following terms: 'That the Chief Executive approves funding for the supported accommodation service and day program costs for Fig Close Group Homes from 1/05/2010-30/06/2010 and 2010/11 from unallocated program initiatives funding.' Consideration 25On the basis of the material provided and produced (pursuant to the summons) it appears that the decision for which PWD seeks review is in fact a decision made, on behalf of the Minister, by the Chief Executive of the Minister's Department. It has not been suggested that, in making the decision, the Chief Executive exceeded his delegated authority, or acted without any delegated authority from the Minister. In any event, having regard to all the material provided and produced, I am satisfied that the decision to fund Sunnyfield was made having regard to the requirements of the DS Act. That is, without being provided with any contrary material, the irrefutable inference is that the decision was purportedly made in accordance with paragraph 10(1) of the DS Act. 26However, I agree with the Minister that this does not necessarily answer the question as to whether the decision is a 'reviewable decision' for the purposes of the ADT Act. The answer to that question lies in the proper construction of sections 10 and 20 of the DS Act. 27Other than for the nine-month period during which there were no prescribed designated services, there is no dispute that a decision of the Minister to approve the provision of financial assistance in the circumstances set out in section 10 of the DS Act is a 'reviewable decisions' by the Tribunal (see section 20(a) to (c) of the DS Act and sections 8 and 38 of the ADT Act). That is, section 10 of the DS Act vests the Minister with the power to make such a decision and where the Minister make a decision under that section, section 20 of the DS Act provided that it is a 'reviewable decision'. 28In my view, the fact that during a nine-month period, no 'designated service' were prescribed under the DS Act did not mean that the power vested in the Minister under section 10(1) of the DS Act was thereby revoked or taken away. As can be seen from the terms of paragraph 10(1)(a) and (b) of the DS Act, the Minister is given power to approve the provision of financial assistance to a person, or an eligible organisation for enabling the person, or the organisation to provide designated services. The fact that there were no prescribed designated services, can mean no more than the Minister, or his delegate, exercised his/her power under these paragraphs for a purpose which went beyond his/her authority at that time. 29It is well established that decisions which are outside the authority of a decision maker are nevertheless reviewable decisions: see Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, which was affirmed on appeal Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; 24 ALR 307. That is, the Tribunal has jurisdiction to hear and determine applications seeking review of such decisions. On review it will be a questions as to whether the decision was or was not beyond the power of the decision maker to make. That review, where the Tribunal sits in the shoes of the decision maker, is determined as at the date of the hearing: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. Furthermore, the role of the Tribunal is to determine the matter by having regard to the applicable law as at that time. In these proceedings, it is conceded that designated services are now prescribed for the purpose of the DS Act in the Disability Services Regulation 2010. Accordingly, the Tribunal will review the decision in accordance with the terms of these regulations. 30Even if I am wrong, in my view it is arguable that clause 4 of the Disability Services Regulation 2010 is retrospective in its operation. While I appreciate that there is a well accepted presumption against the retrospective operation of legislation, it is difficult to accept that Parliament intended decisions of the Minister, or his/her delegate, to provide financial assistance to a person or an eligible organisation for the purpose of providing services to persons with intellectual or physical disabilities (i.e. the target group) would do so without regard to the requirements of the DS Act. The object and purpose of the DS Act did not change during the relevant time. Section 8 of the DS Act continued to vest the Minister with the function of facilitating designated services to the target group and by reason of section 48 of the Interpretation Act 1987 these functions continued and authorised to be exercised from time to time. Furthermore, the meaning of a 'designated service' did not alter to that contained in the 2008 Regulations to that contained in the 2010 Regulations. It was defined very broadly to include 'all services provided or funded by the Minister.' Accordingly, having regard to the requirements of section 48 of the Interpretation Act 1987 , in my view there is a strong argument that the presumption against retrospectivity does not apply to clause 4 of the Disability Services Regulations 2010. 31For the reasons set out above, I find that the Tribunal does have jurisdiction to hear and determine PWD's application for review. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. 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: 02 March 2012