Bontoc Enterprises Pty Ltd and Minister for Community Services [2000] AATA 106 (16 February 2000)

Last Updated: 17 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 106

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/417

GENERAL ADMINISTRATIVE DIVISION )

Re BONTOC ENTERPRISES PTY LTD

Applicant

And MINISTER FOR COMMUNITY SERVICES

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 16 February 2000

Place Brisbane

Decision The Tribunal has no jurisdiction to review the application for review.

(Sgd) DP Breen

PRESIDENTIAL MEMBER

CATCHWORDS

JURISDICTION - Commonwealth Childcare Assistance - Quality Improvement and Accreditation System - Child Care (Eligible Child Care Centres) Guidelines - whether the Minister had made a determination under Clause 12A.

Child Care Act 1991 (Qld) s 31

Child Care Act 1972 (Cth) s 4C

Child Care (Eligible Child Care Centres) Guidelines Clauses 21, 21A

REASONS FOR DECISION

16 February 2000 Deputy President DP Breen

1. This case was heard before me on 14 July 1999 in Brisbane. The applicant company was represented by Mr D Howie, the husband of the company's director. The respondent Minister was represented by Mr J Walsh, Departmental Advocate.

2. This was a hearing for want of jurisdiction. The Tribunal had to ascertain whether it had the power to review a failure by the respondent Minister to "rescind, overturn or strike down" the earlier recommendation by the National Childcare Accreditation Council (NCAC) that the applicant company was "failing to make satisfactory progress in the Quality Improvement and Accreditation System".

3. The applicant company is a provider of childcare in the Eagleby area. To remain eligible for payments of Commonwealth Childcare Assistance the childcare centre must participate in the Quality Improvement and Accreditation System (QIAS). According to the QIAS handbook, a step in this process is that a review officer must come and inspect the premises and the programmes developed by the childcare centre. The applicant company objected to the review officer chosen by NCAC and under Section 31 of the Child Care Act 1991 (Qld), refused to permit her entry.

4. NCAC refused to appoint another review officer and as a consequence of their being unable to carry out an inspection of the premises, they made a report to the Minister advising that the applicant company was failing to make satisfactory progress in the QIAS.

5. The applicant company wrote a letter of complaint about this to the respondent Minister who replied by highlighting the applicant's duties under the guidelines and strongly recommending that they arrange a review visit as soon as possible.

6. Section 4C of the Child Care Act 1972 (Cth) allows the making of guidelines with respect to the exercise of any of the Minister's powers under Section 4B of the Act, which relate to the determination of eligibility.

7. There was some dispute as to what constituted the actual guidelines which had been made under Section 4C. The Tribunal obtained an official copy of the Child Care (Eligible Child Care Centres) Guidelines. These are the actual guidelines which have legislative force. The applicable guidelines are set out below:

"21A. Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for review of the following decisions:

(a) a refusal to determine under clause 5 that a child care centre is an eligible child care centre on the ground that the operator of the centre has not registered the centre in accordance with clause 6;

(ab) a decision under clause 5A to revoke a determination that a child care centre is an eligible child care centre;

(ac) a decision under subclause 21AB(3) that an operator is not actively seeking to have a child care centre reopen or that the centre has been used for another commercial purpose;

(b) a determination under clause 21 that an eligible child care centre is no longer an eligible child care centre.

21. The Minister may determine that an eligible child care centre is no longer an eligible child care centre if:

(a) the Council reports to the Minister that the operator of the centre:

(i) has not registered the centre with the Council to participate in the Quality Improvement and Accreditation System administered by the Council; or

(ii) has not participated in the Quality Improvement and Accreditation System in accordance with the provisions of the Handbook set out in Schedule 1; or

(iii) has not made satisfactory progress to improve the quality of care in the operator's centre in accordance with that System; and

(b) after the Minister informs the Parliament of the name of the operator or the centre on which the Council has reported; and

(c) after the Minister acts under paragraph (b), the Council reports to the Minister that the operator has not rectified the relevant matter set out in the Council's first report."

8. It was conceded by the respondent that at the date of hearing the applicant company was an eligible child care centre. Clause 21A(b) provides the only avenue of appeal which may apply to the applicant. Under Clause 21, the Council has made a report to the Minister that the operator of the centre has not participated in the QIAS in accordance with the provisions of the handbook, namely, failing to allow an inspection by a review officer. The Minister had not, however, informed Parliament of the name of the operator or the centre on which the Council had reported. Therefore, the Minister could not, and in fact had not, made a determination that an eligible child centre was no longer eligible. It is only this final determination which is reviewable by the Administrative Appeals Tribunal.

9. Accordingly, the Tribunal has no jurisdiction to review the application for review.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member

Signed: Emma Oettinger

Associate

Date/s of Hearing 14.7.99

Date of Decision 16.2.00

Counsel for the Applicant

Representative for Applicant Mr D Howie

Counsel for the Respondent Mr J Walsh, Departmental Advocate

Solicitor for the Respondent