Beard v Director General, Department of Community Services [1999] NSWADT 49 (9 July 1999)

Last Updated: 14 July 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Beard -v- Director General, Department of Community Services [1999] NSWADT 49

REVISION DATE:

DIVISION: Community Services

APPLICANT:

Dorothy Beard

RESPONDENT:

Director General, Department of Community Services

FILE NUMBERS: 994008

HEARING DATES:

SUBMISSIONS CLOSED: 23/06/1999

DECISION DATE: 09/07/1999

JUDICIAL MEMBER: N Hennessy Deputy President

LAY MEMBER: B Gelin Member

LAY MEMBER: J Green Member

APPLICANT KEYWORDS:

MATTER FOR DECISION: Preliminary matter: question of jurisdiction

PRIMARY LEGISLATION CITED: Children (Care and Protection) Act 1987

APPLICANT REPRESENTATIVE: Hunter Community Legal Centre Inc

RESPONDENT REPRESENTATIVE:

ORDERS: 1. Application dismissed

DECISION:

1 On 21 April 1999, the applicant, Ms Dorothy Beard, lodged an application with the Tribunal for review of a decision made by the Department of Community Services that she was no longer an approved foster carer. Ms Beard is an Aboriginal woman who has fostered both Aboriginal and non-Aboriginal children for the Department of Community Services and the Aboriginal Children's Service, for approximately 20 years.

2 According to Ms Beard, in June or July 1998, three children who had been in her care for a short period made allegations to the police. The children were interviewed jointly by the Joint Investigative Team comprising police and officers from the Department of Community Services. The team made a finding and the Department wrote to the applicant on 7 August 1998 advising her that "you are no longer an approved carer."

3 The preliminary question which arises in this case is whether the Tribunal has jurisdiction to determine this application. In accordance with s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act), rather than having a hearing, the Tribunal relied on documents provided by each party to make its decision.

4 The Tribunal's jurisdiction is set out in s 38 of the Administrative Decisions Tribunal Act 1997. That section states that:

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.

5 Section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993 states that:

A person may apply to the Tribunal for a review of any of the following decisions:

(a) a decision made by a person or body by or under the community welfare legislation where the legislation expressly provides that the decision is a reviewable decision for the purposes of this paragraph.

6 The applicant relies on s 112(a)(vi) and s 112(d) of the Children (Care and Protection) Act 1987 as providing the jurisdictional basis for her application. The relevant parts of Section 112 state that:

For the purposes of section 40(1)(a) of the Community Services (Complaints, Reviews and Monitoring) Act 1993, any of the following decisions are reviewable by the Administrative Decisions Tribunal:

(a) a decision of the Minister or the Director-General, as the case may be:

(iv) to suspend or revoke a licence or authority, as referred to in Schedule 1,

(d) a decision of the Minister or the Director-General to give an approval referred to in section 42(2) or 44(2). (See Administrative Decisions Legislation Amendment Act 1997, Schedule 1.3 [2])

7 The applicant made several submissions in support of her arguments that the Tribunal has jurisdiction. Some of these were:

that she has "an implied fostering authority" because of the number of children the Department placed directly with her and the fact that she was the holder of a foster license under the old Child Welfare Act 1939;

the children were placed with her with the approval of the Director-General and the notification that she was no longer an "approved carer" amounts to a revocation of that approval.

8 The respondent denies that the applicant has a fostering authority or that the Director General has made a decision to give an approval referred to in s 42(2).

9 Schedule 1 of the Children (Care and Protection) Act 1987 defines "authority" as "a private fostering agency authority or a fostering authority." "Fostering authority" is defined in s 3 to mean "an authority that has been granted as a fostering authority under clause 3 of Schedule 1 and that is in force." Clause 3 of Schedule 1 sets out the procedures to be followed by the Minister when a person makes an application for a fostering authority. The only indication in the legislation of who should hold a fostering authority is in s 42 and s 43. Section 42 makes it an offence for a person who has in his or her care one or more children for the purpose of fostering not to have a fostering authority. Section 42(2)(a) and (b) provide for an exception in respect of:

(a) a child who has been placed in the care of the person by an authorised private fostering agency; and

(b) a child who has been placed in the care of the person by, or with the written approval of, the Minister or the

Director-General.

10 On the basis of s 42, it appears that fostering authorities are necessary for people who are fostering independently of the Department or a private agency. (Other exceptions not relevant to this application are set out in s 42(2)(c) and (d). They relate to the situation where the child if related to the person and where a person who, at any licensed residential child care centre, acts as a foster parent to any children). Where a child is placed by the Minister or Director General, or by an authorised private fostering authority, the applicant will not be committing an offence if she does not have a fostering authority. In this case children were placed with the applicant either by the Minister or Director General (s 42(2)(b)) or by an authorised private fostering agency (42(2)(a)).

11 The respondent rightly points out that a fostering authority could not be implied from the number of children the applicant fostered or the existence of a foster licence under the Child Welfare Act 1939. The terms of the licence were limited to a specific child and would have ceased to operate when the child ceased to be a ward or turned 18. The child was born on 28 January 1978 and is now over the age of 18 and no longer a ward.

12 In these circumstances the Department has not made a decision to revoke a fostering authority under s 112(a)(vi) because the applicant did not have a fostering authority, nor did she need one.

13 The applicant's alternative submission was that the Department's decision can be reviewed by the Tribunal because it is a decision specified in s 112(d) to give an approval referred to in s 42(2).

14 The only "approval" referred to in s 42(2) is in s 42(2)(b). The approval is "the written approval of the Minister or the Director General." The respondent argued that s 42(2)(b) "seems to be prefaced on the need to identify a child who is to be placed in the care of a person, and for that person to then seek the written approval of the Minister or Director General for that placement." I agree with this submission. This situation could arise where, for example, a neighbour or friend who was not related to the natural parents, agreed to foster a child. The effect of s 42 is that a person would be committing an offence if they agreed to such an arrangement without obtaining the written permission of the Minister or the Director General.

15 No written approval is needed in the circumstances of this case where children were placed in the care of the applicant by the Minister or Director General or by an authorised private fostering agency. Consequently there is no reviewable decision under s 112(d) and the application is dismissed.

16 The circumstances of this case demonstrate that it is misleading for the Department to advise foster carers that they are "no longer an approved carer." This implies that some kind of blanket approval has been given which is now being withdrawn. The Department could say that it does not intend to place any children with that person in the future.