People with Disability Australia Inc v Minister for Disability Australia Incorporated [2009] NSWADT 259 (2 October 2009)

Last Updated: 28 October 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
People with Disability Australia Inc v Minister for Disability Australia Incorporated [2009] NSWADT 259


DIVISION:
COMMUNITY SERVICES DIVISION

PARTIES:
APPLICANT
People with Disability Australia Incorporated

RESPONDENT
Minister for Disability Services



FILE NUMBERS:
094003

HEARING DATES:
26 August 2009

SUBMISSIONS CLOSED:
26 August 2009



DATE OF DECISION:
2 October 2009

BEFORE:
Britton A - Deputy President





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997
Community Services (Complaints, Appeals and Monitoring) Act 1993
Disability Services Act 1993

CASES CITED:
People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Unrepd 12 February 1998)

TEXTS CITED:


APPLICATION:
Standing; application out of time

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
R Francois, barrister
RESPONDENT
P Singleton, barrister


ORDERS:
1.Leave is granted for the application for review of the Minister’s decision deemed to have been made on 5 June 2008 to be made out of time.
2.PWD has standing to bring the application for review of the Minister’s decision deemed to have been made on 5 June 2008.


Reasons for Decision:

REASONS FOR DECISION

1 People with Disability Australia Incorporated is an organisation whose major aims are the ‘empowerment and promotion of the rights of people with disability and the creation of a society in which people with disability can fully participate’ (PWD Constitution [3]). It has received recognition and funding from both Commonwealth and State governments as a ‘peak’ body representing the interests of people with disabilities. Among other ways, it seeks to achieve these aims by acting as an advocate on behalf of disabled people, ‘particularly where their rights have been infringed’ (PWD Constitution [4]).

2 It is as an advocate for people with disabilities that PWD brings this application for review of a decision or decisions of the Minister.

3 Among the Minister’s many responsibilities is the provision of what are known as ‘designated services’ under the Disability Services Act 1993. For the purposes of the application, the services in question are two residential institutions operated by the NSW Department of Ageing and Disability and Home Care -- the Lachlan and Peat Island Centres.

4 PWD asserts that the institutions are not being managed in conformity with the objects of the Disability Services Act and that this situation has been ongoing since 1993. It seeks review of what it describes as the Minister’s decision(s) to continue to run the two centres in that way (the subject decision).

5 On 10 August 2009, the Tribunal (differently constituted) held that the Administrative Decisions Tribunal had jurisdiction to review the subject decision(s). The Tribunal held that the subject decision was deemed to have been made on 5 June 2008.

6 These reasons address two further preliminary issues -- should leave be granted for the application to proceed out of time and does PWD have standing to bring the application for review of the subject decision.

Leave to proceed out of time
7 It is not in issue that the application is out of time. The application for review was required to be lodged with the Tribunal on or about 24 July 2008 (Administrative Decisions Tribunal Act 1997 (Tribunal Act)), ss 55(1)(d) & 55(2)(a)). The application, which was not lodged until February 2009, was therefore about seven months out of time.

8 The Tribunal has a discretionary power to accept an application for review of a reviewable decision, which is made out of time. The power is conferred by s 57 of the Tribunal Act, which provides:

57 Late applications to Tribunal

(1) Despite section 55 (1)(d), the Tribunal may, on application by an interested person seeking to make a late application to the Tribunal, extend the time for the making by that person of an application if the Tribunal is of the opinion that the person has provided a reasonable explanation for the delay in making the application.

9 While not raised by either party, in my view the power to grant leave for this application to proceed out of time in this matter is conferred by the Community Services (Complaints, Reviews and Monitoring) Act 1993 ‘the Community Services Act’, not the Tribunal Act. Section 29(3) of the Community Services Act gives the Tribunal an unfettered discretion to grant leave to ‘any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application’. See also s 29(6) of the Community Services Act. In my view nothing turns on which of the two provisions apply as in this matter the reasons for the delay are relevant to the decision to grant leave for the application to proceed out of time.

10 PWD contends that the power to accept the application out of time should be exercised, as a reasonable explanation has been given for the delay in making the application. It contends that a combination of circumstances -- its attempts to reach a negotiated outcome, the delay in securing a grant of Legal Aid and the intervention of the Christmas break -- resulted in the application being delayed. The Minister contends that PWD has not provided a reasonable explanation for the length of delay and on that basis leave to proceed out of time should be refused.

11 Tendered in these proceedings was an affidavit prepared by the solicitor acting for PWD in which she outlined the history to the making of the application.

12 Discussions between the parties From June to late November 2008 there was an exchange of correspondence between PWD’s solicitors and the Minister about the subject decision. On 5 June 2008, PWD wrote to the Minister seeking reasons for her decision to continue to provide designated services in a manner that it alleged did not conform to the objects of the Disability Services Act and also an internal review of the Minister’s decision to continue to operate the Services. The Minister responded on 3 July 2008 that she could not identify any relevant reviewable decision but nonetheless was willing to meet with PWD. PWD responded on 30 July asking the Minister to reconsider her position; providing further arguments in support of its position and seeking further information for the meeting scheduled for 8 August 2008. The Minister responded on 5 August. The parties met on 8 August. Agreement was not reached. On 16 October 2008 PWD’s solicitors wrote to the newly appointed Minster, gave a history of the discussions between his predecessor’s office and the PWD and sought a meeting to progress the issue. The Minister responded on 5 November 2008 stating that he remained willing to meet with PWD despite some apparent obfuscation on the part of PWD’s officers about the proposed meeting. PWD’s solicitors responded two weeks later apologising for ‘any confusion’ and pressing the request for a meeting to discuss the subject decision.

13 Legal Aid On 15 December 2008, PWD’s solicitors were notified that the application for legal aid made three months earlier had been granted.

14 Leave arrangements PWD’s Executive Director was on leave between 19 December and mid-January 2009. On 23 December 2009 PWD’s solicitors instructed counsel, to finalise the application to the Tribunal. Counsel was then on leave and did not return until the end of January.

15 The application was lodged on 10 February 2009.

16 Counsel for the Minister, Mr Singleton contends that the explanation provided by PWD does not constitute a reasonable explanation for what he characterises as an excessive delay. He argues that an assessment of whether the delay was reasonable must have regard to the whole of the period. He points to, for example, the further delay of some two months, after notification of the grant of legal aid.

17 I accept Mr Singleton’s argument that it was possible for PWD to have lodged the application prior to February 2009. It was not essential for example for counsel to draft the initiating application. Nor was PWD prevented from making the application while it endeavoured to negotiate an agreed outcome with the Minister.

18 However the issue to be determined is not whether it was possible for PWD to have lodged the application within time or at least at some earlier date but whether a reasonable explanation for the delay has been provided.

19 In determining this issue, as a starting point it is necessary to have regard to the mandatory time rules imposed by the Tribunal Act for the making of applications for review of reviewable decisions. It is against that framework that the reasonableness or otherwise of the explanation provided by PWD must be assessed.

20 It is understandable that PWD would have been eager to avoid commencing proceedings involving the Minister while alternative dispute resolution options were being pursued. The combination of a change in Minister and difficulties in arranging meetings explains why some five months elapsed before it was decided that those efforts had been exhausted. That in my view constitutes a reasonable explanation for the delay at least up until about late November.

21 PWD is a not for profit organisation funded by the State and Federal Governments. Given the many calls on its limited resources it is understandable that its Board would have been reluctant to commence proceedings until such time as a grant of Legal Aid was confirmed. It is also understandable given the nature of these proceedings and their inevitable complexity that it was considered prudent to retain counsel to finalise the drafting of the initiating application.

22 After notification of the grant of legal aid and before counsel and PWD’s Executive Director took leave, there was a narrow window of opportunity when the application could have been lodged. Given that this fell immediately before Christmas in my view it is understandable that the application was not finalised in that period.

23 While it was possible for PWD to have made the application within time or at least before it did, having regard to all circumstances I am satisfied that a reasonable explanation has been provided for the delay. Therefore I have decided to exercise the power to extend the making of the application to 10 February 2009.

Does PWD have standing to bring the application?
24 Two issues fall to be determined first, does PWD have standing to bring the application? If so, is it necessary to consider if PWD is ‘unjustifiably interfering’ in the subject-matter of the decision?

Does PWD have a genuine concern?
25 Section 28 of the Community Services Act sets out various categories of decisions by the Minister and public servants that are reviewable under the Act. Section 29(1) of the Act then outlines the threshold test for standing to apply for a review by this Tribunal of one of those decisions. Applications may be made by ‘any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject matter of the decision concerned’ (emphasis added).

26 Section 29 provides in full:

29 Who may apply to the Tribunal?

(1) An application may be made to the Tribunal by any person who demonstrates to the satisfaction of the Tribunal that he or she has a genuine concern in the subject-matter of the decision concerned.

(2) Without limiting the generality of subsection (1), an application may be made by any person who is responsible for, is a next friend of or is appointed by the Tribunal to represent the person to whom the application relates.

(3) The Tribunal may, on application, grant leave to apply for a review of a decision to any person who was entitled to, but did not, apply for a review of the decision within the time allowed for an application.

(4) A person found by the Tribunal to be unjustifiably interfering in a matter is not entitled to apply to the Tribunal for a review in relation to the matter.

(5) In determining whether a person is unjustifiably interfering in a matter, the Tribunal is to take into account, to the extent that it is practicable to do so, the wishes and interests of any other persons who have an interest in the matter.

(6) This section applies despite any contrary provisions of the Administrative Decisions Tribunal Act 1997.

27 The question to be resolved is, whether PWD has a ‘genuine concern’ in the subject-matter of the subject decision. Mr Singleton, contends that PWD has not provided satisfactory evidence of a ‘genuine concern’ and has mounted a variety of arguments in support of his contention.

28 First, Mr Singleton argues that the proper construction of the test is that an applicant must satisfy the Tribunal that it has a ‘real (true, proper, material, not theoretical) interest in or connection with (e.g., because it is affected by) the subject-matter of the challenged decision. Emotional, philosophical or political commitment is not sufficient’.

29 He argues that the interpretation of the term ‘genuine concern’, adopted by the Community Services Appeals Tribunal in People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Unrepd 12 February 1998; ‘the Dunrossil Case’), was incorrect and ought not be followed by this Tribunal in the present case.

30 The Minister does not dispute that the question of the meaning of ‘genuine concern’ was thoroughly canvassed by the Tribunal. After reviewing:

the constitutions of the two peak bodies involved in that case,

the evidence concerning their activities on behalf of their constituents or clients,

their funding arrangements and relationship with government,

the common law principles in relation to standing and the effect of those principles on the interpretation of the equivalent of s 29(1),

a number of Australian and English authorities,

the scope and objects of the legislation,

the available extrinsic materials, including the Second Reading Speech (Hansard, 31 March 1993) and the 1992 report of the Working Party on Appeals and Complaints Mechanisms for Community Services, and

the ordinary meanings of the words used in the legislation itself

the Tribunal concluded (at [4.13]) that ‘the legislation is beneficial and ... that the standing provisions ought be interpreted widely’

31 Among the materials the Tribunal relied on in coming to that conclusion was the Second Reading Speech in which the then Minister told Parliament ‘an advocate, not a legal advocate but an advocate in the more general sense will be able to lodge a complaint’: Dunrossil [4.10.1].

32 After this process of consideration and refinement of argument, the Tribunal reached the conclusion that a person had standing if the subject-matter engaged the person’s sincere attention or affected them in some way provided that the concern was ‘something more than that which an ordinary member of the public possesses’: see [4.8].

33 This definition, if taken in the abstract, is wide and flexible to the point of ambiguity. Counsel for the Minister noted however, that in Dunrossil the Tribunal had called attention to the fact that, when standing is an issue, much would depend on context.

34 Counsel for the Minister does not challenge the view of the Community Services Appeals Tribunal (CSA) that the words ‘genuine concern’ must be given a broad and beneficial definition. It follows that if a new definition is to be adopted, as he contends it ought be, it must be equally wide and beneficial if it is to do the work Parliament intended it to do. The Dunrossil definition was not the subject of an appeal to the Supreme Court and, as far as I am able to tell, has not been challenged until now.

35 In our view, Mr Singleton’s proposed redefinition of the term ‘genuine concern’, if adopted, would not fundamentally alter the position reached by the CSA Tribunal in Dunrossil. It is evident from a close reading of that case that the CSA Tribunal regarded the two applicants as having a ‘real (true, proper, material, not theoretical) interest in or connection with the subject-matter of the challenged decision’ going beyond a merely ‘emotional, philosophical or political commitment’.

36 In that case, PWD brought the proceedings not out of idle curiosity, or because it wished to advance some sort of political or philosophical agenda, but because it sought, in the interests of a group of 54 people with intellectual disabilities, to correct what it perceived to be a poor decision by the then Minister in relation to the services those 54 people were to receive under new funding arrangements.

37 The Tribunal recognised that while PWD did not directly represent the consumer of the Dunrossil services, or their parents, they represented ‘the wider disability community and those associated with them, in putting forward their view of what is in the wider public interest’: [4.13]. Nevertheless, the Tribunal concluded, it was important for an applicant to identify the nature of the interest or concern said to justify standing, the importance of the concern to the applicant and the closeness of the applicant’s relationship with the particular subject-matter.

38 Mr Singleton argues that the facts in Dunrossil and the present case are significantly different. In Dunrossil, the challenge was to a decision to do something new, the effects of which were prospective. In this case, he says, the subject decision(s) relate to decision(s) to maintain operations at the two centres. Moreover, he reveals that the Government has made decisions to close both Services at some time in the future.

39 It seems to me that the factual distinction upon which Mr Singleton places so much reliance, is a distinction without a difference. In each case, PWD seeks to make an argument on behalf of users of services provided by the Minister. Whether they are brand-new or about to be retired does not alter the fact that the Minister is responsible for providing them and that the users or consumers are people with disabilities. It is this fact that is significant, not the immaterial distinction fastened on by counsel for the Minister.

40 Mr Singleton also argues that PWD has not satisfactorily demonstrated any specific connection with the relevant subject-matter, namely the facilities themselves or the people living within them. He says, ‘So far as the Minister knows ... the applicant’s concern is a general and philosophical one’.

41 It is difficult to accept this as a serious proposition. Tendered in these proceedings is a letter from Ms Michelle Pitt, Business Analyst, Contract Management Unit in the NSW Department of Ageing, Disability and Home Care to the Chief Executive Officer of PWD dated 16 July 2008 in which Ms Pitt tells Mr Bowden that ‘approval has been received for an extension of funding for your organisation to 30 June 2009 for the provision of disability peak activities’ (emphasis added). The NSW Government provided almost $365,000 to PWD for those activities. The activities funded included ‘policy and advocacy’: see Schedule 1, Pt B of the Service Description Schedule attached to the funding agreement signed by officers of the Department and PWD.

42 Governments rely on peak bodies and other representative bodies to develop policy initiatives, to assist in refining government policy and to seek support from their constituents for government policy and legislation. One of the most important functions of peak organisations is to act as advocates in the interests of their constituents. In the welfare field, advocacy is conducted in multiple forums, including courts and tribunals. It is a mistake to dismiss this form of activity or interest as merely ‘general’ or ‘philosophical’.

43 The funding agreement is powerful evidence that the Minister or, if not the Minister, senior officers in his Department are well aware that PWD has more than general or philosophical concern with the operation of the institutions for people with disabilities. The Departmental officers obviously know that one of the key activities in which PWD is involved is advocacy on behalf of people with disabilities. The Department also knows from previous cases that PWD has taken to the Community Services Appeals Tribunal and to the Administrative Decisions Tribunal that one of its advocacy techniques is, in what it regards as appropriate cases, to bring proceedings to review government decisions affecting the conditions or rights of disabled people living in institutions.

44 Because of the vulnerability of people with disabilities, and because of the inequality of power and resources between government and individual family members or carers, it seems to me, as a general proposition, entirely appropriate that bodies such as PWD, with their specialist knowledge and their resources, take on the task of advocacy in the interests of their members and their wider constituencies. This might be especially so for people with intellectual disabilities.

45 What is the concern or interest that PWD represents in this case? PWD asserts that its interest is in ensuring that the Services conform with the objects of the Disabilities Services Act. The Minister contends that because PWD has neither articulated in what way the services are non-compliant or particularised the orders sought, the Tribunal could not be satisfied at this stage at least, that PWD has ‘a genuine interest in the subject matter of the decision concerned’.

46 In my view PWD has a clear interest in ensuring that persons residing at Peat Island and the Lachlan centres have the benefit of residing in an institution which is administered in accordance with the principles contained in schedule 1 of the Disability Services Act. That it has brought this application virtually speaks for itself in that regard. The subject-matter, the decisions said to have been made by the Minister, which affect the living conditions of residents at Peat Island and the Lachlan centre, also has a demonstrably close connection with PWD’s constitutional aims. PWD’s concern with philosophy and policy only has significance if it ultimately has an effect on the real lives of people with disabilities.

47 PWD has a history of engagements of this nature with government ministers over a considerable period. That lends support to the view that it is not an officious bystander with a merely passing or insubstantial interest in these types of matters but a representative body genuinely engaged in pursuing what it understands to be the interests of its constituency and the wider public interest.

48 It may ultimately be as I understand the Minister to suggest, that PWD’s concerns are misplaced. This does not mean that PWD does not have a ‘genuine concern’ in the relevant subject-matter. Nor in my view does PWD’s failure to articulate at this stage of the proceedings in what ways the services are non-compliant mean that it is premature to assess whether a ‘genuine concern’ has been established.

49 For these reasons, I consider that PWD has a ‘genuine concern’ in the relevant subject-matter under review in this case.

Unjustifiable interference?
50 The Minster contends that a finding that PWD has a ‘genuine interest’ does not finalise the issue of standing as the Tribunal must consider whether PWD is ‘unjustifiably interfering’ with the subject decision (s 29(4) of the Community Services Act). He contends by the operation of s 29(5) the Tribunal cannot proceed to consider that question until such time as the wishes and interests of any other persons who have an interest in the matter has been taken into account. In this matter, this includes the residents of the Centres and their families.

51 As I understand it the Minister argues that a number of ‘intersecting factors’ demand that the Tribunal consider whether PWD’s involvement amounts to ‘unjustifiable interference’. These include first, the contention that PWD is either engaged in a futile academic exercise about the correctness of a decision made more than a year ago, which has been executed or it is pursuing an ideological agenda which, if successful, will render vulnerable people homeless. Second, the announcement of the decision to close both Centres. Third, PWD’s failure to particularise the relief sought.

52 I agree with the argument put by counsel for PWD that as a matter of statutory construction, a party seeking standing does not need to satisfy ss 29(1) and 29(4) of the Community Services Act. The language of the provision is not conjunctive. Once a finding has been made that s 29(1) has been satisfied it is for the party claiming that a person is ‘unjustifiable interfering’ to discharge the onus of proof on the balance of probabilities. The Minister bears that onus here.

53 In my view whether or not PWD’s strategy is misconceived, as Mr Singleton suggests, it is self-evident that PWD’s intentions are neither to engage in an arid debate about an old decision nor to throw intellectually disabled people to the wolves. As PWD sees it, the current proceedings are a means to an end, namely to ensure that for as long as they continue in operation the Services operate in accordance with the objects of the Disability Services Act.

54 That the Minster has announced that the Centres will close does not in my view indicate that PWD is ‘unjustifiably interfering’. No evidence has been adduced about when the Centres are likely to close and/or the arrangements proposed for current residents.

55 Nor in my view is the failure of the PWD to particularise the relief sought, evidence of ‘unjustifiable interference’. There is no statutory requirement that an applicant in proceedings of this nature specify the orders they believe the Tribunal should make on review.

56 The Tribunal is not required to determine whether a party is ‘unjustifiably interfering’ in the subject matter of the decision merely on the basis of an assertion made by another party. There must be some cogent evidence or compelling submission to warrant the exploration of that issue. I am not persuaded that that has occurred.

57 Mr Singleton correctly points out that other interested parties may wish to be joined in these proceedings. If so, and they have standing, they may have points of view different from both those of PWD and the Minister. Or they may support one or other of those parties. Even if established that the residents and their families disagree with the position taken by PWD this does not establish that PWD is ‘unjustifiably interfering’.

58 For these reasons I am not satisfied that it is necessary to consider whether PWD is ‘unjustifiably interfering’ in the subject decision.

Orders

1. Leave is granted for the application for review of the Minister’s decision deemed to have been made on 5 June 2008 to be made out of time.
2. PWD has standing to bring the application for review of the Minister’s decision deemed to have been made on 5 June 2008.