Refusal of Service Waiver: Brisbane City Child Care Pty Ltd v Dalton

This is a very interesting case heard by the Queensland Supreme Court in which the applicant (Brisbane City Child Care Pty Ltd) sought a review of the decision of the respondent (Queensland Department of Education and Training - the Regulatory Authority in Queensland under the National Law) to refuse to grant a service waiver. It is significant because it is an application for review of a decision by the Regulatory Authority outside the review provisions outlined in section 192 of the National Law. In fact the National Law does not provide for any review of a decision by the Regulatory Authority to refuse to grant a waiver. Instead, the application for review was made under the power of the Queensland Supreme Court to review administrative decisions on administrative law principles. It is likely that such reviews are available in other States and Territories depending on the applicable legislation.

The full facts are set out in the judgment. However, in brief, the applicant is an approved provider and operates a service (Brisbane City Child Care). It applied for a service waiver, under section 87, from the outdoor space requirements of regulation 108(2) in respect to "infants" only. It also sought to amend its service approval to allow it to care for more than 147 children the service was allowed to care for. The application was based on the reasoning that if at any one time only 60% of the total number of children were outside, then the outdoor space requirement for children could be reduced to 60% of the 7m2 which would otherwise apply (i.e. 4.2 m2). 

The Department refused to grant the service waiver and the approved provider sought administrative review by the Supreme Court under the provisions of the Judicial Review Act 1991 to get the decision set aside. The grounds on which it relied were:

• breach of the rules of natural justice
• failure to take into account relevant considerations
• taking into account irrelevant considerations
• making errors of law in the form of misconstruction of particular legislative provisions.

The Court found that one of the grounds had been made out by the approved provider:

I have found that the decision made by the respondent should be set aside with effect from the day it was made because of the respondent’s failure to comply with the requirements of procedural fairness (para. 73)

Specifically, the Court found that the natural justice hearing rule had been breached. The hearing rule requires that the "...party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and be informed of the nature and content of adverse material." (Court quoting Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, at para. 38). Paragraphs 38-52 outline the specific breaches of the rule by the Department.