INTRODUCTION
2.1 The policy objectives of an Act are found in the Act’s objects clause. In addition, the second reading speech made by the Minister when the Bill was introduced into Parliament often throws some further light on them. Part 1 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (the Act) lists the objectives of the Act and the principles which must be observed in exercising functions under the Act. The text of the objects clause is in Appendix B. Part 1 of the Act also includes a provision that imposes resource and political limits on the administration of the Act. The objects of the Act spell out a two pronged approach to improving service provision:
- encouraging desirable outcomes, for example, compliance with legislation and resolution of complaints at the local level; and
- providing mechanisms for achieving them.
RESOLVING COMPLAINTS
2.2 The focus of the objects of the Act is the resolution of complaints. The objects include providing a mechanism for resolving individual complaints about community services, especially complaints by people who receive services (or are eligible to do so), their families and advocates. The mechanism should be independent and accessible. The objects also articulate the preferred way for dealing with individual complaints: the legislation should encourage, wherever reasonable and practicable, resolution at a local level and also the use of alternative dispute resolution (ADR). In his second reading speech, the Minister for Community Services highlighted the desirability of resolving complaints quickly and at the local level:
The community services area . . . is an area that focuses on assisting people who are disadvantaged in our community. It is therefore very important that every effort is made to assist clients with complaints and grievances quickly and to provide a powerful framework for service providers to enhance their abilities to provide such a responsiveness.1
In his view, the underlying theme of the Act was that about 75% of all complaints about the delivery of community services could be resolved at or close to the place the services are provided.2
CHANGING ATTITUDES TOWARDS COMPLAINTS
2.3 Although focusing very much on them, the objects of the Act go beyond individual complaints to the need to change attitudes towards complaints. The first in the list of objects is to foster, in community services and programs, an atmosphere in which complaints and independent monitoring are viewed positively as ways of enhancing service and program delivery. The Minister also addressed this issue in his second reading speech:
The organisational framework is aimed at creating a safety net and providing a basis for motivating all agencies to improve client responsiveness. In the end it is a framework to assist in improving the relationships between service providers and their clients or customers. In essence, complaints and grievances are an opportunity to improve services to clients.3
ADMINISTRATIVE REVIEW
2.4 The objects of the Act include providing an independent and accessible mechanism for the review of administrative decisions. The Act establishes the Community Services Appeals Tribunal4 (the CSAT). The objects do not, however, spell out how the independence of the CSAT should be maintained or what characteristics would make it accessible to children and people with a disability.5 In his second reading speech, the Minister identified the CSAT as:
a significant safeguard in an environment which is based upon many decisions which are, by the nature of the matters being dealt with, value judgments against criteria established by law.6
MONITORING SERVICES
2.5 The objects of the Act include providing independent and accessible mechanisms for monitoring services, programs and complaints procedures. The Act establishes the Community Services Commission (the CSC) and the Community Visitors scheme. In his second reading speech, the Minister said that the Government had given the CSC all the powers the disability sector wanted the Commissioner to have for his or her monitoring role:
the power to investigate, to initiate inquiries, to obtain subpoenas and search warrant powers, the ability to require a report on actions taken on the commissioner’s recommendations, the ability to refer matters with recommendations for action, to provide annual and special reports to Parliament and for the bill to provide for the power to protect people against retaliation for making complaints.7
ENCOURAGING COMPLIANCE WITH OTHER LEGISLATION
2.6 The objects of the Act include encouraging compliance with the objects, principles and provisions of the community welfare legislation, for example, the Disability Services Act 1993 (NSW) and the Children (Care and Protection) Act 1987 (NSW).
IS THE OBJECTS CLAUSE OF THE LEGISLATION APPROPRIATE?
2.7 Generally speaking, submissions to the Commission that address the issue support the objects of the Act and say that they continue to be valid.8 However, as discussed above, the objects clause focuses very much on establishing appropriate mechanisms for resolution of individual complaints. Although the clause includes as objects fostering an atmosphere in which complaints and monitoring are viewed positively as an opportunity for improving services and encouraging compliance with legislation, there is no suggestion as to how this might be achieved. The objects do not include a systemic approach to improving outcomes for clients. The CSC itself identifies this gap. It says that the objects (and the Act itself) put too much focus on individual complaints handling and not enough on service monitoring and overall systemic oversight.9
ISSUE 1
Does the objects clause focus too much on individual complaints?
Does the objects clause focus enough on monitoring and review?
Should the objects clause remain unchanged? If not, what changes would you make?
FUNCTIONS MUST BE EXERCISED IN ACCORDANCE WITH PRINCIPLES
2.8 The objects clause of the Act includes a list of principles in accordance with which all functions under the Act must be exercised. This means that anyone who does anything under the Act, for example, the Minister appointing a Community Visitor, the CSC resolving a complaint, or the CSAT deciding an issue, must act consistently with the principles. The most important of the principles is that the best interests of a person for whom a service is being provided must be the paramount consideration in providing the service. Best interests is, however, a very subjective concept. What one person thinks is in someone’s best interests may be very different from what another person thinks. The legislation gives no guidance as to what those best interests might be, or what matters a decision-maker might consider in determining someone’s best interests. The second principle states that a person who receives (or is eligible to do so) a community service is to receive an adequate explanation of the service, is to be heard in relation to the service and may question decisions or actions that affect the person in relation to the service. Another principle says a complaint made by someone else on behalf of a person who receives (or is eligible to do so) a service is to be dealt with. There are three more principles. They say what service providers should do, and are concerned with protecting clients’ rights, information provision and complaints handling at the service level. They say a service provider is to:
- promote and respect the legal and human rights of anyone receiving a community service and must respect any need for privacy or confidentiality;
- (to the best of his or her ability) provide information that will enable a person receiving the service (or who will be) to make an appropriate decision;
- enable a complaint about the service to be dealt with fairly, informally and quickly and at a place convenient to the complainant.
In his second reading speech, the Minister focused on the consequence of taking seriously the view that the needs of consumers should be the paramount consideration. He said that this means that the services that are delivered will more closely reflect the needs of the consumers. The Act would encourage those service providers who had already embraced this view and challenge those who had not.10 He said little else about the principles.
WHAT IS THE ROLE OF THE PRINCIPLES?
2.9 Like the objects, the principles are generally supported by those submissions that mention them.11 However, it is difficult to understand the role of the principles in the legislative scheme. The Act establishes the CSC, the Community Visitors Scheme, the CSAT and the Community Services Review Council. It confers jurisdiction, functions, powers and duties on those bodies. Clearly, the best interests principle and the client’s right to be heard and to ask questions are relevant to the exercise of the Community Visitors’, the CSC’s and CSAT’s functions. It is not so clear what the principles applying to service providers are. The Act deals with service providers only incidentally, for example, as a person against whom a complaint has been made to the CSC or a party to proceedings in the CSAT. The principles do not impose on service providers a duty, nor confer on clients an enforceable right.
ISSUE 2
Should the Act include a list of principles to guide the exercise of the functions of Community Visitors, the CSC and the CSAT? If so, what should they be?
Are the existing principles appropriate? Why or why not?
Should the Act include a list of matters to be considered in determining what is in someone’s best interests? If so, what should they be?
SECTION 5
2.10 The Act imposes limits on the exercise of the CSC’s and the CSAT’s functions. Section 5 says that neither the CSC nor the CSAT can determine an issue, or make a decision or a recommendation, in a way that is (or requires taking action that is):
- beyond the resources appropriated by Parliament for community services;
- inconsistent with the way those resources have been allocated by the Ministers of Community Services, Aged Services or Disability Services, or the Directors General of their departments; or
- inconsistent with Government policy, as certified in writing by the Minister of Community Services, Aged Services or Disability Services and notified to the CSC or the CSAT.
Section 5 reveals the tension inherent in establishing independent bodies to review government decisions and the decisions of government funded service providers. As the Minister said in his second reading speech:
[The Act] clearly empowers the commission and the tribunal to be effective in reviewing not only government decisions but those of bodies funded by the Government to provide services in the community services area. On the other hand, the legislation sets out the primacy of responsibility of the elected representatives of the people for policy determination and resource allocation.12
IS SECTION 5 APPROPRIATE?
2.11 The CSC and the CSAT were established to fulfil the objective of providing “independent . . . mechanisms for the resolution of complaints, for the review of administrative decisions and for the monitoring of services, programs and complaints procedures.” The CSC and the CSAT are independent bodies.13 Nevertheless, they are fettered by the requirement not to make decisions or recommendations in a way that is inconsistent with government policy and resource allocation. This means that they may not be able to make a decision or recommendation that is, in their view, in a person’s best interests, if to do so would be inconsistent with government policy or resource allocation. Clearly, it is the role of the Government, not the CSC or the CSAT, to allocate community resources. Nevertheless, s 5 imposes a greater restriction on the CSC and the CSAT than similar provisions in some other Acts. The Health Care Complaints Act 1993 (NSW), for example, restricts the recommendations the Health Care Complaints Commission can make by reference to resource allocation, not policy.14 The Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) says that, in determining an application for a review of a reviewable decision, the Administrative Decisions Tribunal:
must give effect to any relevant Government policy in force . . . except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.15
The CSAT considered the implications of s 5 in deciding whether or not to set aside a decision of the Minister to adopt a transition plan in Greystanes. In deciding to set aside the transition plan, it said:
The Minister’s obligation is to approve only those plans which comply with the requirements of the DSA [the Disability Services Act 1993 (NSW)]. While funding issues are of considerable importance to government, the Tribunal must apply and interpret the standards set down in the legislation.16
Several submissions suggest that s 5 should be carefully examined.17
ISSUE 3
Does s 5 unduly limit the independence of the CSC and the CSAT?
Should s 5 be repealed? If so, what should take its place?
Should s 5 be amended? If so, how?
Is s 5 inconsistent with the Act’s objects? Why, or why not?
FOOTNOTES
1. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1993 at 767.
2. Hansard, 11 March 1993 at 769.
3. Hansard, 11 March 1993 at 767.
4. This will become the Community Services Division of the Administrative Decisions Tribunal under the Administrative Decisions Tribunal Act 1997 (NSW). The Community Services Division of the Administrative Decisions Tribunal is due to commence operation on 1 January 1999.
5. Cf the objects clause of the Administrative Decisions Tribunal Act 1997 (NSW) s 3.
6. Hansard, 11 March 1993 at 767.
7. Hansard, 11 March 1993 at 768.
8. Burnside, Submission; Community Services Commission, Submission; Council of Social Service of New South Wales, Submission; Multiple Sclerosis Society of New South Wales, Submission.
9. Community Services Commission, Submission.
10. Hansard, 11 March 1993 at 769.
11. Burnside, Submission; Multiple Sclerosis Society of New South Wales, Submission.
12. Hansard, 11 March 1993 at 768.
13. See para 3.2 and 5.2 for an outline of the characteristics of the CSC and the CSAT.
14. s 91.
15. s 64.
16. People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services at para 7.14.
17. See eg People with Disabilities (NSW) Inc, Submission; Institute for Family Advocacy and Leadership Development, Submission.
