3.1 The Community Services Commission (the CSC) was established by the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (the Act). Part 6 of the Act deals with the constitution of the CSC, the appointment of the Community Services Commissioner (the Commissioner) and, if necessary, an Acting Commissioner, and the functions and powers of the CSC. Parts 3 and 4 outline how the CSC carries out its functions.

THE CSC AND THE COMMISSIONER

Who is the Commissioner?

3.2 The CSC is a statutory body managed by the Commissioner. The Commissioner is appointed by the Governor on the recommendation of the Minister. The Minister must first consult the Community Services Review Council (the Review Council). The person appointed must be someone who, in the Minister’s opinion, has:

• a commitment to the objectives of the community welfare legislation; and
• skills in solving problems about access to, and the use of, community services.

The Act does not specify how long a Commissioner’s appointment should be.¹ The Governor can remove the Commissioner from office, but only for incapacity, incompetence or misbehaviour.² The Act does not spell out how this might be established. If the Commissioner is absent or ill, or there is a vacancy, the Minister can appoint an Acting Commissioner and can remove him or her at any time.³

Does the Act protect the independence of the Commissioner and the CSC?

3.3 An independent CSC and Commissioner are an essential part of the scheme established by the Act. It is necessary to satisfy the objects of the Act.⁴ In his second reading speech, the Minister was very proud of the degree of independence for the CSC and the Commissioner which the Act achieved and the degree to which the community sector’s concerns had been satisfied.⁵ The provisions governing the appointment and termination of the Commissioner are similar to those applicable to other bodies, for example, the Legal Services Commissioner and the Health Care Complaints Commissioner.⁶ Submissions to the Commission overwhelmingly focus on the independence of the CSC and the Commissioner. The CSC’s independence is regarded as critically important⁷ and as one of the greatest strengths of the Act.⁸ Submissions are unanimous in their view that this independence should be maintained⁹ and in particular that the CSC should not be subsumed into another body such as the Ombudsman or the proposed Children’s Commissioner.¹⁰ The CSC’s work is a specialist area that the CSC is managing well.¹¹ Integrating the CSC into another body would blur its focus and weaken its effectiveness, and undermining the Commissioner’s independence would weaken an important safeguard for the most vulnerable and powerless people in the community.¹² An independent complaints handling, monitoring and review body for specialist disability services and an independent Commissioner is of critical importance to people with a disability.¹³

Issue 4

How important is the independence of the CSC? Should the legislation make the CSC more independent, or less?

Should the functions of the CSC be incorporated into another body? Why or why not?

Should the Minister be obliged to consult the Review Council before recommending someone for appointment as Commissioner?

THE CSC’S FUNCTIONS

What are the CSC’s functions?

3.4 The Act lists the CSC’s functions.¹⁴ They comprise functions associated with the CSC’s complaints handling, monitoring and inquiry role and with its education and development role. Its complaints handling functions include:

• receiving, assessing, resolving and investigating complaints made under s 12;
• helping service providers improve their complaints procedures;
• helping consumers make complaints;
• providing information, education and training, and helping others to do so, in making, handling and resolving complaints; and
• reviewing the causes and patterns of complaints and identifying ways in which the causes could be removed or minimised.

The CSC’s monitoring and inquiry functions include:

• inquiring into matters affecting service providers and consumers (on its own initiative or at the request of the relevant Minister); and
• monitoring and reviewing the delivery of community services.

Its education and development functions include:

• promoting and assisting the development of standards for the delivery of community services;
• educating service providers, clients, carers and the community generally about the standards; and
• promoting, liaising with and helping advocacy services and supporting the development of advocacy programs.

In addition to the functions listed in s 83, the CSC can review, on application or on its own initiative, the situation of a child in care or a person in care.¹⁵ It may also give advice and assistance to the Review Council.

Exercising the CSC’s functions

3.5 Like anyone else exercising functions under the Act, the CSC must exercise its functions in accordance with the principles listed in s 3(2). In addition, wherever possible, the CSC must:

• consult and cooperate with other relevant investigative agencies and those concerned with determining the rights and interests of consumers;
• consult people and groups with an interest in the provision of community services, particularly consumer organisations and their advocates; and
• have regard to the needs of consumers, such as children, who are least likely or able to complain.¹⁶

Are the CSC’s functions appropriate?

3.6 The list of functions in the Act is comprehensive. Most submissions to the Commission that address this issue are concerned that the CSC’s functions are not reduced. In particular, submissions say that the CSC’s capacity to initiate action of its own accord is important and should be preserved,¹⁷ and that the Act should ensure that the CSC’s systemic role is retained and strengthened.¹⁸

Issue 5

Should the Act confer more functions on the CSC? If so, what?

THE CSC’S REVIEW FUNCTION

What is the review power?

3.7 Section 11 of the Act gives the CSC a wide ranging power to review the situation of a “child in care”¹⁹ or a “person in care”.²⁰ The CSC can do the review on application or on its own initiative. It must look at such aspects of the welfare, status, progress and circumstances of the person as referred to in the application, or as it thinks fit. It can:

• inspect files, records and papers about the person held by the relevant Department and a service provider; and
• hear and receive submissions from anyone, including the person whose situation is being reviewed.

The main restriction on the exercise of this function is that the person whose situation is to be reviewed must have been in care for at least three months, or an aggregate of six months, in the 12 months before the review. When the review is complete, the CSC must write a report that tells the Minister of the result of the review and advise the Minister as to whether any change and, if so, what change, in the person’s circumstances or status would, in the CSC’s opinion, promote his or her welfare or interests.

Issue 6

Is the review power adequate?

3.8 Section 11 provides for an in depth review of the situation of an individual child in care and there is no doubt that the function is a very useful one. The CSC sometimes uses it to work out a way forward in a situation where there has been a complaint, instead of using the complaints procedure to focus on what has happened in the past. However, some submissions express concern that it is not enough to protect the interests of children in care. It is not an adequate substitute for a properly resourced, systematic mechanism for the review of children in care.²¹ The CSC itself says that the review function would be more effective if it included reviews of a group, not just an individual, and if the CSC could refer a matter to a service provider. It also questions the need for the time qualifications for a review.

Issue 7

Is the CSC’s review function effective to protect the interests of people with a disability in care? Why or why not?

Is it effective to protect the interests of children in care? Why or why not?

How can the CSC’s function of reviewing the situation of a person in care be made more effective?

Should the CSC’s review function be extended to groups of people in care? Why or why not?

DEALING WITH COMPLAINTS AGAINST SERVICE PROVIDERS

3.9 Unlike Part 3 of the Act dealing with the CSC’s review function, which is very short, Part 4, dealing with complaints against service providers, is long and very detailed. It spells out in intricate detail each step along the way from the making of the complaint to its final determination.

When can a complaint be made?

3.10 The basis of a complaint to the CSC against a service provider is that the service provider “acted unreasonably” in one of five specified ways. These are:

• by not providing a community service to a particular person;
• by providing a community service to a particular person;
• the way in which a community service was provided to a particular person;
• by withdrawing or varying a community service to a particular person; or
• the way a community service is administered in relation to a particular person.

Issue 8

Are there circumstances not listed when a service provider may be said to have acted unreasonably and a person should have a right to make a complaint to the CSC? What are they?

Should the list of instances of unreasonable behaviour in the legislation be exhaustive?

Who can complain?

3.11 Anyone who satisfies the CSC that he or she has “a genuine concern in the subject-matter of the complaint”, including a person responsible for, or a next friend of, the recipient of the service, can make a complaint (or, in legal terms, “has standing” to make a complaint). But a person whom the CSC finds to be “unjustifiably interfering” in the matter cannot do so.²² A complainant can withdraw a complaint at any time by notice in writing to the CSC. If so, the CSC may stop dealing with it or may continue to deal with it if it appears to the CSC that the matter raises:

• a significant issue of public safety or public interest; or
• a significant question as to the appropriate care or treatment of a client by a service provider.²³

Who should be able to make a complaint?

3.12 The standing provision gives considerable discretion to the CSC in deciding that a person has or has not “a genuine concern in the subject matter” or is “unjustifiably interfering”. Submissions have not addressed the issue, which suggests that the CSC has exercised its discretion appropriately. The Act contains an anomaly: it does not require a complainant to make a complaint in writing (and complainants often do not) but he or she must withdraw it in writing.

Issue 9

Should the standing provision be made easier or more difficult to satisfy? Why or why not?

Should complaints have to be in writing?

Should a complainant be able to withdraw a complaint orally, for example, by telephone? Why or why not?

Procedures for dealing with complaints

3.13 The legislation outlines in considerable detail the procedure the CSC must follow in dealing with a complaint against a service provider. The steps it must follow include:

• notifying the service provider, except in certain circumstances;
• carrying out an assessment process, during which a decision about how to proceed is made;
• referring the matter to voluntary alternative dispute resolution, if appropriate; and
• investigating.

The legislation includes time limits for the CSC to assess the complaint and to decide what to do with it, a long list of reasons why the CSC might decline to deal with a complaint, the conciliator’s functions and requirements for notice to the parties at various stages.

Is the legislation too prescriptive?

3.14 The procedures for dealing with complaints against service providers in the Act are very prescriptive and do not match the CSC’s practices. Some submissions say that the procedures should be more flexible.²⁴ The CSC itself distinguishes provisions that confer rights and protections on complainants and those that are merely procedural, and suggests that the former should be retained and the latter should be removed from the Act. This, the CSC says, would allow greater flexibility and would give services more opportunity to conduct their own investigations and take responsibility for making changes that would improve their services to clients. It would also reflect the CSC’s practice more realistically.²⁵ There is no good reason for entrenching a procedure that is not consistent with practice in legislation. The critical question is which provisions should be retained in the Act and which should be in administrative guidelines.

Issue 10

Which aspects of the CSC’s procedures should be in the legislation? Which aspects should be in the CSC’s administrative guidelines?

What general principle should guide the decision as to what should be in the legislation and what should be in the guidelines?

Notifying the service provider of the complaint

3.15 When the CSC receives a complaint against a service provider, it must notify the provider in writing that the complaint was made, the nature of the complaint, and the identity of the complainant. It need not do so, however, if the notification will, or is likely to:

• prejudice the investigation of the complaint;
• place the health or safety of a client at risk; or
• put the complainant at risk of intimidation or harassment.²⁶

Issue 11

In what circumstances, if any, should the CSC not have to notify the service provider of a complaint?

Assessing the complaint

3.16 The Act outlines a procedure for assessing, and deciding how to deal with, complaints.²⁷ In the course of assessing a complaint, the CSC may need more information. The Act says the CSC may require the complainant to give it more information, within a specified time. If the CSC wants more information from someone else, for example, the service provider, it must tell the complainant it needs more time to assess the complaint and, if the complainant agrees, it can tell the third party to provide the information by a specified date, agreed to by the complainant. There are time limits on the processes:

• If the CSC has not asked for more information from either party, it must assess the complaint as soon as possible, but not later than 28 days after receiving the complaint.
• If the CSC has asked for more information, it has 28 days from the date specified in the request for more information.

The outcome of the assessment process is that the CSC decides how it will deal with the complaint. It may:

• refer it to the service provider for resolution;
• refer it to alternative dispute resolution (ADR);
• investigate it;
• refer it elsewhere for investigation; or
• decline to entertain it.²⁸

The CSC must tell the parties in writing what it has decided, unless to do so would:

• prejudice the investigation of the complaint;
• place the health or safety of a client at risk; or
• put the complainant at risk of intimidation or harassment.

Are the time limits for assessment appropriate?

3.17 A time limit on the preliminary assessment process gives the complainant certainty that something will be done with his or her complaint within the specified time. It is an effective safeguard for the relatively powerless. On the other hand, a set time limit may be too inflexible, too long in some cases and unrealistic in others.²⁹

Issue 12

Should the Act contain a time frame within which the CSC must assess and decide what to do with a complaint? If so, what should it be?

In what circumstances, if any, should the time limit be extended?

Should the CSC be able to require a service provider to give more information?

3.18 The Act says that the CSC can require the complainant to give more information. It does not say that it can require the service provider to do so. There is no way of enforcing the requirement if the complainant refuses to give the information but it is clearly in the complainant’s best interests to do so. This may not be the case for the service provider.

Issue 13

Should the CSC be able to require a service provider, against whom a complaint has been made, to give more information at the assessment stage? If so, how should the requirement be enforced?

Alternative dispute resolution

3.19 The CSC can refer a complaint to alternative dispute resolution (ADR) if:

• it appears to the CSC that the complainant has taken all reasonable steps to resolve the matter with the service provider; and
• both parties consent.³⁰

When the conciliation proceedings are over, the conciliator must report the result to the CSC, who must notify the parties. In his second reading speech, the Minister hailed this as an “especially innovative” way of dealing with complaints.³¹ The conciliation process outlined in the Act is very formal. In practice, the CSC’s processes are much more informal.

Issue 14

Is ADR an appropriate way of dealing with complaints against service providers?

Investigation

3.20 If the CSC decides to investigate a complaint, the investigation must take place as quickly as possible.³² If the Commissioner thinks there are grounds for making adverse comment about a service provider, he or she must, before doing so, tell the service provider of the grounds and give the service provider an opportunity to make submissions. The submissions must be in writing and must be made within 28 days, or such longer period as the Commissioner allows. The Commissioner does not have to give the service provider an opportunity to comment before making adverse comment if the CSC is satisfied it is in the public interest to take immediate action without first informing the service provider.³³ At the end of the investigation, the Commissioner must give its report of the result and any recommended action to the complainant and the service provider against whom the complaint was made, and may give it to the Minister.³⁴

ENFORCEMENT OF THE CSC’S DECISIONS

CSC makes recommendations

3.21 If it undertakes an inquiry, review or investigation, the CSC may make “recommendations for improvement of the delivery of community services” to the relevant Minister, the Director General of the relevant Department, a service provider or other appropriate person. If it makes a recommendation to anyone other than the Minister for Community Services, it must give the Minister a copy of the recommendations. It may ask the Minister to table its recommendations, if it considers “they raise a significant issue of public safety or public interest”. If a service provider does not take action on a recommendation of the CSC made following an investigation, the CSC can recommend that the Minister table in Parliament a special report by the CSC about the recommendation.³⁵ However, the CSC cannot enforce its recommendations. Only some recommendations are enforceable by the Community Services Appeals Tribunal (the CSAT). If a service provider does not take action recommended by the CSC after an investigation of a complaint, the person who made the complaint can apply to the CSAT for a review of the service provider’s decision.³⁶ Otherwise, the recommendation is unenforceable.

Should the CSC’s recommendations be enforceable?

3.22 The Regulation limiting the CSAT’s jurisdiction to review a decision not to implement a CSC recommendation reflects the individual complaints focus of the legislation. Only an individual complainant can apply to the CSAT to review a decision of an individual service provider not to implement a recommendation made after an investigation of an individual complaint. A wide range of recommendations made by the CSC cannot be enforced in this way. A number of submissions to the Commission made the case for extending the range of recommendations enforceable by administrative review.³⁷ Others suggested that the Government should be bound by some CSC recommendations, for example, those that impact on the “fundamental safety, health and dignity” of people.³⁸ One submission suggested that the Minister should have a range of sanctions available to enforce CSC recommendations. These would include defunding, naming in Parliament, appointing an administrator and re-auspicing.³⁹

Issue 15

When should a person be able to take action to enforce a CSC recommendation? Who should be able to do so?

What means should be available to ensure the CSC’s recommendations are implemented?

JURISDICTION

What are community services?

3.23 The key to the jurisdiction of the CSC are the definitions in the Act of “community services” and “service providers”.⁴⁰ Generally speaking, the CSC’s functions can be exercised in relation to service providers and people receiving, or eligible to receive, community services. A “service provider” is:

• the Department of Community Services;
• the Ageing and Disability Department;
• a person or organisation funded by, or authorised by, the Minister for Community Services, the Minister for Aged Services or the Minister for Disability Services to provide a service;
• the Home Care Service of New South Wales or a person or organisation funded by it to provide a service; and
• a person or organisation deemed to be a service provider by agreement of a State or Federal Minister under an arrangement between the relevant Minister and the Minister for Community Services.⁴¹

A “community service” is:

• a service rendered under the community welfare legislation;⁴² or
• a service rendered by a person or organisation authorised by the Minister for Community Services, the Minister for Aged Services or the Minister for Disability Services to provide a service.

Should the CSC’s jurisdiction be extended?

3.24 There are differences of opinion about whether some funded services used by children and people with a disability come within the definition of community service, or are provided by a service provider as defined, and are therefore within the jurisdiction of the CSC. The CSC itself says that the Act should be clarified to make it clear whether or not services about which there is doubt are included. Other submissions say that the CSC’s jurisdiction should be extended.⁴³ This is particularly important as new ways of delivering services to both children and people with a disability are being developed. People identified by submissions as people who should be included within the jurisdiction of the CSC, if they are not already, include:

• people with a disability who live in licensed boarding houses;
• people with a disability who live in aged care facilities;
• people with a disability who come into contact with the criminal justice system;
• children with a disability who come into contact with the juvenile justice system;
• all children who come into contact with the juvenile justice system;
• children in the care of a foster carer;
• young people in nursing homes;
• people under the jurisdiction of the Public Guardian and the Protective Commissioner; and
• plans made under s 9 of the Disability Services Act 1993 (NSW).

In addition, some submissions suggest that the CSC should include a review team to monitor and investigate all deaths of people with an intellectual disability and people with a disability in care.⁴⁴

Issue 16

Should the CSC’s jurisdiction to review, inquire and monitor include any of the people listed above? Why or why not?

How should the Act be changed to ensure that it keeps abreast of new developments in service delivery?

POWERS

What powers does the Commissioner have?

Powers of search and entry

3.25 The Act give the Commissioner powers which he or she might need in order to exercise the CSC’s functions.⁴⁵ Subject to limitations outlined in the Act, the Commissioner can enter premises where services are provided. He or she can then:

• inspect the premises and make notes;
• examine, seize, retain or remove equipment;
• require that records be produced and make copies of, or take extracts from, them;
• take possession of, and remove, the records for further examination;
• require the owner or occupier to assist in the exercise of these powers; and
• ask anyone on the premises to answer questions, or produce records, about the delivery of services at or from the premises.

Limitations on the powers

3.26 The Commissioner cannot enter a service provider’s premises unless he or she:

• has a certificate of authority issued by the CSC and produces it if asked to do so;
• gives reasonable notice to the occupier, unless giving notice would defeat the purpose of the visit;
• enters at a reasonable hour of the day, except in an emergency; and
• uses no more force than is necessary.

Unless he or she has a search warrant, the Commissioner cannot enter a part of a premises used for residential purposes without the consent of the person living there.

Enforcing the Commissioner’s powers

3.27 It is an offence:

• to prevent the Commissioner from exercising his or her powers;
• to hinder or obstruct the Commissioner in exercising the powers;
• to refuse or fail to comply with a requirement to produce records or to assist, without reasonable excuse;
• to refuse or fail to answer a question, without reasonable excuse; or
• to give the Commissioner information knowing it is false or misleading.

The maximum penalty for the offence is 20 penalty units ($2,200). If a person required to do so fails to produce records or to answer a question,⁴⁶ the Commissioner can apply to a magistrate to issue a summons requiring the person to produce the records or to give evidence on the matter they failed to answer a question about. It is an offence to fail to comply with the summons. The maximum penalty is 20 penalty units ($2,200).

Are the Commissioner’s powers appropriate?

3.28 It is unclear why the Commissioner should be required to have a certificate of authority before he or she can enter a service. Although the Commissioner can ask questions and look at documents once he or she is on the premises, there is no power to do so otherwise. Appropriate powers are necessary to enable the Commissioner to exercise the CSC’s functions. The legislation that confers the powers must, however, strike an appropriate balance between the Commissioner’s powers and the service provider’s rights.

Issue 17

Are there any gaps in the Commissioner’s powers? Does the legislation unduly restrict the Commissioner in exercising these powers?

Are the rights of service providers and their clients well enough protected?

1. The current Commissioner, Roger West, was appointed for five years.

2. s 78.

3. s 79.

4. See para 2.5.

5. Hansard, 1 March 1993 at 767.

6. Legal Profession Act 1987 (NSW) s 129; Health Care Complaints Act 1993 (NSW) s 77. Cf the Ombudsman, who can be removed from office only by the Governor upon the address of both Houses of Parliament: Ombudsman Act 1974 (NSW) s 6.

7. See eg People with Disabilities (NSW) Inc, Submission.

8. Autistic Association of New South Wales, Submission.

9. See eg Citizen Advocacy NSW, Submission; New South Wales Council for Intellectual Disability, Submission; Northcott Society, Submission.

10. See eg Autistic Association of New South Wales, Submission; Citizen Advocacy NSW, Submission; New South Wales Council for Intellectual Disability, Submission.

11. Autistic Association of New South Wales, Submission.

12. New South Wales Council for Intellectual Disability, Submission.

13. People with Disabilities (NSW) Inc, Submission.

14. s 83.

15. s 11.

16. s 83(2).

17. Autistic Association of New South Wales, Submission; Citizen Advocacy NSW, Submission.

18. Citizen Advocacy NSW, Submission.

19. A child in care includes children who are: in the custody of the Director General of the Department of Community Services under a temporary care arrangement; living in a residential care centre; foster children and State wards: see s 11(6).

20. A person in care is a person in the care of the Director General of the Department of Community Services or the Ageing and Disability Department or a service provider: s 11(6).

21. Association of Childrens Welfare Agencies Inc, Submission. The Children (Care and Protection) Act 1987 (NSW), which has recently been reviewed, provides for a systematic review of children in care but the relevant Part of the Act (Part 9) was never proclaimed.

22. s 13.

23. s 15.

24. Jim Simpson, Submission; Community Services Commission, Submission.

25. Community Services Commission, Submission.

26. s 14.

27. s 16-25.

28. The Act includes a long, and not exhaustive, list of reasons why the CSC might decline to deal with a complaint (s 21).

29. Community Services Commission, Submission.

30. s 22.

31. Hansard, 11 March 1993 at 768.

32. s 36.

33. s 37.

34. s 38.

35. s 38(2)(d).

36. s 40(1)(d) and Community Services (Complaints, Appeals and Monitoring) Regulation 1996 cl 6.

37. eg Community Services Commission, Submission; People with Disabilities (NSW) Inc, Submission; Jim Simpson, Submission.

38. New South Wales Council for Intellectual Disability, Submission; see also Citizen Advocacy NSW, Submission.

39. Citizen Advocacy NSW, Submission.

40. s 4.

41. s 4.

42. This means the Community Services (Complaints Appeals and Monitoring Act 1993 (NSW) and Regulations, the Home Care Service Act 1988 (NSW) and Regulations and any other Act (and Regulations) administered by the Minister of Community Services within the Department of Community Services or by the Minister of Aged Services or the Minister for Disability Services within the Ageing and Disability Department.

43. See eg Association of Childrens Welfare Agencies Inc, Submission; Citizen Advocacy NSW, Submission; Council of Social Service of New South Wales, Submission; Intellectual Disability Rights Service Inc, Submission; New South Wales Council for Intellectual Disability, Submission.

44. See eg Citizen Advocacy NSW, Submission; New South Wales Council for Intellectual Disability, Submission.

45. s 84-86.

46. A person with access to the records can be required to produce them. However, although the Commissioner can ask questions of any person, on the premises, that person is not required to answer the question: s 84(3), (4).