INTRODUCTION
4.1 The Community Visitors scheme was established by the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (the Act). The Act deals with the appointment of Community Visitors, outlines the way they exercise their powers and provides for the oversight and co-ordination role of the Community Services Commission (CSC). In 1997-98, there were 34 Community Visitors who visited, at least once, 759 services (88% of eligible services). They reported on more than 5,000 service issues.1
WHO ARE COMMUNITY VISITORS?
Appointment of Community Visitors
4.2 The Minister of Community Services appoints Community Visitors. He or she must first consult the Community Services Review Council. The Minister can appoint only people who, in the Minister’s opinion, meet criteria listed in the Act.2 They are:
- appropriate knowledge and expertise in the matters relating to the community services in which he or she would be most involved;
- a commitment to the objectives of the community welfare legislation; and
- skills in solving problems about access to, and the use of, community services.
A Community Visitor is appointed for a period not exceeding three years and can be reappointed for consecutive appointments, not exceeding six years. The Act says nothing about how and when a Community Visitor’s appointment might be terminated.
Functions of Community Visitors
4.3 The functions of Community Visitors are not listed in the Act. They are in the Community Services (Complaints, Appeals and Monitoring) Regulation 1996.3 They are:
- to encourage the promotion of the legal and human rights of persons using visitable services, including the right to privacy, confidentiality, adequate information and consultation about the services and the right to complain;
- to consider matters raised by people using visitable services, staff of service providers and people with a genuine concern for the welfare, interests and conditions of persons using visitable services;
- to give people using visitable services information about advocacy services available to help them present a grievance and, in appropriate cases, to help them obtain the service; and
- to facilitate, wherever reasonable and practicable to do so, the early and speedy resolution of grievances or matters of concern by referring them to relevant service providers or other appropriate bodies.
In his second reading speech, the Minister focused on the independence of the Community Visitors and their monitoring role. They:
will provide residents . . . with an independent person who can provide a sympathetic ear for any needs, concerns or difficulties that clients may wish to share with someone who is not directly involved in the delivery of those services. Community visitors will also provide a basis for safeguarding against forms of system abuse by their ability to view the operations of all residential services.4
Community Visitors can report to both the CSC and the Minister of Community Services.
4.4 One of the objects of the Act is the provision of independent and accessible mechanisms for the monitoring of services, programs and complaints procedures.5 Community Visitors, together with the CSC, fulfil that object. The Minister appoints Community Visitors and, notwithstanding the silence of the Act on the matter, there is no doubt that the Minister has the power to terminate their appointment.6 It is not clear how or when the Minister can exercise the power to terminate an appointment. In their day to day work, Community Visitors are accountable to the CSC, which can set priorities for them. The CSC gives the Minister an annual report on their work and activities.
Issue 19
Should the Minister appoint Community Visitors? If so, with whom should he or she consult? If not, who should appoint them?
What experience and skills should Community Visitors have? How long should an appointment as a Community Visitor be?
Should the legislation spell out the circumstances in which a Community Visitor’s appointment can be terminated? What should these be?
To whom should the Community Visitors be accountable? Are the existing arrangements appropriate?
What functions should Community Visitors have?
4.5 Community Visitors play an important role in the CSC’s monitoring functions. After each visit, the Community Visitor reports to the CSC on a standardised form. This enables the CSC to build up a picture of services and to identify the location and circumstances of the most vulnerable residents. Some submissions suggest that the role of Community Visitors is not clear and should be clarified.7 Others suggest their role should be strengthened.8 On the other hand, there has been some criticism of the operation of the scheme. One submission said that, among other things, there have been inadequate processes for identification and visits, causing confusion for staff and clients, that there has been no feedback and that visits are infrequent.9 Another said that there should be protocols for Community Visitors.10
Issue 20
Should the list of functions of Community Visitors be changed? If so, how and why?
Should the functions of Community Visitors be listed in the Act, not the Regulation?
Is the Community Visitors scheme an effective way of independently monitoring children in care? Why or why not?
Is the Community Visitors scheme an effective way of independently monitoring people with a disability in residential care? Why or why not?
JURISDICTION
Visitable services
4.6 Community Visitors visit places where a “visitable service” is provided. They cannot visit any other place. A “visitable service” is a residential service provided by:
- the Department of Community Services;
- the Ageing and Disability Department;
- a funded service where the person using the service is in the full-time care of the service provider; or
- a service prescribed by the regulations as a visitable service.11
Should the jurisdiction of Community Visitors be extended?
4.7 The definition of “visitable service” does not cover all funded services, in particular some of the more flexible and innovative arrangements. In addition, there is considerable uncertainty about whether some services are included in the definition or not. Some submissions suggest that the definition should be widened to include more flexible arrangements, although there is some difference of opinion as to which should be included and which should not, for example, foster care.12 One submission suggests making the Community Visitors’ jurisdiction depend on the status of the individual, not the service. This would mean that the Community Visitor could follow a client from a group home into foster care.13
POWERS OF COMMUNITY VISITORS
4.8 The Act gives Community Visitors the powers they need to carry out their role. A Community Visitor can:
- at any reasonable time, enter and inspect a place at which a visitable service is provided;
- confer alone with any person who is a resident of, or employed by, such a place; and
- inspect any document held at such a place that relates to the operation of a visitable service.
These powers must be exercised in a way that, as far as possible, preserves the privacy of the people who live at the service. They must also be exercised in accordance with the principles listed in s3(2) of the Act, including the best interests principle and the right to be heard.
FOOTNOTES
1. s 8(4).
2. A person employed by the Department of Community Services, or the Ageing and Disability Department, either permanently or on a temporary basis, cannot be employed as a Community Visitor.
3. cl 6.
4. Hansard, 11 March 1993 at 767.
5. See para 2.5.
6. See Interpretation Act 1987 (NSW) s 47.
7. See eg Institute for Family Advocacy and Leadership Development, Submission; Burnside, Submission; Autistic Association of New South Wales, Submission.
8. Citizen Advocacy NSW, Submission; New South Wales Council for Intellectual Disability, Submission.
9. Burnside, Submission.
10. ACROD NSW Division, Submission.
11. s 8(4).
12. Association of Childrens Welfare Agencies Inc, Submission; People with Disabilities (NSW) Inc, Submission; Jim Simpson, Submission.
13. Australian Association of Social Workers, Submission.
