INTRODUCTION
5.1 The Community Services Appeals Tribunal (the CSAT) is an integral part of the legislative scheme established by the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (the Act). Under the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act), expected to take effect from 1 January 1999, however, the CSAT will be abolished and reconstituted as the Community Services Division of the Administrative Decisions Tribunal (the ADT). The CSAT was established by Part 7 of the Act, which also deals with the appointment of its members, its jurisdiction, its composition and some procedural matters. Part 5 of the Act deals with proceedings before the CSAT. When it becomes operational, the new legislation will repeal Part 7 and amend Part 5. The matters dealt with by Part 7 and procedural matters generally are found in the ADT Act. This chapter assumes the implementation of the ADT Act.
THE ADT AND ITS MEMBERS
Community Services Division of the ADT
5.2 The Administrative Decisions Tribunal (the ADT) is established by the ADT Act. It has four Divisions, including a Community Services Division. When the new legislation commences, the President of the CSAT becomes a Deputy President, and the Divisional Head, of the Community Services Division of the ADT. Other existing members become non-judicial members of the ADT assigned to the Community Services Division. Under the ADT Act, the Deputy President will be appointed by the Governor and non-judicial members by the Attorney General. The Deputy President must be a judge or a magistrate or a legal practitioner of at least seven years standing. Non-judicial members must, in the Minister’s opinion, have special knowledge or skill in relation to any of the matters the ADT deals with.1 In addition, the members, including the Divisional Head, must have been recommended to the Attorney General by the Minister for Community Services, and the Attorney General must have advised the President (or Governor) of the recommendation. The Minister for Community Services cannot recommend someone unless the Minister is of the opinion that the person:
- has knowledge of and experience in administration, child care, community services, education, law, medicine, psychology or social work; or
- has other suitable qualifications or experience warranting his or her assignment to the Division or appointment as Divisional Head.2
A member is appointed for a period not exceeding three years, but is eligible for reappointment. The Governor may remove a member from office for incapacity, incompetence or misbehaviour.3
Is the independence of the ADT protected?
5.3 An independent mechanism for the review of administrative decisions is one of the objects of the Act.4 Submissions suggest that the CSAT has fulfilled that object. All submissions to the Commission that addressed the issue said that the independence of the CAMA bodies (the CSC and the CSAT) should be maintained. This is because:
- They are critically important, especially to people with a disability.
- Any attempt to weaken them would weaken an important safeguard for the most vulnerable and powerless people in the community.
- They are a key safeguard against the further politicisation of issues which arise among service providers, people with a disability and their families, advocates, guardians and friends, and the Government.5
The effect of the abolition of CSAT and the creation of the Community Services Division of the ADT is that there will no longer be a stand alone tribunal. This may result in some reduction of independence. The President of the CSAT will be the Deputy President of a larger body. Under the Act, the CSAT reported to Parliament every year. Now, the President of the ADT will present an annual report that covers all the ADT’s operations. Members could previously be appointed for a maximum of five years, now it is three years. On the other hand, the new legislation makes it more difficult to remove a member from office.
Issue 23
Does the legislation adequately protect the independence of the Community Services Division of the ADT?
Should the Divisional Head be appointed for a term or should he or she have tenure? If for a term, for how long?
Members’ qualifications
5.4 A number of submissions raised the issue of the qualifications for appointment to the ADT. They suggested that the Act should specify knowledge of, and experience in, disability issues as a necessary qualification of appointment.6 One submission suggested that membership should be more representative of the disability sector, not just of consumer groups.7 The qualifications for membership of the Community Services Division of the ADT are the same as those for membership of the CSAT. One significant difference is that the Minister for Community Services does not have to consult the Review Council (or anyone else) before recommending a person for appointment.
Issue 24
What should be the qualifications of appointment to the Community Services Division of the ADT?
Should the membership be representative of the parties who appear before it?
Should the Minister be required to consult before recommending a person for appointment? If so, whom?
JURISDICTION
Reviewable decisions
5.5 The CSAT’s jurisdiction is somewhat hotchpotch. It can review some decisions made under community welfare legislation, but not others.8 It cannot review a substantive decision made by the CSC, except on the ground that it was beyond the CSC’s powers. It can also review a CSC decision to do an investigation that was beyond its powers. The CSAT can review a decision by a service provider not to implement a CSC decision. Finally, it can review some decisions of the Minister for Community Services or the Director General of the Department. The selection of decisions made by government agencies that are reviewable seems to be rather ad hoc and there are gaps and inconsistencies. For example, under s 112 of the Children (Care and Protection) Act 1987 (NSW), the CSAT can review a decision by the Minister or the Director General to grant a licence for a child care service but it cannot review a decision not to do so. The CSAT can review funding decisions in relation to disability services but it cannot do so in relation to children’s or other community services. Some provisions that confer jurisdiction on the CSAT have not yet been proclaimed.9 The same jurisdiction presently exercised by the CSAT will be transferred to the Community Services Division of the ADT when that Division of the ADT commences operation.10
5.6 Providing mechanisms for the review of administrative decisions of government agencies makes for better decision-making. There should be a principled approach to the kinds of decisions that should be reviewable. This would ensure that like decisions were or were not reviewable and would iron out the gaps and inconsistencies in the legislation conferring jurisdiction on the CSAT. The Administrative Review Council (ARC) is an expert policy development body of the Commonwealth. It has identified as a basic principle of administrative law the principle that a decision is suitable for merits review (that is, review on the ground that, although lawfully made, it is, in the view of the person complaining, wrong) if the interests of a person will be, or are likely to be, affected. However, it identified situations when decisions affecting the interests of a person should not be reviewable. These include:
- Government budgetary decisions; and
- polycentric decisions, that is, decisions about how a limited pool of money will be divided among competing individuals or organisations.
Issue 26
What should be the criteria for deciding that an administrative decision should or should not be reviewable by the Community Services Division of the ADT?
What decisions should, or should not be, reviewable by the Community Services Division of the ADT?
Should all decisions made by the CSC be reviewable by the Community Services Division of the ADT? Why or why not?
Should funding decisions be reviewable by the Community Services Division of the ADT? Why or why not?
Should decisions by service providers be reviewable?
5.7 The principles of administrative review were developed in the context of decision-making by government agencies. In its study of the Commonwealth’s community services program, the ARC concluded that, as the effect of a service provider’s decision on the interests of a user is likely to be the same whether the provider is a government agency or a government funded non-government agency, the non-government agency should be subject to the same review regime.11 Under the Act, the CSAT (or, when it commences, the ADT) has jurisdiction to review a service provider’s decision not to take action recommended by the CSC following an investigation.
Issue 27
Should decisions of non-government agencies be subject to review by the ADT?
Should the jurisdiction of the ADT in relation to service providers be extended? If so, how?
STANDING
Who has standing to apply to the ADT?
What the Act says
5.8 The standing provision of the Act has not been substantively changed by the ADT Act.12 Anyone who can demonstrate to the ADT that he or she has a “genuine concern” in the subject matter of the decision can apply to the ADT for a review of the decision. This includes a person responsible for, or next friend, of the person to whom the application relates. In addition, the ADT can appoint someone to represent the person and, if it is still within time to apply, it can grant leave to apply to someone who was entitled to apply but did not. However, if the ADT finds a person to be “unjustifiably interfering” in a matter, he or she is not entitled to apply.13
Tribunal decisions
5.9 The CSAT carefully examined the issue of standing in two recent cases involving an appeal against the Minister’s decision to adopt a transition plan.14 In both cases, the CSAT had to decide whether or not two peak disability groups, People with Disabilities (NSW) Inc (PWD) and the NSW Council on Intellectual Disability (CID), could bring an appeal against the Minister’s decision. The CSAT reached the following conclusions:
- Section 41 of the Act is the only source of standing for someone wishing to lodge an appeal with the Tribunal.
- The words “genuine concern” have their ordinary meaning in the context of the legislation and the scope and objects of the CAMA legislation.
- The legislation is beneficial and the express objects indicate that the standing provisions should be interpreted widely.
- The person lodging the appeal does not have to be directly affected by the circumstances complained of.
- Although not directly representing consumers of the services involved or their parents, PWD and CID represented the wider disability community and those associated with them in putting forward their view of what is in the public interest.
In both cases the CSAT held:
- PWD and CID had a “genuine concern” in the subject matter of the appeal.
- Notwithstanding strong opposition from the service, from parents and consumers in Dunrossil and from parents and other family members in Greystanes, PWD and CID were not “unjustifiably interfering” in the matter and had standing to appeal.
In coming to its decision in both cases, the CSAT said that the best interests of consumers and the importance of the public interest outweighed the opposition of other stakeholders.
Should the standing provision be changed?
5.10 The issue of standing is not yet final as decision in Dunrossil is now on appeal to the Supreme Court. A number of submissions raised the issue of standing. Some noted the lack of clarity in the provision and suggested that it should be defined unambiguously, thereby avoiding long and costly legal proceedings as have already occurred.15 Others suggest that the provision should be broadened.16
Issue 28
Who should have standing to apply to the ADT for review of a decision?
Should the standing provisions be amended to incorporate the CSAT’s decisions in Dunrossil and Greystanes?
Should the standing provision include a public interest test? Why?
In what circumstances, if ever, should an advocacy group have standing in a matter before the ADT?
PROCEDURE
ADT proceedings
5.11 Most of the procedural rules governing the CSAT will be in the ADT Act when it is proclaimed. However, some provisions of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) will remain. The objects of the ADT Act include:
- to ensure that the ADT is “accessible”, that its proceedings are efficient and effective and its decisions fair; and
- to enable ADT proceedings to be determined in and “informal and expeditious manner”.17
These objects are sought to be achieved by procedural provisions that ensure relative informality. For example, the ADT Act says that the ADT:
- is not bound by the rules of evidence and may inquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice;
- is to act with as little formality as the circumstances of the case permit; and
- is to take such measures as are reasonably practicable to ensure, among other things, that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered.18
The ADT Act gives the ADT the option to hold a preliminary conference before the proceedings begin and also provides for referral of a matter for mediation or neutral evaluation. In addition, it continues to be bound by its duty under the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) to encourage the parties to effect an amicable agreement and its power to refer a matter to the service provider for resolution, the CSC for alternative dispute resolution or investigation or to another body for investigation.19 Once proceedings begin, parties may be represented by an agent or a legal practitioner, if the ADT gives leave and, in some circumstances, the ADT may appoint a person to represent a party.20
5.12 One of the objects of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) is that there should be an “accessible” mechanism for administrative review.21 One of the principles that must be observed in exercising functions under the Act is that community services clients are entitled to be heard in relation to the service and to question decisions or actions that affect them. The objects and principles do not spell out how this might be achieved by an administrative review mechanism. It is clear, however, that the CSAT’s procedure is a significant factor in accessibility and respecting a person’s right to be heard. Some submissions supported retaining an informal approach in the ADT. Others described the current process of appeal against transition plans as “courtlike” and legalistic or suggested that, as far as possible, matters should be resolved without legal representation.
Issue 30
How can the ADT Act ensure that the ADT is accessible to community services clients?
Are the ADT’s alternative dispute resolution mechanisms appropriate for people with a disability and for children? If not, how can they be improved?
How can the ADT Act ensure that all parties to proceedings get a fair go?
In what circumstances should parties be allowed to have legal representation?
ENFORCEMENT OF DECISIONS
5.13 When the CSAT reviews a decision, its decision, if different from the original decision, is substituted for the original decision. The Act does not deal with the enforcement of the CSAT’s decisions and the CSAT does not have powers of enforcement. If a person refuses to comply with a decision of the CSAT, the applicant would have to apply to the Supreme Court to enforce it. The CSAT can also make recommendations which are not binding.
MISCELLANEOUS
5.14 This section raises some technical legal issues for consideration.
- Deciding procedural matters. It is unclear whether or not merely procedural issues, for example, whether or not a person can make an application to the ADT outside the time limit, can be decided by the legally qualified member alone or whether it must be decided by the ADT comprising at least three members.
- Time limits. Under the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW), the time limit for making an application for review of an administrative decisions is 28 days. Under the ADT Act, the time limit for making such an application is to be fixed by the rules of the ADT.22 The ADT may accept a late application for review if the ADT is satisfied that the applicant has provided a reasonable explanation for the delay.23 The ADT Act does not give the ADT much guidance about when it should, or should not, allow a late application.
FOOTNOTES
1. s 17.
2. Sch 2.
3. Sch 3.
4. See para 2.4.
5. See eg Autistic Association of New South Wales, Submission; Citizen Advocacy NSW, Submission; Institute for Family Advocacy and Leadership Development, Submission; Intellectual Disability Rights Service Inc, Submission; Northcott Society, Submission; New South Wales Council for Intellectual Disability, Submission; People with Disabilities (NSW) Inc, Submission.
6. Citizen Advocacy NSW, Submission; Institute for Family Advocacy and Leadership Development, Submission; New South Wales Council for Intellectual Disability, Submission; People with Disabilities (NSW) Inc, Submission; Jim Simpson, Submission.
7. Multiple Sclerosis Society of New South Wales, Submission.
8. It can review decisions made under the Adoption Information Act 1990 (NSW) s 36, Adoption of Children Act 1965 (NSW) s 67A, Children (Care and Protection) Act 1987 (NSW) s 112 and the Disability Services Act 1993 (NSW) s 20; Community Services (Complaints, Appeals and Monitoring) Regulation 1996.
9. Guardianship Act 1987 (NSW) s 97; Home Care Service Act 1988 (NSW) s 17A; Youth and Community Services Act 1973 (NSW) s 3A.
10. Under Sch 5, Pt 2, Div 2(4) of the ADT Act, reference in another Act to the CSAT is to be read as a reference to the ADT.
11. Administrative Review Council, Administrative Review and Funding Programs (A Case Study of Community Services Programs) (Report 37, 1994).
12. ADT Act Sch 5, Pt 2, Div 2(4) provides that reference in another Act to the CSAT is to be read as a reference to the ADT.
13. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 41.
14. People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Dunrossil); People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister for Disability Services (Greystanes).
15. ACROD NSW Division, Submission; Citizen Advocacy NSW, Submission; New South Wales Council for Intellectual Disability, Submission; Jim Simpson, Submission.
16. Institute for Family Advocacy and Leadership Development, Submission.
17. Cf the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) which refers only to an “accessible” mechanism for administrative review.
18. ADT Act s 73.
19. Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) s 46.
20. ADT Act s 71.
21. See para 2.4.
22. ADT Act s 55.
23. ADT Act s 57.
