1. INTRODUCTION
The New South Wales Law Reform Commission is reviewing the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) (CAMA). We must look at whether:
- the policy objectives of CAMA are still valid and
- the terms of CAMA are appropriate for securing those objectives.
2. HAVE YOUR SAY
The Law Reform Commission wants to know what you think about CAMA. We have prepared an issues paper which raises issues and asks questions (IP 15). This is a summary of the main issues and questions in that paper.
3. OBJECTS AND PRINCIPLES
The objects of CAMA are listed at the beginning of the Act. They are:
- to foster an atmosphere in which complaints and independent monitoring are viewed positively
- to provide for resolving complaints about community services and programs
- to encourage the resolution of complaints at a local level
- to encourage the resolution of complaints through alternative dispute resolution
- to provide independent and accessible mechanisms for resolving complaints, reviewing administrative decisions and monitoring services, programs and complaints procedures
- to encourage compliance with the objects, principles and provisions of community welfare legislation.
Should the objects clause remain unchanged? If not, what changes would you make?
People who do things under CAMA, for example, the Community Services Commission resolving a complaint, or the Community Services Appeals Tribunal deciding an issue, must act in accordance with the principles listed in CAMA. The most important of these is that “the paramount consideration in providing a service for a person must be the best interests of the person”. Other principles are:
- a person receiving a service (or eligible to receive one) is to receive an adequate explanation of it, is to be heard in relation to it, and may question decisions or actions that affect them
- a service provider is to respect the legal and human rights of consumers
- a service provider is to provide information about the service that enables the consumer to make an appropriate decision
- a service provider is to enable a complaint to be dealt with fairly, informally and quickly
- a complaint about providing a service is to be dealt with even if it is made by someone else on behalf of the client.
Should CAMA include a list of principles to guide the exercise of the functions of the Community Visitors, the Commission and the Tribunal? If so, what should they be?
4. SECTION 5
Section 5 of CAMA says neither the Commission nor the Tribunal can determine an issue, or make a decision or a recommendation in a way that is:
- beyond the resources appropriated by Parliament for community services
- inconsistent with the way those resources have been allocated by the Government or
- inconsistent with Government policy.
5. COMMUNITY SERVICES COMMISSION
The functions of the Community Services Commission include:
- resolving complaints made by consumers against service providers
- helping service providers improve their complaints procedures
- making inquiries into the situation of children in care
- monitoring and reviewing the delivery of community services and
- helping develop standards for delivering community services, and educating people about them.
The basis of a complaint to the Community Services Commission is that a service provider “acted unreasonably”:
- by providing, or not providing a community service to a person
- in the way a community service was provided to a person
- by withdrawing or varying a community service to a person or
- in the administration of a community service in relation to a person.
Anyone who satisfies the Commission that he or she has “a genuine concern in the subject matter of the complaint” can make a complaint, as long as he or she is not “unjustifiably interfering”. CAMA outlines the procedure for dealing with a complaint, including referring it to the service provider for resolution, referring it to alternative dispute resolution or investigating it.
When the Commission hears a complaint or makes an inquiry it can make “recommendations” for improving the delivery of community services to the Government, a service provider or someone else. If a service provider does not take action recommended by the Commission after investigating a complaint, the person who made the complaint can ask the Community Services Appeals Tribunal to review the service provider’s decision. Otherwise, the recommendation is unenforceable.
Generally speaking, the Commission can hear complaints made against “service providers” by people receiving (or eligible to receive) “community services”. There are differences of opinion about whether the Commission can hear complaints about some services used by children and people with a disability. These include:
- people with a disability who live in licensed boarding houses or aged care facilities
- people with a disability who come into contact with the criminal justice system
- children who come into contact with the juvenile justice system and
- children in foster care.
Should the Commission’s jurisdiction to review, inquire and monitor include any of the people listed above?
6. COMMUNITY VISITORS
The Minister appoints Community Visitors. Their functions are:
- to promote the legal and human rights of people using community services
- to consider matters raised by consumers and staff of services and others
- to give consumers information about advocacy services and help them get the service
- to facilitate the early and speedy resolution of grievances or matters of concern.
Should the list of functions of Community Visitors be changed? If so, how and why?
Is the Community Visitors scheme an effective way of independently monitoring children in care, and people with a disability in residential care?
Should the scheme be extended to cover different kinds of services?
7. COMMUNITY SERVICES APPEALS TRIBUNAL
The Tribunal will soon become the Community Services Division of the Administrative Decisions Tribunal. It can review some decisions made under community welfare legislation, but not others. It cannot review Commission decisions, except on the ground that it was beyond the Commission’s powers. It can review a service provider’s decision not to implement a Commission recommendation and some decisions by the Minister, for example, to adopt a transition plan.
What decisions should, or should not be, reviewable by the Tribunal?
Anyone who can demonstrate to the Tribunal that he or she has a “genuine concern” in the subject matter of the decision can apply to the Tribunal for a review of the decision. In two recent decisions, the Tribunal said that two peak disability groups, People with Disabilities (NSW) and the Council on Intellectual Disability, could bring appeals against decisions by the Minister.
Who should be able to apply to the Tribunal for a review of a decision?
8. COMMUNITY SERVICES REVIEW COUNCIL
The Review Council includes Government members and members from the community services sector. It has two functions:
- to encourage co-ordination of the functions of the Commission, Community Visitors and the Tribunal and others
- to give the Minister strategic advice about the operational effectiveness of the review and monitoring system.
Should there by a council to oversee the operation of CAMA and advise the Minister? If so, who should be members of the council?
