2.1 The terms of reference require the Commission to determine whether the policy objectives of CAMA remain valid and whether the terms of the Act are appropriate to achieve those objectives. Those policy objectives are expressed in the objects clause in Part 1 of the Act. In addition, Part 1 contains a set of principles which must be observed in exercising functions under CAMA. In this chapter, the Commission examines these provisions and also the effect, on the objects and principles of CAMA, of s 5 which provides that decisions or recommendations made under the Act should not be inconsistent with government policy or be beyond the resources earmarked for the provision of community services.

LEGISLATIVE FRAMEWORK

2.2 In public hearings conducted by the Commission and in submissions received in response to IP 15, support for the legislation and the major bodies created under CAMA¹ was overwhelming. The Act is considered the backbone of community services legislation. It provides a legislative framework for an independent complaints mechanism and independent monitoring of community services and reviews of persons in care which are vital to ensure compliance with community welfare legislation and thus safeguard the rights and interests of consumers. Part of this web of safeguards is also a commitment to the review of administrative decisions.

CAMA bodies

2.3 By way of introduction, CAMA establishes three major bodies:

• the CSC, whose functions include handling complaints about service delivery, monitoring services generally, undertaking reviews of persons in care and reporting on its investigations;²
• the Community Visitors Scheme, designed to provide residents of funded residential care services with an independent person to talk to who has powers to inspect records, talk to staff and management of services and advocate for them with the service provider;³ and
• the CSAT, which has recently been reconstituted as the CS Division of the ADT.⁴

Support for CAMA

2.4 The broad policy objectives of CAMA have been vigorously defended by consumers, families, carers, advocates and service providers alike.⁶ While this review, as required by the Act,⁷ is an opportunity to reflect on how well or otherwise the legislation has been operating, serious concerns have been expressed to the Commission that the significant advances made by CAMA should not be watered down.⁸ CAMA is considered watershed legislation which needs to be strengthened further, if any change is proposed at all.

2.5 To this end, there have been numerous claims in submissions for an expansion of the jurisdiction of the CSC, the Community Visitors and the Tribunal; an increase in the powers of the CSC; greater enforceability of recommendations by the CSC; and the conferral of additional functions on the CSC.⁹ These functions relate both to new functions and the transfer of responsibility for certain functions from other agencies to the CSC. The Commission has carefully considered each of these claims.

2.6 In light of the overwhelming community support for CAMA, the Commission’s general approach is to preserve the framework of the legislation to ensure that each of the CAMA bodies performs its current roles more effectively rather than significantly change the nature of those roles. To do otherwise could have the undesirable effect of weakening rather than enhancing the effective operation of the Act. In the remainder of this Report, the Commission considers what changes, if any, are warranted to the current legislative scheme. This chapter in particular, considers whether the broad policy objectives of CAMA and the principles intended to guide all persons exercising functions under the Act are appropriate.

OBJECTS

2.7 The objects of a statute are a statement of what the legislation broadly aims to achieve. Together with the Second Reading Speech when the Bill is introduced into Parliament, the objects of an Act are often used to assist in the interpretation of provisions of the Act. For this reason, the objects of an Act can be very important.

Current law

2.8 The objects of CAMA are:

• to foster an atmosphere in which complaints and independent monitoring are viewed positively as ways of enhancing service delivery;
• to provide a complaints mechanism for service users, their families and advocates;
• to encourage complaints to be resolved at a local level;
• to encourage the use of alternative dispute resolution methods;
• to provide independent and accessible mechanisms for resolving complaints, reviewing administrative decisions and monitoring services, programs and complaint procedures; and
• to encourage compliance with community services legislation.¹⁰

This bill represents the most far-reaching reform and improvement to client and service provider relationships, complaint and grievance handling and service provision monitoring of any community service legislation in Australia.

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. The organisation framework in this bill provides a motivation for service providers, a safety net for clients and an educational and information base to assist the sector in developing improved processes for clients.¹¹

2.10 Although the objects of CAMA are widely supported,¹² many submissions received by the Commission argued that they focus too much on individual complaints and do not adequately reflect the various strategies used to effect the broad aims of the legislation.¹³

Balancing individual focus and systemic measures

2.11 Providing a mechanism to enable individuals to make complaints and have those complaints dealt with quickly and fairly is considered to be a vital object. However, it is argued that a focus on individual complaints fails to acknowledge the limitations of a complaints process to address the systemic nature of many of the problems faced by service users.¹⁴ The primary limitation is the reliance on individuals to bring complaints. In this jurisdiction, such individuals tend to belong to one of the most disenfranchised groups in modern society and are unlikely to be aware of their rights let alone be in a position to exercise them.¹⁵

2.12 While individual complaints may raise issues of a systemic nature,¹⁶ and may thus inform the CSC’s monitoring functions, more proactive strategies are required to ensure that community services are responsive to consumer needs. In recognition of this, the CSC has adopted a range of measures to identify and investigate systemic issues, and to take action to promote the quality of community services. These strategies include various monitoring activities¹⁷ and undertaking inquiries leading to the formulation of recommendations for service improvement. The CSC also performs an educative function, increasing community awareness of standards of service delivery and complaints handling mechanisms.¹⁸ These functions are not reflected in the current objects of CAMA.

2.13 The CSC is considered to have established a balanced approach between its various functions.¹⁹ Nonetheless, it is felt that this balance should be reflected in the objects,²⁰ which should also acknowledge the interrelationship between the complaints, monitoring and review functions, and systemic change.²¹ As one submission noted:

The Support Group is of the view that the objects of the Act are important and valid. Given the broad monitoring and inquiry powers of the [CSC], it may be useful to strengthen the objects by emphasising that an overall systemic approach is as important to improving outcomes for clients as is resolution of individual complaints.²²

2.14 The objects clause makes no reference to the Community Visitor Scheme. This is considered to be a major omission and it has been suggested that the objects be amended to refer specifically to the Community Visitor Scheme.²³

Consistency between objects in CAMA and the ADT Act

2.15 As the powers and procedures of the CS Division are now found in both CAMA and the ADT Act, it is argued that the objects of CAMA should be made consistent with the objects of the ADT Act.²⁴ The CSAT has proposed that administrative review be included in s 3(1)(a). It also suggested that a new object be added which mirrors that contained in s 3 of the ADT Act, namely to ensure that proceedings in the Tribunal are conducted in a timely, fair and informal manner.²⁵

Suggested objects clause

2.16 The CSC has submitted that the objects of CAMA should include:

• to facilitate the improvement of standards of community services;
• to promote the rights of consumers by providing independent mechanisms for the resolution of complaints, reviews of the circumstances of individuals in care, and review of administrative decisions;
• to provide for the independent monitoring of the sector including issues and patterns that arise in service delivery and the implementation of its recommendations;
• to disseminate information about consumer rights and the mechanisms for promoting those rights, “best practice” models of service delivery, and other issues affecting consumers;
• to provide for independent monitoring of the quality of individual services and the access of residents to independent support and assistance through the operation of a Community Visitor Scheme; and
• to foster community attitudes which are informed and vigilant about consumer rights and needs and the state of community services in NSW by informing public debate and discussion, and ensuring that information about community services and consumers is accessible and available.²⁶

The Commission’s view

2.18 As they are an important statement about what the Act is about, the Commission believes the objects should clearly reflect what the legislation aims to achieve and how it plans to achieve it. The Commission notes that the objects are intended to be a broad statement of the major goals of the legislation and the strategies and mechanisms designed to achieve these goals. The details of the mechanisms should be left to the substantive provisions of the Act. For this reason, not all of the suggestions which were made in submissions, as outlined above, will be appropriately included in the objects clause.

2.19 The Commission is satisfied that the objects clause should acknowledge all existing programs under the Act, including the Community Visitor Scheme. It needs to acknowledge that the other functions of the CSC, and the functions of the Community Visitors and the CS Division, are as important as providing a complaints mechanism for consumers of services. The Commission also agrees that it is desirable, where appropriate, to ensure consistency between CAMA and the ADT Act. A reference in the first object to administrative review of reviewable decisions is appropriate, in the Commission’s view. However, an object dealing with how the CS Division should conduct itself is a matter which is relevant to the ADT Act, under which it is now constituted, not CAMA. Accordingly, the Commission believes that the objects clause should be amended as follows.

RECOMMENDATION 1

Section 3(1) should be amended to provide that the objects of CAMA are:

• to foster, in community services and programs, and in related services and programs, an atmosphere in which complaints, independent monitoring, reviews of persons in care and administrative review are viewed positively as ways of enhancing service delivery;
• to provide an independent and accessible process for the resolution of complaints;
• to encourage, wherever reasonable and practical, the resolution of complaints at a local level or through alternative dispute resolution methods;
• to provide for independent monitoring of the sector generally and services in particular (including monitoring the progress of recommendations made by the Community Services Commission);
• to provide an independent process for the review of persons in care;
• to promote access by residents to independent persons for support and assistance through the Community Visitor Scheme;
• to encourage compliance with provisions of community welfare legislation; and
• to facilitate greater community awareness of CAMA and the agencies it establishes.

PRINCIPLES

2.20 The Act lays down a number of principles which must be observed by persons or bodies exercising any of the functions under CAMA. Those principles are:

(a) the paramount consideration in providing a service is the best interests of the consumer;

(b) a person who receives or who is eligible to receive a service is entitled to receive an adequate explanation of the service, is to be consulted in matters relating to the service and may question decisions or actions in relation to the service that may affect him or her;

(c) a service provider is to promote and respect the legal and human rights of the consumer and must respect any need for privacy or confidentiality;

(d) a service provider should provide such information to the consumer to enable the consumer to make an informed choice;

(e) a service provider should enable a complaint to be dealt with fairly, informally and quickly;

(f) a complaint about the provision of a service is to be dealt with even where it is made by another person on behalf of the person who receives or is eligible to receive a service.³²

Best interests

2.21 The most important principle is that the best interests of the person receiving the service are to be the paramount consideration in providing a service to that person. Some concern has been expressed that this principle is too vague and subjective. Accordingly, it has been suggested that CAMA should be amended to provide some guidance as to what matters a decision-maker should take into account when determining a person’s best interests.³³

Approach taken in other jurisdictions

2.22 Similar concerns have been voiced in the area of guardianship, access and custody of children. In a High Court case concerning the sterilisation of a young girl with an intellectual disability, Justice Brennan was very critical of the best interests approach.³⁴ He said that it offers no hierarchy of values or any general legal principle which might guide the courts. Further, it depends on the value system of the decision maker and creates “an unexaminable discretion” in the decision maker.³⁵ The majority of judges in that case, however, supported the best interests approach but acknowledged the concept was imprecise.

2.23 The Family Law Act 1975 (Cth) has since been amended to provide an inclusive list of factors which a court must take into account when determining what is in a child’s best interests. These include the expressed wishes of the child, the relationship of the child with each of the parents, the likely effect of any changes on the child’s circumstances and the capacity of each parent to provide for the needs of the child.³⁶

2.24 The best interests approach has also been espoused in State laws relating to the adoption of children, child protection matters and the provision of children’s services. The concept is not defined in any of these laws, except for the recently enacted Children (Protection and Parental Responsibility) Act 1997 (NSW). This Act, which makes parents responsible for the actions of their children, provides a list of factors which a court is to consider when determining whether action it is considering taking is in a child’s best interests.³⁷

2.25 The concept of best interests is defined by implication in some legislation. The Guardianship Act 1987 (NSW), for example, provides that paramount consideration be given to the “welfare and interests” of persons with disabilities.³⁸ Similarly, the new Children and Young Persons (Care and Protection) Act 1998 (NSW), which replaces the Children (Care and Protection) Act 1987 (NSW), provides that paramount consideration must be given to the “safety, welfare and well-being of the child or young person”,³⁹ and elsewhere speaks of a child’s or young person’s best interests.⁴⁰

The Commission’s view

2.26 The Commission agrees that the concept of best interests is imprecise and some guidance is required to assist the decision-maker when determining a person’s best interests. It has been suggested that some of the factors which a decision-maker should take into account are safety, stability of care, lifelong identity, connection and “development of emotional resilience”.⁴¹ It has also been suggested that the decision-maker should ascertain and give due regard to the views and wishes of the person concerned⁴² even though conflicts may arise between what a person may wish to do and what is considered to be in that person’s best interests.⁴³

2.27 Rather than list the factors which the decision-maker should take into account, the Commission’s preferred approach is to rephrase the first principle in terms of the safety, welfare and interests of the person receiving a service. The Commission agrees that the decision-maker should take into consideration the views of the person concerned whenever making a decision or taking action that affects, or is likely to affect that person. The Commission believes this should be a principle in itself.⁴⁴

Are the existing principles appropriate?

2.28 There was some concern that the six principles laid down in CAMA relate more to service providers than to the agencies intended to perform the various functions under the Act.⁴⁵ Three of the principles specifically relate to what service providers should do, namely:

• promote and respect the legal and human rights of service users including respecting their privacy;
• provide information to enable the service user to make informed choices; and
• enable complaints about the service to be dealt with fairly, informally and quickly at a place that is convenient to the service user.

2.29 One organisation has submitted that the principles relating to service providers demonstrate the important role that service providers play in complaints resolution generally.⁴⁶ They also illustrate to the CAMA bodies, and to the public generally, what is to be reasonably expected of service providers. Nonetheless, it has been suggested that additional principles are required to guide the exercise of the functions of the CSC, the Community Visitors and the CS Division specifically.⁴⁷ How relevant the principles are to the CS Division, which now performs most of its functions under the ADT Act, is questionable. When reviewing a decision, the CS Division is required to have regard to the principles laid down in the legislation under which the decision is made.⁴⁸

Suggested amendments

2.30 It has been suggested that CAMA bodies should, when exercising their functions:

• give paramount consideration to the best interests of the person;
• recognise the difficulties faced by consumers in seeking redress for themselves and operate in a manner that is sensitive to this difficulty; and
• consult with consumers to ascertain their views about any proposed decisions, action or reviews.⁴⁹

• to make the best interests of the consumer the paramount consideration in all processes, decisions and actions;
• consult with those consumers directly affected by the function being exercised to ascertain their views and wishes regarding any proposed actions, decisions or processes;
• give due regard to the views and wishes of consumers in any decision or action taken, although the agency is not bound by these views or wishes particularly if there is a significant question of safety or appropriate care or treatment of a consumer, or public interest;
• have regard to the needs of those persons (such as children) who are receiving or are eligible to receive community services and are the least likely or able to protect or advance their own interests;
• preserve the privacy and confidentiality of consumers in all actions and decisions taken;
• ensure adequate provision for the hearing and resolution of complaints about the way in which functions were exercised, provide adequate explanation of the operations of the Act and provide reasons for decisions made under the Act;
• recognise and respect the role of family members, guardians and advocates of consumers of community services; and
• to consult and cooperate with other relevant agencies and persons concerned with the rights and interests of persons receiving, or eligible to receive, community services, or with an interest in the provision of community services.⁵⁰

The Commission’s view

2.31 In general, the principles were widely supported in submissions and the Commission’s public consultations. While they focus on service provision and are largely framed in terms of what service providers should do, the Commission nevertheless considers that they are still relevant to CAMA bodies in the exercise of their functions. By creating a set of standards for service providers, particularly in relation to complaint handling at the local level, the principles assist the CSC, Community Visitors and the Tribunal when called upon to deal with issues relating to service provision.

2.32 The Commission notes that the principles are intended to be observed in the performance of functions under the Act. Curiously, service providers do not perform any of the functions under the Act, except that they are encouraged to implement complaints procedures at the service level. However, there is a need to ensure that the principles apply explicitly to service provision, complaints handling, service monitoring and administrative review. The Commission has considered the suggestions proposed in various submissions and has also considered what principles apply in related legislation, such as the Guardianship Act 1987 (NSW) and the Children and Young Persons (Care and Protection) Act 1998 (NSW). The Commission recommends that s 3(2) should be redrafted along the following lines.

RECOMMENDATION 2

Section 3(2) should be amended so that the following principles must be observed by all persons when exercising functions under this Act:

• in relation to all administrative or legal processes under the Act, the safety, welfare and interests of a person receiving a service, or eligible to receive a service, should be given paramount consideration;
• the views of a person receiving a service, or eligible to receive a service, should be taken into consideration in relation to any decision, process or action taken under the Act;
• a person receiving a service, or eligible to receive a service, is entitled to an adequate explanation of the service and of any decision, process or action taken under the Act, and may question decisions or actions that affect the person in relation to the service;
• the legal and human rights of a person receiving a service, or eligible to receive a service should be respected (including any need for privacy or confidentiality);
• the importance of family relationships and the cultural and linguistic backgrounds of persons receiving a service, or eligible to receive a service, should be recognised;
• the importance of encouraging consultation and cooperation with other relevant agencies and persons should be recognised;
• a service provider is, to the best of his or her ability, to provide such information about the service as may enable an appropriate decision to be made by the person for whom the service is, or is to be, provided;
• a service provider is to enable a complaint about the service to be dealt with fairly, informally and quickly at a place convenient to the complainant;
• a complaint about a service is to be dealt with even if it is made by another person on behalf of the person receiving, or eligible to receive, the service; and
• the community should be encouraged to apply and promote these principles.

SECTION 5

2.33 Section 5 of CAMA provides that neither the CSC nor the CS Division may determine an issue under CAMA, or make a decision or a recommendation that is (or that requires the taking of action that is):

• beyond the resources appropriated by Parliament for community services;
• inconsistent with the way those resources have been allocated by the Minister for Community Services, Aged Services or Disability Services or the Directors General of their departments, in accordance with Government policy; or
• inconsistent with Government policy, as certified in writing by the Minister for Community Services, Aged Services or Disability Services and notified to the Tribunal, CSC or other person or body making the determination.

[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.⁵¹

2.35 Although they are intended to be independent bodies, the CSC and the CS Division are constrained by the requirement not to make decisions or requirements that are inconsistent with government policy or resource allocation. In practice, this means that those considerations will override any decision or recommendation that the CSC or CS Division considers is in the best interests of the person concerned, quite contrary to the “guiding principle” of CAMA.

2.36 In a submission to a Parliamentary inquiry into children’s advocacy, the NSW Ombudsman considered s 5 to be a “serious impediment” to the work of the CSC, resulting in it being “far more restricted in [its] powers than the Ombudsman”.⁵² Section 5 is also more prohibitive than the equivalent provision in the legislation governing the Health Care Complaints Commission, a watchdog body similar to the CSC. Section 91 of the Health Care Complaints Act 1993 (NSW) restricts the recommendations the Health Care Complaints Commission may make by reference to resource allocation, not policy.

Inconsistency with s 64 of the ADT Act

2.37 Section 5 is also far more prohibitive than the equivalent provision in the ADT Act.⁵³ Section 64 of that Act provides that, when determining an application for a review of a reviewable decision, the Tribunal:

must give effect to any relevant Government policy in force at the time the relevant decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

2.38 The inconsistency between CAMA and the ADT Act is of special concern to the CS Division which now exercises functions and powers under both Acts.⁵⁵ However, it appears probable that the CS Division is no longer bound by s 5 because it exercises most of its functions and powers under the ADT Act. The only powers it exercises under CAMA are powers to refer matters to alternative dispute resolution and to decline applications,⁵⁶ neither of which are likely to raise issues of government policy.⁵⁷ Nonetheless, it would be preferable for the Acts to be consistent.

2.39 The Administrative Review Council has rejected a view that review tribunals should implement government policy. In its Better Decisions report, the Council argues that the basis of merits review is to reconsider afresh the facts, law and policy aspects of the original decision and to reach a new decision either affirming, varying or setting aside the original decision.⁵⁸ In the Council’s view, the purpose of merits review is to ensure that the correct and preferable decision is made by government administrators.⁵⁹ To require tribunals to implement government policy would, it says, change this objective from ensuring that all decisions of government are correct and preferable to ensuring that the agency’s decision is lawful and not unreasonable.⁶⁰

Submissions

2.40 All of the submissions which considered the appropriateness of s 5 called for its repeal.⁶¹ This was echoed in the Commission’s public seminars. The CSAT has submitted that requiring the Tribunal to be bound by government policy changes the objectives of merits review and compromises the independence of the Tribunal. It therefore suggested that s 5(c) be repealed or, at the very least, be made consistent with s 64 of the ADT Act.⁶² The CSAT has also submitted that the provisions of s 5(a) and (b), which relate to the allocation of resources, are inconsistent with its powers to review funding decisions under the DSA and therefore should be repealed.⁶³

2.41 In relation to its effect on the CSC, the majority of submissions received by the Commission on this issue consider s 5 to be an unnecessary and unreasonable limitation on the independence of the CSC.⁶⁴ It is unnecessary because, like many other watchdog agencies, the CSC can only make recommendations which the Government is under no obligation to implement. There is therefore no question of the CSC usurping executive control over policy determination or resource allocation. As the CSC itself noted:

Our recommendations are offered as advice, and the making of them cannot be construed as overriding the primacy of elected representatives to make policy and resource allocation decisions.⁶⁵

The Commission’s view

2.43 The Commission believes s 5 should be repealed. The provision is clearly aimed at retaining executive control over recommendations and decisions made by the CSC and the CS Division respectively. However, there is some doubt that s 5 has any application at all in relation to the CS Division which now exercises all of its major functions and powers under the ADT Act. The Tribunal is bound by the provisions of s 64 of the ADT Act which is far less restrictive than s 5.

2.44 As far as it relates to the CSC, s 5 clearly affects the independence of the CSC. In the Commission’s view, s 5 compromises the benefit to Government policy-making of the advice of a body with established expertise in the area of community services and which is, significantly, separate from the government agency responsible for funding or providing community services. In order to reap that benefit, the CSC should be able to formulate its advice or recommendations without restriction. It should be allowed to make recommendations that depart from government policy where it considers that policy unlawful or no longer appropriate. It should also be able to make recommendations for the improvement of the quality of service provision regardless of the resource implications of those recommendations.

2.45 The recommendations of the CSC are not enforceable, with the exception of those recommendations arising out of a complaint which may be enforceable through an appeal to the Tribunal.⁶⁸ In the rare case that such an appeal is brought, the Tribunal would be bound by s 64 of the ADT Act. Effectively, therefore, the Government’s primary control over policy determination and resource allocation is unthreatened. Section 5 is thus superfluous.

RECOMMENDATION 3

Section 5 should be repealed.

2.46 As previously mentioned, the impetus for this review was the statutory obligation under s 126 of CAMA.⁶⁹ In the Commission’s view, there are two sound reasons to require a further review of CAMA within a similar time period. First, this Act, together with the DSA to which it is inextricably linked, is a significant statement of current policy in the community services area. Uniquely in Australia, CAMA provides an independent complaints-handling system and processes for monitoring services and reviewing people in care. It is therefore important that the objectives and terms of CAMA are reviewed regularly in order to ensure that the Act continues to reflect current policy and community opinion and that it remains relevant to the people it seeks to protect.

2.47 In Report 91, the Commission recommends some significant changes to the process of assisting services move towards full conformity with the DSA.⁷⁰ It also recommends the establishment of an independent accreditation system.⁷¹ If these changes are implemented, the Commission believes a further review of the DSA should be required after a reasonable period to ensure the new transition process and accreditation system are operating effectively.⁷² Given the links between the two Acts, these recommendations will have a consequential effect on CAMA. For this reason also, therefore, the Commission believes CAMA should be reviewed again within five years of the date that this Report is tabled in Parliament. The Act should require the Minister to table a report of the review in both Houses of Parliament within a further 12 months.

RECOMMENDATION 4

Section 126 of CAMA should be amended to provide that the Act be reviewed as soon as possible after the period of five years from the date that this Report is tabled in Parliament. The purpose of the review would be to determine whether the objectives of the Act remain valid and the terms of the Act remain appropriate for securing those objectives. The Act should require that the Minister table a report of the review in both Houses of Parliament within a further 12 months.

FOOTNOTES

1. See para 1.5 and 2.3.

2. See Chapter 3.

3. See Chapter 4.

4. See Chapter 5.

5. See Chapter 6.

6. Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Burnside, Submission at 1-2; Centacare Sydney, Submission at 3; The Spastic Centre of NSW, CAMA Submission at 1; MS Society of NSW, Submission at 3; Barnardos Australia, Submission at 3; NCOSS, CAMA Submission at 1; and CSC, CAMA Submission 1 at 1.

7. CAMA s 126.

8. Consultation (Advocacy Groups and Carers, Sydney); and Consultation (Service Providers, Sydney).

9. Disability Safeguards Coalition, CAMA Submission 1 at 9-11; and NSW Council for Intellectual Disability, CAMA Submission at 5-6.

10. CAMA s 3(1).

11. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1993, the Hon J Longley, Minister for Community Services, Second Reading Speech at 767.

12. Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Burnside, Submission at 1-2; Centacare Sydney, Submission at 3; The Spastic Centre of NSW, CAMA Submission at 1; MS Society of NSW, Submission at 3; Barnardos Australia, Submission at 3, NCOSS, CAMA Submission at 1; and CSC, CAMA Submission 1 at 1.

13. CSC, CAMA Submission 1 at 5; Disability Council of NSW, Submission 2 at 27; Confidential Submission 3 at 4; and Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15.

14. CSC, CAMA Submission 1 at 5.

15. CSC, CAMA Submission 1 at 5; and People With Disabilities (NSW) Inc, CAMA Submission at 12.

16. P Hutten, CAMA Submission at 7.

17. For example, monitoring patterns raised in complaints, monitoring the sector generally; monitoring the progress of recommendations made by the CSC and monitoring the circumstances of vulnerable persons or groups. See CSC, CAMA Submission 1 at 5-6.

18. CSC, CAMA Submission 1 at 5.

19. Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; and Autism Association of NSW, Submission at 9.

20. Carers NSW Inc, Submission at 12; CSC, CAMA Submission 1 at 5; People With Disabilities (NSW) Inc, CAMA Submission at 4; and NSW Council for Intellectual Disability, CAMA Submission at 4.

21. Barnardos Australia, Submission at 3; Physical Disability Council of NSW Inc, Submission at 11; and NCOSS, CAMA Submission at 1.

22. Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 1.

23. Community Visitors, CAMA Submission at 38.

24. CSAT, Submission at 1-2.

25. CSAT, Submission at 1-2.

26. CSC, CAMA Submission 1 at 6-7.

27. P Hutten, CAMA Submission at 3.

28. L Moffit, Submission at 1.

29. Confidential Submission 2 at 4.

30. Burnside, Submission at 2.

31. NCOSS, CAMA Submission at 1.

32. CAMA s 3(2).

33. Barnardos Australia, Submission at 4; and P Hutten, CAMA Submission at 8.

34. In Re Marion (1992) 175 CLR 218 at 270-274 per Brennan J.

35. See also P v P (1994) 181 CLR 583 at 612.

36. Family Law Act 1975 (Cth) s 68F.

37. Children (Protection and Parental Responsibility) Act 1997 (NSW) s 6.

38. Guardianship Act 1987 (NSW) s 4(a).

39. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(a).

40. See for example, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9(e).

41. Barnardos Australia, Submission at 4.

42. Barnardos Australia, Submission at 4.

43. Autism Association of NSW, Submission at 9.

44. See Recommendation 2 at para 2.32.

45. CSC, CAMA Submission 1 at 9.

46. NCOSS, CAMA Submission at 1.

47. See for example, Physical Disability Council of NSW Inc, Submission at 11; Disability Safeguards Coalition, CAMA Submission 1 at 9; and NSW Council for Intellectual Disability, CAMA Submission at 4.

48. CSAT, Submission at 2.

49. Physical Disability Council of NSW Inc, Submission at 11; Disability Safeguards Coalition, CAMA Submission 1 at 9; NSW Council for Intellectual Disability, CAMA Submission at 4.

50. CSC, CAMA Submission 1 at 8; and People With Disabilities (NSW) Inc, CAMA Submission at 5.

51. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1993, the Hon J Longley, Minister for Community Services, Second Reading Speech at 768.

52. New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996) at 177.

53. See also discussion at para 5.211-5.215.

54. This exception, moved by amendment to the Bill by the Greens in the Upper House, effectively nullifies the intention of the section. See L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 26-27.

55. CSAT, Submission at 3.

56. CAMA s 43 and 44 respectively.

57. See CSAT, Submission at 3.

58. Australia, Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (Report No 39, 1995) (the “Better Decisions Report”) at para 2.2.

59. Better Decisions Report at para 2.9.

60. Better Decisions Report at para 2.17-2.18.

61. People With Disabilities (NSW) Inc, CAMA Submission at 6; Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 1; The Spastic Centre of NSW, CAMA Submission at 2; Disability Safeguards Coalition, CAMA Submission 1 at 9; Physical Disability Council of NSW Inc, Submission at 12; and Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15.

62. CSAT, Submission at 4.

63. CSAT, Submission at 4.

64. CSC, CAMA Submission 1 at 9; Australian Quadriplegic Association Ltd (NSW), Submission at 4; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15; Autism Association of NSW, Submission at 9; NSW Council for Intellectual Disability, CAMA Submission at 5; NCOSS, CAMA Submission at 2; and Disability Council of NSW, Submission 2 at 56-57.

65. CSC, CAMA Submission 1 at 9.

66. People With Disabilities (NSW) Inc, CAMA Submission at 6; Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 1; The Spastic Centre of NSW, CAMA Submission at 2; Disability Safeguards Coalition, CAMA Submission 1 at 9; Physical Disability Council of NSW Inc, Submission at 12; and Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15.

67. CSC, CAMA Submission at 10.

68. CAMA Reg cl 6(1)(a). See also discussion at para 5.98-5.103.

69. See para 1.2 and 2.4.

70. Report 91 at Ch 6.

71. Report 91 at Ch 7.