3.1 The CSC is one of the primary bodies established under CAMA. Part 6 of the Act outlines the constitution of the CSC, the appointment of the Community Services Commissioner (and an Acting Commissioner if required), and the functions and powers of the CSC. Parts 3 and 4 deal with how the CSC should exercise its functions concerning reviews of persons in care and complaints handling respectively.

3.2 The CSC is a discrete statutory “watchdog” body which is headed by the Community Services Commissioner (“Commissioner”). It has a highly specialised focus on community services. The CSC is the only body of its kind in Australia.¹

3.3 In the years since it was formally launched in October 1994,² the CSC has developed a focus on two particular target populations:

• children and adults with a disability in care, or in need of care; and
• children and young people, particularly those involved in or requiring access to the child protection or substitute care systems. ³

• being a major catalyst for improving the culture, quality and reputation of community services in NSW;
• exposing abuses of human rights, serious injustices and systemic weaknesses in community services, and making positive recommendations for reform;
• empowering consumers of community services and promoting their right to services which are responsive to their needs; and
• promoting informed attitudes about community services by fostering a commitment to the rights and needs of consumers.⁴

3.6 In making its recommendations, the Law Reform Commission has considered three factors in particular. First, the need to ensure consistency with the principles identified in the literature for good complaints-handling systems. As the Administrative Review Council points out, this literature is well-developed.⁵ For example, the Commonwealth Ombudsman’s Office has developed a set of principles for government agencies developing complaints-handling systems. These state that an effective complaints system should be:

• supported by a strong commitment to it at all levels of the agency;
• fair, and viewed as fair, by both clients and staff;
• easily accessible and well-publicised for all people, including those who have special needs;
• responsive to clients by providing a full, impartial, timely investigation of the complaint and appropriate remedies where appropriate;
• effective – addressing both individual complaints and using the data collected during the investigation to improve service delivery at a systemic level, and being regularly reviewed to ensure that it meets clients’ needs; and
• open and accountable so that clients can make their own assessment as to whether the complaint system is working well.⁶

3.8 Thirdly, the Commission has taken account of the characteristics identified as critical to the success of the New York Commission on Quality of Care for the Mentally Disabled (“New York Commission”).⁷ The New York Commission has operated since 1977,⁸ and fulfils a similar role to the CSC in relation to mental health and intellectual disability services.⁹ These characteristics are:

• a clear and well-defined set of specific responsibilities, coupled with a broad authority to undertake investigations and provide policy advice;
• ample access rights to visit services and obtain all necessary information;
• a broad discretion to identify and change key priorities and activities considering both the finite resources available to the New York Commission and the areas where work is “most likely to yield constructive reform and change”;
• strong and principled leadership;
• credibility as a “fair and objective observer” amongst all stakeholders; and
• rigorous and public accountability to consumers.¹⁰

SUPPORT FOR THE CSC

3.9 A number of proposals have been put forward in recent years to allocate various functions of the CSC to other existing “watchdog” bodies such as the NSW Ombudsman and the newly-created Commission for Children and Young People.¹¹ Submissions to the Commission and participants at our public seminars overwhelmingly opposed this suggestion. They strongly supported the work carried out by the CSC and felt it should remain as a separate independent “watchdog” body.¹² The views expressed were consistent with the conclusion of the NSW Premier’s Department review of the CSC in 1996, that the CSC’s achievements are “commendable” and that it:

has in place transparent decision making processes, clear lines of accountability and reporting, comprehensive operational policies and procedures and effective support systems. The management and staff are committed to the goals of the organisation.¹³

3.11 In the Commission’s view, the CSC is working well and has a broad base of community support. There does not appear to be any compelling argument or change of circumstances since the establishment of the CSC to justify altering this arrangement.

RECOMMENDATION 5

The current structure of the Community Services Commission should be retained.

3.12 In the remaining part of this chapter, the Commission considers what changes (if any) might be made to enhance and strengthen the CSC’s roles and functions.

INDEPENDENCE OF THE CSC

3.13 Independence is essential for the CSC and its Commissioner: it removes any actual or perceived conflict of interest between it and the services it monitors and investigates, enhances the confidence of stakeholders in the impartiality of any processes and decisions, and encourages consumers to come forward with complaints.¹⁵ The Working Party whose report led to the establishment of CAMA (“CAMA Working Party”) emphasised that:

The main argument for independence of ... bodies [such as the CAMA bodies] from service provider departments/agencies is that independence removes a conflict of interest. The conflict arises from a feeling of loyalty to, or control by, departments. Such control can be through administrative direction and control on budget and staffing.

The conflict gives rise to a perception amongst consumers that they cannot rely on the impartiality and strength of purpose of the rights protection system. Even if this perception is unjustified, it undermines community confidence in such bodies. This combined with fear of retribution may make consumers very reluctant to raise complaints.¹⁶

Independence of the Commissioner

3.15 The Commissioner is appointed by the Governor-in-Council¹⁹ on the recommendation of the Minister for Community Services. The Minister must first consult with the Review Council.²⁰ If the Commissioner is ill or absent or the position is vacant, an Acting Commissioner can be appointed by the Governor-in-Council and removed at any time.²¹

3.16 One of the most significant and frequent concerns raised about CAMA both in submissions and at the Commission’s public seminars was that the current process for appointing the Commissioner could compromise the independence of the CSC.²² It was felt that there was a significant potential conflict of interest in the Minister being responsible for appointment of the Commissioner.²³ On the one hand, the Minister has responsibility for the Department of Community Services (“DOCS”) which is the major service provider, and for the Ageing and Disability Department (“ADD”) which is the primary funder. On the other hand, he or she must also appoint a Commissioner who will monitor and may well make criticisms of those Departments.²⁴ As has been pointed out in relation to the New York Commission, “watchdog agencies by their nature are often the bearers of ‘bad news’”.²⁵

3.17 This is of particular significance in a climate where DOCS has been subjected to severe criticism by the CSC and many others in recent years. The bulk of complaints to the CSC concern DOCS,²⁶ and the CSC has been very critical of the Department in the course of its work.²⁷ DOCS had also been the focus of regular and intense criticism by the media²⁸ and a plethora of official inquiries and reports in recent years.²⁹ This is a very different climate to that which existed when the CSC was established, when one of the features of the community services sector according to the former Commissioner was “the relative lack of interest and awareness that the media and most of the public showed in the area”.³⁰

3.18 The decision by the Minister for Community Services not to re-appoint the first Commissioner, Roger West, when his term expired was regarded by many as demonstrating her conflict of interest.³¹ It was reported that disability and child welfare groups regarded Mr West very highly, and viewed the Minister’s action as ‘punishment’ for his fearless efforts to protect the rights of community service consumers.³² The decision and the surrounding events even led to a lengthy debate in Parliament, following an (ultimately unsuccessful) motion by the Shadow Minister for Community Services to condemn the Government’s handling of the advertising of Mr West’s position and calling upon the Government and Minister to withdraw what she claimed were misleading statements about the position made in the media.³³

3.19 While the Commission makes no comment on the Minister’s decision not to re-appoint Mr West, the appointment process does raise an important issue of principle. The very nature of the current Minister’s portfolio responsibilities raises a potential conflict. As the NSW Council of Social Service (“NCOSS”) pointed out:

Maintaining the capacity of the Commission to speak publicly about its findings is one of the surest ways of guaranteeing its independence.³⁴

3.20 The CAMA Working Party carefully considered the most appropriate accountability mechanism to ensure that there was no perception of a conflict of interest. It was argued that including the CSC within the portfolio responsibility of the Minister for Community Services would ensure that it did not lose touch with the Minister and DOCS,³⁵ and that there was direct access to the Minister. In a paper delivered soon after the establishment of the CSC, the former Commissioner also noted that:

there is a body of opinion and theory that a Minister’s responsibility in administering an area of activity should encompass the whole of that area including appropriate review, monitoring and quality control mechanisms, and that this is consistent with the “Westminster” notion of ministerial responsibility. I have the tentative view that, subject to ultimate oversight by the courts, this approach has significant merit and is more likely to produce the desired results both in individual cases and in addressing systemic problems. It may also help to avoid the levels of hostility and defensiveness that often develop and operate against the success of such schemes.³⁶

3.21 The CAMA Working Party considered whether to place the CSC within the portfolio responsibility of another Minister such as the Attorney General or the Minister for Consumer Affairs,³⁹ but rejected this. It was argued that on balance, and considering the desire by the community and Minister for prompt implementation of CAMA, it was “initially” preferable to make the CSC accountable to the Minister for Community Services. The CAMA Working Party did, however, raise the possibility that “at a later stage, this arrangement might be reviewed”.⁴⁰

3.22 This raises the issue of whether it is now preferable to provide a different chain of accountability and oversight for the CSC.

Alternative mechanisms of accountability

3.23 Submissions raised various alternative processes of accountability for the CSC. These included having another Minister involved, such as the Attorney General.⁴¹ Other submissions suggested various other bodies. These included:

• the Premier, Leader of the Opposition and Chief Justice;⁴² or
• a Parliamentary Joint Committee (“PJC”).⁴³

3.24 The most popular model favoured in submissions was a PJC to oversee the operation of the CSC and play a role in the appointment of the Commissioner and Community Visitors. A PJC is a committee made up of Members of Parliament from both Houses of Parliament.⁴⁴

3.25 There are two types of PJCs: one is an ad hoc committee, appointed by resolution of both Houses for the life of a Parliament or to look at a specific issue,⁴⁵ while the other is a statutory committee, appointed under the provisions of an Act.⁴⁶ The latter is more relevant in this context. Usually the legislation sets out the terms of reference, powers and procedures of the PJC.⁴⁷ The Independent Commission Against Corruption⁴⁸ and the Health Care Complaints Commission⁴⁹ are useful models to consider for CAMA.

3.26 The legislation setting up these bodies typically contains a standard requirement that the PJC consist of three members from the Upper House and eight from the Lower, and that the appointment of members should follow the usual practices of Parliament for such appointments.⁵⁰ In practice this means that both major parties must be represented, and minor parties may also be represented.⁵¹ The government of the day always has a majority of members.⁵²

3.27 In the Commission’s view a PJC is the most viable alternative to the current accountability arrangement. There are three main arguments in favour of this model. First, it is a multi-party process.⁵³ Since the Committee includes members from all political parties, it is most likely that it will elicit confidence from all the major stakeholders. As the CAMA Working Party observed, the perception of independence is of critical importance in maintaining community confidence in the CSC and encouraging consumers to make complaints.⁵⁴

3.28 Secondly, PJCs are frequently used to oversee other independent “watchdog” bodies. For example, they are used for the Health Care Complaints Commission,⁵⁵ the Independent Commission Against Corruption,⁵⁶ and the NSW Ombudsman.⁵⁷ The relevant PJC is typically given an oversight and monitoring role for the body and a power to approve appointments.⁵⁸ In its submission, the CSC claimed that it had as much need for independence and open accountability as these other bodies.⁵⁹ While it is not unprecedented for the appointment of a Commissioner (or equivalent) to be made by the relevant Minister, this is less common. For example, the Legal Services Commissioner is appointed by the Governor-in-Council on the recommendation of the Attorney General.⁶⁰ However, it is unlikely that the Attorney General would face the same issue of potential conflict of interest in relation to the Legal Services Commission as the Minister for Community Services does with the CSC. This is because the Attorney General is not a provider of the services being monitored, unlike the Minister for Community Services.

3.29 Thirdly, a PJC could enhance the public accountability of the CSC, since it provides a public forum for information about the CSC and its operations to be considered.⁶¹ Provisions for PJC’s in other Acts typically give the PJC responsibility for:

• monitoring and reviewing the body and the exercise of its functions and reporting to both Houses of Parliament on these issues (with any relevant comments);
• examining annual reports and reporting on any matter in those reports or arising out of them;
• reporting to both Houses on any recommended changes to the body’s functions, structures and procedures; and
• inquiring into and reporting on any question in connection with the PJC’s functions which is referred to it by both Houses.⁶²

3.30 One of the key responsibilities for the body or person with responsibility for oversight of the CSC is to appoint the Commissioner. For the reasons discussed above, the Commission favours appointment by the Governor-in-Council on the advice of the Minister, following approval by the PJC. It is also important that a comprehensive, transparent and open process of merit selection be used, including public advertisement of the position. There should also be community input into the process,⁶³ by, for instance, including community representatives on the selection panel for appointment.

RECOMMENDATION 6

A Parliamentary Joint Committee should be established to oversee the operation of the Community Services Commission.

The Community Services Commissioner should be appointed by the Governor-in-Council, after approval by the Parliamentary Joint Committee.

The selection process for the Community Services Commissioner should include community input (for example, including community representatives on the selection panel).

3.31 The Act does not lay down a specific term of appointment for the Commissioner. However, it does provide that the employment of the Commissioner is subject to Part 2A of the Public Sector Management Act 1988 (NSW), but is not subject to Part 2 of the Act.⁶⁴ This means that the Commissioner can hold office for a period up to five years, and is eligible for re-appointment if he or she is suitably qualified.⁶⁵ Both Commissioners appointed to date have been given terms of five years.

3.32 In the Commission’s view, the current term of appointment is appropriate. It is comparable to that for the heads of other “watchdog” bodies. A fixed-term contract is a standard provision. The terms used are typically either a maximum of five years⁶⁶ or seven years.⁶⁷ It provides adequate employment security for the Commissioner to act independently and allows him or her to undertake longer-term projects.⁶⁸ The CSC⁶⁹ and others⁷⁰ argued that the term should be required to be five years (rather than a maximum) to enhance independence. Whilst in the Commission’s view it would generally be unsatisfactory to appoint Commissioners for periods of less than five years, the provision of a mandatory term would be inconsistent with practice for other comparable organisations. However, the Commission considers that it is unnecessary to adopt the practice of some other complaints bodies of limiting the Commissioner’s total length of appointment (including any re-appointments) to a certain period, such as five⁷¹ or ten⁷² years.

RECOMMENDATION 7

There should be no change to s 78(3). The Community Services Commissioner may be appointed for a term of up to five years and is eligible for re-appointment.

3.33 The Act states that the Commissioner can be removed by the Governor, but only for “incapacity, incompetence or misbehaviour”,⁷³ but does not explain what behaviour would satisfy these criteria. This is identical to the criteria used for dismissal of the Health Care Complaints Commissioner,⁷⁴ the Legal Services Commissioner,⁷⁵ and the Commissioner for Children and Young People.⁷⁶ For some ‘watchdog’ bodies such as the Independent Commission Against Corruption⁷⁷ and the NSW Ombudsman,⁷⁸ dismissal can only be by the Governor-in-Council on the address of both Houses of Parliament.

3.34 It is important that the dismissal criteria be transparent and specific.⁷⁹ As has been commented in relation to the New York Commission, this assures explicit protection from “political retribution”.⁸⁰ The Commission considers that the current criteria for dismissal of the Commissioner preclude this possibility.⁸¹

RECOMMENDATION 8

The criteria for dismissal of the Community Services Commissioner in s 78(4) should be retained.

FUNCTIONS OF THE CSC

Current functions of the CSC

3.35 Under CAMA, the CSC has four broad functions: handling of complaints, monitoring and inquiry, review, and education and development.⁸² The nature and appropriateness of each of these is discussed below.

Exercising the CSC’s functions

3.36 In exercising its functions, the CSC must, whenever possible:

• consult and co-operate with 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.⁸³

3.37 In the Commission’s view, in association with the general set of principles recommended to guide the functions of all bodies created by CAMA,⁸⁵ these provide appropriate legislative guidance to the CSC on how to exercise its functions.

Other potential functions for the CSC

3.38 The NSW Government argued that the CSC’s current functions are adequate and do not need to be expanded.⁸⁶ However, a number of other submissions suggested some additional functions that could be exercised by the CSC. Most of these are discussed under the relevant heading (complaints, monitoring and inquiry, review, and education and development) below. Two other suggestions did not fall within any of these existing functions: these were facilitating improved relations for the benefit of consumers, and distributing funding for advocacy.

Facilitating improved relations for the benefit of consumers

3.39 The CSC has recently begun to perform a role in promoting and facilitating improved relationships between various stakeholders in the community services area, in order to improve services to consumers.⁸⁷ For example, it has played a role in facilitating the Transition Plan Appeals Working Group, which has developed a strategy for resolving the outstanding transition plan appeals.⁸⁸ The Working Group has also examined ways in which to improve collaboration to resolve disputes and determine issues, policy directions and advice to government.⁸⁹ The group has representatives from consumer and service provider peak bodies and government agencies. As another example, in response to concerns raised by the Foster Care Association, the CSC chaired a series of “round table” discussions between DOCS and foster carers to assist in the development of an action plan for the management of foster care by DOCS.⁹⁰

3.40 In the Commission’s view, the CSC can play an important role as an independent broker in these sorts of situations. This should be formally recognised as one of the statutory functions of the CSC.⁹¹

RECOMMENDATION 9

The functions of the Community Services Commission should include the promotion and encouragement of improved relationships between service providers, consumers, family members, carers, advocates and their representatives.

Administration of funding to advocacy programs

3.41 It was also suggested in some submissions that responsibility for distributing funding to advocacy programs for people with a disability and children should be given to an independent body. Some submissions suggested this role could be performed by the CSC.⁹² Others favoured the establishment of a separate body under CAMA.⁹³ For example, it was suggested that such a body could be administratively attached to the CSC and either be a body responsible to a Minister who made final funding decisions, or an Advocacy Board with one or more members.⁹⁴ It was argued that there is a need for security of funding and that there is a conflict of interest in a government department fulfilling the role of administering funding for advocacy programs,⁹⁵ since such programs may wish to criticise those departments.⁹⁶

3.42 The importance of advocacy for people with disabilities is recognised in the DSA. The applications of principles specifically include the need to ensure that persons with disabilities have access to advocacy support so that they can participate in decisions about the services they receive.⁹⁷ The need for advocacy for children has also been clearly recognised.⁹⁸

3.43 Although the Commission agrees that advocacy programs are vital, the distribution of funding for advocacy programs is not an appropriate function for the CSC. While the CSC has a duty under CAMA to “support the development of advocacy programs”,⁹⁹ the proposed function is of a very different nature to any of the CSC’s existing functions. Further, as has been argued in relation to the Commission for Children and Young People, there is a potential conflict of interest in locating advocacy and complaints-handling functions within the one body. A complaints-handling body must be impartial and deal with both the complainant and the agency in an even-handed manner. In contrast, an advocate promotes the interests of the individual or group it represents.¹⁰⁰

3.44 The CSC and others have distinguished between systemic advocacy and individual advocacy.¹⁰¹ A systemic advocate:

can look across the agencies providing services ... to identify duplication, gaps, conflicts, and poor practice, draw this to the attention of the agencies, Ministers, and the community, and work towards remedy of these problems.¹⁰²

the two go hand in hand. More than that, they need to be together because unless you know what is happening at the grass roots level you have no basis for systemic arguments.¹⁰³

3.45 It may be appropriate for a separate small body to be established under CAMA to fulfil the function of distributing funding for advocacy programs. The Commission makes no formal recommendation on this issue. Essentially it is a matter of whether appropriate resources are available to establish such a body.

RECOMMENDATION 10

The Community Services Commission should not be given an additional function of administering funding for advocacy programs.

COMPLAINTS HANDLING

3.46 The CSC’s complaints handling function involves:

• receiving, assessing, resolving and investigating complaints made under s 12;
• assisting service providers to improve their internal complaints procedures;
• helping consumers make complaints;
• providing information, education and training in making, handling and resolving complaints (and helping others to do so); and
• reviewing the causes and patterns of complaints and identifying how these causes could be removed or minimised.¹⁰⁵

3.47 The CSC investigates complaints that a service provider has “acted unreasonably” in one of five ways:

• 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 in which a community service is administered in relation to a particular person.¹⁰⁶

Standing

3.49 CAMA provides that a complaint may be brought to the CSC by any person with a genuine concern in the subject matter of the complaint, including a person who is responsible for, or is the next friend of, the person to whom the service was provided.¹⁰⁹ A person who the CSC believes is unjustifiably interfering is not entitled to lodge a complaint.¹¹⁰ In determining whether a person is unjustifiably interfering, the CSC must take into account the views and wishes of any other persons who have an interest in the matter.¹¹¹

3.50 This provision is equivalent to the standing provision which applies to applications to the CS Division of the ADT.¹¹² Although the issue of standing before the ADT has attracted some controversy recently,¹¹³ it is less contested, if at all, in its application to the CSC. It is generally agreed that, in view of the inability or reluctance of consumers to bring complaints, it is important that the standing provision be as broad as possible to allow complaints about service provision to be brought on behalf of consumers or in their interests.¹¹⁴ The current standing provision is supported by the CSC.¹¹⁵ It is also supported by the NSW Government which, in its submission, says that a broad standing provision is appropriate in respect of complaints to the CSC and is consistent with the policy to improve the informality of complaints to the CSC.¹¹⁶ It says that, like the Ombudsman Act 1974 (NSW), “any person” should be able to bring a complaint to the CSC.¹¹⁷

3.51 The Commission notes that the existing provision contains a built-in safeguard in that the CSC can reject a complaint brought by a person who it thinks is unjustifiably interfering in the matter. The Commission considers that the current standing provision is appropriate and therefore makes no recommendations for change.

Procedures for withdrawing complaints

3.52 There is no requirement in CAMA that complaints to the CSC must be in writing. No submissions objected to this requirement. In contrast to the procedure for making complaints however, withdrawal of a complaint must in writing.¹¹⁸ Submissions expressed mixed views on the desirability of this provision. On the one hand, some favoured removing the requirement for written withdrawal to remove an inconsistency with the process for making complaints and encouraging the ease and informality associated with that process for complainants.¹¹⁹ Complainants to the CSC may suffer from multiple disadvantages,¹²⁰ for example often having language or writing difficulties.¹²¹ On the other hand, some supported the current provision because it means that a clear, considered decision has been made and documented about withdrawal.¹²² On balance the Commission favours the latter view.

RECOMMENDATION 11

The requirement in s 15(1) for written withdrawal of a complaint should be retained.

3.53 When a complaint is withdrawn, the CSC still retains a discretion to continue dealing with the complaint where the matter either raises a significant issue of public safety or public interest, or a significant question as to the appropriate care or treatment of a consumer by a service provider.¹²³ There may be many pressures on complainants to withdraw, but it may still be appropriate for the CSC to continue its investigations.¹²⁴ Therefore, the Commission considers that the CSC should retain its discretion to continue dealing with complaints which have been withdrawn.

Procedures for dealing with complaints

3.54 CAMA sets out the procedure the CSC must follow when a complaint is made. The steps include notifying the service provider, except in certain circumstances;¹²⁵ and carrying out a preliminary assessment during which a decision about how to proceed is made.¹²⁶ The options available are:

• referring the matter to the service provider for resolution;¹²⁷
• referring it to voluntary alternative dispute resolution;¹²⁸
• investigating it;¹²⁹
• referring it elsewhere for investigation;¹³⁰ or
• declining to entertain it.¹³¹

3.56 Soon after the establishment of the CSC, the former Commissioner argued that CAMA’s encouragement of local dispute resolution and the requirement on service providers to establish local complaints handling mechanisms¹³⁶ were vital to help produce a cultural change in the community services sector towards a much greater “consumer focus” and willingness to “resolve grievances quickly, informally, at the coalface”.¹³⁷ The CSC has strongly promoted this philosophy in the way it deals with complaints, the vast majority of which do not proceed to the investigation stage. For example, in 1997-98 the CSC:

• received 1,689 contacts about complaints;
• dealt with 1385¹³⁸ (82%) of these as complaint inquiries;
• assessed 583 formal complaints; ¹³⁹
• referred 39 of these to service providers and other organisations for investigation;
• conducted one formal conciliation (which did not resolve the matter satisfactorily);¹⁴⁰ and
• fully investigated only 26 matters.¹⁴¹

3.58 Two aspects of the procedural requirements for dealing with complaints are discussed in more detail below.

Streamlining complaints-handling provisions

3.59 CAMA provides for the establishment of an Investigation Division and a Conciliation Division. This would appear to be to satisfy the CAMA Working Party’s desire that:

so far as possible ... [the] functions [of investigation, mediation and conciliation] be administered separately by the ... [CSC] in order to maximise the effectiveness of these functions ... ¹⁴⁶

3.60 CAMA also provides extremely detailed provisions on how each Division should deal with complaints.¹⁴⁸ The CAMA Working Party did not explain why this is,¹⁴⁹ although it appears to reflect concern that there be a clear and established process for dealing with complaints that would be known to all parties involved. This level of detail has however created problems in practice for the CSC.¹⁵⁰ It has been suggested that this part of the Act be simplified. There is no similar level of detail provided on how the CSC should exercise its other functions.¹⁵¹ It has also been argued that the amount of detail makes the Act harder for people to understand, particularly consumers and their families and advocates.¹⁵² As the NSW Ombudsman commented:

The effect is to proscribe and to limit the discretions available to the ... [CSC], often for little apparent purpose, as well as imposing administrative burdens which may not in practice serve any good purpose. ¹⁵³

3.61 The Commission considers that Part 4 should be re-drafted to keep the core rights and powers in the Act, including moving any from the Regulation where necessary, and make the provisions less detailed and prescriptive. This approach was strongly supported in submissions.¹⁵⁵

RECOMMENDATION 12

Part 4 should be redrafted to ensure that it contains all core provisions conferring substantive rights and duties on the Community Services Commission and on parties involved in complaints.

All references in the Act to the Investigative Division and the Conciliation Division of the Community Services Commission should be removed. Section 16 should be repealed, and other related sections amended to delete references to these Divisions.

Notifying the service provider of the complaint

3.62 When the CSC is notified of a complaint about a service provider, it must give written notification to the service provider of:

• the fact that the complaint was made;
• the nature of the complaint; and
• the identity of the complainant.¹⁵⁶

• 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.¹⁵⁷

Timeframes for assessment

3.64 CAMA sets down specific time limits for completion of assessments by the CSC after it receives a complaint. These are:

• 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.¹⁵⁹
• If the CSC has asked for more information, it has 28 days from the date specified in the request for more information.¹⁶⁰ If the request made is to someone other than the complainant, the CSC must tell the complainant it needs more time to assess the complaint and get their agreement to this specified date.¹⁶¹

3.66 Comparable complaints bodies adopt a variety of approaches: they either do not have a mandatory period for assessment of complaints at all;¹⁶⁶ require only that the investigation be “conducted as expeditiously as possible”;¹⁶⁷ or specify a longer timeframe than in CAMA, for example, 60 days for the Health Care Complaints Commission (“HCCC”).¹⁶⁸

3.67 In balancing the competing considerations outlined above, the Commission’s conclusion is that the current time limit should be retained. Although in reality the deadline laid down cannot always be met, it is important to retain this in the legislation as a target for which to aim. The Commission also considers that the 60 days set down for the HCCC is too long a period to adopt in this context.¹⁶⁹

3.68 Nonetheless, at least some submissions favoured a limited, structured discretion to extend the time period, in recognition of the fact that there will be some cases which require a longer timeframe for an adequate assessment.¹⁷⁰

3.69 The Commission does not support the inclusion in the Act of a discretion to allow the CSC to extend the time period for the assessment. Rather, in the small number of cases when a complaint cannot be dealt with within the specified timeframe, the CSC should notify the parties that it proposes to continue the investigation and the reasons for it. The CSC should also be required to report on the number of such cases and the reasons for the extension in its Annual Report.

3.70 The Act should also provide that where the deadlines in the Act are not met, this does not in itself invalidate the findings or decisions of the CSC. This is to protect the CSC from any challenges on this basis. There are other Acts which similarly provide that actions taken under them are not to be invalidated merely because of a failure to comply with the statutory requirements laid down.¹⁷¹

RECOMMENDATION 13

Section 19 should be amended to provide that where the Community Services Commission is unable to deal with a complaint within the specified timeframe and where it proposes to continue its investigation, the Community Services Commission must notify all parties of this fact and the reasons for it.

The Community Services Commission should also be required to report on the number of such cases and reasons for the extension of the timeframe in its Annual Report.

Section 19 should also provide that failure to comply with the specified timeframe does not invalidate any finding or decision of the Community Services Commission.

Written notice of a complaint by the CSC

3.71 The CSC is required to give the service provider who is the subject of a complaint written notice of this fact when they receive a complaint.¹⁷² The CSC argued that this should be modified to require the CSC to provide written notification within a certain timeframe (for example, seven days) rather than “on receiving a complaint”.¹⁷³ The CSC also argued that this notice should not be required where the complaint has been resolved. This is because many complaints are dealt with and resolved very quickly, making the requirement for notification unnecessary.¹⁷⁴ In practice the CSC has tended to categorise concerns raised with them as “inquiries” or “contacts” rather than “complaints” in order to avoid the need to comply with this requirement.¹⁷⁵

RECOMMENDATION 14

Section 14(1) should be amended to require the Community Services Commission to give written notice of the making of a complaint to the person against whom the complaint is made within seven days unless the complaint has been resolved.

Alternative dispute resolution

3.72 CAMA allows the CSC to refer a complaint to alternative dispute resolution (“ADR”).¹⁷⁶ ADR refers to a wide range of non-litigious mechanisms to resolve disputes, including mediation, conciliation and negotiation.¹⁷⁷ Various forms of ADR are now used in a wide variety of legal contexts, such as disputes in family, commercial, intellectual property, tenancy, personal injury and industrial relations law. In his Second Reading Speech on CAMA, the then Minister for Community Services hailed the availability of ADR as an “especially innovative” way of dealing with complaints.¹⁷⁸

3.73 CAMA describes the process of ADR as “conciliation”.¹⁷⁹ The criteria for referral to ADR are that:

• 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.¹⁸⁰

3.74 In practice, there have been few formal conciliations conducted by the CSC.¹⁸² In 1997-98, only one was conducted, and this did not achieve an outcome which satisfied all parties.¹⁸³ In the three preceding financial years, there were only a total of 23 formal conciliations conducted.¹⁸⁴ According to the CSC, ADR is used relatively infrequently since complaints tend to fall into two categories. On the one hand, the majority of complaints are relatively easy to resolve, and are therefore dealt with by less formal means than ADR.¹⁸⁵ This includes providing information to encourage dispute resolution at a local level by the parties themselves, or assisting in this process by informally contacting the service provider.¹⁸⁶ Although the CSC classifies these matters as locally resolved, they could also be regarded as having been resolved by ADR.¹⁸⁷ On the other hand, there are disputes for which ADR is inappropriate, either because they are very protracted (and therefore the parties are unlikely to agree to, or successfully use, ADR), or they involve abuse or poor treatment of residents.¹⁸⁸

3.75 There was general recognition in submissions that ADR will be inappropriate in some situations. These include cases where there is evidence of imminent harm or the threat of harm,¹⁸⁹ violence,¹⁹⁰ other significant abuses of human rights,¹⁹¹ or marked power imbalances.¹⁹² Submissions varied in their views on the extent to which ADR would be desirable and useful to resolve complaints. For example, one service provider wanted greater prominence given to ADR in the legislation and for its use to be encouraged,¹⁹³ whilst another service provider argued that ADR would generally be inappropriate since by the time an issue reaches the complaint stage most alternative informal means of resolution have usually been explored.¹⁹⁴ Nonetheless, there was general support in submissions for the retention of ADR as one of the methods available to the CSC for resolving complaints.¹⁹⁵ It was claimed in one submission that ADR has the potential not only to resolve complaints, but also to improve relationships between the parties involved.¹⁹⁶ ADR is also commonly available for use by other complaints bodies.¹⁹⁷

3.76 CAMA places a blanket restriction on the disclosure of information in any context obtained during the conciliation, and imposes a financial penalty for its breach.¹⁹⁸ The legislation governing other complaints bodies likewise restricts disclosure of this information, although the CAMA restriction is broader in prohibiting disclosure for any purpose rather than just in the course of legal or other official proceedings. ¹⁹⁹ Although the CSC favoured narrowing the restriction in this way,²⁰⁰ in the Commission’s view this is undesirable. The provision is important to ensure as full and frank disclosure as possible during the conciliation. This and the other provisions on ADR should therefore not be amended.

Protection of complainants from retributive action

3.77 The Act protects complainants from retributive action being taken against them because they have made or propose to make a complaint to a service provider, the CSC, a Community Visitor or the CSAT. This also covers a person who provides information, documents or evidence to any of those bodies.²⁰¹ This is an important provision, since the Commission’s focus groups with consumers found that fear of retribution (for example, loss of services) was one of the factors which would discourage them from complaining.²⁰²

3.78 In practice the provision has never been used.²⁰³ People With Disabilities (NSW) Inc argue that the police are reluctant to act on or enforce this provision.²⁰⁴ It suggested that the CSC become the primary investigator of such complaints, and be able to refer matters to the Director of Public Prosecutions.²⁰⁵ The Commission does not consider that the CSC has the expertise to undertake this role. Nor is it appropriate for the resources of the CSC to be diverted to fulfil what is essentially a police function.

3.79 The Commission does consider, however, that the Act should be amended to state that a service user is protected by the retribution provision even if he or she was not the person making the complaint or providing information, documents or evidence. Currently this is not the case.

RECOMMENDATION 15

Section 117(1) should include retribution against a service user as a ground for the offence, in addition to retribution against a person who makes a complaint or provides information, documents or evidence.

3.80 Section 117 protects those who make complaints to a service provider or to one or more of the bodies established under CAMA. The CSC suggested that the protection afforded to staff members who make complaints should be further bolstered by amending the Protected Disclosures Act 1994 (NSW). This Act provides protection from reprisal for public officials who report corrupt conduct, maladministration or waste within the public sector to “investigating authorities”. “Investigating authorities” is currently defined to include the Auditor-General, the NSW Ombudsman, the Independent Commission Against Corruption, the Police Integrity Commission and the Police Integrity Commission Inspector.²⁰⁶

3.81 The CSC argued that it should also be included within the definition of an “investigating authority”, so that public officials (in this context, employees of DOCS and ADD) who complain to the CSC would be covered by the Protected Disclosures Act 1994 (NSW).²⁰⁷ A person found guilty of taking action in retribution against a public official who reports corrupt conduct, maladministration or waste is liable to a financial penalty or a prison sentence of up to 12 months.²⁰⁸

3.82 When the CSC was established in 1994, responsibility for investigating the majority of complaints concerning services provided by DOCS, ADD and the Home Care Service was transferred from the NSW Ombudsman to the CSC.²⁰⁹ CAMA states that complaints about the conduct of public authorities within the CSC’s jurisdiction cannot be investigated by the NSW Ombudsman except in very limited circumstances.²¹⁰ Whereas previously, disclosures concerning maladministration, waste or corrupt conduct would have been protected under the Ombudsman legislation, it appears that since the introduction of the Protected Disclosures Act 1994 (NSW), such disclosures are no longer protected.²¹¹

3.83 The Committee reviewing the Protected Disclosures Act 1994 (NSW), however, decided that it was inappropriate to make the CSC an “investigating authority” for two main reasons. First, there was concern that creating further “investigating authorities” would “lead to confusion, duplication of effort and co-ordination problems”, since those bodies currently defined as “investigating authorities” are the specialists in dealing with issues of corrupt conduct, maladministration or waste.²¹² The Committee felt these bodies were “best placed to receive and investigate protected disclosures”.²¹³ It also stated that it was not in a position to assess the extent to which public officials are making disclosures to bodies other than these.²¹⁴

3.84 Secondly, the bodies which are currently defined as “investigating authorities” are independent of the Executive, but also accountable to the Legislature. It was felt to be inappropriate to make bodies which did not fulfil this criteria, such as the CSC, “investigating authorities”.²¹⁵ The Committee did, however, leave open the possibility that the issue may be re-examined when the Act is next reviewed.²¹⁶

3.85 In the Commission’s view, there appears to be some justification to extend the protection of the Protected Disclosures Act 1994 (NSW) to public officials making complaints to the CSC. Nonetheless the Commission considers that this issue is more appropriately considered when the next review of the Protected Disclosures Act 1994 (NSW) is conducted later in 1999, rather than in the context of the review of CAMA. Currently, however, the Commission does not support extension of the Protected Disclosures Act 1994 (NSW) to cover the CSC.

What decisions of the CSC should be reviewable?

3.86 Decisions of an administrative nature made under an enactment which affect, or are likely to affect, the interests of a person should, in the Commission’s opinion, be reviewable.²¹⁷ Currently, CAMA provides that only the following decisions of the CSC are reviewable:

• a decision to investigate a complaint, where that investigation is beyond its powers; and
• a decision of the CSC that was beyond its powers.²¹⁸

3.87 In the exercise of its complaints-handling functions, the CSC may make decisions which could significantly affect a person’s interests. It may, for example, decline to entertain a complaint, dismiss a complaint or terminate a complaint.²²⁰ In Chapter 5, the Commission recommends that these decisions should also be reviewable by the CS Division of the ADT.²²¹

Reasons for decisions

3.88 Providing an avenue for the review of administrative decisions, and thus making government accountable for decisions which affect the interests of persons, is the primary goal of an administrative law framework. A key element of this framework is ensuring that administrators give reasons for decisions which are reviewable.²²²

3.89 The Act provides that the CSC, among others, must give reasons for any reviewable decision it makes,²²³ subject to certain exceptions.²²⁴ A similar requirement applies generally to the public sector under the recently enacted ADT Act.²²⁵ Significantly, the major difference between the two Acts is that CAMA requires reasons to be given to persons directly affected by the reviewable decision automatically when notice of the decision is given. There is no need for a separate request to be made.

3.90 CAMA provides expressly that the CSC must give reasons to the complainant for any decision it makes to decline to entertain a complaint.²²⁶ In the Commission’s view, the CSC should also be required to give reasons for its decisions to dismiss or terminate a complaint. If these decisions become reviewable as recommended by the Commission,²²⁷ CAMA will operate automatically to require the CSC to give notice of, and reasons for, such decisions.²²⁸

Notification of appeal rights

3.91 Another key element of an administrative law framework is to ensure that persons affected by an administrative decision are aware of their rights to have the decision reviewed by a tribunal. The ADT Act achieves this by requiring the decision-maker to give notice of the decision to interested persons and inform them of their right to have the decision reviewed.²²⁹ This requirement is now reflected in CAMA.²³⁰ Clearly, if decisions of the CSC to decline to entertain a complaint, dismiss a complaint or terminate a complaint become reviewable, as recommended, the CSC will be required to give notice of the decision to any person directly affected by it and of that person’s rights to appeal the decision.

MONITORING AND INQUIRY

Current monitoring power

3.92 The monitoring and inquiry functions of the CSC involve:

• 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.²³¹

involves identifying patterns of complaints and grievances, and using other techniques to collect information and make observations about the performance of the decision-makers from a consumer perspective.²³²

• the use of solitary confinement and related issues at one large residential centre,²³³ and a subsequent follow-up report on progress made in implementing the recommendations;²³⁴
• a performance audit report of large residential centres for people with a disability in conjunction with the Audit Office,²³⁵ and subsequent development of a set of baseline criteria to ensure that residents’ basic human and legal rights are protected;²³⁶
• an inquiry into the death of an individual child and the role of DOCS;²³⁷
• a report on the drift of children in care into the juvenile justice system,²³⁸ and a subsequent follow-up report;²³⁹ and
• a review of the respite care system.²⁴⁰

3.95 The CAMA Working Party emphasised that the CSC’s ancillary functions of monitoring, review and inquiry were of vital importance since the consumers it deals with:

are, due to factors such as disability or youth, very often vulnerable to abuse and exploitation, unaware of redress they can obtain and lacking the capacity or confidence to pursue redress. In the absence of ancillary functions a complaints body may well be assisting the more articulate and confident consumers whilst being of little use to those most in need of assistance.²⁴³

an important and extremely valuable loop in the quality assurance and continuous improvement mechanisms which are so much a part of modern administration and managerialism.²⁵¹

Should the monitoring power be broadened?

3.97 Some submissions favoured expanding the CSC’s monitoring role to cover some specific types of monitoring. These were: reviewing and monitoring deaths of people with a disability in care; and monitoring compliance with various types of service standards.

Reviewing and monitoring deaths of people with a disability in care

3.98 Following an informal process of monitoring deaths of people with a disability in care by the CSC,²⁵³ a Disability Death Review Team was established within the CSC in December 1998. Its role is to investigate, review and monitor the deaths of adults and children with disabilities in government and non-government care, identify systemic problems and contribute to service improvement and preventative strategies.²⁵⁴ Only deaths of “persons in care”²⁵⁵ and “children in care”²⁵⁶ in “visitable services”,²⁵⁷ as defined under CAMA,²⁵⁸ or temporarily absent from such services at the time of death,²⁵⁹ are to be examined by the Disability Death Review Team.

3.99 The CSC envisages that the functions of the Disability Death Review Team will include:

• maintaining a register of deaths;
• assessing reports of deaths;
• providing oversight of reviews or investigations by service providers of the circumstances surrounding deaths;
• undertaking reviews or investigations where service providers are unable to perform this task or where it is in the public interest for the Disability Death Review Team to do so;
• monitoring actions by service providers after an investigation or review; and
• contributing to the development of strategies to ensure high quality service provision and minimise the occurrence of preventable deaths, by conducting and oversighting reviews and investigations and analysis of data.²⁶⁰

3.100 The role of the Disability Death Review Team differs from that of the coroner. The primary focus of the coroner is establishing the cause of death of a person, whereas the Disability Death Review Team has a much broader function of identifying systemic problems in policy and practice and preventative strategies.²⁶²

3.101 A number of submissions argued that there should be explicit reference to the Disability Death Review Team as one of the CSC’s functions.²⁶³ In the Commission’s view, this is appropriate. Although the creation of this additional function will result in some overlap with the role of the Child Death Review Team in NSW,²⁶⁴ the Commission does not consider that this creates a particular problem as there may be special issues concerning children with disabilities which are more appropriately dealt with by the Disability Death Review Team. Issues of overlap can be dealt with by way of protocols between them. These protocols are currently being developed.²⁶⁵

RECOMMENDATION 16

The functions of the Community Services Commission should include investigating, reviewing and monitoring deaths of “persons in care” and “children in care” who reside in “visitable services” or are temporarily absent from such services at the time of death.

Monitoring compliance with service standards

3.102 Currently one of the functions of the CSC is to “promote and assist the development of standards for the delivery of community services”.²⁶⁶ Some submissions argued that this should be further developed to give the CSC a role in monitoring compliance by community service providers with service standards.²⁶⁷

3.103 There were three areas identified in particular where the CSC should monitor standards:

• standards compliance and accreditation in the area of substitute care and Supported Accommodation and Assistance Program (“SAAP”) services;²⁶⁸
• transition plans under the DSA;²⁶⁹ and
• s 9 plans under the DSA.²⁷⁰

RECOMMENDATION 17

The Community Services Commission should not be given the function of monitoring compliance with service standards.

REVIEW

Current review power

3.105 CAMA empowers the CSC to review the situation of a “child in care” or a “person in care” either on application or on its own initiative.²⁷¹ The focus is on identifying what needs to be done to improve the situation of the child or adult being reviewed.²⁷² The CSC must look at such aspects as the welfare, status, progress and circumstances of the person as referred to in the application or as it thinks fit.²⁷³ This includes:

• where the person is living and whether the child or adult is having any problems with the arrangement;
• what services the child or adult requires, such as accommodation, education, family support and advocacy;
• the future of the child or adult; and
• what actions are required to improve the quality of care and promote the welfare and interests of the child or adult. ²⁷⁴

3.107 The CSC uses three “vulnerability criteria” to determine which requests for review should be given priority. These are:

• the person’s vulnerability: their age, disability, limited communication, challenging behaviour or self-injury, dual diagnosis, Aboriginal and Torres Strait Islander people or people from a non-English speaking background;
• situational vulnerability: respite or institutional care, limited contact with family or advocate, involvement by the police, complexity, multiple services, isolation and safety issues; and
• the public interest: whether there are systemic issues involved.²⁷⁶

• 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.²⁷⁷

How effective is the review power?

3.109 Submissions argued that the review power is a very important one. For example, People With Disabilities (NSW) Inc argued that:

The CSC’s review function has been very effective to date in promoting the interests of children and young people and adults with disability in care. The primary strengths of the function are its relatively expansive and flexible operation, and the capacity of the Commissioner to initiate a review (rather than relying on an external party to raise concerns). In practice, both the process and the recommendations arising from reviews of people in care have usually led to major improvements in their circumstances.²⁷⁹

Feedback from key stakeholders suggests that these reviews are a valuable record and provide opportunities to identify systemic issues. ...

This external auditing function should continue in its current form and with a focus on systemic issues.²⁸⁰

3.111 The CSC’s review function is “essentially a higher level of review” rather than a comprehensive review process.²⁸³ In 1997-98, the CSC received 22 requests for reviews; it conducted reviews for 13 people and provided advice and support to six people.²⁸⁴

Potential overlap with the role of the Children’s Guardian

3.112 The new Children and Young Persons (Care and Protection) Act 1998 (NSW) has a potential impact on the CSC’s review power, since it provides for reviews of children and young people in care by the Children’s Guardian.²⁸⁵ The Act was assented to on 14 December 1998 but will not come into effect until the Regulation has been proclaimed. This will not be before January 2000.²⁸⁶

3.113 The new Act requires two levels of review for children and young people who are in out-of-home care as a result of an order by the Children’s Court. First, “designated agencies” with responsibility for the placement of such children must review the placement to determine whether their safety, welfare and well-being is being promoted by the placement.²⁸⁷ “Designated agencies” include both government service providers, and non-government service providers who have been duly accredited.²⁸⁸ These reviews must be completed within statutory timeframes,²⁸⁹ and in accordance with guidelines prepared by the Children’s Guardian.²⁹⁰ Reports of the reviews must be presented to the Children’s Guardian.²⁹¹ The Children’s Guardian is vested with the legal functions of guardianship, and promotes and safeguards the welfare of children in substitute care.²⁹² The second level of review is to be conducted by the Children’s Guardian, who can carry out reviews at any time.²⁹³

3.114 If this mechanism works effectively, it should largely satisfy the desire expressed by many for a comprehensive, systematic review process,²⁹⁴ at least for children in care. This had been provided for in the Act which preceded the new legislation, the Children (Care and Protection) Act 1987 (NSW). However, the relevant Part of that Act had never been proclaimed.²⁹⁵ The lack of such a review mechanism was a key criticism of the old legislation.²⁹⁶

3.115 As discussed above, the new Act is not in force yet.²⁹⁷ At this stage it is unclear precisely how this new review power will work in practice. However, there is an area of potential overlap between the reviews conducted by the Children’s Guardian under the new Act, and those conducted by the CSC pursuant to its review power concerning children in care.

3.116 Some submissions raised the possibility that the reviews conducted by the Children’s Guardian may subsume the CSC’s review function in relation to children in care altogether.²⁹⁸ In the Commission’s view, it is preferable that the CSC retain this aspect of its review power for several reasons. First, the CSC’s jurisdiction covers a broader group of children than the Children’s Guardian. The reviews by the Children’s Guardian only cover children in care pursuant to court orders, whereas the CSC’s review power is not limited in this way and can cover children in temporary or voluntary care.²⁹⁹ Secondly, although it is intended that the Office of the Children’s Guardian be a specialist and accountable unit which is operationally separate from the role of service provision, it is not intended to be a ‘watchdog’ agency in the same way as the CSC.³⁰⁰ It is also important to retain the CSC’s focus on broader systemic issues and problems in this area. Thirdly, the number of reviews conducted by the CSC is so small that there is unlikely to be a major problem with overlap in practice.

3.117 The Commission believes that the CSC and the Children’s Guardian should develop protocols to deal with issues of overlap and thus minimise potential duplication of work.³⁰¹

RECOMMENDATION 18

The Community Services Commission and the Children’s Guardian should develop protocols concerning reviews of children in care to ensure there is no unnecessary overlap in the work carried out by them.

3.118 There were two main issues concerning the review power: jurisdictional gaps, and the absence of guidelines governing how the review power should be exercised. The power to require a service provider to conduct a review under the direction of the CSC is also discussed later in this chapter.³⁰²

Jurisdictional gaps

3.119 Time frame for eligibility for review. The primary restriction on the exercise of the review power is that the person whose situation is to be reviewed must have been in care for at least three months, or for periods totalling six months in the 12 months before the review.³⁰³ Submissions argued that this was an unnecessary, arbitrary and artificial restriction.³⁰⁴ It was claimed that a number of groups of very vulnerable children in care, or people with disabilities whom it might be expected that the review power would cover, fall outside this definition.³⁰⁵ These include those who are homeless or itinerant, those who have been moved frequently between different facilities, and those who have been placed in respite or crisis services on a long-term basis but have been there for under three months.³⁰⁶ Such people may be precisely those most in need of reviews because they “fall through the gaps” or do not find satisfactory long-term facilities. The Commission therefore recommends that this restriction on the exercise of the review power be removed.

RECOMMENDATION 19

The time limit restriction on the exercise of the review power should be removed.

3.120 Definition of person in care. The jurisdiction of the review power is also limited by the definitions of “child in care” and “person in care”. A “child in care” includes a child who is:

• in the custody of the Director General of DOCS under a temporary care arrangement;
• living in a residential care centre;
• a foster child; or
• a State ward. ³⁰⁷

3.121 Some suggestions were made in submissions concerning ways to expand the definition of one or both of these to include, for example:

• people under guardianship orders which make them subject to the guardianship of the Office of the Public Guardian or the financial management of the Office of the Protective Commissioner;³⁰⁹ and
• people with a disability living in:
  
  - mental health facilities;³¹⁰

  - licensed boarding houses;³¹¹

  - juvenile justice facilities;³¹² or

  - accommodation rented in their own name.³¹³

3.122 Reviewing groups of people in care. The review power is focused on reviewing the circumstances of individuals. The CSC does not have a specific power to carry out reviews of groups of people in care. Where groups of individuals have shared common features, the CSC has relied on conducting a number of individual reviews.³¹⁵ For example, in 1996-97 an intensive review was conducted of 16 children living in the residential services Ormond and Minali, run by DOCS.³¹⁶ The CSC produced a report (which was not publicly released), highlighting the unsatisfactory nature of large residential institutions for children. There has since been a general move away from such settings towards more individualised care. This has included the closure of Ormond and Minali, announced in October 1997³¹⁷ and completed in 1998.³¹⁸ The CSC produced a final report on its investigations into Ormond in April 1999.³¹⁹

3.123 The submissions which addressed the issue of whether the CSC should be able to conduct reviews of groups of children and adults in care all favoured this option.³²⁰ It was argued that this would be beneficial because:

• people in care often share common difficulties;
• it allows the CSC to focus on and make recommendations about broader systemic issues; and
• it would be cost-efficient since it allows the CSC to undertake similar reviews together and the government to make required policy changes at the one time.³²¹

RECOMMENDATION 20

The Community Services Commission should have the power under s 11 to review groups of children and adults in care as well as individuals.

3.124 Submissions also discussed ways of ensuring implementation of recommendations which are made by the CSC as a result of reviews. This issue is discussed below in the context of enforcement of the CSC’s recommendations generally.³²²

Guidelines for assessing and declining applications for review

3.125 The CSC argued that there should be guidelines in the legislation for assessing and declining applications to conduct reviews, in the same way as there are for complaints.³²³ However the Commission has recommended that procedural issues should generally be omitted from CAMA in the context of complaints.³²⁴ Consistently with this view, the Commission considers that it is unnecessary to provide statutory guidelines for assessing and declining applications for review. Instead, the CSC should develop guidelines for dealing with reviews for inclusion in its procedures manual.

EDUCATION AND DEVELOPMENT

3.126 The CSC’s 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 as a whole about those standards; and
• promoting, liaising with and assisting advocacy services, and supporting the development of advocacy programs.³²⁵

• training and support for consumers, their families and other advocates;
• speaking to a wide variety of audiences at conferences and other events;
• briefings of residents, family members, advocates and professionals about two major reports by the CSC;
• presenting workshops to service providers about issues such as establishing complaints-handling mechanisms and resolving customer complaints;
• widely distributing a number of CSC publications; and
• frequently contributing to media debates.³²⁶

3.128 One of the consistent themes in the Commission’s public seminars, submissions and focus groups was that there is a lack of awareness of CAMA and the bodies it establishes amongst consumers of community services in particular. This was a key finding of the focus groups conducted for the Commission with children and adults with disabilities (including Aboriginal and Torres Strait Islander people and people from a non-English speaking background), and children and young people in care.³²⁷ The lack of knowledge about CAMA by consumers was also raised in submissions. Blind Citizens Australia, for example, commented that “people with disabilities are rarely told” about the provisions of CAMA. ³²⁸

3.129 As discussed above, the CSC has already identified training for consumers and their associates as an area for its educational activities.³²⁹ The Commission encourages the CSC to further develop its education activities towards this target group. This should include providing further information to service providers and their staff about CAMA, and encouraging them to promote a greater awareness and use of the CAMA bodies by residents.

RECOMMENDATION 21

The Community Services Commission should make education of consumers and their families and advocates about CAMA a priority under its education and development function.

JURISDICTION

Current jurisdiction of the CSC

3.130 The jurisdiction of the CSC is determined by the definitions of “community services” and “service providers”.³³⁰ In general terms the jurisdiction covers service providers and people receiving, or eligible to receive, community services.

3.131 A “service provider” is:

• DOCS;
• ADD;
• 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 NSW 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.

• a service rendered under the community welfare legislation;³³¹ 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?

3.134 There was considerable support in submissions for the expansion of the CSC’s jurisdiction to cover the following:

• ·people with disabilities:
  
  - living in licenced boarding houses;³³⁵ and

  - who come into contact with the criminal justice system;³³⁶

• all children³³⁷ (or children with disabilities)³³⁸ who come into contact with the juvenile justice system; and
• children in foster care.³³⁹

• people with disabilities living in:
  
  - mental health facilities;³⁴⁰ and

  - aged care facilities³⁴¹ (including young people with a disability inappropriately placed in such facilities);³⁴²

• people under the jurisdiction of the Public Guardian and the Protective Commissioner;³⁴³
• services arranged by, but not provided by, a service provider (to cover services “brokered” by service providers under individual funding packages); ³⁴⁴
• accommodation rented in the name of the person with a disability;³⁴⁵ and
• the newly-created Children’s Guardian.³⁴⁶

3.136 The Commission feels that it is inappropriate to extend the CSC’s jurisdiction in many of the ways suggested. Three general principles were applied in forming this view.

3.137 The first principle is that there should be consistency with the general practice adopted that complaints bodies specialise in distinct and particular sectors.³⁴⁷ The jurisdiction of these complaints bodies are based on service systems rather than population groups (such as people with disabilities).³⁴⁸ The CSC’s jurisdiction should therefore not extend to cover people with disabilities residing (appropriately or inappropriately) in aged care facilities. This is a very large and specific area³⁴⁹ which extends beyond the current specialisation of the CSC. Since aged care facilities are a federal responsibility, there is also no clear chain of responsibility to the NSW Minister for Community Services or Disability Services.³⁵⁰

3.138 The second principle adopted is that the CSC’s jurisdiction should not be extended to cover subject populations which are largely covered by other complaint or oversight mechanisms. This is true of children (including those with disabilities) in the juvenile justice system and people with a disability in the criminal justice system; these groups fall clearly within the jurisdiction of the NSW Ombudsman.³⁵¹ The services being provided here also cannot be said to involve an identifiable “community service”.³⁵² As discussed above,³⁵³ this is required in order to come within the CSC’s jurisdiction.³⁵⁴

3.139 There is likewise another oversight mechanism provided for people under a guardianship order which allows the Office of the Public Guardian or the Office of the Protective Commissioner to exercise substitute decision-making powers on behalf of those persons. People with disabilities under such orders who otherwise satisfy the jurisdictional criteria in CAMA are already covered by the Act.³⁵⁵ Although the CSC cannot review the conduct of the Offices of the Public Guardian or Protective Commissioner as “service providers”,³⁵⁶ the Guardianship Tribunal has the power to review a guardianship order if there are concerns about how either of these bodies is exercising its functions under that order.³⁵⁷ Further, the substitute decision-making and financial management roles exercised by these bodies are statutory functions, and are of a qualitatively different nature to the services provided under the current CAMA definition.³⁵⁸

3.140 People with disabilities resident in mental health facilities are also clearly covered by the Health Care Complaints Commission. The definition of “health service” for this body explicitly includes psychiatric services.³⁵⁹ In a review conducted of the Act governing the HCCC, the only aspect felt to require modification or clarification was to change the wording from “psychiatric services” to “mental health services” to reflect current terminology.³⁶⁰ The Commission therefore disagrees with the view that there is legal ambiguity concerning whether psychiatric disability services are covered by the HCCC or the CSC.³⁶¹

3.141 Thirdly, the Commission considers that it is inappropriate to provide regulatory mechanisms for programs which are in embryonic form. Although it is argued that individual funding packages for people with disabilities will become more common in the future,³⁶² they are currently used comparatively rarely.³⁶³ The CSC’s jurisdiction should therefore not be extended to include individual funding packages unless the service is provided by a person or organisation within the definition of “service provider”.

3.142 Apart from limiting the jurisdiction of the CSC based on these three principles, the Commission also considers that it is inappropriate to significantly extend the jurisdiction of the CSC for practical reasons. To overload the CSC with a very broad jurisdiction could risk reducing its effectiveness and specialist focus.

3.143 Although there is insufficient justification to warrant the blanket extension of the CSC’s jurisdiction for the reasons discussed above, it would be beneficial for the CSC to develop protocols with relevant complaints bodies such as the NSW Ombudsman and the Health Care Complaints Commission concerning cases within those bodies’ jurisdiction which may be more appropriately dealt with by the CSC and vice versa.³⁶⁴ There is already some precedent for this in a recent amendment to CAMA which permits the CSC and the NSW Ombudsman to “enter into arrangements regarding the co-operative exercise of their respective functions” concerning the NSW Ombudsman’s new child protection jurisdiction.³⁶⁵

3.144 The protocols proposed should outline the type of cases which might be appropriate for referral to the other body. CAMA should also provide for the conferral of the appropriate jurisdiction. This would ensure that the body with the most appropriate expertise deals with individual cases. For example, certain cases involving people with an intellectual disability in the criminal justice and juvenile justice systems and mental health facilities may be more appropriately dealt with by the CSC rather than the NSW Ombudsman³⁶⁶ and Health Care Complaints Commission respectively – for instance where the nature of the complaint is primarily concerned with disability issues rather than the fact that the person was in a criminal justice setting or a mental health facility.

RECOMMENDATION 22

The Community Services Commission should develop protocols with other complaints bodies to enable cross-referral of cases where appropriate. There should also be provision in the Act for conferral of appropriate jurisdiction.

Populations which should be included in the CSC’s jurisdiction

3.145 The Commission considers that there are three areas where the jurisdiction of the CSC requires expansion. These are to cover licensed boarding houses, children in foster care, and the Children’s Guardian.

3.146 Licensed boarding houses. In the Commission’s view, the CSC’s jurisdiction should extend to cover licensed boarding houses. Legal advice obtained by the CSC as to whether licensed services such as boarding houses constitute organisations “authorised by the Minister for Community Services” within the definition of “service provider”³⁶⁷ indicates that there is some uncertainty about this issue.³⁶⁸

3.147 There are over 2000 people in NSW living in more than 120 licensed boarding houses.³⁶⁹ It has also been repeatedly shown that most of the people living in these boarding houses have disabilities.³⁷⁰ Licensed boarding houses have been described as “supported accommodation services for people with disabilities”.³⁷¹ People with disabilities find themselves living in boarding houses largely because of an undersupply of places in more appropriate supported accommodation options.³⁷²

3.148 The residents of boarding houses have similar characteristics to the other consumers with disabilities included in the CSC jurisdiction.³⁷³ There is no other obvious complaint or oversight body to which such residents could complain. They are also a very vulnerable group who are unlikely to have advocates to act on their behalf.³⁷⁴ This makes them very vulnerable to abuse, neglect, exploitation and poor practice.³⁷⁵ A number of reports have clearly demonstrated that there are regular abuses of the human rights of residents of licensed boarding houses. ³⁷⁶ For example, one recent report states that residents:

• often live in appalling physical conditions;
• do not have protection under the Residential Tenancies Act 1987 (NSW), for example residents are sometimes moved by managers to other boarding houses without permission or notice;
• may have no money of their own if they give all their pension or benefit to the manager;
• often have no say in the way the house is run;
• often have no opportunity to participate in the community; and
• often require other support to participate successfully in the community but have not been assessed and do not receive any other support.³⁷⁷

• relocating residents with the highest needs out of boarding houses and into more appropriate care;
• the capital costs of alternative housing; and
• the support services for residents remaining in boarding houses.³⁸¹

RECOMMENDATION 23

Boarding houses licensed under s11 of the Youth and Community Services Act 1973 (NSW) should be included in the jurisdiction of the Community Services Commission.

3.151 Children in foster care. The Commission also recommends that children in foster care³⁸⁴ be included in the CSC’s jurisdiction. Although such children are clearly covered by the CSC’s review power, there is some ambiguity as to whether this extends to the CSC’s complaints function.³⁸⁵ The Crown Solicitor has advised the CSC that although an authorised foster carer arguably satisfies the definition of “service provider”,³⁸⁶ the conduct of such a person would not appear to fall within the definition of “unreasonable conduct by service provider”.³⁸⁷ This is because the latter definition is framed in terms of actions by “an administrative body or organisation, rather than an individual foster carer”.³⁸⁸ The CSC suggested that this result would appear to have been unintended when the legislation was drafted.³⁸⁹

3.152 There are a number of reasons to favour inclusion of children in foster care within the CSC’s jurisdiction. There are many more children in foster care than in residential institutions. As at 30 June 1998 there were 2499 children in foster care compared to only 258 in residential care.³⁹⁰ If children in foster care are placed elsewhere, it is likely that this placement would be with a service within the CSC’s jurisdiction.³⁹¹ There is also a significant overlap between children in foster care and disability issues, given that approximately 40% of children in foster care have a disability.³⁹² Many children also move between residential care and foster care. ³⁹³

3.153 Children in foster care are a particularly hidden and vulnerable group. They have no access to other complaints mechanisms, nor do they have access to the Community Visitor scheme.³⁹⁴ Although they reside in private homes, there is a public duty to provide oversight of such children since the State is involved in their placement.³⁹⁵ For example, foster children may be placed as a result of an order of the Children’s Court³⁹⁶ or a temporary voluntary arrangement made by the Director General.³⁹⁷ Arrangements for the placement of a child with a particular foster family can also only be made by the Children’s Guardian³⁹⁸ or a “designated agency”.³⁹⁹ A “designated agency”⁴⁰⁰ may be DOCS or a non-government organisation,⁴⁰¹ and must be accredited under standards to be prescribed in the Regulation.⁴⁰²

3.154 As discussed above,⁴⁰³ under the new Children and Young Persons (Care and Protection) Act 1998 (NSW) reviews of children in out-of-home care must also be conducted by both the agency who provides (or in this case organises) the placement, and may be conducted by the Children’s Guardian.⁴⁰⁴ However, for the reasons outlined above,⁴⁰⁵ this should not replace other oversight mechanisms.

3.155 Since government policy is encouraging removal of children from institutions, it is likely that more children will be placed in foster care in the future as well.⁴⁰⁶

3.156 The Commission acknowledges that there is a difference between monitoring of residential institutions and the family settings of foster carers. However, it should be noted that the CSC cannot enter premises used for residential purposes except with the consent of the occupier or under the authority of a search warrant.⁴⁰⁷ This would apply to foster care situations.

RECOMMENDATION 24

The jurisdiction of the Community Services Commission to deal with children and young persons in foster care under its review function should be extended to include the complaints and monitoring functions.

3.157 The Children’s Guardian. In the Commission’s view, the CSC’s jurisdiction should cover the actions of the newly-created Children’s Guardian. The Children’s Guardian will take over the parental responsibilities exercised by the Minister for Community Services in relation to children and young persons in care.⁴⁰⁸ Therefore unless the Children’s Guardian is specifically included under the jurisdiction of the CSC, this whole group of cases will be excluded from the existing jurisdiction of the CSC.⁴⁰⁹

RECOMMENDATION 25

The jurisdiction of the CSC should be extended to include the Children’s Guardian in exercising the parental responsibilities of the Minister in relation to children and young persons.

3.158 The Crown Solicitor has provided the NSW Ombudsman with advice that the child protection functions carried out by DOCS do not fall within the definition of “community service” for the purpose of the community welfare legislation.⁴¹⁰ The CSC notes that child protection issues constitute a significant part of its work, and suggests that the CAMA definitions of “community service” and “service provider”⁴¹¹ be amended to clarify that this is part of their jurisdiction for the purposes of all its functions.⁴¹² Although the jurisdiction of the NSW Ombudsman has recently been extended to cover child protection matters, this only concerns allegations or convictions of child abuse offences against employees of designated government and non-government authorities.⁴¹³

RECOMMENDATION 26

The definitions of “community service” and “service provider” should be amended to clarify that the jurisdiction of the Community Services Commission includes all child protection matters for the purposes of all its functions.

3.159 The Act states that the CSC has a discretion to decline complaints which concern events that occurred more than two years ago.⁴¹⁴ This suggests that there is no actual bar on its examining events which occurred more than two years ago.

3.160 There is an issue, however, about whether the CSC can examine events which occurred before CAMA came into operation (April 1994). DOCS has advised the CSC that it has had legal advice which states that the CSC cannot examine events before that time.⁴¹⁵ Two submissions suggested that CAMA should explicitly state that the CSC has jurisdiction to examine events which occurred before CAMA came into operation.⁴¹⁶ The Commission does not feel there is enough justification, on the evidence presented to us, to justify any change to the Act in this way.

POWERS OF THE CSC

Current powers of the CSC

3.161 Subject to limitations described in the Act, the Commissioner can enter premises where services are provided.⁴¹⁷ 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.⁴¹⁸

3.162 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 reasonably necessary.⁴¹⁹

Enforcing the CSC powers

3.163 It is an offence:

• to prevent, hinder or obstruct the Commissioner from exercising his or her 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.

Should the powers of the CSC be extended?

3.164 There was agreement in submissions that the powers given to the CSC were generally adequate.⁴²⁷ Some submissions did favour extensions of these powers in a variety of ways.

Limitations on CSC powers

3.165 Some submissions argued that all⁴²⁸ or some of the limitations on powers should be removed, such as the requirement for a certificate of entry to be issued by the CSC before entering,⁴²⁹ or requiring notice to be given.⁴³⁰ However, the Commission does not favour this as it has not been presented with evidence that these requirements have proved to be a problem in practice.

Broaden search and entry powers to cover all CSC functions

3.166 It was also suggested in some submissions that the powers of entry and search warrants should be broadened to cover all CSC functions, not just complaint investigations.⁴³¹ The CSC argued that it is currently unclear from the wording of the Act⁴³² whether this is covered.⁴³³ This is because one of the key provisions outlining the Commissioner’s powers⁴³⁴ refers to the examination, seizure, retention or removal of equipment that the Commissioner reasonably believes has been used in connection with a complaint being investigated.⁴³⁵ The other provisions do not specifically refer to complaints (or any of the CSC’s other functions).

3.167 Because of this ambiguity, the CSC often prefers to deal with matters under its monitoring power, by seeking information from a service provider to allow the CSC to monitor the situation, rather than conducting a complaint investigation.⁴³⁶ Recently some service providers have refused to provide access to information requested by the CSC. This has forced the CSC to deal with the matter as a complaint investigation instead, an unnecessarily adversarial and intrusive process.⁴³⁷

3.168 The Commission considers that the wording of the Act should clarify that the CSC’s search and entry powers extend to all its functions.

RECOMMENDATION 27

Section 84 should explicitly provide that the Community Services Commission’s search and entry powers cover all their functions.

Requiring production of documents and information

3.169 The CSC can currently only request service providers to produce documents and information further to its powers of search and entry.⁴³⁸ Some submissions argued that service providers should be required to comply with this request.⁴³⁹ The CSC reports that service providers have generally provided information and documents willingly without the need to resort to its search and entry powers.⁴⁴⁰ However, as discussed above there have been instances recently when service providers have refused such requests.⁴⁴¹

3.170 In the Commission’s view, it is vital that service providers be required to provide information to the CSC. Without this requirement, it is very difficult for the CSC to fulfil its functions effectively. This power is also commonly available to other complaints bodies in NSW,⁴⁴² and has been identified as an important feature of the New York Commission.⁴⁴³

3.171 An explicit requirement to provide information and records to the Commissioner would also be consistent with the other CAMA provisions which state that:

• the Commissioner can, pursuant to his or her search and entry powers, require a person having access to records to produce them;⁴⁴⁴
• the Commissioner can apply to a Magistrate for a summons to produce records or provide evidence which they have failed to do “in accordance with a requirement” under the Commissioner’s search and entry powers;⁴⁴⁵ and
• a person who “without reasonable excuse, refuses or fails to comply with a requirement made or to answer a question” by the Commissioner under the search and entry powers is guilty of a criminal offence.⁴⁴⁶

RECOMMENDATION 28

Section 84(4) should be amended to explicitly require service providers to answer questions and produce records where requested to do so by the Community Services Commission.

Referral to service providers

3.172 The CSC suggested that it should be given the power to refer matters to a service provider for investigation of a complaint or review of individual circumstances.⁴⁴⁷ This should include an investigation or review of a death of a person in care.⁴⁴⁸ The CSC would oversee this investigation or review process by setting out the methodology and scope of the investigation or review, a timeframe and reporting back procedure. It would then have the right to assess the outcomes, and endorse the outcome if appropriate. It would however also retain the power to conduct its own investigation or review where it was not satisfied with that carried out by the service provider.⁴⁴⁹

3.173 In the Commission’s view, it would be beneficial for the CSC to have such a power. There are comparable powers for some other complaint bodies to refer and provide oversight of investigations and other activities.⁴⁵⁰ This also has the advantage of saving CSC resources⁴⁵¹ and allowing it to oversee a larger number of investigations. This is because the resource-intensive investigation tasks are carried out by the service provider rather than the CSC.

RECOMMENDATION 29

The Community Services Commission should have the power to refer matters to service providers for (a) investigation of a complaint and (b) review of individual circumstances. This should include an investigation or review of the death of a person in care.

The Community Services Commission should direct the nature and scope of the inquiry and retain the right to conduct its own investigation or review where it is not satisfied with the progress or the outcome.

Any recommendations endorsed by the Community Services Commission should be regarded as recommendations of the Community Services Commission for other purposes.

ENFORCEMENT OF CSC RECOMMENDATIONS

3.174 The CSC makes many recommendations for change in exercising its various functions. Action has been taken in response to a number of these. For example, following the identification by the CSC of significant inadequacies in service provision at the Hall for Children at Hazelbrook,⁴⁵² the Government provided almost $5 million in special capital funds and $3.4 million in recurrent funds to enable all residents to be relocated to community-based accommodation by early 1999.⁴⁵³ However, CSC recommendations are simply that – recommendations. There is no power to force a service provider or the government to implement them.

3.175 Many submissions and participants at the Commission’s seminars wanted CSC recommendations to have a greater degree of enforceability.⁴⁵⁴ A number of suggestions were made concerning ways to enforce or encourage compliance with CSC recommendations. It was argued that:

• the CSC should be able to publish information on action taken by service providers following recommendations in its Annual Report tabled in Parliament;⁴⁵⁵
• conditions be added to funding and/or licensing agreements requiring the implementation of CSC recommendations;⁴⁵⁶
• non-compliance with CSC recommendations be appellable to the CS Division of the ADT⁴⁵⁷ (discussed further below); ⁴⁵⁸ and
• criminal sanctions such as fines and prison sentences should be imposed on individual employees and board members for non-compliance.⁴⁵⁹

Requiring service providers to provide information

3.177 There is however one way in which the Commission considers that the CSC’s powers should be extended. This is to require service providers to provide information on the implementation of recommendations made by the CSC pursuant to any of its functions.⁴⁶⁰ Currently the CSC can only request this information, and only concerning recommendations arising from complaint investigations.⁴⁶¹ The Commission’s recommendation on this issue is consistent with its recommendation to require service providers to provide information to the CSC when requested.⁴⁶²

RECOMMENDATION 30

Section 38(2)(a) should be amended to require service providers to provide information on the implementation of Community Services Commission recommendations made pursuant to all its functions.

RESOURCES

3.178 The Commission has recommended a number of extra functions for the CSC. To fulfil these functions effectively, the CSC will require a modest amount of extra funding. This is a matter for the NSW Government. ⁴⁶³

3.179 A strong concern expressed by community groups on the CAMA Working Party was that inadequate funding of the CSC would seriously prejudice its effectiveness.⁴⁶⁴ Many submissions expressed similar concerns that the CSC is inadequately resourced.⁴⁶⁵ A review by the Premier’s Department in 1996 concluded that the CSC was under-resourced to carry out its functions.⁴⁶⁶ The review recommended that the CSC should receive a further $897,413 in funding between 1996/97 and 1998/99. This included $544,660 to employ extra staff for the CSC in the complaints handling, review and policy areas, and a part-time assistant co-ordinator for the Community Visitor Scheme. It also included $233,460 to cover an extra 240 days of visiting by Community Visitors. Only $250,000 of this funding has been provided to the CSC, in the 1996/97 financial year.⁴⁶⁷

3.180 The budget for the CSC is allocated by the Minister for Community Services. Some submissions called for a more independent process for determining the CSC’s budget allocation.⁴⁶⁸ It was suggested that an independent body should objectively determine the budget necessary to fulfil the role of the CAMA organisations⁴⁶⁹ and the demand for their services.⁴⁷⁰ The CSC suggested this body should be the Auditor-General.⁴⁷¹

3.181 In the Commission’s view, this would be inappropriate. No other agency has this sort of process for determining its budget allocation. However, it should be acknowledged that it is difficult for the CSC to operate effectively if it is inadequately funded.

1. M Hogan and G Rogers, “Contracting of Community Services: Can it be Done in the Public Interest?” in L Pearson (ed) Administrative Law: Setting the Pace or Being Left Behind? (Australian Institute of Administrative Law, 1996 Administrative Law Forum) at 355.

2. New South Wales, CSC, Annual Report 1993/94 at 14.

3. New South Wales, CSC, Annual Report 1997/98 at 4. See also New South Wales, CSC, Annual Report 1996/97 at 4.

4. New South Wales, CSC, Strategic Plan 1998-2001 (1998) at 4.

5. Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, AGPS, 1998) at para 4.7.

6. Australia, Commonwealth Ombudsman’s Office, A Good Practice Guide for Effective Complaint Handling (1997) at 13. See also the principles identified in: Standards Australia, Complaints Handling (Sydney, 1995) at 6; Australia, Administrative Review Council, Administrative Review and Funding Programs (A Case Study of Community Services Programs) (Report No 37, 1994) at 41; Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan (AGPS, Canberra, 1994) at para 12.41; and Australian Law Reform Commission, Making Rights Count: Services for People with a Disability (Report 79, 1996) at para 14.29. For a discussion of “best practice” principles for handling complaints against lawyers, see New South Wales Law Reform Commission, Scrutiny of the Legal Profession: Complaints Against Lawyers (Report 70, 1993) at Ch 3.

7. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990).

8. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990) at 173.

9. New York State Commission on Quality of Care for the Mentally Disabled, “About the Commission” (as at 3 March 1999) «http://www.cqc.state.ny.us/aboutcqc.htm».

10. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990).

11. See, for example, New South Wales, Royal Commission into the New South Wales Police Service, Final Report. Volume V: The Paedophile Inquiry (NSW Government, 1997) at 1296-1297 and 1299; and New South Wales, Office of Children and Young People, A NSW Children’s Commission: Green Paper (Sydney, 1997) at 19-20. See New South Wales, DOCS, Report of the Working Party on Appeals and Complaints Mechanisms for Community Services in NSW (1992) (“CAMA Working Party Report”) at 16-22.

12. Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; H Seares, Submission at 9; Citizen Advocacy NSW, Submission at 8; Confidential Submission 3 at 3; NSW Council for Intellectual Disability, CAMA Submission at 5-6; The Northcott Society, Submission at 3; Disability Council of NSW, Submission 2 at 33; Autism Association of NSW, Submission at 10; Physical Disability Council of NSW Inc, Submission at 12; Action for Citizens with Disabilities, Submission at 17; Burnside, Submission at 3; Centacare, Submission at 4; Barnardos Australia, Submission at 5; Carers NSW Inc, Submission at 13; NCOSS, CAMA Submission at 3; and People With Disabilities (NSW) Inc, CAMA Submission at 8. See also P Parkinson, “Overview” in New South Wales, Child Protection Council, Report of the ACWA, CPC, SNYPIC and YAPA Forum to Discuss the Green Paper “A NSW Children’s Commission” (Sydney, 1998) at 7.

13. New South Wales, Premier’s Department, Community Services Commission Review Report (1996) at ii. See also New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996) at 175.

14. “Strengthen the Community Services Commission” Sydney Morning Herald (10 December 1998) at 10.

15. CAMA Working Party Report at 22-23.

16. CAMA Working Party Report at 22-23.

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

18. The Northcott Society, Submission at 3; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15; Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Dare to Care, Submission at 2; Disability Assistance for Shoalhaven Inc, Submission at 3; K and J Clifton, Submission at 3; NCOSS, CAMA Submission at 2; Kurrajong-Waratah Industries, Submission at 3; People With Disabilities (NSW) Inc, CAMA Submission at 7; The Spastic Centre of NSW, Submission at 2-3; Burnside, Submission at 3 and 5; Australian Quadriplegic Association Ltd (NSW), Submission at 4; and Carers NSW Inc, Submission at 14-15.

19. This means that the Governor determines the appointment based on advice from Cabinet and the Executive Council.

20. CAMA s 78(1).

21. CAMA s 79(1) and (2).

22. Barnardos Australia, Submission at 13; CSC, CAMA Submission 1 at 5; People With Disabilities (NSW) Inc, CAMA Submission at 14; and P Hutten, CAMA Submission at 13.

23. NCOSS, CAMA Submission at 2; P Hutten, Submission at 13; Burnside, Submission at 3; and CSC, CAMA Submission 1 at 14.

24. B Semmler, Submission at 1; Disability Assistance for Shoalhaven Inc, Submission at 3; and K and J Clifton, Submission at 3.

25. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990) at 176.

26. For example, in 1997/98, 81% of the formal complaints handled by the CSC were about DOCS, compared to 75% in 1996/97: New South Wales, CSC, Annual Report 1997/98 at 25.

27. See, for example, New South Wales, CSC, Inquiry into the Death of Jordan Dwyer and the Role of the Department of Community Services (1997); and R West, “Putting DOCS in the Dock” (1996) 6 Can Do 1.

28. See, for example, M Chulov, “Why Did Kody Die? Police to Quiz DOCS Staff over Tragedy” Sun-Herald (6 December 1998) at 5; A Horin, “Tweed Heads Trauma for DOCS” Sydney Morning Herald (29 October 1998) at 3; and A Bernoth and D Murphy, “Tough Times at DOCS” Sydney Morning Herald (28 April 1998) at 15.

29. New South Wales, Council on the Cost of Government, Review of Aspects of the Management of the NSW Department of Community Services (1997); New South Wales, Royal Commission into the New South Wales Police Service, Final Report. Volume V: The Paedophile Inquiry (NSW Government, 1997), particularly ch 8; New South Wales, Child Death Review Team, Annual Report 1996-1997 at Pt C; New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996) at ch 3; New South Wales, Child Protection Council, Systems Abuse: Problems and Solutions (1994) at 39-42; and NCOSS, The Relationship Between Community Based Organisations and the Department of Community Services (DOCS): Report on a Survey Undertaken by the New South Wales Council of Social Service (Sydney, 1998). See Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process (Report 84, 1997) at Ch 17.

30. R West, “Candidly Speaking” (1998) 14 Can Do 1 at 1.

31. B Semmler, Submission at 1; Barnardos Australia, Submission at 5; Burnside, Submission at 3; and Confidential Submission 3 at 7.

32. A Horin, “Outspoken Welfare Commissioner Finds he’s out of a Job” Sydney Morning Herald (24 October 1998) at 1. A similar view is expressed in the following letters to the editor: J Jacobsen, Letter to the Editor, Sydney Morning Herald (27 October 1998) at 12; and J Simpson, Letter to the Editor, Sydney Morning Herald (27 October 1998) at 12.

33. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 28 October 1998 at 9091-9112.

34. NCOSS, CAMA Submission at 2.

35. At that stage DOCS also had responsibility for the issues now in the portfolio of ADD.

36. R West, “The New Community Services Review Package – A New Initiative in the Development of Modern Administrative Review Systems”, paper presented at the Australian Institute of Administrative Law (NSW Chapter) conference The State of Administrative Law: Current Issues and Recent Developments (Sydney, 4 November 1994) at 8-9.

37. R West, “The New Community Services Review Package – A New Initiative in the Development of Modern Administrative Review Systems”, paper presented at the Australian Institute of Administrative Law (NSW Chapter) conference The State of Administrative Law: Current Issues and Recent Developments (Sydney, 4 November 1994) at 8.

38. CAMA Working Party Report at 23.

39. Now the Minister for Fair Trading.

40. CAMA Working Party Report at 23.

41. Autism Association of NSW, Submission at 12; and People With Disabilities (NSW) Inc, CAMA Submission at 8 (this option was favoured in consultation with a PJC).

42. Barnardos Australia, Submission at 5; and NCOSS, CAMA Submission at 3.

43. NCOSS, CAMA Submission at 2; NSW Council for Intellectual Disability, CAMA Submission at 5; CSC, CAMA Submission 1 at 11; Disability Safeguards Coalition, CAMA Submission 1 at 12; Carers NSW Inc, Submission at 14; NSW Statewide Disability Coalition, CAMA Submission at 2; and Action for Citizens with Disabilities, Submission at 17.

44. Australia, House of Representatives Practice (2nd edition, AGPS, 1989) at 588.

45. Australia, House of Representatives Practice (2nd edition, AGPS, 1989) at 588.

46. For examples of statutory PJCs, see Australia, House of Representatives Practice (2nd edition, AGPS, 1989) at 588 for Commonwealth Committees; and Independent Commission Against Corruption Act 1988 (NSW) Pt 7 for a NSW Committee.

47. See, for example, Independent Commission Against Corruption Act 1988 (NSW) Pt 7.

48. Independent Commission Against Corruption Act 1988 (NSW) s 5A and Pt 7.

49. Health Care Complaints Act 1993 (NSW) s 78 and Pt 4.

50. See, for example, Independent Commission Against Corruption Act 1988 (NSW) s 65(1) and (2); Ombudsman Act 1974 (NSW) s 31C(1) and (2); and Health Care Complaints Act 1993 (NSW) s 67.

51. Changes to Acts such as the Independent Commission Against Corruption Act 1988 (NSW) s 65 (amended in 1995) to increase the number of members from nine to 11 reflected the recognition of the need to include Independents and cross-benchers: information provided by R Miller, Clerk Assistant (Procedure), Legislative Assembly (12 February 1999).

52. Information provided by R Miller, Clerk Assistant (Procedure), Legislative Assembly (12 February 1999).

53. CSC, CAMA Submission 1 at 11. See Carers NSW Inc, Submission at 14.

54. CAMA Working Party Report at 23.

55. Health Care Complaints Act 1993 (NSW) s 78 and Pt 4.

56. Independent Commission Against Corruption Act 1988 (NSW) s 5A and Pt 7.

57. Ombudsman Act 1974 (NSW) s 6A(1) and Pt 4A. See also Commission for Children and Young People Act 1998 (NSW) Pt 6 and Sch 1.

58. See, for example, Independent Commission Against Corruption Act 1988 (NSW) s 5A and Pt 7.

59. CSC, CAMA Submission 1 at 11.

60. Legal Profession Act 1987 (NSW) s 129(1).

61. CSC, CAMA Submission 1 at 11.

62. Independent Commission Against Corruption Act 1988 (NSW) s 64; Commission for Children and Young People Act 1998 (NSW) s 28; and Health Care Complaints Act 1993 (NSW) s 65.

63. Action for Citizens with Disabilities, Submission at 17; Carers NSW Inc, Submission at 14; People With Disabilities (NSW) Inc, CAMA Submission at 7; and CSC, CAMA Submission 1 at 14 and 53.

64. CAMA s 78(3).

65. Public Sector Management Act 1988 (NSW) s 42F.

66. Health Care Complaints Act 1993 (NSW) s 77(1); Commission for Children and Young People Act 1998 (NSW) s 5(2) and (3); and Independent Commission Against Corruption Act 1988 (NSW) s 4(1).

67. Ombudsman Act 1974 (NSW) s 6(2); and Legal Profession Act 1987 (NSW) s 129(3) and (4).

68. CSC, CAMA Submission 1 at 11.

69. CSC, CAMA Submission 1 at 11.

70. The Northcott Society, Submission at 3; Action for Citizens with Disabilities, Submission at 17; Carers NSW Inc, Submission at 17; Confidential Submission 3 at 7; CSC, CAMA Submission 1 at 11; and People With Disabilities (NSW) Inc, CAMA Submission at 7.

71. Independent Commission Against Corruption Act 1988 (NSW) s 4(2).

72. Health Care Complaints Act 1993 (NSW) s 77(2); and Commission for Children and Young People Act 1998 (NSW) s 5(3).

73. CAMA s 78(4).

74. Health Care Complaints Act 1993 (NSW) s 77(3).

75. Legal Profession Act 1987 (NSW) s 129.

76. Commission for Children and Young People Act 1998 (NSW) s 5(4).

77. Independent Commission Against Corruption Act 1988 (NSW) Sch 1 cl 6(2).

78. Ombudsman Act 1974 (NSW) s 6(5).

79. Carers NSW Inc, Submission at 14. See also NSW Statewide Disability Coalition, Submission at 2.

80. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990) at 177.

81. Carers NSW Inc, Submission at 14.

82. CAMA s 11 and 83.

83. CAMA s 83(2).

84. See para 2.20.

85. See Recommendation 2 at 2.32.

86. NSW Government, CAMA Submission at 5.

87. CSC, CAMA Submission 1 at 17; and People With Disabilities (NSW) Inc, CAMA Submission at 9.

88. People With Disabilities (NSW) Inc, CAMA Submission at 9. In 1996, People With Disabilities (NSW) Inc and NSW Council for Intellectual Disability lodged appeals under clause 6(1)(c) of the CAMA Regulation against the Minister’s decisions to adopt transition plans for 189 disability services. Two were chosen as test cases. In March 1998, the Minister asked the Community Services Commissioner to convene a “Transition Plan Appeals Working Group” to work out how to resolve the outstanding appeals. A large number were sought to be resolved through mediation: New South Wales, CSAT, Annual Report 1996-1997 at 12 and New South Wales, CSAT, Annual Report 1997-1998 at 12-13. See also para 5.137 and 5.142-5.147.

89. New South Wales, CSC, Annual Report 1997/98 at 36.

90. CSC, CAMA Submission 1 at 17.

91. CSC, CAMA Submission 1 at 17; and People With Disabilities (NSW) Inc, CAMA Submission at 9.

92. Institute for Family Advocacy and Leadership Development Association Inc, Submission at 12; and NSW Council for Intellectual Disability, CAMA Submission at 6 and DSA Submission at 13-14.

93. Disability Safeguards Coalition, DSA Submission at 4 and CAMA Submission 2 at 2. See Carers NSW Inc, Submission at 13; and H Seares, Submission at 9.

94 Disability Safeguards Coalition, CAMA Submission 2 at 2.

95. Institute for Family Advocacy and Leadership Development Association Inc, Submission at 12.

96. NSW Council for Intellectual Disability, DSA Submission at 14.

97. DSA Sch 1 cl 2(l).

98. See, for example, New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996).

99. CAMA s 83(1)(i).

100. New South Wales, Office of Children and Young People, A NSW Children’s Commission: Green Paper (Sydney, 1997) at 18. See also NCOSS, Response to the Green Paper, A NSW Children’s Commission, December 1997 (Sydney, 1998) at 7.

101. New South Wales, CSC, Inquiry into Children’s Advocacy: Submission to the Committee of Inquiry by Community Services Commission (1995) at 12; and P Parkinson, “Overview” in New South Wales, Child Protection Council, Report of the ACWA, CPC, SNYPIC and YAPA Forum to Discuss the Green Paper “A NSW Children’s Commission” (1998) at 7.

102. New South Wales, CSC, Inquiry into Children’s Advocacy: Submission to the Committee of Inquiry by Community Services Commission (1995) at 12.

103. P Parkinson, “Overview” in New South Wales, Child Protection Council, Report of the ACWA, CPC, SNYPIC and YAPA Forum to Discuss the Green Paper “A NSW Children’s Commission” (1998) at 7; see also New South Wales, CSC, Inquiry into Children’s Advocacy: Submission to the Committee of Inquiry by Community Services Commission (1995) at 12.

104. New South Wales, CSC, Inquiry into Children’s Advocacy: Submission to the Committee of Inquiry by Community Services Commission (1995) at 18.

105. CAMA s 83(1)(e), (f), (g), (j) and (k).

106. CAMA s 12.

107. CSC, CAMA Submission 2 at 22; Autism Association of NSW, Submission at 10; and Disability Safeguards Coalition, CAMA Submission 1 at 7.

108. CSC, CAMA Submission 2 at 22.

109. CAMA s 13.

110. CAMA s 13(3).

111. CAMA s 13(4).

112. CAMA s 41.

113. See discussion of standing provision at para 5.137-5.155.

114. People With Disabilities (NSW) Inc, CAMA Submission at 12; Disability Safeguards Coalition, CAMA Submission 1 at 13; Citizen Advocacy NSW, Submission at 9; and Barnardos Australia, Submission at 6.

115. CSC, CAMA Submission 1 at 22.

116. NSW Government, CAMA Submission at 2.

117. Ombudsman Act 1974 (NSW) s 12.

118. CAMA s 15(1).

119. NSW Council for Intellectual Disability, CAMA Submission at 7; Disability Council of NSW, Submission 2 at 39; Autism Association of NSW, Submission at 11; and CSC, CAMA Submission at 23.

120. CSC, CAMA Submission 1 at 23; P Hutten, CAMA Submission at 26; People With Disabilities (NSW) Inc, CAMA Submission at 12; and NSW Government, CAMA Submission at 4.

121. CSC, CAMA Submission 1 at 23.

122. Barnardos Australia, Submission at 7; and P Hutten, CAMA Submission at 27.

123. CAMA s 15(2).

124. CSC, CAMA Submission 1 at 23; NSW Council for Intellectual Disability, CAMA Submission at 7; and People With Disabilities (NSW) Inc, CAMA Submission at 13.

125. CAMA s 25.

126. CAMA Pt 4 Div 2.

127. CAMA s 17(a).

128. CAMA s 23 and Pt 4 Div 3.

129. CAMA s 23 and Pt 4 Div 4.

130. CAMA s 20.

131. CAMA s 21.

132. CAMA s 19.

133. CAMA s 21.

134. CAMA s 30.

135. CAMA s 25.

136. See, for example, CAMA s 3(2)(e) and 83(1)(f) and (j).

137. R West, “The New Community Services Review Package – A New Initiative in the Development of Modern Administrative Review Systems”, paper presented at the Australian Institute of Administrative Law (NSW Chapter) conference The State of Administrative Law: Current Issues and Recent Developments (Sydney, 4 November 1994) at 10.

138. Calculated from data provided in New South Wales, CSC, Annual Report 1997/98 at 25.

139. This included 309 new complaints and 247 complaints from 1996-97.

140. New South Wales, CSC, Annual Report 1997/98 at 25 and 29.

141. New South Wales, CSC, Annual Report 1997/98 at 25.

142. CAMA s 36(2).

143. CAMA s 37(1) and (2).

144. CAMA s 37(3).

145. CAMA s 38(1).

146. CAMA Working Party Report at 11.

147. The CSC reports that this has been more cost-effective than having separate divisions, and does not appear to have any disadvantages: CSC, CAMA Submission 1 at 24.

148. CAMA Pt 4.

149. CAMA Working Party Report at 11.

150. CSC, Preliminary Submission (18 August 1998) at 4.

151. See, for instance, Pt 3 on how the CSC should conduct reviews of people in care.

152. P Hutten, CAMA Submission at 20 and 27. See also Disability Council of NSW, Submission 2 at 39.

153. NSW Ombudsman, Submission at 4.

154. NSW Ombudsman, Submission at 4. For example, see Health Care Complaints Act 1993 (NSW) Pt 2; Independent Commission Against Corruption Act 1988 (NSW) Div 2; and Ombudsman Act 1974 (NSW) Pt 3.

155. NCOSS, CAMA Submission at 7; Barnardos Australia, Submission at 7; Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 2; Action for Citizens With Disabilities, Submission at 21; P Hutten, CAMA Submission at 27; and CSC, CAMA Submission 1 at 23.

156. CAMA s 14(1).

157. CAMA s 14(2).

158. NCOSS, CAMA Submission at 7; CSC, CAMA Submission 1 at 24; Barnardos Australia, Submission at 7; and NSW Council for Intellectual Disability, CAMA Submission at 7.

159. CAMA s 19(1).

160. CAMA s 19(2) and (3).

161. CAMA s 19(3).

162. People With Disabilities (NSW) Inc, CAMA Submission at 14; Autism Association of NSW, CAMA Submission at 11; and Action for Citizens with Disabilities, Submission at 20.

163. Disability Safeguards Coalition, CAMA Submission 1 at 4.

164. CSC, CAMA Submission 1 at 25.

165. CSC, CAMA Submission 1 at 25.

166. Ombudsman Act 1974 (NSW).

167. Legal Profession Act 1987 (NSW) s 154.

168. Health Care Complaints Act 1993 (NSW) s 22.

169. The CSC reports from its consultations that most consumer and advocacy groups also feel that 60 days is too long: CSC, CAMA Submission 1 at 25.

170. People With Disabilities (NSW) Inc, CAMA Submission at 14; Autism Association of NSW, Submission at 11; and Disability Council of NSW, Submission 2 at 41.

171. See, for example, Social Security Act 1991 (Cth) s 1281(3) and 1244(2); Administrative Appeals Tribunal Act 1975 (Cth) s 27A(3); and Police Service Act 1990 (NSW) s 138(1).

172. CAMA s 14(1).

173. Information supplied by the CSC (18 March 1999).

174. Information supplied by the CSC (18 March 1999).

175. Information supplied by the CSC (18 March 1999).

176. CAMA s 22.

177. See H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) at 66-68.

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

179. CAMA Pt 4 Div 3.

180. CAMA s 22.

181. CAMA s 34.

182. CSC, CAMA Submission 1 at 27.

183. New South Wales, CSC, Annual Report 1997/98 at 29.

184. New South Wales, CSC, Annual Report 1997/98 at 29.

185. Information supplied by CSC (23 March 1999) at 5. See para 3.56.

186. I Robinson, “Good CAMA: What We Do – The Community Service Commission Handles Complaints, Reviews People in Care, and Conducts Enquiries. Part 1” (1997) 10 Can Do 6 at 6-7. See also New South Wales, CSC, Annual Report 1997/98 at 29.

187. I Robinson, “Good CAMA: What We Do – The Community Service Commission Handles Complaints, Reviews People in Care, and Conducts Enquiries. Part 1” (1997) 10 Can Do 6 at 7.

188. Information supplied by CSC (23 March 1999) at 5.

189. NCOSS, CAMA Submission at 8.

190. NCOSS, CAMA Submission at 8; Autism Association of NSW, Submission at 11; and People With Disabilities (NSW) Inc, CAMA Submission at 15.

191. Disability Safeguards Coalition, CAMA Submission 1 at 13.

192. Autism Association of NSW, Submission at 11; and People With Disabilities (NSW) Inc, CAMA Submission at 15.

193. Burnside, Submission at 1.

194. Barnardos Australia, Submission at 7.

195. CSC, CAMA Submission 1 at 27; Disability Council of NSW, Submission 2 at 43; NSW Council for Intellectual Disability, CAMA Submission at 8; and Confidential Submission 3 at 11. But see P Hutten, CAMA Submission at 31.

196. People With Disabilities (NSW) Inc, CAMA Submission at 15.

197. Health Care Complaints Act 1993 (NSW) Div 8; Legal Profession Act 1987 (NSW) Div 4; and Ombudsman Act 1974 (NSW) s 13A.

198. CAMA s 32.

199. Health Care Complaints Act 1993 (NSW) Div 8; Legal Profession Act 1987 (NSW) Div 4; and Ombudsman Act 1974 (NSW) s 13A.

200. CSC, CAMA Submission 1 at 57-58.

201. CAMA s 117(1). The defendant in such an action potentially faces a financial penalty and maximum prison sentence of 12 months.

202. RR 9 at para 1.146.

203. CSC, CAMA Submission 1 at 56.

204. People With Disabilities (NSW) Inc, CAMA Submission at 20.

205. People With Disabilities (NSW) Inc, CAMA Submission at 20.

206. Protected Disclosures Act 1994 (NSW) s 4.

207. CSC, CAMA Submission 1 at 56.

208. Protected Disclosures Act 1994 (NSW) s 20.

209. New South Wales, Committee on the Office of the Ombudsman and the Police Integrity Commission, Review of the Protected Disclosures Act 1994 (NSW Parliament, Sydney, 1996) (“Protected Disclosures Act 1994 Report”) at 29.

210. CAMA s 121(1).

211. Protected Disclosures Act 1994 Report at 30.

212. Protected Disclosures Act 1994 Report at 31.

213. Protected Disclosures Act 1994 Report at 39.

214. Protected Disclosures Act 1994 Report at 39.

215. Protected Disclosures Act 1994 Report at 32.

216. The Act is required to be reviewed every two years by a Joint Parliamentary Committee: Protected Disclosures Act 1994 (NSW) s 32.

217. See para 5.51.

218. CAMA s 40(1)(b) and (c).

219 See para 5.95-5.96 and Recommendation 46.

220. CAMA s 21, 39(1)(a) and (b) respectively.

221. See para 5.97 and Recommendation 47.

222. See discussion at para 5.125-5.135.

223. CAMA s 114.

224. CAMA Reg cl 10(a)(i).

225. ADT Act s 49(1). See para 5.128-5.129.

226. CAMA s 25(3).

227. See para 5.97 and Recommendation 47.

228. CAMA s 114.

229. ADT Act s 48(1).

230. CAMA s 114(3).

231. CAMA s 83(1)(c) and (d).

232. R West, “Commentary” (1996) 24(2) Federal Law Review 343 at 345.

233. New South Wales, CSC, Exclusionary Time-out or Solitary Confinement? (1995).

234. New South Wales, CSC, The Lachlan Inquiry 1998: An Assessment of the Standard of Care at the Lachlan Residential Centre and of Progress since the 1995 Investigation (1998).

235. New South Wales, CSC, Performance Audit Report: Large Residential Centres for People with a Disability in New South Wales (1997).

236. New South Wales, CSC, The Lachlan Inquiry 1998: An Assessment of the Standard of Care at the Lachlan Residential Centre and of Progress since the 1995 Investigation (1998) at 5. See also New South Wales, Audit Office, Performance Audit Branch, Methodology for the Review of Residential Services for People With Disabilities (draft, April 1998).

237. New South Wales, CSC, Inquiry into the Death of Jordan Dwyer and the Role of the Department of Community Services (1997).

238. New South Wales, CSC, The Drift of Children in Care into the Juvenile Justice System: Turning Victims into Criminals (1996).

239. New South Wales, CSC, Just Solutions – Wards and Juvenile Justice (1999).

240. New South Wales, CSC, Respite Care – A System in Crisis: A Review of the Respite Care System in NSW by the Community Services Commission (1998).

241. Burnside, Submission at 2; Citizen Advocacy NSW, Submission at 8; People With Disabilities (NSW) Inc, CAMA Submission at 8; and Barnardos Australia, Submission at 1. See also the advertisement “Strengthen the Community Services Commission” Sydney Morning Herald (10 December 1998) at 10.

242. New South Wales, CSC, Annual Report 1997/98 at 33.

243. CAMA Working Party Report at 39.

244. NSW Government, CAMA Submission at 1.

245. Burnside, Submission at 3; NCOSS, CAMA Submission at 1; and CSC, CAMA Submission at 5.

246. NCOSS, CAMA Submission at 1; and CSC, CAMA Submission at 5.

247. CSC, CAMA Submission at 5.

248. Carers NSW Inc, Submission at 13; Physical Disability Council of NSW Inc, Submission at 12; Disability Safeguards Coalition, CAMA Submission 1 at 3; Confidential Submission 2 at 39; and NSW Statewide Disability Coalition, CAMA Submission at 1.

249. Burnside, Submission at 3.

250. The Northcott Society, Submission at 3; Action for Citizens with Disabilities, Submission at 17; and Physical Disability Council of NSW Inc, Submission at 12.

251. R West, “Commentary” (1996) 24(2) Federal Law Review 343 at 345.

252. Evidence of R West taken on 29 November 1995 in New South Wales, Legislative Council, Report of Proceedings Before Standing Committee on Social Issues: Children’s Advocacy Hearing at Sydney on 29 November 1995 at 42.

253. New South Wales, CSC, Annual Report 1997/98 at 35.

254. New South Wales, Public Service Notices: The Public Sector Information and Vacancies Weekly (Issue no 32 98/99, 17 February 1999) at 16.

255. New South Wales, CSC and ADD, Joint Submission to Minister (for Community Services and Disability Services) (21 October 1998) Attachment 1 at 2.

256. Information supplied by CSC (23 March 1999) at 6.

257. New South Wales, CSC and ADD, Joint Submission to Minister (for Community Services and Disability Services) (21 October 1998) Attachment 1 at 2.

258. CAMA s 11(6) and 8(4) respectively.

259. New South Wales, CSC and ADD, Joint Submission to Minister (for Community Services and Disability Services) (21 October 1998) Attachment 1 at 2.

260. CSC, CAMA Submission 3 at 1-2. The Mental Hygiene Medical Review Board of the New York Commission performs a comparable set of functions concerning deaths in mental health and intellectual disability services: New York State Commission on Quality of Care for the Mentally Disabled, “Deaths, Abuse/Neglect” (as at 3 March 1999) «http://www.cqc.state.ny.us/death.htm».

261. New South Wales, CSC and ADD, Joint Submission to Minister (for Community Services and Disability Services) (21 October 1998) at 1.

262. New South Wales, CSC and ADD, Joint Submission to Minister (for Community Services and Disability Services) (21 October 1998) Attachment 1 at 1.

263. CSC, CAMA Submission 1 at 16; NSW Council for Intellectual Disability, CAMA Submission at 6; H Seares, Submission at 9; Disability Safeguards Coalition, CAMA Submission 1 at 3; People With Disabilities (NSW) Inc, CAMA Submission at 3; and Citizen Advocacy NSW, Submission at 10.

264. Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 11.

265. CSC, CAMA Submission 3 at 1.

266. CAMA s 83(1)(a).

267. Barnardos Australia, Submission at 6; CSC, CAMA Submission 1 at 16.

268. CSC, CAMA Submission 1 at 15-16; People With Disabilities (NSW) Inc, CAMA Submission at 9; and NCOSS, CAMA Submission at 3-4. See also NCOSS, Discussion Paper on the Development of Standards for Children’s and Family Services and the Establishment of an Independent Monitoring Mechanism (Sydney, 1996).

269. DSA s 7. NSW Council for Intellectual Disability, CAMA Submission at 6; and NCOSS, CAMA Submission at 3. For a discussion of transition plans under the DSA, see Report 91 at Chapter 6.

270. H Seares, Submission at 9; NCOSS, CAMA Submission at 3 and 10; Australian Quadriplegic Association Ltd (NSW), Submission at 4; Intellectual Disability Rights Service, Submission at 9; People With Disabilities (NSW) Inc, CAMA Submission at 19; and Physical Disability Council of NSW Inc, Submission at 4. Section 9 plans are discussed in detail in Report 91 at Chapter 4.

271. CAMA s 11(1).

272. New South Wales, CSC, “Reviews of People in Care” (pamphlet, 1996).

273. CAMA s 11(2).

274. New South Wales, CSC, “Reviews of People in Care” (pamphlet, 1996).

275. New South Wales, CSC, “Reviews of People in Care” (pamphlet, 1996).

276. New South Wales, CSC, Annual Report 1997/98 at 44.

277. CAMA s 11(4).

278. CAMA s 11(3).

279. People With Disabilities (NSW) Inc, CAMA Submission at 10. See also Disability Council of NSW, Submission 2 at 34; Citizen Advocacy NSW, Submission at 8.

280. New South Wales, Premier’s Department, Community Services Commission Review Report (1996) at 13.

281. CSC, CAMA Submission 1 at 18.

282. New South Wales, CSC, Annual Report 1996/97 at 35.

283. CSC, CAMA Submission 1 at 18.

284. New South Wales, CSC, Annual Report 1997/98 at 45.

285. Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 8 Pt 2 Div 2.

286. Information supplied by DOCS (29 March 1999).

287. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(1).

288. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 139. To be accredited, agencies must comply with minimum standards to be set out in the Regulation to the Act: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 139. As discussed at para 3.112, the Regulation is still to be drafted.

289. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(2) and (3).

290. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(4).

291. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(5).

292. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 181.

293. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(6).

294. Barnardos Australia, Submission at 6; NSW Council for Intellectual Disability, CAMA Submission at 5-6; NCOSS, CAMA Submission at 4-5; Disability Safeguards Coalition, CAMA Submission 1 at 4; New South Wales, CSC, Annual Report 1997/98 at 48; and New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996) at 177.

295. Children (Care and Protection) Act 1987 (NSW) Pt 7.

296. New South Wales, DOCS, Review of the Children (Care and Protection) Act 1987. Discussion Paper 1: Law and Policy in Child Protection (1996) at 118.

297. See para 3.112.

298. NCOSS, CAMA Submission at 5.

299. CAMA s 11(6).

300. New South Wales, DOCS, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 104.

301. See NCOSS, CAMA Submission at 4-5.

302. See para 3.172-3.173.

303. CAMA s 11(5).

304. Barnardos Australia, Submission at 6; CSC, CAMA Submission 1 at 20; NCOSS, CAMA Submission at 5; and Physical Disability Council of NSW Inc, Submission at 13.

305. CSC, CAMA Submission 1 at 20.

306. CSC, CAMA Submission 1 at 20. See also Disability Council of NSW, Submission 2 at 36.

307. CAMA s 11(6). This definition is to be amended by the Children and Young Persons (Repeal and Amendment) Act 1998 (NSW) Sch 2.8. This Act has not yet come into effect.

308. CAMA s 11(6).

309. CSC, CAMA Submission at 20.

310. NSW Council for Intellectual Disability, CAMA Submission at 6; and Disability Council of NSW, Submission 2 at 34.

311. NSW Council for Intellectual Disability, CAMA Submission at 6; Disability Council of NSW, Submission 2 at 34.

312. Disability Council of NSW, Submission 2 at 34.

313. Autism Association of NSW, Submission at 10.

314. See para 3.130-3.160.

315. Information supplied by CSC (23 March 1999) at 5.

316. New South Wales, CSC, Annual Report 1996/97 at 33. See also New South Wales, CSC, Annual Report 1997/98 at 4.

317. A Bernoth, “A Home of their Own” Sydney Morning Herald (31 October 1997) at 15; and L Hannon and M Chulov, “I hid to avoid sex, bashings” Sun-Herald (26 October 1997) at 4.

318. See New South Wales, CSC, Annual Report 1997/98 at 45 and 47; and New South Wales, CSC, The Ormond Centre – A Complaint Investigation into Institutional Care of Children (1999) at 5.

319. New South Wales, CSC, The Ormond Centre – A Complaint Investigation into Institutional Care of Children (1999).

320. Institute for Family Advocacy and Leadership Development Association Inc, Submission at 15; Carers NSW Inc, Submission at 13; M Bowles, Submission at 8; and CSC, CAMA Submission 1 at 21-22.

321. NSW Council for Intellectual Disability, CAMA Submission at 6.

322. See para 3.174-3.177.

323. CSC, CAMA Submission 1 at 21.

324. See Recommendation 12 at 3.61.

325. CAMA s 83(1)(a), (b) and (c).

326. New South Wales, CSC, Annual Report 1997/98 at 50-54.

327. RR 9 at para 1.135, 2.40, 2.69, 3.6-3.10, 3.17-3.23 and 3.45-3.55.

328. Blind Citizens Australia, Submission at 4.

329. See para 3.127.

330. CAMA s 4.

331. This means CAMA and the CAMA Reg, and the Home Care Service Act 1988 (NSW) administered by the Minister of Community Services or by the Minister of Aged Services or the Minister for Disability Services.

332. M Hogan and G Rogers, “Contracting of Community Services: Can it be Done in the Public Interest?” in L Pearson (ed) Administrative Law: Setting the Pace or Being Left Behind? (Australian Institute of Administrative Law, 1996 Administrative Law Forum) at 355; and A Tang, “The Changing Role of Government in Community Services: Issues of Access and Equity to Administrative Review” (1997) 56(2) Australian Journal of Public Administration 95 at 103.

333. Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, AGPS, 1998) at para 1.3; and P Ranald, The Contracting Commonwealth: Serving Citizens or Customers? Public Accountability, Service Quality and Equity Issues in the Contracting and Competitive Tendering of Government Services (Public Sector Research Centre Paper No 47, University of NSW, Sydney, 1997).

334. Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, AGPS, 1998) at para 4.6. See also P Ranald, The Contracting Commonwealth: Serving Citizens or Customers? Public Accountability, Service Quality and Equity Issues in the Contracting and Competitive Tendering of Government Services (Public Sector Research Centre Paper No 47, University of NSW, Sydney, 1997) at 8.

335. C Ferguson, Submission at 3-4; Local Government and Shires Association, Submission at 4; NCOSS, CAMA Submission at 8; Carers NSW Inc, Submission at 9; Physical Disability Council of NSW Inc, Submission at 14; and Coalition for Appropriate Supported Accommodation, Submission at 3. This was also recommended in Coalition for Appropriate Supported Accommodation for People With Disabilities, Room to Move: A Position Paper on Licensed Boarding Houses (Sydney, 1998) at 11-12; and New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at 39-40. See also A Tang, “The Changing Role of Government in Community Services: Issues of Access and Equity to Administrative Review” (1997) 56(2) Australian Journal of Public Administration 95 at 103.

336. NSW Council for Intellectual Disability, CAMA Submission at 9; Disability Council of NSW, Submission 2 at 45; P Hutten, CAMA Submission at 34; Autism Association of NSW, Submission at 12; and Multicultural Disability Advocacy Association of NSW Inc, Submission at 9.

337. Barnardos Australia, Submission at 8; Citizen Advocacy NSW, Submission at 9; People With Disabilities (NSW) Inc, CAMA Submission at 17; and Multicultural Disability Advocacy Association of NSW Inc, Submission at 9.

338. Autism Association of NSW, Submission at 12; and Physical Disability Council of NSW Inc, Submission at 14.

339. NCOSS, CAMA Submission at 9; NSW Council for Intellectual Disability, CAMA Submission at 9; Barnardos Australia, Submission at 8; People With Disabilities (NSW) Inc, CAMA Submission at 18; and Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 2.

340. NSW Council for Intellectual Disability, CAMA Submission at 9; and NCOSS, CAMA Submission at 10.

341. NSW Council for Intellectual Disability, CAMA Submission at 9; and P Hutten, CAMA Submission at 34.

342. Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 2; NCOSS, CAMA Submission at 8; People With Disabilities (NSW) Inc, CAMA Submission at 16; and P Hutten, CAMA Submission at 34.

343. NCOSS, CAMA Submission at 10; Disability Council of NSW, Submission 2 at 45; and P Hutten, CAMA Submission at 34.

344. CSC, CAMA Submission 1 at 40; and People With Disabilities (NSW) Inc, CAMA Submission at 19. See Disability Council of NSW, Submission 2 at 46.

345. NCOSS, CAMA Submission at 10; and Autism Association of NSW, Submission at 10 (jurisdiction for the CSC’s review power). See Disability Council of NSW, Submission 2 at 46; and Disability Safeguards Coalition, CAMA Submission 1 at 11.

346. Information supplied by CSC (18 March 1999). The Children’s Guardian is to be created under the Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 10.

347. CSC, CAMA Submission 1 at 34-35.

348. New South Wales, Office of Children and Young People, A NSW Children’s Commission: Green Paper (Sydney, 1997) at 18.

349. CSC, CAMA Submission 1 at 34.

350. CSC, CAMA Submission 1 at 34.

351. NSW Ombudsman, Submission at 4; and CSC, CAMA Submission 1 at 37. See Ombudsman Act 1974 (NSW) s 12(1).

352. CAMA s 4.

353. See para 3.130 and 3.132.

354. NSW Ombudsman, Submission at 3-4.

355. CSC, CAMA Submission 1 at 38.

356. CSC, CAMA Submission 1 at 38.

357. CSC, CAMA Submission 1 at 38-39; and Autism Association of NSW, Submission at 12. See Guardianship Act 1987 (NSW) s 25.

358. CSC, CAMA Submission 1 at 39.

359. Health Care Complaints Act 1993 (NSW) s 4.

360. New South Wales, Health Care Complaints Act Review Committee, Review of the Health Care Complaints Act 1993 (Health Care Complaints Commission, Sydney, 1997) at 18.

361. NCOSS, CAMA Submission at 10.

362. CSC, CAMA Submission 1 at 40.

363. For a discussion of individual funding packages, see Report 91 at para 5.16.

364. Under CAMA s 4, a “service provider” for the purposes of the Act can include a person or organisation deemed to be a service provider by an agreement between the Minister for Community Services and a State or Commonwealth Minister.

365. CAMA s 121(2), inserted by Ombudsman Amendment (Child Protection and Community Services) Act 1998 (NSW) Sch 2.

366. See New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System (Report 80, 1996) at para 10.21-10.24.

367. CAMA s 4.

368. New South Wales, Crown Solicitor’s Office, Definition of Service Provider in Community Services (Complaints, Appeals and Monitoring) Act 1993 (Advice to CSC, 1 February 1995); and New South Wales, Crown Advocate, Operation of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (Advice to CSC, 29 June 1995).

369. New South Wales, Minister for Community Services, Boarding Houses – Fact Sheet (1998) at 1.

370. New South Wales, Minister for Community Services, Boarding Houses – Fact Sheet (1998) at 2 (survey of 1772 residents conducted in February-March 1998 by the Department of Health, DOCS and ADD); New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at i; and J Millard, “‘Isolation in the Community’: People With Disabilities Living in Boarding Houses” in Culture and Caring: Caring in Culture (Australian and New Zealand College of Mental Health Nurses Inc, 22nd Annual Conference Proceedings, Auckland, 10-13 October 1996) at 95.

371. New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at i.

372. People With Disabilities (NSW) Inc, CAMA Submission at 17; and Joint Enterprise Service Initiative Boarding House Project, Accommodation Working Party, “Supported Accommodation”: Discussion Paper (Joint Enterprise Service Initiative, Sydney, 1998) at 4.

373. People With Disabilities (NSW) Inc, CAMA Submission at 17; and CSC, CAMA Submission 1 at 32.

374. NCOSS, CAMA Submission at 8; and New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at i.

375. People With Disabilities (NSW) Inc, CAMA Submission 1 at 17; NSW Council for Intellectual Disability, DSA Submission at 15; and New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at i.

376. Coalition for Appropriate Supported Accommodation for People With Disabilities, Room to Move: A Position Paper on Licensed Boarding Houses (Sydney, 1998); New South Wales, Task Force on Private “For Profit” Hostels, Report of the Task Force on Private “For Profit” Hostels December 1993 (Office on Disability, Sydney, 1993) Volume 1 at 7; J Millard, “‘Isolation in the Community’: People With Disabilities Living in Boarding Houses” in Culture and Caring: Caring in Culture (Australian and New Zealand College of Mental Health Nurses Inc, 22nd Annual Conference Proceedings, Auckland, 10-13 October 1996) at 96-98; Australia, Human Rights and Equal Opportunity Commission, Human Rights and Mental Illness: Report of the National Inquiry into the Human Rights of People with Mental Illness. Volume 1 (Australian Government Publishing Service, 1993) (the “Burdekin Report”) ch 11; and New South Wales, Health Care Complaints Commission, The Care and Management of People with a Mental Illness Residing in Boarding Houses, who Require Treatment with Psychotropic Medication (1996).

377. Coalition for Appropriate Supported Accommodation for People With Disabilities, Room to Move: A Position Paper on Licensed Boarding Houses (Sydney, 1998).

378. Youth and Community Services Act 1973 (NSW) s 11.

379. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 26 September 1979, the Hon R Jackson, Minister for Youth and Community Services, Second Reading Speech at 1349.

380. C Ferguson, Submission at 15-17.

381. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 15 October 1998, the Hon F Lo Po, Minister for Community Services, Questions Without Notice at 8445. However, it was reported on 6 May 1999 that little of this money had actually been provided so far, and that licensed boarding houses are continuing to close down: A Horin, “Homes for the Disabled Shut up Shop” Sydney Morning Herald (6 May 1999) at 10.

382. See Report 91 at para 2.40-2.45.

383. NSW Council for Intellectual Disability, DSA Submission at 15 and CAMA Submission at 8-9.

384. Note that the term “foster care” is not used in the Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 8. The Act refers to various forms of “out-of-home care” provided by “authorised carers”. These are defined in s 135 and 137 respectively.

385. CSC, CAMA Submission 1 at 37.

386. CAMA s 4(d).

387. CAMA s 12.

388. New South Wales, Crown Solicitor’s Office, Request for Advice on Whether “Service Provider” as Identified in the Community Services (Complaints, Appeals and Monitoring) Act 1993 Includes Foster Carers (Advice to CSC, 15 January 1998) at 13.

389. CSC, CAMA Submission 1 at 37; and People With Disabilities (NSW) Inc, CAMA Submission at 18.

390. DOCS figures from the Integrated Substitute Care Database cited in information supplied by CSC (23 March 1999) at 5. There were also a total of 3,906 other children in care at that date. These children’s placements included: other family or kinship care (2,355); non-related family (637); parents (313); independent living (163); supported accommodation (126); adoptive parents (82); DOCS group home (24); other (191); and no fixed place (15).

391. CSC, CAMA Submission 1 at 37.

392. People With Disabilities (NSW) Inc, CAMA Submission at 18.

393. NCOSS, CAMA Submission at 9.

394. NCOSS, CAMA Submission at 9; CSC, CAMA Submission 1 at 38-39.

395. CSC, CAMA Submission 1 at 38.

396. Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 8 Pt 2.

397. Children and Young Persons (Care and Protection) Act 1998 (NSW) Chap 8 Pt 3 Div 1.

398. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 138(1)(b).

399. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 138(1)(a).

400. This is defined in Children and Young Persons (Care and Protection) Act 1998 (NSW) s 139(1).

401. New South Wales, DOCS, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 98.

402. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 139.

403. See para 3.113.

404. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 150(1).

405. See para 3.116.

406. NSW Council for Intellectual Disability, CAMA Submission at 9.

407. CAMA s 84(2).

408. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 181(1)(a).

409. Information supplied by the CSC (18 March 1999).

410. CSC, CAMA Submission 1 at 55.

411 CAMA s 4.

412. CSC, CAMA Submission 1 at 55. The CSC also reports that the NSW Ombudsman supports such an amendment: CSC, CAMA Submission 1 at 55.

413. Ombudsman Act 1974 (NSW) Pt 3A, inserted by Ombudsman Amendment (Child Protection and Community Services) Act 1998 (NSW) Sch 1.

414. CAMA s 21(h).

415. CSC, CAMA Submission 1 at 58.

416. CSC, CAMA Submission 1 at 58; and H Seares, Submission at 9.

417. CAMA s 84(1).

418. CAMA s 84(3) and (4).

419. CAMA s 84(1).

420. See 3.156.

421. CAMA s 84(2). A search warrant is available under CAMA s 85.

422. CAMA s 86.

423. Interpretation Act 1987 (NSW) s 56 provides that one penalty unit is equivalent to $110.

424. A person with access to the records can be required to produce them: CAMA s 84(3)(c). However, as discussed at para 3.169, although the Commissioner can ask questions of any person on the premises, that person is not required to answer the question: CAMA s 84(4).

425. CAMA s 84(6).

426. CAMA s 84(8).

427. Confidential Submission 3 at 15; CSC, CAMA Submission 1 at 41; Action for Citizens with Disabilities, Submission at 18; and Autism Association of NSW, Submission at 12.

428. Disability Council of NSW, Submission 2 at 46-47.

429. Disability Safeguards Coalition, CAMA Submission 1 at 5.

430. Carers NSW Inc, Submission at 14.

431. CSC, CAMA Submission 1 at 42-43; People With Disabilities (NSW) Inc, CAMA Submission at 19; Disability Safeguards Coalition, CAMA Submission 1 at 5; and NSW Council for Intellectual Disability, CAMA Submission at 9. See Physical Disability Council of NSW Inc, Submission at 14. Some other submissions also argued that the powers available under the different functions should be broadly consistent: Disability Safeguards Coalition, CAMA Submission 1 at 5; and Physical Disability Council of NSW Inc, Submission at 14.

432. CAMA s 84 and 85.

433. CSC, CAMA Submission 1 at 42.

434. CAMA s 84(3)(b).

435. Information supplied by CSC (18 March 1999).

436. CSC, CAMA Submission 1 at 43.

437. CSC, CAMA Submission 1 at 43.

438. CAMA s 84(4).

439. Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 2; NCOSS, CAMA Submission at 7; Disability Safeguards Coalition, CAMA Submission 1 at 4; Barnardos Australia, Submission at 7; and CSC, CAMA Submission 1 at 43.

440. CSC, CAMA Submission 1 at 42.

441. CSC, CAMA Submission 1 at 43.

442. Legal Profession Act 1987 (NSW) s 152(1); Independent Commission Against Corruption Act 1988 (NSW) s 21 and 22; and Ombudsman Act 1974 (NSW) s 18.

443. N K Ray, “Elements of an Effective Governmental Watchdog Agency” in V J Bradley and H A Bersani (ed), Quality Assurance for Individuals with Developmental Disabilities (Paul H Brookes Publishing Co, Baltimore, 1990) at 174-175.

444. CAMA s 84(3)(c) (emphasis added).

445. CAMA s 84(6) (emphasis added).

446. CAMA s 86(c) (emphasis added).

447. CSC, CAMA Submission 1 at 41-42. Confidential Submission 3 at 10 also recommended providing a power to refer matters to a service provider for review under the review power.

448. CSC, CAMA Submission 3 at 1.

449. CSC, CAMA Submission 1 at 41-42.

450. CSC, CAMA Submission 1 at 41-42. For examples, see Legal Profession Act 1987 (NSW) s 131(e), (f) and (g); Independent Commission Against Corruption Act 1988 (NSW) Pt 5; Police Service Act 1990 (NSW) s 132 (providing for referral of complaints about police officers by the NSW Ombudsman to other bodies); and Ombudsman Act 1974 (NSW) s 25E and 25F (providing for oversight by the NSW Ombudsman of investigations conducted by other agencies of child protection matters within the NSW Ombudsman’s jurisdiction).

451. CSC, CAMA Submission at 41.

452. New South Wales, CSC, Suffer the Children: The Hall for Children Report (1997).

453. NSW Government, DSA Submission at 10.

454. Confidential Submission 3 at 11-12; Burnside, Submission at 2; Dare to Care, Submission at 2; B Semmler, Submission at 1; Physical Disability Council of NSW Inc, Submission at 13-14; Barnardos Australia, Submission at 7; Disability Safeguards Coalition, CAMA Submission 1 at 10; and Citizen Advocacy NSW, Submission at 8-9.

455. CSC, CAMA Submission 1 at 29; People With Disabilities (NSW) Inc, CAMA Submission at 16. Some other submissions favoured the power to name in Parliament: Citizen Advocacy NSW, Submission at 9; and Burnside, Submission at 2. See also Confidential Submission 3 at 12.

456. NCOSS, CAMA Submission at 8. See Citizen Advocacy NSW, Submission at 9.

457. Physical Disability Council of NSW Inc, Submission at 13-14; People With Disabilities (NSW) Inc, CAMA Submission at 15-16; Barnardos Australia, Submission at 7; Autism Association of NSW, Submission at 12; Disability Safeguards Coalition, CAMA Submission 1 at 10; Action for Citizens With Disabilities, Submission at 15; and NSW Council for Intellectual Disability, CAMA Submission at 8 and DSA Submission at 9.

458. See para 5.98-5.107.

459. NSW Council for Intellectual Disability, CAMA Submission at 8.

460. CSC, CAMA Submission 1 at 29; and Confidential Submission 3 at 12. See Citizen Advocacy NSW, Submission at 9 and Physical Disability Council of NSW Inc, Submission at 13, which suggested that the power to request information about implementation of recommendations be extended to cover the review function as well as complaints.

461. CAMA s 38(2)(a).

462. See Recommendation 28 at para 3.171.

463. The Minister for Community Services has already given in-principle approval for funding for one of the most significant of these, the Disability Death Review Team: information supplied by the CSC (18 March 1999).

464. CAMA Working Party Report at 58.

465. Burnside, Submission at 3; L Moffit, Submission at 1; Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 2; The Spastic Centre of NSW, CAMA Submission at 3; and NCOSS, CAMA Submission at 2.

466. New South Wales, Premier’s Department, Community Services Commission Review Report (1996) at Appendix 8.

467. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 28 October 1998, the Hon J W Shaw, Attorney General at 9097. See also New South Wales, CSC, Annual Report 1996/97 at 13; and New South Wales, CSC, Annual Report 1997/98 at 9.

468. Barnardos Australia, Submission at 5; CSC, CAMA Submission 1 at 11; and NCOSS, CAMA Submission at 3.

469. CSC, CAMA Submission 1 at 11; and NCOSS, CAMA Submission at 3.

470. CSC, CAMA Submission 1 at 11.