5.2 On 1 January 1999, the CSAT was abolished and reconstituted as the CS Division of the ADT. The Administrative Decisions Legislation Amendment Act 1997 (NSW) replaces Part 7 of CAMA and substantially amends Part 5. The provisions governing the powers and the procedures of the CS Division are now divided between both CAMA and the ADT Act. References in this Chapter are to the provisions in force of both statutes, although sections of the now repealed or amended parts of CAMA are referred to where relevant.

5.3 This Chapter considers the major issues affecting the CS Division of the ADT including its independence, jurisdiction, the issue of standing and procedural matters. In particular, the Commission examines the impact on community services appeals of the reconstitution of the CSAT as a Division of the ADT.

EFFECT OF THE NEW ADT

Merits review

5.4 Merits review of an administrative decision is the process whereby the facts, law and policy aspects of the original decision are considered afresh and a new decision is made which either affirms, varies or sets aside the original decision.¹ An administrative review tribunal is said to “stand in the shoes” of the person whose decision is being reviewed.² A defining characteristic of merits review is the ability of the review tribunal to substitute the original decision with what it considers to be the correct and preferable decision.³ This is in contrast to judicial review of administrative decisions, the object of which is to ensure that public power is exercised lawfully.⁴

5.5 A comprehensive system of merits review of administrative decisions has existed at the Commonwealth level since 1975⁵ and in Victoria since 1984.⁶ Although there have been several attempts over the last 20 years to initiate a similar program in NSW, a mechanism for broad-ranging merits review of administrative decisions has only just been introduced with the establishment of the ADT.⁷ Reflecting the trend towards large multi-division tribunal structures in other jurisdictions across Australia,⁸ the ADT is also the first step in a government program to rationalise and consolidate tribunals across NSW. It was established to promote better and consistent decision-making and to achieve greater accessibility and cost-effective use of resources.⁹ Several tribunals are intended to be merged into the ADT.¹⁰

Structure of the Tribunal

5.6 The ADT has two distinct areas of jurisdiction. The first is to review the merits of decisions made by government officials and public bodies and the second is to make original decisions in the areas in which jurisdiction of existing tribunals has been transferred to the ADT.¹¹ In both cases, jurisdiction must be conferred by another piece of legislation.¹²

5.7 While the ADT Act provides for a core administrative body, the Tribunal itself will operate through a number of separate divisions, each of which has its own distinctive character and procedural rules. Each division is intended to operate in a discrete and autonomous manner.¹³ At the time of writing, the ADT comprised four divisions: the General Division, the Equal Opportunity Division, the Legal Services Division and the CS Division. Two new Divisions have been added by recent amendments: the Occupational Regulation Division and the Retail Leases Division.¹⁴

5.8 The CS Division began operation on 1 January 1999. It retains the jurisdiction conferred on the former CSAT by s 40 of CAMA. While its procedures have remained largely unchanged, some aspects of the ADT Act will have an impact on the community services area.¹⁵ In general, the Commission considers it important to maintain administrative and procedural consistency between the various divisions of the ADT, unless there are good reasons for distinctions to be drawn.

INDEPENDENCE OF THE CS DIVISION

5.9 The unfettered independence of the CSAT is critical if it is to review decisions relating to the provision of community services effectively. This independence is considered vital to safeguard the interests of vulnerable persons against incorrect or improper decisions by government and non-government service providers.¹⁶

5.10 Review tribunals play a significant role in making government more open and accountable by providing persons affected by government decisions with a fair and open process to challenge those decisions. They are not courts. Although review tribunals may appear to have some of the “trappings” of a court, such as holding hearings in public and taking evidence on oath or affirmation, they do not exercise judicial power.¹⁷ As they stand in the shoes of an administrative decision-maker, review tribunals are often seen to be an extension of the administrative process and therefore part of the executive arm of Government, not the judiciary.¹⁸

5.11 To ensure the credibility and effectiveness of review tribunals, tribunals need to be, and be seen to be, completely independent of the government agencies whose decisions they review.¹⁹ Many factors can affect this actual or perceived independence including arrangements for the appointment of tribunal members, reporting requirements and the funding and administration of tribunals.²⁰

Impact of the new ADT on the independence of the CS Division

5.12 The process of rationalising tribunals brings certain advantages including promoting consistent decision-making, providing a one-stop shop for users, allowing cross-fertilisation of ideas among members allocated to different divisions and of course, considerable cost-efficiencies. However, as one commentator notes, the creation of multi-division tribunals also poses potential problems:

The process of generalisation could reduce expertise rather than enhance it. Further there has been a fear that the process of amalgamation could see the loss of distinctive culture and practices, as well as financial resources, that are very important to some tribunals, such as the Community Services Appeals Tribunal.²¹

5.14 There has also been some concern that the transfer of the jurisdiction of the former CSAT to the new ADT will have the effect of reducing its independence. In particular, it has been suggested that the independence of the CSAT may be diminished by the fact that it will no longer report separately to Parliament.²³ Under the ADT Act, the President of the ADT must furnish an annual report on all the Tribunal’s functions to Parliament.²⁴ In its submission to the Commission, the CSAT argued that, provided the activities of the CS Division are reported adequately, this is unlikely to compromise its independence.²⁵ The Commission agrees that the fact that there is no longer a separate report to the Minister by the CS Division does not in itself raise any concerns for its continued independence.

CONSTITUTION OF THE TRIBUNAL

5.15 Section 92 of CAMA provided that the CSAT was to consist of a President and at least four part-time members, one of whom was to be appointed as the Deputy President. At least one member had to be a legal practitioner. This section is now repealed and replaced by Schedule 2 of the ADT Act.²⁶

5.16 There are four classes of members under the ADT Act: a President; Deputy Presidents; non-presidential judicial members; and non-judicial members.²⁷ The President and Deputy Presidents (referred to as “presidential judicial members”) are appointed by the Governor while the non-presidential judicial and non-judicial members are appointed by the Minister.²⁸ Although the ADT Act does not expressly define “Minister”, the Minister currently responsible for the ADT Act is the Attorney General.

5.17 To be appointed President, a person must be a judge of the District Court. In order to qualify to be appointed as a Deputy President or a non-presidential judicial member, a person must either be qualified to be appointed President, be a Magistrate or be a legal practitioner of at least 7 years standing. Finally, in order to be appointed as a non-judicial member, one must have, in the opinion of the Minister, special knowledge or skill in relation to any class of matters in respect of which the ADT has jurisdiction.²⁹

5.18 The President is appointed on a full-time basis. Other members may be appointed on a part or full-time basis. The President or a Deputy President may be appointed as the Divisional Head of one or more of the Divisions.

CS Division

5.19 The CS Division consists of a Divisional Head and at least four other members appointed by the Minister but only upon the recommendation of the Minister for Community Services who is responsible for administering CAMA.³⁰ Previously, appointments to the CSAT were made by the Minister for Community Services after consultation with the Review Council. All reference to the Review Council has been dropped under the ADT Act. Specific qualifications for appointment to the CS Division are contained in Schedule 3 of the ADT Act, and are detailed below.³¹

5.20 The President of the former CSAT is now a Deputy President of the ADT and the Divisional Head of the CS Division. Under transitional arrangements, all the current members of the CSAT have been assigned to the CS Division.³² In its last annual report, the CSAT reports it consisted of a full-time President and 11 part-time members.³³

Selection for appointment

5.21 According to the Administrative Review Council, confidence in the decisions of tribunals is inextricably linked to satisfaction with the quality of the members of the tribunals. It is, therefore:

crucial that members of the community feel confident that tribunal members are of the highest standard of competence and integrity, and that they perform their duties free from undue government or other influence.³⁴

5.23 In order to ensure community confidence in the quality of Tribunal members, there have been several calls for the establishment of transparent administrative procedures to apply in relation to the appointment, reappointment and termination of members.³⁶ Specifically, it has been suggested that the selection of new members be conducted by a bipartisan committee and that consultation with appropriate groups occurs before an appointment is made.³⁷

5.24 The Commission agrees that community confidence in the quality of Tribunal members is important. However, it is not persuaded that the current practice of selection is so manifestly flawed that a significant departure from it is warranted. The Commission does, on the other hand, believe there may be some value in calling for expressions of interest from time to time, and developing a register of suitably qualified applicants from which new members may be recommended to the Minister for appointment. The Commission notes that this practice has been adopted by the Chief Magistrate in relation to the appointment of magistrates. It was also used at one stage by the federal Administrative Appeals Tribunal (the “AAT”).

Qualifications for assignment to the CS Division

5.25 The ADT Act provides that members, including the Divisional Head, should only be assigned to the CS Division by the Minister if the relevant Minister has approved the assignment and the President (or Governor) has been informed of the recommendation.³⁸ The “relevant Minister” is defined to be the Minister administering CAMA.³⁹

5.26 The Minister for Community Services may only make recommendations in respect of a person who, in his or her opinion:

(a) has knowledge of and experience in administration, child care, community services, education, law, medicine, psychology and social work, or

(b) who has other suitable qualifications which warrants their assignment to the Division.⁴⁰

5.27 The failure to expressly mention disability issues in this list is a notable omission. Given that the CS Division deals with a number of disability matters, it has been strongly argued that understanding of and expertise in disability issues are vital to ensure that the Tribunal is able to determine issues concerning people with disabilities in a skilful and informed manner.⁴¹

5.28 The categories in which applicants are required to show knowledge and experience are arguably sufficiently broad to capture persons with skills in disability-related matters. Even if they are not capable of being so interpreted, subsection (b) is a catch-all provision which empowers the Minister to appoint persons he or she thinks are suitably qualified notwithstanding the categories of subject areas listed under subsection (a).

5.29 While the current membership includes members with expertise in disability issues, the Commission agrees that the ADT Act should expressly mention disability issues. This will make it clear that knowledge of and expertise in disability issues is as important as the other areas specified. However, it is not necessary nor indeed desirable given the diversity of matters dealt with by the CS Division, for every applicant to show specific skills in disability issues.

Knowledge of issues affecting children and young persons

5.30 Similarly, it has been suggested that members should also have some knowledge and experience of issues affecting children and young people in substitute care.⁴² The requirement that the Minister be satisfied that applicants have knowledge of and experience in “child care” arguably covers children in non-residential and permanent or temporary substitute care arrangements. Alternatively, as previously argued, experience or knowledge of child welfare matters would certainly come within the purview of subsection (b).

5.31 Although the ADT Act can be interpreted to allow the appointment of persons with experience and knowledge of child welfare issues, this review presents an opportunity to clarify potential ambiguities and to use language which is consistent with other relevant legislation, such as the recently enacted Children and Young Persons (Care and Protection) Act 1998 (NSW). In view of this, and in recognition of the number of cases relating to child welfare matters that are brought, the Commission proposes that the qualifications for appointment specifically include knowledge and experience of issues concerning the care and welfare of children and young people.

Membership should be more diverse

5.32 It has also been suggested that people with disabilities should be appointed as members to ensure greater sensitivity by the Tribunal to issues affecting people with disabilities.⁴³ Indeed, until her appointment expired in 1997, one of the part-time members of the CSAT was a person with a disability. Similarly, it has been argued that Aboriginal and Torres Strait Islander people and people from a variety of ethnic backgrounds should be recruited to ensure that the Tribunal is sensitive to cross-cultural issues.⁴⁴ Currently, one member of the CS Division is Aboriginal and two members are from a non-English speaking background.⁴⁵

5.33 It is now widely accepted that Australian legal and social systems need to better represent the diversity of the Australian community. Accordingly, the Commission believes that the pool from which Tribunal members are usually drawn needs to be broadened. Strategies should be devised to encourage people with disabilities, people from non-English speaking backgrounds and Aboriginal and Torres Strait Islander people to apply to be appointed as part-time members of the Tribunal. These may include placing advertisements calling for expressions of interest to be submitted to the President and developing a register from which new members are drawn.

RECOMMENDATION 42

Schedule 2 cl 1(3) of the Administrative Decisions Tribunal Act 1997 (NSW) should be amended to include disability issues and issues relating to the care or welfare of children and young people in the list of subject matters of which applicants should have knowledge and experience.

5.34 In any appeal under CAMA, the CS Division must be constituted by three members, at least one of whom is to have specific knowledge of and experience in the subject matter of the proceedings under review.⁴⁶ Inevitably, this very expertise may expose the member to claims of an appearance of bias.⁴⁷ This is by no means an issue unique to the CS Division. It is a concern in every tribunal where provision is made for multi-member panels in which at least one member is required to have expertise in the subject matter of proceedings.⁴⁸ In light of this concern, there has been some suggestion that it may not be necessary nor desirable to continue to require that members with specific expertise hear particular cases. It is argued that the Tribunal must, in any case, reach its determination impartially and based on the evidence presented. ⁴⁹

5.35 While this is correct, the Commission believes there is value in the practice of appointing members with specific expertise in the subject matter of the case to the Tribunal. It assists the Tribunal to gain a better understanding of the issues before it and thus enhances the quality of the Tribunal’s decision. This, in turn, increases confidence in the review process by government agencies and private individuals.⁵⁰ Any perception of bias resulting from a member’s specialist knowledge is, in the Commission’s view, addressed by adherence to the rules of procedural fairness. Members chosen to constitute the Tribunal for the purpose of particular matters should certainly not be “representative” of any of the parties to the appeal.⁵¹

Terms of appointment

5.36 Members of the former CSAT could be appointed for a maximum of five years and were eligible for reappointment.⁵² Terms of appointment for members of the CS Division are now governed by the ADT Act which provides that members are appointed for a maximum of three years but are eligible for reappointment.⁵³

5.37 Short terms of appointment raise concerns that the appointment process may become politicised and thus threaten the independence of the Tribunal. One commentator has expressed the view that the “three year maximum rule” in relation to the appointment of judicial members who do not already hold judicial positions, does not appear “to be calculated to promote the desirable independence of tribunal members”.⁵⁴ There are also concerns that short terms of appointment do not permit the development of specialised knowledge in the subject matter of the decisions under review. As one submission noted:

We believe that specialised knowledge of child welfare is essential to assess issues in this area. It is of concern to us that knowledge of child welfare practice issues will be diluted by the new arrangements because of the shorter tenure of membership.⁵⁵

5.38 Terms of appointment vary substantially between similar tribunals in other jurisdictions. They can even vary within the same tribunal depending on the category of membership to which the member belongs. For example, presidential members and senior members of the federal AAT may be appointed until retirement age (although the practice is changing) whilst other members are appointed for fixed terms of up to seven years.⁵⁶ Members of the new maxi-tribunal in Victoria, the Victorian Civil and Administrative Tribunal, on the other hand, are eligible to be appointed for a maximum of five years regardless of the category of membership.⁵⁷

5.39 The practice in review tribunals in New South Wales also varies. Members are appointed for up to seven years in the Government and Related Employees Appeal Tribunal⁵⁸ and up to five years in the Residential Tenancies Tribunal⁵⁹ and in the former Commercial Tribunal.⁶⁰ Part of the jurisdiction of the Commercial Tribunal, relating to retail leases, has since been transferred to the Retail Leases Division of the ADT, where members are appointed for three years. Even before becoming Divisions of the ADT, members of the Equal Opportunity Tribunal and the Legal Services Tribunal were appointed for up to three years.⁶¹

Should members be appointed until retirement age?

5.40 Appointing members until retirement age, as has been suggested by some submissions,⁶² is not an option that is applicable to part-time members. In any case, tenure is not considered a viable solution to the concerns about independence. The Administrative Review Council, for example, has found that appointing tribunal members until retirement age is undesirable as:

The needs of the users of review tribunals change over time, and no selection process can guarantee that a person considered suitable for appointment will remain so indefinitely in the light of changing circumstances and demands. Tenured appointments reduce the flexibility of tribunals to ensure that their pool of members remains appropriate to the current set of tasks. This is particularly the case because review tribunals may review decisions on their merits rather than on legal grounds alone.⁶³

5.41 The Administrative Review Council recommends that members of review tribunals be appointed for terms of between three and five years. It argues that shorter terms are not advisable as they provide little job security, implying that such unfavourable terms will not attract the best candidates or may affect members’ performance of their duties in an adverse way. It also suggests that it may be appropriate in some cases to appoint senior members for longer terms “to assist with continuity and to attract and retain the best qualified and able members”.⁶⁴

5.42 In its submission, the CSAT suggested that the terms of the Divisional Heads of the Tribunal be increased to a maximum of five years, claiming that the current maximum of three years fails to:

promote continuity in the management and administration of the Tribunal and gives government the opportunity to discard members after a fairly short time if they do not agree with their decisions. Finally, ... a longer term tends to attract and retain the “best qualified and able members.”⁶⁵

The Commission’s view

5.43 The Commission believes that the independence of the Tribunal can be preserved and maintained by the appointment of members for reasonable fixed terms. The period of time needs to be sufficiently long in order to allow the development of expertise and provide a realistic level of job security. In light of the practice in other New South Wales tribunals and in the ADT generally, the Commission is of the view that the current three year renewable term is not unreasonable.

Termination of appointment

5.44 In order to promote and maintain the independence of the Tribunal, it is essential that the procedure for the termination of the President and other members of the Tribunal be transparent. Generally, legislation should prescribe what circumstances would justify the termination of an appointment of a tribunal member so as to prevent arbitrary terminations by the executive for capricious or unjustifiable reasons.

5.45 The termination procedures in respect of the President of the ADT are far more onerous than was previously the case under CAMA.⁶⁸ The President may only be removed from office by the Governor following an address from both Houses of Parliament in the same parliamentary session seeking removal on the ground of “proved misbehaviour or incapacity” and in accordance with the applicable provisions of Parts 7 and 8 of the Judicial Officers Act 1986 (NSW).⁶⁹

5.46 Similarly, the termination procedures in relation to members other than the President are also more stringent than was previously the case under CAMA. Under the ADT Act, a member (excluding the President) may be removed from office by the Governor only on the grounds of “incapacity, incompetence or misbehaviour”.⁷⁰ Previously, under CAMA, part-time members could be terminated by the Governor at any time.⁷¹ In view of the new and more onerous termination procedures, the Commission makes no recommendations in this regard.

PRINCIPLES FOR THE REVIEW OF DECISIONS

5.47 The ADT Act gives the Tribunal the power to review reviewable decisions.⁷² The Act defines a reviewable decision as a “decision of an administrator that the Tribunal has jurisdiction under an enactment to review.”⁷³ To come within the Tribunal’s jurisdiction, a decision must be made by an administrator in the exercise of functions conferred or imposed by the enactment and must be identified in the enactment as one that may be reviewed by the ADT.⁷⁴ A decision under the ADT Act includes:

(a) making, suspending, revoking or refusing to make an order or determination,

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d) imposing a condition or restriction,

(e) making a declaration, demand or requirement,

(f) retaining, or refusing to deliver up, an article,

(g) doing or refusing to do any other act or thing.⁷⁵

What decisions should be reviewable?

5.49 The Administrative Review Council has consistently advocated that any decision which affects or is likely to affect the interests of a person should be able to be reviewed on its merits. It argues that “interests” should be interpreted broadly so that it includes, in the case of organisations, intellectual or spiritual interests and not merely property, financial or physical interests.⁷⁹ This general principle was supported by submissions received by the Commission.⁸⁰

5.50 It has also clearly formed the basis of guidelines issued by the Attorney General’s Department to assist in the establishment of the general jurisdiction of the new ADT. The guidelines provide that the following decisions should be reviewable by the Tribunal:

• decisions made, proposed to be made or required to be made under a statute (including regulations);
• decisions made by a delegate or a contractor as long as the primary decision is reviewable; and
• decisions which are of an administrative character.⁸¹

• decisions to grant or refuse to grant a licence, authority or approval;
• decisions to suspend, terminate, revoke or cancel a licence, authority or approval;
• determinations of an entitlement; and
• decisions relating to the protection of vulnerable persons.⁸²

What decisions should not be reviewable?

5.52 There are some decisions that the Administrative Review Council has concluded should not be reviewable notwithstanding the fact that they may affect an individual’s rights and interests to a significant extent. This is usually because the decision is either not appropriate for merits review or because no appropriate remedy is available to the reviewing body.⁸³ Among those decisions which it considers should not be reviewable are decisions that are not final (including recommendations), law enforcement decisions, decisions involving extensive inquiry processes and “polycentric”⁸⁴ decisions which relate to the allocation of a finite source of funds.⁸⁵

5.53 Similarly, the Attorney General’s Department believes that tendering decisions, decisions in relation to the allocation of funds, decisions in relation to adult and juvenile offenders, public health decisions, decisions relating to disputes between government agencies and decisions which are not final are inappropriate for merits review.⁸⁶ The Commission agrees that such decisions are generally inappropriate for merits review.

Funding decisions

5.54 Whether funding decisions are appropriate for external merits review appears to depend on the nature of the decision. Funding decisions include:

• decisions to allocate a certain amount of funding to particular programs as a whole;
• decisions to allocate a certain amount of funding to individuals or organisations from a limited source of funding which may be insufficient to meet the demand for funding;
• decisions not to allocate funds to an organisation for a funding year where that organisation has been funded in the past; and
• decisions to defund an organisation for non-compliance with the terms and conditions of funding.

5.55 Decisions allocating funding to programs as a whole are budgetary decisions rather than decisions which affect or are likely to affect the interests of any particular individual. These decisions are essentially political decisions and are subject to scrutiny by Parliament. The Minister who makes these decisions is usually held politically accountable for them. For these reasons, the Commission believes that they are inappropriate for merits review.⁸⁷

Decisions to grant funding to specific individuals or organisations

5.56 Decisions to allocate funding to service providers from a finite source of funds are said to have significant “polycentric” elements which makes them inappropriate for merits review.⁸⁸ Polycentric decisions refer to decisions made in a specific area that affect other decisions in that same area so that if one decision is varied, the others will also have to be altered. Decisions to allocate funds from a limited pool to service providers fall within this category.

5.57 The Administrative Review Council has consistently argued that these decisions are inappropriate for merits review because a successful challenge by one funding applicant may (unfairly) affect the allocation to another applicant.⁸⁹ The Commission agrees in principle that decisions relating to the allocation of limited funds to service providers should not be subject to merits review as any decision to vary such decisions may have an effect on the allocation to another claimant. Nonetheless, it is important that such decisions be made fairly and objectively according to a set of publicly available criteria.⁹⁰

Decisions not to renew funding

5.58 Whether a decision not to grant funding to an organisation which has received funding in the past is suitable for merits review is debatable. Even if the funding agreement specifies that future funding is not guaranteed, the previous grant of funds to a particular organisation may create a reasonable expectation by the organisation that it will continue to receive funding in successive years provided it complies with the terms and conditions of the funding agreement. Where a reasonable expectation exists, it can be argued that decisions not to allocate funding in a particular year may be appropriate for merits review.

5.59 On the other hand, if funds are limited and circumstances have changed, for example, if government priorities have altered or there is no longer an identifiable need for services in the geographical area in which the organisation operates, merits review will be inappropriate. The Commission believes that these decisions are inappropriate for merits review because they contain significant polycentric elements and are likely to relate to planning and equity issues which are more properly scrutinised through Parliamentary processes.

Decisions to withdraw funding

5.60 Funding agreements between government and service providers generally contain terms and conditions with which the recipient of the funds must comply in order to remain eligible to receive funding. Commonly, the funder reserves the right to withdraw funding from the service provider where the service provider does not comply with those terms and conditions. The administrative decision that a service no longer meets the eligibility criteria to continue to receive funding is a decision which the Commission believes is appropriate for merits review. However, decisions relating to the actual allocation or, in this case, the withdrawal of funding, are not appropriate for merits review for the reasons already outlined.

Decisions by non-government agencies

5.61 As discussed in Chapter 3,⁹¹ governments across Australia are increasingly moving towards privatising, or contracting out, services and functions previously the responsibility of the public sector, including the provision of community services.⁹² The contracting out or “outsourcing” of government services has major implications for consumers, particularly in relation to quality and accountability issues.⁹³ There is a danger, for example, that commercial contract arrangements will diminish public and legal accountability through “commercial in confidence” declarations and restrictions on freedom of information.⁹⁴ There are also major concerns in relation to whether privacy laws will apply to protect consumers using contracted services and whether those consumers have access to administrative law remedies available to users of services provided directly by a government agency.⁹⁵

Ensuring accountability of decisions made by contractors

5.62 In its 1998 report, The Contracting Out of Government Services, the Administrative Review Council laid down a fundamental premise, namely that:

the contracting out of government services should not result in a loss or diminution of government accountability or the ability of members of the public to seek redress where they have been affected by the actions of a contractor delivering a government service.

5.64 Notably, only New South Wales has passed legislation, in the form of CAMA, which establishes an independent body to handle complaints about services provided by government and (funded) non-government organisations, a community visitor scheme, and a tribunal to which appeals can be brought against administrative decisions in relation to the provision of community services.⁹⁷

Submissions

5.65 Submissions from consumers, service providers, government, advocates and carers argued that decisions of non-government service providers should be reviewable by the ADT.⁹⁸ The Disability Council of New South Wales submitted that, from a consumer perspective, the interests of the service user are likely to be the same whether the provider is a government or non-government agency.⁹⁹ An advocacy group claimed that such appeal rights should exist especially where the non-government organisation performs functions that would otherwise be performed by government.¹⁰⁰ Other compelling reasons to extend external merits review to decisions of non-government service providers include that the non-government sector receives a substantial amount of public funding for which it should be accountable. In addition, because of the chronic undersupply of some types of community services, consumers often exercise little or no choice about what services they are placed in or are able to access.¹⁰¹

The Commission’s view

5.66 The Commission is firmly of the view that the rights of consumers should not in any way be diminished as a result of the move towards the contracting out of government services. The Commission believes that decisions of non-government service providers should be equally subject to merits review where those decisions would be reviewable if they were made by a government department or agency.

Should decisions which are not based on statute be reviewable?

5.67 Generally speaking, administrative review refers to the external review of decisions made pursuant to an enactment, be it primary or subordinate legislation. The jurisdiction of the AAT is, accordingly, limited to statutory decisions, as is the jurisdiction of other federal merits review tribunals, such as the Social Security Appeals Tribunal¹⁰² and State tribunals, for example, the Government and Related Employees Appeal Tribunal.¹⁰³

5.68 It has been suggested that decisions which affect the interests of a person, whether made pursuant to an Act or not, should be subject to merits review. In its submission, the CSC provided examples of decisions which, though they have the potential to affect a person significantly, are not able to be reviewed because they are not made under any law. They include: decisions about where people will live; how often and under what conditions children in care can see their natural parents and other family members; how many hours of in-home support people with disabilities or aged people will receive; decisions to withdraw a service from a person, or evict people with disabilities or children and young persons from accommodation support services; and decisions to use restraint, seclusion or psychotropic medication as a way of dealing with a person’s challenging behaviour.¹⁰⁴ The CSC noted that:

a decision of the type described above can have a significant negative impact on those subject to the decisions. Our experience also indicates that these decisions are made with wide discretion, little guidance and little accountability.¹⁰⁵

The Commission’s view

5.70 Undoubtedly, a large number of decisions that can be taken by service providers may have a significant impact on the daily lives of service users. There is clearly a need for some accountability on decision-makers in respect of these decisions. However, the appropriateness of extending the jurisdiction of the ADT to allow merits review of non-statutory based decisions by government and non-government service providers is arguable. Allowing external review from these decisions may have undesirable consequences. It may, for example, reduce the ability of the decision-maker to respond flexibly to individual service users’ needs and may well frustrate the operation of the system. In addition, identifying which decisions should be capable of merits review would be a highly complex and ultimately unsatisfactory process.

5.71 The Commission notes that formal complaint mechanisms are available for consumers to bring complaints about discretionary decisions of government and non-government service providers. Under CAMA, a person may bring a complaint to the CSC if he or she thinks the service provider has behaved unreasonably by providing or not providing a community service to a person; in the way in which a community service was provided; by withdrawing or changing the service to a person; or in the administration of a community service.¹⁰⁸ The CSC may make recommendations following an investigation into the complaint. Failure by the service provider to take action that is recommended by the CSC in these circumstances gives the complainant a right of appeal to the Tribunal.¹⁰⁹

5.72 The Commission is of the view that non-statutory based decisions of service providers are not appropriate for merits review by the Tribunal. They should continue to be reviewed through local complaints mechanisms and through the formal complaints process created under CAMA.

CURRENT JURISDICTION OF THE CS DIVISION

5.73 The appellate jurisdiction previously conferred on the CSAT by s 40 of CAMA has been transferred to the ADT. The Tribunal also takes over some of the merits review work previously performed by the District Court in relation to licensing decisions of boarding houses made under the Youth and Community Services Act 1973 (NSW). The functions of the Tribunal in relation to CAMA and the Youth and Community Services Act 1973 (NSW) are to be performed by the CS Division.¹¹⁰ Currently, decisions reviewable by the CS Division fall into the following five categories:

• decisions relating to the custody and guardianship of children and the licensing of child care services and employers who employ children, made under the Children (Care and Protection) Act 1987 (NSW);
• decisions made under other community welfare legislation such as the Adoption Information Act 1990 (NSW) and the Adoption of Children Act 1965 (NSW);
• decisions of the CSC to investigate a complaint being an investigation that is beyond its powers, decisions of the CSC generally that are beyond its powers, and decisions of a service provider not to implement recommendations of the CSC arising out of a complaint investigation;
• decisions made under the DSA; and
• decisions relating to boarding houses made under the Youth and Community Services Act 1973 (NSW).

5.75 In this regard, the Commission notes that the Attorney General intends to undertake a review of all New South Wales legislation with a view to determining which decisions are appropriate for external merits review by the ADT.¹¹¹ One anomaly that has been brought to the attention of the Commission and which should be examined in the Attorney General’s review is the failure to provide a right of appeal against a decision to remove a person from the register of carers under the Family Day Care and Home Based Child Care Services Regulation 1996 (NSW).¹¹² A carer who is a licensee of a home-based child care service, on the other hand, has a right to appeal a decision to suspend or revoke a licence to operate a child care service.¹¹³

Decisions under child protection legislation

Custody and guardianship decisions

5.76 The majority of matters brought to the CSAT are matters brought under child protection legislation.¹¹⁴ The Children (Care and Protection) Act 1987 (NSW) provides a right of appeal from several decisions including:

• a decision of the Minister to refuse to terminate the Minister’s guardianship of a ward under s 90(2), and thus restore the child to his or her natural parent;¹¹⁵ and
• a decision of the Minister to remove a ward or protected person from the custody of a foster carer or foster agency under s 91(1)(e).¹¹⁶

5.77 It is argued that the Children (Care and Protection) Act 1987 (NSW) also fails to provide for external review in respect of other decisions made under the Act which clearly affect the interests of the persons concerned. For example, a decision to move a ward or protected person from one place to another or to restore a ward to the custody of a parent or other person is not reviewable.¹¹⁷

5.78 Some of these concerns appear to have been addressed by the new Children and Young Persons (Care and Protection) Act 1998 (NSW) which will replace the 1987 Act when it comes into operation.¹¹⁸ The notion of “wardship” is abolished under the new Act, as recommended in the report of the Review of the Children (Care and Protection) Act 1987.¹¹⁹ Under the 1998 Act, removal of a child from the care of his or her parents is a last resort. If, on the application of the Director General, the Children’s Court finds that a child is in need of care and protection, the Court can allocate parental responsibility for that child to one parent exclusively, to one or both parents and another suitable person jointly or to a suitable person. Alternatively, the Court can make an order for the guardianship of the child or young person to the Minister.¹²⁰

5.79 The parental responsibilities of the Minister are to be exercised by the newly created Children’s Guardian, albeit subject to any direction of the Minister.¹²¹ The Guardian has the power to remove the parental responsibility of a child or young person from an authorised carer.¹²² This decision may be appealed to the ADT.¹²³ The Guardian is given a host of other powers. These include the power to resolve, in an informal manner, any dispute that arises “in the administration of the Act and the regulations” between the child or young person, the parent(s), authorised carer or designated agency.¹²⁴ It has been suggested that if the dispute arises because of an administrative decision taken under the Act, and the Guardian’s attempts to resolve the matter are unsuccessful, the aggrieved party should be able to seek external merits review of the original decision.¹²⁵ The Commission considers that this is an issue which should be examined in the Attorney General’s review of New South Wales legislation.¹²⁶

Licensing of child care services, residential services and fostering authorities

5.80 Under the 1987 Act, decisions to grant, suspend, revoke or impose a condition on a licence or authority for a child care service, residential child care centre or a fostering agency are reviewable by the CS Division.¹²⁷

5.81 The new Children and Young Persons (Care and Protection) Act 1998 (NSW) provides a right of appeal from decisions to authorise or not authorise a person as (an authorised) carer.¹²⁸ It does not provide any right of appeal in respect of a decision to grant a licence to operate a children’s service. The Commission understands that there are plans to rectify this omission before the new Act comes into operation. In order to remove any ambiguity, the Commission recommends that a right of appeal should attach clearly to both the decision to grant a licence and a decision not to grant a licence.¹²⁹

Decisions to exclude a person from a children’s service

5.82 The new Act provides that the Director General may exclude a person from the premises of a children’s service if that person is considered to present an unacceptable risk to the safety, welfare or well-being of a child enrolled in the service.¹³⁰ This provision was recommended by the Review of the Children (Care and Protection) Act 1987 in response to issues concerning allegations of abuse of children by staff. It was considered appropriate to allow the immediate exclusion of an alleged perpetrator of abuse from a service for a period of 28 days while the allegations are investigated.¹³¹ The Review recommended that there be a right of appeal against the decision.¹³² However, the Act makes no provision for a right of appeal.

5.83 The Commission believes that this decision should be reviewable. It is a decision made under statute which has a potentially significant impact on the person who is the subject of the allegation. The right to lodge an appeal does not necessarily mean the person can return to work. That person can still be required to be absent until the investigation is completed.

Decisions to impose conditions on an authorised carer

5.84 The decision to impose, revoke or vary any conditions imposed on the authorisation of a person as an authorised carer¹³³ is not reviewable under the 1998 Act. It merely provides that a decision to authorise or not to authorise a person as an authorised carer or to cancel or suspend a person’s authorisation is reviewable.¹³⁴ While it may be argued that conditions imposed at the time of the initial authorisation may be reviewable under s 245(1), any subsequent decision to impose other conditions or revoke or vary existing conditions may not be reviewable. To remove any doubt, it has been suggested that the new legislation should be amended to provide expressly that a decision of the relevant decision-maker to impose, revoke or vary any conditions on the authorisation be reviewable by the ADT.¹³⁵

5.85 A decision to impose conditions on an authority or to revoke or vary existing conditions satisfies the three elements contained in the general principles. The decision is made under an enactment, is administrative in nature and affects the interests of the person seeking to be an “authorised carer” under the Act. It does not appear that such decisions have been omitted intentionally. Accordingly, the Commission believes the 1998 Act should be amended to make it clear that decisions to impose, vary or revoke conditions on the authorisation of a person as an authorised carer are reviewable by the ADT.

RECOMMENDATION 43

The following decisions relating to the licensing of child care services, residential services and fostering authorities made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) should be reviewable by the Community Services Division of the Administrative Decisions Tribunal:

• a decision to grant or refuse to grant a licence to operate a children’s service;
• a decision to exclude a person from a children’s service; and
• a decision to impose, revoke or vary a condition on the authorisation of a person as an authorised carer.

Decisions relating to the employment of children

5.86 The Children and Young Persons (Care and Protection) Act 1998 (NSW) prohibits the employment of children unless a person holds an employer’s authority to employ a child.¹³⁶ The Act provides a list of circumstances in which a person who employs a child is exempted from the requirement to hold an employer’s authority.¹³⁷ For example, a person is exempted from the requirement to hold an employer’s authority if the child is employed for the purpose of a fundraising appeal.¹³⁸ An exemption may be revoked by the Minister provided that:

• the exempted person is given written notice of the intention to revoke the exemption and the reasons for intending to revoke it; and
• the Minister has taken into consideration any representation made by the exempted person within 28 days of receiving the notice of intention to revoke.¹³⁹

• grant, impose a condition on, revoke or vary any condition of an employer’s authority;
• declare a person to be the employer of a child;
• grant an exemption from the requirement to hold an employer’s authority, limit the extent of any such exemption or impose conditions on the exemption.¹⁴⁰

RECOMMENDATION 44

A decision to revoke an exemption under s 224(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) should be reviewable by the Community Services Division of the Administrative Decisions Tribunal.

Decisions to grant approvals

5.89 There appears to be some duplication in the appeal provisions of the Adoption of Children Act 1965 (NSW) relating to the grant of approvals. Section 67A provides that the following decisions are reviewable decisions:

• a decision to refuse approval of an adoption agency;
• a decision to revoke or suspend the approval of an adoption agency; and
• a decision within a class of decisions prescribed by the Regulations for the purpose of this section.

• refuse the application for approval as a private adoption agency;
• approve the application subject to additional conditions or requirements; or
• revoke or suspend the approval of the organisation as a private adoption agency.

Decisions relating to the approval of applicants as suitable to adopt

5.92 Decisions by the Director General or a Principal Officer of a private adoption agency declining to approve applicants as suitable to adopt may only be reviewed internally.¹⁴³ It has been submitted that these decisions should be able to be reviewed by the ADT because they are of an administrative nature, taken under an enactment, and are decisions which affect the interests of the persons concerned.¹⁴⁴

5.93 Two distinct decisions are made under the Act in relation to the selection of adoptive parents. The first is a decision that certain applicants are eligible to adopt. These applicants then join a pool of other suitable applicants. The second decision is deciding who, among this pool of eligible adoptive parents, is the most suitable to adopt a particular child. This decision is based on the best interests of the child. For this reason, the Commission considers that the second decision is not appropriate for merits review. The first decision relating to whether a person meets prescribed eligibility criteria should be reviewable.

Assignment to the CS Division

5.94 Presently, decisions made under the Adoption of Children Act 1965 (NSW) are dealt with by the General Division of the ADT. This may not cause too many difficulties in practice, given that the President may assign the Divisional Head of the CS Division to the panel hearing such matters. However, the Commission believes it is more appropriate and entirely consistent with the CS Division’s areas of responsibility for these matters to be assigned to the CS Division.

RECOMMENDATION 45

Section 14 of the Adoption of Children Act 1965 (NSW) should be repealed and s 67A should be amended to allow appeals against the following decisions:

• a decision to grant or refuse an application for approval of an adoption agency;
• a decision to impose conditions or remove or vary conditions on an approval;
• a decision to revoke or suspend the approval of an adoption agency; and
• a decision which is within a class of decisions prescribed by the Regulation for the purposes of this section.

A decision by the Director General or a Principal Officer of a private adoption agency to approve applicants as eligible to adopt under clause 14 of the Adoption of Children Regulation 1995 (NSW) should be reviewable.

Decisions which are reviewable decisions under the Adoption of Children Act 1965 (NSW) and the Adoption of Children Regulation 1995 (NSW) should be assigned to the Community Services Division of the Administrative Decisions Tribunal.

Decisions beyond its powers

5.95 CAMA provides that the following decisions of the CSC are reviewable:

• a decision to investigate a complaint where that investigation is beyond its powers; and
• a decision that was beyond its powers.¹⁴⁵

5.96 The second decision also differs from other merits provisions in another way. It does not identify the kinds of decisions that it covers. It is framed so broadly that it appears that any decision of the CSC, which an applicant alleges is beyond the CSC’s powers, may be reviewed on its merits.¹⁴⁷ This is completely inconsistent with other legislation which generally identifies particular decisions as reviewable decisions. For example, s 112(a)(i) of the Children (Care and Protection) Act 1987 (NSW) provides that the Tribunal may review a decision to grant a licence under that Act. While the CSC does make some specific decisions which the Commission considers should be subject to external merits review,¹⁴⁸ the decisions outlined in s 40(1)(b) and s 40(1)(c) of CAMA are not appropriate for merits review. Accordingly, the Commission recommends their repeal.

RECOMMENDATION 46

Section 40(1)(b) and (c) of CAMA should be repealed.

Decisions of the CSC when dealing with a complaint

5.97 The CSC makes other decisions which the Commission considers are appropriate for external merits review. These are decisions by the CSC to:

• decline to entertain a complaint;¹⁴⁹
• dismiss a complaint;¹⁵⁰ and
• terminate the matter.¹⁵¹

RECOMMENDATION 47

Decisions by the Community Services Commission, under CAMA, to decline to entertain a complaint, dismiss a complaint or terminate a complaint should be reviewable by the Community Services Division of the Administrative Decisions Tribunal.

Decisions not to implement CSC recommendations following a complaint

5.98 An appeal may be brought to the ADT if a service provider has not implemented, or only partially implemented, action recommended by the CSC following an investigation into a complaint.¹⁵⁷ However, only the complainant may bring the appeal.¹⁵⁸ This limitation on standing is considered to be a major shortcoming in the legislation.¹⁵⁹

5.99 In view of the vulnerability of persons who use services covered under CAMA, many complaints about service providers are brought on consumers’ behalf by their families, concerned friends or neighbours, members of staff or other professional persons who come into contact with the service user. Relying on these persons to lodge an appeal to the Tribunal in the case of non-compliance with CSC recommendations may, as the CSC submitted, place “an unreasonable burden on individuals who are relatively poorly resourced, and facing many personal stresses (particularly families of people with disabilities or children in care)”.¹⁶⁰ Also, members of staff or other persons involved in the care of the service user who may have been prompted to lodge the original complaint may no longer play any role in the care of the consumer concerned when the service provider makes the decision not to implement action recommended by the CSC.¹⁶¹

5.100 For these reasons, many submissions have argued that other persons should be able to bring an appeal on behalf of the service user to whom the complaint related.¹⁶² The CSC has suggested that any person “with a genuine concern in the subject matter” be able to lodge an application for review.¹⁶³ The suggestion that the CSC itself be able to initiate action in the Tribunal to ensure its recommendations are implemented was also popular.¹⁶⁴

The Commission’s view

5.101 The Commission considers that the decision not to implement a CSC recommendation should continue to be reviewable but recommends first, that the power to review should be located in CAMA itself, rather than the Regulation. In this way, all reviewable decisions relating to the CSC will be together in the one place and thus be more accessible to those whom the Act seeks to protect.¹⁶⁵

5.102 Secondly, in relation to who may bring the appeal, the Commission agrees that the current limitation is unsatisfactory. It hinders the object of ensuring that action is taken to remedy the situation which has given rise to the complaint. Provided the action recommended by the CSC is reasonable and the service provider is given a reasonable period of time to comply with the recommendations, the Commission believes the general standing provision under CAMA should apply.¹⁶⁶ This will permit an appeal to be brought by a next friend on behalf of the person to whom the service relates or by any person with a genuine concern in the subject matter of the appeal. Accordingly, the Commission recommends that the relevant provision of the CAMA Regulation be repealed.

5.103 In view of the CSC’s role in complaints-handling and investigation, the Commission does not consider it appropriate to allow the CSC to bring the appeal on its own initiative.

RECOMMENDATION 48

Clause 6(1)(a) and cl 6(2) of the CAMA Regulation should be repealed.

CAMA should be amended to provide that a decision of a service provider not to implement, or only partially implement, recommendations of the Community Services Commission arising out of the investigation of a complaint may be reviewed by the Community Services Division of the Administrative Decisions Tribunal.

Appeals from CSC recommendations arising out of a review or inquiry

5.104 The CSC may make recommendations for change following a review of a person or child in care under s 11 of CAMA or as a result of an inquiry it has undertaken under s 83(d) of CAMA, either on its own initiative or at the request of the Minister. The lack of enforceability of these recommendations is a source of considerable frustration among many consumers and key interest groups.¹⁶⁷

5.105 It has been suggested that decisions of service providers not to implement recommendations arising out of the CSC’s review or inquiry functions are appropriate for merits review as they are decisions which affect or are likely to affect the interests of a person.¹⁶⁸ Also, they are fundamentally the same as decisions not to implement recommendations arising out of a complaint investigation, particularly in terms of the impact on the service user, which are reviewable.¹⁶⁹

5.106 The CAMA Regulation enables the Tribunal to review decisions of service providers not to implement action recommended by the CSC arising out of a complaint investigation.¹⁷⁰ In its submission, the New South Wales Government argued that the Tribunal’s jurisdiction in this respect is much wider than was originally intended:

While it is important that service providers comply with conditions required by the Minister (possibly on the recommendation of the Commission) this jurisdiction appears to provide Commission recommendations with a stature not originally contemplated when the legislation was enacted.¹⁷¹

The Commission’s view

5.107 The recommendations of the CSC are not determinations of a judicial body, and none of the usual safeguards that are appropriate when determining issues in dispute between parties applies. The Commission therefore considers that it is inappropriate to allow the ADT to review decisions of service providers not to implement recommendations made by the CSC arising from its review or inquiry functions. However, recommendations arising out of the CSC’s complaint function can be distinguished because they relate to a complaint in which the unreasonable behaviour of a specific service provider is being challenged by an identified service user or by a complainant on behalf of that person. The recommendations which follow from the investigation into the complaint must address the specific incident or behaviour which is central to the complaint.

5.108 The Commission acknowledges the frustration caused by the lack of enforceability of CSC recommendations and has suggested other ways of enforcing those recommendations earlier in this Report.¹⁷²

Decisions under the Disability Services Act 1993 (NSW)

Current law

5.109 The following decisions of the Minister made under the DSA may be reviewed by the CS Division of the ADT:

• a decision to approve the provision of financial assistance to a service provider where that approval should not have been given because the grant will not conform with the objects, principles and applications of principles under the DSA;
• a decision to provide financial assistance to an eligible service provider on terms and conditions which do not comply with s 12;
• a decision to provide financial assistance to an approved research or development activity on terms and conditions which do not comply with s 13;
• a decision not to conduct a review under s 15 or to conduct a review that does not accord with the requirements of s 15;
• a decision to terminate future payments of approved financial assistance in a manner inconsistent with the procedural requirements under s 16; and
• a decision belonging to such class of decisions as may be prescribed by the regulations.¹⁷³

• a decision of the Minister to provide or continue to provide a service which does not conform with the objects, principles and applications of principles under the DSA; and
• a decision of the Minister to adopt or amend a transition plan, or to refuse to adopt or amend a transition plan within the meaning of s 7 of the DSA.¹⁷⁴

Major issues

5.110 The capacity to review, on their merits, funding decisions and decisions to approve transition plans where there is no transition funding allocated, is a matter of some controversy. The NSW Government has submitted that s 20 appeals are not appropriate for merits review as they relate to funding decisions with significant polycentric elements. It was argued that these are decisions which are properly a function of the executive and as such, are subject to Parliamentary scrutiny.¹⁷⁵ It submitted:

the Government wants to ensure that there is confidence in the decisions made in relation to services and transition plans, and that these decisions are well-founded, and are seen to be so. Accordingly, the Government is in favour of the concept of merits review of the way in which services have been provided (within funding limitations) but not of the underlying funding and allocation decisions.¹⁷⁶

While we do not object in principle to the suggestion that Government budgetary decisions affecting, or likely to affect, the interests of individuals ought not to be reviewable, it is important that such decisions be clearly distinguished from the current DSA appeal rights. While these appeal rights concern funding decisions, the basis of the appeal is in relation to the “conformity” of the recipient of the funds to the requirements of the DSA. These appeal rights do not concern the appropriation per se, or the distribution of the appropriation among competing priorities. Rather, they require that the recipients of the distribution conform with legislative requirements.¹⁷⁹

it is not in anyone’s interest for the Community Services Appeals Tribunal to decide that a service does not comply with the Act’s requirements when there is realistically nothing the service can do to bring itself into conformity or to provide better alternative arrangements.¹⁸⁰

Decisions made by the Disability Services Quality Assurance Council (DisQAC)

5.113 These issues, namely whether s 20 appeals and appeals against the Minister’s decision to adopt transition plans are appropriate, may become moot if the Commission’s recommendations in its Report on the DSA are implemented. In that Report, the Commission recommends that an independent quality assurance process be established.¹⁸² Under the proposed arrangements, all services will be assessed against a set of revised Disability Services Standards¹⁸³ by an independent panel of service providers and consumers. Services which meet the requisite level of quality service provision will be certified by the Disability Services Quality Assurance Council (DisQAC) for periods of one, two or three years. Under the new arrangements, the Minister will be empowered to fund only those services that are certified by DisQAC.

5.114 New services will have to conform fully with the objects, principles and applications of principles under the DSA in order to qualify for certification by DisQAC. Those non-conforming services which were in existence at the time the DSA came into force will continue to be in transition. However, the Commission recommends the adoption of a two-stage process to replace the current transition process.¹⁸⁴ Under this new system, the Minister will be required to give each service notice of when it will receive transition funding and when it is expected to reach full conformity.

5.115 Stage 1 services, that is, those whose transition funding is not imminent, will be required to prepare a plan demonstrating how the service is meeting identified basic criteria. Stage 2 services are those services whose transition funding is scheduled to be received within 12 months. These will be required to prepare a final transition plan outlining how and when they will achieve full conformity with the DSA.¹⁸⁵ Both Stage 1 and Stage 2 transition plans must be lodged and assessed by DisQAC. If satisfied that a Stage 1 transition plan meets the identified minimum standards, DisQAC may certify a Stage 1 service. A Stage 2 service will be certified if DisQAC is satisfied that the final transition plan will assist the service to reach full conformity and that, until fully implemented, the Stage 2 service is complying as closely as possible with the requirements of the DSA.¹⁸⁶ Certification means the service is eligible to receive funding.¹⁸⁷ All services would be required to undergo annual self-assessments measuring their performance against key quality indicators which DisQAC is to develop in consultation with key stakeholders.

5.116 The effect of these recommendations is to transfer responsibility for determining a service’s eligibility to receive funding from the Minister to an independent body. This has several advantages. It protects the Minister from any potential claim of political interference in decisions relating to eligibility. As the establishment of the accreditation process depends on extensive consultations with all major players in the disability sector and because a key feature of DisQAC will be its independence, the sector will have a sense of ownership of the process. This will maximise credibility in the assessment process from all sections of the disability community. Significantly, it also separates the eligibility decision from the actual funding decision and thus resolves the confusion between the legality/merits of the current appeal provisions.

5.117 A decision to certify or refuse to certify a service is an administrative decision made pursuant to the Act which is likely to affect the interests of persons involved in the service, given the direct link to funding. Consequently, if these recommendations are implemented, the Commission believes that a decision of the DisQAC to certify or refuse to certify a new service or a Stage 1 or Stage 2 transition service should be reviewable by the ADT. A decision that a service has or has not complied with the requirements of the quality assurance process should also be reviewable given the implications that such a decision may have on the funding of a service. This right of review would replace appeals under s 20 and under the CAMA Regulation. Should the Minister decide to fund a service that has not been certified by DisQAC, an application for judicial review may be made to the Supreme Court on the grounds that the Minister acted beyond his or her powers.

Decisions to impose sanctions

5.118 At present, the only sanction available to the Minister is to remove authority to fund a service. This can effectively force the closure of the service to the much greater detriment of service users particularly if there are no alternative services available. It has been submitted that less drastic action needs to be available to the Minister to deal with services that do not comply with the objects, principles and applications of principles under the DSA.¹⁸⁸

5.119 The Commission has considered this issue in its Report on the DSA. In that Report, the Commission recommends that the Minister should be given power to impose a broader range of sanctions against non-conforming services.¹⁸⁹ Where a service does not comply with the legislative requirements of the DSA, the Minister should be able to:

• vary the terms and conditions of funding;
• appoint an administrator;
• stop a service from admitting any more clients;
• name a service in Parliament;
• conduct more frequent monitoring; and/or
• require a person in receipt of an individual funding package to seek help from a service to administer the funds.¹⁹⁰

RECOMMENDATION 49

Section 20 of the DSA and cl 6(1)(b) and (c) and cl 6(2) of the CAMA Regulation should be repealed and replaced by the following.

The DSA should be amended to provide that the following decisions are reviewable by the Administrative Decisions Tribunal:

• a decision by the Disability Services Quality Assurance Council:

- to certify or refuse to certify a Stage 1 or Stage 2 transition service;

- to certify or refuse to certify a new service as conforming with the objects, principles and applications of principles under the DSA; and

- that a service has or has not complied with the requirements of the quality assurance process.

• a decision by the Minister to:

- vary the terms or conditions of funding;

- appoint an administrator for a service;

- stop a service from admitting any more clients; and

- require a person receiving individual funding to seek help from a service to administer the funds.

5.121 A number of submissions suggested that the jurisdiction of the ADT be extended to cover a range of other matters pertaining to the DSA including:

• providing a direct right of appeal to the ADT where a service provider’s conduct in breach of principles and applications of principles under the DSA gives rise to a threat of imminent harm to a person;¹⁹¹
• allowing actions to be brought for breaches of objects, principles and applications of principles under the DSA generally;¹⁹²
• providing a right of appeal in respect of s 9 plans where they are not formulated by the relevant agencies or are not implemented;¹⁹³ and
• providing a cause of action for breach of duty of care or negligence resulting in damage or injury to a person.¹⁹⁴

5.122 Some of these proposals are borne out of serious concerns for the welfare of people who, because of their disability or because they are children in need of care and protection, are a particularly vulnerable group and susceptible to abuse and neglect. Some of these issues have been canvassed in detail in the Commission’s Report on the Review of the DSA.¹⁹⁶ Other proposals are a response to community concerns that the DSA, although it represents a milestone for people with disabilities, needs to be made more enforceable. In its Report on the DSA, the Commission acknowledges these concerns and makes recommendations designed to increase accountability for both specialist government and non-government service providers and government agencies which provide mainstream services.¹⁹⁷

Decisions made pursuant to the Youth and Community Services Act 1973

5.123 Schedule 5 of the Administrative Decisions Legislation Amendment Act 1997 (NSW) transfers jurisdiction under the Youth and Community Services Act 1973 (NSW) from the District Court to the ADT. Under s 3A(2) of the Youth and Community Services Act 1973 (NSW) an owner, occupier or a lessee of premises declared as a residential centre for handicapped persons may apply to the CS Division for a review of that declaration on the ground that:

• a declaration that the premises to which the declaration relates are not being used as a place of residence for two or more handicapped persons; or
• that all handicapped persons residing at those premises reside there with a relative who is of or above the age of 18 but who is not a handicapped person.

5.124 Another concern is that appeals against licensing decisions may only be brought by a licensee. It has been argued that consumers or other people with a genuine concern in the issue of whether a particular person should be licensed to operate a boarding house also should be able to challenge licensing decisions.²⁰² As community welfare legislation is intended to be consumer-focused, and in view of the standing provision which applies in relation to other community service appeals under CAMA, the Commission agrees that appeals should be able to be brought by any persons affected by the decision or any person or body with a genuine concern in the decision under review.

RECOMMENDATION 50

The following decisions under the Youth and Community Services Act 1973 (NSW) should be reviewable by the Community Services Division of the Administrative Decisions Tribunal:

• a decision to refuse to grant a licence to operate a boarding house;
• a decision to impose additional conditions, or revoke or vary existing conditions, on a licence.

Applications for a review of a decision under the Youth and Community Services Act 1973 (NSW) should be able to be brought by any person whose interests are affected by the decision or any person or body with a genuine concern in the decision.

5.125 The requirement to give reasons for administrative decisions is a key element of an administrative review package and a well-established principle of open government. In his Second Reading Speech on the ADT Bill, the Minister said,

An essential element of good administration is the need to ensure that reasons are given for administrative decisions. The supply of reasons with decisions will give people dealing with government departments and agencies an assurance that decisions are made rationally, taking into account only the relevant considerations. This will ensure that decisions can be seen to have been lawfully made and also reduce the likelihood of appeals on the merits of the decision.

The obligation to provide reasons for decisions reached in the exercise of public powers is essential to ensuring accountability. It is likely to cause a decision-maker to consider carefully the grounds upon which a decision is made and ensure that proper process and policies are applied. However, the most important result of requiring reasons to be given for decisions is that it allows an individual affected by a decision to understand the reasons for that decision and therefore arms the individual with the information necessary to seek review and remedies to ensure administrative justice.²⁰³

5.126 Reasons for certain decisions were required by CAMA, long before the ADT Act came into operation. Under CAMA, a relevant decision-maker must record reasons for his or her decision and give a copy of those reasons to each person directly affected by the decision.²⁰⁴ A “relevant decision-maker” includes the Minister for Community Services, Aged Services and Disability Services, the Directors General of ADD and DOCS, the CSC and a service provider.²⁰⁵ A “decision” is defined to include action taken, and recommendations made, by the CSC.²⁰⁶ Decisions by the CSC to decline to entertain a complaint, dismiss a complaint or terminate a complaint would therefore appear to be covered under these provisions.²⁰⁷

5.127 Decisions in respect of which reasons must be given are prescribed in the CAMA Regulation, being:

• all decisions which are reviewable by the ADT, with the exception of decisions of the CSC which are claimed to exceed its powers; decisions of service providers not to implement CSC recommendations following an investigation into a complaint and decisions of the Minister to provide a service or adopt a transition plan which does not comply with the legislative requirements of the DSA;
• any decision of a service provider which is the subject of a complaint to the CSC and in respect of which the CSC has requested reasons; and
• any decision of a service provider which is likely to have a significant impact on the quality or availability of a community service and that directly affects one or more users of the service provided reasons have been requested by or on behalf of an affected person within 28 days of being notified of the decision.²⁰⁸

5.128 The ADT Act requires reasons to be given in respect of all decisions which are reviewable by the Tribunal, with no exception.²⁰⁹ Significantly, the other major difference between the two Acts is that CAMA requires reasons to be given to persons directly affected by a reviewable decision automatically when notice of the decision is given. There is no need for a separate request to be made in respect of reviewable decisions. The ADT Act, on the other hand, requires a request to be made by “an interested person” within 28 days of the notification of a decision.

5.129 Reasons must be given within 28 days of the request²¹⁰ and must set out:

• the findings on material questions of fact, referring to the evidence or other material on which those findings were based;
• the administrator’s understanding of the applicable law; and
• the reasoning processes that led the administrator to the conclusions he or she made.²¹¹

Information about rights and obligations inadequate

5.130 While the benefits of requiring administrators to provide reasons for their decisions is not in question, the CSC has submitted that these benefits have not flowed through to the community services area for a number of reasons.²¹³ In part, it is due to the fact that persons affected by the decision are not informed of their rights of appeal or have a limited capacity to exercise those rights if they are informed. Also, the CSC argued that many service providers may not be aware of their obligations under the Act.²¹⁴

5.131 With the enactment of the ADT Act, it is hoped that administrative practices will change and that administrators will, as a matter of good administration, record reasons for all decisions as each is made. In order to ensure that administrators and service providers comply with the requirements of both CAMA and the ADT Act, there should be a campaign to publicise the obligations on decision-makers and educate them about how to provide adequate statements of reasons. In the absence of a body such as the federal Administrative Review Council, the campaign should be co-ordinated by a central government agency. In the Commission’s view, the preferred agency is the Premier’s Department which has overall responsibility for ensuring good administration across the whole public sector.

5.132 The task of ensuring that relevant persons and organisations are aware of their obligations would be made easier if the legislative provisions were together in the primary legislation. The Commission therefore recommends that clause 10 of the CAMA Regulation be repealed and the decisions prescribed therein be included in CAMA.

Exceptions under CAMA

5.133 Currently, service providers who decide not to implement recommendations of the CSC or to take only part of the action recommended do not have to provide reasons for their decision.²¹⁵ The CSC has submitted that service providers ought to be required to provide reasons for such decisions in order to make them more accountable for their responses to recommendations of the CSC. The CSC submitted:

As a matter of principle, any decision which can be reviewed by the Tribunal should be one which warrants explanation to the parties concerned ... The inclusion of such decisions in the class of decisions which require the giving of reasons would promote a more coherent administrative review framework.²¹⁶

5.135 Even though CAMA does not oblige service providers and administrators to give reasons for certain decisions prescribed in clause 10 of the CAMA Regulation, reasons for such decisions may be requested under the ADT Act, as these are decisions which are reviewable by the Tribunal.²¹⁷ A request may either be made by the applicant or by the Tribunal upon receiving an application for a review of the decision. Given that the purpose of requiring a written statement of reasons is to improve the decision-making process by making it more consistent, open and accountable, it is important that the right to be given reasons covers all decisions which are reviewable by the ADT. The Commission considers that, as a matter of principle, any decision which is reviewable by the ADT should be a decision in respect of which reasons must be given, on request.

RECOMMENDATION 51

Clause 10 of the CAMA Regulation should be repealed.

CAMA should expressly indicate what are the decisions in respect of which reasons should be given, either automatically, or upon request.

5.136 Another key element of an administrative law framework is to ensure that persons affected by an administrative decision are aware of their right 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.²¹⁸ This requirement is now reflected in CAMA.²¹⁹

STANDING

5.137 Standing is a legal term which refers to who is entitled to commence legal proceedings. It has been a highly contested issue in the community services area recently, particularly in relation to challenges against the Minister’s decision to adopt transition plans.²²⁰

5.138 At common law, the test for standing has been interpreted narrowly. A person must either have a private right to commence legal proceedings or have a “special interest” in the subject matter of the action. This interest must be more than a “mere intellectual or emotional concern” and must be an interest beyond that which an ordinary member of the public would have. The person must also stand to win some advantage if the action succeeds “other than righting a wrong”, or risk suffering some detriment, beyond an adverse costs order, if the action fails.²²¹ Generally speaking, financial interests have been given greater weight than non-financial interests.²²²

5.139 In addition, there are various standing provisions under statute. Under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), a “person aggrieved” by a decision, conduct or a failure to decide may apply for judicial review.²²³ A “person aggrieved” is defined to include a person whose interests are affected by the decision.²²⁴ While courts have had regard to the “special interest” test when interpreting the standing provision under the ADJR Act, a more liberal approach has been taken in view of the nature of such actions, namely to ensure that government decisions comply with the law.²²⁵

5.140 Under the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), a person whose interests are affected may seek merits review of an administrative decision.²²⁶ The Act does not define “interests” but it is clearly intended to be a wider provision than the negatively framed “person aggrieved” test under the ADJR Act. Most significant, however, is the AAT Act’s treatment of organisations, which paves the way for groups to bring actions in the public interest. It provides that:

an organisation or association of persons whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association.²²⁷

The standing provision under CAMA

5.141 Under CAMA, applications for a review of a decision may be made by:

• any person with a “genuine concern in the subject matter of the decision concerned” unless the Tribunal finds that the person or body is “unjustifiably interfering”²³⁰ in the matter; and
• any person who is responsible for, or is a next friend of, or is appointed by the Tribunal to represent the person to whom the appeal relates.²³¹

Genuine concern

5.142 The CSAT considered the standing provision under CAMA in two test cases brought by two peak disability groups: People With Disabilities (NSW) Inc (“PWD”) and the New South Wales Council for Intellectual Disability (“CID”).²³⁶ They sought orders to set aside the decision of the Minister to adopt the transition plans for the Dunrossil Challenge Foundation Ltd and the Greystanes Children’s Home on the grounds that the transition plans should not have been approved because they did not comply with the objects, principles and applications of principles in the DSA. At the time of writing, one of these cases is on appeal to the Supreme Court.

5.143 The CSAT made a number of findings. First, it found that there is only one standing provision in the Act. Therefore, the test of “genuine concern” applies to all potential applicants whether they are consumers who are directly affected by the decision or third parties wishing to bring proceedings in the public interest.²³⁷ The CSAT also found that the words “genuine concern” have their ordinary meaning in the context of the legislation and the scope and objects of CAMA. It found that the ordinary meaning is broad, and would cover any matter “which sincerely engages one’s attention or that affects one’s welfare or happiness”. However, the concern must be greater than one which an ordinary member of the public would have.

5.144 Thirdly, the CSAT found that the standing provisions should be given a wide interpretation given the beneficial nature of CAMA (and the DSA under which the decisions under review were made) and the express objects of the legislation. These are framed in terms of providing avenues of appeal and encouraging compliance with community welfare legislation. The CSAT further found that it is not necessary for the applicant to be directly affected by the circumstances complained of. Finally, it found that although they did not represent the views of the service users or their families, PWD and CID represented the interests of the wider disability community to ensure that the requirements of the DSA were being met.

5.145 Drawing on common law principles in relation to public interest litigation, the CSAT concluded that PWD and CID did have a genuine concern in the subject matter of the decisions under review. It found that they had a genuine social justice concern, namely to improve the outcomes for current and prospective users of the services, which was closely related to the Minister’s decision to adopt the transition plans. The objects and activities of PWD and CID demonstrated that they were organisations with a long-standing interest in the welfare of people with an intellectual disability. Also significant was the fact that they receive substantial government funding, are represented on a number of government committees and are clearly capable of representing the public interest.²³⁸

Unjustifiably interfering

5.146 Even where a person or body has been found to have a “genuine concern”, the Tribunal could still find the person or body to be “unjustifiably interfering” and therefore not be entitled to lodge the appeal. In order to determine whether a person or organisation is unjustifiably interfering, the Tribunal must consider the wishes and interests of any other persons who have an interest in the matter.²³⁹

5.147 There was strong opposition to the appeal from the service itself and from parents and service users in Dunrossil. Parents and other family members also opposed the appeal in Greystanes. Clearly a balance needs to be found between the interests and wishes of persons directly affected by the decision and the importance of the public interest in pursuing the matter. To strike the appropriate balance, the CSAT held that when determining whether a person or body is unjustifiably interfering, the following factors need to be taken into account:

• the wishes and interests of persons with an interest in the matter, including the strength and unanimity of the views expressed, the extent to which those views are based on informed choice, and the capacity of those people to bring proceedings themselves; and
• the importance of the public interest in comparison with other interests and wishes.²⁴⁰

Next friend

5.148 Given the relative powerlessness and vulnerability of many consumers of community services, they are unlikely to challenge decisions of government agencies or their service providers themselves. Indeed, many are unlikely to be aware of their rights, let alone be in a position to exercise them. As PWD stated, the community services area is one where:

many consumers ... are unable to make complaints for themselves due to their age, level of disability, fear of a particular provider, restrictive environment, destitution (where survival does not permit the luxury [of] pursuing a complaint) or lack of knowledge about complaint procedures.²⁴²

Because the people who may wish to bring matters before the Tribunal are among the most vulnerable in our society, their interests should be able to be represented before the Tribunal by their family, guardian or a person or organisation who has a direct knowledge of their circumstances or has been asked by the person to act on his or her behalf.²⁴³

Submissions

5.150 A number of submissions to the Commission stressed the importance of a broad standing provision to allow any person or organisation with a genuine concern in the subject matter of the decision to bring an appeal.²⁴⁴ A broad standing provision is essential, it is argued, to:

• allow appeals to be brought by persons and organisations on behalf of people who are directly affected by the decision but who are unable to bring such appeals themselves;
• bring issues to public attention which may not otherwise be brought if the system relied only on individual complaints by persons directly affected by a decision;
• deal with broad systemic issues which may arise from a decision which affects or is likely to affect large numbers of people;²⁴⁵ and
• deal with matters in which there is an important element of public interest.

5.152 However, where an appeal by an organisation is opposed by persons directly affected by the decision sought to be reviewed, some submissions argued that the rights of those persons should have primacy over the public interest.²⁴⁸ Accordingly, it has been suggested that, before allowing a peak consumer or advocacy group to lodge an appeal, the Tribunal should require the group to consult the consumers directly affected by the decision and respect the consumers’ wishes. In its submission, the New South Wales Government proposes that advocacy groups may only lodge appeals at the request of persons directly affected by the decision.²⁴⁹

5.153 In order to remove any ambiguity in the interpretation of the standing provision and thus avoid further litigation on this issue, some submissions favoured amending the legislation to incorporate the CSAT’s decisions in Dunrossil and Greystanes.²⁵⁰ It was suggested that the legislation could be amended to state expressly that when assessing “genuine concern”, the Tribunal should consider the best interests of consumers and the public interest nature of the case.²⁵¹

The Commission’s view

5.154 There is no question that, in light of the limited capacity of many consumers of community services to initiate action, appeals should be able to be brought on their behalf by others with a genuine concern for their welfare. It is also apparent that, in the context of community services, a broad standing provision is appropriate to enable persons or groups to commence legal proceedings in their own right to ensure compliance with the terms of the DSA and other community welfare legislation. The major issue, however, is whether public interest litigation should override private rights. In its most recent report on this issue, the Australian Law Reform Commission states:

in cases involving public and private rights the court must balance the public interest in allowing a person who has no personal stake to commence proceedings against the public interest in avoiding litigation that constitutes an unreasonable interference with the ability of a person having a private interest in the matter to deal with it differently or not at all.²⁵²

The fact that other people whose private rights are affected by the decision, oppose the appeal is relevant to the question of unjustifiable interference but does not override the “genuine concerns” of others.²⁵³

RECOMMENDATION 52

Section 41 relating to standing should remain unchanged.

PROCEDURE

5.156 The procedure of the CSAT was governed by Part 5 of CAMA. This Part has been substantially repealed since the transfer of jurisdiction from the CSAT to the CS Division of the ADT. However, some procedural provisions remain. These continue to apply specifically to the CS Division together with the procedural provisions of the ADT Act which apply generally across each of the Divisions.

5.157 In the Commission’s view, having provisions relating to the powers and procedures of the Tribunal in two separate pieces of legislation is unduly confusing. It also involves unnecessary duplication and can give rise to inconsistency. The Commission, therefore, recommends that all provisions of CAMA relating to the powers and procedures of the CS Division be transferred to a Schedule to the ADT Act.²⁵⁵ Recommendations relating to specific provisions are made below.

RECOMMENDATION 53

All provisions in CAMA relating to the powers and procedures of the Community Services Division of the Administrative Decisions Tribunal should be transferred to a Schedule to the Administrative Decisions Tribunal Act 1997 (NSW).

5.158 A primary object of CAMA is to provide an independent and accessible mechanism for the review of administrative decisions. When first established, a hallmark of the CSAT was to be its informality.²⁵⁶ The intention was to make it accessible, particularly to consumers of community services, who are generally alienated and intimidated by the formal and legalistic processes of courts. This continues to be a vital goal.²⁵⁷

5.159 The CSAT had, under Part 5, a broad discretion to develop its own procedures appropriate to its client group and the nature of the cases it would be reviewing.²⁵⁸ Mindful of this, the CSAT developed a set of procedures designed to be informal and to encourage maximum participation without compromising fairness and justice to the parties.²⁵⁹ One submission to the Commission expressed its satisfaction with the strategies used by the CSAT to ensure access:

Burnside’s experiences with the [CSAT], mainly through our foster care service, have been positive. The Tribunal staff have made every effort to work with the agency and young people to keep them fully informed and involved in the decision making process.²⁶⁰

Those services affected by [appeals against transition plans] noted the legalistic aspects of the process and commented on the enormous costs for them to have to hire lawyers, find “expert” witnesses and divert attention away from service delivery.²⁶¹

5.160 There has been some concern that the transfer of jurisdiction from the CSAT to the ADT may lead to the adoption of more formal adversarial procedures.²⁶² This concern has some basis given the criticisms made of the federal AAT, that despite legislative prescription for informality and flexibility, its hearings are claimed to have become formal and adversarial.²⁶³ Indeed, in her last annual report, the President of the CSAT said that one of the challenges facing her was to ensure that the informal atmosphere and non-legalistic manner, which characterised proceedings before the former CSAT, continue under the ADT.²⁶⁴

Commitment to flexibility and informality

5.161 Although the ADT Act does not dispense with traditional formal adversarial procedures altogether, it does emphasise the importance of giving the Tribunal flexibility and a range of procedural options so that it may operate in a manner appropriate to the particular matters that come before it. The Tribunal is intended to proceed with as little formality and technicality and as much expedition as is appropriate for each matter before it.²⁶⁵ To facilitate this, the ADT Act gives the Tribunal a wide discretion to determine its own procedure and to inform itself as it thinks fit, subject to the rules of natural justice. It is not bound by rules of evidence.²⁶⁶

Procedures may differ between Divisions

5.162 Significantly, the ADT Act acknowledges that procedures may justifiably differ between Divisions and even within Divisions depending on the nature of matters before it. In his Second Reading Speech, the Attorney General stated:

The range of matters which may arise before the [ADT], both in subject matter and degree of difficulty, requires that the tribunal has considerable flexibility in its composition and procedures. The tribunal will have a discretion to adapt its procedures to the circumstances of the application before it. It is important that the [ADT] be both accessible and flexible.²⁶⁷

5.163 The ADT Act provides for the establishment of a Rule Committee composed of the President, each Divisional Head and other Tribunal members, and other persons as appointed by the Minister.²⁶⁸ The function of the Committee is to make rules “as flexible and informal as possible”.²⁶⁹ It may make different rules for each of the Divisions and for different classes of matters.²⁷⁰ Rules for each of the Divisions can only be made on the recommendation of Sub-committees to be established within each of the Divisions.²⁷¹

5.164 Uniquely, the Act provides for community representation on Sub-committees²⁷² and requires public consultation on draft rules prior to approval²⁷³ in order to ensure that “the procedures do not become stultified.”²⁷⁴ This approach is supported by People With Disabilities (NSW) Inc which advocated that:

It is crucial that in establishing procedures for its operation, the Tribunal consults widely with consumers of community services, and their representative groups, so as to ensure that they are appropriate and adapted to the needs of its constituency.²⁷⁵

Conduct of proceedings

5.166 The ADT is encouraged to take an active and interventionist approach in the conduct of proceedings.²⁷⁷ For example, the Tribunal can of its own motion require the government agency to produce relevant documents.²⁷⁸ It can also summons witnesses to give evidence and produce documents.²⁷⁹ The Tribunal is not confined to the material that lay before the original decision-maker. It may also take into consideration all new relevant information that becomes available.²⁸⁰

5.167 In some instances, the ADT Act requires, rather than merely permits, the Tribunal to take a more interventionist approach. For instance, the Tribunal must act as quickly as possible and ensure that all relevant material is disclosed so that it can determine all the relevant facts.²⁸¹ To achieve this, the Act gives the Tribunal power to call, examine and cross-examine witnesses itself.²⁸²

5.168 The ADT Act also places an express obligation on the ADT to take such steps as are reasonably practicable to ensure that the parties understand the legal implications of the assertions made in the proceedings, explain any aspect of the procedure if requested, and to ensure that the parties have the fullest opportunity to have their submissions heard.²⁸³ It has been suggested that the introduction of these mandatory obligations will mean that the ADT will be more inquisitorial than previous tribunals and that this will reduce delays and assist unrepresented litigants.²⁸⁴

5.169 This approach is consistent with the practice of the CSAT, which among other things, often commissioned its own expert evidence, called its own witnesses and adopted strategies to ensure that those with a direct interest in proceedings were consulted.²⁸⁵ This approach is also supported in submissions received by the Commission.²⁸⁶ The Multiple Sclerosis Society, for example, submitted:

Rather than following the traditional model of judicial hearings, appeals and complaints should be shaped around the European model in which the Tribunal would play a more active role in seeking evidence and resolving the substance of the issue at hand.²⁸⁷

5.170 The Tribunal is also encouraged to take a more active approach in the early stages of a matter. For example, preliminary conferences are to be held with the parties to narrow the issues in dispute and to identify what documents or information is required.²⁸⁸ Members and assessors who conduct the preliminary conferences are able to make determinations by agreement.²⁸⁹ Where proceedings are pending, assessors may be appointed to conduct an inquiry into an issue raised in proceedings, with the consent of the parties.²⁹⁰ The intention of these procedures is, as one commentator notes:

to permit incremental decision-making, with as many issues as possible being resolved along the way, whether or not this avoids a final determination by the Tribunal.²⁹¹

Should procedural issues be determined by a legal member sitting alone?

5.172 It is not clear whether the ADT Act permits a member sitting alone to determine procedural matters. The Act provides that “the Tribunal” may determine issues such as whether to grant leave to allow a party to lodge a late application and may appoint a separate representative for a person.²⁹⁵ Under the ADT Act, applications under s 40 of CAMA must be determined by three Division members, one of whom must be legally qualified.²⁹⁶ This presumably applies to any preliminary matters that may arise in the application.

5.173 In practice, however, it is likely that a number of procedural matters will be resolved on the basis of written submissions prior to any substantive hearing either at a directions hearing or a preliminary conference. Directions hearings may be held by a judicial member sitting alone or, with authority, by the Registrar or Deputy Registrar.²⁹⁷ Preliminary conferences are also generally conducted by one member (or an assessor).²⁹⁸ In the Commission’s view, it is unnecessary, costly and time-consuming to convene a three-member panel to determine preliminary issues.²⁹⁹ In order to promote efficient practice, the Commission believes such matters should be decided early in proceedings and prior to the actual hearing and should be able to be determined by a legally qualified member sitting alone.

RECOMMENDATION 54

The ADT Act should be amended to allow a legally qualified member sitting alone to determine procedural matters prior to the actual hearing.

Late applications

5.174 Applications for a review of a decision under the ADT Act must be brought within 28 days of the day on which an internal review is taken to have been finalised.³⁰⁰ Late applications may be accepted if the Tribunal is satisfied that the person wishing to make an application for a review of a decision has provided a reasonable explanation for the delay.³⁰¹ This provision gives the Tribunal a wide discretion to allow a late application after consideration of all the relevant circumstances. This flexibility is highly desirable in view of the nature of appeals under CAMA and the barriers faced by persons likely to be affected by such decisions, including ill-health, lack of awareness of their appeal rights³⁰² and intimidation.³⁰³ As the CSAT stated in a preliminary decision in the Greystanes matter:

CAMA is beneficial legislation. A discretion to grant leave to lodge out of time should be exercised liberally with the object of allowing the Tribunal to do justice between the parties.³⁰⁴

Parties to proceedings

5.176 The issue of who are appropriate parties to proceedings was previously governed by s 42 of CAMA. Apart from the applicant and the decision-maker, CAMA provided that parties to proceedings may also include any person with a genuine concern in the subject matter of the decision under review and any person who would be entitled to appeal if the decision were reversed or varied by the Tribunal.³⁰⁵ There was no need for the CSAT to make orders to this effect. The purpose of s 42(1)(d) was evidently to ensure that any person who was entitled to bring proceedings under CAMA could appeal to the Supreme Court against the CSAT’s decision. Effectively, it allowed a person who did not participate in the original proceedings to bring an appeal against the CSAT’s decision.

5.177 The difficulties posed by this wide definition of parties has been addressed by s 67 of the ADT Act which replaces s 42 of CAMA. Under the ADT Act, parties to proceedings for a review of a reviewable decision are:

• the applicant (provided he or she is entitled to make an application for review of a reviewable decision);
• the administrator who made the original decision;
• the Attorney General, if he or she decides to intervene under s 69;
• any other person whose interests are affected or are likely to be affected by the decision under review and who is made a party by the Tribunal on this basis;³⁰⁶ and
• any other person specified under any enactment as a party.³⁰⁷

Representative actions

5.178 Representative actions are a recognised tool for improving access to the legal system. They allow one person from a group of persons with a common interest to lodge an action which, if the group were required to act as individuals, might not be feasible or as effective. They can also significantly redress power imbalances between individual applicants and government agencies.³⁰⁸ Representative actions, in varying forms, have been provided for in the rules of all superior Australian courts.³⁰⁹ Interestingly, however, the ADT Act makes no provision for representative actions. Notwithstanding this significant omission, the representative action procedure in CAMA has been retained. In line with the recommendations made above, the representative action procedure should be removed from CAMA and transferred to the ADT Act.

Representative action procedure under CAMA

5.179 CAMA allows the Tribunal to deal with an application as a representative application where:

• three or more persons are entitled to apply for a review of a decision arising from the same, similar or related circumstances as those to which the application relates;
• the applicant is one of those persons and the others consent to a representative application;
• the application is made in good faith;
• the applicant is capable of adequately advocating the interests of persons entitled to apply for a review;
• a representative application would be to the advantage of persons entitled to apply for a review; and
• a representative application would be an efficient and effective means of dealing with the claims of the persons entitled to apply for a review.³¹⁰

The Commission’s report on the Anti-Discrimination Act 1977

5.180 The time frame for this review has not permitted a detailed examination of the representative action procedure under CAMA. However, the issue of representative actions is discussed comprehensively in the Commission’s forthcoming report on the Review of the Anti-Discrimination Act 1977 (NSW). In that report, the Commission discusses the model representative procedure under Part IV of the Federal Court Act 1976 (Cth) and recommends, among other things, that a new procedure modelled upon that which applies in the Federal Court replace the current representative action procedure in the Equal Opportunity Division of the ADT. Those recommendations may also be relevant to the representative procedure which applies to the CS Division.

RECOMMENDATION 55

Section 42 of CAMA should be repealed and incorporated in a Schedule to the Administrative Decisions Tribunal Act 1997 (NSW) which deals with the powers and procedures of the Community Services Division.

Consideration should be given to the recommendations of the Commission in its forthcoming Report on the Review of the Anti-Discrimination Act 1977 (NSW) for the adoption of the representative procedure as contained in Part IV of the Federal Court Act 1976 (Cth).

5.181 The ADT Act places a focus on resolving disputes by alternative dispute resolution methods. This is consistent with one of the objects of CAMA, namely, to encourage the resolution of complaints through alternative dispute resolution.³¹² If the Tribunal considers the circumstances appropriate, and the parties agree, the Tribunal may refer a matter to mediation or neutral evaluation.³¹³ Participation is voluntary and the parties may withdraw at any time.³¹⁴ The Tribunal may make orders to give effect to any agreement reached between the parties but only if it is satisfied that the agreement is in the best interests of the person whose interests the Tribunal considers paramount.³¹⁵ The power to refer a matter to mediation or neutral evaluation is additional to the powers of the Tribunal, under CAMA, to take whatever steps are appropriate to encourage parties to reach an amicable settlement.³¹⁶ It may refer the matter to the service provider (for resolution at the local level), to the CSC for investigation or to another appropriate body.³¹⁷

5.182 The focus on alternative dispute resolution is part of an increasing trend across several jurisdictions.³¹⁸ However, its use in child welfare matters, which constitute the majority of appeals brought to the CS Division, has been quite limited. Alternative dispute resolution methods are not always appropriate, particularly where there is a significant power imbalance between the parties or where there are allegations of child abuse.³¹⁹ This tends to be the case in administrative law. Proceedings are generally brought by an individual against a government agency which is, by its nature, invariably in a more powerful position. This power imbalance is exacerbated if the applicant is unrepresented. Further, although alternative dispute resolution methods may be a more timely and economical option than fully contested hearings and may allow the parties to develop innovative solutions and take control over the outcome, important issues of general law or policy that may arise are likely to remain unresolved.

5.183 Submissions received by the Commission on this issue generally supported the use of alternative dispute resolution to resolve complaints provided it remains voluntary.³²⁰ In particular, it was argued that alternative dispute resolution should not become a prerequisite step in the process of resolving a matter.³²¹ Consistent with the recommendations above,³²² the Commission considers that the CAMA provisions on alternative dispute resolution should be repealed and incorporated in the ADT Act so that all the procedural provisions relating to the CS Division are located together.

Recommendation 56

Section 43 of CAMA should be repealed and incorporated in a Schedule to the Administrative Decisions Tribunal Act 1997 (NSW) which deals with the powers and procedures of the Community Services Division.

5.184 Section 44(1) of CAMA provides that the Tribunal may decline to hear or determine an application if:

(a) the applicant has available an alternative and satisfactory means of redress, or

(b) the applicant has not made appropriate attempts to have the matter to which the application relates resolved otherwise, or

(c) the ground for the application is unacceptable having regard to the frequency of applications previously made ... in respect of the same subject-matter.

5.185 Some of these matters are also dealt with in the ADT Act. Where, for example, decisions may be the subject of an investigation by the Ombudsman under the Ombudsman Act 1974 (NSW), the ADT Act provides that the Tribunal and the Ombudsman may make arrangements for the transfer of matters between them.³²⁴ In matters arising under community services legislation, the Tribunal may, before it hears an application or before it determines the application, refer the matter to:

• the service provider for local level resolution;
• the CSC for alternative dispute resolution or investigation; or
• any other appropriate body for investigation.³²⁵

5.186 Likewise, s 44(1)(a) and (b) seem to duplicate similar provisions contained in the ADT Act. Section 44(1)(b) appears to deal with internal review. Generally, the ADT Act provides that an application for a review of a reviewable decision may only be brought after an internal review has taken place.³²⁶ Section 44(1)(c) is similar to the power of the Tribunal under the ADT Act to dismiss proceedings which it considers to be vexatious.³²⁷ Duplication is both unnecessary and can be confusing particularly if the provision in CAMA is taken to be a guide to determine when an application may be declined by the Tribunal under the ADT Act. For these reasons, the Commission believes that s 44(1) should be repealed.

RECOMMENDATION 57

Section 44(1) of CAMA should be repealed.

5.187 When determining an application, the Tribunal may make recommendations for the Minister’s consideration. If it does so, CAMA imposes a statutory duty on the Minister to inform the parties of any action that is taken in relation to any recommendations or that no action is proposed to be taken.³²⁸ There is no similar provision in the ADT Act.

5.188 This is an unusual provision in that it places an obligation on the Minister not only to consider the Tribunal’s recommendations but to advise the parties of his or her decision as to whether to implement the recommendations. The nature of the jurisdiction and the fact that the Tribunal is required to be constituted by persons with expertise and knowledge in community services³²⁹ has persuaded the Commission that the provision is not unreasonable. Consistent with previous recommendations to incorporate all provisions relating to the powers and procedures of the Tribunal in the one Act, the Commission recommends that s 44(2) be transferred to the ADT Act.

RECOMMENDATION 58

Section 44(2) of CAMA should be repealed and incorporated in a Schedule to the Administrative Decisions Tribunal Act 1997 (NSW) which deals with the powers and procedures of the Community Services Division.

5.189 It is sometimes considered that lawyers have a propensity to make proceedings more formal and protracted. Trained in courtroom procedures, they are often blamed for adopting legalistic and adversarial devices. Also, only the more wealthy are likely to have the resources to engage lawyers. Consumers of community services are unlikely to have such resources and are also unlikely to be able to obtain legal aid in view of successive cutbacks to legal aid funding. The power imbalance generally inherent between the individual applicant and the government agency whose decision is under review is thus exacerbated. For these reasons, it has been the practice in some tribunals not to allow legal representation as of right.³³⁰

5.190 This remains the case under CAMA,³³¹ despite the general provision in the ADT Act which entitles parties to be represented by an agent, which would appear to include lawyers.³³² However, the Tribunal may prohibit representation by “an agent of a particular class” in relation to the presentation of oral submissions.³³³ The purpose of this power appears to be an attempt to minimise potential power imbalances and to ensure hearings are not overly protracted by minimising oral arguments.³³⁴

5.191 The Government clearly intended representation to continue by leave only in the CS Division. This is supported by submissions received on this issue.³³⁵ The Commission accepts that this approach is appropriate, but recommends that the section (amended as recommended below) be removed from CAMA and incorporated in the ADT Act.

Recommendation 59

Section 45 of CAMA should be repealed and incorporated in a Schedule to the Administrative Decisions Tribunal Act 1997 (NSW) which deals with the powers and procedures of the Community Services Division.

Guardian ad litem

5.192 Under the ADT Act, the Tribunal may appoint a person to represent an incapacitated person, defined to be a minor or any person who is totally or partially incapable of representing himself or herself in the proceedings.³³⁶ This provision is comparable to the power of the Tribunal, under CAMA, to appoint a person to act as a “guardian ad litem”³³⁷ for a prescribed person who is directly or significantly affected by proceedings before it.³³⁸ A prescribed person is defined in the CAMA Regulation as a person with a disability or of an advanced age who requires supervision or “social habilitation” and who is unable to represent himself or herself in proceedings at the Tribunal.³³⁹

5.193 In proceedings involving children, it has been the practice of the CSAT to appoint an advocate whose role is to support the child during proceedings or participate in proceedings on behalf of the child if the child is unable or unwilling to attend or participate directly. Advocates have been drawn from SNYPIC, voluntary child care and protection agencies; specialist workers from Legal Aid and individual professionals selected on account of their skills and experience working with children in the substitute care system.³⁴⁰ The practice of appointing guardians ad litem for children and people with disabilities who cannot speak for themselves is supported very strongly in submissions which addressed the issue.³⁴¹

5.194 It is vital that the views and wishes of children and persons with disabilities, who are often at the centre of proceedings before the CS Division, are heard and considered by the Tribunal in order to ensure that the Tribunal makes its decision based on all the relevant material. While the intent of both provisions appears to be the same, the fact that they are framed somewhat differently raises issues of potential inconsistency and is confusing to parties. Further, the language used in the CAMA Regulation could be interpreted as being unnecessarily paternalistic and antiquated. Therefore the Commission recommends that the provision in CAMA and the associated Regulation be repealed and be effectively replaced by s 71 of the ADT Act.

Recommendation 60

Section 45(3) of CAMA and cl 7 of the CAMA Regulation should be repealed and be effectively replaced by s 71 of the Administrative Decisions Tribunal Act 1997 (NSW).

5.195 There appears to be some inconsistency in the ADT Act in relation to provisions about the publication of names. Section 126 provides that a person must not, without the consent of the Tribunal, publish or broadcast the name of any party, witness or person involved in proceedings. This provision, however, does not prevent the publication of an official report, including the names of persons. Section 75, on the other hand, provides that hearings are to be open to the public subject to an order of the Tribunal prohibiting or restricting the publication of names and addresses of witnesses appearing before it.³⁴² These provisions mirror those which previously applied under CAMA.³⁴³

5.196 Section 126 of the ADT Act is very broad. It can operate to prevent the publication of the name of a service provider involved in proceedings and even the name of the Minister or Director General who made the decision under review. It has been submitted that while it is appropriate for the names of vulnerable persons (including children and people with disabilities) involved in proceedings to be suppressed, protection should not automatically extend to parents, service providers, and certainly not government decision-makers unless publishing or broadcasting their names would be likely to reveal the identity of a child.³⁴⁴

5.197 Ordinarily, a non-publication order would be made by a Tribunal upon the application of a party. In this case, as in matters under the Family Law Act 1975 (Cth),³⁴⁵ non-publication is the rule, subject to release by the Tribunal. In light of the personal nature of many matters brought under community welfare legislation, particularly under child protection laws, and the vulnerability of persons within its jurisdiction, the Commission is satisfied that s 126 is appropriate in its application to matters heard by the CS Division. However, it is not generally appropriate in other matters heard by the Tribunal. Section 126 appears to have been imported from CAMA for application in community service matters. However, it conflicts with section 75 which was probably intended to apply to all other matters. The Commission therefore believes that section 126 should be confined to community services matters.

Recommendation 61

Section 126 of the ADT Act should be confined in its application to community service matters.

Duplication of provisions

5.198 Both CAMA and the ADT Act contain similar provisions in relation to the powers of the Tribunal to award costs. Under CAMA, the Tribunal may make orders in relation to the payment of costs where it thinks it appropriate to do so.³⁴⁶ Under the general provisions of the ADT Act, the Tribunal may only award costs where there are “special circumstances” warranting such an award.³⁴⁷

5.199 Generally, the rule in most Australian courts is that costs follow the event, that is, the costs of the successful litigant are paid by the unsuccessful party.³⁴⁸ The costs indemnity rule has been displaced in a number of jurisdictions, including the Family Court and in matters heard by the ADT under the Anti-Discrimination Act 1977 (NSW) because it is considered to act as a deterrent to bringing or defending an action in court.³⁴⁹ Just paying one’s own costs is seen as a sufficient barrier to the inappropriate use of the justice system.³⁵⁰ While neither CAMA nor the ADT Act, in relation to community services matters, expressly displace this general rule, both statutes stipulate that costs orders should only be made where the Tribunal thinks it is appropriate to do so in the particular circumstances of the case before it or where there are special circumstances warranting an award of costs.

5.200 The ADT Act also provides that the Tribunal must not award costs unless the power to do so is conferred by the principal Act under which proceedings are brought.³⁵¹ However, this is confined to proceedings for an original decision and consequently has no application in the CS Division. There is therefore no reason for separate provision to be made in CAMA. Further, leaving the provision in CAMA gives rise to unnecessary duplication and may cause confusion. In view of this, the costs provision in CAMA should be repealed, rather than transferred to the ADT Act as the Commission recommends in respect of other procedural provisions. The general provision in the ADT Act would therefore apply to the CS Division.

RECOMMENDATION 62

Section 46 of CAMA should be repealed.

Criteria to determine “special circumstances”

5.201 The ADT Act does not provide any guidance in relation to what criteria the Tribunal should take into account when determining whether there are “special circumstances” which would warrant an award of costs. Yet, some guidance may be both beneficial and desirable, in terms of making the exercise of the Tribunal’s discretion more transparent. This issue is discussed in more detail in the Commission’s forthcoming report on the review of the Anti-Discrimination Act 1977 (NSW).

5.202 In that Report, the Commission recommends that the following criteria should guide the Equal Opportunity Division (the “EO Division”) of the ADT when determining whether to make an order for costs:³⁵²

• whether any important public policy considerations were raised;
• the behaviour of the parties during the inquiry process;
• whether the complaint was pursued in a genuine belief that it had merit;
• whether the matter was dismissed on the basis that it was frivolous or vexatious;
• whether the matter is brought to enforce a previous order of the Tribunal; and
• the registration of any written offers of settlement.

5.203 The general criteria, with the exception of the last two, appear to be equally applicable to applications brought to the CS Division. The general approach recommended also appears appropriate. Accordingly, when determining whether there are special circumstances warranting an award of costs, the CS Division should take into account the following factors.

RECOMMENDATION 63

In determining whether the circumstances of the case justify the making of a costs order under s 88 of the ADT Act, the CS Division should consider:

• whether any important public policy considerations were raised;
• the behaviour of the parties during the inquiry process;
• whether the complaint was pursued in a genuine belief that it had merit; and
• whether the matter was dismissed on the basis that it was frivolous or vexatious.

REVIEW STRUCTURE

5.204 The ADT is a two-tier structure. The majority of the work of the Tribunal is in the first tier where it exercises its original or review jurisdiction. This tier is divided into several Divisions as outlined previously.³⁵³ The second tier is quite an innovation in an administrative tribunal. It is where the Tribunal has jurisdiction to hear internal appeals from decisions made at Divisional level. Apart from these two internal tiers, the ADT Act requires an internal review to have been conducted at the local level before an application for a review of a reviewable decision is made. At the other end of the spectrum, the ADT Act provides a further right of appeal from a decision of the Appeal Panel to the Supreme Court on questions of law.

Internal review

5.205 An internal review by the original decision-maker is a prerequisite to bringing an application to the Tribunal for a review of a reviewable decision.³⁵⁴ This requirement is common in many areas of administrative law, particularly at the federal level.³⁵⁵ The process for internal reviews is governed by s 53 of the ADT Act. It provides that a person other than the person who made the original decision should deal with the application for a review. Within 14 days of the completion of an internal review, the administrator must notify the applicant of the outcome of the review, the reasons for the decision and their rights to have the decision reviewed by the Tribunal.

5.206 Advantages of internal review include that it is quick and easily accessible to persons who would not otherwise pursue external review mechanisms. It is also a very useful quality control mechanism for the agency whose decision is under review. It is a way for the agency to receive feedback on its decision-making processes and for that agency to implement mechanisms to improve those processes. Internal review has also been shown to be an effective filter in some jurisdictions in reducing the number of appeals to external review tribunals.³⁵⁶ However, internal review also has its disadvantages. It can lead to lengthy delays and possible capture by the predominant agency culture resulting in little if any change to the original decision. It also raises concerns about the consistent and equitable treatment of applicants seeking review.³⁵⁷

5.207 Provided there are checks on the process and applicants may seek leave to apply directly to the Tribunal in special circumstances,³⁵⁸ the Commission is satisfied that a process for internal review is appropriate. It is consistent with the object of CAMA to encourage, wherever practicable, resolution at the local level.³⁵⁹

Appeals to the Appeal Panel of the ADT

5.208 Chapter 7 of the ADT Act provides for the internal review of an “appealable decision” by the Appeal Panel of the ADT constituted by at least three members of the Tribunal.³⁶⁰ The Appeal Panel is not a permanent body, but a rotating one. An appealable decision is a decision of a Division, either in the exercise of its original or review jurisdiction. It also includes decisions of the Tribunal that a person is not entitled to apply for a review of a reviewable decision; an order that a person may not be represented by an agent of a particular class; or a decision refusing an application by a person to be made a party to proceedings.³⁶¹

5.209 Appeals to the Appeal Panel may only be brought by a party to the proceedings in which the appealable decision was made. Although one might expect that such appeals would be available on the merits, the Act provides that appeals are to be made only on questions of law. The Appeal Panel may, however, grant permission to extend the appeal to a review of the merits of the appealable decision,³⁶² which is what most appellants will probably want.³⁶³

Appeals to the Supreme Court

5.210 Appeals are available, on questions of law alone, to the Supreme Court but only after an internal appeal has been heard in respect of the matter by the Appeal Panel.³⁶⁴ Leave can be sought, however, from the Supreme Court to hear an appeal notwithstanding that the applicant has not exhausted the internal appeal mechanism. These provisions have created an extra step in the appeals process than that which existed under CAMA. Under CAMA, appeals from decisions of the CSAT on questions of law could be made directly to the Supreme Court.³⁶⁵

GOVERNMENT POLICY

5.211 Section 64 of the ADT Act specifically provides that the Tribunal is to give effect to government policy except to the extent that the policy is unlawful or would produce an unjust decision in the circumstances of the case. Evidence of government policy may be provided by ministerial certificate. Effectively, s 64 codifies the practice of the federal AAT, which has generally adopted a cautious approach in relation to its consideration and application of relevant government policy. There is no express statutory obligation on the AAT to apply government policy. However, the AAT accepts the importance of consistency in decision-making and to that end will apply any relevant government policy unless it is unlawful or creates an unjust result in the circumstances of the particular case before it.³⁶⁶

5.212 The AAT also acknowledges the significant role that Parliament plays in the supervision of policy. In one of the leading cases, Justice Brennan (as he then was) warned against departing from stated government policy without justifiable reasons:

If the Tribunal, in reviewing a decision made in pursuit of a lawful administrative policy, consciously departed from that policy, it would nullify not only the policy made by the repository of the discretionary power, but also any mechanism of surveillance which the relevant statute permits or provides. To depart from Ministerial policy thus denies to Parliament its ability to supervise the content of the policy guiding the discretion which Parliament created. On some occasions, reasons may be shown to warrant departure from Ministerial policy; for example, where the intervention of new circumstances has clearly made a policy statement obsolete. But in general, it would be manifestly imprudent for the Tribunal to override a Ministerial policy and to adopt a general administrative policy of its own.³⁶⁷

Appropriateness of s 64

5.213 There are concerns that a statutory requirement that review tribunals implement government policy will change the objective of merits review from ensuring that all decisions of government are correct and preferable to ensuring that the agency’s decision is lawful and not unreasonable.³⁶⁹

5.214 If the original decision-maker has made a decision based on government policy, it is essential that the review tribunal, when reviewing that decision, take into consideration all the relevant considerations, including current government policy. In the Commission’s view, section 64 does not preclude the ADT from making an independent assessment of all the relevant circumstances, nor of assessing the lawfulness of the government policy and its applicability to the circumstances of the particular case before it. Rather, as Justice Brennan states:

The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.³⁷⁰

5.215 Section 64 of the ADT Act differs in significant respects from the equivalent provision in CAMA. Section 5 of CAMA provides that decisions made under it must not be made in a way that is inconsistent with government policy or that would have resource implications.³⁷¹ This provision clearly applied to the former CSAT, which was established under CAMA. In view of the fact that the CSAT has been reconstituted as the CS Division of the ADT and now exercises most of its powers and functions under the ADT Act, the CS Division is probably no longer bound by s 5 of CAMA. However, as it is preferable for the Acts to be consistent, the Commission recommends that s 5 of CAMA be repealed.³⁷²

RECOMMENDATION 64

Section 5 of CAMA should be repealed. (see Rec 3)

FOOTNOTES

1. M Allars, Introduction to Australian Administrative Law (Butterworths, Sydney, 1990) Ch 7 generally; and Better Decisions Report at para 2.2-2.3.

2. Minister for Immigration v Pochi (1980) 31 ALR 666 at 671 per Smithers J.

3. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J. See also Better Decisions Report at para 2.9.

4. The legality of an administrative decision is generally determined by the application of two broad common law doctrines, the first is whether the decision-maker acted beyond his or her powers or jurisdiction and the second relates to whether the process of decision-making was fair: M Allars, Introduction to Australian Administrative Law (Butterworths, Sydney, 1990) at 161 and Ch 5 and 6 generally on the principles of judicial review. A court exercising judicial review may not generally consider the merits of the decision and cannot, like a merits review tribunal, substitute its own decision for the decision under review. It may, instead, quash the original decision or refer it back to the decision-maker for reconsideration. However, the line between the legality and the merits of a decision is not always distinct: see Allars at 162-163.

5. Administrative Appeals Tribunal Act 1975 (Cth) commenced operation in 1976.

6. Administrative Appeals Tribunal Act 1984 (Vic).

7. The creation of the ADT is the culmination of a number of reports and recommendations over the last 20 years, beginning in 1973 with the New South Wales Law Reform Commission, Appeals in Administration (Report 16, 1972) suggesting the development of a centralised system of tribunals and administrative appeals: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11278. See also L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 1.

8. See, for example, Victorian Civil and Administrative Tribunal, which commenced operation in July 1998, replacing the Victorian Administrative Appeals Tribunal. See also: Better Decisions Report at Ch 8 where the Administrative Review Council recommends the amalgamation of various specialist review tribunals and the Administrative Appeals Tribunal (AAT) into a new Administrative Review Tribunal; and K O’Connor, “Administrative Decisions Tribunal: An Early Report”, paper presented at the PIAC Open Government Conference (Sydney 10 February 1999) at 8.

9. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11281.

10. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11281.

11. ADT Act s 36-38. See also ADT Act Ch 4 and 5.

12. ADT Act s 42 and 55.

13. ADT Act s 19, 20 and Sch 2. In the Second Reading Speech introducing the Bill to Parliament, the Attorney General stated: “The Tribunal will operate in different divisions and it will be possible for the divisions to operate relatively autonomously, with different rules and procedures which are appropriate to the functions exercised by each division. Even within divisions, the rules and procedures may vary depending on the nature of the particular matter before the Tribunal.” (New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280-11281.)

14. The Occupational Regulation Division was added by the Administrative Decisions Tribunal Legislation Further Amendment Act 1998 (NSW), although the schedule introducing this Division has not yet commenced. The Retail Leases Division was added by the Retail Leases Amendment Act 1998 (NSW).

15. These issues are discussed at para 5.156-5.203.

16. CSAT, Submission at 4; Physical Disability Council of NSW Inc, Submission at 16; NCOSS, CAMA Submission at 13; Disability Assistance for Shoalhaven Inc, Submission at 3; K and J Clifton, Submission at 3; The Northcott Society, Submission at 3.

17. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 584-585; and Re Lavery and Registrar of the Supreme Court of Queensland (No. 2) (1996) 43 ALD 13 at 17-18.

18. F Cameron, “NSW ADT: Scope for Inquisitorial Procedures in New Administrative Decisions Tribunal” (1997) 35 (7) Law Society Journal 41 at 43.

19. Better Decisions Report at para 4.5.

20. Better Decisions Report at para 2.31. See also Action for Citizens with Disabilities, Submission at 17.

21. J Anderson, “Something Old, Something New, Something Borrowed ... The New South Wales Administrative Appeals Tribunal” (1998) 5 Australian Journal of Administrative Law 97 at 112.

22. See para 5.26.

23. See IP 15 at para 5.3.

24. ADT Act s 26.

25. CSAT, Submission at 4.

26. ADT Act Sch 2 cl 1.

27. ADT Act s 12.

28. ADT Act s 13.

29. ADT Act s 17.

30. ADT Act Sch 2 cl 1.

31. See para 5.26.

32. ADT Act Sch 5 cl 4(2).

33. New South Wales, Community Services Appeals Tribunal, Annual Report 1997-98 at 17-19.

34. Better Decisions Report at para 4.5. See also S Kenny, “Review of Commonwealth Merits Review Tribunals” (1996) 7(2) Public Law Review 69 at 71.

35. CSAT, Submission at 6.

36. Autism Association of NSW, Submission at 14.

37. Autism Association of NSW, Submission at 14; The Northcott Society, Submission at 3; Action for Citizens with Disabilities, Submission at 17; and Burnside, Submission at 5. See also para 3.24.

38. ADT Act Sch 2.

39. ADT Act Sch 2 cl 1(4).

40. ADT Act Sch 2 cl 3. This replaces the now repealed CAMA s 92(4).

41. NCOSS, CAMA Submission at 13; Disability Council of NSW, Submission 2 at 54-55; Citizen Advocacy NSW, Submission at 8; Consultation (Advocacy Groups and Carers, Sydney), Consultation (Consumers, Sydney); NSW Council for Intellectual Disability, CAMA Submission at 11; and K and J Clifton, Submission at 3.

42. Barnardos Australia, Submission at 9.

43. Consultation (Consumers, Sydney).

44. Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Consultation (Advocacy Groups and Carers, Sydney).

45. New South Wales, Community Services Appeals Tribunal, Annual Report 1997-98 at 17-19.

46. ADT Act Sch 2 cl 3(2).

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

48. See P Dawson, “Tenure and Tribunal Membership” (1997) 4 Australian Journal of Administrative Law 140 at 147. See also M Allars, Introduction to Australian Administrative Law (Butterworths, Sydney, 1990) at 272-273.

49. NSW Government, CAMA Submission at 6.

50. H Katzen, “Procedural Fairness and Specialist Members of the Administrative Appeals Tribunal” (1995) 2 Australian Journal of Administrative Law 169 at 169.

51. CSAT, Submission at 6; and Disability Safeguards Coalition, CAMA Submission 1 at 6-7.

52. CAMA s 101 repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 1.6[8] which commenced 1 January 1999.

53. ADT Act Sch 3.

54. See L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 18.

55. Barnardos Australia, Submission at 8.

56. Administrative Appeals Tribunal Act 1975 (Cth) s 8. Compare the Immigration Review Tribunal where members are appointed for periods not exceeding five years and the Social Security Appeals Tribunal where members are appointed for a maximum of three years. For a commentary, see P Dawson, “Tenure and Tribunal Membership” (1997) 4 Australian Journal of Administrative Law 140.

57. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 10-14.

58. Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 8 and s 11.

59. Residential Tenancies Act 1987 (NSW) Sch 1.

60. Commercial Tribunal Act 1984 (NSW) s 9 now repealed. The Commercial Tribunal has been replaced by the Fair Trading Tribunal established under Part 2 of the Fair Trading Tribunal Act 1998 (NSW). Members of the Fair Trading Tribunal may be appointed for periods of up to five years: Fair Trading Tribunal Act 1998 (NSW) Sch 1 cl 2.

61. Anti-Discrimination Act 1977 (NSW) s 69D; and Legal Profession Act 1987 (NSW) s 4. Both these provisions have been repealed and replaced by Administrative Decisions Tribunal Act 1997 (NSW) Sch 3.

62. Barnardos Australia, Submission at 8; People With Disabilities (NSW) Inc, CAMA Submission at 25 (which argues that the Divisional Head should have tenure). But compare Disability Safeguards Coalition, CAMA Submission 1 at 14 which argues that members should not be appointed to retirement age.

63. Better Decisions Report at para 4.55.

64. Better Decisions Report at para 4.61.

65. CSAT, Submission at 5. See also Autism Association of NSW, Submission at 14.

66. CSAT, Submission at 5.

67. The Northcott Society, Submission at 3; Citizen Advocacy NSW, Submission at 10; NSW Council for Intellectual Disability, CAMA Submission at 10; and Disability Safeguards Coalition, CAMA Submission 1 at 14.

68. See CAMA s 103(3) now repealed.

69. ADT Act Sch 3 cl 7(1).

70. ADT Act Sch 3 cl 8(2).

71. See CAMA s 103(2) now repealed.

72. ADT Act s 36(1)(b).

73. ADT Act s 8.

74. ADT Act s 38.

75. ADT Act s 6.

76. See para 5.73.

77. See para 5.76-5.124.

78. CSAT, Submission at 6-7, People With Disabilities (NSW) Inc, CAMA Submission at 26; NSW Council for Intellectual Disability, CAMA Submission at 11, Disability Safeguards Coalition, CAMA Submission 1 at 7; Disability Council of NSW, Submission 2 at 56; and CSC, CAMA Submission 2 at 1-2.

79. Australia, Administrative Review Council, Twenty-second Annual Report 1997-98 at para 4.10 and 4.12.

80. People With Disabilities (NSW) Inc, CAMA Submission at 26; Disability Council of NSW, Submission 2 at 55; Disability Safeguards Coalition, CAMA Submission 1 at 7; and NSW Government, CAMA Submission at 1.

81. New South Wales, Attorney General’s Department, Guidelines to Assist in the Establishment of the General Jurisdiction of the Administrative Decisions Tribunal at 1.

82. New South Wales, Attorney General’s Department, Guidelines to Assist in the Establishment of the General Jurisdiction of the Administrative Decisions Tribunal at 1-2. See also decisions listed in Second Reading Speech: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11279.

83. Australia, Administrative Review Council, Eleventh Annual Report 1986-87 at para 2.46.

84. “Polycentric” refers to decisions which are multi-centred. As one commentator explains: “a pull at any one point changes the entire set of interlocking relationships”: M Allars, Introduction to Australian Administrative Law (Butterworths, Sydney, 1990) at 27. See also para 5.56.

85. Australia, Administrative Review Council, Seventeenth Annual Report 1992-93 at para 7.25-7.37.

86. New South Wales, Attorney General’s Department, Guidelines to Assist in the Establishment of the General Jurisdiction of the Administrative Decisions Tribunal at 2.

87. See Australia, Administrative Review Council, Administrative Review and Funding Programs (A Case Study of Community Services Programs) (Report No 37, 1994) at para 2.7.

88. See for example, Australia, Administrative Review Council, Administrative Review of Health, Housing and Community Services Programs (Issues Paper, AGPS, Canberra, 1993) at para 1.11 and 3.19. See also Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, 1998) at para 6.53.

89. Australia, Administrative Review Council, Twenty-second Annual Report 1997-98 at para 4.62-4.63.

90. Australia, Administrative Review Council, Twenty-second Annual Report 1997-98 at para 4.66.

91. See para 3.133.

92. See generally, Australia, Industry Commission, Competitive Tendering and Contracting Out by Public Sector Agencies (Report 48, AGPS, Melbourne, 1996); Australia, Administrative Review Council, Administrative Review and Funding Programs (Report No 40, AGPS, 1994); 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.

93. See 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; Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, 1998); 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).

94. Confidential, Submission 5.

95. 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 348-356. See also D O’Brien, “Administrative Law: Can it come to grips with tendering and contracting by public sector agencies?” in L Pearson (ed) Administrative Law: Setting the Pace or Being Left Behind? (Australian Institute of Administrative Law, 1996 Administrative Law Forum) at 420-432.

96. Australia, Administrative Review Council, The Contracting Out of Government Services (Report No 42, 1998) at para 6.30 and Recommendation 21.

97. See para 3.2.

98. Institute for Family Advocacy and Leadership Development Association Inc, Submission at 16; Autism Association of NSW, Submission at 14; Burnside, Submission at 5; NSW Government, CAMA Submission at 6; and NCOSS, CAMA Submission at 14.

99. Disability Council of NSW, Submission 2 at 57.

100. Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 3.

101. People With Disabilities (NSW) Inc, CAMA Submission at 28.

102. Social Security Act 1991 (Cth) s 1245.

103. Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 20.

104. CSC, CAMA Submission 2 at 2.

105. CSC, CAMA Submission 2 at 2.

106. CAMA Reg cl 10(c).

107. CSC, CAMA Submission 2 at 2.

108. CAMA s 12.

109. CAMA Reg cl 6(1).

110. ADT Act Sch 2 cl 2.

111. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11279.

112. Family Day Care and Home Based Child Care Services Regulation 1996 (NSW) cl 31.

113. Children (Care and Protection) Act 1987 (NSW) s 112. See discussion at para 5.80-5.81.

114. Of 32 appeals lodged in the 1997-98 financial year, 22 (or almost 70%) were matters relating to the custody or guardianship of children: New South Wales, Community Services Appeals Tribunal, Annual Report 1997-98 at 20.

115. Children (Care and Protection) Act 1987 (NSW) s 112(1)(g).

116. Children (Care and Protection) Act 1987 (NSW) s 112(1)(h).

117. Children (Care and Protection) Act 1987 (NSW) s 91(1)(c) and s 91(1)(f) respectively. See CSAT, Submission at 9.

118. This will not be before 1 January 2000: see para 3.112.

119. New South Wales, DOCS, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 72.

120. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 79.

121. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 181. See also New South Wales, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 102-104.

122. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 182.

123. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245(c).

124. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 183.

125. CSAT, Submission at 10.

126. See para 5.75.

127. Children (Care and Protection) Act 1987 (NSW) s 112.

128. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245(1)(a).

129. CSAT, Submission at 11; and CSC, CAMA Submission 2 at 4.

130. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 216.

131. New South Wales, Department of Community Services, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 232.

132. New South Wales, Department of Community Services, Legislative Review Unit, Review of the Children (Care and Protection) Act 1987 (1997) at 233.

133. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 137(2).

134. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245(1).

135. CSAT, Submission at 12.

136. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 223.

137. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 224(1).

138. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 224(1)(a).

139. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 224(3).

140. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 245(1)(d)-(f).

141. CSAT, Submission at 12.

142. CSAT, Submission at 14.

143. Adoption of Children Regulation 1995 (NSW) cl 14.

144. CSAT, Submission at 14.

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

146. This is different from s 6(3) of the ADT Act which provides that a decision is reviewable even if it was beyond the power of the decision-maker to make it: see also Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1979) 41 FLR 338.

147. To come within the Tribunal’s jurisdiction, a decision must be made by an administrator under an enactment and must be identified as a decision in respect of which an application for review may be brought: ADT Act s 38. See also para 5.47.

148. See para 5.97.

149. CAMA s 21.

150. CAMA s 39(1).

151. CAMA s 39(2).

152. CSAT, Submission at 15; CSC, CAMA Submission 2 at 5.

153. Disability Safeguards Coalition, CAMA Submission 1 at 7; Confidential Submission 3 at 15.

154. ADT Act s 38.

155. See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ.

156. Anti-Discrimination Act 1977 (NSW) s 90(3).

157. CAMA Reg cl 6(1)(a).

158. CAMA Reg cl 6(2).

159. Citizen Advocacy NSW, Submission at 9; Physical Disability Council of NSW Inc, Submission at 13; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 12; Action for Citizens with Disabilities, Submission at 15; H Seares, Submission at 9; People With Disabilities (NSW) Inc, CAMA Submission at 15-16; NCOSS, CAMA Submission at 14; and Disability Safeguards Coalition, CAMA Submission 1 at 7 and 9.

160. CSC, CAMA Submission 1 at 28.

161. CSC, CAMA Submission 1 at 28.

162. NCOSS, CAMA Submission at 8; NSW Council for Intellectual Disability, CAMA Submission at 6; Disability Safeguards Coalition, CAMA Submission 1 at 9; People With Disabilities (NSW) Inc, CAMA Submission at 15-16; and CSC, CAMA Submission 1 at 21.

163. CSC, CAMA Submission 1 at 28.

164. CSC, CAMA Submission at 28; Citizen Advocacy NSW , Submission at 9; Physical Disability Council of NSW Inc, Submission at 13; NSW Council for Intellectual Disability, CAMA Submission at 6 and 11; H Seares, Submission at 9; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 12; and People With Disabilities (NSW) Inc, CAMA Submission at 15-16.

165. Other jurisdiction is provided in the CAMA Regulation: see cl 6(1)(b) and (c). The Commission recommends their repeal: see Recommendation 49 at para 5.120.

166. CAMA s 41. See discussion at para 5.137-5.155.

167. Confidential Submission 3; People With Disabilities (NSW) Inc, CAMA Submission at 10; Barnardos Australia, Submission at 6 and 9; NCOSS, CAMA Submission at 14; Intellectual Disability Rights Service, Submission at 10; and NSW Council for Intellectual Disability, DSA Submission at 9.

168. See People With Disabilities (NSW) Inc, CAMA Submission at 11 and 16; Confidential Submission 4 at 12; Barnardos Australia, Submission at 6 and 9; Intellectual Disability Rights Service, Submission at 10; NSW Council for Intellectual Disability, DSA Submission at 9; and NCOSS, CAMA Submission at 14.

169. CSC, CAMA Submission 1 at 27.

170. CAMA Reg cl 6(1)(a).

171. NSW Government, CAMA Submission at 6.

172. See para 3.177.

173. DSA s 20.

174. CAMA Reg cl 6(1)(b) and (c).

175. NSW Government, DSA Submission at 1-2; and NSW Government, CAMA Submission at 1.

176. NSW Government, DSA Submission at 2.

177. CSAT, Submission at 16-17; People With Disabilities (NSW) Inc, CAMA Submission at 27; Disability Safeguards Coalition, DSA Submission at 11; and Burnside, Submission at 5.

178. See para 5.52-5.60.

179. People With Disabilities (NSW) Inc, CAMA Submission at 27.

180. NSW Government, DSA Submission at 1.

181. See para 5.52.

182. See Report 91 at para 7.17-7.27 and Recommendations 26-28.

183. See Report 91 at para 7.23 and Recommendation 28. The current Disability Services Standards are described and critiqued at para 7.3-7.16.

184. See Report 91 at para 6.14-6.16 and Recommendation 20.

185. See Report 91 at para 6.17-6.18 and Recommendation 21-22.

186. See Report 91 at para 6.19-6.21 and Recommendation 23.

187. The Commission recommends that the DSA be amended to provide that the Minister be empowered to fund only those services that have been certified by DisQAC. See Report 91 at para 6.20 and Recommendation 24.

188. CSAT, Submission at 17.

189. See Report 91 at para 9.6-9.8 and Recommendation 36.

190. See Report 91 at para 9.6-9.8 and Recommendation 36.

191. Institute for Family Advocacy and Leadership Development Association Inc, Submission at 10 (see also Appendix); Carers NSW Inc, Submission at 7; Intellectual Disability Rights Service, Submission at 10; and NSW Council for Intellectual Disability, DSA Submission at 9.

192. Action for Citizens with Disabilities, Submission at 15; and Disability Council of NSW, Submission 2 at 25.

193. See for example, NCOSS, DSA Submission at 19; and Disability Safeguards Coalition, DSA Submission at 19.

194. Confidential Submission 4.

195. See para 5.6.

196. See Report 91 at para 9.9-9.13 and Recommendation 37.

197. See Report 91 at para 4.24-4.37 and Recommendations 13-15.

198. Youth and Community Services Act 1973 (NSW) s 24.

199. See para 5.80-5.81.

200. This was also recommended by the Report of the Task Force on Private “For Profit” Hostels: 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 57. It recommended also that decisions to suspend admissions, appoint an administrator, approve a transition plan and a decision to refuse or fail to make any of these decisions be reviewable.

201. See para 5.50.

202. CSAT, Submission at 18.

203. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

204. CAMA s 114(1).

205. CAMA s 114(4).

206. CAMA s 114(2).

207. The CSC submitted this should be the case: CSC, CAMA Submission 2 at 6. See also para 3.90.

208. CAMA Reg cl 10.

209. ADT Act s 49.

210. ADT Act s 49(2).

211. ADT Act s 49(3).

212. ADT Act s 50.

213. CSC, CAMA Submission 1 at 54.

214. CSC, CAMA Submission 1 at 54.

215. CAMA Reg cl 10(a)(ii).

216. CSC, CAMA Submission 1 at 29-30.

217. ADT Act s 49.

218. ADT Act s 48(1).

219. CAMA s 114(3).

220. 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 of these matters were heard as test cases by the CSAT. In March 1998, the Minister asked the Community Services Commissioner to convene a “Transition Plan Appeals Working Group” to devise a strategy 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 discussion at para 5.142-5.147 in relation to the two test cases.

221. Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257 at 270 per Gibbs J. See also Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; and Fraser Island Defenders Organisation Ltd v Hervey Bay Town Council [1983] 2 QdR 72.

222. Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257.

223. ADJR Act s 5-7.

224. ADJR Act s 3(4).

225. Tooheys Ltd v Minister for Business and Consumer Affairs (1982) 42 ALR 260; Ogle v Strickland (1987) 71 ALR 41; and Right to Life Association v Secretary, Department of Human Services and Health (1995) 56 FCR 50.

226. AAT Act s 27(1).

227. AAT Act s 27(2).

228. CAMA Working Party Report at 45-47 and Appendix 7.

229. CAMA Working Party Report at 45.

230. This concept appears to draw on the notion of the “mere busybody” penned by Lord Denning in Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Ltd [1982] AC 617. In that case, it was found that a person need not have a direct legal or financial interest but a “mere busybody” will not have a sufficient interest.

231. CAMA s 41.

232. In his Second Reading Speech, the Attorney General stated: “The issue of who will be eligible to apply for the review of an administrative decision will also be reviewed flexibly, with standing provisions contained in the relevant enactments that confer jurisdiction on the ADT adapted to the nature of the particular matter before the tribunal”: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

233. ADT Act s 42 and 55.

234. ADT Act s 4.

235. ADT Act s 67.

236. People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Dunrossil Challenge Foundation Ltd (New South Wales, Community Services Appeals Tribunal, Appeal No 061 and 195, 12 February 1998, unreported) (“Dunrossil”); and People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Disability Enterprises Leura, trading as Greystanes Children’s Home (New South Wales, Community Services Appeals Tribunal, Appeal No 067 and 194, 17 March 1998, unreported) (“Greystanes”).

237. Dunrossil at 28; and Greystanes at 18.

238. Dunrossil at 35; and Greystanes at 25.

239. CAMA s 41(5).

240. Dunrossil at 32; and Greystanes at 21-22.

241. Dunrossil at 37; and Greystanes at 26-27.

242. People with Disabilities (NSW) Inc, CAMA Submission at 12.

243. NSW Government, CAMA Submission at 2.

244. NCOSS, CAMA Submission at 6 and 14; Physical Disability Council of NSW Inc, Submission at 17; Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Australian Quadriplegic Association Ltd (NSW), Submission at 5; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 16; Citizen Advocacy NSW, Submission at 9.

245. Physical Disability Council of NSW Inc, Submission at 17.

246. People With Disabilities (NSW) Inc and NSW Council for Intellectual Disability lodged appeals in the CSAT against more than 800 transition plans under cl 6(1)(c) of the CAMA Reg.

247. Physical Disability Council of NSW Inc, Submission at 17, Disability Council of NSW, Submission 2 at 58; L Moffit, Submission at 2; Carers NSW Inc, Submission at 13; Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 3; Multicultural Disability Advocacy Association of NSW Inc, Submission at 9; Australian Quadriplegic Association Ltd (NSW), Submission at 5; Institute for Family Advocacy and Leadership Development Association Inc, Submission at 16; Citizen Advocacy NSW, Submission at 9; NCOSS, CAMA Submission at 6; and People With Disabilities (NSW) Inc, CAMA Submission at 29.

248. New Horizons Enterprises Ltd, Submission at 3; Crossroads Christian Fellowship with Disabled Persons in NSW Inc, Submission at 4; Dunrossil Challenge Foundation Ltd, Submission at 4; MS Society of NSW; Submission at 4; and The Spastic Centre of NSW, CAMA Submission at 2.

249. NSW Government, CAMA Submission at 2.

250. Western Sydney Intellectual Disability Support Group Inc, CAMA Submission at 3; NSW Council for Intellectual Disability, CAMA Submission at 11-12; People With Disabilities (NSW) Inc, CAMA Submission at 30; and NCOSS, CAMA Submission at 14. But compare Paraquad NSW, Submission at 4 which argued that CAMA should define “interested parties” as service users and advocates who have a direct involvement in or knowledge of the service.

251. Physical Disability Council of NSW Inc, Submission at 17.

252. Australian Law Reform Commission, Beyond the Door-keeper: Standing to Sue for Public Remedies (Report 78, 1996) at para 4.22.

253. Dunrossil at 27.

254. CAMA s 41(5).

255. Such provisions could easily be included in Sch 2 Pt 1 of the ADT Act which relates specifically to the CS Division.

256. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 11 March 1993, the Hon J Longley, Minister for Community Services, Second Reading Speech at 769.

257. Physical Disability Council of NSW Inc, Submission at 17; Disability Safeguards Coalition, CAMA Submission 1 at 14; Disability Council of NSW, Submission 2 at 60-61.

258. CAMA s 52 (now repealed).

259. See generally, J Simpson, “Procedures for a Tribunal’s Purpose” (1996) 21 Alternative Law Journal 118.

260. Burnside, Submission at 5.

261. ACROD Ltd NSW Division, Submission at 6. See also Dunrossil, Submission at 4; Paraquad NSW, Submission at 4; and MS Society of NSW, Submission at 3.

262. NSW Council for Intellectual Disability, CAMA Submission at 10.

263. See generally M Allars, “Administrative Law: Neutrality, the Judicial Paradigm and Tribunal Procedure” (1991) 13 Sydney Law Review 377; J Dwyer, “Overcoming the Adversarial Bias in Tribunal Procedures” (1991) 20 Federal Law Review 252; and M Aronson, “An AAT for New South Wales: Expensive Legalism or Overdue Reform” (1993) 52 Australian Journal of Public Administration 208. Noted by the Attorney General in his Second Reading Speech: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

264. New South Wales, Community Services Appeals Tribunal, Annual Report 1997-98 at 1.

265. ADT Act s 73.

266. ADT Act s 73(1) and (2).

267. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

268. ADT Act s 94(1).

269. ADT Act s 92-94.

270. ADT Act s 90(3) allows for different rules to be prescribed for each of the Divisions and for different classes of matters.

271. ADT Act s 97.

272. ADT Act s 97(2).

273. ADT Act s 98.

274. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

275. People With Disabilities (NSW) Inc, CAMA Submission at 32.

276. ADT Act s 56(3).

277. For more discussion of adversarial and inquisitorial procedures and their application in Australian tribunals, see Better Decisions Report at para 3.33-3.46. See also generally Australian Law Reform Commission, Review of the Adversarial System of Litigation (Issues Paper 24, 1998).

278. ADT Act s 58(4).

279. ADT Act s 83 and 84.

280. ADT Act s 63(1).

281. ADT Act s 73(5)(b).

282. ADT Act s 83.

283. ADT Act s 73(4). These obligations apply throughout the proceedings, not simply at the hearing.

284. F Cameron, “NSW ADT: Scope for Inquisitorial Procedures in New Administrative Decisions Tribunal” (1997) 35(7) Law Society Journal 41 at 43-44; and J Anderson, “Something Old, Something New, Something Borrowed … The New South Wales Administrative Decisions Tribunal” (1998) 5 Australian Journal of Administrative Law 97 at 103.

285. See generally, J Simpson, “Procedures for a Tribunal’s Purpose” (1996) 21 Alternative Law Journal 118.

286. MS Society of NSW, Submission at 4; NCOSS, CAMA Submission at 15; and Autism Association of NSW, Submission at 14.

287. MS Society of NSW, Submission at 4.

288. ADT Act s 74.

289. ADT Act s 74(1).

290. ADT Act s 33.

291. F Cameron, “NSW ADT: Scope for Inquisitorial Procedures in New Administrative Decisions Tribunal” (1997) 35(7) Law Society Journal 41 at 43.

292. ADT Act s 73(5)(c) and (d).

293. ADT Act s 76.

294. ADT Act s 102 and 103.

295. ADT Act s 57(1) and s 71(4) respectively.

296. ADT Act Sch 2 cl 3(1).

297. ADT Act s 73(6).

298. ADT Act s 74(1).

299. This was supported in some submissions: see CSAT, Submission at 21; Autism Association of NSW, Submission at 15; and Disability Council of NSW, Submission 2 at 61. But compare Disability Safeguards Coalition, CAMA Submission 1 at 7; NCOSS, CAMA Submission at 16; People With Disabilities (NSW) Inc, CAMA Submission at 33; and M Bowles, Submission at 10.

300. Administrative Decisions Tribunal (Interim) Rules 1998 (NSW) cl 15(2). See also ADT Act s 55(1)(d). These provisions replace the repealed CAMA s 44.

301. ADT Act s 57(1).

302. This was one of the findings of the Disability Council’s consultations. The problem was particularly acute for people from non-English speaking backgrounds and Aboriginal and Torres Strait Islander people: Disability Council of NSW, Submission 1 at 10.

303. This was supported by submissions received by the Commission: People With Disabilities (NSW) Inc, CAMA Submission at 33; NCOSS, CAMA Submission at 16; M Bowles, Submission at 10; Disability Safeguards Coalition, CAMA Submission 1 at 8; and NSW Council for Intellectual Disability, CAMA Submission at 12.

304. People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Disability Enterprises Leura, trading as Greystanes Children’s Home (New South Wales, Community Services Appeals Tribunal, Appeal No 067 and 194, preliminary determination, unreported): Issues of leave out of time and two appeals to be heard together.

305. CAMA s 42(1)(d). This provision was discussed by the CSAT in its preliminary determination in the Dunrossil matter: People with Disabilities (NSW) Inc and the NSW Council on Intellectual Disability v Minister’s decision to adopt the transition plan for Dunrossil Challenge Foundation Ltd (New South Wales, Community Services Appeals Tribunal, Appeal No 061 and 195, preliminary determination, unreported).

306. CAMA s 67(4). The Tribunal may determine whether a person’s interests are affected by a decision. There is a right of appeal to the Appeal Panel against a decision of the Tribunal that a person’s interests are not affected by the decision under review: ADT Act s 68.

307. CAMA s 67(2).

308. Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan (AGPS, Canberra, 1994) at para 2.104. See also Coalition for Class Actions, Representative Proceedings in NSW: A Review of the Law and a Proposal for Reform (Public Interest Advocacy Centre, Sydney, 1995).

309. See, for example, Supreme Court Rules 1970 (NSW) Pt 8 r 13.

310. CAMA s 42(1).

311. CAMA s 42(2).

312. CAMA s 3(1)(d).

313. ADT Act s 99.

314. ADT Act s 103.

315. ADT Act s 105.

316. CAMA s 43(1).

317. CAMA s 43(2).

318. See generally H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992).

319. See H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) at 105-109.

320. Autism Association of NSW, Submission at 14; and Disability Safeguards Coalition, CAMA Submission 1 at 13.

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

322. See Recommendation 53 at para 5.157.

323. CAMA 44(3).

324. ADT Act s 39.

325. CAMA s 43(2). The Commission has recommended that s 43 be transferred to the ADT Act: see Recommendation 55 at para 5.183.

326. ADT Act s 55.

327. ADT Act s 73(5)(h).

328. CAMA s 44(2).

329. See para 5.26.

330. See for example, Anti-Discrimination Act 1977 (NSW) s 101(1)(b).

331. CAMA s 45(1).

332. ADT Act s 71(1)(b).

333. ADT Act s 71(2). This does not apply to proceedings before the Appeal Panel: s 71(5).

334. L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 25.

335. MS Society of NSW, Submission at 4; Disability Safeguards Coalition, CAMA Submission 1 at 14; and Autism Association of NSW, Submission at 15. But compare People With Disabilities (NSW) Inc, CAMA Submission at 32.

336. ADT Act s 71(1), 71(4) and 71(7). In its forthcoming report on the Review of the Anti-Discrimination Act 1977 (NSW), the Commission recommends that the power of the Tribunal to appoint a representative for an incapacitated person, while desirable, should only be exercised with the consent of the party (where the party is capable of giving or withholding that consent).

337. That is, an independent representative. A similar power is available to the Children’s Court: Children (Care and Protection) Act 1987 (NSW) s 66(1).

338. CAMA s 45(3).

339. CAMA Reg cl 7.

340. New South Wales, Legislative Council, Standing Committee on Social Issues, Inquiry into Children’s Advocacy (1996) at 180-181.

341. Physical Disability Council of NSW Inc, Submission at 17; Citizen Advocacy NSW, Submission at 9; People With Disabilities (NSW) Inc, CAMA Submission at 31-32; Disability Safeguards Coalition, CAMA Submission 1 at 14; and NSW Council for Intellectual Disability, CAMA Submission at 12.

342. ADT Act s 75(2).

343. CAMA s 56 and 57, both now repealed.

344. CSAT, Submission at 19-20.

345. Family Law Act 1975 (Cth) s 121.

346. CAMA s 46(1).

347. ADT Act s 88(1).

348. This is called the ‘costs indemnity’ rule. The rationale for the rule is that success at litigation vindicates the winning party who should not then have to pay his or her legal costs in successfully asserting a valid legal claim or defending an unjust claim. Usually, the party may only recover those legal costs reasonably incurred in preparing and presenting the action in court. These are generally referred to as ‘party and party costs’. Special circumstances must exist to justify an award for full recovery of all expenses reasonably incurred, known as an award for “indemnity costs”. See generally, Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994) and Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation (ALRC 75, 1995).

349. See the Family Law Act 1975 (Cth) s 117(1) and Anti-Discrimination Act 1977 (NSW) s 114.

350. See Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994); Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation (ALRC 75, 1995); Australia, Access to Justice Advisory Committee Access to Justice – An Action Plan (AGPS, Canberra, 1994).

351. ADT Act s 88(3).

352. Note: the Commission endorses the general rule under the Anti-Discrimination Act 1977 (NSW) that each party should bear their own costs unless there are circumstances which warrant the making of a costs order.

353. See para 5.7.

354. ADT Act s 55(1)(b).

355. For example, internal review, as a prerequisite to external review, is mandatory for reviewable decisions made under the Social Security Act: Social Security Act 1991 (Cth) s 1247(1).

356. N Waters, “Internal Review and Alternative Dispute Resolution” [1996] Canberra Bulletin of Public Administration (No 79) 91 at 93.

357. The Administrative Review Council has made a number of recommendations in relation to internal review mechanisms: see Better Decisions Report at para 6.42-6.67 and Recommendation 75.

358. ADT Act s 55(2).

359. CAMA s 3(1)(c).

360. ADT Act s 24 and 113.

361. ADT Act s 112.

362. ADT Act s 113.

363. See L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 10.

364. ADT Act s 119. The Supreme Court retains its original jurisdiction to review decisions of the ADT (ADT Act s 122) but it may decline to exercise that jurisdiction if satisfied that an alternative mechanism, such as the statutory right of appeal, is adequate: ADT Act s 123.

365. CAMA s 67.

366. Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645 per Brennan J.

367. Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 644 per Brennan J.

368. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 591 per Bowen CJ and Deane J.

369. Better Decisions Report at para 2.17-2.18 and 2.43.

370. Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at 645 per Brennan J.

371. This issue is discussed at para 2.40-2.50.