6.1 The Review Council is the last of the four bodies established by CAMA. It was originally intended to oversee the implementation of the complaints, appeals and monitoring system created by CAMA. In recent years, the Review Council appears to have lapsed into disuse, raising the question of whether its role and functions remain valid. Comparatively few submissions were received on this issue. In this Chapter, the Commission examines the membership, functions and effectiveness of the Review Council.
BACKGROUND
6.2 The Review Council is established by Part 8 of CAMA. The terms of section 108 indicate that its primary role is to oversee the proper co-ordination of the functions of the bodies established by CAMA and other agencies with related functions, such as the Public Guardian and the NSW Ombudsman.1
6.3 In its early days, the Review Council was very active. It met monthly to discuss a range of issues, such as strategies to ensure consumer participation, and to raise community awareness of the complaints, appeals and monitoring system established by CAMA. It provided advice to the Minister on diverse matters such as the impact of the (then) proposed ADT on the CSAT. In addition, it held annual open meetings at which key individuals or organisations were invited to address the Council. Sub-committees were created to deal with particular projects, papers were prepared2 and community consultations were organised.3
6.4 In 1996, in response to a request by the Minister to consider its future role, functions and membership, the Review Council proposed that it be restructured to be more consumer-oriented. The aim of the proposed restructure was to promote the objects and principles of CAMA more effectively, and to distinguish itself from other advisory bodies. A decision on the future role of the Review Council was deferred pending the outcome of this review.
WHAT IS THE REVIEW COUNCIL?
Composition of the Review Council
6.5 CAMA provides that the Review Council comprise 13 members, seven of whom are appointed because of the positions they hold and six as community members appointed by the Minister for Community Services. The seven ex-officio members are:
- the Commissioner of the CSC;
- the Director General of DOCS;
- the Director General of ADD;
- the NSW Ombudsman;
- the President of the Guardianship Tribunal;
- the Divisional Head of the CS Division of the ADT; and
- the Public Guardian.
6.6 Of the six persons whom the Minister may appoint, two are required to have knowledge and experience gained as service providers, two must have knowledge and experience gained as service users and two must be persons who, in the opinion of the Minister, have an interest in the provision of community services.4
6.7 All are part-time members5 and are appointed for a period of up to five years.6 They may be reappointed.7 The Minister may appoint one of the members as Chairperson.8 Administrative and policy support is provided by the CSC.
Functions of the Review Council
6.8 The Review Council was established to:
- encourage co-ordination of the functions of the Tribunal, the CSC, the Community Visitors and any other persons or agencies in so far as their functions relate to community services; and
- provide strategic advice to the Minister on the operational effectiveness of the review and monitoring system established under CAMA.9
The legislation also stipulates that the Minister must consult with the Review Council prior to making any statutory appointments under CAMA. This applies to the appointment of Community Visitors,10 the Community Services Commissioner11 and, until recently, the President of the CSAT.12
OPERATION OF THE REVIEW COUNCIL
6.9 Although the Review Council appears to have been quite active in the early days of the implementation of CAMA, and was used quite effectively by the Minister for advice, it has been largely defunct since the first Ministerial appointments expired at the end of 1996. Indeed, since that time, the Minister has made only a minimum number of short-term appointments prompted by the need to consult with a quorum of the Review Council prior to making an appointment under CAMA.
Limitations on its effectiveness
6.10 The NSW Ombudsman has submitted that the major limitation on the effectiveness of the Review Council is that its role has never been properly defined. Ever since its inception, its role has been the subject of continuous debate, in particular whether it should focus on the complaints, appeals and monitoring systems established by CAMA or whether it should take a broader more consumer-oriented approach to the provision of community services.13
6.11 Its role in relation to consultation on appointments is particularly ambiguous. Although the legislation requires the Minister to consult with the Review Council prior to making an appointment under CAMA, it does not specify at what stage in the process the Review Council must be consulted nor how that consultation should occur.14 In theory, the Minister could discuss an appointment with the Review Council after the selected appointee has been referred to, and indeed, approved by, Cabinet.
6.12 Another significant limitation on its effectiveness is its composition. It brings together a large number of ex-officio members with different agendas. It is also argued that its membership is inappropriate in light of some of the Review Council’s functions.15 For example, the inclusion of the Directors-General of DOCS and ADD presents a potential conflict of interest in relation to the Review Council’s function of providing advice to the Minister on the appointment of the Community Services Commissioner. Further conflict would arise if the head of a large non-government service provider is also a member of the Review Council.16
6.13 Another severe constraint on the Review Council is its lack of resources, in particular the fact that it has no permanent secretariat or research support.17
Do the Review Council’s functions overlap or duplicate the functions of other bodies?
6.14 Some submissions have noted that there is a “plethora” of committees and advisory bodies which has implications for the effectiveness of the Review Council. It has been variously suggested that the whole gamut of committees be reviewed18 and that the money used to fund the Review Council would be better spent if it were injected directly into services.19
6.15 Similar concerns were also raised by the NSW Government’s submission to this review. It claimed that the functions of the Review Council are limited and either duplicate the functions of other existing bodies or are functions that may be more effectively and efficiently achieved in other ways. For example, the Government argued that community consultation prior to statutory appointments could be achieved by ensuring that appropriate community representatives are on selection panels.20
6.16 The two bodies most generally referred to as bodies which either duplicate the Review Council’s functions or which could perform the functions of the Review Council are the Community Welfare Advisory Committee (“CWAC”) and the Disability Council of NSW. Both of these committees are established under the Community Welfare Act 1987 (NSW).21 The Commission understands that the Community Welfare Act 1987 is presently being reviewed by the Minister for Community Services who administers it. Another body that may also be relevant is the new Commission for Children and Young People which is intended to provide advice to Government on matters concerning the welfare of children.22
Community Welfare Advisory Committee
6.17 As an umbrella piece of legislation, the Community Welfare Act 1987 (NSW) is framed broadly. So too, it appears, are the terms of reference of the CWAC. Its functions include providing advice to the Minister on matters relating to community welfare or social development; furnishing reports to the Minister on matters that it considers should be brought to the attention of the Minister; and conducting public inquiries, seminars or investigations, with the approval of the Minister.23 However, its functions do not specifically include co-ordination of the various agencies involved in the provision or monitoring of community services. In terms of composition, when reconstituted in 1996, the CWAC comprised 16 consumer representatives, from the full range of program and population groups covered by DOCS and ADD. Its ex-officio members include the Directors-General of both those departments.24
Disability Council of NSW
6.18 The Disability Council clearly performs an advisory and co-ordination function but only in relation to one of the population groups covered under CAMA.25 Members of the Disability Council include persons employed by peak disability consumer groups, representatives of government agencies and other persons experienced in the welfare of people with disabilities.26 The Community Welfare Act 1987 (NSW) provides expressly that the majority of members are to be people with disabilities. 27
6.19 It is not clear that the functions of the Review Council could be performed effectively by either of these bodies. The fact that CWAC comprises both ex-officio members and community representatives suggests that it may suffer from the same limitations as the Review Council. The membership of the Disability Council, on the other hand, appears quite appropriate for the function of providing expert advice. However, it relates to only one of the target groups covered under CAMA.
SUBMISSIONS
6.20 The few submissions which considered the role and operation of the Review Council supported the policy objective of Part 8 of the Act, namely to establish a body to oversee the implementation and effectiveness of the complaints, appeals and monitoring system under CAMA and to provide expert advice to the Minister in relation to issues affecting the provision of community services. However, it was generally agreed that because of the limitations outlined above, the Review Council does not perform these functions effectively.28
6.21 There is a strong view, among the submissions received on this issue, that the Review Council has become so ineffective that it should be abolished.29 As one submission noted:
The Review Council has never operated effectively, and most recently has been severely degraded by short-term politically motivated appointments. It now enjoys no respect or standing within the community services sector, and ought to be abolished.30
The NSW Government also submitted that the Review Council should be abolished on the grounds that it is redundant.31
6.22 It has been suggested that its supervisory function be transferred to a PJC which would oversee the operation of the CSC and report back to both Houses of Parliament on the overall effectiveness of CAMA.32 The Commissioner would be required to report to the PJC rather than to the Minister, which is currently the case.
6.23 It has also been suggested that the PJC be complemented by an Expert Advisory Committee (“EAC”) which would be established by the Commissioner. Its role would be to provide advice to the CSC to ensure that its operations and strategies remain relevant and accessible to the key target groups and to suggest ways of achieving inter-agency collaboration.33 The EAC would be made up of people with expertise in the delivery of disability services, child protection and substitute care options and consumer representatives from these areas.34 It has also been submitted that Community Visitors be represented on any advisory body to the CSC.35 One submission has suggested that the Minister be required to consult with the EAC prior to making any statutory appointments under CAMA.36
THE COMMISSION’S VIEW
6.24 The Commission agrees that the Review Council is no longer an appropriate body to perform a supervisory role under CAMA or to provide expert advice to the Minister. It has lost community support and is practically defunct already. It appears to the Commission that the ineffectiveness of the Review Council is largely due to the fact that it attempts to merge into the one body the functions of both a quasi-interdepartmental committee, comprising heads of relevant agencies, and a consumer advisory role. Both functions are important and continue to be valid but neither can be performed effectively by the Review Council in the light of its membership.
6.25 The Commission considers that there is a need for an independent body to oversee the operation of the complaints, review and monitoring processes set up under CAMA. There is also clearly a need for a new and separate chain of accountability to ensure the independence of the bodies established by CAMA. This issue is discussed in more detail in Chapter 3 where the Commission recommends that a PJC be established.37 However, on the issue of providing advice to the Minister in relation to statutory appointments under CAMA, the Commission is of the view that making provision for community representatives to be on selection panels is a better and more direct way of ensuring community participation in the appointment process.
Expert advisory committee
6.26 It is important that there be direct participation in important decisions by people affected by the legislation. It is also important that the Minister consult with people with expertise and knowledge in the area. However, the Commission does not consider that an expert advisory committee needs to be established by statute. Experience demonstrates that legislation does not necessarily guarantee the effectiveness of any committee. Rather, effectiveness is best assured by delineating clear functions to the committee and ensuring that membership of the committee is appropriate in respect of the performance of those functions.
6.27 The Commission notes that there are a number of ad hoc advisory committees which meet regularly and which are effective. One example is the Criminal Justice Forum sponsored by the Attorney General, which meets twice a year. Its members include all the relevant Cabinet Ministers,38 senior judicial officers, senior Departmental officers and senior players such as the Director of Public Prosecutions, the Senior Public Defender, the President of the Bar Association and the Director of the Bureau of Crime Statistics and Research.
6.28 As there appears to be no appropriate existing committees which can perform this advisory function, the Commissioner should, with the approval of the Minister, develop appropriate consultation mechanisms. A consultative committee comprising persons who represent the interests of consumers, families, carers, advocates and service providers may be most effective. The Commission is not suggesting that such a committee be a substitute for wider community consultation but it should be broadly representative of all the various interest groups to stimulate informed debate.
Inter-agency forum
6.29 In the Commission’s view, the co-ordination function of the Review Council also remains an important function. A forum is required in which the heads of the relevant agencies, including the new Children’s Commissioner and the Divisional Head of the CSD, meet to exchange information and develop collaborative strategies. As previously argued, the Commission does not consider it necessary that such a committee be established by legislation. Rather, the Community Services Commissioner should be encouraged to initiate a forum, similar to the Network of Watchdog Agencies of which the Commissioner is a member, to meet regularly to exchange information, discuss issues of overlap and duplication and devise strategies to co-ordinate their services in a more effective way.
RECOMMENDATION 65
The Community Services Review Council should be abolished. In its place, the Community Services Commissioner should develop appropriate consultation mechanisms with persons representing the interests of consumers, families, carers, advocates and service providers. It should also establish an inter-agency forum comprising the heads of all relevant agencies to discuss ways of ensuring more efficient and effective co-ordination of services.
FOOTNOTES
1. NSW Ombudsman, Submission at 5.
2. See for example, New South Wales, Community Services Review Council, Consumer Participation: A Resource Document for Community Service Providers and Consumers (1996); and A Tang, Independent Advocacy for Children: A Discussion Paper (Community Services Review Council, 1995).
3. See for example, New South Wales, Community Services Commission, Annual Report 1996/97 at 91; and New South Wales, Community Services Commission, Annual Report 1995/96 at 86.
4. CAMA s 107(1) and (2).
5. CAMA s 107(1).
6. CAMA s 110.
7. CAMA s 110.
8. CAMA s 107(3).
9. CAMA s 108.
10. CAMA s 7(1).
11. CAMA s 78(1).
12. CAMA s 92(2)(a). Repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 1.6[8] which commenced 1 January 1999.
13. NSW Ombudsman, Submission at 5.
14. CSC, CAMA Submission 1 at 14.
15. CSC, CAMA Submission 1 at 14.
16. CSC, CAMA Submission 1 at 14.
17. Autism Association of NSW, Submission at 15.
18. Autism Association of NSW, Submission at 15.
19. L Moffit, Submission at 2.
20. NSW Government, CAMA Submission at 7.
21. Community Welfare Act 1987 (NSW) s 15 and s 16 respectively.
22. Commission for Children and Young People Act 1998 (NSW) Pt 2.
23. Community Welfare Act 1987 (NSW) s 15(2).
24. New South Wales, Department of Community Services, “Committees and Bodies” «http://www.community.nsw.gov.au/ committees.html».
25. Community Welfare Act 1987 (NSW) s 16(2). The functions of the Disability Council are principally to monitor the implementation of the Government’s disability policy and provide advice to the Government on the effect of services provided to people with disabilities, priorities to be accorded to services and the role of voluntary organisations. It is also charged with promoting the integration of people with disabilities into the community; promoting community awareness of matters concerning the welfare of people with disabilities; and consulting with other similar bodies.
26. Community Welfare Act 1987 (NSW) Sch 1.4[2].
27. Community Welfare Act 1987 (NSW) Sch 1.4[3].
28. See for example, CSC, CAMA Submission 1 at 53; Disability Safeguards Coalition, CAMA Submission 1 at 12; and Barnardos Australia, Submission at 9.
29. See, for example, Physical Disability Council of NSW Inc, Submission at 18; Barnardos Australia, Submission at 9; L Moffit, Submission at 2; CSC, CAMA Submission 1 at 53; and Disability Safeguards Coalition, CAMA Submission 1 at 12.
30. People with Disabilities (NSW) Inc, CAMA Submission at 8.
31. NSW Government, CAMA Submission at 7.
32. NCOSS, CAMA Submission at 2 and 16; Physical Disability Council of NSW Inc, Submission at 18; NSW Council for Intellectual Disability, CAMA Submission at 12; Disability Safeguards Coalition, CAMA Submission 1 at 12; and CSC, CAMA Submission 1 at 53; People with Disabilities (NSW) Inc, CAMA Submission at 34. See also para 3.24-3.30.
33. CSC, CAMA Submission 1 at 53.
34. Disability Safeguards Coalition, CAMA Submission 1 at 12; Physical Disability Council of NSW Inc, Submission at 18; CSC, CAMA Submission 1 at 53; and NCOSS, CAMA Submission at 2.
35. B Semmler, Submission at 2.
36. CSC, CAMA submission 1 at 14 and 53. See also para 6.25.
37. See Recommendation 6 at para 3.30.
38. Namely, the Attorney General and the Ministers for Police, Corrective Services and Community Services (the latter of whom was previously responsible for juvenile justice before it was transferred to a separate portfolio).
