DV v Community Services Commission - [2002] NSWADT 246

No judgment structure available for this case.

CITATION: DV v Community Services Commission [2002] NSWADT 246

DIVISION: Community Services Division

PARTIES:
APPLICANT
DV
RESPONDENT
Community Services Commission

FILE NUMBER: 014075

HEARING DATES: 05/09/02

SUBMISSIONS CLOSED: 09/05/2002

DATE OF DECISION:
11/12/2002

BEFORE: Britton A - Judicial Member; Kirkland A - Member; Dobell D - Member

APPLICATION: Recommendation of Community Services Commission

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Community Services (Complaints, Reviews and Monitoring) Act 1993
Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Telecommunications Act 1992
Equal Opportunity Act 1984 (WA)
Race Relations Act 1976 (UK)
Infertility Treatment Act 1995
Home Care Service Act 1988
Children (Care and Protection) Act 1987
Community Welfare Act 1987
Children and Young Persons (Care and Protection) Act 1998.

CASES CITED: X v Commissioner, Community Services Commission [1999] NSWADT 26
Green v Daniels (1977) 51 ALJR 463
ex p Corrie [1918] 1 KB 68
Legal Services Commission of NSW v Stephens [1981] 2 NSWLR 697
IW v City of Perth (1997) 191 CLR 1
Scott v Telstra Corporation Limited (1995) EOC 92-717
Attorney General of Canada v Cumming [1980] 2 FC 122
Savjani v Inland Revenue Commissioners [1981] QB 458
Farah v Commissioner of Metropolitan Police [1998] QB 65
Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468
P v P (1994) 181 CLR 583
McBain v State of Victoria (1999) 177 ALR 320
R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818
British Oxygen Co Ltd v Board of Trade [1971] AC 610
Waters v Public Transport Corporation (1991) 173 CLR 349
People with Disabilities (NSW) Inc v Minister for Disability Services [1999] NSWADT 24

REPRESENTATION: K Eastman, barrister
S Lloyd, barrister

ORDERS: Decision under review is set aside and remitted to the Respondent for proper consideration in the exercise of his discretion under the CSRAMA.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

1 This is an application for review under section 40 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) (‘CSRAMA’). The principal issue in this application concerns the jurisdiction of the Community Services Commission (‘CSC’) to investigate complaints about the provision of ‘community services’ where the service is provided by the Department of Community Services pursuant to or as part of the Department’s statutory functions. In these reasons we refer to the applicant as “DV”.

Background to application

2 On 20 October 2000, Ms Miller, a solicitor acting for the Applicant, requested a copy of all files concerning DV held by the CSC. She also requested that the CSC exercise its inquiry powers to investigate certain allegations made by DV of abuse when he was a young person in care.

3 On 2 November 2000, the issues giving rise to DV’s complaint were clarified. The CSC was asked to investigate the following matters:

That DOCS failed to ensure that [DV] received an adequate and supportive in care plan taking into account a risk assessment, the young person’s circumstances of entering care, significant events concerning the young person during the stay in care, a needs assessment, details of services to be provided in the future and funding and facilitation on those services; and

That DOCS failed to respond appropriately to [DV’s] disclosure of a sexual assault by an employee of a non-government agency providing substitute residential care to children. [DV] was 13 or 14 years of age at the time of the assault.

4 On 2 July 2001, the CSC advised Ms Miller that it would not investigate the complaint. Its reasons for refusing to investigate the complaint were stated as follows:

“Based on recent advice from the Crown Solicitor’s Office concerning the jurisdiction of the Commission and its ability to handle complaints and conduct investigations into certain statutory functions of the Department in its child protection and out-of-home care activities, we regret to advise that the Commission has no jurisdiction to consider your complaints.”

5 On 7 November 2001, Ms Miller wrote to the CSC requesting an internal review of the decision not to investigate the complaint.

6 On 3 December 2001, the CSC responded indicating that it had no jurisdiction to consider complaints that related to statutory functions performed by DOCS. It indicated that it could only investigate ‘services delivered by the Department’. For that reason the CSC was unable to review its advice contained in the letter of July 2001.

7 On 21 December 2001, DV lodged an application in this Tribunal seeking a review of the CSC’s refusal to investigate his complaint. For the purpose of the present application, the Applicant submits that there were no applicable grounds to justify the CSC’s refusal to investigate his complaint.

CSRAMA

8 Section 12 of the CSRAMA provides:

9 Section 13(1) provides that a complaint may be made by any person who demonstrates to the satisfaction of the Commission that he or she has a genuine concern in the subject matter of the complaint.

10 For the purpose of s 12, “community service” is defined as:

"service provider"

11 Service provider is also defined by s 4 and includes the Department of Community Services.

12 Section 21 sets out the grounds on which a complaint made pursuant to s12 of the CSRAMA may be declined:

13 There are three questions to determine in these proceedings. First, does this Tribunal have jurisdiction to deal with the Applicant’s complaint? Second, did the Commission have the jurisdiction it denies having? Third, if both those questions are answered affirmatively, what is the appropriate relief to be ordered, if any?

Jurisdiction of the ADT

14 The Applicant, as one would expect, submits that this Tribunal has jurisdiction to deal with the complaint. The Respondent contends the contrary proposition.

15 Counsel for the Applicant, Ms Eastman argues that under s 36(1)(b) of the Administrative Decisions Tribunal Act 1997 (NSW) (‘the ADT Act’) this Tribunal may review “reviewable decisions”. A “reviewable decision” is defined in s 8 as "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review." Section 38 provides that:

16 The relevant enactment in this case is the CSRAMA and in particular s 40(1). It provides:

17 Ms Eastman goes on to argue that the decision to refuse to investigate a complaint may be reviewed under s 40(1)(c) with respect to the CSC’s powers under ss 21 and 39 of the CSRAMA.

18 Section 40 outlines the boundaries of the Tribunal’s jurisdiction to review decisions of the CSC. Section 40(1) empowers the Tribunal to review decisions taken by persons under community welfare legislation where the decision is expressly made reviewable by that legislation: s 40(1)(a). That is not the case here.

19 Secondly, s 40 allows the Tribunal to review decisions by the CSC to commence investigations beyond its powers: s 40(1)(b). Again, that does not appear to be the case here. There was no investigation at all, whether ultra vires or otherwise.

20 Thirdly, s 40 allows the Tribunal to review an ultra vires decision by the CSC: s 40(1)(c). It is this ground upon which the Applicant principally relies to establish the Tribunal’s jurisdiction in this case. The other two criteria in section 40(1) are irrelevant to our considerations.

21 It will be noted immediately that his Tribunal is a creature of statute. Its powers are limited to those granted in relevant legislation. It does not have a general power to inquire into and review decisions, regardless of any apparent issues of merit, which may attract its interest. In relation to the CSC, the Tribunal’s jurisdiction is confined by the parameters set by section 40. It is for the Applicant to establish jurisdiction once the question is raised.

22 It is submitted for the Applicant that the Tribunal may review any decision by the CSC that is shown to be ultra vires. That proposition does not seem to us to be contested by the Respondent. Counsel for the Respondent, Mr Lloyd merely contends, as we understand his argument, that there was no breach of the CSC’s powers. He contends, firstly, that counsel for the Applicant misconstrues section 40(1)(c) by not recognising the import of s 40(1)(b). If, argues Mr Lloyd, paragraph (c) were given the broad meaning advocated by the Applicant, that paragraph (b) would simply have no work to do. In addition, he contends that the Applicant’s arguments fail to give proper weight to s 21(2), which gives the CSC broad discretion to decline to entertain a complaint.

23 In our opinion, neither counsel has addressed the real issue directly or fully. The question here is whether the decision in question can be characterised as “beyond power”. That raises the further question of the meaning of the phrase “beyond its powers” in s 40(1)(c).

24 In X v Commissioner, Community Services Commission [1999] NSWADT 26 an Appeal Panel of the Tribunal held, without specifying reasons, that, in its opinion, the phrase “beyond power” or “beyond its power” in s 40 of the CSRAMA was to be construed as “narrow ultra vires”. All that Deputy President Hennessy said on the subject was: “The term "beyond power" is not defined in the legislation but in my view covers what is commonly known as "simple" or "narrow" ultra vires. Ultra vires in the narrow sense means either that the decision maker had no power under the Act to make the decision or has failed to conform to a procedure in the Act.”

25 It has, however, been well established by authority over many years that a failure by a public authority to exercise a discretionary power appropriately or properly is ultra vires or “beyond its powers”. (See, for example, Green v Daniels (1977) 51 ALJR 463). Such a failure by a public authority falls within the category frequently described in the academic literature as “broad ultra vires”. (See, for example, S.D. Hotop Principles of Australian Administrative Law 6th edition pp 220ff).

26 In our opinion, the question here does not come within the category of “narrow ultra vires” as defined in X’s Case. This is not a case in which the Commissioner sought or purported to exercise powers beyond those granted to him by statute. Nor is it clear that there was any failure to conform with a statutory procedural requirement. The underlying question seems to us to be whether the Commissioner had a discretion that he was bound to exercise and did not. It is our view that if there were a failure to exercise jurisdiction it could be reviewed by this Tribunal on the basis that the decision not to exercise the jurisdiction (no matter how reasonable such a decision might otherwise have been) was ultra vires.

27 Public authorities are entrusted with discretionary powers, which they are required to exercise appropriately. A public authority may not fetter its own discretion by inflexibly applying a rule or policy. It is beyond power for a public authority to refuse to exercise a discretion with which it has properly been vested: see Green v Daniels; see also R v London County Council; ex p Corrie [1918] 1 KB 68; Legal Services Commission of NSW v Stephens [1981] 2 NSWLR 697; British Oxygen Co Ltd v Board of Trade [1971] AC 610.

Conclusion on ADT’s jurisdiction

28 If the Commissioner had a jurisdiction which, because of the legal advice he received, he reasonably but mistakenly refused to exercise, it seems to us that the decision must be caught by s 40(1)(c) and be reviewable. If, on the other hand, the legal advice from the Crown Solicitor was that he had no jurisdiction to exercise and that advice was correct, it follows that this Tribunal has no jurisdiction to deal with the current complaint. Thus, the two jurisdictional issues must be settled together. We turn now to the question of the Commissioner’s jurisdiction to deal with DV’s complaint.

Did the Commissioner have jurisdiction?

29 The Applicant submits that the issue for the application for review is the definition and scope of ‘community services’ in the CSRAMA.

30 The Applicant submits that the CSC’s narrow approach to defining community services is in error. The CSC has failed to provide any reasons or explanation for defining community services in such a narrow way. It has also failed to explain how the matters of which DV has complained, about his treatment by DOCS while a ward of the state are excluded from the definition of community services. The CSC says that it relies on advice provided by the Crown Solicitor’s Office to the Minister of Community Services. A copy of that advice has not been provided to the Tribunal.

31 It is submitted for the Applicant, that the CSC has an obligation to give effect to and perform its obligations under the CSRAMA. In particular it must investigate complaints about the provision of community services.

32 Ms Eastman argues that the definition of community services is sufficiently broad to cover all types of services including those services that may be performed pursuant to a statutory function. In this case, the Applicant says that it is broad enough to cover the services or failure to provide services to the Applicant in relation to the issues referred to above.

33 The issue, says Ms Eastman, turns on a proper construction of the CSRAMA. As a starting point, she argues that, because the CSRAMA is remedial legislation, it should be construed broadly to give effect to the objects and purposes of the Act: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 and see also People with Disabilities (NSW) Inc v Minister for Disability Services [1999] NSWADT 24.

34 Section 33 of the Interpretation Act 1987 (NSW) provides:

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

35 Ms Eastman submits that the definition of community service in s 4 does not exclude services that may be performed as part of DOCS’s statutory functions. She argues that an act or decision in relation to a statutory function may also constitute the provision of a community service.

36 It is contended for the Applicant that the term “services” is capable of broad application. Its ordinary meaning includes ‘an act of helpful activity’ (see Macquarie Dictionary) and ‘work done to meet some general need’; ‘the action of serving, helping or benefiting’; ‘conduct tending to the welfare or advantage of another’: see Oxford Dictionary. The Applicant adopts the analysis of Justices Dawson and Gaudron in IW v City of Perth (1997) 191 CLR 1 at 23, that “services” is a word of complete generality and should not be given a narrow construction unless that is clearly required by definition or by context.

37 She further argues that where government provides the services, it is not uncommon that the nature of the service and the function of the relevant body providing the service is prescribed by legislation. In Scott v TelstraCorporation Limited (1995) EOC ¶92-717, the provision of telecommunication services and Telstra’s functions in relation to the provision of the services were set out in the Telecommunications Act 1992(Cth). See also McBain v State of Victoria (1999) 177 ALR 320 in which the relevant service was defined by the Infertility Treatment Act 1995 (Vic).

38 The Respondent’s case is, first that the substance of the Applicant’s complaint deals with the DOCS’s performance of its statutory functions on behalf of the Minister for Community Services. Mr Lloyd concedes that some statutory functions can be classified as services, however this will not be the case, he contends, where the statutory functions concerned are “regulatory or controlling in nature”. In support of that proposition Mr Lloyd relies on the majority decision in R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818. Accordingly, says Mr Lloyd, the treatment of which DV now complains does not fall within the definitions of service or community service.

39 Secondly, the Respondent argues, that, even on his own case, the Applicant has not specified the services concerned in his complaint nor the legislation under which the services should have been provided. “Community welfare legislation” is defined in the CSRAMA to include that Act, the Home Care Service Act 1988, any Act administered by the Minister for Community Services within the DOCS and any Act administered by the Ministers for Aged Services and Disability Services within the Ageing and Disability Department, or any instrument under those Acts.

40 We interpolate here that it seems evident that the relevant legislation is administered by the Minister for Community Services through DOCS. Given the tenor of DV’s complaints, the legislation concerned in this matter must be the Children (Care and Protection) Act 1987, the Community Welfare Act 1987; and the Children and Young Persons (Care and Protection) Act 1998.

41 The Respondent argues that it is clear from the tenor of the legislation concerning wards that the thrust of the relevant provisions is to place wards under the Minister’s control but gives him or her the responsibility for the providing adequate resources for the care of the child. Counsel for the Respondent distinguished between the provision of services and the undertaking of statutory functions by drawing an analogy with the responsibilities of the Minister for Corrective Services who, among other things, would bear responsibility for feeding, clothing and accommodating prisoners placed under his or her control. Mr Lloyd suggested that no one would argue that the Minister was, in those circumstances, a service provider but would say rather that the Minister was carrying out a statutory function.

42 Given the concessions made by counsel for the Respondent, it is not necessary to consider the question of the relationship between the performance of statutory functions and the provision of a service at great length. It is, however, helpful to refer briefly to the decision of the High Court in IW v City of Perth (1997) 191 CLR 1. The issue was the meaning of “services” in the context of section 66K(1) of the Equal Opportunity Act 1984 (WA). The Act made it unlawful for a person who provides services to discriminate against another person on the ground of the other person's impairment, by refusing to provide the other person with services or in the manner of provision of services.

43 In considering the meaning of “services” Brennan CJ and McHugh J reviewed the leading UK and Canadian authorities, which confirmed that the performance of a statutory function could involve the provision of a service. They said at pp 12 – 14:

Attorney General of Canada v Cumming

Human Rights Act

Savjani v Inland Revenue Commissioners

[I]t does not necessarily follow that the board and the inspector are not voluntarily, or in order to carry out their duty, also performing services for the taxpayer. The duty is to collect the right amount of revenue; but, in my judgment, there is a service to the taxpayer provided by the board and the inspector by the provision, dissemination and implementation of regulations which will enable the taxpayer to know that he is entitled to a deduction or a repayment, which will entitle him to know how he is to satisfy the inspector or the board if he is so entitled, and which will enable him to obtain the actual deduction or repayment which Parliament said he is to have. For present purposes, in my judgment, the inspector and the board provide the inestimable services of enabling a taxpayer to obtain that relief which Parliament intended he should be able to obtain as a matter of right subject only to proof.

In R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818 however, the House of Lords (by a 3-2 majority) held that a clearance officer who vetted aspiring immigrants to the United Kingdom was not providing a facility or service within the meaning of s 29(1) of the Sex Discrimination Act 1975 (UK). Lord Fraser of Tullybelton, with whose speech Lord Keith of Kinkel and Lord Brightman relevantly agreed, said at 835 that the entry clearance officer was “not providing a service for would-be immigrants; rather he was performing his duty of controlling them.” Lord Fraser said at 834 that, properly viewed, Savjani turned on the finding that the Inland Revenue “performed two separate functions - first a duty of collecting revenue and secondly a service of providing taxpayers with information.” In our view that is the correct explanation of that decision.

In Farah v Commissioner of Metropolitan Police [1998] QB 65, the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute “services to the public” for the purposes of the Race Relations Act 1976 (UK). Otton LJ said at 83:

[P]olice officers perform duties in order to prevent and detect crime and to bring offenders to justice. They are also vested with powers to enable them to perform those duties. While performing duties and exercising powers they also provide services in providing protection to the victims of crimes of violence.

44 Chief Justice Brennan and Justice McHugh considered that the issue of the relevant service was a question of fact and they drew a distinction between the council exercising a quasi-legislative role and that of providing services. If the service is properly described as a “deliberative process”, they considered it could not be a service for the purpose of the WA Act (see pp 15 –17).

45 Other judges in IW took a broader view of “services”. Justices Dawson and Gaudron considered that the term was apt to include the administration and enforcement of a planning scheme (at 23). Justice Toohey agreed (at 28). Justice Gummow considered the term “service” and its variants were of wide and varied meaning. He specifically referred to the work of a public servant being a person serving the state or the community in a particular capacity (at 41). He also considered the relevant Canadian and UK authorities with approval. At 44 he concluded:

There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions: Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 510, 512, 523; P v P (1994) 181 CLR 583 at 600-601.

46 Finally Justice Kirby said (at 70):

The concept of “services” is therefore an extremely wide one. It is by no means confined to the provision of tangible things. Its meaning is to be derived from the context.

47 He then reviewed the relevant Australian and overseas authorities. He concluded that the term was sufficiently wide to cover the administration and performance of statutory functions.

48 IW concerned the meaning of “services” for the purpose of discrimination legislation. However, the Applicant submits that the approach taken by the High Court in considering the meaning and application of the term “services” is also applicable to the question of the meaning of “services” in the CSRAMA. The Respondent argues that the line of cases in the discrimination field ought not be applied here, or, if they are, should be applied cautiously.

49 We accept the Applicant’s contention that there is overwhelming authority to support a broad and purposive construction of the term “community services” in the CSRMA. Accordingly, we find that some of the services provided to the Applicant by DOCS while he was a ward, are caught by the definition of “community services” as defined in the CSRAMA.

50 As we understand the Respondent’s case he also contends, in effect, that even if he has jurisdiction to investigate the Applicant’s complaints, that they are unmeritorious and that he would be entitled to decline to investigate under s 21 of the CSRAMA. The Respondent contends among other things, that some of the matters of which the Applicant complains occurred after he had ceased to be a ward.

51 The Applicant’s response to that argument is that it goes beyond the scope of this inquiry to examine that question. Ms Eastman argues that, if it is accepted for the sake of the argument that the Tribunal has jurisdiction, the question to be considered is whether the Commissioner has failed to exercise his discretion and has made therefore an ultra vires decision. She says that it may be that, if the Commissioner considered the complaints, he might decide not to investigate them. That is a stage beyond the present situation where he has simply refused to consider them at all on the Crown Solicitor’s advice.

Conclusions on jurisdiction

52 We appreciate the Commissioner’s difficulty. He had regard to legal advice, presumably in order to ascertain with greater certainty the parameters of his powers. No doubt he was anxious to know the limits of his investigational responsibilities and domain. He acted on that advice and rejected DV’s complaints without considering their merits because he reasonably believed that he had no jurisdiction to deal with them.

53 The Crown Solicitor’s advice was never tendered but the effect of at least part of it seems reasonably clear. It appears to have been, in summary, that where a statutory function is regulatory or controlling in nature it would not fall within the statutory definition of a community service. We do not know whether advice was given on the application of that principle to Mr DV’s complaints. However, it is clear that Commissioner applied the principle enunciated in a way that was adverse to DV.

54 It is also apparent from the Commissioner’s written submissions that he concluded from the advice that none of DV’s complaints fell within s 12 of the CSRAMA. We are not in a position to assess whether the Commissioner correctly understood or interpreted the advice he received. The advice is ultimately irrelevant, as the Respondent’s counsel contends, because the question is not whether the Commissioner acted on advice, whether that advice was correct or even whether he understood the advice he had received. The question is whether he correctly interpreted his own powers and discretions under the relevant statutory provisions.

55 The Respondents’ case, until the hearing, was that there was a barrier through which the Commissioner could not pass. In the course of the hearing, the Respondent made a subtle but important distinction, which radically altered the case. The argument went from one in which a unilateral approach seemed to be applied, namely that the CSC did not have jurisdiction to entertain the complaints, to one in which the merits of the complaints were also examined.

56 In the Tribunal, the Respondent conceded that there might be some overlap between “community services” and “statutory functions” but argued that, in this case, it had not been shown by the Applicant that he had been denied services. More significantly, when the question of services, such as accommodation, health care and other matters, was raised, it was suggested (drawing what seemed to be an unfortunate analogy with prisoners and correctional facilities) that they would only be provided as a consequence of the Minister controlling or regulating the conduct of the wards in her care.

57 Given the concession from counsel for the respondent that it was at least arguable that the applicant ’s first complaint concerned the provision of services and the fact that the Commissioner took the view at the time of his decision that there was no possible overlap of statutory functions and service provision in relation to DV or wards in his situation, it seems obvious that the Commissioner at least once and perhaps twice or three times inappropriately refused to exercise his discretion. In our opinion, the decision was in fact a single decision, namely, that the Commission could not deal with any of DV’s complaints. It was therefore a decision, which fell squarely within the terms of section 40(1)(c). The Tribunal therefore has jurisdiction to review the decision.

58 We would also add that, in our opinion, no analogy can be drawn between wards and prisoners and, further, that the Minister’s true role in respect of wards is not their control and regulation but their care and support. This function would be exercised principally by the provision of the services and support mechanisms that their own families, for one reason or another, are unable to provide. These services would include housing, clothing, sustenance, transport, psychological support and general nurturing.

59 In our view, casework is not intended to operate as some sort of regulatory mechanism but is a tool or strategy designed to identify the individual ward’s needs and to ensure that appropriate services are organised to meet those needs. Ordinarily the medium by which such services would be provided would be the Department of Community Services (an apt name) or the ward’s foster carers working in conjunction with officers of the Department.

Relief

60 In our opinion, the proper place for the merits of the complaints to be considered was in the Commission in the first instance, not the Tribunal. Accordingly under s 63(3)(d) of the ADT Act we set aside the Commissioner’s decision not to investigate DV’s complaints and remit those complaints to the Commissioner for proper consideration in the exercise of his discretion under the CSRAMA.

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Citations

DV v Community Services Commission [2002] NSWADT 246

Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

11

X v Commissioner, Community Services Commission [1999] NSWADT 26

Forster v Jododex Australia Pty Ltd [1972] HCA 61

Green v Daniels [1977] HCA 18

CITATION:	DV v Community Services Commission [2002] NSWADT 246
DIVISION:	Community Services Division
PARTIES:	APPLICANT DV RESPONDENT Community Services Commission
FILE NUMBER:	014075
HEARING DATES:	05/09/02
SUBMISSIONS CLOSED:	09/05/2002
DATE OF DECISION:	11/12/2002
BEFORE:	Britton A - Judicial Member; Kirkland A - Member; Dobell D - Member
APPLICATION:	Recommendation of Community Services Commission
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Community Services (Complaints, Reviews and Monitoring) Act 1993 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Telecommunications Act 1992 Equal Opportunity Act 1984 (WA) Race Relations Act 1976 (UK) Infertility Treatment Act 1995 Home Care Service Act 1988 Children (Care and Protection) Act 1987 Community Welfare Act 1987 Children and Young Persons (Care and Protection) Act 1998.
CASES CITED:	X v Commissioner, Community Services Commission [1999] NSWADT 26 Green v Daniels (1977) 51 ALJR 463 ex p Corrie [1918] 1 KB 68 Legal Services Commission of NSW v Stephens [1981] 2 NSWLR 697 IW v City of Perth (1997) 191 CLR 1 Scott v Telstra Corporation Limited (1995) EOC 92-717 Attorney General of Canada v Cumming [1980] 2 FC 122 Savjani v Inland Revenue Commissioners [1981] QB 458 Farah v Commissioner of Metropolitan Police [1998] QB 65 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 P v P (1994) 181 CLR 583 McBain v State of Victoria (1999) 177 ALR 320 R v Entry Clearance Officer; Ex parte Amin [1983] 2 AC 818 British Oxygen Co Ltd v Board of Trade [1971] AC 610 Waters v Public Transport Corporation (1991) 173 CLR 349 People with Disabilities (NSW) Inc v Minister for Disability Services [1999] NSWADT 24
REPRESENTATION:	K Eastman, barrister S Lloyd, barrister
ORDERS:	Decision under review is set aside and remitted to the Respondent for proper consideration in the exercise of his discretion under the CSRAMA.