Miller v Director-General, Department of Community Services

[2006] NSWADT 341

CITATION:	Miller v Director–General, Department of Community Services [2006] NSWADT 341
DIVISION:	Community Services Division
PARTIES:	APPLICANT Leonie Miller RESPONDENT Director–General, Department of Community Services
FILE NUMBER:	064015
HEARING DATES:	22/11/06
SUBMISSIONS CLOSED:	11/22/2006
DATE OF DECISION:	12/01/2006
BEFORE:	Britton A - (Deputy President)
CATCHWORDS:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Adoption Act 2000 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 Community Services (Complaints, Reviews and Monitoring) Regulation 2004 Community Welfare Act 1987 Disability Services Act 1993 Guardianship Act 1987 Home Care Service Act 1988 Ombudsman Act 1974 Youth and Community Services Act 1973
CASES CITED:	IW v City of Perth (1997) 191 CLR 1
REPRESENTATION:	APPLICANT S Kluss, Barrister RESPONDENT A Johnson, solicitor
ORDERS:	The decision of the Director General, Department of Community Services, made in respect of the recommendations of the Ombudsman issued following investigation of a complaint by Ms Leonie Miller about the Department of Community Services is reviewable by the Tribunal pursuant to s 28(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Act 1993.

REASONS FOR DECISION

1 Ms Leonie Miller seeks review of a decision of the Director General, Department of Community Services, which concerns the implementation of various recommendations made by the NSW Ombudsman following a complaint made by her. A threshold issue arises for determination: whether the Tribunal has jurisdiction to entertain Ms Miller’s application. The Director General, the respondent in these proceedings, submits that it does not because it says that application in effect seeks a review of a non-reviewable matter.

Background

2 Pursuant to s 99 of the Children and Young Persons (Care and Protection) Act 1998 (“the Care and Protection Act”), the Children’s Court appointed the applicant as the separate representative for three children in relation to care proceedings before the District Court of New South Wales. In April 2005, the Children’s Court had placed the children under the parental responsibility of the Minister for Community Services. That order was the subject of an appeal to the District Court.

3 On 6 September 2005, the applicant complained to the Ombudsman that DoCS had refused her permission to interview the children at their foster home and school prior to the District Court proceedings.

4 Nearly a year later, following investigation of the applicant’s complaint, the Ombudsman issued his Final Report under s 26 of the Ombudsman Act in which he made the following recommendations:

1. DoCS should apologise to Ms Miller in relation to its handling of this matter.

2. DoCS should develop a policy or guidelines for DoCS s staff on the role of a separate or legal representative appointed under section 99. This policy should include provisions that provide guidance on the following matters:

a. The representative’s obligation to see the child or young person before a court hearing;

b. The role and obligations of DoCS staff (in particular, caseworkers) in relation to the right of children and young people to see their legal or separate representative; and

c. Communication between the legal or separate representation for a child or young person and DoCS non-legal staff (in particular, caseworkers).

In making this recommendation, I acknowledge that, prior to the commencement of our investigation, DoCS initiated, with both the Legal Services Commissioner and the Law Society, a process to provide guidance for lawyers on when to contact DoCS staff.

3. DoCS should provide advice and guidance to those departmental staff involved in this matter who contributed to the shortcomings in the Department’s conduct discussed in this report.

4. DoCS should advise this office of its response to our recommendations by 31 August 2006.

5 On 30 August 2006, the Director-General advised the Ombudsman of its response to the recommendations set out above. In summary, the Director-General advised that an apology had been sent to the applicant regarding some matters, but not in the broad terms of Recommendation 1. Secondly, the Director-General notified the Ombudsman that Recommendation 2 would not be implemented in its terms but that other appropriate remedial measures had been taken and Recommendation 3 had been implemented before the Ombudsman had reported.

6 On 28 September 2006, the applicant sought a review by the Tribunal of the Director-General’s “[refusal] to implement the recommendations of the Ombudsman in full”.

The issue

7 The ultimate issue for determination at this stage is whether the Tribunal has jurisdiction to hear the application. That depends on what question or questions the Tribunal is being asked to review. The parties pose those questions in different terms. The respondent says that the threshold question to be determined in this matter is whether the Director-General of the Department of Community Services (“DoCS”), acting as delegate for the Minister, in exercising parental responsibility, is providing a “community service”, as that term is defined in the Community Services (Complaints, Reviews and Monitoring) Act 1993 (“CS (CRM) Act”).

8 On the other hand, the applicant says that this misconstrues the real issue. Rather, according to her, the critical enquiry to be made is whether the complaint to the Ombudsman was a complaint concerning “the conduct of a service provider with respect to the provision, failure to provide, withdrawal, variation or administration of a community service” which, if so, was a complaint falling within the scope of s 22 of the CS (CRM) Act and therefore reviewable by the Tribunal.

9 It is therefore the definitional issue that must first be resolved.

Legislative framework

10 Before tackling the questions raised by the parties, the legislative framework for the arguments must be sketched in.

11 Ombudsman Act 1974 Any person may complain to the Ombudsman about the conduct of a NSW public authority. Upon receiving such a complaint, the Ombudsman may make the conduct complained of the subject of an investigation under the Act. Ordinarily, such complaints are made pursuant to s 12 of the Ombudsman Act 1974.

12 If the Ombudsman conducts an investigation he must make a report which may include recommendations to the public authority (or indeed other relevant public authorities) concerning remedial or mitigatory measures to be taken to meet the complaint or the consequences of any conduct found to have been unreasonable in all the circumstances. It is of critical importance to note, however, that the Ombudsman has no power to enforce his recommendations. While the Ombudsman’s Office stands within the executive government, the Ombudsman is independent of government and the Ombudsman is answerable only to Parliament. The Ombudsman exercises persuasive authority only within the executive government but may, and sometimes does, make a report to Parliament on matters of concern. Section 27 provides that where the Ombudsman is not satisfied that sufficient steps have been taken in due time in consequence of a report under section 26, the Ombudsman may make a report to the Presiding Officer of each House of Parliament, and may also provide the responsible Minister with a copy of the report. The responsible Minister must then make a statement to the House of Parliament, not more than 12 sitting days after the report is made to the Presiding Officer.

13 Pursuant to s 26(5), the Ombudsman may require a person to whom a report has been given, to notify the Ombudsman of any action taken or proposed in consequence of a report under the section. In this case, the Director-General did so.

14 Generally, s 27 of the Ombudsman Act is the only provision within that Act enabling some right of further review where a public authority has not acted in accordance with the Ombudsman’s recommendations. A decision by a public authority not to implement a recommendation of the Ombudsman may only be subject to review by the Tribunal where some other Act grants a right of review.

15 Community Services (Complaints, Reviews and Monitoring) Act 1993 Section 22 of the CS (CRM) Act is one of the exceptions to the general rule just stated. It provides that a person may complain to the Ombudsman “about the conduct of a service provider with respect to the provision, failure to provide, withdrawal, variation or administration of a community service in respect of a particular person or group of persons”.

16 By virtue of the combined effects of s 28 of the CS(CRM) Act and its Regulation, the Community Services (Complaints, Reviews and Monitoring) Regulation 2004, an aggrieved person may apply to the Tribunal for review of certain decisions, including a “a decision made by a service provider not to take action recommended by the Ombudsman under s. 26 of the Ombudsman Act 1974 as a result of an investigation of a complaint under Part 4 of the Act, or to take part only of the action so recommended” where the subject matter of the complaint concerns “the provision, failure to provide, withdrawal, variation or administration of a community service in respect of a particular person or group of persons.”

17 What is a “community service” in this context?

18 The term “community service” is defined in s 4 of the CS(CRM) Act as follows:

‘community service’ means:

(a) a service rendered under the community welfare legislation, or

(b) a service rendered by a person or organisation that is covered by an arrangement referred to in paragraph (f) of the definition of service provider in this section.

19 Section 4 further provides that “service” includes a statutory or other function and ‘rendering’ or ‘providing’ a service includes exercising such a function. Section 4 of the Act defines “function” as including a power, authority and duty.

Consideration and analysis

20 The Minister was given parental responsibility by the Children’s Court pursuant to an order made under s 79 of the Care and Protection Act. Where it is satisfied that a child or young person is in need of care and protection, the Children’s Court may make such orders allocating the parental responsibility for that child to one parent, both parents, other suitable persons or, to the Minister. The Court may order that the responsibility be exercised jointly by two parties or that one party exercise it exclusively.

21 The term “parental responsibility” is defined in s 3 of the Care and Protection Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children”.

22 The parties agree that the Tribunal only has jurisdiction to determine the applicant’s Application if her complaint to the Ombudsman was a complaint pursuant to s 22 of the CS (CRM) Act, that is, a complaint regarding “the conduct of a service provider with respect to the provision, failure to provide, withdrawal, variation or administration of a community service.” Further, it is conceded by the respondent that the Director-General is a decision-maker for the purposes of s 22 and the Regulation.

23 The respondent submits, however, that the applicant’s complaint was essentially about the way in which the Director-General, as delegate of the Minister, exercised parental responsibility for the three children and then failed to implement the Ombudsman’s recommendations following a review of the exercise of parental responsibility in a particular case.

24 The respondent contends that for the decision in question to be reviewable, the applicant must show that DoCS was providing or administering a “community service”. The relevant decision complained of was a decision about the venue at which a legal interview might take place with the children. The respondent argues that this was an exercise of parental responsibility by the Minister and does not fall within the statutory definition of “community service” because it consists in neither the rendering of a community service (as the word “service” is ordinarily understood) nor the exercise of a statutory function, power, authority or duty. It argues further that if some sort of service was rendered, it was to the particular children for whom the Minister had taken on parental responsibility and not for the community at large.

25 The respondent argues that while many activities undertaken by parents for their children, such as organising medical appointment, music lessons or transporting them to and from school, have the character of services in the colloquial sense these are not services as such but rather exercises of parental responsibility.

26 The applicant contends that the respondent’s concentration on whether the Minister was exercising parental responsibility begs the real question, namely, whether facilitating access for a child to obtain legal advice and provide instructions to their solicitor is a service for the purposes of s 22.

27 The applicant argues that parents, in the exercise of their responsibilities, are indeed required to render services to their children and the Minister, standing in loco parentis, is obliged to do the same things, including rendering services to the children.

28 Defining the meaning of “service” is no easy feat. In IW v City of Perth (1997) 191 CLR 1 the High Court considered the meaning of the word “services” in the context of anti-discrimination legislation. Among other questions it had to consider was whether the refusal of planning approval was a refusal to provide services. It is unnecessary to analyse that decision at length. It is, however, helpful to note some of the ways that the court defined “services” in that context and also to note that the legislative context itself is of critical significance in reaching an appropriate definition or construction of a relevant statutory phrase.

29 Brennan and McHugh JJ said (at page 11):

The term "services" has a wide meaning. The Macquarie Dictionary relevantly defines it to include "an act of helpful activity"; "the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying or the supplier of water, gas, or the like to the public"; and "the duty or work of public servants". But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop.
30 Gummow J said (at page 41):
The term "service" and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person.
31 Kirby J said (at pages 69-70):
The Macquarie Dictionary defines "service" as meaning "an act of helpful activity"; "the supplying ... of any ... activities, etc., required or demanded"; "the providing ... of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance"; "the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public"; "the supplying ... of water, gas, or the like to the public"; and "the performance of any duties or work for another". The Oxford English Dictionary is to like effect: "work done to meet some general need"; "the action of serving, helping or benefiting"; "conduct tending to the welfare or advantage of another". 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. In a complaint of discrimination in relation to the provision or refusal of "services", this Court has already emphasised the importance of identifying the relevant "services" in sufficiently concrete terms to enable the decision-maker to determine whether or not there has been the unlawful refusal to provide the "services" as alleged. Yet characterising the "service" in question can itself involve the acceptance of a definition which will effectively determine the complaint of discrimination according to whether a wide or narrow focus is adopted. The word should be given its meaning in the context, and for the purposes, of the legislation in question.
32 While these definitions or constructions were developed in the context of anti-discrimination they are apposite also in this case.

33 In my view there is no necessary distinction to be made between the exercising of parental responsibility, which is a wide and rather abstract umbrella, and, the rendering or provision of services under that umbrella. Indeed, in order to meet his or her parental responsibilities, a parent or person in loco parentis might have to provide services such as education, health care, dental care, washing, bathing, recreational and other beneficial things conducive to welfare of the children in his or her care. True it is that such services, in a complex modern society, are frequently rendered to the children by others, such as doctors, teachers, dentists and so on but the services are ultimately provided to the children by reason of activities undertaken by the parent or person in loco parentis who makes the appointments with doctors and dentists or registers them in school and so on.

34 It seems therefore, that the applicant is correct in saying that the respondent poses the wrong the question.

35 That does not follow from this, however, that the applicant is necessarily correct in her assertion that a decision to refuse to allow her to interview the children in a venue of her choice had anything to do with the provision or rendering of a community service. As the High Court made clear in IW v City of Perth, context is very important in resolving such questions. The legislation must be examined closely.

36 It must be conceded by the applicant that there is no community welfare legislation that provides a direct basis for the assertion that the Director-General was obliged to render a service of the nature she says was denied, namely, the facilitation of legal services to the children for whom the Minister had been given parental responsibility by the court. She asks the Tribunal to read into the legislation something not directly expressed. That of itself is unexceptionable: it is often the case that the ramifications of legislation are implicit rather than explicit.

37 The CS(CRM) Act needs to be examined as a whole and its objects considered. The objects and principles to be applied in construing the Act are set out in s.3:

(1) The objects of this Act are as follows:
(a) to foster, in community services and programs, and in related services and programs, an atmosphere in which complaints and independent monitoring are viewed positively as ways of enhancing the delivery of those services and programs,

(b) to provide for the resolution of complaints about community services and programs, especially complaints by persons who are eligible to receive, or receive, those services, by families and by persons advocating on behalf of such persons or families,

(c) to encourage, wherever reasonable and practicable, the resolution of complaints at a local level,

(d) to encourage, wherever reasonable and practicable, the resolution of complaints through alternative dispute resolution,

(e) to provide independent and accessible mechanisms for the resolution of complaints, for the review of administrative decisions and for the monitoring of services, programs and complaint procedures,

(f) to encourage compliance with, and facilitate awareness of, the objects, principles and provisions of the community welfare legislation,

(g) to provide for independent monitoring of community services and programs, both generally and in particular cases.

(2) The following principles must be observed in exercising functions under this Act:
(a) the paramount consideration in providing a service for a person must be the best interests of the person,

(b) a person who is eligible to receive, or receives, a community service is also to receive an adequate explanation of the service, is to be heard in relation to the service and may question decisions or actions that affect the person in relation to the service,

(c) a service provider is to promote and respect the legal and human rights of a person who receives a community service and must respect any need for privacy or confidentiality,

(d) a service provider is, to the best of his or her ability, to provide such information about the service as may enable an appropriate decision to be made by the person for whom the service is, or is to be, provided,

(e) a service provider is to enable a complaint about the service to be dealt with fairly, informally and quickly and at a place convenient to the complainant,

(f) a complaint about the provision of a service is to be dealt with even if it is made by another person on behalf of the person eligible to receive, or receiving, the service.

38 The first thing to be observed here is the repetition of the phrase “community services and programs” and on “service providers”. Thus, the overall thrust of this legislation is to do with mechanisms for ensuring the accountability of providers of community services and programs. That fact tends to support the case advanced by the respondent.

39 The services to which the CS(CRM) Act’s mechanisms apply are “community services”, that is “services rendered under the community welfare legislation”. The community welfare legislation referred to in that definition is also set out in s 4 of the Act: the CS(CRM) Act, the Adoption Act 2000, the Children and Young Persons (Care and Protection) Act 1998, the Community Welfare Act 1987, the Disability Services Act 1993, the Guardianship Act 1987, the Home Care Service Act 1988, the Youth and Community Services Act 1973 and “any other Act relating to the provision of community services that is prescribed by the regulations.”

40 For s 22 to apply, the applicant must show that the service about which she complains was, or should have been, rendered under one or other of the above Act. The CS(CRM) Act, the Adoption Act, the Disability Services Act, the Guardianship Act, the Home Care Service Act, the Youth and Community Services Act and Community Welfare Act all appear to be irrelevant to my considerations. The Children and Young Persons (Care and Protection) Act 1998 appears to be the only relevant legislation. The question is was “the service” rendered under the Care and Protection Act.

41 The objects of Care and Protection are set out in s 8 and are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, taking into account the rights, powers and duties of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.

42 They should be read with ss15 and 16 which outline, in general terms, the roles of the Minister and the Director-General. The role of the Minister is “to promote a partnership approach between the government, non-government agencies, families, corporations, business agencies and the community in taking responsibility for and dealing with children and young persons who are in need of care and protection under this Act”: s15.

43 The Director-General’s role is described in more detail in s 16:

(1) Principal role

The Director-General is to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of this Act.

Note. This role may include:

providing assistance to children and young persons

involving children and young persons and their families in processes that affect them and making services and information available to them

consistent with the care and protection of children and young persons, promoting the raising of children and young persons within families

supporting communities involved in the care and protection of children and young persons

regularly reviewing action

implementing procedures to assess the suitability of people having contact with children and young persons

undertaking or encouraging research, education or training.

(2) Interagency procedures and protocols

The Director-General is to promote the development of procedures and protocols with government departments and agencies and the community sector that promote the care and protection of children and young persons and to ensure that these procedures and protocols are implemented and regularly reviewed.

(3) The objects of the procedures and protocols referred to in subsection (2) are:

(a) to promote the development of co-ordinated strategies for the care and protection of children and young persons and for the provision of support services directed towards strengthening and supporting families, and

(b) to co-ordinate the provision of services for assisting young persons leaving out-of-home care.

44 From that outline and the objects of the Act, which provide the relevant context within which the legislation is construed, it may be readily divined that it was Parliament’s intention that the Director-General provide services to children and families in need of them with the overall objects of ensuring “such care and protection as is necessary for [the children’s] safety, welfare and well-being”. I do not think that any issue is taken by the respondent with the applicant in that regard.

45 Chapter 3 of the Care and Protection Act is concerned with requests for assistance by children or families to the Director-General and Part 2 of that chapter with reporting of children at risk. Part 3 deals with investigations by DoCS following such reports. That chapter is followed in orderly sequence by Chapter 4 which deals with children in need of care and protection and Chapter 5 which is called “Children’s Court Proceedings” but which commences with a part concerned with the emergency removal without court order of children at immediate risk of harm.

46 In further parts and divisions this chapter provides for the examination and assessment of children, the making of care applications by the Director-General to the Children’s Court, the determination by the court of those applications and, among many other matters, the orders the court may make upon finding that the child or children the subject of the application is in need of care and protection. The chapter also builds in various safeguards and rights for children and their families. These are expanded in Chapter 6 which deals with procedure and procedural fairness in the Children’s Court.

47 One of the most important of the safeguards for children who are the subject of care applications is that, pursuant to ss 98 and 99 of the Care and Protection Act, they are entitled to be legally represented and, if they do not have their own representatives, which is usually the case, the court may appoint them. The court may also appoint a guardian ad litem to instruct the lawyer retained to act for the child if the child needs one due to his or her special circumstances due to age, disability, illness or other relevant factors: s 100.

48 It is not, however, the Director-General’s function to provide the services of a lawyer to the child. Consequently, there is no program under the legislation administered by the Director-General for the provision of legal services to children in care proceedings. Nor has the Director-General any role in organising such services through service providers or agents. That, clearly, may give rise to a conflict of interest. This is, no doubt, one of the reasons Parliament drew the legislation as it did. It is for the Children’s Court and, in practice, the Children’s Legal Service (an arm of the Legal Aid Commission) to arrange for legal representation of children in care proceedings.

49 If a child is in the care of the Director-General, and especially if the Director-General, temporarily or otherwise, has parental responsibility for the child, acting as delegate for the Minister, he or she is in that situation because the Director-General is seeking “to provide services and promote the development, adoption and evaluation of policies and procedures that accord with the objects and principles of [the Care and Protection] Act” and, in particular, is seeking to provide assistance and protection to the child by applying for a court order. Once the Director-General has intervened for the protection of the child and makes a decision that a care application ought be made on behalf of the child it is almost a racing certainty that the child will ultimately be given legal representation by the Children’s Court and it may be inferred that this would always be within the contemplation of the Director-General or his delegates at the time the order is sought. It follows that the legal representative will need access to the child and it would be generally be expected by the DoCS officer or officers with carriage of the matter that it would be sought.

50 A parent, properly exercising his or her responsibilities, would, if his or her child needed a lawyer, seek to ensure that the child got one and would arrange for him or her to see one. That would be a service rendered to the child. The lawyer would (or may) then render a further service to the child. The two things are distinct. The Minister, in the proper exercise of his or her parental responsibilities for the child, might similarly arrange for a child to see a lawyer or facilitate an interview between the child and the lawyer.

51 Thus there is no necessary inconsistency between the rendering of a service and the exercise of parental responsibility. In this the concepts overlap. The Minister has been given parental responsibility by virtue of the operation of certain community welfare legislation. It is true that this comes by way of an order of the Children’s Court rather directly but the responsibility arises because the legislature clearly saw the Minister as the proper repository for it absent any other better alternatives.

52 If that analysis holds, it would follow that anyone upon whom the Children’s Court imposes, or to whom it grants, parental responsibility may, depending on the relevant circumstances, also render community services. While some exercises of parental responsibility may also constitute the rendering of services, not all such exercises do. It all depends on the circumstances of a particular case and whether the activity concerned may properly be characterised as a service in the first place.

53 The respondent argues that to make a finding in the applicant’s favour would be to “open the floodgates”. While I doubt that that would be the case it is true that sometimes badly drafted or broadly drafted legislation may have unintended consequences. The remedy is a relatively simple statutory amendment. I accept that when the CR(CRM) Act was enacted the focus was on community programs and services because the intention was to increase the accountability of non-government service providers. Nevertheless the service the subject of the complaint, namely the facilitation of access to legal representatives, is clearly distinguishable from merely domestic activities which fall within the scope of parental responsibility. It is difficult to see how activities which are merely domestic, such as the arrangement of sleepovers, organising birthday parties and the like could be regarded as “community services” for the purposes of the CS(CRM) Act or community welfare legislation generally.

54 In my view, therefore, as the service is collateral to the provision of other services within the scope of the Care and Protection Act it falls within the definition of “community service” in s 4 of the CS(CRM) Act and it follows, ultimately, that the Tribunal has jurisdiction to deal with the application.

Internal review

55 The applicant has not sought internal review of Director General’s decision concerning his decision about the implementation of the Ombudsman’s recommendations. Section 55(1)(b) of the Administrative Decisions Tribunal Act 1997 (“the Tribunal Act’) provides that a person may apply to the Tribunal for a review of a reviewable decision only if: an internal review is taken to have been finalised under section 53 (9) of that Act. Section 55(2) provides that a person is not prevented from making an application in respect of a reviewable decision that has not been the subject of an internal review if the Tribunal is satisfied of one of the matters set out at paragraphs (a), (b) or (c) of s 55(2).

56 In her Application to the Tribunal, in answer to the question, “Has the decision been the subject of an internal review”, the applicant wrote, “The decision maker is the Director General of DOCS. The highest level for decision making within DoCS”.

57 The respondent is requested to advise the Tribunal in writing within seven days whether it opposes, the Application proceeding without an internal review and, if so, why. Unless the parties otherwise advise the matter will be dealt with “on the papers”.