Miller v Director-General, Department of Community Services (No2)

[2007] NSWADT 140

CITATION:	Miller v Director-General, Department of Community Services (No2) [2007] NSWADT 140
DIVISION:	Community Services Division
PARTIES:	APPLICANT Leonie Miller RESPONDENT Director-General, Department of Community Services
FILE NUMBER:	064015
HEARING DATES:	18 December 2006
SUBMISSIONS CLOSED:	19 February 2007
DATE OF DECISION:	25 June 2007
BEFORE:	Britton A - Deputy President; Bolt M - Non Judicial Member; Martin M - Non Judicial Member
CATCHWORDS:	Ombudsman's recommendation - review of implementation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Children and Young Persons (Care and Protection) Act 1998 Community Services (Complaints, Reviews and Monitoring) Act 1993 Ombudsman Act 1974
CASES CITED:	Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24 Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4 Jones v Scully (2002) 71 ALD 567 Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 McDonald v Guardianship Administration Board [1993] 1 VR 521 Miller v Director–General, Department of Community Services [2006] NSWADT 341 Re Drake (No.2) (1979) 2 ALD 634 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPLICANT S Kluss, barrister RESPONDENT J McDonnell, solicitor
ORDERS:	1. The decision not to fully implement the recommendations made by the Ombudsman as set out in his final report made under s 26 of the Ombudsman’s Act 1974 dated 4 August 2006 is remitted to the Director-General, Department of Community Services under s 63(3)(d) of the Administrative Decisions Tribunal Act 1997 with the following recommendations: ; (i) that Recommendation 2 made by the Ombudsman be adopted in full no later than 1 September 2007; ; (ii) that any revised guidelines and or polices arising from the implementation of Recommendation 2 be provided to all relevant staff including caseworkers; ; (iii) that staff be provided with further training on the role of a representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998. ; 2.The application for costs made by the applicant is refused.

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 Solicitor Leonie Miller was appointed by the Children’s Court to act as legal representative for three children in care proceedings before the District Court of NSW. She complained to the NSW Ombudsman that officers of the Department of Community Services refused to permit her to interview the children. After investigating that complaint the Ombudsman recommended, among other things, that the Department issue an apology to Ms Miller and develop a policy and guidelines for staff on the role of a legal representative appointed to represent children in the care of the Department. Ms Miller contends that the Department did not implement those recommendations in full and now applies to the Administrative Decisions Tribunal for review of the Department’s decision.

Factual background

2 Ms Miller was appointed by the Children’s Court under s 99 of the Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act). The children the subject of that appointment had been placed under the parental responsibility of the Minister for Community Services by order of the Children’s Court in April 2005. That order was the subject of an appeal to the District Court.

3 A few months before that appeal was to commence Ms Miller contacted officers of the Department of Community Services (DoCS) to arrange to interview the children. She nominated the foster home where the children were living and their schools as appropriate venues to conduct the interviews. The Department refused to approve that request, and nominated instead a local DoCS’ office, Ms Miller’s office or the children’s contact centre.

4 Ms Miller advised that in her opinion those proposed venues were inappropriate and it was in the children’s best interests for the interviews to be conducted in the venues she had nominated. In a letter dated 2 August 2005, to the Crown Solicitor (the Department’s legal representative in the appeal) she wrote,

We will not see the children at a DoCS Office especially in light of the allegations and the risk of being seen by the children as part of DoCS.

5 In respect of the request to interview the children at school, Ms Miller stated:

We press our request to see [the children] at school. Not only do we need to see them independently of DoCS but also to speak to their teachers - an exercise we normally find very helpful.

6 Over the next three months voluminous correspondence passed between Ms Miller and DoCS, and the Crown Solicitor’s office. Agreement was never reached on the venue to interview the children.

7 On 6 September 2005, Ms Miller lodged a complaint with the Ombudsman about the Department’s conduct. The Ombudsman wrote to DoCS in an attempt to resolve the dispute. Agreement was not reached.

8 In early October Ms Miller made an application to the District Court for orders that she be permitted to interview the children at their respective schools. (By that stage she had withdrawn the request to interview the children at their foster home.) In dismissing that application on the grounds that the Court lacked jurisdiction, Her Honour Justice Ainslie-Wallace commented:

Today I am told that the Children's Court Clinician, who has conducted extensive interviews with the children does not share that opinion [that the children should not be interviewed at their schools]. She has conveyed that to the Director-General and to the children's representatives. Nonetheless, the Director-General maintains his refusal to allow that contact to take place at the school. There is no basis asserted for the maintenance of the refusal other than a dogged adherence to the opinion in the face of professional advice to the contrary that it would not disadvantage the children were they to see their lawyer at the school.

…

I request that my reasons for decision be taken out as a matter of urgency and placed on the court file so that the judge hearing this matter will understand the dynamic between the person with parental responsibility and the children's lawyer.

9 The appeal proceeded to hearing on 24 October 2005. The appeal was brought by the children’s father against the orders of the Children’s Court allocating parental responsibility for the children to the Minister until the children reached 18 years of age. By consent, His Honour, Justice Rein, ordered that parental responsibility be allocated to the Minister for a period of two years. His Honour noted that the Minister intended to restore the children to the care of the appellant father providing certain conditions were met.

10 Ms Miller had not interviewed the children at the time the appeal was heard.

11 Investigation by Ombudsman On 3 November 2005, the Ombudsman initiated an investigation into Ms Miller’s complaint. Nearly a year later, the Ombudsman issued his Final Report under s 26 of the Ombudsman Act 1974. He recommended:

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 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.

12 In a letter dated 30 August 2006, the Director-General responded to the Ombudsman’s recommendations. He advised: an apology had been sent to Ms Miller, but not in the broad terms of Recommendation 1; Recommendation 2 would not be implemented in its terms but that other appropriate remedial measures had been taken and, that Recommendation 3 had been implemented before the Ombudsman had reported.

13 On 28 September 2006, Ms Miller applied to the Administrative Decisions Tribunal for a review of the Director-General’s ‘[refusal] to implement the recommendations of the Ombudsman in full’. That application was made under s 28 of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS (CRM) Act).

14 The respondent contended that the Tribunal did not have jurisdiction to hear Ms Miller’s application, as her complaint did not relate to the provision of, or refusal to provide, a ‘community service’ by the Director-General. The Tribunal (constituted by DP Britton, sitting alone) determined that it did have jurisdiction to determine that application (Miller v Director-General, Department of Community Services [2006] NSWADT 341).

Was there substantial compliance with the Ombudsman’s recommendation?

15 The combined effect of the CS (CRM) Act and its Regulation is that an aggrieved person may apply to the Tribunal for review of ‘a decision made by a service provider not to take action recommended by the Ombudsman … or to take part only of the action so recommended’. The respondent contends that it has substantially complied with the Ombudsman’s recommendation and as such the Application made by Ms Miller is not reviewable by the Tribunal.

16 This submission requires examination of the action taken by the respondent after receipt of the Ombudsman’s report.

17 Recommendation 1: Apology to Ms Miller Tendered in these proceedings was a copy of the letter of apology, signed by the Director-General and sent to Ms Miller on 30 August 2006. The apology was made in relation to information provided to Ms Miller that was later found to be inaccurate. It made no mention of the protracted dispute over interviewing the children.

18 Recommendation 2: Development of policy Tendered in these proceedings were extracts from the Department’s guidelines prepared for staff outlining the nature of legal proceedings involving children, relevant statutory provisions on the participation and rights of children in those proceedings and legal representation of children.

19 Also tendered was a memorandum dated 8 August 2006, addressed to the DoCS’ Deputy Director - General Operations, and copied to the Director of Legal Services, from the Assistant Director, Complaints and Information Exchange. Under the heading ‘Action Requested’ the Assistant Director wrote:

I understand Operations Systems is currently updating some areas of the business help topic, Children and Young Persons’ Participation and Rights.

In order to satisfy the Department’s obligations to the Ombudsman it is recommended that issues relating to Recommendation 2 to be included in the operations Systems process of updating the business help topic, Children and Young Persons’ Participation and Rights.

20 Jill Herberte, the respondent’s Southern Region Director, gave evidence in these proceedings. She testified that steps were being taken to review the policies outlined above in light of the Ombudsman’s recommendations. She told the Tribunal that it was her understanding that the Department’s Legal Services Unit was conferring with ‘Business Help’ with a view to updating these policies. She explained that following receipt of the Ombudsman’s report it had been decided that DoCS staff would in the future be required to notify her if a dispute arose with an external lawyer about the arrangements for interviewing children.

21 She also advised that the Department had been liaising with the NSW Law Society with a view to developing a memorandum of understanding on communication between legal representatives and DoCS caseworkers.

22 Attached to Ms Miller’s closing submissions was a letter from the Legal Services Commissioner to the Department dated 31 January 2007. It indicated that as at early 2007 the protocol between the Law Society and the Department (referred to above) had not been finalised. The Commissioner pointed out that there was no protocol in place setting out the proper course to follow where agreement cannot be reached between the Department and a child’s representative about arrangements for interviewing the child. In the Commissioner’s opinion, the issues highlighted by Ms Miller’s complaint did not appear to be addressed by the draft protocol.

23 Recommendation 3: Providing guidance to staff Ms Herberte’s evidence was to the effect that the Ombudsman’s report had been circulated to relevant managers but not to front-line staff. She said that the matter had been placed on the agenda of management meetings and that she would be discussing with managers, strategies to avoid a reoccurrence of the circumstances that arose in this case.

24 Conclusion As the letter from the Director-General to the Ombudsman dated 30 August 2006 reveals, the recommendations made by the Ombudsman were not adopted in full: the apology issued to Ms Miller was not in the broad terms recommended nor was it decided to develop a stand-alone policy or guidelines for staff about the role of a separate representative. (We will return to consider the response to Recommendation 3.)

25 The issue here is not whether that decision was the ‘correct and preferable’ one but whether it constituted a decision ‘not to take action recommended by the Ombudsman … or to take part only of the action so recommended’. The inescapable conclusion is that a decision was taken not to implement the action recommended by the Ombudsman in full. We do not accept the respondent’s submission that the action taken could be said to constitute ‘substantial compliance’. It follows therefore that the decision falls within with the scope of s 28 of the CS (CRM) Act.

Alternative and satisfactory means of redress?

26 Section 32(1) of the CS (CRM) Act provides that the Tribunal may decline to hear or determine an application if, in the opinion of the Tribunal ‘the applicant has available an alternative and satisfactory means of redress…’. The respondent submits that the facts of this case warrant an exercise of that discretion.

27 The ‘alternative and satisfactory’ means of redress identified by the respondent as available to Ms Miller, is s 27 of the Ombudsman Act. It provides:

1) 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 must also provide the responsible Minister with a copy of the report.

2) The responsible Minister must make a statement to the House of Parliament in which the Minister sits in response to the report not more than 12 sitting days after the report is made to the Presiding Officer.

28 Before the s 32(1) discretion can be exercised it must be established that the applicant has available a means of redress. The power of the Ombudsman to make a report to Parliament does not in our view constitute a means of redress available’ to Ms Miller. The power to table a report in Parliament vests in the Ombudsman alone and is not shared with the complainant.

29 In the absence of evidence of an available and satisfactory means of redress it is not open to us to decline to determine the Application under s 32(1) of the CS (CRM) Act.

Can the Tribunal exercise jurisdiction?

30 The respondent contends that the Administrative Decisions Tribunal Act 1997 (Tribunal Act) does not authorise the Tribunal to exercise jurisdiction in the circumstances of this case. The primary submission made on behalf of the respondent is that if the Tribunal did exercise jurisdiction it would be obliged to enter the arena of ‘policy formulation’, which it is neither authorised or equipped to undertake. Before examining that submission it is necessary to set out the statutory framework under which the Tribunal exercises its power of review.

31 Statutory framework Section 38(1) of the Tribunal Act confers jurisdiction on the Tribunal to review ‘a decision’ made by an administrator in the exercise of a function conferred or imposed by an Act or statutory rule if the Act or statutory rule grants the Tribunal jurisdiction to do so. Here, s 28 of the CS (CRM) Act, provides that a person may apply to the Tribunal for review of certain decisions, including decisions prescribed by the regulations made pursuant to the Act. The decision the subject of Ms Miller’s Application is an example of that class of decision.

32 Chapter 5 of the Tribunal Act is headed ‘Process for review of reviewable decisions’ and sets out the procedures for applicants and administrators to follow when the Tribunal has jurisdiction to review a decision of an administrator. Section 48(1) of the Tribunal Act requires an ‘administrator’ who makes a ‘reviewable decision’ to take reasonable steps to provide an ‘interested person’ with written notice of the ‘decision’ and of the person’s right to have the decision reviewed. A ‘reviewable decision’ is defined in s 8 of the Tribunal Act to be ‘a decision of an administrator that the Tribunal has jurisdiction under an enactment to review’.

33 Applications to the Tribunal for review may generally be made only after an internal review by the administrator (ss 47, 55(1)(b) of the Tribunal Act), but that requirement may be waived (s 55(2)). (In this case the respondent advised that it did not object to the matter proceeding in the absence of an internal review.)

34 Division 3 of Part 3 of Chapter 5 of the Tribunal Act is headed ‘Powers on review’. Section 63 (1) provides that, when reviewing decisions, the Tribunal is to decide what the correct and preferable decision is. The Tribunal then has the power to affirm, vary, set aside or remit the decision to the ‘administrator’. Section 63 states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal

35 Section 65 provides that at ‘any stage of proceedings… the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator’. If a decision is remitted the administrator may affirm, vary or set aside the decisions and make a new decision in substitution.

36 Section 64 is headed ‘Application of Government policy’. Section 64(1) provides that the Tribunal must ‘give effect to any relevant Government policy … except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case’. For convenience we set out the provision in full:

(1) In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case.

(2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter.

(3) The certificate is evidence of the Government policy concerned and the Tribunal is to take judicial notice of the contents of that certificate.

(4) In determining an application for a review of a reviewable decision, the Tribunal may have regard to any other policy applied by the administrator in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case.

(5) In this section:

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

37 Submissions The respondent contends that by implication s 64 carves out one area in which the Tribunal cannot make the correct and preferable decision. It argues that the orders sought by Ms Miller in respect to Recommendation 2 would require the Tribunal to effect a change in Government policy which it cannot do if it must give effect to it by the operation of s 64(1).

38 It argues that the Tribunal is being asked by Ms Miller to formulate Government policy and on the proper construction of ss 63 and 64 of the Tribunal Act is prevented from doing so. In the alternative the respondent contends that the Tribunal has and should exercise its discretion not to make a determination.

39 The respondent in addition points to very real difficulties of the Tribunal proceeding to determine the Application. These include:

- the difficulties of policy review (let alone formulation), in an adjudicative setting which is of narrow compass and party controlled;

- the limited staff and resources available to a Tribunal;

- the undesirability of there being two policies governing the one area;

- the improbability of a tribunal, being dissatisfied with government policy, being able to formulate a coherent and consistently applied alternative of its own;

- the fact that the legitimacy of many policies depends upon the way they are developed and maintained in frankly political debate and in consultation with affected groups.

40 The respondent argues that the Tribunal should decline to determine Ms Miller’s application. He points to the ‘unusual nature’ of the case and contends that if the Tribunal did exercise jurisdiction it would be required to ‘stand in his shoes’ and determine the appropriate response to the Ombudsman recommendations based only on the limited facts before it, namely the report prepared by the Ombudsman. This could include deciding that the Ombudsman’s recommendations be implemented in full or rejecting them entirely. The implications of these possibilities supports the conclusion that the Tribunal could not or should not exercise jurisdiction.

41 It is argued for Ms Miller that as the Tribunal has jurisdiction to determine the Application it has the power to require the Department to fulfil its functions and formulate appropriate policy to remedy the deficiencies the Ombudsman has identified. It is pointed out that Ms Miller is not seeking that the Tribunal formulate the operational policy recommended by the Ombudsman but rather that it direct the Department to do so.

42 Conclusions Whether the Tribunal is well placed to review the decision made by the respondent, or as matter of public policy should do so, is a matter for Parliament not the Tribunal. While s 64 requires the Tribunal to ‘give effect to any relevant Government policy in force’ and to have ‘regard to any other policy applied by the administrator’, as a matter of statutory construction, once an application for review of a reviewable decision is made, the Tribunal, ‘is to decide what the correct and preferable decision is’ (s 63). Read together ss 63 and 64 do not operate, as the respondent’s submissions suggest, to give the Tribunal the option of not exercising its power of review.

43 It is well-recognised that while administrative tribunals, including those, such as this one and the Federal Administrative Appeals Tribunal, which deal with reviews of or appeals against administrative decisions, are not part of the executive arm of government, they operate quasi-judicially and do not ordinarily formulate government policy. In Re Drake (No.2) (1979) 2 ALD 634, Brennan J (at 643-45) carefully considered the question of how the Federal AAT should approach policy issues. While he accepted that the AAT had powers ‘wide enough to permit the sterilization or amendment of policy in its application to the case’ that came before the AAT, ‘there are substantial reasons which favour only cautious and sparing departures from Ministerial policy’. The principal reason he gave was that not only would such a departure nullify the policy itself, it would also catch and eliminate ‘any mechanism of surveillance which the relevant statute permits or provides’. In general terms, he considered that ‘it would be manifestly imprudent for the Tribunal to override a ministerial policy and to adopt a general administrative policy of its own’ because this would lead to uncertainty and inconsistency in administrative decision-making in the affected area.

44 We think that this Tribunal, which, unlike the Federal AAT, is obliged to apply government policy, ought take an approach as considered as that taken by the AAT, if not more so, for the same reasons and for the further reason that, generally speaking, administrative tribunals are not adequately equipped to take into account all the ramifications and consequences of amending a policy of any real complexity.

45 That said, some policies may be applied in different ways without being altered and not all policies are of equal complexity or seriousness. Not all policies and procedures applied by government departments and agencies are the product of a Cabinet or ministerial decision, or have been adopted by Cabinet or a minister. Minor policy issues of a procedural nature may well be decided by a delegate, such as a Director-General or other senior officer.

46 Where there is no policy, or where a current policy does not address a particular issue which had been raised by the Ombudsman, there is no particular reason in principle why this Tribunal ought not come to a view that a policy ought be developed to address the issue if the Tribunal otherwise has jurisdiction to deal with the question. To do so is not to interfere with or alter or ‘sterilise’ government policy, it is to support a recommendation of the Ombudsman that the problem be addressed, not to provide the content of the policy that addresses the problem.

47 Further it is to be observed that when acting as substitute administrator the Tribunal’s powers are extremely wide-ranging. It may ‘exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision’ (s 63(2)).

48 The Ombudsman has no power to enforce his recommendations. If they are not accepted by a government authority, his only power is to report to Parliament. It is appropriate that the Ombudsman not have power to force through his recommendations because he has no responsibility for the formulation of government policy and is not accountable to the legislature in the way a minister is. Investigations by the Ombudsman, although frequently not welcomed by government authorities, have been recognised as an aid to better government administration because they may point out policy vacuums or flaws or shortcomings in the provision of government services and so on.

49 If the Ombudsman identifies an administrative problem caused by a policy vacuum, which is the suggestion in this case, and considers that there is a need for a policy to address it, which is also suggested in this case, it can hardly be an ‘interference’ with the Director-General’s or the Minister’s roles if the Tribunal agrees that there is a problem that requires a solution in the form of a policy. It would seem that s 32(1) of the CS (CRM) Act and its Regulation were enacted for the purpose of ensuring that service providers gave proper consideration to any recommendation made by the Ombudsman.

50 For these reasons we are not persuaded by the respondent’s argument that the Tribunal ought (or can) decline to exercise its jurisdiction in the circumstances of this case.

Correct and preferable decision

51 The Tribunal ‘stands in the shoes’ of the Director-General and is required to make the ‘correct and preferable’ decision having ‘regard to the material then before it’. It is in the nature of a review de novo and is required to be conducted ‘without any presumption as to the correctness of the decision’: McDonald v Guardianship Administration Board [1993] 1 VR 521 at 530 (SupCtVic, Appeal Div).

52 One of the arguments advanced by the respondent in support of its contention that the task faced by the Tribunal is difficult, if not impossible to undertake, is that in deciding the correct and preferable response to the Ombudsman’s recommendations it would be necessary to give careful consideration to among other things, the history of the respondent’s dealings with Ms Miller over time. If, in the opinion of the respondent, that history is relevant to the decision the subject of Ms Miller’s Application, then any relevant documents should have been provided to the Tribunal (s 58(1)(b) of the Tribunal Act). We fail however to see the relevance of this submission given that in final written submissions, it was stated for the respondent that he did not seek to go behind the findings of fact set out in the Ombudsman’s report.

53 Ms Miller contends that at the heart of the respondent’s refusal to adopt Recommendation 1 is the refusal to accept that DoCS’ role is to facilitate legal representation for children in care. She argues that the benefit of an apology would be that it would serve to denounce the offending behaviour and correct the public record. She submits that the Tribunal ought direct the Director – General to issue an apology in accordance with the Ombudsman’s recommendation that is, in broader terms than that ultimately provided.

54 The Tribunal does not, as Ms Miller’s submission suggests, have power, to order the respondent to issue an apology in the terms recommended by the Ombudsman (or any other terms). The orders available to the Tribunal are limited to those set out in s 63 that is, to affirm, revoke or, set aside the reviewable decision and make a decision in substitution or remit the decision to the administrator for reconsideration with directions or recommendations. (See also ss 65 and 85 of the Tribunal Act.) The Tribunal could set aside the offending decision and decide to adopt the Ombudsman’s recommendation in full, including the issue of an apology in the terms recommended by the Ombudsman. By the operation of s 66(2)(a) of the Tribunal Act that decision would then be taken to be the decision of the Director-General. It is apparent this is not what is sought by Ms Miller. She seeks an acknowledgment by the Director-General, that the conduct she complained about to the Ombudsman warrants a more fulsome apology than that she received.

55 It would be open to us, if we thought appropriate, to remit the reviewable decision for reconsideration by the respondent with a direction or recommendation that the form of apology recommended by the Ombudsman be offered to Ms Miller.

56 As the respondent points out, courts are reluctant to order parties to apologise because, as Hely J said in Jones v Scully (2002) 71 ALD 567 at [245], ‘the idea of ordering someone to apologise is a contradiction in terms’. In Burns v Radio 2UE Sydney Pty Ltd & Ors (No 2) [2005] NSWADT 24, a decision of the Equal Opportunity Division of the ADT, the Tribunal commented (at [29]):

We agree that if an apology is understood, as it is commonly understood, to be a statement that reflects a person’s own feeling of regret for conduct that has caused offence or harm, then of its nature it cannot be ordered to be made, unless the feeling is in fact held and it is only its expression that is ordered. In submissions the applicant, however, says that an apology for purposes of s113(1)(b)(iiia) should be understood as being associated with a legal requirement, rather than “genuine and voluntary”. The Anti-Discrimination Act 1977 makes clear that there is power to order an apology in respect of a vilification complaint. The apology is acknowledgement of the wrongdoing and, seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings, it can properly be compelled by way of order. There would be a welcome extra dimension to the apology if it reflected that the person actually regrets the conduct.

57 If a person has been found to have done some wrong to another and refuses to apologise, his or her lack of remorse may diminish him or her in the eyes of others but so may an insincere or merely formulaic apology. The Director-General has had ample opportunity to consider the criticisms levelled at the Department about its conduct in this matter including those made by Justices Rein and Ainslie – Wallace and the Ombudsman. He remains of the view that a full apology to Ms Miller is inappropriate. In these circumstances we question the utility of directing the Director-General to reconsider his position.

58 As we read the Ombudsman’s second recommendation, the Ombudsman is not being unduly prescriptive. While, unfortunately, it seems that the dispute between Ms Miller and the respondent has led to each party taking entrenched positions and at times the argument has generated some heat, it is difficult to understand why the respondent has spent so much time and effort in resisting what appears, on its face, to be a simple solution to a simple problem. Indeed, one cannot help thinking that if the effort entailed in litigating this matter had been spent on solving the problem – that is, developing the suggested guidelines – the time and resources applied would have been far more advantageously utilised.

59 The Director-General’s answer to Recommendation 2 is that it is unnecessary as, first, the case is a one-off and not representative of the relationship between DoCS officers and legal representatives appointed to represent children in care. Second, he points to the review of current policy and guidelines now being undertaken, albeit more limited in focus than that recommended by the Ombudsman.

60 While the likelihood of a child for whom the Minister has parental responsibility being unable to meet with their lawyer before court proceedings because of a dispute between their lawyer and officers of the Department might be low, in our view the seriousness of that situation demands that measures be taken to minimise, if not eliminate, the possibility. This case demonstrates that there was no reliable mechanism in place to resolve an impasse of that type. Government policy on this issue is unequivocal: children are to be given the opportunity to express their views about, and participate in, decisions that are ‘likely to have a significant impact’ on them (ss 9(b) and 10 of the Care and Protection Act). It would be difficult to imagine an issue more likely to have a more significant impact on a child than one concerning who would be charged with parental responsibility for them.

61 In our view the circumstances of this case demonstrate that guidelines of the type recommended by the Ombudsman would be useful in avoiding the sorts of conflicts that arose in it. For these reasons we consider that the correct and preferable decision is that Recommendation 2 ought be implemented. In saying so, we do not consider it our place to formulate the answer to the problem. Nor do we imply that the Director-General ought accept an answer suggested to him by Ms Miller or any other person with a particular interest. We do not seek to prescribe how the guidelines are developed, only that they ought to be.

62 The respondent argues that no further action is warranted as the review outlined by Ms Hereberte in evidence before the Tribunal is now underway. We note that the Ombudsman did not prescribe a timeline for the implementation of Recommendation 2 and acknowledged that some work had already been undertaken when the report was handed down.

63 Our task is to decide what the correct and preferable decision is, not whether the decision taken by the respondent was the correct and preferable when it was made in August 2006. As Hodgson JA commented in YG & GG v Minister for Community Services [2002] NSWCA 247 at [25]:

[O]n a merits review by the Tribunal [under s 63(1) of the Tribunal Act] … there is no two-stage process: the issue for determination is what is the correct and preferable decision at the time of the determination, irrespective of whether it was or was not the correct and preferable decision at the time it was originally taken. If necessary then, the Tribunal may make an order under s.66(2)(b) that its decision take effect on and from some date other than the original decision.

64 Therefore the question we must ask is this- what is the correct and preferable decision, on the information now before us? We consider that a relevant factor to be taken into account is the progress, if any, in respect of the development of amended guidelines and polices. On the information available to us that exercise would appear not to have been completed. If, since the close of submissions in these proceedings the amended policies and guidelines have been introduced, then the orders we propose to make will be otiose. If, however, that has not happened, given the passage of time since the Ombudsman’s recommendations were provided to the Director-General, we believe that the timetable for implementation of that recommendation should be revisited. We recommend that the respondent work towards the implementation of the recommendation by 1 September 2007.

65 The respondent asserts that action has already been taken in respect of Recommendation 3. Ms Miller asserts that the evidence reveals that the action taken was insufficient as evidenced by the fact that the front line staff involved in the dispute were not provided with a copy of the Ombudsman’s report or recommendations.

66 In our view it would be inappropriate for the Tribunal to examine in detail the action taken by the Department in relation to particular staff or to direct or recommend further remedial action, if we were concluded that was appropriate. We recommend however that when the review is completed that the revised guidelines and polices be brought to the attention of all relevant staff including caseworkers. We also recommend that the Director-General provide further training to relevant staff on the role of a representative appointed under s 99 of the Care and Protection Act.

67 Finally, one of the arguments made by the respondent is that the application may be an interference with the exclusive jurisdiction of the Children’s Court of NSW or the Family Court of Australia. We do not think so. In any event, if it is not self-evident already, we wish to make it plain that by taking the approach we have we in no way seek to interfere with, much less bind, courts and how they make orders for the appointment of guardians ad litem or legal representatives. We recognise that that is not only beyond the scope of the Tribunal’s jurisdiction, but that it would be completely inappropriate.

Costs

68 Ms Miller seeks an order for costs. She contends that the approach taken by the respondent to her application for review has at all times been obstructionist. She contends that in these proceedings the respondent has taken every conceivable point regardless of merit and, in addition, failed to comply with the Tribunal’s timetable.

69 She argues that the respondent’s conduct in respect of the mediation is relevant to the decision on costs. She argued that it became apparent that the respondent’s representatives who attended the mediation did not have appropriate instructions. She claimed that the subsequent engagement of a new solicitor, after considerable time and energy had been expended in attempting to negotiate a settlement, effectively extinguished any possibility of agreement being reached.

70 The respondent argues that the circumstances of this case do not warrant an order for costs. He contends that he was entitled to defend the proceedings with full rigour. He argues that many complex and novel issues raised were raised by Ms Miller’s Application not least of which being the Tribunal’s jurisdiction to entertain the application at all. Ms Miller account of the events surrounding the mediation is disputed.

71 The Tribunal’s power to award costs is to be found in s 34 of the CS (CRM) Act. Section 34(1) provides that the Tribunal may, if in the particular circumstances of the case it is of the opinion that it is appropriate to do so, make orders with respect to the payment of costs of proceedings before it. Section 34(4) clarifies that s 34 is to apply despite the provisions of s 88 of the Tribunal Act. The latter provides that the Tribunal can only award costs if it is satisfied that ‘special circumstances’ exists.

72 We have not been able to locate any decisions where s 34 has been considered. It is in broadly similar terms to s 110(2) of the Anti-Discrimination Act 1977 (the AD Act) which provides that ‘if the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so, it may make such order as to costs … as it thinks fit’. The AD Act, in contrast to the CS (CRM) Act expressly states that ‘each party to an inquiry shall pay his or her own costs’: s 110(1). It is to be observed that proceedings brought under the AD Act are different in character to under the CS (CRM) Act, the former being an exercise of the Tribunal’s original jurisdiction, the latter an exercise of its review jurisdiction.

73 Nevertheless despite these differences, those decisions in the Equal Opportunity Division of the ADT that have considered s 110 of the AD Act provide useful guidance on the factors this Tribunal ought have regard to, in determining whether to exercise its discretion to make an order for costs. (See for example Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10; Graham v Director-General, Department of Community Services (EOD) [2001] NSWADTAP 4; Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25; Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35; Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45; Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118)

74 The Appeal Panel in Tu v University of Sydney (No 2) commented at [42] that:

The sanction of a full costs order against a complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

75 While the decision in Tu concerned an application for costs against an unsuccessful complainant, the restrained approach to costs advocated by the Panel in our view has wider application. We believe the discretion to order costs in the Community Services Division of the Tribunal ought be exercised with extreme caution. As observed in Maylor (No. 2) the too-ready ordering of costs has the potential to have a “chilling effect” on complainants who have an interest in maintaining access to justice in a jurisdiction where the normal rule that costs follow the event, does not apply.

76 That being said the conduct of the parties in the proceedings is one of the factors to be taken into account in determining whether the particular circumstances of a case might warrant the exercise of the discretion to order costs. That the respondent raised a number of issues about the exercise and nature of the Tribunal’s jurisdiction in our view does not justify an exercise of the discretion. In respect to the conduct of the failed mediation we have before us conflicting accounts about the conduct of each party. From that we are unable to conclude that the respondent obstructed the process or, as suggested, misled Ms Miller as to his bona fides in exploring settlement.

77 Having regard to all relevant factors we are not persuaded that the circumstances of this case warrant an order for costs.

Orders

78 We make the following orders:

1. The decision not to fully implement the recommendations made by the Ombudsman as set out in his final report made under s 26 of the Ombudsman’s Act 1974 dated 4 August 2006 is remitted to the Director-General, Department of Community Services under s 63(3)(d) of the Administrative Decisions Tribunal Act 1997 with the following recommendations:
(i) that Recommendation 2 made by the Ombudsman be adopted in full no later than 1 September 2007;

(ii) that any revised guidelines and or polices arising from the implementation of Recommendation 2 be provided to all relevant staff including caseworkers;

(iii) that staff be provided with further training on the role of a representative appointed under s 99 of the Children and Young Persons (Care and Protection) Act 1998.

2. The application for costs made by the applicant is refused.