Schramm v Comm for Complaints - [2005] FMCA 1441

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCHRAMM & ORS v COMM FOR COMPLAINTS
& ANOR

[2005] FMCA 1441

ADMINISTRATIVE LAW – Application pursuant to Administrative Decisions Judicial Review Act – whether decision discretionary – whether use of the word “may” discretionary or compulsive effect – whether extension of time should be granted – whether breach of rules of natural justice – whether ‘decision’ made for purposes of ‘ADJR Act’ – whether decision should be set aside.

Administrative Decision Judicial Review Act 1977, ss.3, 8(2)
Aged Care Act 1997
Acts Interpretation Act 1901, s.33(2A)

Samad v District Court (NSW) (2002) 209 CLR 140
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64
McDowell & Partners Pty Ltd v Button (1983) 50 ALR 647
Willara Pty Ltd v McVeigh (1984) 54 ALR 65
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicants:

IRENE SCHRAMM, EVELYN HORNIG, KATHY MITCHELL and JUNE SMITH

Respondents:

THE COMMISSIONER FOR COMPLAINTS, AGED CARE DISPUTE RESOLUTION SCHEME and COMMONWEALTH DEPARTMENT OF HEALTH & AGEING

File Number:

SYG 785 of 2005

Judgment of:

McInnis FM

Hearing date:

26 September 2005

Delivered at:

Melbourne (by video link to Sydney)

Delivered on:

22 December 2005

REPRESENTATION

Counsel for the Applicants:

Mr S. Doctor

Solicitors for the Applicants:

Legal Aid Commission of New South Wales

Counsel for the Respondents:

Mr G. Kennett

Solicitors for the Respondents:

Phillips Fox

ORDERS

Under paragraph 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 the time within which the application for review must be lodged is extended to 31 March 2005.
The decision of the Commissioner of Complaints, Aged Care Resolution Scheme dated 4 November 2004 be set aside.
The Respondents shall pay the Applicants’ costs including reserved costs if any, upon the Federal Court Scale to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
Liberty to apply in relation to the question of costs be granted to the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG785 of 2005

IRENE SCHRAMM, EVELYN HORNIG, KATHY MITCHELL
and JUNE SMITH

Applicants

And

THE COMMISSIONER FOR COMPLAINTS, AGED CARE DISPUTE RESOLUTION SCHEME and COMMONWEALTH DEPARTMENT OF HEALTH AND AGEING

Respondents

REASONS FOR JUDGMENT

(As Corrected)

This is an application pursuant to the Administrative Decision Judicial Review Act 1977 (the ADJR Act). The Applicants seek judicial review of a decision of the Commissioner of Complaints (“the Commissioner”) of the Commonwealth Government’s Aged Care Complaints Resolution Scheme (“the Scheme”). The application relates to a purported decision by the Commissioner dated 4 November 2004 whereby the Commissioner purported to rely upon s.1064A of Committee Principles 1997 (the Committee Principles) discontinuing a referral to a Complaints Resolution Committee (the Committee) for determination of a complaint from the Applicants in relation to aged care service provided by an approved provider under the Aged Care Act 1997 (the Act).
The purported decision dated 4 November 2004 states in part the following:-
A Complaints Resolution Committee can only make a Determination in relation to a breach of an Approved Provider’s responsibilities under the Aged Care Act 1997 as those breaches relate to a care recipient.
While I acknowledge the issues you raise are serious, they appear to be systemic in nature and fail to identify individual care recipients. As such, a Committee is unable to make a Determination on such matters.
Subsection 1064A of the Committee Principles 1997 states:
If the Commissioner for Complaints considers that it is no longer necessary or appropriate for the complaint to be resolved by determination, the Commissioner may dissolve the committee and discontinue dealing with the complaint.
Given a Committee would be unable to bring a resolution to the issues you raise, I have decided to discontinue dealing with the matter. However, as the issues are of a serious nature, I have referred them to the Secretary of the Department of Health and Ageing for their information and referral to the Aged Care Standards and Accreditation Agency for action. Any issues that concern the behaviour of a professional can be brought to the attention of the relevant professional registration body.
I trust this clarifies the matter.
The Applicants are former employees of the approved provider who had made the complaint about the approved provider which was referred to the Committee for determination. The formal complaint was set out in a letter dated 29 April 2004 forwarded to the Manager of the scheme from Mr Sergent, a solicitor with the New South Wales Legal Aid Office. In that letter the author claims to act for “a current resident and current and former employees” of the approved provider. The letter states in part the following:-
We have been instructed to make a formal complaint to the Aged Care Complaints Resolution Scheme as a result of the ongoing and serious nature of allegations raised by our clients.
The letter further refers to a summary of the complaints concerning management of the approved provider and specifically named an individual referred to as the “administrator/manager”. Annexed to the formal complaint were statements together with handwritten notes of a former employee, now the first applicant. Reference was made to a complaint previously made by the second applicant to the Scheme and other material provided by a resident at the aged care facility conducted by the approved provider. Further information was provided to the Manager of the Scheme by the Applicants’ solicitor.
It is not necessary to recite in detail the particulars provided by the Applicants’ solicitors save that the particulars of the complaints raise what could only be described as a serious issue. Allegations were made about inappropriate clinical care including instructions given to one of the Applicants to administer a sleeping tablet to a resident without a medical order and further that instructions were given to that person not to document this act. It was claimed staff were instructed to administer a strong laxative to a named resident knowing that the resident was suffering from severe diarrhoea for two weeks. It was alleged that this instruction was given to create extra work for a particular nurse and to force a resignation. Another complaint in relation to a named resident involved an allegation that the Manager had refused to send a resident off to hospital despite the fact that the resident was in severe pain. The kitchen staff were instructed to give the resident a dose of oral morphine. The resident’s pain did not subside and he died the following day. Another complaint concerned mistreatment of an insulin-dependent diabetic denied service of a meal to his room resulting in the resident becoming very ill, requiring transfer to hospital. Other complaints identified, in general, referred to the needs of residents with challenging behaviours not being managed effectively. By way of example of that issue, it was claimed management permitted a resident to drink a full bottle of brandy every day precipitating extreme physical aggression towards staff and other residents.
There are specific complaints about ongoing, inappropriate sexual behaviour of a resident and that complaint being dismissed by management. It is not necessary to recite further particulars. Other issues identified in correspondence apart from inappropriate clinical care and needs of residents with challenging behaviour not being managed effectively may briefly be summarised as follows:-
·Residents choices are not always respected and carried out.
·Inadequate staffing levels to meet the care needs of the residents.
·That there is a lack of or inaccurate documentation of resident incidents and accidents.
·That management does not promote an environment whereby residents feel they are free from reprisal or a well-founded fear of a reprisal in any form for taking action to enforce their rights or raise a complaint.
·That following changes to provisions of chemist services to the hostel residents are unable to have a choice as to the supply of the pharmaceutical goods.
·That staff do not comply with regulatory requirements in respect to administration of resident medication.
·That staff education and development is not made available to ensure resident care outcomes are maintained in a safe environment.
·That staff practices do not maintain appropriate infection control practice.
·That management behaviour compromises resident care.
·That there is inadequate wheelchair maintenance.
·That the hostel inappropriately manages donations given to residents.
·That a resident’s belongings were not forwarded with the resident following their discharge from the hostel.
It will be noted from that list that some of the issues may be described as general or non-care recipient specific. However, other issues were illustrated by a specific example from named care recipients.
By letter dated 17 June 2004 addressed to the Applicants’ solicitors a complaints resolution officer and delegate (the delegate) of the secretary of the second respondent acknowledged receipt of the complaint and in part states the following:-
Following the receipt of this complaint the Scheme contacted your office on 6 and 7 May 2004 and left you a message to contact the Complaints Resolution Officer at your convenience. We discussed the matter during our telephone conversation on 10 May 2004. During this conversation, the Scheme requested that you identify, in writing, the parties to this complaint and clarify to the Scheme in what capacity you are acting. Further you advised that you are hoping this complaint will proceed to Determination.
The letter from the delegate notes the request by the Applicants to have the concerns investigated though explains that the “Scheme does not investigate but rather aims to resolve complaints through negotiation, mediation or, if necessary, determination”.
The delegate then sets out the background of the Scheme and refers to issues of confidentiality and the purpose of the Scheme. Other information was sought some of which was apparently raised in a telephone discussion between the delegate and the Applicants’ solicitors on 10 May 2004. In any event the letter dated 17 June 2004 further provides the following:-
In order that I can finalise the assessment of your complaint and make a decision whether your complaint can be accepted by this Scheme I require the following information:
·    advice detailing the capacity in which you are acting with this complaint.
·    names of your clients/parties to the complaint, who wish to be involved in the resolution processes. Please note that unless identified, parties may not be able to be involved in all the resolution steps available under the Scheme.
·    confirmation from the various parties to the complaint giving you authority to deal with the Scheme on their behalf. This will allow the Scheme to discuss with you, personal details pertinent to the parties involved, and involve you in the resolution process.
To progress this matter in a timely manner, I would appreciate your response by 25 June 2004.
Please be advised that no further action will be taken by the Scheme until the information requested above is received.
During the course of correspondence it is noted that the solicitors for the Applicants had advised the complaints raised by two care recipients would be dealt with separately to the issues raised by the Applicants who are described as being “ex-staff who are party to this complaint”.
After acknowledging that the two matters would be dealt with separately the delegate by letter dated 27 August 2004 addressed to the applicants’ solicitors attempts to summarise the complaint and identifies a number of issues by way of summary.
Apparently a meeting occurred at the offices of the Applicants’ solicitors on 19 July 2004 when the delegate and other officers from the Scheme sought to further clarify the issues. A further summary was provided after that meeting by letter dated 29 September 2004 from the delegate to the Applicants’ solicitors. After summarising the issues the delegate in the same letter then states the following:-
My decision
As a delegate of the Secretary to the Department of Health and Ageing, I am authorised to make decisions about the matters you have raised with the Scheme. I have included an outline of the relevant parts of the legislation at Attachment A for your information.
Following my preliminary assessment, I have decided to accept part of your complaint. I have also decided to not accept parts of your complaint under paragraphs 10.45(1)(d) and (e) of the Committee Principles 1997 for issues 13 and 14 respectively (see attachment A).
that the complaint is not a complaint that the complainant is entitled to make under this Chapter and I am satisfied that the approved provider has not breached its responsibilities in the way that you have described in your complaint.
The issues that I have decided to accept as a complaint are set out in Part A. Also included in Part A is information about the next step in the Complaints Resolution Scheme process to resolve the issues.
The issues that I have decided to not accept as a complaint are set out in Part B. Also included in Part B are my reasons for not accepting part of your complaint and information about your appeal rights.

Part A
My decision to accept part of your complaint
As stated above, I have decided to accept part of your complaint. This decision is in relation to the issues outlined below:
Issue 1: Inappropriate clinical care
Issue 2: That the needs of residents with challenging behaviour are not managed effectively
Issue 3: Residents’ choices are not always respected and carried out
Issue 4: Inadequate staffing levels to meet the care needs of the residents
Issue 5: That there is a lack of, or inaccurate, documentation of resident incidents and accidents
Issue 6: That management does not promote an environment whereby residents feel they are free from reprisal, or a well founded fear of reprisal, in any form for taking action to enforce their rights or raise a complaint
Issue 7: That, following changes to provision of chemist services to the Hostel, residents are unable to have a choice as to the supply of the pharmaceutical goods
Issue 8: That staff do not comply with regulatory requirements in respect to administration of resident medication
Issue 9: The staff education and development is not made available to ensure resident care outcomes are maintained in a safe environment
Issue 10: That staff practices do not maintain appropriate infection control practice
Issue 11: That management behaviour compromises resident care
Issue 12: That there is inadequate wheelchair maintenance
As prescribed within the Committee Principles 1997, the Scheme must make a preliminary assessment of the complaint. Following the assessment, a decision is made to accept or not to accept the issue(s) raised. Should the complaint be accepted, the Secretary may decide to refer the issues for Mediation or to a Complaints Resolution Committee for Determination.

The delegate then refers to the procedure to be followed if mediation or referral to a Complaints Resolution Committee are considered to be appropriate. It is noted that the Applicants’ solicitor was acting as “an advocate to your clients and not acting in a legal capacity in respect to the matters raised with the Scheme”, and otherwise referred to the confidentiality of the names of residents disclosed in initial correspondence and the removal of those names from the issues list prior to communicating the issues to the approved provider. The letter then further states the following:-
Next step in the Aged Care Complaints Resolution Scheme process
The next step in the process is to work with all the parties to resolve the complaint. In this case I have decided to refer the complaint to a Complaints Resolution Committee for Determination. This may involve exchanging information I receive from you and from the other parties so that everyone understands the issues.
Please let me know within 7 days of the receipt of this letter if there is any information you have provided that you are not prepared to have passed on to the service provided, or to any other parties, I would also appreciate being advised of the reasons for your concerns.
In my view it is clear that up to that point the delegate has made a decision and has accepted part of the complaint and further decided to refer the matter to a Complaint Resolution Committee for determination. In the same letter the delegate decided not to accept part of the complaint. The delegate sets out the issues and the information relied upon in making that decision and claims that the decision not to accept parts of the complaint was made pursuant to paragraph 2.45(1)(d) and (e) of the Committee Principles. Reasons are given for that decision and the delegate further advises that there is a right to ask the Secretary of the Department of Health and Ageing to reconsider the decision to not accept part of the complaint under s.10.47 of the Committee Principles. By letter dated 27 October 2004 the delegate again writes to the Applicants care of their solicitor confirming the complaints had been referred to a Complaints Resolution Committee for determination. The letter states in part the following:-
The Complaints Resolution Committee has power to hold a hearing and make a determination on the course of action to be taken to resolve the complaint. It is independent and has been appointed under the Committee Principles 1997.
The Committee will hold a determination hearing about the complaint. You are welcome to attend and to be accompanied by an adviser/support person. However, you cannot bring along a person whom you have engaged to provide legal representation.
The delegate then sets out the issues in further detail to be considered by the Committee and states that “they represent the issues which were accepted as part of the original complaint and which remain unresolved”. The Applicants were then invited to forward written submissions to the Scheme and otherwise advised that the hearing would be tape recorded and a determination in writing with reasons for the decision would be provided. An information sheet was attached to the letter outlining Complaints Resolution Committee hearings.
The chronology in the preceding paragraphs ultimately led to the purported decision set out in the letter dated 4 November 2004 referred to earlier in this judgment. The applicants’ solicitor by letter dated 14 December 2004 addressed to the Secretary of the Department refers to the 4 November 2004 letter and states in part the following:-
Could you please advise whether the complaints have been referred to the Aged Care Standards and Accreditation Agency for action and if so what action is proposed.
By letter dated 6 January 2005 the First Assistant Secretary of the Ageing and Aged Care Division of the Department of Health and Ageing responds to the Applicants’ solicitor letter of 14 December 2004 and advises that the information relating to the issue set out in the Commissioner of Complaints letter of 4 November 2004 “was referred by the Department to the Aged Care Standards and Accreditation Agency (the agency) on 17 December 2004”.
By letters dated 23 February 2005 each of the Applicants raise a number of questions in identical form with the Commissioner for Complaints. Those letters each state the following in part:-
It would be appreciated if you could answer the following questions:
1.A number of my former colleagues, who were employees of the (approved provider), and I, were promised a hearing by a Complaints Resolution Committee. Preparations were being made for the hearing. Could you please advise how such a promise, following a thorough assessment by the Aged Care Dispute Resolution Scheme, can be broken?
2.Could you please provide reasons why you consider our complaints are not “in relation” to care recipients, especially following our first hand knowledge, gathered over many years, of the organisation, it’s Board and management?
3.Could you please advise why a Complaints Resolution Committee would be unable to bring a resolution to the issues?
4.Could you please advise why a decision was made to dissolve the Committee when neither of the examples provided in section 10.64A of the Committee Principles 1997 apply to the circumstances of my complaint?

I note in passing that the fourth applicant’s letter was slightly different in that it omitted question 4 though that omission is not of any significance in this application.
The Commissioner by letter dated 3 March 2005 to each of the Applicants states in part the following after referring to the letters dated 23 February 2005:-
In that letter you ask for reasons for my decision. As I stated in my correspondence to you on 4 November 2004, a Complaints Resolution Committee is only able to bring a resolution to a complaint about a care recipient, rather than all of the care recipients of a facility. If the matters relate to all of the care recipients of a facility or the issues are systemic, as they were in this case, the most appropriate way of dealing with the matter is to refer it to the Secretary of the Department of Health and Ageing for their consideration and action which I did.
A Complaints Resolution Committee is unable to make determinations in relation to systemic issues.
As the matter was not able to be resolved by the Complaints Resolution Committee, I dissolved the Committee as I am entitled to do under Subsection 10.64A of the Committee Principles 1997.
I also advised you that you were able to bring the behaviour of a professional to the attention of the relevant professional registration body.
I can add nothing further to this advice and I trust this clarifies the matter.

Jurisdiction

The Federal Magistrates Court (the FMC) has jurisdiction to hear and determine applications made under the ADJR Act (s.8(2)).
The Court needs to consider whether the letter of 5 November 2004 can be regarded as a decision to which the ADJR Act applies pursuant to s.3 of that Act. In the event that the Court were to find that the letter does not constitute a decision to which the ADJR Act applies then it follows that this Court would not have jurisdiction to hear and determine the application.

The Statutory Scheme – the Act

The Act provides for the Commonwealth to give financial support through the payment of subsidies for the provision of aged care and the payment for other matters connected with the provision of aged care (s.3-1). The Act provides a scheme for approval of aged care providers for the purpose of receiving financial support. Relevantly the objects of the Act provide as follows:-
2-1 The objects of this Act
(1)    The objects of this Act are as follows:
(a)to provide for funding of aged care that takes account of:
(i)     the quality of the care; and
(ii)    the type of care and level of care provided; and
(iii)   the need to ensure access to care that is affordable by and appropriate to the needs of people who require it; and
(iv)   appropriate outcomes for recipients of the care; and
(v)     accountability of the providers of the care for the funding and for the outcomes for recipients;
(b)to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c)to protect the health and well-being of the recipients of aged    care services;
(d)    …
Part 2.1 of Chapter 2 of the Act provides for approval of providers of aged care. Chapter 4 of the Act sets out the responsibilities of the approved providers in relation to aged care which are provided through aged care services. The responsibilities relate to the quality of care provided, user rights for the people to whom care is provided and accountability for the care that is provided and the basic suitability of their key personnel (see parts 4.1, 4.2 and 4.3 respectively). Part 4.4 provides for consequences of non-compliance with these requirements and includes the imposition of sanctions procedures as specified which must be followed where sanctions are to be imposed.
Section 53-2 of the Act provides that a failure to meet a responsibility under Chapter 4, if it does not give rise to an offence, does not have consequences under any other law other than the Act. It further provides that if the act or omission that constitutes a failure also constitutes a breach of an obligation under another law then the section does not affect the operation of any law in relation to that breach of obligation (see s.53-2(1)).
An approved provider under Part 4.2 has a number of general responsibilities in relation to residential care, community care and flexible care and in addition responsibilities in relation to “complaints resolution mechanisms” pursuant to s.56-4 of the Act. That section provides in subsection 56-4(1)(e) a duty to “comply with any determination made, in respect of the approved provider, by a committee of the kind referred to in subsection 96-3(2)”.
Section 96-3 provides for the establishment of “committees”. Relevantly for the present purposes one of the purposes for which a committee may be established under s.36-3(2)(b) is:-
…in the circumstances set out in the Committee Principles making determinations resolving those complaints…
“Those complaints” are the complaints referred to in s.96-3(2)(a) which relevantly includes:-
… complaints relating to approved providers, aged care services or the provision of aged care being complaints in respect of matters dealt with under this Act or principles made under s.96-1
Section 96-1 vests power in the Minister to make “principles” dealing with specific matters including the grant of power to make the “committee principles” for the purpose of s.96-3.

Committee Principles

In the Committee Principles Chapter 3 provides for the functions and powers of Complaints Resolutions Committees and the Commissioner and how functions are to be performed. The functions of committees relevantly include under s.10.34 the following:-
(a)review the resolution of aged care complaints by the Secretary under the Complaints Resolution Scheme provided under this Chapter; and
(b)resolve complaints by making determinations under the Complaints Resolution Scheme; …
Section 10.35 refers to the performance of functions of committees and includes that in performing its functions the committee must:-
…
(h)ensure that, in appropriate cases, evidence of systemic or serious isolated issues are referred to the Commissioner
In Part 2 of Chapter 3 reference is made to the making of a complaint and relevantly s.10.38 provides as follows:-
(1)This section applies to a care recipient (the affected care recipient) who is receiving, or is eligible to receive, or who was receiving, or was eligible to receive, aged care through an aged care service provided by an approved provider (the relevant approved provider).
(2)The affected care recipient or his or her representative, or anyone else, (the complainant) may make a complaint to the Secretary about anything that:
(a)may be a breach of the relevant approved provider’s responsibilities under the Act or the Aged Care Principles; and
(b)the complainant thinks is unfair or makes the affected care recipient dissatisfied with the service.
(3)    the complaint may be made orally or in writing
(4)    …
(5)    the parties to the complaint are:
(a)the complainant and the relevant approved provider; and
(b)the following persons or bodies who are not the complainant;
(i)     the affected care recipient;
(ii)    a person acting in advocacy role for the affected care recipient;
(iii)   someone legally appointed to represent the affected care recipient;
(iv)   a person in a significant relationship to the affected care recipient that the care recipient, or his or her legally appointed representative, has indicated to the Secretary and to the Complaints Resolution Committee should be a party to the complaint.
It should be noted that whilst the Committee Principles provide for a complaint to be made either orally or in writing there does not appear to be any prescribed form. Further, although reference is made to a complainant being a party to the complaint, the Committee Principles further provide for withdrawal of a complaint at any time by the complainant. Section 10.41, in addition to making that provision for withdrawal of the complaint at any time by the complainant, provides options to the Secretary of the Department to either stop dealing with the complaint and then tell the relevant approved provider in writing or to continue dealing with the complaint if the Secretary considers that the complaint was withdrawn because of intimidation or harassment of the complainant or the affected care recipient.
It is clear on a proper reading of the Committee Principles therefore that a complaint may continue. It appears to be conceded by the respondent that given the nature of the affected care recipients in Aged Care facilities that complaints may well continue even after withdrawal or upon the death of a complainant.
The Committee Principles further provide for the Secretary to make a preliminary assessment pursuant s.10.42 which provides:-
“10.42 Secretary to make preliminary assessment
(1)The Secretary must make a preliminary assessment of the complaint.
(2)    The purpose of the assessment is to decide:
(a)whether the complaint should be accepted; and
(b)    if so:
(i)     whether it should be referred to another agency; and
(ii)    whether it should be resolved by negotiation, mediation or determination.”
The Committee Principles provide a power in s.10.45 for the Secretary to refuse to accept a complaint. That section provides:-

“10.45 Refusal to accept complaint
(1)The Secretary may refuse to accept the complaint if it is satisfied that:
(a)the complaint is frivolous, vexatious or not made in good faith; or
(b)the subject matter of the complaint has been, or is, the subject of a legal proceeding; or
(c)there is an alternative way of dealing with the subject matter of the complaint and the complainant agrees to have the complaint dealt with in that way; or
(d)the complaint is not a complaint that the complainant is entitled to make under this Chapter; or
(e)the complaint should not be accepted for another reason.”

The Committee Principles further provide for determination of complaint in Part 2 of Chapter 3 and relevantly provides in s.10.63 the following:-
The Secretary must refer the complaint to a Complaints Resolution Committee for determination.
Section 10.64 provides an obligation for the committee to resolve a complaint by determination unless it is dissolved under s.10.64A. Section 10.64A provides the following:-
If the Commissioner for Complaints considered that it is no longer necessary or appropriate for the complaint to be resolved by determination the Commissioner may dissolve the Committee and discontinue dealing with the complaint.
The appointment of Commissioners for Complaints is dealt with in s.10.77 of the Committee Principles which provided the Minister must appoint a Commissioner for Complaints. The functions of the Commissioner are set out in s.10.43A referred to earlier in this judgment.

The Amended Application

In the further Amended Application filed 5 August 2005 the Applicants seek the following orders:-
1. The decision dated 4 November 2004 of the Commissioner for Complaints of the Aged Care Complaints Resolution Scheme to dissolve a Determination Committee and to cease dealing with the Applicants’ complaint to the Scheme in relation to the (approved provider) be quashed and set aside.
2. The Court extend the time as the Court thinks fit within which the Applicants file their application and amended application.
It was agreed at the hearing that the Court should consider the application for extension of time together with the substantive application rather than deal with it as a discrete issue.
The grounds for the application relied upon by the Applicants include the following:-
(1)One or more breaches of the rules of natural justice occurred in relation to a decision by the Commissioner to dissolve an Aged Carer Complaints Resolution Scheme Committee following the referral of a Complaint to the Committee by the Secretary.
The Applicant relies upon ADJR 1977 s.5(1)(a) as interpreted by the common law, submissions on which will be provided at the appropriate time. The following particulars set out the facts and legislative provisions from which the alleged breaches of the rules of natural justice arise.
(2)The Commissioner purported to make a decision under section 10.64A of the Principles which was not a decision he was authorised to make in the circumstances which existed: ADJR s.5(a)(d).
(3)The purported decision by the Commissioner was an improper exercise of the power granted to the Commissioner under Principle 10.64A in that irrelevant considerations were taken into account in the exercise of the power: ADJR Act s.5(1)(e) and (2)(a).
(4)The purported decision by the Commissioner was an improper exercise of the power granted to the Commissioner under section 10.64A in that relevant considerations was not taken into account in the exercise of the power: ADJR Act s.5(1)(e) and (2)(b).
(5)The purported decision by the Commissioner was an improper exercise of the power granted to the Commissioner under section 10.64A in that the decision was, in the context, unreasonable: ADJR Act s.5(1)(e) and (2)(g).
(6)The purported decision by the Commissioner was an improper exercise of the power granted to the Commissioner under section 10.64A in that there was no evidence or other material to justify the making of the decision: Act s.5(1)(h) and (3)(b).
Particulars were sub-joined to most of the grounds relied upon though it is not necessary to recite the particulars in detail as they will be dealt with if necessary when considering the submissions made on behalf of the applicants. Otherwise they contain factual material referred to earlier in this judgment.

The Issues

Whilst the grounds relied upon in the Further Amended Application raise specific criticisms in relation to the purported decision, the respondents appropriately submitted that if the Court were to find that the Applicants’ submissions were correct, namely that a complaint was validly accepted and referred to the Committee and that the circumstances did not dictate there was only one course available to the Commissioner, it would follow if the Court were to find that a decision was made to which the ADJR Act applies that the Applicants must succeed because the Commissioner did not provide the Applicants with an opportunity to be heard on the decision proposed to be made under s.10.64A of the Committee Principles.
In my view the issues which emerged during the course of submissions which may be regarded as threshold issues are the following:-
·Whether the complaint was validly accepted and referred to the Committee.
·Whether the circumstances did not dictate that there was only one course available to the Commissioner.
·Whether there was a decision made to which the ADJR Act applies.

Submissions

The respondents submitted that the staff complaint in this instance was not a complaint made under s.10.38 of the Committee Principles and accordingly was not capable of giving rise to any rights or obligations under the Committee Principles. It was submitted that the Commissioner’s letter dated 4 November 2004 did not contain a decision at all but merely noted the necessary consequences of the operation of the principles. Alternatively, it was argued it set out the only decision available to the Commissioner in the circumstances.
To understand the submission it is useful to restate the following two paragraphs from the Commissioner’s November 2004 letter:-
A Complaints Resolution Committee can only make a Determination in relation to a breach of an Approved Provider’s responsibilities under the Aged Care Act 1997 as those breaches relate to a care recipient.
While I acknowledge the issues you raise are serious, they appear to be systemic in nature and fail to identify individual care recipients. As such, a Committee is unable to make a Determination on such matters.
It was argued that the staff complaint did not identify or name as a party any individual care recipient. Accordingly it fell outside s.10.38 which has as its central focus an “affected care recipient”. The respondent further submitted that it is relevant to note that several of the staff issues were also raised in the residents’ complaint which had been dealt with (with two affected residents parties) by mediation.
It was otherwise submitted by the respondents that the subject matters of the complaint were as pointed out by the Commissioner in the correspondence as “systemic”. It was argued they were not confined to specific incidents involving particular residents or the treatment of a particular resident. Instead they allege widespread and serious failings in the management of the facility with some, but not all, of which relate directly to the treatment of residents. Hence, it was argued the Commissioner was correct to observe that the staff complaint was not capable of being resolved by a determination within the power of the Committee.
By way of an alternative argument it was submitted by the respondents that the staff complaint was not a complaint that the complainant is entitled to make under the chapter and was therefore required to be rejected by the Secretary pursuant to s.10.45(d) of the Committee Principles. Although that section is framed in discretionary terms it was argued each of its paragraphs describes a circumstance in which the respondents submitted “there could scarcely be any doubt about the decision to be made”.
Relevantly, it was submitted that in the present case it could not have been contemplated that the Secretary might reach a conclusion set out in paragraph (d) but nevertheless decided to accept the complaint despite the operation of s.33(2A) of the Acts Interpretation Act 1901.
It was argued that s.10.45 of the Committee Principles must be read as requiring the Secretary to refuse to accept a complaint if satisfied that it is one that the complainant is “not entitled to make under this chapter”. Reference was made to Samad v District Court (NSW) (2002) 209 CLR 140 and in particular the following paragraphs:-
[33] As was pointed out in Ward v Williams there is a long history of legislative intervention in New South Wales "to restrain the development of the notion that permissive words may have a compulsive effect". The current provision is s 9 of the Interpretation Act 1987 (NSW) which, except in so far as the contrary intention appears in an Act or instrument (s 5), provides that the word "may", if used to confer a power, indicates that the power may be exercised or not, at discretion.
[34]An example of a statutory provision in which a contrary intention appeared may be seen in Finance Facilities Pty Ltd v Federal Commissioner of Taxation. Section 46(3) of the Income Tax Assessment Act 1936 (Cth) provided that, if the Commissioner was satisfied that certain conditions as to non-payment of dividends were fulfilled, the Commissioner "may allow" a private company a rebate in its assessment. This Court held that, if the Commissioner was satisfied of the specified condition, then he was obliged to allow the rebate. The taxpayer had a right or entitlement. The context indicated.
…
[66]In Re Carl Zeiss Pty Ltd's Application, Kitto J observed of a provision that the Court or the Registrar "may" order removal of a trade mark that "[t]his is the language of authorisation and not of command". Further, in Ward v Williams, reference was made to authorities indicating that it lies on those who assert that the word "may" conveys a command to show that this is so, as a matter of construction of the statute taken as a whole.
[67]Finance Facilities Pty Ltd v Federal Commissioner of Taxation, upon which reliance was placed, both in the District Court and in the Court of Appeal, was such a case in which the word "may" conferred a power to be exercised not a discretion to be weighed. The key to the decision, that the Commissioner was bound to allow a further rebate if satisfied of the conditions spelled out in s 46(3) of the Income Tax Assessment Act 1936 (Cth), is found in the statement by Windeyer J, one of the majority. His Honour said:
"The right of a taxpayer to a discount or rebate arising from facts objectively determinable is quite properly called an entitlement. A claim to a discount or rebate dependent upon the Commissioner being satisfied of certain fact is equally properly called an allowance, something to be allowed. In some contexts the word `allow' in the phrase `may allow' might enhance a discretion said to be embodied by the word `may'. But not, I think, in this context. The Act is filled with provisions about allowable deductions which are mandatory."

Further reliance was placed upon the decision of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at page 274 where the Court states the following:-
It appears that the insertion of s.22AA by s.8 of the Migration Amendment Act was the first time that the power of the Minister to make a refugee status determination was expressly provided by the Act. In so providing, the nature of the “decision” to be made was changed. The words chosen by the legislature express that “the Minister may determine” that a person is a refugee “if the Minister is satisfied that a person is a refugee” (emphasis added). The Explanatory Memorandum noted the effect of the amendment in stark terms: “This section empowers the Minister to determine that a person is a refugee”.
It will be seen that, in contrast to the previous position, the Minister’s power to make a refugee status determination was now expressly conditioned upon the Minister being “satisfied” that a person was a refugee as defined. It does not follow that a decision-maker so satisfied then has a further discretion whether or not to “determine” refugee status. The word “any” is used here to confer power and not to give discretion.
Reference was made to s.10.35 of the Committee Principles which require a committee in performing its functions to ensure in appropriate cases that evidence of “systemic or serious isolated issues” is referred to the Commissioner. It was specifically noted that pursuant to s.10.35A(e) the Commissioner is to “ensure” that such evidence is referred to a body corporate that is a party to an agreement under s.80-1 of the Act. It was argued this is not a reference to the approved provider itself as s.80-1 provides for the Minister to enter into an agreement with the body corporate under which that body received grants in order to provide “accreditation of residential care services”. Section 10.35A(e) is referring to this body. Accreditation it was submitted is to be provided pursuant to the Accreditation Grant Principles. Accreditation is critical to an approved provider receiving residential care subsidy under the Act (see ss.40-2 and 40-4).
It was noted that where an aged care service is accredited that s.3.21 of the Accreditation Grant Principles provides for the accreditation body to arrange a “review audit” of the service if it believes that there may not be compliance with the “accreditation standards”. It was pointed out by the Respondents that a review audit must also be arranged if the Secretary requests it pursuant to s.3.21(6) of those principles and that this accordingly is a possible outcome if evidence of systemic non-compliance has been investigated by the Department. A review audit can lead to revocation or variation of a services accreditation and the probable affect of a provider losing its accreditation status is that it will be unable to continue to operate as a viable business as it will not be eligible to receive a residential care subsidy from the Commonwealth. Hence, as I understand the Respondents’ submissions there would appear to be a separate stream of compliance assessments conducted from within the Department with departmental officers possessing specific powers to conduct investigations to assess whether or not an approved provider is complying with responsibilities under Chapter 4 of the Act. By way of contrast it was submitted the Committees do not have the resources or the expertise to conduct investigations of audits and do not have the power to enter premises without the occupier’s consent. The Committee cannot make any decision about whether a service ought to retain its accreditation as those issues are within the province of the accreditation body.
It was noted that another issue demonstrating the potential scope of a “complaint” under s.10.38 of the CommitteePrinciples is the protection of confidential information. Section 62-1 of the Act makes it a responsibility of the approved provider not to disclose personal information about a care recipient without his or her consent except for particular purposes which do not include the resolution of complaints. Reference was otherwise made to the provisions of the Privacy Act 1988 (Cth). A committee it was argued does not have the capacity to require the production or giving of evidence nor does the Aged Care Act provide for an authorisation for the personnel or health information of a care recipient to be disclosed by an approved provider in the absence of the care recipient’s consent. It was argued that the result is that it will ordinarily be impossible for a committee to receive and discuss information about the circumstances of an individual care recipient unless the recipient gives consent to participate in the proceedings and authorise the information to be divulged.
The Respondents otherwise analysed the nature of the complaint in some detail and as indicated earlier ultimately submitted that the Commissioner’s letter of 4 November 2005 did not contain a decision at all but rather noted the necessary consequence of the operation of the Committee Principles or in the alternative set out the only decision available to the Commissioner in the circumstances.
It was submitted on behalf of the Applicants that in this instance the Court should find that the Commissioner’s decision is of a required, ultimate or operative character that has an affect that it ended the complaint being dealt with by the scheme. Reference was made to the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338 where Mason CJ concluded that the word “decision” means an ultimate or operative determination and not a mere expression of opinion or state which can have no effect on a person.
It was further argued that this is a decision of a administrative character and reference was made to the decision of Ellicott J in Tooheys v Minister for Business and Consumer Affairs (1981) 36 ALR 64 (Tooheys) where at page 76 the Court noted that the phrase “decision of an administrative character” is one “of wide impact” and that “the phrase should be given a wide construction and application”. In this case it was submitted by the Applicants that the Commissioner was clearly purporting to be putting into effect s.10.64A of the Committee Principles and in doing do was undertaking an administrative action for the purposes of the ADJR Act.
It was further argued that the Committee Principles are legislative rules made pursuant to power granted by the Minister for Health and Aged Care under s.96-3(3) of the Act. It was submitted that to make such principles the decision of the Commissioner was purportedly made directly under s.10.6(4)(a) and in this case no question arises as to whether there is the required degree of connection between the grant of legislative power and the decision made by the decision-maker. It was further argued that the Applicants are properly regarded as persons “aggrieved” by the decision as s.5 of the ADJR Act does not restrict applications to those persons who can establish that they have a legal interest at stake but rather covers a person who can show a grievance which will be suffered as a result of the decision beyond that of an ordinary member of the public (see Tooheys). In this case it was argued that the Applicants had a complaint accepted, assessed and referred for resolution by a determination committee of the Complaints Resolution Scheme and had been informed in writing by the Secretary that their written submissions on the complaint would be sought and would be served on the approved care provider prior to the hearing of the complaint. The Applicants submitted that the interest in the matter is clearly one which differentiates them from ordinary members of the public and gives them standing to bring the application for judicial review.
The Applicants submitted that in this instance the decision by the Commissioner to dissolve the determination committee and to cease dealing with the Applicants’ complaint to the Scheme was unlawful in that it was made in circumstances in which breaches of the rules of natural justice occurred in connection with the making of the decision as those rules require that the Applicants be given opportunities to be heard prior to the Commissioner making a decision to dissolve the committee and ceasing to deal with the complaint. It is sufficient to refer to that submission in brief terms given the concession made properly by the Respondents that if its submissions are not accepted concerning the issues identified earlier in this judgment and if the Court were to find the complaint was validly accepted and referred to the committee and the circumstances do not dictate there was only one course available to the Commissioner, it follows that the ADJR Act applies. The Applicants should then succeed as the Commissioner did not provide the Applicants with an opportunity to be heard.

Reasoning

The complaints system is not meant to be avoided simply because systemic problems emerge from the complaint.
If complainants are named in the original complaint then removal of the names, as in this case, for confidentiality reasons, does not mean the complaint is invalidated.
Staff members will often be the source of complaints from aged care facilities particularly in the absence of family members or friends of care recipients who often may be abandoned or may have outlived family or friends.
The complaint system should operate to resolve the issues in the interests of all care recipients at a facility as resolving an individual complaint may lead to changes in the conditions of all care recipients.
Identification and referral of systemic problems can still occur. Dealing with systemic problems and individual complaints are not mutually exclusive processes.
Complaints need not be made by the individual care recipients and indeed may even continue after the death of a care recipient.
Staff members may well be the ‘whistleblowers’. They should not be discouraged. Rather they should know that individual complaints and systemic issues will be dealt with appropriately pursuant to the relevant legislation. It is recognised in the legislation that the complaint process should not be restricted to formal complaints to management. Hence, the legislation is very broad by providing that ‘anyone’ can bring a complaint.
It was noted during the course of discussion that the Applicants submitted that even if systemic issues arise or may be identified then that does not relieve the committee from continuing its role. In my view whilst it does not deal with systemic issues the Committee should identify those issues where they arise. However, the identification of systemic issues does not of itself mean that complaints which in this case clearly refer to individual care recipients should not continue even where names are deleted for confidentiality reasons and moreover notwithstanding the fact that it appears in this case some 12 of the 15 care recipients who were the subject of the complaints are now deceased.
In my view the complaint was validly accepted and referred to the Committee. It should be noted that the objects of the Act set out earlier in this judgment include amongst other things the provision of funding for aged care which takes into account “the need to ensure access to care that is affordable by and appropriate to the needs of people who require it” (s.2-1(1)(a)(iii) of the Act) and “accountability of the providers of the care for the funding and for the outcome of the recipients” (s.2-1(1)(a)(v) of the Act). Perhaps more significantly the objects also include the need to “protect the health and well-being of the recipients of aged care services” (see s.2-1(1)(c) of the Act). Whilst I accept that the relevant legislation set out earlier in this judgment provides what may be described as somewhat complex complaints procedures and that in any event the Department and its officers have broad powers to otherwise investigate independently issues which may be of concern from time to time, that does not mean that the complaint in this instance could be regarded as one which was not validly accepted and referred to the Committee. Section 10.34 of the Committee Principles clearly provides as a function of the Committee, amongst others, the resolution of complaints. It is clear in my view pursuant to s.10.38 of the Committee Principles that a complaint may be made not simply by “the affected care recipient or his or her representative” but by “anyone else”. The same section provides that the parties to the complaint include not simply the affected care recipient but persons acting in a “advocacy role” or having “a significant relationship to the affected care recipient”. It will be obvious by the very nature of the Scheme that there will be many occasions when the care recipient may either be unable or unwilling to participate due to disability or indeed as in the present case may have passed away at or soon after the time at which the factors giving rise to a complaint have occurred. There is no prescribed form for making a complaint and as indicated earlier it is clear from the Committee Principles that a complaint may continue notwithstanding the death of a complainant. I therefore see no reason why the Applicants cannot be legitimately regarded as persons able to make the complaint. In my view the complaint was validly accepted and referred to the Committee.
I do not accept that s.10.45 of the Committee Principles should be read as having a “compulsive effect” where it uses the word “may”. The authorities relied upon by the Respondents in support of that submission in my view can be distinguished from the present case. Those authorities dealing with income tax and other diverse matters should not apply in this instance as I am satisfied that the CommitteePrinciples logically require that the use of the word “may” whilst conferring a power necessarily involves the exercise of that power as a discretionary matter. The range of options including the very general option that the complaint should not “be accepted for another reason” in my view strengthens the conclusion that this was intended to be a discretionary power.
I note and apply the discussion concerning the use of the word “may” considered in the High Court decision in Ward v Williams (1955) 92 CLR 496. In that case when considering whether the word “may” in a provision of the Public Health Act in New South Wales was directory rather than obligatory the Court after considering the analysis by the Supreme Court which it rejected then stated the following:-
“In considering the correctness of this interpretation [by the Court of Appeal] it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning. ‘The authorities clearly indicate that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning’ per Cussen J:Re Gleeson [(1907) VLR 368 at 373].
…
One situation in which the conclusion is justified that a duty to exercise the power or authority falls upon the officer on whom it is conferred is described as Lord Cairns in his speech in [Julius v Bishop of Oxford (1880) LR 5 AC 214]. His Lordship spoke of certain cases and said of them ‘[they] appear to decide nothing more than this: that were a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised.”
As indicated earlier it is my view that the appropriate interpretation of the relevant provision in this case leads to a conclusion that the real intention of the legislature was to provide a discretion and that the use of the word “may” does not have a compulsory meaning. I note further that the Committee Principles use the words “may” and “must” and in the circumstances I accept as submitted by the Applicants that the inference to be drawn is that the drafters have used “may” when they meant “may” and “must” when they meant to use that word.
I do not accept in this instance that the complaint did not identify or name as a party any individual care recipients as clearly the detailed reference earlier in this judgment to the complaint contained both a reference to individual care recipients and complaints which might be described of a general nature, some of which may be properly regarded as a log of staff complaints about conditions. Nevertheless I do not accept the complaint in itself could be regarded as falling outside s.10.38 of the Committee Principles as there is sufficient in the complaint to identify it as one which relates to affected care recipients. The mere fact that those complaints may also raise systemic issues requiring referral pursuant to s.10.35(h) of the Committee Principles does not mean that the complaint should not have been accepted. Further, I am satisfied that the circumstances of this case did not dictate that there was only one course available to the Commissioner to dissolve the committee and discontinue dealing with the complaint, predicated on the assumption that the complaint is systemic in nature and fails to identify individual care recipients.
I note further and specifically accept the submissions made for and on behalf of the Applicants arising from s.10.66 of the Committee Principles which provides that a party to a complaint is “entitled to attend the determination hearing”. Attendance is not obligatory and nor is the party required to “put evidence and argument” at a hearing. The party may, pursuant to s.10.66(1), be “accompanied by an adviser other than the person engaged to provide legal representation”. Again it simply provides for an adviser to accompany the party but does not require evidence or argument to be put before the Committee. However, it is further noted that s.10.66(3) provides that a “party to the complaint and the approved provider’s representative are entitled to address the committee”. Again there is no requirement to address the committee or to put evidence and argument. Those provisions in my view undermine the suggestion by the Respondents that any “determination” by a Committee would be “fatally flawed” if the persons affected by it were not able to put evidence and argument before the committee. The scheme as illustrated by those provisions contains no such requirement and that is perhaps logical given the subject matters of the complaint.
In this case I am satisfied that the complaint did identify individual care recipients and conformed with the definition of the complaint found in s.10.38(1) and 10.38(2) of the Committee Principles. Those provisions do not require identification of the “affected care recipient” though in this case it is clear in my view that the complainants did in fact identify affected care recipients. The argument advanced that there is some defect in the complaint through an alleged non compliance with provisions which do not require identification, cannot be sustained.
To the extent that it is necessary I also note and accept as submitted by the Applicants that s.10.40 of the Committee Principles applies as that provision is clearly effective despite the fact that parties have not been named.
In my view the Applicants’ submissions regarding the existence of a decision dated 4 November 2004 are correct. It is a decision for the purpose of the ADJR Act for the reasons advanced for and on behalf of the Applicants referred to earlier in this judgment. In an application of this kind the Court is not making any decision on the merits or the factual assertions made by the Applicants in their complaint. Instead it is simply considering whether there has been what is described as a constructive failure to make a decision having regard to all relevant considerations (see McDowell & Partners Pty Ltd v Button (1983) 50 ALR 647; Willara Pty Ltd v McVeigh (1984) 54 ALR 65; and Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39). In this instance I am satisfied that there has been a decision made constituted by the letter dated 4 November 2004 and the decision made to discontinue dealing with the matter was not the only available decision. I am further satisfied the Applicants have a right to be heard in relation to the decision and to that extent as conceded by the Respondents there is sufficient to rule as submitted by the Applicants that the decision breaches the rules of natural justice sufficient to substantiate the ground relied upon pursuant to s.5 of the ADJR Act.

I am further satisfied that in this case it is appropriate to extend the time within which an application may be made pursuant to s.11(1)(c) of the ADJR Act. I am satisfied there has been a brief delay in this matter and moreover having regard to the merits of the substantial application and absence of prejudice it would be in the interests of justice to allow the extension of time. In this case I am satisfied the Applicants have not been dilatory in pursuing this matter and the correspondence clearly indicates to the contrary significant ongoing efforts to achieve a satisfactory outcome. I am conscious of the relevant principles which apply in relation to extension of time which this Court considered in the matter of Phillips v Australian Girls Choir & Anor [2001] FMCA 109. In particular I accept that it is relevant in considering an extension of time in an ADJR application to have regard to the issue of public administration. However, having regard to the objects of the Act in this instance, it is my concluded view that it is in the interests of public administration of this legislative scheme that in this instance for the reasons given, an extension of time should be granted.
Given the concession referred to earlier in the decision by the Respondents, it is unnecessary for the Court to consider in further detail other claims of procedural unfairness relied upon by the Applicants.
It follows in my view that the appropriate order will be that the decision dated 4 November 2004 by the Commissioner should be set aside. I shall otherwise hear submissions from Counsel in relation to the precise form of orders including any order for extension of time and costs.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 27 February 2006