X v Commissioner, Community Services Commission (CSD)

[2000] NSWADTAP 2

Appeal Panel

CITATION:	X -v- Commissioner, Community Services Commission (CSD) [2000] NSWADTAP 2
PARTIES:	APPELLANT X RESPONDENT Commissioner, Community Services Commission
FILE NUMBER:	999013
HEARING DATES:	22/11/99
SUBMISSIONS CLOSED:	11/22/1999
DATE OF DECISION:	03/13/2000
DECISION UNDER APPEAL:
BEFORE:	O'Connor K - DCJ (President); Rees N - Judicial Member; Brennan D - Member
CATCHWORDS:	jurisdiction
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	994005
DATE OF DECISION UNDER APPEAL:	08/13/1999
LEGISLATION CITED:	Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2
CASES CITED:	Bond -v- Australian Broadcasting Tribunal (1990) 170 CLR 321 Mayhew -v- A [1999] NSW ADTAP 1 R -v- A and B [1999] NSW ADTAP 3 Project Blue Sky -v- Australian Broadcasting Authority [1998] HCA 28
REPRESENTATION:	In person P Abbey, Investigation Officer, Community Services Commission
ORDERS:	The decision under appeal is affirmed, but a new form of Order is substituted, as follows: 1. ‘Except in relation to the decisions set out in 2 below, the Tribunal affirms the decisions made by the Commission as to its powers.’

Background

1 X has appealed under s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) against a decision of the Tribunal’s Community Services Division: X v Commissioner, Community Services Commission [1999] NSWADT 26. That decision related to his application for review of various decisions made by the Community Services Commission (the Commission) in the course of assessing, investigating and declining parts of a complaint he had made to the Commission. The Division has jurisdiction under s 40 of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (the Complaints Act) to review various actions and decisions of the Commission.

2 The Commission is an oversight body that forms part of the Community Services portfolio of government. It is established by the Complaints Act and its many functions and powers are set out in Parts 4 and 6 of that Act. X had been the subject of an investigation by the Department of Community Services (the Department) arising from child protection notifications made to the Department. X was entitled to complain to the Commission in relation to the Department’s investigation, and did so. The Commission issued a preliminary investigation report on 9 April 1998 and a final investigation report on 16 December 1998.

3 X was dissatisfied with that report and made an application for review to this Tribunal’s Community Services Division by form dated 11 January 1999. (We note that the form used was one issued by the Division’s predecessor Tribunal - the Community Services Appeals Tribunal - whose functions vested as from 1 January 1999 in the Community Services Division of this Tribunal.)

4 In that form X said:

‘I believe that the CS Commission failed to investigate facts of abuse of process and defamation by the Dept of Community Services. In fact, the Commission has attempted to cover the DO’s [DOCS] breach of regulations. For example, the Commission forced me to accept thire [their] version of my complaint, breached the confidentiality of correspondence, failed to investigate the complaint in a timely manner, ignored the inconvenient evidence, failed to produce appropriate recommendations, etc.’

5 The form used by X gives a range of selections under the heading - ‘What is the decision you wish to appeal against?’ X ticked the box marked ‘the Commission has exceeded its powers’. The Tribunal proceeded on the basis that X thereby sought to connect his application with category (c) of the decisions that are made reviewable by the Tribunal under s 40 of the Complaints Act. As material s 40 provides:

“40 Applications to the Tribunal for reviews of decisions

(1) A person may apply to the Tribunal for a review of any of the following decisions:
...
(c) a decision of the Commission that was beyond its powers, …”

6 X later amplified his concerns in further correspondence with the Tribunal; and the Commission presented submissions in reply.

The Decision of the Community Services Division

7 In its decision dated 13 August 1999, the Community Services Division of the Tribunal (hereafter referred to as ‘the Tribunal’) gave the following history of X’s concerns. The initiating events were interviews conducted by the Department with two of X’s daughters, conducted in or about April 1997 following a notification of suspected child abuse by X. In May 1997 X complained to the Ombudsman about the way the interviews were conducted. In June 1997 the Ombudsman referred parts of the complaint to the Commission. X, as noted, was dissatisfied with the report that ultimately issued, in December 1998, from the Commission.

8 X’s key grievances in respect of the Commission’s report were that, in his opinion, the Commission:

• took too long to deal with his complaint
• forced him to accept their version of his complaint
• breached his privacy
• failed to consider all the available evidence; and
• failed to issue proper recommendations.

9 The Tribunal then proceeded to consider the issue of whether it had jurisdiction on the basis of the material filed.

10 The Tribunal adopted the following methodology. First, it noted that pursuant to s 36(1)(b) of the Tribunal Act the Tribunal can review a “reviewable decision”. The definition of ‘reviewable decision’ links in turn to s 38 of the Tribunal Act which in turn connects to s 40 of the Complaints Act. The Tribunal stated that “the provision which X relies on in his application is s 40(1)(c)” and then set it out.

11 The Tribunal noted that is atypical of the usual scheme found in primary legislation conferring jurisdiction on the Tribunal where the decision subject to review is precisely identified. It noted at [9] that s 40(1)(c) ‘does not identify the specific decisions covered’.

12 The net effect is that the odd situation is created that the Tribunal may ‘review’ any decision which has as its defining characteristic that it was made beyond power. It would seem to follow that the only step the Tribunal could take once having concluded that a decision is beyond power is to set it aside and remit the matters in issue for any reconsideration that may be possible to be undertaken within power.

13 So the Tribunal is cast into a role that is more analogous to that of a superior court engaged in judicial review of the validity of administrative decisions as distinct from the usual role of a Tribunal of this kind, of engaging in merits review of a specific decision.

14 The Tribunal then referred to the complaint-handling scheme required to be followed by the Commission under the Complaints Act.

15 The Tribunal then sought to identify what ‘decisions’ the Commission had made in the course of handling X’s complaints. Having isolated what it saw as decisions, it then proceeded to assess whether they were made within or beyond power.

16 The Tribunal noted that s 6 of the Tribunal Act contains a broad definition of ‘decision’. It referred to Commonwealth authority as to the meaning of ‘decision’, because the s 6 list is identical to that found in equivalent Commonwealth legislation which has been the subject of authoritative analysis by the High Court. It concluded that

• in declining to investigate parts of the complaint under s 21(1)(c) of the Complaints Act on the ground that ‘the subject matter of the complaint (or part) is trivial or does not warrant either alternative dispute resolution or investigation’ the Commission made a ‘decision’ (‘the decline decision’)
• in making a report under s 38 of the Complaints Act the Commission made a ‘decision’ (‘the report decision’).

17 Similarly it considered that

• a failure to assess a complaint (as required by s 16) would constitute a ‘decision’a failure to give notice of the making of a complaint, the nature of the complaint and the identity of the complainant to a person against whom a complaint is made (s 14) would constitute a decision.

It interpreted its role in relation to a ‘beyond power’ objection as requiring it to have regard to simple or narrow ultra vires.

18 The Tribunal then examined X’s complaints.

19 As to X’s allegation of delay on the part of the Commission in making an assessment whether to investigate, the Tribunal found that the Commission failed to carry out an assessment of X’s complaint within the 28 day time limit imposed by s 19 of the Complaints Act. It ruled that the Commission’s failure to comply with the statutory time limit was not itself a ‘decision’ because it was not ‘final or operative’, citing the dicta and reasoning of Mason CJ in a leading case, Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321. But the Tribunal noted that it is possible, in light of Mason CJ’s reasoning, that a delay might render invalid a subsequent decision made by the Commission.

20 It proceeded to assess whether the delay might have invalidated the decline decision or the report decision. The Tribunal referred to recent authority to the effect that even substantial non-compliance with time requirements connected with the process leading to a decision did not render the decision invalid.

21 The Tribunal acknowledged at [30] that X was ‘certainly justified’ in complaining about the time taken to assess his complaint, but was satisfied that it was not Parliament’s intention that even substantial non-compliance with a time limit would render any subsequent decision invalid.

22 It then looked at the question of whether the delay on the part of the Commission in proceeding to complete its investigation was such as to invalidate the report decision. It noted that X expressed the view that the delays were intentional and that the ‘excuses’ the Commission offered were unconvincing ([32]). It agreed with X that 18 months was a long time to take to conclude the matter, but applied the same reasoning as previously to conclude that the delay did not affect the validity of the decision.

23 The Tribunal then examined in detail the matters which X claimed should have been referred by the Commission to the Department for comment versus what was actually referred. X objected to the way his complaint was communicated to the Department. He says he was forced to sign the Commission’s version of his complaint, and that the complaint was re-worded to the benefit of the Department. X objected to the failure to advise other agencies, including the Police over an alleged death threat made against him.

24 The Tribunal indicated that it was satisfied that the choices made by the Commission in relation to most aspects of the concerns raised by X were open to it to make. They were choices it could make properly without thereby exceeding its powers.

25 The Tribunal did express concern over some aspects of the choices made by the Commission.

26 It referred at [43] and [44] to his allegations that the Department’s officers had made allegations about X committing serious crimes at his home, in front of his family, and that the officers had refused to permit their conversation with him to be recorded.

27 He complained that the Department’s failure to allow the conversation to be recorded constituted unreasonable conduct. As to this matter the Tribunal concluded that the Commission’s decision not to take action on these complaints was beyond power. It referred to the Complaints Act, in particular the requirement that the Commission is obliged to assess allegations of unreasonable conduct by a service provider and refer them for resolution in one of the ways contemplated by the Act (see s17).

28 In his complaint X described the Department’s conduct in dealing with his family and children as involving ‘criminal negligence’. One of his objections was that the Commission did not refer this allegation in those terms to the Department. As to this matter the Tribunal concluded at [48] -

“The Commission relayed to the Department the majority of applicant’s allegations. It would have been wrong to characterise these allegations as constituting criminal negligence because the Commission has no jurisdiction to find that a criminal offence has been committed. Their mandate is to decide whether certain conduct is unreasonable.”

29 As to the failure to advise other agencies, in particular, of the death threat, the Tribunal concluded that a failure to make a referral to another agency does not constitute action that is ‘beyond power’.

30 The Tribunal then examined the Commission’s decisions to decline to pursue an investigation of six of X’s complaints. The Tribunal examined each of the six decisions. The Tribunal was satisfied that in each case the decision to decline was made in the exercise of an available statutory power, s 21(1)(c) of the Complaints Act. So, the Tribunal concluded, they could not be said to have acted beyond power in taking a decision to decline.

31 Two of his allegations were investigated by the Department and were the subject of a report under s 38. The Commission upheld X’s concerns. It found that the Department had failed to follow Departmental procedures in not obtaining information about the special needs of the children before interviewing them. But X’s complaint is that the Commission did not go far enough in examining this complaint. He referred to other ways in which procedures were not followed. Any inadequacies of that kind did not in the Tribunal’s view render the choices made by the Commission as ones that meant it had acted beyond power.

32 As to the question of the assistance that the Department tendered to X’s family after the interviews, the Commission found that the Department failed to respond to Mrs X’s written request for emergency assistance in a timely way and made recommendations. X was dissatisfied with the use of the expression ‘in a timely way’ which he saw as an attempt to dilute the allegation. He said the Department did not act at all.

33 X also criticised the scope of the recommendations of the Commission, in that they did not make proper recommendations to improve the performance of the community services centre of the Department that had dealt with him. The Tribunal ruled that the fact that X disagreed with the nature and scope of the recommendations did not make their choices beyond power.

34 The conclusion of the Tribunal was that the decisions of the Commission were not beyond power with two exceptions. The exceptions related to its failure to require the Department to answer the following allegations:

• that Departmental officers had “accused [X] in committing serious crimes in front of his family”
• that officers “refused to be recorded, but felt free to take their own notes”.

35 The Commission’s decision in those two respects was set aside and the matter remitted for consideration by the administrator.

36 We have set out the detail of the decision under appeal at some length to give context to the points made by X at the appeal hearing.

The Order under Appeal

37 The order made by the Tribunal was as follows:

“1. Except in relation to decisions set out in 2 below, the Tribunal does not have jurisdiction over any of the decisions made by the Commission in this case because those decisions were not "beyond its powers" as required by s 40(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Act 1993.
2. The Commission's decision that they did not have jurisdiction over or should not assess and should not give written notice to the service provider of the following allegations:
a) that Departmental officers had "accused X in committing serious crimes at his home, in front of his family;" and
b) "the Officers refused to be recorded, but felt free to take their own notes" was beyond its powers.
3. In accordance with s 63(3)(d) of the ADT Act, the Tribunal sets aside this decision and remits that matter for reconsideration by the administrator.”
Jurisdiction of Appeal Panel

38 Under s 113(2) of the Tribunal Act an appeal ‘may be made on any question of law’. It ‘may extend’ with the leave of the Appeal Panel to the merits of the appealable decision.

39 Earlier decisions of Appeal Panels have dealt with the question of what is a ‘question of law’ (Mayhew v A [1999] NSWADTAP 1 at [9] to [11]) and the further matter of whether, in the instance that an error of law is revealed, it is one of sufficient significance to warrant the Panel intervening in relation to the decision (R v A and B [1999] NSWADTAP 3 at [5] to [8]).

Submissions of the Appellant

40 X’s appeal related to the first of the three Orders, the Order adverse to him. There was no appeal by the Commission in relation to the second and third Orders, adverse to it.

41 X’s submissions on appeal were:

42 (i) the decision was in error in that the time provided for the making of an assessment of a complaint by the Commission specified by the Complaints Act, s 19 is 28 days and that is the maximum allowed by law.

43 As the Tribunal noted in its decision its inquiry was necessarily a narrow one. It had first to ascertain whether a decision had been taken by the Commission which could be said to be beyond its powers. It examined this point in the context of a discussion as to whether proceeding to assess a complaint outside the 28 day time limit could be said to be a decision beyond power. If the requirement was mandatory the Commission was unable to continue to deal with the complaint beyond the 28 day period. X did not challenge the case-law upon which the Tribunal relied at [27]-[30] of its decision (especially, Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [93]) or draw our attention to any law that might stand in the way of the Tribunal’s analysis.

44 While a failure to comply with a statutory time-limit might give an aggrieved person a right to apply for an order from the Supreme Court in the nature of mandamus, there is nothing, in our view, in the legislation which might suggest that failure to observe a time limit is fatal to the Commission’s continued exercise of its responsibilities. In enacting the Complaints Act, the Parliament was seeking to foster a positive atmosphere in relation to the role for external scrutiny in overseeing the performance of agencies and service providers and as a way of enhancing the delivery of services and programs on the part of the service providers subject to the complaints scheme: see Complaints Act s.3. It would be inimical to that important objective if complaint processes were to be terminated by a failure or inability of the Commission to make an assessment in 28 days. We agree with the reasoning under appeal.

45 (ii) That the Commission in its reasons for decision declining parts of his complaint failed to include its reasons in the notice to him, thereby contravening the duty cast upon it by s 25(3) of the Complaints Act.

46 This matter was not raised in the proceedings before the Tribunal and consequently not addressed in the original decision. X did not suggest that he raised it before the original Tribunal. Accordingly it is an issue which lies outside the proper scope of an appeal. (We note that the allegation is contested by the Commission.)

47 (iii) The Tribunal erred in not giving greater weight to the requirement in s 36(2) of the Complaints Act that the ‘investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits’.

48 The Tribunal examined in detail questions of delay. But its object was to ascertain whether the delay may have had an invalidating impact on any ultimate decision. The decision took appropriate account of s 36(2): see [31] to [35]. We are satisfied that no error of law has been revealed in the Tribunal’s reasoning.

49 (iv) The Tribunal erred in the way it dealt with the question of whether he received any assistance from the Commission, as contemplated by the statement of its functions in s 83 of the Act, one of which (para (g)) is ‘to assist in the making of complaints by persons receiving, or eligible to receive, community services’.

50 Here we understand X to be referring to the Commission’s decision not to refer information about the death threat to other agencies such as the Police. The Tribunal examined that question in terms of whether this exercise of discretion was within the permissible scope of the exercise of its functions and responsibilities. It decided that it was. There is no error of law. The Commission has a broad function of providing assistance. How it exercises that function in relation to the broad range of information that it is called on to deal with is for it to decide.

51 (v) The Tribunal erred in the way it dealt with the question of whether the Commission had fulfilled the duty imposed by s 83(2)(a) in connection with the exercise of the functions listed in s 83(1) to ‘consult and co-operate with other relevant investigative agencies and those concerned with the determination of the rights and interests of persons receiving, or eligible to receive, community services’.

52 For the same reasons given under (iv) we are satisfied with there was no error of law in the way the Tribunal dealt with this question.

53 (vi) This ground is a further variant on grounds (iv) and (v). It is that the Tribunal erred in the way it dealt with the question of whether the Commission had fulfilled the duty imposed by s 83(2)(c) in connection with the exercise of its functions listed in s 83(1) to ‘have regard to the needs of those persons (such as children) who are receiving, or are eligible to receive, community services and are least likely or able to complain”.

54 X reiterated in this regard his dissatisfaction with the fact that the assessment and report process had taken 18 months after he complained to the Commission. As we have noted, this matter was addressed in some detail by the Tribunal and some criticisms made. But the Tribunal could not take those criticisms any further as it did not have jurisdiction to review the substance of those decisions that were made within power. The Tribunal did however make two adverse findings in relation to the failure to report two aspects of his complaint to the Department for investigation.

Conclusion

55 In the present case, we are satisfied as to the approach adopted by the Tribunal in dealing with the question of the scope of its powers to review the conduct of the Commission in relation to X’s complaint. No error of law has been revealed by the appeal.

Form of Order

56 While being satisfied that the decision under appeal is sound, we consider that the terms of the consequential order should be reformulated. As noted earlier, Order 1 was expressed as follows:

“1. Except in relation to the decisions set out in 2 below, the Tribunal does not have jurisdiction over any of the decisions made by the Commission in this case because those decisions were not “beyond its powers” as required by s40(1)(c) of the [Complaints Act]”.

57 We consider that the way the order is expressed (in terms of ‘jurisdiction’) does not accurately depict the role of the Tribunal.

58 Section 40(1)(c) expressly confers on the Tribunal a jurisdiction to review “a decision of the Commission that was beyond its powers”. It follows, we consider, that in order to determine whether a decision of the Commission was beyond its powers, the Tribunal must have the jurisdiction to determine whether the impugned decisions of the Commission were ones which fell within the scope of its powers.

59 Entry on that exercise does not permit the conduct of any review of any decisions ultimately taken in the exercise of those powers. For such a review to occur, there would need to be additional provisions conferring that jurisdiction on the Tribunal (as there are in some instances).

60 In this case the Tribunal determined that most of the decisions that the Commission made fell within the scope of its powers. That was a decision that the Tribunal had jurisdiction to make as a necessary corollary to its jurisdiction under s 40(1)(c) to review those decisions of the Commission which were beyond power.

61 Accordingly we consider that the Tribunal should have expressed its conclusions that were favourable to the Commission in words that reflected that the Tribunal remained possessed of jurisdiction, rather than seeing itself as deprived of jurisdiction. In light of its conclusions on the substantive issues raised, the Tribunal did not lose jurisdiction. It retained a limited jurisdiction of the kind described.

62 Accordingly the powers given to the Tribunal in s 63 remained open to be exercised. In this instance the consequence of the Tribunal’s reasoning is that it ‘affirmed’ the decision of the Commission that it had power to take the actions that it did.

63 These observations bear on the way in which the Appeal Panel’s decision is expressed below.

Order

64 The decision under appeal is affirmed, but a new form of Order is substituted, as follows:

1. ‘Except in relation to the decisions set out in 2 below, the Tribunal affirms the decisions made by the Commission as to its powers.’