CITATION: X v Commissioner, Community Services Commission [1999] NSWADT 26 DIVISION: Community Services APPLICANT: X RESPONDENT: Commissisoner, Community Services Commission FILE NUMBER: 994005 HEARING DATES: SUBMISSIONS CLOSED: 06/18/1999 DATE OF DECISION: 13 August 1999 N Hennessy - Deputy President BEFORE: B Gelin - Member L Rogan - Member PRIMARY LEGISLATION: Community Services (Complaints, Reviews and Monitoring) Act 1993 APPLICATION: Review of decisions of the Community Services Commission on the basis that those decisions were beyond its powers - MATTER FOR DECISION: Principal matter and jurisdiction Applicant: Nil REPRESENTATION: Respondent: Nil 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: ORDERS: 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. Background to application 1 On 16 May 1997 the applicant, Mr X, wrote to the Ombudsman about interviews that had been conducted with two of his daughters by officers of the Department of Community Services. On 2 June the Ombudsman referred parts of that complaint to the Community Services Commission (the Commission). The Commission completed an Assessment Report on 18 December 1997 and a final Investigation Report on 16 December 1998. 2 On 11 January 1999, the applicant, Mr X, lodged an application with the Tribunal alleging that decisions the Commission made in the course of assessing, investigating and declining parts of his complaint, were beyond its powers. 3 Mr X made several allegations in his application to the Tribunal about the manner in which the Commission dealt with his complaint. These allegations were that 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. 4 In accordance with s 76 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal advised the parties by letter of 10 June 1999 that it intended to decide the issue of jurisdiction in the absence of the parties. The reason for this was that there did not appear to be any issues of fact in dispute. The parties were invited to submit any further material on which they intended to rely and were advised that the Tribunal would determine the jurisdictional issue on the basis of the information provided by the parties. There was no objection to this course of action. 5 Mr X did not have legal representation but provided details of his allegations and referred to supporting evidence. The Commission responded to the substance of Mr X's allegations but did not make any submissions about whether or not they had made a decision that was beyond its powers. Issues and legislation 6 Pursuant to s 36 (1)(b) of the ADT Act the Tribunal can review "reviewable decisions". A "reviewable decision" is defined in s 8 as "a decision of an administrator that the Tribunal has jurisdiction under an enactment to review." Section 38 provides that: The Tribunal has jurisdiction under an enactment to review a decision (or class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by an administrator: (a) in the exercise of functions conferred or imposed by or under the enactment, or (b) in the exercise of any other functions of the administrator identified by the enactment. 7 The relevant enactment in this case is the Community Services (Complaints, Reviews and Monitoring) Act 1993 (CS (C, R & M) Act). The provision which Mr X relies on in his application is s 40(1)(c) which states that: 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. 8 This provision is not typical of the kinds of decisions that are normally subject to merits review. The specific decision which is reviewable is usually set out in the legislation. For example, under the Children (Care and Protection) Act 1987 s 112(1)(h) and (g) the Tribunal can review "a decision of the Minister to remove a ward or protected person who has been placed in the custody of a foster care agency or a foster carer;" and "a decision of the Minister to refuse to terminate the Minister's guardianship of a ward." 9 Section 40(1)(c) does not identify the specific decisions covered. Any decision of the Commission which is "beyond power" is subject to merits review. Unlike most merits review provisions which merely identify a decision, this provision confines merits review to Commission decisions which are beyond power. 10 Section 6(3) of the ADT Act provides that if a decision maker makes a specific decision, even if it was beyond the power of the decision maker to make, it is still reviewable. This provision was enacted in light of the decision Collector of Customer v Lawlor Automotive Pty Ltd (1979) 41 FLR 338). But giving the Tribunal jurisdiction to review a decision even if it was beyond the power of the decision maker to make, is not the same as giving the Tribunal power to review a decision because it is beyond power as s 40(1)(c) of the C S (C, R & M) Act does. 11 In relation to "reviewable decisions" the ADT's role is that of merits review, not judicial review. The Tribunal "stands in the shoes" of the original decision maker and makes the decision again. Section 63(1) of the ADT Act states that the Tribunal "is to decide what the correct and preferable decision is having regard to . . . (a) any relevant factual material, and (b) any applicable written or unwritten law." Because section 40(1)(c) allows review only when a decision is "beyond power" the Tribunal must perform a task in assessing jurisdiction which is akin to the task judges perform when judicially reviewing decisions. 12 In the Tribunal's view this is not an appropriate function for the Tribunal to perform. Jurisdiction to determine whether a decision is beyond power should be confined to the Supreme Court. We suggest that section 40(1)(c) be repealed and replaced with a provision which does not confine the Tribunal's jurisdiction to decisions which are beyond power but rather specifies the precise decisions made by the Commission which should be subject to merits review. The Scheme of the C S (C, R & M) Act 13 A person can make a complaint to the Commission that a service provider has acted unreasonably, for example in the way in which a community service was provided to a particular person (s 12(c)). On receipt of a complaint the Commission must give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made (s 14(1)). The Commission must also assess the complaint to decide how it should be treated. After assessment the complaint (or any part of it) can be declined, investigated or referred to another body (s 17). It can be declined for any of the reasons set out in s 21. 14 If, following the assessment process, the complaint raises a significant issue of public safety or public interest, a significant question as to the appropriate care or treatment of a client or a question as to whether a service provider has acted unreasonably, the Commission may investigate the complaint (s 23). On completion of its investigation the Commission is to report the results and any recommended action to the complainant and the service provider (s 38(1)(a)). Before reporting the Commission can dismiss or terminate a matter in accordance with s 39. Definition of "decision" 15 For the Tribunal to have jurisdiction to review a decision it must be made "in the exercise of functions conferred or imposed by or under the enactment, or in the exercise of any other functions of the administrator identified by the enactment." (s 38(1)) A general non-exhaustive definition of "decision" is provided in s 6 of the ADT Act: A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. 16 This list is identical to that contained in s 3(3) of the Administrative Appeals Tribunal Act 1975 (Cth), (a Commonwealth Act concerned with merits review of decisions made under Commonwealth legislation) and almost identical with that contained in s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (a Commonwealth Act concerned with judicial review of decisions made under Commonwealth legislation). Because of the similarity of the definitions, rulings on what is a "decision" under these Commonwealth statutes are relevant to the interpretation of the ADT Act. The most authoritative judicial review case on this issue is Australian Broadcasting Tribunal v Bond ((1990) 170 CLR 321). In that case Mason CJ stated (at 337) that: " . . . a reviewable decision is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact calling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." 17 Bond's case decided that apart from substantive intermediate decisions provided for in the legislation, a reviewable decisions must either be final or operative. However Mason CJ stressed that a challenge to a final decision can be grounded on pre-decisional errors if they are incorporated into that decision: To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made. p 338 18 In every case, the statutory context in which the decision is made must be examined. Lockhart J in Director General of Social Services v Hales 47 ALR 281 at 305-306 said that: [The meaning of "decision"] must take its colour and content from the enactment which is the source of the decision itself. No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the tribunal . . . A pronouncement which alters rights or imposes liabilities is readily classified as a "decision" but the word has a wider scope. It may include a declaration or statement which has a real practical effect although not altering rights or imposing liabilities: Duncan v Defence Force Retirement and Death Benefits Authority and Commonwealth 30 ALR 165 at 169. 19 The Commission declined some parts of Mr X's complaint under s 21(1)(c) on the ground that "the subject-matter of the complaint (or part) is trivial or does not warrant either alternative dispute resolution or investigation." Other parts of his complaint were the subject of a report made under s 38 which requires the Commission, on completion of an investigation of a complaint, to report the results and any action recommended by the Commission to the complainant and to the service provider the subject of the complaint. 20 On the basis of the above analysis on the meaning of "decision" we take the view that decisions under s 21 and s 38 constitute decisions to which s 40(1)(c) applies because they are final or operative decisions made under an enactment which affect the rights or interests of the applicant. For the same reasons, failure to assess a complaint (as required by s 16) and failure to give notice of the making of the compliant, the nature of the complaint and the identity of the complainant, to the person against whom the complaint is made (under s 14) are "decisions". Definition of "beyond power" The term "beyond power" is not defined in the legislation but in my view covers what is commonly known as "simple" or "narrow" ultra vires. 21 Ultra vires in the narrow sense means either that the decision maker had no power under the Act to make the decision or has failed to conform to a procedure in the Act. 22 The applicant's allegations in relation to the Commission's treatment of his complaint will now be examined to ascertain whether the Commission made any decisions which were "beyond power." Delays 23 Mr X makes two points in relation to delays. The first relates to the time taken to assess his complaint and the second relates to the time taken to finalise an investigation into his complaint. 24 The purpose of the complaint assessment process is to decide whether the complaint should be investigated by the Commission or whether some other action should be taken (C S (C, R & M) Act s 17). Section 19 of the CS (C, R & M) Act provides that: The Commission is required to carry out its assessment of a complaint: (a) as soon as possible but no later than 28 days after receiving the complaint; or (b) if the Commission has required the complainant to provide further particulars of the complaint, within 28 days after the date on which the Commission required those particulars. 25 The Commission received Mr X's complaint on 2 June 1997, when the Ombudsman's Office referred to the Commission parts of a complaint made by Mr X to them. The Commission settled the terms of the allegations and notified them to the Department on 4 July 1997. The Department's response was sought to each of the allegations by 25 July 1997. The Department responded on the 8 August 1997. The Commission prepared an Assessment Report dated 28 November 1997. However, the Commission states that it was unable to assess some of the allegations because of insufficient information. The Commission requested the Department to provide additional information regarding those allegations which they did on 17 December 1997. A further assessment report was issued on 18 December 1997. These facts make it clear that the Commission failed to carry out an assessment of Mr X's complaint within the 28 day time limit imposed by the legislation. 26 The Commission's failure to comply with the statutory time limits is not itself a decision because it is not final or operative. But following the reasoning of Mason CJ in Bond's case quoted above, the question then is whether the delay renders any of the decisions subsequently made by the Commission to decline parts of his complaint or to make particular recommendations in the investigation report, beyond power. 27 In Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at [93]; McHugh, Gummow, Kirby and Hayne JJ rejected the mandatory/directory distinction which courts had previously used to test whether a procedural error makes a decision invalid. Instead the majority stated that: A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". 28 In Tang v Alan John Homes and Ors [1998] 135 FCA the Federal Court considered non compliance with a statutory time limit under the Health Insurance Act 1973 (Cth). That Act establishes the Professional Services Review Scheme under which a doctor's conduct can be examined to ascertain whether he or she has engaged in inappropriate practice such as medicare fraud. Under the Health Insurance Act 1978 (Cth) s 89, within 28 days after receiving a referral the Director of the Health Insurance Commission must dismiss the referral or set up a Committee to consider whether the practitioner has engaged in inappropriate practice. Section 89(2) provides that the Director's decision on the referral is not rendered invalid merely because it is not made within the 28 day period. In Tang's Case, the Director did not set up a Committee until more than 200 days after he had received the referral. Sundberg J made the following comments: What is the consequence of the failure to act within the specified time? That depends on the intention of the legislature. The only true guide to that intention is to be found in the language of s 89 and the scope and object of the Act. The intention being sought is the effect upon the validity of the Director's action of his failure to set up a Committee within the prescribed period. It is a mistake to attempt to answer the question by asking whether s 89 is mandatory or directory in its terms. See generally Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 and Yapeen Holdings Pty Ltd v Calardu Pty Ltd (1992) 36 FCR 478 at 494. A statute may disclose an intention that strict compliance is necessary, that substantial compliance is necessary together with the degree of substantiality, or that compliance is not a precondition to the validity of the act done. See Pearce and Geddes, Statutory Interpretation in Australia 4th ed (1996) 284-285; Van Reesema v Official Receiver (1983) 50 ALR 253 at 266; TVW Enterprises Ltd v Duffy (1985) 62 ALR 63 at 71; Yapeen Holdings at 494. The only intention disclosed by s 89(2) is the last - the decision is not rendered invalid merely because it is not made within the relevant period. 29 Sundberg J found that having regard to the intention of the legislature, as reflected in the objects and provisions of the legislation, even substantial non-compliance with the time requirement in s 89 did not render the decision invalid. 30 Tang's case can be distinguished in one sense from the present case because s 19 of the CS (C, R & M) Act does not have an equivalent provision to s 89(2) of the Health Insurance Act 1978 (Cth). The absence of any invalidity provision in the present case is notable but does not necessarily mean that failure to comply with the time limit renders a subsequent decision invalid. My view is that the legislature in enacting s 19, did not intend that the Commission's failure to comply with that section would render any subsequent decision to decline a complaint or any contents of an investigation report invalid. This is because the practical consequences of such a conclusion would be that unless the Commission made an assessment within the time limit, it would be pointless for them to continue to assess or investigate the complaint because any subsequent decision would be invalid. A complainant would have to keep lodging fresh complaints until the time limit was satisfied. This could not have been parliament's intention. As an aside, the 28 day time limit is unrealistic if the Commission is to obtain information from the agency involved prior to assessing the complaint. Even so, Mr X was certainly justified in complaining about the length of time it took the Commission to assess his complaint. However, in my view it was not parliament's intention that even substantial non-compliance with that time limit would render any subsequent decision invalid. 31 The second allegation of delay relates to the time it took the Commission to prepare the Investigation Report. Section 36(2) states that: The investigation of a complaint is to be conducted as expeditiously as the proper investigation of the complaint permits. 32 Mr X alleges that the Commission breached s 36(2) of because he did not receive the final report until 16 December 1998, just over 18 months after the complaint was lodged. Mr X expressed the view that the delays were intentional and that the "excuses" the Commission offered were unconvincing. 33 On 9 April 1998 Ms Powell, an officer of the Commission, forwarded the Commission's preliminary report to Mr X and requested any suggestions for recommendations based on their findings. The final investigation report was delivered on 16 December 1998. 34 The Commission has submitted that the investigation was conducted as expeditiously as possible because priority was given to other complaints where immediate issues of safety and well being of a service receiver were raised. 35 We agree with Mr X that eighteen months is a long time to complete a report on his complaint. However, We do not need to make a finding on this question because, based on the reasoning outlined above in relation to s 19, the legislature did not intend that the Commission's failure to comply with s 36(2) would render any subsequent decision to decline a complaint or any contents of an investigation report invalid. Otherwise the content of the report, when it was eventually produced, would be invalid. Allegations in complaint and non-referral of other matters 36 Mr X makes allegations which fall into two categories. The first relates to the communication of his complaint to the service provider. The applicant says that the Commission "forced me to sign their version of my complaint" and "re-worded my allegations to the benefit of the department." He submits that allegations of criminal negligence against the Department should have been communicated to the Department because they constitute "unreasonable conduct." The second category of allegations relates to Mr X's contention that the Commission "failed to inform other agencies, including Police over the death threat." He asks why the Commission did not "refer the issues out of its jurisdiction to an appropriate agency instead of downgrading my claim under threat of rejection." 37 In relation to the way his complaint was drafted, the Commission alleges that they redrafted allegations because "much of the substance of the allegations" were not within the Commission's jurisdiction. They say that, "For that reason, and to better enable a meaningful response to be elicited from the service provider, the Commission redrafted the allegations." 38 In order to identify the manner in which the Commission re worded and/or ignored aspects of Mr X's complaint, We have compared Mr X's original letter to the Ombudsman dated 17 May 1997 with the allegations prepared by the Commission as notified to the service provider. 39 In his allegations Mr X included references to his version of the facts, to legal and policy documents and to his opinions as to whether the allegations amounted to unprofessional, illegal or criminal conduct. At one point in the letter he states that: "We charge the officers of Community Services Department and school officials with criminal negligence, slander and incompetence." 40 Facts about the family's background and the impact of the Department's conduct on family members were omitted in the Commission's document. It was within the Commission's power to omit these facts which are essentially background information. 41 The Department did omit some other facts as alleged by Mr X. Facts which related to the conduct of the school principal was clearly outside the Commission's jurisdiction as a school is not a "service provider" within the definition of that term in the C S (C, R & M) Act. One area that the applicant himself highlighted was that: . . . it was Ms Richardson's idea to write about "special needs" my daughters. I always claimed that DOCS officers had failed to gather any background information about my family, not just about kid's special needs, and the commission knew about it." 42 In its Final Investigation Report the Commission acknowledges Mr X's concerns and says that because he framed his original allegations in terms of "special needs" these words were reflected in the version of the complaint sent to the Department. The Commission found in the Final Investigation Report that "the department did not obtain information about the special needs of the children before interviewing them." Contrary to Mr X's contention, this allegation was not rejected by the Commission. But the Commission did fail to broaden the allegation when Mr X alleged that none of the children's needs had been met. It was not beyond the Commission's power to fail to broaden the allegations in this way. 43 The Department's document failed to mention allegations that Departmental officers had "accused X in committing serious crimes at his home, in front of his family" and "the Officers refused to be recorded, but felt free to take their own notes." The applicant's view was that the making of accusations in front of his family and the Department's failure to allow the conversation to be recorded, constituted unreasonable conduct. 44 The Commission did not explain in its submission whether, and if so why, they took the view that these allegations were outside their jurisdiction. They appear to constitute allegations of unreasonable conduct by a service provider. As such the Commission is obliged to assess those allegations and to decline them, send them for alternative dispute resolution, refer them to the service provider for resolution or investigate them. There is no evidence that they did any of these things. In addition they did not convey the full extent of the nature of the complaint to the Department. In my view the Commission has gone beyond its power in ignoring these allegations or in assuming that they were beyond their jurisdiction. 45 The Department's document did not include any reference to legal or policy documents or to Mr X's opinions on the morality or legality of the Department's conduct. This was appropriate given that these documents do not constitute the complaint as defined by s 12. 46 In relation to the allegations of criminal negligence, the Commission wrote to Mr X on 20 March 1998 advising that: "Our Act clearly states that we can investigate 'unreasonable conduct' by a service provider; this does not include matters of 'criminal negligence.' I note that in her letter to you of 8 July 1997 Ms Richardson advised you to speak to your solicitor about legal action on such issues." 47 Section 83(1)(g) of the C S (C, R & M) Act describes one of the Commission's functions as "to assist in the making of complaints by persons receiving, or eligible to receive, community services." Section 14(1) requires the Commission to "give written notice of the making of the complaint, the nature of the complaint and the identity of the complainant to the person against whom the complaint is made." There is no statutory or other obligation on the Commission to provide the Department with a copy of the complaint or to describe the nature of the complaint in identical terms to that used by the complainant. 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. 49 While details of the applicant's family background and the impact on them of the Department's actions may be relevant to a finding about whether the conduct was unreasonable, they do not form part of the allegations which were the basis for the complaint. 50 Secondly, in relation to the allegation that the Commission failed to refer aspects of his complaint to another agency, the applicant points to the Commission's publication entitled Complaints: how we handle them at the Community Services Commission which states that If your complaint is not covered by the commission's authority, or if it raises an issue of corruption or criminal conduct, we may refer it to another body such as the police or the Independent Commission against Corruption (ICAC). 51 The applicant also cited several provisions of the C S (C, R & M) Act to support his argument. Section 83(1)(g) states that it is a function of the Commission "to assist in the making of complaints by persons receiving, or eligible to receive, community services". Section 83(2)(a) states that: In the exercise of its function, the Commission must, whenever possible: (a) 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 In their submission to the Tribunal the Commission did not address the question of referring Mr X to other agencies in relation to issues which did not come within their jurisdiction. In my view failure to refer the applicant to another agency does not amount to making a decision which is "beyond power" because the legislature would not have intended that failure to do so would vitiate any subsequent decision. Breach of privacy 53 Mr X states that letters written to him by the Commission were marked "Confidential" but they were nevertheless sent to the Department. The applicant says that when he asked the Commission how the Department came to have copies of this correspondence, the answer from the Commission was that ". . it is not uncommon for the Commission to provide to the department copies of letters which have been sent to complainants. This is especially the case where an agreement has been received between the commission and the department in relation to some action involving the complainant. This was such a case. No breach of privacy was involved." The Commission later explained that the applicant had misunderstood the correspondence and that the "agreement" referred to was an agreement that the Department would make available to the applicant copies of documents requested under the Freedom of Information Act. Mr X concedes in his letter to the Tribunal dated 16 June 1999 that "It is possible that I have misunderstood Mr Abbey, but so did Ms Rowe and P Rockley from Campbelltown CSC." 54 In these circumstances, although the Commission may not have communicated effectively with the applicant in relation to this issue, no breach of privacy has occurred, nor has any decision been made which is beyond power. Consideration and rejection of available evidence. 55 X alleges that the Commission has rejected or ignored many of his allegations and that "I'm sure that was far beyond the commission's powers and obligations." For example, in the Assessment Reports, the Commission declined allegations (a), (c), (d), (e), (f) and (g) under s 21(1)(c) because "the subject matter of the complaint is trivial or does not warrant either alternative dispute resolution or investigation." 56 These declinations are "decisions" in terms of s 40(1)(c). The question for the Tribunal is whether these "decisions" were beyond power. Mr X has not specified the ground on which he alleges that the declinations are beyond power. 57 Allegation (a) was "that no-one from the department spoke with Mr X's wife before speaking with his daughters at their school." The Commission declined this allegation under s 21(1)(c) as not warranting investigation. Their reason for declination was that "The Department's action in interviewing L and A prior to notifying their parents was in accordance with the Procedures, as the allegation had been made against Mr X, a resident in the children's home." Under s 5(c) of the CS(C, R & M) Act: The determination of an issue under this Act, decisions and recommendations on matters arising from the operation of this act must not be made or taken in a way that is (or that requires the taking of other action that is): (c) inconsistent with Government policy, as certified in writing by the Minister and notified to the Tribunal, commission or other person or body making the determination. 58 The Commission did not give any evidence that the particular policy in question had been certified in writing by the Minister and notified to them. In any case, the Commission has power to decline a complaint under s 21(1)(c) so they have not acted beyond power in doing so. 59 Allegation (c) was that "Neither girl was given the opportunity to choose a supportive person to accompany them during the interview." The Commission declined this allegation under s 21(1)(c) as not warranting investigation. Their reasons were that a Departmental file note indicated that L told the District Officer that she did not wish to have a support person. The same file note indicated that A nominated the Deputy Principal as her support person. In summary the Commission's conclusion was that there was no substance to the allegation. Mr X, in his response, did not accept that the Procedures for Child Protection, October 1994 (the procedures) were complied with. In particular he submitted that the principals of the respective schools did not inform his daughters of their right not to be interviewed if it was against their wishes. This appears to be an issue taken up by the Commission in allegation (g). Again, the Commission has power to decline a complaint under s 21(1)(c) so they have not acted beyond power in doing so. 60 Allegation (e) was that "Mr X has not been informed of the outcome of the investigation." The Commission declined this allegation under s 21(1)(c) because according to Departmental officers the applicant and his wife were advised at the time of interview that the allegations were not confirmed and this was followed by a letter from the Minister dated 14 July 1997 advising Mr X of the outcome of the notification. Mr X denied that officers advised him of the outcome of the notification at the interview and cited references from the Department's file in support of his contention. The Commission has power to decline a complaint under s 21(1)(c) so they have not acted beyond power in doing so. 61 Allegation (f) was that "the Departmental officers disclosed to A that L was adopted, and disclosed to both children that Mr X suffered from a disability." The Commission declined the allegation under s 21(1)(c) on the ground that it did not warrant investigation or come within their priorities. Their reasons were that the record of interview with L does not make it clear whether the interviewer or L raised the issue of whether the applicant was her natural father. The Department maintained that at no time was the issue of adoption raised by L or the departmental officers or that the issue of disability was discussed. The Commission did not have any records in relation to the interview with A. The Commission agreed that the issue of L's adoption could have been raised with A. Mr X quoted parts of the Department's file which referred to him as "step-father" to support his contention that the Department knew L was adopted before the interviews were conducted. Mr X rejected the Commission's reason for declining these allegations as not falling within their priorities. The Commission appears to have taken the view that even if the allegations were true the conduct was not unreasonable. Even though the Commission has not explained why they came to their conclusion, they have power to decline a complaint under s 21(1)(c) so they have not acted beyond power in doing so. 62 Allegation (g) was that "The departmental officers failed to identify themselves and to explain the purpose of the interview nor did they explain to the girls what their rights were." The Commission declined this allegation under s 21(1)(c) as not warranting investigation. The Assessment Report records that a Departmental officer told the Commission officer on the phone that both investigating officers did introduce themselves to L and A and told them where they were from. The Commission does not comment on the issue of whether the Departmental officers explained the purpose of the interview or what their rights were. Mr X submitted that information obtained from a Departmental officer over the phone should not be considered as evidence. The Commission has power to decline a complaint under s 21(1)(c) so they have not acted beyond power in doing so. 63 Allegations (b) and (h) were investigated by the Department and were the subject of a report under s 38. The contents of an investigation report under s 38 are a "decision" to which s 20(1)(c) applies. Whether the Commission's report in relation to these allegations was "beyond power" must be examined on the same basis as the declination decisions, that is whether or not it was ultra vires in the narrow sense. 64 Allegation (b) was that "Despite there being a month between the notification and the investigation, the departmental officers did not obtain from the schools any background information about the special needs of the children before they interviewed them." The Commission found that: "The department did not obtain information about the special needs of the children before interviewing them and that they failed to respond to the notification in a timely way." The Commission also found that these failures constitute breaches of the departmental procedures and that Campbelltown Community Services Centre management failed to allocate and priorities the notification of 3 April 1997 in accordance with departmental procedures. The Commission made several recommendations in relation to these findings. 65 Mr X alleges that the Commission failed to investigate allegation (b) properly. He argues that the Departmental investigation into the notification did not follow the procedures in many respects. They failed to obtain any background information about his daughters prior to interview. The Commission has the power to report on the result of the investigation and make recommendations. Consequently they have not acted "beyond power". 66 Allegation (h) was that "The Department failed to respond adequately to Mr X's request for assistance following the interviews with his family." The Commission found that the department failed to respond to Mrs X's written request for emergency assistance in a timely way and made certain recommendations. Mr X argued that "the Commission tried to "dilute the allegation by adding the words 'in a timely manner.'" He says that the Department did not help his family at all. Again, the Commission has the power to report on the result of the investigation and make recommendations. Consequently they have not acted "beyond power". Failure to issue proper recommendations. 67 Mr X's final submission was that the Commission failed to issue proper recommendations in order to improve the performance of Campelltown Community Services Centre. He stated that no recommendations were given by the Commission concerning the alleged failure of the departmental officers to comply with the Procedures Document. He alleges that the Commission went beyond its powers in "hiding" information he believes they had that the department's training programs were inadequate. 68 The Commission has the power to issue recommendations under s 38. The fact that Mr X disagrees with the nature and scope of these recommendations does not mean that the Commission has acted beyond power. Decision 69 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 s 40(1)(c) of the Community Services (Complaints, Reviews and Monitoring) Act 1993. 70 2. The Commission's decision that they did not have jurisdiction over, should not assess and/or 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. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.