Community Services (Complaints, Reviews and Monitoring) Act 1993

The Act casts a wide net. “Service provider” is defined exhaustively in s 4(1) to include the Department of Communities and Justice, NDIS implementation companies while they remain public sector agencies, funded or licensed organisations, persons or organisations covered by post-1994 inter-governmental arrangements, authorised carers, designated agencies under the Children’s Guardian Act 2019, and proprietors or occupiers of assisted boarding houses. Employees and agents of these providers are also caught (s 22(2)).

“Community service” means services rendered under community welfare legislation (itself a list encompassing this Act, the Adoption Act 2000, Children and Young Persons (Care and Protection) Act 1998, Community Welfare Act 1987, Disability Inclusion Act 2014, Guardianship Act 1987 and any prescribed Act) or under the relevant inter-governmental arrangements (s 4(1)).

Primary beneficiaries are persons eligible for, or receiving, such services, including those claiming eligibility (s 4(1)). The definition of “child in care” is detailed and includes children under Ministerial parental responsibility, those for whom the Secretary or designated agency has care responsibility, protected persons, those in out-of-home care arrangements, those subject to sole parental responsibility orders, or otherwise in the care of a service provider (s 4(1)). “Person in care” extends the concept to non-children (s 13(6)).

Advocates, families, next friends and representatives are expressly entitled to complain or apply for review (ss 3(2)(f), 22(2), 23(2), 29(2)). The Child Death Review Team provisions affect any child under 18 who dies in New South Wales (or while ordinarily resident here but dying interstate), with particular focus on reviewable deaths under Part 6.

Public authorities, the State Coroner, Police, health and welfare professionals, school principals and others are subject to mandatory information-provision duties (ss 34K, 38). The Crown is bound in all capacities (s 6). Ministers, the Secretary and the Children’s Guardian are “relevant decision makers” for the purposes of review and reasons obligations (ss 28(2), 45(4)).

The Ombudsman, Tribunal, Convenor of the Child Death Review Team and their staff exercise the statutory powers and are protected by immunity provisions (s 48). Legal practitioners, experts and advisory committee members may also be engaged.

Service providers must promote and respect the legal and human rights of recipients, provide adequate information for informed decision-making, enable fair, informal and quick complaint resolution at a convenient place, and deal with third-party complaints (s 3(2)(c)–(f)). They must maintain effective complaints-handling systems open to review by the Ombudsman (s 14) and report on outcomes of referred complaints (s 25(4)). When State funds are provided for community welfare programs, recipients must arrange expenditure to facilitate local complaint resolution; this is an express condition of funding (s 44).

The Ombudsman’s duties include promoting standards, education, monitoring, inquiry, complaint handling, systemic review, and death-pattern analysis (s 11(1)). When exercising entry powers the Ombudsman must give reasonable notice (unless it would defeat the purpose), act at reasonable hours, use no more than reasonable force, and pay compensation for damage unless obstructed (s 17(5)). Summonses to the Local Court may be issued for non-compliance with record or answer requirements (s 17(6)–(8)).

Recipients and their advocates have the right to complain (s 22), to have complaints investigated even if withdrawn where significant issues exist (s 26(2)), to be heard in reviews of their situation (s 13(3)), and to seek Tribunal review of listed decisions if they demonstrate genuine concern (ss 28, 29). They are entitled to written reasons for reviewable decisions and significant service-impact decisions (s 45).

The Child Death Review Team’s functions are collective duties to maintain the register, classify, analyse, research and recommend (s 34D). Team-related persons must keep information confidential except in defined circumstances (s 34L). Persons subject to information-access requirements (s 34K(1)) have a positive duty to provide full and unrestricted access; statutory secrecy provisions do not excuse compliance.

Protections against retribution are conferred on complainants, Tribunal applicants and information providers (s 47). Good-faith acts by the Ombudsman, officers, Team members and persons acting under their direction attract personal immunity (s 48). Section 3 principles do not create civil causes of action, though they may be considered in Tribunal proceedings (s 49).

The Act creates a modest number of specific offences. Obstructing the Ombudsman in the exercise of entry or related powers, refusing to answer or produce without reasonable excuse, or knowingly supplying false or misleading information carries a maximum of 20 penalty units (s 19). Failure to comply with a Local Court summons issued under s 17(6) also attracts 20 penalty units (s 17(8)).

Breach of confidentiality by a Team-related person (or any person to whom information is lawfully disclosed) is punishable by 50 penalty units or 12 months imprisonment or both (s 34L(1)). Dishonest obtaining of Team-acquired information carries the same penalty (s 34M). Retribution against a complainant, Tribunal applicant or information provider is a serious offence: 200 penalty units or 5 years imprisonment or both (s 47(1)). Defences exist where the complainant acted in bad faith or knew material allegations were false (s 47(2)).

Proceedings are summary before the Local Court (s 50) and, for Part 5A offences, must commence within 2 years (s 34O). The Act does not create a general offence regime; enforcement of most obligations occurs through the Ombudsman’s investigative and reporting powers, Tribunal review, and funding conditions rather than criminal sanctions. Recommendations made by the Ombudsman or Team are not directly enforceable but carry political and administrative weight; persistent failure to implement may be reported to Parliament (ss 43, 34F).

The Act is deliberately integrative. It defines “community welfare legislation” to include itself and six other principal statutes plus any prescribed Act (s 4(1)). It applies provisions of the Ombudsman Act 1974 with modifications across multiple functions (ss 15, 24, 42). For example, complaint handling under Part 4 treats the complaint as made under s 12(1) of the Ombudsman Act, service providers as public authorities, and confers the same investigative, reporting and information powers, subject to express carve-outs on notice (s 24(3)) and modifications for non-government agencies (s 24(2A)).

Powers of entry, search warrants and obstruction offences in ss 17–19 operate alongside but do not derogate from Ombudsman Act functions (s 20). Tribunal reviews invoke the Administrative Decisions Review Act 1997 and Civil and Administrative Tribunal Act 2013, with this Act modifying standing, representative applications, alternative dispute resolution and additional powers (ss 29–32).

The Child Death Review Team provisions interact with the Coroners Act 2009 (information exchange with the State Coroner and Domestic Violence Death Review Team – s 34L(1)(c)), the Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002 (s 39(3) requires compliance with information protection principles for research disclosures). Mandatory information supply under ss 34K and 38 overrides other statutory secrecy (ss 34K(3), 38(3)).

Links to the Children and Young Persons (Care and Protection) Act 1998 are pervasive: the definition of child in care, authorised carers, designated agencies, out-of-home care and parental responsibility all cross-reference that Act. Similar cross-references exist to the Children’s Guardian Act 2019, Disability Inclusion Act 2014, Boarding Houses Act 2012, Guardianship Act 1987 and National Disability Insurance Scheme (NSW Enabling) Act 2013. Section 5 constrains recommendations so they cannot require action beyond appropriated resources or inconsistent with Government policy, but this does not apply to the Ombudsman’s functions under the Ombudsman Act 1974.

The retribution offence in s 47 is coordinated with parallel provisions in the Public Interest Disclosures Act 2022, Independent Commission Against Corruption Act 1988, Ombudsman Act 1974 and Law Enforcement Conduct Commission Act 2016 to prevent double jeopardy on the same facts (s 47(2A)–(2B)).

The text records numerous amendments that illustrate progressive expansion. The 2002 amendments (No 42) repealed the former Community Services Commission, transferred its functions to the Ombudsman, substituted Parts 3 and 4, inserted the current complaints and review framework, and added Part 6 on reviewable deaths. These changes were designed to streamline oversight, avoid duplication and embed child-death analysis within an independent statutory officer.

The 2011 amendments (No 60) inserted Part 5A, constituting the Child Death Review Team as a statutory body supported by the Ombudsman’s office, transferring it from the former Commission for Children and Young People Act 1998. The object in s 34A and functions in s 34D emphasise prevention through data, research and recommendations. Consequential changes to definitions and reporting requirements followed.

The 2014 amendments (No 20) added s 14A (systemic-issue reports), expanded the Advocate and Community Services Commissioner roles in the Team, updated definitions to reflect machinery-of-government changes, and adjusted the paramountcy principle. These responded to inquiries highlighting the need for broader systemic analysis beyond individual complaints.

Later amendments aligned the Act with the Children’s Guardian Act 2019 (replacing references to former entities with the Children’s Guardian and designated agencies), the Disability Inclusion Act 2014, and NDIS legislation. Repeals of spent provisions (e.g. certain paragraphs in the definition of child in care and community welfare legislation) and updates to Tribunal nomenclature reflect the creation of NCAT in 2013. The 2022 and 2023 amendments further refined death-review categories and departmental titles.

Each wave of change has sought to respond to systemic failures identified in coronial inquests, royal commissions or parliamentary reviews, to integrate new service-delivery models (especially disability and out-of-home care), and to strengthen data-driven prevention while preserving the Act’s original complaint-resolution focus.

The Act itself does not record specific court challenges. However, the text reveals structural tensions that have generated litigation and debate in related jurisdictions. The resource-constraint provision in s 5(1) prevents the Tribunal, Commission for Children and Young People or other decision-makers from making determinations that would require expenditure beyond appropriated funds or contrary to Government policy certified by the Minister. Subsection (2) exempts the Ombudsman, preserving investigative independence. This carve-out has been central to controversies about the practical enforceability of Ombudsman recommendations.

The confidentiality regime in s 34L, with its broad exceptions for disclosure to Police, Coroner, Secretary, Ombudsman and others, has raised questions about the balance between open data sharing for prevention and the privacy of families. The prohibition on individual review of reviewable deaths by the Team (s 34D(4)) while permitting their inclusion in aggregate research reflects a deliberate policy choice to avoid interfering with coronial processes, yet has been criticised for limiting the depth of learning from individual cases.

Standing tests (“genuine concern” in ss 23 and 29) and the power to exclude unjustified interference after considering the wishes of others (ss 23(4), 29(5)) have produced contested Tribunal decisions about who may advocate for children or incapacitated persons. The interaction with the Ombudsman Act 1974 has led to disputes over whether particular conduct falls within the excluded Schedule 1 categories (s 22(4)).

Retribution offences under s 47 have been invoked in employment and service-provision contexts, although the double-jeopardy coordination with other integrity statutes (s 47(2A)–(2B)) indicates legislative awareness of overlapping regulatory regimes. No textual reference is made to declarations of invalidity or successful judicial review actions against the Act’s core provisions.

Most practitioners assume that an Ombudsman recommendation under s 26 of the Ombudsman Act 1974 (as applied by s 28(1)(c)) is virtually binding; in reality only the original complainant has standing to seek Tribunal review of a decision not to implement it, and even then s 5 may constrain the Tribunal if resources or policy are engaged. Service providers therefore retain considerable latitude provided they give reasoned responses.

The mandatory information-supply duties in ss 34K and 38 override secrecy provisions, yet many agencies still initially refuse production on privacy or confidentiality grounds; the Act’s express statement that such laws “do not prevent” compliance (ss 34K(3), 38(3)) is frequently overlooked, exposing officers to criticism in Ombudsman reports.

The Child Death Review Team may not conduct individual reviews of reviewable deaths (s 34D(4)), yet its biennial reports and other outputs are routinely cited in coronial recommendations; this creates an expectation gap for families who believe the Team will examine their child’s death in detail.

Section 17 entry powers require “reasonable notice” unless it would defeat the purpose, but what constitutes reasonable notice is not defined and has produced disputes where providers claim insufficient time to assemble records. The compensation obligation for damage (s 17(5)) is borne by the Minister, not the Ombudsman personally, a nuance often missed in negotiations.

Transitional provisions in Schedule 1 are dense and still relevant for historic complaints or deaths; failure to check whether a pre-2002 complaint is being handled under the old or new regime can lead to jurisdictional error.

The “genuine concern” test in ss 23 and 29 is subjective yet the Ombudsman or Tribunal must take account of the wishes and interests of other stakeholders (ss 23(4), 29(5)); this can result in exclusion of persistent but well-meaning advocates, particularly in out-of-home care matters where multiple family members hold conflicting views.

Finally, s 3 principles are mandatory when exercising functions under the Act but create no civil cause of action (s 49). They are powerful in Tribunal merits review yet irrelevant in damages claims, a distinction that continues to surprise litigants.

Service providers should begin by mapping all services against the definition of community service and confirming their status under s 4(1). Written policies must expressly incorporate the s 3(2) principles, including a simple, accessible complaints process that operates at a convenient location, accepts third-party complaints, and resolves matters informally and quickly. These systems are subject to Ombudsman review under s 14; providers should maintain auditable records of complaints received, actions taken and outcomes.

A senior officer should be designated as complaints coordinator with authority to respond to Ombudsman referrals under s 25. When a complaint is referred, the provider must investigate, report the outcome, and supply all requested documents (s 25(6)). Refusal risks obstruction findings under applied Ombudsman Act provisions.

For organisations delivering out-of-home care, disability or boarding-house services, protocols for cooperation with Child Death Review Team information requests (s 34K) and Ombudsman death reviews (s 38) are essential. Records must be retained in retrievable form; statutory secrecy cannot be relied upon.

If a reviewable decision is made (s 28), written reasons complying with s 45 (or the Administrative Decisions Review Act 1997 where applicable) must be given promptly. Significant service changes likely to affect quality or availability also require reasons on request.

Funding recipients must ensure grant agreements contain clauses requiring local complaint-resolution arrangements (s 44). NDIS providers that are implementation companies or funded organisations should note their explicit inclusion in the service-provider definition.

Organisations should train staff on the retribution offence (s 47) and maintain whistleblower policies that expressly protect persons who complain to the Ombudsman or Tribunal. Privacy policies must recognise the broad disclosure permissions in s 34L and s 39.

Regular self-audits against Ombudsman standards, participation in education offered under s 11(1)(i), and proactive engagement with the Ombudsman on systemic issues (s 14A) reduce the likelihood of adverse findings. Where a child in care or person in care review is signalled (s 13), providers should facilitate direct access for the Ombudsman to the individual and relevant records.

Legal and compliance teams should maintain an up-to-date copy of the Act annotated with all cross-referenced legislation and monitor regulations that prescribe additional reviewable decisions or modify the applied Ombudsman Act provisions. Early legal advice on whether a complaint raises “significant public safety or public interest” (ss 26(2), 27) can determine whether the Ombudsman will continue despite withdrawal.

By treating complaints as improvement opportunities rather than threats, maintaining transparent records, and cooperating fully with statutory information demands, service providers can both comply and contribute to the preventive objects that now sit at the heart of the legislation.