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The Aged Care Complaints Investigation Scheme, natural justice and rights of review

By Julie McStay21 Mar 2009

A determination made by the Aged Care Complaints Investigation Scheme (CIS) that an approved provider has breached their responsibilities under the Aged Care Act 1997 (Cth) or the Aged Care Principles should be made in accordance with the principles of natural justice. If a decision is not made on that basis then this may provide a basis upon which to apply to review that decision.

The CIS determinations

The functions of the CIS are underpinned by the Aged Care Act and the Investigation Principles.

The Investigation Principles are generally considered to impose inadequate requirements on the CIS to ensure that determinations are made in an appropriate way. The way in which the investigation will be conducted is entirely within the CIS’s discretion. The Investigation Principles do not set out the evidence that the secretary must take into account or state the standard of proof which must be satisfied before the secretary can make a determination that an approved provider has breached their responsibilities.

Procedural fairness

It is well accepted that when a statute confers a power upon a public official to make a decision which has the capacity to affect a person's rights or interests that the rules of procedural fairness must apply to regulate the exercise of that power unless the legislation in question plainly excludes that intention. There is nothing in the Aged Care Act or Investigation Principles to exclude the application of procedural fairness. Accordingly while the Investigation Principles provide inadequate direction to ensure that a determination made by the CIS that an approved provider has breached their responsibilities is made in an appropriate way, such a determination must still be made in accordance with the rules of procedural fairness (or natural justice).

Rights of review

The Aged Care Commissioner

If the CIS determines that the approved provider has breached its responsibilities under the Aged Care Act or Investigation Principles, the CIS must give the relevant provider written notification of the breach and a statement that it may apply to the Commissioner for examination of the decision under Part 6 of the Aged Care Act. The CIS may also give the relevant provider a notice of required action.

Commonwealth Government Ombudsman

The Commonwealth Government Ombudsman also has power to review an administrative decision, such as a determination made by the CIS.

Judicial review

Judicial review in short involves an application to the courts to review a decision made by an administrative body.

Applications to review administrative decisions under the ADJR Act involve complex jurisdictional issues. An approved provider should obtain legal advice specific to their particular circumstances to determine whether an application for review under the ADJR Act is the most appropriate review mechanism to use in respect of a determination made by the CIS and to advise on the prospects of success of such an application.