2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mrs Jacqui Burke)

2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Mrs Jacqui Burke)

An Act to provide for the establishment of a commissioner for the family, and for related purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Commissioner for the Family Act 2004.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

The objects of this Act are—

(a) to promote the interests of the family as a unit in society; and

(b) to encourage government authorities that provide services affecting families or family members to take into account the interests of the family in the provision of the services.

The dictionary at the end of this Act is part of this Act.

A note included in this Act is explanatory and is not part of this Act.

Note See Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

In this Act:

family means—

(a) a parent or parents, and a child or children of the parent or parents, whether or not living together; or

(b) an adult or adults and a child or children, living together as a family, whether or not they are related by blood.

family services means services provided by agencies that affect, or might affect, families or family members.

(1) In this Act:

agency means an administrative unit or government authority.

(2) In this section:

government authority means—

(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with, a law of the Territory, other than—

(i) an incorporated company or association; or

(ii) a body that is declared under the regulations not to be a government authority; or

(b) any other body, whether incorporated or unincorporated, that is declared by the regulations to be a government authority, if the body is—

(i) established by the Executive or by a Minister; or

(ii) an incorporated company or association over which the Territory is in a position to exercise control; or

(c) a person performing the duties of a position declared under the regulations to be a government authority, if the position is created by the Executive or by a Minister otherwise than under a law of the Territory.

(3) An unincorporated body that is a board, council, committee, subcommittee or other body established under a law of the Territory for assisting, or exercising functions connected with, a government authority is taken not to be a government authority.

(4) However, anything done by a body mentioned in subsection (3), or by a person on its behalf, is taken to have been done by the government authority.

(5) A person is not taken to be a government authority only because the person performs the duties of—

(a) an office prescribed under the regulations; or

(b) an office the duties of which the person performs as duties of his or her employment as an officer of an agency; or

(c) an office of member of a body; or

(d) an office established by a law of the Territory for a government authority.

(6) However, anything done by or on behalf of a person performing the duties of an office mentioned in subsection (5) is taken to have been done by the agency or body concerned.

The office of Commissioner for the Family is established.

The Minister must appoint a person to be the commissioner.

Note 1 For the making of appointments (including acting appointments), see Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

The commissioner must be appointed for a term of not longer than 3 years.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

The commissioner holds the position on the conditions stated in—

(a) this Act; and

(b) the instrument of appointment.

The Minister may end the commissioner’s appointment for misbehaviour or physical or mental incapacity.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

The commissioner has the following functions:

(a) to promote laws, policies and practices that support the objects of this Act;

(b) to encourage, facilitate and support the development and coordination of advocacy and support services for families;

(c) to promote an understanding of, and informed discussion about, the rights, interests and wellbeing of families;

(d) to promote and engage in research about the rights, interests and wellbeing of families;

(e) to conduct investigations into complaints about the provision of family services by agencies;

(f) to disseminate information about the operation of this Act and the functions of the commissioner;

(g) to advise the Minister on any matters relating to the family, whether at the Minister’s request or at the commissioner’s initiative;

(h) to liaise with any agency of the Commonwealth, a State or another Territory about the exercise of functions by the agency in relation to family services;

(i) to exercise any other function given to the commissioner under this Act or any other Territory law.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

The commissioner is not subject to the control of the Minister in relation to the exercise of any of the commissioner’s functions under this Act.

(1) The staff assisting the commissioner must be employed under the Public Sector Management Act 1994.

(2) The Public Sector Management Act 1994 applies to the management of the staff assisting the commissioner.

(1) The commissioner may appoint a public servant as an authorised person for this Act.

Note 1 For the making of appointments (including acting appointments), see Legislation Act, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

(2) A person may be appointed as an authorised person only if—

(a) the person is an Australian citizen or a permanent resident of Australia; and

(b) the commissioner is satisfied that the person is a suitable person to be appointed, having regard in particular to—

(i) the person’s criminal record (if any); and

(ii) the person’s employment record; and

(iii) whether the person has satisfactorily completed adequate training to exercise the powers of an authorised person.

(1) The commissioner must give an authorised person an identity card that states that the person is an authorised person for this Act, and shows—

(a) a recent photograph of the person; and

(b) the name of the person; and

(c) the date of issue of the card; and

(d) an expiry date for the card; and

(e) anything else prescribed under the regulations.

(2) A person who ceases to be an authorised person must return his or her identity card to the commissioner as soon as practicable, but within 21 days after the day the person ceases to be an authorised person.

Maximum penalty: 1 penalty unit.

(3) An offence against subsection (2) is a strict liability offence.

(1) The commissioner may, if asked by a person, or at the commissioner’s own initiative, investigate any complaint about the provision or lack of provision of family services if the commissioner believes on reasonable grounds that it is desirable to do so to support the objects of this Act.

(2) The commissioner is not authorised to investigate action taken by—

(a) a judge or the master of the Supreme Court; or

(b) a magistrate or coroner for the Territory; or

(c) a royal commission under the Royal Commissions Act 1991; or

(d) a board of inquiry under the Inquiries Act 1991; or

(e) a panel conducting an inquiry under the Land (Planning and Environment) Act 1991; or

(f) the ombudsman; or

(g) the commissioner for the environment; or

(h) the commissioner for health complaints.

(1) If a complaint is made to the commissioner about action taken by an agency, the commissioner may decide not to investigate the matter or, if an investigation has begun, decide not to investigate the action further if, in the opinion of the commissioner—

(a) the complaint is frivolous or vexatious or is not made in good faith; or

(b) an investigation, or further investigation, of the action is not warranted having regard to all the circumstances.

(2) In addition, if a person who makes a complaint to the commissioner about action taken by an agency has not made a complaint to the agency about the action, the commissioner may decide not to investigate the action.

(3) The commissioner may investigate action taken by an agency on the basis of a complaint if—

(a) the complainant—

(i) has complained to the agency about that action; and

(ii) tells the commissioner that the agency has not responded or has not responded adequately; and

(b) the commissioner is of the opinion that—

(i) if the agency has not responded—since the complaint was made, a reasonable period has elapsed in which the agency could have responded; or

(ii) if the agency has responded—the response was not adequate.

(4) If a complainant causes action to which the complaint relates to be reviewed by a court, or by a tribunal constituted by or under a law of the Territory, the commissioner must not investigate, or continue to investigate, the action unless the commissioner is of the opinion that there are special reasons justifying the investigation.

(5) If the commissioner is of the opinion that a complainant has or had a right to cause the action to which the complaint relates to be reviewed by a court, or by a tribunal constituted under a law of the Territory, but has not exercised that right, the commissioner may decide not to investigate the action or not to investigate the action further, if he or she is of the opinion that, in all the circumstances, it would be reasonable for the complainant to exercise, or would have been reasonable for the complainant to have exercised, that right.

(6) If, before the commissioner begins, or after the commissioner has begun, to investigate action taken by an agency on the basis of a complaint, the commissioner forms the opinion that adequate provision is made under an administrative practice for the review of action of that kind, the commissioner may decide not to investigate the action or not to investigate the action further—

(a) if the action has been, is being or is to be reviewed under that practice at the request of the complainant; or

(b) if the commissioner is satisfied that the complainant is entitled to cause the action to be reviewed under that practice and it would be reasonable for the complainant to cause it to be so reviewed.

(7) If a complaint is made to the commissioner by a person at the request of another person or of a body of people, this section applies as if references to the complainant were references to the person or the body of people at whose request the complaint is made.

(1) The commissioner must, before beginning an investigation of action taken by an agency, tell the principal officer of the agency that the action is to be investigated.

(2) The commissioner may from time to time make an arrangement with the principal officer of an agency about how, and the period within which, the commissioner is to tell the principal officer that he or she proposes to investigate particular action taken by the agency.

(3) An investigation may be conducted in any way the commissioner considers appropriate.

(4) The commissioner may, for this Act, obtain information from people, and make inquiries, as the commissioner considers appropriate.

1 face to face

2 by correspondence

3 by telephone

4 by email

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(5) It is not necessary for a complainant or any other person to be given an opportunity to appear before the commissioner or any other person in connection with an investigation.

(1) This section applies if the commissioner proposes to make a report in relation to an investigation in which the commissioner states an opinion that is either expressly or impliedly critical of an agency or person.

(2) Before completing the investigation, the commissioner must—

(a) if the opinion relates to an agency—give the principal officer of the agency and the officer principally concerned in the action to which the investigation relates an opportunity to appear before the commissioner or before an authorised person, and make submissions, either orally or in writing, in relation to the action; and

(b) if the opinion relates to a person—give the person an opportunity to appear before the commissioner or before an authorised person, and make submissions, either orally or in writing, in relation to the action to which the investigation relates.

(3) If the commissioner gives a person other than the principal officer of an agency an opportunity to appear before the commissioner or before an authorised person under subsection (2), the person may, with the approval of the commissioner or of the authorised person, be represented by another person.

(4) If the investigation is based on an oral complaint, the complaint must be put in writing and signed by the complainant.

(1) This section applies if the commissioner is of the opinion, either before, during or after completing an investigation, that there is evidence that an officer of an agency has breached a duty or engaged in misconduct.

(2) The commissioner must report the possible breach of duty or misconduct—

(a) to the ombudsman for further investigation; and

(b) either—

(i) if the officer is the principal officer of the agency—to the Minister responsible for the agency; or

(ii) to the principal officer of the agency.

failure to comply with the Public Sector Management Act 1994 or the management standards made under that Act, section 25

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This Act does not prevent the commissioner from disclosing information to a person or to members of the public about a matter that is the subject of an investigation if the commissioner is satisfied that the disclosure is necessary and reasonable in the exercise of a function under this Act.

(2) In a disclosure mentioned in subsection (1), the commissioner must not—

(a) express an opinion that is (expressly or impliedly) critical of a person unless the commissioner has given the person an opportunity to answer the criticism; or

(b) identify a person (directly or indirectly) unless it is necessary and reasonable to do so.

(1) If the commissioner has conducted an investigation, the commissioner must—

(a) prepare a report on the investigation; and

(b) within 28 days of the completing the report, give the report to the Minister.

(2) The commissioner may, at any time, give the Minister a report about any matter concerning the exercise of the commissioner’s functions under this Act.

(1) This section applies if the commissioner, in writing, directs the Minister to give a report by the commissioner under section 24 to the Legislative Assembly.

(2) The Minister must, within 6 sitting days after receiving the report, present the report to the Legislative Assembly.

(3) However, if there are no sitting days within the period of 28 days beginning on the day after the report is given to the Minister under section 24, the Minister must give the report and a copy for each member of the Legislative Assembly to the Speaker before the end of that period.

(4) The Speaker must arrange for a copy of the report to be given to each member of the Legislative Assembly on the day the Minister gives the report to the Speaker.

(1) As soon as practicable after the end of each financial year, the commissioner must give the Minister a report about the commissioner’s operations under this Act.

(2) The Minister must present a copy of a report under this section to the Legislative Assembly within 6 sitting days after the day the Minister receives the report.

(3) A report presented by the commissioner, or information provided by the commissioner, under the Annual Reports (Government Agencies) Act 1995, section 8 must include details (including reasons) of any decision not to investigate a complaint during the period to which the report or information relates.

(1) In this section:

court includes any tribunal or other entity having power to require the production of documents or the answering of questions.

produce includes permit access to.

protected information means information about a person that is disclosed to, or obtained by, a person to whom this section applies because of the person’s position under this Act or the exercise of a function under this Act.

(2) A person who is, or has been, the commissioner commits an offence if the person—

(a) makes a record of protected information; or

(b) directly or indirectly discloses or communicates to a person protected information about someone else.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) Subsection (2) does not apply if the record is made, or the information is disclosed or communicated—

(a) under this or any other Act; or

(b) in relation to the exercise of a function as commissioner under this or any other Act.

(4) Subsection (2) does not prevent the commissioner from communicating protected information to a person about someone else with the consent of the other person.

(5) Unless it is necessary to do so for this Act or another Act, the commissioner is not required—

(a) to communicate protected information to a court; or

(b) to produce a document containing protected information to a court.

(1) The commissioner, or a member of the commission’s staff, does not incur civil or criminal liability for an act or omission done honestly and without negligence for this Act.

(2) A civil liability that would, apart from this section, attach to the commissioner or a member of the commissioner’s staff attaches instead to the Territory.

(1) The commissioner may, in writing, approve forms for this Act.

(2) If the commissioner approves a form for a particular purpose, the approved form must be used for that purpose.

(3) An approved form is a notifiable instrument.

Note  A notifiable instrument must be notified under the Legislation Act.

The Executive may make regulations for this Act.

Note Regulations must be notified, and presented to the Legislative Assembly, under the Legislation Act.

Note 1 The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:

• ACT

• administrative unit

• adult

• chief executive (see s 163)

• child

• Executive

• exercise

• function

• in relation to

• law (of the Territory)

• liability

• position

• the Territory.

agency—see section 7.

authorised person—see section 16.

commissioner means the Commissioner for the Family appointed under section 9.

family—see section 6.

family services—see section 6.

government authority—see section 7.

investigation means an investigation under section 20.

officer, of an agency, means—

(a) for an agency that is an administrative unit—

(i) a public servant (including the principal officer of the unit) who is a member of the unit; or

(ii) any other person (not being a Minister) authorised to exercise functions on behalf of the unit by the principal officer of the unit; or

(b) for an agency that is a government authority—

(i) the person who constitutes, or is acting as the person who constitutes, the authority; or

(ii) a person who is, or is acting as, a member of the authority or is a deputy of such a member; or

(iii) a person who is employed in the service of, or is a member of the staff of, the authority, whether or not the person is employed by the authority; or

(iv) a person authorised by the authority to exercise any functions of the authority on behalf of the authority.

principal officer, of an agency, means—

(a) for an agency that is an administrative unit—the Commissioner for Public Administration or the chief executive of the unit; or

(b) for an agency that is a government authority—

(i) if the regulations declare an office to be the principal office in relation to the authority—the person occupying that position; or

(ii) in any other case—the person performing the duties of the position or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which the person is present.

responsible Minister, for an agency, means—

(a) for an agency that is an administrative unit—the Minister responsible for the unit; or

(b) for an agency that is a government authority mentioned in section 7 (2), definition of government authority,

paragraph (a)—the Minister administering the law of the Territory concerned; or

(c) for an agency that is a government authority mentioned in the definition of government authority, paragraph (b) or (c)—the Minister declared by the regulations to be the responsible Minister for the authority; or

(d) for any agency—another Minister acting for the Minister mentioned in paragraph (a), (b) or (c).

Presentation speech made in the Legislative Assembly on 2004.

Notified under the Legislation Act on 2004.

For the latest republication of amended laws, see www.legislation.act.gov.au.