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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Commissioner for Children and Young People
Bill 2014
A BILL FOR
An Act to establish a Commissioner for Children and Young People; to make
related amendments to the Freedom
of Information Act 1991; and for other purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Interaction
with other Acts
Part 2—Declaration, objects,
principles and statutory duties
5Declaration
6Objects
7Principles
8Statutory
duties in respect of children and young people
Part 3—Commissioner
for Children and Young People
Division 1—Commissioner for Children
and Young People
9Establishment of Commissioner for Children and
Young People
10Independence of Commissioner
11Appointment of Commissioner
12Removal
etc of Commissioner
13Appointment of acting Commissioner
14Assistant
Commissioners
15Functions of Commissioner
16Delegation
17Annual report
Division 2—Other
staff
18Employees
19Use of staff etc of Public
Service
Part 4—Commissioner may inquire into
matters at systemic level
20Commissioner may inquire into matters
affecting children and young people at systemic level
21Recommendations
22Report of
inquiry
Part 5—Investigation
of complaints
Division 1—Preliminary
23Matters that may be
investigated under Part
24Investigations where proceedings before
judicial body or inquiry agency
25Commissioner may require Commissioner of
Police etc to provide report
Division 2—Complaints
26Complaints
27Other action that may be taken on
receipt of complaint
Division 3—Investigations
28Principles and procedures
29Powers of
Commissioner for purposes of investigations
30Limiting
action by certain State authorities
31Injunction to
refrain from conduct pending investigation
32Recommendations—State
authorities
33Recommendations—other
persons or bodies
34Report of investigation
Part 6—Offences
35Offence
to refuse etc to comply with requirement
36Obstruction
37False or
misleading statements in complaint or report etc
Part 7—Investigators
38Investigators
39Powers of
investigators
40Guidelines for investigators
Part 8—Miscellaneous
41Provision
relating to mandatory notification under Children's Protection Act
42Protections, privileges and
immunities
43Confidentiality
44Victimisation
45Service
46Evidentiary provision
47Review of
Act
48Regulations
Part 1—Preliminary
1Amendment
provisions
Part 2—Amendment of
Freedom of Information Act 1991
2Amendment of Schedule
2—Exempt agencies
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Commissioner for Children and Young People
Act 2014.
This Act will come into operation 3 months after the day on which this Act
is assented to by the Governor.
(1) In this Act—
Commissioner for Children and Young People or
Commissioner means the person for the time being holding or acting
in the office of Commissioner for Children and Young People under
Part 3;
inquiry agency means—
(a) the Ombudsman; or
(b) the State Coroner; or
(c) the Police Ombudsman; or
(d) the Commissioner for Public Sector Employment; or
(e) the Independent Commissioner Against Corruption; or
(f) the Health and Community Services Complaints Commissioner;
or
(g) the Child Death and Serious Injury Committee established under the
Children's
Protection Act 1993; or
(h) any other person or body declared by the regulations to be an inquiry
agency for the purposes of this Act;
local council means a council constituted under the Local
Government Act 1999;
State authority means—
(a) a person who holds an office established by an Act; or
(b) an administrative unit of the Public Service; or
(c) South Australia Police; or
(d) a local council; or
(e) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established, or subject to control or direction, by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown or a local
council (whether or not established by or under an Act or an enactment);
or
(f) any other person or body declared by the regulations to be a State
authority,
but does not include—
(g) a school established by an Act for a public purpose; or
(h) any other person or body declared by the regulations to be excluded
from the ambit of this definition.
(2) For the purposes of this Act, a reference to children and young
people will be taken to be a reference to persons who are under
18 years of age.
This Act is in addition to, and does not derogate from, any other Act or
law.
Part 2—Declaration,
objects, principles and statutory duties
The Parliament of South Australia—
(a) recognises the competencies and rights of children and young people in
our community; and
(b) commits to protecting, respecting and promoting the rights of children
and young people.
The objects of this Act include—
(a) establishing the Commissioner for Children and Young People to provide
an authoritative voice and to hold decision makers to account on a systemic
level; and
(b) establishing a legislative framework to ensure that—
(i) the rights, development and wellbeing of children and young people are
considered in relation to government policies; and
(ii) State authorities consider the consequences for children and young
people of policies developed or implemented by the State authority;
and
(c) strengthening and improving outcomes for children and young people of
all cultures; and
(d) building the capacity of the community to provide environments
conducive to the development and wellbeing of children, young people and their
families.
The following principles must be taken into account in the administration
and operation of this Act:
(a) children and young people are valued citizens;
(b) the first 5 years of a child’s development are of particular
importance;
(c) it is the responsibility of each member of the community to ensure
every child and young person is supported to play, learn, and develop to be the
best that they can at every stage of life and to participate and be responsible
citizens in our society;
(d) parents and carers have the primary role in the development and
wellbeing of the children and young people in their care, and governments and
others who provide services to children and young people should work in
partnership with them;
(e) children and young people, and their parents, carers and
families—
(i) are best able to shape their own lives and are not simply passive
recipients of services; and
(ii) have differing needs; and
(iii) should be consulted and provided with opportunities to be involved
in decision-making processes that affect their lives;
(f) the diverse cultural and linguistic nature of our society is to be
recognised and valued;
(g) South Australia’s Aboriginal peoples are part of the oldest
continuing cultures in human history and the cultural and linguistic heritage of
Aboriginal children and young people must be honoured, celebrated and
respected;
(h) the role of non-government organisations, services and programs within
the community can strengthen and improve outcomes for the development and
wellbeing of children and young people;
(i) the rights set out from time to time in the United Nations
Convention on the Rights of the Child and any other relevant international
human rights instruments are to be protected, respected and promoted.
8—Statutory
duties in respect of children and young people
(1) Every State
authority, in carrying out its functions or exercising its
powers—
(a) must, as far as is reasonably practicable, further the objects of this
Act; and
(b) must have regard to the principles set out in
section 7;
and
(c) must consider the impact that any decisions will have on children and
young people.
(2) A State authority will be taken not to be in breach of
subsection (1)
if the State authority is acting—
(a) in accordance with a requirement under this or any other Act;
or
(b) in circumstances prescribed by the regulations.
(3) A failure by a
State authority to comply with this section does not, of itself, give rise to
any civil liability against the Crown, the State authority or any other
person.
Part 3—Commissioner
for Children and Young People
Division 1—Commissioner
for Children and Young People
9—Establishment
of Commissioner for Children and Young People
(1) There will be a Commissioner for Children and Young People.
(2) The Commissioner is not a Public Service employee.
(3) If the Commissioner was, immediately before his or her appointment,
employed in the Public Service, the Commissioner retains existing and accruing
rights in respect of leave.
(4) The Commissioner is a senior official for the purposes of the Public
Sector (Honesty and Accountability) Act 1995.
10—Independence
of Commissioner
(1) Subject to this section, the Commissioner is independent of direction
or control by the Crown or any Minister or officer of the Crown.
(2) The Minister may, after consultation with the Commissioner, give
general directions and furnish guidelines to the Commissioner in relation to the
carrying out of his or her functions (however the Minister cannot give a
direction with respect to any inquiry, investigation, finding or recommendation
of the Commissioner or the contents of any report).
(3) The directions
or guidelines under this section—
(a) must, as soon as practicable after they have been given, be published
in the Gazette; and
(b) must, within 6 sitting days after they have been given, be laid before
each House of Parliament; and
(c) must be included in the annual report of the Commissioner for the
relevant year.
11—Appointment
of Commissioner
(1) The Commissioner will be appointed by the Governor on the nomination
of the Minister for a term not exceeding 5 years and on conditions
determined by the Governor.
(2) The Commissioner is, at the end of a term of appointment, eligible for
reappointment but cannot hold office for terms (including any term as acting
Commissioner) that exceed 7 years in total.
(3) The Minister
must, before nominating a person for appointment as Commissioner, call for
expressions of interest in accordance with a scheme determined by the Minister
for the purposes of this section and published in the Gazette.
12—Removal
etc of Commissioner
(1) The Governor
may, on the address of both Houses of Parliament, remove the Commissioner from
office.
(2) The Governor
may suspend the Commissioner from office for—
(a) contravention of a condition of appointment; or
(b) misconduct; or
(c) failure or incapacity to carry out official duties
satisfactorily.
(3) If the Governor suspends the Commissioner from office, a full
statement of the reason for the suspension must be laid before both Houses of
Parliament within 7 days after the suspension if Parliament is then in
session or, if not, within 7 days after the commencement of the next
session of Parliament.
(4) If, at the end of 20 sitting days after the statement is laid
before Parliament, neither House of Parliament has presented an address to the
Governor requiring the Commissioner to be restored to office, the Commissioner
is removed from office.
(5) If within 20 sitting days after the statement is laid before
Parliament either House of Parliament presents an address to the Governor
requiring the Commissioner to be restored to office, the Commissioner is
restored to office.
(6) The office of Commissioner becomes vacant if the
holder—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Governor; or
(d) becomes an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(e) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(f) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(g) is removed from office by the Governor under this section.
(7) Except as is provided by this section, the Commissioner may not be
removed or suspended from office, nor will the office of the Commissioner become
vacant.
13—Appointment
of acting Commissioner
(1) The Minister may appoint a person (who may be a Public Service
employee) to act as the Commissioner during any period for
which—
(a) no person is for the time being appointed as the Commissioner;
or
(b) the Commissioner is absent from, or unable to discharge, official
duties.
(2) The terms and conditions of appointment of the person appointed to act
as the Commissioner will be determined by the Minister.
(3) A person acting as the Commissioner is a senior official for the
purposes of the Public
Sector (Honesty and Accountability) Act 1995.
(1) The Commissioner may appoint as many Assistant Commissioners as the
Commissioner thinks necessary.
(2) The terms and conditions of appointment of an Assistant Commissioner
will be determined by the Minister after consultation with the
Commissioner.
(3) An Assistant Commissioner is a senior official for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995.
(1) It is a function of the Commissioner to inquire into, report on and
keep under review matters related to the rights, development and wellbeing of
children and young people at a systemic level.
(2) It is a function of the Commissioner to investigate matters under
Part 5.
(3) The Commissioner also has the following functions:
(a) to promote and advocate for the rights and interests of children and
young people in South Australia;
(b) to promote the participation of children and young people in the
making of decisions that affect their lives;
(c) to advise, and make recommendations to, Ministers, State authorities
and other bodies on matters related to the rights, development and wellbeing of
children and young people;
(d) to assist in ensuring that the State, as part of the Commonwealth,
satisfies its international obligations in respect of children and young
people;
(e) such other functions as may be conferred on the Commissioner by or
under this or any other Act or by the Minister.
(4) Without
limiting any other provision of this Act, the Commissioner must, as far as is
reasonably practicable, engage with children and young people in the performance
of his or her functions under this Act (other than in relation to an
investigation under
Part 5).
(1) Subject to this section, the Commissioner may delegate a function or
power under this Act (other than a prescribed function or power) to an Assistant
Commissioner, or any other person or body of persons that is, in the
Commissioner's opinion, competent to perform or exercise the relevant function
or power.
(2) A delegation under this section—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not prevent the delegator from acting in any matter.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(1) The Commissioner must, on or before 30 September in each year,
prepare and deliver to the Minister a report on the operations of the
Commissioner during the previous financial year.
(2) The report must contain the following information:
(a) the number and general nature of complaints received by the
Commissioner;
(b) the number and general nature of matters investigated by the
Commissioner;
(c) the number and general nature of matters referred to South Australia
Police, a State authority or an inquiry agency under this Act;
(d) the extent to which investigations have resulted in prosecutions or
disciplinary action;
(e) the number and general nature of occasions on which public statements
have been made by the Commissioner;
(f) the number and general nature of recommendations made by the
Commissioner;
(g) any other information required by the regulations.
(3) The Minister must, within 12 sitting days after receiving a report
under this section, cause a copy of the report to be laid before both Houses of
Parliament.
(1) The Commissioner may engage employees on terms and conditions
determined by the Commissioner.
(2) The employees are not Public Service employees but are to be taken to
be public sector employees, employed by the Commissioner, for the purposes of
the Public
Sector (Honesty and Accountability) Act 1995.
19—Use
of staff etc of Public Service
The Commissioner may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
Part 4—Commissioner
may inquire into matters at systemic level
20—Commissioner
may inquire into matters affecting children and young people at systemic
level
(1) The Commissioner may conduct an inquiry under this Part
into—
(a) the policies, practices and procedures of a State authority as they
relate to the rights, development and wellbeing of children and young people
generally, or a particular group of children and young people; and
(b) any other matter declared by the regulations to fall within the ambit
of this subsection.
(2) The Commissioner may only conduct an inquiry under this Part if he or
she is of the opinion that—
(a) the matter raises an issue of particular significance to children and
young people; and
(b) it is in the public interest to conduct the inquiry.
(3) The Commissioner must not conduct an inquiry into a matter if to do so
would be likely to impede an investigation or proposed investigation relating to
the matter that is being, or is to be, conducted by South Australia Police or an
inquiry agency.
(4) Subject to this Act, the Commissioner may conduct an inquiry under
this Part in such manner as he or she thinks fit.
(5) The Commissioner must inform the relevant State authority as to the
nature and timing of an inquiry under this Part.
(6) A State authority
must assist the Commissioner in the conduct of an inquiry as requested by the
Commissioner.
(1) The Commissioner may, on completing an inquiry under this Part, or in
response to issues observed by the Commissioner in the course of an inquiry
under this Part, recommend to a State authority that the State
authority—
(a) change practices, policies or procedures in a specified way or review
practices, policies or procedures to achieve specified outcomes; or
(b) conduct, or participate in, specified educational programs or
educational programs designed to achieve specified outcomes; or
(c) take such other specified action as may be specified by the
Commissioner.
(2) If the Commissioner is not satisfied that a State authority has
complied with the recommendations of the Commissioner, the Commissioner must
inform the State authority of the grounds of the Commissioner's dissatisfaction
and give the State authority an opportunity to comment within a specified
time.
(3) If, after
considering any comments received from the State authority within the specified
time, the Commissioner is still not satisfied, the Commissioner may submit a
report to the Minister setting out the grounds of dissatisfaction, together with
any comments from the State authority.
(4) The Minister must, within 12 sitting days after receiving a report
under this section, cause a copy of the report to be laid before both Houses of
Parliament.
(1) The Commissioner must, on completing an inquiry under this Part,
prepare and deliver to the Minister a report on the inquiry (including, if
appropriate, details of any recommendations made under
section 21 in
respect of the inquiry).
(2) The Minister must, within 12 sitting days after receiving a report
under this section, cause a copy of the report to be laid before both Houses of
Parliament.
Part 5—Investigation
of complaints
23—Matters
that may be investigated under Part
(1) Subject to this Act, the Commissioner may investigate matters of the
following kinds under this Part:
(a) a matter affecting, or related to, the rights, development and
wellbeing of a child or young person or more than 1 child or young
person;
(b) a matter involving an interaction between a State authority and a
child or young person, or class of children and young people, or the family of a
child or young person;
(c) a matter referred to the Commissioner by the Minister, a House of
Parliament, a committee of a House of Parliament or a joint committee of both
Houses of Parliament,
however, the Commissioner must not investigate a matter unless he or she is
satisfied that any procedures for resolving matters of the relevant kind under a
specific Act have been used appropriately but without resolution of the
matter.
(2) The Commissioner
must not investigate—
(a) an allegation that a specified person has, or may have, committed a
criminal offence; or
(b) a matter that could be, but has not yet been, the subject of an
inquest under the Coroners
Act 2003 (unless the State Coroner has determined not to hold an
inquest into the matter); or
(c) any other matter, or class of matters, declared by the regulations to
fall within the ambit of this subsection.
(3) Without limiting
subsection (2), the
Commissioner must not investigate a matter if to do so would be likely to impede
an investigation or proposed investigation relating to the matter that is being,
or is to be, conducted by South Australia Police or an inquiry agency.
(i) on receipt of a complaint under this Part; or
(ii) on the Commissioner's own initiative; and
(b) must
investigate a matter—
(i) referred to the Commissioner by the Minister; or
(ii) referred to the Commissioner by a House of Parliament, or a committee
of a House of Parliament or a joint committee of both Houses of
Parliament.
24—Investigations
where proceedings before judicial body or inquiry agency
The Commissioner or an investigator may perform functions or exercise
powers in respect of a particular investigation despite proceedings that may be
before a court or inquiry agency but, in that case, the Commissioner or
investigator must endeavour to avoid, as far as practicable, prejudice to any
person affected by the proceedings.
25—Commissioner
may require Commissioner of Police etc to provide report
(1) The Commissioner of Police must, so far as it is practicable to do so,
comply with a written request from the Commissioner to provide a report on the
investigation of a matter that is related to a complaint under this
Part.
(2) An inquiry agency must, so far as it is practicable to do so, comply
with a written request from the Commissioner to provide a report on the
investigation of a matter by the inquiry agency that is related to a complaint
under this Part.
(1) A complaint for the
purposes of this Part—
(a) must relate to a matter that can be investigated by the Commissioner
under this Part; and
(b) must be made in a manner and form determined by the Commissioner;
and
(c) must be accompanied by such information as may be required by the
Commissioner.
(2) The Commissioner may refuse to accept or investigate a complaint if
the Commissioner is of the opinion that the complaint is frivolous, vexatious,
misconceived or lacking in substance or involves a trivial matter.
(3) The Commissioner must take reasonable steps to ensure that a
complainant receives an acknowledgement of the complaint and is informed as to
the action, if any, taken in respect of the complaint.
27—Other
action that may be taken on receipt of complaint
(1) On receiving a
complaint under this Part, the Commissioner may do 1 or more of the
following:
(a) if the Commissioner is of the opinion that the matter could be the
subject of a prosecution—refer the matter to South Australia Police for
further investigation;
(b) if the Commissioner is of the opinion that the matter could result in
disciplinary action against a public officer for whom a State authority is
responsible—refer the matter to the State authority for further
investigation and potential disciplinary action (and, if the Commissioner
considers it appropriate, the Commissioner may give directions or guidance to
the State authority in respect of the matter);
(c) refer the matter to an inquiry agency for further
investigation.
(2) The Commissioner may refer a matter whether or not he or she has
commenced or completed an investigation under this Part.
(3) The Commissioner must, before referring a matter to a State authority
or inquiry agency, take reasonable steps to obtain the views of the agency or
authority as to the referral.
(4) The Commissioner may disclose to the South Australia Police, a State
authority or an inquiry agency (as the case requires) any information that the
Commissioner has in respect of a matter referred under this section.
(5) Nothing in this section prevents a matter from being referred to South
Australia Police, an inquiry agency or any other person or body at any time
(whether by the Commissioner or any other person).
(6) In this section—
public officer means—
(a) a person appointed to an office by the Governor; or
(b) a person who constitutes a statutory authority or who is a statutory
office holder; or
(c) a person who is a member of the governing body of a statutory
authority; or
(d) an officer or employee of a statutory authority or statutory office
holder or a Public Service employee assigned to assist the statutory authority
or statutory office holder; or
(e) the chief executive of an administrative unit of the Public Service;
or
(f) a Public Service employee (other than a chief executive); or
(g) a police officer; or
(h) an officer or employee appointed by the employing authority under the
Education
Act 1972; or
(i) an officer or employee of a local government body; or
(j) any other public sector employee; or
(k) a person performing contract work for a State authority or the Crown;
or
(l) any other person declared by regulation to be a public officer for the
purposes of this Act;
(1) Subject to this
Act, in conducting an investigation under this Part—
(a) the
Commissioner is not bound by the rules of evidence and may inform himself or
herself as he or she thinks fit; and
(b) the
Commissioner must act according to equity, good conscience and the substantial
merits of the case and without regard to legal technicalities and
forms.
(2) The regulations may make further provision in respect of an
investigation under this Part (including, to avoid doubt, by limiting the powers
of the Commissioner or an investigator).
(3) Subject to this Act, the Commissioner may conduct an investigation
under this Part in such manner as he or she thinks fit.
29—Powers
of Commissioner for purposes of investigations
(1) The
Commissioner may, for the purposes of an investigation under this Part, by
notice in writing, require a specified person to appear before the Commissioner
to give evidence relating to the investigation.
(2) The
Commissioner may, for the purposes of an investigation under this Part, by
notice in writing, require a specified person—
(a) to produce a specified document or other thing that is relevant to an
investigation for examination; or
(b) to give the Commissioner such information in his or her possession as
the Commissioner may reasonably require.
(3) The Commissioner may enter any land or building and carry out any
inspection that the Commissioner considers relevant to an investigation under
this Part.
(4) The Commissioner may, for the purposes of an investigation under this
Part, take evidence on oath or affirmation and for that purpose require a person
to make an oath or affirmation (which may be administered by the Commissioner or
a person authorised by the Commissioner for the purpose) to answer truthfully
any questions put by the Commissioner.
(5) The Commissioner may retain any document or thing produced for such
reasonable period as he or she thinks fit, and may make copies of any
document.
(6) The Commissioner may require a person to produce a document or other
thing for the purpose of determining whether or not it is a document or thing
that the Commissioner has power to compel the person to produce.
(7) A notice under this section must comply with any requirements set out
in the regulations in respect of a notice of the relevant kind.
(8) Without
limiting this section, the Commissioner has such other powers as may be
necessary, expedient or incidental to performing the functions of the
Commissioner under this Part.
30—Limiting
action by certain State authorities
(1) The
Commissioner may, by written notice, require a State authority (other than a
prescribed State authority) to refrain from taking specified action for a
specified period in respect of a particular matter being investigated by the
Commissioner under this Part or to conduct a joint investigation with the
Commissioner in respect of a particular matter (and the State authority must
comply with the requirement even if the State authority is otherwise required or
authorised to take action under another Act).
(2) The Commissioner must consider any comments of the State authority
with respect to the terms of the notice.
(3) In this section—
prescribed State authority means—
(a) South Australia Police; and
(b) a State authority that is an inquiry agency; and
(c) any other State authority prescribed by the regulations for the
purposes of this paragraph.
31—Injunction
to refrain from conduct pending investigation
(1) The Supreme Court may, on application made by the Commissioner, grant
an injunction restraining a person from engaging in conduct that is the subject
of, or affects the subject matter of, an investigation or proposed investigation
by the Commissioner under this Part.
(2) The Supreme Court must not grant an injunction under this section
unless it is satisfied—
(a) that the conduct sought to be restrained is likely to impede the
investigation or proposed investigation; or
(b) that it is necessary in the public interest to do so.
32—Recommendations—State
authorities
(1) The
Commissioner may, on completing an investigation under this Part, recommend to a
State authority that the State authority—
(a) change practices, policies or procedures in a specified way or review
practices, policies or procedures to achieve specified outcomes; or
(b) conduct, or participate in, specified educational programs or
educational programs designed to achieve specified outcomes; or
(c) take such other specified action as may be specified by the
Commissioner.
(2) A recommendation under
subsection (1)
may relate to the subject matter of the investigation or any other matter
related to children and young people arising out of the investigation.
(3) If the Commissioner is not satisfied that a State authority has
complied with the recommendations of the Commissioner, the Commissioner must
inform the State authority of the grounds of the Commissioner's dissatisfaction
and give the State authority an opportunity to comment within a specified
time.
(4) If, after
considering any comments received from the State authority within the specified
time, the Commissioner is still not satisfied, the Commissioner may submit a
report to the Minister setting out the grounds of dissatisfaction, together with
any comments from the State authority.
(5) The Minister must, within 12 sitting days after receiving a report
under this section, cause a copy of the report to be laid before both Houses of
Parliament.
33—Recommendations—other
persons or bodies
(1) The
Commissioner may, on completing an investigation under this Part, recommend to a
person or body that the person or body change practices, policies or procedures
in a specified way or review practices, policies or procedures to achieve
specified outcomes.
(2) A recommendation under
subsection (1)
may relate to the subject matter of the investigation or any other matter
related to children and young people arising out of the investigation.
(1) The Commissioner may, on completing an investigation under this Part,
if he or she considers it appropriate, prepare and deliver to the Minister a
report on the investigation (including, if appropriate, details of any
recommendations made under
section 32
or
33 in respect of the
investigation).
(2) The Minister must, within 12 sitting days after receiving a report
under this section, cause a copy of the report to be laid before both Houses of
Parliament.
35—Offence
to refuse etc to comply with requirement
A person who is required under this Act to give evidence before, or to
produce a document or other thing to, the Commissioner or an investigator
and—
(a) refuses or fails without reasonable excuse to do so; or
(b) refuses or fails to make an oath or affirmation when required to do so
under this section; or
(c) refuses or fails without reasonable excuse to answer any question put
to the person by the Commissioner or an investigator, or as may otherwise be
required under this Act; or
(d) gives false or misleading evidence to the Commissioner or an
investigator; or
(e) misbehaves before, or wilfully insults, the Commissioner or an
investigator in the exercise of official duties,
is guilty of an offence.
Maximum penalty: $25 000 or imprisonment for 1 year.
A person who—
(a) alters, destroys, conceals or fabricates a document or other thing
knowing that it is or is likely to be required by the Commissioner or an
investigator for the purposes of this Act; or
(b) otherwise hinders or obstructs the Commissioner, an investigator or a
person assisting the Commissioner or an investigator in the performance of a
function or exercise of a power under this Act,
is guilty of an offence.
Maximum penalty: $25 000 or imprisonment for 1 year.
37—False
or misleading statements in complaint or report etc
A person must not—
(a) make a statement for the purposes of this Act knowing that it is false
or misleading in a material particular (whether by reason of the inclusion or
omission of a particular); or
(b) make a complaint under this Act knowing that there are no grounds for
the making of the complaint.
Maximum penalty: $25 000 or imprisonment for 1 year.
(1) The Commissioner may appoint suitable persons to be investigators for
the purposes of this Act.
(2) An appointment may be made subject to conditions specified in the
instrument of appointment.
(3) The
Commissioner may, at any time, revoke an appointment of a person or vary or
revoke a condition of appointment or impose a further condition of
appointment.
(4) An investigator must be issued with an identity card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is an investigator under this Act.
(5) If the powers of an investigator have been limited by conditions, the
identity card issued to the investigator must indicate those
limitations.
(6) An investigator must, at the request of a person in relation to whom
the investigator intends to exercise powers under this Act, produce his or her
identity card for the inspection of the person.
(1) Subject to this Act, an investigator may, in connection with the
administration, operation or enforcement of this Act and at any reasonable time,
do 1 or more of the following:
(a) enter and remain in and search any premises or place owned or occupied
by a State authority;
(b) seize any item that the investigator believes on reasonable grounds
may afford evidence relevant to the investigation;
(c) take photographs or videos;
(d) require a State authority—
(i) to produce a specified document or other thing that is relevant to an
investigation for examination; or
(ii) to give the investigator such information in his or her possession as
the investigator may reasonably require;
(e) require a person who may be in a position to furnish information
relevant to the investigation to answer any question put by the investigator to
the best of that person's knowledge, information or belief.
(2) An investigator may be accompanied by such police officers or other
persons while exercising powers under this section as may be necessary or
desirable in the circumstances.
40—Guidelines
for investigators
(1) The Commissioner must prepare guidelines governing the exercise of
powers by investigators for the purposes of this Act.
(2) The Commissioner may vary or substitute the guidelines from time to
time.
(3) The guidelines must—
(a) include provisions designed to ensure that persons in relation to whom
powers are to be exercised under this Act are provided with appropriate
information about their rights, obligations and liabilities under this Act;
and
(b) be made available free of charge on the Internet, and at premises
established for the receipt of complaints by the Commissioner, for inspection by
members of the public.
(4) Contravention of the guidelines constitutes a ground for suspending,
dismissing or taking other disciplinary action against the investigator (but the
validity of the exercise of a power cannot be questioned on the ground of
contravention of the guidelines).
41—Provision
relating to mandatory notification under Children's Protection
Act
(1) For the purposes of section 11 of the Children's
Protection Act 1993, a person will not be taken to have notified
the Department (within the meaning of that section) merely because he or she
gave evidence, documents or other things to the Commissioner or an investigator
under this Act.
(2) Section 13 of the Children's
Protection Act 1993 does not apply to the Commissioner or an
investigator in the exercise of his or her powers and functions under this Act
(however the Commissioner or investigator must take reasonable steps to avoid
disclosing the identity of a notifier (within the meaning of that
section)).
42—Protections,
privileges and immunities
(1) No liability attaches to the Commissioner, an investigator or any
member of the Commissioner's staff for any act or omission in good faith in the
exercise or purported exercise of powers or functions under this or any other
Act.
(2) Nothing in this Act affects the privileges, immunities or powers of
the Legislative Council or House of Assembly or their committees or
members.
(3) Nothing in this
Act affects any rule or principle of law relating to—
(a) legal professional privilege; or
(b) "without prejudice" privilege; or
(c) public interest immunity.
(4) A person is excused from answering a question or producing a document
or other material in connection with an inquiry or investigation if the person
could not be compelled to answer the question or produce the document or
material in proceedings in the Supreme Court.
(5) The Commissioner and an investigator have, in connection with an
inquiry or investigation under this Act, and in respect of any report prepared
as part of an inquiry or investigation under this Act, the same protection,
privileges and immunities as a Judge of the Supreme Court.
(6) A person who provides evidence to an inquiry or investigation under
this Act has the same protection, privileges and immunities as a witness in
proceedings before the Supreme Court.
(7) A legal practitioner who represents a person in connection with an
inquiry or investigation under this Act has the same protection, privileges,
immunities and obligations as counsel involved in proceedings before the Supreme
Court.
(8) In this section—
member of the Commissioner's staff includes any person to
whom powers or functions have been delegated under this Act.
(1) An Act or law (other than a prescribed Act or law) requiring a person
to keep particular information confidential or in any way restricting the
disclosure or publication of information does not prevent a person from
providing information in the course of or for the purposes of an inquiry or
investigation under this Act.
(2) A person
engaged or formerly engaged in the administration of this Act must not divulge
or communicate personal information obtained (whether by that person or
otherwise) in the course of official duties except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the consent of the person to whom the information relates;
or
(c) in connection with the administration or enforcement of this or any
other Act; or
(d) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions.
Maximum penalty: $10 000.
(3)
Subsection (2)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(4) Information that has been disclosed under
subsection (2)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(5) The regulations may make further provision in respect of the
disclosure of information obtained in the course of the administration of this
Act.
(1) A person who causes detriment to another on the ground, or
substantially on the ground, that the other person or a third person has made or
intends to make a complaint under this Act or has provided, or intends to
provide, evidence or other assistance to the Commissioner in connection with an
inquiry or investigation under this Act commits an act of
victimisation.
(2) Causing detriment on the ground that a person—
(a) has made a false allegation; or
(b) has not acted in good faith,
does not constitute an act of victimisation.
(3) An act of victimisation under this Act may be dealt
with—
(a) as a tort; or
(b) as if it were an act of victimisation under the Equal
Opportunity Act 1984,
but, if the victim commences proceedings in a court seeking a remedy in
tort, he or she cannot subsequently lodge a complaint under the Equal
Opportunity Act 1984 and, conversely, if the victim lodges a
complaint under that Act, he or she cannot subsequently commence proceedings in
a court seeking a remedy in tort.
(4) If a complaint alleging an act of victimisation under this Act has
been lodged with the Commissioner for Equal Opportunity and he or she is of the
opinion that the subject matter of the complaint has already been adequately
dealt with by a competent authority, he or she may decline to act on the
complaint or to proceed further with action on the complaint.
(5) In proceedings against a person seeking a remedy in tort for an act of
victimisation committed by an employee or agent of the person, it is a defence
to prove that the person exercised all reasonable diligence to ensure that the
employee or agent would not commit an act of victimisation.
(6) A person who
personally commits an act of victimisation under this Act is guilty of an
offence.
Maximum penalty: $10 000.
(7) Proceedings for an offence against
subsection (6)
may only be commenced by a police officer or a person approved by either the
Commissioner of Police or the Director of Public Prosecutions.
(8) In this section—
detriment includes—
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to a
person's employment; or
(d) threats of reprisal.
(1) A notice or
document required or authorised to be given or sent to, or served on, a person
for the purposes of this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person at the person's last
known residential, business or (in the case of a corporation) registered
address; or
(c) be left for the person at the person's last known residential,
business or (in the case of a corporation) registered address with someone
apparently over the age of 16 years; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or document will be taken to
have been given or served at the time of transmission).
(2) Without limiting the effect of
subsection (1),
a notice or other document required or authorised to be given or sent to, or
served on, a person for the purposes of this Act may, if the person is a company
or registered body within the meaning of the Corporations Act 2001
of the Commonwealth, be served on the person in accordance with that
Act.
In any legal proceedings, a certificate apparently signed by the
Commissioner certifying as to a matter relating to—
(a) the appointment of an investigator; or
(b) a delegation; or
(c) a notice; or
(d) the receipt or non-receipt of a document or other thing,
under this Act constitutes proof, in the absence of proof to the contrary,
of the matters so certified.
(1) The Minister
must cause a review of the operation of this Act to be conducted, and a report
on the results of the review submitted to the Minister, before the fifth
anniversary of the commencement of this Act.
(2) The Minister must cause a copy of the report submitted under
subsection (1)
to be laid before both Houses of Parliament within 12 sitting days after
receiving the report.
(1) The Governor
may make such regulations as are contemplated by, or necessary or expedient for
the purposes of, this Act.
(2) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister, the
Commissioner or other specified person or body;
(c) exempt a specified person or body, or persons or bodies of a specified
class, from the operation of a provision of this Act;
(d) make provisions of a saving or transitional nature.
(3) The regulations may refer to or incorporate, wholly or partially and
with or without modification, a code, standard or other document prepared or
published by a specified person or body, either as in force at the time the
regulations are made or as in force from time to time.
(4) If a code, standard or other document is referred to or incorporated
in the regulations—
(a) a copy of the code, standard or other document must be kept available
for public inspection, without charge and during ordinary office hours, at an
office or offices specified in the regulations; and
(b) evidence of the contents of the code, standard or other document may
be given in any legal proceedings by production of a document apparently
certified by the Minister to be a true copy of the code, standard or other
document.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Freedom of Information
Act 1991
2—Amendment
of Schedule 2—Exempt agencies
Schedule 2—after paragraph (eb) insert:
(ec) the Commissioner for Children and Young People;