Contents
Part 1—Preliminary 1
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Main object of Act............................................................................. 2
4............ Principles underlying this Act............................................................ 2
5............ Definitions.......................................................................................... 3
6............ Operation of State and Territory laws............................................... 4
7............ Extension to external Territories......................................................... 4
8............ Extent to which Act binds the Crown................................................ 5
Part 2—Office of the National Commissioner for Children and Young People 6
Division 1—Office of the National Commissioner for Children and Young People 6
9............ Establishment of the Office of the National Commissioner for Children and Young People 6
10.......... National Commissioner for Children and Young People.................... 6
11.......... Terms and conditions of appointment............................................... 7
12.......... Remuneration of Commissioner......................................................... 7
13.......... Leave of absence................................................................................. 7
14.......... Outside employment.......................................................................... 7
15.......... Resignation......................................................................................... 8
16.......... Termination of appointment.............................................................. 8
17.......... Acting Commissioner......................................................................... 8
18.......... Staff and consultants.......................................................................... 8
Division 2—Functions of the Commissioner 10
19.......... Functions of the Commissioner........................................................ 10
20.......... How the Commissioner is to perform functions.............................. 11
21.......... Commissioner must act independently............................................ 12
22.......... Cooperation with other agencies...................................................... 12
23.......... Appointment of Deputy Commissioners........................................ 12
Division 3—Reports 14
24.......... Report to the United Nations Committee on the Rights of the Child 14
25.......... Reports on inquiries and other functions......................................... 14
26.......... Annual report................................................................................... 15
27.......... Reports to be tabled in Parliament................................................... 15
Division 4—Advisory Committee on Children 16
28.......... Definitions........................................................................................ 16
29.......... Advisory Committee on Children.................................................... 16
30.......... Membership..................................................................................... 16
31.......... Functions.......................................................................................... 17
32.......... Procedures of the Advisory Committee........................................... 17
33.......... Appointment conditions of members............................................... 17
Division 5—Other advice 18
34.......... Commissioner may establish other committees............................... 18
35.......... Commissioner to seek advice in relation to young people............... 18
36.......... Commissioner may consult other bodies.......................................... 18
Part 3—National Code for the Protection of Children 19
37.......... Object of Part................................................................................... 19
38.......... National Code for the Protection of Children................................... 19
39.......... Implementation................................................................................. 19
40.......... Code to be prepared in first term..................................................... 20
Part 4—Miscellaneous 21
41.......... Regulations....................................................................................... 21
A Bill for an Act to establish an Office of National Commissioner for Children and Young People, and for related purposes
The Parliament of Australia enacts:
Part 1—Preliminary
1 Short title
This Act may be cited as the National Commissioner for Children Act 2008.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by proclamation.
(2) A proclamation for the purposes of subsection (1) must not be made until the Parliament has appropriated funds for the operation of the Office of National Commissioner for Children and Young People.
(3) If the Parliament appropriates funds and this Act does not commence within a period of 6 months beginning on the day on which the Act authorising the appropriation receives the Royal Assent, it commences on the first day after the end of that period.
(4) If the Parliament does not appropriate funds this Act does not commence at all.
3 Main object of Act
The main object of this Act is to establish a National Commissioner for Children and Young People in order to:
(a) provide national leadership and advocacy on children’s and young people’s issues; and
(b) monitor and promote the well‑being of children and young people, particularly those who are vulnerable or disadvantaged; and
(c) encourage understanding of the interests, rights and welfare of children and young people; and
(d) encourage the participation of children and young people in the community.
4 Principles underlying this Act
The following principles underlie this Act:
(a) every child is a valued member of society; and
(b) the family has the primary responsibility for the upbringing and development of its children and should be supported in that role; and
(c) every child is entitled to be protected from abuse, exploitation and discrimination; and
(d) every child is entitled to form and express views and have those views taken into account in a way that has regard to the child’s age and maturity; and
(e) in decisions involving a child, the child’s best interests are of primary concern.
5 Definitions
In this Act, unless the contrary intention appears:
apprehended violence order has the meaning prescribed in the regulations.
child means a person who is under the age of 18 years.
child abuse means:
(a) assault (including sexual assault) of a child; or
(b) ill‑treatment or neglect of a child; or
(c) exposing or subjecting a child to behaviour that psychologically harms the child, whether or not, in any case, with the consent of the child.
child‑related employment means any employment that involves direct contact with children where the contact is not directly supervised, and includes any employment of a kind prescribed by the regulations but does not include any employment of a kind excluded by the regulations.
child‑related volunteer means a person who performs work as a volunteer for an organisation and the work involves direct contact with children where the contact is not directly supervised, and includes any work of a kind prescribed by the regulations but does not include any work of a kind excluded by the regulations.
Commissioner means the National Commissioner for Children and Young People.
Commonwealth agency means:
(a) a Department of State; or
(b) a body established for a public purpose by or under a law of the Commonwealth.
criminal record has the meaning prescribed in the regulations.
employee means any person who is engaged in employment as defined in this Act.
employer means a person who engages a person in employment as defined in this Act, and includes a person who, in the course of a business, arranges for the placement of a person in employment with others.
employer‑related body means any body that supervises, represents or has other functions with respect to an employer.
employment, subject to the regulations, means:
(a) performance of work under a contract of employment; or
(b) performance of work as a subcontractor; or
(c) undertaking practical training as part of an educational or vocational course.
relevant disciplinary proceedings means disciplinary proceedings against an employee by the employer or by a professional or other body that supervises the professional conduct of the employee, being completed proceedings involving:
(a) child abuse or sexual misconduct by the employee; or
(b) acts of violence committed by the employee in the course of employment.
The regulations may declare that, for the purposes of this Act, disciplinary proceedings of a particular kind are or are not relevant disciplinary proceedings.
young people means people who are 18 to 25 years of age.
6 Operation of State and Territory laws
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
7 Extension to external Territories
This Act extends to every external Territory.
8 Extent to which Act binds the Crown
(1) This Act binds the Crown in right of the Commonwealth, but does not make the Crown liable to be prosecuted for an offence.
(2) For the avoidance of doubt, Crown includes the Office of the National Commissioner for Children and Young People.
Part 2—Office of the National Commissioner for Children and Young People
Division 1—Office of the National Commissioner for Children and Young People
9 Establishment of the Office of the National Commissioner for Children and Young People
(1) The Office of the National Commissioner for Children and Young People is established by this section.
(2) The Office of the National Commissioner for Children and Young People consists of the National Commissioner for Children and Young People and the staff mentioned in section 18.
10 National Commissioner for Children and Young People
(1) There is to be a National Commissioner for Children and Young People, who is appointed by the Governor‑General, on the recommendation of the Prime Minister.
(2) A person is not qualified to be appointed as the National Commissioner for Children and Young People unless the Prime Minister is satisfied that:
(a) the person has appropriate qualifications, knowledge or experience and is of good character; and
(b) the person has a demonstrated commitment to, and capacity to advance the cause of, the welfare of children and young people.
(3) Before the Commissioner is appointed, a check for any relevant criminal record, any relevant apprehended violence orders, or any relevant disciplinary proceedings in relation to the person to be appointed must be carried out.
11 Terms and conditions of appointment
(1) The Commissioner holds office for such period, not exceeding 5 years, as is specified in the instrument of the person’s appointment, but is eligible for re‑appointment.
(2) The Commissioner holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Governor‑General acting on the advice of the Executive Council.
12 Remuneration of Commissioner
(1) The Commissioner is to be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid such remuneration as is prescribed in the regulations.
(2) The Commissioner is to be paid such allowances as are prescribed in the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
13 Leave of absence
(1) The Commissioner has such recreation leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
14 Outside employment
Except with the approval of the Minister, the Commissioner must not engage in paid employment outside the duties of the office of the Commissioner.
15 Resignation
The Commissioner may resign from the office of Commissioner by delivering to the Governor‑General a signed notice of resignation.
16 Termination of appointment
(1) The Governor‑General may terminate the appointment of the Commissioner by reason of misbehaviour or physical or mental incapacity.
(2) The Governor‑General must terminate the appointment of the Commissioner if the Commissioner:
(a) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or
(b) commits any offence against children; or
(c) is absent from duty, except on leave of absence, for 14 consecutive days or for 28 days in any period of 12 months; or
(d) contravenes section 14.
17 Acting Commissioner
The Minister may appoint a person to act as Commissioner:
(a) during a vacancy in the office of Commissioner, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of Commissioner, but a person appointed to act during a vacancy must not continue so to act for more than 12 months.
18 Staff and consultants
(1) The staff necessary to assist the Commissioner must be persons appointed or employed under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Commissioner and the APS employees assisting the Commissioner together constitute a Statutory Agency; and
(b) the Commissioner is Head of that Statutory Agency.
(3) The Commissioner may engage as consultants persons with suitable qualifications and experience. The terms and conditions on which a consultant is engaged are as determined by the Commissioner.
Division 2—Functions of the Commissioner
19 Functions of the Commissioner
(1) Subject to this Act, the Commissioner has the following functions:
(a) to monitor, promote and report on the safety, welfare and well‑being of Australian children, including but not restricted to, Aboriginal and Torres Strait Islander and disadvantaged children and young people (see subsection 20(a)); and
(b) to increase public awareness of matters relating to the welfare of children and young people; and
(c) to promote and support the role of the family and parents in the development and well‑being of children; and
(d) to promote the interests, rights and welfare of children and young people; and
(e) to promote understanding of and investment in early childhood development and requirements for quality child care and early childhood services; and
(f) to promote the participation of children and young people in relevant decision making forums; and
(g) to develop best practice models and protocols for the provision of services for children and young people, and for dealing with child abuse complaints; and
(h) to develop a National Code for the Protection of Children in accordance with Part 3 of this Act; and
(i) to act as the legal guardian of unaccompanied children who are not Australian citizens and who arrive in Australia without the requisite visa or other authority for entry into Australia; and
(j) to promote the participation of children and young people in informed discussion of issues concerning the interests of children and young people in relevant public and private forums; and
(k) to undertake and promote research into issues relating to the welfare of children and young people; and
(l) to monitor and assess the policies and practices of Commonwealth agencies and Commonwealth laws relevant to children and young people; and
(m) to monitor programs and initiatives for compliance with the United Nations Convention on the Rights of the Child; and
(n) to initiate and conduct inquiries into and make recommendations on any matter, including any enactment or law or any practice or procedure, relating to the welfare of children and young people.
(2) The Commissioner has all necessary or convenient powers to perform the Commissioner’s functions.
(3) Nothing in subsection (1) authorises the Commissioner to deal directly with the individual complaints or concerns of particular children or young people but the Commissioner, on behalf of particular classes of children or in relation to general or systemic issues affecting children, may initiate complaints with or intervene in inquiries being conducted by other bodies authorised to conduct such inquiries.
20 How the Commissioner is to perform functions
In performing the Commissioner’s functions, the Commissioner must:
(a) have special regard to and, where appropriate, report specifically on the needs and interests of children and young people who are:
(i) of Aboriginal or Torres Strait Islander origin; or
(ii) disadvantaged or vulnerable because of disability, geographic isolation, homelessness or poverty; and
(b) consult with children and young people in ways appropriate to their age and maturity; and
(c) listen to and seriously consider the concerns, views and wishes of children and young people; and
(d) adopt work practices that ensure the Office of the Commissioner is accessible to children and young people and encourages their participation; and
(e) consult with parents and guardians of children; and
(f) consult with relevant Commonwealth agencies, State and Territory bodies and other organisations; and
(g) refer any individual matters to the appropriate authority.
21 Commissioner must act independently
(1) In performing the Commissioner’s functions, the Commissioner:
(a) must act independently and in a way that promotes and protects the rights, interests and well‑being of children and young people; and
(b) is not under the control or direction of the Minister.
(2) Subsection (1) is not limited by section 20 or 22.
22 Cooperation with other agencies
(1) The Commissioner and other Commonwealth agencies that provide or deal with services or issues affecting children and young people must work in cooperation in the exercise of their respective functions, including the Australian Institute of Family Studies which has responsibility for the National Child Protection Clearinghouse.
(2) The Commissioner must consult with State and Territory Governments to develop agreements concerning cooperation and interaction between the Office of the Commissioner and relevant State and Territory bodies, including in connection with the provision of information or access to documents required by the Commissioner in relation to his or her functions.
23 Appointment of Deputy Commissioners
(1) The Governor‑General, on the advice of the Executive Council, may appoint one or more Deputy Commissioners to carry out specified functions, and in particular, if required, Deputy Commissioners may be appointed for the protection of children and for Aboriginal and Torres Strait Islander children.
(2) Deputy Commissioners are appointed by written instrument setting out a specified period of appointment, a specified project or a specified function to be carried out and any other terms and conditions of appointment.
(3) An instrument under subsection (2) is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Division 3—Reports
24 Report to the United Nations Committee on the Rights of the Child
(1) The Commissioner is responsible for preparation of reports to the United Nations Committee on the Rights of the Child under the terms of the United Nations Convention on the Rights of the Child.
(2) In preparing such reports, the Commissioner must consult with all relevant Commonwealth agencies, State and Territory bodies and non‑government organisations.
(3) Each report prepared by the Commissioner under subsection (1) must be given to the Minister who must transmit the report to the Secretary‑General of the United Nations as soon as practicable after receiving it.
(4) Nothing in this section prevents the Minister or another Minister of the Commonwealth from preparing and transmitting to the Secretary‑General of the United Nations other reports to the United Nations Committee on the Rights of the Child on behalf of Australia.
25 Reports on inquiries and other functions
(1) When the Commissioner conducts an inquiry under paragraph 19(1)(n), the Commissioner must prepare a report for Parliament on the inquiry including any recommendations he or she wishes to make in relation to it.
(2) The Commissioner may report to the Parliament from time to time on any matter related to his or her functions.
(3) Reports to the Parliament prepared under this section must be given to the Minister to be tabled in each House of the Parliament.
26 Annual report
(1) The Commissioner must, as soon as practicable after each 30 June, prepare and give to the Minister a report of the operations of the Office of the National Commissioner for Children and Young People during the year that ended on that 30 June.
(2) The annual report must include reports on progress in development of a National Code for the Protection of Children as required by section 40 of this Act.
27 Reports to be tabled in Parliament
The Minister must cause a copy of every report given to the Minister by the Commissioner under this Division to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister, unless the Commissioner states in writing that the report should not be made public.
Division 4—Advisory Committee on Children
28 Definitions
In this Division, unless the contrary intention appears:
Advisory Committee means the Advisory Committee on Children established by section 29.
member means a member of the Advisory Committee.
29 Advisory Committee on Children
The Advisory Committee on Children is established by this section.
30 Membership
(1) The Advisory Committee is to consist of 9 members.
Membership
(2) The Minister must ensure that the membership includes:
(a) at least one person with extensive experience in each of the following:
(i) care or welfare of children;
(ii) education of children;
(iii) children’s health;
(iv) Aboriginal or Torres Strait Islander children;
(v) child development or related;
(vi) a person who can represent the interests of parents, grandparents or guardians;
(vii) a person who has at least 5 years experience in delivering services to children;
(viii) a person who has undertaken academic research in a field related to the welfare or development of children;
(ix) a person representing organisations in which children participate.
Appointment
(3) The Minister must appoint members by written instrument.
Chair
(4) The Minister must appoint a member to be the Chair of the Advisory Committee.
31 Functions
The functions of the Advisory Committee are:
(a) on its own initiative, or when requested by the Commissioner, to advise the Commissioner on matters relevant to his or her functions; and
(b) subject to any direction given by the Commissioner, to advise on and promote community education, and community consultation, in relation to the protection and well‑being of children and young people.
32 Procedures of the Advisory Committee
The Advisory Committee is to determine its own procedures.
33 Appointment conditions of members
The regulations may prescribe matters related to the members of the Advisory Committee on Children including, but not limited to:
(a) term of appointment; and
(b) resignation; and
(c) disclosure of interests; and
(d) termination of appointment; and
(e) leave of absence; and
(f) payment of allowances.
Division 5—Other advice
34 Commissioner may establish other committees
(1) The Commissioner may establish committees in addition to the Advisory Committee as he or she sees fit.
(2) A committee established under subsection (1) has such membership, functions and conditions as are determined by the Commissioner.
35 Commissioner to seek advice in relation to young people
When dealing with matters relating to young people, the Commissioner must seek advice from existing youth advocacy bodies and may seek advice from other relevant bodies.
36 Commissioner may consult other bodies
In addition to the Advisory Committee, the Commissioner may consult any existing committee or body in relation to children’s issues as he or she sees fit.
Part 3—National Code for the Protection of Children
37 Object of Part
The object of this Part is to ensure that there are national standards to protect children from abuse and that they receive a minimum standard of care and services.
38 National Code for the Protection of Children
(1) The Commissioner must consult with relevant Commonwealth agencies and State and Territory bodies in order to develop a National Code for the Protection of Children (the Code).
(2) The Code may include:
(a) procedures and protocols for the use of any national register of child sex offenders; and
(b) standards for providers of services to children; and
(c) requirements for relevant government contracts to contain provisions which guarantee that no child will be abused in the provision of the contractual good or service; and
(d) standards for procedures for the handling of complaints relating to the provision of services to children; and
(e) requirements for compliance with the United Nations Convention on the Rights of the Child; and
(f) any other matters prescribed in the regulations.
39 Implementation
The Commissioner must make recommendations to the Minister on how the Code is to be implemented, including any legislative changes to be made and how the Code would apply to Commonwealth agencies, State and Territory bodies, businesses and organisations, and any transitional arrangements that are required.
40 Code to be prepared in first term
(1) The Commissioner must give to the Minister a draft Code and implementation recommendations under section 39 as soon as possible and within 5 years of the appointment of the first Commissioner.
(2) The Commissioner must report on progress on the development of the Code, including the positions of each of the States and Territories in relation to the Code, in the annual report prepared under section 26.
Part 4—Miscellaneous
41 Regulations
The Governor‑General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.