Federal Register of Legislation - Australian Government

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A Bill for an Act to establish an independent Office of the Commonwealth Commissioner for Children and Young People, and for related purposes
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Registered 13 May 2010
Introduced Senate 12 May 2010

2008‑2009‑2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Commonwealth Commissioner for Children and Young People Bill 2010

 

No.      , 2010

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to establish an independent Office of the Commonwealth Commissioner for Children and Young People, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Object................................................................................................. 2

4............ Principles underlying this Act............................................................ 3

5............ Definitions.......................................................................................... 4

6............ Operation of State and Territory laws............................................... 4

7............ Extension to external Territories......................................................... 4

Part 2—Office of the Commonwealth Commissioner for Children and Young People        5

Division 1—Establishment                                                                                        5

8............ Establishment..................................................................................... 5

Division 2—Functions and powers of Commissioner                                  6

9............ Functions and powers of Commissioner............................................ 6

10.......... How the Commissioner is to perform functions................................ 7

11.......... Commissioner must act independently.............................................. 7

12.......... Cooperation with other agencies........................................................ 8

Part 3—Appointments and staffing for the Office of the Commissioner 9

Division 1—The Commissioner                                                                              9

13.......... Appointment...................................................................................... 9

14.......... General terms and conditions of appointment................................... 9

15.......... Restriction on outside employment................................................... 9

16.......... Remuneration.................................................................................... 10

17.......... Leave of absence............................................................................... 10

18.......... Resignation....................................................................................... 10

19.......... Termination of appointment............................................................ 10

20.......... Acting appointments........................................................................ 11

21.......... Disclosure of interests...................................................................... 12

22.......... Appointment of Deputy Commissioners........................................ 12

Division 2—Staff, consultants and delegations                                             13

23.......... Staff.................................................................................................. 13

24.......... Consultants....................................................................................... 13

Part 4—Other matters                                                                                                        14

25.......... Report to the United Nations Committee on the Rights of the Child 14

26.......... Annual reports.................................................................................. 14

27.......... Review of operation of Act.............................................................. 15

28.......... Privileges and immunities of the Crown........................................... 15

29.......... Commissioner etc. not to be sued..................................................... 15

30.......... Regulations....................................................................................... 15

 


A Bill for an Act to establish an independent Office of the Commonwealth Commissioner for Children and Young People, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act may be cited as the Commonwealth Commissioner for Children and Young People Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 and 2 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Sections 3 to 30

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Object

             (1)  The object of this Act is to establish an independent statutory office of Commonwealth Commissioner for Children and Young People.

             (2)  The Commissioner will:

                     (a)  advocate at a national level for the needs, views and rights of people below the age of 18; and

                     (b)  monitor the development and application of laws affecting children and young people; and

                     (c)  co‑ordinate related policies, programs and funding across Australia, which impact on children and young people; and

                     (d)  proactively involve children and young people in the decisions that affect them.

             (3)  The Parliament intends the establishment of the Commissioner as a measure to assist Australia in meeting its international obligations under the United Nations Convention on the Rights of the Child, particularly as they relate to the following Articles:

                     (a)  non‑discrimination in the applicability of children’s rights (Article 2);

                     (b)  the primacy of the consideration of the child’s best interests (Article 4);

                     (c)  the child’s right to survival and development (Article 6(1));

                     (d)  the child’s right to participation in decision‑making (Article 12).

4  Principles underlying this Act

                   The following principles, drawn from the United Nations Convention on the Rights of the Child, are to be applied in exercising powers and performing duties under 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

             (1)  In this Act:

child, used in relation to the United Nations Convention on the Rights of the Child, means a person below the age of 18 years.

children and young people includes all people below the age of 18 years.

Commissioner means the Commonwealth Commissioner for Children and Young People established under section 8.

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.

Part 2Office of the Commonwealth Commissioner for Children and Young People

Division 1Establishment

8  Establishment

             (1)  The Office of the Commonwealth Commissioner for Children and Young People is established by this section.

             (2)  The Office of the Commissioner consists of:

                     (a)  the Commissioner; and

                     (b)  the Deputy Commissioners (if any) appointed under section 22 to assist the Commissioner; and

                     (b)  the staff mentioned in Part 3.

             (3)  For the purposes of the Public Service Act 1999:

                     (a)  the Commissioner, Deputy Commissioners (if any) and the staff mentioned in Part 3 together constitute a Statutory Agency; and

                     (b)  the Commissioner is the Head of that Statutory Agency.

Note:          The Commissioner holds an office equivalent to that of a Secretary of a Department (see the definition of Agency Head in section 7 of the Public Service Act 1999).

Division 2Functions and powers of Commissioner

9  Functions and powers of Commissioner

             (1)  The functions of the Commissioner are as follows:

                     (a)  providing national leadership in monitoring and advocating for the wellbeing of Australian children and young people;

                     (b)  promoting the rights of all children and young people nationally, to meet Australia’s international obligations;

                     (c)  advancing the status of children and young people in Australia, including Indigenous children and young people and other groups identified as being at risk, by:

                              (i)  reviewing existing laws;

                             (ii)  proposing new policies; and

                            (iii)  conducting research, undertaking inquiries and reporting to Parliament;

                     (d)  promoting and protecting the rights of children and young people in immigration detention, or children whose parents or guardians are in immigration detention;

                     (e)  in appropriate cases, acting as the legal guardian of unaccompanied children and young people who arrive in Australia without the requisite visa or other authority for entry into Australia;

                      (f)  promoting public education programs about, and ensuring strong investment in, early childhood development;

                     (g)  proactively involving children and young people in decisions that affect them;

                     (h)  intervening in legal cases involving the rights of children and young people;

                      (i)  co‑ordinating policies, programs and funding which impact on children and young people, between federal, state, territory and local governments;

                      (j)  undertaking any other function conferred on the Commissioner by this Act or any other law.

             (2)  The Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of functions conferred by this section.

             (3)  To avoid doubt, the functions and powers of the Commissioner apply in relation to:

                     (a)  all children and young people who are Australian citizens;

                     (b)  all children and young people who are Australian residents;

                     (c)  all children and young people in Australia, including every external territory, regardless of their citizenship or residency status.

10  How the Commissioner is to perform functions

                   In performing the Commissioner’s functions, the Commissioner must:

                     (a)  consult with children and young people in ways appropriate to their age and maturity; and

                     (b)  listen to and seriously consider the concerns, views and wishes of children and young people; and

                     (c)  adopt work practices that ensure the Office of the Commissioner is accessible to children and young people and encourages their participation; and

                     (d)  consult with parents and guardians of children and young people; and

                     (e)  consult with educators; and

                      (f)  consult with relevant Commonwealth agencies, State and Territory bodies and other organisations; and

                     (g)  refer any individual matters to the appropriate authority.

11  Commissioner must act independently

             (1)  In performing his or her 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)  The Commissioner may report to the Parliament on any matter related to his or her functions.

12  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.

             (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.

Part 3Appointments and staffing for the Office of the Commissioner

Division 1The Commissioner

13  Appointment

             (1)  The Commissioner is to be appointed by the Governor‑General, by written instrument.

Note:          The Commissioner is eligible for reappointment: see subsection 33(4A) of the Acts Interpretation Act 1901.

             (2)  A person may only be appointed as the Commonwealth Commissioner for Children and Young People if the 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 rights, interests and well‑being of, children and young people.

             (3)  Whenever a vacancy occurs in the office of Commissioner, an appointment must be made to the office as soon as practicable.

14  General terms and conditions of appointment

             (1)  The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

             (2)  The Commissioner holds office on a full‑time basis.

             (3)  The Commissioner holds office on the terms and conditions (if any), in relation to matters not covered by this Act, that are determined by the Governor‑General.

15  Restriction on outside employment

                   The Commissioner must not engage in paid employment outside the duties of his or her office without the Minister’s approval.

16  Remuneration

             (1)  The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is prescribed by the regulations.

             (2)  The Commissioner is to be paid the allowances that are prescribed by the regulations.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973.

17  Leave of absence

             (1)  The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.

             (2)  The Minister may grant the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.

18  Resignation

             (1)  The Commissioner may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

19  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Commissioner for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General must terminate the appointment of the Commissioner if any of the following apply:

                     (a)  the Commissioner:

                              (i)  becomes bankrupt; or

                             (ii)  applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

                            (iii)  compounds with his or her creditors; or

                            (iv)  makes an assignment of his or her remuneration for the benefit of his or her creditors;

                     (b)  the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months;

                     (c)  the Commissioner engages, except with the Minister’s approval, in paid employment outside the duties of his or her office;

                     (d)  the Commissioner fails, without reasonable excuse, to comply with section 21 (disclosure of interests).

20  Acting appointments

             (1)  The Minister may, by written instrument, 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:

                              (i)  is absent from duty or from Australia; or

                             (ii)  is, for any other reason, unable to perform the duties of the office of Commissioner.

             (2)  A person appointed to act during a vacancy mentioned in paragraph (1)(a) must not act for more than 12 months.

             (3)  A person must not be appointed to act as Commissioner unless the Minister is satisfied that he or she is qualified, as mentioned in subsection 13(2), to be appointed as Commissioner.

             (4)  Anything done by or in relation to a person purporting to act under an appointment is not invalid merely because of any of the following:

                     (a)  the occasion for the appointment had not arisen;

                     (b)  there was a defect or irregularity in connection with the appointment;

                     (c)  the appointment had ceased to have effect;

                     (d)  the occasion to act had not arisen or had ceased.

Note:          See sections 20 and 33A of the Acts Interpretation Act 1901.

21  Disclosure of interests

                   The Commissioner must give written notice to the Minister of all interests, pecuniary or otherwise, that the Commissioner has or acquires and that conflict or could conflict with the proper performance of the Commissioner’s functions.

22  Appointment of Deputy Commissioners

             (1)  The Governor‑General may appoint one or more Deputy Commissioners to assist the Commissioner.

             (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)  A person may only be appointed as a Deputy Commissioner for Children and Young People if the 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 rights, interests and well‑being of, children and young people.

Division 2Staff, consultants and delegations

23  Staff

                   The staff of the Office of the Commissioner must be persons engaged under the Public Service Act 1999.

24  Consultants

                   The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the functions and the exercise of the powers of the Commissioner.

Part 4Other matters

25  Report to the United Nations Committee on the Rights of the Child

             (1)  The Commissioner is responsible for preparation of reports on behalf of Australia 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.

26  Annual reports

             (1)  The Commissioner must, as soon as practicable after 30 June in each year, prepare and give to the Minister a report on the operations of the Office of the Commissioner during that year.

Note:          See also section 34C of the Acts Interpretation Act 1901, which contains extra rules about annual reports.

             (2)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the report is received.

27  Review of operation of Act

             (1)  The Minister must cause a review of the operation of this Act to be undertaken.

             (2)  The review must:

                     (a)  start 2 years after the commencement of this section; and

                     (b)  be completed within 6 months.

             (3)  The Minister must cause a written report about the review to be prepared.

             (4)  The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

28  Privileges and immunities of the Crown

                   The Office of the Commissioner has the privileges and immunities of the Crown.

29  Commissioner etc. not to be sued

             (1)  This section applies to a person if:

                     (a)  the person is the Commissioner; or

                     (b)  the person is acting under the direction or authority of the Commissioner.

             (2)  The person is not liable to an action, suit or proceeding in relation to an act done or omitted to be done in good faith in the exercise or purported exercise of any power or authority for the purposes of performing a function conferred under section 9.

30  Regulations

                   The Governor‑General may make regulations 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.