1

2013

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR CHILDREN AND FAMILIES

SERIAL NO. 52 
EXPLANATORY STATEMENT

Children’s Commissioner Bill 2013

GENERAL OUTLINE
This Bill will establish the Children’s Commissioner in a Children’s Commissioner Act.
The Bill seeks to ensure accountability of child related services, thereby encouraging a culture of continuous improvement and innovation in policies, practices and services relating to the safety and wellbeing of vulnerable children. 
Accountability and improvement will come through three of the Children’s Commissioner’s functions in particular, investigations related to individual children, inquiries related to systemic issues and a role of promotion of an understanding of and informed public discussion about the rights, interests and wellbeing of vulnerable children.
The Bill is particularly concerned with a category of child which it labels a “vulnerable child” however the Bill’s object extends to the wellbeing of children who are not technically “vulnerable” under the Act, including those who are in danger of becoming a “vulnerable child”. 

NOTES ON CLAUSES
Part 1			Preliminary matters
Clause 1		Short Title
This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Children’s Commissioner Act 2013.

Clause 2 		Commencement
This is a formal clause that provides that the Act commences on the date fixed by the Administrator by Gazette notice.

Clause 3		Act binds Crown
This is a formal clause that provides that the Act binds the Crown in the right of the Territory and to the extent that the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

Clause 4 		Objects of Act
This is a formal clause that provides for the objects of the Act. The objects of the Act are to ensure the wellbeing of vulnerable children and to promote continuous improvement and innovation in policies, practices and services relating to the safety and wellbeing of vulnerable children. 

Clause 5 		Principles underlying this Act
This is a formal clause that provides for principles underlying the Act. The principles guide the Commissioner or any other person performing a function under the Act. They do not affect the operation of any law in force in the Territory, nor do they alter the requirement that the Commissioner perform his investigation functions with impartiality. 

Part 2		Interpretation
Clause 6		Definitions
This clause provides for the definitions in the Act.
Clause 7		Vulnerable child
The Children’s Commissioner’s jurisdiction to investigate complaints is qualified by the definition of a vulnerable child.

Clause 8 		Application of Criminal Code
This clause provides that the Criminal Code applies to offences against this Act.

Part 3 Children's Commissioner
Clause 9 		Children's Commissioner
There is to be a Children’s Commissioner. The Administrator makes an appointment of the Children’s Commissioner on the Minister’s recommendation. The recommendation is made on the basis that the person has the requisite qualifications or experience relating to the functions and is committed to objects and principles underlying this Act.

Clause 10 	Commissioner's functions and powers 
The Children’s Commissioners main functions will be:
·	to investigate complaints about services provided by a service provider to a vulnerable child;
·	to monitor the way service providers respond to reports made for this Part;
·	to monitor the administration of this Act in so far as it relates to protected children;
·	to monitor the implementation of government decisions arising from inquiries; and
·	to undertake inquiries to promote an understanding of and informed public discussion about the rights, interests and wellbeing of vulnerable children. 
The Children’s Commissioner has a general power to do all things necessary or convenient to be done for the purpose of the performance of the Children’s Commissioner’s functions.

Clause 11 	Commissioner's independence 
The Children’s Commissioner is not subject to the direction of the Minister for Children and Families, the Chief Executive or anyone else in respect of the way in which the Children’s Commissioner’s functions are performed or the priorities of the Children’s Commissioner. This general independence is subject to any specific legislation to the contrary.

Clause 12 	Term of appointment 
The maximum period of appointment of the Children’s Commissioner is five years. However, the Children’s Commissioner can be reappointed.

Clause 13 	Conditions of appointment 
The Administrator determines the conditions of appointment of the Children’s Commissioner.
Clause 14 	Leave 
The Children’s Commissioner may take leave with the consent of the Minister for Children and Families.
Clause 15	Resignation 
The Children’s Commissioner may resign by giving written notice to the Administrator.
Clause 16 	Suspension and termination of appointment
This clause provides the circumstances in which the Administrator can suspend the Children’s Commissioner from duty.
Clause 17 	Acting Commissioner 
This clause provides that the Minister for Children and Families may appoint an acting Children’s Commissioner for periods of up to three months.
Clause 18 	Oath of office 
The Children’s Commissioner must make, before the Speaker or a Judge, an Oath of Office.
Clause 19 	Staff of Commissioner 
This clause provides that the staff of the Children’s Commissioner are to be employees under the Public Sector Employment and Management Act. However, such employees are subject only to the direction of the Children’s Commissioner or another member of the staff of the Children’s Commissioner.

Part 4 		Complaints
Division 1 	Procedures for making complaints

Clause 20 	Making complaint 
A person who is, or was, a vulnerable child, or an adult acting on behalf of a vulnerable child, can make complaints to the Children’s Commissioner. Complaints can be made in writing or orally. A complaint may be made on behalf of someone who is deceased at the time that the complaint is made. 

Clause 21	Grounds for complaint 
A complaint to the Children’s Commissioner can only relate to:
·	a service provider who has failed to provide services to the protected child that was reasonably expected to be 	provided; and
·	or a service that was provided to a protected child, as a protected child, but was below a reasonably expected 	standard.

Clause 22	When complaint must be made 
As a general rule, complaints to the Children’s Commissioner must be made within one year of the matter to which the complaint relates, however, the Children’s Commissioner may extend this period if he or she considers it appropriate to do so because it is in the public interest or because of special circumstances.

Division 2 	Dealing with complaints
Clause 23	Initial assessment of complaint 
The Children’s Commissioner must assess a complaint within 28 days of receiving a complaint or, if the Children’s Commissioner requires further information, within a 28 days of obtaining that information.
At the end of this period the Children’s Commissioner must make a decision as to what to do with the complaint, investigate and resolve the complaint, not to deal with the complaint, referral of the complaint to some other body for investigation and resolution or resolve the complaint without an investigation.
Clause 24	Deciding not to deal with or to refer complaint 
This clause sets out the circumstances in which the Children’s Commissioner may decide not to deal with a complaint, most significantly if the complaint lacks substance, if the complaint has been withdrawn or if there is another more appropriate mechanism to refer the complaint to.

Clause 25	Deciding to resolve complaint without investigation 
This clause allows the Children’s Commissioner to resolve a complaint without a formal investigation in certain circumstances. This will avoid the expense and trauma of avoidable investigations and allow the Children’s Commissioner to resolve complaints in a more child friendly way.

Clause 26 	Notification of initial assessment 
As soon as practicable after making a decision under 22(1), namely to investigate, not to deal with a complaint, refer the complaint or resolve without investigation, the Children’s Commissioner must notify the complainant of the decision and the reasons for it. 

Clause 27 	Complaint referred to another person 
If the Children’s Commissioner refers a complaint to another person, the referred authority must notify the Children’s Commissioner as soon as practicable whether the referral is accepted, and if so, the result of the investigation and resolution.

Part 5 		Investigations
Clause 28 	Commencing investigation
The Children’s Commissioner may investigate a complaint if having decided to do so under clause 23. The Children’s Commissioner may investigate a matter on the Children’s Commissioner’s own initiative if satisfied to do so under this Act. 

The Children’s Commissioner may make preliminary inquiries for this purpose and must notify each responsible service provider and the Chief Executive of each responsible agency of the decision to conduct an investigation and the details of the matter to which that decision relates, affording the agency and responsible service provider the opportunity to make a submission about the matter within a reasonable time specified in the notice.

At the end of an investigation, the Children’s Commissioner must advise the complainant of the results of the investigation and the details of any action taken to resolve the complaint.
In addition the clause sets out the procedures for notifying the Chief Executive of the responsible agency and any responsible service provider identified in the complaint. The Children’s Commissioner may also notify the Minister for Children and Families of the decision. 
A report may recommend that service providers take action. If these actions are not taken, the Children’s Commissioner may refer the matter to the relevant Minister.

Clause 29 	Report of investigation
 
This clause sets out how the Children’s Commissioner finalises an investigation, specifically the preparation of a report, and the provision of the report to relevant persons such as the service provider or the Chief Executive Officer of an agency. 

If the Children’s Commissioner proposes to make specified findings or recommend specified actions in the report about a responsible service provider or a responsible Agency, the Children’s Commissioner must give the service provider or Agency a reasonable opportunity to comment on the proposed findings or recommendations, and take into account those comments in finalising the report.

Part 6 		Inquiries
Clause 30 	Undertaking inquiry 
This clause sets out the circumstances in which the Children’s Commissioner may undertake an inquiry related to care and protection of children in the Territory. 

Inquiries will be a rarer event than investigations, and will assist in identifying systemic or recurring issues rather than the experiences of an individual child. 

The Children’s Commissioner may undertake an inquiry either on his or her own initiative or on the direction of the Minister for Children and Families. 

The Children’s Commissioner may only undertake an inquiry if the Children’s Commissioner is satisfied that it is consistent with the Object of the Act and the Children’s Commissioner’s functions.

Inquiries rely on the same information gathering and access powers as investigations. 

Clause 31 	Notification of inquiry 

Should the Children’s Commissioner decide to undertake an inquiry, this clause requires the Children’s Commissioner to notify relevant persons of that decision, specifically the Minister for Children and Families and any other relevant Minister, and the Chief Executive of any relevant agency.

Clause 32 	Procedures of inquiry 

This clause allows the Children’s Commissioner to determine the procedures of the inquiry. This will allow the procedure to be tailored to the needs of each area of inquiry. 

Clause 33 	Report of inquiry 
As inquiries are into systemic issues, it is the intention that reports be made public documents, so as to inform public debate and policy making. The Children’s Commissioner must give the Minister for Children and Families a report of the findings of the inquiry, which the Minister must then table in the Legislative Assembly within six sitting days after receiving it.
However the Children’s Commissioner may, if satisfied that doing so would be in the public interest, waive the requirement to table the report, direct that all or part of the report not be tabled or direct that any information identifying individuals named in the report be removed from the tabled version.
This provision ensures that the publication of a report (and parts of a report) is qualified by a public interest test, ensuring that there is accountability, but not exposing a person to retribution, or breaching a child’s dignity or privacy for example.
There could be many public interest reasons for making such a waiver or direction. For example if information that identifies notifiers of child harm or exploitation were made public it may discourage future notifiers from making reports. Similarly there may be no public interest in personal information about a child such as the fact that they are in care or particulars of abuse they may have suffered being in the public domain. 
Part 7 		Commissioner's other powers
Clause 34 	Access to child 
The Children’s Commissioner is entitled, after giving notice, to have access to the vulnerable child or a witness in relation to the complaint. 
Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

Clause 35 	Access to information 
The Children’s Commissioner is entitled, after giving notice, to request provision of information about a matter relating to a complaint within a reasonable time frame. A person may also be requested to attend before the Children’s Commissioner to provide information or to answer questions. The Children’s Commissioner may require the person to make an oath or sworn statement. Failure to comply without a reasonable excuse is subject to a maximum penalty of 20 penalty units.
The Children’s Commissioner may inspect or copy documents required by notice, but must return the originals to the person as soon as possible. 

Part 8 		Offences
Clause 36 	Failure to comply with request for access to child 
A person who fails to comply with a requirement provided under clause 34 has committed an offence with a maximum penalty of 100 penalty units or 12 months imprisonment.

Clause 37 	Failure to comply with request for information 
A person who fails to comply with a requirement provided under clause 35 has committed an offence with a maximum penalty of 100 penalty units or 12 months imprisonment.

A range of defences to a prosecution are described however, including (but not limited to) having a reasonable excuse, or where the Commissioner of Police certified in writing that compliance would prejudice the investigation of unlawful conduct.

Clause 38 	Failure to comply with requirement to give information on oath 
A person who fails to comply with a requirement provided under clause 35 (3) has committed an offence with a maximum penalty of 20 penalty units.
	
Clause 39 	Misleading information or document 
This clause sets out the penalties for providing, in response to a notice under clause 35, information in a document that is false or misleading. Such a breach may result in a maximum penalty of 24 months imprisonment or 200 penalty units.

Clause 40 	Preventing or obstructing complaint 
This clause makes it an offence to prevent or obstruct someone in making a complaint. 

Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

Clause 41 	False complaint 
This clause makes it an offence to make a deliberately make a false representation while making a complaint.

Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units. 

Clause 42 	Obstructing or improperly influencing investigation 
This clause makes it an offence to obstruct or attempt to improperly influence the conduct of an investigation.

Part 9 		Commissioner's reports
Clause 43 	Annual report and other reports 

The Children’s Commissioner must provide an annual report to the Minister for Children and Families and the Minister must table the report in the Legislative Assembly within six Sitting days of receiving it.

The Children’s Commissioner may provide other reports as required by the Minister on matters. These must also be tabled by the Minister in the Assembly within six sitting days of receipt. 

In addition, the Children’s Commissioner may prepare and provide the Minister for Children and Families with a report about a matter relating to the performance of a function of the Children’s Commissioner, if the Children’s Commissioner considers it appropriate to do so.

The Children’s Commissioner also has the option of providing the Minister for Children and Families with confidential versions of reports.

Clause 44 	Report authorised by Speaker 
This clause permits the Speaker to authorise the Commissioner to publish reports at the request of the Commissioner.

Part 10 		Disclosure of confidential information
Clause 45 	Disclosure of information to Commissioner generally 
Subject to other clauses in this Bill secrecy obligations do not prevent the disclosure of information to the Children’s Commissioner.

Clause 46 	Direction by Commissioner not to disclose information 
If the Children’s Commissioner provides a person with a document in relation to the investigation the Children’s Commissioner can direct the person not to disclose information contained in it other than for the purposes of the investigation.

Penalty for failing to comply is 2 years imprisonment or 200 penalty units.

Clause 47 	Confidentiality 
It is unlawful for the Children’s Commissioner or the staff of the Children’s Commissioner to disclose or use information obtained in the course of duties except where the disclosure occurs as part of the duties or under prescribed limited circumstances.

The maximum penalty for breach is 200 penalty units or two years imprisonment.

The Children’s Commissioner or the staff of the Children’s Commissioner cannot be required to give evidence in relation to a matter that has come to their knowledge in the exercise of a power or performance of a function under this Part.

Part 11 Immunity

Clause 48 	Protection from liability – complainant and informants 
A person, being a complainant or an informant, is not criminally or civilly law for the consequences of a complaint or information made or given in good faith. A civil proceeding can only be commenced with the consent of the Supreme Court, with such consent only being given if there is substantial ground for arguing that the person has acted in bad faith.

Clause 49 	Protection from liability – Commissioner and staff 	
The Children’s Commissioner or staff of the Children’s Commissioner is not liable at civil or criminal law for the consequences of the exercise in good faith of a function or power. However, any liability of the Territory is not affected. 

Part 12 Miscellaneous matters

Clause 50 	Review of Care and Protection of Children Act 
This clause provides for the Children’s Commissioner to review the statutory framework of the child protection system every three years, and for the report to be tabled in the Legislative Assembly.

Having an independent officer review the Act regularly will help to ensure it continues to reflect contemporary approaches to child protection and that it achieves the best outcomes for children.

Clause 51 	Delegation 
The Children’s Commissioner may, in writing, delegate any powers and functions under the Act.

Clause 52 	Regulations 
The Administrator may make regulations under this Act.

Part 13		Transitional matters for Children's
Commissioner Act
Clause 53 	Definitions 
This is a formal clause providing for definitions of transitional arrangements

Clause 54 	Continuation of ongoing matters 
This clause ensures that the matters that the Children’s Commissioner has in train under the Care and Protection of Children Act prior to commencement continue with the transition to the Children’s Commissioner Act.

Clause 55 	Children's Commissioner 
This clause ensures that the person holding the office of the Children’s Commissioner under the amended Act immediately before commencement continues in the role under the terms and conditions of the former office.

Clause 56 	Acting Children's Commissioner 
Any acting Children’s Commissioner prior to commencement day continues in the new role under the new Act. 

Clause 57 	Investigations 
An investigation commenced under section 269 of the amended Act is taken to be an investigation commenced under section 28 of this Act.

Clause 58 	Complaints 
A complaint made under section 263 of the amended Act continues as if it were a complaint made under section 28 of the Children’s Commissioner Act.

Clause 59 	Access to information 
A request made for access to information under section 271 or 271 of the amended Act endures as if it were a request under section 34 or 35 under this Act.

Clause 60 	First annual report 
This clause clarifies the first annual report is the same as the annual report the Children’s Commissioner would have to provide under the amended Act.

Part 14 		Consequential amendments 
Division 1 	Amendment of Care and Protection of
Children Act
Clause 61 	Act amended 
This division amends the Care and Protection of Children Act.

Clause 62 	Section 5 amended 
This removes the Office of the Children’s Commissioner from the overview of the amended Act.

Clause 63 	Section 13 amended
This removes definitions from the Children’s Commissioner provisions from the amended Act and inserts references to the new Act.

Clause 64 	Section 24 amended

This amends a note which refers to the Children’s Commissioner to reflect the new Act.
	
Clause 65 	Section 43 amended 
This refers to the definitions section of the new Act.

Clause 66 	Part 5.1 repealed 
This repeals the previous Children’s Commissioner provisions from the amended Act.

Clause 67 	Section 299 amended 
This clarifies the meaning of “obstruction” for the purposes of offences related to the obstruction of other offices in the amended Act.

Division 2 	Amendment of Health and Community
Services Complaints Act
Clause 69 	Act amended 
This is a formal clause that specifies that the Act being amended in this division is the Health and Community Services Complaints Act.

Clause 70 	Section 27 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Division 3 	Amendment of Information Act
Clause 71 	Act amended 
This is a formal clause that specifies that the Act being amended in this division is the Information Act.

Clause 72 	Section 4 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Clause 73 	Section 49A amended
This provision deems the information created or obtained in the course of the Children’s Commissioner’s functions in the nature of an investigation, audit or inquiry as being exempt under section 44 as not being in the public interest that it be disclosed.

Division 4 	Amendment of Mental Health and Related
Services Act
Clause 74 	Act amended 
This is a formal clause that specifies that the Act being amended in this division is the Mental Health and Related Services Act.

Clause 75 	Section 100 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Division 5 	Amendment of Ombudsman Act
Clause 76 	Act amended 
This is a formal clause that specifies that the Act being amended in this division is the Ombudsman Act.

Clause 77 	Section 10 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Clause 78 	Section 32 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Part 14 		Amendment of subordinate legislation
Division 1 	Amendment of Public Interest Disclosure
Regulations
Clause 79 	Regulations amended
This is a formal clause that specifies that the Regulations being amended in this division are the Public Interest Disclosure Regulations.

Clause 80 	Regulation 8 amended 
This updates the reference to the Children’s Commissioner to reflect the new Act.

Division 2 	Amendment of Youth Justice Regulations
Clause 81 	Regulations amended 
This is a formal clause that specifies that the Regulations being amended in this division are the Youth Justice Regulations.

Clause 82 	Regulation 66 amended
This updates the reference to the Children’s Commissioner to reflect the new Act.