2011

LEGISLATIVE ASSEMBLY OF THE 
NORTHERN TERRITORY

MINISTER FOR CHILDREN AND FAMILIES
MINISTER FOR CHILD PROTECTION 

SERIAL NO. 147

EXPLANATORY STATEMENT

Care and Protection of Children (Children’s Commissioner) Amendment Bill 2011

GENERAL OUTLINE

Chapter 13 of the Report of the Board of Inquiry into the Child Protection System in the Northern Territory, Growing them strong, together, identifies that part of the risk management framework for child protection is to have strong oversight, accountability and review mechanisms within Government and of Government agencies and services relating to and provided for protected and vulnerable children.  

The role of the Children’s Commissioner serves as part of the oversight and investigation framework that was identified by the Board as urgently requiring reform.

This legislation will strengthen the oversight, accountability and review framework with respect to child wellbeing by broadening the powers and functions of the Children’s Commissioner as proposed by recommendation 136 of the Board of Inquiry Report.

NOTES ON CLAUSES

1.	Short title
This is a formal clause which provides for citation of the Bill.  The Bill when passed  will be cited as the Care and Protection (Children’s Commissioner) Amendment Act 2011. 

2.	Commencement
This clause provides that the Act commences on Gazettal. 

3.	Act Amended
This Bill proposes amendment to the Care and Protection of Children Act.

4.	Section 13 amended
Clause 4 amends the definition section of the Act to include the following new and amended terms; 
·	‘disability’ which has used the existing definition of disability as set out in section 2(1) of the Disability Services Act.  This has been done to ensure the term is consistently applied and used within the definition of vulnerable child.
·	‘matter to which a complaint relates’ refers to the amendment of section 264(3) to provide that the reference is to each failure forming the grounds of the complaint. 
·	‘matter to which an investigation relates’ is a new definition which defines the term and sets parameters to include section 264(1)(a) being vulnerable children.
·	‘mentally disturbed’ and ‘mental illness’ which have used the existing definitions as set out in sections 4 and 6 of the Mental Health and Related Services Act.  This has been done to ensure that the term is consistently applied and used within the definition of vulnerable child.
·	‘required services’ and ‘responsible service provider’ the definitions have been expanded to reflect the introduction of an own motion complaints power, or the power of the Commissioner to initiate an investigation. 
·	‘responsible agency’ and ‘responsible Minister’ these terms have been redefined in relation to own motion complaints or complaints initiated by the Commissioner and to include services provided by non-government organisations.
·	‘service provider’ this term is specifically applied to vulnerable children and has been expanded to include services provided by non-government organisations under an arrangement (service agreement or contract) with government.  It is not intended that the expression ‘taking an action’ is to go beyond the services as they relates to vulnerability of the child.
·	‘vulnerable child’ see amendments to section 260.
·	‘young person who has left the CEO’s care’ this term has been used in defining vulnerable children to include the specific group of children that have left the CEO’s care but are still accessing services as if they were a vulnerable child, for example, ongoing care plans for education.

5.	Section 24 amended
This clause is legislative house-keeping and has been amended to make clear that the matters about which a protected child may make a complaint to the Children’s Commissioner are set out in sections 260 and 264.

6.	Section 37 amended
This clause amends an existing provision relating to access to a child for the purposes of a child protection investigation.  The amendment ensure the excuse provision (where there has been a failure to provide access to a child) is consistent across both child protection investigations and investigations conducted by the Children’s Commissioner as per section 271.

7.	Section 260 and 261 replaced
This clause repeals and replaces the existing sections 260 and 261.  The revised section 260 creates a new definition of “vulnerable child” under section 260(1) and (2).  The definition has been drafted to capture both children currently in the child protection system (as per the previous definition of “protected children”) and those vulnerable to being part of it, such as who are accessing, or whose parents are accessing child and family support services.  The definition also includes:
·	children who have been arrested or are on bail;
·	children in juvenile detention or under a juvenile corrections order;
·	children with a disability;
·	children in relation to whom an order is made under the Volatile Substance Abuse Prevention Act; and
·	children who have left the care of the Chief Executive.

The revised section 261 expands the function of the Children’s Commissioner by:
·	Creating an “own motion” investigation power at 261(1)(a)(ii), allowing the Commissioner to instigate an investigation without a complaint; and
·	Creating as an additional function, the capacity to deal with submissions relating to recommendations arising from the Board of Inquiry into the Child Protection System in the Northern Territory.

The additional function of capacity to deal with submissions specifically provides that:
·	At section 261(3), the Commissioner must provide a copy of the submission to the Minister; 
·	At section 261(5), the Commissioner may notify the Minister of any action the Commissioner proposes to take in relation to the submission; and
·	At section 261(4), where such submission relates to the wellbeing of a vulnerable child, the Children’s Commissioner may deal with it as the Commissioner sees fit, including performing one or more of the existing functions and providing advice or recommendations to the Minister. 

8.	Sections 264 amended
Amendments to section 264 provide that the provision of services to a vulnerable child, as opposed to a protected child, is grounds for a complaint to the Commissioner.  The amendments to sections 264(2) and (3) expands the definition of child-related services in relation to a vulnerable child are those services provided to the child or family member of the child in relation to prevention of harm or exploitation, and the protection, support or care of the child.

9.	Section 266 amended
This clause expands the framework for the initial assessment of a complaint at section 266(2) by providing that the Commissioner may investigate the complaint only if the Commissioner is satisfied the Commissioner is authorised to conduct the investigation under this part.

The basis of the Commissioner deciding not to deal with a complaint are expanded through the insertion of s266(3)(h) which provides that the Commissioner need not investigate a complaint if it would be appropriate for the Commissioner to instigate an own motion investigation.

Section 266(4) reinforces the primary role of the Children’s Commissioner in relation to complaints relating to vulnerable children by preventing the Commissioner from referring a complaint to the Ombudsman if the Commissioner has the power to deal with the complaint.

10.	Part 5.1, Division 3 heading amended
This clause is legislative house-keeping and renumbers Division 3 as Division 6 to reflect the insertion of new Divisions. 

11.	Part 5.1, Division 4 heading amended
This clause is legislative house-keeping and renumbers Division 4 as Division 7 to reflect the insertion of new Divisions. 

12.	Part 5.1, Division 5 heading amended
This clause is legislative house-keeping and renumbers Division 5 as Division 8 to reflect the insertion of new Divisions. 

13.	Part 5.1, Division 6 heading amended
This clause is legislative house-keeping and renumbers Division 6 as Division 9 to reflect the insertion of new Divisions. 

14.	Part 5.1, Division 3 heading inserted
The clause is legislative house-keeping and reflects the insertion of a new Division heading, Division 3 Conducting Investigations.

15.	Sections 269 to 272 and Subdivision 3 heading replaced 
This clause repeals and replaces existing sections 269 to 272.

Revised section 269 sets out the matters of which the Commissioner must be satisfied prior to commencing an investigation, including an investigation initiated by the Commissioner.  It further provides the Commissioner with the power to conduct preliminary inquiries prior to the formal investigation of a complaint.  The provision has been shaped to allow the Commissioner to have the same powers of preliminary inquiry, as the Commissioner would ordinarily use for investigating a complaint.

Revised section 270 greatly expands the previous provision by providing a comprehensive framework for and duty on the Commissioner to prepare reports upon completion of an investigation.  A ‘natural justice’ provision inserted at subsection (3) requires the Commissioner to notify responsible service providers or agencies about specified findings and recommendations and to give the service provider or agency a reasonable opportunity to comment on those findings or recommendations

The new Division 4 Commissioner’s Other Powers has been inserted to consolidate and expand provisions relating to the Commissioner’s powers to access children and obtain documents and information.

Sections 270 and 271 currently existing in the Act, and relate only to the Commissioner’s investigation of a complaint.  These sections have been expanded to incorporate the newly defined ‘vulnerable child’ to whom the Commissioner may have access to and apply the Commissioner’s powers to the Commissioner’s functions as set out in s261 including monitoring the administration of the Act and dealing with submissions relating to the Board of Inquiry recommendations.  The establishment of a preliminary inquiries provision in section 269 allows these powers to be exercised in determining whether to commence an investigation. 

16.	Part 5.1, Division 2, Subdivision 3 heading omitted
This clause is legislative house-keeping ensures correct reference to section 273.

17.	Section 273 amended
This clause is legislative house-keeping. It ensure a correct reference to section 272 rather than section 271.

18.	Section 278 amended
This clause is legislative house-keeping. It ensure a correct reference to section 260(1)(f) rather than section 260(1)(e).

19.	Section 279 amended
The clause is legislative house-keeping and makes clear the Commissioner may publish a report relating to a complaint or investigation.  

20.	Part 5.6 heading replaced
The clause is legislative house-keeping and inserts a new heading for this Part.

21.	Part 5.6, Division 1 heading inserted
The clause is legislative house-keeping and inserts a new heading for this Division.

22.	Part 5.6, Division 2 inserted
This clause provides that the amendments to section 261 apply to matters that occurred prior to, on or after the Act commences, so that vulnerable children who have a complaint that arises before the commencement of the Act can make complaint in compliance with the Act.  The limitation of section 265, in relation to the complaint being made within one year after the matter to which the complaint relates has arisen, is applied to these fresh complaints

23.	Act further amended
This clause is legislative house-keeping and makes further changes as set out in the schedule to the Bill.

24.	Health and Community Services Complaints Act amended
This clause provides for the complementary management of complaints by the Health and Community Services Complaints Commissioner and the Children’s Commissioner so as to avoid duplication of investigations.  The clause amends the Health and Community Services Complaints Act to in relation to complaints that might also fall under the jurisdiction of the Children’s Commissioner. It provides for:
·	the referral of these complaints to the Children’s Commissioner; or
·	If the complaint is to be dealt with by the Health and Community Services Complaints Commissioner, written notice of the complaint the Children’s Commissioner.

25.	Mental Health and Related Services Act amended
As with consequential amendments to the Health and Community Services Complaints Act this clause ensures that complaints received under the Mental Health and Related Services Act that may also fall under the jurisdiction of the Children’s Commissioner may be referred Children’s Commissioner, or that written notice of the complaint is given to the Children’s Commissioner. 

26.	Ombudsman Act amended
These amendments ensure there is clear and unambiguous demarcation and no duplication between the functions and powers of the Ombudsman and the Children’s Commissioner.  The amendments to the Ombudsman Act prohibits the Ombudsman from conducting investigations on matters within the jurisdiction of the Children’s Commissioner.  The exception to this is where the investigation relates to police conduct.  The provision also provides that the Ombudsman must refer any matters relating to the jurisdiction of the Children’s Commissioner to the Commissioner.

27.	Youth Justice Regulations amended
As with consequential amendments to the Health and Community Services Complaints Act and the Mental Health and Related Services Act this clause ensures that complaints received under the Youth Justice Regulations (pertaining to a community visitor program, for example) that may also fall under the jurisdiction of the Children’s Commissioner may be referred Children’s Commissioner, or that written notice of the complaint is given to the Children’s Commissioner.