2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children, Youth and Family Support)

Part 1.1 Legislation Act 2001 16

Part 1.2 Ombudsman Act 1989 16

2005

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children, Youth and Family Support)

An Act to establish a children and young people commissioner, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Human Rights Commission (Children and Young People Commissioner) Amendment Act 2005.

This Act commences on a day fixed by the Minister by written notice.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

Note 3 If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

This Act amends the Human Rights Commission Act 2005.

Note This Act also amends the following legislation (see sch 1):

• Legislation Act 2001

• Ombudsman Act 1989.

(b) to promote improvements in the provision of disability services, health services, services for children and young people and services for older people;

(c) to promote the rights of users of disability services, health services, services for children and young people and services for older people;

(e) to establish a commission to provide—

(i) an independent, fair and accessible process for the resolution of discrimination complaints and complaints between users and providers of disability services, health services, services for children and young people and services for older people; and

(ii) a process to encourage and assist users and providers of disability services, health services, services for children and young people, and services for older people, to make improvements in the provision of services, particularly by encouraging and assisting service users and providers to contribute to the review and improvement of service quality;

(1) A disability service is a service provided in the ACT specifically for people with a disability or their carers.

1 a service that provides home help, personal care, home maintenance or modification, food services, respite care, transport, assessment or referral of support needs, education, training and skill development, information services, coordination, case management and brokerage, recreation, advocacy, community access, accommodation support, rehabilitation, or employment services, specifically for people with a disability or their carers

2 a service provided in association with the use of premises for the care, treatment or accommodation of people with a disability

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

A service for children and young people is a service provided in the ACT specifically for children, young people, both children and young people, or their carers.

1 a service that provides care, respite care, transport, assessment or referral of support needs, education, training and skill development, information services, coordination, food services, case management and brokerage, recreation, advocacy, community access, accommodation support, rehabilitation or employment services specifically for children, young people, or their carers

2 a service provided in relation to the use of premises for the care, treatment or accommodation of children, young people, or their carers

3 a service provided in relation to an attendance centre, institution or shelter, under the Children and Young People Act 1999

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(b) the children and young people commissioner;

(b) encouraging and assisting users and providers of disability services, health services, services for children and young people, and services for older people, to make improvements in the provision of services, particularly by encouraging and assisting service users and providers to contribute to the review and improvement of service quality;

(c) encouraging and assisting people providing disability services, health services, services for children and young people and services for older people, and people engaging in conduct that may be complained about under this Act, to develop and improve procedures for dealing with complaints;

(g) referring to the public advocate under section 51A advocacy matters about individual children or young people for whom the chief executive under the Children and Young People Act 1999 has parental responsibility;

(1) The Executive must appoint a person to be the Children and Young People Commissioner.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, an appointment may be made by naming a person or nominating the occupant of a position (see s 207).

(2) However, the Executive must not appoint a person as children and young people commissioner unless satisfied that the person has the experience or expertise necessary to exercise the functions of the commissioner.

(3) The children and young people commissioner must not be appointed for a term of longer than 5 years.

Note A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

(4) The conditions of appointment of the children and young people commissioner are the conditions agreed between the Executive and the commissioner, subject to any determination under the Remuneration Tribunal Act 1995.

Note The children and young people commissioner’s appointment may be ended under s 29.

(1) The children and young people commissioner has the following functions:

(a) to exercise functions for the commission in relation to services for children and young people;

(b) to exercise any other function given to the commissioner under this Act or any other territory law.

(2) The exercise of the function mentioned in subsection (1) (a) is subject to any decision of the commission about the exercise of its functions in relation to services for children and young people.

(3) In exercising the children and young people commissioner’s functions, the commissioner must endeavour to—

(a) consult with children and young people in ways that promote their participation in decision-making; and

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

(c) ensure that the commission is accessible to children and young people; and

(d) be sensitive to the linguistically and culturally diverse backgrounds of children and young people.

(1) The commission may establish advisory committees to assist the commission to exercise its functions in relation to services for children and young people.

(2) Without limiting the people who may be appointed to an advisory committee, the commission may appoint children and young people, and people with experience or expertise in relation to services for children and young people, to the committee.

(1) The disability and community services commissioner has the following functions:

(a) to exercise functions for the commission in relation to disability services;

(b) to exercise any other function given to the commissioner under this Act or any other territory law.

(2) The exercise of the function mentioned in subsection (1) (a) is subject to any decision of the commission about the exercise of its functions in relation to disability services.

(b) the children and young people commissioner;

A person may complain to the commission about a disability service if—

A person may complain to the commission about a service for children and young people if—

(a) the service is not being provided appropriately; or

(b) the provider of the service has acted inconsistently with any of the following:

(i) the generally accepted standard of service delivery expected of a provider of the kind of service to which the complaint relates;

(ii) any other standard prescribed by regulation; or

(c) the service is not being provided.

(1) The following complaints may be made under this Act:

(a) a children and young people service complaint;

(b) a disability service complaint;

(c) a complaint (a discrimination complaint) about an unlawful act under the Discrimination Act 1991, part 3 (Unlawful discrimination), part 5 (Sexual harassment), section 66 (Unlawful vilification—race, sexuality etc) or part 7 (Other unlawful acts);

(d) a health service complaint;

(e) an older people service complaint;

(f) a complaint on a ground mentioned in the Health Records (Privacy and Access) Act 1997, section 18.

Note 1 A health professional report is dealt with by way of commission-initiated consideration (see s 94 (2)).

Note 2 The commission may also consider matters that have not been raised by complaints under div 3.5 (see s 48).

(2) To remove any doubt, a complaint that may be made under this Act is made under this division.

(c) if the aggrieved person is a child or young person—a parent or guardian of the aggrieved person; or

(b) an aggrieved person may make a complaint under subsection (1) (a) even though the person is under a legal disability (for example, if a child is aggrieved, the child may make a complaint); and

(c) if a complaint is made under subsection (1) (f)—the complainant cannot require the complaint to be considered.

(2) The commission may, on its own initiative, also consider (by a commission-initiated consideration) a complaint that is a children and young people service complaint, disability service complaint, health service complaint or older people service complaint, if—

(a) the person who made the complaint could not have made the complaint under section 43 (1) (a) to (d); and

(b) the commission does not approve the person under section 43 (1) (e) to make the complaint for the aggrieved person.

Note Under s 43 (1) (a) to (e), complaints may be made by an aggrieved person, an agent of an aggrieved person, a parent or guardian of an aggrieved person who is a child or young person, a person with guardianship or control of an aggrieved person or a person approved by the commission to make the complaint on an aggrieved person’s behalf.

(1) This section applies to a children and young people complaint if—

(a) the complaint relates to a child or young person; and

(b) the chief executive under the Children and Young People Act 1999 has parental responsibility for the child or young person.

(2) The commission may, at any time, refer the complaint, or a matter that forms part of the complaint, to the public advocate for advocacy if satisfied that—

(a) it is in the best interests of the child or young person that the complaint or matter be referred for advocacy; and

(b) the complaint or matter is appropriate for advocacy by the public advocate.

(2) The commission may continue to consider a complaint that has been referred, or part of which has been referred, for advocacy.

(1) This section applies to the following services:

(a) a disability service;

(b) a health service;

(c) a service for children and young people;

(d) a service for older people.

(3) Subsection (2) does not apply if the record is made, or the information is divulged—

(a) under this Act or another territory law; or

(b) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.

(4) Subsection (2) does not apply to the divulging of protected information about someone with the person’s consent.

(5) A person to whom this section applies need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another territory law.

• child

• public advocate

applicable standard, in relation to a service provider, means anything mentioned in any of the following provisions that applies to the provider:

(a) section 39 (1) (b) (When may someone complain about a health service?);

(b) section 40 (b) (When may someone complain about a disability service?);

(c) section 40A (b) (When may someone complain about a service for children and young people?);

(d) section 41 (b) (When may someone complain about a service for older people?).

child means a person who is under 12 years old.

children and young people commissioner means the Children and Young People Commissioner under section 19A.

children and young people service complaint means a complaint about a service for children and young people that may be made, or is made, under section 40A.

disability service—see section 8.

discrimination commissioner means the Discrimination Commissioner under section 22.

discrimination complaint—see section 42 (1) (c).

incorporated document means—

(a) the standards mentioned in section 39 (1) (b) (v) (When may someone complain about a health service?); or

(b) the standards mentioned in section 40 (b) (i) or (iv) (When may someone complain about a disability service?); or

(c) an instrument applied, adopted or incorporated by a statutory instrument under this Act.

service for children and young people—see section 8A.

young person means a person who is 12 years old or older, but not yet an adult.

children and young people commissioner means the Children and Young People Commissioner under the Human Rights Commission Act 2005.

(n) action taken by an agency—

(i) for the purpose or in the course of providing, or purporting to provide, a disability service, a health service, a service for children and young people or a service for older people; or

(ii) in refusing to provide a disability service, a health service, a service for children and young people or a service for older people; or

disability service—see the Human Rights Commission Act 2005, section 8.

service for children and young people—see the Human Rights Commission Act 2005, section 8A.

Presentation speech made in the Legislative Assembly on 2005.

Notified under the Legislation Act on 2005.

For the latest republication of amended laws, see www.legislation.act.gov.au.