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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children and Young People (Oversight and Advocacy Bodies)
Bill 2016
A BILL FOR
An Act to establish the Commissioner for Children and Young People; to
continue the Guardian for Children and Young People, the Child Death and Serious
Injury Review Committee and the Youth Advisory Committee; to establish the Child
Development Council; and for other purposes.
Contents
4Act to bind, and impose criminal liability on,
the Crown
Part 2—Commissioner
for Children and Young People
Division 1—Commissioner for Children
and Young People
5Commissioner for Children and Young
People
7Appointment of acting
Commissioner
10Use of staff etc of Public
Service
Division 2—Functions and powers of
Commissioner
11General functions of
Commissioner
12Commissioner may inquire
into matters affecting children and young people at systemic level
16Commissioner may
provide other reports
17Commissioner may publish reports
Part 3—Guardian
for Children and Young People
18Guardian for Children and Young
People
19Terms and conditions of
appointment
21Use of staff etc of Public
Service
22Functions and powers of Guardian
25Guardian may provide
other reports
Part 4—Child Death and Serious Injury
Review Committee
26Continuation of Child
Death and Serious Injury Review Committee
27Terms and conditions of members
31Use of staff and facilities etc
35Guardian or Committee may refer matter to
Commissioner
37Commissioner and Guardian
may make complaints to Ombudsman
39Immediate reports to
Parliament
40Referral of matters to
inquiry agencies etc not affected
Part 6—Child
Development Council
Division 1—Child Development
Council
41Establishment of Child
Development Council
42Terms and conditions of
membership
43Presiding member and deputy presiding
member
47Commissioner or representative may attend
meetings of Council
48Use of staff etc of Public
Service
49Functions and powers of
Council
Division 2—Outcomes Framework for
Children and Young People
51Outcomes Framework for
Children and Young People
52Statutory duty of State authorities in respect
of Outcomes Framework
Part 7—Information gathering and
sharing
53No obligation to maintain
secrecy
54Commissioner may require State authority to
provide report
55Commissioner, Guardian or Council may require
information
56Sharing of information between certain persons
and bodies
57Interaction with Public Sector (Data Sharing)
Act 2016
59False or misleading statements
62Protections, privileges and
immunities
Schedule 1—Related amendments and
transitional provisions
Part 2—Amendment of Children's
Protection Act 1993
Part 3—Amendment of Freedom of
Information Act 1991
5Amendment of Schedule 2—Exempt
agencies
Part 4—Amendment of Health and
Community Services Complaints Act 2004
6Amendment of section
4—Interpretation
7Amendment of section 27—Time within
which a complaint may be made
8Insertion of Part 4 Division 1A
Division 1A—Certain complaints to be
referred to Ombudsman
28ACommissioner to refer
certain complaints to Ombudsman
Part 5—Amendment of Ombudsman
Act 1972
9Amendment of section 13—Matters subject
to investigation
10Amendment of section 15—Persons who may
make complaints
11Amendment of section 16—Time within
which complaints may be made
Part 6—Transitional
provisions
12Guardian for Children and Young
People
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children and Young People (Oversight and
Advocacy Bodies) Act 2016.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act or to a provision of this Act.
(1) In this Act, unless the contrary intention appears—
Child Death and Serious Injury Review Committee or
Committee means the Child Death and Serious Injury Review
Committee continued under
section 26
;
Child Development Council or Council means the
Child Development Council established under
Part 6
;
Commissioner for Children and Young People or
Commissioner means the person for the time being holding or acting
in the office of Commissioner for Children and Young People under
Part 2
;
Guardian for Children and Young People or
Guardian means the person for the time being holding or acting in
the office of Guardian for Children and Young People under
Part 3
;
Outcomes Framework for Children and Young People or
Outcomes Framework means the Outcomes Framework for Children and
Young People prepared in accordance with
section 51
, as in force from time to time;
State authority means—
(a) a person who holds an office established by an Act; or
(b) a public sector agency; or
(c) South Australia Police; or
(d) a local council constituted under the
Local
Government Act 1999
; or
(e) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established, or subject to control or direction, by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown or a local
council (whether or not established by or under an Act or an enactment);
or
(f) any other person or body declared by the regulations to be a State
authority,
but does not include a person or body declared by the regulations to be
excluded from the ambit of this definition.
(2) For the purposes of this Act, a reference to children and young
people will be taken to be a reference to persons who are under
18 years of age.
4—Act
to bind, and impose criminal liability on, the Crown
(1) This Act binds
the Crown in right of this jurisdiction and, in so far as the legislative power
of the Parliament permits, the Crown in all its other capacities.
(2) The Crown is liable for an offence against this Act.
(3) If the Crown is guilty of an offence against this Act, the penalty
that may be imposed on the Crown is the penalty that may be imposed on a body
corporate.
Part 2—Commissioner
for Children and Young People
Division 1—Commissioner
for Children and Young People
5—Commissioner
for Children and Young People
(1) There is to be a Commissioner for Children and Young People.
(2) The Commissioner is independent of direction or control by the Crown
or any Minister or officer of the Crown.
(1) The Commissioner will be appointed by the Governor on conditions, and
for a term (not exceeding 7 years), determined by the Governor and
specified in the instrument of appointment.
(2) A person appointed to be the Commissioner is, at the end of a term of
appointment, eligible for reappointment but cannot hold office for terms
(including any term as Acting Commissioner) that exceed 10 years in
total.
(3) A person may
only be appointed to be the Commissioner if, following referral by the Minister
of the proposed appointment to the Statutory Officers Committee established
under the
Parliamentary
Committees Act 1991
—
(a) the appointment has been approved by the Committee; or
(b) the Committee has not, within 7 days of the referral, or such
longer period as is allowed by the Minister, notified the Minister in writing
that it does not approve the appointment.
(4) Despite the
Parliamentary
Committees Act 1991
, the Statutory Officers Committee must not report on, or publish material
in relation to, matters referred to the Committee under
subsection (3)
except to the extent allowed by the Minister (but this subsection does not
derogate from section 15I(2) of the
Parliamentary
Committees Act 1991
).
(5) If the Commissioner was, immediately before their appointment,
employed in the Public Service, the Commissioner retains existing and accruing
rights in respect of leave.
(6) The Commissioner must not, without the consent of the Minister, engage
in any remunerated employment or activity apart from official duties.
(7) The Governor
may, on the address of both Houses of Parliament, remove the Commissioner from
office.
(8) The Governor
may suspend the Commissioner from office (with, or without, pay)
for—
(a) contravention of a condition of appointment; or
(b) misconduct or conduct that may bring the office of Commissioner into
disrepute; or
(c) failure or incapacity to carry out official duties
satisfactorily.
(9) If the Governor suspends the Commissioner from office, a full
statement of the reason for the suspension must be laid before both Houses of
Parliament within 7 days after the suspension if Parliament is then in
session or, if not, within 7 days after the commencement of the next
session of Parliament.
(10) If, at the end of 20 sitting days after the statement is laid
before Parliament, neither House of Parliament has presented an address to the
Governor requiring the Commissioner to be restored to office, the Commissioner
is removed from office.
(11) If within 20 sitting days after the statement is laid before
Parliament either House of Parliament presents an address to the Governor
requiring the Commissioner to be restored to office, the Commissioner is
restored to office.
(12) The office of Commissioner becomes vacant if the
holder—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Governor; or
(d) is nominated for election as a member of an Australian Parliament;
or
(e) becomes an insolvent under administration within the meaning of the
Corporations Act 2001 of the Commonwealth; or
(f) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(g) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(h) is removed from office by the Governor under this section.
(13) Except as is provided by this section, the Commissioner may not be
removed or suspended from office, nor will the office of the Commissioner become
vacant.
(14) The Commissioner is a senior official for the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
7—Appointment
of acting Commissioner
(1) The Governor may appoint a person (who may be a Public Service
employee) to act as the Commissioner during any period for
which—
(a) no person is for the time being appointed as the Commissioner;
or
(b) the Commissioner is absent from, or unable to discharge, official
duties.
(2) The terms and conditions of appointment of the person appointed to act
as the Commissioner will be determined by the Governor.
(3) A person appointed to act as the Commissioner is a senior official for
the purposes of the
Public
Sector (Honesty and Accountability) Act 1995
.
(1) Subject to this section, the Commissioner may delegate a function or
power under this Act (other than a prescribed function or power) to any person
or body that is, in the Commissioner's opinion, competent to perform or exercise
the relevant function or power.
(2) A delegation under this section—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) is revocable at will; and
(d) does not prevent the delegator from acting in any matter.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(1) The Commissioner may engage employees on terms and conditions
determined by the Commissioner.
(2) The employees are not Public Service employees but will, for the
purposes of the
Public
Sector (Honesty and Accountability) Act 1995
, be taken to be public sector employees employed by the
Commissioner.
10—Use
of staff etc of Public Service
The Commissioner may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
Division 2—Functions
and powers of Commissioner
11—General
functions of Commissioner
(1) The functions of the Commissioner are—
(a) to promote and advocate for the rights and interests of all children
and young people in South Australia; and
(b) to promote the participation by children and young people in the
making of decisions that affect their lives; and
(c) to advise, and make recommendations to, Ministers, State authorities
and other bodies (including non-Government bodies) on matters related to the
rights, development and wellbeing of children and young people at a systemic
level; and
(d) to inquire under
section 12
into matters related to the rights, development and wellbeing of children
and young people at a systemic level (whether a Governmental system or
otherwise); and
(e) to assist in ensuring that the State, as part of the Commonwealth,
satisfies its international obligations in respect of children and young people;
and
(f) to undertake or commission research into topics related to children
and young people; and
(g) to prepare and publish reports on matters related to the rights,
development and wellbeing of children and young people at a systemic level;
and
(h) such other functions as may be conferred on the Commissioner by or
under this or any other Act.
(2) Without
limiting any other provision of this Act, the Commissioner should consult with
and engage children and young people in the performance of the Commissioner's
functions under this Act, and in particular should seek to engage those groups
of children and young people whose ability to make their views known is limited
for any reason.
12—Commissioner
may inquire into matters affecting children and young people at systemic
level
(1) The Commissioner may, in the Commissioner's absolute discretion,
conduct an inquiry into—
(a) the policies, practices and procedures of a State authority or
authorities as they relate to the rights, development and wellbeing of children
and young people generally, or a particular group of children and young people;
and
(b) any other matter declared by the regulations to fall within the ambit
of this subsection.
(2) However, the Commissioner may only conduct an inquiry under this
section if the Commissioner suspects that—
(a) the matter raises an issue of particular significance to children and
young people; and
(b) the matter is of a systemic nature rather than being limited to an
isolated incident; and
(c) it is in the public interest to conduct the inquiry.
(3) To avoid doubt, and without limiting any other provision of this
section, the Commissioner—
(a) may, in the course of conducting an inquiry into matters of a systemic
nature, consider a matter affecting a particular child or young person;
and
(b) may conduct an inquiry under this section as a consequence of becoming
aware of a matter affecting a particular child or young person.
(4) The Commissioner must not conduct an inquiry under this section if to
do so would be likely to impede an investigation or proposed investigation
relating to a matter that is being, or is to be, conducted by an inquiry
agency.
(5) Subject to this Act, the Commissioner may conduct an inquiry under
this section in such manner as the Commissioner thinks fit.
(6) A State
authority must assist the Commissioner in the conduct of an inquiry under this
section as requested by the Commissioner.
(7) The Commissioner must inform each relevant State authority as to the
nature and timing of an inquiry under this section.
(8) In this section—
inquiry agency has the same meaning as in
section 40
.
(1) For the purposes of an inquiry under
section 12
, the Commissioner has the powers of a commission as defined in the
Royal
Commissions Act 1917
and that Act applies as if—
(a) the Commissioner were a commission as so defined; and
(b) the subject matter of the inquiry were set out in a commission of
inquiry issued by the Governor under that Act.
(2) For the purposes of
any other function under this Act, the Commissioner has such powers as may be
necessary or expedient for the performance of that function.
(1) The Commissioner
may, on completing an inquiry under
section 12
, or in response to issues observed by the Commissioner in the course of
such an inquiry, by notice in writing recommend to a State authority that the
State authority—
(a) change practices, policies or procedures in a specified way or review
practices, policies or procedures to achieve specified outcomes; or
(b) conduct, or participate in, specified educational programs or
educational programs designed to achieve specified outcomes; or
(c) take such other action as may be specified by the
Commissioner.
(2) The responsible
authority for a State authority must, in relation to a recommendation under
subsection (1)
, provide to the Commissioner a report setting out—
(a) whether the State authority proposes, or does not propose, to
implement the recommendation; and
(b) if the State authority proposes to implement the
recommendation—details of how the implementation is to be recommended;
and
(c) if the State authority does not propose to implement the
recommendation—an explanation as to why the recommendation is not to be
implemented.
(a) a State authority proposes to implement a recommendation; and
(b) the Commissioner is of the opinion that a State authority has failed
or refused to do so,
the Commissioner may require the State authority to provide to the
Commissioner within a specified period a report setting out the reasons for the
failure or refusal.
(4) The
Commissioner may submit a copy of a report under
subsection (3)
to the Minister setting out the views of the Commissioner in respect of
the State authority's failure or refusal to implement a
recommendation.
(5) The Minister
must, on receiving a report under
subsection (4)
, prepare a report to Parliament setting out—
(a) the Minister's response to the Commissioner's report; and
(b) if any action has been taken, or is proposed to be taken, (whether by
the Minister, a State authority or any other person or body) in relation to a
recommendation to which the Commissioner's report relates—details of that
action or proposed action; and
(c) if no action is to be taken (whether by the Minister, a State
authority or any other person or body) in relation to a recommendation to which
the Commissioner's report relates—the reasons for not taking action;
and
(d) any other information required by the regulations.
(6) The Minister must, within 6 sitting days after completing a
report under
subsection (5)
, cause a copy of both the report and the Commissioner's report under
subsection (4)
to be laid before both Houses of Parliament.
15—Report
of inquiry under
section 12
(1) The
Commissioner must, on completing an inquiry under
section 12
, prepare and deliver to the Minister a report on the inquiry (including
details of any recommendations made in respect of the inquiry).
(2) The Minister must, within 6 sitting days after receiving a report
under
subsection (1)
, cause a copy of the report to be laid before both Houses of
Parliament.
(3) The Minister
must, on receiving a report under
subsection (1)
—
(a) provide a copy of the report to the Minister responsible for each area
identified in the report; and
(b) prepare a report setting out—
(i) the Minister's response to the Commissioner's report; and
(ii) if any action has been taken, or is proposed to be taken, (whether by
a Minister, a State authority or any other person or body) in relation to the
Commissioner's report—details of that action or proposed action;
and
(iii) if no action is to be taken (whether by a Minister, a State
authority or any other person or body) in relation to the Commissioner's
report—the reasons for not taking action; and
(iv) any other information required by the regulations.
(4) The Minister must, within 6 sitting days after completing a
report under
subsection (3)
, cause a copy of the report to be laid before both Houses of
Parliament.
16—Commissioner
may provide other reports
(1) The
Commissioner may prepare and provide to the Minister, or to another Minister
responsible for a particular area, reports on matters related to the rights,
development and wellbeing of children and young people at a systemic
level.
(2) The Minister to whom a report is provided under
subsection (1)
must, within 6 sitting days after receiving the report, cause a copy
of the report to be laid before both Houses of Parliament.
17—Commissioner
may publish reports
The Commissioner may, once a report under this Part has been laid before
each House of Parliament and after consultation with the Minister, publish all
or part of the report as the Commissioner thinks fit.
Part 3—Guardian
for Children and Young People
18—Guardian
for Children and Young People
(1) There is to be a Guardian for Children and Young People.
(2) The Guardian is independent of direction or control by the Crown or
any Minister or officer of the Crown.
19—Terms
and conditions of appointment
(1) The Guardian will be appointed by the Governor on the nomination of
the Minister on conditions, and for a term (not exceeding 5 years),
determined by the Governor and specified in the instrument of appointment and
is, at the expiration of a term of office, eligible for reappointment.
(2) The Minister
must, before nominating a person for appointment as Guardian, call for
expressions of interest in accordance with a scheme determined by the
Minister.
(3) The Guardian is not a Public Service employee.
(4) If the Guardian was, immediately before their appointment, employed in
the Public Service, the Guardian retains existing and accruing rights in respect
of leave.
(5) The office of Guardian becomes vacant if the holder—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Governor; or
(d) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(e) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(f) becomes a prohibited person within the meaning of the
Child
Safety (Prohibited Persons) Act 2016
; or
(g) is removed from office by the Governor under
subsection (6)
.
(6) The appointment of
the Guardian may be terminated by the Governor on the ground that the
Guardian—
(a) has been guilty of misconduct; or
(b) has become bankrupt or has applied to take the benefit of a law for
the relief of insolvent debtors; or
(c) has been disqualified from managing corporations under Chapter 2D
Part 2D.6 of the Corporations Act 2001 of the Commonwealth;
or
(d) has, because of mental or physical incapacity, failed to carry out
duties of the position satisfactorily; or
(e) is incompetent or has neglected the duties of the position.
(1) The Guardian
may delegate a function or power under this Act (other than a prescribed
function or power) to a specified body or person (including a person for the
time being holding or acting in a specified office or position).
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Guardian to act in any
matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
21—Use
of staff etc of Public Service
The Guardian may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
22—Functions
and powers of Guardian
(1) The functions of the Guardian are—
(a) to promote the best interests of children under the guardianship, or
in the custody, of the Minister, and in particular those in alternative care;
and
(b) to act as an advocate for the interests of children under the
guardianship, or in the custody, of the Minister and, in particular, for any
such child who has suffered, or is alleged to have suffered, sexual abuse;
and
(c) to monitor the circumstances of children under the guardianship, or in
the custody, of the Minister; and
(d) to provide advice to the Minister on the quality of the provision of
care for children under the guardianship, or in the custody of, the Minister and
on whether the children's needs are being met; and
(e) to inquire into, and provide advice to the Minister in relation to,
systemic reform necessary to improve the quality of care provided for children
in alternative care; and
(f) to investigate and report to the Minister on matters referred to the
Guardian by the Minister; and
(g) such other functions as may be conferred on the Guardian by or under
this or any other Act.
(2) In carrying out functions under this section, the Guardian
must—
(a) encourage children who are affected by issues that the Guardian has
under consideration to express their own views and give proper weight to those
views; and
(b) pay particular attention to the needs of children under the
guardianship, or in the custody, of the Minister who have a physical,
psychological or intellectual disability; and
(c) receive and consider information, reports and materials relevant to
carrying out the Guardian's functions.
(3) Subject to this Act, the Guardian has such powers as may be necessary
or expedient for the performance of the Guardian's functions.
(4) In this section—
alternative care means care provided for a child on a
residential basis—
(a) by or through a government or non-government agency; or
(b) in a foster home (including a foster home provided by a member of the
child's family),
and includes care provided in a detention facility for a child who is held
there in lawful detention and care provided under independent living
arrangements made for a child under the Minister's guardianship.
(1) The Guardian must establish and maintain a Youth Advisory
Committee.
(2) Membership of the Youth Advisory Committee is to be determined by the
Guardian, but must include children who are, or have been, under the
guardianship, or in the custody, of the Minister.
(3) The functions of the Youth Advisory Committee's are—
(a) to assist the Guardian in the performance of the Guardian's functions
by ensuring that the Guardian is aware of the experiences of, and receives
advice from, children who are, or have been, under the guardianship, or in the
custody, of the Minister; and
(b) such other functions as are assigned to the Committee by the
Guardian.
(4) The Youth Advisory Committee may, subject to direction by the Guardian
as to the procedures it is to adopt, determine its own procedures.
(1) The Guardian must, at the request of the Minister, provide a report to
the Minister on the performance of the Guardian's functions or on any other
matter specified by Minister.
(2) The Guardian
must, on or before 31 October in each year, report to the Minister on the
performance of the Guardian's functions during the preceding financial
year.
(3) The Minister must, within 6 sitting days after receiving a report from
the Guardian, have copies of the report laid before both Houses of
Parliament.
25—Guardian
may provide other reports
(1) The Guardian
may prepare and provide to the Minister, or to another Minister responsible for
a particular area, reports on matters related to the Guardian's
functions.
(2) The Minister to whom a report is provided under
subsection (1)
must, within 6 sitting days after receiving the report, cause a copy
of the report to be laid before both Houses of Parliament.
Part 4—Child
Death and Serious Injury Review Committee
26—Continuation
of Child Death and Serious Injury Review Committee
(1) The Child Death and Serious Injury Review Committee established under
the
Children's
Protection Act 1993
continues in existence.
(2) The Committee consists of up to 20 members appointed by the
Minister.
(3) The Committee is to be subject to direction by the Minister
but—
(a) the Committee cannot be directed to make a particular finding or
recommendation; and
(b) a direction must be published in the annual report of the Committee
relating to the period in which the direction was given.
27—Terms
and conditions of members
(1) Subject to this section, a member of the Committee holds office on
conditions, and for a term (not exceeding 2 years), determined by the
Minister and specified in the instrument of appointment and is, at the
expiration of a term of office, eligible for reappointment.
(2) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(e) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(f) becomes a prohibited person within the meaning of the
Working
with Children Act 2016
; or
(g) is removed from office by the Minister under
subsection (3)
.
(3) The Minister
may remove a member from office—
(a) for misconduct or conduct that brings the Committee into disrepute;
or
(b) for breach of, or non-compliance with, a condition of appointment;
or
(c) if the member has become bankrupt or has applied to take the benefit
of a law for the relief of insolvent debtors; or
(d) if the member has been disqualified from managing corporations under
Chapter 2D Part 2D.6 of the Corporations Act 2001 of the
Commonwealth; or
(e) if the member has, because of mental or physical incapacity, failed to
carry out duties of the position satisfactorily; or
(f) for incompetence or neglecting the duties of the position;
or
(g) any other reason the Minister thinks fit.
The Minister must appoint a member of the Committee as the presiding member
of the Committee.
29—Procedures
of the Committee
(1) Subject to this Act, a quorum of the Committee consists of one half
the total number of its members (ignoring any fraction resulting from the
division) plus 1.
(2) The Committee must meet at least 5 times in each year.
(3) The presiding member will preside at a meeting of the Committee and,
in the absence of that person, a member chosen by the members present at the
meeting will preside.
(4) A question arising for decision at a meeting of the Committee will be
decided by a majority of the votes cast by the members present at the
meeting.
(5) Each member present at a meeting of the Committee will be entitled to
1 vote on any question arising for decision at the meeting and, if the votes are
equal, the person presiding will have a casting vote.
(6) Subject to this Act and any directions of the Minister, the Committee
may determine its own procedures.
(1) The Committee may delegate to a member, or a sub-committee of its
members, any of its powers or functions under this Act.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Committee to act in any
matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
31—Use
of staff and facilities etc
(1) The Committee may, by agreement with the Minister responsible for an
administrative unit of the Public Service, make use of the services of the
staff, equipment or facilities of that administrative unit.
(2) The Committee may, with the Minister's approval, engage an expert to
assist it in the review of a particular case or in carrying out any other aspect
of its functions.
(1) The functions of the Committee are—
(a) to review cases in which children die or suffer serious injury with a
view to identifying legislative or administrative means of preventing similar
cases of death or serious injury in the future; and
(b) to make, and monitor the implementation of, recommendations for
avoiding preventable child death or serious injury; and
(c) to maintain a database of child deaths and serious injuries and their
circumstances and causes.
(2) A review may be carried out if—
(a) the incident resulting in the child's death or serious injury occurred
in the State; or
(b) the child was, at the time of the death or serious injury, ordinarily
resident in the State.
(3) The Committee should review a case of child death or serious injury
if—
(a) there are grounds to suspect that the death or serious injury may be
due to abuse or neglect; or
(b) there are grounds to believe that the death or serious injury might
have been prevented by some kind of systemic change; or
(c) there had been, within 3 years before the incident resulting in the
death or serious injury, a notification to the Department of suspected abuse or
neglect of the child, or a member of the child's family; or
(d) the child was, at the time of death or serious injury, under the
guardianship, or in the custody, of the Minister or was in custody or detention
or in the care of a government agency; or
(e) the case has been referred to the Committee by the State
Coroner.
(4) The Committee must not review a case of child death or serious injury
if to do so may compromise an ongoing criminal investigation of the
case.
(5) The Committee must not review a case of child death or serious injury
unless—
(a) a coronial inquiry has been completed; or
(b) the State Coroner requests the Committee to carry out a review;
or
(c) the State Coroner indicates that there is no present intention to
carry out a coronial inquiry.
(6) Without limiting the ways in which the Committee may conduct a review,
a review may be carried out by examination of coronial and other records and
reports relevant to the case under review.
(7) The Committee must not make a finding about civil or criminal
liability.
(8) The database maintained by the Committee may only be inspected in
accordance with the regulations.
(1) Subject to this
section, but without limiting any other provision of this Act, the Committee
may, for the purposes of a review of a case of child death or serious injury,
require a specified person (whether or not the person is a State authority, or
an officer or employee of a State authority) to provide to the Committee such
information or documents as may be specified in the notice (being information or
documents in the possession of the person that the Committee reasonably requires
for the review).
(2) A person must not
refuse or fail to comply with a requirement under
subsection (1)
.
Maximum penalty: $10 000.
(3)
Subsection (2)
does not apply to a prescribed person in relation to a child who is the
subject of the review.
(4) The Committee cannot require a person to disclose or allow access to
information or documents subject to the operation of Part 7 or 8 of the
Health
Care Act 2008
.
(5) If a State authority refuses or fails to comply with a requirement
under
subsection (1)
, the Committee may, after consultation with the State
authority—
(a) report the refusal or failure to the Minister and to the Minister
responsible for the State authority (if any); and
(b) include details of the refusal or failure in the annual report of the
Committee.
(6) In this section—
prescribed person, in relation to a child, means a parent,
step-parent, foster parent, brother, sister, uncle, aunt, grandfather or
grandmother of the child.
(1) The Committee must, at the request of the Minister, provide a report
to the Minister on the performance of its functions or on any other matter
specified by Minister.
(2) The Committee
must, on or before 31 October in each year, report to the Minister on the
performance of its functions during the preceding financial year.
(3) The Minister must, within 6 sitting days after receiving a report
under
subsection (2)
, have copies of the report laid before both Houses of
Parliament.
35—Guardian
or Committee may refer matter to Commissioner
(1) If, in the
course of performing functions under this Act, the Guardian or the Committee
becomes aware of a matter that, in the opinion of the Guardian or Committee,
should be referred to the Commissioner for action under
Part 2
, then the Guardian or Committee (as the case requires) may, in a manner
and form determined by the Commissioner, refer the matter to the
Commissioner.
(2)
Subsection (1)
applies whether or not the Guardian or the Committee is reviewing, or has
reviewed, an incident to which the matter relates.
(3) Nothing in
subsection (1)
prevents the Guardian or the Committee from reporting or referring the
matter under any other provision of this Act or any other Act.
36—Commissioner,
Guardian and Committee may report, and must refer, certain matters to
appropriate body
(1) If, in the
course of performing functions under this Act, the Commissioner, the Guardian or
the Committee becomes aware of a matter that raises the possibility of
professional misconduct or unprofessional conduct, or corruption, misconduct or
maladministration in public administration, then the Commissioner, Guardian or
Committee (as the case requires)—
(a) in the case of
professional misconduct or unprofessional conduct—may report the matter to
the relevant regulatory body for that profession; or
(b) in the case of corruption, misconduct or maladministration in public
administration—must refer the matter to the Office for Public
Integrity.
(2) The Commissioner, the Guardian or the Committee (as the case requires)
must comply with any reasonable request of the relevant regulatory body for
further information in relation to the subject matter of a report under
subsection (1)(a)
.
(3) In this section—
corruption, misconduct or maladministration in public
administration means corruption in public administration, misconduct in
public administration or maladministration in public administration, all within
the meaning of the
Independent
Commissioner Against Corruption Act 2012
;
Office for Public Integrity means the Office for Public
Integrity under the
Independent
Commissioner Against Corruption Act 2012
.
37—Commissioner
and Guardian may make complaints to Ombudsman
(1) Despite a provision
of the
Ombudsman
Act 1972
, the Commissioner or the Guardian may, on behalf of a child or young
person, or a class of children or young people—
(a) make a complaint to the Ombudsman in respect of an administrative act;
or
(b) make a prescribed
child protection complaint to the Ombudsman,
and, for the purposes of the
Ombudsman
Act 1972
, such a complaint will be taken to be a complaint made under that
Act.
(2) Without limiting a provision of the
Ombudsman
Act 1972
, the Ombudsman, in respect of a complaint referred to in
subsection (1)(b)
, has the same jurisdiction and any additional powers that the Health and
Community Services Complaints Commissioner would have under the
Health
and Community Services Complaints Act 2004
in respect of such a complaint.
(3) In this section—
administrative act has the same meaning as in the
Ombudsman
Act 1972
;
prescribed child protection complaint has the same meaning as
in section 28A of the
Health
and Community Services Complaints Act 2004
.
38—Commissioner
and Guardian may make complaints to Health and Community Services Complaints
Commissioner
(1) Subject to this
section, but despite a provision of the
Health
and Community Services Complaints Act 2004
, the Commissioner or the Guardian may make a complaint to the Health and
Community Services Complaints Commissioner on behalf of a child or young person,
or a class of children or young people, in respect of a ground referred to in
section 25 of that Act (and such a complaint will be taken to be a complaint
made under that Act).
(2) In determining whether to make a complaint under
subsection (1)
, the Commissioner or the Guardian (as the case requires)—
(a) must have regard to the fact that a prescribed child protection
complaint should, unless it is a complaint of a kind identified in an
administrative arrangement under section 28A of the
Health
and Community Services Complaints Act 2004
, be made to the Ombudsman; and
(b) must consider whether a complaint should instead be made under
section 37
.
(3) Nothing in this section limits the operation of section 28A of the
Health
and Community Services Complaints Act 2004
.
(4) In this section—
prescribed child protection complaint has the same meaning as
in section 28A of the
Health
and Community Services Complaints Act 2004
.
39—Immediate
reports to Parliament
(1) The Commissioner, the Guardian or the Committee may make a report to
the Parliament on any matter related to their functions under this Act if
satisfied that the matter raises issues of such importance to the safety or
wellbeing of children and young people that the Parliament should be made aware
of the matter as a matter of urgency.
(2) A copy of the report must be delivered to the President of the
Legislative Council and the Speaker of the House of Assembly.
(3) The President of the Legislative Council and the Speaker of the House
of Assembly must, on the first sitting day after receiving a report, lay it
before their respective Houses.
(4) The Commissioner, the Guardian or the Committee (as the case requires)
must also give a copy of the report to the Minister.
40—Referral
of matters to inquiry agencies etc not affected
(1) Nothing in this Act
prevents a matter from being referred to an inquiry agency or any other
appropriate person or body at any time (whether or not an inquiry or other
proceedings are being or have been undertaken under this Act).
(2) The referral of a matter does not prevent the Commissioner, the
Guardian or the Committee from performing functions or exercise powers in
respect of the matter (but in such a case the Commissioner, Guardian or
Committee must endeavour to avoid, as far as practicable, prejudice to any
person affected by the referral).
(3) In this section—
inquiry agency means—
(a) South Australia Police; or
(b) the Ombudsman; or
(c) the State Coroner; or
(d) the Independent Commissioner Against Corruption; or
(e) the Commissioner for Public Sector Employment; or
(f) the Health and Community Services Complaints Commissioner.
Part 6—Child
Development Council
Division 1—Child
Development Council
41—Establishment
of Child Development Council
(1) The Child Development Council is established.
(2) The Council
consists of up to 12 members appointed by the Minister, being persons who
collectively have, in the opinion of the Minister, the knowledge, skills and
experience necessary to enable the Council to carry out its functions
effectively.
(3) The Minister
must, before appointing a member to the Council, call for expressions of
interest under a scheme determined by the Minister for the purposes of this
section.
(4) The Minister may appoint a person to be the deputy of a member of the
Council.
(5) A deputy may act as a member of the Council during any period of
absence of the member in relation to whom the deputy has been
appointed.
42—Terms
and conditions of membership
(1) Subject to this section, a member of the Council will hold office on
conditions, and for a term (not exceeding 2 years), determined by the
Minister and specified in the instrument of appointment and is, at the
expiration of a term of office, eligible for reappointment.
(2) The office of a member becomes vacant if the member—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is convicted of—
(i) an indictable offence against the law of this State; or
(ii) an offence against the law of this State that is punishable by
imprisonment for a term of at least 12 months; or
(iii) an offence against the law of another jurisdiction that, if
committed in this State, would be an offence of a kind referred to in a
preceding paragraph; or
(e) is sentenced to imprisonment for an offence (whether against a law of
this State or another jurisdiction); or
(f) becomes a prohibited person within the meaning of the
Working
with Children Act 2016
; or
(g) is removed from office by the Minister under
subsection (3)
.
(3) The Minister
may remove a member from office—
(a) for misconduct or conduct that may bring the Council into disrepute;
or
(b) for breach of, or non-compliance with, a condition of appointment;
or
(c) if the member has become bankrupt or has applied to take the benefit
of a law for the relief of insolvent debtors; or
(d) if the member has been disqualified from managing corporations under
Chapter 2D Part 2D.6 of the Corporations Act 2001 of the
Commonwealth; or
(e) if the member has, because of mental or physical incapacity, failed to
carry out duties of the position satisfactorily; or
(f) for incompetence or neglecting the duties of the position;
or
(g) any other reason the Minister thinks fit.
(4) An act or proceeding of the Council is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
43—Presiding
member and deputy presiding member
The Minister must appoint 1 of the members of the Council to be the
presiding member of the Council and 1 to be the deputy presiding
member.
(1) The Council may
delegate a function or power under this Act (other than a prescribed function or
power)—
(a) to a member of the Council; or
(b) to a committee established by the Council; or
(c) to a specified body or person (including a person for the time being
holding or acting in a specified office or position).
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Council to act in any
matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
(1) The Council may establish committees—
(a) to advise the Council; or
(b) to carry out functions on behalf of the Council.
(2) The membership of a committee will be determined by the Council and
may, but need not, consist of, or include, members of the Council.
(3) The Council will determine who will be the presiding member of a
committee.
(4) The procedures to be observed in relation to the conduct of the
business of a committee will be—
(a) as determined
by the Council; and
(b) insofar as a procedure is not determined under
paragraph (a)
—as determined by the committee.
(1) Subject to this Act, a quorum of the Council consists of one half the
total number of its members (ignoring any fraction resulting from the division)
plus 1.
(2) The Council must meet at least 6 times in any calendar
year.
(3) The presiding member will preside at a meeting of the Council and, in
the absence of that person, or, in that member's absence, by the deputy
presiding member and, in the absence of both the presiding member and the deputy
presiding member, the members present at a meeting of the Council must
choose 1 of their number to preside at the meeting.
(4) A decision carried by a majority of the votes cast by members of the
Council at a meeting is a decision of the Council.
(5) Each member present at a meeting of the Council has 1 vote on any
question arising for decision (but, to avoid doubt, the member presiding at the
meeting does not have a casting vote if the votes are equal).
(6) The Council must have accurate minutes kept of its meetings.
(7) Subject to this Act and any direction of the Minister, the Council may
determine its own procedures.
47—Commissioner
or representative may attend meetings of Council
The Commissioner, or a person authorised in writing by the
Commissioner—
(a) may attend and take part in discussions at any meeting of the Council;
and
(b) may have access to papers provided to members for the purposes of any
meeting of the Council,
but does not have a vote on any question arising for decision at a meeting
of the Council.
48—Use
of staff etc of Public Service
The Council may, under an arrangement established by the Minister
administering an administrative unit of the Public Service, make use of the
staff, equipment or facilities of that administrative unit.
49—Functions
and powers of Council
(1) The primary
function of the Council is to prepare and maintain the Outcomes Framework for
Children and Young People.
(2) The Council has the following additional functions:
(a) to advise and report to the Government on the effectiveness of the
Outcomes Framework in—
(i) keeping children and young people safe from harm; and
(ii) ensuring that children and young people are cared for in a way that
allows them to realise their potential; and
(iii) improving the physical and mental health, and the emotional
wellbeing, of children and young people; and
(iv) improving the participation of children and young people in
educational and vocational training; and
(v) improving the participation of children and young people in sporting,
creative, cultural and other recreational activities; and
(vi) ensuring that children and young people are properly prepared for
taking their position in society as responsible citizens; and
(vii) maintaining the cultural identity of children and young
people;
(b) to promote the implementation of the Outcomes Framework in respect of
matters affecting children and young people under the laws of the
State;
(c) to keep under review the operation of the
Children
and Young People (Safety) Act 2016
and the
Family
and Community Services Act 1972
so far as it affects the interests of children;
(d) to provide advice to the Minister on—
(i) creating environments that are safe for children; and
(ii) raising community awareness of the relationship between the needs of
children for care and protection and their developmental needs; and
(iii) initiatives involving the community as a whole for the protection or
care of children; and
(iv) policy issues that may require government action or legislative
reform; and
(v) priorities for research;
(e) such other functions as may be assigned to the Council under this or
any other Act or by the Minister.
(3) In performing the functions under this section, the Council should, as
far as is reasonably practicable, seek to work collaboratively
with—
(a) State authorities and Commonwealth agencies that have functions that
are relevant to those of the Council; and
(b) relevant industry, professional and community groups and
organisations.
(4) Subject to this Act, the Council has such powers as may be necessary
or expedient for the performance of the Council's functions.
(1) The Council must, at the request of the Minister, provide a report to
the Minister on the performance of its functions or on any other matter
specified by Minister.
(2) The Council
must, on or before 31 October in each year, report to the Minister on the
performance of its functions during the preceding financial year.
(3) The Minister must, within 6 sitting days after receiving a report
under
subsection (2)
, have copies of the report laid before both Houses of
Parliament.
Division 2—Outcomes
Framework for Children and Young People
51—Outcomes
Framework for Children and Young People
(1) There is to be an Outcomes Framework for Children and Young
People.
(2) Without limiting any other matter that may be included in the Outcomes
Framework, the Outcomes Framework must include a Charter for Children and Young
People.
(3) The Outcomes Framework is to be prepared by the Child Development
Council.
(4) The Council must, in preparing the Outcomes Framework—
(a) act in accordance with any instructions of the Minister; and
(b) consult with—
(i) the Commissioner; and
(ii) any other person or body prescribed by the regulations,
and may consult with any other person or body that the Council thinks
appropriate; and
(c) engage children and young people, and their parents, carers and
families; and
(d) ensure an appropriate focus on the needs of priority population
groups; and
(e) develop performance indicators against which progress in relation to
the development and wellbeing of children and young people in the State can be
tracked over time.
(5) The regulations may make further provisions with regard to the
Outcomes Framework including, without limiting the generality of this
subsection, provisions relating to—
(a) how the Outcomes Framework is to be prepared; and
(b) the form of the Outcomes Framework and any variation of the Outcomes
Framework; and
(c) the kinds of information to be included in the Outcomes Framework;
and
(d) consultation requirements relating to the Outcomes Framework;
and
(e) consideration and approval of the Outcomes Framework by the Minister;
and
(f) requirements as to the ongoing review of the Outcomes Framework;
and
(g) variation or substitution of the Outcomes Framework,
including provisions limiting a matter referred to in a preceding
paragraph.
(6) The Outcomes Framework, and any variation or substitution of the
Outcomes Framework, has effect from the time it is approved by the
Minister.
(7) The Council
must, on the Outcomes Framework or a variation of the Outcomes Framework being
approved by the Minister—
(a) cause the
Outcomes Framework or variation to be published in the Gazette; and
(b) cause the Outcomes Framework to be published on a website determined
by the Minister.
52—Statutory
duty of State authorities in respect of Outcomes Framework
(1) Every State
authority must, in carrying out its functions or exercising its powers, have
regard to, and seek to give effect to, the Outcomes Framework.
(2) A State authority will be taken not to be in breach of
subsection (1)
if the State authority is acting—
(a) in accordance with a requirement under this or any other Act;
or
(b) in circumstances prescribed by the regulations.
(3) A failure by a
State authority to comply with this section does not, of itself, give rise to
any civil liability against the Crown, the State authority or any other
person.
Part 7—Information
gathering and sharing
53—No
obligation to maintain secrecy
No obligation to maintain secrecy or other restriction on the disclosure of
information applies in relation to the disclosure of information to the
Commissioner, the Guardian or the Committee under this Act, except an obligation
or restriction designed to keep the identity of an informant or notifier
secret.
54—Commissioner
may require State authority to provide report
(1) The
Commissioner may, if the Commissioner is of the opinion that it is necessary or
would otherwise assist the Commissioner in the performance of functions under
this Act, require a State authority to prepare and provide a report to the
Commissioner in relation to the matters, and in accordance with any
requirements, specified in the notice.
(2) If a State
authority has not complied with a requirement under
subsection (1)
, the Commissioner may require the State authority to provide to the
Commissioner within a specified period a report setting out the reasons for
non-compliance.
(3) The
Commissioner may, on receiving a report under
subsection (2)
, submit a copy of the report to the Minister setting out the views of the
Commissioner in respect of the State authority's non-compliance.
(4) The Minister
must, on receiving a report under
subsection (3)
, prepare a report to Parliament setting out—
(a) the Minister's response to the Commissioner's report; and
(b) any other information required by the regulations.
(5) The Minister must, within 6 sitting days after completing a
report under
subsection (4)
, cause a copy of both the report and the Commissioner's report under
subsection (3)
to be laid before both Houses of Parliament.
55—Commissioner,
Guardian or Council may require information
(1) The
Commissioner, the Guardian or the Council may, by notice in writing, require a
specified person (whether or not the person is a State authority, or an officer
or employee of a State authority) to provide to them such information, or such
documents, as may be specified in the notice (being information or documents in
the possession of the person or body that the Commissioner, Guardian or Council
reasonably requires for the performance of functions under this Act).
(2) A person of whom a requirement is made under
subsection (1)
must give the specified information or documents to the Commissioner,
Guardian or Council (as the case requires) within the period specified in the
notice.
(3) A person who refuses or fails to comply with a notice under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000.
(4) If a State authority refuses or fails to comply with a notice under
subsection (1)
, the Commissioner, Guardian or Council (as the case requires) may, after
consultation with the State authority—
(a) report the refusal or failure to the Minister and to the Minister
responsible for the State authority (if any); and
(b) include details of the refusal or failure in the annual report of the
Commissioner, Guardian or Council.
(5) The Minister may, by notice in writing, exempt a specified person or
body, or persons or bodies of a specified class, from the operation of this
section.
(6) An exemption—
(a) may be conditional or unconditional; and
(b) may be varied or revoked by the Minister by further notice in
writing.
56—Sharing
of information between certain persons and bodies
(1) This section applies to the following persons and bodies:
(a) the Commissioner;
(b) the Guardian;
(c) the Committee;
(d) the Council;
(e) a State authority;
(f) any other person or body declared by the regulations to be included in
the ambit of this subsection.
(2) Despite any other
Act or law, a person or body to whom this section applies (the
provider) may, in accordance with any requirement set out in the
regulations, provide prescribed information and documents to another person or
body to whom this section applies (the recipient) if the provider
reasonably believes that the provision of the information or documents would
assist the recipient—
(a) to perform official functions relating to the health, safety, welfare
or wellbeing of a child or young person or class of children or young people;
or
(b) to manage any risk to a child or young person or class of children or
young people that might arise in the recipient’s capacity as an employer
or provider of services.
(3) Despite any other
Act or law, information or documents that do not directly or indirectly disclose
the identity of any person may be provided by one person or body to whom this
section applies to another without restriction.
(4)
Subsection (3)
applies—
(a) whether or not the information or documents consist of or include
prescribed information and documents; and
(b) whether the information or document ever disclosed the identity of a
person, or has been redacted so as to de-identify it.
(5) Information may be provided under this section regardless of whether
the provider has been requested to provide the information.
(6) In this section—
prescribed information and documents means—
(a) information or documents relating to the health, safety, welfare or
wellbeing of a particular child or young person or class of children or young
people; or
(b) any other information or document of a kind prescribed by the
regulations for the purposes of this definition.
57—Interaction
with Public Sector (Data Sharing)
Act 2016
Nothing in this Part affects the operation of the
Public
Sector (Data Sharing) Act 2016
.
A person must not, without reasonable excuse, obstruct, hinder, resist or
improperly influence, or attempt to obstruct, hinder, resist or improperly
influence, the Commissioner, the Guardian, the Committee or the Council in the
performance or exercise of a function or power under this Act.
Maximum penalty: $10 000.
59—False
or misleading statements
A person must not make a statement knowing that it is false or misleading
in a material particular (whether by reason of the inclusion or omission of a
particular) in information provided under this Act.
Maximum penalty: $10 000.
(1) A person
engaged or formerly engaged in the administration of this Act must not divulge
or communicate personal information obtained (whether by that person or
otherwise) in the course of official duties except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the consent of the person to whom the information relates;
or
(c) in connection with the administration or enforcement of this or any
other Act; or
(d) for the purposes of referring the matter to a law enforcement agency,
or a person or agency exercising official duties under an Act relating to the
care or protection of children; or
(e) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions; or
(f) if the
disclosure is reasonably necessary for the protection of the lawful interests of
that person.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(4) The regulations may make further provision in respect of the
disclosure of information obtained in the course of the administration of this
Act.
(1) A person who causes detriment to another on the ground, or
substantially on the ground, that the other person or a third person has
provided, or intends to provide, information under this Act commits an act of
victimisation.
(2) Causing detriment on the ground that a person—
(a) has made a false allegation; or
(b) has not acted in good faith,
does not constitute an act of victimisation.
(3) An act of victimisation under this Act may be dealt
with—
(a) as a tort; or
(b) as if it were an act of victimisation under the
Equal
Opportunity Act 1984
,
but, if the victim commences proceedings in a court seeking a remedy in
tort, the victim cannot subsequently lodge a complaint under the
Equal
Opportunity Act 1984
and, conversely, if the victim lodges a complaint under that Act, the
victim cannot subsequently commence proceedings in a court seeking a remedy in
tort.
(4) If a complaint alleging an act of victimisation under this Act has
been lodged with the Commissioner for Equal Opportunity and the Commissioner is
of the opinion that the subject matter of the complaint has already been
adequately dealt with by a competent authority, the Commissioner may decline to
act on the complaint or to proceed further with action on the
complaint.
(5) In proceedings against a person seeking a remedy in tort for an act of
victimisation committed by an employee or agent of the person, it is a defence
to prove that the person exercised all reasonable diligence to ensure that the
employee or agent would not commit an act of victimisation.
(6) A person who
personally commits an act of victimisation under this Act is guilty of an
offence.
Maximum penalty: $10 000.
(7) Proceedings for an offence against
subsection (6)
may only be commenced by a police officer or a person approved by either
the Commissioner of Police or the Director of Public Prosecutions.
(8) In this section—
detriment includes—
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to a
person's employment; or
(d) threats of reprisal.
62—Protections,
privileges and immunities
(1) No liability attaches to the Commissioner, the Guardian, a member of
the Committee, a member of the Council or any other person for any act or
omission in good faith in the exercise or purported exercise of powers or
functions under this or any other Act.
(2) Nothing in this Act affects the privileges, immunities or powers of
the Legislative Council or House of Assembly or their committees or
members.
(3) Nothing in this
Act affects any rule or principle of law relating to—
(a) legal professional privilege; or
(b) "without prejudice" privilege; or
(c) public interest immunity.
(4) A person is excused from answering a question or producing a document
or other material in connection with an inquiry if the person could not be
compelled to answer the question or produce the document or material in
proceedings in the Supreme Court.
(5) The Commissioner has, in connection with an inquiry under
section 12
, the same protection, privileges and immunities as a Judge of the Supreme
Court.
(6) A person who provides information or a document to an inquiry under
this Act has the same protection, privileges and immunities as a witness in
proceedings before the Supreme Court.
(7) A legal practitioner who represents a person in connection with an
inquiry under this Act has the same protection, privileges, immunities and
obligations as counsel involved in proceedings before the Supreme
Court.
(8) A person who does anything in accordance with this Act, or as required
or authorised by or under this Act, cannot by so doing be held to have breached
any code of professional etiquette or ethics, or to have departed from any
acceptable form of professional conduct.
(1) Subject to this
Act, a notice or document required or authorised to be given to a person for the
purposes of this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person at the person's last
known residential, business or (in the case of a corporation) registered
address; or
(c) be left for the person at the person's last known residential,
business or (in the case of a corporation) registered address with someone
apparently over the age of 16 years; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or document will be taken to
have been given or served at the time of transmission).
(2) Without limiting the effect of
subsection (1)
, a notice or other document required or authorised to be given or sent to,
or served on, a person for the purposes of this Act may, if the person is a
company or registered body within the meaning of the Corporations
Act 2001 of the Commonwealth, be served on the person in accordance
with that Act.
(1) The Governor
may make such regulations as are contemplated by, or necessary or expedient for
the purposes of, this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may provide for—
(a) the exemption of a person, or a class of persons, from the operation
of a specified provision or provisions of this Act; and
(b) fees in respect of any matter under this Act and their payment,
recovery or waiver; and
(c) fines, not exceeding $10 000, for offences against the
regulations; and
(d) facilitation of proof of the commission of offences against the
regulations.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(c) make provisions of a saving or transitional nature; and
(d) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of a specified person or
body; and
(e) apply or incorporate, wholly or partially and with or without
modification, a code, standard, policy or other document prepared or published
by the Minister or another specified person or body.
(4) If a code, standard or other document is referred to or incorporated
in the regulations—
(a) a copy of the code, standard or other document must be kept available
for public inspection, without charge and during ordinary office hours, at an
office or offices specified in the regulations; and
(b) evidence of the contents of the code, standard or other document may
be given in any legal proceedings by production of a document apparently
certified by the Minister to be a true copy of the code, standard or other
document.
Schedule 1—Related
amendments and transitional provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Children's Protection
Act 1993
Part 7A—delete the Part
Part 7B—delete the Part
Part 7C—delete the Part
Part 3—Amendment of Freedom of Information
Act 1991
5—Amendment
of Schedule 2—Exempt agencies
Schedule 2—after paragraph (eb) insert:
(ec) the Commissioner for Children and Young People;
(ed) the Guardian for Children and Young People;
(ee) the Child Death and Serious Injury Review Committee;
(ef) the Child Development Council;
Part 4—Amendment of Health and Community
Services Complaints Act 2004
6—Amendment
of section 4—Interpretation
Section 4(1), definition of community service,
(c)—delete "has been abused or neglected, or allegedly abused or
neglected, and includes any service that relates to the notification of any case
of child abuse or neglect (or alleged child abuse or neglect), or the
investigation of a case where a child may be in need of care or protection, or
any subsequent action taken by a service provider arising from any such
investigation" and substitute:
is, or has been or may be, at risk (within the meaning of
Children
and Young People (Safety) Act 2016
) and includes—
(a) any service that relates to a notification that a child is, or may be,
at risk; and
(b) any investigation of a case where a child is, or may be, at risk, and
any subsequent action taken by a service provider arising from such an
investigation;
7—Amendment
of section 27—Time within which a complaint may be
made
Section 27—after subsection (3) insert:
(4) This section does not apply in relation to a complaint made by the
Commissioner for Children and Young People or the Guardian for Children and
Young People under the
Children
and Young People (Oversight and Advocacy Bodies) Act 2016
.
8—Insertion
of Part 4 Division 1A
After section 28 insert:
Division 1A—Certain complaints to be referred to
Ombudsman
28A—Commissioner to refer certain complaints to
Ombudsman
(1) Subject to this
section, the Commissioner must refer a complaint that is a prescribed child
protection complaint to the Ombudsman to be dealt with under the
Ombudsman
Act 1972
.
(2) The Commissioner
and the Ombudsman may enter into an administrative arrangement to identify
classes of prescribed child protection complaints that are to be dealt with by
the Commissioner under this Act (and
subsection (1)
will be taken not to apply to such complaints).
(3) An administrative arrangement may be varied or revoked by agreement
between the Commissioner and the Ombudsman.
(4) A copy of an administrative arrangement, as in force from time to
time, must be published on a website determined by the Minister.
(5) The Minister must, within 6 sitting days after an administrative
arrangement is entered under
subsection (2)
, cause a copy of the administrative arrangement to be laid before both
Houses of Parliament.
(6) Without limiting a provision of the
Ombudsman
Act 1972
, the Ombudsman, in dealing with a prescribed child protection complaint,
has the same jurisdiction and any additional powers that the Health and
Community Services Complaints Commissioner would have under this Act in respect
of such a complaint.
(7) For the purposes of the
Ombudsman
Act 1972
, a complaint referred under this section will be taken to be a complaint
received under that Act.
(8) In this section—
administrative act has the same meaning as in the
Ombudsman
Act 1972
;
at risk has the same meaning as in the
Children
and Young People (Safety) Act 2016
;
prescribed child protection complaint means—
(a) a complaint relating to a health or community service—
(i) that is provided to, or for the benefit of, a child who may be, or who
has been, at risk; or
(ii) that consists of, or includes, a notification (whether mandatory or
otherwise) of a suspicion that a child may be at risk; or
(iii) that consists of, or includes or arises out of, an investigation of
a case where a child may be at risk; or
(iv) that is provided to, or for the benefit of, a child who is under the
guardianship, or in the custody of, the Minister or another person under the
Children
and Young People (Safety) Act 2016
,
where the provision of the service constitutes an administrative act on the
part of an agency to which the
Ombudsman
Act 1972
applies; or
(b) any other complaint of a kind declared by the regulations to be
included in the ambit of this definition,
but does not include a complaint of a kind declared by the regulations not
to be included in the ambit of this definition.
Part 5—Amendment of Ombudsman
Act 1972
9—Amendment
of section 13—Matters subject to investigation
(1) Section 13—after subsection (3a) insert:
(3b) Despite subsection
(3), the Ombudsman may investigate a prescribed child protection
complaint.
(3c) To avoid doubt,
subsection (3b)
applies whether the prescribed child protection complaint—
(a) is made by the Commissioner for Children and Young People or the
Guardian for Children and Young People under the
Children
and Young People (Oversight and Advocacy Bodies) Act 2016
; or
(b) is referred to the Ombudsman by the Commissioner under section 28A of
the
Health
and Community Services Complaints Act 2004
; or
(c) is made under this Act.
(3d) Without limiting any other provision of this Act, the Ombudsman, in
respect of an investigation under
subsection (3b)
, has any additional powers that the Health and Community Services
Complaints Commissioner would have under the
Health
and Community Services Complaints Act 2004
if the Commissioner were investigating such a complaint under that
Act.
(3e) Without limiting any other provision of this Act, the Ombudsman must,
in the course of an investigation under
subsection (3b)
—
(a) have regard, and seek to give effect, to the Health and Community
Services Rights Charter under the
Health
and Community Services Complaints Act 2004
, as in force from time to time;
(b) where appropriate, have regard to any code of conduct prescribed under
section 56A of the
Health
and Community Services Complaints Act 2004
.
(2) Section 13—after subsection (4) insert:
(5) A reference in this or any other provision of this Act to an
administrative act will be taken to include a reference to the service, activity
or omission to which a prescribed child protection complaint relates.
(6) In this section—
at risk has the same meaning as in the
Children
and Young People (Safety) Act 2016
;
prescribed child protection complaint has the same meaning as
in section 28A of the
Health
and Community Services Complaints Act 2004
.
10—Amendment
of section 15—Persons who may make complaints
Section 15—after subsection (3a) insert:
(3b) Subsection (3a) does not apply in relation to a complaint made by the
Commissioner for Children and Young People or the Guardian for Children and
Young People under the
Children
and Young People (Oversight and Advocacy Bodies) Act 2016
.
11—Amendment
of section 16—Time within which complaints may be
made
Section 16—after subsection (2) insert:
(3) This section does not apply in relation to a complaint made by the
Commissioner for Children and Young People or the Guardian for Children and
Young People under the
Children
and Young People (Oversight and Advocacy Bodies) Act 2016
.
Part 6—Transitional
provisions
12—Guardian
for Children and Young People
(1) The person who,
immediately before the commencement of
clause 2
of this Schedule, was the Guardian for Children and Young Persons under
the
Children's
Protection Act 1993
will continue as the Guardian for Children and Young People as if he or
she were appointed under
Part 3
of this Act.
(2) The appointment will be taken to be subject to any terms, conditions
or limitations applicable to the Guardian for Children and Young Persons
immediately before the commencement of
clause 2
of this Schedule.