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This is a Bill, not an Act. For current law, see the Acts databases.
2002-2003
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
A
Better Future for Our Kids Bill 2003
No.
, 2003
(Ms Roxon)
A
Bill for an Act to establish an Office of National Commissioner for Children and
Young People, and for related purposes
Contents
A Bill for an Act to establish an Office of National
Commissioner for Children and Young People, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the A Better Future for Our Kids Act
2003.
(1) Subject to subsection (2), this Act commences on a day to be
fixed by proclamation.
(2) A proclamation for the purposes of subsection (1) must not be
made until the Parliament has appropriated funds for the operation of the Office
of National Commissioner for Children and Young People.
(3) If the Parliament appropriates funds and this Act does not commence
within a period of 6 months beginning on the day on which the Act authorising
the appropriation receives the Royal Assent, it commences on the first day after
the end of that period.
(4) If the Parliament does not appropriate funds this Act does not
commence at all.
The main object of this Act is to establish a National Commissioner for
Children and Young People in order to:
(a) provide national leadership and advocacy on children’s and young
people’s issues; and
(b) monitor and promote the well being of children and young people,
particularly those who are vulnerable or disadvantaged; and
(c) encourage understanding of the interests, rights and welfare of
children and young people; and
(d) encourage the participation of children and young people in the
community.
The following principles underlie this Act:
(a) every child is a valued member of society; and
(b) the family has the primary responsibility for the upbringing and
development of its children and should be supported in that role; and
(c) every child is entitled to be protected from abuse, exploitation and
discrimination; and
(d) every child is entitled to form and express views and have those views
taken into account in a way that has regard to the child’s age and
maturity; and
(e) in decisions involving children the child’s best interests are
of primary concern.
In this Act, unless the contrary intention appears:
child means a person who is under the age of 18
years.
child abuse means:
(a) assault (including sexual assault) of a child; or
(b) ill-treatment or neglect of a child; or
(c) exposing or subjecting a child to behaviour that psychologically harms
the child,
whether or not, in any case, with the consent of the child.
child-related employment means any employment that involves
direct contact with children where the contact is not directly supervised, and
includes any employment of a kind prescribed by the regulations but does not
include any employment of a kind excluded by the regulations.
child-related volunteer means a person who performs work as a
volunteer for an organisation and the work involves direct contact with children
where the contact is not directly supervised, and includes any work of a kind
prescribed by the regulations but does not include any work of a kind excluded
by the regulations.
Commissioner means the National Commissioner for Children and
Young People.
Commonwealth agency means:
(a) a Department of State; or
(b) a body established for a public purpose by or under a law of the
Commonwealth.
employee means any person who is engaged in employment within
the meaning of this Act.
employer means a person who engages a person in employment
within the meaning of this Act, and includes a person who, in the course of a
business, arranges for the placement of a person in employment with
others.
employer-related body means any body that supervises,
represents or has other functions with respect to an employer.
employment means (subject to the regulations):
(a) performance of work under a contract of employment, or
(b) performance of work as a subcontractor; or
(c) undertaking practical training as part of an educational or vocational
course.
relevant apprehended violence order has the meaning
prescribed in the regulations.
relevant criminal record has the meaning prescribed in the
regulations.
relevant disciplinary proceedings means disciplinary
proceedings against an employee by the employer or by a professional or other
body that supervises the professional conduct of the employee, being completed
proceedings involving:
(a) child abuse or sexual misconduct by the employee; or
(b) acts of violence committed by the employee in the course of
employment.
The regulations may declare that, for the purposes of this Part,
disciplinary proceedings of a particular kind are or are not relevant
disciplinary proceedings.
young people means people who are 18 to 25 years of
age.
This Act is not intended to exclude or limit the operation of a law of a
State or Territory that is capable of operating concurrently with this
Act.
This Act extends to every external Territory.
(1) This Act binds the Crown in right of the Commonwealth, but does not
make the Crown liable to be prosecuted for an offence.
(2) For the avoidance of doubt, Crown includes the Office of
the National Commissioner for Children and Young People.
(1) The Office of the National Commissioner for Children and Young People
is established by this section.
(2) The Office of the National Commissioner for Children and Young People
consists of the National Commissioner for Children and Young People and the
staff as mentioned in section 18.
(1) There is to be a National Commissioner for Children and Young People,
who is appointed by the Governor-General, on the recommendation of the Prime
Minister.
(2) A person is not qualified to be appointed as the National Commissioner
for Children and Young People unless the Prime Minister is satisfied
that:
(a) the person has appropriate qualifications, knowledge or experience and
is of good character; and
(b) the person has a demonstrated commitment to, and capacity to advance
the cause of, the welfare of children and young people.
(3) Before the Commissioner is appointed a check for any relevant criminal
record, any relevant apprehended violence orders, or any relevant disciplinary
proceedings in relation to the person to be appointed must be carried
out.
(1) The Commissioner holds office for such period, not exceeding 5 years,
as is specified in the instrument of the person’s appointment, but is
eligible for re-appointment.
(2) The Commissioner holds office on such terms and conditions (if any) in
respect of matters not provided for by this Act as are determined by the
Governor-General acting on the advice of the Executive Council.
(1) The Commissioner is to be paid such remuneration as is determined by
the Remuneration Tribunal, but, if no determination of that remuneration by the
Tribunal is in operation, the Commissioner is to be paid such remuneration as is
prescribed in the regulations.
(2) The Commissioner is to be paid such allowances as are prescribed in
the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) The Commissioner has such recreation leave entitlements as are
determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner leave of absence, other than
recreation leave, on such terms and conditions as to remuneration or otherwise
as the Minister determines.
Except with the approval of the Minister, the Commissioner must not
engage in paid employment outside the duties of the office of the
Commissioner.
The Commissioner may resign from the office of Commissioner by delivering
to the Governor-General a signed notice of resignation.
(1) The Governor-General may terminate the appointment of the Commissioner
by reason of misbehaviour or physical or mental incapacity.
(2) The Governor-General must terminate the appointment of the
Commissioner if the Commissioner:
(a) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with creditors or makes an
assignment of remuneration for their benefit; or
(b) commits any offence against children; or
(c) is absent from duty, except on leave of absence, for 14 consecutive
days or for 28 days in any period of 12 months; or
(d) contravenes section 14.
The Minister may appoint a person to act as Commissioner:
(a) during a vacancy in the office of Commissioner, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Commissioner is
absent from duty or from Australia, or is, for any other reason, unable to
perform the functions of the office of Commissioner,
but a person appointed to act during a vacancy shall not continue so to act
for more than 12 months.
(1) The staff necessary to assist the Commissioner must be persons
appointed or employed under the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the Commissioner and the APS employees assisting the Commissioner
together constitute a Statutory Agency; and
(b) the Commissioner is Head of that Statutory Agency.
(3) The Commissioner may engage as consultants persons with suitable
qualifications and experience. The terms and conditions on which a consultant is
engaged are as determined by the Commissioner.
(1) Subject to this Act, the Commissioner has the following
functions:
(a) to monitor, promote and report on the safety, welfare and well being
of Australian children, including but not restricted to, Aboriginal and Torres
Strait Islander and disadvantaged children and young people (see subsection
20(a)); and
(b) to increase public awareness of matters relating to the welfare of
children and young people; and
(c) to promote and support the role of the family and parents in the
development and well being of children; and
(d) to promote the interests, rights and welfare of children and young
people; and
(e) to promote understanding of and investment in early childhood
development and requirements for quality child care and early childhood
services; and
(f) to promote the participation of children and young people in relevant
decision making forums; and
(g) to develop best practice models and protocols for the provision of
services for children and young people, and for dealing with child abuse
complaints; and
(h) to develop a National Code for the Protection of Children in
accordance with Part 3 of this Act; and
(i) to co-ordinate the Working with Children Check on persons employed or
applying to be employed in certain child-related employment or working or
applying to work as a child-related volunteer in certain organisations in
accordance with Part 4 of this Act; and
(j) to act as the legal guardian of unaccompanied children who are not
Australian citizens and arrive in Australia without a required visa or other
authority for entry into Australia; and
(k) to promote the participation of children and young people in informed
discussion of issues concerning the interests of children and young people in
relevant public and private forums; and
(l) to undertake and promote research into issues relating to the welfare
of children and young people; and
(m) to monitor and assess the policies and practices of Commonwealth
agencies and Commonwealth laws relevant to children and young people;
and
(n) to monitor programs and initiatives for compliance with the United
Nations Convention on the Rights of the Child; and
(o) to initiate and conduct inquiries into and make recommendations on any
matter, including any enactment or law or any practice or procedure, relating to
the welfare of children and young people.
(2) The Commissioner has all necessary or convenient powers to perform the
Commissioner’s functions.
(3) Nothing in subsection (1) authorises the Commissioner to deal
directly with the individual complaints or concerns of particular children or
young people but the Commissioner, on behalf of particular classes of children
or in relation to general or systemic issues affecting children, may initiate
complaints with or intervene in inquiries being conducted by other bodies
authorised to conduct such inquiries.
In performing the Commissioner’s functions, the Commissioner
must:
(a) have special regard to and, where appropriate, report specifically on
the needs and interests of children and young people who are:
(i) of Aboriginal or Torres Strait Islander origin; or
(ii) disadvantaged or vulnerable because of disability, geographic
isolation, homelessness or poverty; and
(b) consult with children and young people in ways appropriate to their
age and maturity; and
(c) listen to and seriously consider the concerns, views and wishes of
children and young people; and
(d) adopt work practices that ensure the Office of the Commissioner is
accessible to children and young people and encourages their participation;
and
(e) consult with parents and guardians of children; and
(f) consult with relevant Commonwealth agencies, State and Territory
bodies and other organisations; and
(g) refer any individual matters to the appropriate authority.
(1) In performing the Commissioner’s functions, the
Commissioner:
(a) must act independently and in a way that promotes and protects the
rights, interests and well being of children and young people; and
(b) is not under the control or direction of the Minister.
(2) Subsection (1) is not limited by section 20 or 22.
(1) The Commissioner and other Commonwealth agencies that provide or deal
with services or issues affecting children and young people must work in
co-operation in the exercise of their respective functions, including the
Australian Institute of Family Studies which has responsibility for the National
Child Protection Clearinghouse.
(2) The Commissioner must consult with State and Territory Governments to
develop agreements concerning co-operation and interaction between the Office of
the Commissioner and relevant State and Territory bodies, including in
connection with the provision of information or access to documents required by
the Commissioner in relation to his or her functions.
(1) The Governor-General, on the advice of the Executive Council, may
appoint one or more Deputy Commissioners to carry out specified functions, in
particular, if required, Deputy Commissioners may be appointed for the
protection of children and for Aboriginal and Torres Strait Islander
children.
(2) Deputy Commissioners are appointed by written instrument setting out a
specified period of appointment, a specified project or function to be carried
out and any other terms and conditions of appointment.
(3) An instrument under subsection (2) is a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act
1901.
(1) The Commissioner is responsible for preparation of reports to the
United Nations Committee on the Rights of the Child under the terms of the
United Nations Convention on the Rights of the Child.
(2) In preparing such reports the Commissioner must consult with all
relevant Commonwealth agencies, State and Territory bodies and non-government
organisations.
(3) Each report prepared by the Commissioner under subsection (1)
must be given to the Minister who must transmit the report to the
Secretary-General of the United Nations as soon as practicable after receiving
it.
(4) Nothing in this section prevents the Minister or another Minister of
the Commonwealth from preparing and transmitting to the Secretary-General of the
United Nations other reports to the United Nations Committee on the Rights of
the Child on behalf of Australia.
(1) When the Commissioner conducts an inquiry under subsection 19(o), the
Commissioner must prepare a report for Parliament on the inquiry including any
recommendations he or she wishes to make in relation to it.
(2) The Commissioner may report to the Parliament from time to time on any
matter related to his or her functions.
(3) Reports to the Parliament prepared under this section must be given to
the Minister to be tabled in each House of the Parliament.
(1) The Commissioner must, as soon as practicable after 30 June,
prepare and give to the Minister a report of its operations during the year that
ended on 30 June.
(2) The annual report must include reports on progress in development of a
National Code for the Protection of Children as required by section 40 of
this Act.
The Minister must cause a copy of every report given to the Minister by
the Commissioner under this Division to be laid before each House of the
Parliament within 15 sitting days of that House after the report is received by
the Minister, unless the Commissioner states that the report should not be made
public.
In this Part, unless the contrary intention appears:
Advisory Committee means the Advisory Committee on Children
established by section 29.
member means a member of the Advisory Committee.
The Advisory Committee on Children is established.
(1) The Advisory Committee consists of such members as the Minister
determines.
Membership
(2) However, the Minister must ensure that the membership
includes:
(a) at least one person with extensive experience in each of the
following:
(i) care or welfare of children;
(ii) education of children;
(iii) children’s health;
(iv) Aboriginal or Torres Strait Islander children;
(v) child development or related matters; and
(b) at least one of each of the following:
(i) parents, grandparents or guardians;
(ii) persons who have at least 5 years experience in delivering services
to children;
(iii) persons who have undertaken academic research in a field related to
the welfare or development of children;
(iv) persons representing organisations in which children
participate.
Appointment
(3) The Minister must appoint members by written instrument.
Chair
(4) The Minister must appoint a member to be the Chair of the Advisory
Committee.
The functions of the Advisory Committee are:
(a) on its own initiative, or when requested by the Commissioner, to
advise the Commissioner on matters relevant to his or her functions;
and
(b) subject to any direction given by the Commissioner, to advise on and
promote community education, and community consultation, in relation to the
protection and well being of children and young people.
The Advisory Committee is to determine its own procedures.
The regulations may prescribe matters related to the members of the
Advisory Committee on Children including, but not limited to:
(a) term of appointment; and
(b) resignation; and
(c) disclosure of interests; and
(d) termination of appointment; and
(e) leave of absence; and
(f) payment of allowances.
(1) The Commissioner may establish committees in addition to the Advisory
Committee as he or she sees fit.
(2) A committee established under subsection (1) shall have such
membership, functions and conditions as are determined by the
Commissioner.
When dealing with matters relating to young people, the Commissioner must
seek advice from existing youth advocacy bodies and may seek advice from other
relevant bodies.
In addition to the Advisory Committee the Commissioner may consult any
existing committee or body in relation to children’s issues as he or she
sees fit.
The object of this Part is to ensure that there are national standards to
protect children from abuse and that they receive a minimum standard of care and
services.
(1) The Commissioner must consult with relevant Commonwealth agencies and
State and Territory bodies in order to develop a National Code for the
Protection of Children (the Code).
(2) The Code must include the Working with Children Check referred to in
Part 4, and may also include:
(a) procedures and protocols for the use of any national register of child
sex offenders; and
(b) standards for providers of services to children; and
(c) requirements for relevant government contracts to prevent child abuse;
and
(d) standards for procedures for the handling of complaints relating to
the provision of services to children; and
(e) requirements for compliance with the United Nations Convention on the
Rights of the Child; and
(f) any other matters prescribed in the regulations.
The Commissioner must make recommendations to the Minister on how the
Code could be implemented, including any legislative changes which could or
should be made and how the Code could be applied to Commonwealth agencies, State
and Territory bodies, businesses and organisations, and transitional
arrangements.
(1) The Commissioner must give to the Minister a draft Code and
recommendations under section 39 as soon as possible and within 5 years of
the appointment of the first Commissioner.
(2) The Commissioner must report on progress on development of the Code,
including the positions of each the States and Territories in relation to the
Code, in the annual report prepared under section 26.
(1) The object of this Part is to protect children by means of a check on
all those undertaking child-related employment or working as a child-related
volunteer.
(2) The welfare of children and, in particular, protecting them from child
abuse, is the main purpose of the Working with Children Check.
The main role of the Commissioner in relation to the Working with
Children Check is to co-ordinate the development and implementation of the check
and, in particular, to:
(a) work with Commonwealth agencies and other appropriate bodies to
implement the check for Commonwealth entities; and
(b) work with State and Territory bodies to develop a uniform approach and
implementation of the check throughout Australia.
In this Part, unless the contrary intention appears:
check means the Working with Children Check described by this
Part.
Commonwealth authority has the meaning given by the
Commonwealth Authorities and Companies Act 1997.
Commonwealth company has the meaning given by the
Commonwealth Authorities and Companies Act 1997.
Commonwealth entity means any of the following:
(a) a Commonwealth department or agency;
(b) a Commonwealth authority; or
(c) a Commonwealth company.
For the purposes of this Act, the Working with Children
Check is any or all of the following procedures with respect to a person
who is employed or who has applied to be employed in child-related employment by
an employer who is a Commonwealth entity or who works or applies to work as a
child-related volunteer in a Commonwealth entity:
(a) a check for any relevant criminal record of the person, for any
relevant apprehended violence orders made against the person or for any relevant
disciplinary proceedings completed against the person;
(b) any other probity check relating to the previous employment or other
activities of the person which the Commissioner considers relevant;
(c) the issuing of a suitability notice/card in respect of the
person.
(1) In respect of the check, the Commissioner must:
(a) develop procedures and administrative arrangements for the collection,
storage, disclosure and disposal of information required to carry out the check
under section 44; and
(b) develop standards and procedures related to the issuing of suitability
notices/cards; and
(c) make recommendations to the Minister concerning enforcement of the
check, and responsibilities of employees, employers, employment-related bodies,
volunteers and organisations; and
(d) make recommendations to the Minister about Commonwealth, State and
Territory legislative changes necessary for the extension of the check to all
child-related employment and child-related volunteers in Australia.
(2) In carrying out the tasks in subsection (1), the Commissioner
must consult with relevant Commonwealth agencies, State and Territory bodies,
businesses and organisations and develop such co-operative arrangements as are
necessary.
(3) The tasks in subsection (1) are to be completed within 2 years of
the appointment of the first Commissioner.
(1) Upon completion of the initial tasks under subsection 45(1), the
regulations may provide for the staged implementation of the check.
(2) The regulations may fix different dates for the commencement of
different requirements or obligations, for different kinds of employers or
organisations or for different kinds of child-related employment or
child-related volunteers.
(3) This section does not prevent the voluntary performance of any
proposed requirements before the date fixed by the regulations.
(4) The Commissioner may issue guidelines or draft requirements in respect
of the check.
The Governor-General may make regulations, not inconsistent with this Act
to be prescribed for carrying out or giving effect to this Act, prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.