2005 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Minister for Children, Youth and Family Support) Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Contents Page 1 Name of Act 2 2 Commencement 2 3 Legislation amended 2 4 Main objects of Act Section 6 (b) and (c) 2 5 Section 6 (e) 3 6 Section 8 3 7 New section 8A 4 8 Members of commission New section 12 (1) (b) 4 9 Section 12 (1) (b) to (e) 5 2004 159B Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 10 Commission's functions Section 14 (1) (b) and (c) 5 11 New section 14 (1) (g) 5 12 Section 14 (1) (g) to (i) 5 13 New division 3.3 6 14 Section 21 8 15 Divisions 3.3 to 3.6 (as amended) 8 16 Section 28 heading 8 17 New section 28 (b) 8 18 Section 28 (b) to (d) 9 19 Divisions 3.7 to 3.9 (as amended) 9 20 Section 40 9 21 New section 40A 9 22 Section 42 10 23 Who may make a complaint under this Act? Section 43 (1) (c) 10 24 Section 43 (2) (b) 11 25 Consideration without complaint or appropriate complainant Section 48 (2) 11 26 New section 51A 12 27 Information about complaints Section 95 (1) 12 28 Secrecy Section 99 (3) to (5) 13 29 Dictionary, note 2 13 30 Dictionary, note 2 13 31 Dictionary, definition of applicable standard 13 32 Dictionary, new definitions 14 33 Dictionary, definition of discrimination complaint 14 34 Dictionary, definition of incorporated document 15 35 Dictionary, new definition of service for children and young people 15 36 Dictionary, definition of service for people with a disability 15 37 Dictionary, new definition of young person 15 contents 2 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Schedule 1 Consequential amendments 16 Part 1.1 Legislation Act 2001 16 Part 1.2 Ombudsman Act 1989 16 Human Rights Commission (Children and Young People contents 3 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Minister for Children, Youth and Family Support) Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 A Bill for An Act to establish a children and young people commissioner, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows: 2004 159B Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Name of Act 1 This Act is the Human Rights Commission (Children and Young 2 People Commissioner) Amendment Act 2005. 3 2 Commencement 4 This Act commences on a day fixed by the Minister by written 5 notice. 6 Note 1 The naming and commencement provisions automatically commence on 7 the notification day (see Legislation Act, s 75 (1)). 8 Note 2 A single day or time may be fixed, or different days or times may be 9 fixed, for the commencement of different provisions (see Legislation 10 Act, s 77 (1)). 11 Note 3 If a provision has not commenced within 6 months beginning on the 12 notification day, it automatically commences on the first day after that 13 period (see Legislation Act, s 79). 14 3 Legislation amended 15 This Act amends the Human Rights Commission Act 2005. 16 Note This Act also amends the following legislation (see sch 1): 17 · Legislation Act 2001 18 · Ombudsman Act 1989. 19 4 Main objects of Act 20 Section 6 (b) and (c) 21 substitute 22 (b) to promote improvements in the provision of disability 23 services, health services, services for children and young 24 people and services for older people; 25 page 2 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] (c) to promote the rights of users of disability services, health 1 services, services for children and young people and services 2 for older people; 3 5 Section 6 (e) 4 substitute 5 (e) to establish a commission to provide-- 6 (i) an independent, fair and accessible process for the 7 resolution of discrimination complaints and complaints 8 between users and providers of disability services, health 9 services, services for children and young people and 10 services for older people; and 11 (ii) a process to encourage and assist users and providers of 12 disability services, health services, services for children 13 and young people, and services for older people, to make 14 improvements in the provision of services, particularly by 15 encouraging and assisting service users and providers to 16 contribute to the review and improvement of service 17 quality; 18 6 Section 8 19 omit everything before subsection (2), substitute 20 8 What is a disability service? 21 (1) A disability service is a service provided in the ACT specifically for 22 people with a disability or their carers. 23 Examples of services for people with a disability or their carers 24 1 a service that provides home help, personal care, home maintenance or 25 modification, food services, respite care, transport, assessment or referral of 26 support needs, education, training and skill development, information 27 services, coordination, case management and brokerage, recreation, 28 Human Rights Commission (Children and Young People page 3 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] advocacy, community access, accommodation support, rehabilitation, or 1 employment services, specifically for people with a disability or their carers 2 2 a service provided in association with the use of premises for the care, 3 treatment or accommodation of people with a disability 4 Note An example is part of the Act, is not exhaustive and may extend, but 5 does not limit, the meaning of the provision in which it appears (see 6 Legislation Act, s 126 and s 132). 7 7 New section 8A 8 insert 9 8A What is a service for children and young people? 10 A service for children and young people is a service provided in the 11 ACT specifically for children, young people, both children and 12 young people, or their carers. 13 Examples of services for children and young people and their carers 14 1 a service that provides care, respite care, transport, assessment or referral of 15 support needs, education, training and skill development, information 16 services, coordination, food services, case management and brokerage, 17 recreation, advocacy, community access, accommodation support, 18 rehabilitation or employment services specifically for children, young people, 19 or their carers 20 2 a service provided in relation to the use of premises for the care, treatment or 21 accommodation of children, young people, or their carers 22 3 a service provided in relation to an attendance centre, institution or shelter, 23 under the Children and Young People Act 1999 24 Note An example is part of the Act, is not exhaustive and may extend, but 25 does not limit, the meaning of the provision in which it appears (see 26 Legislation Act, s 126 and s 132). 27 8 Members of commission 28 New section 12 (1) (b) 29 insert 30 (b) the children and young people commissioner; 31 page 4 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 9 Section 12 (1) (b) to (e) 1 renumber as section 12 (1) (c) to (f) 2 10 Commission's functions 3 Section 14 (1) (b) and (c) 4 substitute 5 (b) encouraging and assisting users and providers of disability 6 services, health services, services for children and young 7 people, and services for older people, to make improvements in 8 the provision of services, particularly by encouraging and 9 assisting service users and providers to contribute to the review 10 and improvement of service quality; 11 (c) encouraging and assisting people providing disability services, 12 health services, services for children and young people and 13 services for older people, and people engaging in conduct that 14 may be complained about under this Act, to develop and 15 improve procedures for dealing with complaints; 16 11 New section 14 (1) (g) 17 insert 18 (g) referring to the public advocate under section 51A advocacy 19 matters about individual children or young people for whom 20 the chief executive under the Children and Young People 21 Act 1999 has parental responsibility; 22 12 Section 14 (1) (g) to (i) 23 renumber as section 14 (1) (h) to (j) 24 Human Rights Commission (Children and Young People page 5 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 13 New division 3.3 1 insert 2 Division 3.3 Children and young people 3 commissioner 4 19A Appointment of children and young people commissioner 5 (1) The Executive must appoint a person to be the Children and Young 6 People Commissioner. 7 Note 1 For the making of appointments (including acting appointments), see 8 the Legislation Act, pt 19.3. 9 Note 2 In particular, an appointment may be made by naming a person or 10 nominating the occupant of a position (see s 207). 11 (2) However, the Executive must not appoint a person as children and 12 young people commissioner unless satisfied that the person has the 13 experience or expertise necessary to exercise the functions of the 14 commissioner. 15 (3) The children and young people commissioner must not be appointed 16 for a term of longer than 5 years. 17 Note A person may be reappointed to a position if the person is eligible to be 18 appointed to the position (see Legislation Act, s 208 and dict, pt 1, 19 def appoint). 20 (4) The conditions of appointment of the children and young people 21 commissioner are the conditions agreed between the Executive and 22 the commissioner, subject to any determination under the 23 Remuneration Tribunal Act 1995. 24 Note The children and young people commissioner's appointment may be 25 ended under s 29. 26 page 6 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 19B Children and young people commissioner's functions 1 (1) The children and young people commissioner has the following 2 functions: 3 (a) to exercise functions for the commission in relation to services 4 for children and young people; 5 (b) to exercise any other function given to the commissioner under 6 this Act or any other territory law. 7 (2) The exercise of the function mentioned in subsection (1) (a) is 8 subject to any decision of the commission about the exercise of its 9 functions in relation to services for children and young people. 10 (3) In exercising the children and young people commissioner's 11 functions, the commissioner must endeavour to-- 12 (a) consult with children and young people in ways that promote 13 their participation in decision-making; and 14 (b) listen to and seriously consider the views of children and 15 young people; and 16 (c) ensure that the commission is accessible to children and young 17 people; and 18 (d) be sensitive to the linguistically and culturally diverse 19 backgrounds of children and young people. 20 19C Advisory committees for services for children and young 21 people 22 (1) The commission may establish advisory committees to assist the 23 commission to exercise its functions in relation to services for 24 children and young people. 25 (2) Without limiting the people who may be appointed to an advisory 26 committee, the commission may appoint children and young people, 27 Human Rights Commission (Children and Young People page 7 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] and people with experience or expertise in relation to services for 1 children and young people, to the committee. 2 14 Section 21 3 substitute 4 21 Disability and community services commissioner's 5 functions 6 (1) The disability and community services commissioner has the 7 following functions: 8 (a) to exercise functions for the commission in relation to 9 disability services; 10 (b) to exercise any other function given to the commissioner under 11 this Act or any other territory law. 12 (2) The exercise of the function mentioned in subsection (1) (a) is 13 subject to any decision of the commission about the exercise of its 14 functions in relation to disability services. 15 15 Divisions 3.3 to 3.6 (as amended) 16 renumber as divisions 3.4 to 3.7 17 16 Section 28 heading 18 substitute 19 28 Application of div 3.8 20 17 New section 28 (b) 21 insert 22 (b) the children and young people commissioner; 23 page 8 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 18 Section 28 (b) to (d) 1 renumber as section 28 (c) to (e) 2 19 Divisions 3.7 to 3.9 (as amended) 3 renumber as divisions 3.8 to 3.10 4 20 Section 40 5 omit everything before paragraph (a), substitute 6 40 When may someone complain about a disability service? 7 A person may complain to the commission about a disability service 8 if-- 9 21 New section 40A 10 insert 11 40A When may someone complain about a service for 12 children and young people? 13 A person may complain to the commission about a service for 14 children and young people if-- 15 (a) the service is not being provided appropriately; or 16 (b) the provider of the service has acted inconsistently with any of 17 the following: 18 (i) the generally accepted standard of service delivery 19 expected of a provider of the kind of service to which the 20 complaint relates; 21 (ii) any other standard prescribed by regulation; or 22 (c) the service is not being provided. 23 Human Rights Commission (Children and Young People page 9 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 22 Section 42 1 substitute 2 42 What complaints may be made under this Act? 3 (1) The following complaints may be made under this Act: 4 (a) a children and young people service complaint; 5 (b) a disability service complaint; 6 (c) a complaint (a discrimination complaint) about an unlawful 7 act under the Discrimination Act 1991, part 3 (Unlawful 8 discrimination), part 5 (Sexual harassment), section 66 9 (Unlawful vilification--race, sexuality etc) or part 7 (Other 10 unlawful acts); 11 (d) a health service complaint; 12 (e) an older people service complaint; 13 (f) a complaint on a ground mentioned in the Health Records 14 (Privacy and Access) Act 1997, section 18. 15 Note 1 A health professional report is dealt with by way of 16 commission-initiated consideration (see s 94 (2)). 17 Note 2 The commission may also consider matters that have not been raised by 18 complaints under div 3.5 (see s 48). 19 (2) To remove any doubt, a complaint that may be made under this Act 20 is made under this division. 21 23 Who may make a complaint under this Act? 22 Section 43 (1) (c) 23 substitute 24 (c) if the aggrieved person is a child or young person--a parent or 25 guardian of the aggrieved person; or 26 page 10 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 24 Section 43 (2) (b) 1 substitute 2 (b) an aggrieved person may make a complaint under 3 subsection (1) (a) even though the person is under a legal 4 disability (for example, if a child is aggrieved, the child may 5 make a complaint); and 6 Note An example is part of the Act, is not exhaustive and may extend, 7 but does not limit, the meaning of the provision in which it 8 appears (see Legislation Act, s 126 and s 132). 9 (c) if a complaint is made under subsection (1) (f)--the 10 complainant cannot require the complaint to be considered. 11 25 Consideration without complaint or appropriate 12 complainant 13 Section 48 (2) 14 substitute 15 (2) The commission may, on its own initiative, also consider (by a 16 commission-initiated consideration) a complaint that is a children 17 and young people service complaint, disability service complaint, 18 health service complaint or older people service complaint, if-- 19 (a) the person who made the complaint could not have made the 20 complaint under section 43 (1) (a) to (d); and 21 (b) the commission does not approve the person under 22 section 43 (1) (e) to make the complaint for the aggrieved 23 person. 24 Note Under s 43 (1) (a) to (e), complaints may be made by an aggrieved 25 person, an agent of an aggrieved person, a parent or guardian of an 26 aggrieved person who is a child or young person, a person with 27 guardianship or control of an aggrieved person or a person approved by 28 the commission to make the complaint on an aggrieved person's behalf. 29 Human Rights Commission (Children and Young People page 11 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 26 New section 51A 1 insert 2 51A Referral of advocacy matters 3 (1) This section applies to a children and young people complaint if-- 4 (a) the complaint relates to a child or young person; and 5 (b) the chief executive under the Children and Young People 6 Act 1999 has parental responsibility for the child or young 7 person. 8 (2) The commission may, at any time, refer the complaint, or a matter 9 that forms part of the complaint, to the public advocate for advocacy 10 if satisfied that-- 11 (a) it is in the best interests of the child or young person that the 12 complaint or matter be referred for advocacy; and 13 (b) the complaint or matter is appropriate for advocacy by the 14 public advocate. 15 (2) The commission may continue to consider a complaint that has been 16 referred, or part of which has been referred, for advocacy. 17 27 Information about complaints 18 Section 95 (1) 19 substitute 20 (1) This section applies to the following services: 21 (a) a disability service; 22 (b) a health service; 23 (c) a service for children and young people; 24 (d) a service for older people. 25 page 12 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 28 Secrecy 1 Section 99 (3) to (5) 2 substitute 3 (3) Subsection (2) does not apply if the record is made, or the 4 information is divulged-- 5 (a) under this Act or another territory law; or 6 (b) in relation to the exercise of a function, as a person to whom 7 this section applies, under this Act or another territory law. 8 (4) Subsection (2) does not apply to the divulging of protected 9 information about someone with the person's consent. 10 (5) A person to whom this section applies need not divulge protected 11 information to a court, or produce a document containing protected 12 information to a court, unless it is necessary to do so for this Act or 13 another territory law. 14 29 Dictionary, note 2 15 omit 16 · child 17 30 Dictionary, note 2 18 insert 19 · public advocate 20 31 Dictionary, definition of applicable standard 21 substitute 22 applicable standard, in relation to a service provider, means 23 anything mentioned in any of the following provisions that applies 24 to the provider: 25 Human Rights Commission (Children and Young People page 13 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] (a) section 39 (1) (b) (When may someone complain about a 1 health service?); 2 (b) section 40 (b) (When may someone complain about a disability 3 service?); 4 (c) section 40A (b) (When may someone complain about a service 5 for children and young people?); 6 (d) section 41 (b) (When may someone complain about a service 7 for older people?). 8 32 Dictionary, new definitions 9 insert 10 child means a person who is under 12 years old. 11 children and young people commissioner means the Children and 12 Young People Commissioner under section 19A. 13 children and young people service complaint means a complaint 14 about a service for children and young people that may be made, or 15 is made, under section 40A. 16 disability service--see section 8. 17 discrimination commissioner means the Discrimination 18 Commissioner under section 22. 19 33 Dictionary, definition of discrimination complaint 20 substitute 21 discrimination complaint--see section 42 (1) (c). 22 page 14 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 34 Dictionary, definition of incorporated document 1 substitute 2 incorporated document means-- 3 (a) the standards mentioned in section 39 (1) (b) (v) (When may 4 someone complain about a health service?); or 5 (b) the standards mentioned in section 40 (b) (i) or (iv) (When may 6 someone complain about a disability service?); or 7 (c) an instrument applied, adopted or incorporated by a statutory 8 instrument under this Act. 9 35 Dictionary, new definition of service for children and 10 young people 11 insert 12 service for children and young people--see section 8A. 13 36 Dictionary, definition of service for people with a 14 disability 15 omit 16 37 Dictionary, new definition of young person 17 insert 18 young person means a person who is 12 years old or older, but not 19 yet an adult. 20 Human Rights Commission (Children and Young People page 15 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.1 Legislation Act 2001 Amendment [1.1] Schedule 1 Consequential amendments 1 (see s 3) 2 Part 1.1 Legislation Act 2001 3 [1.1] Dictionary, part 1, new definition of children and young 4 people commissioner 5 insert 6 children and young people commissioner means the Children and 7 Young People Commissioner under the Human Rights Commission 8 Act 2005. 9 Part 1.2 Ombudsman Act 1989 10 [1.2] Section 5 (2) (n) 11 substitute 12 (n) action taken by an agency-- 13 (i) for the purpose or in the course of providing, or 14 purporting to provide, a disability service, a health 15 service, a service for children and young people or a 16 service for older people; or 17 (ii) in refusing to provide a disability service, a health 18 service, a service for children and young people or a 19 service for older people; or 20 page 16 Human Rights Commission (Children and Young People Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Consequential amendments Part 1.2 Ombudsman Act 1989 Amendment [1.3] [1.3] Section 5 (6), new definitions 1 insert 2 disability service--see the Human Rights Commission Act 2005, 3 section 8. 4 service for children and young people--see the Human Rights 5 Commission Act 2005, section 8A. 6 [1.4] Section 5 (6), definition of service for people with a 7 disability 8 omit 9 Endnotes 1 Presentation speech Presentation speech made in the Legislative Assembly on 2005. 2 Notification Notified under the Legislation Act on 2005. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2005 Human Rights Commission (Children and Young People page 17 Commissioner) Amendment Bill 2005 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au