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This is a Bill, not an Act. For current law, see the Acts databases.

COMMONWEALTH COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE BILL 2010

2008-2009-2010
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Commonwealth Commissioner for
Children and Young People Bill 2010
No. , 2010
(Senator Hanson-Young)
A Bill for an Act to establish an independent Office
of the Commonwealth Commissioner for Children
and Young People, and for related purposes
i Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
Contents
Part 1--Preliminary
1
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
2
3 Object
.................................................................................................
2
4
Principles underlying this Act ............................................................ 3
5 Definitions
.........................................................................................
4
6
Operation of State and Territory laws ................................................ 4
7
Extension to external Territories ........................................................ 4
Part 2--Office of the Commonwealth Commissioner for
Children and Young People
5
Division 1--Establishment
5
8 Establishment
.....................................................................................
5
Division 2--Functions and powers of Commissioner
6
9
Functions and powers of Commissioner ............................................ 6
10
How the Commissioner is to perform functions ................................ 7
11 Commissioner
must
act independently .............................................. 7
12 Cooperation
with
other agencies ........................................................ 8
Part 3--Appointments and staffing for the Office of the
Commissioner
9
Division 1--The Commissioner
9
13 Appointment
......................................................................................
9
14
General terms and conditions of appointment ................................... 9
15 Restriction
on
outside employment ................................................... 9
16 Remuneration
...................................................................................
10
17
Leave of absence .............................................................................. 10
18 Resignation
......................................................................................
10
19 Termination
of
appointment ............................................................ 10
20 Acting
appointments
........................................................................
11
21 Disclosure
of
interests ...................................................................... 12
22 Appointment
of
Deputy Commissioners .......................................... 12
Division 2--Staff, consultants and delegations
13
23 Staff
.................................................................................................
13
24 Consultants
......................................................................................
13
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010 ii
Part 4--Other matters
14
25
Report to the United Nations Committee on the Rights of the
Child ................................................................................................ 14
26 Annual
reports
.................................................................................
14
27
Review of operation of Act .............................................................. 15
28
Privileges and immunities of the Crown .......................................... 15
29 Commissioner
etc.
not to be sued .................................................... 15
30 Regulations
......................................................................................
15
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010 1
A Bill for an Act to establish an independent Office
1
of the Commonwealth Commissioner for Children
2
and Young People, and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act may be cited as the Commonwealth Commissioner for
8
Children and Young People Act 2010.
9
Part 1 Preliminary
Section 2
2 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provision(s) Commencement
Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Sections 3 to
30
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
7
passed by both Houses of the Parliament and assented to. It will not be
8
expanded to deal with provisions inserted in this Act after assent.
9
(2) Column 3 of the table contains additional information that is not
10
part of this Act. Information in this column may be added to or
11
edited in any published version of this Act.
12
3 Object
13
(1) The object of this Act is to establish an independent statutory
14
office of Commonwealth Commissioner for Children and Young
15
People.
16
(2) The Commissioner will:
17
(a) advocate at a national level for the needs, views and rights of
18
people below the age of 18; and
19
Preliminary Part 1
Section 4
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
3
(b) monitor the development and application of laws affecting
1
children and young people; and
2
(c) co-ordinate related policies, programs and funding across
3
Australia, which impact on children and young people; and
4
(d) proactively involve children and young people in the
5
decisions that affect them.
6
(3) The Parliament intends the establishment of the Commissioner as a
7
measure to assist Australia in meeting its international obligations
8
under the United Nations Convention on the Rights of the Child,
9
particularly as they relate to the following Articles:
10
(a) non-discrimination in the applicability of children's rights
11
(Article 2);
12
(b) the primacy of the consideration of the child's best interests
13
(Article 4);
14
(c) the child's right to survival and development (Article 6(1));
15
(d) the child's right to participation in decision-making (Article
16
12).
17
4 Principles underlying this Act
18
The following principles, drawn from the United Nations
19
Convention on the Rights of the Child, are to be applied in
20
exercising powers and performing duties under this Act:
21
(a) every child is a valued member of society; and
22
(b) the family has the primary responsibility for the upbringing
23
and development of its children and should be supported in
24
that role; and
25
(c) every child is entitled to be protected from abuse,
26
exploitation and discrimination; and
27
(d) every child is entitled to form and express views and have
28
those views taken into account in a way that has regard to the
29
child's age and maturity; and
30
(e) in decisions involving a child, the child's best interests are of
31
primary concern.
32
Part 1 Preliminary
Section 5
4 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
5 Definitions
1
(1) In this Act:
2
child, used in relation to the United Nations Convention on the
3
Rights of the Child, means a person below the age of 18 years.
4
children and young people includes all people below the age of 18
5
years.
6
Commissioner means the Commonwealth Commissioner for
7
Children and Young People established under section 8.
8
6 Operation of State and Territory laws
9
This Act is not intended to exclude or limit the operation of a law
10
of a State or Territory that is capable of operating concurrently
11
with this Act.
12
7 Extension to external Territories
13
This Act extends to every external Territory.
14
Office of the Commonwealth Commissioner for Children and Young People Part 2
Establishment Division 1
Section 8
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
5
Part 2--Office of the Commonwealth
1
Commissioner for Children and Young
2
People
3
Division 1--Establishment
4
8 Establishment
5
(1) The Office of the Commonwealth Commissioner for Children and
6
Young People is established by this section.
7
(2) The Office of the Commissioner consists of:
8
(a) the Commissioner; and
9
(b) the Deputy Commissioners (if any) appointed under
10
section 22 to assist the Commissioner; and
11
(b) the staff mentioned in Part 3.
12
(3) For the purposes of the Public Service Act 1999:
13
(a) the Commissioner, Deputy Commissioners (if any) and the
14
staff mentioned in Part 3 together constitute a Statutory
15
Agency; and
16
(b) the Commissioner is the Head of that Statutory Agency.
17
Note:
The Commissioner holds an office equivalent to that of a Secretary of
18
a Department (see the definition of Agency Head in section 7 of the
19
Public Service Act 1999).
20
Part 2 Office of the Commonwealth Commissioner for Children and Young People
Division 2 Functions and powers of Commissioner
Section 9
6 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
Division 2--Functions and powers of Commissioner
1
9 Functions and powers of Commissioner
2
(1) The functions of the Commissioner are as follows:
3
(a) providing national leadership in monitoring and advocating
4
for the wellbeing of Australian children and young people;
5
(b) promoting the rights of all children and young people
6
nationally, to meet Australia's international obligations;
7
(c) advancing the status of children and young people in
8
Australia, including Indigenous children and young people
9
and other groups identified as being at risk, by:
10
(i) reviewing existing laws;
11
(ii) proposing new policies; and
12
(iii) conducting research, undertaking inquiries and reporting
13
to Parliament;
14
(d) promoting and protecting the rights of children and young
15
people in immigration detention, or children whose parents or
16
guardians are in immigration detention;
17
(e) in appropriate cases, acting as the legal guardian of
18
unaccompanied children and young people who arrive in
19
Australia without the requisite visa or other authority for
20
entry into Australia;
21
(f) promoting public education programs about, and ensuring
22
strong investment in, early childhood development;
23
(g) proactively involving children and young people in decisions
24
that affect them;
25
(h) intervening in legal cases involving the rights of children and
26
young people;
27
(i) co-ordinating policies, programs and funding which impact
28
on children and young people, between federal, state,
29
territory and local governments;
30
(j) undertaking any other function conferred on the
31
Commissioner by this Act or any other law.
32
Office of the Commonwealth Commissioner for Children and Young People Part 2
Functions and powers of Commissioner Division 2
Section 10
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
7
(2) The Commissioner has power to do all things necessary or
1
convenient to be done for or in connection with the performance of
2
functions conferred by this section.
3
(3) To avoid doubt, the functions and powers of the Commissioner
4
apply in relation to:
5
(a) all children and young people who are Australian citizens;
6
(b) all children and young people who are Australian residents;
7
(c) all children and young people in Australia, including every
8
external territory, regardless of their citizenship or residency
9
status.
10
10 How the Commissioner is to perform functions
11
In performing the Commissioner's functions, the Commissioner
12
must:
13
(a) consult with children and young people in ways appropriate
14
to their age and maturity; and
15
(b) listen to and seriously consider the concerns, views and
16
wishes of children and young people; and
17
(c) adopt work practices that ensure the Office of the
18
Commissioner is accessible to children and young people and
19
encourages their participation; and
20
(d) consult with parents and guardians of children and young
21
people; and
22
(e) consult with educators; and
23
(f) consult with relevant Commonwealth agencies, State and
24
Territory bodies and other organisations; and
25
(g) refer any individual matters to the appropriate authority.
26
11 Commissioner must act independently
27
(1) In performing his or her functions, the Commissioner:
28
(a) must act independently and in a way that promotes and
29
protects the rights, interests and well-being of children and
30
young people; and
31
(b) is not under the control or direction of the Minister.
32
Part 2 Office of the Commonwealth Commissioner for Children and Young People
Division 2 Functions and powers of Commissioner
Section 12
8 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
(2) The Commissioner may report to the Parliament on any matter
1
related to his or her functions.
2
12 Cooperation with other agencies
3
(1) The Commissioner and other Commonwealth agencies that provide
4
or deal with services or issues affecting children and young people
5
must work in cooperation in the exercise of their respective
6
functions.
7
(2) The Commissioner must consult with State and Territory
8
Governments to develop agreements concerning cooperation and
9
interaction between the Office of the Commissioner and relevant
10
State and Territory bodies, including in connection with the
11
provision of information or access to documents required by the
12
Commissioner in relation to his or her functions.
13
Appointments and staffing for the Office of the Commissioner Part 3
The Commissioner Division 1
Section 13
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
9
Part 3--Appointments and staffing for the Office of
1
the Commissioner
2
Division 1--The Commissioner
3
13 Appointment
4
(1) The Commissioner is to be appointed by the Governor-General, by
5
written instrument.
6
Note:
The Commissioner is eligible for reappointment: see subsection
7
33(4A) of the Acts Interpretation Act 1901.
8
(2) A person may only be appointed as the Commonwealth
9
Commissioner for Children and Young People if the Minister is
10
satisfied that:
11
(a) the person has appropriate qualifications, knowledge or
12
experience and is of good character; and
13
(b) the person has a demonstrated commitment to, and capacity
14
to advance the rights, interests and well-being of, children
15
and young people.
16
(3) Whenever a vacancy occurs in the office of Commissioner, an
17
appointment must be made to the office as soon as practicable.
18
14 General terms and conditions of appointment
19
(1) The Commissioner holds office for the period specified in the
20
instrument of appointment. The period must not exceed 5 years.
21
(2) The Commissioner holds office on a full-time basis.
22
(3) The Commissioner holds office on the terms and conditions (if
23
any), in relation to matters not covered by this Act, that are
24
determined by the Governor-General.
25
15 Restriction on outside employment
26
The
Commissioner must not engage in paid employment outside
27
the duties of his or her office without the Minister's approval.
28
Part 3 Appointments and staffing for the Office of the Commissioner
Division 1 The Commissioner
Section 16
10 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
16 Remuneration
1
(1) The Commissioner is to be paid the remuneration that is
2
determined by the Remuneration Tribunal. If no determination of
3
remuneration by the Tribunal is in operation, the Commissioner is
4
to be paid the remuneration that is prescribed by the regulations.
5
(2) The Commissioner is to be paid the allowances that are prescribed
6
by the regulations.
7
(3) This section has effect subject to the Remuneration Tribunal Act
8
1973.
9
17 Leave of absence
10
(1) The Commissioner has the recreation leave entitlements that are
11
determined by the Remuneration Tribunal.
12
(2) The Minister may grant the Commissioner leave of absence, other
13
than recreation leave, on the terms and conditions as to
14
remuneration or otherwise that the Minister determines.
15
18 Resignation
16
(1) The Commissioner may resign his or her appointment by giving
17
the Governor-General a written resignation.
18
(2) The resignation takes effect on the day it is received by the
19
Governor-General or, if a later day is specified in the resignation,
20
on that later day.
21
19 Termination of appointment
22
(1) The Governor-General may terminate the appointment of the
23
Commissioner for misbehaviour or physical or mental incapacity.
24
(2) The Governor-General must terminate the appointment of the
25
Commissioner if any of the following apply:
26
(a)
the
Commissioner:
27
(i) becomes bankrupt; or
28
Appointments and staffing for the Office of the Commissioner Part 3
The Commissioner Division 1
Section 20
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
11
(ii) applies to take the benefit of any law for the relief of
1
bankrupt or insolvent debtors; or
2
(iii) compounds with his or her creditors; or
3
(iv) makes an assignment of his or her remuneration for the
4
benefit of his or her creditors;
5
(b) the Commissioner is absent, except on leave of absence, for
6
14 consecutive days or for 28 days in any 12 months;
7
(c) the Commissioner engages, except with the Minister's
8
approval, in paid employment outside the duties of his or her
9
office;
10
(d) the Commissioner fails, without reasonable excuse, to
11
comply with section 21 (disclosure of interests).
12
20 Acting appointments
13
(1) The Minister may, by written instrument, appoint a person to act as
14
Commissioner:
15
(a) during a vacancy in the office of Commissioner, whether or
16
not an appointment has previously been made to the office;
17
or
18
(b) during any period, or during all periods, when the
19
Commissioner:
20
(i) is absent from duty or from Australia; or
21
(ii) is, for any other reason, unable to perform the duties of
22
the office of Commissioner.
23
(2) A person appointed to act during a vacancy mentioned in
24
paragraph (1)(a) must not act for more than 12 months.
25
(3) A person must not be appointed to act as Commissioner unless the
26
Minister is satisfied that he or she is qualified, as mentioned in
27
subsection 13(2), to be appointed as Commissioner.
28
(4) Anything done by or in relation to a person purporting to act under
29
an appointment is not invalid merely because of any of the
30
following:
31
(a) the occasion for the appointment had not arisen;
32
Part 3 Appointments and staffing for the Office of the Commissioner
Division 1 The Commissioner
Section 21
12 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
(b) there was a defect or irregularity in connection with the
1
appointment;
2
(c) the appointment had ceased to have effect;
3
(d) the occasion to act had not arisen or had ceased.
4
Note:
See sections 20 and 33A of the Acts Interpretation Act 1901.
5
21 Disclosure of interests
6
The Commissioner must give written notice to the Minister of all
7
interests, pecuniary or otherwise, that the Commissioner has or
8
acquires and that conflict or could conflict with the proper
9
performance of the Commissioner's functions.
10
22 Appointment of Deputy Commissioners
11
(1) The Governor-General may appoint one or more Deputy
12
Commissioners to assist the Commissioner.
13
(2) Deputy Commissioners are appointed by written instrument setting
14
out a specified period of appointment, a specified project or a
15
specified function to be carried out and any other terms and
16
conditions of appointment.
17
(3) A person may only be appointed as a Deputy Commissioner for
18
Children and Young People if the Minister is satisfied that:
19
(a) the person has appropriate qualifications, knowledge or
20
experience and is of good character; and
21
(b) the person has a demonstrated commitment to, and capacity
22
to advance the rights, interests and well-being of, children
23
and young people.
24
Appointments and staffing for the Office of the Commissioner Part 3
Staff, consultants and delegations Division 2
Section 23
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
13
Division 2--Staff, consultants and delegations
1
23 Staff
2
The staff of the Office of the Commissioner must be persons
3
engaged under the Public Service Act 1999.
4
24 Consultants
5
The Commissioner may, on behalf of the Commonwealth, engage
6
consultants to assist in the performance of the functions and the
7
exercise of the powers of the Commissioner.
8
Part 4 Other matters
Division 2 Staff, consultants and delegations
Section 25
14 Commonwealth Commissioner for Children and Young People Bill 2010 No. ,
2010
Part 4--Other matters
1
25 Report to the United Nations Committee on the Rights of the
2
Child
3
(1) The Commissioner is responsible for preparation of reports on
4
behalf of Australia to the United Nations Committee on the Rights
5
of the Child under the terms of the United Nations Convention on
6
the Rights of the Child.
7
(2) In preparing such reports, the Commissioner must consult with all
8
relevant Commonwealth agencies, State and Territory bodies and
9
non-government organisations.
10
(3) Each report prepared by the Commissioner under subsection (1)
11
must be given to the Minister who must transmit the report to the
12
Secretary-General of the United Nations as soon as practicable
13
after receiving it.
14
(4) Nothing in this section prevents the Minister or another Minister of
15
the Commonwealth from preparing and transmitting to the
16
Secretary-General of the United Nations other reports to the United
17
Nations Committee on the Rights of the Child on behalf of
18
Australia.
19
26 Annual reports
20
(1) The Commissioner must, as soon as practicable after 30 June in
21
each year, prepare and give to the Minister a report on the
22
operations of the Office of the Commissioner during that year.
23
Note:
See also section 34C of the Acts Interpretation Act 1901, which
24
contains extra rules about annual reports.
25
(2) The Minister must cause a copy of the report to be laid before each
26
House of the Parliament within 15 sitting days of that House after
27
the report is received.
28
Other matters Part 4
Staff, consultants and delegations Division 2
Section 27
Commonwealth Commissioner for Children and Young People Bill 2010 No. , 2010
15
27 Review of operation of Act
1
(1) The Minister must cause a review of the operation of this Act to be
2
undertaken.
3
(2) The review must:
4
(a) start 2 years after the commencement of this section; and
5
(b) be completed within 6 months.
6
(3) The Minister must cause a written report about the review to be
7
prepared.
8
(4) The Minister must cause a copy of the report to be laid before each
9
House of the Parliament within 15 sitting days of that House after
10
the Minister receives the report.
11
28 Privileges and immunities of the Crown
12
The Office of the Commissioner has the privileges and immunities
13
of the Crown.
14
29 Commissioner etc. not to be sued
15
(1) This section applies to a person if:
16
(a) the person is the Commissioner; or
17
(b) the person is acting under the direction or authority of the
18
Commissioner.
19
(2) The person is not liable to an action, suit or proceeding in relation
20
to an act done or omitted to be done in good faith in the exercise or
21
purported exercise of any power or authority for the purposes of
22
performing a function conferred under section 9.
23
30 Regulations
24
The Governor-General may make regulations prescribing matters:
25
(a) required or permitted by this Act to be prescribed; or
26
(b) necessary or convenient to be prescribed for carrying out or
27
giving effect to this Act.
28

 

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