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Children's Commissioner and Children's Services Appeals Tribunals
CHILDREN'S COMMISSIONER AND
CHILDREN'S SERVICES APPEALS
TRIBUNALS BILL 1996
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the legislation
The objectives of the Bill are to establish and provide for the operation of
a Children's Commission, consisting of the Children's Commissioner and
the staff of the Commission, and to consolidate mechanisms for appeal of
administrative decisions made under children's services legislation.
Reasons for the Bill
On 1st May 1996 the Queensland Parliament resolved to call upon the
Government to establish immediately an independent authority to fully
investigate accusations of paedophilia in this State. During the debate
leading to the resolution, repeated reference was made to the concept of a
children's commission which amongst other functions would accept and
investigate complaints of paedophilia and child abuse.
Experience with a Child Sexual Abuse Hotline, established shortly after
the resolution of the Parliament, has demonstrated, as already revealed in
New South Wales in the Wood Royal Commission proceedings, that the
extent of child abuse in Queensland was perhaps greater than might have
been expected. In its first eight weeks of operation, the Hotline received
some 270 allegations of child abuse. Significantly many of the callers to the
Hotline have reported that they have never previously reported the alleged
child abuse as they regard the available mechanisms as inappropriate.
The resolution of the Parliament occurred against the background of
increasing concern for children's issues at both the national and international
levels.
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Children's Commissioner and Children's Services Appeals Tribunals
At the national level, the proceedings of the Wood Royal Commission in
New South Wales have focussed public attention closely on paedophile
activity. Similarly the launching of an enquiry by the Department of
Foreign Affairs and Trade into paedophile activity within that Department
along with media reports of sex tours to overseas countries have served to
heighten public awareness.
As stated in the June 1996 issue of "Trends and Issues in Crime and
Criminal Justice" by the Australian Institute of Criminology, paedophilia is
part of a very complex web. Along with other forms of child abuse it can
result in later social problems such as youth homelessness, childhood
prostitution, juvenile offending, mental health problems and drug and
alcohol abuse.
In the Institute's view, although appropriate sentencing and treatment
programs are a necessary part of criminal justice response to sex offenders,
programs which prevent all types of child abuse need to be co-ordinated.
The nature of paedophilia is such that its prevention, punishment and
treatment cannot be addressed as a single issue. Being a multi-faceted
issue, child abuse in its various forms calls for a multi-faceted response
from society. In keeping with growing international practice it seems
preferable that allegations of paedophilia in Queensland be addressed within
the context of a Children's Commission with responsibilities for a
comprehensive range of children's issues.
In his 1985 report into sexual offences involving children, Mr DG
Sturgess QC noted that strengthening of the criminal laws is an insufficient
response to protect our children from sexual harm. He advocated that the
matter be approached from a number of directions. High on his list of other
approaches was strengthening traditional family life. The present Bill is
designed to give legislative expression within the present context to the
spirit of Chapter 8 of the Sturgess Report.
Norway was the first country in the world to appoint an official in 1981
to address the interests of children although a non-government agency in
Sweden had appointed a similar person in 1971. At present some eight
jurisdictions, including New Zealand and British Columbia, have followed
in their steps. South Australia in 1983 established a Children's Interests
Bureau with some of a Commissioner's functions.
The general role of a Children's Commissioner as summarised by Ian
Hassall, born of experience in New Zealand, is to serve as a pivot in a
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Children's Commissioner and Children's Services Appeals Tribunals
"network of agencies and interests incorporating:
· a complaints mechanism;
· a research programme;
· lobbying both within government and without;
· a public articulation of children's rights; and
· a public presence of children."
A Children's Commissioner is expected to be active either directly in all
of these areas or by encouraging and sponsoring others.
Ratification by some 180 members of the United Nations, including
Australia, of the UN Convention on the Rights of the Child since 1989 has
quickened demands in such member countries for the introduction of
bodies akin to the Children's Commission pioneered in Norway. In
Australia the President of the NSW Court of Appeal and the Chief Justice
of the Family Court of Australia have been consistent advocates of such
development.
Ways in which the objectives are to be achieved in the Bill
The Children's Commission is to conduct its affairs independently. It is
not subject to the control or direction of a Minister or a Department. The
Commissioner may, however, be attached to a Department to ensure it is
given administrative support services for the effective and efficient conduct
of its functions.
The Commission is required to perform its functions within a
framework of recognition that it is the parents, or legal guardians, of
children who have the primary responsibility for the upbringing and
development of their children; the role of the State is to support and assist.
The Children's Commissioner will deal with complaints from children
(and young people and adults seeking to help them) by seeking to remedy
their grievances and promote their interests. In this context the Children's
Commissioner will have the specific task of monitoring the processing by
public and private entities of complaints about child abuse and neglect and
initiating appropriate consequent action. Such action may involve reference
of complaints to the Police if criminal actions appear to be involved.
The Children's Commission is mandated to co-operate with the Police in
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Children's Commissioner and Children's Services Appeals Tribunals
investigating allegations of offences against children. It is to confer and
collaborate with other relevant authorities. These include the Police,
Criminal Justice Commission and Parliamentary Commissioner for
Administrative Investigations.
Additionally the Children's Commission will be responsible for a
program of official visitors to residential facilities such as the Challinor
Centre and for establishing Appeal Tribunals to hear appeals of decisions,
specified by proposed amendments to three existing children's services
acts.
This consolidated appeals mechanism will replace the existing separate
appeal mechanisms under the Adoption of Children Act 1964, Child Care
Act 1991 and proposed Children's Protection Act to replace the Childrens
Services Act 1965.
Alternatives to the Bill
An enquiry into paedophilia in Queensland could have been established
in response to the Parliament's resolution under the Commissions of
Inquiry Act 1950. This approach was not pursued by the Government
since it would have constituted a piecemeal response to a complex of
inter-related issues, it may have focussed media and public attention on a
single issue to the neglect of other important issues, and it would have been
out of step with growing national and international practice. It would also
have largely repeated the work of the Sturgess Report.
The Government believes that nothing short of world best practice is
deserved by Queensland children and accordingly has decided to establish
the office of Children's Commissioner whose functions will permit the
investigation of allegations of paedophilia but will encompass other issues
also important for the children of Queensland.
Estimated cost for government implementation
Provision of $750,000 has been made for in the 1996-97 Budget of the
Department of Families, Youth and Community Care to cover the costs of
the Commission and Appeal Tribunals.
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Children's Commissioner and Children's Services Appeals Tribunals
Consistency with fundamental legislative principals
Sections 6, 8 and 9 of the Criminal Law (Rehabilitation of Offenders)
Act 1986 do not apply to the appointment of the Children's Commissioner
or members of the Children's Services Appeals Tribunal.
Consultation
The resolution of the Parliament has been taken to represent community
views through their elected representation. The public discussion that has
occurred since Australia ratified the UN Convention the Rights of the Child
in 1990 is also taken to support the proposal, especially the numerous calls
by authoritative persons and organisations during that period.
Nevertheless discussions have occurred with a range of interested
persons and organisations. To date these have included the Deputy Leader
and some other members of the Opposition who have indicated bipartisan
support for the Bill, the Member for Gladstone, Office of the Parliamentary
Commissioner for Administrative Investigations, Departments of
Education, Health, Justice and Police, President of the Children's Court,
Lady Gowrie Child Care Centre, and Creche and Kindergarten Association.
The Bill has been cleared by the Litigation Reform Commission.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 provides that the short title of the Act will be the Children's
Commissioner and Children's Services Appeals Tribunals Act 1996.
Clause 2 provides for the commencement of the Act to be fixed by
proclamation.
Clause 3 provides for a dictionary of terms as set out in schedule 2.
Clause 4 provides that the Act binds the Crown.
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Children's Commissioner and Children's Services Appeals Tribunals
PART 2--CHILDREN'S COMMISSIONER AND
CHILDREN'S COMMISSION
Clause 5 provides for a Children's Commission to consist of the
Children's Commissioner and the staff of the Commission.
Clause 6 provides that the Children's Commissioner controls the
Commission but that the Commission may be attached to a Department to
ensure administrative support services for the Commission.
Clause 7 provides for the independence of the Children's Commissioner.
Clause 8 provides for the functions of the Children's Commissioner.
Clause 9 provides that the Children's Commissioner may obtain
assistance from anyone whom the Children's Commissioner considers
appropriately qualified or experienced to give such advice.
Clause 10 provides for the appointment of the Children's Commissioner
by the Governor in Council. It details the qualifications and
disqualifications for appointment and excludes the Children's
Commissioner from the public service.
Clause 11 provides that the Children's Commissioner is to be appointed
for a term not longer than 5 years.
Clause 12 provides for the terms and conditions of appointment of the
Children's Commissioner to be determined by the Governor in Council.
Clause 13 provides that in the event of an officer of the public service
being appointed Children's Commissioner, that officer retains all rights to
which the officer would otherwise be entitled within the public service.
Clause 14 provides that the Minister may grant leave of absence to the
Children's Commissioner.
Clause 15 provides that the Children's Commissioner may resign by
notice to the Minister.
Clause 16 provides that the Governor in Council may terminate the
Children's Commissioner's appointment on certain grounds but must
terminate such appointment on a number of other grounds.
Clause 17 provides for the appointment of an acting Children's
Commissioner in certain circumstances.
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Children's Commissioner and Children's Services Appeals Tribunals
Clause 18 provides for staff of the Children's Commissioner to be
employed under the Public Service Act 1996 and permits arrangements with
other state authorities for services of their staff to be made available to the
Commissioner.
PART 3--COMPLAINTS AND INVESTIGATIONS
Clause 19 provides that a person may make a complaint to the
Children's Commissioner about an alleged offence involoving a child or the
delivery of children's services.
Clause 20 provides that a complaint about an alleged offence involving a
child is to be referred immediately to the police or another entity and a
complaint about the delivery of children's services is to be assessed to
decide whether the complaint warrants further investigation.
Clause 21 provides that the Children's Commissioner may require
further information from a complainant.
Clause 22 provides that the Children's Commissioner must assess a
complaint within 28 days.
Clause 23 provides that after assessing a complaint, the Children's
Commissioner may do one of the following:
(a) if it concerns an offence involving a child give the assessment to
the commissioner of police or other entity requesting the
assessment;
(b) if it concerns the delivery of children's services, investigate it
further or refer it to another entity;
(c) decide the matter does not warrant further investigation if the
Children's Commissioner reasonably believes the complaint falls
within a number of specified categories.
Clause 24 provides for the process to be followed if the Children's
Commissioner decides to investigate further a complaint about the delivery
of children's services.
Clause 25 provides that the Children's Commissioner must prepare a
report on any such further investigation and supply a copy of such report to
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Children's Commissioner and Children's Services Appeals Tribunals
the Minister.
Clause 26 provides that in the event that a report requires a service
provider to take certain actions and such action is not undertaken the
Children's Commissioner may recommend that the Minister present a
report on the matter to the Parliament along with any other submission
made by the service provider in relation to the report.
Clause 27 provides that on referral of a complaint to the police or another
entity or on completion of an assessment or investigation the Children's
Commissioner is to notify the complainant of the action taken.
Clause 28 provides that performance of the Ombudsman's functions is
not prevented by part 3 of the Bill.
PART 4--OFFICIAL VISITORS
Clause 29 provides for the appointment of official visitors.
Clause 30 provides that the official visitors exercise their powers subject
to the Children's Commissioner and for powers to be prescribed by various
means including Regulation.
Clause 31 provides that the official visitors' appointment conditions are
as stated in the instrument of appointment.
Clause 32 provides that the Children's Commissioner will supply an
identity card to each official visitor.
Clause 33 provides that an official visitor must produce an identity card
before exercising a power in relation to another person.
Clause 34 obliges the Children's Commissioner to train official visitors
adequately and appropriately.
Clause 35 provides that the functions of official visitors are to inspect
residential facilities and to suggest ways of improving the effectiveness and
quality of care therein.
Clause 36 outlines the powers of an official visitor.
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Children's Commissioner and Children's Services Appeals Tribunals
PART 5--CHILDREN'S SERVICES APPEALS
TRIBUNALS
Clause 37 provides for appointment by the Minister of qualified
individuals as members of a panel of children's services appeals tribunal
members and provides for the qualifications and disqualifications for
appointment.
Clause 38 provides that appointment to the tribunal panel must not be
longer than 3 years.
Clause 39 provides for remuneration and allowances to be paid to a
tribunal member as determined by the Governor in Council.
Clause 40 provides that a member of the tribunal can be removed in
writing by the Minister.
Clause 41 provides that a tribunal has jurisdiction to hear an appeal
against a reviewable decision.
Clause 42 provides for the Children's Commissioner to establish an
appeal tribunal to hear an appeal against a reviewable decision and to give
appropriate notices of its membership.
Clause 43 provides that tribunals will have 3 members.
Clause 44 provides for the Children's Commissioner or tribunal panel
member nominated by the Commissioner to chair a sitting of a tribunal.
Clause 45 provides that appeals must be made within 28 days of the
decision appealed or within any further time the Children's Commissioner
allows.
Clause 46 specifies the parties to an appeal.
Clause 47 provides for representative appeals under certain conditions.
Clause 48 provides that appeals are by way of deciding a matter afresh.
Clause 49 provides for the powers of a tribunal in relation to a decision
being appealed.
Clause 50 provides for a stay of a decision pending outcome of an
appeal.
Clause 51 provides conditions to be observed in conducting an appeal.
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Children's Commissioner and Children's Services Appeals Tribunals
Clause 52 provides that a preliminary conference may be held by a
tribunal member before an appeal is heard.
Clause 53 provides that a tribunal sits at times and places determined by
the chairperson.
Clause 54 provides that proceedings before a tribunal are to be held in
private.
Clause 55 provides that names of parties to an appeal are not to be
published except under certain conditions.
Clause 56 provides that a person may appear in person at a tribunal
hearing but be represented by a lawyer or agent only by leave of the
tribunal.
Clause 57 provides that a question before a tribunal is to be decided by a
majority of tribunal members.
Clause 58 specifies the procedural powers of a tribunal at a hearing.
Clause 59 provides that a tribunal may inspect and make copies of any
documents or things produced to the tribunal.
Clause 60 provides that a person called to attend a tribunal hearing is to
comply and provides a penalty for failure to do so.
Clause 61 provides that a person at a tribunal hearing may fail to answer
a question or produce a document if to do so would tend to incriminate that
person.
Clause 62 provides a penalty for a person who provides false or
misleading information to a tribunal.
Clause 63 similarly provides a penalty for a person giving false,
misleading or incomplete documentation to a tribunal.
Clause 64 provides for contempt of the tribunal similar to contempt of a
judge.
Clause 65 provides that a tribunal's decision is final and binding but an
appeal to the District Court may be made on a question of law in relation to
the decision.
Clause 66 provides for the powers of the District Court in regard to an
appeal.
Clause 67 provides that the District Court, may make an order to stay a
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Children's Commissioner and Children's Services Appeals Tribunals
decision pending an appeal.
Clause 68 provides that tribunal members in performing their duties
have the same protection and immunity as a judge. Similar protection
applies to a lawyer or other person appearing before a tribunal.
Clause 69 provides for allowances to witnesses appearing before a
tribunal.
Clause 70 provides that unless a tribunal makes an order to the contrary,
each party before a tribunal bears its own costs.
Clause 71 provides that a tribunal must keep a record of its proceedings.
Clause 72 provides that a tribunal member's signature authenticates a
document.
Clause 73 provides for judicial notice of the signature of a tribunal
member on a document issued by a tribunal.
Clause 74 provides that the Children's Commissioner may make rules
for approval of the Governor in Council about the practice and procedure of
tribunals.
Clause 75 provides that the Minister may require the Children's
Commissioner to report on the operation of tribunals.
PART 6--MISCELLANEOUS
Clause 76 provides that the Children's Commissioner, commission
staff, official visitor, tribunal member and expert adviser are to maintain
confidentiality about another person's affairs and prescribes a penalty for
failure to do so.
Clause 77 provides protection from civil liability for the Children's
Commissioner, staff of the Commission, official visitors and expert
advisers for an act or omission made honestly and without negligence under
the Act. Any liability attaches to the State.
Clause 78 imposes a penalty for impersonation of the Children's
Commissioner or official visitor.
Clause 79 provides for delegation of the Children's Commissioner's
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Children's Commissioner and Children's Services Appeals Tribunals
powers to an appropriately qualified officer of the Commissioner.
Clause 80 provides for approval by the Children's Commissioner of
forms for use under the Act.
Clause 81 provides for an annual report to be submitted by the
Children's Commissioner to the Minister for tabling in the Parliament.
Clause 82 provides for review by the Minister of the Act within 5 years
of its commencement.
Clause 83 provides for the making of Regulations by the Governor in
Council.
PART 7--CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS
Clause 84 provides that Schedule 1 amends the Acts specified therein.
Clause 85 provides that appeals not begun under the Adoptions of
Children Act 1964 and Child Care Act 1991 are to proceed under this Act
but those already begun are to proceed as if this Act had not been enacted.
Schedule 1
AMENDMENTS
This Schedule provides for consequential amendments to the Adoption of
Children Act 1964 and Child Care Act 1991, Children's Services Act 1965,
and Public Service Act 1996.
ADOPTION OF CHILDREN ACT 1964
Clause 1 omits the existing definition of "tribunal" in section 6.
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Children's Commissioner and Children's Services Appeals Tribunals
Clause 2 inserts a new definition of "tribunal" in section 6.
Clause 3 omits section 8 and 9.
Clause 4 renumbers section 13A(4) as 13A(5).
Clause 5 inserts a new sub section (4) in section 13A.
Clause 6 inserts `a tribunal' for `the tribunal' in section 13D(1)(b).
Clause 7 inserts a new section 14D after section 14C.
Clause 8 omits existing Schedule 2.
CHILD CARE ACT 1991
Clause 1 omits the existing definition of "tribunal" in section 3.
Clause 2 inserts and a new definition of "tribunal" in section 3.
Clauses 3 & 4 replaces certain words in section 41 with other words.
Clauses 5 & 6 omits sections 42, 43 and Part 6.
CHILDREN'S SERVICES ACT 1965
Clause 1 inserts a number of new definitions in section 8.
Clause 2 omits section 131 and inserts a new clause about provision of
information about whereabouts of a child in care.
Clause 3 inserts new sections 143B and 143C, after section 143A,
requiring notice to be given of a reviewable decision and providing for
appeal against a reviewable decision.
Clause 4 inserts a new schedule of "Reviewable Decisions and
Aggrieved Persons" after section 153.
PUBLIC SERVICE ACT 1996
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Children's Commissioner and Children's Services Appeals Tribunals
Clauses 1 & 2 provide for renumbering of certain items in Schedule 1
and insertion of reference to the Children's Commission and Children's
Commissioner.
Schedule 2
This Schedule defines the various terms used in the Bill.
© The State of Queensland 1996