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


COMMISSION FOR CHILDREN AND YOUNG PEOPLE BILL 2000

      Queensland




  COMMISSION FOR
CHILDREN AND YOUNG
  PEOPLE BILL 2000

 


 

 

Queensland COMMISSION FOR CHILDREN AND YOUNG PEOPLE BILL 2000 TABLE OF PROVISIONS Section Page PART 1--PRELIMINARY Division 1--Introduction 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 3 Dictionary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4 Act binds all persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Division 2--Object, underlying principles and scope of Act 5 Object of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6 Principles underlying this Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 7 Scope of Act not limited to acts against persons who are children when commissioner involved, or to future acts . . . . . . . . . . . . . . . . . . . . . . . 13 Division 3--Service providers 8 Meaning of "service provider" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 9 Meaning of "government service provider" . . . . . . . . . . . . . . . . . . . . . . . . . . 14 10 Meaning of "private service provider" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 11 Services provided by a service provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 PART 2--COMMISSIONER AND COMMISSION FOR CHILDREN AND YOUNG PEOPLE Division 1--Establishment 12 Establishment of commissioner and commission . . . . . . . . . . . . . . . . . . . . . 15 13 Control of commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 14 Application of other Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Division 2--Functions and powers 15 Commissioner's functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

 


 

2 Commission for Children and Young People 16 Commissioner's powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 17 Commissioner must act independently etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 17 18 Way in which commissioner is to perform commissioner's functions . . . . . 17 19 Commissioner may use expert advisers or cooperate with other entities . . 18 20 Referral of matters or offences to other persons . . . . . . . . . . . . . . . . . . . . . . 19 Division 3--Appointment of commissioner and related provisions 21 Appointment of commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 22 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 23 Terms and conditions of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 24 Preservation of rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 25 Leave of absence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 26 Resignation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 27 Termination of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 28 Acting commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Division 4--Commission's staff 29 Commission's staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 30 Criminal history screening of commission's staff . . . . . . . . . . . . . . . . . . . . . 23 31 Staff subject only to direction of commissioner . . . . . . . . . . . . . . . . . . . . . . 23 PART 3--COMPLAINTS Division 1--Making complaints 32 Subject matter of complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 33 Basis of complaints and who may complain . . . . . . . . . . . . . . . . . . . . . . . . . 24 34 Time limit for making complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 35 Identity of complainant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 36 Complaint may be made in writing or orally . . . . . . . . . . . . . . . . . . . . . . . . . 25 37 Initiation of complaints in name of commissioner . . . . . . . . . . . . . . . . . . . . 25 Division 2--Assessing complaints and deciding further action 38 Assessment of complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 39 Action following assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 40 Grounds for not dealing with complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

 


 

3 Commission for Children and Young People Division 3--Investigating complaints Subdivision 1--Starting an investigation 41 Commissioner may investigate complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 42 Notice to service provider . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Subdivision 2--Access to child and information for investigation 43 Access to child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 44 Security directions about visiting detention centres etc. . . . . . . . . . . . . . . . 30 45 Notice for information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 46 Identity of notifier under Child Protection Act 1999 . . . . . . . . . . . . . . . . . . . 31 Subdivision 3--Defences for failing to comply with notice for information 47 Application of sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 48 Witness privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 49 Notice for information given to law enforcement agency . . . . . . . . . . . . . . 32 50 Claim of unjustifiable exercise of power . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 51 Supreme Court applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Subdivision 4--Other offences 52 Commissioner may require oath or affirmation . . . . . . . . . . . . . . . . . . . . . . . 34 53 False or misleading statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 54 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 55 Obstructing or improperly influencing investigation . . . . . . . . . . . . . . . . . . . 35 Subdivision 5--Matters at end of investigation 56 Ending an investigation in child's best interests . . . . . . . . . . . . . . . . . . . . . . 35 57 Notice of investigation result . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 58 Report after investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 59 No liability for defamation if report made in good faith . . . . . . . . . . . . . . . . 36 Subdivision 6--Reports and tabling them 60 Application of sdiv 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 61 Commissioner may ask Minister to table report . . . . . . . . . . . . . . . . . . . . . . 37 62 Confidential reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 63 Response to adverse comment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

 


 

4 Commission for Children and Young People PART 4--COMMUNITY VISITORS Division 1--Preliminary 64 Purpose of pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Division 2--Visits to visitable sites 65 Commissioner must arrange regular and frequent visits . . . . . . . . . . . . . . . . 39 66 Requirement to visit or communicate if asked . . . . . . . . . . . . . . . . . . . . . . . 39 67 Report after each visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 3--Functions and powers Subdivision 1--Functions 68 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Subdivision 2--Power of entry to visitable sites 69 Power of entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 70 Consent to entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 71 Application for warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 72 Issue of warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 73 Warrants--procedure before entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Subdivision 3--Other powers 74 Related powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 75 Powers in relation to staff of sites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 76 Power to require documents to be produced . . . . . . . . . . . . . . . . . . . . . . . . . 45 Subdivision 4--Exercise of powers 77 Child's views and wishes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 78 Community visitor to respect privacy of children residing at a site . . . . . . 46 79 Commissioner's directions about the exercise of powers . . . . . . . . . . . . . . . 47 80 Security directions about visiting detention centres . . . . . . . . . . . . . . . . . . . 47 Division 4--Appointment of community visitors 81 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 82 Duration of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 83 Terms of appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Division 5--Identity cards 84 Identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 85 Failure to return identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

 


 

5 Commission for Children and Young People 86 Production or display of identity card . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Division 6--Miscellaneous 87 Obstruction of visitor in exercise of powers . . . . . . . . . . . . . . . . . . . . . . . . . . 50 88 Privacy of correspondence between community visitor and residents . . . . 50 89 Annual report by commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 PART 5--ADVISORY COMMITTEES 90 Establishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 91 Membership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 92 Functions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 93 Dissolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 94 Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 PART 6--EMPLOYMENT SCREENING FOR CHILD-RELATED EMPLOYMENT Division 1--Preliminary 95 Purpose of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 96 Safety and wellbeing of children to be paramount consideration . . . . . . . . 52 97 Employment and businesses regulated by this part . . . . . . . . . . . . . . . . . . . . 52 98 This part applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 99 What is employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Division 2--Issue of suitability notices 100 Application for notice--regulated employment . . . . . . . . . . . . . . . . . . . . . . 54 101 Application for notice--regulated business . . . . . . . . . . . . . . . . . . . . . . . . . . 54 102 Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 103 Commissioner to invite submissions from person about criminal history . . 57 104 Currency of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Division 3--Obligations and offences relating to suitability notices Subdivision 1--Regulated employment 105 Continuing employment of certain regular employees . . . . . . . . . . . . . . . . . 58 106 Starting employment of certain regular employees . . . . . . . . . . . . . . . . . . . 58 107 Prohibited employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 108 Unsuitable person not to apply for, or start or continue in, child-related employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

 


 

6 Commission for Children and Young People Subdivision 2--Regulated business 109 Carrying on regulated business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Subdivision 3--Changes in criminal history 110 Acquiring a criminal history . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 111 Effect of conviction for serious offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 112 Change in criminal history of employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 113 Change in criminal history of person carrying on regulated business . . . . . 62 114 Change in criminal history of other persons . . . . . . . . . . . . . . . . . . . . . . . . . 62 Subdivision 4--General 115 False or misleading disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 116 False or misleading documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 117 Return of notice to commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Division 4--Cancellation and replacement of suitability notices 118 Cancellation of suitability notice on application . . . . . . . . . . . . . . . . . . . . . 64 119 Cancellation of notice--wrong or incomplete information . . . . . . . . . . . . . 64 120 Cancellation of notice on issue of new notice . . . . . . . . . . . . . . . . . . . . . . . 65 Division 5--Miscellaneous 121 Person may apply for review of decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 122 Commissioner may obtain information from police commissioner . . . . . . . 66 123 Withdrawal of employee's consent to employment screening . . . . . . . . . . . 66 124 Compliance with requirement to end, or not start, a person's regulated employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 125 Guidelines for dealing with information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 126 Use of criminal history information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Division 6--Transitional 127 Initial application of this part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 128 Application for suitability notice for current employee . . . . . . . . . . . . . . . . 69 PART 7--CRIMINAL HISTORY CHECKS OF COMMISSION'S STAFF Division 1--Preliminary 129 Purpose of pt 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 130 This part applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

 


 

7 Commission for Children and Young People 131 Commissioner to advise of duties of disclosure etc. . . . . . . . . . . . . . . . . . . . 71 Division 2--Disclosure of criminal history 132 Person seeking to be a staff member must disclose criminal history . . . . . 71 133 Staff member must disclose changes in criminal history . . . . . . . . . . . . . . . 72 134 Requirements for disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 135 False or misleading disclosure or failure to disclose . . . . . . . . . . . . . . . . . . 72 Division 3--Commissioner may obtain information from other entities about criminal history and certain investigations 136 Commissioner may obtain report from police commissioner . . . . . . . . . . . . 73 137 Prosecuting authority to notify commissioner about committal, conviction etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Division 4--Controls on use of information about criminal history and certain investigations 138 Use of information obtained under this part . . . . . . . . . . . . . . . . . . . . . . . . . . 76 139 Person to be advised of information obtained . . . . . . . . . . . . . . . . . . . . . . . . 76 140 Guidelines for dealing with information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 PART 8--GENERAL Division 1--When commissioner may give notice other than in writing 141 Application of div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 142 Person asks for notice other than in writing . . . . . . . . . . . . . . . . . . . . . . . . . . 77 143 Written notice inappropriate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 144 Commissioner must keep record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Division 2--Evidence and legal proceedings 145 Evidentiary provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 146 Indictable and summary offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 147 Proceedings for indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 148 Limitation on who may summarily hear indictable offence proceedings . . 80 149 Proceeding for offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 150 When proceeding may start . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 151 Allegations of false or misleading information or statements . . . . . . . . . . . 81 Division 3--Confidentiality 152 Confidentiality of information about criminal history . . . . . . . . . . . . . . . . . . 81 153 Confidentiality of other information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

 


 

8 Commission for Children and Young People 154 Disclosure of information about investigations . . . . . . . . . . . . . . . . . . . . . . . 83 Division 4--Reprisals 155 Meaning of "taking a reprisal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 156 Offence of taking a reprisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 157 Damages entitlement for reprisal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 Division 5--Miscellaneous 158 Meaning of "parent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 159 Relationship with complaints agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 160 Complaints agency or other government service provider to inform commissioner about actions taken for complaint . . . . . . . . . . . . . . . 85 161 Protection from liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 162 Whistleblowers' protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 163 Other reports relating to commissioner's functions . . . . . . . . . . . . . . . . . . . . 87 164 Review of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 165 Delegation by commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 166 Approved forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 167 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 PART 9--REPEAL AND TRANSITIONAL PROVISIONS Division 1--Repeal 168 Repeal of Children's Commissioner and Children's Services Appeals Tribunals Act 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 Division 2--Transitional provisions on repeal of Children's Commissioner and Children's Services Appeals Tribunals Act 1996 169 Meaning of "commencing day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 170 Commissioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 171 Continuation of commission and staff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 172 Continuation of certain complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 173 Official visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Division 3--Transitional provisions for amendment of Juvenile Justice Act 1992 174 Official visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 PART 10--CONSEQUENTIAL AMENDMENTS 175 Consequential amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

 


 

9 Commission for Children and Young People SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 91 REGULATED EMPLOYMENT AND BUSINESSES FOR EMPLOYMENT SCREENING PART 1--REGULATED EMPLOYMENT 1 Residential facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 2 Schools--boarding facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 3 Schools--employees other than teachers and parents . . . . . . . . . . . . . . . . . 91 4 Churches, clubs and associations involving children . . . . . . . . . . . . . . . . . . 92 5 Counselling and support services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 6 Private teaching, coaching or tutoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 7 Regulation about usual functions of employment . . . . . . . . . . . . . . . . . . . . . 94 PART 2--REGULATED BUSINESSES 8 Counselling and support services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 9 Private teaching, coaching or tutoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 96 OTHER SERIOUS OFFENCE PROVISIONS OF THE CRIMINAL CODE SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 98 CONSEQUENTIAL AMENDMENTS CHILD PROTECTION ACT 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 CRIME COMMISSION ACT 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 CRIMINAL JUSTICE ACT 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 EDUCATION (GENERAL PROVISIONS) ACT 1989 . . . . . . . . . . . . . . . . . 99 JUVENILE JUSTICE ACT 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 PUBLIC SERVICE ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 102 DICTIONARY

 


 

 

2000 A BILL FOR An act to establish a Commission for Children and Young People to promote and protect the rights, interests and wellbeing of children in Queensland

 


 

s1 12 s5 Commission for Children and Young People The Parliament of Queensland enacts-- 1 ART 1--PRELIMINARY 2 P 1--Introduction 3 Division title 4 Short 1. This Act may be cited as the Commission for Children and Young 5 People Act 2000. 6 7 Commencement 2. This Act commences on a day to be fixed by proclamation. 8 9 Dictionary 3. The dictionary in schedule 4 defines particular words used in this Act. 10 binds all persons 11 Act 4.(1) This Act binds all persons including the State and, as far as the 12 legislative power of the Parliament permits, the Commonwealth and all the 13 other States. 14 (2) Subsection (1) does not make the State, the Commonwealth or 15 another State liable for an offence. 16 Division 2--Object, underlying principles and scope of Act 17 of Act 18 Object 5. The object of this Act is to establish the Commission for Children and 19 Young People to promote and protect the rights, interests and wellbeing of 20 children in Queensland. 21

 


 

s6 13 s7 Commission for Children and Young People underlying this Act 1 Principles 6.(1) The following principles underlie this Act-- 2 (a) every child is a valued member of society; 3 (b) in decisions involving a child-- 4 (i) the best interests of the child are the paramount concern; and 5 (ii) the child's views and wishes should be taken into account in 6 a way that has regard to the child's age and maturity; 7 (c) every child is entitled-- 8 (i) to be treated in a way that respects the child's dignity and 9 privacy; and 10 (ii) to be cared for in a way that protects the child from harm and 11 promotes the child's wellbeing; and 12 (iii) to express the child's concerns and grievances and to have 13 them dealt with in a way that is fair and timely and promotes 14 the child's participation; and 15 (iv) to receive information and help to enable the child to exercise 16 the child's entitlements; and 17 (v) to have access to services necessary to meet the child's 18 needs; 19 (d) the family has the primary responsibility for the upbringing and 20 development of its children, and should be supported in that role. 21 (2) This Act must be administered under the principles. 22 of Act not limited to acts against persons who are children 23 Scope when commissioner involved, or to future acts 24 7.(1) This Act is not limited to-- 25 (a) matters about persons who are children at the time the 26 commissioner is involved; or 27 (b) matters that happen after this Act commences. 28

 


 

s8 14 s 11 Commission for Children and Young People 1 Example for paragraph (a)-- 2 A 17 year old child makes a complaint about a matter. The commissioner 3 may continue to perform the commissioner's functions and exercise the 4 commissioner's powers in relation to the matter after the child turns 18. (2) Without limiting subsection (1)-- 5 (a) the commissioner may perform the commissioner's functions or 6 exercise the commissioner's powers in relation to something that 7 happened when a person was a child, even if the person is no 8 longer living; and 9 (b) a person may complain about something that happened when 10 another person was a child, even if the other person is no longer 11 living. 12 Division 3--Service providers 13 of "service provider" 14 Meaning 8. A "service provider" is a government service provider or private 15 service provider. 16 of "government service provider" 17 Meaning 9. A "government service provider" is a government entity or a local 18 government. 19 of "private service provider" 20 Meaning 10. A "private service provider" is an entity, other than a government 21 service provider, that provides a service for which the funding is-- 22 (a) wholly or partly provided by the State or a local government; or 23 (b) wholly or partly administered by the State. 24 provided by a service provider 25 Services 11. A reference in this Act to a service provided by a service provider is a 26 reference to a service provided-- 27

 


 

s 12 15 s 14 Commission for Children and Young People (a) directly by the service provider; or 1 (b) under an arrangement that involves a written agreement to which 2 the service provider is a party. 3 4 Example for paragraph (b)-- 5 Services provided to children under foster care arrangements. ART 2--COMMISSIONER AND COMMISSION FOR 6 P CHILDREN AND YOUNG PEOPLE 7 1--Establishment 8 Division of commissioner and commission 9 Establishment 12.(1) There is to be a Commissioner for Children and Young People. 10 (2) An office called the Commission for Children and Young People is 11 established. 12 (3) The commission consists of the commissioner and the staff of the 13 commission. 14 of commission 15 Control 13. The commissioner is to control the commission. 16 of other Acts 17 Application 14.(1) The commission is-- 18 (a) a unit of public administration under the Criminal Justice Act 19 1989; and 20 (b) a statutory body under the Financial Administration and Audit Act 21 1977; and 22 (c) a statutory body under the Statutory Bodies Financial 23 Arrangements Act 1982. 24

 


 

s 15 16 s 15 Commission for Children and Young People (2) The Statutory Bodies Financial Arrangements Act 1982, part 2B, sets 1 out the way in which the commission's powers under this Act are affected 2 by the Statutory Bodies Financial Arrangements Act 1982. 3 2--Functions and powers 4 Division functions 5 Commissioner's 15. The commissioner has the following functions-- 6 (a) to receive, seek to resolve, monitor and investigate complaints 7 about services provided to certain children by service providers;1 8 (b) to monitor and review the way in which service providers 9 respond to complaints about services provided by them to certain 10 children; 11 (c) to advocate for children and, in advocating for children, to seek 12 help from advocacy entities, service providers and other entities; 13 (d) to promote the establishment by service providers of appropriate 14 and accessible mechanisms for the participation of children in 15 matters that may affect them; 16 (e) to monitor and review laws, policies and practices that-- 17 (i) relate to the delivery of services to children; or 18 (ii) otherwise impact on children; 19 (f) to promote laws, policies and practices that uphold the principles 20 underlying this Act;2 21 (g) to encourage, facilitate and support the development and 22 coordination of advocacy and other support services for children; 23 (h) to promote awareness among children about advocacy entities, 24 complaints agencies and other relevant entities; 25 (i) to promote an understanding of, and informed public discussion 26 1 See section 32 (Subject matter of complaints) for the complaints that the commissioner deals with under this Act. 2 See section 6 (Principles underlying this Act).

 


 

s 16 17 s 18 Commission for Children and Young People about, the rights, interests and wellbeing of children; 1 (j) to conduct, coordinate, sponsor, participate in and promote 2 research about the rights, interests and wellbeing of children; 3 (k) to conduct independent inspections of visitable sites; 4 (l) to screen persons employed, or proposed to be employed, in 5 certain child-related employment; 6 (m) to screen persons carrying on, or proposing to carry on, certain 7 child-related businesses; 8 (n) to report on, and make recommendations about, matters relating 9 to the commissioner's functions; 10 (o) other functions conferred on the commissioner under this or 11 another Act. 12 powers 13 Commissioner's 16. The commissioner has all necessary or convenient powers to perform 14 the commissioner's functions. 15 must act independently etc. 16 Commissioner 17.(1) In performing the commissioner's functions and exercising the 17 commissioner's powers, the commissioner-- 18 (a) must act independently and in a way that promotes and protects 19 the rights, interests and wellbeing of children; and 20 (b) is not under the control or direction of the Minister. 21 (2) Subsection (1) is not limited by section 18, 19 or 20. 22 in which commissioner is to perform commissioner's functions 23 Way 18. In performing the commissioner's functions, the commissioner must 24 do the following-- 25 (a) consult with children in ways that promote their participation in 26 decision making by the commissioner; 27 (b) listen to, and seriously consider, the concerns, views and wishes 28

 


 

s 19 18 s 19 Commission for Children and Young People of children; 1 (c) adopt work practices that ensure the commission is accessible to 2 children; 3 (d) be sensitive to the ethnic or cultural identity and values of children 4 including, in particular, Aboriginal and Torres Strait Islander 5 children; 6 (e) give priority to the needs and interests of children-- 7 (i) who are in, or may enter, out-of-home care or detention in a 8 detention centre; or 9 (ii) who have no appropriate person to act on their behalf; or 10 (iii) who are not able to protect their rights, interests or wellbeing; 11 or 12 (iv) who are disadvantaged because of a disability, geographic 13 isolation, homelessness or poverty; 14 (f) consult with the following entities about the work of the 15 commission-- 16 (i) advocacy entities; 17 (ii) complaints agencies; 18 (iii) service providers; 19 (iv) other entities concerned with the rights, interests and 20 wellbeing of children; 21 (g) liaise with other entities about the resolution of complaints 22 referred to the entities under this Act. 23 may use expert advisers or cooperate with other entities 24 Commissioner 19.(1) In performing the commissioner's functions, the commissioner 25 may-- 26 (a) obtain help from anyone whom the commissioner considers to be 27 appropriately qualified to give the help; and 28 (b) cooperate with any service provider or other entity providing 29 services or dealing with issues affecting children. 30

 


 

s 20 19 s 21 Commission for Children and Young People (2) For subsection (1), the commissioner may enter into arrangements, 1 with a Minister responsible for administering an Act under which a 2 government service provider is established, to secure the service provider's 3 cooperation. 4 5 Example-- 6 The commissioner may enter into arrangements to secure a service provider's 7 cooperation to obtain information about services or issues affecting children. of matters or offences to other persons 8 Referral 20.(1) This section applies to information received by the commissioner 9 in performing the commissioner's functions. 10 (2) If, based on the information, the commissioner considers-- 11 (a) a child may be a child in need of protection under the Child 12 Protection Act 1999, the commissioner must refer the matter to 13 the chief executive (families) or the police commissioner; or 14 (b) a child is, or may be, the victim of a criminal offence, the 15 commissioner must-- 16 (i) refer the matter to the police commissioner; and 17 (ii) if the matter may involve relevant criminal activity within the 18 meaning given by the Crime Commission Act 1997, refer the 19 matter to the Queensland Crime Commissioner. 20 (3) To remove doubt, it is declared that the commissioner may refer a 21 matter to other entities and may refer a matter to more than 1 entity. 22 23 Example-- 24 The commissioner may refer a matter to the chief executive (families), the police 25 commissioner and the Criminal Justice Commission. Division 3--Appointment of commissioner and related provisions 26 of commissioner 27 Appointment 21.(1) The commissioner is to be appointed by the Governor in Council. 28 (2) A person is eligible for appointment as the commissioner only if the 29

 


 

s 22 20 s 22 Commission for Children and Young People person has-- 1 (a) knowledge, and experience working with children, in a relevant 2 subject area; and 3 (b) a demonstrated commitment to upholding the principles 4 underlying this Act.3 5 (3) A person can not be appointed as the commissioner if the person-- 6 (a) does not consent to a criminal history check before the 7 appointment; or 8 (b) has a conviction for an indictable offence. 9 (4) For subsection (3), the Criminal Law (Rehabilitation of Offenders) 10 Act 1986, sections 6, 8 and 9, do not apply in relation to the appointment of 11 the commissioner.4 12 (5) The commissioner is to be appointed under this Act and not under the 13 Public Service Act 1996. 14 (6) In this section-- 15 "relevant subject area" means child protection, children's rights, child 16 welfare, community services, education, law, medicine, psychology or 17 social work. 18 of appointment 19 Duration 22.(1) Subject to sections 26 and 27, the commissioner holds office for 20 the term stated in the instrument of appointment. 21 (2) The term stated in the instrument of appointment must not be longer 22 than 5 years. 23 (3) However, a person appointed as commissioner is eligible for 24 reappointment. 25 3 See section 6 (Principles underlying this Act). 4 Criminal Law (Rehabilitation of Offenders) Act 1986, sections 6 (Non-disclosure of convictions upon expiration of rehabilitation period), 8 (Lawful to deny certain convictions) and 9 (Duty to disregard certain convictions)

 


 

s 23 21 s 27 Commission for Children and Young People and conditions of appointment 1 Terms 23.(1) The commissioner is to be paid the remuneration and allowances 2 decided by the Governor in Council. 3 (2) The commissioner holds office on the terms and conditions, not 4 provided for by this Act, that are decided by the Governor in Council. 5 of rights 6 Preservation 24.(1) This section applies if a public service officer is appointed as the 7 commissioner. 8 (2) The person retains and is entitled to all rights that have accrued to the 9 person because of employment as a public service officer, or that would 10 accrue in the future to the person because of that employment, as if service 11 as commissioner were a continuation of service as a public service officer. 12 (3) At the end of the person's term of office or on resignation-- 13 (a) the person is entitled to be appointed to an office in the public 14 service at a salary level not less than the current salary level of an 15 office equivalent to the office the person held before being 16 appointed as commissioner; and 17 (b) the person's service as commissioner is to be regarded as service 18 of a like nature in the public service for deciding the person's 19 rights as a public service officer. 20 of absence 21 Leave 25. The Minister may grant leave of absence to the commissioner on the 22 terms and conditions the Minister considers appropriate. 23 24 Resignation 26. The commissioner may resign by signed notice given to the Minister. 25 of appointment 26 Termination 27.(1) The Governor in Council may end the commissioner's 27 appointment if the commissioner-- 28

 


 

s 28 22 s 29 Commission for Children and Young People (a) becomes incapable of satisfactorily performing the 1 commissioner's duties; or 2 (b) is guilty of misconduct that could warrant dismissal from the 3 public service if the commissioner were a public service officer; 4 or 5 (c) is absent from duty or from the State, without the Minister's leave 6 and without reasonable excuse, for 14 consecutive days or 7 28 days in a year. 8 (2) The Governor in Council must end the commissioner's appointment 9 if the commissioner-- 10 (a) is convicted of an indictable offence, whether in Queensland or 11 elsewhere; or 12 (b) engages in paid employment outside the duties of office without 13 the Minister's approval. 14 commissioner 15 Acting 28.(1) The Governor in Council may appoint a person to act as 16 commissioner-- 17 (a) during a vacancy in the office; or 18 (b) during any period, or during all periods, when the commissioner 19 is absent from duty or from the State or can not, for another 20 reason, perform the duties of the office. 21 (2) A person can not be appointed to act as commissioner unless the 22 Governor in Council could appoint the person as commissioner under 23 section 21. 24 4--Commission's staff 25 Division staff 26 Commission's 29.(1) The commission's staff, other than community visitors,5 are to be 27 5 For the appointment of community visitors, see section 81 (Appointment).

 


 

s 30 23 s 32 Commission for Children and Young People employed under the Public Service Act 1996. 1 (2) The commissioner may arrange with the chief executive of a 2 department, or with another unit of public administration, for the services of 3 officers or employees of the department or other unit to be made available to 4 the commission. 5 history screening of commission's staff 6 Criminal 30. Part 7 deals with criminal history screening of the commission's 7 staff. 8 subject only to direction of commissioner 9 Staff 31. The commission's staff are not subject to direction by any person, 10 other than the commissioner, about-- 11 (a) the way in which the commissioner's powers are to be exercised; 12 and 13 (b) the priority to be given to matters relating to the commissioner's 14 functions. 15 PART 3--COMPLAINTS 16 Division 1--Making complaints 17 matter of complaints 18 Subject 32. A complaint may be made, or dealt with under this part, only so far 19 as the complaint relates to a service provided, or required to be provided, to 20 a child-- 21 (a) while the child is the subject of an order under the Child 22 Protection Act 1999; or 23 (b) while the chief executive (families) is taking action under the 24 Child Protection Act 1999 to ensure the child's protection; or 25

 


 

s 33 24 s 35 Commission for Children and Young People (c) while the child is subject to a community service order, fixed 1 release order, immediate release order or probation order under 2 the Juvenile Justice Act 1992; or 3 (d) while the child is in detention under the Juvenile Justice Act 1992 4 or the Bail Act 1980; or 5 (e) in the course of a program or service established under the 6 Juvenile Justice Act 1992, section 224A.6 7 of complaints and who may complain 8 Basis 33.(1) A complaint may be made to the commissioner-- 9 (a) that a service provider has not provided, or is not providing, a 10 service to a child or children that the service provider is required 11 to provide; or 12 (b) that a service provider has provided, or is providing, a service to a 13 child or children in a way that is contrary to the rights, interests or 14 wellbeing of the child or children. 15 (2) The complaint may be made by-- 16 (a) a child to whom the complaint relates; or 17 (b) any person (including a member of an advocacy entity or another 18 child) acting for, and in the interests of, a child or children to 19 whom the complaint relates. 20 limit for making complaint 21 Time 34. A person may only make a complaint about a matter within 1 year 22 after the person first becomes aware of the matter. 23 of complainant 24 Identity 35.(1) A person making a complaint must give the commissioner-- 25 (a) the person's name and address; and 26 6 Juvenile Justice Act 1992, section 224A (Programs and services for children)

 


 

s 36 25 s 37 Commission for Children and Young People (b) any other information relating to the person's identity that the 1 commissioner reasonably requires. 2 (2) However, the commissioner may accept a complaint from a 3 complainant who does not comply with subsection (1) if the commissioner 4 reasonably believes it is in the public interest to do so. 5 may be made in writing or orally 6 Complaint 36.(1) A person may make a complaint to the commissioner-- 7 (a) orally, whether in person or by telephone, radio or another form 8 of communication; or 9 (b) in writing, whether by giving a document or by sending the 10 writing by facsimile, email or another form of communication. 11 (2) If an adult makes a complaint orally, the commissioner-- 12 (a) must ask the adult to make the complaint in writing within a 13 reasonable period of time stated in the request; and 14 (b) may assess the complaint, but must not otherwise deal with it 15 until the written complaint is received. 16 (3) If a child makes a complaint orally, the commissioner-- 17 (a) may provide help to the child to make the complaint in writing; 18 and 19 (b) may assess or otherwise deal with the complaint, whether or not 20 the child makes the complaint in writing. 21 of complaints in name of commissioner 22 Initiation 37.(1) This section applies if-- 23 (a) the commissioner becomes aware of a matter the commissioner 24 considers may be the subject of a complaint; and 25 (b) a complaint about the matter has not been made under this 26 division; and 27 (c) the commissioner believes-- 28 (i) the rights, interests or wellbeing of a child or children may 29

 


 

s 38 26 s 38 Commission for Children and Young People be seriously affected if a complaint about the matter is not 1 made, and it is not reasonable to require the child or children 2 affected by the matter to complain to a complaints agency or 3 another government entity; or 4 (ii) the matter raises issues of public interest; or 5 (iii) the matter raises a significant issue about a law, policy or 6 practice underlying the relevant service, or about the need for 7 a law, policy or practice to underlie the relevant service. 8 9 Examples for paragraph (b)-- 10 1. No-one has contacted the commissioner about the matter. 11 2. An adult has made a complaint about the matter orally and has 12 not confirmed it in writing. 13 3. A person has contacted the commissioner about the matter but 14 can not make a complaint because it is more than 1 year since 15 the person first became aware of the matter. (2) The commissioner may make a complaint in the commissioner's 16 name about the matter. 17 Division 2--Assessing complaints and deciding further action 18 of complaint 19 Assessment 38.(1) The commissioner must assess a complaint within the following 20 times-- 21 (a) if the commissioner seeks more information under subsection (2) 22 to assess the complaint--within 28 days after obtaining the 23 information; 24 (b) otherwise--within 28 days after receiving the complaint. 25 (2) If the commissioner needs more information to properly assess a 26 complaint, the commissioner must seek the information as soon as 27 practicable. 28 (3) This section does not apply to a complaint in the commissioner's 29 name. 30

 


 

s 39 27 s 40 Commission for Children and Young People following assessment 1 Action 39.(1) After assessing a complaint made under division 1, or making a 2 complaint in the commissioner's name, the commissioner must take 1 or 3 more of the following actions-- 4 (a) if the service provider to whom the complaint relates (the 5 "relevant provider") has a complaint handling mechanism that 6 the commissioner considers would be appropriate for the 7 complainant to use--refer the complaint to the relevant provider; 8 (b) refer the complaint to a complaints agency, another government 9 service provider responsible for regulating the relevant provider, 10 or another appropriate entity; 11 (c) seek to resolve the complaint in a way the commissioner 12 considers appropriate; 13 (d) investigate the complaint; 14 (e) decide, under section 40, not to deal with the complaint. 15 (2) When deciding the action to take, the commissioner must consider 16 whether the action should be taken urgently because the rights, interests or 17 wellbeing of a child or children may be adversely affected if action is 18 delayed. 19 (3) The commissioner's functions and powers relating to a complaint are 20 not affected by the referral of the complaint to another entity. 21 (4) In this section-- 22 "complaint" includes part of a complaint. 23 for not dealing with complaint 24 Grounds 40.(1) The commissioner must not deal with a complaint, or continue 25 dealing with a complaint, if the commissioner is satisfied of any of the 26 following-- 27 (a) the complaint is frivolous or otherwise lacks substance; 28 (b) the subject matter of the complaint-- 29 (i) has already been adequately dealt with by the commissioner; 30 or 31

 


 

s 40 28 s 40 Commission for Children and Young People (ii) has already been adequately dealt with, or would be more 1 appropriately dealt with, by the relevant provider, another 2 government service provider responsible for regulating the 3 relevant provider or another entity; or 4 (iii) is before, or has already been decided by, the Children 5 Services Tribunal; or 6 (iv) is before an inquest or inquiry being held under the 7 Coroners Act 1958; or 8 (v) is, or has been, otherwise the subject of a legal proceeding; 9 (c) any dealing, or further dealing, with the complaint is unnecessary 10 or unjustifiable in all the circumstances of the case; 11 (d) the basis of the complaint is not related to the interests of the child 12 or children on whose behalf the complaint is alleged to be made; 13 (e) the complainant has failed, without reasonable excuse, to 14 satisfactorily cooperate with attempts made or arranged by the 15 commissioner to resolve the complaint. 16 (2) Also, the commissioner may decide not to deal with a complaint, or 17 may stop dealing with a complaint, if-- 18 (a) the complainant does not comply with a request by the 19 commissioner for information about the complaint or about the 20 complainant's identity; or 21 (b) the complainant withdraws the complaint; or 22 (c) the commissioner considers it would be inappropriate to deal or 23 continue to deal with the complaint, having regard to-- 24 (i) the resources available to deal with the complaint; and 25 (ii) the relevance of the subject matter of the complaint to the 26 rights, interests and wellbeing of children in Queensland at 27 the time of the commissioner's consideration of the 28 complaint and in the future. 29 (3) If the commissioner decides not to deal with a complaint, or continue 30 dealing with a complaint, the commissioner must give written notice of the 31 decision, and the reasons for the decision, to the complainant as soon as 32 practicable. 33

 


 

s 41 29 s 43 Commission for Children and Young People (4) In this section-- 1 "complaint" includes part of a complaint. 2 3--Investigating complaints 3 Division Subdivision 1--Starting an investigation 4 may investigate complaint 5 Commissioner 41. The commissioner may investigate a complaint after-- 6 (a) making it under section 37; or 7 (b) assessing it under section 38. 8 to service provider 9 Notice 42.(1) Before investigating a complaint, the commissioner must give a 10 written notice to the service provider to which the complaint relates. 11 (2) The notice must state the following-- 12 (a) that a complaint has been made; 13 (b) the particulars of the complaint; 14 (c) that the commissioner intends to investigate the complaint; 15 (d) that the service provider may make a written submission about 16 the complaint within a reasonable time stated in the notice. 17 2--Access to child and information for investigation 18 Subdivision to child 19 Access 43.(1) The commissioner may, by written notice, require a person to 20 provide access to a child who is or whom the commissioner reasonably 21 believes is-- 22 (a) a complainant; or 23

 


 

s 44 30 s 45 Commission for Children and Young People (b) a child on whose behalf or in whose interests a complaint has 1 been made; or 2 (c) a witness to a matter being investigated by the commissioner. 3 (2) The notice must state the time and place at which access must be 4 provided. 5 (3) A person to whom a notice is given under subsection (1) must 6 comply with the notice, unless the person has a reasonable excuse for not 7 complying. 8 Maximum penalty--50 penalty units. 9 (4) It is a reasonable excuse for a person not to comply with a notice that 10 the child to whom access is required has indicated to the commissioner that 11 he or she does not wish to communicate with the commissioner in relation 12 to the complaint or matter being investigated. 13 (5) Subsection (1)(a) and (c) apply to a child whether or not the child 14 may, under section 32, be the subject of a complaint. 15 directions about visiting detention centres etc. 16 Security 44.(1) The chief executive of the department responsible for the 17 administration of the Juvenile Justice Act 1992 may give directions to a 18 person, about the conduct of visits to a detention centre, that the chief 19 executive considers necessary for maintaining the security of the centre. 20 (2) The police commissioner may give directions to a person, about the 21 conduct of visits to a watch-house or lockup, that the police commissioner 22 considers necessary for maintaining the security of the place. 23 (3) If a person visits a child in a detention centre, watch-house or lockup, 24 under a notice given under section 43, the person must comply with any 25 relevant directions given under subsection (1) or (2). 26 for information 27 Notice 45.(1) The commissioner may give a notice (a "notice for 28 information") under this section to a person, other than a child, for the 29 purpose of carrying out the commissioner's functions for an investigation. 30 (2) The notice may require the person-- 31

 


 

s 46 31 s 46 Commission for Children and Young People (a) to give information by statutory declaration, by a stated reasonable 1 time, about a stated matter; or 2 (b) to attend before the commissioner at a stated reasonable time and 3 place-- 4 (i) to give information and answer questions about a stated 5 matter; or 6 (ii) to produce a stated document or other thing; or 7 (c) if it does not appear to the commissioner to be reasonable to 8 require the person to attend before the commissioner in person, 9 but it is reasonable to require the person to communicate with the 10 commissioner by telephone conferencing, videoconferencing or 11 another form of telecommunication--to communicate with the 12 commissioner in a stated way and at a stated reasonable time 13 about a stated matter. 14 (3) The person must comply with the notice, unless the person has a 15 reasonable excuse for not complying. 16 Maximum penalty--50 penalty units. 17 (4) The notice need not state the matter of the investigation if the 18 commissioner is satisfied that, in the particular circumstances of the 19 investigation, stating the matter may prejudice the effectiveness of the 20 investigation. 21 (5) The stating of a matter, or the failure to state a matter, in the notice 22 does not prevent the commissioner from questioning the person about a 23 matter relating to the investigation. 24 (6) If the person gives the commissioner a document or other thing, as 25 required by the notice, the commissioner-- 26 (a) may inspect the document or other thing and make a reproduction 27 of it; and 28 (b) must return the document or other thing to the person as soon as 29 practicable. 30 of notifier under Child Protection Act 1999 31 Identity 46.(1) If the commissioner decides it is necessary for the commissioner 32

 


 

s 47 32 s 49 Commission for Children and Young People to know the identity of a notifier mentioned in the Child Protection Act 1 1999, section 186, the commissioner must give written notice to the chief 2 executive (families) requiring disclosure of the identity within a reasonable 3 time stated in the notice. 4 (2) The chief executive (families) must comply with the notice. 5 3--Defences for failing to comply with notice for 6 Subdivision information 7 of sdiv 3 8 Application 47. This subdivision applies to a person who is given a notice for 9 information by which the person is required to give information or produce 10 a document or other thing. 11 privilege 12 Witness 48. The person is not required to give the information, or produce the 13 document or other thing, if the person objects on the ground of a privilege 14 the person would be entitled to claim against giving the information, or 15 producing the document or other thing, were the person a witness in a 16 prosecution for an offence in the Supreme Court. 17 for information given to law enforcement agency 18 Notice 49.(1) If the person is the police commissioner, the police commissioner 19 need not comply with the notice to the extent the police commissioner 20 considers that giving the information, or producing the document or other 21 thing, would compromise the security of an investigation by the police 22 service. 23 (2) If the person is the Criminal Justice Commission under the Criminal 24 Justice Act 1989, it need not comply with the notice to the extent its 25 chairperson considers that giving the information, or producing the 26 document or other thing, would compromise the security of an investigation 27 by it. 28 (3) If the person is the Queensland Crime Commission under the Crime 29

 


 

s 50 33 s 51 Commission for Children and Young People Commission Act 1997, it need not comply with the notice to the extent the 1 crime commissioner considers that giving the information, or producing the 2 document or other thing, would compromise the security of an investigation 3 by it. 4 of unjustifiable exercise of power 5 Claim 50. The person is not required to comply with the notice if a Supreme 6 Court judge decides that, on balance, the purpose for which the information 7 was required to be given, or the document or other thing was required to be 8 produced, does not justify-- 9 (a) the adverse effect on the person's financial interests that would 10 result from complying with the notice; or 11 (b) the intrusion on the privacy of an individual by disclosure of 12 private or confidential matters relating to the individual that would 13 result from complying with the notice. 14 Court applications 15 Supreme 51.(1) The person may apply to a Supreme Court judge for a decision 16 about-- 17 (a) the validity of a claim of privilege under section 48; or 18 (b) whether, under section 50, the person is not required to comply 19 with the notice. 20 (2) The application must be made under the rules of court or, to the extent 21 the rules do not provide, as directed by a Supreme Court judge. 22 (3) The application must be heard in closed court. 23 (4) The applicant has the burden of proof on the application. 24 (5) In deciding the application, a Supreme Court judge may make all 25 orders necessary for the practical operation of this subdivision including, for 26 example-- 27 (a) excusing the person from giving or producing, or ordering the 28 person to give or produce, the whole or part of the information, 29 document or other thing; or 30

 


 

s 52 34 s 53 Commission for Children and Young People (b) amending the notice. 1 (6) Costs of the application are to be borne by the commissioner, unless 2 the judge orders otherwise on the ground that a claim to withhold the 3 information, document or other thing was frivolous, vexatious or lacking in 4 substance. 5 Subdivision 4--Other offences 6 may require oath or affirmation 7 Commissioner 52.(1) This section applies if the commissioner gives a notice for 8 information to a person, requiring the person to-- 9 (a) attend before the commissioner at a stated time and place; or 10 (b) communicate with the commissioner in a stated way and at a 11 stated time about a matter stated in the notice. 12 (2) The commissioner may require the person to either take an oath or 13 make an affirmation and may administer the oath or affirmation. 14 (3) The person must comply with a requirement under subsection (2). 15 Maximum penalty--10 penalty units. 16 (4) If subsection (1)(b) applies, the commissioner may make 17 arrangements appearing to the commissioner to be appropriate in the 18 circumstances for administering the oath or affirmation to the person. 19 (5) Also, the commissioner may allow the person to give information by 20 tendering a written statement, verified, if the commissioner directs, by oath 21 or affirmation. 22 or misleading statements 23 False 53. A person must not state anything to the commissioner, in response to 24 a notice for information, that the person knows is false or misleading in a 25 material particular. 26 Maximum penalty--100 penalty units. 27

 


 

s 54 35 s 57 Commission for Children and Young People or misleading documents 1 False 54.(1) A person must not give to the commissioner, in response to a 2 notice for information, a document containing information the person 3 knows is false or misleading in a material particular. 4 Maximum penalty--100 penalty units. 5 (2) Subsection (1) does not apply to a person if the person, when giving 6 the document-- 7 (a) tells the commissioner, to the best of the person's ability, how it 8 is false or misleading; and 9 (b) if the person has, or can reasonably obtain, the correct 10 information--gives the correct information. 11 or improperly influencing investigation 12 Obstructing 55. A person must not obstruct or improperly influence the conduct of an 13 investigation. 14 Maximum penalty--100 penalty units. 15 Subdivision 5--Matters at end of investigation 16 an investigation in child's best interests 17 Ending 56.(1) The commissioner may stop investigating a complaint if the 18 commissioner is satisfied it would not be in the best interests of a child or 19 children to whom the complaint relates to continue the investigation. 20 (2) Subsection (1) does not limit the commissioner's power to deal with 21 the complaint in another way. 22 of investigation result 23 Notice 57. As soon as practicable after completing an investigation of a 24 complaint, or ending an investigation of a complaint under section 56, the 25 commissioner must give written notice of the commissioner's decision or 26 proposed action in relation to the complaint to the complainant. 27

 


 

s 58 36 s 59 Commission for Children and Young People after investigation 1 Report 58.(1) As soon as practicable after completing an investigation of a 2 complaint, or ending an investigation of a complaint under section 56, the 3 commissioner must prepare a written report and give a copy to-- 4 (a) the chief executive of the department that deals with the subject 5 matter of the complaint; and 6 (b) if the commissioner considers it appropriate--the Minister 7 responsible for the subject matter of the complaint; and 8 (c) if the report relates to a complaint about the delivery of services to 9 children by a private service provider--the service provider. 10 (2) The report may recommend that a service provider (whether or not 11 the service provider to which the complaint relates) take stated action within 12 a stated time that is reasonable in the circumstances. 13 (3) If the report makes a recommendation mentioned in subsection (2) 14 and the commissioner is not satisfied the service provider has taken the 15 stated action within the stated time, the commissioner may give a copy of 16 the report, and the commissioner's comments-- 17 (a) if the service provider is a government service provider--to the 18 Minister responsible for the service provider or the Act under 19 which the service provider is established; or 20 (b) if the service provider is a private service provider--to-- 21 (i) the Minister responsible for the government entity that 22 provides funding to, or administers the funding for, the 23 service provider; or 24 (ii) the local government that provides funding to the service 25 provider. 26 liability for defamation if report made in good faith 27 No 59. It is a lawful excuse for the publication of any defamatory statement 28 made in a report that the publication is made in good faith and is, or 29 purports to be, made for this Act. 30

 


 

s 60 37 s 61 Commission for Children and Young People Subdivision 6--Reports and tabling them 1 of sdiv 6 2 Application 60. This subdivision applies only to reports prepared by the 3 commissioner under this Act. 4 may ask Minister to table report 5 Commissioner 61.(1) The commissioner may, by written notice, ask the Minister to 6 table a report in the Legislative Assembly if-- 7 (a) at least 28 days before finalising the report, the commissioner-- 8 (i) gives a draft of the report to the Minister; and 9 (ii) tells the Minister in writing that the commissioner intends to 10 ask the Minister to table the report; and 11 (b) in finalising the report, the commissioner-- 12 (i) considers any written response from the Minister about the 13 draft; and 14 (ii) to the extent practicable, carries out any further consultation 15 that the Minister asks for; and 16 (iii) includes in the report any written comments from the 17 Minister that the Minister asks be included; and 18 (c) the report does not include any information identifying, or that is 19 likely to lead to the identification of, a person as a complainant or 20 a child who is, or has been, the subject of a complaint under this 21 Act. 22 (2) The Minister must table the report within 14 sitting days of receiving 23 the notice. 24 (3) To remove doubt, it is declared that the Minister may not require the 25 commissioner to change the contents of the report before it is tabled, other 26 than by including the Minister's comments. 27

 


 

s 62 38 s 63 Commission for Children and Young People reports 1 Confidential 62.(1) This section applies if the commissioner asks the Minister to table 2 a report under section 61. 3 (2) The commissioner may also give the Minister a second report about 4 the same matter, containing information that the commissioner considers 5 should not be publicly disclosed on the ground that-- 6 (a) disclosure of the information may not be in the best interests of a 7 child involved in the matter; or 8 (b) disclosure of the information may adversely affect the outcome of 9 an inquiry or investigation by a complaints agency or the police 10 service, or an investigatory body established under a law of the 11 Commonwealth; or 12 (c) the matter dealt with in the second report is before a court. 13 to adverse comment 14 Response 63.(1) The commissioner must not include in a report any comments 15 adverse to an entity identifiable from the report, unless the entity has been 16 given a copy of the comments and given a reasonable opportunity to 17 respond to them. 18 (2) If the entity gives the commissioner a written statement in response to 19 the comments and asks that the statement be included in the report, the 20 commissioner must include the statement in the report. 21 (3) However, if the report will be made public, the commissioner is not 22 required by subsection (2) to include a statement so far as it contains 23 information that the commissioner considers should not be publicly 24 disclosed for a reason mentioned in section 62(2)(a) to (c). 25

 


 

s 64 39 s 66 Commission for Children and Young People ART 4--COMMUNITY VISITORS 1 P Division 1--Preliminary 2 of pt 4 3 Purpose 64. The purpose of this part is to provide for community visitors to 4 promote and protect the rights, interests and wellbeing of children residing 5 at the following places ("visitable sites")-- 6 (a) residential facilities; 7 (b) detention centres; 8 (c) authorised mental health services under the Mental Health Act 9 2000. 10 2--Visits to visitable sites 11 Division must arrange regular and frequent visits 12 Commissioner 65. The commissioner must make arrangements for each visitable site to 13 be visited by a community visitor regularly and frequently. 14 to visit or communicate if asked 15 Requirement 66.(1) A child residing at a visitable site may-- 16 (a) ask the commissioner to arrange for a community visitor to visit 17 the site to perform the functions of a community visitor; or 18 (b) ask a staff member of the site to arrange for a community visitor 19 to visit the site to perform the functions of a community visitor; 20 or 21 (c) inform a staff member of the site that the child wishes to 22 communicate with a stated community visitor. 23 (2) If subsection (1)(b) applies, the staff member must tell the 24 commissioner about the request as soon as practicable. 25

 


 

s 67 40 s 67 Commission for Children and Young People Maximum penalty--10 penalty units. 1 (3) If subsection (1)(c) applies, the staff member must take reasonable 2 steps to inform the community visitor as soon as practicable. 3 Maximum penalty--10 penalty units. 4 (4) A community visitor must comply with a request to visit a site, or 5 communicate with a child residing at a site, as soon as practicable after 6 being informed of the request. 7 after each visit 8 Report 67.(1) As soon as practicable after visiting a visitable site, a community 9 visitor must prepare, and give to the commissioner, a report about the visit. 10 (2) So far as the commissioner considers appropriate, the commissioner 11 may give a copy of the report, or information from the report, to any of the 12 following entities-- 13 (a) a person in charge of the site; 14 (b) a government service provider responsible for regulating the site; 15 (c) the chief executive of an entity responsible for operating the site; 16 (d) the chief executive of a department responsible for providing 17 funding or services to the site; 18 (e) the chief executive of a department responsible for providing 19 services to children residing at the site; 20 (f) a child who is a subject of the report and who asks for the copy or 21 information. 22 (3) However, the commissioner must not give confidential information 23 about a person (the "relevant person") to an entity, other than the relevant 24 person, under subsection (2) unless-- 25 (a) the relevant person authorises the commissioner to give the 26 information; and 27 (b) the relevant person is an adult when giving the authorisation. 28

 


 

s 68 41 s 68 Commission for Children and Young People 3--Functions and powers 1 Division Subdivision 1--Functions 2 unctions 3 F 68.(1) A community visitor has the following functions relating to 4 children residing at visitable sites-- 5 (a) to develop trusting and supportive relationships with the children, 6 so far as is possible; 7 (b) to advocate on behalf of the children by listening to, giving voice 8 to, and facilitating the resolution of, their concerns and grievances; 9 (c) to seek information about, and facilitate access by the children to, 10 support services appropriate to their needs provided by service 11 providers; 12 (d) to assess the adequacy of information given to the children about 13 their rights; 14 (e) to inspect the sites and assess their appropriateness for the 15 accommodation of the children or the delivery of services to 16 them, having regard to relevant State and Commonwealth laws, 17 policies and standards; 18 (f) to observe the treatment of the children, including the extent to 19 which their needs are met by staff of the sites; 20 (g) to assess the physical and emotional wellbeing of the children; 21 (h) to assess the morale of the staff of the sites; 22 (i) for detention centres--to assess whether the programs for the 23 release of children subject to detention orders adequately and 24 appropriately prepare them for release. 25 (2) A community visitor also has the function of giving advice and 26 reports to the commissioner about anything relating to the visitor's 27 functions and powers. 28

 


 

s 69 42 s 70 Commission for Children and Young People Subdivision 2--Power of entry to visitable sites 1 of entry 2 Power 69.(1) A community visitor may enter a visitable site if-- 3 (a) a person in charge of the site consents to the entry; or 4 (b) it is a public place and the entry is made when it is open to the 5 public; or 6 (c) the entry is authorised by a warrant. 7 (2) For the purpose of asking a person in charge for consent to enter, a 8 community visitor may, without the person's consent or a warrant-- 9 (a) enter land around the site to an extent that is reasonable to contact 10 the person; or 11 (b) enter part of the site the community visitor reasonably considers 12 members of the public ordinarily are allowed to enter when they 13 wish to contact the person. 14 to entry 15 Consent 70.(1) This section applies if a community visitor intends to ask a person 16 in charge of a visitable site to consent to the community visitor entering the 17 site under section 69(1)(a). 18 (2) Before asking for the consent, the community visitor must tell the 19 person-- 20 (a) the purpose of the entry; and 21 (b) that the person is not required to consent. 22 (3) If the consent is given, the community visitor may ask the person to 23 sign an acknowledgment of the consent. 24 (4) The acknowledgment must state-- 25 (a) that the person has been told-- 26 (i) the purpose of the entry; and 27 (ii) that the person is not required to consent; and 28

 


 

s 71 43 s 72 Commission for Children and Young People (b) the purpose of the entry; and 1 (c) that the person gives the community visitor consent to enter the 2 place and exercise powers under this division; and 3 (d) the time and date the consent was given. 4 (5) If the person signs the acknowledgment, the community visitor must 5 immediately give a copy to the person. 6 (6) A court must find that a person in charge of a visitable site did not 7 consent to a community visitor entering the site under this division if-- 8 (a) an issue arises in a proceeding before the court whether a person 9 in charge of the site consented to the entry under section 69(1)(a); 10 and 11 (b) an acknowledgment is not produced in evidence for the entry; and 12 (c) it is not proved by the person relying on the lawfulness of the 13 entry that a person in charge of the site consented to the entry. 14 for warrant 15 Application 71.(1) A community visitor may apply to a magistrate for a warrant for a 16 visitable site. 17 (2) The application must be sworn and state the grounds on which the 18 warrant is sought. 19 (3) The magistrate may refuse to consider the application until the 20 community visitor gives the magistrate all the information the magistrate 21 requires about the application in the way the magistrate requires. 22 23 Example-- 24 The magistrate may require additional information supporting the application to be 25 given by statutory declaration. of warrant 26 Issue 72.(1) The magistrate may issue a warrant only if the magistrate is 27 satisfied the community visitor can not properly carry out the visitor's 28 functions without gaining entry to the site. 29

 


 

s 73 44 s 74 Commission for Children and Young People (2) The warrant must state-- 1 (a) that a stated community visitor may, with necessary and 2 reasonable help and force-- 3 (i) enter the visitable site and any other place necessary for 4 entry; and 5 (ii) exercise the community visitor's powers under this division; 6 and 7 (b) the hours of the day or night when the site may be entered; and 8 (c) the date, within 14 days after the warrant's issue, the warrant 9 ends. 10 before entry 11 Warrants--procedure 73.(1) This section applies if a community visitor named in a warrant 12 issued under this subdivision for a visitable site is intending to enter the site 13 under the warrant. 14 (2) Before entering the site, the community visitor must do or make a 15 reasonable attempt to do the following things-- 16 (a) identify himself or herself to a person in charge of the site by 17 producing the community visitor's identity card or another 18 document evidencing the community visitor's appointment; 19 (b) give the person a copy of the warrant; 20 (c) tell the person the community visitor is permitted by the warrant 21 to enter the place; 22 (d) give the person an opportunity to allow the community visitor 23 immediate entry to the place without using force. 24 Subdivision 3--Other powers 25 powers 26 Related 74. After entering a visitable site, a community visitor may-- 27 (a) inspect the site; or 28

 


 

s 75 45 s 76 Commission for Children and Young People (b) inspect or copy a document held at the site that relates to a child 1 residing at the site or the operations of the site. 2 in relation to staff of sites 3 Powers 75.(1) A community visitor may, at any reasonable time, require a staff 4 member of a visitable site to give the visitor reasonable help to-- 5 (a) obtain information about the site and its operation; or 6 (b) have access to a child residing at the site; or 7 (c) talk with a child residing at the site, out of the hearing of staff and 8 management of the site and other persons at the site; or 9 (d) exercise the visitor's powers under section 74. 10 (2) The staff member must comply with the requirement, unless the staff 11 member has a reasonable excuse. 12 Maximum penalty--40 penalty units. 13 (3) If the requirement is to give information or produce a document, it is 14 a reasonable excuse for the staff member not to comply with the 15 requirement that complying with the requirement might tend to incriminate 16 the staff member. 17 (4) A staff member does not commit an offence against subsection (2) 18 unless, when making the requirement, the visitor warns the staff member it 19 is an offence to fail to comply with the requirement unless the staff member 20 has a reasonable excuse. 21 to require documents to be produced 22 Power 76.(1) A community visitor may require a staff member of a visitable 23 site to produce for inspection, at a reasonable time and place nominated by 24 the visitor, a document held at the site that relates to a child residing at the 25 site or the operations of the site. 26 (2) The staff member must produce the document, unless the staff 27 member has a reasonable excuse. 28 Maximum penalty--40 penalty units. 29 (3) A staff member does not commit an offence against subsection (2) 30

 


 

s 77 46 s 78 Commission for Children and Young People unless, when making the relevant requirement, the visitor warns the staff 1 member it is an offence to fail to comply with the requirement unless the 2 staff member has a reasonable excuse. 3 (4) The visitor may keep the document to copy it. 4 (5) If the visitor copies the document, the visitor may require the staff 5 member responsible for keeping the document to certify the copy as a true 6 copy of the document. 7 (6) The visitor must return the document to the staff member as soon as 8 practicable after copying it. 9 (7) However, if a requirement is made of the staff member under 10 subsection (5), the visitor may keep the document until the staff member 11 complies with the requirement. 12 Subdivision 4--Exercise of powers 13 views and wishes 14 Child's 77.(1) To the greatest extent practicable, a community visitor must seek, 15 and take into account, the views and wishes of a child residing at a visitable 16 site before-- 17 (a) asking a staff member of the site a question about the child; or 18 (b) inspecting, taking extracts from, or making copies of, a document 19 held at the site that relates to the child. 20 (2) The child's views and wishes may be expressed orally, in writing or 21 in another way, including, for example, by conduct. 22 (3) The child's views and wishes should be taken into account in a way 23 that has regard to the child's age and maturity. 24 visitor to respect privacy of children residing at a site 25 Community 78. In exercising a power or performing a function in relation to a 26 visitable site, a community visitor must act in a way that-- 27 (a) preserves, as far as practicable, the privacy of children residing at 28 the site; and 29

 


 

s 79 47 s 81 Commission for Children and Young People (b) respects the wishes of any of the children who does not wish to 1 communicate with the visitor. 2 directions about the exercise of powers 3 Commissioner's 79. A community visitor is subject to the commissioner's directions in 4 the exercise of a power. 5 directions about visiting detention centres 6 Security 80.(1) The chief executive of the department in which the JuvenileJustice 7 Act 1992 is administered may give directions to a community visitor, about 8 the conduct of visits to a detention centre, that the chief executive considers 9 necessary for maintaining the security of the centre. 10 (2) The community visitor must comply with the directions when 11 visiting the centre. 12 Division 4--Appointment of community visitors 13 14 Appointment 81.(1) The commissioner may appoint community visitors. 15 (2) An appointment may be on a full-time, part-time or casual basis. 16 (3) A person is eligible for appointment as a community visitor only if 17 the commissioner considers the person has-- 18 (a) the knowledge, experience and skills needed to perform a 19 community visitor's functions; and 20 (b) a demonstrated commitment to upholding the principles 21 underlying this Act.7 22 (4) In appointing community visitors, the commissioner must take into 23 account the desirability of the community visitors reflecting the social and 24 cultural diversity of children in Queensland. 25 7 See section 6 (Principles underlying this Act).

 


 

s 82 48 s 82 Commission for Children and Young People (5) A person may not hold office as a community visitor while the 1 person is-- 2 (a) a member of the police service; or 3 (b) a public service employee employed in the department in which 4 the Child Protection Act 1999 is administered or a department 5 whose primary responsibilities include health, disability services 6 or correctional institutions; or 7 (c) engaged in any capacity in relation to a correctional institution, 8 other than as an official visitor under the Corrective Services Act 9 1988. 10 (6) A community visitor is a member of the commission's staff. 11 (7) A community visitor is appointed under this Act and not under the 12 Public Service Act 1996. 13 of appointment 14 Duration 82.(1) A community visitor-- 15 (a) holds office for the period, not more than 2 years, stated in the 16 appointment; and 17 (b) is eligible for reappointment; and 18 (c) may resign at any time by giving a signed notice of resignation to 19 the commissioner. 20 (2) The commissioner may terminate the appointment of a community 21 visitor if the commissioner is satisfied the community visitor-- 22 (a) has become physically or mentally incapable of satisfactorily 23 performing the duties of a community visitor; or 24 (b) has performed the community visitor's duties carelessly, 25 incompetently or inefficiently; or 26 (c) is guilty of misconduct that could warrant dismissal from the 27 public service if the community visitor were a public service 28 officer; or 29 (d) has been found guilty of an offence the commissioner reasonably 30

 


 

s 83 49 s 85 Commission for Children and Young People considers makes the person inappropriate to perform the duties of 1 a community visitor. 2 (3) The commissioner must terminate the appointment of a community 3 visitor if the commissioner is satisfied the community visitor is a person 4 who may not hold office as a community visitor under section 81(5). 5 of appointment 6 Terms 83.(1) The commissioner must decide the remuneration and allowances 7 payable to community visitors. 8 (2) A community visitor is entitled to be paid the remuneration and 9 allowances decided by the commissioner. 10 (3) To the extent this Act does not state the terms on which a community 11 visitor holds office, the community visitor holds office on the terms decided 12 by the commissioner. 13 5--Identity cards 14 Division card 15 Identity 84.(1) The commissioner must give each community visitor an identity 16 card. 17 (2) The identity card must-- 18 (a) contain a recent photograph of the visitor; and 19 (b) be signed by the visitor; and 20 (c) identify the person as a visitor for this Act. 21 (3) This section does not prevent the issue of a single identity card to a 22 person for this Act and other Acts. 23 to return identity card 24 Failure 85. A person who ceases to be a community visitor must return the 25 person's identity card to the commissioner as soon as possible (but within 26

 


 

s 86 50 s 89 Commission for Children and Young People 21 days) after the person ceases to be a community visitor, unless the 1 person has a reasonable excuse. 2 Maximum penalty--10 penalty units. 3 or display of identity card 4 Production 86. A community visitor may exercise a power in relation to another 5 person only if the visitor-- 6 (a) first produces his or her identity card for the person's inspection; 7 or 8 (b) has the visitor's identity card displayed so it is clearly visible to 9 the other person. 10 6--Miscellaneous 11 Division of visitor in exercise of powers 12 Obstruction 87. A staff member of a visitable site must not obstruct a community 13 visitor in the exercise of a power, unless the staff member has a reasonable 14 excuse. 15 Maximum penalty--50 penalty units. 16 of correspondence between community visitor and residents 17 Privacy 88. A staff member of a visitable site must not open, read, copy or 18 remove any correspondence sent, or being sent, between a community 19 visitor and a child residing at the site, unless the child asks the staff member 20 to do so. 21 Maximum penalty--20 penalty units. 22 report by commissioner 23 Annual 89. The commissioner must include in the commission's annual report 24 for a financial year a report on the operations of community visitors during 25 the year. 26

 


 

s 90 51 s 92 Commission for Children and Young People PART 5--ADVISORY COMMITTEES 1 2 Establishment 90. The commissioner may establish as many of the following 3 committees as the commissioner considers appropriate-- 4 (a) expert advisory committees; 5 (b) youth advisory committees; 6 (c) other advisory committees. 7 8 Membership 91.(1) An advisory committee has the membership decided by the 9 commissioner. 10 (2) The commissioner may appoint a person to an expert advisory 11 committee only if the commissioner is satisfied the person has expertise, 12 relevant to children, in the field of the arts, child protection, child 13 psychology and development, disabilities, education, employment, health, 14 law, sports or vocational education and training. 15 unctions 16 F 92.(1) An advisory committee's function is to help the commissioner 17 effectively and efficiently perform the commissioner's functions by-- 18 (a) for an expert advisory committee--advising the commissioner on 19 matters in relation to which the committee has expertise; or 20 (b) for a youth advisory committee--advising the commissioner, 21 from a youth perspective, on matters relevant to this Act; or 22 (c) for another committee--advising the commissioner on matters 23 referred to it by the commissioner. 24 (2) It is not an advisory committee's function to advise the commissioner 25 on the day-to-day management of the commission. 26

 


 

s 93 52 s 97 Commission for Children and Young People 1 Dissolution 93. The commissioner may dissolve an advisory committee at any time. 2 matters 3 Other 94. The commissioner may decide matters about an advisory committee 4 that are not provided for under this Act, including, for example, the way a 5 committee must conduct meetings or report to the commissioner. 6 ART 6--EMPLOYMENT SCREENING FOR 7 P CHILD-RELATED EMPLOYMENT 8 Division 1--Preliminary 9 of pt 6 10 Purpose 95. The purpose of this part is to ensure that only suitable persons are 11 employed in certain child-related employment or carry on certain 12 child-related businesses. 13 and wellbeing of children to be paramount consideration 14 Safety 96. Without limiting section 6,8 the paramount consideration in making a 15 decision under this part is a child's entitlement to be cared for in a way that 16 protects the child from harm and promotes the child's wellbeing. 17 and businesses regulated by this part 18 Employment 97.(1) This part concerns-- 19 (a) employment of a type mentioned in schedule 1, part 1 20 ("regulated employment"); and 21 8 Section 6 (Principles underlying this Act)

 


 

s 98 53 s 99 Commission for Children and Young People (b) the carrying on of a business of a type mentioned in schedule 1, 1 part 2 (a "regulated business"). 2 (2) This part does not apply to the unpaid employment of a child. 3 part applies despite the Criminal Law (Rehabilitation of 4 This Offenders) Act 1986 5 98. This part applies to a person despite anything in the Criminal Law 6 (Rehabilitation of Offenders) Act 1986. 7 is employment 8 What 99.(1) For this part, a person is employing another person if the first 9 person has an agreement with the other person for the other person to carry 10 out work. 11 (2) It is immaterial for this section-- 12 (a) whether the agreement is written or unwritten; and 13 (b) whether the work is carried out voluntarily or for financial reward; 14 and 15 (c) what a person's motivation is for carrying out the work; and 16 (d) the time for which the person is engaged to carry out the work. 17 18 Examples of `employment'-- 19 1. A person is engaged by a school as a cleaner under a written contract of 20 employment. 21 2. A person orally agrees with the manager of a club to coach a children's 22 sporting team during a season. 23 3. The manager of a counselling organisation agrees with an adult student that 24 the student attend the organisation's office each day during a semester and 25 carry out various duties, on a voluntary basis, in order to obtain work 26 experience. 27 4. A person is engaged by another person to provide religious instruction to 28 children for 1 day.

 


 

s 100 54 s 101 Commission for Children and Young People 2--Issue of suitability notices 1 Division for notice--regulated employment 2 Application 100.(1) A person (the "employer") who proposes to start employing, or 3 continue employing, another person (the "employee") in regulated 4 employment, may apply to the commissioner for a suitability notice stating 5 whether the employee is a suitable person for child-related employment. 6 (2) The application must be-- 7 (a) in the approved form; and 8 (b) signed by, or on behalf of, the employer; and 9 (c) signed by the employee; and 10 (d) accompanied by the prescribed fee. 11 (3) The approved form must include provision for-- 12 (a) identifying information about the employee; and 13 (b) certification by the employer that the employer has complied with 14 subsection (4); and 15 (c) the employee's consent to employment screening under this part. 16 (4) Before making the application, the employer must sight the 17 documents, relating to proof of the employee's identity, prescribed under a 18 regulation. 19 (5) On receiving the application, the commissioner may ask the employer 20 or employee, orally or in writing, for further information that the 21 commissioner reasonably needs to establish the employee's identity.9 22 for notice--regulated business 23 Application 101.(1) A person who proposes to carry on, or continue carrying on, a 24 regulated business may apply to the commissioner for a suitability notice 25 stating whether the person is a suitable person for child-related employment. 26 9 See section 123 (Withdrawal of employee's consent to employment screening) in relation to an employee failing to comply with a written request for further identifying information.

 


 

s 101 55 s 101 Commission for Children and Young People (2) The application must be-- 1 (a) in the approved form; and 2 (b) signed by the person; and 3 (c) accompanied by the prescribed fee. 4 (3) The approved form must include provision for-- 5 (a) identifying information about the person; and 6 (b) certification by a prescribed person that the prescribed person has 7 sighted the documents, relating to proof of the person's identity, 8 prescribed under a regulation. 9 (4) The person may withdraw the application at any time before it is 10 decided. 11 (5) On receiving the application, the commissioner may ask the person, 12 orally or in writing, for further information that the commissioner 13 reasonably needs to establish the person's identity. 14 (6) The person is taken to have withdrawn the application if-- 15 (a) the commissioner gives the person a notice-- 16 (i) asking the person to provide, within a reasonable stated time, 17 stated information that the commissioner reasonably needs 18 to establish the person's identity; and 19 (ii) warning the person that, if the person does not comply with 20 the request, the person's application will be taken to have 21 been withdrawn; and 22 (b) the person does not comply with the request within the stated 23 time; and 24 (c) the commissioner can not establish with certainty the person's 25 identity; and 26 (d) the commissioner gives the person a notice stating that the person 27 is taken to have withdrawn the application. 28 (7) In this section-- 29 "prescribed person" means a justice, commissioner for declarations, 30 lawyer or police officer. 31

 


 

s 102 56 s 102 Commission for Children and Young People on application 1 Decision 102.(1) If an application for a suitability notice about a person is made 2 under section 100 or 101, the commissioner must decide the application by 3 issuing-- 4 (a) a suitability notice declaring the person to be a suitable person for 5 child-related employment (a "positive notice"); or 6 (b) a suitability notice declaring the person to be an unsuitable person 7 for child-related employment (a "negative notice"). 8 (2) If the commissioner is not aware of any convictions or charges of the 9 person for any offence, the commissioner must issue a positive notice. 10 (3) If the commissioner is not aware of any convictions of the person for 11 any offence but is aware of a charge of the person for an offence, the 12 commissioner must issue a positive notice unless the commissioner is 13 satisfied it is an exceptional case in which it would not be in the best 14 interests of children for the commissioner to issue a positive notice. 15 (4) If the commissioner is aware of a conviction of the person for a 16 serious offence, the commissioner must issue a negative notice unless the 17 commissioner is satisfied it is an exceptional case in which it would not 18 harm the best interests of children for the commissioner to issue a positive 19 notice. 20 (5) If the commissioner is aware of a conviction or charge of the person 21 for an offence, the commissioner must decide the application having regard 22 to the following matters relating to the commission, or alleged commission, 23 of the offence by the person-- 24 (a) whether it is a conviction or a charge; 25 (b) whether the offence is a serious offence; 26 (c) when the offence was committed or is alleged to have been 27 committed; 28 (d) the nature of the offence and its relevance to child-related 29 employment; 30 (e) anything else the commissioner reasonably considers to be 31 relevant to the assessment of the person. 32 (6) On deciding the application, the commission must issue the suitability 33

 


 

s 103 57 s 104 Commission for Children and Young People notice to the person to whom it relates and, if the application is made by the 1 person's employer, must give a copy of the notice to the employer. 2 (7) A negative notice issued to the person must be accompanied by a 3 notice stating-- 4 (a) the reasons for the commissioner's decision on the application; 5 and 6 (b) that, within 28 days after receiving the notice, the person may 7 apply to the Children Services Tribunal to have the decision 8 reviewed; and 9 (c) how the person may apply for the review. 10 to invite submissions from person about criminal 11 Commissioner history 12 103.(1) If the commissioner proposes to decide the application by issuing 13 a negative notice, the commissioner must give the person a written notice-- 14 (a) stating the information about the person's criminal history of 15 which the commissioner is aware; and 16 (b) inviting the person to give the commissioner, within a stated time, 17 a submission (oral or written) about the information or about the 18 person's suitability for child-related employment. 19 (2) The stated time must be reasonable and, in any case, at least 7 days 20 after the commissioner gives the notice to the person. 21 (3) Before deciding the application, the commissioner must consider any 22 submission received from the person within the stated time. 23 of notice 24 Currency 104.(1) A negative notice remains current until it is cancelled under 25 division 4. 26 (2) A positive notice remains current for 2 years after it is issued, unless 27 it is earlier cancelled under division 4. 28

 


 

s 105 58 s 106 Commission for Children and Young People 3--Obligations and offences relating to suitability notices 1 Division 1--Regulated employment 2 Subdivision employment of certain regular employees 3 Continuing 105.(1) This section applies if-- 4 (a) a person (the "employee") is employed in regulated employment 5 under an agreement with another person (the "employer"); and 6 (b) in the course of the employment, or in the course of regulated 7 employment under any other previous agreements with the 8 employer made within the previous year, the employee has 9 carried out work-- 10 (i) at least once a week over the course of 1 month; or 11 (ii) at least once a fortnight over the course of 2 months; or 12 (iii) at least once a month over the course of 6 months; and 13 (c) the employee does not have a current positive notice. 14 (2) The employer must not continue to employ the employee in regulated 15 employment unless the employer has applied for a suitability notice, or 16 further suitability notice, about the employee. 17 Maximum penalty--10 penalty units. 18 employment of certain regular employees 19 Starting 106.(1) This section applies if-- 20 (a) a person (the "employee") is not employed in regulated 21 employment but has previously been employed in regulated 22 employment under 1 or more agreements with another person 23 (the "employer"); and 24 (b) in the course of the regulated employment under the previous 25 agreement or agreements, the employee has carried out work-- 26 (i) at least once a week over the course of 1 month; or 27 (ii) at least once a fortnight over the course of 2 months; or 28

 


 

s 107 59 s 108 Commission for Children and Young People (iii) at least once a month over the course of 6 months; and 1 (c) it is less than 1 year since the employee last carried out the 2 regulated employment mentioned in paragraph (b); and 3 (d) the employee does not have a current positive notice. 4 (2) The employer must not employ the employee in regulated 5 employment unless the employer has applied for a suitability notice about 6 the employee. 7 Maximum penalty--10 penalty units. 8 employment 9 Prohibited 107.(1) This section applies if a person (the "employee") does not have a 10 current positive notice. 11 (2) A person (the "employer") must not employ, or continue to employ, 12 the employee in regulated employment if-- 13 (a) the employer has applied for a suitability notice about the 14 employee and has been notified by the commissioner that the 15 employee has withdrawn the employee's consent to employment 16 screening under this part; or 17 (b) the employer is aware that the employee has a conviction for a 18 serious offence; or 19 (c) the employer is aware that a negative notice has been issued to the 20 employee and is current. 21 Maximum penalty-- 22 (a) for paragraph (a)--10 penalty units; or 23 (b) for paragraphs (b) and (c)--100 penalty units. 24 person not to apply for, or start or continue in, 25 Unsuitable child-related employment 26 108. A person must not apply for, or start or continue in, regulated 27 employment if a negative notice has been issued to the person and is 28 current. 29

 


 

s 109 60 s 110 Commission for Children and Young People Maximum penalty-- 1 (a) if the person has a conviction for a serious offence involving a 2 child--500 penalty units or 5 years imprisonment; or 3 (b) if the person has a conviction for a serious offence that did not 4 involve a child--200 penalty units or 2 years imprisonment; or 5 (c) otherwise--100 penalty units or 1 year's imprisonment. 6 Subdivision 2--Regulated business 7 on regulated business 8 Carrying 109. A person must not carry on a regulated business unless the person 9 has a current positive notice. 10 Maximum penalty-- 11 (a) if the person has a conviction for a serious offence involving a 12 child--500 penalty units or 5 years imprisonment; or 13 (b) if the person has a conviction for a serious offence that did not 14 involve a child--200 penalty units or 2 years imprisonment; or 15 (c) if paragraphs (a) and (b) do not apply and a negative notice has 16 been issued to the person and the notice is current--100 penalty 17 units or 1 year's imprisonment; or 18 (d) otherwise--10 penalty units. 19 Subdivision 3--Changes in criminal history 20 a criminal history 21 Acquiring 110. For a person who does not have a criminal history, there is taken to 22 be a change in the person's criminal history if the person acquires a criminal 23 history. 24

 


 

s 111 61 s 112 Commission for Children and Young People of conviction for serious offence 1 Effect 111.(1) This section applies to a person with a current positive notice if 2 the person is convicted of a serious offence. 3 (2) Until the notice is cancelled and a further positive notice is issued to 4 the person, the following applies-- 5 (a) if the person is employed in regulated employment, the person 6 must not carry out any work in the course of the employment; 7 (b) if the person is not in regulated employment, the person must not 8 start regulated employment; 9 (c) the person must not start or continue carrying out a regulated 10 business. 11 Maximum penalty-- 12 (a) if the conviction is for a serious offence involving a 13 child--500 penalty units or 5 years imprisonment; or 14 (b) otherwise--200 penalty units or 2 years imprisonment. 15 in criminal history of employee 16 Change 112.(1) This section applies to a person employed in regulated 17 employment if there is a change in the person's criminal history. 18 (2) The person must immediately disclose to the person's employer that 19 there has been a change in the person's criminal history. 20 Maximum penalty--100 penalty units. 21 (3) On receiving the disclosure, the employer must not continue to 22 employ the person in regulated employment without applying for a 23 suitability notice, or further suitability notice, about the person. 24 Maximum penalty--100 penalty units. 25 (4) To remove doubt, it is declared that-- 26 (a) it is not a requirement of subsection (2) that the person give the 27 person's employer any information about the change other than 28 that a change has happened; and 29

 


 

s 113 62 s 114 Commission for Children and Young People (b) it is not a requirement of subsection (3) that the employer stop 1 employing the person on receiving the disclosure. 2 in criminal history of person carrying on regulated business 3 Change 113.(1) This section applies to a person carrying on a regulated business 4 if there is a change in the person's criminal history. 5 (2) The person must immediately apply for a further suitability notice. 6 Maximum penalty--100 penalty units. 7 in criminal history of other persons 8 Change 114.(1) This section applies if-- 9 (a) a person has a current positive notice; and 10 (b) there has been a change in the person's criminal history since the 11 notice was issued; and 12 (c) the person is not employed in regulated employment or carrying 13 on a regulated business. 14 (2) Before starting regulated employment, the person must notify the 15 person's proposed employer that there has been a change in the person's 16 criminal history since the person's current suitability notice was issued. 17 Maximum penalty--100 penalty units. 18 (3) On receiving the disclosure, the employer must not employ the 19 person in regulated employment without applying for a further suitability 20 notice about the person. 21 Maximum penalty--100 penalty units. 22 (4) Before starting to carry on a regulated business, the person must 23 apply for a further suitability notice. 24 Maximum penalty--100 penalty units. 25

 


 

s 115 63 s 117 Commission for Children and Young People 4--General 1 Subdivision or misleading disclosure 2 False 115. A person must not-- 3 (a) give another person who is proposing to employ the person in 4 regulated employment information for this part that is false or 5 misleading in a material particular; or 6 (b) state anything to the commissioner for this part that the person 7 knows is false or misleading in a material particular. 8 Maximum penalty--100 penalty units or 2 years imprisonment. 9 or misleading documents 10 False 116.(1) A person must not give the commissioner a document for this 11 part containing information the person knows is false or misleading in a 12 material particular. 13 Maximum penalty--100 penalty units or 2 years imprisonment. 14 (2) Subsection (1) does not apply to a person if the person, when giving 15 the document-- 16 (a) tells the commissioner, to the best of the person's ability, how it 17 is false or misleading; and 18 (b) if the person has, or can reasonably obtain, the correct 19 information--gives the correct information. 20 of notice to commissioner 21 Return 117.(1) This section applies to a person with a current positive notice if-- 22 (a) the person is convicted of a serious offence; or 23 (b) the commissioner cancels the notice and issues a negative notice 24 to the person. 25 (2) The person must immediately return the positive notice to the 26 commissioner, unless the person has a reasonable excuse. 27 Maximum penalty--100 penalty units. 28

 


 

s 118 64 s 119 Commission for Children and Young People 4--Cancellation and replacement of suitability notices 1 Division of suitability notice on application 2 Cancellation 118.(1) This section applies if the commissioner has issued a negative 3 notice to a person and the notice is current. 4 (2) The person may apply to the commissioner to cancel the notice. 5 (3) The application may not be made less than 2 years after the issue of 6 the notice or any previous application by the person under this section. 7 (4) The application must be-- 8 (a) in the approved form; and 9 (b) signed by the person; and 10 (c) accompanied by the prescribed fee. 11 (5) The person may state in the application anything the person considers 12 relevant to the commissioner's decision about whether the person is a 13 suitable person for child-related employment including, in particular, any 14 change in the person's circumstances since the negative notice was issued. 15 (6) Sections 102 and 103 apply to the application as if-- 16 (a) the application were an application for a suitability notice; and 17 (b) a reference in the provisions to issuing a positive notice were a 18 reference to granting the application; and 19 (c) a reference in the provisions to issuing a negative notice were a 20 reference to refusing the application. 21 (7) If the commissioner grants the application, the commissioner must 22 cancel the suitability notice to which the application relates and issue a 23 positive notice to the person. 24 of notice--wrong or incomplete information 25 Cancellation 119.(1) The commissioner may cancel a suitability notice (the "first 26 notice") and substitute another suitability notice (the "new notice") if the 27 commissioner is satisfied-- 28

 


 

s 120 65 s 121 Commission for Children and Young People (a) the decision on the application for the first notice was based on 1 wrong or incomplete information; and 2 (b) based on the correct or complete information, the commissioner 3 should issue the new notice. 4 (2) However, if the commissioner proposes to substitute a negative 5 notice, the commissioner must first comply with section 103. 6 (3) An application for cancellation of the first notice may be made by the 7 person about whom it was issued or the person who applied for it. 8 (4) Subsection (1) applies whether or not anyone applies for the 9 cancellation. 10 (5) The commissioner must issue the new notice to the person about 11 whom it is issued and, if the applicant is someone else, give a copy to the 12 applicant. 13 of notice on issue of new notice 14 Cancellation 120.(1) This section applies if the commissioner receives an application 15 for a further suitability notice about a person for whom there is a current 16 suitability notice. 17 (2) The commissioner must cancel the current suitability notice when 18 issuing the further suitability notice. 19 5--Miscellaneous 20 Division may apply for review of decision 21 Person 121.(1) A person may apply to the Children Services Tribunal to have 22 either of the following decisions by the commissioner reviewed-- 23 (a) a decision to issue a negative notice about the person; 24 (b) a decision refusing an application to cancel a negative notice about 25 the person. 26 (2) If a person applies under subsection (1) to have a decision reviewed, 27 the tribunal may not stay the operation of the decision. 28

 


 

s 122 66 s 123 Commission for Children and Young People may obtain information from police commissioner 1 Commissioner 122.(1) This section applies to a person if-- 2 (a) the person has a current positive notice; or 3 (b) the commissioner has received an application for a suitability 4 notice about the person and the application has not been 5 withdrawn and the person has not withdrawn his or her consent to 6 employment screening under this part; or 7 (c) the person has applied to the commissioner to cancel a negative 8 notice about the person. 9 (2) The commissioner may ask the police commissioner for information, 10 or for access to the police commissioner's records, to enable the 11 commissioner to learn what the person's current criminal history (if any) is. 12 (3) If the person has a criminal history, the commissioner may ask the 13 police commissioner for a brief description of the circumstances of a 14 conviction or charge mentioned in the criminal history. 15 (4) The police commissioner must comply with a request under this 16 section. 17 (5) However, the duty imposed on the police commissioner to comply 18 with a request applies only to information in the police commissioner's 19 possession or to which the police commissioner has access. 20 of employee's consent to employment screening 21 Withdrawal 123.(1) This section applies if the commissioner-- 22 (a) has received an application from a person (the "employer") for a 23 suitability notice about another person (the "employee"); and 24 (b) has not yet issued the suitability notice. 25 (2) The employee may give a written notice to the commissioner 26 withdrawing the employee's consent to employment screening under this 27 part. 28 (3) The employee is taken to have withdrawn his or her consent to 29 employment screening under this part if-- 30

 


 

s 124 67 s 124 Commission for Children and Young People (a) the commissioner gives the employee a notice-- 1 (i) asking the employee to provide, within a reasonable stated 2 time, stated information that the commissioner reasonably 3 needs to establish the employee's identity; and 4 (ii) warning the employee that, if the employee does not comply 5 with the request, the commissioner may give the employee a 6 notice of deemed withdrawal; and 7 (b) the employee does not comply with the request within the stated 8 time; and 9 (c) the commissioner can not establish with certainty the employee's 10 identity; and 11 (d) the commissioner gives the employee and the employer a notice 12 of deemed withdrawal relating to the employee. 13 (4) If the employee withdraws his or her consent to employment 14 screening under this part before the commissioner issues a suitability notice 15 about the employee-- 16 (a) the commissioner must not issue the suitability notice; and 17 (b) if the employee withdraws consent by giving a written notice to 18 the commissioner, the commissioner must give written notice of 19 the withdrawal to the employer. 20 (5) In this section-- 21 "notice of deemed withdrawal", relating to the employee, means a written 22 notice stating that the employee is taken to have withdrawn his or her 23 consent to employment screening under this part. 24 with requirement to end, or not start, a person's 25 Compliance regulated employment 26 124.(1) This section applies if it would be a contravention of a provision 27 of this part for a person (the "employer") to employ another person (the 28 "employee") in regulated employment. 29 (2) The employer must comply with the provision despite another Act or 30 law or any industrial award or agreement. 31 (3) The employer does not incur any liability because, in compliance with 32

 


 

s 125 68 s 127 Commission for Children and Young People the provision, the employer does not employ the employee in regulated 1 employment. 2 for dealing with information 3 Guidelines 125.(1) The commissioner must make guidelines, consistent with this 4 Act, for dealing with information obtained by the commissioner under this 5 part. 6 (2) The purpose of the guidelines is to ensure-- 7 (a) natural justice is afforded to the persons about whom the 8 information is obtained; and 9 (b) only relevant information is used in making 10 employment-screening decisions; and 11 (c) employment-screening decisions, based on the information, are 12 made consistently. 13 (3) The commissioner must give a copy of the guidelines to a person on 14 request. 15 of criminal history information 16 Use 126. The commissioner must not use information obtained under this 17 part, about a person's criminal history, other than for this part. 18 Division 6--Transitional 19 application of this part 20 Initial 127.(1) For 1 year after this part commences, it does not apply to the 21 unpaid employment of an adult. 22 (2) This part does not apply to the employment of a person under an 23 agreement entered into before the time this part would otherwise start to 24 apply to the employment. 25 (3) This section applies subject to section 128. 26

 


 

s 128 69 s 128 Commission for Children and Young People for suitability notice for current employee 1 Application 128.(1) This section applies if-- 2 (a) on the commencement of division 3, subdivision 1, a person (the 3 "employer") was employing another person (the "employee") in 4 regulated employment; and 5 (b) the employer knows, or reasonably suspects, the employee has a 6 criminal history that may make the employee unsuitable for 7 child-related employment. 8 9 Example-- 10 An allegation is made to the employer about the employee. The matter of the 11 allegation is relevant to the employee's suitability for child-related employment 12 and the employer reasonably considers the allegation to be reliable. (2) The employer may apply to the commissioner for a suitability notice 13 about the employee. 14 (3) The application must be-- 15 (a) in the approved form; and 16 (b) signed by, or on behalf of, the employer; and 17 (c) accompanied by the prescribed fee. 18 (4) The approved form must include provision for-- 19 (a) identifying information about the employee; and 20 (b) the information supporting the employer's knowledge or 21 suspicion mentioned in subsection (1)(b). 22 (5) On receiving the application, the commissioner may give a notice to 23 the employee stating-- 24 (a) the information mentioned in subsection (4)(b); and 25 (b) that the commissioner proposes to ask the police commissioner 26 for access to the police commissioner's records to enable the 27 commissioner to learn-- 28 (i) whether the employee has a criminal history; and 29 (ii) if the employee has a criminal history, what the criminal 30 history is; and 31

 


 

s 128 70 s 128 Commission for Children and Young People (c) inviting the employee to give the commissioner, within a stated 1 time, a submission (oral or written) about the matters raised in the 2 application. 3 (6) The stated time mentioned in subsection (5)(c) must be reasonable 4 and, in any case, at least 7 days after the commissioner gives the notice to 5 the employee. 6 (7) The commissioner may proceed to deal with the application as if it 7 had been made under section 100 if-- 8 (a) the commissioner gives the employee a notice under 9 subsection (5); and 10 (b) having regard to the information in the application and any 11 submissions received from the employee in response to the notice 12 given to the employee, the commissioner is satisfied-- 13 (i) the employer has a reasonable basis for the knowledge or 14 suspicion mentioned in subsection (1)(b); and 15 (ii) that, if the employee has the criminal history mentioned in 16 the application, the commissioner would be likely to decide 17 the employee is unsuitable for child-related employment; and 18 (c) the employee is still employed by the employer in regulated 19 employment. 20 (8) If the commissioner proceeds to deal with the application under 21 subsection (7), this Act applies to the application as if it had been made 22 under section 100. 23

 


 

s 129 71 s 132 Commission for Children and Young People PART 7--CRIMINAL HISTORY CHECKS OF 1 COMMISSION'S STAFF 2 Division 1--Preliminary 3 of pt 7 4 Purpose 129. The purpose of this part is to enable the commissioner to obtain the 5 criminal history of, and related information about, a person who is or who 6 proposes to be a member of the commission's staff (a "staff member"), so 7 that the commissioner can assess the person's suitability to be, or continue 8 to be, a staff member. 9 part applies despite the Criminal Law (Rehabilitation of 10 This Offenders) Act 1986 11 130. This part applies to a person despite anything in the Criminal Law 12 (Rehabilitation of Offenders) Act 1986. 13 to advise of duties of disclosure etc. 14 Commissioner 131. Before a person is engaged as a staff member, the commissioner 15 must tell the person-- 16 (a) of the person's duties of disclosure under this part; and 17 (b) that the commissioner may obtain the information about the 18 person mentioned in section 136; and 19 (c) that guidelines for dealing with information obtained by the 20 commissioner under this part are available from the 21 commissioner on request. 22 Division 2--Disclosure of criminal history 23 seeking to be a staff member must disclose criminal history 24 Person 132. A person seeking to be a staff member must disclose to the 25

 


 

s 133 72 s 135 Commission for Children and Young People commissioner, before being engaged-- 1 (a) whether or not the person has a criminal history; and 2 (b) if the person has a criminal history--the person's complete 3 criminal history. 4 member must disclose changes in criminal history 5 Staff 133.(1) If there is a change in a staff member's criminal history, the staff 6 member must immediately disclose to the commissioner the details of the 7 change. 8 (2) For a staff member who does not have a criminal history, there is 9 taken to be a change in the staff member's criminal history if the staff 10 member acquires a criminal history. 11 for disclosure 12 Requirements 134.(1) To comply with section 132 or 133, a person must give the 13 commissioner a disclosure in the approved form. 14 (2) The information disclosed by a person about a conviction or charge of 15 an offence in the person's criminal history must include-- 16 (a) the existence of the conviction or charge; and 17 (b) when the offence was committed or alleged to have been 18 committed; and 19 (c) the details of the offence or alleged offence; and 20 (d) for a conviction, whether or not a conviction was recorded and the 21 sentence imposed on the person. 22 or misleading disclosure or failure to disclose 23 False 135.(1) A person must not-- 24 (a) give the commissioner a disclosure for this division that is false 25 or misleading in a material particular; or 26 (b) fail to give the commissioner a disclosure as required under 27 section 133, unless the person has a reasonable excuse. 28

 


 

s 136 73 s 136 Commission for Children and Young People Maximum penalty--100 penalty units or 2 years imprisonment. 1 (2) Subsection (1)(a) does not apply to a person if the person, when 2 giving the document-- 3 (a) tells the commissioner, to the best of the person's ability, how it 4 is false or misleading; and 5 (b) if the person has, or can reasonably obtain, the correct 6 information--gives the correct information. 7 Division 3--Commissioner may obtain information from other entities 8 about criminal history and certain investigations 9 may obtain report from police commissioner 10 Commissioner 136.(1) This section applies to a person who-- 11 (a) is a staff member; or 12 (b) seeks to be a staff member and has given the commissioner a 13 disclosure for the purposes of division 2. 14 (2) The commissioner may ask the police commissioner to give the 15 commissioner the following information about the person-- 16 (a) a written report about the person's criminal history; 17 (b) a brief description of the circumstances of a conviction or charge 18 mentioned in the person's criminal history; 19 (c) information about an investigation relating to the possible 20 commission of a serious offence by the person. 21 (3) Subject to subsections (4) and (5), the police commissioner must 22 comply with the request. 23 (4) The duty imposed on the police commissioner to comply with the 24 request-- 25 (a) applies only to information in the police commissioner's 26 possession or to which the police commissioner has access; and 27 (b) in relation to information mentioned in subsection (2)(c)--applies 28 only to information recorded on a central electronic database kept 29

 


 

s 137 74 s 137 Commission for Children and Young People by the police commissioner. 1 (5) The police commissioner must not give information about an 2 investigation relating to the possible commission of a serious offence by the 3 person if-- 4 (a) the police commissioner is reasonably satisfied that giving the 5 information-- 6 (i) may prejudice or otherwise hinder an investigation to which 7 the information may be relevant; or 8 (ii) may lead to the identification of an informant; or 9 (iii) may affect the safety of a police officer, complainant or other 10 person; or 11 (b) for an investigation that has been completed--the investigation 12 has not led, and the police commissioner is reasonably satisfied it 13 is unlikely to lead, to a reasonable suspicion that the person 14 committed a serious offence; or 15 (c) for an investigation that has not been completed--the police 16 commissioner is reasonably satisfied the investigation is unlikely 17 to lead to a reasonable suspicion that the person committed a 18 serious offence. 19 authority to notify commissioner about committal, 20 Prosecuting conviction etc. 21 137.(1) This section applies if a person is charged with an indictable 22 offence and the police commissioner or the director of public prosecutions 23 (a "prosecuting authority") is aware that the person is a staff member. 24 (2) If the person is committed by a court for trial for an indictable 25 offence, the prosecuting authority must, within 7 days after the committal, 26 give written notice to the commissioner of the following-- 27 (a) the person's name; 28 (b) the court; 29 (c) particulars of the offence; 30 (d) the date of the committal; 31

 


 

s 137 75 s 137 Commission for Children and Young People (e) the court to which the person was committed. 1 (3) If the person is convicted before a court of an indictable offence, the 2 prosecuting authority must, within 7 days after the conviction, give written 3 notice to the commissioner of the following-- 4 (a) the person's name; 5 (b) the court; 6 (c) particulars of the offence; 7 (d) the date of the conviction; 8 (e) the sentence imposed by the court. 9 (4) If the person is convicted of an indictable offence, and has appealed 10 the conviction, and the appeal is finally decided or has otherwise ended, the 11 prosecuting authority must, within 7 days after the decision or the day the 12 appeal otherwise ends, give written notice to the commissioner of the 13 following-- 14 (a) the person's name; 15 (b) particulars of the offence; 16 (c) the date of the decision or other ending of the appeal; 17 (d) if the appeal was decided-- 18 (i) the court in which it was decided; and 19 (ii) particulars of the decision. 20 (5) If the prosecution process ends without the person being convicted of 21 an indictable offence, the prosecuting authority must, within 7 days after the 22 end, give written notice to the commissioner about the following-- 23 (a) the person's name; 24 (b) if relevant, the court in which the prosecution process ended; 25 (c) particulars of the alleged offence; 26 (d) the date the prosecution process ended. 27 (6) For subsection (5), a prosecution process ends if-- 28 (a) an indictment is presented against the person and-- 29 (i) a nolle prosequi is entered on the indictment; or 30

 


 

s 138 76 s 139 Commission for Children and Young People (ii) the person is acquitted; or 1 (b) the prosecution process has otherwise ended. 2 (7) A reference in this section to a conviction of an indictable offence 3 includes a summary conviction of an indictable offence. 4 Division 4--Controls on use of information about criminal history and 5 certain investigations 6 of information obtained under this part 7 Use 138.(1) This section applies to the commissioner in considering 8 information about a person received under this part. 9 (2) The information must not be used for any purpose other than 10 assessing the person's suitability to be, or continue to be, a staff member. 11 (3) When making the assessment, the commissioner must have regard to 12 the following matters relating to information about the commission, or 13 alleged or possible commission, of an offence by the person-- 14 (a) when the offence was committed, is alleged to have been 15 committed or may possibly have been committed; 16 (b) the nature of the offence and its relevance to the person's 17 proposed duties or duties as a staff member; 18 (c) anything else the commissioner considers relevant to the 19 assessment of the person. 20 to be advised of information obtained 21 Person 139.(1) This section applies to information obtained by the commissioner 22 about a person, under this part, from the police commissioner. 23 (2) Before using the information to assess the person's suitability to be, 24 or continue to be, a staff member, the commissioner must-- 25 (a) disclose the information to the person; and 26 (b) allow the person a reasonable opportunity to make representations 27 to the commissioner about the information. 28

 


 

s 140 77 s 142 Commission for Children and Young People for dealing with information 1 Guidelines 140.(1) The commissioner must make guidelines, consistent with this 2 Act, for dealing with information obtained by the commissioner under this 3 part. 4 (2) The purpose of the guidelines is to ensure-- 5 (a) natural justice is afforded to the persons about whom the 6 information is obtained; and 7 (b) only relevant information is used in assessing the persons' 8 suitability to be, or continue to be, staff members; and 9 (c) decisions about the suitability of persons, based on the 10 information, are made consistently. 11 (3) The commissioner must give a copy of the guidelines, on request, to 12 a person seeking to be engaged, or engaged, as a staff member. 13 ART 8--GENERAL 14 P 1--When commissioner may give notice other than in writing 15 Division of div 1 16 Application 141. This division applies if, under this Act, the commissioner is 17 required to give written notice to a person about a decision made or action 18 taken by the commissioner. 19 asks for notice other than in writing 20 Person 142.(1) This section applies if the person asks the commissioner not to 21 notify the person by written notice but to use another way of 22 communication. 23 (2) The commissioner must communicate with the person in the 24 requested way, to the extent it is reasonable for the commissioner to do so, 25 instead of giving the written notice. 26

 


 

s 143 78 s 145 Commission for Children and Young People notice inappropriate 1 Written 143.(1) This section applies if the commissioner considers-- 2 (a) if the written notice is given-- 3 (i) the rights, interests or wellbeing of a child may be adversely 4 affected; or 5 (ii) the health or safety of the person, or of someone else, may 6 be put at risk; or 7 (iii) an investigation by the commissioner will be prejudiced; or 8 (b) for another reason, it would not be appropriate to give the written 9 notice in the circumstances. 10 (2) The commissioner may communicate with the person in a way the 11 commissioner considers appropriate instead of giving the written notice. 12 (3) If the person asks the commissioner to give the written notice to the 13 person's lawyer or other nominated representative, the commissioner must 14 do so. 15 must keep record 16 Commissioner 144. If, under this division, the commissioner does not give the written 17 notice, the commissioner must keep a written record of-- 18 (a) the reasons for not giving the written notice; and 19 (b) the way the commissioner told the person about the decision or 20 action; and 21 (c) when the commissioner told the person about the decision or 22 action; and 23 (d) the substance of the communication. 24 Division 2--Evidence and legal proceedings 25 provisions 26 Evidentiary 145.(1) This section applies to a proceeding under or in relation to this 27 Act. 28

 


 

s 146 79 s 147 Commission for Children and Young People (2) Unless a party, by reasonable notice, requires proof of-- 1 (a) the appointment of a community visitor under this Act; or 2 (b) the authority of a community visitor to do something under this 3 Act; 4 the appointment or authority must be presumed. 5 (3) A signature purporting to be the signature of the commissioner or a 6 community visitor is evidence of the signature it purports to be. 7 (4) A certificate purporting to be signed by the commissioner stating any 8 of the following matters is evidence of the matter-- 9 (a) a stated document is a copy of a notice given or issued under this 10 Act; 11 (b) on a stated day, a stated person was given a stated notice under 12 this Act; 13 (c) another matter prescribed under a regulation. 14 and summary offences 15 Indictable 146.(1) An offence against section 108, 109 or 11110 is an indictable 16 offence if the person charged with the offence has a conviction for a serious 17 offence involving a child. 18 (2) An offence against section 15611 is an indictable offence. 19 (3) Otherwise, an offence against this Act is a summary offence. 20 for indictable offences 21 Proceedings 147.(1) A proceeding for an indictable offence against this Act may be 22 taken, at the election of the prosecution-- 23 (a) by way of summary proceedings under the Justices Act 1886; or 24 10 Section 108 (Unsuitable person not to apply for, or start or continue in, child-related employment), 109 (Carrying on regulated business) or 111 (Effect of conviction for serious offence) 11 Section 156 (Offence of taking a reprisal)

 


 

s 148 80 s 148 Commission for Children and Young People (b) on indictment. 1 (2) A magistrate must not hear an indictable offence summarily if-- 2 (a) the defendant asks at the start of the hearing that the charge be 3 prosecuted on indictment; or 4 (b) the magistrate considers the charge should be prosecuted on 5 indictment. 6 (3) If subsection (2) applies-- 7 (a) the magistrate must proceed by way of an examination of 8 witnesses for an indictable offence; and 9 (b) a plea of the person charged at the start of the proceeding must be 10 disregarded; and 11 (c) evidence brought in the proceeding before the magistrate decided 12 to act under subsection (2) is taken to be evidence in the 13 proceeding for the committal of the person for trial or sentence; 14 and 15 (d) before committing the person for trial or sentence, the magistrate 16 must make a statement to the person as required by the Justices 17 Act 1886, section 104(2)(b).12 18 (4) The maximum penalty that may be summarily imposed for an 19 indictable offence is 150 penalty units or 2 years imprisonment. 20 on who may summarily hear indictable offence proceedings 21 Limitation 148.(1) A proceeding must be before a magistrate if it is a proceeding-- 22 (a) for the summary conviction of a person on a charge for an 23 indictable offence; or 24 (b) for an examination of witnesses for a charge for an indictable 25 offence. 26 (2) However, if a proceeding for an indictable offence is brought before a 27 justice who is not a magistrate, jurisdiction is limited to taking or making a 28 12 Justices Act 1886, section 104 (Proceedings upon an examination of witnesses in relation to an indictable offence)

 


 

s 149 81 s 152 Commission for Children and Young People procedural action or order within the meaning of the Justices of the Peace 1 and Commissioners for Declarations Act 1991. 2 for offences 3 Proceeding 149. A proceeding for an offence against this Act, other than an indictable 4 offence, must be taken in a summary way under the Justices Act 1886. 5 proceeding may start 6 When 150. A proceeding for an offence against this Act may be started 7 within-- 8 (a) 1 year after the offence is committed; or 9 (b) 1 year after the offence comes to the complainant's knowledge, 10 but within 2 years after the offence is committed. 11 of false or misleading information or statements 12 Allegations 151. In a proceeding for an offence against this Act defined as involving 13 false or misleading information, or a false or misleading statement, it is 14 enough for a charge to state that the information or statement was, without 15 specifying which, `false or misleading'. 16 Division 3--Confidentiality 17 of information about criminal history 18 Confidentiality 152.(1) This section applies to a person who-- 19 (a) is, or has been, the commissioner or a staff member; and 20 (b) in that capacity acquired information, or gained access to a 21 document, under part 613 about someone else's criminal history. 22 (2) This section also applies to a person who-- 23 (a) is, or has been, the commissioner, a staff member or a selection 24 13 Part 6 (Employment screening for child-related employment)

 


 

s 153 82 s 153 Commission for Children and Young People panel member; and 1 (b) in that capacity acquired information, or gained access to a 2 document, under part 714 about someone else's criminal history 3 or about an investigation relating to the possible commission of a 4 serious offence by someone else. 5 (3) The person must not disclose the information, or give access to the 6 document, to anyone else. 7 Maximum penalty--100 penalty units or 2 years imprisonment. 8 (4) Subsection (3) does not apply to the disclosure of information, or 9 giving of access to a document, about a person-- 10 (a) if subsection (1) applies--to the commissioner or a staff member 11 for the purpose of an employment-screening decision; or 12 (b) if subsection (2) applies--to the commissioner, a staff member or 13 selection panel member for the purpose of assessing the person's 14 suitability to be, or continue to be, a staff member; or 15 (c) if the person is an adult--with the person's consent; or 16 (d) if the disclosure or giving of access is otherwise required under an 17 Act. 18 (5) In this section-- 19 "selection panel member" means a member of a panel formed to make a 20 recommendation to the commissioner about a person's engagement as 21 a staff member. 22 "staff member" means a member of the commission's staff. 23 of other information 24 Confidentiality 153.(1) This section applies to confidential information other than 25 information mentioned in section 152(1)(b) or (2)(b). 26 (2) If a person gains confidential information through involvement in this 27 Act's administration, the person must not-- 28 (a) make a record of the information or intentionally disclose the 29 14 Part 7 (Criminal history checks of commission's staff)

 


 

s 154 83 s 154 Commission for Children and Young People information to anyone, other than under subsection (4); or 1 (b) recklessly disclose the information to anyone. 2 Maximum penalty--100 penalty units. 3 (3) A person gains information through involvement in this Act's 4 administration if the person gains the information because of being, or an 5 opportunity given by being-- 6 (a) the commissioner; or 7 (b) a member of the commission's staff; or 8 (c) a person consulted or employed by the commissioner for an 9 investigation of a complaint; or 10 (d) a member of an advisory committee. 11 (4) A person may make a record of confidential information or disclose it 12 to someone else-- 13 (a) for this Act; or 14 (b) to discharge a function under another law; or 15 (c) for a proceeding in a court or tribunal; or 16 (d) if authorised under a regulation or another law; or 17 (e) if-- 18 (i) the person is authorised in writing by the person to whom 19 the information relates; and 20 (ii) the person to whom the information relates is an adult when 21 the authorisation is given; and 22 (iii) the information does not identify, and is unlikely to lead to 23 the identification of, a person as a child who is, or has been, 24 the subject of a complaint under this Act. 25 of information about investigations 26 Disclosure 154.(1) Section 153 does not prevent the commissioner from disclosing 27 information to a person or to members of the public, about an issue the 28 subject of an investigation by the commissioner, if the commissioner is 29 satisfied the disclosure-- 30

 


 

s 155 84 s 157 Commission for Children and Young People (a) is necessary and reasonable in the public interest; and 1 (b) is unlikely to prejudice the investigation. 2 (2) In a disclosure under subsection (1), the commissioner may express 3 an opinion expressly or impliedly critical of an entity only if the 4 commissioner has given the entity an opportunity to answer the criticism. 5 Division 4--Reprisals 6 of "taking a reprisal" 7 Meaning 155.(1) A person "takes a reprisal" if-- 8 (a) the person causes, or attempts or conspires to cause, detriment to 9 another person; and 10 (b) a substantial reason for the person doing the thing mentioned in 11 paragraph (a) is the belief that the other person or someone else-- 12 (i) has made, or may make, a complaint to the commissioner; 13 or 14 (ii) has helped, or may help, the commissioner. 15 (2) A reference in subsection (1) to causing detriment includes inducing a 16 person to cause detriment. 17 of taking a reprisal 18 Offence 156. A person must not take a reprisal. 19 Maximum penalty--150 penalty units or 2 years imprisonment. 20 entitlement for reprisal 21 Damages 157.(1) A reprisal is a tort and a person who takes a reprisal is liable in 22 damages to anyone who suffers detriment as a result. 23 (2) Any appropriate remedy that may be granted by a court for a tort may 24 be granted by a court for the taking of a reprisal. 25

 


 

s 158 85 s 160 Commission for Children and Young People (3) If the claim for the damages goes to trial in the Supreme Court or the 1 District Court, it must be decided by a judge sitting without a jury. 2 5--Miscellaneous 3 Division of "parent" 4 Meaning 158.(1) A "parent" of a child is the child's mother, father or someone 5 else, other than the chief executive (families), having or exercising parental 6 responsibility for the child. 7 (2) However, a person standing in the place of a parent of a child on a 8 temporary basis is not a parent of the child. 9 (3) A parent of an Aboriginal child includes a person who, under 10 Aboriginal tradition, is regarded as a parent of the child. 11 (4) A parent of a Torres Strait Islander child includes a person who, 12 under Island custom, is regarded as a parent of the child. 13 with complaints agencies 14 Relationship 159.(1) This Act does not prevent a complaints agency performing its 15 principal function under the Act under which the complaints agency is 16 established. 17 (2) The commissioner must liaise with each complaints agency about the 18 exercise by the commissioner and the complaints agency of their respective 19 functions relating to complaints about services provided to children. 20 agency or other government service provider to inform 21 Complaints commissioner about actions taken for complaint 22 160.(1) This section applies if-- 23 (a) the commissioner refers a complaint, about services provided by 24 a service provider to a child, to a complaints agency or other 25 government service provider; and 26 (b) the commissioner, by written notice to the agency or service 27 provider, asks for information about the way in which the agency 28

 


 

s 161 86 s 162 Commission for Children and Young People or service provider is dealing or has dealt with the complaint. 1 (2) The agency or service provider must inform the commissioner about 2 any action taken for dealing with the complaint or, if it is resolved, the 3 resolution of the complaint. 4 (3) Subsection (2) applies despite any express provision in an Act 5 establishing a complaints agency that makes it an offence for anyone 6 involved with administration of the Act to disclose the information. 7 from liability 8 Protection 161.(1) An official does not incur civil liability for an act done, or 9 omission made, honestly and without negligence under this Act. 10 (2) If subsection (1) prevents a civil liability attaching to an official, the 11 liability attaches instead to the State. 12 (3) In this section-- 13 "official" means-- 14 (a) the commissioner; or 15 (b) a member of the commission's staff; or 16 (c) a person acting under the direction of a person mentioned in 17 paragraph (a) or (b). 18 protection 19 Whistleblowers' 162.(1) A person is not liable, civilly, criminally or under an 20 administrative process, for disclosing to the commissioner information that 21 would help the commissioner in assessing or investigating a complaint. 22 (2) Without limiting subsection (1)-- 23 (a) in a proceeding for defamation the discloser has a defence of 24 absolute privilege for publishing the disclosed information; and 25 (b) if the discloser would otherwise be required to maintain 26 confidentiality about the disclosed information under an Act, oath, 27 rule of law or practice, the discloser-- 28 (i) does not contravene the Act, oath, rule of law or practice by 29

 


 

s 163 87 s 165 Commission for Children and Young People disclosing the information; and 1 (ii) is not liable to disciplinary action for disclosing the 2 information. 3 (3) A person's liability for the person's own conduct is not affected only 4 because the person discloses it to the commissioner. 5 reports relating to commissioner's functions 6 Other 163. The commissioner may provide the Minister with a report on any 7 issue relating to the exercise of the commissioner's functions under this 8 Act. 9 of pt 6 10 Review 164.(1) The Minister must ensure the operation of part 615 is reviewed. 11 (2) The review must start within 2 years of the commencement of the 12 part. 13 (3) Within 3 years of the commencement of the part, the Minister must 14 prepare a report on the outcome of the review and table the report in the 15 Legislative Assembly. 16 by commissioner 17 Delegation 165.(1) The commissioner may delegate the commissioner's powers 18 under this Act to-- 19 (a) an appropriately qualified member of the commission's staff; or 20 (b) another individual whom the commissioner considers is an 21 appropriately qualified person to exercise the powers delegated to 22 the person. 23 (2) In this section-- 24 "appropriately qualified" includes having qualifications, experience or 25 standing appropriate to exercise the power. 26 15 Part 6 (Employment screening for child-related employment)

 


 

s 166 88 s 170 Commission for Children and Young People 1 Example of `standing'-- 2 A staff member's classification level in the public service. forms 3 Approved 166. The commissioner may approve forms for use under this Act. 4 power 5 Regulation-making 167. The Governor in Council may make regulations under this Act. 6 ART 9--REPEAL AND TRANSITIONAL 7 P PROVISIONS 8 1--Repeal 9 Division of Children's Commissioner and Children's Services Appeals 10 Repeal Tribunals Act 1996 11 168. The Children's Commissioner and Children's Services Appeals 12 Tribunals Act 1996 is repealed. 13 Division 2--Transitional provisions on repeal of Children's 14 Commissioner and Children's Services Appeals Tribunals Act 1996 15 of "commencing day" 16 Meaning 169. In this division-- 17 "commencing day" means the day section 168 commences. 18 19 Commissioner 170.(1) This section applies to the person who, immediately before the 20

 


 

s 171 89 s 173 Commission for Children and Young People commencing day, was the Children's Commissioner under the repealed 1 Act. 2 (2) Subject to sections 26 and 27, 16 the person continues in office as the 3 commissioner under this Act until the end of the term stated in the person's 4 appointment under the repealed Act. 5 (3) The remuneration, allowances and terms of appointment decided for 6 the person under section 12 of the repealed Act17 are taken to have been 7 decided under section 23.18 8 of commission and staff 9 Continuation 171.(1) The Children's Commission established under the repealed Act 10 is continued in existence as the commission under this Act. 11 (2) The staff of the Children's Commission established under the 12 repealed Act continue as the staff of the commission under this Act. 13 of certain complaints 14 Continuation 172.(1) This section applies to a complaint made under part 3 of the 15 repealed Act that-- 16 (a) immediately before the commencing day, had not been finally 17 dealt with under the repealed Act; and 18 (b) if this Act had commenced at the relevant time, could have been 19 made under this Act. 20 (2) The commissioner must continue to deal with the complaint as if it 21 had been made under this Act. 22 visitors 23 Official 173.(1) A person who, immediately before the commencing day, held 24 16 Sections 26 (Resignation) and 27 (Termination of appointment) 17 Children's Commissioner and Children's Services Appeals Tribunals Act 1996, section 12 (Terms of appointment) 18 Section 23 (Terms and conditions of appointment)

 


 

s 174 90 s 175 Commission for Children and Young People office as an official visitor under the repealed Act continues to hold office as 1 a community visitor, on the conditions applying to the person immediately 2 before the commencing day, until the end of the term stated in the person's 3 appointment. 4 (2) Subsection (1) applies subject to section 82(2) and (3).19 5 Division 3--Transitional provisions for amendment of Juvenile Justice 6 Act 1992 7 visitors 8 Official 174.(1) A person who, immediately before the commencement, held 9 office as an official visitor under the Juvenile Justice Act 1992-- 10 (a) continues to hold office as a community visitor until the end of 11 the term stated in the person's appointment; and 12 (b) while the person continues to hold office under paragraph (a), 13 continues to be entitled to the remuneration and allowances to 14 which the person was entitled immediately before the 15 commencement. 16 (2) Subsection (1) applies subject to section 82(2) and (3). 17 (3) In this section-- 18 "commencement" means the commencement of schedule 3, amendments 19 of the Juvenile Justice Act 1992. 20 PART 10--CONSEQUENTIAL AMENDMENTS 21 amendments 22 Consequential 175. Schedule 3 amends the Acts mentioned in it. 23 19 Section 82 (Duration of appointment)

 


 

91 Commission for Children and Young People SCHEDULE 1 1 REGULATED EMPLOYMENT AND BUSINESSES 2 FOR EMPLOYMENT SCREENING 3 section 97 4 PART 1--REGULATED EMPLOYMENT 5 facilities 6 Residential 1. Employment is regulated employment if-- 7 (a) any of the usual functions of the employment is carried out, or is 8 likely to be carried out, inside a residential facility; and 9 (b) the employer is not a government service provider. 10 facilities 11 Schools--boarding 2. Employment is regulated employment if-- 12 (a) any of the usual functions of the employment is carried out, or is 13 likely to be carried out, inside a boarding facility at a school; and 14 (b) the employee is not a registered teacher. 15 other than teachers and parents 16 Schools--employees 3. Employment is regulated employment if-- 17 (a) the usual functions of the employment include, or are likely to 18 include-- 19 (i) providing services at a school that are directed mainly 20 towards children; or 21 (ii) conducting activities at a school that mainly involve children; 22 and 23

 


 

92 Commission for Children and Young People SCHEDULE 1 (continued) (b) the employee is neither a registered teacher nor a volunteer who is 1 a parent of a child enrolled at the school. 2 clubs and associations involving children 3 Churches, 4.(1) Employment is regulated employment if-- 4 (a) the usual functions of the employment include, or are likely to 5 include-- 6 (i) providing services directed mainly towards children; or 7 (ii) conducting activities mainly involving children; and 8 (b) the services are provided, or the activities are conducted, by or 9 within a church, club, association or similar entity; and 10 (c) the employer is a not a government entity. 11 (2) However, employment mentioned in subsection (1) is not regulated 12 employment if-- 13 (a) the employment is unpaid; and 14 (b) the employee is a parent of a child who-- 15 (i) if subsection (1)(a)(i) applies--receives the services to which 16 the employment relates or similar services provided by 17 someone else within the church, club, association or other 18 entity; or 19 (ii) if subsection (1)(a)(ii) applies--participates in the activities 20 to which the employment relates or similar activities 21 conducted by someone else within the church, club, 22 association or other entity. 23 24 Examples-- 25 1. A sporting club has teams for adults and children of various ages. A person is 26 employed by the club, as a volunteer, to coach one of the children's teams. 27 The person does not have any children. Under subsection (1), the coaching is 28 regulated employment. 29 2. Same facts as in example 1, except that the person has a child on the team 30 that the person is coaching. Under subsection (2), the coaching is not

 


 

93 Commission for Children and Young People SCHEDULE 1 (continued) 1 regulated employment because the child is participating in the sporting 2 activities conducted at the club to which the coaching relates. 3 3. Same facts as in example 1, except that the person has a child on another of 4 the club's teams, which is coached by another employee of the club. Under 5 subsection (2), the person's coaching is not regulated employment because 6 the child is participating in sporting activities, conducted by someone else at 7 the club, that are similar to the activities to which the person's coaching 8 relates. 9 4. Same facts as in example 1, except that the person has a child who receives 10 child-minding services provided by another employee of the club. In this case, 11 the coaching is regulated employment. Subsection (2) does not apply because 12 the services the child is receiving (child care) are not similar to the activities 13 to which the coaching relates. and support services 14 Counselling 5. Employment is regulated employment if-- 15 (a) the usual functions of the employment include, or are likely to 16 include, providing counselling or a similar support service to a 17 child in a situation where-- 18 (i) the employee is physically present with the child while 19 no-one else is present; or 20 (ii) the employee is not physically present with the child; and 21 (b) the employee is not a registered health practitioner; and 22 (c) the employer-- 23 (i) is not a government service provider; and 24 (ii) carries on a business that includes providing counselling or a 25 similar support service. 26 27 Example for paragraph (a)(ii)-- 28 Employment that includes providing counselling to children over the telephone or 29 via the internet.

 


 

94 Commission for Children and Young People SCHEDULE 1 (continued) teaching, coaching or tutoring 1 Private 6.(1) Employment is regulated employment if-- 2 (a) the usual functions of the employment include or are likely to 3 include prescribed teaching; and 4 (b) the employee is not a registered teacher; and 5 (c) the employer-- 6 (i) is not a government service provider; and 7 (ii) carries on a business that includes providing prescribed 8 teaching. 9 (2) In this section-- 10 "prescribed teaching" means teaching, coaching or tutoring a child, 11 individually, on a commercial basis. 12 about usual functions of employment 13 Regulation 7.(1) For this part, a regulation may make provision about whether a 14 function of employment is a usual function. 15 (2) Without limiting subsection (1), a regulation may-- 16 (a) state the employment, or type of employment, to which the 17 regulation applies; and 18 (b) declare that a stated function of the employment is, or is not, a 19 usual function of the employment. 20 (3) A regulation under this section may describe a function of 21 employment by reference to the frequency with which it is carried out, or in 22 another way. 23

 


 

95 Commission for Children and Young People SCHEDULE 1 (continued) PART 2--REGULATED BUSINESSES 1 and support services 2 Counselling 8. A business is a regulated business if the usual activities of the business 3 include, or are likely to include, a person, other than a registered health 4 practitioner, providing counselling or a similar support service to a child in a 5 situation where-- 6 (a) the person is physically present with the child while no-one else is 7 present; or 8 (b) the person is not physically present with the child. 9 teaching, coaching or tutoring 10 Private 9. A business is a regulated business if the usual activities of the business 11 include, or are likely to include, teaching, coaching or tutoring a child, 12 individually, on a commercial basis. 13 14

 


 

96 Commission for Children and Young People SCHEDULE 2 1 OTHER SERIOUS OFFENCE PROVISIONS OF THE 2 CRIMINAL CODE 3 schedule 4, definition "serious offence", paragraph (b) 4 1. Section 211 (Bestiality) 5 2. Section 219 (Taking child for immoral purposes) 6 3. Section 221 (Conspiracy to defile) 7 4. Section 228 (Obscene publications and exhibitions) 8 5. Section 238 (Contamination of goods) 9 6. Section 239 (Hoax contamination of goods) 10 7. Section 240 (Dealing in contaminated goods) 11 8. Section 300 (Unlawful homicide) 12 9. Section 307 (Accessory after the fact to murder) 13 10. Section 308 (Threats to murder in document) 14 11. Section 309 (Conspiring to murder) 15 12. Section 311 (Aiding suicide) 16 13. Section 314 (Concealing the birth of children) 17 14. Section 324 (Failure to supply necessaries) 18 15. Section 327 (Setting mantraps) 19 16. Section 355 (Deprivation of liberty) 20 17. Section 359 (Threats) 21 18. Section 359E (Punishment of unlawful stalking) 22 19. Section 363 (Child-stealing) 23 20. Section 363A (Abduction of child under 16) 24 21. Section 364 (Cruelty to children under 16) 25

 


 

97 Commission for Children and Young People SCHEDULE 2 (continued) 22. Section 415 (Demanding property, benefit or performance of services 1 with threats) 2 23. Section 416 (Attempts at extortion by threats) 3 24. Section 417 (Procuring execution of deeds etc. by threats) 4 25. Section 417A (Taking control of aircraft). 5 6

 


 

98 Commission for Children and Young People SCHEDULE 3 1 ONSEQUENTIAL AMENDMENTS 2 C section 175 3 HILD PROTECTION ACT 1999 4 C 1. Section 186(2)(c)-- 5 omit, insert-- 6 `(c) to the commissioner under the Commission for Children and 7 Young People Act 2000, in compliance with a notice given by the 8 commissioner under that Act requiring the disclosure; or 9 (d) by way of evidence given in a legal proceeding under 10 subsections (3) and (4).'. 11 CRIME COMMISSION ACT 1997 12 1. Section 39(1)(g)-- 13 omit, insert-- 14 `(g) the Commissioner for Children and Young People;'. 15 2. Section 69(5)(a)-- 16 omit, insert-- 17 `(a) the Commissioner for Children and Young People;'. 18

 


 

99 Commission for Children and Young People SCHEDULE 3 (continued) RIMINAL JUSTICE ACT 1989 1 C 1. Section 84A(5)(a)-- 2 omit, insert-- 3 `(a) the Commissioner for Children and Young People;'. 4 EDUCATION (GENERAL PROVISIONS) ACT 1989 5 1. Section 25(2)-- 6 insert-- 7 `(d) in compliance with a requirement under an Act;'. 8 JUVENILE JUSTICE ACT 1992 9 1. Section 5-- 10 insert-- 11 ` "community visitor" means a community visitor under the Commission 12 for Children and Young People Act 2000.'. 13 2. Sections 204 to 206-- 14 omit. 15

 


 

100 Commission for Children and Young People SCHEDULE 3 (continued) 3. Section 213(1), `an official'-- 1 omit, insert-- 2 `a community'. 3 4. Section 215(2) and (6), `an official'-- 4 omit, insert-- 5 `a community'. 6 5. Section 215(3)-- 7 omit, insert-- 8 `(3) Despite subsection (2), a child is entitled to complain directly to a 9 community visitor.'. 10 6. Section 216 to 218-- 11 omit. 12 7. Section 228(2), `an official'-- 13 omit, insert-- 14 `a community'. 15 8. Section 233(2), `schedule 1'-- 16 omit, insert-- 17 `the schedule'. 18 9. Schedule 1, heading, `1'-- 19 omit. 20

 


 

101 Commission for Children and Young People SCHEDULE 3 (continued) 10. Schedule, item 11-- 1 omit. 2 PUBLIC SERVICE ACT 1996 3 1. Schedule 1, item 3-- 4 omit, insert-- 5 `3 Commission for Children and Commissioner for Children and 6 Young People Young People'. 7

 


 

102 Commission for Children and Young People SCHEDULE 4 1 DICTIONARY 2 section 3 3 "advisory committee" means a committee established under part 5. 4 "advocacy entity" means an entity that provides advocacy services for, or 5 otherwise represents-- 6 (a) particular children; or 7 (b) the interests of children generally. 8 "approved form" means a form approved under section 166. 9 "charge", of an offence, means a charge in any form, including, for 10 example, the following-- 11 (a) a charge on an arrest; 12 (b) a notice to appear served under the Police Powers and 13 Responsibilities Act 2000, section 177;20 14 (c) a complaint under the Justices Act 1886; 15 (d) a charge by a court under the Justices Act 1886, section 42(1A),21 16 or another provision of an Act; 17 (e) an indictment. 18 "chief executive (families)" means the chief executive of the department in 19 which the Child Protection Act 1999 is administered. 20 "child accommodation service" means a service for which the main 21 purpose is to provide accommodation for children. 22 20 Police Powers and Responsibilities Act 2000, section 177 (Notice to appear may be issued for offence) 21 Justices Act 1886, section 42 (Commencement of proceedings)

 


 

103 Commission for Children and Young People SCHEDULE 4 (continued) "Children Services Tribunal" means the Children Services Tribunal 1 established under the Children Services Tribunal Act 2000. 2 "commission" means the Commission for Children and Young People. 3 "commissioner" means the Commissioner for Children and Young 4 People. 5 "community visitor" means a person appointed as a community visitor 6 under this Act. 7 "complaints agency" means any of the following-- 8 (a) the Parliamentary Commissioner for Administrative 9 Investigations under the Parliamentary Commissioner Act 1974; 10 (b) the Criminal Justice Commission under the Criminal Justice Act 11 1989; 12 (c) the Anti-Discrimination Commissioner under the 13 Anti-Discrimination Act 1991; 14 (d) the Health Rights Commissioner under the Health Rights 15 Commission Act 1991; 16 (e) the Queensland Crime Commission under the Crime 17 Commission Act 1997; 18 (f) the adult guardian under the Guardianship and Administration 19 Act 2000. 20 "confidential information" includes information about a person's affairs 21 but does not include-- 22 (a) information already publicly disclosed unless further disclosure of 23 the information is prohibited by law; or 24 (b) statistical or other information that could not reasonably be 25 expected to result in the identification of the person to whom the 26 information relates. 27 "conviction" means a finding of guilt by a court, or the acceptance of a plea 28 of guilty by a court, whether or not a conviction is recorded. 29

 


 

104 Commission for Children and Young People SCHEDULE 4 (continued) "criminal history", of a person, means-- 1 (a) every conviction of the person for an offence, in Queensland or 2 elsewhere, and whether before or after the commencement of this 3 Act; and 4 (b) every charge made against the person for an offence, in 5 Queensland or elsewhere, and whether before or after the 6 commencement of this Act. 7 "current", for a suitability notice, means current under section 104. 8 "detention centre" means a detention centre established under the Juvenile 9 Justice Act 1992, section 201. 10 "employing", for part 6, see section 99. 11 "employment-screening decision" means a decision whether a person is a 12 suitable person for child-related employment. 13 "government entity" see the Public Service Act 1996, section 21. 14 "government service provider" see section 9. 15 "harm" has the meaning given in the Child Protection Act 1999, 16 section 9.22 17 "influence" includes attempt to influence. 18 "negative notice" means a suitability notice declaring a person to be an 19 unsuitable person for child-related employment. 20 "notice for information" see section 45(1). 21 "obstruct" includes hinder, resist and attempt to obstruct. 22 22 The Child Protection Act 1999, section 9 states-- `9.(1) "Harm", to a child, is any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing. (2) It is immaterial how the harm is caused. (3) Harm can be caused by-- (a) physical, psychological or emotional abuse or neglect; or (b) sexual abuse or exploitation.'.

 


 

105 Commission for Children and Young People SCHEDULE 4 (continued) "parent" see section 158. 1 "police commissioner" means the commissioner of the police service. 2 "positive notice" means a suitability notice declaring a person to be a 3 suitable person for child-related employment. 4 "prescribed department" means-- 5 (a) the department responsible for the care and protection of children; 6 or 7 (b) the department responsible for disability services; or 8 (c) the department responsible for mental health. 9 "private service provider" see section 10. 10 "registered health practitioner" means a person registered under any of 11 the following Acts-- 12 Chiropractors and Osteopaths Act 1979 13 Dental Act 1971 14 Dental Technicians and Dental Prosthetists Act 1991 15 Medical Act 1939 16 Occupational Therapists Act 1979 17 Optometrists Act 1974 18 Pharmacy Act 1976 19 Physiotherapists Act 1964 20 Podiatrists Act 1969 21 Psychologists Act 1977 22 Speech Pathologists Act 1979. 23 "registered teacher" means a person registered as a teacher under the 24 Education (Teacher Registration) Act 1988. 25 "regulated business", for part 6, see section 97. 26 "regulated employment", for part 6, see section 97. 27

 


 

106 Commission for Children and Young People SCHEDULE 4 (continued) "relevant provider", for part 3, see section 39. 1 "repealed Act" means the Children's Commissioner and Children's 2 Services Appeals Tribunals Act 1996. 3 "residential facility" means a place at which a child accommodation 4 service is provided-- 5 (a) by a prescribed department; or 6 (b) under funding provided by a prescribed department; or 7 (c) under funding provided by the Commonwealth and administered 8 by a prescribed department. 9 "school" means a State school or a non-State school under the Education 10 (General Provisions) Act 1989. 11 "serious offence" means-- 12 (a) an offence against a provision mentioned in the schedule to the 13 Penalties and Sentences Act 1992;23 or 14 (b) an offence against a provision of the Criminal Code mentioned in 15 schedule 2; or 16 (c) an offence of counselling or procuring the commission of, or 17 attempting or conspiring to commit, an offence mentioned in 18 paragraph (a) or (b); or 19 (d) an offence against a law of another jurisdiction that substantially 20 corresponds to an offence mentioned in paragraphs (a) to (c). 21 "serious offence involving a child" does not include a serious offence for 22 which a child is the alleged offender. 23 "service provider" see section 8. 24 "staff member"-- 25 (a) for part 7--see section 129; or 26 (b) of a visitable site, means-- 27 (i) a person in charge of the site; 28 23 Penalties and Sentences Act 1992, schedule (Serious violent offences)

 


 

107 Commission for Children and Young People SCHEDULE 4 (continued) (ii) another person who is concerned with, or takes part in, the 1 management of the site; 2 (iii) another person who is a member of the staff at the site. 3 "suitability notice", means a suitability notice issued under section 102. 4 "unit of public administration" see the Criminal Justice Act 1989, 5 section 3A. 6 "visitable site" see section 64. 7 "work", for part 6, includes the provision of a service, or the conduct of an 8 activity, in the course of a religious vocation. 9 10 State of Queensland 2000

 


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