Western Australian Bills

[Index] [Search] [Download] [Related Items] [Help]


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


COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE BILL 2005

                      Western Australia

Commissioner for Children and Young People
                 Bill 2006
                         CONTENTS

        Part 1 -- Preliminary
  1.    Short title                                            2
  2.    Commencement                                           2
  3.    Principle that best interests of children and young
        people paramount                                       2
  4.    Guiding principles                                     2
  5.    Terms used in this Act                                 3
        Part 2 -- Office of Commissioner for
             Children and Young People
        Division 1 -- Office of Commissioner for
              Children and Young People
  6.    Office of Commissioner for Children and Young
        People established                                     4
  7.    Appointment and selection of Commissioner              4
  8.    Removal or suspension of Commissioner                  4
  9.    Tenure of office                                       5
  10.   Terms of appointment                                   5
  11.   Remuneration and conditions of service                 6
  12.   Casual vacancy                                         6
  13.   Appointment of public service officer                  6
  14.   Acting Commissioner                                    7
  15.   Oath or affirmation of office                          8
        Division 2 -- Staff and related provisions
  16.   Staff                                                  8
  17.   Use of government staff and facilities                 8

                           053--3                              page i
Commissioner for Children and Young People Bill 2006

Contents




      18.     Authorised persons                               9
              Part 3 -- Functions of the
                   Commissioner
      19.     Functions                                        10
      20.     Matters relevant to performance of functions     11
      21.     Powers                                           12
      22.     Request for information                          13
      23.     Commissioner not to deal with individual cases   13
      24.     Delegation                                       14
              Part 4 -- Relationship with the
                   Minister
      25.     Independence of Commissioner                     15
      26.     Minister may give directions                     15
      27.     Minister may request information                 15
      28.     Consultation                                     16
              Part 5 -- Special inquiries
      29.     Establishment of special inquiry                 17
      30.     Notice of special inquiry                        17
      31.     General conduct of special inquiry               17
      32.     Hearings                                         18
      33.     Powers relevant to special inquiry               18
      34.     Failure to comply with notice                    19
      35.     Incriminating answers or documents               19
      36.     Legal professional privilege                     19
      37.     Power of entry                                   20
      38.     Warrants                                         21
      39.     Disruption of special inquiry                    21
      40.     False information                                21
      41.     Protection for certain persons                   22
              Part 6 -- Reporting
              Division 1 -- Reports
      42.     Annual reports                                   23
      43.     Reports on special inquiries                     23
      44.     Reports on other matters                         23
              Division 2 -- General provisions

page ii
          Commissioner for Children and Young People Bill 2006

                                                      Contents




45.   Meaning of "report"                               23
46.   Recommendations                                   24
47.   Adverse matters in report                         24
48.   Minister to be provided with draft reports        24
49.   Reports to be laid before Parliament              24
50.   Publication of reports                            25
      Part 7 -- Standing Committee
51.   Standing Committee of Houses of Parliament        26
      Part 8 -- Advisory committees
52.   Establishment of advisory committees              27
53.   Membership                                        27
54.   Functions                                         27
55.   Procedures                                        28
56.   Remuneration and allowances                       28
      Part 9 -- Miscellaneous
57.   Recommendations by the Standing Committee         29
58.   Obstruction                                       29
59.   Protection from liability for wrongdoing          29
60.   Confidentiality of information                    30
61.   Supplementary provision for laying document
      before Parliament                                 30
62.   Protection for proceedings in Cabinet             31
63.   Regulations                                       32
64.   Review of Act                                     32
65.   Consequential amendments                          32
      Schedule 1 -- Consequential
          amendments
1.    Constitution Acts Amendment Act 1899 amended      33
2.    Financial Administration and Audit Act 1985
      amended                                           33
3.    Working with Children (Criminal Record
      Checking) Act 2004 amended                        34




                                                       page iii
                           Western Australia

                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)


 Commissioner for Children and Young People
                  Bill 2006

                               A Bill for

An Act to establish the office of Commissioner for Children and
Young People, to make consequential amendments to various Acts,
and for related purposes.


The Parliament of Western Australia enacts as follows:




                                                           page 1
     Commissioner for Children and Young People Bill 2006
     Part 1        Preliminary
     s. 1




                             Part 1 -- Preliminary
     1.        Short title
               This is the Commissioner for Children and Young People
               Act 2006.
5    2.        Commencement
          (1) This Act comes into operation on a day fixed by proclamation.
          (2) Different days may be fixed under subsection (1) for different
              provisions.
     3.        Principle that best interests of children and young people
10             paramount
               In performing a function under this Act the Commissioner or
               any other person must regard the best interests of children and
               young people as the paramount consideration.
     4.        Guiding principles
15             In the administration of this Act the following principles must
               be observed --
                 (a) children and young people are entitled to live in a caring
                       and nurturing environment and to be protected from
                       harm and exploitation;
20               (b) the contributions made by children and young people to
                       the community should be recognised for their value and
                       merit;
                 (c) the views of children and young people on all matters
                       affecting them should be given serious consideration
25                     and taken into account;
                 (d) parents, families and communities have the primary role
                       in safeguarding and promoting the wellbeing of their
                       children and young people and should be supported in
                       carrying out their role.

     page 2
                    Commissioner for Children and Young People Bill 2006
                                               Preliminary           Part 1



                                                                        s. 5




     5.   Terms used in this Act
          In this Act, unless the contrary intention appears --
          "authorised person" means a person designated as an
               authorised person under section 18;
5         "children and young people" means people under 18 years of
               age, and "child or young person" has a corresponding
               meaning;
          "Commissioner" means the person holding the office of
               Commissioner for Children and Young People established
10             by this Act or acting in that office for a reason mentioned
               in section 14(1)(a) or (b);
          "government agency" means --
               (a) a department of the Public Service;
               (b) a State agency;
15             (c) a local government or regional local government; or
               (d) a body, whether incorporated or not, or the holder of
                     an office, post or position, that is established or
                     continued for a public purpose under a written law;
          "hearing" means a hearing referred to in section 32;
20        "non-government agency" means a person or body other than
               a government agency;
          "staff member" means --
               (a) a public service officer referred to in section 16;
               (b) an officer or employee referred to in section 17; or
25             (c) a person engaged or appointed under the Public
                     Sector Management Act 1994 section 100 for the
                     purposes of this Act;
          "Standing Committee" means the committee referred to in
               section 51;
30        "wellbeing" of children and young people includes the care,
               development, education, health and safety of children and
               young people.

                                                                     page 3
     Commissioner for Children and Young People Bill 2006
     Part 2        Office of Commissioner for Children and Young People
     Division 1    Office of Commissioner for Children and Young People
     s. 6




          Part 2 -- Office of Commissioner for Children and
                            Young People
        Division 1 -- Office of Commissioner for Children and
                            Young People
5    6.    Office of Commissioner for Children and Young People
           established
          (1) An office called the Commissioner for Children and Young
              People is established.
          (2) The office is not an office in the Public Service.
10        (3) The office is not, and is not to become, an SES organisation
              under the Public Sector Management Act 1994.
     7.        Appointment and selection of Commissioner
          (1) A person is to be appointed to the office of Commissioner for
              Children and Young People by the Governor by commission
15            under the Public Seal of the State on the recommendation of the
              Premier.
          (2) Before making a recommendation under subsection (1) the
              Premier shall --
                (a) advertise throughout Australia for expressions of interest
20                    from people with professional qualifications and
                      substantive experience in matters affecting children;
                (b) consult with the leader of any political party with at least
                      2 members in either House.
          (3) Children and young people must be involved in the selection
25            process.
     8.        Removal or suspension of Commissioner
          (1) The Commissioner may, at any time, be suspended or removed
              from his office by the Governor on addresses from both Houses
              of Parliament.
     page 4
                            Commissioner for Children and Young People Bill 2006
               Office of Commissioner for Children and Young People         Part 2

               Office of Commissioner for Children and Young People     Division 1

                                                                              s. 9




           (2) Where the Governor is satisfied that the Commissioner --
                 (a) is incapable of properly performing the duties of his
                      office;
                 (b) has shown himself incompetent properly to perform, or
5                     has neglected, those duties;
                 (c) has applied to take, or has taken, advantage of any law
                      relating to bankruptcy, or has compounded, or entered
                      into any arrangement, with his creditors; or
                 (d) has been guilty of misconduct,
10             he may suspend the Commissioner from his office.
           (3) When the Commissioner has been suspended from his office
               under subsection (2) he shall be restored to office unless --
                 (a) a statement of the grounds of his suspension is laid
                      before each House of Parliament during the 7 sitting
15                    days of that House following the suspension; and
                 (b) each House of Parliament, during the session in which
                      the statement is so laid, and within 30 sitting days of that
                      statement being so laid, passes an address praying for
                      his removal.
20   9.         Tenure of office
           (1) The term for which a person is appointed to the office of
               Commissioner is to be fixed in the instrument of appointment
               and is to be not longer than 5 years.
           (2) A person who has been appointed to the office of Commissioner
25             is eligible for reappointment once.
     10.        Terms of appointment
           (1) The Commissioner is to be appointed on a full-time basis.
           (2) The Commissioner must not, except in so far as authorised to do
               so by the Governor, hold any office of profit or trust (other than


                                                                           page 5
     Commissioner for Children and Young People Bill 2006
     Part 2        Office of Commissioner for Children and Young People
     Division 1    Office of Commissioner for Children and Young People
     s. 11




                office as Commissioner) or engage in paid employment outside
                the duties of the office of Commissioner.
     11.        Remuneration and conditions of service
           (1) The remuneration and allowances of the Commissioner are to be
5              determined by the Governor.
           (2) Subsection (1) has effect subject to the Salaries and Allowances
               Act 1975 if that Act applies to the Commissioner.
           (3) The Governor may determine the leave of absence to which the
               Commissioner is entitled and any other conditions of service as
10             the Commissioner.
           (4) The remuneration, allowances and conditions of service referred
               to in this section must not be changed while the Commissioner
               is in office so as to become less favourable to the
               Commissioner.
15   12.        Casual vacancy
           (1) The Commissioner may at any time resign from office by notice
               in writing delivered to the Governor.
           (2) If, before the Commissioner's term of office expires, the
               Commissioner dies, resigns, or is removed from office, the
20             office becomes vacant.
     13.        Appointment of public service officer
           (1) If a public service officer is appointed to the office of
               Commissioner, that person is entitled to retain all his or her
               accruing and existing rights, including any rights under the
25             Superannuation and Family Benefits Act 1938, as if service in
               the office of Commissioner were a continuation of service as a
               public service officer.
           (2) If a person ceases to hold the office of Commissioner and
               becomes a public service officer, the service in the office of
30             Commissioner is to be regarded as service in the Public Service

     page 6
                           Commissioner for Children and Young People Bill 2006
              Office of Commissioner for Children and Young People       Part 2

              Office of Commissioner for Children and Young People   Division 1

                                                                           s. 14




               for the purpose of determining that person's rights as a public
               service officer and, if applicable, for the purposes of the
               Superannuation and Family Benefits Act 1938.
           (3) If --
5                 (a) the Commissioner immediately before his or her
                       appointment to the office of Commissioner occupied an
                       office under the Public Sector Management Act 1994
                       Part 3; and
                 (b) his or her term of office expires by effluxion of time and
10                     he or she is not reappointed as Commissioner,
               that person is entitled to be appointed to an office under the
               Public Sector Management Act 1994 of at least the equivalent
               level of classification as the office that person occupied
               immediately prior to appointment as Commissioner.
15   14.        Acting Commissioner
           (1) The Governor may appoint a person to act in the office of
               Commissioner --
                (a) during a vacancy in that office; or
                (b) during any period or during all periods when the person
20                   holding that office, or appointed to act in that office
                     under this section, is unable to perform the functions of
                     that office or is absent from the State.
           (2) An appointment under this section --
                (a) may be made at any time and may be terminated at any
25                   time by the Governor; and
                (b) may be expressed to have effect only in the
                     circumstances specified in the instrument of
                     appointment.




                                                                         page 7
     Commissioner for Children and Young People Bill 2006
     Part 2        Office of Commissioner for Children and Young People
     Division 2    Staff and related provisions
     s. 15




           (3) The validity of anything done by or in relation to a person
               purporting to act under this section is not to be called into
               question on the ground that --
                 (a) the occasion for an appointment under this section had
5                     not arisen;
                (b) there is a defect or irregularity in the appointment;
                 (c) the appointment had ceased to have effect; or
                (d) the occasion for the person to act had not arisen or had
                      ceased.
10   15.        Oath or affirmation of office
           (1) Before beginning to perform the functions of the office of
               Commissioner a person must take an oath or make an
               affirmation that he or she --
                 (a) will faithfully and impartially perform the functions of
15                     the office; and
                 (b) will not, except in accordance with this Act, disclose
                       any information received under this Act.
           (2) The oath or affirmation is to be administered by the Governor.
                    Division 2 -- Staff and related provisions


20   16.        Staff
                Staff are to be appointed or made available under the Public
                Sector Management Act 1994 Part 3 to enable the
                Commissioner to perform his or her functions.
     17.        Use of government staff and facilities
25         (1) The Commissioner may by arrangement with the relevant
               employer make use, either full-time or part-time, of the services
               of any officer or employee employed --
                 (a) in the Public Service;
                 (b) in a State agency; or

     page 8
                           Commissioner for Children and Young People Bill 2006
              Office of Commissioner for Children and Young People       Part 2

                                         Staff and related provisionsDivision 2

                                                                          s. 18




                 (c) otherwise in the service of the State.
           (2) The Commissioner may by arrangement with --
                 (a) a department of the Public Service; or
                 (b) a State agency,
5              make use of any facilities of the department or agency.
           (3) An arrangement under subsection (1) or (2) is to be made on
               terms agreed to by the parties.
     18.        Authorised persons
                The Commissioner may, in writing, designate a staff member as
10              an authorised person for the purposes of Part 5.




                                                                        page 9
     Commissioner for Children and Young People Bill 2006
     Part 3        Functions of the Commissioner
     s. 19




               Part 3 -- Functions of the Commissioner
     19.       Functions
               The Commissioner has the following functions --
                (a) to advocate for children and young people;
5               (b) to promote the participation of children and young
                     people in the making of decisions that affect their lives
                     and to encourage government and non-government
                     agencies to seek the participation of children and young
                     people appropriate to their age and maturity;
10              (c) to promote and monitor the wellbeing of children and
                     young people generally;
                (d) to monitor the way in which a government agency
                     investigates or otherwise deals with a complaint made
                     by a child or young person and the outcome of the
15                   complaint;
                (e) to monitor the trends in complaints made by children
                     and young people to government agencies;
                 (f) to initiate and conduct inquiries into any matter,
                     including any written law or any practice, procedure or
20                   service, affecting the wellbeing of children and young
                     people;
                (g) to monitor and review written laws, draft laws, policies,
                     practices and services affecting the wellbeing of children
                     and young people;
25              (h) to promote public awareness and understanding of
                     matters relating to the wellbeing of children and young
                     people;
                 (i) to conduct, coordinate, sponsor, participate in and
                     promote research into matters relating to the wellbeing
30                   of children and young people;
                 (j) to conduct special inquiries under Part 5;


     page 10
                          Commissioner for Children and Young People Bill 2006
                                  Functions of the Commissioner             Part 3



                                                                              s. 20




                  (k) on the Commissioner's own initiative or at the request
                       of the Minister or the Standing Committee, to advise the
                       Minister on any matter relating to the wellbeing of
                       children and young people;
5                  (l) to consider, and make recommendations in relation to,
                       any written laws, draft laws, reports, policies, practices,
                       procedures or other matters relating to the wellbeing of
                       children and young people that are referred to the
                       Commissioner by the Minister or the Standing
10                     Committee;
                 (m) to perform any other function conferred on the
                       Commissioner by or under this Act or any other written
                       law;
                  (n) to consult with children and young people from a broad
15                     range of socio-economic backgrounds and age groups
                       throughout Western Australia each year;
                  (o) to do anything which the Commissioner considers is
                       necessary or convenient to further the principle in
                       section 3 or any of the guiding principles in section 4.
20   20.        Matters relevant to performance of functions
           (1) In performing the Commissioner's functions, the Commissioner
               must --
                 (a) give priority to, and have special regard to, the interests
                       and needs of --
25                       (i) Aboriginal children and young people and Torres
                              Strait Islander children and young people; and
                        (ii) children and young people who are vulnerable or
                              disadvantaged for any reason;
                 (b) have regard to the United Nations Convention on the
30                     Rights of the Child;
                 (c) develop means of consulting with children and young
                       people that are appropriate to their age and maturity;


                                                                          page 11
     Commissioner for Children and Young People Bill 2006
     Part 3        Functions of the Commissioner
     s. 21




                 (d) develop guidelines for government agencies and non-
                        government agencies regarding the participation by
                        children and young people in decisions which affect
                        them;
5                (e) adopt work practices that --
                           (i) ensure the Commissioner is accessible to
                               children and young people; and
                          (ii) encourage the participation of children and
                               young people in decision-making by the
10                             Commissioner;
                  (f) work in cooperation with, and consult with, other
                        government agencies and non-government agencies; and
                 (g) take reasonable steps to avoid the duplication of
                        functions performed by other government agencies.
15         (2) In subsection (1)(a)(i) --
               "Aboriginal children and young people" means children and
                     young people who are descendants of the Aboriginal
                     people of Australia;
               "Torres Strait Islander children and young people" means
20                   children and young people who are descendants of the
                     indigenous inhabitants of the Torres Strait Islands.
     21.        Powers
           (1) The Commissioner has power to do all things necessary or
               convenient to be done for or in connection with the performance
25             of the Commissioner's functions.
           (2) Without limiting subsection (1), the Commissioner may produce
               and publish information on matters relating to the
               Commissioner's functions.




     page 12
                           Commissioner for Children and Young People Bill 2006
                                   Functions of the Commissioner           Part 3



                                                                             s. 22




     22.        Request for information
           (1) In this section --
                "relevant information" means information that, in the opinion
                     of the Commissioner, is, or is likely to be, relevant to the
5                    performance of the Commissioner's functions;
               "service provider" means a person or body who or which
                     provides services for, or on behalf of, a government agency
                     under a contract or other arrangement.
           (2) The Commissioner may ask a government agency or service
10             provider to disclose to the Commissioner relevant information.
           (3) A government agency or service provider, or an officer or
               employee of a government agency or service provider, must
               disclose relevant information in response to a request under
               subsection (2) unless such disclosure contravenes a prescribed
15             written enactment relating to secrecy or confidentiality.
           (4) If information is disclosed, in good faith, under
               subsection (3) --
                 (a) no civil or criminal liability is incurred in respect of the
                        disclosure; and
20               (b) the disclosure is not to be regarded as a breach of
                        professional ethics or standards or as unprofessional
                        conduct.
     23.        Commissioner not to deal with individual cases
           (1) It is not a function of the Commissioner to investigate or
25             otherwise deal with a complaint made by, or any other matter
               relating to, a particular child or young person.
           (2) Subsection (1) does not preclude the Commissioner from --
                  (a) providing a child or young person or his or her family
                        with information about government and
30                      non-government programs and services;


                                                                          page 13
     Commissioner for Children and Young People Bill 2006
     Part 3        Functions of the Commissioner
     s. 24




                  (b) referring a child or young person or his or her family to
                      such programs or services; or
                  (c) investigating or otherwise dealing with any matter
                      affecting the wellbeing of children and young people
5                     generally which is raised through a matter relating to a
                      particular child or young person.
     24.        Delegation
           (1) The Commissioner may delegate to a staff member any power
               or duty of the Commissioner under another provision of this Act
10             other than a power or duty under Part 5.
           (2) The delegation must be in writing signed by the Commissioner.
           (3) A person to whom a power or duty is delegated under this
               section cannot delegate that power or duty.
           (4) A person exercising or performing a power or duty that has been
15             delegated to the person under this section is to be taken to do so
               in accordance with the terms of the delegation unless the
               contrary is shown.
           (5) Nothing in this section limits the ability of the Commissioner to
               perform a function through a staff member or an agent.




     page 14
                           Commissioner for Children and Young People Bill 2006
                                    Relationship with the Minister         Part 4



                                                                             s. 25




                 Part 4 -- Relationship with the Minister
     25.        Independence of Commissioner
                Except as provided in this Act, the Commissioner is not subject
                to direction by the Minister or any other person in the
5               performance of the Commissioner's functions.
     26.        Minister may give directions
           (1) The Minister may give written directions to the Commissioner
               as to the general policy to be followed in the performance of the
               Commissioner's functions.
10         (2) A direction must not be given under subsection (1) in respect of
               a particular matter.
           (3) The Commissioner must comply with a direction under
               subsection (1) unless, in the Commissioner's opinion, there are
               reasonable grounds for not complying with the direction.
15         (4) If the Commissioner refuses to comply with a direction under
               subsection (1), the Commissioner must cause the reasons for his
               or her refusal to be included in the report referred to in
               section 42.
           (5) The Minister must cause the text of a direction under
20             subsection (1) to be laid before each House of Parliament, or
               dealt with under section 61, within 14 days after the direction is
               given.
           (6) The text of a direction under subsection (1) must be included in
               the report referred to in section 42.
25   27.        Minister may request information
           (1) The Minister may request the Commissioner --
                (a) to furnish information in the possession of the
                     Commissioner to the Minister; or
                (b) to give the Minister access to such information.

                                                                          page 15
     Commissioner for Children and Young People Bill 2006
     Part 4        Relationship with the Minister
     s. 28




           (2) The Commissioner must comply with a request under
               subsection (1) unless, in the Commissioner's opinion, there are
               reasonable grounds for not complying with the request.
           (3) If the Commissioner decides to comply with a request under
5              subsection (1), the Commissioner must make the
               Commissioner's staff and facilities available to the Minister for
               the purposes of obtaining the information and furnishing it to
               the Minister.
           (4) In this section --
10             "information" means information specified, or of a description
                    specified, by the Minister that relates to the
                    Commissioner's functions.
     28.        Consultation
                The Commissioner and the Minister, at the request of either, are
15              to consult together, either directly or through appropriate
                representatives, in relation to any aspect of the Commissioner's
                functions.




     page 16
                          Commissioner for Children and Young People Bill 2006
                                                Special inquiries          Part 5



                                                                            s. 29




                          Part 5 -- Special inquiries
     29.        Establishment of special inquiry
           (1) The Commissioner, on the Commissioner's own initiative or at
               the request of the Minister, may conduct a special inquiry into a
5              matter affecting the wellbeing of children and young people.
           (2) Before conducting a special inquiry the Commissioner must
               inform the Minister in writing of his or her intention to do so.
     30.        Notice of special inquiry
           (1) The Commissioner must cause notice of a special inquiry to be
10             published in a newspaper circulating generally in the State.
           (2) The Commissioner may cause notice of a special inquiry to be
               published in any other manner that the Commissioner considers
               appropriate.
           (3) A notice under this section must specify --
15               (a) the matter to which the inquiry relates;
                 (b) the period during which the inquiry is to be held;
                 (c) details of any hearings that are to be held; and
                 (d) the manner in which members of the public may make
                      submissions to the Commissioner.
20   31.        General conduct of special inquiry
           (1) In conducting a special inquiry the Commissioner --
                 (a) must act with as little formality as possible;
                 (b) is not bound by the rules of evidence and may inform
                      himself or herself on any matter in any manner the
25                    Commissioner considers appropriate;
                 (c) may receive written or oral submissions;
                 (d) may hold public seminars and establish working groups
                      or task forces; and

                                                                         page 17
     Commissioner for Children and Young People Bill 2006
     Part 5        Special inquiries
     s. 32




                 (e) may consult with any person the Commissioner
                       considers appropriate.
           (2) The Commissioner must conduct a special inquiry in a way that,
               having regard to its subject matter, promotes the participation of
5              children and young people in, and their understanding of, the
               inquiry.
           (3) Subject to this Part and the regulations, the Commissioner may
               determine the procedure to be followed at or in connection with
               a special inquiry.
10   32.        Hearings
           (1) The Commissioner may hold hearings for the purposes of a
               special inquiry.
           (2) Except as provided in subsection (3), hearings are to be held in
               public.
15         (3) The Commissioner may direct that a hearing, or any part of a
               hearing, be held in private if the Commissioner is satisfied that
               it is desirable to do so because of the confidential nature of any
               evidence or matter or for any other reason.
           (4) The Commissioner has a discretion as to whether any person
20             may appear at a hearing in person or be represented by another
               person.
     33.        Powers relevant to special inquiry
                The Commissioner may, for the purposes of a special inquiry --
                 (a) by notice in writing require the attendance of any person
25                    at a place and time specified in the notice;
                 (b) by notice in writing require any person to produce at a
                      place and time specified in the notice any document that
                      is in the possession or under the control of that person;
                 (c) inspect any document produced and retain it for such
30                    reasonable period as the Commissioner thinks fit, and
                      make copies of it or any of its contents;
     page 18
                          Commissioner for Children and Young People Bill 2006
                                                Special inquiries          Part 5



                                                                            s. 34




                  (d) require any person to take an oath or make an
                      affirmation and may administer an oath or affirmation to
                      any person; and
                  (e) require any person to answer any question put to that
5                     person.
     34.        Failure to comply with notice
           (1) A person must not, without lawful excuse, refuse or fail --
                 (a) to attend; or
                 (b) to produce a document,
10             as required by a notice under section 33.
               Penalty: a fine of $12 000 and imprisonment for 12 months.
           (2) A person must not, without lawful excuse, refuse or fail --
                 (a) to be sworn or make an affirmation; or
                 (b) to answer a question,
15             when required to do so under section 33.
               Penalty: a fine of $12 000 and imprisonment for 12 months.
     35.        Incriminating answers or documents
           (1) It is not a lawful excuse for the purposes of section 34 for a
               person to refuse to answer a question or produce a document on
20             the ground that the answer or the document might tend to
               incriminate the person or make the person liable to a penalty.
           (2) Despite subsection (1), an answer given or a document
               produced by a person in compliance with a requirement under
               section 33 is not admissible in evidence in any proceedings
25             against the person other than proceedings for an offence under
               section 40.
     36.        Legal professional privilege
           (1) Subject to subsection (2), nothing in this Part prevents a person
               from refusing to give an answer or produce a document because
                                                                         page 19
     Commissioner for Children and Young People Bill 2006
     Part 5        Special inquiries
     s. 37




               the answer would relate to, or the document contains,
               information in respect of which the person claims legal
               professional privilege.
           (2) A government agency, or an employee or officer of a
5              government agency, may not refuse to answer a question or
               produce a document on the ground that the answer or the
               document is subject to legal professional privilege.
           (3) If a government agency, or an employee or officer of a
               government agency, answers a question or produces a document
10             which is claimed to be subject to legal professional privilege the
               Commissioner may not include the answer or document or the
               substance of the answer or document, in any report to
               Parliament but may report the answer or document
               confidentially to the Standing Committee.
15         (4) If the Commissioner reports an answer or document
               confidentially to the Standing Committee under subsection (3)
               the Standing Committee must consider in private session
               whether the answer or question should be reported to
               Parliament, and, if the Standing Committee considers it
20             appropriate, the Standing Committee may report the answer or
               document to the Parliament.
     37.        Power of entry
           (1) An authorised person may, for the purposes of a special inquiry,
               enter and inspect any place.
25         (2) The power of entry conferred by subsection (1) may only be
               exercised --
                 (a) with the consent of the owner or occupier of the place;
                       or
                 (b) under the authority of a warrant issued under section 38.
30         (3) Entry under this section may be made with any assistants or
               equipment that the authorised person considers necessary.


     page 20
                           Commissioner for Children and Young People Bill 2006
                                                 Special inquiries         Part 5



                                                                            s. 38




           (4) A person who enters or who has entered any place under this
               section must give particulars of the purpose of, and the authority
               for, that entry on being requested to do so.
     38.        Warrants
5          (1) A magistrate of the Children's Court may, on an application
               made by an authorised person, issue a warrant authorising the
               entry of a place specified in the warrant.
           (2) A warrant may be issued if the magistrate is satisfied that the
               entry is reasonably required for the purposes of a special
10             inquiry.
           (3) A warrant may be executed by any authorised person.
           (4) A person executing a warrant may use any force reasonably
               necessary.
           (5) A warrant continues to have effect until the purpose for which it
15             was issued has been satisfied.
     39.        Disruption of special inquiry
                A person must not --
                 (a) wilfully insult the Commissioner when conducting a
                       special inquiry; or
20               (b) wilfully interrupt or obstruct the conduct of a special
                       inquiry.
                Penalty: a fine of $12 000 and imprisonment for 12 months.
     40.        False information
                During a special inquiry a person must not give an answer or
25              other information to the Commissioner if the person knows that
                the answer or information is false or misleading in a material
                particular.
                Penalty: a fine of $12 000 and imprisonment for 12 months.


                                                                         page 21
    Commissioner for Children and Young People Bill 2006
    Part 5        Special inquiries
    s. 41




    41.       Protection for certain persons
              A person is not liable in any way for any loss or damage
              suffered by another person because the first-mentioned person
              has given information or produced a document, in good faith, to
5             the Commissioner for the purposes of a special inquiry.




    page 22
                          Commissioner for Children and Young People Bill 2006
                                                      Reporting             Part 6

                                                       Reports          Division 1

                                                                             s. 42




                              Part 6 -- Reporting
                               Division 1 -- Reports


     42.        Annual reports
           (1) The Commissioner must, within 3 months after 30 June in each
5              year, prepare a report as to the Commissioner's general
               activities during the financial year ending on that day.
           (2) The report required under this section may be prepared and
               dealt with in conjunction with any report required under the
               Financial Administration and Audit Act 1985 in respect of the
10             Commissioner.
     43.        Reports on special inquiries
                The Commissioner must, as soon as practicable after the
                conclusion of a special inquiry under Part 5, prepare a report on
                the findings of the inquiry.
15   44.        Reports on other matters
                The Commissioner may from time to time prepare a report
                on --
                  (a) any inquiry, review or research conducted in the
                      performance of the Commissioner's functions; or
20               (b) any other matter arising in the performance of those
                      functions.
                         Division 2 -- General provisions


     45.        Meaning of "report"
                In this Division --
25              "report" means a report prepared under Division 1.



                                                                          page 23
     Commissioner for Children and Young People Bill 2006
     Part 6        Reporting
     Division 2    General provisions
     s. 46




     46.        Recommendations
                A report may include recommendations for changes to any
                written law, draft law, policy, practice or procedure, or for the
                taking of other action, that the Commissioner considers
5               appropriate to safeguard and promote the wellbeing of children
                and young people.
     47.        Adverse matters in report
                Before including in a report any matters adverse to a person or
                body, the Commissioner must give the person or body a
10              reasonable opportunity to make representations to the
                Commissioner concerning those matters.
     48.        Minister to be provided with draft reports
           (1) The Commissioner must give the Minister a draft of each report.
           (2) The Minister may issue written comments to the Commissioner
15             on a draft report.
           (3) The Minister may, in writing, request the Commissioner to
               consult with any person in relation to a draft report.
           (4) The Commissioner is not required to --
                 (a) undertake consultation in response to a request under
20                     subsection (3); or
                 (b) make changes to a draft report as a result of any
                       comments issued under subsection (2) or consultation
                       undertaken in response to a request under subsection (3).
           (5) A report must include a copy of any comments issued under
25             subsection (2).
     49.        Reports to be laid before Parliament
           (1) The Commissioner must cause a copy of a report to be laid
               before each House of Parliament, or dealt with under section 61,
               within 21 days after finalisation of the report.

     page 24
                          Commissioner for Children and Young People Bill 2006
                                                      Reporting            Part 6

                                             General provisions        Division 2

                                                                            s. 50




           (2) Subsection (1) does not apply in relation to a report prepared
               under section 42 if the report is prepared and dealt with as
               provided for in subsection (2) of that section.
     50.        Publication of reports
5          (1) After the Commissioner has complied with section 49 in
               relation to a report, the Commissioner --
                 (a) must publish a version of the report in a form suitable
                       for children and young people unless the Commissioner
                       considers that it is not appropriate to do so; and
10               (b) may publish the report (including the version referred to
                       in paragraph (a)) in any way the Commissioner
                       considers appropriate.
           (2) The version referred to in subsection (1)(a) may consist of the
               whole report or such parts of the report as the Commissioner
15             considers appropriate.




                                                                         page 25
    Commissioner for Children and Young People Bill 2006
    Part 7        Standing Committee
    s. 51




                      Part 7 -- Standing Committee
    51.        Standing Committee of Houses of Parliament
          (1) The Houses of Parliament are to establish a joint standing
              committee comprising an equal number of members appointed
5             by each House.
          (2) The functions and powers of the Standing Committee are
              determined by agreement between the Houses and are not
              justiciable.




    page 26
                          Commissioner for Children and Young People Bill 2006
                                            Advisory committees           Part 8



                                                                           s. 52




                       Part 8 -- Advisory committees
     52.        Establishment of advisory committees
           (1) Subject to subsection (2), the Commissioner may establish
               advisory committees and reference groups to assist in the
5              performance of the Commissioner's functions.
           (2) The Commissioner must establish advisory committees
               consisting of children and young people, who the Commissioner
               considers are from a broad range of socio-economic and cultural
               backgrounds and age groups, to assist in the performance of the
10             Commissioner's functions. These committees should be
               established in regional areas as well as the metropolitan area.
           (3) The membership of advisory committees and reference groups
               should include representatives of non-government agencies
               concerned with the rights, interests and wellbeing of children.
15         (4) The Commissioner may discharge, alter or reconstitute an
               advisory committee.
           (5) Subject to subsection (2), an advisory committee is to consist of
               such people as the Commissioner determines.
     53.        Membership
20         (1) An advisory committee is to consist of such people as the
               Commissioner determines.
           (2) The Commissioner must not appoint a person as a member of an
               expert advisory committee unless the Commissioner is satisfied
               that the person has extensive experience in a field that the
25             Commissioner considers relevant to the wellbeing of children
               and young people.
     54.        Functions
           (1) Subject to section 52(2), the Commissioner is to determine the
               functions of an advisory committee.


                                                                        page 27
     Commissioner for Children and Young People Bill 2006
     Part 8        Advisory committees
     s. 55




           (2) An advisory committee must comply with any direction given to
               the committee by the Commissioner in relation to the
               performance of its functions.
     55.        Procedures
5               Subject to any direction of the Commissioner, an advisory
                committee may determine its own procedures.
     56.        Remuneration and allowances
                A member of an advisory committee is entitled to any
                remuneration and allowances determined in respect of the
10              member by the Minister on the recommendation of the Minister
                for Public Sector Management.




     page 28
                           Commissioner for Children and Young People Bill 2006
                                                   Miscellaneous            Part 9



                                                                             s. 57




                            Part 9 -- Miscellaneous
     57.        Recommendations by the Standing Committee
                In the determination of the budget for the Commissioner for a
                financial year regard is to be had to any recommendation as to
5               that budget made to the Treasurer by the Standing Committee.
     58.        Obstruction
           (1) A person must not obstruct or hinder a person who is
               performing or attempting to perform a function under this Act.
               Penalty: a fine of $12 000 and imprisonment for 12 months.
10         (2) A refusal to given consent for the purposes of section 37(2) does
               not amount to obstruction or hindering.
     59.        Protection from liability for wrongdoing
           (1) An action in tort does not lie against a person for anything that
               the person has done, in good faith, in the performance or
15             purported performance of a function under this Act.
           (2) The State is also relieved of any liability that it might otherwise
               have had for a person having done anything as described in
               subsection (1).
           (3) The protection given by this section applies even though the
20             thing done as described in subsection (1) may have been
               capable of being done whether or not this Act had been enacted.
           (4) In this section, a reference to the doing of anything includes a
               reference to an omission to do anything.




                                                                          page 29
     Commissioner for Children and Young People Bill 2006
     Part 9        Miscellaneous
     s. 60




     60.        Confidentiality of information
           (1) A person who is or has been engaged in the performance of
               functions under this Act must not, directly or indirectly, record,
               disclose or make use of information obtained in the course of
5              performing those functions except --
                 (a) for the purpose of, or in connection with, performing
                        functions under this Act;
                 (b) for the purpose of the investigation of a suspected
                        offence under this Act or the conduct of proceedings
10                      against a person for an offence under this Act;
                 (c) as required or allowed under this Act, the Public Interest
                        Disclosure Act 2003 or another written law;
                 (d) with the written consent of the Minister or the person to
                        whom the information relates; or
15               (e) in prescribed circumstances.
               Penalty: a fine of $12 000 and imprisonment for 12 months.
           (2) Subsection (1) is not to be taken to prevent the disclosure of
               statistical or other information that could not reasonably be
               expected to lead to the identification of any person to whom it
20             relates.
           (3) If information is lawfully disclosed under this section, this
               section does not prevent the further disclosure of the
               information, or the recording or use of the information, for the
               purpose for which the disclosure was made.
25   61.        Supplementary provision for laying document before
                Parliament
           (1) If --
                  (a) at the commencement of a period referred to in
                      section 26(5) in respect of a document a House of
30                    Parliament is not sitting; and
                 (b) the Minister is of the opinion that that House will not sit
                      during that period,

     page 30
                           Commissioner for Children and Young People Bill 2006
                                                   Miscellaneous           Part 9



                                                                            s. 62




               the Minister must transmit a copy of the document to the Clerk
               of that House.
           (2) If --
                  (a) at the commencement of a period referred to in
5                      section 49(1) in respect of a document a House of
                       Parliament is not sitting; and
                 (b) the Commissioner is of the opinion that that House will
                       not sit during that period,
               the Commissioner must transmit a copy of the document to the
10             Clerk of that House.
           (3) A copy of a document transmitted to the Clerk of a House is to
               be taken to have been laid before that House.
           (4) The laying of a copy of a document that is taken to have
               occurred under subsection (3) is to be recorded in the Minutes,
15             or Votes and Proceedings, of the House on the first sitting day
               of the House after the receipt of the copy by the Clerk.
     62.        Protection for proceedings in Cabinet
           (1) A person must not be required or authorised under this Act --
                 (a) to furnish any information or answer any question that
20                      relates to proceedings of Cabinet or of any committee of
                        Cabinet; or
                 (b) to produce or inspect any document, or any part of a
                        document, that relates to such proceedings.
           (2) For the purposes of this section a certificate issued by the chief
25             executive officer of the Department of the Premier and Cabinet,
               with the approval of the Premier of the State, certifying that any
               information or question, or any document or part of a document,
               relates to proceedings referred to in subsection (1) is conclusive
               of the fact so certified.



                                                                         page 31
     Commissioner for Children and Young People Bill 2006
     Part 9        Miscellaneous
     s. 63




     63.        Regulations
           (1) The Governor may make regulations prescribing all matters that
               are required or permitted by this Act to be prescribed or are
               necessary or convenient to be prescribed for giving effect to the
5              purposes of this Act.
           (2) Without limiting subsection (1), the regulations may --
                 (a) make provision for and in relation to the conduct of
                       hearings;
                 (b) provide for the prohibition or restriction of the
10                     publication or disclosure of evidence given at hearings;
                 (c) create offences and provide, in respect of an offence so
                       created, for the imposition of a penalty not exceeding
                       $6 000.
     64.        Review of Act
15         (1) The Minister must carry out a review of the operation and
               effectiveness of this Act as soon as is practicable after the
               expiry of 5 years from the commencement of this section.
           (2) The Minister must prepare a report based on the review and, as
               soon as is practicable after the report is prepared, must cause it
20             to be laid before each House of Parliament.
     65.        Consequential amendments
                The Acts mentioned in Schedule 1 are amended as set out in
                that Schedule.




     page 32
                            Commissioner for Children and Young People Bill 2006
                                       Consequential amendments          Schedule 1



                                                                                cl. 1




                    Schedule 1 -- Consequential amendments
                                                                               [s. 65]
     1.         Constitution Acts Amendment Act 1899 amended
          (1)   The amendment in this clause is to the Constitution Acts Amendment
5               Act 1899*.
                [* Reprint 13 as at 18 March 2005.
                   For subsequent amendments see Act Nos. 59 and 70 of 2004 and
                   1 and 2 of 2005.]
          (2)   Schedule V Part 1 Division 2 is amended by inserting after the item
10              relating to the Commissioner appointed under the Corruption and
                Crime Commission Act 2003 the following item --
                "
                      Commissioner for Children and Young People appointed
                           under the Commissioner for Children and Young
15                         People Act 2006.
                                                                                      ".
     2.         Financial Administration and Audit Act 1985 amended
          (1)   The amendments in this clause are to the Financial Administration
                and Audit Act 1985*.
20              [* Reprint 8 as at 9 July 2004.
                   For subsequent amendments see Western Australian Legislation
                   Information Tables for 2004, Table 1, p. 165 and Gazette
                   4 February 2005 p. 623-4.]
          (2)   Section 3(2) is amended as follows:
25                (a) by deleting "and" after paragraph (f);
                  (b) by deleting the comma after paragraph (g) and inserting
                        instead --
                        "
                            ; and
30                      (h) the Commissioner for Children and Young
                            People,
                                                                                      ".
                                                                             page 33
     Commissioner for Children and Young People Bill 2006
     Schedule 1    Consequential amendments
     cl. 3




     3.         Working with Children (Criminal Record Checking) Act 2004
                amended
          (1)   The amendments in this clause are to the Working with Children
                (Criminal Record Checking) Act 2004*.
5               [* Act No. 65 of 2004.]
          (2)   Section 4 is amended as follows:
                  (a) by deleting the definition of "CEO";
                  (b) by deleting the definition of "Commissioner" and inserting
                        instead --
10              "
                          "Commissioner" means the person holding or acting
                              in the office of Commissioner for Children and
                              Young People under the Commissioner for
                              Children and Young People Act 2006;
15                                                                                   ";
                    (c)    by inserting in the appropriate alphabetical position --
                "
                          "Commissioner for Police" means the person holding
                              or acting in the office of Commissioner for Police
20                            under the Police Act 1892;
                                                                                     ".
          (3)   The heading to Part 2 Division 3 is amended by deleting "CEO" and
                inserting instead --
                " Commissioner ".
25        (4)   Section 17(1) is amended by inserting after "Commissioner" in both
                places where it occurs --
                " of Police ".
          (5)   Section 17(2) is amended by inserting after "Commissioner" --
                " of Police ".



     page 34
                     Commissioner for Children and Young People Bill 2006
                                Consequential amendments              Schedule 1



                                                                              cl. 3




     (6)   Section 34(1) is amended in paragraph (b) of the definition of
           "authorised person" by inserting after "Commissioner" --
           " of Police ".
     (7)   Section 34(3) is amended by inserting after "Commissioner" in both
5          places where it occurs --
           " of Police ".
     (8)   The provisions mentioned in the Table to this subclause are amended
           by deleting "CEO" in each place where it occurs and inserting
           instead --
10         " Commissioner ".
                                      Table


           s. 3                               s. 26(1) and (2)
           s. 4 (definitions of "approved",   s. 28(1) and (2)
           "assessment notice", "criminal
           record check", "interim
           negative notice", "negative
           notice")
           s. 6(1)(b)                         s. 29(2)
           s. 9(1) and (4)                    s. 30
           s. 10(1) and (4)                   s. 32(1)
           s. 11(2) and (3)                   s. 34(2), (3), (4) and (5)
           s. 12(1) to (10)                   s. 35(b)
           s. 13(1) to (7)                    s. 36
           s. 16(1), (2) and (3)              s. 37(1), (2) and (3)
           s. 17(1) and (3)                   s. 38(2), (3) and (4)
           s. 18(1) and (2)                   s. 42(2)
           s. 19(1), (9) and (10)             s. 44(3), (4) and (5)
           s. 20(2), (3), (5) and (6)         s. 45(1), (3), (4) and (6)




 


[Index] [Search] [Download] [Related Items] [Help]