Aboriginal and Torres Strait Islander Children and Young People Commissioner Act 2022
1Aboriginal and Torres Strait Islander Children and Young People Commissioner Act 2022
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Australian Capital Territory
Aboriginal and Torres Strait Islander
Children and Young People
Commissioner Act 2022
A2022-25
Republication No 1
Effective: 15 December 2022
Republication date: 15 December 2022
Act not amended
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
About this republication
The republished law
This is a republication of the Aboriginal and Torres Strait Islander Children and Young People
Commissioner Act 2022 (including any amendment made under the Legislation Act 2001, part
11.3 (Editorial changes)) as in force on 15 December 2022. It also includes any commencement,
repeal or expiry affecting this republished law.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation
Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).
Section 1 - Aboriginal and Torres Strait Islander Children and Young People Commissioner Act 2022 - Aboriginal and Torres Strait Islander Children and Young People Commissioner Act 2022 | Zoe
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Aboriginal and Torres Strait Islander Children and Young
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contents 1
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Australian Capital Territory
Aboriginal and Torres Strait Islander
Children and Young People
Commissioner Act 2022
Contents
Page
Part 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5 Offences against Act—application of Criminal Code etc 3
Part 2 Objects and important concepts
6 Objects of Act 4
7 Aboriginal and Torres Strait Islander cultural principles 5
Contents
Page
contents 2 Aboriginal and Torres Strait Islander Children and Young
People Commissioner Act 2022
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Part 3 Office of the Aboriginal and Torres Strait
Islander Children and Young People
Commissioner
Division 3.1 Establishment of commissioner’s office etc
8 Establishment of commissioner’s office 7
9 Independence of commissioner’s office 7
Division 3.2 Aboriginal and Torres Strait Islander Children and
Young People Commissioner
10 Appointment of commissioner 7
11 Commissioner’s functions 9
12 Annual statement by commissioner 10
13 Ending commissioner’s appointment 11
14 Delegation of commissioner’s functions 12
15 Cooperation with human rights commission 12
Division 3.3 Staff etc of commissioner’s office
16 Advisory committees 12
17 Arrangements for staff and facilities 12
18 Consultants and contractors 13
19 Engagement of lawyer by commissioner 13
Part 4 Advocacy and inquiry by commissioner
Division 4.1 Inquiry by commissioner
20 Commissioner may conduct inquiry 14
21 Conduct of inquiry 14
22 Notice of inquiry 15
23 Recommendation in relation to inquiry 15
Division 4.2 Advocacy by commissioner for individuals
24 Recommendation in relation to advocacy 16
Division 4.3 Report in relation to inquiry etc
25 Report in relation to inquiry or matter of public importance 16
Part 5 Information gathering and sharing
26 Definitions—pt 5 18
Contents
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27 Power to require information, documents and other things 18
28 Limit on power to ask for information, documents and other things—
identifying information 19
29 Limit on power to ask for information, documents and other things—
consent for personal information 20
30 Failure to give information, document or other thing 21
31 Power to require attendance 21
32 Failure to attend 22
33 Abrogation of privilege against self-incrimination 23
34 Information sharing—human rights commission 24
35 Secrecy 25
Part 6 Miscellaneous
36 Protection of officials from liability 27
37 Protection of others from liability 27
38 Regulation-making power 27
Dictionary 28
Endnotes
1 About the endnotes 33
2 Abbreviation key 33
3 Legislation history 34
4 Amendment history 35
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Australian Capital Territory
Aboriginal and Torres Strait Islander
Children and Young People
Commissioner Act 2022
An Act to establish the office of the Aboriginal and Torres Strait Islander
Children and Young People Commissioner, and for other purposes
Part 1 Preliminary
Section 1
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Part 1 Preliminary
1 Name of Act
This Act is the Aboriginal and Torres Strait Islander Children and
Young People Commissioner Act 2022.
3 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this
Act, and includes references (signpost definitions) to other terms defined
elsewhere in this Act.
For example, the signpost definition ‘protected information, for part 5
(Information gathering and sharing)—see section 26.’ means that the
term ‘protected information’ is defined in that section.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire Act unless the definition, or another provision of this Act,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).
4 Notes
A note included in this Act is explanatory and is not part of this Act.
Preliminary Part 1
Section 5
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5 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see
Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used
for offences to which the Code applies (eg conduct, intention,
recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
Part 2 Objects and important concepts
Section 6
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Part 2 Objects and important concepts
6 Objects of Act
(1) The main objects of this Act are to—
(a) promote and protect the rights of Aboriginal and Torres Strait
Islander children and young people; and
(b) establish the office of the Aboriginal and Torres Strait Islander
Children and Young People Commissioner; and
(c) provide for the commissioner’s office to—
(i) advocate for the rights of Aboriginal and Torres Strait
Islander children and young people, individually and
collectively; and
(ii) identify and examine issues that affect the human rights
and wellbeing of Aboriginal and Torres Strait Islander
children and young people; and
(iii) make recommendations to government and
non-government agencies on legislation, policies, practices
and services that affect Aboriginal and Torres Strait
Islander children and young people.
(2) The objects are intended to operate consistently with—
(a) the Human Rights Act 2004; and
(b) the principles set out in the Convention on the Rights of the
Child; and
(c) the principles set out in the Declaration on the Rights of
Indigenous Peoples.
Objects and important concepts Part 2
Section 7
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(3) In this section:
Convention on the Rights of the Child means the United Nations
Convention on the Rights of the Child adopted by the General
Assembly of the United Nations on 20 November 1989, as amended
and in force for Australia from time to time.
Note The Convention on the Rights of the Child is accessible at
www.ohchr.org/en/instruments-mechanisms/instruments/convention-
rights-child.
Declaration on the Rights of Indigenous Peoples means the United
Nations Declaration on the Rights of Indigenous Peoples adopted by
the General Assembly of the United Nations on 13 September 2007,
as amended and in force for Australia from time to time.
Note The Declaration on the Rights of Indigenous Peoples is accessible at
www.un.org/development/desa/indigenouspeoples/declaration-on-the-
rights-of-indigenous-peoples.html.
7 Aboriginal and Torres Strait Islander cultural principles
(1) A person exercising a function under this Act must recognise that
Aboriginal and Torres Strait Islander children and young people need
strong connections with culture, family, Elders, communities and
Country to develop and thrive and to be protected from harm.
(2) Without limiting the ways in which a person exercising a function
under this Act recognises the need for the connections mentioned in
subsection (1), the person must apply the following principles (the
Aboriginal and Torres Strait Islander cultural principles) when
exercising the function:
(a) it is important for Aboriginal and Torres Strait Islander children
and young people to maintain their Aboriginal or Torres Strait
Islander cultural and linguistic environment, and their set of
values (including Aboriginal tradition or Island custom);
Part 2 Objects and important concepts
Section 7
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(b) it is important to respect the kinship rules of Aboriginal and
Torres Strait Islander people, as identified by reference to an
Aboriginal or Torres Strait Islander person’s family and kinship
relationships and the community with which the child or young
person has the strongest affiliation;
(c) it is important to acknowledge the spiritual, social, historical,
cultural and economic importance of Country to Aboriginal and
Torres Strait Islander children and young people and the
traditional, customary or historical affiliation Aboriginal and
Torres Strait Islander people have with particular areas.
(3) In this section:
Aboriginal tradition—
(a) means the body of traditions, observances, customs and beliefs
of Aboriginal people generally, or of a particular community or
group of Aboriginal people; and
(b) includes any traditions, observances, customs and beliefs
mentioned in paragraph (a) that relate to particular people, areas,
objects or relationships.
Island custom, known in the Torres Strait as Ailan Kastom—
(a) means the body of customs, traditions, observances and beliefs
of Torres Strait Islanders generally, or of a particular community
or group of Torres Strait Islanders; and
(b) includes any traditions, observances, customs and beliefs
mentioned in paragraph (a) that relate to particular people, areas,
objects or relationships.
Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Part 3
Establishment of commissioner’s office etc Division 3.1
Section 8
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Part 3 Office of the Aboriginal and
Torres Strait Islander Children
and Young People Commissioner
Division 3.1 Establishment of commissioner’s
office etc
8 Establishment of commissioner’s office
The office of the Aboriginal and Torres Strait Islander Children and
Young People Commissioner is established.
9 Independence of commissioner’s office
Except as provided in this Act or another territory law, the
commissioner’s office is not subject to the direction of anyone else in
relation to the exercise of a function under this Act.
Division 3.2 Aboriginal and Torres Strait Islander
Children and Young People
Commissioner
10 Appointment of commissioner
(1) The Executive must appoint a person as the Aboriginal and Torres
Strait Islander Children and Young People Commissioner.
Note For laws about appointments, see the Legislation Act, pt 19.3.
(2) A person appointed as the commissioner must be either or both of the
following:
(a) an Aboriginal person;
(b) a Torres Strait Islander person.
Part 3 Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Division 3.2 Aboriginal and Torres Strait Islander Children and Young People
Commissioner
Section 10
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(3) The Executive must not appoint a person as the commissioner unless
the Executive—
(a) has involved members of the Aboriginal and Torres Strait
Islander community in the process for selecting the
commissioner; and
(b) is satisfied that the person has the experience or expertise
necessary to exercise the commissioner’s functions.
(4) A person must be appointed for a term not longer than 5 years.
(5) The commissioner’s conditions of appointment are the conditions
agreed between the Minister and the commissioner stated in the
instrument of appointment, subject to any determination under the
Remuneration Tribunal Act 1995.
(6) The appointment of the commissioner is a notifiable instrument.
(7) In this section:
Aboriginal person means a person who—
(a) is a descendant of an Aboriginal person; and
(b) identifies as an Aboriginal person; and
(c) is accepted as an Aboriginal person by an Aboriginal
community.
Torres Strait Islander means a person who—
(a) is a descendant of a Torres Strait Islander; and
(b) identifies as a Torres Strait Islander; and
(c) is accepted as a Torres Strait Islander by a Torres Strait Islander
community.
Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Part 3
Aboriginal and Torres Strait Islander Children and Young People
Commissioner
Division 3.2
Section 11
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11 Commissioner’s functions
(1) The commissioner has the following functions:
(a) to advocate on behalf of Aboriginal and Torres Strait Islander
children and young people, individually and collectively;
(b) to intervene on behalf of Aboriginal and Torres Strait Islander
children and young people in relation to decisions that will affect
their rights or interests, including in relevant court proceedings;
(c) to inquire into matters relating to the rights, development, safety
and wellbeing of Aboriginal and Torres Strait Islander children
and young people;
(d) to promote the enjoyment by Aboriginal and Torres Strait
Islander children and young people, and their families, of their
rights;
(e) to advise the government about policy, services and other
matters affecting Aboriginal and Torres Strait Islander children
and young people, and their families;
(f) any other function given to the commissioner under this Act or
another territory law.
Note A provision of a law that gives an entity a function also gives the entity
powers necessary and convenient to exercise the function (see Legislation
Act, s 196).
(2) In exercising the functions mentioned in subsection (1), the
commissioner must take all reasonable steps to—
(a) consult Aboriginal and Torres Strait Islander children, young
people and their families in ways that promote their participation
in decision-making; and
(b) listen to and seriously consider the views of Aboriginal and
Torres Strait Islander children and young people; and
Part 3 Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Division 3.2 Aboriginal and Torres Strait Islander Children and Young People
Commissioner
Section 12
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(c) ensure the commissioner is accessible to Aboriginal and Torres
Strait Islander children and young people; and
(d) engage regularly with the Aboriginal and Torres Strait Islander
community.
Note The commissioner must apply the Aboriginal and Torres Strait Islander
cultural principles when exercising the commissioner’s functions
(see s 7).
12 Annual statement by commissioner
(1) The commissioner must, for each year, prepare a statement
(an annual statement) about the operation of the commissioner’s
office during the year, including—
(a) the number and kinds of advocacy matters the commissioner’s
office engaged in during the year; and
(b) a summary of the inquiries the commissioner conducted during
the year; and
(c) a summary of the activities of any advisory committee assisting
the commissioner during the year; and
(d) a summary of the community engagement undertaken by the
commissioner’s office during the year; and
(e) anything else the commissioner considers appropriate; and
(f) anything else prescribed by regulation.
(2) The annual statement must not, without a person’s consent, include
information—
(a) that identifies the person; or
(b) that would allow the person to be reasonably identifiable.
Office of the Aboriginal and Torres Strait Islander Children and Young
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Part 3
Aboriginal and Torres Strait Islander Children and Young People
Commissioner
Division 3.2
Section 13
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(3) The commissioner must give the annual statement to the following
not later than 3 months after the end of the year:
(a) the Aboriginal and Torres Strait Islander community;
(b) the Speaker.
(4) The Speaker must present the annual statement to the Legislative
Assembly within 5 sitting days after the day the Speaker receives the
statement.
(5) A regulation may prescribe other requirements for an annual
statement.
13 Ending commissioner’s appointment
(1) The Minister may end a person’s appointment as the commissioner—
(a) if the person contravenes a territory law; or
(b) for misbehaviour; or
(c) if the person becomes bankrupt or personally insolvent; or
(d) if the person is convicted, in the ACT, of an offence punishable
by imprisonment for at least 1 year; or
(e) if the person is convicted outside the ACT, in Australia or
elsewhere, of an offence that, if it had been committed in the
ACT, would be punishable by imprisonment for at least 1 year.
(2) The Executive must end the person’s appointment—
(a) if the person is absent, other than on leave approved by the
Minister, for 14 consecutive days or for 28 days in any 12-month
period; or
(b) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the person’s functions.
Part 3 Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Division 3.3 Staff etc of commissioner’s office
Section 14
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14 Delegation of commissioner’s functions
The commissioner may delegate the commissioner’s functions under
this Act or another territory law to a member of the staff of the
commissioner’s office or a public servant.
Note For laws about delegations, see the Legislation Act, pt 19.4.
15 Cooperation with human rights commission
The commissioner’s office should seek to work cooperatively with
the human rights commission where practicable by, for example,
liaising with the commission about coordinating the commissioner’s
activities with the human rights commission’s activities to avoid
unnecessary duplication of work.
Division 3.3 Staff etc of commissioner’s office
16 Advisory committees
(1) The commissioner may establish advisory committees to assist the
commissioner to exercise the commissioner’s functions in relation to
matters affecting Aboriginal and Torres Strait Islander children and
young people.
(2) Without limiting who may be appointed to an advisory committee,
the commissioner may appoint Aboriginal and Torres Strait Islander
community members, including Aboriginal and Torres Strait Islander
children and young people, to the committee.
17 Arrangements for staff and facilities
The commissioner may arrange with the head of service to use the
services of a public servant or territory facilities.
Note The head of service may delegate powers in relation to the management
of public servants to a public servant or another person (see Public Sector
Management Act 1994, s 18).
Office of the Aboriginal and Torres Strait Islander Children and Young
People Commissioner
Part 3
Staff etc of commissioner’s office Division 3.3
Section 18
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18 Consultants and contractors
(1) The commissioner may engage consultants and contractors.
(2) However, the commissioner must not enter into a contract of
employment under this section.
19 Engagement of lawyer by commissioner
The commissioner may engage a lawyer to appear before a court in
relation to the exercise of the commissioner’s functions under this
Act.
Part 4 Advocacy and inquiry by commissioner
Division 4.1 Inquiry by commissioner
Section 20
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Part 4 Advocacy and inquiry by
commissioner
Division 4.1 Inquiry by commissioner
20 Commissioner may conduct inquiry
The commissioner may conduct an inquiry into any matter relating to
systemic issues that affect, or may affect, the rights, development,
safety and wellbeing of Aboriginal and Torres Strait Islander children
and young people generally, or a particular group of Aboriginal and
Torres Strait Islander children and young people.
21 Conduct of inquiry
(1) An inquiry under section 20 may be conducted in the way the
commissioner considers most appropriate, taking into account—
(a) the nature of the matter to which the inquiry relates; and
(b) the wishes, if known, of any children or young people on whose
behalf the commissioner is conducting the inquiry; and
(c) the rules of natural justice and procedural fairness.
(2) However, the commissioner must not conduct an inquiry in a way that
is likely to impede an investigation or proposed investigation, or the
conduct of a proceeding, by any of the following:
(a) the Australian Federal Police;
(b) a coroner;
(c) a court;
(d) the integrity commissioner;
(e) the ombudsman;
(f) the public sector standards commissioner.
Advocacy and inquiry by commissioner Part 4
Inquiry by commissioner Division 4.1
Section 22
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(3) In this section:
Australian Federal Police means the Australian Federal Police
constituted under the Australian Federal Police Act 1979 (Cwlth),
section 6.
22 Notice of inquiry
Before starting an inquiry relevant to an entity, the commissioner
must give the person in charge of the entity written notice of—
(a) the nature of the inquiry; and
(b) how the commissioner expects to seek information from the
entity.
23 Recommendation in relation to inquiry
(1) This section applies if the commissioner conducts an inquiry under
section 20.
(2) The commissioner may give the person in charge of an entity a written
notice setting out—
(a) any recommendation to the entity in relation to the rights,
development, safety and wellbeing of Aboriginal and Torres
Strait Islander children and young people; and
(b) a reasonable stated time within which the entity must give the
commissioner a written response to the recommendation.
(3) The person in charge of the entity must respond to the commissioner
within the stated time.
(4) Subsection (3) does not apply if the person in charge of the entity has
a reasonable excuse for not responding.
Part 4 Advocacy and inquiry by commissioner
Division 4.2 Advocacy by commissioner for individuals
Section 24
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Division 4.2 Advocacy by commissioner for
individuals
24 Recommendation in relation to advocacy
(1) This section applies if the commissioner advocates, or has advocated,
on behalf of an Aboriginal or Torres Strait Islander child or young
person.
(2) The commissioner may give the person in charge of an entity a written
notice setting out—
(a) the matter in relation to which the commissioner is advocating,
or has advocated, for the Aboriginal or Torres Strait Islander
child or young person; and
(b) any recommendation to the entity in relation to the safety,
wellbeing and rights of the child or young person; and
(c) a stated reasonable time within which the entity must give the
commissioner a written response to the recommendation.
(3) The person in charge of the entity must respond to the commissioner
within the stated time.
(4) Subsection (3) does not apply if the person in charge of the entity has
a reasonable excuse for not responding.
Division 4.3 Report in relation to inquiry etc
25 Report in relation to inquiry or matter of public
importance
(1) The commissioner may at any time, on the commissioner’s own
initiative, prepare a written report in relation to the following and give
it to anyone the commissioner considers appropriate:
(a) an inquiry under section 20;
Advocacy and inquiry by commissioner Part 4
Report in relation to inquiry etc Division 4.3
Section 25
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(b) any matter of public importance related to the commissioner’s
functions.
(2) However, the commissioner must not include an adverse comment in
relation to a person in a report unless the commissioner has given the
person a reasonable opportunity to respond to the proposed comment.
(3) If the commissioner gives the Minister a report mentioned in
subsection (1), the Minister must present the report to the Legislative
Assembly within 6 sitting days after the day the Minister receives the
report.
Part 5 Information gathering and sharing
Section 26
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Part 5 Information gathering and
sharing
26 Definitions—pt 5
In this part:
consent, of an individual who is an Aboriginal or Torres Strait
Islander child or young person, includes consent of a person with
parental responsibility for the child or young person.
disclose includes communicate or publish.
information means information, whether true or not, in any form and
includes an opinion and advice.
personal information—see the Information Privacy Act 2014,
section 8.
person with parental responsibility, for an Aboriginal or Torres Strait
Islander child or young person, means a parent or someone else with
parental responsibility for the child or young person under the
Children and Young People Act 2008, division 1.3.2.
produce includes allow access to.
protected information means information about a person that is
disclosed to, or obtained by, an official because of the exercise of a
function under this Act by the official or someone else.
27 Power to require information, documents and other
things
(1) This section applies if the commissioner believes on reasonable
grounds that a person can give information or produce a document or
other thing that the commissioner considers necessary to exercise the
commissioner’s functions under section 11 (1) (a), (b) and (c).
Information gathering and sharing Part 5
Section 28
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(2) The commissioner may, by written notice given to the person, require
the person to give the commissioner the information, or produce the
document or other thing.
Note It is an offence to make a false or misleading statement, give false or
misleading information or produce a false or misleading document (see
Criminal Code, pt 3.4).
(3) Subsection (2) does not apply to sensitive information, including
sensitive information in a document or other thing.
Note The commissioner may also ask for information under the Children and
Young People Act 2008, including under that Act, s 879.
(4) The notice must state how, and the time within which, the person must
comply with the requirement.
(5) However, the commissioner must not require an Aboriginal or Torres
Strait Islander child or young person, or a member of the child or
young person’s family, to give the commissioner information, or
produce a document or other thing.
(6) In this section:
sensitive information—see the Children and Young People Act 2008,
section 845.
28 Limit on power to ask for information, documents and
other things—identifying information
(1) This section applies if—
(a) a person is required under section 27 to give the commissioner
information, or produce a document or other thing in relation to
the conduct of an inquiry under section 20; and
(b) the information, document or other thing includes identifying
information about an individual.
Part 5 Information gathering and sharing
Section 29
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(2) The commissioner must ask the person to remove the identifying
information, if practicable, before giving the information, or
producing a document or other thing.
(3) In this section:
identifying information means information that—
(a) identifies a person; or
(b) would allow a person’s identity to be worked out.
29 Limit on power to ask for information, documents and
other things—consent for personal information
(1) This section applies if the commissioner requires a person to give
information, or produce a document or other thing under section 27,
other than in relation an inquiry under section 20.
(2) The commissioner must not require the person to give the
information, or produce the document or other thing if it contains
personal information about an individual, unless—
(a) the commissioner has taken reasonable steps to seek the
individual’s consent before making the requirement; and
(b) either—
(i) the individual has given consent; or
(ii) the commissioner reasonably believes—
(A) there may be a significant risk to the wellbeing of an
Aboriginal or Torres Strait Islander child or young
person; and
(B) accessing the information is necessary to effectively
advocate for the child or young person.
Information gathering and sharing Part 5
Section 30
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30 Failure to give information, document or other thing
(1) A person commits an offence if—
(a) the person is required under section 27 to give information to the
commissioner; and
(b) the person fails to give the information to the commissioner as
required.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse
for failing to provide the information to the commissioner as required.
Note The defendant has an evidential burden in relation to the matters
mentioned in s (2) and s (4) (see Criminal Code, s 58).
(3) A person commits an offence if—
(a) the person is required under section 27 to produce to the
commissioner a document or other thing; and
(b) the person fails to produce the document or other thing to the
commissioner as required.
Maximum penalty: 50 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse
for failing to produce the document or other thing to the
commissioner as required.
31 Power to require attendance
(1) This section applies if the commissioner believes on reasonable
grounds that a relevant person for an entity can give information
relevant to the conduct of an inquiry under section 20.
(2) The commissioner may, by written notice given to the relevant
person, require the person to attend before an official, at the
reasonable time and place stated in the notice, to answer questions in
relation to the inquiry.
Part 5 Information gathering and sharing
Section 32
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(3) However, the commissioner must not require an Aboriginal or Torres
Strait Islander child or young person, or a member of the child or
young person’s family, to attend before an official under
subsection (2).
(4) A person required to attend before an official under subsection (2)
must continue to attend as reasonably required by the official to
answer questions in relation to the inquiry.
(5) In this section:
employed includes engaged as a volunteer, consultant or contractor.
relevant person, in relation to an entity, means a person who is or was
employed by, or involved in the management or administration of, the
entity.
32 Failure to attend
(1) A person commits an offence if—
(a) the person is required under section 31 to attend before an
official to answer questions in relation to the conduct of an
inquiry; and
(b) the person does not attend before the official as required.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person has a reasonable excuse
for not attending before the official as required.
Note The defendant has an evidential burden in relation to the matters
mentioned in ss (2), (4) and (6) (see Criminal Code, s 58).
(3) A person commits an offence if—
(a) the person is required under section 31 to attend before an
official to answer questions in relation to the conduct of an
inquiry; and
(b) the person attends before the official as required; and
Information gathering and sharing Part 5
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(c) the person fails to continue to attend as reasonably required by
the official to answer questions in relation to the inquiry.
Maximum penalty: 50 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse
for failing to continue to attend as required by the official.
(5) A person commits an offence if—
(a) the person is required under section 31 to attend before an
official to answer questions in relation to the conduct of an
inquiry; and
(b) the person attends before the official as required; and
(c) the official requires the person to answer a question; and
(d) the person fails to answer the question.
Maximum penalty: 50 penalty units.
Note 1 The Legislation Act, s 170 and s 171 deal with the application of the
privilege against self-incrimination and client legal privilege.
Note Giving false or misleading information is an offence against the Criminal
Code, s 338.
(6) Subsection (5) does not apply if the person has a reasonable excuse
for failing to answer the question.
33 Abrogation of privilege against self-incrimination
(1) A person is not excused from answering a question, or providing
information or a document or other thing, under this part on the
ground that the answer to the question, or the information, document
or thing, may tend to incriminate the person or expose the person to a
penalty.
Note The Legislation Act, s 170 deals with the application of the privilege
against self-incrimination.
Part 5 Information gathering and sharing
Section 34
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(2) However, any information, document or other thing obtained, directly
or indirectly, because of the giving of the answer or the production of
the document or other thing, is not admissible in evidence against the
person in a civil or criminal proceeding, other than a proceeding for—
(a) an offence against this part; or
(b) any other offence arising out of the false or misleading nature of
the answer, information, document or other thing.
34 Information sharing—human rights commission
(1) The commissioner may disclose to a member of the human rights
commission any information that has been disclosed to, or obtained
by, the commissioner in the exercise of a function under this Act, if—
(a) the commissioner is reasonably satisfied that the information is
relevant to the exercise of the member’s functions under the
Human Rights Commission Act 2005; and
(b) if the information is personal information about an individual—
the individual has given consent.
(2) However, the commissioner may disclose personal information about
an individual to a member of the human rights commission without
the individual’s consent if the commissioner believes on reasonable
grounds that the disclosure is necessary to ensure that—
(a) the commissioner and the human rights commission are able to
take a coordinated approach in relation to a matter affecting an
Aboriginal or Torres Strait Islander child or young person; or
(b) effective advocacy is able to be undertaken for an Aboriginal or
Torres Strait Islander child or young person.
(3) If a member of the human rights commission uses information
disclosed to the member under this section—
(a) a secrecy requirement is taken to apply to the member in relation
to the information; and
Information gathering and sharing Part 5
Section 35
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(b) the member is taken to be a person engaged in the administration
of the provision that contains the secrecy requirement.
(4) This section applies despite any other territory law.
(5) In this section:
secrecy requirement means a prohibition on the disclosure of
information that applies to the commissioner in relation to
information disclosed to a member of the human rights commission,
whether the prohibition is absolute or subject to stated exceptions or
qualifications.
35 Secrecy
(1) An information holder commits an offence if—
(a) the information holder—
(i) makes a record of protected information about someone
else; and
(ii) is reckless about whether the information is protected
information about someone else; or
(b) the information holder—
(i) does something that discloses protected information about
someone else; and
(ii) is reckless about whether—
(A) the information is protected information about
someone else; and
(B) doing the thing would result in the information being
disclosed to someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Part 5 Information gathering and sharing
Section 35
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(2) Subsection (1) does not apply if the record is made, or the information
is disclosed—
(a) under this Act or another territory law; or
(b) in relation to the exercise of a function, as an information holder,
under this Act or another territory law.
(3) Subsection (1) does not apply to the divulging of protected
information about someone with the person’s consent.
(4) An information holder need not disclose protected information to a
court, or produce a document containing protected information to a
court, unless it is necessary to do so for this Act or another territory
law.
(5) In this section:
information holder means—
(a) a person who is or has been an official; or
(b) anyone else who exercises or has exercised a function under this
Act; or
(c) a person who is required under section 27 to give the
commissioner information, or produce a document or other
thing; or
(d) a person who is required under section 31 to attend before an
official to answer questions in relation to an inquiry.
Miscellaneous Part 6
Section 36
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Part 6 Miscellaneous
36 Protection of officials from liability
(1) An official, or anyone engaging in conduct under the direction of an
official, is not personally liable for anything done or omitted to be
done honestly and without recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a
function under this Act.
(2) Any civil liability that would, apart from subsection (1), attach to an
official attaches instead to the Territory.
37 Protection of others from liability
(1) Civil or criminal liability is not incurred only because of any of the
following done honestly and without recklessness:
(a) giving information, or producing a document or thing to an
official;
(b) answering a question or making a statement to an official.
(2) Also, any information given honestly and without recklessness to an
official is not—
(a) a breach of confidence; or
(b) a breach of professional etiquette or ethics; or
(c) a breach of a rule of professional conduct.
38 Regulation-making power
The Executive may make regulations for this Act.
Dictionary
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Dictionary
(see s 3)
Note The Legislation Act contains definitions relevant to this Act.
For example:
• administrative unit
• adult
• bankrupt or personally insolvent
• chief police officer
• coroner
• director-general (see s 163)
• document
• domestic partner (see s 169 (1))
• Executive
• fail
• function
• human rights commission
• integrity commissioner
• ombudsman
• State
• territory law.
Aboriginal and Torres Strait Islander cultural principles—see
section 7 (2).
Aboriginal or Torres Strait Islander child means an Aboriginal or
Torres Strait Islander person who is under 12 years old.
Aboriginal or Torres Strait Islander person means a person who—
(a) is a descendant of an Aboriginal person or a Torres Strait
Islander person; and
(b) identifies as an Aboriginal person or a Torres Strait Islander
person; and
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(c) is accepted as an Aboriginal person or a Torres Strait Islander
person by an Aboriginal community or Torres Strait Islander
community.
Aboriginal or Torres Strait Islander young person means an
Aboriginal or Torres Strait Islander person who is 12 years old or
older, but not yet an adult.
association means an association declared under the Associations
Incorporation Act 1991, section 15 and incorporated under that Act.
commissioner means the Aboriginal and Torres Strait Islander
Children and Young People Commissioner appointed under
section 10 (1).
commissioner’s office means the office of the Aboriginal and Torres
Strait Islander Children and Young People Commissioner established
under section 8.
consent, of an individual who is an Aboriginal or Torres Strait
Islander child or young person, for part 5 (Information gathering and
sharing)—see section 26.
court includes a tribunal, authority or person having power to require
the production of documents or the answering of questions.
disclose, for part 5 (Information gathering and sharing)—see
section 26.
executive officer, of a corporation, means a person, however
described and whether or not the person is a director of the
corporation, who is concerned with, or takes part in, the corporation’s
management.
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family, of an Aboriginal or Torres Strait Islander child or young
person—
(a) means a person who is, or has been, the child or young
person’s—
(i) father, mother, grandfather, grandmother, stepfather,
stepmother, father-in-law or mother-in-law; or
(ii) son or daughter; or
(iii) brother, sister, half-brother, half-sister, stepbrother,
stepsister, brother-in-law or sister-in-law; or
(iv) uncle, aunt, uncle-in-law or aunt-in-law; or
(v) nephew, niece or cousin; or
(vi) domestic partner; and
(b) includes—
(i) someone the person has responsibility for, or an interest in,
in accordance with the traditions and customs of the
person’s Aboriginal or Torres Strait Islander community;
and
(ii) someone who has responsibility for, or an interest in, the
person in accordance with the traditions and customs of the
person’s Aboriginal or Torres Strait Islander community;
and
(iii) someone regarded and treated by the person as a relative;
and
(iv) someone with whom the person has a family-like
relationship; and
(v) anyone else who could reasonably be considered to be, or
have been, a relative of the person.
Dictionary
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information, for part 5 (Information gathering and sharing)—see
section 26.
member, of the human rights commission, means a person appointed
to a statutory office under the Human Rights Commission Act 2005.
official means—
(a) the commissioner; or
(b) a member of staff of the commissioner’s office; or
(c) a person who exercises a function under this Act.
personal information, for part 5 (Information gathering and
sharing)—see the Information Privacy Act 2014, section 8.
person in charge, of an entity, means—
(a) if the entity is an administrative unit—the relevant
director-general; and
(b) if the entity is a public sector body—the head of the public sector
body; and
(c) if the entity is an individual—the individual; and
(d) if the entity is a partnership—a partner in the partnership; and
(e) if the entity is a corporation—an executive officer of the
corporation; and
(f) if the entity is an association—an office bearer for the
association.
person with parental responsibility, for an Aboriginal or Torres Strait
Islander child or young person, for part 5 (Information gathering and
sharing)—see section 26.
produce, for part 5 (Information gathering and sharing)—see
section 26.
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protected information, for part 5 (Information gathering and
sharing)—see section 26.
safety includes cultural safety.
Endnotes
About the endnotes 1
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Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished law
but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws are not included in the republished law. The details
of these laws are underlined in the legislation history. Uncommenced expiries are
underlined in the legislation history and amendment history.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act NI = Notifiable instrument
AF = Approved form o = order
am = amended om = omitted/repealed
amdt = amendment ord = ordinance
AR = Assembly resolution orig = original
ch = chapter par = paragraph/subparagraph
CN = Commencement notice pres = present
def = definition prev = previous
DI = Disallowable instrument (prev...) = previously
dict = dictionary pt = part
disallowed = disallowed by the Legislative r = rule/subrule
Assembly reloc = relocated
div = division renum = renumbered
exp = expires/expired R[X] = Republication No
Gaz = gazette RI = reissue
hdg = heading s = section/subsection
IA = Interpretation Act 1967 sch = schedule
ins = inserted/added sdiv = subdivision
LA = Legislation Act 2001 SL = Subordinate law
LR = legislation register sub = substituted
LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced
mod = modified/modification or to be expired
Endnotes
3 Legislation history
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3 Legislation history
Aboriginal and Torres Strait Islander Children and Young People
Commissioner Act 2022 A2022-25
notified LR 14 December 2022
s 1, s 2 commenced 14 December 2022 (LA s 75 (1))
remainder commenced 15 December 2022 (s 2)