The Act creates an independent Ageing and Disability Commissioner to receive, investigate and act on reports of abuse, neglect or exploitation of older adults and adults with disability, with powers to compel evidence, seek warrants, run inquiries and share information with government bodies and support providers. It also establishes Official Community Visitors, reporting and oversight, legal protections for reporters and cooperating staff, and obligations on service providers to supply contact details and assist investigations, shifting costs to the State and compliance duties to providers.
This Act establishes an Ageing and Disability Commissioner, a supporting advisory Board, a system of Official Community Visitors and a parliamentary joint committee, and gives the Commissioner powers to receive and investigate reports about abuse, neglect and exploitation of adults with disability and older adults. The Commissioner may act on reports made by any person (s 13(1)-(2)), may initiate reports at the Commissioner’s own initiative (s 13(6)), and may take a range of follow‑up actions including referring matters to other oversight bodies, conducting investigations and applying to courts or tribunals to protect affected adults (s 12(1)(a)-(b); s 13(5)).
Mechanically, the Act sets out the appointment, terms, removal and employment framework for the Commissioner (ss 5-11), specifies the Commissioner’s core functions (s 12), and creates investigatory powers including written notices to attend or produce documents (s 16), application for search warrants through an authorised officer under the Law Enforcement (Powers and Responsibilities) Act 2002 (s 17), and the power to hold public inquiries with the protections and procedures modelled on the Royal Commissions Act 1923 (s 19). The Act also enables exchange of relevant information with listed government bodies (s 14), and with non‑government entities that provide supports (s 14A), subject to limits and safeguards (s 14(6), s 31).
The Act creates Official Community Visitors with powers to enter, inspect and speak privately with people using “visitable services” (ss 20-22), and imposes duties on service providers to provide basic contact and location information about visitable services (s 24A). It protects good faith reporters and employees or contractors who assist the Commissioner from retribution (ss 13(4), 15; s 15A; s 24). The Act requires annual reporting by the Commissioner to Parliament with specified content (s 25), permits special reports (s 27), and creates a parliamentary Committee on Ageing and Disability with monitoring and reporting functions (Pt 5A, ss 28A-28C and Sch 2). It also prescribes offences for obstruction and unauthorised disclosure, and provides immunities for persons acting in good faith under the Act (ss 30-33).
Current sections
Direct links to the current provisions in Ageing and Disability Commissioner Act 2019.
Official Community Visitor means an Official Community Visitor appointed under section 21.
older adult means a person who is aged—
(a) 50 years or over, in the case of an Aboriginal or Torres Strait Islander person, or
(b) 65 years or over, in any other case.
report, other than in Part 5, means a report made to the Commissioner under section 13 and includes a matter dealt with as a report by the Commissioner under that section or section 22 (3).
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2021 No 16, Sch 2[1]; 2024 No 14, Sch 1[1].
4
Objects and principles of Act
4 Objects and principles of Act
4 Objects and principles of Act
(1) The objects of this Act are—
(a) to protect and promote the rights of adults with disability and older adults, and
(b) to protect adults with disability and older adults from abuse, neglect and exploitation.
(2) When exercising a function under this Act, the Commissioner or any other person must have regard to the objects of the Act and the following principles—
(a) adults with disability and older adults have the right to respect for their worth and dignity as individuals and to live free from abuse, neglect and exploitation,
(b) adults with disability and older adults have the right to respect for their cultural and linguistic diversity, age, gender, sexual orientation and religious beliefs,
(c) adults with disability and older adults have the right to privacy and confidentiality,
(d) adults with disability and older adults have the right to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and services,
(e) families, carers and other significant persons have a crucial role in the lives of adults with disability and older adults and it is important to respect and preserve those relationships.
(3) When exercising a function under this Act, the Commissioner or any other person must have regard to the following—
(a) adults with disability and older adults may face multiple disadvantages and are potentially more vulnerable to abuse, neglect and exploitation,
(b) a person from any of the following groups who is also an adult with disability or older adult may face additional disadvantages and barriers to accessing supports and services—
(i) women,
(ii) Aboriginal and Torres Strait Islander adults,
(iii) gay, lesbian, bisexual, transgender and intersex communities,
(iv) adults from culturally and linguistically diverse backgrounds,
(v) adults living in regional and remote areas.
(4) When exercising a function under this Act with respect to a particular adult with disability or older adult, the Commissioner or any other person must have regard to the wishes of the adult.
(5) This section is intended to give guidance in the administration of this Act and does not create, or confer on any person, any right or entitlement enforceable at law.
Part 2
Appointment of Commissioner
Part 2 Appointment of Commissioner
Part 2 Appointment of Commissioner
5
Appointment of Ageing and Disability Commissioner
5 Appointment of Ageing and Disability Commissioner
5 Appointment of Ageing and Disability Commissioner
(1) The Governor may appoint an Ageing and Disability Commissioner.
(2) The Commissioner holds office for the term, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re-appointment.
(3) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(4) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
6
Employment and remuneration
6 Employment and remuneration
6 Employment and remuneration
(1) The employment of the Commissioner is (subject to this Act) to be governed by a contract of employment between the Commissioner and the Minister.
(2) The following provisions of or made under the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the Commissioner (but in the application of those provisions a reference to the employer of a Public Service senior executive is to be read as a reference to the Minister)—
(a) provisions relating to the band in which an executive is to be employed,
(b) provisions relating to the contract of employment of an executive,
(c) provisions relating to the remuneration, employment benefits and allowances of an executive.
(3) The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office, except as provided by this section.
7
Vacancy in office
7 Vacancy in office
7 Vacancy in office
(1) The office of Commissioner becomes vacant if the Commissioner—
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office by the Governor under section 8, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the Commissioner’s creditors or makes an assignment of the Commissioner’s remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h) is imprisoned in respect of a conviction for an offence punishable in New South Wales by imprisonment or for an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence so punishable.
(2) If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
8
Removal from office
8 Removal from office
8 Removal from office
(1) The Governor may remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour.
(1) The Minister may appoint a person to act as the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of Commissioner.
(2) A person, while acting as Commissioner, has and may exercise the functions of the Commissioner and is taken to be the Commissioner.
(3) The Minister may, at any time, remove a person from office as acting Commissioner.
(4) An acting Commissioner is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine.
10
Staff
10 Staff
10 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise the Commissioner’s functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
11
Delegation
11 Delegation
11 Delegation
The Commissioner may delegate any of the Commissioner’s functions (other than this power of delegation) to any member of the staff of the Commissioner or to a person of a class prescribed by the regulations.
Part 3
Functions of Commissioner
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Division 1
General functions
Division 1 General functions
Division 1 General functions
12
Functions of Commissioner
12 Functions of Commissioner
12 Functions of Commissioner
(1) The Commissioner has the following functions—
(a) to deal with allegations of abuse, neglect and exploitation of adults with disability and older adults, whether on the basis of a report made to the Commissioner or at the Commissioner’s own initiative, including by referring matters to appropriate persons or bodies and by conducting investigations,
(b) to take further action, following an investigation into an allegation of abuse, neglect or exploitation of an adult with disability or older adult, that the Commissioner considers necessary to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult,
(c) to raise awareness and educate the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults,
(d) to provide advice and general assistance to the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults, including referrals to independent advocacy services, where appropriate,
(e) to inquire into and report on systemic issues relating to the protection and promotion of the rights of adults with disability and older adults or the abuse, neglect or exploitation of adults with disability or older adults,
(f) to consult with the Board on matters relating to the abuse, neglect and exploitation of adults with disability and older adults that the Commissioner considers appropriate,
(g) to advise, and make recommendations to, the Minister, at the Commissioner’s own initiative or at the request of the Minister, on matters relating to the abuse, neglect and exploitation of adults with disability and older adults,
(h) to monitor, assess and report on the New South Wales implementation of Australia’s Disability Strategy 2021–2031.
(2) The Commissioner has any other functions that are conferred or imposed on the Commissioner by or under this or any other Act.
(3) The Commissioner is not subject to the control or direction of the Minister.
s 12: Am 2024 No 14, Sch 1[2].
13
Reports may be made to Commissioner
13 Reports may be made to Commissioner
13 Reports may be made to Commissioner
(1) A person may make a report to the Commissioner about the following—
(a) an adult with disability or older adult if the person has reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation,
(b) circumstances that the person has reasonable grounds to believe will result in the abuse, neglect or exploitation of an adult with disability or older adult.
(2) Without limiting subsection (1), an adult with disability or older adult may make a report to the Commissioner if the adult has reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation.
(3) A report does not need to be in writing.
(4) If a person, acting in good faith, makes a report to the Commissioner in accordance with this section, that person is not liable to any civil or criminal action, or any disciplinary action, for making the report.
(5) The Commissioner may do any one or more of the following in respect of a report—
(a) conduct an investigation,
(b) make a referral to another person or body,
(c) decline to take action on the report.
(6) The Commissioner may, at the Commissioner’s own initiative, decide to deal with a matter as a report under this section if the matter relates to an adult with disability or older adult that the Commissioner has reasonable grounds to believe is subject to, or at risk of, abuse, neglect or exploitation.
(7) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a report and may request further information from the person making the report.
(8) If the Commissioner is of the opinion that a report, or part of a report, constitutes a complaint that may be made to any of the following persons or bodies, the Commissioner may refer the report, or the part of the report, to the person or body—
(d) any other person or body prescribed by the regulations.
(9) If the Commissioner is of the opinion that a report, or part of a report, may provide evidence of the commission of a criminal offence, the Commissioner must refer the report, or the part of the report, to the Commissioner of Police or the Director of Public Prosecutions.
(9A) The Commissioner is not required to refer a report, or part of a report, under subsection (9) if the Commissioner believes on reasonable grounds that the adult with disability or older adult does not wish to have the report, or part of the report, referred.
(10) The Commissioner may conduct an investigation of a report that the Commissioner has referred to another person or body under subsection (8), including in consultation with the person or body, if the Commissioner is of the opinion that conducting an investigation may be necessary to protect an adult with disability or older adult from abuse, neglect or exploitation.
(11) The Commissioner must not conduct an investigation into an allegation of abuse, neglect or exploitation of an adult with disability or older adult unless the Commissioner has obtained the adult’s consent.
(12) The Commissioner is not required to obtain the adult’s consent if—
(a) the Commissioner—
(i) has made reasonable efforts to obtain access to the adult, and
(ii) has not been able to obtain access to the adult, or
(b) the Commissioner considers that—
(i) the adult is incapable of giving consent despite being provided with appropriate support to make a decision about consent, or
(ii) it is not necessary to obtain consent due to the seriousness of the allegation or the risk to the personal safety of the adult, or
(iii) circumstances prescribed by the regulations exist.
s 13: Am 2019 No 25, Sch 5.3; 2024 No 14, Sch 1[3]–[6].
14
Exchange of information with relevant agencies
14 Exchange of information with relevant agencies
14 Exchange of information with relevant agencies
(1) The Commissioner may provide relevant information to a relevant agency for the purposes of enabling or assisting the relevant agency—
(a) to provide a service to, or take other action in respect of, an adult with disability or older adult, or
(b) to make a decision or assessment in relation to the safety, welfare or well-being of an adult with disability or older adult, or
(c) to take action in respect of the safety, welfare or well-being of adults with disability or older adults generally.
(2) A relevant agency may provide relevant information to the Commissioner for the purposes of enabling or assisting the Commissioner’s exercise of its functions.
(3) Without limiting subsection (1), the Commissioner may enter into an arrangement (an information sharing arrangement) with a relevant agency (or in the case of the Civil and Administrative Tribunal, the President of the Tribunal) for the purposes of sharing or exchanging relevant information held by the Commissioner or the agency.
(4) The relevant information held by the Commissioner or a relevant agency that may be provided under this section, is limited to information concerning the following—
(a) a report under this Act,
(b) the safety, welfare or well-being of an adult with disability or older adult,
(c) the abuse, neglect or exploitation of an adult with disability or older adult,
(d) any other matter prescribed by the regulations.
(5) Under an information sharing arrangement, the Commissioner and the relevant agency are, despite any other Act or law, authorised—
(a) to request and receive information held by the other party to the arrangement, and
(b) to disclose information to the other party.
(6) Subsection (5) applies only to the extent that the information is reasonably necessary to assist in the exercise of functions of the Commissioner under this Act or the functions of the relevant agency.
(7) This section does not—
(a) require the Commissioner to provide information to a relevant agency only in accordance with subsection (1), or with an information sharing arrangement, where that information can otherwise be lawfully provided, or
(b) limit the operation of any other Act or law under which a relevant agency is authorised or required to disclose information to another person or body.
(f) any other person or body prescribed by the regulations.
s 14: Am 2024 No 14, Sch 1[7].
14A
Exchange of information with other entities
14A Exchange of information with other entities
14A Exchange of information with other entities
(1) The Commissioner may provide relevant information to an entity for the purposes of enabling or assisting the entity—
(a) to provide a service in relation to, or take other action in respect of, the safety of an adult with disability or older adult, or
(b) to make a decision or assessment in relation to the safety of an adult with disability or older adult, or
(c) to take action in respect of the safety of adults with disability or older adults generally.
(2) An entity may provide relevant information to the Commissioner for the purposes of enabling or assisting the Commissioner’s handling of a report under this Act.
Note—
It is an offence under section 31 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances.
(3) This section does not—
(a) require the Commissioner to provide information to an entity only in accordance with subsection (1) if the information may otherwise be lawfully provided, or
(b) limit the operation of another Act or law under which an entity is authorised or required to disclose information to another person or body.
(4) This section applies to an entity if the entity is—
(a) a person or body that—
(i) provides, or is able to provide, supports to adults with disability or older adults, and
(ii) is not a relevant agency, or
(b) a person or body prescribed by the regulations.
(5) In this section—
relevant agency and relevant information have the same meanings as in section 14.
s 14A: Ins 2024 No 14, Sch 1[8].
15
Protection of persons who make reports
15 Protection of persons who make reports
15 Protection of persons who make reports
The identity of a person who makes a report to the Commissioner in good faith, or information from which the identity of that person could be deduced, must not be disclosed by any person or body unless the disclosure is—
(a) made with the consent of the person who made the report, or
(b) necessary for the purposes of law enforcement, or
(c) necessary for any other purpose prescribed by the regulations.
Note—
It is an offence under section 31 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances.
15A
Protection of employees or contractors who assist Commissioner
15A Protection of employees or contractors who assist Commissioner
15A Protection of employees or contractors who assist Commissioner
(1) An employer must not take or threaten to take detrimental action against an employee or contractor because the employee or contractor assists, or proposes to assist, the Commissioner with any function in relation to a report about the abuse, neglect or exploitation of an adult with disability or an older adult.
Maximum penalty—50 penalty units.
(2) In this section—
employer includes—
(a) a person who engages a person as a contractor for services, and
(b) a person acting on behalf of an employer.
s 15A: Ins 2021 No 16, Sch 2[2].
Division 2
Investigations and public inquiries
Division 2 Investigations and public inquiries
Division 2 Investigations and public inquiries
16
Compulsory attendance at meetings and production of documents
16 Compulsory attendance at meetings and production of documents
16 Compulsory attendance at meetings and production of documents
(1) For the purposes of an investigation, the Commissioner may, by notice in writing, require any person—
(a) to attend a meeting at a time and place specified in the notice, or
(b) to produce, at a time and place specified in the notice, to the Commissioner any document or thing described in the notice that is in the custody or under the control of the person and that, in the opinion of the Commissioner, is relevant to the investigation.
(2) A person must not—
(a) without reasonable excuse, refuse or fail to do anything required of the person by a notice under this section, or
(b) in response to a notice, make a statement that the person knows is false or misleading, or
(c) alter, suppress or destroy any document or thing that the person is required by a notice to produce.
Maximum penalty—50 penalty units.
(3) A person is not required to produce a document under this section if the document was prepared for the dominant purpose of Part 4 of the Private Health Facilities Act 2007.
17
Search warrants
17 Search warrants
17 Search warrants
(1) For the purposes of an investigation, the Commissioner may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 for a search warrant if the Commissioner has reasonable grounds for believing that there is on any premises an adult with disability or older adult who is subject to, or at risk of, serious abuse, neglect or exploitation.
(2) An authorised officer to whom an application is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the Commissioner, or a member of the Commissioner’s staff named in the warrant, to enter the premises specified in the warrant and do any or all of the following—
(a) examine and inspect any part of the premises for evidence of abuse, neglect or exploitation of an adult with disability or older adult,
(b) take any photographs, films, audio, video or other recordings as the Commissioner or staff member considers necessary,
(c) require documents to be produced for inspection,
(d) examine and inspect any documents,
(e) copy or take notes from any documents,
(f) for the purpose of further examination, take possession of, and remove, any documents or other things,
(g) require the owner or occupier of the premises to provide the Commissioner (or staff member named in the warrant) with any assistance or facilities that are reasonably necessary to enable the Commissioner or staff member to conduct an investigation,
(h) require any person in or about the premises to answer questions or otherwise provide information.
(3) If the person executing a warrant under this section is accompanied by a relevant health practitioner, the relevant health practitioner may inspect the premises and observe and speak with any adult with disability or older adult apparently residing at the premises and may, with the consent of the adult concerned (in circumstances where the adult has been provided with the appropriate support for the purposes of making such a decision), examine the adult.
(4) If the Commissioner, or a member of the Commissioner’s staff named in the warrant, removes any goods from the premises when executing a warrant under this section, the Commissioner or staff member must provide a written receipt to the person apparently in charge of the premises.
Under Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002, a person may execute a search warrant with the aid of any assistants the person considers necessary (including a police officer or health practitioner).
(6) In this section, relevant health practitioner means a medical practitioner or other health practitioner of a class prescribed by the regulations.
18
Restrictions on providing information
18 Restrictions on providing information
18 Restrictions on providing information
Except as provided by the regulations, a provision of any other Act or law (whether enacted or made before or after the commencement of this section) that prohibits or restricts the disclosure of information does not operate to prevent the provision of information (or affect a duty to provide information) to the Commissioner under this Division.
19
Public inquiries
19 Public inquiries
19 Public inquiries
(1) For the purposes of an investigation of a report, the Commissioner may conduct a public inquiry, if the Commissioner is of the opinion that a public inquiry is in the public interest, having regard to—
(a) the seriousness of the allegation of abuse, neglect or exploitation, and
(b) the wishes of any person with disability or older adult to whom the report relates, and
(c) the privacy of the persons who will be affected by a public inquiry.
(2) For the purpose of conducting a public inquiry under this section, the Commissioner has the functions, protections and immunities conferred on a commissioner by Division 1 of Part 2 of the Royal Commissions Act 1923.
(3) The provisions of the Royal Commissions Act 1923 (except section 13 and Division 2 of Part 2) apply, with necessary modifications, to a public inquiry and to any witness or person summoned by or appearing before the public inquiry or providing material to the inquiry, but section 11 (2) of that Act shall have effect subject to subsection (4).
(4) Nothing in this section requires any person to give any statement of information, answer any question or disclose any document if the person can claim privilege not to do so.
(5) A witness summoned by or appearing before the Commissioner is to be paid such amount as the Commissioner determines, but not exceeding the amount that would be payable to a witness that is a Crown witness subpoenaed by the Crown to give evidence.
(6) For the purpose of conducting a public inquiry under this section, the Commissioner is not bound by the rules of evidence and may be informed on any matter in issue at the public inquiry in such manner as the Commissioner considers appropriate.
(7) The Commissioner may give directions as to the procedure to be followed at or in connection with the inquiry.
(8) The Commissioner may appoint an Australian legal practitioner to assist the Commissioner for the purposes of an inquiry held by the Commissioner and the Australian legal practitioner may appear before the inquiry.
(9) In this section—
disclosure of a document includes the provision of copies of the document, the granting of access to the document or the disclosure of the contents of the document.
document includes a part of a document.
privilege means privilege based on a claim by a person that evidence or other information about a matter or document—
(a) might tend to incriminate the person or make the person liable to any forfeiture or penalty, or
(b) could not be required to be adduced in proceedings before a New South Wales court by reason of the operation of Part 3.10 (Privileges) of Chapter 3 of the Evidence Act 1995.
(e) any other person or organisation prescribed by the regulations.
visitable service means—
(a) an accommodation service where an adult with disability or older adult using the service is in the full-time care of the service provider, or
(b) an assisted boarding house, or
(c) any other service prescribed by the regulations as a visitable service.
21
Appointment of Official Community Visitors
21 Appointment of Official Community Visitors
21 Appointment of Official Community Visitors
(1) The Minister may, on the recommendation of the Commissioner, appoint a person as an Official Community Visitor if the person, in the opinion of the Minister—
(a) has appropriate knowledge and expertise in matters relating to adults with disability or older adults, and
(b) has a commitment to the objects and principles of this Act and the following Acts—
(c) has skills in the solving of problems about access to, and the use of, services by adults with disability or older adults, and
(d) is not employed within the Department.
(2) An Official Community Visitor holds office for the term, not exceeding 3 years, specified in the instrument of appointment, but is eligible for re-appointment.
(3) A person may not be appointed as an Official Community Visitor for consecutive terms totalling more than 6 years.
(4) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to an Official Community Visitor.
(5) The Minister may, on the recommendation of the Commissioner, remove an Official Community Visitor from office, but only for incompetence, incapacity or misbehaviour.
(6) Despite subsection (5), an Official Community Visitor who has a disability (other than mental incapacity) may not be removed from office on the ground of incapacity unless the disability renders the Official Community Visitor incapable of performing the functions of an Official Community Visitor.
s 21: Am 2024 No 14, Sch 1[9].
22
Functions of Official Community Visitors
22 Functions of Official Community Visitors
22 Functions of Official Community Visitors
(1) An Official Community Visitor may do any of the following—
(a) at any reasonable time, enter and inspect premises at which a visitable service is provided,
(b) confer alone with any person who is resident or employed at the premises,
(c) inspect any document held at the premises that relates to the operation of a visitable service (having regard to the wishes of any person resident at the premises to whom the document relates),
(d) provide a relevant regulatory body with advice or information relating to the conduct of the premises,
(e) inform a relevant regulatory body on matters affecting the welfare, interests and conditions of persons using visitable services,
(f) encourage the promotion of legal and human rights of persons using visitable services, including the right to privacy, confidentiality, adequate information and consultation in relation to those services and the right to complain,
(g) consider matters raised by persons using visitable services, staff of providers of visitable services and people having a genuine concern for the welfare, interests and conditions of persons using visitable services,
(h) provide information to persons using visitable services about independent advocacy services available to help them with grievances or concerns and, in appropriate cases, to assist a person to obtain those advocacy services,
(i) facilitate, wherever it is reasonable and practicable to do so, the early and speedy resolution of grievances or concerns affecting persons using visitable services by referring those grievances or concerns to the providers of the relevant services or to other appropriate bodies,
(j) exercise any other functions prescribed by the regulations.
(2) An Official Community Visitor must, in exercising a function under this section, act in a manner that preserves, as far as possible, the privacy of each person resident at the premises at which a visitable service is provided.
(3) The Commissioner may deal with a matter arising out of any advice or information provided by an Official Community Visitor as if it were a report made under section 13.
(4) In this section—
relevant regulatory body means the following—
(a) the Minister,
(b) the Commissioner,
(c) the Secretary of the Department,
(d) the NDIS Commissioner.
s 22: Am 2024 No 14, Sch 1[10] [11].
23
Co-ordination of Official Community Visitors
23 Co-ordination of Official Community Visitors
23 Co-ordination of Official Community Visitors
(1) The Commissioner has a general oversight and co-ordination role in relation to Official Community Visitors and may determine priorities for the services to be provided by Official Community Visitors.
(2) The Commissioner may convene meetings of Official Community Visitors and take other action that is necessary for the exercise of the Commissioner’s functions under this section.
(3) At least one meeting is to be held in each calendar year.
24
Protection against retribution
24 Protection against retribution
24 Protection against retribution
(1) A person must not take or threaten to take detrimental action in respect of a person because that person (or any other person) makes, or proposes to make, a complaint to an Official Community Visitor.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(2) It is a defence to a prosecution for an offence under this section if it is proved that—
(a) the complaint was made or proposed in bad faith, or
(b) any material allegation was known by the person making it to be false.
(3) In this section—
complaint includes providing information, documents or evidence to an Official Community Visitor.
s 24: Am 2021 No 16, Sch 2[3].
24A
Service providers to give information to Commissioner
24A Service providers to give information to Commissioner
24A Service providers to give information to Commissioner
(1) A service provider that provides a visitable service must give the Commissioner the required information in accordance with this section.
Maximum penalty—50 penalty units.
(2) The required information must be given—
(a) for an existing visitable service—within the required time after the commencement of this section, or
(b) for a new visitable service—within the required time after the commencement of the service.
(3) The required information must be—
(a) in writing, and
(b) if required to be given in a particular way by the regulations—given in that way.
(4) In this section—
required information, for a service provider, means—
(a) contact details for the service provider, and
(b) details about the location of the visitable service of the service provider.
required time means—
(a) the period prescribed by the regulations, or
(b) if a period is not prescribed—1 month.
s 24A: Ins 2024 No 14, Sch 1[12].
Part 5
Annual reports and special reports
Part 5 Annual reports and special reports
Part 5 Annual reports and special reports
25
Annual reports to Parliament
25 Annual reports to Parliament
25 Annual reports to Parliament
(1) The Commissioner is required to prepare, within the period of 4 months after 30 June in each year, a report on the activities of the Commissioner, and the activities of the Official Community Visitors, during the year ended on that 30 June and to provide the report to the Presiding Officer of each House of Parliament.
(2) The Commissioner may, but is not required to, prepare the annual report on the activities of the Official Community Visitors as a separate annual report under this section.
(3) An annual report by the Commissioner must include information about the number of referrals made by the Commissioner under section 13 and the outcome of each referral.
(4) An annual report prepared under subsection (1) must include the following—
(a) any recommendations for administrative action or changes in the laws of the State that the Commissioner considers necessary,
(b) information on the number of reports made to, and actioned by, the Commissioner, and the number of referrals made elsewhere and to whom,
(c) the number of investigations held under section 13 (11) where consent was not given, including as a percentage of total investigations held,
(d) if a Board member has been removed under section 29 (9) during the reporting period, the reasons for removing the member.
26
26
26 (Repealed)
27
Special reports to Parliament and to Minister
27 Special reports to Parliament and to Minister
27 Special reports to Parliament and to Minister
(1) The Commissioner may, at any time, prepare a special report on any matter relating to the functions of the Commissioner and provide the special report to the Presiding Officer of each House of Parliament.
(2) Before providing a special report to the Presiding Officer of each House of Parliament, the Commissioner is to provide a copy of the special report to the Minister.
(3) The Commissioner is to prepare a special report for the Minister on any matter requested by the Minister and must provide the special report to the Presiding Officer of each House of Parliament.
28
Provisions relating to reports
28 Provisions relating to reports
28 Provisions relating to reports
(1) A copy of a report provided to the Presiding Officer of a House of Parliament under this Part must be laid before that House within 5 sitting days of that House after it is received by the Presiding Officer.
(2) If a report includes a recommendation by the Commissioner that the report be made public immediately, the Presiding Officer of a House of Parliament may make it public whether or not that House is in session and whether or not the report has been laid before that House.
Part 5A
Committee on Ageing and Disability
Part 5A Committee on Ageing and Disability
Part 5A Committee on Ageing and Disability
pt 5A: Ins 2024 No 14, Sch 1[14].
28A
Constitution of joint committee
28A Constitution of joint committee
28A Constitution of joint committee
(1) A joint committee of members of Parliament, to be known as the Committee on Ageing and Disability, must be appointed.
(2) The joint committee must be appointed as soon as practicable after—
(a) the commencement of this part, and
(b) the first session of each Parliament.
(3) The joint committee has the functions conferred or imposed on the joint committee by or under this Act or another Act.
(4) Schedule 2 contains provisions relating to the joint committee.
s 28A: Ins 2024 No 14, Sch 1[14].
28B
Functions
28B Functions
28B Functions
(1) The joint committee has the following functions under this Act—
(a) to monitor and review the exercise of the Commissioner’s functions,
(b) to report to both Houses of Parliament, with the comments the joint committee thinks appropriate, on any matter—
(i) relevant to the Commissioner or connected with the exercise of the Commissioner’s functions, and
(ii) to which, in the joint committee’s opinion, the attention of Parliament should be directed,
(c) to examine each annual report and other report—
(i) made by the Commissioner, and
(ii) presented to each House of Parliament under this Act, Part 5 or another Act,
(d) to report to both Houses of Parliament on matters appearing in, or arising out of, the annual reports or other reports,
(e) in relation to trends and changes in services and issues affecting adults with disability and older adults—
(i) to examine the trends and changes, and
(ii) to report to both Houses of Parliament about changes the joint committee thinks desirable to the functions and procedures of the Commissioner,
(f) to inquire into any question in connection with the Commissioner’s functions that is referred to the joint committee by both Houses of Parliament and to report to both Houses on the question.
(2) Nothing in this part or Schedule 2 authorises the joint committee to—
(a) reinvestigate a particular report, or
(b) reconsider a decision to investigate, not to investigate or to discontinue the investigation of a particular report, or
(c) reconsider the findings, recommendations, determinations or other decisions of the Commissioner, or another person, in relation to a particular investigation or report.
(3) The Commissioner may, as soon as practicable after a report of the joint committee has been tabled in a House of Parliament, prepare and give to the Presiding Officer of the House a report in response to the report of the joint committee.
s 28B: Ins 2024 No 14, Sch 1[14].
28C
Membership
28C Membership
28C Membership
(1) The joint committee consists of 7 members as follows—
(a) 3 members who are members of, and appointed by, the Legislative Council,
(b) 4 members who are members of, and appointed by, the Legislative Assembly.
(2) The appointment of members of the joint committee must, as far as practicable, be in accordance with the practice of Parliament in relation to the appointment of members to serve on joint committees of both Houses of Parliament.
(3) A person is not eligible for appointment as a member of the joint committee if the person is a Minister of the Crown or a Parliamentary Secretary.
s 28C: Ins 2024 No 14, Sch 1[14].
Part 6
Miscellaneous
Part 6 Miscellaneous
Part 6 Miscellaneous
29
Ageing and Disability Advisory Board
29 Ageing and Disability Advisory Board
29 Ageing and Disability Advisory Board
(1) There is to be an Ageing and Disability Advisory Board.
(2) The function of the Board is to advise the Commissioner on any matter that the Board considers appropriate or that is referred to the Board by the Commissioner.
(3) The Board is to consist of the Commissioner and persons appointed by the Commissioner who, in the Commissioner’s opinion, have relevant knowledge of and experience in matters relating to adults with disability and older adults (the appointed members).
(4) The Commissioner must ensure that the composition of the Board reflects the diversity of the community and includes the following—
(a) 2 or more persons with disability,
(a1) 2 or more older adults,
(b) a representative of independent specialist advocacy, information and representative organisations for people with disability in New South Wales,
(c) a representative of independent specialist advocacy, information and representative organisations for older adults in New South Wales,
(d) 1 or more persons representing persons employed in the provision of disability services or services for older adults.
(5) An appointed member is to be appointed to the Board for a period of 3 years or less and may be re-appointed.
(6) The Board is to elect a chairperson and deputy chairperson from the appointed members.
(7) The procedure for the calling of meetings of the Board and for the conduct of those meetings is to be determined by the Commissioner.
(8) An appointed member is entitled to be paid the fees and allowances (if any) that the Commissioner may from time to time determine for the member.
(9) The Commissioner may remove an appointed member from the Board at any time and must provide a report on the removal to the Presiding Officer of each House of Parliament.
s 29: Am 2024 No 14, Sch 1[15]–[18].
30
Personal liability
30 Personal liability
30 Personal liability
(1) A matter or thing done or omitted to be done by any of the following persons does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this Act, subject the person so acting personally to any action, liability, claim or demand—
(a) the Commissioner,
(b) a member of the staff of the Commissioner,
(c) a person acting under the direction of the Commissioner,
(d) an Official Community Visitor,
(e) a member of the Board.
(2) However, the liability attaches instead to the Crown.
31
Disclosure of information
31 Disclosure of information
31 Disclosure of information
A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made—
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty—50 penalty units.
31A
Disclosure of information about outcome of report under section 13
31A Disclosure of information about outcome of report under section 13
31A Disclosure of information about outcome of report under section 13
Despite section 31, if the Commissioner considers disclosure of information about the outcome of a report to the Commissioner under section 13 is consistent with the objects and principles of this Act, the Commissioner may disclose the information to the following persons—
(a) a person who made the report,
(b) another person concerned for the welfare of the adult with disability or the older adult who was alleged to have been subject to, or at risk of, abuse, neglect or exploitation.
s 31A: Ins 2021 No 16, Sch 2[4].
32
Obstruction of Commissioner
32 Obstruction of Commissioner
32 Obstruction of Commissioner
A person must not, without reasonable excuse, resist or obstruct the Commissioner or other person in the exercise of a function under this Act.
Maximum penalty—50 penalty units.
33
Proceedings for offences
33 Proceedings for offences
33 Proceedings for offences
Proceedings for an offence under this Act may be dealt with summarily before the Local Court.
34
Act to bind Crown
34 Act to bind Crown
34 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
35
Regulations
35 Regulations
35 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to reports, including—
(a) the procedure for making a report to the Commissioner, and
(b) the manner in which the Commissioner is to deal with a report, and
(c) the grounds on which the Commissioner may decline to take action on a report.
(3) The regulations may also contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(4) A provision of a savings or transitional nature may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(5) To the extent to which a provision of a savings and transitional nature takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
36
Independent review of Act
36 Independent review of Act
36 Independent review of Act
(1) The Minister is to commission an independent review of the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) A report on the outcome of the review is to be tabled in each House of Parliament before 1 July 2022.
Schedule 1
Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other provisions
sch 1: Rep 1987 No 15, sec 30C. Ins 2021 No 16, Sch 2[5].
Schedule 2
Committee on Ageing and Disability
Schedule 2 Committee on Ageing and Disability
Schedule 2 Committee on Ageing and Disability
section 28A(4)
sch 2: Ins 2024 No 14, Sch 1[19].
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Ageing and Disability Commissioner Act 2019.
2 Commencement
2 Commencement
2 Commencement
(1) This Act commences on 1 July 2019, except as provided by subsection (2).
(2) Part 4 and Schedule 1.1 [1] commence on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
Board means the Ageing and Disability Advisory Board established under section 29.
Commissioner means the Ageing and Disability Commissioner appointed under section 5.
Department means the Department in which this Act is administered.
detrimental action means action causing, comprising or involving 1 or more of the following—
(a) injury, damage or loss,
(b) intimidation or harassment,
(c) discrimination, disadvantage or adverse treatment in relation to employment,
(d) dismissal from, or prejudice in, employment,
(e) prejudice in the provision of a service,
(f) disciplinary proceedings.
disability has the same meaning as in the Disability Inclusion Act 2014.
function includes a power, authority or duty and exercise a function includes perform a duty.
government sector agency has the same meaning as it has in the Government Sector Employment Act 2013 and includes a council within the meaning of the Local Government Act 1993.
investigation means an investigation of a report conducted by the Commissioner under Part 3.
joint committee means the Committee on Ageing and Disability constituted under section 28A.
NDIS Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission under the of the Commonwealth.
The Act establishes architecture for information sharing, investigation and oversight across the ageing and disability sectors, and prescribes limits and processes for consent, confidentiality and referrals to other complaint‑handling bodies (e.g. Health Care Complaints Commission, NDIS Commissioner) (s 13(8)). It further mandates an independent statutory review of the Act with a reporting deadline (s 36). All source provisions summarised here are cited from the Act text.
Main concepts
The Act defines a compact set of core concepts that structure what counts as reportable conduct, who is protected, and who may exercise powers.
Adults in scope. The Act distinguishes “adults with disability” (defined by reference to the Disability Inclusion Act 2014) and “older adults” (defined by age: 50+ for Aboriginal and Torres Strait Islander persons, 65+ otherwise) (s 3). These definitions determine the persons the Commissioner is empowered to protect (s 4(1)).
Report and investigation. “Report” refers to a matter made to the Commissioner under s 13 (except where otherwise noted) and includes matters the Commissioner treats as a report (s 3). An “investigation” is an investigation conducted by the Commissioner under Part 3 (s 3). The Commissioner may investigate reports received or act on the Commissioner’s own initiative (s 13(6); s 12(1)(a)).
Abuse, neglect and exploitation. The Commissioner’s functions are framed around addressing “abuse, neglect and exploitation” of the adults in scope (s 4(1); s 12(1)(a)). The Act does not define each of those three words in granular terms; the Commissioner’s functions and investigatory tools are keyed to those terms as used in the Act.
Consent and access. The Commissioner must obtain the adult’s consent before conducting an investigation (s 13(11)), subject to enumerated exceptions where consent is not required (s 13(12)), including reasonable efforts to obtain access and cases where the adult is incapable or where serious risk exists.
Information sharing and confidentiality. The Act establishes two related but distinct regimes. Section 14 permits the Commissioner to provide and receive “relevant information” to and from listed relevant agencies and to enter into information sharing arrangements that authorise disclosure despite other Acts (s 14(3), (5)). Section 14A extends information sharing to “entities” that provide supports but are not relevant agencies, and notes s 31 creates general prohibitions against unauthorised disclosure (s 14A(2) note; s 31). Section 15 adds a specific bar on disclosing the identity of good faith reporters except in enumerated circumstances.
Official Community Visitors and visitable services. The Act creates OCVs who can inspect “visitable services” (defined in s 20) and act as an on‑site monitoring and advocacy presence, with powers to inspect premises, inspect service‑related documents and speak privately with residents and staff (s 21-22). Service providers of visitable services are required to give the Commissioner required contact and location information (s 24A).
Oversight structures. The Commissioner is supported by an Ageing and Disability Advisory Board (s 29) and subject to parliamentary oversight from a newly created Committee on Ageing and Disability (Pt 5A, ss 28A-28C and Sch 2), which is empowered to monitor and report on the Commissioner’s exercise of functions (s 28B).
Legal and procedural cross‑references. The Act deliberately integrates with other NSW and Commonwealth statutes by cross‑reference: Government Sector Employment Act 2013 (employment regime for Commissioner and staff, s 6, s 10), Law Enforcement (Powers and Responsibilities) Act 2002 (search warrant mechanism, s 17), Royal Commissions Act 1923 (public inquiries, s 19), Health Care Complaints Act 1993 and various Commonwealth oversight statutes for referrals (s 13(8)).
These concepts structure incentives and limits: the Commissioner has investigation and referral tools but must generally obtain consent before investigating (s 13(11)), the Act enables significant information exchange while retaining confidentiality rules (ss 14-15; s 31), and it sets administrative oversight via Board and parliamentary Committee (ss 29; 28A-28C). Each of these mechanisms is statutory and the Act supplies specific conditions and constraints; the details below cite the relevant provisions.
Who it affects
The Act allocates rights, duties, obligations and potential liabilities across several categories of actors. The primary affected groups are:
Adults with disability and older adults. They are the principal beneficiaries of the Act’s protective framework. The Commissioner’s objects explicitly identify protecting and promoting the rights of these adults and protecting them from abuse, neglect and exploitation (s 4(1)). Adults in scope include people defined as having disability (by reference to the Disability Inclusion Act 2014) and older adults (s 3).
Reporters and supporters. Any person may make a report to the Commissioner about abuse, neglect or exploitation or circumstances likely to lead to such outcomes (s 13(1)). Reporters acting in good faith are protected from civil, criminal and disciplinary liability for making a report (s 13(4)), and their identities are protected from disclosure except where consent or certain legal purposes allow disclosure (s 15).
Employers, contractors and employees. The Act creates a specific prohibition on employers taking detrimental action against employees or contractors who assist or propose to assist the Commissioner (s 15A). That provision is expressed to capture actions by employers and persons acting on behalf of employers and carries a maximum penalty of 50 penalty units (s 15A(1)-(2)).
Service providers of visitable services. A class of “service provider” is defined for purposes of Part 4 and includes the Minister, government‑funded organisations, owners/occupiers of assisted boarding houses, certain implementation companies, and any person prescribed by regulation (s 20). Those providers must provide the Commissioner with required contact and location information about visitable services (s 24A) and must allow Official Community Visitors to enter and inspect premises (s 22(1)). Non‑compliance with s 24A is subject to a maximum penalty of 50 penalty units (s 24A(1)).
Government agencies and oversight bodies. The Commissioner may exchange information with “relevant agencies” which include government sector agencies, the Civil and Administrative Tribunal, public health organisations and hospitals and private health facilities, and any other bodies prescribed by regulation (s 14(8)). The Commissioner can refer parts of reports to bodies such as the Health Care Complaints Commission, the Aged Care Quality and Safety Commission and the NDIS Commissioner (s 13(8)). Relevant agencies may also provide the Commissioner with information (s 14(2)).
The Commissioner, staff, Official Community Visitors and Board members. The Act prescribes appointment, terms, delegations, immunities and internal governance arrangements for these officeholders (ss 5-11; ss 21-24; s 29; s 30). Persons acting in good faith under the Act are protected from personal liability, with liability shifting to the Crown (s 30).
Courts, tribunals and law enforcement. The Act contemplates interaction with courts and tribunals (s 12(1)(b)), mandates referral to police or DPP where the Commissioner considers a report may provide evidence of a criminal offence (s 13(9)), and sets the process for seeking and executing search warrants via LEPRA authorised officers (s 17).
Parliament and parliamentary actors. The Commissioner must prepare annual and special reports to Parliament (Pt 5), and a Committee on Ageing and Disability is statutorily constituted to monitor and report on the Commissioner’s exercise of functions (Pt 5A; Sch 2).
Who pays: Administrative costs will fall to the Department and the public service for staffing the Commissioner (ss 6, 10). Service providers may bear compliance costs to supply required information (s 24A) and to facilitate Official Community Visitor inspections (s 22(1)(g)). Employers face the risk of penalties for prohibited detrimental actions (s 15A). Penalty units are specified for a range of contraventions (e.g. ss 16(2); 24; 24A(1); 31; 32), exposing persons and bodies to fines and in one instance imprisonment (s 24(1)).
Decision‑makers: The Governor appoints the Commissioner (s 5), the Minister is the contractual employer and appoints acting Commissioners (ss 6(1); 9(1)), the Commissioner appoints Official Community Visitors on the Minister’s recommendation (s 21(1)), and the Commissioner establishes the Advisory Board (s 29). The Commissioner may refer reports to other bodies, decide whether to investigate, and conduct inquiries (s 13(5)-(6); s 19). The joint parliamentary committee oversees and comments on the Commissioner’s functions (s 28B).
Key duties and rights
The Act sets out a mixture of affirmative duties, investigatory rights, protections for persons who participate in the regime, and entitlements for the adults in scope.
Commissioner’s duties and rights
Core functions. The Commissioner must deal with allegations of abuse, neglect and exploitation (s 12(1)(a)), take further actions after investigations including applying to courts or tribunals to protect adults (s 12(1)(b)), conduct public education and awareness (s 12(1)(c)), provide advice and referrals (s 12(1)(d)), inquire into systemic issues (s 12(1)(e)), consult with the Advisory Board (s 12(1)(f)) and monitor implementation of Australia’s Disability Strategy 2021-2031 (s 12(1)(h)). The Commissioner is also able to perform any other functions conferred under any Act (s 12(2)) and is not subject to Ministerial direction in the exercise of those functions (s 12(3)).
Report handling. The Commissioner may receive reports from any person (s 13(1)), make preliminary enquiries to decide how to deal with a report (s 13(7)), decline to take action (s 13(5)(c)), conduct investigations (s 13(5)(a)), and refer matters to other complaint bodies (s 13(8)). The Commissioner must refer matters that may provide evidence of criminal offences to police or the DPP unless the adult does not wish referral (s 13(9)-(9A)).
Investigatory powers. For investigations, the Commissioner may issue notices requiring attendance and production of documents (s 16(1)), apply for search warrants via LEPRA authorised officers (s 17), and conduct public inquiries under Part 2 Division 1 of the Royal Commissions Act 1923 with its associated powers, protections and immunities (s 19(2)-(3)).
Consent requirement. A statutory requirement to obtain the adult’s consent to an investigation applies generally (s 13(11)), with narrow exceptions (s 13(12)) where consent need not be obtained, including reasonable efforts to obtain access, incapacity despite support, and where the risk or seriousness justifies proceeding without consent.
Powers and duties of other actors
Official Community Visitors. OCVs may enter and inspect premises providing visitable services at any reasonable time, confer in private with residents or staff, inspect service‑related documents subject to residents’ wishes, provide information or advice to regulatory bodies and facilitate resolution of grievances, among other functions (s 22(1)(a)-(i)). OCVs are appointed by the Minister on the Commissioner’s recommendation and must meet eligibility criteria (s 21(1)).
Service providers. Service providers of visitable services must provide “required information” , contact details and location details , to the Commissioner within the prescribed or default period (s 24A(1)-(4)). Failure to provide required information attracts a maximum penalty of 50 penalty units (s 24A(1)). Providers must also facilitate inspections and cooperate with Official Community Visitors (s 17(2)(g); s 22(1)(a), (g)).
Employers and employees. Employers must not take detrimental action against employees or contractors for assisting the Commissioner (s 15A(1)), with a maximum penalty of 50 penalty units (s 15A(1)-(2)). Separately, s 24(1) makes it an offence to take or threaten detrimental action against a person for making or proposing to make a complaint to an Official Community Visitor, with higher penalties (up to 50 penalty units or 12 months imprisonment, or both).
Confidentiality and reporting rights
Reporter protections. A person who makes a report in good faith is protected from civil, criminal or disciplinary action for making that report (s 13(4)). The identity of a reporter and information identifying the reporter must not be disclosed except in limited circumstances (s 15).
Disclosure and information sharing. Section 14 allows the Commissioner to provide and receive “relevant information” with relevant agencies for specific safety and welfare purposes (s 14(1)-(2)), and to enter into information sharing arrangements authorising requests, receipt and disclosure of information notwithstanding other Acts (s 14(3)-(5)). Section 14A extends information exchange to entities that provide supports but are not relevant agencies, subject to the general prohibition in s 31 (s 14A(2) note).
Limits on disclosure. Section 31 prohibits disclosure of information obtained in connection with administration of the Act except in enumerated circumstances (consent, administration/execution of Act, legal proceedings, Ombudsman Act requirement, or other lawful excuse), with a maximum penalty of 50 penalty units.
Procedural rights and review
Annual and special reports. The Commissioner must produce an annual report to Parliament with specified content including numbers and outcomes of referrals and investigations where consent was not given (s 25(1), (3)-(4)). The Commissioner may prepare special reports and must share them with the Minister before tabling in Parliament (s 27).
Advisory Board and parliamentary committee. The Act creates an Advisory Board to advise the Commissioner (s 29) and a joint parliamentary committee to monitor and review the Commissioner’s functions and report to Parliament (s 28A-28C, s 28B).
These duties and rights distribute powers among administrative, parliamentary and judicial actors, set procedural safeguards (consent, confidentiality, referral mechanisms), and create reporting lines intended to promote accountability (s 12(3); Pt 5; Pt 5A). The Act further provides personal liability protection for those acting in good faith under the Act (s 30).
Penalties and enforcement
The Act creates a mix of civil and criminal‑style penalties, mechanisms for compulsion and referral to criminal justice authorities, and immunities for official actors acting in good faith.
Penalties specified in the Act
Notices and production. Failure to comply with a notice to attend or produce documents under s 16, making false or misleading statements in response to a notice, or altering, suppressing or destroying material required to be produced, is an offence with a maximum penalty of 50 penalty units (s 16(2)).
Detrimental action against Official Community Visitor complainants. It is an offence to take or threaten to take detrimental action against a person because that person makes or proposes to make a complaint to an Official Community Visitor. The maximum penalty is 50 penalty units or imprisonment for 12 months, or both (s 24(1)). The Act provides defences where the complaint was made in bad faith or a material allegation was known to be false (s 24(2)).
Service provider information obligations. Service providers must give the Commissioner required contact and location information for visitable services within the required time. Failure attracts a maximum penalty of 50 penalty units (s 24A(1)-(3)).
Disclosure of information. Section 31 makes it an offence to disclose information obtained in connection with administration or execution of the Act except in specified circumstances, with a maximum penalty of 50 penalty units (s 31).
Obstruction. Resisting or obstructing the Commissioner or another person in the exercise of a function under the Act without reasonable excuse attracts a maximum penalty of 50 penalty units (s 32).
Confidentiality of joint committee evidence. Schedule 2, clause 6 prescribes penalties for improper disclosure of evidence taken in private before the joint committee: maximum penalty 20 penalty units or imprisonment for 3 months, or both (Sch 2 cl 6(4)-(5)).
Employer protections for employee/contractor assistance. Section 15A prohibits employers taking detrimental action against an employee or contractor for assisting the Commissioner; the maximum penalty is 50 penalty units (s 15A(1)-(2)).
Enforcement mechanisms
Compulsory powers. The Commissioner may require attendance and production by written notice (s 16(1)), and may apply for search warrants via an authorised officer under LEPRA where the Commissioner has reasonable grounds to believe there is an adult subject to, or at risk of, serious abuse, neglect or exploitation on premises (s 17(1)-(2)). Search warrants issued under s 17 are to be executed in accordance with LEPRA provisions; Division 4 of Part 5 of LEPRA applies (s 17(5)).
Referrals to criminal agencies. If the Commissioner considers a report may provide evidence of a criminal offence, the Commissioner must refer the matter, or part of it, to the Commissioner of Police or the Director of Public Prosecutions (s 13(9)). The Commissioner is not required to refer if the adult does not wish that referral (s 13(9A)).
Public inquiries. The Commissioner may conduct public inquiries for investigations in the public interest (s 19(1)). For these inquiries the Commissioner has the powers, protections and immunities of a commissioner under Division 1 of Part 2 of the Royal Commissions Act 1923, and most provisions of that Act apply with modifications (s 19(2)-(3)). Public inquiries are not bound by rules of evidence and can compel witnesses and documents subject to privilege claims (s 19(4), (6)).
Administrative reporting and parliamentary oversight. The Commissioner is subject to statutory reporting obligations (s 25) and parliamentary oversight via the Committee on Ageing and Disability which can monitor, examine and report on the Commissioner’s exercise of functions (s 28B).
Immunities and liability
Personal liability protection. A person, including the Commissioner, staff, a person acting under the Commissioner’s direction, an Official Community Visitor or a Board member, is not personally liable for acts or omissions done in good faith under the Act; liability instead attaches to the Crown (s 30(1)-(2)).
Procedural limitations on enforcement
Consent requirement. The Commissioner must obtain the adult’s consent before conducting an investigation under s 13(11), subject to exceptions in s 13(12). This consent requirement constrains when and how investigative powers and enforcement mechanisms can be exercised.
Confidentiality limits and disclosure permissions. Section 14 authorises the Commissioner to share information with relevant agencies “despite any other Act or law” under information sharing arrangements (s 14(5)); however s 31 separately limits disclosure of information obtained under the Act and prescribes exceptions. These provisions create a statutory framework that both enables information flows for welfare and safety purposes and restricts public or unauthorised disclosure.
Taken together, the Act provides the Commissioner with a suite of investigatory and enforcement tools supported by criminal penalties for obstruction, unauthorised disclosure and taking detrimental action, balanced by procedural checks such as consent and privilege, and by immunities for good faith exercise of powers (ss 13(11)-(12); 19(4); 30).
How it interacts with other laws
The Act is written to operate in an integrated way with a range of NSW and Commonwealth statutes and common administrative processes. The Act both references and displaces (in limited circumstances) other legal rules to enable the Commissioner’s functions.
Cross‑references and referrals
Referral regime. Section 13(8) explicitly permits the Commissioner to refer reports, or parts of reports, to other complaint‑handling bodies when the Commissioner considers the report constitutes a complaint to those bodies. The Act lists specific bodies for referral: the Health Care Complaints Commission under the Health Care Complaints Act 1993, the Aged Care Quality and Safety Commission under its Commonwealth Act, the NDIS Commissioner, and the Children’s Guardian under the Children’s Guardian Act 2019, as well as any person or body prescribed by regulations (s 13(8)). Section 13(10) permits the Commissioner to investigate matters even after referral if necessary to protect an adult.
Employment law connections. Employment arrangements for the Commissioner are governed by a contract with the Minister but subparts of the Government Sector Employment Act 2013 relating to senior executive employment apply as if the Minister is the employer (s 6(1)-(2)). Section 10 notes that staff may be employed under the GSE Act to enable the Commissioner to exercise functions, and a constitutional note indicates section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff directly.
Information access and disclosure
Information sharing arrangements and overrides. Section 14 authorises the Commissioner and relevant agencies to enter into information sharing arrangements. Under such arrangements the parties are, despite any other Act or law, authorised to request, receive and disclose information to each other to the extent the information is reasonably necessary for the exercise of functions under this Act or the functions of the agency (s 14(3)-(6)). Section 18 further provides that, except as the regulations provide, provisions of any other Act that prohibit or restrict disclosure of information do not operate to prevent or affect a duty to provide information to the Commissioner under Division 2 of Part 3.
Limits on disclosure. Section 31 establishes a separate prohibition on disclosure of information obtained in connection with the administration or execution of this Act except in enumerated situations (consent, administration/execution of the Act, legal proceedings, Ombudsman Act requirement, or other lawful excuse). Section 14(7) explicitly states that s 14 does not require information be provided only in accordance with s 14 or an information sharing arrangement where the information can otherwise be lawfully provided, and that s 14 does not limit other Acts authorising or requiring disclosure. Section 14A notes the Act’s general disclosure offence in s 31.
Privileged material and evidence law
Privilege and public inquiries. Section 19(4) preserves privilege claims in relation to giving statements or disclosing documents at public inquiries. Section 19(2)-(3) applies most of the Royal Commissions Act 1923 to public inquiries, subject to modifications, thereby importing a familiar statutory model for compelled testimony and documents while protecting recognised privileges.
Criminal law interface
Referrals to police and DPP. Section 13(9) requires referral to police or the DPP where a report may provide evidence of a criminal offence, unless the adult does not wish the referral (s 13(9A)). This creates a statutory duty to engage criminal justice authorities where serious wrongdoing may be implicated, aligning the Commissioner’s administrative remit with criminal enforcement mechanisms.
Regulation and administrative law
Delegation, appointment and removal rules. The Governor appoints the Commissioner (s 5); the Commissioner is subject to contractual employment with the Minister (s 6); the Governor may remove the Commissioner only for incompetence, incapacity or misbehaviour (s 8). The Commissioner may delegate functions (s 11), and may appoint staff through Public Service mechanisms (s 10). These provisions sit alongside the Government Sector Employment Act 2013’s rules that apply in specified ways (s 6).
Interaction with tribunals and courts. The Commissioner can apply to a court or tribunal in respect of an adult following investigation (s 12(1)(b)). Section 14(3) includes the Civil and Administrative Tribunal as a “relevant agency” with which information may be shared, and s 17 contemplates warrant execution and questioning functions that may require coordination with courts and LEPRA authorised officers.
Taken together, the Act creates authorised paths to share information and to invoke other statutory complaint and enforcement mechanisms while prescribing confidentiality limits and procedural protections (ss 14-18; s 31). The Act expressly recognises and leverages other statutory frameworks (e.g. Royal Commissions Act 1923, LEPRA) rather than attempting to displace them wholesale.
Amendment history
The Act text supplied contains inline amendment and insertion notes identifying the statutory updates made since enactment. The Act commenced on 1 July 2019, except for Part 4 and Schedule 1.1 which were to commence by proclamation (s 2(1)-(2)). Specific amendment insertions recorded in the source are as follows.
Notable amendments and insertions shown in the text:
Section 3 (definitions) was amended and notes: “Am 2021 No 16, Sch 2[1]; 2024 No 14, Sch 1[1]”. This indicates amendments to definitions occurred in 2021 and 2024 and are reflected in the current definition set including “older adult” and references to other Acts (s 3).
Section 12 (functions of Commissioner) was amended in 2024: “Am 2024 No 14, Sch 1[2]” and now specifically includes monitoring, assessing and reporting on NSW implementation of Australia’s Disability Strategy 2021-2031 (s 12(1)(h)).
Section 13 (reports may be made) has amendment notes “Am 2019 No 25, Sch 5.3; 2024 No 14, Sch 1[3]-[6]”, reflecting changes made soon after commencement and later in 2024, which align with the addition of referral pathways and consent exceptions.
Section 14 (exchange of information with relevant agencies) was amended in 2024: “Am 2024 No 14, Sch 1[7]”.
Section 14A (exchange of information with other entities) was inserted in 2024: “Ins 2024 No 14, Sch 1[8]”.
Section 15A (protection of employees or contractors who assist Commissioner) was inserted in 2021: “Ins 2021 No 16, Sch 2[2]”.
Section 21 (appointment of Official Community Visitors) was amended in 2024: “Am 2024 No 14, Sch 1[9]”.
Section 22 (functions of Official Community Visitors) was amended in 2024: “Am 2024 No 14, Sch 1[10] [11]”.
Section 24 (protection against retribution) was amended in 2021: “Am 2021 No 16, Sch 2[3]”.
Section 24A (service providers to give information to Commissioner) was inserted in 2024: “Ins 2024 No 14, Sch 1[12]”.
Section 26 was repealed in 2024: “s 26: Rep 2024 No 14, Sch 1[13]”.
Part 5A and sections 28A-28C establishing the Committee on Ageing and Disability were inserted in 2024: “pt 5A: Ins 2024 No 14, Sch 1[14]” and “s 28A: Ins 2024 No 14, Sch 1[14]”.
Section 29 (Advisory Board) was amended in 2024: “Am 2024 No 14, Sch 1[15]-[18]”.
Section 31A (disclosure of outcome of report under s 13) was inserted in 2021: “Ins 2021 No 16, Sch 2[4]”.
Schedule 2 (Committee on Ageing and Disability) was inserted in 2024: “sch 2: Ins 2024 No 14, Sch 1[19]”.
The amendment notes in the Act text record the statutory instrument and schedule references that effected the changes (for example, “2024 No 14, Sch 1[8]” for s 14A). The Act also contains an express provision requiring an independent review: the Minister is to commission such a review and table a report before 1 July 2022 (s 36(1)-(2)). The text supplied shows that provision but does not state the outcome of that review; the statutory instruction and its deadline are part of the Act’s change history.
Readers should treat the inline “Am” and “Ins” annotations as the only amendment history available in the provided source. No case law or external implementation outcomes are recorded in the text provided.
Litigation history
The text of the Act supplied does not include judicial decisions, reported litigation or named cases. The Act itself does not reference case law, and no judicial or tribunal determinations are recorded in the statutory text. The Act identifies authorities to which the Commissioner may refer matters (for example the Health Care Complaints Commission, the NDIS Commissioner, the Aged Care Quality and Safety Commission and police/DPP) (s 13(8)-(9)), and contemplates applications to courts and tribunals following investigations (s 12(1)(b)), but it does not include any examples of litigation or judicial consideration in the material provided.
Where litigation arises in future, relevant touchpoints likely to appear in case law would include questions about:
The scope of the Commissioner’s power to investigate without consent under s 13(12).
The application of information sharing arrangements under s 14 and the interaction with confidentiality obligations in s 31.
The procedural fairness and privilege limits in public inquiries under s 19 and the modifications of the Royal Commissions Act 1923.
The lawfulness of search warrants executed under s 17 through LEPRA authorised officers.
None of those matters is the subject of reported decisions or litigation notes in the Act text provided. This section therefore records the absence of litigation history in the supplied source rather than asserting the existence of any judicial interpretation.
Gotchas
The Act contains a number of provisions where operational detail, apparent tensions or constrained discretion create practical risk points for agencies, service providers and legal advisers. These are concrete mechanics and statutory linkages that merit attention.
Consent requirement versus investigatory powers
The Commissioner generally must obtain the adult’s consent before conducting an investigation (s 13(11)). Exceptions allow investigation without consent where reasonable efforts to obtain access have failed, where the adult is incapable despite appropriate support, where the seriousness of the allegation or risk to personal safety makes consent unnecessary, or where regulations specify circumstances (s 13(12)). Practically, this means investigations involving adults who can with assistance express their wishes will generally require consent, limiting the Commissioner’s unilateral investigatory reach in many cases.
Information sharing enabled but also restricted
Section 14 permits information sharing with relevant agencies and s 14A extends sharing to entities providing supports. Section 18 states that, except as the regulations provide, provisions of any other Act that prohibit disclosure do not prevent providing information to the Commissioner under Division 2. However s 31 generally prohibits disclosure of information obtained under the Act except in specified circumstances. The result is a layered regime: information sharing arrangements (s 14(3)-(5)) can authorise disclosure despite other Acts, but disclosures remain constrained by s 31 and subject to consent and lawful exceptions. Practitioners should not assume an unrestricted right to disseminate material merely because an arrangement exists; the content, purpose and legal basis of each disclosure must be tested against s 14(6) and s 31.
Reporter identity protections versus necessary referrals
Section 15 prohibits disclosure of the identity of a good faith reporter except with consent, or when necessary for law enforcement or other prescribed purposes. Yet s 13(9) requires referral to police or the DPP where a report may provide evidence of a criminal offence. The Commissioner may avoid referral where the adult does not wish it (s 13(9A)). Organisations handling reports must therefore reconcile confidentiality for reporters with the Commissioner’s statutory duty to refer criminal matters, and must be alert to the adult’s expressed wishes under s 13(9A).
Public inquiries and privilege
A public inquiry can be initiated where the Commissioner considers it in the public interest (s 19(1)) and for public inquiries the Royal Commissions Act 1923 generally applies with modifications (s 19(2)-(3)). The Act preserves claims of privilege (s 19(4)), but public inquiries are not bound by the rules of evidence and may compel production and testimony unless privilege is established. Parties should be cautious about disclosing material to an inquiry and evaluate privilege claims carefully.
Search warrants and LEPRA interface
The Commissioner must apply to an authorised officer under LEPRA for a search warrant and LEPRA Division 4 of Part 5 applies to execution (s 17(1), (5)). Practically, this requires coordination with police or other authorised officers for warrants and execution, including the possibility of health practitioner accompaniment and examination (s 17(3)). Service providers and premises operators should be prepared for warrants to permit removal of documents and inspection (s 17(2)(f), (d)).
Service provider obligations and penalties
Service providers of “visitable services” must give required information to the Commissioner within the prescribed or default time (s 24A(1)-(3)). Failure attracts a significant penalty (50 penalty units). The definition of “service provider” is broad (s 20). Organisations should audit whether they fall within the definition and ensure compliance systems for timely information provision.
Employment protection versus employment duties
Section 15A protects employees or contractors from detrimental action by employers for assisting the Commissioner. Employers must not take or threaten such action (s 15A(1)). However employers may need to balance this obligation against legitimate workplace management and confidentiality obligations. The Act provides a penalty for non‑compliance (s 15A(1)-(2)), so employers should review disciplinary and confidentiality policies to ensure they do not inadvertently penalise assistance to the Commissioner.
Confidentiality offences and practical disclosure risk
Section 31 criminalises unauthorised disclosure of information obtained under the Act with a maximum penalty of 50 penalty units. Yet s 31A allows disclosure of the outcome of a report to the reporter or another person concerned for the welfare of the affected adult (s 31A). Those overlapping rules mean agencies must implement precise information handling protocols that trace the legal basis for any disclosure.
Parliamentary reporting and removal reporting obligation
If the Commissioner removes an appointed Board member under s 29(9), the Commissioner must provide a report on the removal to the Presiding Officer of each House of Parliament (s 25(4)(d) cross‑referenced with s 29(9)). Removal of Board members therefore triggers an immediate parliamentary reporting obligation.
Delegation, independence and employment
The Commissioner is to be appointed by the Governor and employed under a contract with the Minister with some Public Service senior executive provisions applying (s 5; s 6). The Commissioner is not subject to Ministerial control (s 12(3)), yet the Minister appoints acting Commissioners and may remove acting Commissioners (s 9). The Commissioner may delegate functions (s 11). These cross‑currents create practical governance points about how independence is exercised institutionally versus the executive role in appointment and employment terms.
These “gotchas” are concrete statutory tensions and operational constraints that affect whether and how the Commissioner and other actors may act. Each identifies a compliance or procedural risk that requires operational rules, training or protocol design to manage statutory duties, permitted exceptions and penalties.
How to comply
This section sets out concrete steps for the principal actors affected by the Act: Commissioners and their office, service providers (including owners of assisted boarding houses), employers, Official Community Visitors, relevant agencies, and entities providing supports. Each compliance action is anchored in the relevant statutory provision cited.
For the Commissioner and Commissioner’s office
Establish clear consent protocols. Comply with s 13(11) and s 13(12) by developing documented procedures to obtain, record and evaluate consent to investigate. Include processes for assessing incapacity, providing appropriate support to enable decision‑making, and documenting efforts to obtain access where that must be demonstrated.
Information sharing arrangements. Where entering into arrangements under s 14(3), ensure each arrangement explicitly records the statutory basis, the classes of information to be shared, the purposes (s 14(1)), the circumstances in which disclosure is authorised despite other Acts (s 14(5)), and a reasonableness test that ties sharing to functions under the Act (s 14(6)). Retain legal review sign‑offs that the arrangement complies with s 14(7)’s caveat about other lawful disclosure pathways.
Data security and disclosure limits. Implement robust records classification and disclosure workflows to comply with s 31’s prohibitions. Train staff to identify permitted exceptions (consent, administration/execution of the Act, legal proceedings, Ombudsman requirements) and to seek legal advice before disclosing any material that could identify a reporter (s 15).
Exercise investigatory powers lawfully. For notices under s 16, implement templates and evidentiary checks that a document or attendance requirement is “relevant to the investigation” and ensure that notices accurately describe material sought and provide appropriate time and location particulars (s 16(1)). For search warrants under s 17, coordinate with LEPRA authorised officers and ensure health‑practitioner accompaniment protocols where relevant (s 17(3)).
Reporting and transparency. Prepare and publish the annual report with the required content (s 25(1), (3)-(4)). Establish internal procedures to collect and verify statistics on referrals, outcomes and investigations held without consent so the annual report will meet statutory content requirements.
For service providers and operators of visitable services
Register and provide required information. Determine whether your service is a “visitable service” under s 20 and, if so, ensure the Commissioner receives required contact and location details in writing within the prescribed or default time (s 24A(2)-(3)). If regulations prescribe a method, comply with that method. Non‑compliance carries a maximum penalty of 50 penalty units (s 24A(1)).
Facilitate Official Community Visitor access. Train staff and governance officers to allow OCVs to enter premises at reasonable times and to facilitate private conversations with residents and staff (s 22(1)(a)-(b)). Establish document access protocols that respect residents’ privacy wishes when OCVs seek to inspect service documents (s 22(1)(c); s 22(2)).
Policies on reprisal and internal reporting. Adopt or update employment and grievance policies to prohibit detrimental action against employees or contractors for assisting the Commissioner (s 15A) and against persons who make complaints to OCVs (s 24). Include disciplinary safeguards and evidentiary procedures that ensure defences available under s 24(2) are properly considered.
Records and evidence preservation. Implement retention schedules that avoid alteration, suppression or destruction of documents that might be the subject of a s 16 notice or executed warrant (s 16(2)(c)). Train staff on the legal consequences for failing to comply with production notices (s 16(2)).
For employers and contractors
Protect employees/contractors who assist the Commissioner. Ensure workplace disciplinary, investigatory and confidentiality processes do not penalise staff for assisting or proposing to assist the Commissioner. Review contractor agreements to prevent clauses that could be interpreted as authorising detrimental action contrary to s 15A.
Responding to notices. If the Commissioner issues a s 16 notice to an employee, contractor or employer, seek prompt legal advice and provide a timely and accurate response. Avoid altering or destroying documents that might be producible under the notice (s 16(2)(c)).
For relevant agencies and entities providing supports
Clear legal bases for information exchange. Before sharing information under s 14 or s 14A, ensure the information is “relevant” and “reasonably necessary” to an agency’s functions (s 14(1)-(6); s 14A(1)-(2)). Record the lawful basis for each disclosure, and where possible, rely on a formal information sharing arrangement (s 14(3)).
Confidentiality management. Implement access controls and disclosure approvals to ensure that any information given to or received from the Commissioner is handled in compliance with s 31 and any other applicable statutory confidentiality obligations.
For Official Community Visitors
Understand statutory remit. OCVs should be trained on the scope of inspection, private conferencing with residents, document inspection with respect to residents’ wishes, and the limited set of functions (s 22(1)(a)-(i)). They should be briefed on privacy obligations and on how their work may generate reports handled under s 13(3)-(5).
Reporting mechanisms. Establish protocols for OCVs to provide advice and information to relevant regulatory bodies and to escalate matters to the Commissioner where appropriate, noting s 22(3) allows the Commissioner to deal with matters arising from OCV information as if they were reports under s 13.
For the Commissioner’s Advisory Board and parliamentary committee
Board composition and governance. The Commissioner must ensure Board composition reflects community diversity and includes specified representation including persons with disability and older adults (s 29(3)-(4)). The Commissioner should document appointment terms, reappointment limits and removal procedures and make appropriate parliamentary notifications if removal occurs (s 29(5); s 29(9); s 25(4)(d)).
Committee engagement. Prepare to engage with the Committee on Ageing and Disability (s 28A-28C) by ensuring annual and special reports contain the data the Committee may request and by developing briefings for potential Committee inquiries.
Implementation and operational checklist (practical)
Audit whether the organisation is a “service provider” or “visitable service” (s 20). If yes, compile contact/location info and deliver to the Commissioner within the regulatory period or default 1 month (s 24A(2), (4)).
Create or update consent and capacity assessment templates that document attempts to obtain consent and support provided to enable decision‑making (s 13(11)-(12)).
Implement document preservation policies and legal holds triggered by s 16 notices or potential criminal referrals (s 13(9)). Train staff to avoid destroying or altering material.
Adopt staff training on protections against detrimental action and whistleblower‑style protections, referencing s 15A and s 24.
Legal review any information sharing arrangements before execution; include limits tied to “reasonably necessary” functions and record retention/destruction rules (s 14(3)-(6)).
Maintain a statutory log of all reports received, referrals made and outcomes for annual reporting obligations (s 25(3)-(4)).
Following these concrete, statute‑anchored steps will align organisational practice with the Act’s duties, rights and penalties. Where uncertainty remains,particularly around the interplay of s 14(s) information sharing, s 31 disclosure prohibitions and privilege claims in s 19,seek targeted legal advice and document decision rationales.
Official Community Visitor means an Official Community Visitor appointed under section 21.
older adult means a person who is aged—
(a) 50 years or over, in the case of an Aboriginal or Torres Strait Islander person, or
(b) 65 years or over, in any other case.
report, other than in Part 5, means a report made to the Commissioner under section 13 and includes a matter dealt with as a report by the Commissioner under that section or section 22 (3).
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act do not form part of this Act.
s 3: Am 2021 No 16, Sch 2[1]; 2024 No 14, Sch 1[1].
4 Objects and principles of Act
4 Objects and principles of Act
4 Objects and principles of Act
(1) The objects of this Act are—
(a) to protect and promote the rights of adults with disability and older adults, and
(b) to protect adults with disability and older adults from abuse, neglect and exploitation.
(2) When exercising a function under this Act, the Commissioner or any other person must have regard to the objects of the Act and the following principles—
(a) adults with disability and older adults have the right to respect for their worth and dignity as individuals and to live free from abuse, neglect and exploitation,
(b) adults with disability and older adults have the right to respect for their cultural and linguistic diversity, age, gender, sexual orientation and religious beliefs,
(c) adults with disability and older adults have the right to privacy and confidentiality,
(d) adults with disability and older adults have the right to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and services,
(e) families, carers and other significant persons have a crucial role in the lives of adults with disability and older adults and it is important to respect and preserve those relationships.
(3) When exercising a function under this Act, the Commissioner or any other person must have regard to the following—
(a) adults with disability and older adults may face multiple disadvantages and are potentially more vulnerable to abuse, neglect and exploitation,
(b) a person from any of the following groups who is also an adult with disability or older adult may face additional disadvantages and barriers to accessing supports and services—
(i) women,
(ii) Aboriginal and Torres Strait Islander adults,
(iii) gay, lesbian, bisexual, transgender and intersex communities,
(iv) adults from culturally and linguistically diverse backgrounds,
(v) adults living in regional and remote areas.
(4) When exercising a function under this Act with respect to a particular adult with disability or older adult, the Commissioner or any other person must have regard to the wishes of the adult.
(5) This section is intended to give guidance in the administration of this Act and does not create, or confer on any person, any right or entitlement enforceable at law.
Part 2 Appointment of Commissioner
Part 2 Appointment of Commissioner
Part 2 Appointment of Commissioner
5 Appointment of Ageing and Disability Commissioner
5 Appointment of Ageing and Disability Commissioner
5 Appointment of Ageing and Disability Commissioner
(1) The Governor may appoint an Ageing and Disability Commissioner.
(2) The Commissioner holds office for the term, not exceeding 5 years, specified in the instrument of appointment, but is eligible for re-appointment.
(3) A person is not eligible to be appointed for more than 2 terms of office as Commissioner (whether or not consecutive terms).
(4) The office of Commissioner is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
6 Employment and remuneration
6 Employment and remuneration
6 Employment and remuneration
(1) The employment of the Commissioner is (subject to this Act) to be governed by a contract of employment between the Commissioner and the Minister.
(2) The following provisions of or made under the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the Commissioner (but in the application of those provisions a reference to the employer of a Public Service senior executive is to be read as a reference to the Minister)—
(a) provisions relating to the band in which an executive is to be employed,
(b) provisions relating to the contract of employment of an executive,
(c) provisions relating to the remuneration, employment benefits and allowances of an executive.
(3) The office of Commissioner is a statutory office and the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to that office, except as provided by this section.
7 Vacancy in office
7 Vacancy in office
7 Vacancy in office
(1) The office of Commissioner becomes vacant if the Commissioner—
(a) dies, or
(b) completes a term of office and is not re-appointed, or
(c) resigns the office by instrument in writing addressed to the Minister, or
(d) is removed from office by the Governor under section 8, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the Commissioner’s creditors or makes an assignment of the Commissioner’s remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or
(h) is imprisoned in respect of a conviction for an offence punishable in New South Wales by imprisonment or for an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence so punishable.
(2) If the office of Commissioner becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
8 Removal from office
8 Removal from office
8 Removal from office
(1) The Governor may remove the Commissioner from office, but only for incompetence, incapacity or misbehaviour.
(2) The Commissioner cannot be removed from office under Part 6 of the Government Sector Employment Act 2013.
9 Acting Commissioner
9 Acting Commissioner
9 Acting Commissioner
(1) The Minister may appoint a person to act as the Commissioner during the illness or absence of the Commissioner or during a vacancy in the office of Commissioner.
(2) A person, while acting as Commissioner, has and may exercise the functions of the Commissioner and is taken to be the Commissioner.
(3) The Minister may, at any time, remove a person from office as acting Commissioner.
(4) An acting Commissioner is entitled to be paid the remuneration (including travelling and subsistence allowances) that the Minister may from time to time determine.
10 Staff
10 Staff
10 Staff
Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commissioner to exercise the Commissioner’s functions.
Note—
Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commissioner makes use of) may be referred to as officers or employees, or members of staff, of the Commissioner. Section 47A of the Constitution Act 1902 precludes the Commissioner from employing staff.
11 Delegation
11 Delegation
11 Delegation
The Commissioner may delegate any of the Commissioner’s functions (other than this power of delegation) to any member of the staff of the Commissioner or to a person of a class prescribed by the regulations.
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Part 3 Functions of Commissioner
Division 1 General functions
Division 1 General functions
Division 1 General functions
12 Functions of Commissioner
12 Functions of Commissioner
12 Functions of Commissioner
(1) The Commissioner has the following functions—
(a) to deal with allegations of abuse, neglect and exploitation of adults with disability and older adults, whether on the basis of a report made to the Commissioner or at the Commissioner’s own initiative, including by referring matters to appropriate persons or bodies and by conducting investigations,
(b) to take further action, following an investigation into an allegation of abuse, neglect or exploitation of an adult with disability or older adult, that the Commissioner considers necessary to protect the adult from abuse, neglect and exploitation, including by making an application to a court or tribunal in respect of the adult,
(c) to raise awareness and educate the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults,
(d) to provide advice and general assistance to the public about matters relating to the abuse, neglect and exploitation of adults with disability and older adults, including referrals to independent advocacy services, where appropriate,
(e) to inquire into and report on systemic issues relating to the protection and promotion of the rights of adults with disability and older adults or the abuse, neglect or exploitation of adults with disability or older adults,
(f) to consult with the Board on matters relating to the abuse, neglect and exploitation of adults with disability and older adults that the Commissioner considers appropriate,
(g) to advise, and make recommendations to, the Minister, at the Commissioner’s own initiative or at the request of the Minister, on matters relating to the abuse, neglect and exploitation of adults with disability and older adults,
(h) to monitor, assess and report on the New South Wales implementation of Australia’s Disability Strategy 2021–2031.
(2) The Commissioner has any other functions that are conferred or imposed on the Commissioner by or under this or any other Act.
(3) The Commissioner is not subject to the control or direction of the Minister.
s 12: Am 2024 No 14, Sch 1[2].
13 Reports may be made to Commissioner
13 Reports may be made to Commissioner
13 Reports may be made to Commissioner
(1) A person may make a report to the Commissioner about the following—
(a) an adult with disability or older adult if the person has reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation,
(b) circumstances that the person has reasonable grounds to believe will result in the abuse, neglect or exploitation of an adult with disability or older adult.
(2) Without limiting subsection (1), an adult with disability or older adult may make a report to the Commissioner if the adult has reasonable grounds to believe the adult is subject to, or at risk of, abuse, neglect or exploitation.
(3) A report does not need to be in writing.
(4) If a person, acting in good faith, makes a report to the Commissioner in accordance with this section, that person is not liable to any civil or criminal action, or any disciplinary action, for making the report.
(5) The Commissioner may do any one or more of the following in respect of a report—
(a) conduct an investigation,
(b) make a referral to another person or body,
(c) decline to take action on the report.
(6) The Commissioner may, at the Commissioner’s own initiative, decide to deal with a matter as a report under this section if the matter relates to an adult with disability or older adult that the Commissioner has reasonable grounds to believe is subject to, or at risk of, abuse, neglect or exploitation.
(7) The Commissioner may make preliminary inquiries for the purposes of deciding how to deal with a report and may request further information from the person making the report.
(8) If the Commissioner is of the opinion that a report, or part of a report, constitutes a complaint that may be made to any of the following persons or bodies, the Commissioner may refer the report, or the part of the report, to the person or body—
(a) the Health Care Complaints Commission under the Health Care Complaints Act 1993,