Part 2Commissioner for Children and Young People

Part 2—Commissioner for Children and Young People Division 1—Commissioner for Children and Young People 7—Commissioner for Children and Young People (1) There is to be a Commissioner for Children and Young People. (2) The CCYP is independent of direction or control by the Crown or any Minister or officer of the Crown. 8—Appointment of CCYP (1) The CCYP will be appointed by the Governor on conditions, and for a term (not exceeding 7 years), determined by the Governor and specified in the instrument of appointment. (2) A person appointed to be the CCYP is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as acting CCYP) that exceed 10 years in total. (3) The Governor may, by regulation, establish a scheme for the recruitment of the CCYP (and recruitment of the CCYP must comply with that scheme). (4) A person may only be appointed to be the CCYP if, following referral by the Minister of the proposed appointment to the Statutory Officers Committee established under the Parliamentary Committees Act 1991— (a) the appointment has been approved by the Committee; or (b) the Committee has not, within 7 days of the referral, or such longer period as is allowed by the Minister, notified the Minister in writing that it does not approve the appointment. (5) Despite the Parliamentary Committees Act 1991, the Statutory Officers Committee must not report on, or publish material in relation to, matters referred to the Committee under subsection (4) except to the extent allowed by the Minister (but this subsection does not derogate from section 15I(2) of the Parliamentary Committees Act 1991). (6) If the CCYP was, immediately before their appointment, employed in the Public Service, the CCYP retains existing and accruing rights in respect of leave. (7) The CCYP must not, without the consent of the Minister, engage in any remunerated employment or activity apart from official duties. (8) The Governor may, on the address of both Houses of Parliament, remove the CCYP from office. (9) The Governor may suspend the CCYP from office (with, or without, pay) for— (a) contravention of a condition of appointment; or (b) misconduct or conduct that may bring the office of CCYP into disrepute; or (c) failure or incapacity to carry out official duties satisfactorily. (10) If the Governor suspends the CCYP from office, a full statement of the reason for the suspension must be laid before both Houses of Parliament within 7 days after the suspension if Parliament is then in session or, if not, within 7 days after the commencement of the next session of Parliament. (11) If, at the end of 20 sitting days after the statement is laid before Parliament, neither House of Parliament has presented an address to the Governor requiring the CCYP to be restored to office, the CCYP is removed from office. (12) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the CCYP to be restored to office, the CCYP is restored to office. (13) The office of CCYP becomes vacant if the holder— (d) is nominated for election as a member of an Australian Parliament; or (e) becomes an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth; or (f) is convicted of— (iii) an offence against the law of another jurisdiction that, if committed in this State, would be an offence of a kind referred to in a preceding paragraph; or (g) is sentenced to imprisonment for an offence (whether against a law of this State or another jurisdiction); or (ga) becomes a prohibited person within the meaning of the Child Safety (Prohibited Persons) Act 2016; or (h) is removed from office by the Governor under this section. (14) Except as is provided by this section, the CCYP may not be removed or suspended from office, nor will the office of the CCYP become vacant. (15) The CCYP is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 9—Appointment of acting CCYP (1) The Governor may appoint a person (who may be a Public Service employee) to act as the CCYP during any period for which— (a) no person is for the time being appointed as the CCYP; or (b) the CCYP is absent from, or unable to discharge, official duties. (2) The terms and conditions of appointment of the person appointed to act as the CCYP will be determined by the Governor. (3) A person appointed to act as the CCYP is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 10—Delegation (1) Subject to this section, the CCYP may delegate a function or power under this Act (other than a prescribed function or power) to any person or body that is, in the CCYP's opinion, competent to perform or exercise the relevant function or power. (a) must be in writing; and (b) may be conditional or unconditional; and (c) is revocable at will; and (d) does not prevent the delegator from acting in any matter. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 11—Staff and resources The Minister must provide the CCYP with the staff and other resources that the CCYP reasonably needs for carrying out the CCYP's functions. 12—Employees (1) The CCYP may engage employees on terms and conditions determined by the CCYP. (2) The employees are not Public Service employees but will, for the purposes of the Public Sector (Honesty and Accountability) Act 1995, be taken to be public sector employees employed by the CCYP. 13—Use of staff etc of Public Service The CCYP may, by agreement with the Minister responsible for an administrative unit of the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit. 13A—Reporting obligations (1) The CCYP must, on or before 31 October in each year, report to the Minister on the performance of the CCYP's functions during the preceding financial year. (2) The Minister must, within 6 sitting days after receiving a report from the CCYP, have copies of the report laid before both Houses of Parliament. Division 2—Functions and powers of CCYP 14—General functions of CCYP (1) The functions of the CCYP are— (a) to promote and advocate for the rights and interests of all children and young people, or a particular group of children and young people, in South Australia; and (b) to promote the participation by children and young people in the making of decisions that affect their lives; and (c) to advise, and make recommendations to, Ministers, State authorities and other bodies (including non-Government bodies) on matters related to the rights, development and wellbeing of children and young people at a systemic level; and (d) to inquire under section 15 into matters related to the rights, development and wellbeing of children and young people at a systemic level (whether a Governmental system or otherwise); and (e) to assist in ensuring that the State, as part of the Commonwealth, satisfies its international obligations in respect of children and young people; and (f) to undertake or commission research into topics related to children and young people; and (g) to prepare and publish reports on matters related to the rights, development and wellbeing of children and young people at a systemic level; and (h) such other functions as may be conferred on the CCYP by or under this or any other Act. (2) Without limiting any other provision of this Act, the CCYP should consult with and engage children and young people in the performance of the CCYP's functions under this Act, and in particular should seek to engage those groups of children and young people whose ability to make their views known is limited for any reason. 14A—Collaboration between CCYP and CACYP The CCYP should, in the performance of their functions, collaborate on matters of common interest with the CACYP to such extent as is reasonably practicable. 14B—Referral of matters to CACYP (1) If, in the course of performing functions under this Act, the CCYP becomes aware of a matter that, in the opinion of the CCYP, should be referred to the CACYP for action under this Act, then the CCYP may refer the matter to the CACYP. (2) Nothing in subsection (1) prevents the CCYP from reporting or referring the matter under any other provision of this Act or any other Act. 14C—Jurisdictional disputes (1) If the CCYP becomes aware that the CACYP is inquiring into a matter under section 20M that appears to the CCYP to fall within the CCYP's jurisdiction, the CCYP must raise the matter with the CACYP and attempt to resolve which Commissioner should inquire into the matter. (2) If the CCYP and CACYP are unable to resolve which Commissioner should inquire into the matter, the CCYP must refer the matter to the Minister. (3) The Minister must determine whether the CCYP or the CACYP should inquire into the matter referred under subsection (2). (4) If the Minister determines that the CACYP should inquire into the matter, the CCYP may not inquire into the matter (unless the Minister subsequently determines otherwise). 15—CCYP may inquire into matters affecting children and young people at systemic level (1) Subject to this Act, but otherwise in the CCYP's absolute discretion, the CCYP may conduct an inquiry into— (a) the policies, practices and procedures of a State authority or authorities as they relate to the rights, development and wellbeing of children and young people generally, or a particular group of children and young people; and (b) any other matter declared by the regulations to fall within the ambit of this subsection. (2) However, the CCYP may only conduct an inquiry under this section if the CCYP suspects that— (a) the matter raises an issue of particular significance to children and young people; and (b) the matter is of a systemic nature rather than being limited to an isolated incident; and (c) it is in the public interest to conduct the inquiry. (3) To avoid doubt, and without limiting any other provision of this section, the CCYP— (a) may, in the course of conducting an inquiry into matters of a systemic nature, consider a matter affecting a particular child or young person; and (b) may conduct an inquiry under this section as a consequence of becoming aware of a matter affecting a particular child or young person. (4) The CCYP must not conduct an inquiry under this section if to do so would be likely to impede an investigation or proposed investigation relating to a matter that is being, or is to be, conducted by an inquiry agency. (5) Subject to this Act, the CCYP may conduct an inquiry under this section in such manner as the CCYP thinks fit. (6) A State authority must assist the CCYP in the conduct of an inquiry under this section as requested by the CCYP. (7) The CCYP must inform each relevant State authority as to the nature and timing of an inquiry under this section. inquiry agency has the same meaning as in section 45. 16—Powers of CCYP (1) For the purposes of an inquiry under section 15, the CCYP has the powers of a commission as defined in the Royal Commissions Act 1917 and that Act applies as if— (a) the CCYP were a commission as so defined; and (b) the subject matter of the inquiry were set out in a commission of inquiry issued by the Governor under that Act. (2) For the purposes of any other function under this Act, the CCYP has such powers as may be necessary or expedient for the performance of that function. 17—Recommendations (1) The CCYP may, on completing an inquiry under section 15, or in response to issues observed by the CCYP in the course of such an inquiry, by notice in writing recommend to a State authority that the State authority— (a) change practices, policies or procedures in a specified way or review practices, policies or procedures to achieve specified outcomes; or (b) conduct, or participate in, specified educational programs or educational programs designed to achieve specified outcomes; or (c) take such other action as may be specified by the CCYP. (2) The responsible authority for a State authority must, in relation to a recommendation under subsection (1), provide to the CCYP a report setting out— (a) whether the State authority proposes, or does not propose, to implement the recommendation; and (b) if the State authority proposes to implement the recommendation—details of how the implementation is to be recommended; and (c) if the State authority does not propose to implement the recommendation—an explanation as to why the recommendation is not to be implemented. (3) If— (a) a State authority proposes to implement a recommendation; and (b) the CCYP is of the opinion that a State authority has failed or refused to do so, the CCYP may require the State authority to provide to the CCYP within a specified period a report setting out the reasons for the failure or refusal. (4) The CCYP may submit a copy of a report under subsection (3) to the Minister setting out the views of the CCYP in respect of the State authority's failure or refusal to implement a recommendation. (5) The Minister must, on receiving a report under subsection (4), prepare a report to Parliament setting out— (a) the Minister's response to the CCYP's report; and (b) if any action has been taken, or is proposed to be taken, (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the CCYP's report relates—details of that action or proposed action; and (c) if no action is to be taken (whether by the Minister, a State authority or any other person or body) in relation to a recommendation to which the CCYP's report relates—the reasons for not taking action; and (d) any other information required by the regulations. (6) The Minister must, within 6 sitting days after completing a report under subsection (5), cause a copy of both the report and the CCYP's report under subsection (4) to be laid before both Houses of Parliament. 18—Report of inquiry under section 15 (1) The CCYP must, on completing an inquiry under section 15, prepare and deliver to the Minister a report on the inquiry (including details of any recommendations made in respect of the inquiry). (2) The Minister must, within 6 sitting days after receiving a report under subsection (1), cause a copy of the report to be laid before both Houses of Parliament. (3) The Minister must, on receiving a report under subsection (1)— (a) provide a copy of the report to the Minister responsible for each area identified in the report; and (b) prepare a report setting out— (i) the Minister's response to the CCYP's report; and (ii) if any action has been taken, or is proposed to be taken, (whether by a Minister, a State authority or any other person or body) in relation to the CCYP's report—details of that action or proposed action; and (iii) if no action is to be taken (whether by a Minister, a State authority or any other person or body) in relation to the CCYP's report—the reasons for not taking action; and (iv) any other information required by the regulations. (4) The Minister must, within 6 sitting days after completing a report under subsection (3), cause a copy of the report to be laid before both Houses of Parliament. 19—CCYP may provide other reports (1) The CCYP may prepare and provide to the Minister, or to another Minister responsible for a particular area, reports on matters related to the rights, development and wellbeing of children and young people at a systemic level. (2) The Minister to whom a report is provided under subsection (1) must, within 6 sitting days after receiving the report, cause a copy of the report to be laid before both Houses of Parliament. 20—CCYP may publish reports The CCYP may, once a report under this Part has been laid before each House of Parliament and after consultation with the Minister, publish all or part of the report as the CCYP thinks fit.