Part 2A

Part 2A—Commissioner for Aboriginal Children and Young People Division 1—Commissioner for Aboriginal Children and Young People 20A—Commissioner for Aboriginal Children and Young People (1) There is to be a Commissioner for Aboriginal Children and Young People. (2) The CACYP is independent of direction or control by the Crown or any Minister or officer of the Crown. 20B—Appointment of CACYP (1) The CACYP 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 CACYP is, at the end of a term of appointment, eligible for reappointment but cannot hold office for terms (including any term as acting CACYP) that exceed 10 years in total. (3) Despite a provision of the Equal Opportunity Act 1984 or any other Act or law, a person appointed to be the CACYP must be an Aboriginal person. (4) The Governor may, by regulation, establish a scheme for the recruitment of the CACYP (and recruitment of the CACYP must comply with that scheme). (5) A person may only be appointed to be the CACYP 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. (6) 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 (5) except to the extent allowed by the Minister (but this subsection does not derogate from section 15I(2) of the Parliamentary Committees Act 1991). (7) If the CACYP was, immediately before their appointment, employed in the Public Service, the CACYP retains existing and accruing rights in respect of leave. (8) The CACYP must not, without the consent of the Minister, engage in any remunerated employment or activity apart from official duties. (9) The Governor may, on the address of both Houses of Parliament, remove the CACYP from office. (10) The Governor may suspend the CACYP 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 CACYP into disrepute; or (c) failure or incapacity to carry out official duties satisfactorily. (11) If the Governor suspends the CACYP 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. (12) 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 CACYP to be restored to office, the CACYP is removed from office. (13) If within 20 sitting days after the statement is laid before Parliament either House of Parliament presents an address to the Governor requiring the CACYP to be restored to office, the CACYP is restored to office. (14) The office of CACYP 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 (h) becomes a prohibited person within the meaning of the Child Safety (Prohibited Persons) Act 2016; or (i) is removed from office by the Governor under this section. (15) Except as is provided by this section, the CACYP may not be removed or suspended from office, nor will the office of the CACYP become vacant. (16) The CACYP is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 20C—Appointment of acting CACYP (1) The Governor may appoint a person (who may be a Public Service employee) to act as the CACYP during any period for which— (a) no person is for the time being appointed as the CACYP; or (b) the CACYP is absent from, or unable to discharge, official duties. (2) Despite a provision of the Equal Opportunity Act 1984 or any other Act or law, a person appointed to act as the CACYP must be an Aboriginal person. (3) The terms and conditions of appointment of the person appointed to act as the CACYP will be determined by the Governor. (4) A person appointed to act as the CACYP is a senior official for the purposes of the Public Sector (Honesty and Accountability) Act 1995. 20D—Delegation (1) Subject to this section, the CACYP 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 CACYP'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. 20E—Staff and resources The Minister must provide the CACYP with the staff and other resources that the CACYP reasonably needs for carrying out the CACYP's functions. 20F—Employees (1) The CACYP may engage employees on terms and conditions determined by the CACYP. (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 CACYP. 20G—Use of staff etc of Public Service The CACYP 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. 20H—Reporting obligations (1) The CACYP must, on or before 31 October in each year, report to the Minister on the performance of the CACYP's functions during the preceding financial year. (2) The Minister must, within 6 sitting days after receiving a report from the CACYP, have copies of the report laid before both Houses of Parliament. Division 2—Functions and powers of CACYP 20I—General functions of CACYP (1) The functions of the CACYP are— (a) to promote and advocate for the rights and interests of all Aboriginal children and young people, or a particular group of Aboriginal children and young people, in South Australia; and (b) to promote the participation by Aboriginal 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 Aboriginal children and young people at a systemic level; and (d) to inquire under section 20M into matters related to the rights, development and wellbeing of Aboriginal 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 Aboriginal children and young people; and (f) to undertake or commission research into topics related to Aboriginal children and young people; and (g) to prepare and publish reports on matters related to the rights, development and wellbeing of Aboriginal children and young people at a systemic level; and (h) such other functions as may be conferred on the CACYP by or under this or any other Act. (2) The CACYP may perform a function in respect of an Aboriginal child or young person, or a particular group of Aboriginal children and young people, if, at the time the CACYP is performing the function, the CACYP believes on reasonable grounds that the child or young person is an Aboriginal child or young person, or the group of children and young people is a group of Aboriginal children and young people. (3) Without limiting any other provision of this Act, the CACYP will consult with and engage Aboriginal children and young people, and their families and communities, in the performance of the CACYP's functions under this Act, and in particular will seek to engage those groups of Aboriginal children and young people, and their families and communities, whose ability to make their views known is limited for any reason. family, in relation to an Aboriginal child or young person or a Torres Strait Islander child or young person, includes— (a) the child or young person's extended family; and (b) members of the child or young person's family who are not biologically related to the child or young person; and (c) any person related to the child or young person in accordance with Aboriginal or Torres Strait Islander traditional practice or custom (as the case requires), and families has a corresponding meaning. 20J—Collaboration between CACYP and CCYP The CACYP should, in the performance of their functions, collaborate on matters of common interest with the CCYP to such extent as is reasonably practicable. 20K—Referral of matters to CCYP (1) If, in the course of performing functions under this Act, the CACYP becomes aware of a matter that, in the opinion of the CACYP, should be referred to the CCYP for action under this Act, then the CACYP may refer the matter to the CCYP. (2) Nothing in subsection (1) prevents the CACYP from reporting or referring the matter under any other provision of this Act or any other Act. 20L—Jurisdictional disputes (1) If the CACYP becomes aware that the CCYP is inquiring into a matter under section 15 that appears to the CACYP to fall within the CACYP's jurisdiction, the CACYP must raise the matter with the CCYP and attempt to resolve which Commissioner should inquire into the matter. (2) If the CACYP and CCYP are unable to resolve which Commissioner should inquire into the matter, the CACYP must refer the matter to the Minister. (3) The Minister must determine whether the CACYP or the CCYP should inquire into the matter referred under subsection (2). (4) If the Minister determines that the CCYP should inquire into the matter, the CACYP may not inquire into the matter (unless the Minister subsequently determines otherwise). 20M—CACYP may inquire into matters affecting Aboriginal children and young people at systemic level (1) Subject to this Act, but otherwise in the CACYP's absolute discretion, the CACYP 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 Aboriginal children and young people generally, or a particular group of Aboriginal children and young people; and (b) any other matter declared by the regulations to fall within the ambit of this subsection. (2) However, the CACYP may only conduct an inquiry under this section if the CACYP suspects that— (a) the matter raises an issue of particular significance to Aboriginal 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 CACYP— (a) may, in the course of conducting an inquiry into matters of a systemic nature, consider a matter affecting a particular Aboriginal 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 Aboriginal child or young person. (4) The CACYP 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 CACYP may conduct an inquiry under this section in such manner as the CACYP thinks fit. (6) A State authority must assist the CACYP in the conduct of an inquiry under this section as requested by the CACYP. (7) The CACYP 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. 20N—Powers of CACYP (1) For the purposes of an inquiry under section 20M, the CACYP has the powers of a commission as defined in the Royal Commissions Act 1917 and that Act applies as if— (a) the CACYP 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 CACYP has such powers as may be necessary or expedient for the performance of that function. 20O—Recommendations (1) The CACYP may, on completing an inquiry under section 20M, or in response to issues observed by the CACYP 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 CACYP. (2) The responsible authority for a State authority must, in relation to a recommendation under subsection (1), provide to the CACYP 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 CACYP is of the opinion that a State authority has failed or refused to do so, the CACYP may require the State authority to provide to the CACYP within a specified period a report setting out the reasons for the failure or refusal. (4) The CACYP may submit a copy of a report under subsection (3) to the Minister setting out the views of the CACYP 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 CACYP'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 CACYP'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 CACYP'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 CACYP's report under subsection (4) to be laid before both Houses of Parliament. 20P—Report of inquiry under section 20M (1) The CACYP must, on completing an inquiry under section 20M, 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 CACYP'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 CACYP'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 CACYP'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. 20Q—CACYP may provide other reports (1) The CACYP 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 Aboriginal 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. 20R—CACYP may publish reports The CACYP 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 CACYP thinks fit.