Children's Commissioner Act 2013 (Northern Territory)

This Act establishes an independent statutory office, the Children's Commissioner, and sets out the office's objects, powers, functions, investigatory and reporting procedures, confidentiality rules, offences and immunities. The Act (ss 1-5, 9-11) creates an oversight and advocacy mechanism directed at the safety and wellbeing of "vulnerable children" (s 4; s 7). It gives the Commissioner a defined mandate to receive and deal with complaints about failures in required services for vulnerable children, to initiate investigations and inquiries on the Commissioner's own initiative, and to monitor and report on service-provider and government responses (ss 10, 20-29, 30-33).

Mechanically, the Act:

Creates the office and prescribes appointment mechanics and tenure (s 9; ss 12-18).
Defines who may complain and what may be complained about, imposing a one-year limitation subject to a public interest or special‑circumstances exception (s 20; s 21; s 22).
Requires initial assessment within a statutory timeframe (28 days) and gives the Commissioner discretion to investigate, refer, resolve without investigation, or decline a complaint subject to specified grounds (s 23; s 24; s 25).
Confers statutory powers of access to children and information, including power to require information and to take evidence on oath (ss 34-35).
Mandates preparation of investigation and inquiry reports, authorises recommendations to service providers and Agencies, and compels written responses and, where dissatisfied, referral of the matter to the Minister and tabling in the Legislative Assembly (ss 29, 29A, 33, 33A).
Establishes criminal offences for non-compliance with access and information requests, for providing misleading material, obstructing complaints, improper influence or obstruction of investigations and reprisals against informants, with significant penalty units and some imprisonment terms (ss 36-42A).

NORTHERN TERRITORY OF AUSTRALIA CHILDREN'S COMMISSIONER ACT 2013 As in force at 1 May 2024 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Act binds Crown .............................................................................. 1 4 Objects of Act .................................................................................. 1 5 Principles underlying this Act ........................................................... 1 Part 2 Interpretation 6 Definitions ........................................................................................ 2 7 Vulnerable child ............................................................................... 5 8 Application of Criminal Code ........................................................... 6 Part 3 Children's Commissioner 9 Children's Commissioner ................................................................. 6 10 Commissioner's functions and powers ............................................ 6 11 Commissioner's independence ........................................................ 8 12 Term of appointment ....................................................................... 8 13 Conditions of appointment ............................................................... 8 14 Leave ............................................................................................... 8 15 Resignation...................................................................................... 8 16 Suspension and termination of appointment.................................... 8 17 Acting Commissioner ....................................................................... 9 18 Oath of office ................................................................................... 9 19 Staff of Commissioner ................................................................... 10 Part 4 Complaints Division 1 Procedures for making complaints 20 Making complaint........................................................................... 10 21 Grounds for complaint ................................................................... 10 22 When complaint must be made ..................................................... 11 Division 2 Dealing with complaints 23 Initial assessment of complaint ...................................................... 11 24 Deciding not to deal with or to refer complaint ............................... 12 25 Deciding to resolve complaint without investigation....................... 13

Children's Commissioner Act 2013 ii 26 Notification of initial assessment.................................................... 13 27 Complaint referred to another person ............................................ 14 Part 5 Investigations 28 Commencing investigation............................................................. 14 29 Report of investigation ................................................................... 15 29A Response to recommendations ..................................................... 16 Part 6 Inquiries 30 Undertaking inquiry ........................................................................ 17 31 Notification of inquiry ..................................................................... 17 32 Procedures of inquiry ..................................................................... 18 33 Report of inquiry ............................................................................ 18 33A Response to recommendations ..................................................... 19 Part 7 Commissioner's other powers 34 Access to child............................................................................... 20 35 Access to information .................................................................... 20 Part 8 Offences 36 Failure to comply with request for access to child ......................... 21 37 Failure to comply with request for information ............................... 21 38 Failure to comply with requirement to give information on oath ..... 23 39 Misleading information or document .............................................. 23 40 Preventing or obstructing complaint .............................................. 24 41 False complaint ............................................................................. 24 42 Obstructing or improperly influencing investigation or inquiry ........ 25 42A Reprisal against informant ............................................................. 25 Part 9 Commissioner's reports 43 Annual report and other reports ..................................................... 26 44 Publication of reports ..................................................................... 27 Part 10 Disclosure of confidential information 45 Disclosure of information to Commissioner generally .................... 27 46 Direction by Commissioner not to disclose information ................. 27 47 Confidentiality ................................................................................ 28 Part 11 Immunity 48 Protection from liability – complainant and informants................... 29 49 Protection from liability – Commissioner and staff ......................... 30

Children's Commissioner Act 2013 iii Part 12 Miscellaneous matters 50 Review of Care and Protection of Children Act 2007..................... 30 51 Delegation ..................................................................................... 31 52 Regulations.................................................................................... 31 Part 13 Transitional matters for Children's Commissioner Act 2013 53 Definitions ...................................................................................... 31 54 Continuation of ongoing matters .................................................... 31 55 Children's Commissioner ............................................................... 31 56 Acting Children's Commissioner .................................................... 32 57 Investigations................................................................................. 32 58 Complaints..................................................................................... 32 59 Access to information .................................................................... 33 60 First annual report ......................................................................... 33 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 1 May 2024

CHILDREN'S COMMISSIONER ACT 2013 An Act to provide for a Children's Commissioner, and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the Children's Commissioner Act 2013. 2 Commencement This Act commences on the day fixed by the Administrator by Gazette notice. 3 Act binds Crown This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities. 4 Objects of Act The objects of this Act are to: (a) ensure the safety and wellbeing of vulnerable children; and (b) promote continuous improvement and innovation in policies, practices and services relating to the safety and wellbeing of vulnerable children. 5 Principles underlying this Act (1) A person exercising a power or performing a function under this Act must, as far as practicable, uphold the following principles (the underlying principles): (a) the best interests of children are the paramount concern;

Part 2 Interpretation Children's Commissioner Act 2013 2 (b) every child is entitled: (i) to live in a caring and nurturing environment in which the child is protected from harm and exploitation and able to reach his or her full potential; and (ii) to be treated in a way that respects the child's dignity and privacy; and (iii) to express the child's concerns and grievances and to have them dealt with in a fair and timely way; (c) the views of children on all matters affecting them should be given serious consideration and taken into account. (2) However, the underlying principles do not affect the operation of any law in force in the Territory. Part 2 Interpretation 6 Definitions In this Act: Aboriginal means: (a) a descendant of the Aboriginal people of Australia; or (b) a descendant of the indigenous inhabitants of the Torres Strait Islands. CEO means the Chief Executive Officer of the Agency administering the Care and Protection of Children Act 2007. child, see section 13 of the Care and Protection of Children Act 2007. child is in the CEO's care, see section 67(1) of the Care and Protection of Children Act 2007. child-related services, see section 13 of the Care and Protection of Children Act 2007. Commissioner means the Children's Commissioner mentioned in section 9. complainant means a person who makes a complaint. complaint means a complaint, or a part of a complaint, made under section 20.

Part 2 Interpretation Children's Commissioner Act 2013 3 disability, see section 2(1) of the Disability Services Act 1993. exploitation, of a child, see section 16 of the Care and Protection of Children Act 2007. family member, of a child, includes a person mentioned in section 19 of the Care and Protection of Children Act 2007. harm, to a child, see section 15 of the Care and Protection of Children Act 2007. investigation means an investigation by the Commissioner under Part 5. matter to which a complaint relates means each failure of a kind mentioned in section 21(1)(a) or (b) that forms a ground for the complaint. matter to which an investigation relates means: (a) in relation to the investigation of a complaint – the matter to which the complaint relates; or (b) in relation to an investigation initiated by the Commissioner – a failure of a kind mentioned in section 21(1)(a) or (b) to which the investigation relates. mental illness, see section 6 of the Mental Health and Related Services Act 1998. mentally disturbed, see section 4 of the Mental Health and Related Services Act 1998. Ombudsman, see section 4 of the Ombudsman Act 2009. operator of child-related services, see section 13 of the Care and Protection of Children Act 2007. public authority means any of the following: (a) an Agency; (b) the Police Force; (c) a local government council; (d) an office or body (whether incorporated or not) established for a public purpose by or under a law of the Territory; (e) any other entity established for a public purpose (including a non-government organisation) that is prescribed by regulation.

Part 2 Interpretation Children's Commissioner Act 2013 4 required services: (a) in relation to a complaint – see section 21(1)(a) and (2); or (b) in relation to an investigation initiated by the Commissioner – the services mentioned in section 21(1)(a) or (2) to which the investigation relates. responsible Agency: (a) in relation to a complaint – see section 26(3), definition responsible Minister, paragraph (a); or (b) in relation to an investigation initiated by the Commissioner – means the Agency directly or indirectly responsible for providing, or funding or administering the funding of, any required services to which the investigation relates. responsible Minister: (a) in relation to a complaint – see section 26(3); or (b) in relation to an investigation initiated by the Commissioner – means the Minister who has administrative responsibility for the responsible Agency, or a responsible service provider, to which the investigation relates. responsible service provider: (a) in relation to a complaint – see section 21(1)(a); or (b) in relation to an investigation initiated by the Commissioner – a service provider mentioned in section 21(1)(a) to which the investigation relates. service provider, in relation to a vulnerable child, means: (a) a public authority, or another person or body acting for or under an arrangement with a public authority, who has taken or is taking an action in relation to the child as a vulnerable child; or (b) without limiting paragraph (a) – an operator of child-related services, or an approved provider of an education and care service operated under the Education and Care Services National Law (NT), who provides, or is required to provide, services in relation to the child as a vulnerable child; other than a public authority, person or body prescribed by regulation, or a court.

Part 2 Interpretation Children's Commissioner Act 2013 5 underlying principles, see section 5(1). vulnerable child, see section 7(1). wellbeing of a child, see section 14 of the Care and Protection of Children Act 2007. young person who has left the CEO's care, see section 68 of the Care and Protection of Children Act 2007. 7 Vulnerable child (1) A vulnerable child is any of the following: (a) a child who is the subject of the exercise of a power or performance of a function under Chapter 2 of the Care and Protection of Children Act 2007; (b) a child who has been arrested or is on bail, or in relation to whom an order made under the Youth Justice Act 2005 is in force; (c) a child in relation to whom an order made under the Volatile Substance Abuse Prevention Act 2005 is in force; (d) a child who is suffering from a mental illness or is mentally disturbed; (e) a child who has a disability; (f) a child who has sought or is seeking child-related services, or for whom a family member of the child has sought or is seeking child-related services, for any of the following: (i) the prevention of harm to, or exploitation of, the child; (ii) the protection of the child; (iii) care or support of the child; (g) a person prescribed by regulation. (2) In addition, a young person who has left the CEO's care is taken to be a vulnerable child. (3) A regulation may prescribe particular child-related services: (a) as services covered by subsection (1)(f); or (b) as services not covered by subsection (1)(f).

Part 3 Children's Commissioner Children's Commissioner Act 2013 6 8 Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against this Act. Note for section 8 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. Part 3 Children's Commissioner 9 Children's Commissioner (1) There is to be a Children's Commissioner. (2) The Administrator may, in writing, appoint an Aboriginal person to be the Children's Commissioner. (3) If no suitable Aboriginal candidate is identified, the Administrator may, in writing, appoint a non-Aboriginal person to be the Children's Commissioner. (4) An appointment under subsection (2) or (3) must be made on the recommendation of the Minister. (5) The Minister must not recommend a person to be the Commissioner unless satisfied that the person: (a) has qualifications or experience relating to the Commissioner's functions; and (b) is committed to the objects of this Act and the underlying principles; and (c) has the knowledge and experience to understand and respond to the needs of, and issues facing, vulnerable children who are Aboriginal. 10 Commissioner's functions and powers (1) The following are the Commissioner's functions: (a) to deal with: (i) a complaint about required services; or

Part 3 Children's Commissioner Children's Commissioner Act 2013 7 (ii) on the Commissioner's own initiative, a matter that may form a ground for making a complaint (irrespective of when the matter occurred and whether or not a complaint was made); (b) to monitor the ways in which service providers respond to reports made by the Commissioner; (c) to monitor the administration of the Care and Protection of Children Act 2007 in so far as it relates to vulnerable children; (d) to undertake inquiries related to the care and protection of vulnerable children; (e) to monitor the implementation of any government decision arising from: (i) an inquiry undertaken by the Commissioner under Part 6; or (ii) any other inquiry related to the care and protection of vulnerable children, regardless of who undertook the inquiry; (f) to monitor the ways in which the CEO deals with suspected or potential harm to, or exploitation of, children in the CEO's care; (g) to report to the Minister on a matter relating to the Commissioner's functions as required by the Minister; (h) to promote an understanding of, and informed public discussion about, the rights, interests and wellbeing of vulnerable children; (i) to promote and advocate for the rights, interests and wellbeing of vulnerable children; (j) to consult with, advise, and make recommendations to ministers, public authorities and other bodies on matters related to the rights, interests and wellbeing of vulnerable children; (k) to undertake or commission research in relation to issues relevant to the rights, interests and wellbeing of vulnerable children. (2) The Commissioner has the powers necessary to perform the Commissioner's functions.

Part 3 Children's Commissioner Children's Commissioner Act 2013 8 11 Commissioner's independence Except as otherwise provided by another law of the Territory, the Commissioner is not subject to the direction of anyone in relation to: (a) the way in which the functions of the Commissioner are performed; or (b) the order of priority the Commissioner gives to investigations. 12 Term of appointment The Commissioner holds office for the period (not exceeding 5 years) specified in his or her appointment and is eligible for reappointment. 13 Conditions of appointment The Commissioner holds office on the conditions (including as to remuneration, expenses and allowances) determined by the Administrator. 14 Leave The Minister may grant the Commissioner leave of absence on the conditions determined by the Minister. 15 Resignation The Commissioner may resign the office of Commissioner by written notice given to the Administrator. 16 Suspension and termination of appointment (1) The Administrator may, in writing, suspend the Commissioner from duty on the ground of misbehaviour or physical or mental incapacity. (2) The Minister must, within 3 sitting days after the suspension, present a statement of the reasons for the suspension to the Legislative Assembly. (3) The Administrator must terminate the Commissioner's appointment if, within 7 sitting days after presenting the statement, a resolution is passed by a two-thirds majority of the Legislative Assembly requesting the termination. (4) The Commissioner must resume duties if: (a) the Minister does not present the statement under subsection (2); or

Part 3 Children's Commissioner Children's Commissioner Act 2013 9 (b) the Legislative Assembly does not pass the resolution under subsection (3). (5) The Commissioner is entitled to be paid remuneration and allowances during the suspension. (6) The Administrator must terminate the Commissioner's appointment if the Commissioner: (a) becomes bankrupt; or (b) applies to take the benefit of a law for the relief of bankrupt or insolvent debtors; or (c) compounds with creditors or makes an assignment of the Commissioner's remuneration for their benefit. 17 Acting Commissioner (1) The Minister may appoint a person to act in the office of the Commissioner: (a) during a vacancy in the office (whether or not an appointment has previously been made to the office); or (b) during a period or all periods when the Commissioner is unable to perform the functions of the office. (2) A person appointed under subsection (1)(a) must not act continuously for more than 3 months in the office of the Commissioner. (3) The Minister may determine the conditions of the appointment (including as to remuneration, expenses and allowances). 18 Oath of office (1) A person appointed to be the Commissioner must, before taking office as Commissioner, take an oath that he or she: (a) will faithfully and impartially perform the functions of the office; and (b) will not, except for the purposes of this Act, disclose any information obtained by him or her in performing those functions. (2) The Speaker or a Supreme Court Judge must administer the oath.

Part 4 Complaints Division 1 Procedures for making complaints Children's Commissioner Act 2013 10 19 Staff of Commissioner (1) The staff of the Commissioner consists of: (a) public sector employees employed for the Commissioner; and (b) persons employed in an Agency made available by the Chief Executive Officer of the Agency under an arrangement with the Commissioner. (2) A member of the Commissioner's staff is subject only to the direction of: (a) the Commissioner; or (b) another member of the Commissioner's staff. Part 4 Complaints Division 1 Procedures for making complaints 20 Making complaint (1) Any of the following persons may make a complaint: (a) a person who is or has been a vulnerable child; (b) an adult acting on behalf of a person who is or has been a vulnerable child, whether or not the person is alive at the time the complaint is made. (2) The complaint: (a) must be made to the Commissioner; and (b) may be made orally or in writing. (3) If the complaint is made orally, the Commissioner may arrange for it to be reduced into writing. 21 Grounds for complaint (1) The complaint must be made on one or more of the following grounds: (a) a service provider (a responsible service provider) failed to provide services (required services) for the child, as a vulnerable child, that the provider was reasonably expected to provide;

Part 4 Complaints Division 2 Dealing with complaints Children's Commissioner Act 2013 11 (b) the required services provided for the child by the responsible service provider failed to meet the standard that was reasonably expected of the provider. (2) Without limiting subsection (1), the required services include: (a) any services relating to the care or wellbeing of the child; and (b) for a vulnerable child mentioned in section 7(1)(f) – child-related services mentioned in section 7(1)(f). 22 When complaint must be made (1) The complaint must be made within 1 year after the matter to which the complaint relates has arisen. (2) However, the Commissioner may accept a complaint after the 1 year period if the Commissioner considers it is appropriate to do so in the public interest or because of special circumstances. Division 2 Dealing with complaints 23 Initial assessment of complaint (1) On receiving the complaint, the Commissioner must decide which of the following actions should be taken: (a) to investigate the complaint; (b) either or both of the following: (i) not to deal with the complaint; (ii) to refer the complaint to another person for investigation and resolution; (c) to resolve the complaint without an investigation. (2) The Commissioner may make preliminary inquiries for making a decision under subsection (1). (3) The Commissioner must make the decision under subsection (1) within: (a) 28 days after receiving the complaint; or (b) if the Commissioner needs other information for the decision – 28 days after obtaining the information.

Part 4 Complaints Division 2 Dealing with complaints Children's Commissioner Act 2013 12 (4) The Commissioner may change his or her decision to take an action mentioned in subsection (1) even after starting to take the action. 24 Deciding not to deal with or to refer complaint (1) The Commissioner may decide not to deal with the complaint only if satisfied that: (a) the complaint lacks substance; or (b) the complaint relates to an act or omission of a police officer; or (c) the complaint should be referred to a person who has an established mechanism to deal with similar complaints; or (d) the matter to which the complaint relates has already been satisfactorily dealt with by the Commissioner or another person; or (e) the complainant has failed, without reasonable excuse, to comply with a requirement of the Commissioner (for example, giving specified information to the Commissioner); or (f) the complainant does not have a sufficient interest in the matter to which the complaint relates; or (g) the complainant has withdrawn the complaint; or (h) it is appropriate for the Commissioner to initiate an investigation under section section 28(2) for matters including the matter to which the complaint relates; or (i) any dealing or further dealing with the complaint is inappropriate, having regard to: (i) a proceeding before a court or tribunal relating to the matter to which the complaint relates; or (ii) the objects of this Act, the underlying principles and the resources available to deal with the complaint. (2) Except as provided in subsection (3), the Commissioner must not refer the complaint to the Ombudsman for investigation and resolution if the Commissioner is authorised under section 28(1) to investigate the complaint.

Part 4 Complaints Division 2 Dealing with complaints Children's Commissioner Act 2013 13 (3) The Commissioner must refer a complaint mentioned in subsection (1)(b) to the Ombudsman for investigation and resolution. 25 Deciding to resolve complaint without investigation The Commissioner may decide to resolve the complaint without an investigation only if satisfied that: (a) the Commissioner would be authorised to investigate the complaint under section 28(1); and (b) having regard to the nature and seriousness of the complaint, it may be resolved expeditiously without an investigation. 26 Notification of initial assessment (1) As soon as practicable after making a decision under section 23(1), the Commissioner must notify the complainant of the decision and the reasons for the decision. (2) In addition: (a) if the Commissioner decides not to deal with the complaint, the Commissioner: (i) must notify each of the following of the decision: (A) each responsible service provider in relation to the complaint; (B) the Chief Executive Officer of each responsible Agency in relation to the complaint; and (ii) may notify each responsible Minister in relation to the complaint of the decision if the Commissioner considers it appropriate to do so; and (iii) if the Commissioner decides not to deal with the complaint after initially commencing an investigation into the complaint – must give a report about the investigation to each person notified under subparagraph (i) or (ii); and (b) if the Commissioner decides to resolve the complaint without an investigation, the Commissioner must notify each person mentioned in paragraph (a)(i) of the decision and any action taken or proposed to be taken for resolving the complaint.

Part 5 Investigations Children's Commissioner Act 2013 14 (3) In this section: responsible Minister, in relation to the complaint, means the Minister who has administrative responsibilities for: (a) an Agency (a responsible Agency) directly or indirectly responsible for providing, or funding or administering the funding of, any required services in relation to the complaint; or (b) a responsible service provider in relation to the complaint. 27 Complaint referred to another person (1) This section applies if the Commissioner refers the complaint to another person (the referred authority) for investigation and resolution. (2) The referred authority must, as soon as practicable, notify the Commissioner: (a) whether the referred authority accepts the referral; and (b) if the referred authority accepts the referral – the result of the investigation and resolution. Part 5 Investigations 28 Commencing investigation (1) The Commissioner may investigate a complaint only if satisfied that the requirements of Part 4, Division 1 are met in relation to the complaint. (2) The Commissioner may investigate a matter on the Commissioner's initiative only if satisfied that the matter may form a ground for making a complaint (irrespective of when the matter occurred and whether or not a complaint was made in relation to the matter). (3) The Commissioner may make preliminary inquiries for subsection (2). (4) Before commencing an investigation, the Commissioner must notify each responsible service provider, and the Chief Executive Officer of each responsible Agency, of the following: (a) the Commissioner's decision to conduct the investigation; (b) details of the matter to which the investigation relates;

Part 5 Investigations Children's Commissioner Act 2013 15 (c) that the Agency and service provider may each make a written submission about the matter within a reasonable time specified in the notice. 29 Report of investigation (1) On completing the investigation, the Commissioner must: (a) prepare a report of the investigation; and (b) take any action the Commissioner considers appropriate in relation to the matter to which the investigation relates. (2) Without limiting what may be included in the report, the Commissioner may, in the report: (a) make specified findings about the matter to which the investigation relates; and (b) recommend a responsible service provider or responsible Agency take specified actions within a specified time in relation to that matter. (3) If the Commissioner proposes to make specified findings or recommend specified actions in the report about a responsible service provider or responsible Agency, the Commissioner must: (a) give the service provider or Agency a reasonable opportunity to comment on those findings or recommendations; and (b) take into account those comments in finalising the report; and (c) include a fair representation of those comments in the report. (4) For an investigation of a complaint, the Commissioner must, after finalising the report, notify the complainant of: (a) the result of the investigation; and (b) any action taken or proposed to be taken for resolving the complaint. (5) The Commissioner: (a) must give a copy of the report to each of the following: (i) each responsible service provider; (ii) the Chief Executive Officer of each responsible Agency; and

Part 5 Investigations Children's Commissioner Act 2013 16 (b) may give a copy of the report to a responsible Minister if the Commissioner considers it appropriate to do so. 29A Response to recommendations (1) If the Commissioner, in a report made under section 29, recommends that a responsible service provider or responsible Agency take a specified action, the service provider or Agency must, within the time specified by the Commissioner in the report, give the Commissioner a written notice specifying: (a) what the service provider or Agency has done, or proposes to do, to take the specified action; or (b) if the service provider or Agency does not propose to take the specified action, the reason why the service provider or Agency does not propose to do so. (2) The Commissioner may, if the Commissioner considers it appropriate to do so, give a copy of the notice under subsection (1) to: (a) if the report recommending the action that is the subject of the notice was made in relation to an investigation of a complaint – the complainant; or (b) the responsible Minister. (3) If the Commissioner is not satisfied with the responsible service provider or responsible Agency's notice under subsection (1), the Commissioner may give a report to the Minister including: (a) the report made under section 29 that contained the recommendation made to the service provider or Agency; and (b) the notice received from the service provider or Agency in response to the recommendation; and (c) the reason the Commissioner is not satisfied with the notice. (4) The Minister must table a copy of a report received under subsection (3) in the Legislative Assembly within 6 sitting days after receiving the report. (5) Despite subsection (4), if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so, the Commissioner may: (a) direct that all or part of the report must not be tabled; or

Part 6 Inquiries Children's Commissioner Act 2013 17 (b) direct that any information identifying individuals named in the report be removed from the version of the report that is tabled. (6) In deciding whether to make a direction under subsection (5): (a) the Commissioner must have regard to the views of the CEO and the Minister; and (b) the possibility that tabling all or part of the report may result in embarrassment to, or a lack of confidence in, the Territory Government or an Agency is irrelevant. (7) If the Commissioner decides to make a direction under subsection (5), the Commissioner must give the Minister written reasons for the decision as soon as practicable after making it. Part 6 Inquiries 30 Undertaking inquiry (1) Subject to subsection (2), the Commissioner: (a) may undertake an inquiry related to the care and protection of children in the Territory on the Commissioner's own initiative; and (b) must undertake such an inquiry if directed to do so by the Minister. (2) The Commissioner may only undertake the inquiry if satisfied that the inquiry is consistent with the objects of this Act and the Commissioner's functions. 31 Notification of inquiry The Commissioner must give each of the following persons written notice that an inquiry will be undertaken: (a) the Minister; (b) if the Commissioner considers that the inquiry may involve consideration of a matter that is the responsibility of another Minister – the other Minister; (c) if the Commissioner considers that the inquiry may involve consideration of a matter that is the responsibility of an Agency – the Chief Executive Officer of the Agency.

Part 6 Inquiries Children's Commissioner Act 2013 18 32 Procedures of inquiry The Commissioner may determine the procedures of the inquiry. 33 Report of inquiry (1) The Commissioner must give the Minister a report of the findings of the inquiry. (1A) Without limiting what may be included in the report, the Commissioner may, in the report: (a) make specified findings about the matter to which the inquiry relates; and (b) recommend one or more service providers or Agencies take specified actions within a specified time in relation to that matter. (1B) If the Commissioner proposes to make specified findings about or recommend specified actions to a service provider or Agency in the report, the Commissioner must: (a) give the service provider or Agency a reasonable opportunity to comment on those findings or recommendations; and (b) take into account those comments in finalising the report; and (c) include a fair representation of those comments in the report. (1C) If the Commissioner recommends in the report that a service provider or Agency take a specified action, the Commissioner must give the service provider or Agency a copy of the report. (2) The Minister must table the report in the Legislative Assembly within 6 sitting days after receiving it. (3) However, if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so, the Commissioner may: (a) direct that all or part of the report must not be tabled; or (b) direct that any information identifying individuals named in the report be removed from the version of the report that is tabled. (4) In deciding whether to make a direction under subsection (3): (a) the Commissioner must have regard to the views of the CEO and the Minister; and

Part 6 Inquiries Children's Commissioner Act 2013 19 (b) the possibility that tabling all or part of the report may result in embarrassment to, or a lack of confidence in, the Territory Government or an Agency is irrelevant. (5) If the Commissioner decides to make a direction under subsection (3), the Commissioner must give the Minister written reasons for the decision as soon as practicable after making it. 33A Response to recommendations (1) If the Commissioner, in a report made under section 33, recommends that a service provider or Agency take a specified action, the service provider or Agency must, within the time specified by the Commissioner in the report, give the Commissioner a written notice specifying: (a) what the service provider or Agency has done, or proposes to do, to take the specified action; or (b) if the service provider or Agency does not propose to take the specified action, the reason why the service provider or Agency does not propose to do so. (2) The Commissioner may give a copy of the notice to the Minister. (3) The Commissioner must, as soon as practicable after the time for giving notices under subsection (1) has expired, give a further report to the Minister specifying: (a) what has been done, or is proposed to be done, to take the actions recommended in the report made under section 33; and (b) if an action is not proposed to be taken, the reason why the action is not proposed to be taken. (4) The Minister must table a copy of the report received under subsection (3) in the Legislative Assembly within 6 sitting days after receiving the report. (5) Despite subsection (4), if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so, the Commissioner may: (a) direct that all or part of the report must not be tabled; or (b) direct that any information identifying individuals named in the report be removed from the version of the report that is tabled.

Part 7 Commissioner's other powers Children's Commissioner Act 2013 20 (6) In deciding whether to make a direction under subsection (5): (a) the Commissioner must have regard to the views of the CEO and the Minister; and (b) the possibility that tabling all or part of the report may result in embarrassment to, or a lack of confidence in, the Territory Government or an Agency is irrelevant. (7) If the Commissioner decides to make a direction under subsection (5), the Commissioner must give the Minister written reasons for the decision as soon as practicable after making it. Part 7 Commissioner's other powers 34 Access to child (1) For performing the Commissioner's functions, the Commissioner may request a person to allow the Commissioner to have contact with a child who is, or whom the Commissioner reasonably believes to be: (a) a vulnerable child; or (b) a witness for a matter to which an inquiry under Part 6 or a complaint or investigation relates. (2) The request must specify a reasonable time and place for the contact. 35 Access to information (1) For performing the Commissioner's functions, the Commissioner may, by written notice, request a person: (a) to give specified information to the Commissioner within a reasonable time specified in the notice; or (b) to attend before the Commissioner at a reasonable time and place specified in the notice: (i) to give information and answer questions about a specified matter; or (ii) to produce a specified thing; or (c) to communicate with the Commissioner in any other way about a specified matter at a reasonable time specified in the notice.

Part 8 Offences Children's Commissioner Act 2013 21 (2) If a person gives the Commissioner a thing in response to the request, the Commissioner: (a) may inspect it and make a copy of it; and (b) must return it to the person as soon as practicable. (3) For subsection (1), the Commissioner may require a person: (a) to give information on oath; or (b) to verify, on oath, a written statement of the person. Part 8 Offences 36 Failure to comply with request for access to child (1) A person commits an offence if: (a) the Commissioner makes a request of the person under section 34(1); and (b) the person engages in conduct that results in the person failing to comply with the request. Maximum penalty: 100 penalty units or imprisonment for 12 months. (2) It is a defence to a prosecution for an offence against subsection (1) if: (a) the defendant has a reasonable excuse; or (b) the child who is the subject of the request indicated that he or she did not wish to have the contact specified in the request. 37 Failure to comply with request for information (1) A person commits an offence if: (a) the Commissioner makes a request of the person under section 35(1); and (b) the person engages in conduct that results in the person failing to comply with the request. Maximum penalty: 100 penalty units or imprisonment for 12 months.

Part 8 Offences Children's Commissioner Act 2013 22 (2) It is a defence to a prosecution for an offence against subsection (1) if: (a) the defendant has a reasonable excuse; or (b) a certificate under subsection (3) or (4) has been given in relation to the request; or (c) a Supreme Court Judge has decided the defendant would be able to refuse to comply with the request on the ground of a privilege had the request been made in a criminal proceeding; or (d) a Supreme Court Judge has decided any benefits arising from complying with the request will be outweighed by the damage to the defendant's financial interests or privacy as a result of the compliance. (3) The Commissioner of Police may certify in writing that compliance with the request would: (a) prejudice the investigation of any unlawful conduct; or (b) disclose a confidential source of information in relation to the administration of a law; or (c) prejudice the effectiveness of a method or procedure in relation to the administration of a law; or (d) facilitate a person's escape from lawful custody; or (e) endanger the safety of a person. (4) The Administrator may certify in writing that compliance with the request would be contrary to the public interest. (5) Without limiting subsection (4), the Administrator may do so if the Administrator is satisfied the compliance would involve: (a) a disclosure of communications between the Administrator and the Executive Council or a member of the Executive Council; or (b) a disclosure of communications between one or more of the following: (i) a Minister of the Territory; (ii) a Minister of the Commonwealth; (iii) a Minister of a State or another Territory; or

Part 8 Offences Children's Commissioner Act 2013 23 (c) a disclosure of a deliberation or decision of: (i) the Executive Council or a committee of the Executive Council; or (ii) a committee of the Legislative Assembly formed to advise the Administrator or a Minister; or (iii) the Cabinet of the Territory or of the Commonwealth, a State or another Territory. (6) The person who receives the request may apply to a Supreme Court Judge for a decision about the application of subsection (2)(c) or (d) to the person. (7) The person bears the legal burden of proof for the application. (8) Subject to the decision of the Supreme Court Judge, the application must be made in accordance with the Rules of Court made under the Supreme Court Act 1979. (9) The Supreme Court Judge may make any orders necessary for the practical operation of section 35 including, for example, amending the notice. 38 Failure to comply with requirement to give information on oath (1) A person commits an offence if: (a) the Commissioner requires the person, under section 35(3) to: (i) give information on oath; or (ii) verify, on oath, a written statement of the person; and (b) the person engages in conduct that results in the person failing to comply with the requirement. Maximum penalty: 20 penalty units. (2) It is a defence to a prosecution for an offence against subsection (1) if the defendant has a reasonable excuse. 39 Misleading information or document (1) A person commits an offence if: (a) the person gives information to the Commissioner under this Act; and

Part 8 Offences Children's Commissioner Act 2013 24 (b) the person knows the information is misleading. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) A person commits an offence if: (a) the person gives a document to the Commissioner under this Act; and (b) the person knows the document contains misleading information. Maximum penalty: 200 penalty units or imprisonment for 2 years. (3) Subsection (2) does not apply if the person, when giving the information: (a) draws the misleading aspect of the document to the Commissioner's attention; and (b) to the extent to which the person can reasonably do so – gives the Commissioner the information necessary to remedy the misleading aspect of the document. (4) In this section: misleading information means information that is misleading in a material particular or because of the omission of a material particular. 40 Preventing or obstructing complaint A person commits an offence if, as a result of the person's conduct, another person: (a) is prevented from making a complaint; or (b) is obstructed in making a complaint. Maximum penalty: 100 penalty units or imprisonment for 12 months. 41 False complaint A complainant commits an offence if: (a) in making the complaint, the complainant makes a representation; and

Part 8 Offences Children's Commissioner Act 2013 25 (b) the complainant knows that the representation is false. Maximum penalty: 100 penalty units or imprisonment for 12 months. 42 Obstructing or improperly influencing investigation or inquiry (1) A person commits an offence if, as a result of the person's conduct, the conduct of an investigation or inquiry is obstructed. Maximum penalty: 100 penalty units or imprisonment for 12 months. (2) A person commits an offence if the person engages in conduct with the intention of improperly influencing the conduct of an investigation or inquiry. Maximum penalty: 200 penalty units or imprisonment for 2 years. (3) In this section: obstruct includes resist and hinder. 42A Reprisal against informant (1) A person commits an offence if: (a) the person intentionally takes an action against another person; and (b) the action is a detrimental action and the person is reckless in relation to that circumstance; and (c) the detrimental action is taken wholly or partly because the person believes the other person gave or disclosed information to the Commissioner. Maximum penalty: 100 penalty units or imprisonment for 2 years. (2) Strict liability applies to subsection (1)(c).

Part 9 Commissioner's reports Children's Commissioner Act 2013 26 (3) A person may be found guilty of an offence under this section even if the other person did not in fact give or disclose information to the Commissioner. (4) In this section: detrimental action means action causing, comprising or involving any of the following: (a) injury, damage or loss; (b) an adverse change in living conditions; (c) intimidation or harassment; (d) discrimination, disadvantage or adverse treatment in relation to employment; (e) dismissal from, or prejudice in, employment; (f) disciplinary proceedings; (g) other disadvantage or prejudice of any kind. Part 9 Commissioner's reports 43 Annual report and other reports (1) The Commissioner must: (a) by 31 October following the end of each financial year, prepare and give the Minister a report on the operation of this Act during that year; and (b) as required by the Minister, prepare and give the Minister a report mentioned in section 10(1)(g). (2) If the Commissioner considers it appropriate to do so, the Commissioner may also prepare and give the Minister a report about a matter relating to the performance of a function of the Commissioner. (3) Without limiting subsection (1) or (2), a report may contain particulars about a person's failure to comply with this Act. (4) The Minister must table each report mentioned in subsection (1) or (2) in the Legislative Assembly within 6 sitting days after receiving it.

Part 10 Disclosure of confidential information Children's Commissioner Act 2013 27 (5) The Commissioner may, for a report (the first report) mentioned in subsection (1) or (2), prepare and give the Minister a second report, on a confidential basis, about a matter to which the first report relates. (6) However, the Commissioner may do so only if the Commissioner considers aspects of the matter should not be publicly disclosed, having regard to: (a) the underlying principles; and (b) any action being taken by the Commissioner or anyone else. 44 Publication of reports (1) The Commissioner may publish all or part of a report made under this Act if the Commissioner is satisfied it is in the public interest to do so. (2) The Commissioner may give a person all or part of a report made under this Act if the Commissioner is satisfied it is in the interests of a person to do so. Part 10 Disclosure of confidential information 45 Disclosure of information to Commissioner generally (1) An officer of a public authority may disclose information to the Commissioner for this Act despite any restriction on the disclosure under a law of the Territory. (2) For subsection (1), an officer of a public authority includes any of the following: (a) the authority's principal officer; (b) a member of the authority; (c) a member of the staff of the authority; (d) a person employed or engaged by the authority. (3) This section has effect subject to section 37(2) to (9). 46 Direction by Commissioner not to disclose information (1) This section applies if a person is given a document by the Commissioner for this Act.

Part 10 Disclosure of confidential information Children's Commissioner Act 2013 28 (2) The Commissioner may direct the person not to disclose any information in the document except as specified in the direction. (3) A person commits an offence if: (a) the Commissioner gives the person a direction under subsection (2); and (b) the person engages in conduct that results in the person contravening the direction. Maximum penalty: 200 penalty units or imprisonment for 2 years. (4) It is a defence to a prosecution for an offence against subsection (3) if the defendant has a reasonable excuse. 47 Confidentiality (1) A person commits an offence if the person: (a) obtains information in the course of performing functions under this Act; and (b) either: (i) engages in conduct that results in the disclosure of the information; or (ii) uses the information. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) Subsection (1) does not apply if: (a) the person discloses the information: (i) for the administration of this Act; or (ii) with the consent of the person to whom the information relates; or (iii) for legal proceedings arising out of the operation of this Act; or (iv) for investigating a complaint about the care or protection of children under a law of the Territory, or a law of the Commonwealth, a State or another Territory; or

Part 11 Immunity Children's Commissioner Act 2013 29 (b) the information is otherwise available to the public. Note for subsection (2) In addition, under section 43BE of the Criminal Code, a person is not criminally responsible for conduct constituting an offence if the conduct is justified or excused by law. (3) A person must not be required in a proceeding to give evidence or produce a thing for a matter that came to the person's knowledge in exercising a power or performing a function under this Act. (4) A proceeding mentioned in subsection (3): (a) includes: (i) a proceeding of a court or tribunal; or (ii) any other proceeding conducted by a person having the power to take evidence on oath; but (b) does not include a proceeding for an offence alleged to have been committed by a person in exercising a power or performing a function under this Act. (5) In this section: exercise, of a power, includes the purported exercise of the power. performance, of a function, includes the purported performance of the function. Part 11 Immunity 48 Protection from liability – complainant and informants (1) A person acting in good faith in making a complaint or providing information to the Commissioner or a member of the Commissioner's staff: (a) does not incur any civil or criminal liability in relation to the making of the complaint or provision of information; and (b) cannot be held to have breached any code of professional etiquette or ethics, or to have departed from any accepted standard of conduct in relation to the making of the complaint or provision of the information; and (c) cannot be held to have contravened any Act in relation to the making of the complaint or provision of the information.

Part 12 Miscellaneous matters Children's Commissioner Act 2013 30 (2) A civil proceeding may be brought against a person for making a complaint or giving information for this Act only with the leave of the Supreme Court. (3) The Supreme Court may grant the leave only if it is satisfied there is a substantial ground for contending the person has not acted in good faith. (4) This section has effect: (a) whether the complaint made or information provided is true or false; and (b) whether the person provides the information at the request of the Commissioner or a member of the Commissioner's staff or on the person's own initiative; and (c) despite any duty of secrecy or confidentiality or any other restriction on the provision of information applicable to the person. 49 Protection from liability – Commissioner and staff (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act. (2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. (3) In this section: exercise, of a power, includes the purported exercise of the power. performance, of a function, includes the purported performance of the function. Part 12 Miscellaneous matters 50 Review of Care and Protection of Children Act 2007 (1) The Commissioner must: (a) review the operation and effectiveness of the Care and Protection of Children Act 2007 in so far as it relates to vulnerable children at least once every 3 years; and (b) prepare and give the Minister a report of the findings of the review.

Part 13 Transitional matters for Children's Commissioner Act 2013 Children's Commissioner Act 2013 31 (2) The Minister must table the report in the Legislative Assembly within 6 sitting days after receiving it. 51 Delegation (1) The Commissioner may, in writing, delegate to a person any of the Commissioner's powers or functions under this Act. (2) The Commissioner may do so only if satisfied the person has the appropriate qualifications or experience to exercise the power or perform the function. 52 Regulations The Administrator may make regulations under this Act. Part 13 Transitional matters for Children's Commissioner Act 2013 53 Definitions In this Part: amended Act means the Care and Protection of Children Act 2007 as in force immediately before the commencement day. commencement day means the day section 61 commences. 54 Continuation of ongoing matters Anything done or omitted to be done under the amended Act by, to, or in relation to the Children's Commissioner before the commencement day that is of ongoing effect becomes, on the commencement day, a thing done or omitted to be done by, to, or in relation to, the Commissioner under this Act. 55 Children's Commissioner (1) This section applies to the person holding office as the Children's Commissioner (the former office) under the amended Act immediately before the commencement day. (2) The person holds office as the Children's Commissioner under this Act on the conditions on which the person held the former office until the end of the person's term of appointment to the former office.

Part 13 Transitional matters for Children's Commissioner Act 2013 Children's Commissioner Act 2013 32 56 Acting Children's Commissioner An instrument under section 290 of the amended Act appointing a person to act in the office of Commissioner that is in force immediately before the commencement day continues in force as if it were an instrument under section 17 of this Act. 57 Investigations An investigation commenced under section 269 of the amended Act is taken to be an investigation commenced under section 28 of this Act if, before the commencement day, the Children's Commissioner: (a) has not completed the investigation; or (b) has not complied with the requirements of section 270 of the amended Act in relation to the investigation. 58 Complaints (1) A complaint made under section 263 of the amended Act is taken to be a complaint made under section 20 of this Act if any of the following apply: (a) the Children's Commissioner has not made a decision under section 266 of the amended Act in relation to the complaint before the commencement day; (b) the Children's Commissioner: (i) has made a decision under section 266 of the amended Act in relation to the complaint; but (ii) has not complied with the requirements of section 267 of the amended Act in relation to the decision before the commencement day; (c) the Children's Commissioner: (i) has decided under section 266 of the amended Act to investigate the complaint; but (ii) has not commenced the investigation before the commencement day;

Part 13 Transitional matters for Children's Commissioner Act 2013 Children's Commissioner Act 2013 33 (d) the Children's Commissioner: (i) has decided under section 266 of the amended Act to refer the complaint to another person for investigation; but (ii) has not made the referral before the commencement day. (2) A complaint referred to another person (the referred authority) for investigation under section 266 of the amended Act is taken to be a complaint referred to the referred authority under section 23 of this Act if, before the commencement day, the referred authority has not complied with the requirements of section 268 of the amended Act in relation to the complaint. 59 Access to information A request made of a person under section 271 or 272 of the amended Act is taken to be a request made under section 34 or 35 of this Act if, before the commencement day, the person has not complied with the request. 60 First annual report The first annual report given under section 43(1)(a) must cover: (a) the operation of Chapter 5, Part 5.1 of the amended Act from 30 June 2013 to the commencement day; and (b) the operation of this Act from the commencement day to 30 June 2014.

ENDNOTES Children's Commissioner Act 2013 34 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION Children's Commissioner Act 2013 (Act No. 33, 2013) Assent date 18 December 2013 Commenced 1 January 2014 (Gaz S72, 23 December 2013) Local Court (Related Amendments) Act 2016 (Act No. 8, 2016) Assent date 6 April 2016 Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34, 29 April 2016) Local Government Act 2019 (Act No. 39, 2019) Assent date 13 December 2019 Commenced pt 8.6: 1 July 2022; rem: 1 July 2021 (Gaz S27, 30 June 2021) Amending Legislation Statute Law Revision Act 2020 (Act No. 26, 2020) Assent date 19 November 2020 Commenced 20 November 2020 (s 2) Local Government Amendment Act 2021 (Act No. 15, 2021) Assent date 25 May 2021 Commenced 26 May 2021 (s 2) Children's Commissioner Amendment Act 2024 (Act No. 6, 2024) Assent date 9 April 2024 Commenced 1 May 2024 (Gaz S34, 30 April 2024)

ENDNOTES Children's Commissioner Act 2013 35 3 GENERAL AMENDMENTS General amendments of a formal nature (which are not referred to in the table of amendments to this reprint) are made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to: ss 1, 6, 7, 10, 37, 50 and 53. 4 LIST OF AMENDMENTS s 6 amd No. 39, 2019, s 370; No. 6, 2024, s 4 s 9 amd No. 6, 2024, s 5 s 10 amd No. 6, 2024, s 6 s 18 amd No. 8, 2016, s 45 s 29 amd No. 6, 2024, s 7 s 29A ins No. 6, 2024, s 8 s 33 amd No. 6, 2024, s 9 s 33A ins No. 6, 2024, s 10 s 37 amd No. 8, 2016, s 45 s 42 amd No. 6, 2024, s 11 s 42A ins No. 6, 2024, s 12 s 44 sub No. 6, 2024, s 13 s 48 amd No. 6, 2024, s 14 pt 14 hdg exp No. 33, 2013, s 83 pt 14 div 1 hdg exp No. 33, 2013, s 83 ss 61 – 68 exp No. 33, 2013, s 83 pt 14 div 2 hdg exp No. 33, 2013, s 83 ss 69 – 70 exp No. 33, 2013, s 83 pt 14 div 3 hdg exp No. 33, 2013, s 83 ss 71 – 73 exp No. 33, 2013, s 83 pt 14 div 4 hdg exp No. 33, 2013, s 83 ss 74 – 75 exp No. 33, 2013, s 83 pt 14 div 5 hdg exp No. 33, 2013, s 83 ss 76 – 78 exp No. 33, 2013, s 83 pt 14 div 6 hdg exp No. 33, 2013, s 83 ss 79 – 80 exp No. 33, 2013, s 83 pt 14 div 7 hdg exp No. 33, 2013, s 83 ss 81 – 82 exp No. 33, 2013, s 83 pt 14 div 8 hdg exp No. 33, 2013, s 83 s 83 exp No. 33, 2013, s 83

1 Children's Commissioner Act 2013

Vulnerable child: The Act creates an inclusive, enumerated concept of "vulnerable child" that triggers the Commissioner's jurisdiction (s 7). The list includes children subject to powers under Chapter 2 of the Care and Protection of Children Act 2007, children in youth justice or volatile‑substance orders (Youth Justice Act 2005; Volatile Substance Abuse Prevention Act 2005), children suffering mental illness or mental disturbance, children with disability, children who have sought or whose family have sought certain child‑related services (s 7(1)(a)-(f)), and young people who have left the CEO's care (s 7(2)). The Act permits regulations to add or exclude classes of child‑related services (s 7(3)). The definition therefore ties the Commissioner's remit to statutory categories in other Territory laws (s 6 defers definitions to other Acts).

Required services and responsible providers/Agencies: Complaints must be about "required services" (s 21). Those include any services relating to a child's care or wellbeing (s 21(2)(a)) and, for the category in s 7(1)(f), specified child‑related services (s 21(2)(b)). The Act uses the terms "responsible service provider", "responsible Agency" and "responsible Minister" to identify who must be notified and who must respond during investigations or to recommendations (see s 26(3) definition cross‑references; s 28(4) notice obligations; ss 29-29A; ss 33-33A).

Complaint/investigation/inquiry architecture: The Act creates a stepped pathway:

Any vulnerable child or adult acting for one may make a complaint to the Commissioner (s 20).
The Commissioner must make an initial assessment within 28 days, choosing to investigate, refer, resolve without formal investigation, or not deal with it on enumerated grounds (s 23; s 24; s 25).
The Commissioner may initiate investigations on the Commissioner's own initiative where a matter could ground a complaint, irrespective of when it occurred (s 28(2)). Preliminary inquiries are permitted (s 23(2); s 28(3)).
On completing an investigation the Commissioner must prepare a report, may make findings and recommendations and must notify the complainant and service providers and Agencies (s 29). A follow‑up written response is compulsory where recommendations are made (s 29A).
The Commissioner may conduct broader inquiries on the Commissioner's initiative or at ministerial direction (s 30), and must table inquiry reports unless a direction for non‑tabling is made for reasons the Commissioner considers to be in the public interest (s 33(2)-(5)). The Commissioner may set the inquiry procedures (s 32).

Compulsory access and information powers vs protections: The Commissioner may request access to a child (s 34) and may issue written notices for information, attendance or production of documents (s 35). The Commissioner may require evidence on oath (s 35(3)). Non‑compliance is a criminal offence (s 36-38), though defences include reasonable excuse and specified certificates or judicial review for claims of privilege or public interest (s 37(2)-(9); s 38(2)). At the same time, public authority officers may disclose information to the Commissioner despite other Territory law restrictions (s 45), and the Commissioner may direct recipients not to disclose documents provided (s 46). Confidentiality offences (s 47) carry penalties, and immunities are provided for good‑faith complainants and informants (s 48) and for the Commissioner and staff when acting in good faith (s 49).

Independence and executive interface: The Commissioner is protected from direction about how functions are performed and investigation priorities (s 11). Appointment procedures prioritise Aboriginal appointment where possible (s 9(2)-(3)) and require ministerial recommendation only where the Minister is satisfied of certain qualifications and commitment to the underlying principles, including understanding issues facing vulnerable Aboriginal children (s 9(4)-(5)). The Commissioner nevertheless has multiple interactions with Ministers and Agencies: the Minister may direct inquiries (s 30(1)(b)); the Commissioner must report to the Minister (s 10(1)(g); s 33(1)); certain directions not to table reports require written reasons and consultation with the CEO and Minister (s 29(5)-(7); s 33(3)-(7)).

Discretion and prioritisation: The Act embeds discretion at many decision points: whether to accept a late complaint (s 22(2)); whether to investigate or refer (s 23(1)); whether to resolve without investigation (s 25); whether to direct non‑publication of a report (ss 29(5), 33(3)); and whether to give copies of reports to Ministers (s 29(1)(b)). Those discretionary gateways are paired with procedural duties: notification requirements (s 26), opportunities for service providers to comment before adverse findings (s 29(3); s 33(1B)), and obligations to supply written responses to recommendations (ss 29A, 33A).

Criminal law overlay and judicial interface: Offences reference the Criminal Code principles (s 8). The Act creates routes for judicial adjudication of privilege and public interest balancing (s 37(6)-(9)), allows application to the Supreme Court for direction in relation to section 35 notices (s 35(9)), and constrains compellability of evidence derived in exercising the Act's powers (s 47(3)-(4)). The Supreme Court is also the gatekeeper for civil proceedings against complainants (s 48(2)-(3)).

Reporting, transparency and secrecy tensions: The Commissioner must produce annual and other reports and the Minister must table them (s 43). The Commissioner may prepare confidential companion reports and may decide not to table all or part of a report if satisfied it is in the public interest to do so (s 43(5)-(6); s 33(3)). The Act sets out factors to be considered in making non‑tabling directions (consultation with the CEO and Minister) but also states that embarrassment or lack of confidence in government is irrelevant (ss 29(6)(a)(b); s 33(4)(b)).

These core concepts determine who is within the Commissioner's reach, what tools the Commissioner may use, the procedural protections for those affected and the criminal and confidentiality constraints that shape Agency and service‑provider responses.

Primary direct subjects

Vulnerable children and young people: defined inclusively under s 7 and therefore the primary beneficiaries. The definition captures children under Chapter 2 of the Care and Protection of Children Act 2007, youth justice orders, volatile‑substance orders, those with mental illness or disability, persons who have sought specified child‑related services, and young people who have left CEO care (s 7(1)-(2)). The Commissioner's remit is activated by that statutory label.
Complainants and informants: a vulnerable child or an adult acting on their behalf may lodge complaints (s 20). Complainants receive protections: good‑faith complainants and informants are insulated from civil and criminal liability and from professional disciplinary sanction (s 48). However, a complainant making knowingly false representations is criminally liable (s 41).

Public authorities and service providers

Responsible service providers: the Act addresses failures of "responsible service providers" to provide required services or to provide services to the standard reasonably expected (s 21(1)). Service providers in scope include public authorities, bodies acting under arrangements with public authorities, operators of child‑related services and approved providers under the Education and Care Services National Law (NT), except those prescribed by regulation or courts (s 6 definition of service provider). Agencies and CEOs: the CEO of the Agency administering the Care and Protection Act is specifically identified (s 6), and the Act requires notification and engagement with Chief Executive Officers of responsible Agencies for investigations and complaints (s 28(4); s 26(2)(a)(i)).

Ministers and Parliament

Responsible Ministers: defined in relation to the administrative responsibility for a responsible Agency or service provider, and they may be notified or given reports and, in some circumstances, must table reports in the Legislative Assembly (s 26(3) definition; s 29A(3)-(4); s 33(2)).
The Minister: receives reports, may direct inquiries, and is the ministerial conduit for tabling (s 10(1)(g); s 30(1)(b); s 33(1)-(2); s 43(1)). The Commissioner may also consult and advise Ministers (s 10(1)(j)).

Legal system and courts

Supreme Court: the Act contemplates and requires judicial involvement for decisions about privilege and balancing interests under section 37(6)-(9) and section 35(9). The Supreme Court is gatekeeper for civil proceedings against complainants (s 48(2)-(3)). The Act also ties criminal responsibility to Part IIAA of the Criminal Code (s 8).

Other affected actors

Police: subsection 37(3) empowers the Commissioner of Police to certify that compliance with a request would prejudice police investigations or disclose confidential sources. That makes Police a potential check on disclosure powers.
The Administrator: subsection 37(4) and (5) authorises the Administrator to certify that compliance would be contrary to the public interest, including where executive communications or Cabinet deliberations would be disclosed.
Media and public: the Commissioner has discretion to publish reports or parts of reports (s 44), subject to confidentiality directions and public‑interest exceptions; publications therefore affect media coverage and public information.

Indirect effects and organisational consequences

Non‑government organisations that contract with public authorities to deliver child‑related services are in scope as service providers where acting for or under arrangements with public authorities (s 6). They therefore carry obligations to cooperate with investigations and to respond to recommendations (s 29A; s 33A).
Employers and staff of service providers: offences such as reprisal against informants (s 42A), preventing or obstructing complaints (s 40), and obstructing investigations (s 42) apply to persons who act on behalf of organisations; organisations may therefore need internal policies to avoid criminal exposure.
Funding and operational managers: service providers and Agencies will incur administrative cost for record retention, responding to information notices (s 35), participating in inquiries (s 31-33), and implementing recommendations (s 29A; s 33A).

Scale and distribution of burden

The operational burden and direct financial cost of complying with notices, preparing submissions, responding to recommendations and participating in inquiries fall on responsible service providers and Agencies.
The Commissioner and the Commissioner's staff, resourced by the Territory, bear the cost of investigations, inquiries, monitoring and reporting, and hold discretion over allocation of those resources (s 10; s 11 independence).

This distribution implies concentrated duties and potential costs for service providers and Agencies while the Commissioner's role and reporting infrastructure are funded and positioned within the Territory's governance structure.

Duties of the Commissioner

Accept and assess complaints: On receipt, the Commissioner must decide within 28 days whether to investigate, not deal with, refer, or resolve without investigation (s 23(1), (3)). The Commissioner may make preliminary inquiries (s 23(2)).
Investigate and initiate inquiries: The Commissioner may investigate complaints meeting the Part 4, Division 1 requirements (s 28(1)), and may investigate matters on the Commissioner's initiative where they may form grounds for complaint (s 28(2)). The Commissioner may also undertake broader inquiries on the Commissioner's own initiative or when directed by the Minister (s 30(1)).
Notify and consult: Before commencing an investigation the Commissioner must notify responsible service providers and the CEOs of responsible Agencies and specify that submissions can be made within a reasonable time (s 28(4)). If the Commissioner proposes adverse findings or recommendations, the provider or Agency must be given a reasonable opportunity to comment and those comments must be taken into account and fairly represented in the report (s 29(3); s 33(1B)).
Report and monitor implementation: Following investigations and inquiries the Commissioner must prepare and distribute reports to the relevant parties and may recommend actions with specified timeframes; the Commissioner must monitor implementation and may require written responses to recommendations (ss 29-29A; ss 33-33A).
Protect confidentiality and privacy: The Commissioner has powers to direct that parts of reports not be tabled in the Legislative Assembly or that identifying information be removed, where the Commissioner is satisfied on reasonable grounds that this is in the public interest (s 29(5); s 33(3)). When directing non‑publication the Commissioner must have regard to the views of the CEO and Minister and must provide written reasons to the Minister if a direction is made (s 29(6)-(7); s 33(4)-(5)).

Rights/duties of complainants and informants

Right to complain: A vulnerable child or an adult acting on their behalf may make a complaint orally or in writing (s 20(1)-(2)); oral complaints may be reduced to writing by the Commissioner (s 20(3)).
Time limit and exceptions: Complaints must ordinarily be made within one year of the matter arising, but the Commissioner may accept a late complaint if appropriate in the public interest or because of special circumstances (s 22).
Protection from liability: Persons acting in good faith when making complaints or providing information are shielded from civil or criminal liability, professional disciplinary sanction and certain secrecy obligations (s 48(1)). Civil proceedings against such persons require Supreme Court leave and the Court will grant leave only if there is a substantial ground to contend the person acted not in good faith (s 48(2)-(3)).

Duties of service providers and Agencies

Engagement and submissions: When notified of an impending investigation the service provider and Agency must be given a reasonable opportunity to make submissions; they should take that opportunity to comment, particularly where the Commissioner proposes adverse findings (s 28(4); s 29(3); s 33(1B)).
Response to recommendations: If the Commissioner recommends specified action in a report, the relevant service provider or Agency must, within the time specified, give the Commissioner a written notice describing what it has done or proposes to do, or if it does not propose to comply, why not (s 29A(1); s 33A(1)). The Commissioner may forward such notices to complainants or Ministers (s 29A(2)-(3); s 33A(2)-(3)).
Compliance with information and access notices: The Commissioner may issue written notices under s 35 to require information, attendance, production of things, or to communicate in other ways. Failure to comply with those notices is an offence (s 37), subject to defences and certifications under ss 37(2)-(5).

Confidentiality and non‑disclosure duties

Persons who receive documents from the Commissioner may be given directions not to disclose information except as specified; contravening such a direction is an offence (s 46). Persons obtaining information under the Act must not disclose or use it except for specified purposes, otherwise they commit an offence (s 47). There are statutory exceptions to the confidentiality offences for administration of the Act, consent, legal proceedings arising from the Act, investigating care and protection complaints under any jurisdictional law, or where the information is otherwise public (s 47(2)).

Criminal offences and related duties

Comply with requests: Persons must not engage in conduct that results in failure to comply with requests to access a child (s 36) or to provide information (s 37). It is a defence to show reasonable excuse or to rely on certificates or judicial decisions as permitted under s 37(2)-(4). Those receiving notices may apply to a Supreme Court Judge to test claims of privilege or balancing the benefits and harms of compliance (s 37(6)-(9)).
Avoid misleading conduct and obstruction: Knowingly giving misleading information or documents is a serious offence (s 39). Preventing or obstructing complaints, making false complaints, obstructing or improperly influencing investigations or reprisals against informants are all criminalised (ss 40-42A).

Obligations to Parliament and executive reporting

Annual and other reports: The Commissioner must prepare an annual report by 31 October following the end of each financial year on the operation of the Act (s 43(1)(a)), and other reports as required by the Minister (s 43(1)(b)). The Minister must table those reports within six sitting days (s 43(4)). When the Commissioner reports on inquiries, such reports are usually tabled unless the Commissioner directs otherwise for public‑interest reasons and provides written reasons (ss 33(2)-(5); s 29(5)-(7)).

Rights of the Commissioner and staff

Independence: The Commissioner is not subject to direction in relation to how functions are performed or the order of priority for investigations except where another Territory law provides otherwise (s 11). Staff are subject only to the direction of the Commissioner or other staff (s 19(2)). The Commissioner and staff enjoy immunity from civil or criminal liability for acts done in good faith in the exercise of powers or functions under the Act (s 49).

These duties and rights create a regulated space of compulsory information and access powers balanced by confidentiality protections, procedural fairness in investigations and statutory immunities for good‑faith participants.

Overview of criminal penalties

The Act creates multiple offences with significant maximum penalties expressed in penalty units and, in some cases, terms of imprisonment. The offences are enforceable under Territory criminal law and subject to the Criminal Code's general principles by application of Part IIAA (s 8 note).
Key penalties include:
- Failure to comply with a request for access to a child (s 36): maximum 100 penalty units or imprisonment for 12 months.
- Failure to comply with a request for information (s 37): maximum 100 penalty units or imprisonment for 12 months, subject to specified defences and certificates (s 37(2)-(5)).
- Failure to comply with an oath requirement (s 38): maximum 20 penalty units.
- Providing misleading information or documents (s 39): maximum 200 penalty units or imprisonment for 2 years.
- Preventing or obstructing complaint (s 40): maximum 100 penalty units or imprisonment for 12 months.
- False complaint (s 41): maximum 100 penalty units or imprisonment for 12 months.
- Obstructing or improperly influencing an investigation or inquiry (s 42): obstruction (s 42(1)) carries maximum 100 penalty units or imprisonment 12 months; improper influence (s 42(2)) carries maximum 200 penalty units or imprisonment for 2 years.
- Reprisal against informant (s 42A): maximum 100 penalty units or imprisonment for 2 years; subsection (2) imposes strict liability for the circumstance that the detrimental action was taken because the other person gave information to the Commissioner.

Enforcement mechanics and defences

Police certificates and executive certification: The Commissioner of Police may issue a certificate that compliance with a notice would prejudice police functions or endanger a person, and such a certificate provides a statutory defence to prosecution under s 37(3). The Administrator may certify that compliance would be contrary to the public interest and is a defence under s 37(4)-(5) for specified executive communications and deliberations.
Judicial route for contested notices: A person who receives a section 35 notice may apply to a Supreme Court Judge for a decision about privilege or the balancing test under s 37(6)-(9). The person bears the legal burden of proof for the application (s 37(7)). The Supreme Court Judge has power to make orders necessary for the practical operation of s 35, including amending the notice (s 37(9)).
Reasonable excuse: Several offences include a defence of "reasonable excuse" (s 36(2)(a); s 37(2)(a); s 38(2)), which introduces a fact‑sensitive inquiry for prosecutions.

Procedural enforcement and administrative consequences

Reporting and tabling: If the Commissioner is dissatisfied with a service provider or Agency's written response to recommendations, the Commissioner may report to the Minister with the report, the response and the reason for dissatisfaction (s 29A(3)). The Minister must table that report in the Legislative Assembly within six sitting days (s 29A(4)). Similarly, for inquiries, the Commissioner must give the Minister a report and the Minister must table it (s 33(1)-(2)), subject to any direction by the Commissioner under the public interest exceptions (s 33(3)-(5)).
Criminal prosecution: The Act creates direct criminal sanctions enforceable through standard criminal procedure. For prosecutions involving non‑compliance with information or access notices (ss 36-38), a defendant may rely on certificates, reasonable excuses or judicial determinations as statutory defences (s 37(2)-(9)).

Tension points in enforcement

Balance between compulsion and confidentiality: Statutory offences for non‑compliance are balanced by certificates from Police or the Administrator and by judicial review routes (s 37). At the same time, confidentiality obligations (s 47) limit disclosure and create statutory offences for improper disclosure. This creates operational uncertainty where investigators, service providers, and Agencies must navigate competing duties to comply with the Commissioner's requests and to protect sensitive executive or investigative material.
Strict liability exposure: s 42A(2) makes the third element of the reprisal offence strict liability, which lowers the mental element for that element and increases exposure for persons or organisations accused of reprisals.
Substantial penalties for misleading information: s 39 carries a maximum penalty of 200 penalty units or two years' imprisonment, which creates a high compliance incentive to ensure accuracy in responses and disclosures.

Accountability mechanisms

Parliamentary scrutiny: The Minister must table reports provided by the Commissioner in the Legislative Assembly within six sitting days (s 43(4); s 29A(4); s 33(2); s 33A(4)). The Commissioner must also give the Minister annual and other reports (s 43). The requirement to table promotes political and parliamentary oversight.
Procedural fairness obligations: Before adverse findings or recommendations are finalised the Act mandates that service providers and Agencies be given opportunity to comment and be fairly represented in the reports (s 29(3); s 33(1B)), which mitigates risk of unfair adverse public exposure and supports defensibility of recommendations that might lead to further enforcement or political action.

In summary, enforcement under the Act operates through a mix of criminal offences, administrative report and monitoring mechanisms, and parliamentary tabling obligations, with statutory defences and judicial routes for contested compulsion and privilege claims.

Dependence on external definitions and statutory schemes

Care and Protection of Children Act 2007: The Act relies heavily on the Care and Protection Act for key concepts. The definition of "child", "child is in the CEO's care", "child-related services", "exploitation", "harm", "family member" and "wellbeing of a child" are cross‑referenced to that Act (s 6). The Commissioner's monitoring function specifically targets administration of the Care and Protection Act insofar as it relates to vulnerable children (s 10(1)(c)). Section 50 requires the Commissioner to review the operation and effectiveness of the Care and Protection Act in relation to vulnerable children at least once every three years and to report to the Minister.
Youth Justice Act 2005 and Volatile Substance Abuse Prevention Act 2005: Children subject to orders under those Acts are expressly captured by the "vulnerable child" definition (s 7(1)(b)-(c)). That cross‑reference means service providers and agencies engaged with youth justice or volatile substance matters may come within the Commissioner's oversight.

Criminal law overlay

Criminal Code Part IIAA: Section 8 makes Part IIAA of the Criminal Code applicable to offences under this Act. That places the Act's offences within the Territory's general criminal responsibility framework, including defences and burden of proof principles.

Interactions with Ombudsman and other complaint channels

Ombudsman Act 2009: The Act defines "Ombudsman" by reference to the Ombudsman Act (s 6). The Commissioner must refer to the Ombudsman any complaint that relates to an act or omission of a police officer (s 24(3)). The Commissioner may not refer to the Ombudsman if authorised to investigate under s 28(1), except where s 24(3) requires referral. The Act also permits referral to any person with an established complaint mechanism (s 24(1)(c)).
Courts and Supreme Court Act 1979: The Act contemplates applications to a Supreme Court Judge for decisions on privilege and balancing under s 37(6)-(9). The application must be made in accordance with the Rules of Court under the Supreme Court Act 1979 (s 37(8)).

Executive executive communications and public interest certificates

Police and Administrator certificates: Section 37(3) empowers the Commissioner of Police to certify that compliance would prejudice investigations or reveal confidential sources; s 37(4) empowers the Administrator to certify compliance would be contrary to the public interest, with further specification in s 37(5) including communications between the Administrator and Executive Council, Cabinet deliberations, and ministerial communications across jurisdictions. These certificates supersede the Commissioner's compulsion power in specified circumstances and create interaction pathways between investigative and executive state functions.

Freedom of information and secrecy laws

The Act authorises an officer of a public authority to disclose information to the Commissioner despite any restriction under a Territory law (s 45(1)). That provision effectively overrides local secrecy rules for the purpose of the Act but is subject to s 37(2)-(9) protections and Police/Administrator certifications. The Act does not explicitly amend the Information Act or Freedom of Information legislation, but s 45 establishes a statutory exception that permits disclosure to the Commissioner notwithstanding other Territory restrictions.

Administrative law and procedural fairness

Natural justice obligations are embedded through specific demands: the Commissioner must give a reasonable opportunity to comment before making findings or recommendations that affect a provider or Agency and must fairly represent those comments in reports (s 29(3); s 33(1B)). Those statutory guarantees will interact with general administrative law principles if challenged.

Education and child‑care regulators

The definition of "service provider" includes operators and approved providers under the Education and Care Services National Law (NT) (s 6). This creates interaction with regulatory frameworks governing early childhood education and care at the Territory level and national law as applied in the NT.

Employment, industrial and privacy laws

The Act's confidentiality and immunity provisions intersect with privacy obligations and employment law. While s 47 criminalises unauthorised use or disclosure of information obtained under the Act, it permits disclosures for administration of the Act, for legal proceedings arising from the Act, and for investigating child protection complaints under other jurisdictional laws (s 47(2)). Employers and HR systems will need to reconcile those statutory confidentiality rules with workplace privacy policies and mandated reporting obligations under child protection and workplace law.

Parliamentary scrutiny

The requirement that the Minister table Commissioner reports (s 43(4); s 29A(4); s 33(2); s 33A(4)) creates an interlock with Parliamentary processes. The Commissioner may direct that parts of reports not be tabled on public‑interest grounds, but must provide written reasons to the Minister and consult the CEO and Minister when making that decision (s 29(5)-(7); s 33(3)-(5)). That produces an administrative tension at the interface of executive privilege, confidentiality and parliamentary transparency.

Overall, the Act is heavily interdependent with other Territory statutes, particularly the Care and Protection Act, the Youth Justice Act and executive instruments. Service providers and Agencies should treat the Commissioner's powers as an overlay to their existing obligations under child protection, youth justice, police investigations and executive confidentiality regimes.

Foundational dates and commencement

The Children's Commissioner Act 2013 (Act No. 33 of 2013) received assent on 18 December 2013 and commenced 1 January 2014 (Endnotes, list of legislation). The Act replaced or reconstituted earlier arrangements referenced in Part 13 transitional provisions.

Subsequent amending legislation (as recorded in the Act's endnotes)

Local Court (Related Amendments) Act 2016 (Act No. 8, 2016): Assent 6 April 2016; commenced 1 May 2016 (Endnotes: list of legislation).
Local Government Act 2019 (Act No. 39, 2019): Assent 13 December 2019; commencement of parts varied (Endnotes).
Statute Law Revision Act 2020 (Act No. 26, 2020): Assent 19 November 2020; commenced 20 November 2020.
Local Government Amendment Act 2021 (Act No. 15, 2021): Assent 25 May 2021; commenced 26 May 2021.
Children's Commissioner Amendment Act 2024 (Act No. 6, 2024): Assent 9 April 2024; commenced 1 May 2024 (Gaz S34, 30 April 2024).

Recorded section‑level amendments and insertions

The endnotes list the following section changes effected by the amending Acts and other formal amendments (Endnotes, List of Amendments):
- s 6 amended by No. 39, 2019, s 370; No. 6, 2024, s 4.
- s 9 amended by No. 6, 2024, s 5 (appointment provisions).
- s 10 amended by No. 6, 2024, s 6 (functions and powers).
- s 18 amended by No. 8, 2016, s 45 (oath of office administration).
- s 29 amended by No. 6, 2024, s 7 (reporting of investigations).
- s 29A inserted by No. 6, 2024, s 8 (response to recommendations).
- s 33 amended by No. 6, 2024, s 9 (inquiry reporting).
- s 33A inserted by No. 6, 2024, s 10 (response to recommendations for inquiries).
- s 37 amended by No. 8, 2016, s 45 (information request defences).
- s 42 amended by No. 6, 2024, s 11 (obstruction or improper influence).
- s 42A inserted by No. 6, 2024, s 12 (reprisal against informant).
- s 44 substituted by No. 6, 2024, s 13 (publication of reports).
- s 48 amended by No. 6, 2024, s 14 (protection from liability for complainants and informants).
The Interpretation Legislation Amendment Act 2018 made general formal amendments of a non‑substantive nature to several sections including ss 1, 6, 7, 10, 37, 50 and 53 (Endnotes, General Amendments).

Transitional provisions

The Act contains Part 13 transitional provisions (ss 53-60) to carry forward ongoing matters from the previous Care and Protection Act arrangements, preserve continuing acting appointments, investigations, complaints, access to information requests, and set the content scope for the first annual report (s 60). That ensured continuity on commencement.

Implications of recent amendments (not analytical of policy but mechanical)

The 2024 Amendment Act introduced two new explicit provisions creating mandatory written responses by Agencies and service providers to recommendations contained in investigation and inquiry reports (s 29A and s 33A). It also introduced the reprisal offence at s 42A and made changes to the Commissioner's functions, reporting and publication provisions (ss 9, 10, 29, 33, 44). The insertion of s 29A/s 33A creates a statutory timeline and reporting duty on respondents to investigations and inquiries, and the reprisal offence creates stricter protection for informants.

Record of expiry and repeals

The Endnotes record a number of expired parts originally contained in the enactment that have been expunged or expired (Endnotes, List of Amendments, entries on pt 14 and various divisions). These relate to transitional or sunset provisions from the original Act No. 33 of 2013.

Practical effect for practitioners

The amendment history demonstrates that the Act has been periodically adjusted to add procedural enforcement mechanisms (written responses), strengthen protections for informants (reprisal offence) and refine the Commissioner's reporting and publication powers. Practitioners should check the consolidated Act for current wording and consult the cited amending Acts and Gazette notices for commencement dates where necessary.

No recorded caselaw or judicial decisions are cited within the text of the Act itself. The Act does not list litigation or judicial interpretation. The following observations derive from the statute's litigation‑relevant structures and the routes the Act contemplates for judicial involvement.

Anticipated points of judicial involvement

Privilege and balancing under section 37: The Act expressly allows persons who receive section 35 notices or who are otherwise subject to compulsion to apply to a Supreme Court Judge about privilege or whether the benefits of compliance outweigh damage to financial interests or privacy (s 37(6)-(9)). The person bears the legal burden of proof (s 37(7)) and the application must follow the Rules of Court (s 37(8)). This is a statutory judicial gate for claims of privilege; practitioners can expect litigation over the scope of privilege, balancing tests, and the scope of certificates issued by Police or the Administrator.
Section 35(9) judicial orders: The Supreme Court Judge may make orders necessary for the practical operation of section 35, including amending notices. That gives courts an active supervisory role in how the Commissioner's information notices are framed and enforced.
Civil proceedings against complainants: The Act requires leave of the Supreme Court for civil proceedings brought against persons for making complaints or providing information (s 48(2)). The Court will grant leave only where it is satisfied there is a substantial ground for contending the person did not act in good faith (s 48(3)). This provides a judicial filter likely to generate contested interlocutory litigation over the "good faith" threshold.
Compellability and confidentiality: Section 47(3) states a person must not be required in a proceeding to give evidence or produce a thing for a matter that came to the person's knowledge in exercising powers under this Act, subject to an exception for alleged offences arising from the exercise of powers. That provision is likely to generate litigation about the scope of non‑compellability and exceptions, particularly where criminal prosecutions intersect with Commissioner's investigations or where third parties seek to subpoena Commissioner's materials.
Tabling and non‑publication directions: The Commissioner may direct that reports not be tabled if satisfied on reasonable grounds it is in the public interest to do so (s 29(5); s 33(3)). The Minister is the tabling channel and the Act requires the Commissioner to provide written reasons (s 29(7); s 33(5)). Judicial review of non‑tabling decisions would be accessible under administrative law grounds, though not explicitly referenced in the Act.

No reported cases in the statute

The Act text contains no citations to decisions and the Endnotes do not record any litigation outcomes. Practitioners should therefore undertake jurisdictional searches in Territory court databases and legal reporting services for any subsequent judicial interpretations of sections such as s 37, s 47 or s 48.

Practical litigation risks and common disputes

Disputes are most likely to arise from:
- contested section 35 notices and their reach into privileged communications;
- challenges to non‑compliance prosecutions where "reasonable excuse" or certification is relied upon;
- judicial supervision of amendments to notices and the practical scope of the Commissioner's investigatory powers;
- applications for leave to sue complainants alleged to have acted not in good faith;
- privacy and confidentiality battles over tabling of reports and redaction or non‑publication directions under ss 29 and 33.

For lawyers, the Act sets up predictable litigation nodes: privilege/compulsion (s 37), leave to sue (s 48), and non‑compellability (s 47(3)). Each contains statutory standards and allocated burdens of proof that will shape litigation strategy and evidentiary planning should disputes proceed to the Supreme Court.

Overlap and dependency on other Acts: Many key terms are defined by reference to other Territory statutes (s 6). Practitioners and service providers must not assume the Act is self‑contained; whether a child is within jurisdiction depends on definitions in the Care and Protection Act, the Youth Justice Act and others. Missing the cross‑reference will lead to scope errors when assessing whether the Commissioner's powers apply.
One‑year limitation and late exceptions: A complaint must be made within one year of the matter arising (s 22(1)). However the Commissioner may accept later complaints in the public interest or for special circumstances (s 22(2)). The statutory one‑year limit is rigid in ordinary circumstances; clients should take care to place complaints within that window or prepare evidence supporting late acceptance.
Commissioner's broad discretion with limited judicial review guards: The Commissioner may decide not to deal with, refer, resolve or investigate complaints (s 23-25) using many enumerated grounds in s 24 including resource considerations and proceedings before courts or tribunals. That discretion is broad and may be difficult to challenge. A decision to decline in the name of resources is an operational reality for service providers and complainants.
Certificates can block disclosure even where the Commissioner has a compulsion power: Police or Administrator certificates under s 37(3)-(5) can operate as statutory defences to non‑compliance prosecutions. Agencies, Police and the Administrator can therefore create lawful blocks to the Commissioner's requests; providers should plan for conflicting statutory duties.
Multiple reporting obligations and potential political exposure: The Commissioner can require a written response to recommendations (s 29A; s 33A) and can escalate unsatisfactory responses to the Minister for tabling in the Legislative Assembly (s 29A(3)-(4)). A service provider's decision not to implement recommendations risks public parliamentary scrutiny.
Confidentiality vs. public interest publication discretion: The Commissioner may direct that reports not be tabled or that identifying information be removed (s 29(5); s 33(3)), but must consider the CEO and Minister's views and provide reasons (s 29(6)-(7); s 33(4)-(5)). The Act states that embarrassment to government is irrelevant (s 29(6)(b); s 33(4)(b)), but the Commissioner holds substantial discretion. Parties should note the Commissioner's right to publish under s 44, which may occur even where an Agency believes confidentiality should apply.
Strict liability element in reprisal offence: Section 42A(2) makes strict liability apply to the element that the detrimental action was taken because the other person gave or disclosed information to the Commissioner (s 42A(1)(c)), lowering the prosecutorial burden on causation for that element. Employers should be cautious when disciplining staff who have engaged with the Commissioner.
Severe penalties for misleading information: Providing materially misleading information or documents carries a maximum of 200 penalty units or two years' imprisonment (s 39). The threshold is "knowingly" misleading information, creating significant exposure for intentional misrepresentation.
Confidentiality offences have narrow exceptions: Section 47 criminalises disclosure or use of information obtained under the Act with limited exceptions, such as administration of the Act or consent (s 47(2)). Care is required when using or sharing Commissioner‑obtained information.
Civil proceedings against complainants require Supreme Court leave: While s 48 protects good‑faith complainants, civil suits are not impossible , they require Supreme Court leave and the Court will intervene only where the claimant can show a substantial ground that the complainant did not act in good faith (s 48(2)-(3)). Complainants must therefore be advised of both protection and possible litigation exposure.
Interaction with privilege and court orders: Persons served with an information notice can apply to a Supreme Court Judge (s 37(6)-(9)). That process places a legal burden on the recipient to justify withholding, and the Rules of Court apply. This is a procedural gotcha for recipients who do not litigate promptly.
Administrative continuity obligations: Transition provisions preserve ongoing matters from the previous scheme (Part 13). That preserves past commitments but creates complexity where older processes or expectations differ from the current Act.
Who is a "service provider" is wide: The Act captures public authorities and other persons acting under arrangement with public authorities, and operators/approved providers under national law (s 6 “service provider”). Organisations may be uncertain whether they fall inside; prescriptive regulations can add or remove prescribed public authorities from the definition (s 6). If you are an NGO contracted to deliver services, assume you may be in scope until advised otherwise.
Independent staff management: Commissioner's staff are subject only to the Commissioner (s 19(2)). Agencies that second staff must be mindful that seconded employees will not be controlled by their usual reporting lines for work under the Commissioner's authority.

These practical pitfalls should inform organisational policies, legal advice to clients and tactical litigation planning.

For Service Providers and Agencies

Early triage and recordkeeping: Maintain robust records about child services, referrals, decisions and communication, with dates and responsible officers. The Commissioner's investigations will focus on whether required services were provided and whether standards reasonably expected were met (s 21). Accurate contemporaneous records reduce risk under s 39 (misleading information) and equip providers to respond to notices under s 35 and submissions required under s 28(4).
Design a response plan for s 35 notices: Establish a legal and operational process to receive and assess written notices under s 35. Identify a responsible officer to coordinate responses, retain counsel for privilege assessments and prepare to apply urgently to the Supreme Court under s 37(6)-(9) if necessary. The Act allows persons to apply to a Supreme Court Judge and they bear the legal burden for privilege claims (s 37(7)-(9)).
Timely submissions and engagement during investigations and inquiries: When the Commissioner notifies of an investigation or inquiry, provide a reasoned written submission within the reasonable time specified (s 28(4)). If the Commissioner proposes adverse findings or recommendations you must be given a reasonable opportunity to comment, and your comments must be taken into account and fairly represented (s 29(3); s 33(1B)).
Prepare to comply with recommendation response obligations: Where the Commissioner recommends specified actions, the service provider or Agency must give a written notice within the time specified in the report outlining what has been or will be done, or, if refusing, the reasons for non‑compliance (s 29A(1); s 33A(1)). Establish an approval chain and decision‑making process to deliver this notice before the deadline.
Confidentiality and information handling: Train staff on s 47 obligations. Limit dissemination of material obtained under the Act and ensure disclosure only for permitted purposes (administration of the Act, consent, legal proceedings arising out of the Act, or investigating care and protection matters under other laws) (s 47(2)). If given a direction not to disclose materials provided by the Commissioner, comply unless there is a reasonable excuse; contravention is an offence (s 46(3)).
Whistleblower‑safe practices: Adopt policies to prevent reprisals and to protect informants, in light of s 42A. Avoid disciplinary or detrimental actions that could be alleged as reprisals; document legitimate performance concerns unrelated to Commissioner's disclosures.
Internal complaint handling: Maintain and demonstrate an established mechanism to investigate and resolve complaints locally. The Commissioner may refer complaints to another person who has an established mechanism (s 24(1)(c)). Having a credible internal process reduces probability of external escalation.
Legal clearance for disclosures: If compelled to provide documents that might involve Executive communications, consult legal counsel and consider the Administrator certificate regime (s 37(4)-(5)) and Police certificates (s 37(3)). Prepare legal grounds for privilege or public interest balancing.

For the Commissioner and Commissioner's staff

Procedural rules and timeliness: Adhere to statutory timeframes (initial assessment within 28 days s 23(3); prepare annual report by 31 October s 43(1)(a)) and ensure notifications to complainants, service providers and responsible Ministers are issued as required (s 26).
Fairness in investigations and inquiries: Before proposing adverse findings, provide a reasonable opportunity for comment and fairly represent comments in final reports (s 29(3); s 33(1B)). Keep contemporaneous records of consultations and reasons for decisions not to investigate or to refer (s 24).
Publication and confidentiality balancing: When considering non‑tabling directions under ss 29(5) and 33(3), document the public interest basis, obtain CEO and Minister views as relevant (s 29(6); s 33(4)), and produce written reasons if the direction is made (s 29(7); s 33(5)).
Use of compulsion powers: Exercise section 35 notices carefully. Anticipate and allow for judicial applications under s 37(6)-(9). When requiring evidence on oath, ensure witnesses are informed of the legal basis and potential defences.

For complainants and legal advisers acting for complainants

Time your complaint: Lodge complaints within one year of the matter arising where possible (s 22(1)). If late, prepare evidence to support public interest or special circumstances for the Commissioner to accept the late complaint (s 22(2)).
Prepare complainant statements carefully: Avoid knowingly false representations. Section 41 criminalises false complaints. Keep records and contemporaneous evidence where possible.
Understand protections and limits: Complainants acting in good faith are protected from civil or criminal liability and professional discipline (s 48(1)), but civil claims can still be made by leave of the Supreme Court where a substantial ground exists to contest good faith (s 48(2)-(3)).

For Ministers and Parliamentary officers

Expect tabling obligations: Ministers must table Commissioner reports within six sitting days (s 43(4); s 29A(4); s 33(2)). Prepare briefing materials and consider whether to consult the Commissioner regarding non‑tabling directions where public‑interest redactions are proposed.
Executive certificates and confidentiality: Use the Administrator and Police certificate powers under s 37 cautiously and with clear rationale when seeking to prevent disclosure. Ensure proper documentation to defend the decision and be ready for legal review.

General risk management and training

Conduct cross‑agency workshops to align understanding of definitions, notice procedures, privilege, confidentiality, the reprisal offence, and the Commissioner’s reporting powers.
Regularly review contracts with NGOs and other contracted service providers to ensure clarity on cooperation obligations with Commissioner investigations and access requests.
Maintain a ready legal escalation path for urgent Supreme Court applications (s 37(6)-(9)) and for advice on receipt of s 35 notices.

Following these steps reduces legal and reputational risk and improves the capacity of organisations and individuals to respond promptly and lawfully to Commissioner's powers and reporting requirements.

Children's Commissioner Act 2013

Plain English Summary

Deep Dive

What it does

Current sections

Children's Commissioner Act 2013

Source text: opening excerpt

1 Children's Commissioner Act 2013

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply