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