Commissioner for Children and Young People Act 2016
In ForceTAS
Jurisdiction
Tasmania
Act Number
2 of 2016
Collection
act
Plain English Summary
4/10 complexity
This Act creates an independent Commissioner for Children and Young People, sets out appointment, staffing and committee arrangements, and gives the Commissioner powers to advocate, research, investigate, request and sometimes compel information, and publish reports to Parliament. It affects children and young people (including detainees), state agencies, service providers and information‑sharing entities because they may be required to cooperate, provide data, and follow confidentiality and reporting rules; penalties and procedural safeguards are specified for compelled disclosures and adverse comments in reports.
This Act establishes the Office of the Commissioner for Children and Young People, defines the Commissioner’s appointment and tenure, sets out the Commissioner’s remit, powers and limits, creates mandatory committees, prescribes reporting and publication duties, provides information-sharing and compulsory-information powers, imposes confidentiality and obstruction offences, and sets transitional and consequential provisions. Key mechanical changes introduced by the instrument are:
Creation of a statutory office appointed by the Governor on the Minister’s recommendation (s 5(1); Sch 1). The Commissioner holds office for a specified term not exceeding five years and may be reappointed for one further term (Sch 1 cl 1).
A set of enumerated functions and powers focused on advocacy, research, policy influence, monitoring and review of wellbeing for children and young people, and an express role as advocate for detainees under the Youth Justice Act 1997 (s 8; s 10).
Compulsory information powers enabling the Commissioner to require persons to provide information, answer questions or produce documents, including identifying details of children where specifically required (s 11(2)(a); s 12(1)), subject to defined privilege and other exceptions (s 12(2)).
Information sharing rules allowing the Commissioner to receive and provide non-identifying information with entities defined under the Children, Young Persons and Their Families Act 1997, with statutory protections for good-faith providers (s 16).
Confidentiality obligations on persons performing functions under the Act, with defined exceptions (s 18), and a statutory protection that the Commissioner cannot be compelled to disclose information obtained under the Act in court proceedings (s 17(3)).
Current sections
Direct links to the current provisions in Commissioner for Children and Young People Act 2016.
The provisions of this Act commence on a day or days to be proclaimed.
3
Principles to be observed
3 Principles to be observed
(1) The Commissioner or any other person performing a function, or exercising a power, under this Act, must –
(a) do so according to the principle that the wellbeing and best interests of children and young people are paramount; and
(b) observe any relevant provisions of the United Nations Convention on the Rights of the Child.
(2) Subject to subsection (1) , this Act is to be administered according to the following principles:
(a) children are entitled to live in a caring and nurturing environment and to be protected from harm and exploitation;
(b) the interests and needs of children and young people who are disadvantaged for any reason or vulnerable should be given special regard and serious consideration;
(c) the contributions made by children to the community should be recognised for their value and merit;
(d) the views of children on all matters affecting them should be given serious consideration and taken into account;
(e) parents, families and communities have the primary role in safeguarding and promoting the wellbeing of children and should be supported in carrying out their role.
4
Interpretation
4 Interpretation
In this Act, unless the contrary intention appears –
child means a person who has not attained the age of 18 years;
Commissioner means the person appointed under section 5(1) ;
identifying details includes name, date of birth, street address, contact details, photographs and other prescribed information but does not include any information that is subject to any lawful claim or right of privilege;
wellbeing, in relation to children and young people, includes the care, development and education, and the physical, emotional and psychological health and safety, of children and young people;
young person means a person, who has not attained the age of 18 years, as determined by the Commissioner in accordance with section 8(4) .
Part 2
Office of Commissioner for Children and Young People
Part 2 Office of Commissioner for Children and Young People
Division 1
Office of Commissioner for Children and Young People
Division 1 Office of Commissioner for Children and Young People
5
Commissioner for Children and Young People
5 Commissioner for Children and Young People
(1) The Governor, on the recommendation of the Minister, is to appoint a person as the Commissioner for Children and Young People.
(2) Schedule 1 has effect in respect of the Commissioner and his or her appointment.
6
Staff
6 Staff
(1) The Commissioner may make arrangement with the Head of a State Service Agency for a State Service officer or State Service employee employed in that Agency to be made available to the Commissioner to enable the Commissioner to perform his or her functions under this Act or any other Act.
(2) Subject to and in accordance with the State Service Act 2000 , a person may be employed for the purpose of enabling the Commissioner to perform his or her functions under this Act or any other Act.
(3) Officers and employees made available under subsection (1) , or employed under subsection (2), may serve the Commissioner in any capacity in conjunction with State Service employment.
7
Annual plan
7 Annual plan
The Commissioner is to, no later than 31 March in each year –
(a) prepare an annual plan describing the Commissioner's proposed program of work and activities for the following financial year; and
(b) provide a copy of the annual plan to the Minister.
Division 2
Functions and powers of Commissioner
Division 2 Functions and powers of Commissioner
8
General functions of Commissioner
8 General functions of Commissioner
(1) The Commissioner has the following functions:
(a) advocating for all children and young people in the State generally;
(c) researching, investigating and influencing policy development into matters relating to children and young people generally;
(d) promoting, monitoring and reviewing the wellbeing of children and young people generally;
(e) promoting and empowering the participation of children and young people in the making of decisions, or the expressing of opinions on matters, that may affect their lives;
(f) assisting in ensuring the State satisfies its national and international obligations in respect of children and young people generally;
(g) encouraging and promoting the establishment by organisations of appropriate and accessible mechanisms for the participation of children and young people in matters that may affect them;
(h) such other functions as are prescribed.
(2) If the Commissioner advises the Minister under this Act or any other Act, the Commissioner must also provide the advice to any other Minister who administers the department, Agency or legislation that is the subject of the advice.
(3) Unless otherwise specified, the Commissioner must act independently, impartially and in the public interest when performing a function, or exercising a power, under this Act or any other Act.
(4) For the purpose of performing any function, or exercising any power, the Commissioner may determine when a child is considered a young person for the purpose of the function or power.
9
Minister may request Commissioner to investigate or review
9 Minister may request Commissioner to investigate or review
(1) The Commissioner must, if requested to do so by the Minister, undertake an investigation or review into such decision or recommendation made, or such act or omission, under any Act as is specified in the request of the Minister.
(a) may require the Commissioner to undertake an investigation or review that is outside the jurisdiction of the Commissioner as set out in section 14 ; and
(b) may not –
(i) set the terms of the investigation or review; or
(ii) state what is to be considered as part of the investigation or review; or
(iii) otherwise specify how the investigation or review is to be held; and
(c) does not affect the impartiality of the Commissioner or his or her ability to determine the procedure for the investigation or review.
(3) If the Commissioner prepares a report under section 20 in respect of an investigation or review performed by the Commissioner at the request of the Minister, the Commissioner must provide a draft of the report to the Minister.
(4) Within 21 days after receiving a draft report under subsection (3) , the Minister may do either or both of the following:
(a) provide the Commissioner with written comments or feedback on the draft report;
(b) make a written request that the Commissioner consult on the draft report with a person specified in the written request.
(5) If the Minister has taken action under subsection (4) in respect of a draft report under subsection (1) , the Commissioner must include in the finalised report, if requested to do so by the Minister –
(a) a copy of the written comments or feedback of the Minister provided under subsection (4) (a), if any; and
(b) a copy of the written request of the Minister under subsection (4) (b), if any.
10
Commissioner to act as advocate under Youth Justice Act 1997
10 Commissioner to act as advocate under Youth Justice Act 1997
(1) The Commissioner has the following additional functions when acting as an advocate for a detainee under the Youth Justice Act 1997 :
(a) listening to, and giving voice to, the concerns and grievances of the detainee and facilitating the resolution of those concerns and grievances;
(b) seeking information about, and facilitating access by the detainee to, support services appropriate to the needs of the detainee;
(c) assessing whether the detainee has been provided with adequate information about his or her rights;
(d) assessing, in the Commissioner's opinion, the physical and emotional wellbeing of the detainee.
(2) In acting as an advocate for a detainee within the meaning of the Youth Justice Act 1997 , the Commissioner –
(a) must, within reason, seek and take into account the views and wishes of the detainee before –
(i) asking a staff member of the detention centre, within the meaning of that Act, a question about the detainee; or
(ii) inspecting, or taking extracts or copies of, a document that relates to the detainee; or
(iii) including information about the detainee in a report related to the Commissioner's function as an advocate under that Act; and
(b) must –
(i) preserve, as far as practicable in the circumstances, the privacy of the detainee; and
(ii) respect the wishes of any detainee who does not wish to communicate with the Commissioner; and
(c) may accept, and consider, the detainee's views or wishes provided to the Commissioner in any form the Commissioner thinks fit.
11
General powers of Commissioner
11 General powers of Commissioner
(1) The Commissioner has the power to do all things necessary, or convenient, to be done in connection with the performance of his or her functions, and the exercise of his or her powers, under this or any other Act.
(2) Without limiting subsection (1) , the Commissioner may –
(a) require any person to provide information, answer questions, or produce documents, so far as may be relevant to the performance of the functions, or the exercise of the powers, of the Commissioner or the administration of this Act; and
(b) require information and data for the purposes of –
(i) collating, studying, interpreting and maintaining information in relation to the wellbeing of children and young people in the State; and
(ii) identifying and monitoring trends in respect of the wellbeing of children and young people in the State; and
(c) investigate, and make recommendations in respect of, the systems, policies and practices of organisations, government or non-government, that provide services that affect children and young people; and
(d) investigate, and make recommendations in respect of, the effects of any legislation, proposed legislation, documents, government policies, or practices or procedures, or other matters relating to the wellbeing of children and young people; and
(e) advise and make recommendations, in relation to the rights and wellbeing of children and young people, to Ministers, State authorities and other organisations; and
(f) provide information to other organisations in accordance with this Act or any other Act; and
(g) report publicly on the wellbeing of children and young people in the State; and
(h) exercise such other powers as are prescribed.
(3) In performing a function, or exercising a power, under this Act, the Commissioner –
(a) may regulate any proceedings held under this Act in any manner he or she considers appropriate; and
(b) is not bound by the rules of evidence but may inform himself, or herself, on any matter in any manner the Commissioner thinks fit; and
(c) is not required to hold a hearing as part of an investigation or review, or as part of the performance of any other function, under this Act; and
(d) may investigate, or review, a matter in any manner he or she considers appropriate; and
(e) may hold an investigation, or review, under this Act in public or in private.
12
Power to compel information
12 Power to compel information
(1) If necessary for the performance of a function, or the exercise of a power, the Commissioner may require a person to do any one or more of the following:
(a) to provide information in the format, or manner, specified by the Commissioner, including information that contains identifying details of a child or young person if specifically required by the Commissioner;
(b) to answer questions whether orally or in writing;
(c) to produce documents as specified in the requirement.
(2) A person must comply with a requirement of the Commissioner under subsection (1) unless, to do so, would require the person to provide information, answer questions, or produce documents –
(a) in respect of which there is a lawful claim or right of privilege; or
(b) that contain information, communicated to a medical professional in confidence, relating to the physical, mental or psychological health of a person; or
(c) that may incriminate the person in an offence.
Penalty: Fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.
(3) In addition to any penalty imposed on a person under subsection (2) , a court may make an order requiring the person to provide information, answer questions, or produce documents, to the Commissioner in accordance with the order.
(4) A person complying with a requirement of the Commissioner under subsection (1) or of a court order under subsection (3) cannot, by virtue of complying with that requirement –
(a) be held to have breached any code of professional etiquette or ethics; or
(b) be taken to have departed from acceptable standards of professional conduct; or
(c) be taken to have contravened any confidentiality requirements of any Act.
13
Power to establish committees
13 Power to establish committees
(1) The Commissioner –
(a) must establish, as a committee, the Children and Young People Consultative Council; and
(b) must establish, as a committee, the Children and Young People Advisory Council; and
(c) may establish other committees as the Commissioner considers appropriate to assist the Commissioner in the performance of his or her functions or the exercise of his or her powers.
(2) If the Commissioner establishes a committee under subsection (1)(c) , the Commissioner is to specify the purpose, or function, the committee is to fulfil.
(3) Schedule 2 has effect with respect to the members and meetings of committees established under subsection (1) .
14
Certain matters not within jurisdiction of Commissioner
14 Certain matters not within jurisdiction of Commissioner
(1) Unless otherwise specified, the Commissioner does not have the authority to investigate or review –
(a) a specific decision made in respect of an individual case or specific circumstances; or
(b) information, or a document, that is subject to a lawful claim or right of privilege; or
(c) the application of the systems, policies and practices of the Director of Public Prosecutions, or the Police Service, in specific circumstances to determine whether or not to institute, or continue with, proceedings for an offence in those circumstances; or
(d) the application of the systems, policies and practices of the Police Service in specific circumstances to determine whether or not to apply for a police family violence order, or a family violence order, under the Family Violence Act 2004 in those circumstances; or
(2) Subsection (1) (a) does not prevent the Commissioner from –
(a) providing a child, or his or her family, with information about relevant government and non-government programs or services; or
(b) referring a child, or his or her family, to such programs or services; or
(c) investigating or otherwise dealing with any matter affecting the wellbeing of children generally when it is raised through a matter relating to a specific child.
15
Delegation
15 Delegation
The Commissioner may delegate any of his or her functions and powers under this Act, other than this power of delegation.
Division 3
Information Management
Division 3 Information Management
16
Information sharing
16 Information sharing
(1) In this section –
non-identifying information means information in relation to a person that does not –
(a) contain identifying details for the person; or
(b) enable the identity of the person to be ascertained or discovered.
(2) The Commissioner may do either or both of the following:
(a) provide an information-sharing entity with non-identifying information relating to a child or young person;
(b) request non-identifying information relating to a child or young person from an information-sharing entity.
(3) An information-sharing entity may, on its own initiative, provide the Commissioner with non-identifying information relating to a child or young person if it is lawful to do so.
(4) A person providing information under this section –
(a) cannot, by virtue of providing the information, be held to have breached any code of professional etiquette or ethics, to have departed from any accepted standards of professional conduct or to have contravened any Act; and
(b) to the extent that he or she has acted in good faith, incurs no civil or criminal liability in respect of providing the information.
17
Commissioner may, but is not required to, divulge information
17 Commissioner may, but is not required to, divulge information
(1) Unless otherwise specified, the Commissioner may divulge to a relevant authority all, or any part of, information provided to him or her –
(a) if the Commissioner considers it appropriate in the circumstances; and
(b) if to do so would be lawful in the circumstances.
(3) A person who is, or has been, the Commissioner may not, in proceedings before a court, or a person authorised by law to hear, receive or examine evidence, be compelled to disclose information acquired in his or her capacity as Commissioner, being information that was disclosed or obtained under this Act.
(4) For the purposes of this section, a relevant authority may include –
(c) a Minister or a Secretary of a department; and
(d) any other prescribed person or prescribed organisation.
18
Confidentiality of information
18 Confidentiality of information
(1) A person who is, or has been, engaged in the performance of a function, or exercise of a power, under this Act must not, directly or indirectly, record, dispose of or make use of information obtained in the course of performing the function or exercising the power except –
(a) for the purposes of, or in connection with, performing functions, or exercising powers, under this Act or any other Act; or
(b) with the written consent of –
(i) the person to whom the information relates; and
(ii) if the person to whom the information relates is a child, his or her legal guardian; or
(c) the person reasonably believes that the use, or disclosure, of the information is necessary –
(i) to lessen or prevent a serious threat to an individual's health, safety or welfare; or
(ii) to lessen or prevent a serious threat to public health or public safety; or
(d) in other prescribed circumstances.
Penalty: Fine not exceeding 50 penalty units.
(2) Subsection (1) does not apply to the disclosure of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
(3) If information collected under this Act is lawfully disclosed, this section does not prevent the further disclosure of the information for the purpose for which the disclosure was made.
Part 3
Reporting
Part 3 Reporting
19
Annual report
19 Annual report
(1) Within 3 months after the end of each financial year, the Commissioner must provide, to the Minister and the Secretary, a report on the performance of the powers, and the exercise of the functions, of the Commissioner during that financial year.
(2) Before 30 November in each year, the Commissioner must cause a copy of the annual report for the preceding financial year to be laid before each House of Parliament.
(3) If the Commissioner is unable to comply with subsection (2) for any reason other than that a House of Parliament is not sitting, the Commissioner must cause to be laid before each House of Parliament a statement specifying –
(a) the reasons for the failure to comply with that subsection; and
(b) an estimate of the day by which a copy of the annual report will be ready to be laid before each House of Parliament.
(4) If the Commissioner is unable to comply with subsection (2) because a House of Parliament is not sitting, the Commissioner must –
(a) forward a copy of the annual report to the Clerk of that House; and
(b) within the next 7 sitting-days of that House, cause a copy of the annual report to be laid before that House.
20
Other reports
20 Other reports
(1) The Commissioner may, at any time, prepare a report on –
(a) any investigation, review or research conducted in the performance of the Commissioner's functions; or
(b) any other matter arising in the performance of those functions; or
(c) any other matter or issue relating to children that the Commissioner considers appropriate.
(2) A report under subsection (1) may include recommendations relating to –
(a) changes to written law, draft law, policy, practice or procedure; or
(b) the taking of any other action that the Commissioner considers appropriate to safeguard and promote the wellbeing of children.
(3) The Commissioner must provide the Minister with a copy of the report under subsection (1) within 7 days after the report is finalised.
(4) The Commissioner may cause a copy of a report under subsection (1) to be laid before each House of Parliament no sooner than 7 sitting-days after a copy of the report has been given to the Minister in accordance with subsection (3) .
21
Adverse comments in reports
21 Adverse comments in reports
Despite anything in this Part, the Commissioner must not include a comment in a report that is adverse to a person unless the Commissioner has –
(a) notified the person in writing of his or her intention to make the comment; and
(b) allowed the person at least 15 working days to make representations to the Commissioner in respect of the comment before the report is finalised.
22
Publication of reports
22 Publication of reports
(1) The Commissioner –
(a) must publish a version of the report, or such parts of the report as the Commissioner considers appropriate, in a form that is suitable for children unless the Commissioner considers that it is not appropriate to do so; and
(b) may publish the report, including a version of the report to be published under paragraph (a) , in any manner the Commissioner considers appropriate.
(2) Despite subsection (1) , if the Commissioner intends to lay a report before both Houses of Parliament, the Commissioner must not publish the report until after the report has been laid before both Houses of Parliament.
Part 4
Miscellaneous
Part 4 Miscellaneous
23
Obstruction
23 Obstruction
A person must not obstruct, or hinder, a person who is performing a function, or exercising a power, under this Act.
Penalty: Fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.
24
Protection from liability
24 Protection from liability
(1) The Commissioner, and any other person, performing a function or exercising a power under this Act does not incur any personal liability, civil or criminal, in respect of any act done or omitted to be done in good faith in the performance or exercise, or purported performance or exercise, of that function or power.
(2) No civil or criminal proceedings are to be brought against the Commissioner, or any other person performing a function or exercising a power under this Act, in respect of an act or omission referred to in subsection (1) without the leave of the Supreme Court, and the Supreme Court is not to give leave under this section unless it is satisfied that there is substantial ground for the contention that the person to be proceeded against has acted, or omitted to act, in bad faith.
25
Regulations
25 Regulations
(1) The Governor may make regulations for the purposes of this Act.
(2) Without limiting the generality of subsection (1) , the regulations may –
(a) provide for, and in relation to, the conduct of investigations, reviews and other proceedings held under this Act; and
(b) provide for the prohibition, or restriction, of the publication or disclosure of information collected under this Act.
(1) The Commissioner holds office for such term, not exceeding 5 years, as is specified in the instrument of appointment.
(2) A person who has been appointed to the office of Commissioner may from time to time be reappointed for a single further term, not exceeding 5 years, as may be specified in the instrument of appointment.
2. Terms of appointment
(1) The Commissioner holds office on such conditions relating to matters not provided for by this Act as are specified in his or her instrument of appointment.
(2) The Commissioner must not, except in so far as authorised to do so by the Governor –
(a) hold any office of profit, or trust, other than the office of Commissioner; or
(b) engage in paid employment outside the duties of the office of Commissioner.
(3) Subject to subclause (2) , if the holder of an office under an Act is required, by or under that Act, to devote the whole of his or her time to the duties of that office, that requirement does not prevent the holder from holding that office in conjunction with the office of Commissioner.
(1) The remuneration and allowances payable to the Commissioner are to be specified in his or her instrument of appointment or otherwise determined by the Governor.
(1) A person appointed as Commissioner is taken to vacate the office of Commissioner if –
(a) he or she dies; or
(b) he or she resigns the office by written notice to the Governor; or
(c) he or she is removed from office under subclause (2) .
(2) The Governor, by written notice to the Commissioner, may remove the Commissioner from office if the Commissioner –
(a) is, without good reason, absent from the office of Commissioner for an extended period of time; or
(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors, or makes an assignment of his or her remuneration or estate for their benefit; or
(c) is convicted –
(i) in Tasmania of any crime or offence punishable by imprisonment for a term of 12 months or longer; or
(ii) elsewhere of any crime or offence which, if committed in Tasmania, would be punishable by imprisonment for a term of 12 months or longer; or
(iii) of an offence against this Act; or
(d) is unable to perform adequately, or competently, the duties of the office; or
(e) has neglected to perform the duties of the office; or
(f) is guilty of misconduct of such a nature that the Governor feels the Commissioner is unsuitable to continue to hold the office.
5. Defect does not invalidate appointment
An appointment of a person as Commissioner is not invalid merely because of a defect or irregularity in relation to that appointment.
(1) A committee established under this Act consists of 5 or more persons as determined by the Commissioner.
(2) The Commissioner may appoint a member of a committee as the chairperson of the committee.
2. Children and Young People Advisory Council
In appointing the members of the Children and Young People Advisory Council, the Commissioner must have regard to the desirability of having as members of the committee persons with a range of experience and backgrounds, including persons –
(a) from non-government organisations and community organisations; and
(b) from groups which represent the diversity of the Tasmanian population; and
(c) employed by government agencies concerned with the health, welfare, care, protection, development or legal rights of children; and
(d) employed in a private practice that is relevant to the health, welfare, care, protection, development or legal rights of children.
3. Children and Young People Consultative Council
In appointing the members of the Children and Young People Consultative Council, the Commissioner must ensure that the members –
(a) are children; and
(b) are from groups which represent the diversity of the Tasmanian population.
4. Conditions of appointment
(1) A member of a committee is entitled to be paid such remuneration and allowances as are specified in his or her instrument of appointment or as are otherwise determined by the Commissioner.
(2) A member of a committee holds office for the term, and on the conditions, determined by the Commissioner.
5. Conduct of committee
(1) Meetings of a committee are to be held in accordance with any written directions given by the Commissioner.
(2) Subject to subclause (1) and except as otherwise provided in this Act, a committee may regulate the calling of, and the conduct of business at, its meetings.
(3) A committee may obtain assistance, information and advice from any person it thinks fit.
6. Disclosure of interests
(1) If –
(a) a member of a committee or the partner of a member of a committee has a direct or indirect interest in a matter being considered, or about to be considered, by the committee; and
(b) the interest could conflict with the proper performance of the member's duties in relation to the consideration of the matter –
the member, as soon as practicable after the relevant facts come to the member's knowledge, must disclose the nature of the interest to a meeting of the committee.
Penalty: Fine not exceeding 10 penalty units.
(2) A disclosure under subclause (1) is to be recorded in the minutes of the meeting and, unless the committee otherwise determines, the member who made the disclosure must not –
(a) be present during any deliberation of the committee in relation to the matter; or
(b) take part in any decision of the committee in relation to the matter.
(3) Subclause (1) does not apply in respect of an interest that arises only because the member of a committee also holds an office under the State Service Act 2000 .
SCHEDULE 3 - Savings and Trans
SCHEDULE 3 - Savings and Transitionals
SCHEDULE 3 - Savings and Trans SCHEDULE 3 - Savings and Transitionals
The person holding the office of Commissioner for Children under the former Act immediately before the commencement of Division 1 of Part 2 of this Act –
(a) is taken to be appointed as Commissioner for Children and Young People under section 5(1) of this Act, subject to the same terms and conditions of his or her appointment under the former Act; and
(b) is eligible for reappointment under this Act for a single further period, not exceeding 5 years, as may be specified in the instrument of appointment.
3. Annual report
(1) In this clause –
relevant financial year means the financial year in which section 19 commences.
(2) The first annual report of the Commissioner under section 19 is to include a report on –
(a) the performance of the powers, and the exercise of the functions, of the Commissioner under this Act during the relevant financial year; and
(b) the performance of the powers, and the exercise of the functions, of the Commissioner under the former Act during the relevant financial year.
4. Committees
(1) The Children and Young Persons Consultative Council established under the former Act is taken, on and after the day on which section 13(1)(a) of this Act commences, to be the Children and Young People Consultative Council established under that section.
(2) The Children and Young Persons Advisory Council established under the former Act is taken, on and after the day on which section 13(1)(b) of this Act commences, to be the Children and Young People Advisory Council established under that section.
(3) A member of a committee taken to be established under subclause (1) or (2) remains a member of the committee so established, on the same terms and conditions as specified in his or her instrument of appointment to the committee under the former Act.
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Commissioner for Children and Young People Act 2016 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
3 Principles to be observed
3 Principles to be observed
(1) The Commissioner or any other person performing a function, or exercising a power, under this Act, must –
(a) do so according to the principle that the wellbeing and best interests of children and young people are paramount; and
(b) observe any relevant provisions of the United Nations Convention on the Rights of the Child.
(2) Subject to subsection (1) , this Act is to be administered according to the following principles:
(a) children are entitled to live in a caring and nurturing environment and to be protected from harm and exploitation;
(b) the interests and needs of children and young people who are disadvantaged for any reason or vulnerable should be given special regard and serious consideration;
(c) the contributions made by children to the community should be recognised for their value and merit;
(d) the views of children on all matters affecting them should be given serious consideration and taken into account;
(e) parents, families and communities have the primary role in safeguarding and promoting the wellbeing of children and should be supported in carrying out their role.
4 Interpretation
4 Interpretation
In this Act, unless the contrary intention appears –
child means a person who has not attained the age of 18 years;
means the person appointed under ;
Mandatory institutional obligations: annual plan preparation (s 7), annual and ad hoc reporting to the Minister and to Parliament (ss 19-22), and a requirement to establish two named committees, including a consultative council made up of children (s 13; Sch 2).
Statutory limitations on jurisdiction: the Commissioner generally cannot investigate individual case decisions or privileged material, certain prosecutorial and policing decisions, or prescribed other matters (s 14), although the Minister may require investigations or reviews, including outside the Commissioner’s ordinary jurisdiction (s 9).
Enforcement and protections: penalties for non-compliance with compulsory information requirements, confidentiality breaches, and obstruction (ss 12(2); 18(1); 23); and statutory protection from personal liability for acts done in good faith with leave of the Supreme Court required for proceedings against the Commissioner (s 24).
Mechanically, the Act centralises an independent advocacy and review function with information-compulsion tools, reporting obligations and specific safeguards for privilege and confidentiality. It balances investigatory reach against carve-outs for privilege and operational limits, while embedding procedural duties (annual plan, reports) and a formal consultative structure with both adult advisory members and a council composed of children.
Main concepts
The Act organises around a small set of concepts that determine who the Commissioner can act for, what information can be used, and the legal and operational constraints on action.
Child and young person: “child” is a person under 18; “young person” is defined as a person under 18 as determined by the Commissioner for a given function (s 4). The Act also defines “wellbeing” to include development, education, and physical, emotional and psychological health and safety (s 4). The Commissioner has discretion to determine when a child is a young person for any purpose (s 8(4)), which is operationally significant for eligibility to participate in consultative processes and for protections attached to “young person” status.
Paramountcy and rights framework: the Commissioner and others exercising powers must act on the principle that wellbeing and the best interests of children and young people are paramount, and must observe relevant provisions of the UN Convention on the Rights of the Child (s 3(1)). Section 3(2) lists subsidiary principles,special regard for disadvantaged or vulnerable children, recognition of children’s contributions, and support for parental and community roles,which frame the Commissioner’s remit.
Functions and independence: the Commissioner’s core functions are advocacy, research and policy influence, monitoring and reviewing wellbeing, promoting participation of children, and assisting the State to meet national and international obligations (s 8(1)). The Commissioner must act independently, impartially and in the public interest unless otherwise specified (s 8(3)). The Act both grants independence and creates mechanisms for Ministerial engagement (s 9).
Power to compel and limits: the Commissioner may require information and documents relevant to functions (s 11(2)(a); s 12(1)). Compulsion can include identifying details of children where specifically required (s 12(1)(a)). Legal privilege, confidential medical communications, and incrimination are explicit statutory exceptions to compulsion (s 12(2)(a)-(c)). Non-compliance carries a penalty up to 100 penalty units and daily continuing penalties (s 12(2)) and the court may order compliance (s 12(3)).
Information management and disclosure: the Act distinguishes non-identifying information (s 16(1)) from identifying information. The Commissioner can exchange or request non-identifying information with information-sharing entities (s 16(2)-(3)). The Commissioner may, but is not obliged to, divulge information to relevant authorities if appropriate and lawful (s 17(1)), and may refer matters to specified oversight bodies such as the Ombudsman or Custodial Inspector (s 17(2)). Persons providing information in good faith are protected from civil or criminal liability (s 16(4)(b)).
Confidentiality and publication: persons engaged under the Act are prohibited from using or disclosing information obtained in the course of functions except for specified purposes, with exceptions for consent, safety threats, or as otherwise prescribed (s 18(1)). Statistical or de-identified disclosure is excluded from the prohibition (s 18(2)). The Commissioner has duties to publish reports in child-appropriate form (s 22(1)(a)), but must not publish certain reports before laying them before both Houses (s 22(2)).
Institutional mechanisms: the Commissioner must establish two named committees,the Children and Young People Consultative Council composed of children and the Children and Young People Advisory Council of diverse adult members (s 13; Sch 2). Schedule 2 specifies minimum membership, appointment considerations, disclosure of interests and penalties for non-disclosure (Sch 2 cl 1-6).
These concepts combine to create a statutory architecture that privileges child-centred principles and gives the Commissioner investigatory and information powers, while embedding procedural protections (privilege, confidentiality, reporting and parliamentary laying rules) and Ministerial interaction mechanisms.
Who it affects
The Act affects a defined set of public bodies, private persons and children, and produces both direct obligations and indirect behavioural incentives.
The Commissioner: the primary affected office-holder. Appointed by the Governor on the Minister’s recommendation (s 5(1)), subject to Sch 1 for terms, conditions, remuneration, removal and vacation of office (Sch 1 cl 1-5). The Commissioner's functional independence is specified (s 8(3)), but subject to reporting and Ministerial requests.
State authorities and agencies: multiple provisions impose duties or create interactions with State authorities. The Commissioner may require information from any person so far as relevant to functions (s 11(2)(a); s 12(1)), meaning government departments, agencies, statutory bodies and contractors providing services to children will be likely recipients of information requirements. Section 6 permits the Commissioner to make arrangements with heads of State Service Agencies to have State Service officers made available to the Commissioner or to employ persons under the State Service Act to serve the Commissioner (s 6(1)-(2)), which implicates human resourcing arrangements across government.
Information-sharing entities: the Act expressly contemplates entities defined in the Children, Young Persons and Their Families Act 1997 may share non-identifying information with the Commissioner (s 16). Such entities,likely including child-protection services and intake services,are given statutory immunity for good-faith provision of non-identifying information (s 16(4)).
Police, DPP and legal aid: the Act carves out certain matters from the Commissioner’s jurisdiction (s 14(1)(c)-(e)). The Commissioner generally cannot investigate decisions made in specific individual cases or the application of systems, policies and practices of the Director of Public Prosecutions or Police Service in specific circumstances relating to decisions to prosecute or to apply for family violence orders (s 14(1)(a), (c)-(d)). Section 14(1)(e) explicitly excludes Tasmania Legal Aid legal advice in specific circumstances, reflecting an amendment (noted in Sch references).
Children and young people directly: the Act sets the Commissioner’s advocacy remit for “all children and young people in the State generally” (s 8(1)(a)), and contains specific functions when acting for detainees under the Youth Justice Act 1997 (s 10). It mandates a consultative council composed of children (Sch 2 cl 3), giving children a statutory route to participate. Reporting obligations include publishing versions of reports suitable for children (s 22(1)(a)).
Ministers and Parliament: Ministers (and Secretaries) receive annual plans and reports (s 7; s 19(1)), and the Commissioner must provide copies of reports to Ministers (s 20(3)). Parliament receives laid copies of the annual report and may be the vehicle for public accountability (s 19(2), s 20(4)). The Minister can request investigations (s 9) and may give comments on draft reports within 21 days with the Commissioner obliged to include ministerial comments in finalisation if requested (s 9(3)-(5)).
Private organisations and practitioners: private providers, non-government organisations and private practice professionals whose services affect children are within the Commissioner’s investigatory reach on systems, policies and practices (s 11(2)(c)-(d); s 8(1)(g)). Committee appointment criteria contemplate private practitioners (Sch 2 cl 2(d)).
Individuals who interact with the Commissioner: people who refuse to comply with an information requirement face penalties (s 12(2)). Persons who obstruct or hinder persons performing functions under the Act risk penalties (s 23). Persons engaged under the Act are constrained by confidentiality duties (s 18).
Who pays: administrative costs are borne by government (resourcing, staff secondments under s 6, remuneration under Sch 1 cl 3), while agencies face compliance costs responding to information requests, producing de-identified data, or participating in inquiries. Who decides: the Commissioner decides how to exercise most functions (s 8(3), s 11(3)), subject to Ministerial request powers (s 9), regulation making by the Governor (s 25), and the Governor’s appointment and removal powers (s 5; Sch 1 cl 4). Behavioural changes expected: agencies will need internal processes for privilege assessment, information extraction/de-identification, and engagement with the Commissioner’s committees and reporting cycles; private providers may face systemic scrutiny rather than individual-case investigation but are exposed to recommendations and public reports.
Key duties and rights
The Act sets specific duties on the Commissioner, on persons who provide information to the Commissioner, and on government bodies, and also establishes rights and procedural protections.
Duties of the Commissioner
Prepare and deliver an annual plan describing proposed work for the next financial year to the Minister by 31 March (s 7).
Provide an annual report within three months after the end of each financial year to the Minister and Secretary, and cause a copy to be laid before each House of Parliament by 30 November each year (s 19(1)-(2)). Transitional provisions modulate the first annual report (Sch 3 cl 3).
Provide the Minister with copies of any report arising from investigations, reviews or research within seven days of finalisation (s 20(3)), and may lay such reports before Parliament, subject to a seven sitting-day delay after giving the Minister a copy (s 20(4)).
Publish versions of reports suitable for children, unless not appropriate (s 22(1)(a)), and otherwise manage publication in an appropriate manner (s 22(1)(b)), with a restriction that reports intended for Parliament not be published before being laid before both Houses (s 22(2)).
Establish two committees as mandatory bodies: the Children and Young People Consultative Council and the Children and Young People Advisory Council, and may create further committees (s 13(1)); specify purpose for any additional committees (s 13(2)); and comply with membership and meeting rules in Schedule 2 (s 13(3)).
Powers of the Commissioner
Broad power to do all things necessary or convenient for performance of functions (s 11(1)).
Specific investigatory and review powers, including requiring persons to provide information, answer questions or produce documents relevant to functions (s 11(2)(a); s 12(1)).
Authority to collect and collate information and data on the wellbeing of children and young people (s 11(2)(b)), investigate systems, policies and practices of organisations (s 11(2)(c)), and report publicly (s 11(2)(g)).
Power to regulate proceedings, not be bound by rules of evidence, hold investigations in public or private, and not be required to hold hearings (s 11(3)(a)-(e)).
Duties on other persons and rights
Persons must comply with requirements for information, questions or documents unless compliance would require disclosure of privileged material, confidential medical communications, or would be self-incriminating (s 12(2)). Non-compliance attracts a monetary penalty (s 12(2)) and potential court orders for compliance (s 12(3)).
Persons providing non-identifying information to the Commissioner or information-sharing entities are protected from civil or criminal liability to the extent they act in good faith and cannot be held to have breached professional etiquette or ethics by providing such information (s 16(4)(a)-(b)).
Persons engaged in performing functions under the Act are bound by a confidentiality duty, with uses and disclosures limited to performance of duties, with consent, to prevent serious threats to individual or public health and safety, or in other prescribed circumstances (s 18(1)(a)-(d)). Breach carries a penalty not exceeding 50 penalty units (s 18(1) penalty).
The Commissioner may divulge information to relevant authorities where appropriate and lawful (s 17(1)); the Commissioner cannot be compelled in court to disclose information acquired under the Act (s 17(3)), which is a protective right for the office.
Ministerial interactions and rights
The Minister has the right to request the Commissioner undertake investigations or reviews (s 9(1)), including investigations outside the Commissioner’s ordinary jurisdiction (s 9(2)(a)). However, the Minister may not set terms or specify how the investigation is to be held (s 9(2)(b)), and any advice given by the Commissioner to the Minister must also be given to other Ministers with relevant administrative responsibilities (s 8(2)).
Where the Commissioner prepares a report at the Minister’s request, the Minister receives a draft and may provide comments or request consultation within 21 days (s 9(3)-(4)). The Commissioner must include ministerial comments or requests for consultation in the final report if requested (s 9(5)).
Protections for the Commissioner and staff
Protection from personal civil or criminal liability for acts done in good faith in the performance or purported performance of functions (s 24(1)). Proceedings against the Commissioner require leave of the Supreme Court, and leave is only to be granted where the Court is satisfied there is substantial ground for contention of bad faith (s 24(2)).
Procedural safeguards for persons criticised
The Commissioner must not include an adverse comment in a report about a person unless that person has been notified in writing and given at least 15 working days to make representations before the report is finalised (s 21). This creates a procedural opportunity to be heard before adverse findings are finalised.
Regulatory and administrative duties
The Governor may make regulations for conduct of investigations and for prohibition or restriction of publication or disclosure of information collected under the Act (s 25). The administration of the Act is presently assigned to the Minister for Human Services and the Department of Health and Human Services until administrative arrangements are otherwise made (s 26).
Together, these duties and rights construct a framework where the Commissioner has significant investigatory reach and reporting duties, while other parties have defined protections (privilege, confidentiality, procedural fairness on adverse comments) and statutory immunities for good-faith cooperation.
Penalties and enforcement
The Act combines administrative coercion powers with civil penalties, court enforcement mechanisms and restrictions on the circumstances in which civil or criminal proceedings may be brought against the Commissioner or those acting under the Act.
Compulsion and penalties
Failure to comply with a Commissioner’s requirement to provide information, answer questions or produce documents is subject to a monetary penalty: a fine not exceeding 100 penalty units and, for continuing offences, a further fine not exceeding 10 penalty units for each day during which the offence continues (s 12(2)). The Act also empowers a court to make orders compelling compliance with a Commissioner’s requirement (s 12(3)), creating both administrative and judicial enforcement paths.
Obstruction of a person performing a function or exercising a power under the Act attracts a similar penalty: up to 100 penalty units and, for continuing obstruction, up to 10 penalty units per day (s 23).
Breaches of the confidentiality duty in s 18(1) carry a penalty of up to 50 penalty units (s 18(1) penalty). Schedule 2 imposes a penalty not exceeding 10 penalty units for failure by a committee member to disclose a relevant conflict of interest (Sch 2 cl 6(1)).
Court enforcement and evidence rights
Beyond pecuniary penalties, s 12(3) allows a court to order a person to provide information, answer questions, or produce documents to the Commissioner, and non-compliance with such an order is enforced by the court’s usual coercive powers. The Act’s provision that a person complying with a Commissioner requirement cannot be held to have breached codes of professional etiquette or contravened confidentiality requirements to the extent of acting in good faith (s 12(4)(a)-(b)) provides statutory protection for witnesses who comply.
The Commissioner is not bound by the rules of evidence and may inform himself or herself in any manner considered fit when performing functions or exercising powers (s 11(3)(b)). The Commissioner may regulate proceedings and may choose private or public modes for investigations (s 11(3)(a),(e)); this raises evidentiary flexibility for the office but does not alter courts’ evidentiary regimes when matters proceed to judicial determination.
Protections and limitations on proceedings against the Commissioner
The Commissioner and persons performing functions under the Act do not incur personal civil or criminal liability for acts or omissions done in good faith in the performance or purported performance of functions (s 24(1)). The Act bars civil or criminal proceedings against the Commissioner or persons acting under the Act without leave of the Supreme Court; the Court is instructed not to give leave unless satisfied there is substantial ground for the contention that the person acted in bad faith (s 24(2)). This is a high procedural threshold that reduces the prospect of litigation against the office, while preserving judicial oversight for allegations of bad faith.
Information sharing and referrals
The Commissioner may divulge information to relevant authorities when appropriate and lawful (s 17(1)), and may refer matters to the Ombudsman or Custodial Inspector where appropriate (s 17(2)). Such referrals are lawfully enabled and are non-obligatory; the Commissioner exercises discretion based on appropriateness and legality. Section 17(3) gives the Commissioner protection from compellability to disclose information acquired under the Act in court, which is an enforcement-relevant immunity for the office.
Regulations and publication control
The Governor may make regulations that, inter alia, provide for the conduct of investigations and prohibit or restrict publication or disclosure of information collected under the Act (s 25). Regulatory instruments thus can create further enforcement mechanisms or confidentiality exceptions, subject to standard statutory rule-making processes.
Consequences and enforcement incentives
The mixture of compulsory information powers backed by monetary penalties and court enforcement, statutory immunities for good-faith providers of information, and protections for the Commissioner from litigation (subject to leave and a bad-faith threshold) creates an enforcement architecture that both enables robust information gathering and provides shielded pathways for officials and third parties to cooperate without incurring professional or civil risk. Agencies should therefore expect both legal obligations to comply and legal levers to resist disclosure where legitimate privilege or medical confidentiality exists (s 12(2)(a)-(b)), with courts available to adjudicate disputes.
How it interacts with other laws
The Act references and interacts directly with several other statutes and legal regimes. Those interactions shape jurisdictional boundaries, information-sharing networks, staffing mechanisms, confidentiality claims, and consequential amendment obligations.
Cross-referenced Acts and institutions
Children, Young Persons and Their Families Act 1997: “Information-sharing entity” is defined by that Act and is a core partner in non-identifying information exchange under s 16. Section 16(2)-(3) expressly contemplates the Commissioner requesting or receiving non-identifying information from such entities. Schedule 3 transitional provisions treat existing bodies under the former Act as continuing under this Act for committees (Sch 3 cl 4). Schedule 4 lists the Children, Young Persons and Their Families Act 1997 among consequential amendments (Sch 4).
Youth Justice Act 1997: The Commissioner has an express advocacy role for detainees under that Act and additional functions when acting as an advocate (s 8(1)(b); s 10). The Commissioner is required to respect detainees’ wishes and privacy and to facilitate access to support services under s 10.
Ombudsman Act 1978 and Custodial Inspector Act 2016: The Commissioner may refer matters to the Ombudsman or the Custodial Inspector when appropriate (s 17(2)), creating referral pathways into existing oversight mechanisms.
State Service Act 2000: The Commissioner may make arrangements with heads of State Service Agencies to source staff and may employ staff subject to the State Service Act (s 6(1)-(2)). However Schedule 1 explicitly states that the State Service Act does not apply in relation to the Commissioner (Sch 1 cl 2(3)), creating a hybrid: the Commissioner is outside the State Service Act for the office-holder but may use State Service employees.
Family Violence Act 2004 and prosecutorial discretion: Section 14(1)(c)-(d) excludes investigatory jurisdiction over specific applications of systems, policies and practices of the Director of Public Prosecutions and the Police Service related to prosecutorial decisions or applications for family violence orders in specific circumstances. This preserves prosecutorial and policing operational independence in individual cases.
Administrative Arrangements Act 1990: Until an order under that Act reassigns administration, the Act is assigned to the Minister for Human Services and the Department of Health and Human Services (s 26). This is a temporary administrative linkage until formal arrangements are made.
Public Sector Superannuation Reform Act 2016: Schedule 1 (as amended) declares the Commissioner is an employee for the purposes of that Act (Sch 1 cl 3(2)), which affects superannuation entitlements despite the Commissioner being outside the State Service Act.
Jurisdictional interactions and limits
The Act sets a general investigatory remit over systems, policies and practices in organisations providing services that affect children (s 11(2)(c)), but carves out specific limitations where matters overlap with prosecutorial discretion (s 14(1)(c)), police decisions regarding family violence orders (s 14(1)(d)), Tasmania Legal Aid legal advice in specified circumstances (s 14(1)(e)), and decisions in individual cases (s 14(1)(a)). These carve-outs preserve the autonomy of other legal regimes while restricting the Commissioner’s capacity to conduct reviews that could intrude on ongoing prosecutions or specific legal advice.
Ministerial request power: Despite the jurisdictional carve-outs, the Minister may request the Commissioner to undertake investigations or reviews that are outside the Commissioner’s ordinary jurisdiction (s 9(1) and s 9(2)(a)). However, the Minister may not set the terms of the investigation, state what is to be considered, or otherwise specify how it is to be held (s 9(2)(b)). The interplay means the Minister can expand the Commissioner’s functional remit case-by-case, though the Commissioner retains procedural control over the investigation.
Information law and confidentiality
The Act generates privacy and disclosure interactions. Section 12(2) preserves lawful claims or rights of privilege and medical confidentiality as exceptions to statutory compulsion. Section 18 requires confidentiality in respect of information obtained, with limited exceptions for consent, to prevent serious threats to health or public safety, or in other prescribed circumstances. At the same time, s 16 protects providers of non-identifying information from civil or criminal liability in good faith. Regulations may further prohibit or restrict publication or disclosure of information collected under the Act (s 25(2)(b)), enabling interface with privacy legislation.
Regulatory overlay and consequential amendments
The Governor’s regulation-making power under s 25 allows rules for conduct of investigations and for publication or disclosure controls; such regulations will interact with existing procedural and privacy regimes. Schedule 4 lists the Acts to which consequential amendments relate, including the Children, Young Persons and Their Families Act 1997, the Tasmanian Early Years Foundation Act 2005 and the Youth Justice Act 1997, signalling intended legislative harmonisation.
Operational interactions
Staffing and resourcing: s 6 enables use of State Service employees while Sch 1 sets terms of appointment and confirms that the State Service Act does not apply to the Commissioner, generating an interaction where the Commissioner may draw on public service capacity without being subject to the same statutory employment regime.
In sum, the Act is drafted to operate alongside existing child protection, youth justice, prosecutorial and administrative oversight regimes, providing investigatory and reporting capabilities that can be tailored by Ministerial request but bounded where other legal regimes require operational independence. The interaction with privacy, privilege and existing oversight bodies is expressly contemplated and regulated.
Amendment history
The text contains explicit amendment annotations and transitional provisions. The enacted and recorded changes in the provided text are:
Schedule 1, cl 3 amendments: The Schedule has been amended by No. 54 of 2016, s 8, applied 31 March 2017. The Schedule as amended includes the provision that the Commissioner is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 (Sch 1 cl 3(2)), and related amendments manifest in cl 3(3)-(5) placeholders visible in the source.
Section 17(2) amendment: Section 17(2) is marked as amended by No. 30 of 2016, Schedule 2, applied 16 November 2016. The amendment inserts an express power for the Commissioner to refer any matter to the Ombudsman or the Custodial Inspector appointed under s 5 of the Custodial Inspector Act 2016 where the Commissioner thinks it appropriate (s 17(2)).
Section 14(1)(e) amendment: Section 14(1) contains an editorial note that subsection (1) was amended by No. 2 of 2022, Schedule 1, applied 18 March 2022. The amended paragraph (e) excludes from the Commissioner’s investigatory jurisdiction the application of the systems, policies and practices of Tasmania Legal Aid in respect of legal advice given in specific circumstances by lawyers employed, engaged or funded by Tasmania Legal Aid. The precise textual amendment is annotated in the source.
Transitional provisions: Schedule 3 contains savings and transitional arrangements implementing continuity from the former Commissioner office under the Children, Young Persons and Their Families Act 1997 to this Act. Sch 3 cl 2 takes the existing Commissioner under the former Act to be appointed under s 5(1) of this Act on the same terms and conditions, and makes that person eligible for one further reappointment under the new Act (Sch 3 cl 2(a)-(b)). Sch 3 cl 3 prescribes how the first annual report is to include performance under both acts for the relevant financial year. Sch 3 cl 4 preserves committees and membership continuity.
Schedule 4: The source indicates consequential amendments are intended to the Children, Young Persons and Their Families Act 1997, the Tasmanian Early Years Foundation Act 2005 and the Youth Justice Act 1997 (Sch 4 listing), though the Schedule in the provided text only lists these Acts and does not reproduce the text of the consequential amendments.
Other technical points
Commencement remains by proclamation under s 2; the source indicates that provisions commence on a day or days to be proclaimed, so staged commencement is possible.
The source shows placeholders and amendment annotations (for example, ellipses in Sch 1 cl 3(3)-(5)) reflecting that parts of the Schedule were varied or removed in the amendment history. Those annotations in the statutory text identify when the legislative text was later amended but do not provide a full revision history beyond the specified amendments in 2016 and 2022.
What is not in the text
The text supplied does not list other amendments beyond the annotated items above, and does not include Commencement dates for each provision. It does not provide the text of consequential amendments in Schedule 4, only lists the Acts affected. There is no amendment history of case law in the Act; litigation history is absent in the statutory text.
For practitioners, the key amendment points to note are the 2016 amendments that formalised referral powers and the Commissioner’s employee status for superannuation, and the 2022 amendment narrowing jurisdiction in relation to Tasmania Legal Aid legal advice. Transitional arrangements in Sch 3 ensured continuity from the former Act.
Litigation history
The statute as provided contains no cases, judicial decisions, or litigation history. The text neither cites nor summarises any judicial interpretations or reported decisions. It contains procedural protections that affect litigation risk for the Commissioner and for those acting under the Act:
Section 24(2) establishes a precondition that leave of the Supreme Court is required to bring civil or criminal proceedings against the Commissioner or others acting under the Act in respect of acts done in good faith, and the Court must be satisfied that there is substantial ground for contention of bad faith before granting leave. This creates a statutory procedural hurdle that will be relevant in any potential litigation.
Section 12(3) enables courts to order compliance with requirements to provide information, which implies that courts will be a forum for enforcement applications where agencies or individuals claim privilege or other exceptions.
Section 17(3) provides that the Commissioner cannot be compelled in proceedings to disclose information acquired under the Act, which could impact discovery or evidence in litigation where the Commissioner holds relevant information.
Because the statutory text does not include any judicial treatment, practitioners must search case law databases and subsequent court decisions to determine how the courts have interpreted these provisions, whether the courts have granted leave under s 24(2) in particular circumstances, and how courts balance privilege claims under s 12(2) against the Commissioner’s compulsion powers and courts’ coercive orders under s 12(3). The Act itself does not record any litigation outcome.
If you require an authoritative report on judicial treatment of the Commissioner’s powers, privilege disputes, or the leave threshold under s 24(2), further targeted research in Tasmanian Supreme Court and appellate decisions will be necessary, as the statutory text does not supply that material.
Gotchas
The Act contains several technical features and interactions that can cause practical compliance or constitutional surprises if untreated. Below are concrete “gotchas” drawn from the text, the operational mechanism that creates each risk, and where to look in the Act.
Minister can require investigations outside ordinary jurisdiction (s 9(1) and s 9(2)(a))
Mechanism: s 9(2)(a) expressly allows a Minister’s request to require the Commissioner to undertake an investigation or review that is outside the Commissioner’s usual jurisdiction under s 14. However, the Minister cannot set terms of the investigation (s 9(2)(b)).
Practical risk: Agencies and third parties may be drawn into reviews the Commissioner would otherwise lack jurisdiction to conduct, increasing compliance demands. The Commissioner must still maintain procedural independence but must accept the expanded remit.
Draft-report intervention by Minister (s 9(3)-(5))
Mechanism: If an investigation or review was performed at the Minister’s request, the Commissioner must provide the Minister with a draft report (s 9(3)). The Minister has 21 days to provide comments or to seek consultation on the draft (s 9(4)). The Commissioner must include ministerial comments or the Minister’s request for consultation in the final report if requested (s 9(5)).
Practical risk: Inclusion of ministerial comments in a final report may alter public framing and receive scrutiny. Entities criticised should note that Ministerial comments may be included before finalisation.
Privilege and medical confidentiality carve-outs to compulsion (s 12(2))
Mechanism: Compulsion cannot require production of documents where there is a lawful claim of privilege, confidential medical communications, or where answers may incriminate the person (s 12(2)(a)-(c)).
Practical risk: Parties asked to comply must promptly assess privilege and medical confidentiality; failure to properly assert privileges risks inadvertent waiver. The court can nonetheless order production under s 12(3), so privilege disputes may be litigated.
Commissioner may require identifying details (s 12(1)(a); definition of identifying details in s 4)
Mechanism: s 12(1)(a) permits the Commissioner to require information including identifying details of a child or young person if specifically required; s 4 lists what qualifies as identifying details.
Practical risk: Agencies must have processes to handle sensitive personal data production (photos, addresses). Privacy and consent management are operationally necessary.
Confidentiality duty with limited exceptions (s 18)
Mechanism: s 18(1) restricts recording, disposal or use of information obtained under the Act, but allows disclosure for performing functions, with consent (including guardian consent), to prevent serious threats to health or safety, or in other prescribed circumstances.
Practical risk: Staff and contractors engaged by agencies should be trained in the Act’s confidentiality rules to avoid penalties (up to 50 penalty units). The Act allows further disclosure for the purposes for which information was disclosed (s 18(3)), which can create uncertainty about onward use; consider formal information-sharing agreements.
Publication timing and pre-publication procedures (ss 20-22; s 21)
Mechanism: The Commissioner must give the Minister a copy of any report within seven days of finalisation (s 20(3)), may not publish a report intended to be laid before Parliament until after it is laid before both Houses (s 22(2)), and must give any person targeted by an adverse comment at least 15 working days to make representations before the report is finalised (s 21).
Practical risk: Agencies and subjects of potential adverse comment must be ready to respond promptly within 15 working days to avoid being featured without representation in final reports. Reporting timelines can delay publication.
Hybrid employment regime and accountability (s 6; Sch 1 cl 2(3))
Mechanism: The Commissioner is outside the State Service Act (Sch 1 cl 2(3)), but may use State Service staff and employees in arrangements made under s 6, and is treated as an employee for superannuation purposes (Sch 1 cl 3(2)).
Practical risk: HR and employment entitlements need careful handling when seconding staff or employing persons for the Commissioner, as different statutory regimes apply to the office-holder and staff. Governance lines can be blurred.
Non-compellable disclosure by Commissioner in court (s 17(3)) versus referral powers (s 17(1)-(2))
Mechanism: Commissioner may divulge information to relevant authorities if appropriate and lawful (s 17(1)), and refer matters to the Ombudsman or Custodial Inspector (s 17(2)), but cannot be compelled in court to disclose information obtained under the Act (s 17(3)).
Practical risk: Entities seeking evidence held by the Commissioner may find those materials unavailable in judicial processes, which affects litigation strategy and evidence gathering.
Committees must include children (Sch 2 cl 3)
Mechanism: The Children and Young People Consultative Council must be composed of children and represent diversity (Sch 2 cl 3).
Practical risk: Appointing members under child-protection and privacy rules requires procedural safeguards; the Commissioner must ensure appropriate consent, safeguarding and child-appropriate practice in recruitment and meetings.
Removal and vacancy grounds for the Commissioner (Sch 1 cl 4)
Mechanism: The Governor may remove the Commissioner for various grounds including bankruptcy, conviction of certain offences, neglect, inability to perform, or misconduct (Sch 1 cl 4).
Practical risk: Office stability may be sensitive to personal circumstances; the instrument creates specific removal thresholds and technical grounds which applicants and office-holders must note.
Each of these points represents a concrete operational or legal friction. Practitioners and compliance officers should design checklists and protocols that map to the specific sections cited above to anticipate these “gotchas” and reduce implementation risk.
How to comply
This section gives a practical compliance checklist for agencies, non-government providers, committee members, and the Commissioner’s office, tied to specific statutory provisions.
For agencies and service providers
Designate a single point of contact for Commissioner requests
Rationale: s 12(1) allows the Commissioner to require information, answers or documents. A single contact reduces risk of missed deadlines and inconsistent privilege claims.
Develop a privilege and confidentiality assessment workflow
Steps: On receipt of a s 12 requirement, immediately:
Identify whether the material is subject to a lawful claim of privilege (s 12(2)(a)), is confidential medical communication (s 12(2)(b)), or might incriminate the person (s 12(2)(c)).
Document the assessment and notify relevant legal counsel.
If refusing to produce on privilege grounds, provide a written claim and the legal basis promptly; be prepared for court adjudication under s 12(3).
Why: Non-compliance attracts fines up to 100 penalty units and ongoing daily penalties (s 12(2)).
Prepare de-identification procedures for data sharing
Implement standard de-identification processes to respond to s 16 requests for non-identifying information and to disclose data proactively to the Commissioner if lawful (s 16(2)-(3)).
Maintain records evidencing good-faith action to benefit from immunity under s 16(4)(b).
Training and record-keeping for staff interacting with Commissioner
Train staff on confidentiality obligations under s 18, the exceptions, and the penalty for breaches (s 18(1) penalty).
Keep written logs of all disclosures to and from the Commissioner including legal basis and consents, to justify onward disclosures per s 18(3).
Prepare for potential ministerial-requested investigations
If a Minister requests an investigation under s 9(1) that expands Commissioner jurisdiction under s 9(2)(a), ensure relevant program areas and legal units are briefed; expect the Commissioner to control procedure but to accept the expanded remit.
For committee members and advisory bodies
Understand membership duties and disclosure requirements
Each committee member must disclose conflicts of interest as soon as practicable (Sch 2 cl 6(1)); failure carries up to 10 penalty units. Implement a register of interests and a pre-meeting disclosure routine.
Arrange child-safe practices for the Consultative Council
Because the Consultative Council must consist of children and represent diversity (Sch 2 cl 3), adopt child-protection checks, consent processes, parental/guardian consent procedures (s 18(b) consent for children), and child-appropriate meeting formats.
For the Commissioner’s office
Annual plan and reporting calendar
Prepare the annual plan by 31 March each year and provide a copy to the Minister (s 7).
Calendar the annual report cycle: prepare annual report within three months after the financial year, ensure laying before Parliament by 30 November (s 19(1)-(2)), and share with the Minister and Secretary as required.
For ad hoc reports, provide copies to the Minister within seven days of finalisation (s 20(3)) and observe the seven sitting-day restraint before laying publicly (s 20(4)).
Procedures on adverse comments
Before finalising any report containing adverse comments about a person, provide written notice and allow at least 15 working days for representations (s 21). Establish templates and timelines for notification and recording responses.
Data handling and confidentiality policy
Implement strict information classification consistent with s 18: define use cases allowed for recorded information, consent forms for disclosure where necessary (s 18(1)(b)), and emergency exceptions for serious threats (s 18(1)(c)). Ensure systems track whether disclosed material is lawfully disclosed for purposes covered by s 18(3).
Evidence and investigation protocol
Because the Commissioner is not bound by rules of evidence (s 11(3)(b)) and may regulate proceedings (s 11(3)(a)), adopt an internal protocol describing when to hold hearings, the public/private nature of investigations (s 11(3)(e)), and document reasons for chosen procedures to support defensibility.
Legal and risk management
Legal counsel involvement at threshold points
Engage counsel for privilege disputes under s 12(2), for potential Supreme Court leave issues under s 24(2) if litigation arises, and when assessing whether information must be divulged to relevant authorities under s 17(1).
Insurance and indemnity review
While s 24(1) provides protection from personal liability for acts in good faith, confirm indemnity policies and employer insurance arrangements to cover legal costs and risk of proceedings where leave is sought under s 24(2).
Publication and parliamentary liaison
Coordinate early with the Minister’s office when drafting reports that are likely to be laid before Parliament to manage the 21-day draft-comment period on Minister-requested reviews (s 9(3)-(4)) and the timing constraints in s 20 and s 22.
Practical checklists
On receipt of a Commissioner s 12 notice:
Log date of notice and due date.
Identify document custodians and prepare a privilege log.
Seek legal advice within 5 working days for privilege assessment.
Produce non-privileged, non-medical materials by the due date.
If refusing on privilege grounds, prepare for possible court order under s 12(3).
For committees:
Maintain minutes recording disclosures of interest per Sch 2 cl 6(2).
Ensure meetings follow any written directions from the Commissioner (Sch 2 cl 5(1)).
For staff secondments:
Formalise secondment terms with head of State Service Agency under s 6(1), documenting reporting lines and liability protections per s 24.
By mapping statute sections to discrete operational procedures, organisations can reduce exposure to fines, avoid inadvertent privilege waiver, meet reporting obligations, and ensure consistent handling of children’s data and participation requirements.
Part 2Office of Commissioner for Children and Young People
identifying details includes name, date of birth, street address, contact details, photographs and other prescribed information but does not include any information that is subject to any lawful claim or right of privilege;
information-sharing entity has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;
Ombudsman has the same meaning as in the Ombudsman Act 1978 ;
report means a report of the Commissioner made under this Act;
Secretary means Secretary of the Department;
State authority has the same meaning as in the State Service Act 2000 ;
vulnerable, in relation to a child or young person, includes –
(a) a child or young person who is the subject of proceedings under the Youth Justice Act 1997 ; and
(b) a child or young person who is, or was, the subject of a care and protection order under the Children, Young Persons and Their Families Act 1997 ; and
(c) a child or young person who is at risk within the meaning of the Children, Young Persons and Their Families Act 1997 ; and
(d) a child or young person who is receiving, or has received, services under the Youth Justice Act 1997 or Part 5 of the Children, Young Persons and Their Families Act 1997 ;
wellbeing, in relation to children and young people, includes the care, development and education, and the physical, emotional and psychological health and safety, of children and young people;
young person means a person, who has not attained the age of 18 years, as determined by the Commissioner in accordance with section 8(4) .
Part 2 Office of Commissioner for Children and Young People
Part 2 Office of Commissioner for Children and Young People
Division 1 Office of Commissioner for Children and Young People
Division 1 Office of Commissioner for Children and Young People
5 Commissioner for Children and Young People
5 Commissioner for Children and Young People
(1) The Governor, on the recommendation of the Minister, is to appoint a person as the Commissioner for Children and Young People.
(2) Schedule 1 has effect in respect of the Commissioner and his or her appointment.
6 Staff
6 Staff
(1) The Commissioner may make arrangement with the Head of a State Service Agency for a State Service officer or State Service employee employed in that Agency to be made available to the Commissioner to enable the Commissioner to perform his or her functions under this Act or any other Act.
(2) Subject to and in accordance with the State Service Act 2000 , a person may be employed for the purpose of enabling the Commissioner to perform his or her functions under this Act or any other Act.
(3) Officers and employees made available under subsection (1) , or employed under subsection (2), may serve the Commissioner in any capacity in conjunction with State Service employment.
7 Annual plan
7 Annual plan
The Commissioner is to, no later than 31 March in each year –
(a) prepare an annual plan describing the Commissioner's proposed program of work and activities for the following financial year; and
(b) provide a copy of the annual plan to the Minister.
Division 2 Functions and powers of Commissioner
Division 2 Functions and powers of Commissioner
8 General functions of Commissioner
8 General functions of Commissioner
(1) The Commissioner has the following functions:
(a) advocating for all children and young people in the State generally;
(b) acting as advocate for a detainee under the Youth Justice Act 1997 ;
(c) researching, investigating and influencing policy development into matters relating to children and young people generally;
(d) promoting, monitoring and reviewing the wellbeing of children and young people generally;
(e) promoting and empowering the participation of children and young people in the making of decisions, or the expressing of opinions on matters, that may affect their lives;
(f) assisting in ensuring the State satisfies its national and international obligations in respect of children and young people generally;
(g) encouraging and promoting the establishment by organisations of appropriate and accessible mechanisms for the participation of children and young people in matters that may affect them;
(h) such other functions as are prescribed.
(2) If the Commissioner advises the Minister under this Act or any other Act, the Commissioner must also provide the advice to any other Minister who administers the department, Agency or legislation that is the subject of the advice.
(3) Unless otherwise specified, the Commissioner must act independently, impartially and in the public interest when performing a function, or exercising a power, under this Act or any other Act.
(4) For the purpose of performing any function, or exercising any power, the Commissioner may determine when a child is considered a young person for the purpose of the function or power.
9 Minister may request Commissioner to investigate or review
9 Minister may request Commissioner to investigate or review
(1) The Commissioner must, if requested to do so by the Minister, undertake an investigation or review into such decision or recommendation made, or such act or omission, under any Act as is specified in the request of the Minister.
(2) A request of the Minister under subsection (1) –
(a) may require the Commissioner to undertake an investigation or review that is outside the jurisdiction of the Commissioner as set out in section 14 ; and
(b) may not –
(i) set the terms of the investigation or review; or
(ii) state what is to be considered as part of the investigation or review; or
(iii) otherwise specify how the investigation or review is to be held; and
(c) does not affect the impartiality of the Commissioner or his or her ability to determine the procedure for the investigation or review.
(3) If the Commissioner prepares a report under section 20 in respect of an investigation or review performed by the Commissioner at the request of the Minister, the Commissioner must provide a draft of the report to the Minister.
(4) Within 21 days after receiving a draft report under subsection (3) , the Minister may do either or both of the following:
(a) provide the Commissioner with written comments or feedback on the draft report;
(b) make a written request that the Commissioner consult on the draft report with a person specified in the written request.
(5) If the Minister has taken action under subsection (4) in respect of a draft report under subsection (1) , the Commissioner must include in the finalised report, if requested to do so by the Minister –
(a) a copy of the written comments or feedback of the Minister provided under subsection (4) (a), if any; and
(b) a copy of the written request of the Minister under subsection (4) (b), if any.
10 Commissioner to act as advocate under Youth Justice Act 1997
10 Commissioner to act as advocate under Youth Justice Act 1997
(1) The Commissioner has the following additional functions when acting as an advocate for a detainee under the Youth Justice Act 1997 :
(a) listening to, and giving voice to, the concerns and grievances of the detainee and facilitating the resolution of those concerns and grievances;
(b) seeking information about, and facilitating access by the detainee to, support services appropriate to the needs of the detainee;
(c) assessing whether the detainee has been provided with adequate information about his or her rights;
(d) assessing, in the Commissioner's opinion, the physical and emotional wellbeing of the detainee.
(2) In acting as an advocate for a detainee within the meaning of the Youth Justice Act 1997 , the Commissioner –
(a) must, within reason, seek and take into account the views and wishes of the detainee before –
(i) asking a staff member of the detention centre, within the meaning of that Act, a question about the detainee; or
(ii) inspecting, or taking extracts or copies of, a document that relates to the detainee; or
(iii) including information about the detainee in a report related to the Commissioner's function as an advocate under that Act; and
(b) must –
(i) preserve, as far as practicable in the circumstances, the privacy of the detainee; and
(ii) respect the wishes of any detainee who does not wish to communicate with the Commissioner; and
(c) may accept, and consider, the detainee's views or wishes provided to the Commissioner in any form the Commissioner thinks fit.
11 General powers of Commissioner
11 General powers of Commissioner
(1) The Commissioner has the power to do all things necessary, or convenient, to be done in connection with the performance of his or her functions, and the exercise of his or her powers, under this or any other Act.
(2) Without limiting subsection (1) , the Commissioner may –
(a) require any person to provide information, answer questions, or produce documents, so far as may be relevant to the performance of the functions, or the exercise of the powers, of the Commissioner or the administration of this Act; and
(b) require information and data for the purposes of –
(i) collating, studying, interpreting and maintaining information in relation to the wellbeing of children and young people in the State; and
(ii) identifying and monitoring trends in respect of the wellbeing of children and young people in the State; and
(c) investigate, and make recommendations in respect of, the systems, policies and practices of organisations, government or non-government, that provide services that affect children and young people; and
(d) investigate, and make recommendations in respect of, the effects of any legislation, proposed legislation, documents, government policies, or practices or procedures, or other matters relating to the wellbeing of children and young people; and
(e) advise and make recommendations, in relation to the rights and wellbeing of children and young people, to Ministers, State authorities and other organisations; and
(f) provide information to other organisations in accordance with this Act or any other Act; and
(g) report publicly on the wellbeing of children and young people in the State; and
(h) exercise such other powers as are prescribed.
(3) In performing a function, or exercising a power, under this Act, the Commissioner –
(a) may regulate any proceedings held under this Act in any manner he or she considers appropriate; and
(b) is not bound by the rules of evidence but may inform himself, or herself, on any matter in any manner the Commissioner thinks fit; and
(c) is not required to hold a hearing as part of an investigation or review, or as part of the performance of any other function, under this Act; and
(d) may investigate, or review, a matter in any manner he or she considers appropriate; and
(e) may hold an investigation, or review, under this Act in public or in private.
12 Power to compel information
12 Power to compel information
(1) If necessary for the performance of a function, or the exercise of a power, the Commissioner may require a person to do any one or more of the following:
(a) to provide information in the format, or manner, specified by the Commissioner, including information that contains identifying details of a child or young person if specifically required by the Commissioner;
(b) to answer questions whether orally or in writing;
(c) to produce documents as specified in the requirement.
(2) A person must comply with a requirement of the Commissioner under subsection (1) unless, to do so, would require the person to provide information, answer questions, or produce documents –
(a) in respect of which there is a lawful claim or right of privilege; or
(b) that contain information, communicated to a medical professional in confidence, relating to the physical, mental or psychological health of a person; or
(c) that may incriminate the person in an offence.
Penalty: Fine not exceeding 100 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.
(3) In addition to any penalty imposed on a person under subsection (2) , a court may make an order requiring
This is an opening excerpt, not the complete document.