Div 1ACertain complaints to be referred to Ombudsman

Division 1A—Certain complaints to be referred to Ombudsman 28A—Commissioner to refer certain complaints to Ombudsman (1) Subject to this section, the Commissioner must refer a complaint that is a prescribed child protection complaint to the Ombudsman to be dealt with under the Ombudsman Act 1972. (2) The Commissioner and the Ombudsman may enter into an administrative arrangement to identify classes of prescribed child protection complaints that are to be dealt with by the Commissioner under this Act (and subsection (1) will be taken not to apply to such complaints). (3) An administrative arrangement may be varied or revoked by agreement between the Commissioner and the Ombudsman. (4) A copy of an administrative arrangement, as in force from time to time, must be published on a website determined by the Minister. (5) The Minister must, within 6 sitting days after an administrative arrangement is entered into under subsection (2), cause a copy of the administrative arrangement to be laid before both Houses of Parliament. (6) Without limiting a provision of the Ombudsman Act 1972, the Ombudsman, in dealing with a prescribed child protection complaint, has the same jurisdiction and any additional powers that the Health and Community Services Complaints Commissioner would have under this Act in respect of such a complaint. (7) For the purposes of the Ombudsman Act 1972, a complaint referred under this section will be taken to be a complaint received under that Act. (8) In this section— administrative act has the same meaning as in the Ombudsman Act 1972; at risk has the same meaning as in the Children and Young People (Safety) Act 2016; prescribed child protection complaint means— (a) a complaint relating to a health or community service— (i) that is provided to, or for the benefit of, a child who may be, or who has been, at risk; or (ii) that consists of, or includes, a notification (whether mandatory or otherwise) of a suspicion that a child may be at risk; or (iii) that consists of, or includes or arises out of, an investigation of a case where a child may be at risk; or (iv) that is provided to, or for the benefit of, a child who is under the guardianship, or in the custody of, the Minister or another person under the Children and Young People (Safety) Act 2016, where the provision of the service constitutes an administrative act on the part of an agency to which the Ombudsman Act 1972 applies; or (b) any other complaint of a kind declared by the regulations to be included in the ambit of this definition, but does not include a complaint of a kind declared by the regulations not to be included in the ambit of this definition. Division 2—Assessment 29—Assessment (1) The Commissioner must assess a complaint and make a determination in accordance with this section within 45 days after receiving it (or within such longer period as may be necessary in view of any delays that have occurred while the Commissioner or another person takes steps required by or under this Act, or while the Commissioner is undertaking a preliminary inquiry under section 30). (2) Subject to this Act, the Commissioner may— (a) refer the complaint to a conciliator under Part 5; or (b) investigate the complaint under Part 6; or (c) if the complaint is against or directly involves a registered service provider, deal with the complaint under Part 7; or (d) if of the opinion that the complaint relates to a matter that falls within the functions conferred on another person or body and that it is appropriate in the circumstances to make a referral under this provision, refer the complaint to the other person or body; or (e) determine to take no further action on the complaint. (3) If a complaint is against or directly involves an approved provider under the Aged Care Act 1997 of the Commonwealth— (a) the Commissioner must consult with the relevant complaints resolution bodies under that Act about the management of the complaint; and (b) the Commissioner may refer the complaint to another authority for investigation or resolution under that Act; and (c) the Commissioner may provide information and assistance to another authority concerned with the investigation or resolution of the complaint under that Act. (4) The Commissioner must not refer a complaint to a conciliator if the complaint appears to the Commissioner to indicate— (5) A complaint should not proceed under this Act if it appears to the Commissioner that the complainant has failed, without good reason, to take reasonable steps to resolve the matter with the relevant health or community service provider before making the complaint. (6) Within 14 days after making a determination under subsection (1), the Commissioner must provide written notice of the determination— (b) except where the Commissioner has determined to dismiss the complaint, to the health or community service provider. (7) In subsection (1), complaint includes a complaint that has been referred, or referred back to the Commissioner, by the State Ombudsman, a registration authority or other person or body referred to in subsection (2). 30—Preliminary inquiries (1) The Commissioner may, in such manner as the Commissioner thinks fit, undertake a preliminary inquiry in connection with making a determination under section 29. (2) For the purposes of an inquiry, the Commissioner may require a health or community service provider to provide information, or any response or explanation, about any matter relevant to the inquiry. (3) The Commissioner must specify a reasonable period within which a health and community service provider is to comply with a requirement under subsection (2). (4) The Commissioner may extend the period specified under subsection (3) (whether before or after its expiry). (5) A health or community service provider must comply with a requirement under subsection (2). (6) However, a person is not obliged to comply with a requirement under subsection (2) if to do so might tend to incriminate the person or make the person liable to a criminal penalty. (7) During the conduct of a preliminary inquiry, the Commissioner may assist the parties towards resolution of the complaint through informal mediation. (8) Informal mediation should not occur if the complaint appears to the Commissioner to indicate— (9) Informal mediation will occur in such manner, and subject to such conditions, as the Commissioner thinks fit. (10) Anything said or done during an informal mediation, other than something that reveals a significant issue of public safety, interest or importance, is not to be disclosed in any other proceedings (whether under this or any other Act or law) except by consent of the parties. (11) An informal mediation must be brought to an end— (a) if the informal mediation reveals, in the opinion of the Commissioner— (i) a significant issue of public safety, interest or importance; or (ii) a significant question as to the practice of a health or community service provider; or (b) at the request of a party to the informal mediation. (12) The Commissioner may bring an informal mediation to an end at any time. (13) For the purposes of conducting any inquiry or informal mediation under this section, the Commissioner may obtain the assistance of a professional mentor. (14) The Commissioner may discuss any matter relevant to making a determination under section 29 or with respect to the operation of this section with a professional mentor. 31—Provision of documents etc on referral of complaint (1) If the Commissioner has referred a complaint to another person or body (including a registration authority) under this Division, the Commissioner may give to the other person or body all documents and information in the possession of the Commissioner that relate to the complaint. (2) The Commissioner may— (a) make and retain a record of information referred to in subsection (1); and (b) make copies of, or take extracts from, a document referred to in subsection (1) and retain those copies or extracts. 32—Splitting or joining of complaints (1) If it is administratively or otherwise appropriate to do so, the Commissioner may determine that a complaint that— (a) deals with more than one subject matter; or (b) deals with more than one set of circumstances; or (c) makes allegations against more than one health or community service provider; or (d) makes more than one allegation against a health or community service provider; or (e) for any other reason is susceptible to being dealt with in separate parts, be treated as 2 or more complaints for the purposes of this Act. (2) If it is administratively or otherwise appropriate to do so, the Commissioner may determine that 2 or more complaints that— (a) deal with the same subject matter; or (b) deal with the same set of circumstances; or (c) make allegations against the same health or community service provider; or (d) for any other reasons are susceptible to amalgamation, be treated as 1 complaint for the purposes of this Act. (3) The Commissioner may give such directions or make such incidental determinations as the Commissioner thinks necessary or convenient in view of a determination under subsection (1) or (2). (4) A determination or direction of the Commissioner will have effect according to its terms. (5) The Commissioner must not make a determination under subsection (1) or (2) if it appears to the Commissioner that any attempt at resolution or conciliation is likely to be prejudiced by the making of the determination. Division 3—No further action on complaint 33—No further action on complaint (1) The Commissioner may at any stage of proceedings under this Act determine to take no further action on a complaint, or to suspend action on a complaint, if the Commissioner considers or is satisfied that— (a) the complainant is not entitled to make the complaint under this Act; or (b) the complaint does not disclose a ground of complaint under this Act; or (c) the matter should be determined by way of legal proceedings; or (d) proceedings that relate to the subject matter of the complaint have been commenced before a tribunal, authority or other person or body; or (e) the complainant has been given reasonable explanations or information and there would be no benefit in further entertaining the complaint; or (f) the complainant is seeking to act on a ground that should have been disclosed by the complainant at an earlier time in accordance with the requirements of section 26(2); or (g) the complaint lacks substance, is unnecessary or unjustifiable, or is frivolous, vexatious or not made in good faith; or (h) the complainant has failed, without good reason, to comply with a requirement under this Act within a reasonable time, or to take a reasonable step in connection with making the complaint or proceeding with the complaint under this Act; or (i) the commencement or continuance of proceedings on the complaint would otherwise be an abuse of the processes under this Act; or (j) the complaint has been resolved or abandoned; or (k) there is some other reasonable cause that justifies the discontinuance or suspension of proceedings under this Act, (and such a determination will have effect according to its terms). (2) The Commissioner must take no further action on a complaint if the Commissioner is satisfied that all issues arising out of the subject matter of the complaint have been adjudicated by a court, tribunal, authority or other person or body acting under a law of the State, another State, a Territory or the Commonwealth. (3) The Commissioner must suspend action on a complaint if the Commissioner is satisfied— (a) that proceedings that relate to the subject matter of the complaint have been commenced before the court; or (b) that an inquest that relates to the subject matter of the complaint has been commenced by a coroner. (4) The Commissioner must, in a case where subsection (1), (2) or (3) applies, give written notice relating to the matter— (b) except where notice of the complaint has not been given to the health or community service provider, to the health or community service provider. (5) The Commissioner may recommence action on a suspended complaint for any reasonable cause by giving written notice— (b) to the health or community service provider. Division 4—Miscellaneous 34—Withdrawal of complaint (1) A complainant may withdraw a complaint at any time by written notice to the Commissioner. (2) If a complaint is withdrawn— (a) any investigation under this Act in relation to the matter will cease unless the Commissioner has determined to conduct or continue an investigation under section 43(1)(c); and (b) the Commissioner must— (i) if the health or community service provider has been notified of the receipt of the complaint—notify that provider of the withdrawal within 14 days; and (ii) if the Commissioner has determined to conduct or continue an investigation under section 43(1)(c)—advise the health or community service provider about the effect of the determination despite the withdrawal of the complaint. (3) If the Commissioner has referred a complaint to another person or body under this Act, the withdrawal of that complaint under subsection (1) does not affect the performance and exercise by the person or body of his, her or its functions and powers in respect of the matters raised by or in the complaint.